G.R. No. 180643 March 25, 2008 ROMULO L. NERI vs.SENATE DECISION LEONARDO-DE CASTRO, J.

: At bar is a petition for certiorari under Rule 65 of the Rules of Court assailing the show cause Letter dated November 22, 2007 and contempt Order dated January 30, 2008 concurrently issued by respondent. Senate Committees on Accountability of Public Officers and Investigations, Trade and Commerce, and National Defense and Security against petitioner Romulo L. Neri, former Director General of the National Economic and Development Authority (NEDA). The facts, as culled from the pleadings, are as follows: On April 21, 2007, the Department of Transportation and Communication (DOTC) entered into a contract with Zhong Xing Telecommunications Equipment (ZTE) for the supply of equipment and services for the National Broadband Network (NBN) Project in the amount of U.S. $ 329,481,290 (approximately P16 Billion Pesos). The Project was to be financed by the People's Republic of China. In connection with this NBN Project, various Resolutions were introduced in the Senate, as follows:

JUSTIFICATION OF THE NATIONAL BROADBAND NETWORK (NBN) PROJECT OF THE NATIONAL GOVERNMENT. At the same time, the investigation was claimed to be relevant to the consideration of three (3) pending bills in the Senate, to wit: 1. Senate Bill No. 1793, introduced by Senator Mar Roxas, entitled AN ACT SUBJECTING TREATIES, INTERNATIONAL OR EXECUTIVE AGREEMENTS INVOLVING FUNDING IN THE PROCUREMENT OF INFRASTRUCTURE PROJECTS, GOODS, AND CONSULTING SERVICES TO BE INCLUDED IN THE SCOPE AND APPLICATION OF PHILIPPINE PROCUREMENT LAWS, AMENDING FOR THE PURPOSE REPUBLIC ACT NO. 9184, OTHERWISE KNOWN AS THE GOVERNMENT PROCUREMENT REFORM ACT, AND FOR OTHER PURPOSES; 2. Senate Bill No. 1794, introduced by Senator Mar Roxas, entitled AN ACT IMPOSING SAFEGUARDS IN CONTRACTING LOANS CLASSIFIED AS OFFICIAL DEVELOPMENT ASSISTANCE, AMENDING FOR THE PURPOSE REPUBLIC ACT NO. 8182, AS AMENDED BY REPUBLIC ACT NO. 8555, OTHERWISE KNOWN AS THE OFFICIAL DEVELOPMENT ASSISTANCE ACT OF 1996, AND FOR OTHER PURPOSES; and 3. Senate Bill No. 1317, introduced by Senator Miriam Defensor Santiago, entitled AN ACT MANDATING CONCURRENCE TO INTERNATIONAL AGREEMENTS AND EXECUTIVE AGREEMENTS. Respondent Committees initiated the investigation by sending invitations to certain personalities and cabinet officials involved in the NBN Project. Petitioner was among those invited. He was summoned to appear and testify on September 18, 20, and 26 and October 25, 2007. However, he attended only the September 26 hearing, claiming he was "out of town" during the other dates. In the September 18, 2007 hearing, businessman Jose de Venecia III testified that several high executive officials and power brokers were using their influence to push the approval of the NBN Project by the NEDA. It appeared that the Project was initially approved as a Build-Operate-Transfer (BOT) project but, on March 29, 2007, the NEDA acquiesced to convert it into a government-to-government project, to be financed through a loan from the Chinese Government. On September 26, 2007, petitioner testified before respondent Committees for eleven (11) hours. He disclosed that then Commission on Elections (COMELEC) Chairman Benjamin Abalos offered him P200 Million in exchange for his approval of the NBN Project. He further narrated that he informed President Arroyo about the bribery attempt and that she instructed him not to accept the bribe. However, when probed further on what they discussed about the NBN Project, petitioner refused to answer, invoking "executive privilege". In particular, he refused to answer the questions on (a) whether or not President Arroyo followed up the NBN Project, (b) whether or not she directed him to prioritize it, and (c) whether or not she directed him to approve. Unrelenting, respondent Committees issued a Subpoena Ad Testificandum to petitioner, requiring him to appear and testify on November 20, 2007.

(1)

P.S. Res. No. 127, introduced by Senator Aquilino Q. Pimentel, Jr., entitled RESOLUTION DIRECTING THE BLUE RIBBON COMMITTEE AND THE COMMITTEE ON TRADE AND INDUSTRY TO INVESTIGATE, IN AID OF LEGISLATION, THE CIRCUMSTANCES LEADING TO THE APPROVAL OF THE BROADBAND CONTRACT WITH ZTE AND THE ROLE PLAYED BY THE OFFICIALS CONCERNED IN GETTING IT CONSUMMATED AND TO MAKE RECOMMENDATIONS TO HALE TO THE COURTS OF LAW THE PERSONS RESPONSIBLE FOR ANY ANOMALY IN CONNECTION THEREWITH AND TO PLUG THE LOOPHOLES, IF ANY IN THE BOT LAW AND OTHER PERTINENT LEGISLATIONS. P.S. Res. No. 144, introduced by Senator Mar Roxas, entitled RESOLUTION URGING PRESIDENT GLORIA MACAPAGAL ARROYO TO DIRECT THE CANCELLATION OF THE ZTE CONTRACT P.S. Res. No. 129, introduced by Senator Panfilo M. Lacson, entitled RESOLUTION DIRECTING THE COMMITTEE ON NATIONAL DEFENSE AND SECURITY TO CONDUCT AN INQUIRY IN AID OF LEGISLATION INTO THE NATIONAL SECURITY IMPLICATIONS OF AWARDING THE NATIONAL BROADBAND NETWORK CONTRACT TO THE CHINESE FIRM ZHONG XING TELECOMMUNICATIONS EQUIPMENT COMPANY LIMITED (ZTE CORPORATION) WITH THE END IN VIEW OF PROVIDING REMEDIAL LEGISLATION THAT WILL PROTECT OUR NATIONAL SOVEREIGNTY, SECURITY AND TERRITORIAL INTEGRITY. P.S. Res. No. 136, introduced by Senator Miriam Defensor Santiago, entitled RESOLUTION DIRECTING THE PROPER SENATE COMMITTEE TO CONDUCT AN INQUIRY, IN AID OF LEGISLATION, ON THE LEGAL AND ECONOMIC

(2)

(3)

(4)

However, in the Letter dated November 15, 2007, Executive Secretary Eduardo R. Ermita requested respondent Committees to dispense with petitioner's testimony on the ground of executive privilege. The pertinent portion of the letter reads: With reference to the subpoena ad testificandum issued to Secretary Romulo Neri to appear and testify again on 20 November 2007 before the Joint Committees you chair, it will be recalled that Sec. Neri had already testified and exhaustively discussed the ZTE / NBN project, including his conversation with the President thereon last 26 September 2007. Asked to elaborate further on his conversation with the President, Sec. Neri asked for time to consult with his superiors in line with the ruling of the Supreme Court in Senate v. Ermita, 488 SCRA 1 (2006). Specifically, Sec. Neri sought guidance on the possible invocation of executive privilege on the following questions, to wit: a) Whether the President followed up the (NBN) project? b) Were you dictated to prioritize the ZTE? c) Whether the President said to go ahead and approve the project after being told about the alleged bribe? Following the ruling in Senate v. Ermita, the foregoing questions fall under conversations and correspondence between the President and public officials which are considered executive privilege (Almonte v. Vasquez, G.R. 95637, 23 May 1995; Chavez v. PEA, G.R. 133250, July 9, 2002). Maintaining the confidentiality of conversations of the President is necessary in the exercise of her executive and policy decision making process. The expectation of a President to the confidentiality of her conversations and correspondences, like the value which we accord deference for the privacy of all citizens, is the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decision-making. Disclosure of conversations of the President will have a chilling effect on the President, and will hamper her in the effective discharge of her duties and responsibilities, if she is not protected by the confidentiality of her conversations. The context in which executive privilege is being invoked is that the information sought to be disclosed might impair our diplomatic as well as economic relations with the People's Republic of China. Given the confidential nature in which these information were conveyed to the President, he cannot provide the Committee any further details of these conversations, without disclosing the very thing the privilege is designed to protect. In light of the above considerations, this Office is constrained to invoke the settled doctrine of executive privilege as refined in Senate v. Ermita, and has advised Secretary Neri accordingly. Considering that Sec. Neri has been lengthily interrogated on the subject in an unprecedented 11-hour hearing, wherein he has answered all questions propounded to him except the foregoing questions involving executive privilege, we therefore request that his testimony on 20 November 2007 on the ZTE / NBN project be dispensed with. On November 20, 2007, petitioner did not appear before respondent Committees. Thus, on November 22, 2007, the latter issued the show cause Letter requiring him to explain why he should not be cited in contempt. The Letter reads:

Since you have failed to appear in the said hearing, the Committees on Accountability of Public Officers and Investigations (Blue Ribbon), Trade and Commerce and National Defense and Security require you to show cause why you should not be cited in contempt under Section 6, Article 6 of the Rules of the Committee on Accountability of Public Officers and Investigations (Blue Ribbon). The Senate expects your explanation on or before 2 December 2007. On November 29, 2007, petitioner replied to respondent Committees, manifesting that it was not his intention to ignore the Senate hearing and that he thought the only remaining questions were those he claimed to be covered by executive privilege, thus: It was not my intention to snub the last Senate hearing. In fact, I have cooperated with the task of the Senate in its inquiry in aid of legislation as shown by my almost 11 hours stay during the hearing on 26 September 2007. During said hearing, I answered all the questions that were asked of me, save for those which I thought was covered by executive privilege, and which was confirmed by the Executive Secretary in his Letter 15 November 2007. In good faith, after that exhaustive testimony, I thought that what remained were only the three questions, where the Executive Secretary claimed executive privilege. Hence, his request that my presence be dispensed with. Be that as it may, should there be new matters that were not yet taken up during the 26 September 2007 hearing, may I be furnished in advance as to what else I need to clarify, so that as a resource person, I may adequately prepare myself. In addition, petitioner submitted a letter prepared by his counsel, Atty. Antonio R. Bautista, stating, among others that: (1) his (petitioner) non-appearance was upon the order of the President; and (2) his conversation with President Arroyo dealt with delicate and sensitive national security and diplomatic matters relating to the impact of the bribery scandal involving high government officials and the possible loss of confidence of foreign investors and lenders in the Philippines. The letter ended with a reiteration of petitioner's request that he "be furnished in advance" as to what else he needs to clarify so that he may adequately prepare for the hearing. In the interim, on December 7, 2007, petitioner filed with this Court the present petition for certiorari assailing the show cause Letter dated November 22, 2007. Respondent Committees found petitioner's explanations unsatisfactory. Without responding to his request for advance notice of the matters that he should still clarify, they issued the Order dated January 30, 2008, citing him in contempt of respondent Committees and ordering his arrest and detention at the Office of the Senate Sergeant-At-Arms until such time that he would appear and give his testimony. The said Order states: ORDER For failure to appear and testify in the Committee's hearing on Tuesday, September 18, 2007; Thursday, September 20, 2007; Thursday, October 25, 2007; and Tuesday, November 20, 2007, despite personal notice and Subpoenas Ad Testificandum sent to and received by him, which thereby delays, impedes and obstructs, as it has in fact delayed, impeded and obstructed the inquiry into the subject reported irregularities, AND for failure to explain satisfactorily why he should not be cited for contempt (Neri letter of 29 November 2007), herein attached) ROMULO L. NERI is hereby cited in contempt of this (sic) Committees and ordered arrested and detained in the Office of the Senate Sergeant-At-Arms until such time that he will appear and give his testimony.

The Sergeant-At-Arms is hereby directed to carry out and implement this Order and make a return hereof within twenty four (24) hours from its enforcement. SO ORDERED. On the same date, petitioner moved for the reconsideration of the above Order. He insisted that he has not shown "any contemptible conduct worthy of contempt and arrest." He emphasized his willingness to testify on new matters, however, respondent Committees did not respond to his request for advance notice of questions. He also mentioned the petition for certiorari he filed on December 7, 2007. According to him, this should restrain respondent Committees from enforcing the show cause Letter "through the issuance of declaration of contempt" and arrest. In view of respondent Committees' issuance of the contempt Order, petitioner filed on February 1, 2008 aSupplemental Petition for Certiorari (With Urgent Application for TRO/Preliminary Injunction), seeking to restrain the implementation of the said contempt Order. On February 5, 2008, the Court issued a Status Quo Ante Order (a) enjoining respondent Committees from implementing their contempt Order, (b) requiring the parties to observe the status quo prevailing prior to the issuance of the assailed order, and (c) requiring respondent Committees to file their comment. Petitioner contends that respondent Committees' show cause Letter and contempt Order were issued with grave abuse of discretion amounting to lack or excess of jurisdiction. He stresses that his conversations with President Arroyo are "candid discussions meant to explore options in making policy decisions." According to him, these discussions "dwelt on the impact of the bribery scandal involving high government officials on the country's diplomatic relations and economic and military affairs and the possible loss of confidence of foreign investors and lenders in the Philippines." He also emphasizes that his claim of executive privilege is upon the order of the President and within the parameters laid down in Senate v. Ermita and United States v. Reynolds. Lastly, he argues that he is precluded from disclosing communications made to him in official confidence under Section 7 of Republic Act No. 6713, otherwise known as Code of Conduct and Ethical Standards for Public Officials and Employees, and Section 24 (e) of Rule 130 of the Rules of Court. Respondent Committees assert the contrary. They argue that (1) petitioner's testimony is material and pertinent in the investigation conducted in aid of legislation; (2) there is no valid justification for petitioner to claim executive privilege; (3) there is no abuse of their authority to order petitioner's arrest; and (4) petitioner has not come to court with clean hands. In the oral argument held last March 4, 2008, the following issues were ventilated: 1. What communications between the President and petitioner Neri are covered by the principle of 'executive privilege'? 1.a Did Executive Secretary Ermita correctly invoke the principle of executive privilege, by order of the President, to cover (i) conversations of the President in the exercise of her executive and policy decision-making and (ii) information, which might

impair our diplomatic as well as economic relations with the People's Republic of China? 1.b. Did petitioner Neri correctly invoke executive privilege to avoid testifying on his conversations with the President on the NBN contract on his assertions that the said conversations "dealt with delicate and sensitive national security and diplomatic matters relating to the impact of bribery scandal involving high government officials and the possible loss of confidence of foreign investors and lenders in the Philippines" x x x within the principles laid down in Senate v. Ermita (488 SCRA 1 [2006])? 1.c Will the claim of executive privilege in this case violate the following provisions of the Constitution: Sec. 28, Art. II (Full public disclosure of all transactions involving public interest) Sec. 7, Art. III (The right of the people to information on matters of public concern) Sec. 1, Art. XI (Public office is a public trust) Sec. 17, Art. VII (The President shall ensure that the laws be faithfully executed) and the due process clause and the principle of separation of powers? 2. What is the proper procedure to be followed in invoking executive privilege? 3. Did the Senate Committees gravely abuse their discretion in ordering the arrest of petitioner for non-compliance with the subpoena? After the oral argument, the parties were directed to manifest to the Court within twentyfour (24) hours if they are amenable to the Court's proposal of allowing petitioner to immediately resume his testimony before the Senate Committees to answer the other questions of the Senators without prejudice to the decision on the merits of this pending petition. It was understood that petitioner may invoke executive privilege in the course of the Senate Committees proceedings, and if the respondent Committees disagree thereto, the unanswered questions will be the subject of a supplemental pleading to be resolved along with the three (3) questions subject of the present petition. At the same time, respondent Committees were directed to submit several pertinent documents. The Senate did not agree with the proposal for the reasons stated in the Manifestation dated March 5, 2008. As to the required documents, the Senate and respondent Committees manifested that they would not be able to submit the latter's "Minutes of all meetings" and the "Minute Book" because it has never been the "historical and traditional legislative practice to keep them." They instead submitted the Transcript of Stenographic Notes of respondent Committees' joint public hearings. On March 17, 2008, the Office of the Solicitor General (OSG) filed a Motion for Leave to Intervene and to Admit Attached Memorandum, founded on the following arguments: (1) The communications between petitioner and the President are covered by the principle of "executive privilege." (2) Petitioner was not summoned by respondent Senate Committees in accordance with the law-making body's power to conduct inquiries in aid of legislation as laid down in Section 21, Article VI of the Constitution and Senate v. Ermita. (3) Respondent Senate Committees gravely abused its discretion for alleged noncompliance with theSubpoena dated November 13, 2007. The Court granted the OSG's motion the next day, March 18, 2008.

As the foregoing facts unfold, related events transpired. On March 6, 2008, President Arroyo issued Memorandum Circular No. 151, revoking Executive Order No. 464 and Memorandum Circular No. 108. She advised executive officials and employees to follow and abide by the Constitution, existing laws and jurisprudence, including, among others, the case of Senate v. Ermita, when they are invited to legislative inquiries in aid of legislation. At the core of this controversy are the two (2) crucial queries, to wit: First, are the communications elicited by the subject three (3) questions covered by executive privilege? And second, did respondent Committees commit grave abuse of discretion in issuing the contempt Order? We grant the petition. At the outset, a glimpse at the landmark case of Senate v. Ermita becomes imperative. Senate draws in bold strokes the distinction between the legislative and oversight powers of the Congress, as embodied under Sections 21 and 22, respectively, of Article VI of the Constitution, to wit: SECTION 21. The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in or affected by such inquiries shall be respected. SECTION 22. The heads of department may upon their own initiative, with the consent of the President, or upon the request of either House, or as the rules of each House shall provide, appear before and be heard by such House on any matter pertaining to their departments. Written questions shall be submitted to the President of the Senate or the Speaker of the House of Representatives at least three days before their scheduled appearance. Interpellations shall not be limited to written questions, but may cover matters related thereto. When the security of the state or the public interest so requires and the President so states in writing, the appearance shall be conducted in executive session. Senate cautions that while the above provisions are closely related and complementary to each other, they should not be considered as pertaining to the same power of Congress. Section 21 relates to the power to conduct inquiries in aid of legislation. Its aim is to elicit information that may be used for legislation. On the other hand, Section 22 pertains to the power to conduct a question hour, the objective of which is to obtain information in pursuit of Congress' oversight function. Simply stated, while both powers allow Congress or any of its committees to conduct inquiry, their objectives are different. This distinction gives birth to another distinction with regard to the use of compulsory process. Unlike in Section 21, Congress cannot compel the appearance of executive officials under Section 22. The Court's pronouncement in Senate v. Ermita is clear: When Congress merely seeks to be informed on how department heads are implementing the statutes which it has issued, its right to such information is not as imperative as that of the President to whom, as Chief Executive, such department heads

must give a report of their performance as a matter of duty. In such instances, Section 22, in keeping with the separation of powers, states that Congress may only request their appearance. Nonetheless, when the inquiry in which Congress requires their appearance is 'in aid of legislation' under Section 21, the appearance is mandatory for the same reasons stated in Arnault. In fine, the oversight function of Congress may be facilitated by compulsory process only to the extent that it is performed in pursuit of legislation. This is consistent with the intent discerned from the deliberations of the Constitutional Commission Ultimately, the power of Congress to compel the appearance of executive officials under section 21 and the lack of it under Section 22 find their basis in the principle of separation of powers. While the executive branch is a co-equal branch of the legislature, it cannot frustrate the power of Congress to legislate by refusing to comply with its demands for information. (Emphasis supplied.) The availability of the power of judicial review to resolve the issues raised in this case has also been settled inSenate v. Ermita, when it held: As evidenced by the American experience during the so-called "McCarthy era," however, the right of Congress to conduct inquiries in aid of legislation is, in theory, no less susceptible to abuse than executive or judicial power. It may thus be subjected to judicial review pursuant to the Court's certiorari powers under Section 1, Article VIII of the Constitution. Hence, this decision. I. The Communications Elicited by the Three (3) Questions are Covered by Executive Privilege

We start with the basic premises where the parties have conceded. The power of Congress to conduct inquiries in aid of legislation is broad. This is based on the proposition that a legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change. Inevitably, adjunct thereto is the compulsory process to enforce it. But, the power, broad as it is, has limitations. To be valid, it is imperative that it is done in accordance with the Senate or House duly published rules of procedure and that the rights of the persons appearing in or affected by such inquiries be respected. The power extends even to executive officials and the only way for them to be exempted is through a valid claim of executive privilege. This directs us to the consideration of the question -- is there a recognized claim of executive privilege despite the revocation of E.O. 464? A- There is a Recognized Revocation of E.O. 464 Claim of Executive Privilege Despite the

At this juncture, it must be stressed that the revocation of E.O. 464 does not in any way diminish our concept of executive privilege. This is because this concept has Constitutional underpinnings. Unlike the United States which has further accorded the concept with statutory status by enacting the Freedom of Information Act and theFederal Advisory Committee Act, the Philippines has retained its constitutional origination, occasionally

interpreted only by this Court in various cases. The most recent of these is the case of Senate v. Ermita where this Court declared unconstitutional substantial portions of E.O. 464. In this regard, it is worthy to note that Executive Ermita's Letter dated November 15, 2007 limits its bases for the claim of executive privilege to Senate v. Ermita,Almonte v. Vasquez, and Chavez v. PEA. There was never a mention of E.O. 464. While these cases, especially Senate v. Ermita, have comprehensively discussed the concept of executive privilege, we deem it imperative to explore it once more in view of the clamor for this Court to clearly define the communications covered by executive privilege. The Nixon and post-Watergate cases established the broad contours of the presidential communications privilege. In United States v. Nixon, the U.S. Court recognized a great public interest in preserving "the confidentiality of conversations that take place in the President's performance of his official duties." It thus considered presidential communications as "presumptively privileged." Apparently, the presumption is founded on the "President's generalized interest in confidentiality." The privilege is said to be necessary to guarantee the candor of presidential advisors and to provide "the President and those who assist him with freedom to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately." In In Re: Sealed Case, the U.S. Court of Appeals delved deeper. It ruled that there are two (2) kinds of executive privilege; one is the presidential communications privilege and, the other is the deliberative process privilege. The former pertains to "communications, documents or other materials that reflect presidential decision-making and deliberations and that the President believes should remain confidential." The latter includes 'advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated." Accordingly, they are characterized by marked distinctions. Presidential communications privilege applies todecision-making of the President while, the deliberative process privilege, to decision-making of executive officials. The first is rooted in the constitutional principle of separation of power and the President's unique constitutional role; the second on common law privilege. Unlike the deliberative process privilege, thepresidential communications privilege applies to documents in their entirety, and covers final and post-decisional materials as well as pre-deliberative ones31 As a consequence, congressional or judicial negation of the presidential communications privilege is always subject to greater scrutiny than denial of thedeliberative process privilege. Turning on who are the officials covered by the presidential communications privilege, In Re: Sealed Caseconfines the privilege only to White House Staff that has "operational proximity" to direct presidential decision-making. Thus, the privilege is meant to encompass only those functions that form the core of presidential authority, involving what the court characterized as "quintessential and non-delegable Presidential power," such as commander-in-chief power, appointment and removal power, the power to grant pardons and reprieves, the sole-authority to receive ambassadors and other public officers, the power to negotiate treaties, etc.

The situation in Judicial Watch, Inc. v. Department of Justice tested the In Re: Sealed Case principles. There, while the presidential decision involved is the exercise of the President's pardon power, a non-delegable, core-presidential function, the Deputy Attorney General and the Pardon Attorney were deemed to be too remote from the President and his senior White House advisors to be protected. The Court conceded that functionally those officials were performing a task directly related to the President's pardon power, but concluded that an organizational test was more appropriate for confining the potentially broad sweep that would result from the In Re: Sealed Case's functional test. The majority concluded that, the lesser protections of the deliberative process privilege would suffice. That privilege was, however, found insufficient to justify the confidentiality of the 4,341 withheld documents. But more specific classifications of communications covered by executive privilege are made in older cases. Courts ruled early that the Executive has a right to withhold documents that might reveal military or state secrets, identity of government informers in some circumstances,, and information related to pending investigations. An area where the privilege is highly revered is in foreign relations. In United States v. Curtiss-Wright Export Corp. the U.S. Court, citing President George Washington, pronounced: The nature of foreign negotiations requires caution, and their success must often depend on secrecy, and even when brought to a conclusion, a full disclosure of all the measures, demands, or eventual concessions which may have been proposed or contemplated would be extremely impolitic, for this might have a pernicious influence on future negotiations or produce immediate inconveniences, perhaps danger and mischief, in relation to other powers. The necessity of such caution and secrecy was one cogent reason for vesting the power of making treaties in the President, with the advice and consent of the Senate, the principle on which the body was formed confining it to a small number of members. To admit, then, a right in the House of Representatives to demand and to have as a matter of course all the papers respecting a negotiation with a foreign power would be to establish a dangerous precedent. Majority of the above jurisprudence have found their way in our jurisdiction. In Chavez v. PCGG, this Court held that there is a "governmental privilege against public disclosure with respect to state secrets regarding military, diplomatic and other security matters." In Chavez v. PEA, there is also a recognition of the confidentiality of Presidential conversations, correspondences, and discussions in closed-door Cabinet meetings. In Senate v. Ermita, the concept of presidential communications privilege is fully discussed. As may be gleaned from the above discussion, the claim of executive privilege is highly recognized in cases where the subject of inquiry relates to a power textually committed by the Constitution to the President, such as the area of military and foreign relations. Under our Constitution, the President is the repository of the commander-inchief, appointing, pardoning, and diplomatic powers. Consistent with the doctrine of separation of powers, the information relating to these powers may enjoy greater confidentiality than others. The above cases, especially, Nixon, In Re Sealed Case and Judicial Watch, somehow provide the elements ofpresidential communications privilege, to wit: 1) The protected communication must relate to a "quintessential and non-delegable presidential power."

2) The communication must be authored or "solicited and received" by a close advisor of the President or the President himself. The judicial test is that an advisor must be in "operational proximity" with the President. 3) The presidential communications privilege remains a qualified privilege that may be overcome by a showing of adequate need, such that the information sought "likely contains important evidence" and by the unavailability of the information elsewhere by an appropriate investigating authority. In the case at bar, Executive Secretary Ermita premised his claim of executive privilege on the ground that the communications elicited by the three (3) questions "fall under conversation and correspondence between the President and public officials" necessary in "her executive and policy decision-making process" and, that "the information sought to be disclosed might impair our diplomatic as well as economic relations with the People's Republic of China." Simply put, the bases are presidential communications privilege and executive privilege on matters relating to diplomacy or foreign relations. Using the above elements, we are convinced that, indeed, the communications elicited by the three (3) questions are covered by the presidential communications privilege. First, the communications relate to a "quintessential and non-delegable power" of the President, i.e. the power to enter into an executive agreement with other countries. This authority of the President to enter into executive agreements without the concurrence of the Legislature has traditionally been recognized in Philippine jurisprudence. Second, the communications are "received" by a close advisor of the President. Under the "operational proximity" test, petitioner can be considered a close advisor, being a member of President Arroyo's cabinet. And third, there is no adequate showing of a compelling need that would justify the limitation of the privilege and of the unavailability of the information elsewhere by an appropriate investigating authority. The third element deserves a lengthy discussion. United States v. Nixon held that a claim of executive privilege is subject to balancing against other interest. In other words, confidentiality in executive privilege is not absolutely protected by the Constitution. The U.S. Court held: [N]either the doctrine of separation of powers, nor the need for confidentiality of highlevel communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances. The foregoing is consistent with the earlier case of Nixon v. Sirica, where it was held that presidential communications are presumptively privileged and that the presumption can be overcome only by mere showing of public need by the branch seeking access to conversations. The courts are enjoined to resolve the competing interests of the political branches of the government "in the manner that preserves the essential functions of each Branch." Here, the record is bereft of any categorical explanation from respondent Committees to show a compelling or citical need for the answers to the three (3) questions in the enactment of a law. Instead, the questions veer more towards the exercise of the legislative oversight function under Section 22 of Article VI rather than Section 21 of the same Article. Senate v. Ermita ruled that the "the oversight function of Congress may be facilitated by compulsory process only to the extent that it is performed in pursuit of legislation." It is conceded that it is difficult to draw the line between an inquiry in aid of

legislation and an inquiry in the exercise of oversight function of Congress. In this regard, much will depend on the content of the questions and the manner the inquiry is conducted. Respondent Committees argue that a claim of executive privilege does not guard against a possible disclosure of a crime or wrongdoing. We see no dispute on this. It is settled in United States v. Nixon that "demonstrated, specific need for evidence in pending criminal trial" outweighs the President's "generalized interest in confidentiality." However, the present case's distinction with the Nixon case is very evident. In Nixon, there is a pending criminal proceeding where the information is requested and it is the demands of due process of law and the fair administration of criminal justice that the information be disclosed. This is the reason why the U.S. Court was quick to "limit the scope of its decision." It stressed that it is "not concerned here with the balance between the President's generalized interest in confidentiality x x x and congressional demands for information." Unlike in Nixon, the information here is elicited, not in a criminal proceeding, but in a legislative inquiry. In this regard, Senate v. Ermita stressed that the validity of the claim of executive privilege depends not only on the ground invoked but, also, on the procedural setting or the context in which the claim is made. Furthermore, in Nixon, the President did not interpose any claim of need to protect military, diplomatic or sensitive national security secrets. In the present case, Executive Secretary Ermita categorically claims executive privilege on the grounds of presidential communications privilege in relation to her executive and policy decisionmaking process and diplomatic secrets. The respondent Committees should cautiously tread into the investigation of matters which may present a conflict of interest that may provide a ground to inhibit the Senators participating in the inquiry if later on an impeachment proceeding is initiated on the same subject matter of the present Senate inquiry. Pertinently, in Senate Select Committee on Presidential Campaign Activities v. Nixon, it was held that since an impeachment proceeding had been initiated by a House Committee, the Senate Select Committee's immediate oversight need for five presidential tapes should give way to the House Judiciary Committee which has the constitutional authority to inquire into presidential impeachment. The Court expounded on this issue in this wise: It is true, of course, that the Executive cannot, any more than the other branches of government, invoke a general confidentiality privilege to shield its officials and employees from investigations by the proper governmental institutions into possible criminal wrongdoing. The Congress learned this as to its own privileges in Gravel v. United States, as did the judicial branch, in a sense, in Clark v. United States, and the executive branch itself in Nixon v. Sirica. But under Nixon v. Sirica, the showing required to overcome the presumption favoring confidentiality turned, not on the nature of the presidential conduct that the subpoenaed material might reveal, but, instead, on the nature and appropriateness of the function in the performance of which the material was sought, and the degree to which the material was necessary to its fulfillment. Here also our task requires and our decision implies no judgment whatever concerning possible presidential involvement in culpable activity. On the contrary, we think the sufficiency of the Committee's showing must depend solely on whether the subpoenaed evidence is demonstrably critical to the responsible fulfillment of the Committee's functions. In its initial briefs here, the Committee argued that it has shown exactly this. It contended that resolution, on the basis of the subpoenaed tapes, of the conflicts in the testimony before it 'would aid in a determination whether legislative involvement in political campaigns is necessary' and 'could help engender the public support needed for basic reforms in our electoral system.' Moreover, Congress has, according to the Committee, power to oversee the operations of the executive branch, to investigate instances of

possible corruption and malfeasance in office, and to expose the results of its investigations to public view. The Committee says that with respect to Watergate-related matters, this power has been delegated to it by the Senate, and that to exercise its power responsibly, it must have access to the subpoenaed tapes. We turn first to the latter contention. In the circumstances of this case, we need neither deny that the Congress may have, quite apart from its legislative responsibilities, a general oversight power, nor explore what the lawful reach of that power might be under the Committee's constituent resolution. Since passage of that resolution, the House Committee on the Judiciary has begun an inquiry into presidential impeachment. The investigative authority of the Judiciary Committee with respect to presidential conduct has an express constitutional source. x x x We have been shown no evidence indicating that Congress itself attaches any particular value to this interest. In these circumstances, we think the need for the tapes premised solely on an asserted power to investigate and inform cannot justify enforcement of the Committee's subpoena. The sufficiency of the Committee's showing of need has come to depend, therefore, entirely on whether the subpoenaed materials are critical to the performance of its legislative functions. There is a clear difference between Congress' legislative tasks and the responsibility of a grand jury, or any institution engaged in like functions. While factfinding by a legislative committee is undeniably a part of its task, legislative judgments normally depend more on the predicted consequences of proposed legislative actions and their political acceptability, than on precise reconstruction of past events; Congress frequently legislates on the basis of conflicting information provided in its hearings. In contrast, the responsibility of the grand jury turns entirely on its ability to determine whether there is probable cause to believe that certain named individuals did or did not commit specific crimes. If, for example, as in Nixon v. Sirica, one of those crimes is perjury concerning the content of certain conversations, the grand jury's need for the most precise evidence, the exact text of oral statements recorded in their original form, is undeniable.We see no comparable need in the legislative process, at least not in the circumstances of this case. Indeed, whatever force there might once have been in the Committee's argument that the subpoenaed materials are necessary to its legislative judgments has been substantially undermined by subsequent events. (Emphasis supplied) Respondent Committees further contend that the grant of petitioner's claim of executive privilege violates the constitutional provisions on the right of the people to information on matters of public concern. We might have agreed with such contention if petitioner did not appear before them at all. But petitioner made himself available to them during the September 26 hearing, where he was questioned for eleven (11) hours. Not only that, he expressly manifested his willingness to answer more questions from the Senators, with the exception only of those covered by his claim of executive privilege. The right to public information, like any other right, is subject to limitation. Section 7 of Article III provides: The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law. The provision itself expressly provides the limitation, i.e. as may be provided by law. Some of these laws are Section 7 of Republic Act (R.A.) No. 6713, Article 229 of the Revised Penal Code, Section 3 (k) of R.A. No. 3019, and Section 24(e) of Rule 130 of the Rules of Court. These are in addition to what our body of jurisprudence classifies as confidential 55 and what our Constitution considers as belonging to the larger concept of executive privilege.

Clearly, there is a recognized public interest in the confidentiality of certain information. We find the information subject of this case belonging to such kind. More than anything else, though, the right of Congress or any of its Committees to obtain information in aid of legislation cannot be equated with the people's right to public information. The former cannot claim that every legislative inquiry is an exercise of the people's right to information. The distinction between such rights is laid down in Senate v. Ermita: There are, it bears noting, clear distinctions between the right of Congress to information which underlies the power of inquiry and the right of people to information on matters of public concern. For one, the demand of a citizen for the production of documents pursuant to his right to information does not have the same obligatory force as a subpoena duces tecum issued by Congress. Neither does the right to information grant a citizen the power to exact testimony from government officials. These powers belong only to Congress, not to an individual citizen. Thus, while Congress is composed of representatives elected by the people, it does not follow, except in a highly qualified sense, that in every exercise of its power of inquiry, the people are exercising their right to information. The members of respondent Committees should not invoke as justification in their exercise of power a right properly belonging to the people in general. This is because when they discharge their power, they do so as public officials and members of Congress. Be that as it may, the right to information must be balanced with and should give way, in appropriate cases, to constitutional precepts particularly those pertaining to delicate interplay of executive-legislative powers and privileges which is the subject of careful review by numerous decided cases. B- The Claim of Executive Privilege is Properly Invoked We now proceed to the issue -- whether the claim is properly invoked by the President. Jurisprudence teaches that for the claim to be properly invoked, there must be a formal claim of privilege, lodged by the head of the department which has control over the matter." A formal and proper claim of executive privilege requires a "precise and certain reason" for preserving their confidentiality. The Letter dated November 17, 2007 of Executive Secretary Ermita satisfies the requirement. It serves as the formal claim of privilege. There, he expressly states that "this Office is constrained to invoke the settled doctrine of executive privilege as refined in Senate v. Ermita, and has advised Secretary Neri accordingly." Obviously, he is referring to the Office of the President. That is more than enough compliance. InSenate v. Ermita, a less categorical letter was even adjudged to be sufficient. With regard to the existence of "precise and certain reason," we find the grounds relied upon by Executive Secretary Ermita specific enough so as not "to leave respondent Committees in the dark on how the requested information could be classified as privileged." The case of Senate v. Ermita only requires that an allegation be made "whether the information demanded involves military or diplomatic secrets, closed-door Cabinet meetings, etc." The particular ground must only be specified. The enumeration is not even intended to be comprehensive." The following statement of grounds satisfies the requirement:

The context in which executive privilege is being invoked is that the information sought to be disclosed might impair our diplomatic as well as economic relations with the People's Republic of China. Given the confidential nature in which these information were conveyed to the President, he cannot provide the Committee any further details of these conversations, without disclosing the very thing the privilege is designed to protect. At any rate, as held further in Senate v. Ermita, the Congress must not require the executive to state the reasons for the claim with such particularity as to compel disclosure of the information which the privilege is meant to protect. This is a matter of respect to a coordinate and co-equal department.

Third, a reading of the transcript of respondent Committees' January 30, 2008 proceeding reveals that only a minority of the members of the Senate Blue Ribbon Committee was present during the deliberation. Section 18 of the Rules of Procedure Governing Inquiries in Aid of Legislation provides that: "The Committee, by a vote of majority of all its members, may punish for contempt any witness before it who disobeys any order of the Committee or refuses to be sworn or to testify or to answer proper questions by the Committee or any of its members." Clearly, the needed vote is a majority of all the members of the Committee. Apparently, members who did not actually participate in the deliberation were made to sign the contempt Order. Thus, there is a cloud of doubt as to the validity of the contempt Order dated January 30, 2008. We quote the pertinent portion of the transcript, thus: THE CHAIRMAN (SEN. CAYETANO, A). For clarification. x x x The Chair will call either a caucus or will ask the Committee on Rules if there is a problem. Meaning, if we do not have the sufficient numbers. But if we have a sufficient number, we will just hold a caucus to be able to implement that right away becauseAgain, our Rules provide that any one held in contempt and ordered arrested, need the concurrence of a majority of all members of the said committee and we have three committees conducting this. So thank you very much to the members SEN. PIMENTEL. Mr. Chairman. THE CHAIRMAN (SEN. CAYETANO,A). May I recognize the Minority Leader and give him the floor, Senator Pimentel. SEN. PIMENTEL. Mr. Chairman, there is no problem, I think, with consulting the other committees. But I am of the opinion that the Blue Ribbon Committee is the lead committee, and therefore, it should have preference in enforcing its own decisions. Meaning to say, it is not something that is subject to consultation with other committees. I am not sure that is the right interpretation. I think that once we decide here, we enforce what we decide, because otherwise, before we know it, our determination is watered down by delay and, you know, the so-called "consultation" that inevitably will have to take place if we follow the premise that has been explained. So my suggestion, Mr. Chairman, is the Blue Ribbon Committee should not forget it's the lead committee here, and therefore, the will of the lead committee prevails over all the other, you, know reservations that other committees might have who are only secondary or even tertiary committees, Mr. Chairman. THE CHAIRMAN (SEN. CAYETANO, A.) Thank you very much to the Minority Leader. And I agree with the wisdom of his statements. I was merely mentioning that under Section 6 of the Rules of the Committee and under Section 6, "The Committee by a vote of a majority of all its members may punish for contempt any witness before it who disobeys any order of the Committee." So the Blue Ribbon Committee is more than willing to take that responsibility. But we only have six members here today, I am the seventh as chair and so we have not met that number. So I am merely stating that, sir, that when we will prepare the documentation, if a majority of all members sign and I am following the Sabio v. Gordon rule wherein I do believe, if I am not mistaken, Chairman Gordon prepared the

II.

Respondent Committees Committed Grave Abuse of Discretion in Issuing the Contempt Order

Grave abuse of discretion means "such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction, or, in other words where the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility and it must be so patent and gross as to amount to an evasion of positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law." It must be reiterated that when respondent Committees issued the show cause Letter dated November 22, 2007, petitioner replied immediately, manifesting that it was not his intention to ignore the Senate hearing and that he thought the only remaining questions were the three (3) questions he claimed to be covered by executive privilege. In addition thereto, he submitted Atty. Bautista's letter, stating that his non-appearance was upon the order of the President and specifying the reasons why his conversations with President Arroyo are covered by executive privilege. Both correspondences include an expression of his willingness to testify again, provided he "be furnished in advance" copies of the questions. Without responding to his request for advance list of questions, respondent Committees issued the Order dated January 30, 2008, citing him in contempt of respondent Committees and ordering his arrest and detention at the Office of the Senate Sergeant-AtArms until such time that he would appear and give his testimony. Thereupon, petitioner filed a motion for reconsideration, informing respondent Committees that he had filed the present petition for certiorari. Respondent Committees committed grave abuse of discretion in issuing the contempt Order in view of five (5) reasons. First, there being a legitimate claim of executive privilege, the issuance of the contempt Order suffers from constitutional infirmity. Second, respondent Committees did not comply with the requirement laid down in Senate v. Ermita that the invitations should contain the "possible needed statute which prompted the need for the inquiry," along with "the usual indication of the subject of inquiry and the questions relative to and in furtherance thereof." Compliance with this requirement is imperative, both under Sections 21 and 22 of Article VI of the Constitution. This must be so to ensure that the rights of both persons appearing in or affected by such inquiry are respected as mandated by said Section 21 and by virtue of the express language of Section 22. Unfortunately, despite petitioner's repeated demands, respondent Committees did not send him an advance list of questions.

documentation and then either in caucus or in session asked the other members to sign. And once the signatures are obtained, solely for the purpose that Secretary Neri or Mr. Lozada will not be able to legally question our subpoena as being insufficient in accordance with law. SEN. PIMENTEL. Mr. Chairman, the caution that the chair is suggesting is very welltaken. But I'd like to advert to the fact that the quorum of the committee is only two as far as I remember. Any two-member senators attending a Senate committee hearing provide that quorum, and therefore there is more than a quorum demanded by our Rules as far as we are concerned now, and acting as Blue Ribbon Committee, as Senator Enrile pointed out. In any event, the signatures that will follow by the additional members will only tend to strengthen the determination of this Committee to put its foot forward put down on what is happening in this country, Mr. Chairman, because it really looks terrible if the primary Committee of the Senate, which is the Blue Ribbon Committee, cannot even sanction people who openly defy, you know, the summons of this Committee. I know that the Chair is going through an agonizing moment here. I know that. But nonetheless, I think we have to uphold, you know, the institution that we are representing because the alternative will be a disaster for all of us, Mr. Chairman. So having said that, I'd like to reiterate my point. THE CHAIRMAN (SEN. CAYETANO, A.) First of all, I agree 100 percent with the intentions of the Minority Leader. But let me very respectfully disagree with the legal requirements. Because, yes, we can have a hearing if we are only two but both under Section 18 of the Rules of the Senate and under Section 6 of the Rules of the Blue Ribbon Committee, there is a need for a majority of all members if it is a case of contempt and arrest. So, I am simply trying to avoid the court rebuking the Committee, which will instead of strengthening will weaken us. But I do agree, Mr. Minority Leader, that we should push for this and show the executive branch that the well-decided the issue has been decided upon the Sabio versus Gordon case. And it's very clear that we are all allowed to call witnesses. And if they refure or they disobey not only can we cite them in contempt and have them arrested. x x x Fourth, we find merit in the argument of the OSG that respondent Committees likewise violated Section 21 of Article VI of the Constitution, requiring that the inquiry be in accordance with the "duly published rules of procedure." We quote the OSG's explanation: The phrase 'duly published rules of procedure' requires the Senate of every Congress to publish its rules of procedure governing inquiries in aid of legislation because every Senate is distinct from the one before it or after it. Since Senatorial elections are held every three (3) years for one-half of the Senate's membership, the composition of the Senate also changes by the end of each term. Each Senate may thus enact a different set of rules as it may deem fit. Not having published its Rules of Procedure, the subject hearings in aid of legislation conducted by the 14 th Senate, are therefore, procedurally infirm. And fifth, respondent Committees' issuance of the contempt Order is arbitrary and precipitate. It must be pointed out that respondent Committees did not first pass upon the claim of executive privilege and inform petitioner of their ruling. Instead, they curtly dismissed his explanation as "unsatisfactory" and simultaneously issued the Order citing him in contempt and ordering his immediate arrest and detention. A fact worth highlighting is that petitioner is not an unwilling witness. He manifested several times his readiness to testify before respondent Committees. He refused to answer the three (3) questions because he was ordered by the President to claim executive privilege. It behooves respondent Committees to first rule on the claim of executive privilege and inform petitioner of their finding thereon, instead of peremptorily dismissing his explanation as

"unsatisfactory." Undoubtedly, respondent Committees' actions constitute grave abuse of discretion for being arbitrary and for denying petitioner due process of law. The same quality afflicted their conduct when they (a) disregarded petitioner's motion for reconsideration alleging that he had filed the present petition before this Court and (b) ignored petitioner's repeated request for an advance list of questions, if there be any aside from the three (3) questions as to which he claimed to be covered by executive privilege. Even the courts are repeatedly advised to exercise the power of contempt judiciously and sparingly with utmost self-restraint with the end in view of utilizing the same for correction and preservation of the dignity of the court, not for retaliation or vindication.63 Respondent Committees should have exercised the same restraint, after all petitioner is not even an ordinary witness. He holds a high position in a co-equal branch of government. In this regard, it is important to mention that many incidents of judicial review could have been avoided if powers are discharged with circumspection and deference. Concomitant with the doctrine of separation of powers is the mandate to observe respect to a co-equal branch of the government. One last word. The Court was accused of attempting to abandon its constitutional duty when it required the parties to consider a proposal that would lead to a possible compromise. The accusation is far from the truth. The Court did so, only to test a tool that other jurisdictions find to be effective in settling similar cases, to avoid a piecemeal consideration of the questions for review and to avert a constitutional crisis between the executive and legislative branches of government. In United States v. American Tel. & Tel Co., the court refrained from deciding the case because of its desire to avoid a resolution that might disturb the balance of power between the two branches and inaccurately reflect their true needs. Instead, it remanded the record to the District Court for further proceedings during which the parties are required to negotiate a settlement. In the subsequent case of United States v. American Tel. &Tel Co., it was held that "much of this spirit of compromise is reflected in the generality of language found in the Constitution." It proceeded to state: Under this view, the coordinate branches do not exist relationship to one another when a conflict in authority should take cognizance of an implicit constitutional accommodation through a realistic evaluation of the needs the particular fact situation. in an exclusively adversary arises. Rather each branch mandate to seek optimal of the conflicting branches in

It thereafter concluded that: "The Separation of Powers often impairs efficiency, in terms of dispatch and the immediate functioning of government. It is the long-term staying power of government that is enhanced by the mutual accommodation required by the separation of powers." In rendering this decision, the Court emphasizes once more that the basic principles of constitutional law cannot be subordinated to the needs of a particular situation. As magistrates, our mandate is to rule objectively and dispassionately, always mindful of Mr. Justice Holmes' warning on the dangers inherent in cases of this nature, thus:

"some accident of immediate and overwhelming interestappeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend." In this present crusade to "search for truth," we should turn to the fundamental constitutional principles which underlie our tripartite system of government, where the Legislature enacts the law, the Judiciary interprets it and the Executive implements it. They are considered separate, co-equal, coordinate and supreme within their respective spheres but, imbued with a system of checks and balances to prevent unwarranted exercise of power. The Court's mandate is to preserve these constitutional principles at all times to keep the political branches of government within constitutional bounds in the exercise of their respective powers and prerogatives, even if it be in the search for truth. This is the only way we can preserve the stability of our democratic institutions and uphold the Rule of Law. WHEREFORE, the petition is hereby GRANTED. The subject Order dated January 30, 2008, citing petitioner Romulo L. Neri in contempt of the Senate Committees and directing his arrest and detention, is hereby nullified. SO ORDERED. G.R. No. 189546 September 21, 2010 CENTER FOR PEOPLE EMPOWERMENT INGOVERNANCE vs. COMMISSION ON ELECTIONS DECISION ABAD, J.: This case concerns the duty of the Commission on Elections (COMELEC) to disclose the source code for the Automated Election System (AES) technologies it used in the 2010 national and local elections. On May 26, 2009 petitioner Center for People Empowerment in Governance (CenPEG), a non-government organization, wrote respondent COMELEC, requesting a copy of the source code of the Precinct Count Optical Scan (PCOS) programs, the Board of Canvassers Consolidation/Canvassing System (BOC CCS) programs for the municipal, provincial, national, and congressional canvass, the COMELEC server programs, and the source code of the in-house COMELEC programs called the Data Capturing System (DCS) utilities. CenPEG invoked the following pertinent portion of Section 12 of Republic Act (R.A.) 9369, which provides: xxxx Once an AES technology is selected for implementation, the Commission shall promptly make the source code of that technology available and open to any interested political party or groups which may conduct their own review thereof. Section 2(12) of R.A. 9369 describes the source code as the human readable instructions that define what the computer equipment will do. This has been explained in an article:

Source code is the human readable representation of the instructions that control the operation of a computer. Computers are composed of hardware (the physical devices themselves) and software (which controls the operation of the hardware). The software instructs the computer how to operate; without software, the computer is useless. Source code is the human readable form in which software is written by computer programmers. Source code is usually written in a programming language that is arcane and incomprehensible to non-specialists but, to a computer programmer, the source code is the master blueprint that reveals and determines how the machine will behave. Source code could be compared to a recipe: just as a cook follows the instructions in a recipe step-by-step, so a computer executes the sequence of instructions found in the software source code. This is a reasonable analogy, but it is also imperfect. While a good cook will use her discretion and common sense in following a recipe, a computer follows the instructions in the source code in a mechanical and unfailingly literal way; thus, while errors in a recipe might be noticed and corrected by the cook, errors in source code can be disastrous, because the code is executed by the computer exactly as written, whether that was what the programmer intended or not x x x. The source code in voting machines is in some ways analogous to the procedures provided to election workers. Procedures are instructions that are provided to people; for instance, the procedures provided to poll workers list a sequence of steps that poll workers should follow to open the polls on election morning. Source code contains instructions, not for people, but for the computers running the election; for instance, the source code for a voting machine determines the steps the machine will take when the polls are opened on election morning. (Underscoring supplied) On June 24, 2009 the COMELEC granted the request for the source code of the PCOS and the CCS, but denied that for the DCS, since the DCS was a system used in processing the Lists of Voters which is not part of the voting, counting and canvassing systems contemplated by R.A. 9369. According to COMELEC, if the source code for the DCS were to be divulged, unscrupulous individuals might change the program and pass off an illicit one that could benefit certain candidates or parties. Still, the COMELEC apparently did not release even the kinds of source code that it said it was approving for release. Consequently, on July 13, 2009, CenPEG once more asked COMELEC for the source code of the PCOS, together with other documents, programs, and diagrams related to the AES. CenPEG sent follow-up letters on July 17 and 20 and on August 24, 2009. On August 26, 2009 COMELEC replied that the source code CenPEG wanted did not yet exist for the reasons: 1) that it had not yet received the baseline source code of the provider, Smartmatic, since payment to it had been withheld as a result of a pending suit; 2) its customization of the baseline source code was targeted for completion in November 2009 yet; 3) under Section 11 of R.A. 9369, the customized source code still had to be reviewed by an established international certification entity, which review was expected to be completed by the end of February 2010; and 4) only then would the AES be made available for review under a controlled environment. Rejecting COMELECs excuse, on October 5, 2009 CenPEG filed the present petition for mandamus, seeking to compel COMELEC to immediately make its source codes available to CenPEG and other interested parties.

COMELEC claimed in its comment that CenPEG did not have a clear, certain, and welldefined right that was enforceable bymandamus because COMELECs duty to make the source code available presupposed that it already had the same. COMELEC restated the explanation it gave in its August 26, 2009 letter to CenPEG. In its manifestation and omnibus motion, CenPEG did not believe that the source code was still unavailable considering that COMELEC had already awarded to an international certification entity the review of the same and that COMELEC had already been field testing its PCOS and CCS machines. On February 10, 2010 COMELEC filed a manifestation, stating that it had already deposited on February 9, 2010 the source code to be used in the May 10, 2010 elections with the Bangko Sentral ng Pilipinas. Required to comment on this, CenPEG said on February 22, 2010 that the manifestation did not constitute compliance with Section 12 of R.A. 9369 but only with Section 11 of R.A. 8436. In its earlier comment, COMELEC claimed, reiterating what it said in its August 26, 2009 letter to CenPEG, that it would make the source code available for review by the end of February 2010 under a controlled environment. Apparently, this review had not taken place and was overtaken by the May 10, 2010 elections. On June 21, 2010 CenPEG filed a manifestation and omnibus motion, reiterating its prayer for the issuance of a writ ofmandamus in this case notwithstanding the fact that the elections for which the subject source code was to be used had already been held. It claimed that the source code remained important and relevant not only for compliance with the law, and the purpose thereof, but especially in the backdrop of numerous admissions of errors and claims of fraud. The Court finds the petition and this last manifestation meritorious. The pertinent portion of Section 12 of R.A. 9369 is clear in that once an AES technology is selected for implementation, the Commission shall promptly make the source code of that technology available and open to any interested political party or groups which may conduct their own review thereof. The COMELEC has offered no reason not to comply with this requirement of the law. Indeed, its only excuse for not disclosing the source code was that it was not yet available when CenPEG asked for it and, subsequently, that the review had to be done, apparently for security reason, under a controlled environment. The elections had passed and that reason is already stale. WHEREFORE, the Court GRANTS the petition for mandamus and DIRECTS the COMELEC to make the source codes for the AES technologies it selected for implementation pursuant to R.A. 9369 immediately available to CenPEG and all other interested political parties or groups for independent review. SO ORDERED. G.R. No. L-40779 November 28, 1975 EPICHARIS T. GARCIA vs. THE FACULTY ADMISSION COMMITTEE, LOYOLA SCHOOL OF THEOLOGY FERNANDO, J.:

The specific issue posed by this mandamus proceeding to compel the Faculty Admission Committee of the Loyola School of Theology, represented by Father Antonio B. Lambino, to allow petitioner Epicharis T. Garcia, to continue studying therein is whether she is deemed possessed of such a right that has to be respected. That is denied not only on general principle, but also in view of the character of the particular educational institution involved. It is a seminary. It would appear therefore that at most she can lay claim to a privilege, no duty being cast on respondent school. Moreover, as a reinforcement to such an obvious conclusion, there is the autonomy recognized by the Constitution in this explicit language: "All institutions of higher learning shall enjoy academic freedom." The petition must therefore fail. Petitioner alleged: "3. That in summer, 1975, Respondent admitted Petitioner for studies leading to an M.A. in Theology; 4. That on May 30, 1975, when Petitioner wanted to enroll for the same course for the first semester, 1975-76, Respondent told her about the letter he had written her, informing her of the faculty's decision to bar her from re-admission in their school; 5. That the reasons stated in said letter, dated May 19, 1975 ... do not constitute valid legal ground for expulsion, for they neither present any violation of any of the school's regulation, nor are they indicative of gross misconduct; 6. That from June 25, 1975, Petitioner spent much time and effort in said school for the purpose of arriving at a compromise that would not duly inconvenience the professors and still allow her to enjoy the benefits of the kind of instruction that the school has to offer, but all in vain; she was in fact told by Fr. Pedro Sevilla, the school's Director, that the compromises she was offering were unacceptable, their decision was final, and that it were better for her to seek for admission at the UST Graduate School; 7 Petitioner then subsequently made inquiries in said school, as to the possibilities for her pursuing her graduate studies for an for M.A. in Theology, and she was informed that she could enroll at the UST Ecclesiastical Faculties, but that she would have to fulfill their requirements for Baccalaureate in Philosophy in order to have her degree later in Theology which would entail about four to five years more of studies whereas in the Loyola School of Studies to which she is being unlawfully refused readmission, it would entail only about two years more; 8. That Petitioner, considering that time was of the essence in her case, and not wanting to be deprived of an opportunity for gaining knowledge necessary for her life's work, enrolled as a special student at said UST Ecclesiastical Faculties, even if she would not thereby be credited with any academic units for the subject she would take; 9. That Petitioner could have recourse neither to the President of her school, Fr. Jose Cruz, he being with the First Couple's entourage now in Red China, nor with the Secretary of Education, since this is his busiest time of the year, and June 11, 1975 is the last day for registration; ... " She prayed for a writ of mandamus for the purpose of allowing her to enroll in the current semester. She made it more specific in a pleading she called Amended Petition so that she would be allowed cross-enrollment even beyond the June 11, 1975 deadline for registration and that whatever units may be accredited to her in the UST Ecclesiastical Faculties be likewise recognized by respondent. Her petition included the letter of respondent Father Lambino which started on a happy note that she was given the grade of B+ and B in two theology subjects, but ended in a manner far from satisfactory for her, as shown by this portion thereof: "Now, you will have to forgive me for going into a matter which is not too pleasant. The faculty had a meeting after the summer session and several members are strongly opposed to having you back with us at Loyola School of Theology. In the spirit of honesty may I report this to you as their reason: They felt that your frequent questions and difficulties were not always pertinent and had the effect of slowing down the progress of the class; they felt you could have tried to give the presentation a chance and exerted more effort to understand the point made before immediately thinking of difficulties and problems. The way things are, I would say that the advisability of your completing a program (with all the

course work and thesis writing) with us is very questionable. That you have the requisite intellectual ability is not to be doubted. But it would seem to be in your best interests to work with a faculty that is more compatible with your orientation. I regret to have to make this report, but I am only thinking of your welfare." This Court, in a resolution of June 23, 1975, required comment on the part of respondent Faculty Admission Committee, Loyola School of Theology. As submitted on behalf of Father Lambino, it set forth the following: "Respondent is the Chairman of the Faculty Admission Committee of the Loyola School of Theology, which is a religious seminary situated in Loyola Heights, Quezon City; In collaboration with the Ateneo de Manila University, the Loyola School of Theology allows some lay students to attend its classes and/or take courses in said Loyola School of Theology but the degree, if any, to be obtained from such courses is granted by the Ateneo de Manila University and not by the Loyola School of Theology; For the reason above given, lay students admitted to the Loyola School of Theology to take up courses for credit therein have to be officially admitted by the Assistant Dean of the Graduate School of the Ateneo de Manila University in order for them to be considered as admitted to a degree program; Petitioner in the summer of 1975 was admitted by respondent to take some courses for credit but said admission was not an admission to a degree program because only the Assistant Dean of the Ateneo de Manila Graduate School can make such admission; That in the case of petitioner, no acceptance by the Assistant Dean of the Ateneo de Manila Graduate School was given, so that she was not accepted to a degree program but was merely allowed to take some courses for credit during the summer of 1975; Furthermore, petitioner was not charged a single centavo by the Loyola School of Theology and/or the Ateneo de Manila University in connection with the courses she took in the summer of 1975, as she was allowed to take it free of charge; That respondent Fr. Antonio B. Lambino, S.J., and/or the Loyola School of Theology thru its Faculty Admission Committee, necessarily has discretion as to whether to admit and/or to continue admitting in the said school any particular student, considering not only academic or intellectual standards but also other considerations such as personality traits and character orientation in relation with other students as well as considering the nature of Loyola School of Theology as a seminary. The Petition for Mandamus therefore does not lie, as there is no duty, much less a clear duty, on the part of respondent to admit the petitioner therein in the current year to take up further courses in the Loyola School of Theology." It was likewise alleged in the aforesaid comment that as set forth in the letter of May 19, 1975, the decision not to allow petitioner to take up further courses in said seminary "is not arbitrary, as it is based on reasonable grounds, ... ." Then reference was made to the availability of nonjudicial remedies which petitioner could have pursued. 7 The prayer was for the dismissal of the petition for lack of merit. Petitioner sought permission to reply and it was granted. Thereafter, she had a detailed recital of why under the circumstances she is entitled to relief from the courts. In a resolution of August 8, 1975, this Court considered the comment of respondent as answer and required the parties to file their respective memoranda. That they did, and the petition was deemed submitted for decision. As was made clear at the outset, we do not see merit in it. It must therefore be dismissed. 1. In respondent's memorandum, it was made clear why a petition for mandamus is not the proper remedy. Thus: "Petitioner cannot compel by mandamus, the respondent to admit her into further studies in the Loyola School of Theology. For respondent has no clear duty to so admit the petitioner. The Loyola School of Theology is a seminary for the priesthood. Petitioner is admittedly and obviously not studying for the priesthood, she being a lay person and a woman. And even assuming ex gratia argumenti that she is qualified to study for the priesthood, there is still no duty on the part of respondent to admit her to said

studies, since the school has clearly the discretion to turn down even qualified applicants due to limitations of space, facilities, professors and optimum classroom size and component considerations." No authorities were cited, respondent apparently being of the view that the law has not reached the stage where the matter of admission to an institution of higher learning rests on the sole and uncontrolled discretion of the applicant. There are standards that must be met. There are policies to be pursued. Discretion appears to be of the essence. In terms of Hohfeld's terminology, what a student in the position of petitioner possesses is a privilege rather than a right. She cannot therefore satisfy the prime and indispensable requisite of a mandamus proceeding. Such being the case, there is no duty imposed on the Loyola School of Theology. In a rather comprehensive memorandum of petitioner, who unfortunately did not have counsel, an attempt was made to dispute the contention of respondent. There was a labored effort to sustain her stand, but it was not sufficiently persuasive. It is understandable why. It was the skill of a lay person rather than a practitioner that was evident. While she pressed her points with vigor, she was unable to demonstrate the existence of the clear legal right that must exist to justify the grant of this writ. 2. Nor is this all. There is, as previously noted, the recognition in the Constitution of institutions of higher learning enjoying academic freedom. It is more often identified with the right of a faculty member to pursue his studies in his particular specialty and thereafter to make known or publish the result of his endeavors without fear that retribution would be visited on him in the event that his conclusions are found distasteful or objectionable to the powers that be, whether in the political, economic, or academic establishments. For the sociologist, Robert McIver it is "a right claimed by the accredited educator, as teacher and as investigator, to interpret his findings and to communicate his conclusions without being subjected to any interference, molestation, or penalization because these conclusions are unacceptable to some constituted authority within or beyond the institution." 9 As for the educator and philosopher Sidney Hook, this is his version: "What is academic freedom? Briefly put, it is the freedom of professionally qualified persons to inquire, discover, publish and teach the truth as they see it in the field of their competence. It is subject to no control or authority except the control or authority of the rational methods by which truths or conclusions are sought and established in these disciplines." 10 3. That is only one aspect though. Such a view does not comprehend fully the scope of academic freedom recognized by the Constitution. For it is to be noted that the reference is to the "institutions of higher learning" as the recipients of this boon. It would follow then that the school or college itself is possessed of such a right. It decides for itself its aims and objectives and how best to attain them. It is free from outside coercion or interference save possibly when the overriding public welfare calls for some restraint. It has a wide sphere of autonomy certainly extending to the choice of students. This constitutional provision is not to be construed in a niggardly manner or in a gradging fashion. That would be to frustrate its purpose, nullify its intent. Former President Vicente G. Sinco of the University of the Philippines, in his Philippine Political Law, is similarly of the view 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." 11 He cited the following from Dr. Marcel Bouchard, Rector of the University of Dijon, France, President of the conference of rectors and vice-chancellors of European universities: " "It is a well-established fact, and yet one which sometimes tends to be obscured in discussions of the problems of freedom, that the collective liberty of an organization is by no means the same thing as the freedom of the individual members within it; in fact, the two kinds of freedom are not even necessarily connected. In considering the problems of academic freedom one must distinguish, therefore, between the autonomy of the university, as a corporate body, and the freedom of the

individual university teacher." " 12 Also: "To clarify further the distinction between the freedom of the university and that of the individual scholar, he says: "The personal aspect of freedom consists in the right of each university teacher recognized and effectively guaranteed by society to seek and express the truth as he personally sees it, both in his academic work and in his capacity as a private citizen. Thus the status of the individual university teacher is at least as important, in considering academic freedom, as the status of the institutions to which they belong and through which they disseminate their learning."' 13 He likewise quoted from the President of the Queen's University in Belfast, Sir Eric Ashby: "'The internal conditions for academic freedom in a university are that the academic staff should have de facto control of the following functions: (i) the admission and examination of students; (ii) the curricula for courses of study; (iii) the appointment and tenure of office of academic staff; and (iv) the allocation of income among the different categories of expenditure. It would be a poor prospect for academic freedom if universities had to rely on the literal interpretation of their constitutions in order to acquire for their academic members control of these four functions, for in one constitution or another most of these functions are laid on the shoulders of the law governing body .'" 14Justice Frankfurter, with his extensive background in legal education as a former Professor of the Harvard Law School, referred to what he called the business of a university and the four essential freedoms in the following language: "It is the business of a university to provide that atmosphere which is most conducive to speculation, experiment and creation. It is an atmosphere in which there prevail "the four essential freedoms" of a university to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study." 15 Thus is reinforced the conclusion reached by us that mandamus does not lie in this case. 4. It is not an easy matter then to disregard the views of persons knowledgeable in the field, to whom cannot be imputed lack of awareness of the need to respect freedom of thought on the part of students and scholars. Moreover, it could amount to minimizing the full respect that must be accorded the academic freedom expressly granted by the Constitution "to institutions of higher learning." It is equally difficult to yield conformity to the approach taken that colleges and universities should be looked upon as public utilities devoid of any discretion as to whom to admit or reject. Education, especially higher education, belongs to a different, and certainly higher, category. 5. It only remains to be added that the futility that marked the persistence of petitioner to continue her studies in the Loyola School of Theology is the result solely of a legal appraisal of the situation before us. The decision is not to be construed as in any way reflecting on the scholastic standing of petitioner. There was on the part of respondent due acknowledgment of her intelligence. Nonetheless, for reasons explained in the letter of Father Lambino, it was deemed best, considering the interest of the school as well as of the other students and her own welfare, that she continue her graduate work elsewhere. There was nothing arbitrary in such appraisal of the circumstances deemed relevant. It could be that on more mature reflection, even petitioner would realize that her transfer to some other institution would redound to the benefit of all concerned. At any rate, as indicated earlier, only the legal aspect of the controversy was touched upon in this decision. WHEREFORE, the petition is dismissed for lack of merit. G.R. No. 127980 December 19, 2007

DE LA SALLE UNIVERSITY, INC., EMMANUEL SALES, RONALD HOLMES, JUDE DELA TORRE, AMPARO RIO, CARMELITA QUEBENGCO, AGNES YUHICO and JAMES YAP, petitioners, vs. THE COURT OF APPEALS, HON. WILFREDO D. REYES, in his capacity as Presiding Judge of Branch 36, Regional Trial Court of Manila, THE COMMISSION ON HIGHER EDUCATION, THE DEPARTMENT OF EDUCATION CULTURE AND SPORTS, ALVIN AGUILAR, JAMES PAUL BUNGUBUNG, RICHARD REVERENTE and ROBERTO VALDES, JR., respondents. DECISION REYES, R.T., J.: NAGTATAGIS sa kasong ito ang karapatang mag-aral ng apat na estudyante na nasangkot sa away ng dalawang fraternity at ang karapatang akademiko ng isang pamantasan. PRIVATE respondents Alvin Aguilar, James Paul Bungubung, Richard Reverente and Roberto Valdes, Jr. are members of Tau Gamma Phi Fraternity who were expelled by the De La Salle University (DLSU) and College of Saint Benilde (CSB)1 Joint Discipline Board because of their involvement in an offensive action causing injuries to petitioner James Yap and three other student members of Domino Lux Fraternity. This is the backdrop of the controversy before Us pitting private respondents' right to education vis-a-vis the University's right to academic freedom. ASSAILED in this Petition for Certiorari, Prohibition and Mandamus under Rule 65 of the Rules of Court are the following: (1) Resolution of the Court of Appeals (CA) dated July 30, 1996 dismissing DLSU's petition for certiorariagainst respondent Judge and private respondents Aguilar, Bungubung, Reverente, and Valdes, Jr.;2 (2) Resolution of the CA dated October 15, 1996 denying the motion for reconsideration;3 (3) Order dated January 7, 1997 of the Regional Trial Court (RTC), Branch 36 Manila granting private respondent Aguilar's motion to reiterate writ of preliminary injunction;4 and (4) Resolution No. 181-96 dated May 14, 1996 of the Commission on Higher Education (CHED) exonerating private respondent Aguilar and lowering the penalties for the other private respondents from expulsion to exclusion.5 Factual Antecedents Gleaned from the May 3, 1995 Decision of the DLSU-CSB Joint Discipline Board, two violent incidents on March 29, 1995 involving private respondents occurred: x x x From the testimonies of the complaining witnesses, it appears that one week prior to March 29, 1995, Mr. James Yap was eating his dinner alone in Manang's Restaurant near La Salle, when he overheard two men bad-mouthing and apparently angry at Domino Lux. He ignored the comments of the two. When he arrived at his boarding house, he mentioned the remarks to his two other brods while watching television. These two brods had earlier finished eating their dinner at Manang's. Then, the three, together with four other persons went back to

Manang's and confronted the two who were still in the restaurant. By admission of respondent Bungubung in his testimony, one of the two was a member of the Tau Gamma Phi Fraternity. There was no rumble or physical violence then. After this incident, a meeting was conducted between the two heads of the fraternity through the intercession of the Student Council. The Tau Gamma Phi Fraternity was asking for an apology. "Kailanganng apology" in the words of respondent Aguilar. But no apology was made. Then, 5 members of the Tau Gamma Phi Fraternity went to the tambayan of the Domino Lux Fraternity in the campus. Among them were respondents Bungubung, Reverente and Papio. They were looking for a person whose description matched James Yap. According to them, this person supposedly "nambastos ng brod." As they could not find Mr. Yap, one of them remarked "Paano ba iyan. Pasensiya na lang." Came March 29, 1995 and the following events. Ten minutes before his next class at 6:00 p.m., Mr. James Yap went out of the campus using the Engineering Gate to buy candies across Taft Avenue. As he was about to re-cross Taft Avenue, he heard heavy footsteps at his back. Eight to ten guys were running towards him. He panicked. He did not know what to do. Then, respondent Bungubung punched him in the head with something heavy in his hands "parangknuckles." Respondents Reverente and Lee were behind Yap, punching him. Respondents Bungubung and Valdes who were in front of him, were also punching him. As he was lying on the street, respondent Aguilar kicked him. People shouted; guards arrived; and the group of attackers left. Mr. Yap could not recognize the other members of the group who attacked him. With respect to respondent Papio, Mr. Yap said "hindi ko nakita ang mukha niya, hindi ko nakita sumuntok siya." What Mr. Yap saw was a long haired guy also running with the group. Two guards escorted Mr. Yap inside the campus. At this point, Mr. Dennis Pascual was at the Engineering Gate. Mr. Pascual accompanied Yap to the university clinic; reported the incident to the Discipline Office; and informed his fraternity brods at their tambayan. According to Mr. Pascual, their head of the Domino Lux Fraternity said: "Walang gagalaw. Uwian na lang." Mr. Ericson Cano, who was supposed to hitch a ride with Dennis Pascual, saw him under the clock in Miguel Building. However, they did not proceed directly for home. With a certain Michael Perez, they went towards the direction of Dagonoy Street because Mr. Pascual was supposed to pick up a book for his friend from another friend who lives somewhere in the area. As they were along Dagonoy Street, and before they could pass the Kolehiyo ng Malate Restaurant, Mr. Cano first saw several guys inside the restaurant. He said not to mind them and just keep on walking. However, the group got out of the restaurant, among them respondents Reverente, Lee and Valdes. Mr. Cano told

Mr. Lee: "Ayaw namin ng gulo." But, respondent Lee hit Mr. Cano without provocation. Respondent Reverente kicked Mr. Pascual and respondent Lee also hit Mr. Pascual. Mr. Cano and Mr. Perez managed to run from the mauling and they were chased by respondent Lee and two others. Mr. Pascual was left behind. After respondent Reverente first kicked him, Mr. Pascual was ganged-upon by the rest. He was able to run, but the group was able to catch up with him. His shirt was torn and he was hit at the back of his head with a lead pipe. Respondent Lee who was chasing Cano and Perez, then returned to Mr. Pascual. Mr. Pascual identified respondents Reverente and Lee, as among those who hit him. Although Mr. Pascual did not see respondent Valdes hit him, he identified respondent Valdez (sic) as also one of the members of the group. In fact, Mr. Cano saw respondent Valdes near Mr. Pascual. He was almost near the corner of Leon Guinto and Estrada; while respondent Pascual who managed to run was stopped at the end of Dagonoy along Leon Guinto. Respondent Valdes shouted: "Mga putang-ina niyo." Respondent Reverente hit Mr. Pascual for the last time. Apparently being satisfied with their handiwork, the group left. The victims, Cano, Perez and Pascual proceeded to a friend's house and waited for almost two hours, or at around 8:00 in the evening before they returned to the campus to have their wounds treated. Apparently, there were three cars roaming the vicinity.6 The mauling incidents were a result of a fraternity war. The victims, namely: petitioner James Yap and Dennis Pascual, Ericson Cano, and Michael Perez, are members of the "Domino Lux Fraternity," while the alleged assailants, private respondents Alvin Aguilar, James Paul Bungubung, Richard Reverente and Roberto Valdes, Jr. are members of "Tau Gamma Phi Fraternity," a rival fraternity. The next day, March 30, 1995, petitioner Yap lodged a complaint 7 with the Discipline Board of DLSU charging private respondents with "direct assault." Similar complaints8 were also filed by Dennis Pascual and Ericson Cano against Alvin Lee and private respondents Valdes and Reverente. Thus, cases entitled "De La Salle University and College of St. Benilde v. Alvin Aguilar (AB-BSM/9152105), James Paul Bungubung (AB-PSM/9234403), Robert R. Valdes, Jr. (BS-BS-APM/9235086), Alvin Lee (EDD/9462325), Richard Reverente (AB-MGT/9153837) and Malvin A. Papio (AB-MGT/9251227)" were docketed as Discipline Case No. 9495-3-25121. The Director of the DLSU Discipline Office sent separate notices to private respondents Aguilar, Bungubung and Valdes, Jr. and Reverente informing them of the complaints and requiring them to answer. Private respondents filed their respective answers.9 As it appeared that students from DLSU and CSB10 were involved in the mauling incidents, a joint DLSU-CSB Discipline Board11 was formed to investigate the incidents. Thus, petitioner Board Chairman Emmanuel Sales sent notices of hearing12 to private respondents on April 12, 1995. Said notices uniformly stated as follows:

Please be informed that a joint and expanded Discipline Board had been constituted to hear and deliberate the charge against you for violation of CHED Order No. 4 arising from the written complaints of James Yap, Dennis C. Pascual, and Ericson Y. Cano. You are directed to appear at the hearing of the Board scheduled on April 19, 1995 at 9:00 a.m. at the Bro. Connon Hall for you and your witnesses to give testimony and present evidence in your behalf. You may be assisted by a lawyer when you give your testimony or those of your witnesses. On or before April 18, 1995, you are further directed to provide the Board, through the Discipline Office, with a list of your witnesses as well as the sworn statement of their proposed testimony. Your failure to appear at the scheduled hearing or your failure to submit the list of witnesses and the sworn statement of their proposed testimony will be considered a waiver on your part to present evidence and as an admission of the principal act complained of. For your strict compliance.13 During the proceedings before the Board on April 19 and 28, 1995, private respondents interposed the common defense of alibi, summarized by the DLSU-CSB Joint Discipline Board as follows: First, in the case of respondent Bungubung, March 29, 1995 was one of the few instances when he was picked-up by a driver, a certain Romeo S. Carillo. Most of the time, respondent Bungubung goes home alone sans driver. But on this particular date, respondent Bungubung said that his dad asked his permission to use the car and thus, his dad instructed this driver Carillo to pick-up his son. Mr. Carillo is not a family driver, but works from 8:00 a.m. to 5:00 p.m. for the Philippine Ports Authority where the elder Bungubung is also employed. Thus, attempting to corroborate the alibi of respondent Bungubung, Mr. Carillo said that he arrived at La Salle at 4:56 p.m.; picked-up respondent at 5:02 p.m.; took the Roxas Blvd. route towards respondent's house in BF Paraaque (on a Wednesday in Baclaran); and arrived at the house at 6:15 p.m. Respondent Bungubung was dropped-off in his house, and taking the same route back, Mr. Carillo arrived at the South Harbor at 6:55 p.m. the Philippine Ports Authority is located at the South Harbor.14 xxxx Secondly, respondent Valdes said that he was with his friends at McDonald's Taft just before 6:00 p.m. of March 29, 1995. He said that he left McDonald at 5:50 p.m. together to get some medicine at the university clinic for his throat irritation. He said that he was at the clinic at 5:52 p.m. and went back to McDonald, all within a span of 3 or even 4 minutes.

Two witnesses, a certain Sharon Sia and the girlfriend of respondent Valdes, a certain Jorgette Aquino, attempted to corroborate Valdez' alibi.15 xxxx Third, respondent Reverente told that (sic) the Board that he was at his home at 5:00 p.m. of March 29, 1995. He said that he was given the responsibility to be the paymaster of the construction workers who were doing some works in the apartment of his parents. Although he had classes in the evening, the workers according to him would wait for him sometimes up to 9:00 p.m. when he arrives from his classes. The workers get paid everyday. Respondent Reverente submitted an affidavit, unsigned by the workers listed there, supposedly attesting to the fact that he paid the workers at the date and time in question.16 xxxx Fourth, respondent Aguilar "solemnly sw[ore] that [he] left DLSU at 5:00 p.m. for Camp Crame for a meeting with some of the officers that we were preparing."17 On May 3, 1995, the DLSU-CSB Joint Discipline Board issued a Resolution 18 finding private respondents guilty. They were meted the supreme penalty of automatic expulsion,19 pursuant to CHED Order No. 4.20 The dispositive part of the resolution reads: WHEREFORE, considering all the foregoing, the Board finds respondents ALVIN AGUILAR (AB-BSM/9152105), JAMES PAUL BUNGUBUNG (ABPSM/9234403), ALVIN LEE (EDD/94623250) and RICHARD V. REVERENTE (ABMGT/9153837) guilty of having violated CHED Order No. 4 and thereby orders their automatic expulsion. In the case of respondent MALVIN A. PAPIO (AB-MGT/9251227), the Board acquits him of the charge. SO ORDERED.21 Private respondents separately moved for reconsideration22 before the Office of the Senior Vice-President for Internal Operations of DLSU. The motions were all denied in a Letter-Resolution23 dated June 1, 1995. On June 5, 1995, private respondent Aguilar filed with the RTC, Manila, against petitioners a petition for certiorariand injunction under Rule 65 of the Rules of Court with prayer for temporary restraining order (TRO) and/or writ of preliminary injunction. It was docketed as Civil Case No. 95-74122 and assigned to respondent Judge of Branch 36. The petition essentially sought to annul the May 3, 1995 Resolution of the DLSU-CSB Joint Discipline Board and the June 1, 1995 Letter-Resolution of the Office of the Senior VicePresident for Internal Affairs.

The following day, June 6, 1995, respondent Judge issued a TRO 24 directing DLSU, its subordinates, agents, representatives and/or other persons acting for and in its behalf to refrain and desist from implementing Resolution dated May 3, 1995 and Letter-Resolution dated June 1, 1995 and to immediately desist from barring the enrollment of Aguilar for the second term of school year (SY) 1995. Subsequently, private respondent Aguilar filed an ex parte motion to amend his petition to correct an allegation in paragraph 3.2125 of his original petition. Respondent Judge amended the TRO26 to conform to the correction made in the amended petition.27 On June 7, 1995, the CHED directed DLSU to furnish it with copies of the case records of Discipline Case No. 9495-3-25121,28 in view of the authority granted to it under Section 77(c) of the Manual of Regulations for Private Schools (MRPS). On the other hand, private respondents Bungubung and Reverente, and later, Valdes, filed petitions-in-intervention29 in Civil Case No. 95-74122. Respondent Judge also issued corresponding temporary restraining orders to compel petitioner DLSU to admit said private respondents. On June 19, 1995, petitioner Sales filed a motion to dismiss30 in behalf of all petitioners, except James Yap. On June 20, 1995, petitioners filed a supplemental motion to dismiss31 the petitions-in-intervention. On September 20, 1995, respondent Judge issued an Order32 denying petitioners' (respondents there) motion to dismiss and its supplement, and granted private respondents' (petitioners there) prayer for a writ of preliminary injunction. The pertinent part of the Order reads: For this purpose, respondent, its agents, representatives or any and all other persons acting for and in its behalf is/are restrained and enjoined from 1. Implementing and enforcing the Resolution dated May 3, 1995 ordering the automatic expulsion of petitioner and the petitioners-inintervention from the De La Salle University and the letter-resolution dated June 1, 1995, affirming the Resolution dated May 3, 1995; and 2. Barring the enrolment of petitioner and petitioners-in-intervention in the courses offered at respondent De La Salle University and to immediately allow them to enroll and complete their respective courses/degrees until their graduation thereat in accordance with the standards set by the latter. WHEREFORE, the ancillary remedy prayed for is granted. Respondent, its agents, representatives, or any and all persons acting for and its behalf are hereby restrained and enjoyed from: 1. Implementing and enforcing the Resolution dated May 3, 1995 ordering the automatic expulsion of petitioner and petitioners-inintervention and the Letter-Resolution dated June 1, 1995; and

2. Barring the enrollment of petitioner and petitioners-in-intervention in the courses offered at respondent (De La Salle University) and to forthwith allow all said petitioner and petitioners-in-intervention to enroll and complete their respective courses/degrees until their graduation thereat. The Writ of Preliminary Injunction shall take effect upon petitioner and petitioners-in-intervention posting an injunctive bond in the amount of P15,000.00 executed in favor of respondent to the effect that petitioner and petitioners-inintervention will pay to respondent all damages that the latter may suffer by reason of the injunction if the Court will finally decide that petitioner and petitioners-inintervention are not entitled thereto. The motion to dismiss and the supplement thereto is denied for lack of merit. Respondents are directed to file their Answer to the Petition not later than fifteen (15) days from receipt thereof. SO ORDERED.33 Despite the said order, private respondent Aguilar was refused enrollment by petitioner DLSU when he attempted to enroll on September 22, 1995 for the second term of SY 19951996. Thus, on September 25, 1995, Aguilar filed with respondent Judge an urgent motion to cite petitioners (respondents there) in contempt of court.34 Aguilar also prayed that petitioners be compelled to enroll him at DLSU in accordance with respondent Judge's Order dated September 20, 1995. On September 25, 1995, respondent Judge issued35 a writ of preliminary injunction, the relevant portion of which reads: IT IS HEREBY ORDERED by the undersigned of the REGIONAL TRIAL COURT OF MANILA that until further orders, you the said DE LA SALLE University as well as your subordinates, agents, representatives, employees and any other person assisting or acting for or on your behalf, to immediately desist from implementing the Resolution dated May 3, 1995 ordering the automatic expulsion of petitioner and the intervenors in DLSU, and the letter-resolution dated June 1, 1995 affirming the said Resolution of May 3, 1995 and to immediately desist from barring the enrolment of petitioner and intervenors in the courses offered at DLSU and to allow them to enroll and complete their degree courses until their graduation from said school.36 On October 16, 1995, petitioner DLSU filed with the CA a petition for certiorari 37 (CAG.R. SP No. 38719) with prayer for a TRO and/or writ of preliminary injunction to enjoin the enforcement of respondent Judge's September 20, 1995 Order and writ of preliminary injunction dated September 25, 1995. On April 12, 1996, the CA granted petitioners' prayer for preliminary injunction. On May 14, 1996, the CHED issued its questioned Resolution No. 181-96, summarily disapproving the penalty of expulsion for all private respondents. As for Aguilar, he was to be reinstated, while other private respondents were to be excluded.38 The Resolution states:

RESOLUTION 181-96 RESOLVED THAT THE REQUEST OF THE DE LA SALLE UNIVERSITY (DLSU), TAFT AVENUE, MANILA FOR THE APPROVAL OF THE PENALTY OF EXPULSION IMPOSED ON MR. ALVIN AGUILAR, JAMES PAUL BUNGUBUNG, ROBERT R. VALDES, JR., ALVIN LEE AND RICHARD V. REVERENTE BE, AS IT IS HEREBY IS, DISAPPROVED. RESOLVED FURTHER, THAT THE COMMISSION DIRECT THE DLSU TO IMMEDIATELY EFFECT THE REINSTATEMENT OF MR. AGUILAR AND THE LOWERING OF THE PENALTY OF MR. JAMES PAUL BUNGUBUNG, MR. ROBER R. VALDEZ, JR., (sic) MR. ALVIN LEE AND MR. RICHARD V. REVERENTE FROM EXPULSION TO EXCLUSION.39 Despite the directive of CHED, petitioner DLSU again prevented private respondent Aguilar from enrolling and/or attending his classes, prompting his lawyer to write several demand letters40 to petitioner DLSU. In view of the refusal of petitioner DLSU to enroll private respondent Aguilar, CHED wrote a letter dated June 26, 1996 addressed to petitioner Quebengco requesting that private respondent Aguilar be allowed to continue attending his classes pending the resolution of its motion for reconsideration of Resolution No. 181-96. However, petitioner Quebengco refused to do so, prompting CHED to promulgate an Order dated September 23, 1996 which states: Acting on the above-mentioned request of Mr. Aguilar through counsel enjoining De La Salle University (DLSU) to comply with CHED Resolution 181-96 (Re: Expulsion Case of Alvin Aguilar, et al. v. DLSU) directing DLSU to reinstate Mr. Aguilar and finding the urgent request as meritorious, there being no other plain and speedy remedy available, considering the set deadline for enrollment this current TRIMESTER, and in order to prevent further prejudice to his rights as a student of the institution, DLSU, through the proper school authorities, is hereby directed to allow Mr. Alvin Aguilar to provisionally enroll, pending the Commission's Resolution of the instant Motion for Reconsideration filed by DLSU. SO ORDERED.41 Notwithstanding the said directive, petitioner DLSU, through petitioner Quebengco, still refused to allow private respondent Aguilar to enroll. Thus, private respondent Aguilar's counsel wrote another demand letter to petitioner DLSU.42 Meanwhile, on June 3, 1996, private respondent Aguilar, using CHED Resolution No. 181-96, filed a motion to dismiss43 in the CA, arguing that CHED Resolution No. 181-96 rendered the CA case moot and academic. On July 30, 1996, the CA issued its questioned resolution granting the motion to dismiss of private respondent Aguilar, disposing thus: THE FOREGOING CONSIDERED, dismissal of herein petition is hereby directed.

SO ORDERED.44 On October 15, 1996, the CA issued its resolution denying petitioners' motion for reconsideration, as follows: It is obvious to Us that CHED Resolution No. 181-96 is immediately executory in character, the pendency of a Motion for Reconsideration notwithstanding. After considering the Opposition and for lack of merit, the Motion for Reconsideration is hereby denied. SO ORDERED.45 On October 28, 1996, petitioners requested transfer of case records to the Department of Education, Culture and Sports (DECS) from the CHED. 46 Petitioners claimed that it is the DECS, not CHED, which has jurisdiction over expulsion cases, thus, necessitating the transfer of the case records of Discipline Case No. 9495-3-25121 to the DECS. On November 4, 1996, in view of the dismissal of the petition for certiorari in CA-G.R. SP No. 38719 and the automatic lifting of the writ of preliminary injunction, private respondent Aguilar filed an urgent motion to reiterate writ of preliminary injunction dated September 25, 1995 before respondent RTC Judge of Manila.47 On January 7, 1997, respondent Judge issued its questioned order granting private respondent Aguilar's urgent motion to reiterate preliminary injunction. The pertinent portion of the order reads: In light of the foregoing, petitioner Aguilar's urgent motion to reiterate writ of preliminary injunction is hereby granted, and respondents' motion to dismiss is denied. The writ of preliminary injunction dated September 25, 1995 is declared to be in force and effect. Let a copy of this Order and the writ be served personally by the Court's sheriff upon the respondents at petitioners' expense. SO ORDERED.48 Accordingly, private respondent Aguilar was allowed to conditionally enroll in petitioner DLSU, subject to the continued effectivity of the writ of preliminary injunction dated September 25, 1995 and to the outcome of Civil Case No. 95-74122. On February 17, 1997, petitioners filed the instant petition. On June 15, 1998, We issued a TRO49 as prayed for by the urgent motion for the issuance of a TRO50 dated June 4, 1998 of petitioners, and enjoined respondent Judge from

implementing the writ of preliminary injunction dated September 25, 1995 issued in Civil Case No. 95-74122, effective immediately and until further orders from this Court. On March 27, 2006, private respondent Aguilar filed his manifestation51 stating that he has long completed his course at petitioner DLSU. He finished and passed all his enrolled subjects for the second trimester of 1997-1998, as indicated in his transcript of records52 issued by DLSU. However, despite having completed all the academic requirements for his course, DLSU has not issued a certificate of completion/graduation in his favor. Issues We are tasked to resolve the following issues: 1. Whether it is the DECS or the CHED which has legal authority to review decisions of institutions of higher learning that impose disciplinary action on their students found violating disciplinary rules. 2. Whether or not petitioner DLSU is within its rights in expelling private respondents. 2.a Were private respondents accorded due process of law? 2.b Can petitioner DLSU invoke its right to academic freedom? 2.c Was the guilt of private respondents proven by substantial evidence? 3. Whether or not the penalty imposed by DLSU on private respondents is proportionate to their misdeed. Our Ruling Prefatorily, there is merit in the observation of petitioners53 that while CHED Resolution No. 181-96 disapproved the expulsion of other private respondents, it nonetheless authorized their exclusion from petitioner DLSU. However, because of the dismissal of the CA case, petitioner DLSU is now faced with the spectacle of having two different directives from the CHED and the respondent Judge CHED ordering the exclusion of private respondents Bungubung, Reverente, and Valdes, Jr., and the Judge ordering petitioner DLSU to allow them to enroll and complete their degree courses until their graduation. This is the reason We opt to decide the whole case on the merits, brushing aside technicalities, in order to settle the substantial issues involved. This Court has the power to take cognizance of the petition at bar due to compelling reasons, and the nature and importance of the issues raised warrant the immediate exercise of Our jurisdiction.54 This is in consonance with our case law now accorded near-religious reverence that rules of procedure are but tools designed to facilitate the attainment of justice, such that when its rigid

application tends to frustrate rather than promote substantial justice, this Court has the duty to suspend their operation.55 I. It is power of disciplinary of higher learning. CHED, not DECS, supervision and cases decided the which review by has the over institutions

Ang CHED, hindi ang DECS, ang may kapangyarihan ng pagsubaybay at pagrepaso sa mga desisyong pandisiplina ng mga institusyon ng mas mataas na pagaaral. Petitioners posit that the jurisdiction and duty to review student expulsion cases, even those involving students in secondary and tertiary levels, is vested in the DECS not in the CHED. In support of their stance, petitioners cite Sections 4,56 15(2) & (3),57 54,58 57(3)59 and 7060 of Batas Pambansa (B.P.) Blg. 232, otherwise known as the "Education Act of 1982." According to them, Republic Act (R.A.) No. 7722 did not transfer to the CHED the DECS' power of supervision/review over expulsion cases involving institutions of higher learning. They say that unlike B.P. Blg. 232, R.A. No. 7722 makes no reference to the right and duty of learning institutions to develop moral character and instill discipline among its students. The clear concern of R.A. No. 7722 in the creation of the CHED was academic, i.e., the formulation, recommendation, setting, and development of academic plans, programs and standards for institutions of higher learning. The enumeration of CHED's powers and functions under Section 8 does not include supervisory/review powers in student disciplinary cases. The reference in Section 3 to CHED's "coverage" of institutions of higher education is limited to the powers and functions specified in Section 8. The Bureau of Higher Education, which the CHED has replaced and whose functions and responsibilities it has taken over, never had any authority over student disciplinary cases. We cannot agree. On May 18, 1994, Congress approved R.A. No. 7722, otherwise known as "An Act Creating the Commission on Higher Education, Appropriating Funds Thereof and for other purposes." Section 3 of the said law, which paved the way for the creation of the CHED, provides: Section 3. Creation of the Commission on Higher Education. In pursuance of the abovementioned policies, the Commission on Higher Education is hereby created, hereinafter referred to as Commission. The Commission shall be independent and separate from the Department of Education, Culture and Sports (DECS) and attached to the office of the President for administrative purposes only. Its coverage shall be both public and private institutions of higher education as well as degree-granting programs in all post secondary educational institutions, public and private.

The powers and functions of the CHED are enumerated in Section 8 of R.A. No. 7722. They include the following: Sec. 8. Powers and functions of the Commission. The Commission shall have the following powers and functions: xxxx n) promulgate such rules and regulations and exercise such other powers and functions as may be necessary to carry out effectively the purpose and objectives of this Act; and o) perform such other functions as may be necessary for its effective operations and for the continued enhancement of growth or development of higher education. Clearly, there is no merit in the contention of petitioners that R.A. No. 7722 did not transfer to the CHED the DECS' power of supervision/review over expulsion cases involving institutions of higher learning. First, the foregoing provisions are all-embracing. They make no reservations of powers to the DECS insofar as institutions of higher learning are concerned. They show that the authority and supervision over all public and private institutions of higher education, as well as degree-granting programs in all post-secondary educational institutions, public and private, belong to the CHED, not the DECS. Second, to rule that it is the DECS which has authority to decide disciplinary cases involving students on the tertiary level would render nugatory the coverage of the CHED, which is "both public and private institutions of higher education as well as degree granting programs in all post secondary educational institutions, public and private." That would be absurd. It is of public knowledge that petitioner DLSU is a private educational institution which offers tertiary degree programs. Hence, it is under the CHED authority. Third, the policy of R.A. No. 772261 is not only the protection, fostering and promotion of the right of all citizens to affordable quality education at all levels and the taking of appropriate steps to ensure that education shall be accessible to all. The law is likewise concerned with ensuring and protecting academic freedom and with promoting its exercise and observance for the continued intellectual growth of students, the advancement of learning and research, the development of responsible and effective leadership, the education of high-level and middle-level professionals, and the enrichment of our historical and cultural heritage. It is thus safe to assume that when Congress passed R.A. No. 7722, its members were aware that disciplinary cases involving students on the tertiary level would continue to arise in the future, which would call for the invocation and exercise of institutions of higher learning of their right to academic freedom.

Fourth, petitioner DLSU cited no authority in its bare claim that the Bureau of Higher Education, which CHED replaced, never had authority over student disciplinary cases. In fact, the responsibilities of other government entities having functions similar to those of the CHED were transferred to the CHED.62 Section 77 of the MRPS63 on the process of review in student discipline cases should therefore be read in conjunction with the provisions of R.A. No. 7722. Fifth, Section 18 of R.A. No. 7722 is very clear in stating that "[j]urisdiction over DECS-supervised or chartered state-supported post-secondary degree-granting vocational and tertiary institutions shall be transferred to the Commission [On Higher Education]." This provision does not limit or distinguish that what is being transferred to the CHED is merely the formulation, recommendation, setting and development of academic plans, programs and standards for institutions of higher learning, as what petitioners would have us believe as the only concerns of R.A. No. 7722. Ubi lex non distinguit nec nos distinguere debemus: Where the law does not distinguish, neither should we. To Our mind, this provision, if not an explicit grant of jurisdiction to the CHED, necessarily includes the transfer to the CHED of any jurisdiction which the DECS might have possessed by virtue of B.P. Blg. 232 or any other law or rule for that matter. IIa. Private due process of law. respondents were accorded

Ang mga private respondents ay nabigyan ng tamang proseso ng batas. The Due Process Clause in Article III, Section 1 of the Constitution embodies a system of rights based on moral principles so deeply imbedded in the traditions and feelings of our people as to be deemed fundamental to a civilized society as conceived by our entire history.64 The constitutional behest that no person shall be deprived of life, liberty or property without due process of law is solemn and inflexible.65 In administrative cases, such as investigations of students found violating school discipline, "[t]here are withal minimum standards which must be met before to satisfy the demands of procedural due process and these are: that (1) the students must be informed in writing of the nature and cause of any accusation against them; (2) they shall have the right to answer the charges against them and with the assistance if 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."66 Where a party was afforded an opportunity to participate in the proceedings but failed to do so, he cannot complain of deprivation of due process.67 Notice and hearing is the bulwark of administrative due process, the right to which is among the primary rights that must be respected even in administrative proceedings.68 The essence of due process is simply an opportunity to be heard, or as applied to administrative proceedings, an opportunity to explain one's side or an opportunity to seek reconsideration of the action or ruling complained of.69So

long as the party is given the opportunity to advocate her cause or defend her interest in due course, it cannot be said that there was denial of due process.70 A formal trial-type hearing is not, at all times and in all instances, essential to due process it is enough that the parties are given a fair and reasonable opportunity to explain their respective sides of the controversy and to present supporting evidence on which a fair decision can be based.71 "To be heard" does not only mean presentation of testimonial evidence in court one may also be heard through pleadings and where the opportunity to be heard through pleadings is accorded, there is no denial of due process.72 Private respondents were duly informed in writing of the charges against them by the DLSU-CSB Joint Discipline Board through petitioner Sales. They were given the opportunity to answer the charges against them as they, in fact, submitted their respective answers. They were also informed of the evidence presented against them as they attended all the hearings before the Board. Moreover, private respondents were given the right to adduce evidence on their behalf and they did. Lastly, the Discipline Board considered all the pieces of evidence submitted to it by all the parties before rendering its resolution in Discipline Case No. 9495-325121. Private respondents cannot claim that they were denied due process when they were not allowed to cross-examine the witnesses against them. This argument was already rejected in Guzman v. National University73 where this Court held that "x x x the imposition of disciplinary sanctions requires observance of procedural due process. And it bears stressing that due process in disciplinary cases involving students does not entail proceedings and hearings similar to those prescribed for actions and proceedings in courts of justice. The proceedings in student discipline cases may be summary; and cross examination is not, x x x an essential part thereof." IIb. Petitioner DLSU, higher learning, freedom which of who to admit for study. as an possesses includes institution of academic determination

Act of 1982 that students have a right "to freely choose their field of study, subject to existing curricula and to continue their course therein up to graduation,"77 such right is subject to the established academic and disciplinary standards laid down by the academic institution. Petitioner DLSU, therefore, can very well exercise its academic freedom, which includes its free choice of students for admission to its school. IIc. The guilt Bungubung, Reverente Jr. was proven by substantial evidence. of private and respondents Valdes,

Ang pagkakasala ng private respondents na sina Bungubung, Reverente at Valdes, Jr. ay napatunayan ng ebidensiyang substansyal. As has been stated earlier, private respondents interposed the common defense of alibi. However, in order that alibi may succeed as a defense, "the accused must establish by clear and convincing evidence (a) his presence at another place at the time of the perpetration of the offense and (b) the physical impossibility of his presence at the scene of the crime."78 On the other hand, the defense of alibi may not be successfully invoked where the identity of the assailant has been established by witnesses.79 Positive identification of accused where categorical and consistent, without any showing of ill motive on the part of the eyewitness testifying, should prevail over the alibi and denial of appellants whose testimonies are not substantiated by clear and convincing evidence.80 Well-settled is the rule that denial and alibi, being weak defenses, cannot overcome the positive testimonies of the offended parties.81 Courts reject alibi when there are credible eyewitnesses to the crime who can positively identify the accused.82Alibi is an inherently weak defense and courts must receive it with caution because one can easily fabricate an alibi.83 Jurisprudence holds that denial, like alibi, is inherently weak and crumbles in light of positive declarations of truthful witnesses who testified on affirmative matters that accused were at the scene of the crime and were the victim's assailants. As between categorical testimonies that ring of truth on one hand and a bare denial on the other, the former must prevail. 84 Alibi is the weakest of all defenses for it is easy to fabricate and difficult to disprove, and it is for this reason that it cannot prevail over the positive identification of accused by the witnesses.85 The required proof in administrative cases, such as in student discipline cases, is neither proof beyond reasonable doubt nor preponderance of evidence but only substantial evidence. According to Ang Tibay v. Court of Industrial Relations,86 it means "such reasonable evidence as a reasonable mind might accept as adequate to support a conclusion." Viewed from the foregoing, We reject the alibi of private respondents Bungubung, Valdes Jr., and Reverente. They were unable to show convincingly that they were not at the scene of the crime on March 29, 1995 and that it was impossible for them to have been there. Moreover, their alibi cannot prevail over their positive identification by the victims. We hark back to this Court's pronouncement affirming the expulsion of several students found guilty of hazing:

Ang petitioner DLSU, bilang institusyon ng mas mataas na pag-aaral, ay nagtataglay ng kalayaang akademiko na sakop ang karapatang pumili ng mga magaaral dito. Section 5(2), Article XIV of the Constitution guaranties all institutions of higher learning academic freedom. This institutional academic freedom includes the right of the school or college to decide for itself, its aims and objectives, and how best to attain them free from outside coercion or interference save possibly when the overriding public interest calls for some restraint.74 According to present jurisprudence, academic freedom encompasses the independence of an academic institution to determine for itself (1) who may teach, (2) what may be taught, (3) how it shall teach, and (4) who may be admitted to study.75 It cannot be gainsaid that "the school has an interest in teaching the student discipline, a necessary, if not indispensable, value in any field of learning. By instilling discipline, the school teaches discipline. Accordingly, the right to discipline the student likewise finds basis in the freedom "what to teach."76 Indeed, while it is categorically stated under the Education

No one can be so myopic as to doubt that the immediate reinstatement of respondent students who have been investigated and found guilty 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 Constitution.87 Certainly, private respondents Bungubung, Reverente and Valdes, Jr. do not deserve to claim a venerable institution as their own, for they may foreseeably cast a malevolent influence on the students currently enrolled, as well as those who come after them.88 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.89 As for private respondent Aguilar, however, We are inclined to give credence to his alibi that he was at Camp Crame in Quezon City at the time of the incident in question on March 29, 1995. This claim was amply corroborated by the certification that he submitted before the DLSU-CSB Joint Discipline Board, to wit: CERTIFICATION TO WHOM THIS MAY CONCERN: We, the undersigned, hereby declare and affirm by way of this Certification that sometime on March 29, 1995, at about and between 4:30 P.M. and 5:30 P.M., we were together with Alvin A. Aguilar, at Kiangan Hall, inside Camp Crame, Quezon City, meeting in connection with an affair of our class known as Class 7, Batch 89 of the Philippine Constabulary discussing on the proposed sponsorship of TAU GAMMA PHI from said Batch '89 affair. That the meeting was terminated at about 6:30 P.M. that evening and Alvin Aguilar had asked our permission to leave and we saw him leave Camp Crame, in his car with the driver. April 18, 1995, Camp Crame, Quezon City.90 The said certification was duly signed by PO3 Nicanor R. Faustino (Anti-Organized Crime CIC, NCR), PO3 Alejandro D. Deluviar (ODITRM, Camp Crame, Quezon City), PO2 Severino C. Filler (TNTSC, Camp Crame, Quezon City), and PO3 Ireneo M. Desesto (Supply Center, PNPLSS). The rule is that alibi assumes significance or strength when it is amply corroborated by credible and disinterested witnesses.91 It is true that alibi is a weak defense which an accused can easily fabricate to escape criminal liability. But where the prosecution evidence is weak, and betrays lack of credibility as to the identification of defendant, alibi assumes commensurate strength. This is but consistent with the presumption of innocence in favor of accused.92

Alibi is not always undeserving of credit, for there are times when accused has no other possible defense for what could really be the truth as to his whereabouts at the crucial time, and such defense may, in fact, tilt the scales of justice in his favor.93 III. The penalty on private to their misdeed. of expulsion respondents imposed is by DLSU disproportionate

Ang parusang expulsion na ipinataw ng DLSU sa private respondents ay hindi angkop sa kanilang pagkakasala. It is true that schools have the power to instill discipline in their students as subsumed in their academic freedom and that "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."94 This power, however, does not give them the untrammeled discretion to impose a penalty which is not commensurate with the gravity of the misdeed. If the concept of proportionality between the offense committed and the sanction imposed is not followed, an element of arbitrariness intrudes. That would give rise to a due process question.95 We agree with respondent CHED that under the circumstances, the penalty of expulsion is grossly disproportionate to the gravity of the acts committed by private respondents Bungubung, Reverente, and Valdes, Jr. Each of the two mauling incidents lasted only for few seconds and the victims did not suffer any serious injury. Disciplinary measures especially where they involve suspension, dismissal or expulsion, cut significantly into the future of a student. They attach to him for life and become a mortgage of his future, hardly redeemable in certain cases. Officials of colleges and universities must be anxious to protect it, conscious of the fact that, appropriately construed, a disciplinary action should be treated as an educational tool rather than a punitive measure.96 Accordingly, We affirm the penalty of exclusion97 only, not expulsion,98 imposed on them by the CHED. As such, pursuant to Section 77(b) of the MRPS, petitioner DLSU may exclude or drop the names of the said private respondents from its rolls for being undesirable, and transfer credentials immediately issued. WHEREFORE, the petition is PARTIALLY GRANTED. The Court of Appeals Resolutions dated July 30, 1996 and dated October 15, 1996, and Regional Trial Court of Manila, Branch 36, Order dated January 7, 1997 areANNULLED AND SET ASIDE, while CHED Resolution 181-96 dated May 14, 1996 is AFFIRMED. Petitioner DLSU is ordered to issue a certificate of completion/graduation in favor of private respondent Aguilar. On the other hand, it may exclude or drop the names of private respondents Bungubung, Reverente, and Valdes, Jr. from its rolls, and their transfer credentials immediately issued. SO ORDERED. [G.R. No. 168766, May 22, 2008]

THE CIVIL SERVICE COMMISSION, Petitioner, vs. HENRY A. SOJOR, Respondent. DECISION REYES, R.T., J.: IS the president of a state university outside the reach of the disciplinary jurisdiction constitutionally granted to the Civil Service Commission (CSC) over all civil servants and officials? Does the assumption by the CSC of jurisdiction over a president of a state university violate academic freedom? The twin questions, among others, are posed in this petition for review on certiorari of the Decision[1] of the Court of Appeals (CA) which annulled two (2) CSC Resolutions[2] against respondent Henry A. Sojor. The Facts The uncontroverted facts that led to the controversy, as found by the CSC and the CA, are as follows: On August 1, 1991, respondent Sojor was appointed by then President Corazon Aquino as president of the Central Visayas Polytechnic College (CVPC) in Dumaguete City. In June 1997, Republic Act (R.A.) No. 8292, or the "Higher Education Modernization Act of 1997," was enacted. This law mandated that a Board of Trustees (BOT) be formed to act as the governing body in state colleges. The BOT of CVPC appointed respondent as president, with a four-year term beginning September 1998 up to September 2002.[3] Upon the expiration of his first term of office in 2002, he was appointed president of the institution for a second fouryear term, expiring on September 24, 2006.[4] On June 25, 2004, CVPC was converted into the Negros Oriental State University (NORSU). [5] A Board of Regents (BOR) succeeded the BOT as its governing body. Meanwhile, three (3) separate administrative cases against respondent were filed by CVPC faculty members before the CSC Regional Office (CSC-RO) No. VII in Cebu City, to wit:

3. ADM DC No. 02-21 - Complaint for nepotism filed on August 15, 2002 by Rose Marie Palomar, a former part-time instructor of CVPC. It was alleged that respondent appointed his half-sister, Estrellas Sojor-Managuilas, as casual clerk, in violation of the provisions against nepotism under the Administrative Code.[8]
Before filing his counter-affidavits, respondent moved to dismiss the first two complaints on grounds of lack of jurisdiction, bar by prior judgment and forum shopping. He claimed that the CSC had no jurisdiction over him as a presidential appointee. Being part of the non-competitive or unclassified service of the government, he was exclusively under the disciplinary jurisdiction of the Office of the President (OP). He argued that CSC had no authority to entertain, investigate and resolve charges against him; that the Civil Service Law contained no provisions on the investigation, discipline, and removal of presidential appointees. He also pointed out that the subject matter of the complaints had already been resolved by the Office of the Ombudsman.[9] Finding no sufficient basis to sustain respondent's arguments, the CSC-RO denied his motion to dismiss in its Resolution dated September 4, 2002.[10] His motion for reconsideration[11] was likewise denied. Thus, respondent was formally charged with three administrative cases, namely: (1) Dishonesty, Misconduct, and Falsification of Official Document; (2) Dishonesty, Grave Misconduct, and Conduct Prejudicial to the Best Interest of the Service; and (3) Nepotism.[12] Respondent appealed the actions of the regional office to the Commission proper (CSC), raising the same arguments in his motion to dismiss.[13] He argued that since the BOT is headed by the Committee on Higher Education Chairperson who was under the OP, the BOT was also under the OP. Since the president of CVPC was appointed by the BOT, then he was a presidential appointee. On the matter of the jurisdiction granted to CSC by virtue of Presidential Decree (P.D.) No. 807[14] enacted in October 1975, respondent contended that this was superseded by the provisions of R.A. No. 8292,[15] a later law which granted to the BOT the power to remove university officials. CSC Disposition In a Resolution dated March 30, 2004,[16] the CSC dismissed respondent's appeal and authorized its regional office to proceed with the investigation. He was also preventively suspended for 90 days. The fallo of the said resolution states: WHEREFORE, the appeal of Henry A. Sojor, President of Central Visayas Polytechnic College, is hereby DISMISSED. The Civil Service Commission Regional Office No. VII, Cebu City, is authorized to proceed with the formal investigation of the cases against Sojor and submit the investigation reports to the Commission within one hundred five (105) days from receipt hereof. Finally, Sojor is preventively suspended for ninety (90) days.[17] In decreeing that it had jurisdiction over the disciplinary case against respondent, the CSC opined that his claim that he was a presidential appointee had no basis in fact or in law. CSC maintained that it had concurrent jurisdiction with the BOT of the CVPC. We quote: His appointment dated September 23, 2002 was signed by then Commission on Higher Education (CHED) Chairman Ester A. Garcia. Moreover, the said appointment expressly stated that it was approved and adopted by the Central Visayas Polytechnic College Board of Trustees on August 13, 2002 in accordance with Section 6 of Republic Act No. 8292 (Higher education Modernization Act of 1997), which explicitly provides that, "He (the president of a

1. ADMC DC No. 02-20(A) - Complaint for dishonesty, grave misconduct and conduct prejudicial to the best interest of the service filed on June 26, 2002 by Jose Rene A. Cepe and Narciso P. Ragay. It was alleged that respondent approved the release of salary differentials despite the absence of the required Plantilla and Salary Adjustment Form and valid appointments.[6] 2. ADM DC No. 02-20 - Complaint for dishonesty, misconduct and falsification of official documents filed on July 10, 2002 by Jocelyn Juanon and Carolina Fe Santos. The complaint averred that respondent maliciously allowed the antedating and falsification of the reclassification differential payroll, to the prejudice of instructors and professors who have pending request for adjustment of their academic ranks.[7]

state college) shall be appointed by the Board of Regents/Trustees, upon recommendation of a duly constituted search committee." Since the President of a state college is appointed by the Board of Regents/Trustees of the college concerned, it is crystal clear that he is not a presidential appointee. Therefore, it is without doubt that Sojor, being the President of a state college (Central Visayas Polytechnic College), is within the disciplinary jurisdiction of the Commission. The allegation of appellant Sojor that the Commission is bereft of disciplinary jurisdiction over him since the same is exclusively lodged in the CVPC Board of Trustees, being the appointing authority, cannot be considered. The Commission and the CVPC Board of Trustees have concurrent jurisdiction over cases against officials and employees of the said agency. Since the three (3) complaints against Sojor were filed with the Commission and not with the CVPC, then the former already acquired disciplinary jurisdiction over the appellant to the exclusion of the latter agency.[18] (Emphasis supplied) The CSC categorized respondent as a third level official, as defined under its rules, who are under the jurisdiction of the Commission proper. Nevertheless, it adopted the formal charges issued by its regional office and ordered it to proceed with the investigation: Pursuant to the Uniform Rules on Administrative Cases in the Civil Service, Sojor, being a third level official, is within the disciplinary jurisdiction of the Commission Proper. Thus, strictly speaking, the Commission has the sole jurisdiction to issue the formal charge against Sojor. x x x However, since the CSC RO No. VII already issued the formal charges against him and found merit in the said formal charges, the same is adopted. The CSC RO No. VII is authorized to proceed with the formal investigation of the case against Sojor in accordance with the procedure outlined in the aforestated Uniform Rules.[19] (Emphasis supplied) No merit was found by the CSC in respondent's motion for reconsideration and, accordingly, denied it with finality on July 6, 2004.[20] Respondent appealed the CSC resolutions to the CA via a petition for certiorari and prohibition. He alleged that the CSC acted without or in excess of its jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction when it issued the assailed resolutions; that CSC encroached upon the academic freedom of CVPC; and that the power to remove, suspend, and discipline the president of CVPC was exclusively lodged in the BOT of CVPC. CA Disposition On September 29, 2004, the CA issued a writ of preliminary injunction directing the CSC to cease and desist from enforcing its Resolution dated March 30, 2004 and Resolution dated July 6, 2004.[21] Thus, the formal investigation of the administrative charges against Sojor before the CSC-RO was suspended. On June 27, 2005, after giving both parties an opportunity to air their sides, the CA resolved in favor of respondent. It annulled the questioned CSC resolutions and permanently enjoined the CSC from proceeding with the administrative investigation. The dispositive part of the CA decision reads: WHEREFORE, in view of all the foregoing, and finding that the respondent Civil Service Commission acted without jurisdiction in issuing the assailed Resolution Nos. 040321 and 040766 dated March 20, 2004 and July 6, 2004, respectively, the same are hereby ANNULLED and SET ASIDE. The preliminary injunction issued by this Court on September 29, 2004 is hereby made permanent.

SO ORDERED.[22] The CA ruled that the power to appoint carries with it the power to remove or to discipline. It declared that the enactment of R.A. No. 9299 [23] in 2004, which converted CVPC into NORSU, did not divest the BOT of the power to discipline and remove its faculty members, administrative officials, and employees. Respondent was appointed as president of CVPC by the BOT by virtue of the authority granted to it under Section 6 of R.A. No. 8292. [24] The power of the BOT to remove and discipline erring employees, faculty members, and administrative officials as expressly provided for under Section 4 of R.A. No. 8292 is also granted to the BOR of NORSU under Section 7 of R.A. No. 9299. The said provision reads: Power and Duties of Governing Boards. - The governing board shall have the following specific powers and duties in addition to its general powers of administration and exercise of all the powers granted to the board of directors of a corporation under Section 36 of Batas Pambansa Blg. 68, otherwise known as the Corporation Code of the Philippines: xxxx to fix and adjust salaries of faculty members and administrative officials and employees x x x; and to remove them for cause in accordance with the requirements of due process of law. (Emphasis added) The CA added that Executive Order (E.O.) No. 292,[25] which grants disciplinary jurisdiction to the CSC over all branches, subdivisions, instrumentalities, and agencies of the government, including government-owned or controlled corporations with original charters, is a general law. According to the appellate court, E.O. No. 292 does not prevail over R.A. No. 9299,[26] a special law. Issues Petitioner CSC comes to Us, seeking to reverse the decision of the CA on the ground that THE COURT OF APPEALS GRAVELY ERRED IN HOLDING THAT PETITIONER ACTED WITHOUT JURISDICTION IN ISSUING RESOLUTION NO. 040321 DATED MARCH 30, 2004 AND RESOLUTION NO. 04766 DATED JULY 6, 2004.[27] Our Ruling The I. petition Jurisdiction of is the meritorious. CSC

The Constitution grants to the CSC administration over the entire civil service. [28] As defined, the civil service embraces every branch, agency, subdivision, and instrumentality of the government, including every government-owned or controlled corporation.[29] It is further classified into career and non-career service positions. Career service positions are those where: (1) entrance is based on merit and fitness or highly technical qualifications; (2) there is opportunity for advancement to higher career positions; and (3) there is security of tenure. These include: Open Career positions for appointment to which prior qualification in an appropriate 1) examination is required; Closed Career positions which are scientific, or highly technical in nature; these include the faculty and academic staff of state colleges and universities, and scientific and technical positions in scientific or research institutions which shall establish and maintain their own merit systems;

2)

Emergency and seasonal personnel.[34] 3) Positions in the Career Executive Service; namely, Undersecretary, Assistant Secretary, Bureau Director, Assistant Bureau Director, Regional Director, Assistant Regional Director, Chief of Department Service and other officers of equivalent rank as may be identified by the Career Executive Service Board, all of whom are appointed by the President; Career officers, other than those in the Career Executive Service, who are appointed by the President, such as the Foreign Service Officers in the Department of Foreign Affairs; Commissioned officers and enlisted men of the Armed Forces which shall maintain a separate merit system; Personnel of government-owned or controlled corporations, whether performing governmental or proprietary functions, who do not fall under the non-career service; and Permanent laborers, whether skilled, semi-skilled, or unskilled.[30] 7) Career positions are further grouped into three levels. Entrance to the first two levels is determined through competitive examinations, while entrance to the third level is prescribed by the Career Executive Service Board.[31] The positions covered by each level are: The first level shall include clerical, trades, crafts, and custodial service positions a) which involve non-professional or subprofessional work in a non-supervisory or supervisory capacity requiring less than four years of collegiate studies; The second level shall include professional, technical, and scientific positions which involve professional, technical, or scientific work in a non-supervisory or supervisory capacity requiring at least four years of college work up to Division Chief level; and The third level shall cover positions in the Career Executive Service. c) On the other hand, non-career service positions are characterized by: (1) entrance not by the usual tests of merit and fitness; and (2) tenure which is limited to a period specified by law, coterminous with the appointing authority or subject to his pleasure, or limited to the duration of a particular project for which purpose employment was made.[33] The law states: The Non-Career Service shall include: Elective officials and their personal or confidential staff; 1) Secretaries and other officials of Cabinet rank who hold their positions at the pleasure of the President and their personal or confidential staff(s); Chairman and members of commissions and boards with fixed terms of office and their personal or confidential staff; Contractual personnel or those whose employment in the government is in accordance with a special contract to undertake a specific work or job, requiring special or technical skills not available in the employing agency, to be accomplished within a specific period, which in no case shall exceed one year, and performs or accomplishes the specific work or job, under his own responsibility with a minimum of direction and supervision from the hiring agency; and
[32]

5) It is evident that CSC has been granted by the Constitution and the Administrative Code jurisdiction over all civil service positions in the government service, whether career or noncareer. From this grant of general jurisdiction, the CSC promulgated the Revised Uniform Rules on Administrative Cases in the Civil Service.[35] We find that the specific jurisdiction, as spelled out in the CSC rules, did not depart from the general jurisdiction granted to it by law. The jurisdiction of the Regional Office of the CSC and the Commission central office (Commission Proper) is specified in the CSC rules as: Section 4. Jurisdiction of the Civil Service Commission. - The Civil Service Commission shall hear and decide administrative cases instituted by, or brought before it, directly or on appeal, including contested appointments, and shall review decisions and actions of its offices and of the agencies attached to it. Except as otherwise provided by the Constitution or by law, the Civil Service Commission shall have the final authority to pass upon the removal, separation and suspension of all officers and employees in the civil service and upon all matters relating to the conduct, discipline and efficiency of such officers and employees. Section 5. Jurisdiction of the Civil Service Commission Proper. - The Civil Service Commission Proper shall have jurisdiction over the following cases: A. Disciplinary Decisions of Civil Service Regional Offices brought before it on petition

4)

5)

6)

1. for review;

b)

2. Decisions of heads of departments, agencies, provinces, cities, municipalities and other instrumentalities, imposing penalties exceeding thirty days suspension or fine in an amount exceeding thirty days salary brought before it on appeal; 3. 4. appointees; Complaints brought against Civil Service Commission Proper personnel; Complaints against third level officials who are not presidential

5. Complaints against Civil Service officials and employees which are not acted upon by the agencies and such other complaints requiring direct or immediate action, in the interest of justice; 6. Requests for transfer of venue of hearing on cases being heard by Civil Service Regional Offices; 7. Appeals from the Order of Preventive Suspension; and

2)

3)

4)

8. Such other actions or requests involving issues arising out of or in connection with the foregoing enumerations.

B. 1. before it;

Non-Disciplinary Decisions of Civil Service Commission Regional Offices brought

2. clemency;

Requests for favorable recommendation on petition for executive

3. Protests against the appointment, or other personnel actions, involving third level officials; and 4. Such other analogous actions or petitions arising out of or in relation with the foregoing enumerations. Section 6. Jurisdiction of Civil Service Regional Offices. - The Civil Service Commission Regional Offices shall have jurisdiction over the following cases: A. Disciplinary

Section 4 of R.A. No. 8292, or the Higher Education Modernization Act of 1997, under which law respondent was appointed during the time material to the present case, provides that the school's governing board shall have the general powers of administration granted to a corporation. In addition, Section 4 of the law grants to the board the power to remove school faculty members, administrative officials, and employees for cause: Section 4. Powers and Duties of Governing Boards. - The governing board shall have the following specific powers and duties in addition to its general powers of administration and the exercise of all the powers granted to the board of directors of a corporation under Section 36 of Batas Pambansa Blg. 68, otherwise known as the Corporation Code of the Philippines: xxxx h) to fix and adjust salaries of faculty members and administrative officials and employees subject to the provisions of the revised compensation and classification system and other pertinent budget and compensation laws governing hours of service, and such other duties and conditions as it may deem proper; to grant them, at its discretion, leaves of absence under such regulations as it may promulgate, any provisions of existing law to the contrary not withstanding; and to remove them for cause in accordance with the requirements of due process of law. (Emphasis supplied) The above section was subsequently reproduced as Section 7(i) of the succeeding law that converted CVPC into NORSU, R.A. No. 9299. Notably, and in contrast with the earlier law, R.A. No. 9299 now provides that the administration of the university and exercise of corporate powers of the board of the school shall be exclusive: Sec. 4. Administration. - The University shall have the general powers of a corporation set forth in Batas Pambansa Blg. 68, as amended, otherwise known as "The Corporation Code of the Philippines." The administration of the University and the exercise of its corporate powers shall be vested exclusively in the Board of Regents and the president of the University insofar as authorized by the Board. Measured by the foregoing yardstick, there is no question that administrative power over the school exclusively belongs to its BOR. But does this exclusive administrative power extend to the power to remove its erring employees and officials? In light of the other provisions of R.A. No. 9299, respondent's argument that the BOR has exclusive power to remove its university officials must fail. Section 7 of R.A. No. 9299 states that the power to remove faculty members, employees, and officials of the university is granted to the BOR "in addition to its general powers of administration." This provision is essentially a reproduction of Section 4 of its predecessor, R.A. No. 8292, demonstrating that the intent of the lawmakers did not change even with the enactment of the new law. For clarity, the text of the said section is reproduced below: Sec. 7. Powers and Duties of the Board of Regents. - The Board shall have the following specific powers and duties in addition to its general powers of administration and the exercise of all the powers granted to the Board of Directors of a corporation under existing laws: xxxx

1. Complaints initiated by, or brought before, the Civil Service Commission Regional Offices provided that the alleged acts or omissions were committed within the jurisdiction of the Regional Office, including Civil Service examination anomalies or irregularities and the persons complained of are employees of agencies, local or national, within said geographical areas; 2. Complaints involving Civil personnel who are appointees of said office; and 3. 4. Service Commission Regional Office

Petitions to place respondent under Preventive Suspension. Non-Disciplinary

B. 1.

Non-Disciplinary Disapproval of appointments brought before it on appeal;

2. Protests against the appointments of first and second level employees brought before it directly or on appeal. (Emphasis supplied) Respondent, a state university president with a fixed term of office appointed by the governing board of trustees of the university, is a non-career civil service officer. He was appointed by the chairman and members of the governing board of CVPC. By clear provision of law, respondent is a non-career civil servant who is under the jurisdiction of the CSC. II. The power of the BOR to discipline officials and employees is not exclusive. CSC has concurrent jurisdiction over a president of a state university.

i. To fix and adjust salaries of faculty members and administrative officials and employees, subject to the provisions of the Revised Compensation and Position Classification System and other pertinent budget and compensation laws governing hours of service and such other duties and conditions as it may deem proper; to grant them, at its discretion, leaves of absence under such regulations as it may promulgate, any provision of

existing law to the contrary notwithstanding; and to remove them for cause in accordance with the requirements of due process of law.[36](Emphasis supplied) Verily, the BOR of NORSU has the sole power of administration over the university. But this power is not exclusive in the matter of disciplining and removing its employees and officials. Although the BOR of NORSU is given the specific power under R.A. No. 9299 to discipline its employees and officials, there is no showing that such power is exclusive. When the law bestows upon a government body the jurisdiction to hear and decide cases involving specific matters, it is to be presumed that such jurisdiction is exclusive unless it be proved that another body is likewise vested with the same jurisdiction, in which case, both bodies have concurrent jurisdiction over the matter.[37] All members of the civil service are under the jurisdiction of the CSC, unless otherwise provided by law. Being a non-career civil servant does not remove respondent from the ambit of the CSC. Career or non-career, a civil service official or employee is within the jurisdiction of the CSC. This is not a case of first impression.

the respondents in forming the investigating committee. The Civil Service Rules embodied in Executive Order 292 recognize the power of the Secretary and the university, through its governing board, to investigate and decide matters involving disciplinary action against officers and employees under their jurisdiction. Of course under EO 292, a complaint against a state university official may be filed either with the university's Board of Regents or directly with the Civil Service Commission, although the CSC may delegate the investigation of a complaint and for that purpose, may deputize any department, agency, official or group of officials to conduct such investigation.[41] (Emphasis supplied) Thus, CSC validly took cognizance of the administrative complaints directly filed before the regional office, concerning violations of civil service rules against respondent. III. Academic freedom may not be invoked when there are alleged violations of civil service laws and rules. Certainly, academic institutions and personnel are granted wide latitude of action under the principle of academic freedom. Academic freedom encompasses the freedom to determine who may teach, who may be taught, how it shall be taught, and who may be admitted to study.[42] Following that doctrine, this Court has recognized that institutions of higher learning has the freedom to decide for itself the best methods to achieve their aims and objectives, free from outside coercion, except when the welfare of the general public so requires.[43] They have the independence to determine who to accept to study in their school and they cannot be compelled by mandamus to enroll a student.[44] That principle, however, finds no application to the facts of the present case. Contrary to the matters traditionally held to be justified to be within the bounds of academic freedom, the administrative complaints filed against Sojor involve violations of civil service rules. He is facing charges of nepotism, dishonesty, falsification of official documents, grave misconduct, and conduct prejudicial to the best interest of the service. These are classified as grave offenses under civil service rules, punishable with suspension or even dismissal. [45] This Court has held that the guaranteed academic freedom does not give an institution the unbridled authority to perform acts without any statutory basis.[46] For that reason, a school official, who is a member of the civil service, may not be permitted to commit violations of civil service rules under the justification that he was free to do so under the principle of academic freedom. Lastly, We do not agree with respondent's contention that his appointment to the position of president of NORSU, despite the pending administrative cases against him, served as a condonation by the BOR of the alleged acts imputed to him. The doctrine this Court laid down in Salalima v. Guingona, Jr.[47] and Aguinaldo v. Santos[48] are inapplicable to the present circumstances. Respondents in the mentioned cases are elective officials, unlike respondent here who is an appointed official. Indeed, election expresses the sovereign will of the people. [49] Under the principle of vox populi est suprema lex, the re-election of a public official may, indeed, supersede a pending administrative case. The same cannot be said of a reappointment to a non-career position. There is no sovereign will of the people to speak of when the BOR re-appointed respondent Sojor to the post of university president. WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals isREVERSED and SET ASIDE. The assailed Resolutions of the Civil Service Commission are REINSTATED.

In University of the Philippines v. Regino,[38] this Court struck down the claim of exclusive jurisdiction of the UP BOR to discipline its employees. The Court held then: The Civil Service Law (PD 807) expressly vests in the Commission appellate jurisdiction in administrative disciplinary cases involving members of the Civil Service. Section 9(j) mandates that the Commission shall have the power to "hear and decide administrative disciplinary cases instituted directly with it in accordance with Section 37 or brought to it on appeal." And Section 37(a) provides that, "The Commission shall decide upon appeal all administrative disciplinary cases involving the imposition of a penalty of suspension for more than thirty (30) days, or fine in an amount exceeding thirty days' salary, demotion in rank or salary or transfer, removal or dismissal from office." (Emphasis supplied) Under the 1972 Constitution, all government-owned or controlled corporations, regardless of the manner of their creation, were considered part of the Civil Service. Under the 1987 Constitution, only government-owned or controlled corporations with original charters fall within the scope of the Civil Service pursuant to Article IX-B, Section 2(1), which states: "The Civil Service embraces all branches, subdivisions, instrumentalities, and agencies of the government, including government-owned or controlled corporations with original charters." As a mere government-owned or controlled corporation, UP was clearly a part of the Civil Service under the 1973 Constitution and now continues to be so because it was created by a special law and has an original charter. As a component of the Civil Service, UP is therefore governed by PD 807 and administrative cases involving the discipline of its employees come under the appellate jurisdiction of the Civil Service Commission.[39] (Emphasis supplied) In the more recent case of Camacho v. Gloria,[40] this Court lent credence to the concurrent jurisdiction of the CSC when it affirmed that a case against a university official may be filed either with the university's BOR or directly with the CSC. We quote: Further, petitioner contends that the creation of the committee by the respondent Secretary, as Chairman of the USP Board of Regents, was contrary to the Civil Service Rules. However, he cites no specific provision of the Civil Service Law which was violated by

SO ORDERED. YOLANDA M. MERCADO, CHARITO S. DE LEON, DIANA R. LACHICA, MARGARITO M. ALBA, JR., and FELIX A. TONOG, Petitioners,

G.R. No. 183572

Present:

CARPIO, J., Chairperson, versus BRION, DEL CASTILLO, PEREZ, and

*

MENDOZA, JJ.

AMA COMPUTER COLLEGE-PARAAQUE CITY, INC. , Respondent.

Promulgated:

April 13, 2010

x-----------------------------------------------------------------------------------------x DECISION BRION, J.:

The petitioners Yolanda M. Mercado (Mercado), Charito S. De Leon (De Leon), Diana R. Lachica (Lachica), Margarito M. Alba, Jr. (Alba, Jr.,), and Felix A. Tonog (Tonog), all former faculty members of AMA Computer College-Paraaque City, Inc. (AMACC) assail in this petition for review on certiorari[1] the Court of Appeals (CA) decision of November 29,

2007[2] and its resolution of June 20, 2008[3] that set aside the National Labor Relations Commissions (NLRC) resolution dated July 18, 2005.[4]

On September 7, 2000, the petitioners individually received a memorandum from AMACC, through Human Resources Supervisor Mary Grace Beronia, informing them that with the expiration of their contract to teach, their contract would no longer be renewed. [10] The memorandum[11] entitled Notice of Non-Renewal of Contract states in full:

THE FACTUAL ANTECEDENTS

The background facts are not disputed and are summarized below.

In view of the expiration of your contract to teach with AMACCParanaque, We wish to inform you that your contract shall no longer be renewed effective Thirty (30) days upon receipt of this notice. We therefore would like to thank you for your service and wish you good luck as you pursue your career.

AMACC is an educational institution engaged in computer-based education in the country. One of AMACCs biggest schools in the country is its branch at Paraaque City. The petitioners were faculty members who started teaching at AMACC on May 25, 1998. The petitioner Mercado was engaged as a Professor 3, while petitioner Tonog was engaged as an Assistant Professor 2. On the other hand, petitioners De Leon, Lachica and Alba, Jr., were all engaged as Instructor 1.[5] The petitioners executed individual Teachers Contracts for each of the trimesters that they were engaged to teach, with the following common stipulation:[6]

You are hereby instructed to report to the HRD for further instruction. Please bear in mind that as per company policy, you are required to accomplish your clearance and turn-over all documents and accountabilities to your immediate superior.

For your information and guidance 1. POSITION. The TEACHER has agreed to accept a nontenured appointment to work in the College of xxx effective xxx to xxx or for theduration of the last term that the TEACHER is given a teaching load based on the assignment duly approved by the DEAN/SAVP-COO. [Emphasis supplied]

The petitioners amended their labor arbitration complaint to include the charge of illegal dismissal against AMACC. In their Position Paper, the petitioners claimed that their dismissal was illegal because it was made in retaliation for their complaint for monetary benefits and discriminatory practices against AMACC. The petitioners also contended that AMACC failed to give them adequate notice; hence, their dismissal was ineffectual.[12]

For the school year 2000-2001, AMACC implemented new faculty screening guidelines, set forth in its Guidelines on the Implementation of AMACC Faculty Plantilla.[7] Under the new screening guidelines, teachers were to be hired or maintained based on extensive teaching experience, capability, potential, high academic qualifications and research background. The performance standards under the new screening guidelines were also used to determine the present faculty members entitlement to salary increases. The petitioners failed to obtain a passing rating based on the performance standards; hence AMACC did not give them any salary increase.[8]

AMACC contended in response that the petitioners worked under a contracted term under a non-tenured appointment and were still within the three-year probationary period for teachers. Their contracts were not renewed for the following term because they failed to pass the Performance Appraisal System for Teachers (PAST) while others failed to comply with the other requirements for regularization, promotion, or increase in salary. This move, according to AMACC, was justified since the school has to maintain its high academic standards.[13]

The Labor Arbiter Ruling Because of AMACCs action on the salary increases, the petitioners filed a complaint with the Arbitration Branch of the NLRC on July 25, 2000, for underpayment of wages, nonpayment of overtime and overload compensation, 13th month pay, and for discriminatory practices.[9]

On March 15, 2002, Labor Arbiter (LA) Florentino R. Darlucio declared in his decision[14] that the petitioners had been illegally dismissed, and ordered AMACC to reinstate them to their former positions without loss of seniority rights and to pay them full backwages, attorneys fees and 13th month pay. The LA ruled that Article 281 of the Labor Code on probationary employment applied to the case; that AMACC allowed the petitioners to teach

for the first semester of school year 2000-200; that AMACC did not specify who among the petitioners failed to pass the PAST and who among them did not comply with the other requirements of regularization, promotions or increase in salary; and that the petitioners dismissal could not be sustained on the basis of AMACCs vague and general allegations without substantial factual basis.[15] Significantly, the LA found no discrimination in the adjustments for the salary rate of the faculty members based on the performance and other qualification which is an exercise of management prerogative.[16] On this basis, the LA paid no heed to the claims for salary increases.

In a decision issued on November 29, 2007,[19] the CA granted AMACCs petition for certiorari and dismissed the petitioners complaint for illegal dismissal.

The CA ruled that under the Manual for Regulations for Private Schools, a teaching personnel in a private educational institution (1) must be a full time teacher; (2) must have rendered three consecutive years of service; and (3) such service must be satisfactory before he or she can acquire permanent status.

The NLRC Ruling The CA noted that the petitioners had not completed three (3) consecutive years of service (i.e. six regular semesters or nine consecutive trimesters of satisfactory service) and were still within their probationary period; their teaching stints only covered a period of two (2) years and three (3) months when AMACC decided not to renew their contracts on September 7, 2000.

On appeal, the NLRC in a Resolution dated July 18, 2005[17] denied AMACCs appeal for lack of merit and affirmed in totothe LAs ruling. The NLRC, however, observed that the applicable law is Section 92 of the Manual of Regulations for Private Schools (which mandates a probationary period of nine consecutive trimesters of satisfactory service for academic personnel in the tertiary level where collegiate courses are offered on a trimester basis), not Article 281 of the Labor Code (which prescribes a probationary period of six months) as the LA ruled. Despite this observation, the NLRC affirmed the LAs finding of illegal dismissal since the petitioners were terminated on the basis of standards that were only introduced near the end of their probationary period.

The NLRC ruled that the new screening guidelines for the school year 2000-20001 cannot be imposed on the petitioners and their employment contracts since the new guidelines were not imposed when the petitioners were first employed in 1998. According to the NLRC, the imposition of the new guidelines violates Section 6(d) of Rule I, Book VI of the Implementing Rules of the Labor Code, which provides that in all cases of probationary employment, the employer shall make known to the employee the standards under which he will qualify as a regular employee at the time of his engagement. Citing our ruling in Orient Express Placement Philippines v. NLRC,[18] the NLRC stressed that the rudiments of due process demand that employees should be informed beforehand of the conditions of their employment as well as the basis for their advancement.

The CA effectively found reasonable basis for AMACC not to renew the petitioners contracts. To the CA, the petitioners were not actually dismissed; their respective contracts merely expired and were no longer renewed by AMACC because they failed to satisfy the schools standards for the school year 2000-2001 that measured their fitness and aptitude to teach as regular faculty members. The CA emphasized that in the absence of any evidence of bad faith on AMACCs part, the court would not disturb or nullify its discretion to set standards and to select for regularization only the teachers who qualify, based on reasonable and non-discriminatory guidelines.

The CA disagreed with the NLRCs ruling that the new guidelines for the school year 2000-20001 could not be imposed on the petitioners and their employment contracts. The appellate court opined that AMACC has the inherent right to upgrade the quality of computer education it offers to the public; part of this pursuit is the implementation of continuing evaluation and screening of its faculty members for academic excellence. The CA noted that the nature of education AMACC offers demands that the school constantly adopt progressive performance standards for its faculty to ensure that they keep pace with the rapid developments in the field of information technology.

AMACC elevated the case to the CA via a petition for certiorari under Rule 65 of the Rules of Court. It charged that the NLRC committed grave abuse of discretion in: (1) ruling that the petitioners were illegally dismissed; (2) refusing to recognize and give effect to the petitioners valid term of employment; (3) ruling that AMACC cannot apply the performance standards generally applicable to all faculty members; and (4) ordering the petitioners reinstatement and awarding them backwages and attorneys fees.

Finally, the CA found that the petitioners were hired on a non-tenured basis and for a fixed and predetermined term based on the Teaching Contract exemplified by the contract between the petitioner Lachica and AMACC. The CA ruled that the non-renewal of the petitioners teaching contracts is sanctioned by the doctrine laid down in Brent School, Inc. v. Zamora[20] where the Court recognized the validity of contracts providing for fixed-period employment.

The CA Ruling THE PETITION

The petitioners cite the following errors in the CA decision:[21] 1) The CA gravely erred in reversing the LA and NLRC illegal dismissal rulings; and 2) The CA gravely erred in not ordering their reinstatement with full, backwages. The petitioners submit that the CA should not have disturbed the findings of the LA and the NLRC that they were illegally dismissed; instead, the CA should have accorded great respect, if not finality, to the findings of these specialized bodies as these findings were supported by evidence on record. Citing our ruling in Soriano v. National Labor Relations Commission,[22] the petitioners contend that in certiorari proceedings under Rule 65 of the Rules of Court, the CA does not assess and weigh the sufficiency of evidence upon which the Labor Arbiter and the NLRC based their conclusions. They submit that the CA erred when it substituted its judgment for that of the Labor Arbiter and the NLRC who were the triers of facts who had the opportunity to review the evidence extensively. On the merits, the petitioners argue that the applicable law on probationary employment, as explained by the LA, is Article 281 of the Labor Code which mandates a period of six (6) months as the maximum duration of the probationary period unless there is a stipulation to the contrary; that the CA should not have disturbed the LAs conclusion that the AMACC failed to support its allegation that they did not qualify under the new guidelines adopted for the school year 2000-2001; and that they were illegally dismissed; their employment was terminated based on standards that were not made known to them at the time of their engagement. On the whole, the petitioners argue that the LA and the NLRC committed no grave abuse of discretion that the CA can validly cite. THE CASE FOR THE RESPONDENT In their Comment,[23] AMACC notes that the petitioners raised no substantial argument in support of their petition and that the CA correctly found that the petitioners were hired on a non-tenured basis and for a fixed or predetermined term. AMACC stresses that the CA was correct in concluding that no actual dismissal transpired; it simply did not renew the petitioners respective employment contracts because of their poor performance and failure to satisfy the schools standards. AMACC also asserts that the petitioners knew very well that the applicable standards would be revised and updated from time to time given the nature of the teaching profession. The petitioners also knew at the time of their engagement that they must comply with the schools regularization policies as stated in the Faculty Manual. Specifically, they must obtain a passing rating on the Performance Appraisal for Teachers (PAST) the primary instrument to measure the performance of faculty members. Since the petitioners were not actually dismissed, AMACC submits that the CA correctly ruled that they are not entitled to reinstatement, full backwages and attorneys fees. THE COURTS RULING We find the petition meritorious. The CAs Review of Factual Findings under Rule 65 We agree with the petitioners that, as a rule in certiorari proceedings under Rule 65 of the Rules of Court, the CA does not assess and weigh each piece of evidence introduced in the case. The CA only examines the factual findings of the NLRC to determine whether or not the conclusions are supported by substantial evidence whose absence points to grave abuse of discretion amounting to lack or excess of jurisdiction.[24] In the recent case of Protacio v. Laya Mananghaya & Co.,[25] we emphasized that: As a general rule, in certiorari proceedings under Rule 65 of the Rules of Court, the appellate court does not assess and weigh the sufficiency of evidence upon which the Labor Arbiter and the NLRC based their conclusion. The query in this proceeding is limited to the determination of whether or not the NLRC acted without or in excess of its jurisdiction or with grave abuse of discretion in rendering its decision. However, as an exception, the appellate court may examine and measure the factual findings of the NLRC if the same are not supported by substantial evidence. The Court has not hesitated to affirm the appellate courts reversals of the decisions of labor tribunals if they are not supported by substantial evidence. [Emphasis supplied] As discussed below, our review of the records and of the CA decision shows that the CA erred in recognizing that grave abuse of discretion attended the NLRCs conclusion that the petitioners were illegally dismissed. Consistent with this conclusion, the evidence on record show that AMACC failed to discharge its burden of proving by substantial evidence the just cause for the non-renewal of the petitioners contracts.

In Montoya v. Transmed Manila Corporation,[26] we laid down our basic approach in the review of Rule 65 decisions of the CA in labor cases, as follows:

In a Rule 45 review, we consider the correctness of the assailed CA decision, in contrast with the review for jurisdictional error that we undertake under Rule 65. Furthermore, Rule 45 limits us to the review of questions of law raised against the assailed CA decision. In ruling for legal correctness, we have to view the CA decision in the same context that the petition for certiorari it ruled upon was presented to it; we have to examine the CA decision from the prism of whether it correctly determined the presence or absence of grave abuse of discretion in the NLRC decision before it, not on the basis of whether the NLRC decision on the merits of the case was correct. In other words, we have to be keenly aware that the CA

undertook a Rule 65 review, not a review on appeal, of the NLRC decision challenged before it. This is the approach that should be basic in a Rule 45 review of a CA ruling in a labor case. In question form, the question to ask is: Did the CA correctly determine whether the NLRC committed grave abuse of discretion in ruling on the case?

b. Fixed-period Employment The use of employment for fixed periods during the teachers probationary period is likewise an accepted practice in the teaching profession. We mentioned this in passing in Magis Young Achievers Learning Center v. Adelaida P. Manalo,[28] albeit a case that involved elementary, not tertiary, education, and hence spoke of a school year rather than a semester or a trimester. We noted in this case:

Following this approach, our task is to determine whether the CA correctly found that the NLRC committed grave abuse of discretion in ruling that the petitioners were illegally dismissed.

Legal Environment in the Employment of Teachers

a. Rule on Employment on Probationary Status

A reality we have to face in the consideration of employment on probationary status of teaching personnel is that they are not governed purely by the Labor Code. The Labor Code is supplemented with respect to the period of probation by special rules found in the Manual of Regulations for Private Schools.[27] On the matter of probationary period, Section 92 of these regulations provides:

Section 92. Probationary Period. Subject in all instances to compliance with the Department and school requirements, the probationary period for academic personnel shall not be more than three (3) consecutive years of satisfactory service for those in the elementary and secondary levels, six (6) consecutive regular semesters of satisfactory service for those in the tertiary level, and nine (9) consecutive trimesters of satisfactory service for those in the tertiary level where collegiate courses are offered on a trimester basis. [Emphasis supplied]

The common practice is for the employer and the teacher to enter into a contract, effective for one school year. At the end of the school year, the employer has the option not to renew the contract, particularly considering the teachers performance. If the contract is not renewed, the employment relationship terminates. If the contract is renewed, usually for another school year, the probationary employment continues. Again, at the end of that period, the parties may opt to renew or not to renew the contract. If renewed, this second renewal of the contract for another school year would then be the last year since it would be the third school year of probationary employment. At the end of this third year, the employer may now decide whether to extend a permanent appointment to the employee, primarily on the basis of the employee having met the reasonable standards of competence and efficiency set by the employer. For the entire duration of this three-year period, the teacher remains under probation. Upon the expiration of his contract of employment, being simply on probation, he cannot automatically claim security of tenure and compel the employer to renew his employment contract. It is when the yearly contract is renewed for the third time that Section 93 of the Manual becomes operative, and the teacher then is entitled to regular or permanent employment status.

It is important that the contract of probationary employment specify the period or term of its effectivity. The failure to stipulate its precise duration could lead to the inference that the contract is binding for the full three-year probationary period.

The CA pointed this out in its decision (as the NLRC also did), and we confirm the correctness of this conclusion. Other than on the period, the following quoted portion of Article 281 of the Labor Code still fully applies: x x x The services of an employee who has been engaged on a probationary basis may be terminated for a just cause when he fails to qualify as a regular employee in accordance with reasonable standards made known by the employer to the employee at the time of his engagement. An employee who is allowed to work after a probationary period shall be considered a regular employee. [Emphasis supplied]

We have long settled the validity of a fixed-term contract in the case Brent School, Inc. v. Zamora[29] that AMACC cited. Significantly, Brent happened in a school setting. Care should be taken, however, in reading Brent in the context of this case as Brentdid not involve any probationary employment issue; it dealt purely and simply with the validity of a fixed-term employment under the terms of the Labor Code, then newly issued and which does not expressly contain a provision on fixed-term employment. c. Academic and Management Prerogative

Last but not the least factor in the academic world, is that a school enjoys academic freedom a guarantee that enjoys protection from the Constitution no less. Section 5(2) Article XIV of the Constitution guarantees all institutions of higher learning academic freedom.
[30]

and Fixed-term Employment

The institutional academic freedom includes the right of the school or college to decide and adopt its aims and objectives, and to determine how these objections can best be attained, free from outside coercion or interference, save possibly when the overriding public welfare calls for some restraint. The essential freedoms subsumed in the term academic freedom encompass the freedom of the school or college to determine for itself: (1) who may teach; (2) who may be taught; (3) how lessons shall be taught; and (4) who may be admitted to study.[31]

The existence of the term-to-term contracts covering the petitioners employment is not disputed, nor is it disputed that they were on probationary status not permanent or regular status from the time they were employed on May 25, 1998 and until the expiration of their Teaching Contracts on September 7, 2000. As the CA correctly found, their teaching stints only covered a period of at least seven (7) consecutive trimesters or two (2) years and three (3) months of service. This case, however, brings to the fore the essential question of which, between the two factors affecting employment, should prevail given AMACCs position that the teachers contracts expired and it had the right not to renew them. In other words, should the teachers probationary status be disregarded simply because the contracts were fixed-term? The provision on employment on probationary status under the Labor Code[35] is a primary example of the fine balancing of interests between labor and management that the Code has institutionalized pursuant to the underlying intent of the Constitution.[36] On the one hand, employment on probationary status affords management the chance to fully scrutinize the true worth of hired personnel before the full force of the security of tenure guarantee of the Constitution comes into play.[37] Based on the standards set at the start of the probationary period, management is given the widest opportunity during the probationary period to reject hirees who fail to meet its own adopted but reasonable standards.[38] These standards, together with the just[39] and authorized causes[40] for termination of employment the Labor Code expressly provides, are the grounds available to terminate the employment of a teacher on probationary status. For example, the school may impose reasonably stricter attendance or report compliance records on teachers on probation, and reject a probationary teacher for failing in this regard, although the same attendance or compliance record may not be required for a teacher already on permanent status. At the same time, the same just and authorizes causes for dismissal under the Labor Code apply to probationary teachers, so that they may be the first to be laid-off if the school does not have enough students for a given semester or trimester. Termination of employment on this basis is an authorized cause under the Labor Code.[41] Labor, for its part, is given the protection during the probationary period of knowing the company standards the new hires have to meet during the probationary period, and to be judged on the basis of these standards, aside from the usual standards applicable to employees after they achieve permanent status. Under the terms of the Labor Code, these standards should be made known to the teachers on probationary status at the start of their probationary period, or at the very least under the circumstances of the present case, at the start of the semester or the trimester during which the probationary standards are to be applied. Of critical importance in invoking a failure to meet the probationary standards, is that the school should show as a matter of due process how these standards have been applied. This is effectively the second notice in a dismissal situation that the law requires as a due process guarantee supporting the security of tenure provision,[42] and is in furtherance, too, of the basic rule in employee dismissal that the employer carries the burden of justifying a dismissal.[43] These rules ensure compliance with the limited security of tenure guarantee the law extends to probationary employees.[44] When fixed-term employment is brought into play under the above probationary period rules, the situation as in the present case may at first blush look muddled as fixed-

AMACCs right to academic freedom is particularly important in the present case, because of the new screening guidelines for AMACC faculty put in place for the school year 2000-2001. We agree with the CA that AMACC has the inherent right to establish high standards of competency and efficiency for its faculty members in order to achieve and maintain academic excellence. The schools prerogative to provide standards for its teachers and to determine whether or not these standards have been met is in accordance with academic freedom that gives the educational institution the right to choose who should teach. [32] In Pea v. National Labor Relations Commission,[33] we emphasized:

It is the prerogative of the school to set high standards of efficiency for its teachers since quality education is a mandate of the Constitution. As long as the standards fixed are reasonable and not arbitrary, courts are not at liberty to set them aside. Schools cannot be required to adopt standards which barely satisfy criteria set for government recognition.

The same academic freedom grants the school the autonomy to decide for itself the terms and conditions for hiring its teacher, subject of course to the overarching limitations under the Labor Code. Academic freedom, too, is not the only legal basis for AMACCs issuance of screening guidelines. The authority to hire is likewise covered and protected by its management prerogative the right of an employer to regulate all aspects of employment, such as hiring, the freedom to prescribe work assignments, working methods, process to be followed, regulation regarding transfer of employees, supervision of their work, lay-off and discipline, and dismissal and recall of workers.[34] Thus, AMACC has every right to determine for itself that it shall use fixed-term employment contracts as its medium for hiring its teachers. It also acted within the terms of the Manual of Regulations for Private Schools when it recognized the petitioners to be merely on probationary status up to a maximum of nine trimesters.

The Conflict: Probationary Status

term employment is in itself a valid employment mode under Philippine law and jurisprudence.[45] The conflict, however, is more apparent than real when the respective nature of fixed-term employment and of employment on probationary status are closely examined. The fixed-term character of employment essentially refers to the period agreed upon between the employer and the employee; employment exists only for the duration of the term and ends on its own when the term expires. In a sense, employment on probationary status also refers to a period because of the technical meaning probation carries in Philippine labor law a maximum period of six months, or in the academe, a period of three years for those engaged in teaching jobs. Their similarity ends there, however, because of the overriding meaning that being on probation connotes, i.e., a process of testing and observing the character or abilities of a person who is new to a role or job.[46] Understood in the above sense, the essentially protective character of probationary status for management can readily be appreciated. But this same protective character gives rise to the countervailing but equally protective rule that the probationary period can only last for a specific maximum period and under reasonable, well-laid and properly communicated standards. Otherwise stated, within the period of the probation, any employer move based on the probationary standards and affecting the continuity of the employment must strictly conform to the probationary rules. Under the given facts where the school year is divided into trimesters, the school apparently utilizes its fixed-term contracts as a convenient arrangement dictated by the trimestral system and not because the workplace parties really intended to limit the period of their relationship to any fixed term and to finish this relationship at the end of that term. If we pierce the veil, so to speak, of the parties so-called fixed-term employment contracts, what undeniably comes out at the core is a fixed-term contract conveniently used by the school to define and regulate its relations with its teachers during their probationary period. To be sure, nothing is illegitimate in defining the school-teacher relationship in this manner. The school, however, cannot forget that its system of fixed-term contract is a system that operates during the probationary period and for this reason is subject to the terms of Article 281 of the Labor Code. Unless this reconciliation is made, the requirements of this Article on probationary status would be fully negated as the school may freely choose not to renew contracts simply because their terms have expired. The inevitable effect of course is to wreck the scheme that the Constitution and the Labor Code established to balance relationships between labor and management. Given the clear constitutional and statutory intents, we cannot but conclude that in a situation where the probationary status overlaps with a fixed-term contract not specifically used for the fixed term it offers, Article 281 should assume primacy and the fixed-period character of the contract must give way. This conclusion is immeasurably strengthened by the petitioners and the AMACCs hardly concealed expectation that the employment on probation could lead to permanent status, and that the contracts are renewable unless the petitioners fail to pass the schools standards. To highlight what we mean by a fixed-term contract specifically used for the fixed term it offers, a replacement teacher, for example, may be contracted for a period of one year to temporarily take the place of a permanent teacher on a one-year study leave. The

expiration of the replacement teachers contracted term, under the circumstances, leads to no probationary status implications as she was never employed on probationary basis; her employment is for a specific purpose with particular focus on the term and with every intent to end her teaching relationship with the school upon expiration of this term. If the school were to apply the probationary standards (as in fact it says it did in the present case), these standards must not only be reasonable but must have also been communicated to the teachers at the start of the probationary period, or at the very least, at the start of the period when they were to be applied. These terms, in addition to those expressly provided by the Labor Code, would serve as the just cause for the termination of the probationary contract. As explained above, the details of this finding of just cause must be communicated to the affected teachers as a matter of due process. AMACC, by its submissions, admits that it did not renew the petitioners contracts because they failed to pass the Performance Appraisal System for Teachers (PAST) and other requirements for regularization that the school undertakes to maintain its high academic standards.[47] The evidence is unclear on the exact terms of the standards, although the school also admits that these were standards under the Guidelines on the Implementation of AMACC Faculty Plantilla put in place at the start of school year 2000-2001. While we can grant that the standards were duly communicated to the petitioners and could be applied beginning the 1sttrimester of the school year 2000-2001, glaring and very basic gaps in the schools evidence still exist. The exact terms of the standards were never introduced as evidence; neither does the evidence show how these standards were applied to the petitioners.[48] Without these pieces of evidence (effectively, the finding of just cause for the non-renewal of the petitioners contracts), we have nothing to consider and pass upon as valid or invalid for each of the petitioners. Inevitably, the non-renewal (or effectively, the termination of employment of employees on probationary status) lacks the supporting finding of just cause that the law requires and, hence, is illegal. In this light, the CA decision should be reversed. Thus, the LAs decision, affirmed as to the results by the NLRC, should stand as the decision to be enforced, appropriately recomputed to consider the period of appeal and review of the case up to our level. Given the period that has lapsed and the inevitable change of circumstances that must have taken place in the interim in the academic world and at AMACC, which changes inevitably affect current school operations, we hold that - in lieu of reinstatement - the petitioners should be paid separation pay computed on a trimestral basis from the time of separation from service up to the end of the complete trimester preceding the finality of this Decision.[49] The separation pay shall be in addition to the other awards, properly recomputed, that the LA originally decreed. WHEREFORE, premises considered, we hereby GRANT the petition, and, consequently, REVERSE and SET ASIDE the Decision of the Court of Appeals dated November 29, 2007 and its Resolution dated June 20, 2008 in CA-G.R. SP No. 96599. The Labor Arbiters decision of March 15, 2002, subsequently affirmed as to the results by the National Labor Relations Commission, stands and should be enforced with appropriate recomputation to take into account the date of the finality of this Decision.

In lieu of reinstatement, AMA Computer College-Paraaque City, Inc. is hereby DIRECTED to pay separation pay computed on a trimestral basis from the time of separation from service up to the end of the complete trimester preceding the finality of this Decision. For greater certainty, the petitioners are entitled to: (a) backwages and 13th month pay computed from September 7, 2000 (the date AMA Computer College-Paraaque City, Inc. illegally dismissed the petitioners) up to the finality of this Decision; (b) monthly honoraria (if applicable) computed from September 7, 2000 (the time of separation from service) up to the finality of this Decision; and (c) separation pay on a trimestral basis from September 7, 2000 (the time of separation from service) up to the end of the complete trimester preceding the finality of this Decision.

RESOLUTION

CALLEJO, SR., J.:

In their Letter dated November 19, 2001 addressed to Executive Judge Valerio M. Salazar, Regional Trial Court of Iligan City, several Muslim employees in the different courts in the said city request that they be allowed to enjoy the following privileges:

The labor arbiter is hereby ORDERED to make another re-computation according to the above directives. No costs.

SO ORDERED. RE: REQUEST OF MUSLIM EMPLOYEES IN THE DIFFERENT COURTS IN ILIGAN CITY (RE: OFFICE HOURS) A.M. No. 02-2-10-SC Present: DAVIDE, JR., C.J., PUNO, PANGANIBAN, QUISUMBING, YNARES-SANTIAGO, SANDOVAL-GUTIERREZ, CARPIO, AUSTRIA-MARTINEZ, CORONA, CARPIO MORALES, CALLEJO, SR., AZCUNA, TINGA, CHICO-NAZARIO, and GARCIA, JJ. Promulgated: December 14, 2005 x------------------------------------ --------------x

1. to hold office hours from 7:30 a.m. to 3:30 p.m. without lunch break or coffee breaks during the month of Ramadan;

Section 3 of the same law, as amended by P.D. No. 322, further provides that:

2. to be excused from work from 10:00 a.m. to 2:00 p.m. every Friday (Muslim Prayer Day) during the entire calendar year.

Judge Salazar forwarded the said letter-request to the Office of the Court Administrator (OCA). Judge Salazar expressed his conformity with the first request, i.e., allowing them to hold office from 7:30 a.m. to 3:30 p.m. without any break during the month ofRamadan. However, he expressed some misgivings about the second request, i.e., excusing them from work from 10:00 a.m. to 2:00 p.m. every Friday during the entire calendar year.

Sec. 3. (a) During the fasting season on the month of Ramadan, all Muslim employees in the national government, government-owned or controlled corporations, provinces, cities, municipalities and other instrumentalities shall observe office hours from seven-thirty in the morning (7:30 a.m.) to three-thirty in the afternoon (3:30 p.m.) without lunch break or coffee breaks, and that there shall be no diminution of salary or wages, provided, that the employee who is not fasting is not entitled to the benefit of this provision.

(b) Regulations for the implementation of this section shall be issued together with the implementing directives on Muslim holidays. In support of their requests, the Muslim employees invoke Presidential Decree (P.D.) No. 291[1] as amended by P.D. No. 322[2] enacted by then President Ferdinand E. Marcos. The avowed purpose of P.D. No. 291 was to reinforce national unity by recognizing Muslim holidays and making them part of our national holidays. Section 2 thereof, as amended by P.D. No. 322, provides that the following are recognized Muslim holidays:

Pursuant thereto, the Civil Service Commission (CSC) promulgated Resolution No. 81-1277 dated November 13, 1981 which states in part:

a. Eid-ul-Fitr (Hariraya Puasa) - which falls on the 1st day of the lunar month of Shawwal commemorating the end of the fasting season; b. Eid-ul-Adha (Hariraya Haj) - which falls on the 10th day of the 12th Lunar month of Zul Hajj; c. Mauledan Nabi - Birthday of Prophet Mohammad (P.B.U.H), which falls on the 12th day of the 3rd Lunar month of Rabbiol-Awwal; d. Lailatul Isra Wal Miraj - (Ascension) which falls on the 27th day of the 8th Lunar month of Rajjab; e. Muharram (Ashura) - which falls on the 10th Lunar month of Muharram; and f. Amon Jaded (New Year) - which falls on the 1st day of the 1st Lunar month of Muharram.

2. During Ramadan the Fasting month (30 days) of the Muslims, the Civil Service official time of 8 oclock to 12 oclock and 1 oclock to 5 oclock is hereby modified to 7:30 A.M. to 3:30 P.M. without noon break and the difference of 2 hours is not counted as undertime;

3. During Friday, the Muslim pray day, Muslims are excused from work from 10 oclock in the morning to 2 oclock in the afternoon.

Moreover, in its Resolution No. 00-0227 dated January 26, 2000, the CSC clarified that the term Friday in the above resolution is not limited to the Fridays during the month of Ramadan, but refers to all Fridays of the

Muslims employees in the government are excused from reporting to office during these holidays in order that they may be able to properly observe them.

calendar year. However, in order not to run afoul of Section 5, [3] Rule XVII of the Omnibus Rules Implementing Book V of Executive Order (E.O.) No. 292[4] which enjoins civil servants to render public service not less than eight hours a day or forty (40) hours a week, the CSC prescribes the adoption of a flexible working schedule to accommodate the Muslims Friday Prayer Day subject to certain conditions, e.g., the flexible working hours shall not start earlier than 7:00 a.m. and end not later than 7:00 p.m.[5]

In the Resolution dated October 1, 2002, the Court required the Court Administrator to study the matter. In compliance therewith, Court Administrator Presbitero J. Velasco, Jr. recommends that the Muslim employees in the Judiciary be allowed to hold flexible office hours from 7:30 a.m. to 3:30 p.m. without break during the month of Ramadan. Further, that they be excused from work from 10:00 a.m. to 2:00 p.m. every Friday to allow them to attend the Muslim Prayer Day. However, to compensate for the lost hours, they should be required to observe flexible working schedule which should start from 7:00 a.m. to 10:00 a.m. and from 2:00 p.m. to 7:00 p.m. every Friday. In that way, the working hours mandated by the civil service rules is complied with. The recommendation of the Court Administrator with respect to the matter of allowing the Muslim employees in the Judiciary to hold flexible office hours from 7:30 a.m. to 3:30 p.m. without break during the month of Ramadan is well taken. The same has statutory basis in Section 3 (a) of P.D. No. 291, as amended by P.D. No. 322, which categorically states that [d]uring the fasting season in the month of Ramadan, all Muslim employees in the national government, government-owned or controlled corporations, provinces, cities, municipalities and other instrumentalities shall observe office hours from seven-thirty in the morning (7:30 a.m.) to three-thirty in the afternoon (3:30 p.m.) without lunch break or coffee breaks, and that there shall be no diminution of salary or wages ...

The Court, however, is constrained to deny for lack of statutory basis the request of the Muslim employees to be excused from work from 10:00 a.m. to 2:00 p.m. every Friday to allow them to attend the Muslim Prayer Day. As correctly observed by Atty. Edna Dio, Chief, Office of the Court Attorney, in her Report dated May 13, 2005, the CSC exceeded its authority insofar as it declared in Resolution No. 81-1277 and Resolution No. 00-0227 that Muslim employees are excused from work from 10:00 a.m. to 2:00 p.m.

every Friday subject to certain conditions. CSC Resolution No. 81-1277 was purportedly issued pursuant to Sections 2 and 5 of P.D. No. 291, as amended by P.D. No 322, but neither of the two decrees mention Friday, the Muslim Prayer Day as one of the recognized holidays.

The Court is not unmindful that the subject requests are grounded on Section 5, Article III of the Constitution:

in fact, cherish any religious conviction as he and he alone sees fit. However absurd his beliefs may be to others, even if they be hostile and heretical to the majority, he has full freedom to believe as he pleases. He may not be required to prove his beliefs. He may not be punished for his inability to do so. Religion, after all, is a matter of faith. Men may believe what they cannot prove. Every one has a right to his beliefs and he may not be called to account because he cannot prove what he believes.

No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. No religious test shall be required for the exercise of civil and political rights.

(2) Freedom to Act on Ones Beliefs

This provision contains two aspects: (1) the non-establishment clause; and (2) the free exercise clause. The subject requests are based on the latter and in interpreting this clause (the free exercise clause) embodied in the Constitution, the Court has consistently adhered to the doctrine that:

But where the individual externalizes his beliefs in acts or omissions that affect the public, his freedom to do so becomes subject to the authority of the State. As great as this liberty may be, religious freedom, like all other rights guaranteed in the Constitution, can be enjoyed only with a proper regard for the rights of others. It is error to think that the mere invocation of religious freedom will stalemate the State and render it impotent in protecting the general welfare. The inherent police power can be exercised to prevent religious practices inimical to society. And this is true even if such practices are pursued out of sincere religious conviction and not merely for the purpose of evading the reasonable requirements or prohibitions of the law.

The right to religious profession and worship has a two-fold aspect, viz., freedom to believe and freedom to act on ones beliefs. The first is absolute as long as the belief is confined within the realm of thought. The second is subject to regulation where the belief is translated into external acts that affect the public welfare.[6]

Justice Frankfurter put it succinctly: The constitutional provision on religious freedom terminated disabilities, it did not create new privileges. It gave religious liberty, not civil immunity. Its essence is freedom from conformity to religious dogma, not freedom from conformity to law because of religious dogma.[7]

Justice Isagani A. Cruz explained these two concepts in this wise:

(1) Freedom to Believe

The Court recognizes that the observance of Ramadan and the Friday Muslim Prayer Day is integral to the Islamic faith. However, while the observance of Ramadan and allowing the Muslim employees in the Judiciary to hold flexible office hours from 7:30 a.m. to 3:30 p.m. without any break during the month of Ramadan finds support in Section 3 (a) of P.D. No. 291, as amended by P.D. No. 322, there is no such basis to excuse them from work from 10:00 a.m. to 2:00 p.m. every Friday, the Muslim Prayer Day, during the entire calendar year.

The individual is free to believe (or disbelieve) as he pleases concerning the hereafter. He may indulge his own theories about life and death; worship any god he chooses, or none at all; embrace or reject any religion; acknowledge the divinity of God or of any being that appeals to his reverence; recognize or deny the immortality of his soul

On the other hand, the need of the State to prescribe government office hours as well as to enforce them uniformly to all civil servants, Christians and Muslims alike, cannot be disregarded. Underlying Section 5,[8] Rule XVII of the Omnibus Rules Implementing Book V of E.O. No. 292 is the interest of the general public to be assured of continuous government service during office hours every Monday through Friday. The said rule enjoins all civil

servants, of whatever religious denomination, to render public service of no less than eight hours a day or forty (40) hours a week.

ALCALA, LEONARDO DIZON, SALVADOR GELSANO and BENITO LAUGO, petitioners, vs. BISHOP PORFIRIO B. DE LA CRUZ, REV. FR. RUSTOM FLORANO and DELFIN BORDAS, respondents. DECISION CORONA, J.: This is an appeal under Rule 45 of the Revised Rules of Court of the decision of the Court of Appeals in CA-G.R. SP No. 45480 which reversed and set aside the decision of the Regional Trial Court of Surigao City, Branch 32 in Civil Case No. 4907 and ordered said case dismissed for lack of jurisdiction. The antecedents show that petitioners were lay members of the Philippine Independent Church (PIC) in Socorro, Surigao del Norte. Respondents Porfirio de la Cruz and Rustom Florano were the bishop and parish priest, respectively, of the same church in that locality. Petitioners, led by Dominador Taruc, clamored for the transfer of Fr. Florano to another parish but Bishop de la Cruz denied their request. It appears from the records that the family of Fr. Floranos wife belonged to a political party opposed to petitioner Tarucs, thus the animosity between the two factions with Fr. Florano being identified with his wifes political camp. Bishop de la Cruz, however, found this too flimsy a reason for transferring Fr. Florano to another parish. Meanwhile, hostility among the members of the PIC in Socorro, Surigao del Norte worsened when petitioner Taruc tried to organize an open mass to be celebrated by a certain Fr. Renato Z. Ambong during the town fiesta of Socorro. When Taruc informed Bishop de la Cruz of his plan, the Bishop tried to dissuade him from pushing through with it because Fr. Ambong was not a member of the clergy of the diocese of Surigao and his credentials as a parish priest were in doubt. The Bishop also appealed to petitioner Taruc to refrain from committing acts inimical and prejudicial to the best interests of the PIC. He likewise advised petitioners to air their complaints before the higher authorities of PIC if they believed they had valid grievances against him, the parish priest, the laws and canons of the PIC. Bishop de la Cruz, however, failed to stop Taruc from carrying out his plans. On June 19, 1993, at around 3:00 p.m., Taruc and his sympathizers proceeded to hold the open mass with Fr. Ambong as the celebrant. On June 28, 1993, Bishop de la Cruz declared petitioners expelled/excommunicated from the Philippine Independent Church for reasons of: (1) disobedience to duly constituted authority in the Church;

To allow the Muslim employees in the Judiciary to be excused from work from 10:00 a.m. to 2:00 p.m. every Friday (Muslim Prayer Day) during the entire calendar year would mean a diminution of the prescribed government working hours. For then, they would be rendering service twelve (12) hours less than that required by the civil service rules for each month. Further, this would encourage other religious denominations to request for similar treatment. The performance of religious practices, whether by the Muslim employees or those belonging to other religious denominations, should not prejudice the courts and the public. Indeed, the exercise of religious freedom does not exempt anyone from compliance with reasonable requirements of the law, including civil service laws.

In fine, the remedy of the Muslim employees, with respect to their request to be excused from work from 10:00 a.m. to 2:00 p.m. every Friday during the entire calendar year, is legislative, which is to ask Congress to enact a legislation expressly exempting them from compliance with the prescribed government working hours.

ACCORDINGLY, the Court resolved to:

1. GRANT the request to allow the Muslim employees in the Judiciary to hold office hours from 7:30 a.m. to 3:30 p.m. without break during the month of Ramadan pursuant to Section 3 (a) of Presidential Decree No. 291, as amended by Presidential Decree No. 322; and 2. DENY for lack of legal basis the request that the Muslim employees in the Judiciary be excused from work from 10:00 a.m. to 2:00 p.m. every Friday, the Muslim Prayer Day, during the entire calendar year.

SO ORDERED.

(2) inciting dissension, resulting in division in the Parish of Our Mother of Perpetual Help, Iglesia Filipina Independiente, Socorro, Surigao del Norte when they celebrated an open Mass at the Plaza on June 19, 1996; and [G.R. No. 144801. March 10, 2005] (3) for threatening to forcibly occupy the Parish Church causing anxiety and fear among the general membership.[1] Petitioners appealed to the Obispo Maximo and sought reconsideration of the above decision. In his letter to Bishop de la Cruz, the Obispo Maximo opined that Fr. Florano

DOMINADOR L. TARUC, WILBERTO DACERA, NICANOR GALANIDA, RENERIO CANTA, JERRY CANTA, CORDENCIO CONSIGNA, SUSANO

should step down voluntarily to avert the hostility and enmity among the members of the PIC parish in Socorro but stated that: I do not intervene in your diocesan decision in asking Fr. Florano to vacate Socorro parish.[2] In the meantime, Bishop de la Cruz was reassigned to the diocese of Odmoczan and was replaced by Bishop Rhee M. Timbang. Like his predecessor, Bishop Timbang did not find a valid reason for transferring Fr. Florano to another parish. He issued a circular denying petitioners persistent clamor for the transfer/re-assignment of Fr. Florano. Petitioners were informed of such denial but they continued to celebrate mass and hold other religious activities through Fr. Ambong who had been restrained from performing any priestly functions in the PIC parish of Socorro, Surigao del Norte. Because of the order of expulsion/excommunication, petitioners filed a complaint for damages with preliminary injunction against Bishop de la Cruz before the Regional Trial Court of Surigao City, Branch 32. They impleaded Fr. Florano and one Delfin T. Bordas on the theory that they conspired with the Bishop to have petitioners expelled and excommunicated from the PIC. They contended that their expulsion was illegal because it was done without trial thus violating their right to due process of law. Respondents filed a motion to dismiss the case before the lower court on the ground of lack of jurisdiction but it was denied. Their motion for reconsideration was likewise denied so they elevated the case to the Court of Appeals. The appellate court reversed and set aside the decision of the court a quo and ordered the dismissal of the case without prejudice to its being refiled before the proper forum. It held: We find it unnecessary to deal on the validity of the excommunication/expulsion of the private respondents (Taruc, et al.), said acts being purely ecclesiastical matters which this Court considers to be outside the province of the civil courts. Civil Courts will not interfere in the internal affairs of a religious organization except for the protection of civil or property rights. Those rights may be the subject of litigation in a civil court, and the courts have jurisdiction to determine controverted claims to the title, use, or possession of church property. (Ibid., p.466) Obviously, there was no violation of a civil right in the present case. Ergo, this Court is of the opinion and so holds that the instant case does not involve a violation and/or protection of a civil or property rights in order for the court a quo to acquire jurisdiction in the instant case.[3]

Petitioners appealed from the above decision but their petition was denied. Their motion for reconsideration was likewise denied, hence, this appeal. The only issue to be resolved in this case is whether or not the courts have jurisdiction to hear a case involving the expulsion/excommunication of members of a religious institution. We rule that the courts do not. Section 5, Article III or the Bill of Rights of the 1987 Constitution specifically provides that: Sec. 5. No law shall be made respecting an establishment of religion or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political rights. In our jurisdiction, we hold the Church and the State to be separate and distinct from each other. Give to Ceasar what is Ceasars and to God what is Gods. We have, however, observed as early as 1928 that: upon the examination of the decisions it will be readily apparent that cases involving questions relative to ecclesiastical rights have always received the profoundest attention from the courts, not only because of their inherent interest, but because of the far reaching effects of the decisions in human society. [However,] courts have learned the lesson of conservatism in dealing with such matters, it having been found that, in a form of government where the complete separation of civil and ecclesiastical authority is insisted upon, the civil courts must not allow themselves to intrude unduly in matters of an ecclesiastical nature.[4] (italics ours) We agree with the Court of Appeals that the expulsion/excommunication of members of a religious institution/organization is a matter best left to the discretion of the officials, and the laws and canons, of said institution/organization. It is not for the courts to exercise control over church authorities in the performance of their discretionary and official functions. Rather, it is for the members of religious institutions/organizations to conform to just church regulations. In the words of Justice Samuel F. Miller[5]: all who unite themselves to an ecclesiastical body do so with an implied consent to submit to the Church government and they are bound to submit to it. In the leading case of Fonacier v. Court of Appeals,[6] we enunciated the doctrine that in disputes involving religious institutions or organizations, there is one area which the Court should not touch: doctrinal and disciplinary differences.[7] Thus, The amendments of the constitution, restatement of articles of religion and abandonment of faith or abjuration alleged by appellant, having to do with faith, practice, doctrine, form of worship, ecclesiastical law, custom and rule of a church and having reference to the power of excluding from the church those allegedly unworthy of membership, are unquestionably ecclesiastical matters which are outside the province of the civil courts. (emphasis ours)

We would, however, like to comment on petitioners claim that they were not heard before they were expelled from their church. The records show that Bishop de la Cruz pleaded with petitioners several times not to commit acts inimical to the best interests of PIC. They were also warned of the consequences of their actions, among them their expulsion/excommunication from PIC. Yet, these pleas and warnings fell on deaf ears and petitioners went ahead with their plans to defy their Bishop and foment hostility and disunity among the members of PIC in Socorro, Surigao del Norte. They should now take full responsibility for the chaos and dissension they caused. WHEREFORE, the petition is herby DENIED for lack of merit. Costs against petitioners. SO ORDERED. A.M. No. P-02-1651 August 4, 2003 ESTRADA, complainant,

City, requesting for an investigation of rumors that respondent Soledad Escritor, court interpreter in said court, is living with a man not her husband. They allegedly have a child of eighteen to twenty years old. Estrada is not personally related either to Escritor or her partner and is a resident not of Las Pias City but of Bacoor, Cavite. Nevertheless, he filed the charge against Escritor as he believes that she is committing an immoral act that tarnishes the image of the court, thus she should not be allowed to remain employed therein as it might appear that the court condones her act.5 Judge Caoibes referred the letter to Escritor who stated that "there is no truth as to the veracity of the allegation" and challenged Estrada to "appear in the open and prove his allegation in the proper forum."6 Judge Caoibes set a preliminary conference on October 12, 2000. Escritor moved for the inhibition of Judge Caoibes from hearing her case to avoid suspicion and bias as she previously filed an administrative complaint against him and said case was still pending in the Office of the Court Administrator (OCA). Escritor's motion was denied. The preliminary conference proceeded with both Estrada and Escritor in attendance. Estrada confirmed that he filed the letter-complaint for immorality against Escritor because in his frequent visits to the Hall of Justice of Las Pias City, he learned from conversations therein that Escritor was living with a man not her husband and that she had an eighteen to twenty-year old son by this man. This prompted him to write to Judge Caoibes as he believed that employees of the judiciary should be respectable and Escritor's live-in arrangement did not command respect.7 Respondent Escritor testified that when she entered the judiciary in 1999, 8 she was already a widow, her husband having died in 1998.9 She admitted that she has been living with Luciano Quilapio, Jr. without the benefit of marriage for twenty years and that they have a son. But as a member of the religious sect known as the Jehovah's Witnesses and the Watch Tower and Bible Tract Society, their conjugal arrangement is in conformity with their religious beliefs. In fact, after ten years of living together, she executed on July 28, 1991 a "Declaration of Pledging Faithfulness," viz: DECLARATION OF PLEDGING FAITHFULNESS I, Soledad S. Escritor, do hereby declare that I have accepted Luciano D. Quilapio, Jr., as my mate in marital relationship; that I have done all within my ability to obtain legal recognition of this relationship by the proper public authorities and that it is because of having been unable to do so that I therefore make this public declaration pledging faithfulness in this marital relationship. I recognize this relationship as a binding tie before 'Jehovah' God and before all persons to be held to and honored in full accord with the principles of God's Word. I will continue to seek the means to obtain legal recognition of this relationship by the civil authorities and if at any future time a change in circumstances make this possible, I promise to legalize this union. Signed this 28th day of July 1991.10 Escritor's partner, Quilapio, executed a similar pledge on the same day.11 Both pledges were executed in Atimonan, Quezon and signed by three witnesses. At the time Escritor executed her pledge, her husband was still alive but living with another woman. Quilapio was

ALEJANDRO vs. SOLEDAD S. ESCRITOR, respondent. PUNO, J.:

The case at bar takes us to a most difficult area of constitutional law where man stands accountable to an authority higher than the state. To be held on balance are the state's interest and the respondent's religious freedom. In this highly sensitive area of law, the task of balancing between authority and liberty is most delicate because to the person invoking religious freedom, the consequences of the case are not only temporal. The task is not made easier by the American origin of our religion clauses and the wealth of U.S. jurisprudence on these clauses for in the United States, there is probably no more intensely controverted area of constitutional interpretation than the religion clauses.1 The U.S. Supreme Court itself has acknowledged that in this constitutional area, there is "considerable internal inconsistency in the opinions of the Court."2 As stated by a professor of law, "(i)t is by now notorious that legal doctrines and judicial decisions in the area of religious freedom are in serious disarray. In perhaps no other area of constitutional law have confusion and inconsistency achieved such undisputed sovereignty."3 Nevertheless, this thicket is the only path to take to conquer the mountain of a legal problem the case at bar presents. Both the penetrating and panoramic view this climb would provide will largely chart the course of religious freedom in Philippine jurisdiction. That the religious freedom question arose in an administrative case involving only one person does not alter the paramount importance of the question for the "constitution commands the positive protection by government of religious freedom -not only for a minority, however small- not only for a majority, however large- but for each of us."4 I. Facts The facts of the case will determine whether respondent will prevail in her plea of religious freedom. It is necessary therefore to lay down the facts in detail, careful not to omit the essentials. In a sworn letter-complaint dated July 27, 2000, complainant Alejandro Estrada wrote to Judge Jose F. Caoibes, Jr., presiding judge of Branch 253, Regional Trial Court of Las Pias

likewise married at that time, but had been separated in fact from his wife. During her testimony, Escritor volunteered to present members of her congregation to confirm the truthfulness of their "Declarations of Pledging Faithfulness," but Judge Caoibes deemed it unnecessary and considered her identification of her signature and the signature of Quilapio sufficient authentication of the documents.12 Judge Caoibes endorsed the complaint to Executive Judge Manuel B. Fernandez, Jr., who, in turn, endorsed the same to Court Administrator Alfredo L. Benipayo. On July 17, 2001, the Court, upon recommendation of Acting Court Administrator Zenaida N. Elepao, directed Escritor to comment on the charge against her. In her comment, Escritor reiterated her religious congregation's approval of her conjugal arrangement with Quilapio, viz: Herein respondent does not ignore alleged accusation but she reiterates to state with candor that there is no truth as to the veracity of same allegation. Included herewith are documents denominated as Declaration of Pledging Faithfulness (Exhibit 1 and Exhibit 2) duly signed by both respondent and her mate in marital relationship with the witnesses concurring their acceptance to the arrangement as approved by the WATCH TOWER BIBLE and TRACT SOCIETY, Philippine Branch. Same marital arrangement is recognized as a binding tie before "JEHOVAH" God and before all persons to be held to and honored in full accord with the principles of God's Word. xxx xxx xxx

A: Well, we of course, talk to the persons with regards (sic) to all the parties involved and then we request them to execute a Public Declaration of Pledge of faithfulness. Q: A: What is that document? Declaration of Pledge of faithfulness.

Q: What are the relations of the document Declaration of Pledge of faithfulness, who are suppose (sic) to execute this document? A: This must be signed, the document must be signed by the elders of the congregation; the couple, who is a member (sic) of the congregation, baptized member and true member of the congregation. Q: document? What standard rules and regulations do you have in relation with this

A: Actually, sir, the signing of that document, ah, with the couple has consent to marital relationship (sic) gives the Christian Congregation view that the couple has put themselves on record before God and man that they are faithful to each other. As if that relation is validated by God. Q: From your explanation, Minister, do you consider it a pledge or a document between the parties, who are members of the congregation? A: It is a pledge and a document. It is a declaration, pledge of a (sic) pledge of faithfulness. Q: And what does pledge mean to you?

Undersigned submits to the just, humane and fair discretion of the Court with verification from the WATCH TOWER BIBLE and TRACT SOCIETY, Philippine Branch . . . to which undersigned believes to be a high authority in relation to her case.13 Deputy Court Administrator Christopher O. Lock recommended that the case be referred to Executive Judge Bonifacio Sanz Maceda, RTC Branch 255, Las Pias City for investigation, report and recommendation. In the course of Judge Maceda's investigation, Escritor again testified that her congregation allows her conjugal arrangement with Quilapio and it does not consider it immoral. She offered to supply the investigating judge some clippings which explain the basis of her congregation's belief and practice regarding her conjugal arrangement. Escritor started living with Quilapio twenty years ago when her husband was still alive but living with another woman. She met this woman who confirmed to her that she was living with her (Escritor's) husband.14 Gregorio Salazar, a member of the Jehovah's Witnesses since 1985, also testified. He had been a presiding minister since 1991 and in such capacity is aware of the rules and regulations of their congregation. He explained the import of and procedure for executing a "Declaration of Pledging Faithfulness", viz: Q: Now, insofar as the pre-marital relationship is concern (sic), can you cite some particular rules and regulations in your congregation?

A: It means to me that they have contracted, let us say, I am the one who contracted with the opposite member of my congregation, opposite sex, and that this document will give us the right to a marital relationship. Q: So, in short, when you execute a declaration of pledge of faithfulness, it is a preparation for you to enter a marriage? A: Yes, Sir.

Q: But it does not necessarily mean that the parties, cohabiting or living under the same roof? A: Well, the Pledge of faithfulness document is (sic) already approved as to the marital relationship.

Q: Do you mean to say, Minister, by executing this document the contracting parties have the right to cohabit? A: Can I sir, cite, what the Bible says, the basis of that Pledge of Faithfulness as we Christians follow. The basis is herein stated in the Book of Matthew, Chapter Five, Verse Twenty-two. So, in that verse of the Bible, Jesus said "that everyone divorcing his wife, except on account of fornication, makes her a subject for adultery, and whoever marries a divorced woman commits adultery.15 Escritor and Quilapio transferred to Salazar's Congregation, the Almanza Congregation in Las Pias, in May 2001. The declarations having been executed in Atimonan, Quezon in 1991, Salazar had no personal knowledge of the personal circumstances of Escritor and Quilapio when they executed their declarations. However, when the two transferred to Almanza, Salazar inquired about their status from the Atimonan Congregation, gathered comments of the elders therein, and requested a copy of their declarations. The Almanza Congregation assumed that the personal circumstances of the couple had been considered by the Atimonan Congregation when they executed their declarations. Escritor and Quilapio's declarations are recorded in the Watch Tower Central office. They were executed in the usual and approved form prescribed by the Watch Tower Bible and Tract Society which was lifted from the article, "Maintaining Marriage in Honor Before God and Men,"16 in the March 15, 1977 issue of the Watch Tower magazine, entitled The Watchtower. The declaration requires the approval of the elders of the Jehovah's Witnesses congregation and is binding within the congregation all over the world except in countries where divorce is allowed. The Jehovah's congregation requires that at the time the declarations are executed, the couple cannot secure the civil authorities' approval of the marital relationship because of legal impediments. It is thus standard practice of the congregation to check the couple's marital status before giving imprimatur to the conjugal arrangement. The execution of the declaration finds scriptural basis in Matthew 5:32 that when the spouse commits adultery, the offended spouse can remarry. The marital status of the declarants and their respective spouses' commission of adultery are investigated before the declarations are executed. Thus, in the case of Escritor, it is presumed that the Atimonan Congregation conducted an investigation on her marital status before the declaration was approved and the declaration is valid everywhere, including the Almanza Congregation. That Escritor's and Quilapio's declarations were approved are shown by the signatures of three witnesses, the elders in the Atimonan Congregation. Salazar confirmed from the congregation's branch office that these three witnesses are elders in the Atimonan Congregation. Although in 1998 Escritor was widowed, thereby lifting the legal impediment to marry on her part, her mate is still not capacitated to remarry. Thus, their declarations remain valid. Once all legal impediments for both are lifted, the couple can already register their marriage with the civil authorities and the validity of the declarations ceases. The elders in the congregations can then solemnize their marriage as authorized by Philippine law. In sum, therefore, insofar as the congregation is concerned, there is nothing immoral about the conjugal arrangement between Escritor and Quilapio and they remain members in good standing in the congregation.17 Salvador Reyes, a minister at the General de Leon, Valenzuela City Congregation of the Jehovah's Witnesses since 1974 and member of the headquarters of the Watch Tower Bible

and Tract Society of the Philippines, Inc., presented the original copy of the magazine article entitled, "Maintaining Marriage Before God and Men" to which Escritor and Minister Salazar referred in their testimonies. The article appeared in the March 15, 1977 issue of the Watchtower magazine published in Pennsylvania, U.S.A. Felix S. Fajardo, President of the Watch Tower Bible and Tract Society of the Philippines, Inc., authorized Reyes to represent him in authenticating the article. The article is distributed to the Jehovah's Witnesses congregations which also distribute them to the public.18 The parties submitted their respective memoranda to the investigating judge. Both stated that the issue for resolution is whether or not the relationship between respondent Escritor and Quilapio is valid and binding in their own religious congregation, the Jehovah's Witnesses. Complainant Estrada adds however, that the effect of the relationship to Escritor's administrative liability must likewise be determined. Estrada argued, through counsel, that the Declaration of Pledging Faithfulness recognizes the supremacy of the "proper public authorities" such that she bound herself "to seek means to . . . legalize their union." Thus, even assuming arguendo that the declaration is valid and binding in her congregation, it is binding only to her co-members in the congregation and serves only the internal purpose of displaying to the rest of the congregation that she and her mate are a respectable and morally upright couple. Their religious belief and practice, however, cannot override the norms of conduct required by law for government employees. To rule otherwise would create a dangerous precedent as those who cannot legalize their live-in relationship can simply join the Jehovah's Witnesses congregation and use their religion as a defense against legal liability.19 On the other hand, respondent Escritor reiterates the validity of her conjugal arrangement with Quilapio based on the belief and practice of her religion, the Jehovah's Witnesses. She quoted portions of the magazine article entitled, "Maintaining Marriage Before God and Men," in her memorandum signed by herself, viz: The Declaration of Pledging of Faithfulness (Exhibits "1" and "2") executed by the respondent and her mate greatly affect the administrative liability of respondent. Jehovah's Witnesses admit and recognize (sic) the supremacy of the proper public authorities in the marriage arrangement. However, it is helpful to understand the relative nature of Caesar's authority regarding marriage. From country to country, marriage and divorce legislation presents a multitude of different angles and aspects. Rather than becoming entangled in a confusion of technicalities, the Christian, or the one desiring to become a disciple of God's Son, can be guided by basic Scriptural principles that hold true in all cases. God's view is of first concern. So, first of all the person must consider whether that one's present relationship, or the relationship into which he or she contemplates entering, is one that could meet with God's approval, or whether in itself, it violates the standards of God's Word. Take, for example, the situation where a man lives with a wife but also spends time living with another woman as a concubine. As long as such a state of concubinage prevails, the relationship of the second woman can never be harmonized with Christian principles, nor could any declaration on the part of the woman or the man make it so. The only right course is cessation of the relationship. Similarly with an incestuous relationship with a member of one's immediate family, or a homosexual relationship or other such situation condemned by God's Word. It is not the lack of any legal validation that

makes such relationships unacceptable; they are in themselves unscriptural and hence, immoral. Hence, a person involved in such a situation could not make any kind of "Declaration of Faithfulness," since it would have no merit in God's eyes. If the relationship is such that it can have God's approval, then, a second principle to consider is that one should do all one can to establish the honorableness of one's marital union in the eyes of all. (Heb. 13:4). If divorce is possible, then such step should now be taken so that, having obtained the divorce (on whatever legal grounds may be available), the present union can receive civil validation as a recognized marriage. Finally, if the marital relationship is not one out of harmony with the principles of God's Word, and if one has done all that can reasonably be done to have it recognized by civil authorities and has been blocked in doing so, then, a Declaration Pledging Faithfulness can be signed. In some cases, as has been noted, the extreme slowness of official action may make accomplishing of legal steps a matter of many, many years of effort. Or it may be that the costs represent a crushingly heavy burden that the individual would need years to be able to meet. In such cases, the declaration pledging faithfulness will provide the congregation with the basis for viewing the existing union as honorable while the individual continues conscientiously to work out the legal aspects to the best of his ability. Keeping in mind the basic principles presented, the respondent as a Minister of Jehovah God, should be able to approach the matter in a balanced way, neither underestimating nor overestimating the validation offered by the political state. She always gives primary concern to God's view of the union. Along with this, every effort should be made to set a fine example of faithfulness and devotion to one's mate, thus, keeping the marriage "honorable among all." Such course will bring God's blessing and result to the honor and praise of the author of marriage, Jehovah God. (1 Cor. 10:31-33)20 Respondent also brought to the attention of the investigating judge that complainant's Memorandum came from Judge Caoibes' chambers21 whom she claims was merely using petitioner to malign her. In his Report and Recommendation, investigating judge Maceda found Escritor's factual allegations credible as they were supported by testimonial and documentary evidence. He also noted that "(b)y strict Catholic standards, the live-in relationship of respondent with her mate should fall within the definition of immoral conduct, to wit: 'that which is willful, flagrant, or shameless, and which shows a moral indifference to the opinion of the good and respectable members of the community' (7 C.J.S. 959)' (Delos Reyes vs. Aznar, 179 SCRA, at p. 666)." He pointed out, however, that "the more relevant question is whether or not to exact from respondent Escritor, a member of 'Jehovah's Witnesses,' the strict moral standards of the Catholic faith in determining her administrative responsibility in the case at bar."22 The investigating judge acknowledged that "religious freedom is a fundamental right which is entitled to the highest priority and the amplest protection among human rights, for it involves the relationship of man to his Creator (at p. 270, EBRALINAG supra, citing Chief Justice Enrique M. Fernando's separate opinion in German vs. Barangan, 135 SCRA 514, 530-531)" and thereby recommended the dismissal of the complaint against Escritor.23

After considering the Report and Recommendation of Executive Judge Maceda, the Office of the Court Administrator, through Deputy Court Administrator (DCA) Lock and with the approval of Court Administrator Presbitero Velasco, concurred with the factual findings of Judge Maceda but departed from his recommendation to dismiss the complaint. DCA Lock stressed that although Escritor had become capacitated to marry by the time she joined the judiciary as her husband had died a year before, "it is due to her relationship with a married man, voluntarily carried on, that respondent may still be subject to disciplinary action."24 Considering the ruling of the Court in Dicdican v. Fernan, et al. 25 that "court personnel have been enjoined to adhere to the exacting standards of morality and decency in their professional and private conduct in order to preserve the good name and integrity of the court of justice," DCA Lock found Escritor's defense of freedom of religion unavailing to warrant dismissal of the charge of immorality. Accordingly, he recommended that respondent be found guilty of immorality and that she be penalized with suspension of six months and one day without pay with a warning that a repetition of a similar act will be dealt with more severely in accordance with the Civil Service Rules.26 II. Issue Whether or not respondent should be found guilty of the administrative charge of "gross and immoral conduct." To resolve this issue, it is necessary to determine the sub-issue of whether or not respondent's right to religious freedom should carve out an exception from the prevailing jurisprudence on illicit relations for which government employees are held administratively liable. III. Applicable Laws Respondent is charged with committing "gross and immoral conduct" under Book V, Title I, Chapter VI, Sec. 46(b)(5) of the Revised Administrative Code which provides, viz: Sec. 46. Discipline: General Provisions. - (a) No officer or employee in the Civil Service shall be suspended or dismissed except for cause as provided by law and after due process. (b) The following shall be grounds for disciplinary action: xxx xxx xxx

(5) Disgraceful and immoral conduct; xxx. Not represented by counsel, respondent, in layman's terms, invokes the religious beliefs and practices and moral standards of her religion, the Jehovah's Witnesses, in asserting that her conjugal arrangement with a man not her legal husband does not constitute disgraceful and immoral conduct for which she should be held administratively liable. While not articulated by respondent, she invokes religious freedom under Article III, Section 5 of the Constitution, which provides, viz: Sec. 5. No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The free exercise and enjoyment of religious

profession and worship, without discrimination or preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political rights. IV. Old World Antecedents of the American Religion Clauses To understand the life that the religion clauses have taken, it would be well to understand not only its birth in the United States, but its conception in the Old World. One cannot understand, much less intelligently criticize the approaches of the courts and the political branches to religious freedom in the recent past in the United States without a deep appreciation of the roots of these controversies in the ancient and medieval world and in the American experience.27 This fresh look at the religion clauses is proper in deciding this case of first impression. In primitive times, all of life may be said to have been religious. Every significant event in the primitive man's life, from birth to death, was marked by religious ceremonies. Tribal society survived because religious sanctions effectively elicited adherence to social customs. A person who broke a custom violated a taboo which would then bring upon him "the wrathful vengeance of a superhuman mysterious power."28 Distinction between the religious and nonreligious would thus have been meaningless to him. He sought protection from all kinds of evil - whether a wild beast or tribe enemy and lightning or wind - from the same person. The head of the clan or the Old Man of the tribe or the king protected his wards against both human and superhuman enemies. In time, the king not only interceded for his people with the divine powers, but he himself was looked upon as a divine being and his laws as divine decrees.29 Time came, however, when the function of acting as intermediary between human and spiritual powers became sufficiently differentiated from the responsibility of leading the tribe in war and policing it in peace as to require the full-time services of a special priest class. This saw the birth of the social and communal problem of the competing claims of the king and priest. Nevertheless, from the beginning, the king and not the priest was superior. The head of the tribe was the warrior, and although he also performed priestly functions, he carried out these functions because he was the head and representative of the community.30 There being no distinction between the religious and the secular, the same authority that promulgated laws regulating relations between man and man promulgated laws concerning man's obligations to the supernatural. This authority was the king who was the head of the state and the source of all law and who only delegated performance of rituals and sacrifice to the priests. The Code of Hammurabi, king of Babylonia, imposed penalties for homicide, larceny, perjury, and other crimes; regulated the fees of surgeons and the wages of masons and tailors and prescribed rules for inheritance of property;31 and also catalogued the gods and assigned them their places in the divine hierarchy so as to put Hammurabi's own god to a position of equality with existing gods.32 In sum, the relationship of religion to the state (king) in pre-Hebreic times may be characterized as a union of the two forces, with the state almost universally the dominant partner.33 With the rise of the Hebrew state, a new term had to be coined to describe the relation of the Hebrew state with the Mosaic religion: theocracy. The authority and power of the state was ascribed to God.34 The Mosaic creed was not merely regarded as the religion of the state, it was (at least until Saul) the state itself. Among the Hebrews, patriarch, prophet, and priest preceded king and prince. As man of God, Moses decided when the people should

travel and when to pitch camp, when they should make war and when peace. Saul and David were made kings by the prophet Samuel, disciple of Eli the priest. Like the Code of Hammurabi, the Mosaic code combined civil laws with religious mandates, but unlike the Hammurabi Code, religious laws were not of secondary importance. On the contrary, religious motivation was primary and all-embracing: sacrifices were made and Israel was prohibited from exacting usury, mistreating aliens or using false weights, all because God commanded these. Moses of the Bible led not like the ancient kings. The latter used religion as an engine to advance the purposes of the state. Hammurabi unified Mesopotamia and established Babylon as its capital by elevating its city-god to a primary position over the previous reigning gods.35 Moses, on the other hand, capitalized on the natural yearnings of the Hebrew slaves for freedom and independence to further God's purposes. Liberation and Exodus were preludes to Sinai and the receipt of the Divine Law. The conquest of Canaan was a preparation for the building of the temple and the full worship of God.36 Upon the monotheism of Moses was the theocracy of Israel founded. This monotheism, more than anything else, charted not only the future of religion in western civilization, but equally, the future of the relationship between religion and state in the west. This fact is acknowledged by many writers, among whom is Northcott who pointed out, viz: Historically it was the Hebrew and Christian conception of a single and universal God that introduced a religious exclusivism leading to compulsion and persecution in the realm of religion. Ancient religions were regarded as confined to each separate people believing in them, and the question of change from one religious belief to another did not arise. It was not until an exclusive fellowship, that the questions of proselytism, change of belief and liberty of religion arose.37 (emphasis supplied) The Hebrew theocracy existed in its pure form from Moses to Samuel. In this period, religion was not only superior to the state, but it was all of the state. The Law of God as transmitted through Moses and his successors was the whole of government. With Saul, however, the state rose to be the rival and ultimately, the master, of religion. Saul and David each received their kingdom from Samuel the prophet and disciple of Eli the priest, but soon the king dominated prophet and priest. Saul disobeyed and even sought to slay Samuel the prophet of God.38 Under Solomon, the subordination of religion to state became complete; he used religion as an engine to further the state's purposes. He reformed the order of priesthood established by Moses because the high priest under that order endorsed the claim of his rival to the throne.39 The subordination of religion to the state was also true in pre-Christian Rome which engaged in emperor-worship. When Augustus became head of the Roman state and the priestly hierarchy, he placed religion at a high esteem as part of a political plan to establish the real religion of pre-Christian Rome - the worship of the head of the state. He set his great uncle Julius Caesar among the gods, and commanded that worship of Divine Julius should not be less than worship of Apollo, Jupiter and other gods. When Augustus died, he also joined the ranks of the gods, as other emperors before him.40

The onset of Christianity, however, posed a difficulty to the emperor as the Christians' dogmatic exclusiveness prevented them from paying homage to publicly accepted gods. In the first two centuries after the death of Jesus, Christians were subjected to persecution. By the time of the emperor Trajan, Christians were considered outlaws. Their crime was "hatred of the human race", placing them in the same category as pirates and brigands and other "enemies of mankind" who were subject to summary punishments.41 In 284, Diocletian became emperor and sought to reorganize the empire and make its administration more efficient. But the closely-knit hierarchically controlled church presented a serious problem, being a state within a state over which he had no control. He had two options: either to force it into submission and break its power or enter into an alliance with it and procure political control over it. He opted for force and revived the persecution, destroyed the churches, confiscated sacred books, imprisoned the clergy and by torture forced them to sacrifice.42 But his efforts proved futile. The later emperor, Constantine, took the second option of alliance. Constantine joined with Galerius and Licinius, his two co-rulers of the empire, in issuing an edict of toleration to Christians "on condition that nothing is done by them contrary to discipline."43 A year later, after Galerius died, Constantine and Licius jointly issued the epochal Edict of Milan (312 or 313), a document of monumental importance in the history of religious liberty. It provided "that liberty of worship shall not be denied to any, but that the mind and will of every individual shall be free to manage divine affairs according to his own choice." (emphasis supplied) Thus, all restrictive statutes were abrogated and it was enacted "that every person who cherishes the desire to observe the Christian religion shall freely and unconditionally proceed to observe the same without let or hindrance." Furthermore, it was provided that the "same free and open power to follow their own religion or worship is granted also to others, in accordance with the tranquillity of our times, in order that every person may have free opportunity to worship the object of his choice."(emphasis supplied)44 Before long, not only did Christianity achieve equal status, but acquired privilege, then prestige, and eventually, exclusive power. Religion became an engine of state policy as Constantine considered Christianity a means of unifying his complex empire. Within seven years after the Edict of Milan, under the emperor's command, great Christian edifices were erected, the clergy were freed from public burdens others had to bear, and private heathen sacrifices were forbidden. The favors granted to Christianity came at a price: state interference in religious affairs. Constantine and his successors called and dismissed church councils, and enforced unity of belief and practice. Until recently the church had been the victim of persecution and repression, but this time it welcomed the state's persecution and repression of the nonconformist and the orthodox on the belief that it was better for heretics to be purged of their error than to die unsaved. Both in theory as in practice, the partnership between church and state was not easy. It was a constant struggle of one claiming dominance over the other. In time, however, after the collapse and disintegration of the Roman Empire, and while monarchical states were gradually being consolidated among the numerous feudal holdings, the church stood as the one permanent, stable and universal power. Not surprisingly, therefore, it claimed not merely equality but superiority over the secular states. This claim, symbolized by Pope Leo's crowning of Charlemagne, became the church's accepted principle of its relationship to the

state in the Middle Ages. As viewed by the church, the union of church and state was now a union of the state in the church. The rulers of the states did not concede to this claim of supremacy. Thus, while Charlemagne received his crown from the Pope, he himself crowned his own son as successor to nullify the inference of supremacy.45 The whole history of medieval Europe was a struggle for supremacy between prince and Pope and the resulting religious wars and persecution of heretics and nonconformists. At about the second quarter of the 13th century, the Inquisition was established, the purpose of which was the discovery and extermination of heresy. Accused heretics were tortured with the approval of the church in the bull Ad extirpanda issued by Pope Innocent IV in 1252. The corruption and abuses of the Catholic Church spurred the Reformation aimed at reforming the Catholic Church and resulting in the establishment of Protestant churches. While Protestants are accustomed to ascribe to the Reformation the rise of religious liberty and its acceptance as the principle governing the relations between a democratic state and its citizens, history shows that it is more accurate to say that the "same causes that gave rise to the Protestant revolution also resulted in the widespread acceptance of the principle of religious liberty, and ultimately of the principle of separation of church and state." 46 Pleas for tolerance and freedom of conscience can without doubt be found in the writings of leaders of the Reformation. But just as Protestants living in the countries of papists pleaded for toleration of religion, so did the papists that lived where Protestants were dominant. 47Papist and Protestant governments alike accepted the idea of cooperation between church and state and regarded as essential to national unity the uniformity of at least the outward manifestations of religion.48 Certainly, Luther, leader of the Reformation, stated that "neither pope, nor bishop, nor any man whatever has the right of making one syllable binding on a Christian man, unless it be done with his own consent."49 But when the tables had turned and he was no longer the hunted heretic, he likewise stated when he made an alliance with the secular powers that "(h)eretics are not to be disputed with, but to be condemned unheard, and whilst they perish by fire, the faithful ought to pursue the evil to its source, and bathe their hands in the blood of the Catholic bishops, and of the Pope, who is a devil in disguise." 50 To Luther, unity among the peoples in the interests of the state was an important consideration. Other personalities in the Reformation such as Melanchton, Zwingli and Calvin strongly espoused theocracy or the use of the state as an engine to further religion. In establishing theocracy in Geneva, Calvin made absence from the sermon a crime, he included criticism of the clergy in the crime of blasphemy punishable by death, and to eliminate heresy, he cooperated in the Inquisition.51 There were, however, those who truly advocated religious liberty. Erasmus, who belonged to the Renaissance than the Reformation, wrote that "(t)he terrible papal edict, the more terrible imperial edict, the imprisonments, the confiscations, the recantations, the fagots and burnings, all these things I can see accomplish nothing except to make the evil more widespread."52 The minority or dissident sects also ardently advocated religious liberty. The Anabaptists, persecuted and despised, along with the Socinians (Unitarians) and the Friends of the Quakers founded by George Fox in the 17th century, endorsed the supremacy and freedom of the individual conscience. They regarded religion as outside the realm of political governments.53 The English Baptists proclaimed that the "magistrate is not to meddle with religion or matters of conscience, nor compel men to this or that form of religion."54 Thus, out of the Reformation, three rationalizations of church-state relations may be distinguished: the Erastian (after the German doctor Erastus), the theocratic, and the separatist. The first assumed state superiority in ecclesiastical affairs and the use of religion as an engine of state policy as demonstrated by Luther's belief that civic cohesion could not

exist without religious unity so that coercion to achieve religious unity was justified. The second was founded on ecclesiastical supremacy and the use of state machinery to further religious interests as promoted by Calvin. The third, which was yet to achieve ultimate and complete expression in the New World, was discernibly in its incipient form in the arguments of some dissident minorities that the magistrate should not intermeddle in religious affairs.55 After the Reformation, Erastianism pervaded all Europe except for Calvin's theocratic Geneva. In England, perhaps more than in any other country, Erastianism was at its height. To illustrate, a statute was enacted by Parliament in 1678, which, to encourage woolen trade, imposed on all clergymen the duty of seeing to it that no person was buried in a shroud made of any substance other than wool.56 Under Elizabeth, supremacy of the crown over the church was complete: ecclesiastical offices were regulated by her proclamations, recusants were fined and imprisoned, Jesuits and proselytizing priests were put to death for high treason, the thirty-nine Articles of the Church of England were adopted and English Protestantism attained its present doctrinal status.57 Elizabeth was to be recognized as "the only Supreme Governor of this realm . . . as well in all spiritual or ecclesiastical things or causes as temporal." She and her successors were vested, in their dominions, with "all manner of jurisdictions, privileges, and preeminences, in any wise touching or concerning any spiritual or ecclesiastical jurisdiction."58 Later, however, Cromwell established the constitution in 1647 which granted full liberty to all Protestant sects, but denied toleration to Catholics.59 In 1689, William III issued the Act of Toleration which established a de facto toleration for all except Catholics. The Catholics achieved religious liberty in the 19th century when the Roman Catholic Relief Act of 1829 was adopted. The Jews followed suit in 1858 when they were finally permitted to sit in Parliament.60 When the representatives of the American states met in Philadelphia in 1787 to draft the constitutional foundation of the new republic, the theocratic state which had flourished intermittently in Israel, Judea, the Holy Roman Empire and Geneva was completely gone. The prevailing church-state relationship in Europe was Erastianism embodied in the system of jurisdictionalism whereby one faith was favored as the official state-supported religion, but other faiths were permitted to exist with freedom in various degrees. No nation had yet adopted as the basis of its church-state relations the principle of the mutual independence of religion and government and the concomitant principle that neither might be used as an engine to further the policies of the other, although the principle was in its seminal form in the arguments of some dissident minorities and intellectual leaders of the Renaissance. The religious wars of 16th and 17th century Europe were a thing of the past by the time America declared its independence from the Old World, but their memory was still vivid in the minds of the Constitutional Fathers as expressed by the United States Supreme Court, viz: The centuries immediately before and contemporaneous with the colonization of America had been filled with turmoil, civil strife, and persecution generated in large part by established sects determined to maintain their absolute political and religious supremacy. With the power of government supporting them, at various times and places, Catholics had persecuted Protestants, Protestants had persecuted Catholics, Protestant sects had persecuted other protestant sects, Catholics of one shade of belief had persecuted Catholics of another shade of belief, and all of these had from time to time persecuted Jews. In efforts to force loyalty to whatever religious group happened to be on top and in league with the government of a particular time and place, men and women had been fined, cast in jail, cruelly tortured, and killed. Among the offenses for which these punishments had been inflicted were such things as speaking disrespectfully of the views of ministers of government-established churches, non-attendance at those churches,

expressions of non-belief in their doctrines, and failure to pay taxes and tithes to support them.61 In 1784, James Madison captured in this statement the entire history of church-state relations in Europe up to the time the United States Constitution was adopted, viz: Torrents of blood have been spilt in the world in vain attempts of the secular arm to extinguish religious discord, by proscribing all differences in religious opinions.62 In sum, this history shows two salient features: First, with minor exceptions, the history of church-state relationships was characterized by persecution, oppression, hatred, bloodshed, and war, all in the name of the God of Love and of the Prince of Peace. Second, likewise with minor exceptions, this history witnessed the unscrupulous use of religion by secular powers to promote secular purposes and policies, and the willing acceptance of that role by the vanguards of religion in exchange for the favors and mundane benefits conferred by ambitious princes and emperors in exchange for religion's invaluable service. This was the context in which the unique experiment of the principle of religious freedom and separation of church and state saw its birth in American constitutional democracy and in human history.63 V. Factors Contributing to the Adoption of the American Religion Clauses Settlers fleeing from religious persecution in Europe, primarily in Anglican-dominated England, established many of the American colonies. British thought pervaded these colonies as the immigrants brought with them their religious and political ideas from England and English books and pamphlets largely provided their cultural fare.64But although these settlers escaped from Europe to be freed from bondage of laws which compelled them to support and attend government favored churches, some of these settlers themselves transplanted into American soil the oppressive practices they escaped from. The charters granted by the English Crown to the individuals and companies designated to make the laws which would control the destinies of the colonials authorized them to erect religious establishments, which all, whether believers or not, were required to support or attend.65 At one time, six of the colonies established a state religion. Other colonies, however, such as Rhode Island and Delaware tolerated a high degree of religious diversity. Still others, which originally tolerated only a single religion, eventually extended support to several different faiths.66 This was the state of the American colonies when the unique American experiment of separation of church and state came about. The birth of the experiment cannot be attributed to a single cause or event. Rather, a number of interdependent practical and ideological factors contributed in bringing it forth. Among these were the "English Act of Toleration of 1689, the multiplicity of sects, the lack of church affiliation on the part of most Americans, the rise of commercial intercourse, the exigencies of the Revolutionary War, the Williams-Penn tradition and the success of their experiments, the writings of Locke, the social contract theory, the Great Awakening, and the influence of European rationalism and deism."67 Each of these factors shall be briefly discussed. First, the practical factors. England's policy of opening the gates of the American colonies to different faiths resulted in the multiplicity of sects in the colonies. With an Erastian justification, English lords chose to forego protecting what was considered to be the true and

eternal church of a particular time in order to encourage trade and commerce. The colonies were large financial investments which would be profitable only if people would settle there. It would be difficult to engage in trade with persons one seeks to destroy for religious belief, thus tolerance was a necessity. This tended to distract the colonies from their preoccupations over their religion and its exclusiveness, encouraging them "to think less of the Church and more of the State and of commerce."68 The diversity brought about by the colonies' open gates encouraged religious freedom and non-establishment in several ways. First, as there were too many dissenting sects to abolish, there was no alternative but to learn to live together. Secondly, because of the daily exposure to different religions, the passionate conviction in the exclusive rightness of one's religion, which impels persecution for the sake of one's religion, waned. Finally, because of the great diversity of the sects, religious uniformity was not possible, and without such uniformity, establishment could not survive.69 But while there was a multiplicity of denomination, paradoxically, there was a scarcity of adherents. Only about four percent of the entire population of the country had a church affiliation at the time the republic was founded.70 This might be attributed to the drifting to the American colonies of the skepticism that characterized European Enlightenment.71 Economic considerations might have also been a factor. The individualism of the American colonist, manifested in the multiplicity of sects, also resulted in much unaffiliated religion which treated religion as a personal non-institutional matter. The prevalence of lack of church affiliation contributed to religious liberty and disestablishment as persons who were not connected with any church were not likely to persecute others for similar independence nor accede to compulsory taxation to support a church to which they did not belong.72 However, for those who were affiliated to churches, the colonial policy regarding their worship generally followed the tenor of the English Act of Toleration of 1689. In England, this Act conferred on Protestant dissenters the right to hold public services subject to registration of their ministers and places of worship.73 Although the toleration accorded to Protestant dissenters who qualified under its terms was only a modest advance in religious freedom, it nevertheless was of some influence to the American experiment.74 Even then, for practical considerations, concessions had to be made to other dissenting churches to ensure their cooperation in the War of Independence which thus had a unifying effect on the colonies. Next, the ideological factors. First, the Great Awakening in mid-18th century, an evangelical religious revival originating in New England, caused a break with formal church religion and a resistance to coercion by established churches. This movement emphasized an emotional, personal religion that appealed directly to the individual, putting emphasis on the rights and duties of the individual conscience and its answerability exclusively to God. Thus, although they had no quarrel with orthodox Christian theology as in fact they were fundamentalists, this group became staunch advocates of separation of church and state.75 Then there was the Williams-Penn tradition. Roger Williams was the founder of the colony of Rhode Island where he established a community of Baptists, Quakers and other nonconformists. In this colony, religious freedom was not based on practical considerations but on the concept of mutual independence of religion and government. In 1663, Rhode Island obtained a charter from the British crown which declared that settlers have it "much on their heart to hold forth a livelie experiment that a most flourishing civil state may best be maintained . . . with full libertie in religious concernments." 76 In Williams' pamphlet, The Bloudy Tenent of Persecution for cause of Conscience, discussed in a Conference between Truth and Peace,77 he articulated the philosophical basis for his argument of religious liberty.

To him, religious freedom and separation of church and state did not constitute two but only one principle. Religious persecution is wrong because it "confounds the Civil and Religious" and because "States . . . are proved essentially Civil. The "power of true discerning the true fear of God" is not one of the powers that the people have transferred to Civil Authority.78 Williams' Bloudy Tenet is considered an epochal milestone in the history of religious freedom and the separation of church and state.79 William Penn, proprietor of the land that became Pennsylvania, was also an ardent advocate of toleration, having been imprisoned for his religious convictions as a member of the despised Quakers. He opposed coercion in matters of conscience because "imposition, restraint and persecution for conscience sake, highly invade the Divine prerogative." Aside from his idealism, proprietary interests made toleration in Pennsylvania necessary. He attracted large numbers of settlers by promising religious toleration, thus bringing in immigrants both from the Continent and Britain. At the end of the colonial period, Pennsylvania had the greatest variety of religious groups. Penn was responsible in large part for the "Concessions and agreements of the Proprietors, Freeholders, and inhabitants of West Jersey, in America", a monumental document in the history of civil liberty which provided among others, for liberty of conscience.80 The Baptist followers of Williams and the Quakers who came after Penn continued the tradition started by the leaders of their denominations. Aside from the Baptists and the Quakers, the Presbyterians likewise greatly contributed to the evolution of separation and freedom.81 The Constitutional fathers who convened in Philadelphia in 1787, and Congress and the states that adopted the First Amendment in 1791 were very familiar with and strongly influenced by the successful examples of Rhode Island and Pennsylvania.82 Undeniably, John Locke and the social contract theory also contributed to the American experiment. The social contract theory popularized by Locke was so widely accepted as to be deemed self-evident truth in America's Declaration of Independence. With the doctrine of natural rights and equality set forth in the Declaration of Independence, there was no room for religious discrimination. It was difficult to justify inequality in religious treatment by a new nation that severed its political bonds with the English crown which violated the self-evident truth that all men are created equal.83 The social contract theory was applied by many religious groups in arguing against establishment, putting emphasis on religion as a natural right that is entirely personal and not within the scope of the powers of a political body. That Locke and the social contract theory were influential in the development of religious freedom and separation is evident from the memorial presented by the Baptists to the Continental Congress in 1774, viz: Men unite in society, according to the great Mr. Locke, with an intention in every one the better to preserve himself, his liberty and property. The power of the society, or Legislature constituted by them, can never be supposed to extend any further than the common good, but is obliged to secure every one's property. To give laws, to receive obedience, to compel with the sword, belong to none but the civil magistrate; and on this ground we affirm that the magistrate's power extends not to establishing any articles of faith or forms of worship, by force of laws; for laws are of no force without penalties. The care of souls cannot belong to the civil magistrate, because his power consists only in outward force; but pure and saving religion consists in the inward persuasion of the mind, without which nothing can be acceptable to God.84 (emphasis supplied)

The idea that religion was outside the jurisdiction of civil government was acceptable to both the religionist and rationalist. To the religionist, God or Christ did not desire that government have that jurisdiction ("render unto Caesar that which is Caesar's"; "my kingdom is not of this world") and to the rationalist, the power to act in the realm of religion was not one of the powers conferred on government as part of the social contract.85 Not only the social contract theory drifted to the colonies from Europe. Many of the leaders of the Revolutionary and post-revolutionary period were also influenced by European deism and rationalism,86 in general, and some were apathetic if not antagonistic to formal religious worship and institutionalized religion. Jefferson, Paine, John Adams, Washington, Franklin, Madison, among others were reckoned to be among the Unitarians or Deists. Unitarianism and Deism contributed to the emphasis on secular interests and the relegation of historic theology to the background.87 For these men of the enlightenment, religion should be allowed to rise and fall on its own, and the state must be protected from the clutches of the church whose entanglements has caused intolerance and corruption as witnessed throughout history.88 Not only the leaders but also the masses embraced rationalism at the end of the eighteenth century, accounting for the popularity of Paine's Age of Reason.89 Finally, the events leading to religious freedom and separation in Virginia contributed significantly to the American experiment of the First Amendment. Virginia was the "first state in the history of the world to proclaim the decree of absolute divorce between church and state."90 Many factors contributed to this, among which were that half to two-thirds of the population were organized dissenting sects, the Great Awakening had won many converts, the established Anglican Church of Virginia found themselves on the losing side of the Revolution and had alienated many influential laymen with its identification with the Crown's tyranny, and above all, present in Virginia was a group of political leaders who were devoted to liberty generally,91 who had accepted the social contract as self-evident, and who had been greatly influenced by Deism and Unitarianism. Among these leaders were Washington, Patrick Henry, George Mason, James Madison and above the rest, Thomas Jefferson. The first major step towards separation in Virginia was the adoption of the following provision in the Bill of Rights of the state's first constitution: That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore, all men are equally entitled to the free exercise of religion according to the dictates of conscience; and that it is the mutual duty of all to practice Christian forbearance, love, and charity towards each other.92 (emphasis supplied) The adoption of the Bill of Rights signified the beginning of the end of establishment. Baptists, Presbyterians and Lutherans flooded the first legislative assembly with petitions for abolition of establishment. While the majority of the population were dissenters, a majority of the legislature were churchmen. The legislature compromised and enacted a bill in 1776 abolishing the more oppressive features of establishment and granting exemptions to the dissenters, but not guaranteeing separation. It repealed the laws punishing heresy and absence from worship and requiring the dissenters to contribute to the support of the establishment.93 But the dissenters were not satisfied; they not only wanted abolition of support for the establishment, they opposed the compulsory support of their own religion as others. As members of the established church would not allow that only they would pay taxes

while the rest did not, the legislature enacted in 1779 a bill making permanent the establishment's loss of its exclusive status and its power to tax its members; but those who voted for it did so in the hope that a general assessment bill would be passed. Without the latter, the establishment would not survive. Thus, a bill was introduced in 1779 requiring every person to enroll his name with the county clerk and indicate which "society for the purpose of Religious Worship" he wished to support. On the basis of this list, collections were to be made by the sheriff and turned over to the clergymen and teachers designated by the religious congregation. The assessment of any person who failed to enroll in any society was to be divided proportionately among the societies.94 The bill evoked strong opposition. In 1784, another bill, entitled "Bill Establishing a Provision for Teachers of the Christian Religion" was introduced requiring all persons "to pay a moderate tax or contribution annually for the support of the Christian religion, or of some Christian church, denomination or communion of Christians, or for some form of Christian worship." 95 This likewise aroused the same opposition to the 1779 bill. The most telling blow against the 1784 bill was the monumental "Memorial and Remonstrance against Religious Assessments" written by Madison and widely distributed before the reconvening of legislature in the fall of 1785. 96 It stressed natural rights, the government's lack of jurisdiction over the domain of religion, and the social contract as the ideological basis of separation while also citing practical considerations such as loss of population through migration. He wrote, viz: Because we hold it for a 'fundamental and undeniable truth,' that religion, or the duty which we owe to our creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence. The religion, then, of every man, must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. This right is, in its nature, an unalienable right. It is unalienable, because the opinions of men, depending only on the evidence contemplated in their own minds, cannot follow the dictates of other men; it is unalienable, also, because what is here a right towards men, is a duty towards the creator. It is the duty of every man to render the creator such homage, and such only as he believes to be acceptable to him; this duty is precedent, both in order of time and degree of obligation, to the claims of civil society. Before any man can be considered as a member of civil society, he must be considered as a subject of the governor of the universe; and if a member of civil society, who enters into any subordinate association, must always do it with a reservation of his duty to the general authority, much more must every man who becomes a member of any particular civil society do it with the saving his allegiance to the universal sovereign.97 (emphases supplied) Madison articulated in the Memorial the widely held beliefs in 1785 as indicated by the great number of signatures appended to the Memorial. The assessment bill was speedily defeated. Taking advantage of the situation, Madison called up a much earlier 1779 bill of Jefferson which had not been voted on, the "Bill for Establishing Religious Freedom", and it was finally passed in January 1786. It provided, viz: Well aware that Almighty God hath created the mind free; that all attempts to influence it by temporal punishments or burdens, or by civil incapacitations, tend not only to beget habits of hypocrisy and meanness, and are a departure from the

plan of the Holy Author of our religion, who being Lord both of body and mind, yet chose not to propagate it by coercions on either, as was in his Almighty power to do; xxx xxx xxx

VI. Religion Clauses Concept, Jurisprudence, Standards

in

the

United

States:

Be it therefore enacted by the General Assembly. That no man shall be compelled to frequent or support any religious worship, place or ministry whatsoever, nor shall be enforced, restrained, molested or burdened in his body or goods, nor shall otherwise suffer on account of his religious opinions or beliefs, but that all men shall be free to profess, and by argument to maintain, their opinions in matters of religion, and that the same shall in no wise diminish, enlarge or affect their civil capacities.98 (emphases supplied) This statute forbade any kind of taxation in support of religion and effectually ended any thought of a general or particular establishment in Virginia.99 But the passage of this law was obtained not only because of the influence of the great leaders in Virginia but also because of substantial popular support coming mainly from the two great dissenting sects, namely the Presbyterians and the Baptists. The former were never established in Virginia and an underprivileged minority of the population. This made them anxious to pull down the existing state church as they realized that it was impossible for them to be elevated to that privileged position. Apart from these expediential considerations, however, many of the Presbyterians were sincere advocates of separation100 grounded on rational, secular arguments and to the language of natural religion.101 Influenced by Roger Williams, the Baptists, on the other hand, assumed that religion was essentially a matter of concern of the individual and his God, i.e., subjective, spiritual and supernatural, having no relation with the social order.102 To them, the Holy Ghost was sufficient to maintain and direct the Church without governmental assistance and state-supported religion was contrary ti the spirit of the Gospel. 103 Thus, separation was necessary.104 Jefferson's religious freedom statute was a milestone in the history of religious freedom. The United States Supreme Court has not just once acknowledged that the provisions of the First Amendment of the U.S. Constitution had the same objectives and intended to afford the same protection against government interference with religious liberty as the Virginia Statute of Religious Liberty. Even in the absence of the religion clauses, the principle that government had no power to legislate in the area of religion by restricting its free exercise or establishing it was implicit in the Constitution of 1787. This could be deduced from the prohibition of any religious test for federal office in Article VI of the Constitution and the assumed lack of power of Congress to act on any subject not expressly mentioned in the Constitution. 105However, omission of an express guaranty of religious freedom and other natural rights nearly prevented the ratification of the Constitution.106 In the ratifying conventions of almost every state, some objection was expressed to the absence of a restriction on the Federal Government as regards legislation on religion.107 Thus, in 1791, this restriction was made explicit with the adoption of the religion clauses in the First Amendment as they are worded to this day, with the first part usually referred to as the Establishment Clause and the second part, the Free Exercise Clause, viz: Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.

With the widespread agreement regarding the value of the First Amendment religion clauses comes an equally broad disagreement as to what these clauses specifically require, permit and forbid. No agreement has been reached by those who have studied the religion clauses as regards its exact meaning and the paucity of records in Congress renders it difficult to ascertain its meaning.108 Consequently, the jurisprudence in this area is volatile and fraught with inconsistencies whether within a Court decision or across decisions. One source of difficulty is the difference in the context in which the First Amendment was adopted and in which it is applied today. In the 1780s, religion played a primary role in social life - i.e., family responsibilities, education, health care, poor relief, and other aspects of social life with significant moral dimension - while government played a supportive and indirect role by maintaining conditions in which these activities may be carried out by religious or religiously-motivated associations. Today, government plays this primary role and religion plays the supportive role.109 Government runs even family planning, sex education, adoption and foster care programs.110 Stated otherwise and with some exaggeration, "(w)hereas two centuries ago, in matters of social life which have a significant moral dimension, government was the handmaid of religion, today religion, in its social responsibilities, as contrasted with personal faith and collective worship, is the handmaid of government."111 With government regulation of individual conduct having become more pervasive, inevitably some of those regulations would reach conduct that for some individuals are religious. As a result, increasingly, there may be inadvertent collisions between purely secular government actions and religion clause values.112 Parallel to this expansion of government has been the expansion of religious organizations in population, physical institutions, types of activities undertaken, and sheer variety of denominations, sects and cults. Churches run day-care centers, retirement homes, hospitals, schools at all levels, research centers, settlement houses, halfway houses for prisoners, sports facilities, theme parks, publishing houses and mass media programs. In these activities, religious organizations complement and compete with commercial enterprises, thus blurring the line between many types of activities undertaken by religious groups and secular activities. Churches have also concerned themselves with social and political issues as a necessary outgrowth of religious faith as witnessed in pastoral letters on war and peace, economic justice, and human life, or in ringing affirmations for racial equality on religious foundations. Inevitably, these developments have brought about substantial entanglement of religion and government. Likewise, the growth in population density, mobility and diversity has significantly changed the environment in which religious organizations and activities exist and the laws affecting them are made. It is no longer easy for individuals to live solely among their own kind or to shelter their children from exposure to competing values. The result is disagreement over what laws should require, permit or prohibit;113 and agreement that if the rights of believers as well as non-believers are all to be respected and given their just due, a rigid, wooden interpretation of the religion clauses that is blind to societal and political realities must be avoided.114 Religion cases arise from different circumstances. The more obvious ones arise from a government action which purposely aids or inhibits religion. These cases are easier to resolve as, in general, these actions are plainly unconstitutional. Still, this kind of cases poses difficulty in ascertaining proof of intent to aid or inhibit religion.115The more difficult religion

clause cases involve government action with a secular purpose and general applicability which incidentally or inadvertently aids or burdens religious exercise. In Free Exercise Clause cases, these government actions are referred to as those with "burdensome effect" on religious exercise even if the government action is not religiously motivated.116 Ideally, the legislature would recognize the religions and their practices and would consider them, when practical, in enacting laws of general application. But when the legislature fails to do so, religions that are threatened and burdened turn to the courts for protection.117 Most of these free exercise claims brought to the Court are for exemption, not invalidation of the facially neutral law that has a "burdensome" effect.118 With the change in political and social context and the increasing inadvertent collisions between law and religious exercise, the definition of religion for purposes of interpreting the religion clauses has also been modified to suit current realities. Defining religion is a difficult task for even theologians, philosophers and moralists cannot agree on a comprehensive definition. Nevertheless, courts must define religion for constitutional and other legal purposes.119 It was in the 1890 case of Davis v. Beason120 that the United States Supreme Court first had occasion to define religion, viz: The term 'religion' has reference to one's views of his relations to his Creator, and to the obligations they impose of reverence for his being and character, and of obedience to his will. It is often confounded with the cultus or form of worship of a particular sect, but is distinguishable from the latter. The First Amendment to the Constitution, in declaring that Congress shall make no law respecting the establishment of religion, or forbidding the free exercise thereof, was intended to allow everyone under the jurisdiction of the United States to entertain such notions respecting his relations to his Maker and the duties they impose as may be approved by his judgment and conscience, and to exhibit his sentiments in such form of worship as he may think proper, not injurious to the equal rights of others, and to prohibit legislation for the support of any religious tenets, or the modes of worship of any sect.121 The definition was clearly theistic which was reflective of the popular attitudes in 1890. In 1944, the Court stated in United States v. Ballard122 that the free exercise of religion "embraces the right to maintain theories of life and of death and of the hereafter which are rank heresy to followers of the orthodox faiths."123 By the 1960s, American pluralism in religion had flourished to include non-theistic creeds from Asia such as Buddhism and Taoism.124 In 1961, the Court, in Torcaso v. Watkins,125 expanded the term "religion" to nontheistic beliefs such as Buddhism, Taoism, Ethical Culture, and Secular Humanism. Four years later, the Court faced a definitional problem in United States v. Seeger126 which involved four men who claimed "conscientious objector" status in refusing to serve in the Vietnam War. One of the four, Seeger, was not a member of any organized religion opposed to war, but when specifically asked about his belief in a Supreme Being, Seeger stated that "you could call (it) a belief in a Supreme Being or God. These just do not happen to be the words that I use." Forest Peter, another one of the four claimed that after considerable meditation and reflection "on values derived from the Western religious and philosophical tradition," he determined that it would be "a violation of his moral code to take human life and that he considered this belief superior to any obligation to the state." The Court avoided a constitutional question by broadly interpreting not the Free Exercise Clause, but the statutory definition of religion in the Universal Military Training and Service Act of 1940 which exempt

from combat anyone "who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form." Speaking for the Court, Justice Clark ruled, viz: Congress, in using the expression 'Supreme Being' rather than the designation 'God,' was merely clarifying the meaning of religious tradition and belief so as to embrace all religions and to exclude essentially political, sociological, or philosophical views (and) the test of belief 'in relation to a Supreme Being' is whether a given belief that is sincere and meaningful occupies a place in the life of its possessor parallel to the orthodox belief in God. (emphasis supplied) The Court was convinced that Seeger, Peter and the others were conscientious objectors possessed of such religious belief and training. Federal and state courts have expanded the definition of religion in Seeger to include even non-theistic beliefs such as Taoism or Zen Buddhism. It has been proposed that basically, a creed must meet four criteria to qualify as religion under the First Amendment. First, there must be belief in God or some parallel belief that occupies a central place in the believer's life. Second, the religion must involve a moral code transcending individual belief, i.e., it cannot be purely subjective. Third, a demonstrable sincerity in belief is necessary, but the court must not inquire into the truth or reasonableness of the belief.127 Fourth, there must be some associational ties,128although there is also a view that religious beliefs held by a single person rather than being part of the teachings of any kind of group or sect are entitled to the protection of the Free Exercise Clause.129 Defining religion is only the beginning of the difficult task of deciding religion clause cases. Having hurdled the issue of definition, the court then has to draw lines to determine what is or is not permissible under the religion clauses. In this task, the purpose of the clauses is the yardstick. Their purpose is singular; they are two sides of the same coin. 130 In devoting two clauses to religion, the Founders were stating not two opposing thoughts that would cancel each other out, but two complementary thoughts that apply in different ways in different circumstances.131 The purpose of the religion clauses - both in the restriction it imposes on the power of the government to interfere with the free exercise of religion and the limitation on the power of government to establish, aid, and support religion - is the protection and promotion of religious liberty.132 The end, the goal, and the rationale of the religion clauses is this liberty.133 Both clauses were adopted to prevent government imposition of religious orthodoxy; the great evil against which they are directed is government-induced homogeneity.134 The Free Exercise Clause directly articulates the common objective of the two clauses and the Establishment Clause specifically addresses a form of interference with religious liberty with which the Framers were most familiar and for which government historically had demonstrated a propensity.135 In other words, free exercise is the end, proscribing establishment is a necessary means to this end to protect the rights of those who might dissent from whatever religion is established.136 It has even been suggested that the sense of the First Amendment is captured if it were to read as "Congress shall make no law respecting an establishment of religion or otherwise prohibiting the free exercise thereof" because the fundamental and single purpose of the two religious clauses is to "avoid any infringement on the free exercise of religions"137 Thus, the Establishment Clause mandates separation of church and state to protect each from the other, in service of the larger goal of preserving religious liberty. The effect of the separation is to limit the opportunities for any religious group to capture the state apparatus to the disadvantage of those of other faiths, or of no faith at all138 because history has shown that religious fervor conjoined with state power

is likely to tolerate far less religious disagreement and disobedience from those who hold different beliefs than an enlightened secular state.139 In the words of the U.S. Supreme Court, the two clauses are interrelated, viz: "(t)he structure of our government has, for the preservation of civil liberty, rescued the temporal institutions from religious interference. On the other hand, it has secured religious liberty from the invasion of the civil authority."140 In upholding religious liberty as the end goal in religious clause cases, the line the court draws to ensure that government does not establish and instead remains neutral toward religion is not absolutely straight. Chief Justice Burger explains, viz: The course of constitutional neutrality in this area cannot be an absolutely straight line; rigidity could well defeat the basic purpose of these provisions, which is to insure that no religion be sponsored or favored, none commanded and none inhibited.141 (emphasis supplied) Consequently, U.S. jurisprudence has produced two identifiably different,142 even opposing, strains of jurisprudence on the religion clauses: separation (in the form of strict separation or the tamer version of strict neutrality or separation) and benevolent neutrality or accommodation. A view of the landscape of U.S. religion clause cases would be useful in understanding these two strains, the scope of protection of each clause, and the tests used in religious clause cases. Most of these cases are cited as authorities in Philippine religion clause cases. A. Free Exercise Clause The Court first interpreted the Free Exercise Clause in the 1878 case of Reynolds v. United States.143 This landmark case involved Reynolds, a Mormon who proved that it was his religious duty to have several wives and that the failure to practice polygamy by male members of his religion when circumstances would permit would be punished with damnation in the life to come. Reynolds' act of contracting a second marriage violated Section 5352, Revised Statutes prohibiting and penalizing bigamy, for which he was convicted. The Court affirmed Reynolds' conviction, using what in jurisprudence would be called the belief-action test which allows absolute protection to belief but not to action. It cited Jefferson's Bill Establishing Religious Freedom which, according to the Court, declares "the true distinction between what properly belongs to the Church and what to the State." 144 The bill, making a distinction between belief and action, states in relevant part, viz: That to suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill tendency, is a dangerous fallacy which at once destroys all religious liberty; that it is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order.145 (emphasis supplied) The Court then held, viz:

Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order. . . Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Suppose one believed that human sacrifice were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond the power of the civil government to prevent her carrying her belief into practice? So here, as a law of the organization of society under the exclusive dominion of the United States, it is provided that plural marriages shall not be allowed. Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.146 The construct was thus simple: the state was absolutely prohibited by the Free Exercise Clause from regulating individual religious beliefs, but placed no restriction on the ability of the state to regulate religiously motivated conduct. It was logical for belief to be accorded absolute protection because any statute designed to prohibit a particular religious belief unaccompanied by any conduct would most certainly be motivated only by the legislature's preference of a competing religious belief. Thus, all cases of regulation of belief would amount to regulation of religion for religious reasons violative of the Free Exercise Clause. On the other hand, most state regulations of conduct are for public welfare purposes and have nothing to do with the legislature's religious preferences. Any burden on religion that results from state regulation of conduct arises only when particular individuals are engaging in the generally regulated conduct because of their particular religious beliefs. These burdens are thus usually inadvertent and did not figure in the belief-action test. As long as the Court found that regulation address action rather than belief, the Free Exercise Clause did not pose any problem.147 The Free Exercise Clause thus gave no protection against the proscription of actions even if considered central to a religion unless the legislature formally outlawed the belief itself.148 This belief-action distinction was held by the Court for some years as shown by cases where the Court upheld other laws which burdened the practice of the Mormon religion by imposing various penalties on polygamy such as the Davis case and Church of Latter Day Saints v. United States.149 However, more than a century since Reynolds was decided, the Court has expanded the scope of protection from belief to speech and conduct. But while the belief-action test has been abandoned, the rulings in the earlier Free Exercise cases have gone unchallenged. The belief-action distinction is still of some importance though as there remains an absolute prohibition of governmental proscription of beliefs.150 The Free Exercise Clause accords absolute protection to individual religious convictions and beliefs151 and proscribes government from questioning a person's beliefs or imposing penalties or disabilities based solely on those beliefs. The Clause extends protection to both beliefs and unbelief. Thus, in Torcaso v. Watkins,152 a unanimous Court struck down a state law requiring as a qualification for public office an oath declaring belief in the existence of

God. The protection also allows courts to look into the good faith of a person in his belief, but prohibits inquiry into the truth of a person's religious beliefs. As held in United States v. Ballard,153 "(h)eresy trials are foreign to the Constitution. Men may believe what they cannot prove. They may not be put to the proof of their religious doctrines or beliefs." Next to belief which enjoys virtually absolute protection, religious speech and expressive religious conduct are accorded the highest degree of protection. Thus, in the 1940 case of Cantwell v. Connecticut,154 the Court struck down a state law prohibiting door-to-door solicitation for any religious or charitable cause without prior approval of a state agency. The law was challenged by Cantwell, a member of the Jehovah's Witnesses which is committed to active proselytizing. The Court invalidated the state statute as the prior approval necessary was held to be a censorship of religion prohibited by the Free Exercise Clause. The Court held, viz: In the realm of religious faith, and in that of political belief, sharp differences arise. In both fields the tenets of one may seem the rankest error to his neighbor. To persuade others to his point of view, the pleader, as we know, resorts to exaggeration, to vilification of men who have been, or are, prominent in church or state, and even to false statement. But the people of this nation have ordained in the light of history, that, in spite of the probability of excesses and abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of citizens of a democracy.155 Cantwell took a step forward from the protection afforded by the Reynolds case in that it not only affirmed protection of belief but also freedom to act for the propagation of that belief, viz: Thus the Amendment embraces two concepts - freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society. . . In every case, the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom. (emphasis supplied)156 The Court stated, however, that government had the power to regulate the times, places, and manner of solicitation on the streets and assure the peace and safety of the community. Three years after Cantwell, the Court in Douglas v. City of Jeanette,157 ruled that police could not prohibit members of the Jehovah's Witnesses from peaceably and orderly proselytizing on Sundays merely because other citizens complained. In another case likewise involving the Jehovah's Witnesses, Niemotko v. Maryland,158 the Court unanimously held unconstitutional a city council's denial of a permit to the Jehovah's Witnesses to use the city park for a public meeting. The city council's refusal was because of the "unsatisfactory" answers of the Jehovah's Witnesses to questions about Catholicism, military service, and other issues. The denial of the public forum was considered blatant censorship. While protected, religious speech in the public forum is still subject to reasonable time, place and manner regulations similar to non-religious speech. Religious proselytizing in congested areas, for example, may be limited to certain areas to maintain the safe and orderly flow of pedestrians and vehicular traffic as held in the case of Heffron v. International Society for Krishna Consciousness.159

The least protected under the Free Exercise Clause is religious conduct, usually in the form of unconventional religious practices. Protection in this realm depends on the character of the action and the government rationale for regulating the action.160 The Mormons' religious conduct of polygamy is an example of unconventional religious practice. As discussed in the Reynolds case above, the Court did not afford protection to the practice. Reynolds was reiterated in the 1890 case of Davis again involving Mormons, where the Court held, viz: "(c)rime is not the less odious because sanctioned by what any particular sect may designate as religion."161 The belief-action test in Reynolds and Davis proved unsatisfactory. Under this test, regulation of religiously dictated conduct would be upheld no matter how central the conduct was to the exercise of religion and no matter how insignificant was the government's nonreligious regulatory interest so long as the government is proscribing action and not belief. Thus, the Court abandoned the simplistic belief-action distinction and instead recognized the deliberate-inadvertent distinction, i.e., the distinction between deliberate state interference of religious exercise for religious reasons which was plainly unconstitutional and government's inadvertent interference with religion in pursuing some secular objective.162 In the 1940 case of Minersville School District v. Gobitis,163 the Court upheld a local school board requirement that all public school students participate in a daily flag salute program, including the Jehovah's Witnesses who were forced to salute the American flag in violation of their religious training, which considered flag salute to be worship of a "graven image." The Court recognized that the general requirement of compulsory flag salute inadvertently burdened the Jehovah Witnesses' practice of their religion, but justified the government regulation as an appropriate means of attaining national unity, which was the "basis of national security." Thus, although the Court was already aware of the deliberate-inadvertent distinction in government interference with religion, it continued to hold that the Free Exercise Clause presented no problem to interference with religion that was inadvertent no matter how serious the interference, no matter how trivial the state's non-religious objectives, and no matter how many alternative approaches were available to the state to pursue its objectives with less impact on religion, so long as government was acting in pursuit of a secular objective. Three years later, the Gobitis decision was overturned in West Virginia v. Barnette164 which involved a similar set of facts and issue. The Court recognized that saluting the flag, in connection with the pledges, was a form of utterance and the flag salute program was a compulsion of students to declare a belief. The Court ruled that "compulsory unification of opinions leads only to the unanimity of the graveyard" and exempt the students who were members of the Jehovah's Witnesses from saluting the flag. A close scrutiny of the case, however, would show that it was decided not on the issue of religious conduct as the Court said, "(n)or does the issue as we see it turn on one's possession of particular religious views or the sincerity with which they are held. While religion supplies appellees' motive for enduring the discomforts of making the issue in this case, many citizens who do not share these religious views hold such a compulsory rite to infringe constitutional liberty of the individual." (emphasis supplied)165 The Court pronounced, however, that, "freedoms of speech and of press, of assembly, and of worship . . . are susceptible only of restriction only to prevent grave and immediate danger to interests which the state may lawfully protect."166 The Court seemed to recognize the extent to which its approach in Gobitis subordinated the religious liberty of political minorities - a specially protected constitutional value - to the common everyday economic and public welfare objectives of the majority in the legislature. This time, even inadvertent interference with religion must pass judicial scrutiny under the Free Exercise Clause with only grave and immediate danger sufficing to override

religious liberty. But the seeds of this heightened scrutiny would only grow to a full flower in the 1960s.167 Nearly a century after Reynolds employed the belief-action test, the Warren Court began the modern free exercise jurisprudence.168 A two-part balancing test was established in Braunfeld v. Brown169 where the Court considered the constitutionality of applying Sunday closing laws to Orthodox Jews whose beliefs required them to observe another day as the Sabbath and abstain from commercial activity on Saturday. Chief Justice Warren, writing for the Court, found that the law placed a severe burden on Sabattarian retailers. He noted, however, that since the burden was the indirect effect of a law with a secular purpose, it would violate the Free Exercise Clause only if there were alternative ways of achieving the state's interest. He employed a two-part balancing test of validity where the first step was for plaintiff to show that the regulation placed a real burden on his religious exercise. Next, the burden would be upheld only if the state showed that it was pursuing an overriding secular goal by the means which imposed the least burden on religious practices. 170 The Court found that the state had an overriding secular interest in setting aside a single day for rest, recreation and tranquility and there was no alternative means of pursuing this interest but to require Sunday as a uniform rest day. Two years after came the stricter compelling state interest test in the 1963 case of Sherbert v. Verner.171 This test was similar to the two-part balancing test in Braunfeld,172 but this latter test stressed that the state interest was not merely any colorable state interest, but must be paramount and compelling to override the free exercise claim. In this case, Sherbert, a Seventh Day Adventist, claimed unemployment compensation under the law as her employment was terminated for refusal to work on Saturdays on religious grounds. Her claim was denied. She sought recourse in the Supreme Court. In laying down the standard for determining whether the denial of benefits could withstand constitutional scrutiny, the Court ruled, viz: Plainly enough, appellee's conscientious objection to Saturday work constitutes no conduct prompted by religious principles of a kind within the reach of state legislation. If, therefore, the decision of the South Carolina Supreme Court is to withstand appellant's constitutional challenge, it must be either because her disqualification as a beneficiary represents no infringement by the State of her constitutional rights of free exercise, or because any incidental burden on the free exercise of appellant's religion may be justified by a 'compelling state interest in the regulation of a subject within the State's constitutional power to regulate. . .'NAACP v. Button, 371 US 415, 438 9 L ed 2d 405, 421, 83 S Ct 328. 173 (emphasis supplied) The Court stressed that in the area of religious liberty, it is basic that it is not sufficient to merely show a rational relationship of the substantial infringement to the religious right and a colorable state interest. "(I)n this highly sensitive constitutional area, '[o]nly the gravest abuses, endangering paramount interests, give occasion for permissible limitation.' Thomas v. Collins, 323 US 516, 530, 89 L ed 430, 440, 65 S Ct 315." 174 The Court found that there was no such compelling state interest to override Sherbert's religious liberty. It added that even if the state could show that Sherbert's exemption would pose serious detrimental effects to the unemployment compensation fund and scheduling of work, it was incumbent upon the state to show that no alternative means of regulations would address such detrimental effects without infringing religious liberty. The state, however, did not discharge this burden. The

Court thus carved out for Sherbert an exemption from the Saturday work requirement that caused her disqualification from claiming the unemployment benefits. The Court reasoned that upholding the denial of Sherbert's benefits would force her to choose between receiving benefits and following her religion. This choice placed "the same kind of burden upon the free exercise of religion as would a fine imposed against (her) for her Saturday worship." This germinal case of Sherbert firmly established the exemption doctrine,175 viz: It is certain that not every conscience can be accommodated by all the laws of the land; but when general laws conflict with scruples of conscience, exemptions ought to be granted unless some 'compelling state interest' intervenes. Thus, in a short period of twenty-three years from Gobitis to Sherbert (or even as early as Braunfeld), the Court moved from the doctrine that inadvertent or incidental interferences with religion raise no problem under the Free Exercise Clause to the doctrine that such interferences violate the Free Exercise Clause in the absence of a compelling state interest the highest level of constitutional scrutiny short of a holding of a per se violation. Thus, the problem posed by the belief-action test and the deliberate-inadvertent distinction was addressed.176 Throughout the 1970s and 1980s under the Warren, and afterwards, the Burger Court, the rationale in Sherbert continued to be applied. In Thomas v. Review Board177 and Hobbie v. Unemployment Appeals Division,178for example, the Court reiterated the exemption doctrine and held that in the absence of a compelling justification, a state could not withhold unemployment compensation from an employee who resigned or was discharged due to unwillingness to depart from religious practices and beliefs that conflicted with job requirements. But not every governmental refusal to allow an exemption from a regulation which burdens a sincerely held religious belief has been invalidated, even though strict or heightened scrutiny is applied. In United States v. Lee,179 for instance, the Court using strict scrutiny and referring to Thomas, upheld the federal government's refusal to exempt Amish employers who requested for exemption from paying social security taxes on wages on the ground of religious beliefs. The Court held that "(b)ecause the broad public interest in maintaining a sound tax system is of such a high order, religious belief in conflict with the payment of taxes affords no basis for resisting the tax."180 It reasoned that unlike in Sherbert, an exemption would significantly impair government's achievement of its objective - "the fiscal vitality of the social security system;" mandatory participation is indispensable to attain this objective. The Court noted that if an exemption were made, it would be hard to justify not allowing a similar exemption from general federal taxes where the taxpayer argues that his religious beliefs require him to reduce or eliminate his payments so that he will not contribute to the government's war-related activities, for example. The strict scrutiny and compelling state interest test significantly increased the degree of protection afforded to religiously motivated conduct. While not affording absolute immunity to religious activity, a compelling secular justification was necessary to uphold public policies that collided with religious practices. Although the members of the Court often disagreed over which governmental interests should be considered compelling, thereby producing dissenting and separate opinions in religious conduct cases, this general test established a strong presumption in favor of the free exercise of religion.181 Heightened scrutiny was also used in the 1972 case of Wisconsin v. Yoder182 where the Court upheld the religious practice of the Old Order Amish faith over the state's

compulsory high school attendance law. The Amish parents in this case did not permit secular education of their children beyond the eighth grade. Chief Justice Burger, writing for the majority, held, viz: It follows that in order for Wisconsin to compel school attendance beyond the eighth grade against a claim that such attendance interferes with the practice of a legitimate religious belief, it must appear either that the State does not deny the free exercise of religious belief by its requirement, or that there is a state interest of sufficient magnitude to override the interest claiming protection under the Free Exercise Clause. Long before there was general acknowledgement of the need for universal education, the Religion Clauses had specially and firmly fixed the right of free exercise of religious beliefs, and buttressing this fundamental right was an equally firm, even if less explicit, prohibition against the establishment of any religion. The values underlying these two provisions relating to religion have been zealously protected, sometimes even at the expense of other interests of admittedly high social importance. . . The essence of all that has been said and written on the subject is that only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion. . . . . . our decisions have rejected the idea that that religiously grounded conduct is always outside the protection of the Free Exercise Clause. It is true that activities of individuals, even when religiously based, are often subject to regulation by the States in the exercise of their undoubted power to promote the health, safety, and general welfare, or the Federal government in the exercise of its delegated powers . . . But to agree that religiously grounded conduct must often be subject to the broad police power of the State is not to deny that there are areas of conduct protected by the Free Exercise Clause of the First Amendment and thus beyond the power of the State to control, even under regulations of general applicability. . . .This case, therefore, does not become easier because respondents were convicted for their "actions" in refusing to send their children to the public high school; in this context belief and action cannot be neatly confined in logic-tight compartments. . .183 The onset of the 1990s, however, saw a major setback in the protection afforded by the Free Exercise Clause. In Employment Division, Oregon Department of Human Resources v. Smith,184 the sharply divided Rehnquist Court dramatically departed from the heightened scrutiny and compelling justification approach and imposed serious limits on the scope of protection of religious freedom afforded by the First Amendment. In this case, the wellestablished practice of the Native American Church, a sect outside the Judeo-Christian mainstream of American religion, came in conflict with the state's interest in prohibiting the use of illicit drugs. Oregon's controlled substances statute made the possession of peyote a criminal offense. Two members of the church, Smith and Black, worked as drug rehabilitation counselors for a private social service agency in Oregon. Along with other church members, Smith and Black ingested peyote, a hallucinogenic drug, at a sacramental ceremony practiced by Native Americans for hundreds of years. The social service agency fired Smith and Black citing their use of peyote as "job-related misconduct". They applied for unemployment compensation, but the Oregon Employment Appeals Board denied their application as they were discharged for job-related misconduct. Justice Scalia, writing for the

majority, ruled that "if prohibiting the exercise of religion . . . is . . . merely the incidental effect of a generally applicable and otherwise valid law, the First Amendment has not been offended." In other words, the Free Exercise Clause would be offended only if a particular religious practice were singled out for proscription. The majority opinion relied heavily on the Reynolds case and in effect, equated Oregon's drug prohibition law with the anti-polygamy statute in Reynolds. The relevant portion of the majority opinion held, viz: We have never invalidated any governmental action on the basis of the Sherbert test except the denial of unemployment compensation. Even if we were inclined to breathe into Sherbert some life beyond the unemployment compensation field, we would not apply it to require exemptions from a generally applicable criminal law. . . We conclude today that the sounder approach, and the approach in accord with the vast majority of our precedents, is to hold the test inapplicable to such challenges. The government's ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy, "cannot depend on measuring the effects of a governmental action on a religious objector's spiritual development." . . .To make an individual's obligation to obey such a law contingent upon the law's coincidence with his religious beliefs except where the State's interest is "compelling" - permitting him, by virtue of his beliefs, "to become a law unto himself," . . . - contradicts both constitutional tradition and common sense. Justice O'Connor wrote a concurring opinion pointing out that the majority's rejection of the compelling governmental interest test was the most controversial part of the decision. Although she concurred in the result that the Free Exercise Clause had not been offended, she sharply criticized the majority opinion as a dramatic departure "from well-settled First Amendment jurisprudence. . . and . . . (as) incompatible with our Nation's fundamental commitment to religious liberty." This portion of her concurring opinion was supported by Justices Brennan, Marshall and Blackmun who dissented from the Court's decision. Justice O'Connor asserted that "(t)he compelling state interest test effectuates the First Amendment's command that religious liberty is an independent liberty, that it occupies a preferred position, and that the Court will not permit encroachments upon this liberty, whether direct or indirect, unless required by clear and compelling government interest 'of the highest order'." Justice Blackmun registered a separate dissenting opinion, joined by Justices Brennan and Marshall. He charged the majority with "mischaracterizing" precedents and "overturning. . . settled law concerning the Religion Clauses of our Constitution." He pointed out that the Native American Church restricted and supervised the sacramental use of peyote. Thus, the state had no significant health or safety justification for regulating the sacramental drug use. He also observed that Oregon had not attempted to prosecute Smith or Black, or any Native Americans, for that matter, for the sacramental use of peyote. In conclusion, he said that "Oregon's interest in enforcing its drug laws against religious use of peyote (was) not sufficiently compelling to outweigh respondents' right to the free exercise of their religion." The Court went back to the Reynolds and Gobitis doctrine in Smith. The Court's standard in Smith virtually eliminated the requirement that the government justify with a compelling state interest the burdens on religious exercise imposed by laws neutral toward religion. The Smith doctrine is highly unsatisfactory in several respects and has been criticized as exhibiting a shallow understanding of free exercise jurisprudence.185 First, the

First amendment was intended to protect minority religions from the tyranny of the religious and political majority. A deliberate regulatory interference with minority religious freedom is the worst form of this tyranny. But regulatory interference with a minority religion as a result of ignorance or sensitivity of the religious and political majority is no less an interference with the minority's religious freedom. If the regulation had instead restricted the majority's religious practice, the majoritarian legislative process would in all probability have modified or rejected the regulation. Thus, the imposition of the political majority's non-religious objectives at the expense of the minority's religious interests implements the majority's religious viewpoint at the expense of the minority's. Second, government impairment of religious liberty would most often be of the inadvertent kind as in Smith considering the political culture where direct and deliberate regulatory imposition of religious orthodoxy is nearly inconceivable. If the Free Exercise Clause could not afford protection to inadvertent interference, it would be left almost meaningless. Third, the Reynolds-Gobitis-Smith doctrine simply defies common sense. The state should not be allowed to interfere with the most deeply held fundamental religious convictions of an individual in order to pursue some trivial state economic or bureaucratic objective. This is especially true when there are alternative approaches for the state to effectively pursue its objective without serious inadvertent impact on religion.186 Thus, the Smith decision has been criticized not only for increasing the power of the state over religion but as discriminating in favor of mainstream religious groups against smaller, more peripheral groups who lack legislative clout,187 contrary to the original theory of the First Amendment.188 Undeniably, claims for judicial exemption emanate almost invariably from relatively politically powerless minority religions and Smith virtually wiped out their judicial recourse for exemption.189 Thus, the Smith decision elicited much negative public reaction especially from the religious community, and commentaries insisted that the Court was allowing the Free Exercise Clause to disappear.190 So much was the uproar that a majority in Congress was convinced to enact the Religious Freedom Restoration Act (RFRA) of 1993. The RFRA prohibited government at all levels from substantially burdening a person's free exercise of religion, even if such burden resulted from a generally applicable rule, unless the government could demonstrate a compelling state interest and the rule constituted the least restrictive means of furthering that interest.191 RFRA, in effect, sought to overturn the substance of the Smith ruling and restore the status quo prior to Smith. Three years after the RFRA was enacted, however, the Court, dividing 6 to 3, declared the RFRA unconstitutional in City of Boerne v. Flores.192 The Court ruled that "RFRA contradicts vital principles necessary to maintain separation of powers and the federal balance." It emphasized the primacy of its role as interpreter of the Constitution and unequivocally rejected, on broad institutional grounds, a direct congressional challenge of final judicial authority on a question of constitutional interpretation. After Smith came Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah193 which was ruled consistent with the Smith doctrine. This case involved animal sacrifice of the Santeria, a blend of Roman Catholicism and West African religions brought to the Carribean by East African slaves. An ordinance made it a crime to "unnecessarily kill, torment, torture, or mutilate an animal in public or private ritual or ceremony not for the primary purpose of food consumption." The ordinance came as a response to the local concern over the sacrificial practices of the Santeria. Justice Kennedy, writing for the majority, carefully pointed out that the questioned ordinance was not a generally applicable criminal prohibition, but instead singled out practitioners of the Santeria in that it forbade animal slaughter only insofar as it took place within the context of religious rituals.

It may be seen from the foregoing cases that under the Free Exercise Clause, religious belief is absolutely protected, religious speech and proselytizing are highly protected but subject to restraints applicable to non-religious speech, and unconventional religious practice receives less protection; nevertheless conduct, even if its violates a law, could be accorded protection as shown in Wisconsin.194 B. Establishment Clause The Court's first encounter with the Establishment Clause was in the 1947 case of Everson v. Board of Education.195 Prior cases had made passing reference to the Establishment Clause196 and raised establishment questions but were decided on other grounds.197 It was in the Everson case that the U.S. Supreme Court adopted Jefferson's metaphor of "a wall of separation between church and state" as encapsulating the meaning of the Establishment Clause. The often and loosely used phrase "separation of church and state" does not appear in the U.S. Constitution. It became part of U.S. jurisprudence when the Court in the 1878 case of Reynolds v. United States198 quoted Jefferson's famous letter of 1802 to the Danbury Baptist Association in narrating the history of the religion clauses, viz: Believing with you that religion is a matter which lies solely between man and his God; that he owes account to none other for his faith or his worship; that the legislative powers of the Government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their Legislature should 'make no law respecting an establishment of religion or prohibiting the free exercise thereof,' thus building a wall of separation between Church and State.199 (emphasis supplied) Chief Justice Waite, speaking for the majority, then added, "(c)oming as this does from an acknowledged leader of the advocates of the measure, it may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured."200 The interpretation of the Establishment Clause has in large part been in cases involving education, notably state aid to private religious schools and prayer in public schools.201 In Everson v. Board of Education, for example, the issue was whether a New Jersey local school board could reimburse parents for expenses incurred in transporting their children to and from Catholic schools. The reimbursement was part of a general program under which all parents of children in public schools and nonprofit private schools, regardless of religion, were entitled to reimbursement for transportation costs. Justice Hugo Black, writing for a sharply divided Court, justified the reimbursements on the child benefit theory, i.e., that the school board was merely furthering the state's legitimate interest in getting children "regardless of their religion, safely and expeditiously to and from accredited schools." The Court, after narrating the history of the First Amendment in Virginia, interpreted the Establishment Clause, viz: The 'establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can

be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect "a wall of separation between Church and State."202 The Court then ended the opinion, viz: The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach. New Jersey has not breached it here.203 By 1971, the Court integrated the different elements of the Court's Establishment Clause jurisprudence that evolved in the 1950s and 1960s and laid down a three-pronged test in Lemon v. Kurtzman204 in determining the constitutionality of policies challenged under the Establishment Clause. This case involved a Pennsylvania statutory program providing publicly funded reimbursement for the cost of teachers' salaries, textbooks, and instructional materials in secular subjects and a Rhode Island statute providing salary supplements to teachers in parochial schools. The Lemon test requires a challenged policy to meet the following criteria to pass scrutiny under the Establishment Clause. "First, the statute must have a secular legislative purpose; second, its primary or principal effect must be one that neither advances nor inhibits religion (Board of Education v. Allen, 392 US 236, 243, 20 L Ed 2d 1060, 1065, 88 S Ct 1923 [1968]); finally, the statute must not foster 'an excessive entanglement with religion.' (Walz v.Tax Commission, 397 US 664, 668, 25 L Ed 2d 697, 701, 90 S Ct 1409 [1970])" (emphasis supplied)205 Using this test, the Court held that the Pennsylvania statutory program and Rhode Island statute were unconstitutional as fostering excessive entanglement between government and religion. The most controversial of the education cases involving the Establishment Clause are the school prayer decisions. "Few decisions of the modern Supreme Court have been criticized more intensely than the school prayer decisions of the early 1960s."206 In the 1962 case of Engel v. Vitale,207 the Court invalidated a New York Board of Regents policy that established the voluntary recitation of a brief generic prayer by children in the public schools at the start of each school day. The majority opinion written by Justice Black stated that "in this country it is no part of the business of government to compose official prayers for any group of the American people to recite as part of a religious program carried on by government." In fact, history shows that this very practice of establishing governmentally composed prayers for religious services was one of the reasons that caused many of the early colonists to leave England and seek religious freedom in America. The Court called to mind that the first and most immediate purpose of the Establishment Clause rested on the belief that a union of government and religion tends to destroy government and to degrade religion. The following year, the Engel decision was reinforced in Abington School District v. Schempp208 and Murray v. Curlett209 where the Court struck down the practice of Bible reading and the recitation of the Lord's prayer in the Pennsylvania and Maryland schools. The Court held that to withstand the strictures of the Establishment Clause, a statute must have a secular legislative purpose and a primary effect that neither advances nor inhibits religion. It reiterated, viz:

The wholesome 'neutrality' of which this Court's cases speak thus stems from a recognition of the teachings of history that powerful sects or groups might bring about a fusion of governmental and religious functions or a concert or dependency of one upon the other to the end that official support of the State of Federal Government would be placed behind the tenets of one or of all orthodoxies. This the Establishment Clause prohibits. And a further reason for neutrality is found in the Free Exercise Clause, which recognizes the value of religious training, teaching and observance and, more particularly, the right of every person to freely choose his own course with reference thereto, free of any compulsion from the state.210 The school prayer decisions drew furious reactions. Religious leaders and conservative members of Congress and resolutions passed by several state legislatures condemned these decisions.211 On several occasions, constitutional amendments have been introduced in Congress to overturn the school prayer decisions. Still, the Court has maintained its position and has in fact reinforced it in the 1985 case of Wallace v. Jaffree212 where the Court struck down an Alabama law that required public school students to observe a moment of silence "for the purpose of meditation or voluntary prayer" at the start of each school day. Religious instruction in public schools has also pressed the Court to interpret the Establishment Clause. Optional religious instruction within public school premises and instructional time were declared offensive of the Establishment Clause in the 1948 case of McCollum v. Board of Education,213 decided just a year after the seminal Everson case. In this case, interested members of the Jewish, Roman Catholic and a few Protestant faiths obtained permission from the Board of Education to offer classes in religious instruction to public school students in grades four to nine. Religion classes were attended by pupils whose parents signed printed cards requesting that their children be permitted to attend. The classes were taught in three separate groups by Protestant teachers, Catholic priests and a Jewish rabbi and were held weekly from thirty to forty minutes during regular class hours in the regular classrooms of the school building. The religious teachers were employed at no expense to the school authorities but they were subject to the approval and supervision of the superintendent of schools. Students who did not choose to take religious instruction were required to leave their classrooms and go to some other place in the school building for their secular studies while those who were released from their secular study for religious instruction were required to attend the religious classes. The Court held that the use of taxsupported property for religious instruction and the close cooperation between the school authorities and the religious council in promoting religious education amounted to a prohibited use of tax-established and tax-supported public school system to aid religious groups spread their faith. The Court rejected the claim that the Establishment Clause only prohibited government preference of one religion over another and not an impartial governmental assistance of all religions. In Zorach v. Clauson,214 however, the Court upheld released time programs allowing students in public schools to leave campus upon parental permission to attend religious services while other students attended study hall. Justice Douglas, the writer of the opinion, stressed that "(t)he First Amendment does not require that in every and all respects there shall be a separation of Church and State." The Court distinguished Zorach from McCollum, viz: In the McCollum case the classrooms were used for religious instruction and the force of the public school was used to promote that instruction. . . We follow the McCollum case. But we cannot expand it to cover the present released time program unless separation of Church and State means that public institutions can make no adjustments of their schedules to accommodate the religious needs of the

people. We cannot read into the Bill of Rights such a philosophy of hostility to religion.215 In the area of government displays or affirmations of belief, the Court has given leeway to religious beliefs and practices which have acquired a secular meaning and have become deeply entrenched in history. For instance, inMcGowan v. Maryland,216 the Court upheld laws that prohibited certain businesses from operating on Sunday despite the obvious religious underpinnings of the restrictions. Citing the secular purpose of the Sunday closing laws and treating as incidental the fact that this day of rest happened to be the day of worship for most Christians, the Court held, viz: It is common knowledge that the first day of the week has come to have special significance as a rest day in this country. People of all religions and people with no religion regard Sunday as a time for family activity, for visiting friends and relatives, for later sleeping, for passive and active entertainments, for dining out, and the like.217 In the 1983 case of Marsh v. Chambers,218 the Court refused to invalidate Nebraska's policy of beginning legislative sessions with prayers offered by a Protestant chaplain retained at the taxpayers' expense. The majority opinion did not rely on the Lemon test and instead drew heavily from history and the need for accommodation of popular religious beliefs, viz: In light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that the practice of opening legislative sessions with prayer has become the fabric of our society. To invoke Divine guidance on a public body entrusted with making the laws is not, in these circumstances, an "establishment" of religion or a step toward establishment; it is simply a tolerable acknowledgement of beliefs widely held among the people of this country. As Justice Douglas observed, "(w)e are a religious people whose institutions presuppose a Supreme Being." (Zorach c. Clauson, 343 US 306, 313 [1952])219 (emphasis supplied) Some view the Marsh ruling as a mere aberration as the Court would "inevitably be embarrassed if it were to attempt to strike down a practice that occurs in nearly every legislature in the United States, including the U.S. Congress."220 That Marsh was not an aberration is suggested by subsequent cases. In the 1984 case of Lynch v. Donnelly,221 the Court upheld a city-sponsored nativity scene in Rhode Island. By a 5-4 decision, the majority opinion hardly employed the Lemon test and again relied on history and the fact that the creche had become a "neutral harbinger of the holiday season" for many, rather than a symbol of Christianity. The Establishment Clause has also been interpreted in the area of tax exemption. By tradition, church and charitable institutions have been exempt from local property taxes and their income exempt from federal and state income taxes. In the 1970 case of Walz v. Tax Commission,222 the New York City Tax Commission's grant of property tax exemptions to churches as allowed by state law was challenged by Walz on the theory that this required him to subsidize those churches indirectly. The Court upheld the law stressing its neutrality, viz: It has not singled out one particular church or religious group or even churches as such; rather, it has granted exemptions to all houses of religious

worship within a broad class of property owned by non-profit, quasi-public corporations . . . The State has an affirmative policy that considers these groups as beneficial and stabilizing influences in community life and finds this classification useful, desirable, and in the public interest.223 The Court added that the exemption was not establishing religion but "sparing the exercise of religion from the burden of property taxation levied on private profit institutions"224 and preventing excessive entanglement between state and religion. At the same time, the Court acknowledged the long-standing practice of religious tax exemption and the Court's traditional deference to legislative bodies with respect to the taxing power, viz: (f)ew concepts are more deeply embedded in the fabric of our national life, beginning with pre-Revolutionary colonial times, than for the government to exercise . . . this kind of benevolent neutrality toward churches and religious exercise generally so long as none was favored over others and none suffered interference.225 (emphasis supplied) C. Strict Neutrality v. Benevolent Neutrality To be sure, the cases discussed above, while citing many landmark decisions in the religious clauses area, are but a small fraction of the hundreds of religion clauses cases that the U.S. Supreme Court has passed upon. Court rulings contrary to or making nuances of the above cases may be cited. Professor McConnell poignantly recognizes this, viz: Thus, as of today, it is constitutional for a state to hire a Presbyterian minister to lead the legislature in daily prayers (Marsh v. Chambers, 463 US783, 79293[1983]), but unconstitutional for a state to set aside a moment of silence in the schools for children to pray if they want to (Wallace v. Jaffree, 472 US 38, 56 [1985]). It is unconstitutional for a state to require employers to accommodate their employees' work schedules to their sabbath observances (Estate of Thornton v. Caldor, Inc., 472 US 703, 709-10 [1985]) but constitutionally mandatory for a state to require employers to pay workers compensation when the resulting inconsistency between work and sabbath leads to discharge (. . .Sherbert v. Verner, 374 US 398, 403-4 [1963]). It is constitutional for the government to give money to religiously-affiliated organizations to teach adolescents about proper sexual behavior (Bowen v. Kendrick, 487 US 589, 611 [1988]), but not to teach them science or history (Lemon v. Kurtzman, 403 US 602, 618-619 [1971]). It is constitutional for the government to provide religious school pupils with books (Board of Education v. Allen, 392 US 236, 238 [1968]), but not with maps (Wolman v. Walter, 433 US 229, 249-51 [1977]); with bus rides to religious schools (Everson v. Board of Education, 330 US 1, 17 [1947]), but not from school to a museum on a field trip (Wolman v. Walter, 433 US 229, 252-55 [1977]); with cash to pay for statemandated standardized tests (Committee for Pub. Educ. and Religious Liberty v. Regan, 444 US 646, 653-54 [1980]), but not to pay for safety-related maintenance (Committee for Pub. Educ v. Nyquist, 413 US 756, 774-80 [1973]). It is a mess.226 But the purpose of the overview is not to review the entirety of the U.S. religion clause jurisprudence nor to extract the prevailing case law regarding particular religious beliefs or conduct colliding with particular government regulations. Rather, the cases discussed above suffice to show that, as legal scholars observe, this area of jurisprudence has demonstrated

two main standards used by the Court in deciding religion clause cases: separation (in the form of strict separation or the tamer version of strict neutrality or separation) and benevolent neutrality or accommodation. The weight of current authority, judicial and in terms of sheer volume, appears to lie with the separationists, strict or tame.227 But the accommodationists have also attracted a number of influential scholars and jurists. 228 The two standards producing two streams of jurisprudence branch out respectively from the history of the First Amendment in England and the American colonies and climaxing in Virginia as narrated in this opinion and officially acknowledged by the Court in Everson, and from American societal life which reveres religion and practices age-old religious traditions. Stated otherwise, separation - strict or tame - protects the principle of church-state separation with a rigid reading of the principle while benevolent neutrality protects religious realities, tradition and established practice with a flexible reading of the principle.229 The latter also appeals to history in support of its position, viz: The opposing school of thought argues that the First Congress intended to allow government support of religion, at least as long as that support did not discriminate in favor of one particular religion. . . the Supreme Court has overlooked many important pieces of history. Madison, for example, was on the congressional committee that appointed a chaplain, he declared several national days of prayer and fasting during his presidency, and he sponsored Jefferson's bill for punishing Sabbath breakers; moreover, while president, Jefferson allowed federal support of religious missions to the Indians. . . And so, concludes one recent book, 'there is no support in the Congressional records that either the First Congress, which framed the First Amendment, or its principal author and sponsor, James Madison, intended that Amendment to create a state of complete independence between religion and government. In fact, the evidence in the public documents goes the other way.230 (emphasis supplied) To succinctly and poignantly illustrate the historical basis of benevolent neutrality that gives room for accommodation, less than twenty-four hours after Congress adopted the First Amendment's prohibition on laws respecting an establishment of religion, Congress decided to express its thanks to God Almighty for the many blessings enjoyed by the nation with a resolution in favor of a presidential proclamation declaring a national day of Thanksgiving and Prayer. Only two members of Congress opposed the resolution, one on the ground that the move was a "mimicking of European customs, where they made a mere mockery of thanksgivings", the other on establishment clause concerns. Nevertheless, the salutary effect of thanksgivings throughout Western history was acknowledged and the motion was passed without further recorded discussion.231 Thus, accommodationists also go back to the framers to ascertain the meaning of the First Amendment, but prefer to focus on acts rather than words. Contrary to the claim of separationists that rationalism pervaded America in the late 19th century and that America was less specifically Christian during those years than at any other time before or since,232accommodationaists claim that American citizens at the time of the Constitution's origins were a remarkably religious people in particularly Christian terms.233 The two streams of jurisprudence - separationist or accommodationist - are anchored on a different reading of the "wall of separation." The strict separtionist view holds that Jefferson meant the "wall of separation" to protect the state from the church. Jefferson was a man of the Enlightenment Era of the eighteenth century, characterized by the rationalism and anticlericalism of that philosophic bent.234 He has often been regarded as espousing Deism or the rationalistic belief in a natural religion and natural law divorced from its medieval connection with divine law, and instead adhering to a secular belief in a universal

harmony.235 Thus, according to this Jeffersonian view, the Establishment Clause being meant to protect the state from the church, the state's hostility towards religion allows no interaction between the two.236 In fact, when Jefferson became President, he refused to proclaim fast or thanksgiving days on the ground that these are religious exercises and the Constitution prohibited the government from intermeddling with religion.237 This approach erects an absolute barrier to formal interdependence of religion and state. Religious institutions could not receive aid, whether direct or indirect, from the state. Nor could the state adjust its secular programs to alleviate burdens the programs placed on believers.238 Only the complete separation of religion from politics would eliminate the formal influence of religious institutions and provide for a free choice among political views thus a strict "wall of separation" is necessary.239 Strict separation faces difficulties, however, as it is deeply embedded in history and contemporary practice that enormous amounts of aid, both direct and indirect, flow to religion from government in return for huge amounts of mostly indirect aid from religion. Thus, strict separationists are caught in an awkward position of claiming a constitutional principle that has never existed and is never likely to.240 A tamer version of the strict separationist view, the strict neutrality or separationist view is largely used by the Court, showing the Court's tendency to press relentlessly towards a more secular society.241 It finds basis in the Everson case where the Court declared that Jefferson's "wall of separation" encapsulated the meaning of the First Amendment but at the same time held that the First Amendment "requires the state to be neutral in its relations with groups of religious believers and non-believers; it does not require the state to be their adversary. State power is no more to be used so as to handicap religions than it is to favor them." (emphasis supplied)242 While the strict neutrality approach is not hostile to religion, it is strict in holding that religion may not be used as a basis for classification for purposes of governmental action, whether the action confers rights or privileges or imposes duties or obligations. Only secular criteria may be the basis of government action. It does not permit, much less require, accommodation of secular programs to religious belief.243 Professor Kurland wrote, viz: The thesis proposed here as the proper construction of the religion clauses of the first amendment is that the freedom and separation clauses should be read as a single precept that government cannot utilize religion as a standard for action or inaction because these clauses prohibit classification in terms of religion either to confer a benefit or to impose a burden.244 The Court has repeatedly declared that religious freedom means government neutrality in religious matters and the Court has also repeatedly interpreted this policy of neutrality to prohibit government from acting except for secular purposes and in ways that have primarily secular effects.245 Prayer in public schools is an area where the Court has applied strict neutrality and refused to allow any form of prayer, spoken or silent, in the public schools as in Engel and Schempp.246 The McCollum case prohibiting optional religious instruction within public school premises during regular class hours also demonstrates strict neutrality. In these education cases, the Court refused to uphold the government action as they were based not on a secular but on a religious purpose. Strict neutrality was also used in Reynolds and Smith which both held that if government acts in pursuit of a generally applicable law with a secular purpose that merely incidentally burdens religious exercise, the First Amendment has not been offended. However, if the strict neutrality standard is applied in interpreting the

Establishment Clause, it could de facto void religious expression in the Free Exercise Clause. As pointed out by Justice Goldberg in his concurring opinion in Schempp, strict neutrality could lead to "a brooding and pervasive devotion to the secular and a passive, or even active, hostility to the religious" which is prohibited by the Constitution.247 Professor Laurence Tribe commented in his authoritative treatise, viz: To most observers. . . strict neutrality has seemed incompatible with the very idea of a free exercise clause. The Framers, whatever specific applications they may have intended, clearly envisioned religion as something special; they enacted that vision into law by guaranteeing the free exercise of religion but not, say, of philosophy or science. The strict neutrality approach all but erases this distinction. Thus it is not surprising that the Supreme Court has rejected strict neutrality, permitting and sometimes mandating religious classifications.248 The separationist approach, whether strict or tame, is caught in a dilemma because while the Jeffersonian wall of separation "captures the spirit of the American ideal of churchstate separation", in real life church and state are not and cannot be totally separate. 249 This is all the more true in contemporary times when both the government and religion are growing and expanding their spheres of involvement and activity, resulting in the intersection of government and religion at many points.250 Consequently, the Court has also decided cases employing benevolent neutrality. Benevolent neutrality which gives room for accommodation is buttressed by a different view of the "wall of separation" associated with Williams, founder of the Rhode Island colony. In Mark DeWolfe Howe's classic, The Garden and the Wilderness, he asserts that to the extent the Founders had a wall of separation in mind, it was unlike the Jeffersonian wall that is meant to protect the state from the church; instead, the wall is meant to protect the church from the state,251 i.e., the "garden" of the church must be walled in for its own protection from the "wilderness" of the world252 with its potential for corrupting those values so necessary to religious commitment.253 Howe called this the "theological" or "evangelical" rationale for church-state separation while the wall espoused by "enlightened" statesmen such as Jefferson and Madison, was a "political" rationale seeking to protect politics from intrusions by the church.254 But it has been asserted that this contrast between the Williams and Jeffersonian positions is more accurately described as a difference in kinds or styles of religious thinking, not as a conflict between "religious" and "secular (political)"; the religious style was biblical and evangelical in character while the secular style was grounded in natural religion, more generic and philosophical in its religious orientation.255 The Williams wall is, however, breached for the church is in the state and so the remaining purpose of the wall is to safeguard religious liberty. Williams' view would therefore allow for interaction between church and state, but is strict with regard to state action which would threaten the integrity of religious commitment.256 His conception of separation is not total such that it provides basis for certain interactions between church and state dictated by apparent necessity or practicality.257 This "theological" view of separation is found in Williams' writings, viz: . . . when they have opened a gap in the hedge or wall of separation between the garden of the church and the wilderness of the world, God hath ever broke down the wall itself, removed the candlestick, and made his garden a wilderness, as this day. And that therefore if He will eer please to restore His garden and

paradise again, it must of necessity be walled in peculiarly unto Himself from the world. . .258 Chief Justice Burger spoke of benevolent neutrality in Walz, viz: The general principle deducible from the First Amendment and all that has been said by the Court is this: that we will not tolerate either governmentally established religion or governmental interference with religion. Short of those expressly proscribed governmental acts there is room for play in the joints productive of a benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference.259 (emphasis supplied) The Zorach case expressed the doctrine of accommodation,260 viz: The First Amendment, however, does not say that in every and all respects there shall be a separation of Church and State. Rather, it studiously defines the manner, the specific ways, in which there shall be no concert or union or dependency one or the other. That is the common sense of the matter. Otherwise, the state and religion would be aliens to each other - hostile, suspicious, and even unfriendly. Churches could not be required to pay even property taxes. Municipalities would not be permitted to render police or fire protection to religious groups. Policemen who helped parishioners into their places of worship would violate the Constitution. Prayers in our legislative halls; the appeals to the Almighty in the messages of the Chief Executive; the proclamations making Thanksgiving Day a holiday; "so help me God" in our courtroom oaths- these and all other references to the Almighty that run through our laws, our public rituals, our ceremonies would be flouting the First Amendment. A fastidious atheist or agnostic could even object to the supplication with which the Court opens each session: 'God save the United States and this Honorable Court. xxx xxx xxx

We are a religious people whose institutions presuppose a Supreme Being. We guarantee the freedom to worship as one chooses. . . When the state encourages religious instruction or cooperates with religious authorities by adjusting the schedule of public events, it follows the best of our traditions. For it then respects the religious nature of our people and accommodates the public service to their spiritual needs. To hold that it may not would be to find in the Constitution a requirement that the government show a callous indifference to religious groups. . . But we find no constitutional requirement which makes it necessary for government to be hostile to religion and to throw its weight against efforts to widen their effective scope of religious influence.261 (emphases supplied) Benevolent neutrality is congruent with the sociological proposition that religion serves a function essential to the survival of society itself, thus there is no human society without one or more ways of performing the essential function of religion. Although for some individuals there may be no felt need for religion and thus it is optional or even dispensable, for society it is not, which is why there is no human society without one or more ways of performing the

essential function of religion. Even in ostensibly atheistic societies, there are vigorous underground religion(s) and surrogate religion(s) in their ideology.262 As one sociologist wrote: It is widely held by students of society that there are certain functional prerequisites without which society would not continue to exist. At first glance, this seems to be obvious - scarcely more than to say that an automobile could not exist, as a going system, without a carburetor. . . Most writers list religion among the functional prerequisites.263 Another noted sociologist, Talcott Parsons, wrote: "There is no known human society without something which modern social scientists would classify as a religionReligion is as much a human universal as language."264 Benevolent neutrality thus recognizes that religion plays an important role in the public life of the United States as shown by many traditional government practices which, to strict neutrality, pose Establishment Clause questions. Among these are the inscription of "In God We Trust" on American currency, the recognition of America as "one nation under God" in the official pledge of allegiance to the flag, the Supreme Court's time-honored practice of opening oral argument with the invocation "God save the United States and this honorable Court," and the practice of Congress and every state legislature of paying a chaplain, usually of a particular Protestant denomination to lead representatives in prayer.265 These practices clearly show the preference for one theological viewpoint -the existence of and potential for intervention by a god - over the contrary theological viewpoint of atheism. Church and government agencies also cooperate in the building of low-cost housing and in other forms of poor relief, in the treatment of alcoholism and drug addiction, in foreign aid and other government activities with strong moral dimension.266 The persistence of these de facto establishments are in large part explained by the fact that throughout history, the evangelical theory of separation, i.e., Williams' wall, has demanded respect for these de facto establishments.267 But the separationists have a different explanation. To characterize these as de jure establishments according to the principle of the Jeffersonian wall, the U.S. Supreme Court, the many dissenting and concurring opinions explain some of these practices as "'de minimis' instances of government endorsement or as historic governmental practices that have largely lost their religious significance or at least have proven not to lead the government into further involvement with religion.268 With religion looked upon with benevolence and not hostility, benevolent neutrality allows accommodation of religion under certain circumstances. Accommodations are government policies that take religion specifically into account not to promote the government's favored form of religion, but to allow individuals and groups to exercise their religion without hindrance. Their purpose or effect therefore is to remove a burden on, or facilitate the exercise of, a person's or institution's religion. As Justice Brennan explained, the "government [may] take religion into accountto exempt, when possible, from generally applicable governmental regulation individuals whose religious beliefs and practices would otherwise thereby be infringed, or to create without state involvement an atmosphere in which voluntary religious exercise may flourish."269 (emphasis supplied) Accommodation is forbearance and not alliance. it does not reflect agreement with the minority, but respect for the conflict between the temporal and spiritual authority in which the minority finds itself.270 Accommodation is distinguished from strict neutrality in that the latter holds that government should base public policy solely on secular considerations, without regard to the

religious consequences of its actions. The debate between accommodation and strict neutrality is at base a question of means: "Is the freedom of religion best achieved when the government is conscious of the effects of its action on the various religious practices of its people, and seeks to minimize interferences with those practices? Or is it best advanced through a policy of 'religious blindness' - keeping government aloof from religious practices and issues?" An accommodationist holds that it is good public policy, and sometimes constitutionally required, for the state to make conscious and deliberate efforts to avoid interference with religious freedom. On the other hand, the strict neutrality adherent believes that it is good public policy, and also constitutionally required, for the government to avoid religion-specific policy even at the cost of inhibiting religious exercise.271 There are strong and compelling reasons, however, to take the accommodationist position rather than the strict neutrality position. First, the accommodationist interpretation is most consistent with the language of the First Amendment. The religion clauses contain two parallel provisions, both specifically directed at "religion." The government may not "establish" religion and neither may government "prohibit" it. Taken together, the religion clauses can be read most plausibly as warding off two equal and opposite threats to religious freedom government action that promotes the (political) majority's favored brand of religion and government action that impedes religious practices not favored by the majority. The substantive end in view is the preservation of the autonomy of religious life and not just the formal process value of ensuring that government does not act on the basis of religious bias. On the other hand, strict neutrality interprets the religion clauses as allowing government to do whatever it desires to or for religion, as long as it does the same to or for comparable secular entities. Thus, for example, if government prohibits all alcoholic consumption by minors, it can prohibit minors from taking part in communion. Paradoxically, this view would make the religion clauses violate the religion clauses, so to speak, since the religion clauses single out religion by name for special protection. Second, the accommodationist position best achieves the purposes of the First Amendment. The principle underlying the First Amendment is that freedom to carry out one's duties to a Supreme Being is an inalienable right, not one dependent on the grace of legislature. Although inalienable, it is necessarily limited by the rights of others, including the public right of peace and good order. Nevertheless it is a substantive right and not merely a privilege against discriminatory legislation. The accomplishment of the purpose of the First Amendment requires more than the "religion blindness" of strict neutrality. With the pervasiveness of government regulation, conflicts with religious practices become frequent and intense. Laws that are suitable for secular entities are sometimes inappropriate for religious entities, thus the government must make special provisions to preserve a degree of independence for religious entities for them to carry out their religious missions according to their religious beliefs. Otherwise, religion will become just like other secular entities subject to pervasive regulation by majoritarian institutions. Third, the accommodationist interpretation is particularly necessary to protect adherents of minority religions from the inevitable effects of majoritarianism, which include ignorance and indifference and overt hostility to the minority. In a democratic republic, laws are inevitably based on the presuppositions of the majority, thus not infrequently, they come into conflict with the religious scruples of those holding different world views, even in the absence of a deliberate intent to interfere with religious practice. At times, this effect is unavoidable as a practical matter because some laws are so necessary to the common good that exceptions are intolerable. But in other instances, the injury to religious conscience is so great and the advancement of public purposes so small or incomparable that only indifference or hostility could explain a refusal to make exemptions. Because of plural traditions, legislators and executive officials are frequently willing to make such exemptions when the need is brought to their attention, but this may not always be the case when the

religious practice is either unknown at the time of enactment or is for some reason unpopular. In these cases, a constitutional interpretation that allows accommodations prevents needless injury to the religious consciences of those who can have an influence in the legislature; while a constitutional interpretation that requires accommodations extends this treatment to religious faiths that are less able to protect themselves in the political arena. Fourth, the accommodationist position is practical as it is a commonsensical way to deal with the various needs and beliefs of different faiths in a pluralistic nation. Without accommodation, many otherwise beneficial laws would interfere severely with religious freedom. Aside from laws against serving alcoholic beverages to minors conflicting with celebration of communion, regulations requiring hard hats in construction areas can effectively exclude Amish and Sikhs from the workplace, or employment anti-discrimination laws can conflict with the Roman Catholic male priesthood, among others. Exemptions from such laws are easy to craft and administer and contribute much to promoting religious freedom at little cost to public policy. Without exemptions, legislature would be frequently forced to choose between violating religious conscience of a segment of the population or dispensing with legislation it considers beneficial to society as a whole. Exemption seems manifestly more reasonable than either of the alternative: no exemption or no law.272 Benevolent neutrality gives room for different kinds of accommodation: those which are constitutionally compelled, i.e., required by the Free Exercise Clause; and those which are discretionary or legislative, i.e., and those not required by the Free Exercise Clause but nonetheless permitted by the Establishment Clause.273 Some Justices of the Supreme Court have also used the term accommodation to describe government actions that acknowledge or express prevailing religious sentiments of the community such as display of a religious symbol on public property or the delivery of a prayer at public ceremonial events.274 Stated otherwise, using benevolent neutrality as a standard could result to three situations of accommodation: those where accommodation is required, those where it is permissible, and those where it is prohibited. In the first situation, accommodation is required to preserve free exercise protections and not unconstitutionally infringe on religious liberty or create penalties for religious freedom. Contrary to the Smith declaration that free exercise exemptions are "intentional government advancement", these exemptions merely relieve the prohibition on the free exercise thus allowing the burdened religious adherent to be left alone. The state must create exceptions to laws of general applicability when these laws threaten religious convictions or practices in the absence of a compelling state interest. 275 By allowing such exemptions, the Free Exercise Clause does not give believers the right or privilege to choose for themselves to override socially-prescribed decision; it allows them to obey spiritual rather than temporal authority276 for those who seriously invoke the Free Exercise Clause claim to be fulfilling a solemn duty. Religious freedom is a matter less of rights than duties; more precisely, it is a matter of rights derived from duties. To deny a person or a community the right to act upon such a duty can be justified only by appeal to a yet more compelling duty. Of course, those denied will usually not find the reason for the denial compelling. "Because they may turn out to be right about the duty in question, and because, even if they are wrong, religion bears witness to that which transcends the political order, such denials should be rare and painfully reluctant."277 The Yoder case is an example where the Court held that the state must accommodate the religious beliefs of the Amish who objected to enrolling their children in high school as required by law. The Sherbert case is another example where the Court held that the state unemployment compensation plan must accommodate the religious convictions of Sherbert.278 In these cases of "burdensome effect", the modern approach of the Court has been to apply strict scrutiny, i.e., to declare the burden as permissible, the Court requires the

state to demonstrate that the regulation which burdens the religious exercise pursues a particularly important or compelling government goal through the least restrictive means. If the state's objective could be served as well or almost as well by granting an exemption to those whose religious beliefs are burdened by the regulation, such an exemption must be given.279This approach of the Court on "burdensome effect" was only applied since the 1960s. Prior to this time, the Court took the separationist view that as long as the state was acting in pursuit of non-religious ends and regulating conduct rather than pure religious beliefs, the Free Exercise Clause did not pose a hindrance such as in Reynolds.280 In the second situation where accommodation is permissible, the state may, but is not required to, accommodate religious interests. The Walz case illustrates this situation where the Court upheld the constitutionality of tax exemption given by New York to church properties, but did not rule that the state was required to provide tax exemptions. The Court declared that "(t)he limits of permissible state accommodation to religion are by no means co-extensive with the noninterference mandated by the Free Exercise Clause."281 The Court held that New York could have an interest in encouraging religious values and avoiding threats to those values through the burden of property taxes. Other examples are the Zorach case allowing released time in public schools and Marsh allowing payment of legislative chaplains from public funds. Finally, in the situation where accommodation is prohibited, establishment concerns prevail over potential accommodation interests. To say that there are valid exemptions buttressed by the Free Exercise Clause does not mean that all claims for free exercise exemptions are valid.282 An example where accommodation was prohibited is McCollum where the Court ruled against optional religious instruction in the public school premises.283 In effect, the last situation would arrive at a strict neutrality conclusion. In the first situation where accommodation is required, the approach follows this basic framework: If the plaintiff can show that a law or government practice inhibits the free exercise of his religious beliefs, the burden shifts to the government to demonstrate that the law or practice is necessary to the accomplishment of some important (or 'compelling') secular objective and that it is the least restrictive means of achieving that objective. If the plaintiff meets this burden and the government does not, the plaintiff is entitled to exemption from the law or practice at issue. In order to be protected, the claimant's beliefs must be 'sincere', but they need not necessarily be consistent, coherent, clearly articulated, or congruent with those of the claimant's religious denomination. 'Only beliefs rooted in religion are protected by the Free Exercise Clause'; secular beliefs, however sincere and conscientious, do not suffice.284 In other words, a three-step process (also referred to as the "two-step balancing process" supra when the second and third steps are combined) as in Sherbert is followed in weighing the state's interest and religious freedom when these collide. Three questions are answered in this process. First, "(h)as the statute or government action created a burden on the free exercise of religion?" The courts often look into the sincerity of the religious belief, but without inquiring into the truth of the belief because the Free Exercise Clause prohibits inquiring about its truth as held in Ballard and Cantwell. The sincerity of the claimant's belief is ascertained to avoid the mere claim of religious beliefs to escape a mandatory regulation. As evidence of sincerity, the U.S. Supreme Court has considered historical evidence as in Wisconsin where the Amish people had held a long-standing objection to enrolling their children in ninth and tenth grades in public high schools. In another case, Dobkin v. District of Columbia,285 the Court denied the claim of a party who refused to appear in court on

Saturday alleging he was a Sabbatarian, but the Court noted that he regularly conducted business on Saturday. Although it is true that the Court might erroneously deny some claims because of a misjudgment of sincerity, this is not as argument to reject all claims by not allowing accommodation as a rule. There might be injury to the particular claimant or to his religious community, but for the most part, the injustice is done only in the particular case.286 Aside from the sincerity, the court may look into the centrality of those beliefs, assessing them not on an objective basis but in terms of the opinion and belief of the person seeking exemption. In Wisconsin, for example, the Court noted that the Amish people's convictions against becoming involved in public high schools were central to their way of life and faith. Similarly, in Sherbert, the Court concluded that the prohibition against Saturday work was a "cardinal principle."287 Professor Lupu puts to task the person claiming exemption, viz: On the claimant's side, the meaning and significance of the relevant religious practice must be demonstrated. Religious command should outweigh custom, individual conscience should count for more than personal convenience, and theological principle should be of greater significance than institutional ease. Sincerity matters, (footnote omitted) and longevity of practice - both by the individual and within the individual's religious tradition - reinforces sincerity. Most importantly, the law of free exercise must be inclusive and expansive, recognizing non-Christian religions - eastern, Western, aboriginal and otherwise - as constitutionally equal to their Christian counterparts, and accepting of the intensity and scope of fundamentalist creed.288 Second, the court asks: "(i)s there a sufficiently compelling state interest to justify this infringement of religious liberty?" In this step, the government has to establish that its purposes are legitimate for the state and that they are compelling. Government must do more than assert the objectives at risk if exemption is given; it must precisely show how and to what extent those objectives will be undermined if exemptions are granted.289 The person claiming religious freedom, on the other hand, will endeavor to show that the interest is not legitimate or that the purpose, although legitimate, is not compelling compared to infringement of religious liberty. This step involves balancing, i.e., weighing the interest of the state against religious liberty to determine which is more compelling under the particular set of facts. The greater the state's interests, the more central the religious belief would have to be to overcome it. In assessing the state interest, the court will have to determine the importance of the secular interest and the extent to which that interest will be impaired by an exemption for the religious practice. Should the court find the interest truly compelling, there will be no requirement that the state diminish the effectiveness of its regulation by granting the exemption.290 Third, the court asks: "(h)as the state in achieving its legitimate purposes used the least intrusive means possible so that the free exercise is not infringed any more than necessary to achieve the legitimate goal of the state?"291The analysis requires the state to show that the means in which it is achieving its legitimate state objective is the least intrusive means, i.e., it has chosen a way to achieve its legitimate state end that imposes as little as possible on religious liberties. In Cantwell, for example, the Court invalidated the license requirement for the door-to-door solicitation as it was a forbidden burden on religious liberty, noting that less drastic means of insuring peace and tranquility existed. As a whole, in carrying out the compelling state interest test, the Court should give careful attention to context, both religious and regulatory, to achieve refined judgment.292

In sum, as shown by U.S. jurisprudence on religion clause cases, the competing values of secular government and religious freedom create tensions that make constitutional law on the subject of religious liberty unsettled, mirroring the evolving views of a dynamic society.293 VII. Religion Clauses in the Philippines A. History Before our country fell under American rule, the blanket of Catholicism covered the archipelago. There was a union of church and state and Catholicism was the state religion under the Spanish Constitution of 1876. Civil authorities exercised religious functions and the friars exercised civil powers.294 Catholics alone enjoyed the right of engaging in public ceremonies of worship.295 Although the Spanish Constitution itself was not extended to the Philippines, Catholicism was also the established church in our country under the Spanish rule. Catholicism was in fact protected by the Spanish Penal Code of 1884 which was in effect in the Philippines. Some of the offenses in chapter six of the Penal Code entitled "Crimes against Religion and Worship" referred to crimes against the state religion.296 The coming of the Americans to our country, however, changed this state-church scheme for with the advent of this regime, the unique American experiment of "separation of church and state" was transported to Philippine soil. Even as early as the conclusion of the Treaty of Paris between the United States and Spain on December 10, 1898, the American guarantee of religious freedom had been extended to the Philippines. The Treaty provided that "the inhabitants of the territories over which Spain relinquishes or cedes her sovereignty shall be secured in the free exercise of religion."297 Even the Filipinos themselves guaranteed religious freedom a month later or on January 22, 1899 upon the adoption of the Malolos Constitution of the Philippine Republic under General Emilio Aguinaldo. It provided that "the State recognizes the liberty and equality of all religion (de todos los cultos) in the same manner as the separation of the Church and State." But the Malolos Constitution and government was short-lived as the Americans took over the reigns of government.298 With the Philippines under the American regime, President McKinley issued Instructions to the Second Philippine Commission, the body created to take over the civil government in the Philippines in 1900. The Instructions guaranteed religious freedom, viz: That no law shall be made respecting the establishment of religion or prohibiting the free exercise thereof, and that the free exercise and enjoyment of religious profession and worship without discrimination or preference shall forever be allowed ... that no form of religion and no minister of religion shall be forced upon the community or upon any citizen of the Islands, that, on the other hand, no minister of religion shall be interfered with or molested in following his calling.299 This provision was based on the First Amendment of the United States Constitution. Likewise, the Instructions declared that "(t)he separation between State and Church shall be real, entire and absolute."300

Thereafter, every organic act of the Philippines contained a provision on freedom of religion. Similar to the religious freedom clause in the Instructions, the Philippine Bill of 1902 provided that: No law shall be made respecting an establishment of religion or prohibiting the free exercise thereof, and that free exercise and enjoyment of religious worship, without discrimination or preference, shall forever be allowed. In U.S. v. Balcorta,301 the Court stated that the Philippine Bill of 1902 "caused the complete separation of church and state, and the abolition of all special privileges and all restrictions theretofor conferred or imposed upon any particular religious sect."302 The Jones Law of 1916 carried the same provision, but expanded it with a restriction against using public money or property for religious purposes, viz: That no law shall be made respecting an establishment of religion or prohibiting the free exercise thereof, and that the free exercise and enjoyment of religious profession and worship without discrimination or preference, shall forever be allowed; and no religious test shall be required for the exercise of civil or political rights. No public money or property shall ever be appropriated, applied, donated, or used, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, sectarian institution, or system of religion, or for the use, benefit or support of any priest, preacher, minister, or other religious teachers or dignitary as such. This was followed by the Philippine Independence Law or Tydings-McDuffie Law of 1934 which guaranteed independence to the Philippines and authorized the drafting of a Philippine constitution. It enjoined Filipinos to include freedom of religion in drafting their constitution preparatory to the grant of independence. The law prescribed that "(a)bsolute toleration of religious sentiment shall be secured and no inhabitant or religious organization shall be molested in person or property on account of religious belief or mode of worship."303 The Constitutional Convention then began working on the 1935 Constitution. In their proceedings, Delegate Jose P. Laurel as Chairman of the Committee on Bill of Rights acknowledged that "(i)t was the Treaty of Paris of December 10, 1898, which first introduced religious toleration in our country. President McKinley's Instructions to the Second Philippine Commission reasserted this right which later was incorporated into the Philippine Bill of 1902 and in the Jones Law."304 In accordance with the Tydings-McDuffie Law, the 1935 Constitution provided in the Bill of Rights, Article IV, Section 7, viz: Sec. 7. No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof, and the free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political rights. This provision, borrowed from the Jones Law, was readily approved by the Convention.305 In his speech as Chairman of the Committee on Bill of Rights,

Delegate Laurel said that modifications in phraseology of the Bill of Rights in the Jones Law were avoided whenever possible because "the principles must remain couched in a language expressive of their historical background, nature, extent and limitations as construed and interpreted by the great statesmen and jurists that vitalized them."306 The 1973 Constitution which superseded the 1935 Constitution contained an almost identical provision on religious freedom in the Bill of Rights in Article IV, Section 8, viz: Sec. 8. No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political rights. This time, however, the General Provisions in Article XV added in Section 15 that "(t)he separation of church and state shall be inviolable." Without discussion by the 1986 Constitutional Commission, the 1973 religious clauses were reproduced in the 1987 Constitution under the Bill of Rights in Article III, Section 5.307 Likewise, the provision on separation of church and state was included verbatim in the 1987 Constitution, but this time as a principle in Section 6, Article II entitled Declaration of Principles and State Policies. Considering the American origin of the Philippine religion clauses and the intent to adopt the historical background, nature, extent and limitations of the First Amendment of the U.S. Constitution when it was included in the 1935 Bill of Rights, it is not surprising that nearly all the major Philippine cases involving the religion clauses turn to U.S. jurisprudence in explaining the nature, extent and limitations of these clauses. However, a close scrutiny of these cases would also reveal that while U.S. jurisprudence on religion clauses flows into two main streams of interpretation - separation and benevolent neutrality - the well-spring of Philippine jurisprudence on this subject is for the most part, benevolent neutrality which gives room for accommodation. B. Jurisprudence In revisiting the landscape of Philippine jurisprudence on the religion clauses, we begin with the definition of "religion". "Religion" is derived from the Middle English religioun, from Old French religion, from Latin religio, vaguely referring to a "bond between man and the gods."308 This pre-Christian term for the cult and rituals of pagan Rome was first Christianized in the Latin translation of the Bible.309 While the U.S. Supreme Court has had to take up the challenge of defining the parameters and contours of "religion" to determine whether a nontheistic belief or act is covered by the religion clauses, this Court has not been confronted with the same issue. In Philippine jurisprudence, religion, for purposes of the religion clauses, has thus far been interpreted as theistic. In 1937, the Philippine case of Aglipay v. Ruiz310 involving the Establishment Clause, defined "religion" as a "profession of faith to an active power that binds and elevates man to his Creator." Twenty years later, the Court cited the Aglipay definition in American Bible Society v. City of Manila,311 a case involving the Free Exercise clause. The latter also cited the American case of Davis in defining religion, viz: "(i)t has reference to one's views of his relations to His Creator and to the

obligations they impose of reverence to His being and character and obedience to His Will." The Beason definition, however, has been expanded in U.S. jurisprudence to include nontheistic beliefs. 1. Free Exercise Clause Freedom of choice guarantees the liberty of the religious conscience and prohibits any degree of compulsion or burden, whether direct or indirect, in the practice of one's religion. The Free Exercise Clause principally guarantees voluntarism, although the Establishment Clause also assures voluntarism by placing the burden of the advancement of religious groups on their intrinsic merits and not on the support of the state.312 In interpreting the Free Exercise Clause, the realm of belief poses no difficulty. The early case of Gerona v. Secretary of Education313 is instructive on the matter, viz: The realm of belief and creed is infinite and limitless bounded only by one's imagination and thought. So is the freedom of belief, including religious belief, limitless and without bounds. One may believe in most anything, however strange, bizarre and unreasonable the same may appear to others, even heretical when weighed in the scales of orthodoxy or doctrinal standards. But between the freedom of belief and the exercise of said belief, there is quite a stretch of road to travel.314 The difficulty in interpretation sets in when belief is externalized into speech and action. Religious speech comes within the pale of the Free Exercise Clause as illustrated in the American Bible Society case. In that case, plaintiff American Bible Society was a foreign, non-stock, non-profit, religious missionary corporation which sold bibles and gospel portions of the bible in the course of its ministry. The defendant City of Manila required plaintiff to secure a mayor's permit and a municipal license as ordinarily required of those engaged in the business of general merchandise under the city's ordinances. Plaintiff argued that this amounted to "religious censorship and restrained the free exercise and enjoyment of religious profession, to wit: the distribution and sale of bibles and other religious literature to the people of the Philippines." After defining religion, the Court, citing Tanada and Fernando, made this statement, viz: The constitutional guaranty of the free exercise and enjoyment of religious profession and worship carries with it the right to disseminate religious information. Any restraint of such right can only be justified like other restraints of freedom of expression on the grounds that there is a clear and present danger of any substantive evil which the State has the right to prevent. (Tanada and Fernando on the Constitution of the Philippines, vol. 1, 4th ed., p. 297) (emphasis supplied) This was the Court's maiden unequivocal affirmation of the "clear and present danger" rule in the religious freedom area, and in Philippine jurisprudence, for that matter.315 The case did not clearly show, however, whether the Court proceeded to apply the test to the facts and issues of the case, i.e., it did not identify the secular value the government regulation sought to protect, whether the religious speech posed a clear and present danger to this or other

secular value protected by government, or whether there was danger but it could not be characterized as clear and present. It is one thing to apply the test and find that there is no clear and present danger, and quite another not to apply the test altogether. Instead, the Court categorically held that the questioned ordinances were not applicable to plaintiff as it was not engaged in the business or occupation of selling said "merchandise" for profit. To add, the Court, citing Murdock v. Pennsylvania,316 ruled that applying the ordinance requiring it to secure a license and pay a license fee or tax would impair its free exercise of religious profession and worship and its right of dissemination of religious beliefs "as the power to tax the exercise of a privilege is the power to control or suppress its enjoyment." Thus, in American Bible Society, the "clear and present danger" rule was laid down but it was not clearly applied. In the much later case of Tolentino v. Secretary of Finance,317 also involving the sale of religious books, the Court distinguished the American Bible Society case from the facts and issues in Tolentino and did not apply the American Bible Society ruling. In Tolentino, the Philippine Bible Society challenged the validity of the registration provisions of the Value Added Tax (VAT) Law as a prior restraint. The Court held, however, that the fixed amount of registration fee was not imposed for the exercise of a privilege like a license tax which American Bible Society ruled was violative of religious freedom. Rather, the registration fee was merely an administrative fee to defray part of the cost of registration which was a central feature of the VAT system. Citing Jimmy Swaggart Ministries v. Board of Equalization,318 the Court also declared prefatorily that "the Free Exercise of Religion Clause does not prohibit imposing a generally applicable sales and use tax on the sale of religious materials by a religious organization." In the Court's resolution of the motion for reconsideration of the Tolentino decision, the Court noted that the burden on religious freedom caused by the tax was just similar to any other economic imposition that might make the right to disseminate religious doctrines costly. Two years after American Bible Society came the 1959 case of Gerona v. Secretary of Education,319 this time involving conduct expressive of religious belief colliding with a rule prescribed in accordance with law. In this case, petitioners were members of the Jehovah's Witnesses. They challenged a Department Order issued by the Secretary of Education implementing Republic Act No. 1265 which prescribed compulsory flag ceremonies in all public schools. In violation of the Order, petitioner's children refused to salute the Philippine flag, sing the national anthem, or recite the patriotic pledge, hence they were expelled from school. Seeking protection under the Free Exercise Clause, petitioners claimed that their refusal was on account of their religious belief that the Philippine flag is an image and saluting the same is contrary to their religious belief. The Court stated, viz: . . . If the exercise of religious belief clashes with the established institutions of society and with the law, then the former must yield to the latter. The Government steps in and either restrains said exercise or even prosecutes the one exercising it. (emphasis supplied)320 The Court then proceeded to determine if the acts involved constituted a religious ceremony in conflict with the beliefs of the petitioners with the following justification: After all, the determination of whether a certain ritual is or is not a religious ceremony must rest with the courts. It cannot be left to a religious group or sect, much less to a follower

of said group or sect; otherwise, there would be confusion and misunderstanding for there might be as many interpretations and meaning to be given to a certain ritual or ceremony as there are religious groups or sects or followers, all depending upon the meaning which they, though in all sincerity and good faith, may want to give to such ritual or ceremony.321 It was held that the flag was not an image, the flag salute was not a religious ceremony, and there was nothing objectionable about the singing of the national anthem as it speaks only of love of country, patriotism, liberty and the glory of suffering and dying for it. The Court upheld the questioned Order and the expulsion of petitioner's children, stressing that: Men may differ and do differ on religious beliefs and creeds, government policies, the wisdom and legality of laws, even the correctness of judicial decisions and decrees; but in the field of love of country, reverence for the flag, national unity and patriotism, they can hardly afford to differ, for these are matters in which they are mutually and vitally interested, for to them, they mean national existence and survival as a nation or national extinction.322 In support of its ruling, the Court cited Justice Frankfurter's dissent in the Barnette case, viz: The constitutional protection of religious freedom x x x gave religious equality, not civil immunity. Its essence is freedom from conformity to religious dogma, not freedom from conformity to law because of religious dogma.323 It stated in categorical terms, viz: The freedom of religious belief guaranteed by the Constitution does not and cannot mean exemption from or non-compliance with reasonable and non-discriminatory laws, rules and regulations promulgated by competent authority.324 Thus, the religious freedom doctrines one can derive from Gerona are: (1) it is incumbent upon the Court to determine whether a certain ritual is religious or not; (2) religious freedom will not be upheld if it clashes with the established institutions of society and with the law such that when a law of general applicability (in this case the Department Order) incidentally burdens the exercise of one's religion, one's right to religious freedom cannot justify exemption from compliance with the law. The Gerona ruling was reiterated in Balbuna, et al. v. Secretary of Education, et al.325 Fifteen years after Gerona came the 1974 case of Victoriano v. Elizalde Rope Workers Union.[326] In this unanimously decided en banc case, Victoriano was a member of the Iglesia ni Cristo which prohibits the affiliation of its members with any labor organization. He worked in the Elizalde Rope Factory, Inc. and was a member of the Elizalde Rope Workers Union which had with the company a closed shop provision pursuant to Republic Act No. 875 allowing closed shop arrangements. Subsequently, Republic Act No. 3350 was enacted exempting from the application and coverage of a closed shop agreement employees belonging to any religious sect which prohibits affiliation of their members with any labor organization. Victoriano resigned from the union after Republic Act No. 3350 took effect. The union notified the company of Victoriano's resignation, which in turn notified Victoriano that unless he could make a satisfactory arrangement with the union, the company would be

constrained to dismiss him from the service. Victoriano sought to enjoin the company and the union from dismissing him. The court having granted the injunction, the union came to this Court on questions of law, among which was whether Republic Act No. 3350 was unconstitutional for impairing the obligation of contracts and for granting an exemption offensive of the Establishment Clause. With respect to the first issue, the Court ruled, viz: Religious freedom, although not unlimited, is a fundamental personal right and liberty (Schneider v. Irgington, 308 U.S. 147, 161, 84 L.ed.155, 164, 60 S.Ct. 146) and has a preferred position in the hierarchy of values. Contractual rights, therefore, must yield to freedom of religion. It is only where unavoidably necessary to prevent an immediate and grave danger to the security and welfare of the community that infringement of religious freedom may be justified, and only to the smallest extent necessary.327 (emphasis supplied) As regards the Establishment Clause issue, the Court after citing the constitutional provision on establishment and free exercise of religion, declared, viz: The constitutional provisions not only prohibits legislation for the support of any religious tenets or the modes of worship of any sect, thus forestalling compulsion by law of the acceptance of any creed or the practice of any form of worship (U.S. Ballard, 322 U.S. 78, 88 L. ed. 1148, 1153), but also assures the free exercise of one's chosen form of religion within limits of utmost amplitude. It has been said that the religion clauses of the Constitution are all designed to protect the broadest possible liberty of conscience, to allow each man to believe as his conscience directs, to profess his beliefs, and to live as he believes he ought to live, consistent with the liberty of others and with the common good. (footnote omitted). Any legislation whose effect or purpose is to impede the observance of one or all religions, or to discriminate invidiously between the religions, is invalid, even though the burden may be characterized as being only indirect. (Sherbert v. Verner, 374 U.S. 398, 10 L.ed.2d 965, 83 S. Ct. 1970) But if the state regulates conduct by enacting, within its power, a general law which has for its purpose and effect to advance the state's secular goals, the statute is valid despite its indirect burden on religious observance, unless the state can accomplish its purpose without imposing such burden. (Braunfeld v. Brown, 366 U.S. 599, 6 L ed. 2d. 563, 81 S. Ct. 144; McGowan v. Maryland, 366 U.S. 420, 444-5 and 449) 328 (emphasis supplied) Quoting Aglipay v. Ruiz,329 the Court held that "government is not precluded from pursuing valid objectives secular in character even if the incidental result would be favorable to a religion or sect." It also cited Board of Education v. Allen,330 which held that in order to withstand the strictures of constitutional prohibition, a statute must have a secular legislative purpose and a primary effect that neither advances nor inhibits religion. Using these criteria in upholding Republic Act No. 3350, the Court pointed out, viz: (Republic Act No. 3350) was intended to serve the secular purpose of advancing the constitutional right to the free exercise of religion, by averting that certain persons be refused work, or be dismissed from work, or be dispossessed of their right to work and of being impeded to pursue a modest means of livelihood, by reason of union security agreements. . . . The primary effects of the exemption from closed shop agreements in favor of members of religious sects that prohibit

their members from affiliating with a labor organization, is the protection of said employees against the aggregate force of the collective bargaining agreement, and relieving certain citizens of a burden on their religious beliefs, and . . . eliminating to a certain extent economic insecurity due to unemployment.331 The Court stressed that "(a)lthough the exemption may benefit those who are members of religious sects that prohibit their members from joining labor unions, the benefit upon the religious sects is merely incidental and indirect."332 In enacting Republic Act No. 3350, Congress merely relieved the exercise of religion by certain persons of a burden imposed by union security agreements which Congress itself also imposed through the Industrial Peace Act. The Court concluded the issue of exemption by citing Sherbert which laid down the rule that when general laws conflict with scruples of conscience, exemptions ought to be granted unless some "compelling state interest" intervenes. The Court then abruptly added that "(i)n the instant case, We see no compelling state interest to withhold exemption."333 A close look at Victoriano would show that the Court mentioned several tests in determining when religious freedom may be validly limited. First, the Court mentioned the test of "immediate and grave danger to the security and welfare of the community" and "infringement of religious freedom only to the smallest extent necessary" to justify limitation of religious freedom. Second, religious exercise may be indirectly burdened by a general law which has for its purpose and effect the advancement of the state's secular goals, provided that there is no other means by which the state can accomplish this purpose without imposing such burden. Third, the Court referred to the "compelling state interest" test which grants exemptions when general laws conflict with religious exercise, unless a compelling state interest intervenes. It is worth noting, however, that the first two tests were mentioned only for the purpose of highlighting the importance of the protection of religious freedom as the secular purpose of Republic Act No. 3350. Upholding religious freedom was a secular purpose insofar as it relieved the burden on religious freedom caused by another law, i.e, the Industrial Peace Act providing for union shop agreements. The first two tests were only mentioned in Victoriano but were not applied by the Court to the facts and issues of the case. The third, the "compelling state interest" test was employed by the Court to determine whether the exemption provided by Republic Act No. 3350 was not unconstitutional. It upheld the exemption, stating that there was no "compelling state interest" to strike it down. However, after careful consideration of the Sherbert case from which Victoriano borrowed this test, the inevitable conclusion is that the "compelling state interest" test was not appropriate and could not find application in the Victoriano case. In Sherbert, appellant Sherbert invoked religious freedom in seeking exemption from the provisions of the South Carolina Unemployment Compensation Act which disqualified her from claiming unemployment benefits. It was the appellees, members of the South Carolina Employment Commission, a government agency, who propounded the state interest to justify overriding Sherbert's claim of religious freedom. The U.S. Supreme Court, considering Sherbert's and the Commission's arguments, found that the state interest was not sufficiently compelling to prevail over Sherbert's free exercise claim. This situation did not obtain in the Victoriano case where it was the government itself, through Congress, which provided the exemption in Republic Act No. 3350 to allow Victoriano's exercise of religion. Thus, the government could not argue against the exemption on the basis of a compelling state interest as it would be arguing against itself; while Victoriano would not seek exemption from the questioned law to allow the free exercose of religion as the law in fact provides such an exemption. In sum, although Victoriano involved a

religious belief and conduct, it did not involve a free exercise issue where the Free Exercise Clause is invoked to exempt him from the burden imposed by a law on his religious freedom. Victoriano was reiterated in several cases involving the Iglesia ni Cristo, namely Basa, et al. v. Federacion Obrera de la Industria Tabaquera y Otros Trabajadores de Filipinas,334 Anucension v. National Labor Union, et al.,335 and Gonzales, et al. v. Central Azucarera de Tarlac Labor Union.336 Then came German v. Barangan in 1985 at the height of the anti-administration rallies. Petitioners were walking to St. Jude Church within the Malacanang security area to pray for "an end to violence" when they were barred by the police. Invoking their constitutional freedom of religious worship and locomotion, they came to the Court on a petition for mandamus to allow them to enter and pray inside the St. Jude Chapel. The Court was divided on the issue. The slim majority of six recognized their freedom of religion but noted their absence of good faith and concluded that they were using their religious liberty to express their opposition to the government. Citing Cantwell, the Court distinguished between freedom to believe and freedom to act on matters of religion, viz: . . . Thus the (First) amendment embraces two concepts - freedom to believe and freedom to act. The first is absolute, but in the nature of things, the second cannot be.337 The Court reiterated the Gerona ruling, viz: In the case at bar, petitioners are not denied or restrained of their freedom of belief or choice of their religion, but only in the manner by which they had attempted to translate the same to action. This curtailment is in accord with the pronouncement of this Court in Gerona v. Secretary of Education (106 Phil. 2), thus: . . . But between the freedom of belief and the exercise of said belief, there is quite a stretch of road to travel. If the exercise of said religious belief clashes with the established institutions of society and with the law, then the former must yield and give way to the latter. The government steps in and either restrains said exercise or even prosecutes the one exercising it. (italics supplied) The majority found that the restriction imposed upon petitioners was "necessary to maintain the smooth functioning of the executive branch of the government, which petitioners' mass action would certainly disrupt"338and denied the petition. Thus, without considering the tests mentioned in Victoriano, German went back to the Gerona rule that religious freedom will not be upheld if it clashes with the established institutions of society and the law. Then Associate Justice Teehankee registered a dissent which in subsequent jurisprudence would be cited as a test in religious freedom cases. His dissent stated in relevant part, viz: A brief restatement of the applicable constitutional principles as set forth in the landmark case of J.B.L. Reyes v. Bagatsing (125 SCRA 553[1983]) should guide us in resolving the issues.

1. The right to freely exercise one's religion is guaranteed in Section 8 of our Bill of Rights. (footnote omitted) Freedom of worship, alongside with freedom of expression and speech and peaceable assembly "along with the other intellectual freedoms, are highly ranked in our scheme of constitutional values. It cannot be too strongly stressed that on the judiciary - even more so than on the other departments - rests the grave and delicate responsibility of assuring respect for and deference to such preferred rights. No verbal formula, no sanctifying phrase can, of course, dispense with what has been so felicitously termed by Justice Holmes 'as the sovereign prerogative of judgment.' Nonetheless, the presumption must be to incline the weight of the scales of justice on the side of such rights, enjoying as they do precedence and primacy.' (J.B.L. Reyes, 125 SCRA at pp. 569-570) 2. In the free exercise of such preferred rights, there is to be no prior restraint although there may be subsequent punishment of any illegal acts committed during the exercise of such basic rights. The sole justification for a prior restraint or limitation on the exercise of these basic rights is the existence of a grave and present danger of a character both grave and imminent, of a serious evil to public safety, public morals, public health or any other legitimate public interest, that the State has a right (and duty) to prevent (Idem, at pp. 560-561).339 (emphasis supplied) The J.B.L. Reyes v. Bagatsing case from which this portion of Justice Teehankee's dissent was taken involved the rights to free speech and assembly, and not the exercise of religious freedom. At issue in that case was a permit sought by retired Justice J.B.L. Reyes, on behalf of the Anti-Bases Coalition, from the City of Manila to hold a peaceful march and rally from the Luneta to the gates of the U.S. Embassy. Nevertheless Bagatsing was used by Justice Teehankee in his dissent which had overtones of petitioner German and his companions' right to assemble and petition the government for redress of grievances.340 In 1993, the issue on the Jehovah's Witnesses' participation in the flag ceremony again came before the Court inEbralinag v. The Division Superintendent of Schools.341 A unanimous Court overturned the Gerona ruling after three decades. Similar to Gerona, this case involved several Jehovah's Witnesses who were expelled from school for refusing to salute the flag, sing the national anthem and recite the patriotic pledge, in violation of the Administrative Code of 1987. In resolving the same religious freedom issue as in Gerona, the Court this time transported the "grave and imminent danger" test laid down in Justice Teehankee's dissent in German, viz: The sole justification for a prior restraint or limitation on the exercise of religious freedom (according to the late Chief Justice Claudio Teehankee in his dissenting opinion in German v. Barangan, 135 SCRA 514, 517) is the existence of a grave and present danger of a character both grave and imminent, of a serious evil to public safety, public morals, public health or any other legitimate public interest, that the State has a right (and duty) to prevent. Absent such a threat to public safety, the expulsion of the petitioners from the schools is not justified.342 (emphasis supplied) The Court added, viz:

We are not persuaded that by exempting the Jehovah's Witnesses from saluting the flag, singing the national anthem and reciting the patriotic pledge, this religious group which admittedly comprises a 'small portion of the school population' will shake up our part of the globe and suddenly produce a nation 'untaught and uninculcated in and unimbued with reverence for the flag, patriotism, love of country and admiration for national heroes' (Gerona v. Secretary of Education, 106 Phil. 224). After all, what the petitioners seek only is exemption from the flag ceremony, not exclusion from the public schools where they may study the Constitution, the democratic way of life and form of government, and learn not only the arts, sciences, Philippine history and culture but also receive training for a vocation or profession and be taught the virtues of 'patriotism, respect for human rights, appreciation of national heroes, the rights and duties of citizenship, and moral and spiritual values' (Sec. 3[2], Art. XIV, 1987 Constitution) as part of the curricula. Expelling or banning the petitioners from Philippine schools will bring about the very situation that this Court has feared in Gerona. Forcing a small religious group, through the iron hand of the law, to participate in a ceremony that violates their religious beliefs, will hardly be conducive to love of country or respect for duly constituted authorities.343 Barnette also found its way to the opinion, viz: Furthermore, let it be noted that coerced unity and loyalty even to the country, x x x- assuming that such unity and loyalty can be attained through coercion- is not a goal that is constitutionally obtainable at the expense of religious liberty. A desirable end cannot be promoted by prohibited means. (Meyer vs. Nebraska, 262 U.S. 390, 67 L. ed. 1042, 1046).344 Towards the end of the decision, the Court also cited the Victoriano case and its use of the "compelling state interest" test in according exemption to the Jehovah's Witnesses, viz: In Victoriano vs. Elizalde Rope Workers' Union, 59 SCRA 54, 72-75, we upheld the exemption of members of the Iglesia ni Cristo, from the coverage of a closed shop agreement between their employer and a union because it would violate the teaching of their church not to join any group: 'x x x It is certain that not every conscience can be accommodated by all the laws of the land; but when general laws conflict with scruples of conscience, exemptions ought to be granted unless some 'compelling state interest' intervenes.' (Sherbert vs. Verner, 374 U.S. 398, 10 L. Ed. 2d 965, 970, 83 S.Ct. 1790)' We hold that a similar exemption may be accorded to the Jehovah's Witnesses with regard to the observance of the flag ceremony out of respect for their religious beliefs, however 'bizarre' those beliefs may seem to others.345 The Court annulled the orders expelling petitioners from school. Thus, the "grave and imminent danger" test laid down in a dissenting opinion in German which involved prior restraint of religious worship with overtones of the right to free speech

and assembly, was transported to Ebralinag which did not involve prior restraint of religious worship, speech or assembly. Although, it might be observed that the Court faintly implied that Ebralinag also involved the right to free speech when in its preliminary remarks, the Court stated that compelling petitioners to participate in the flag ceremony "is alien to the conscience of the present generation of Filipinos who cut their teeth on the Bill of Rights which guarantees their rights to free speech and the free exercise of religious profession and worship;" the Court then stated in a footnote that the "flag salute, singing the national anthem and reciting the patriotic pledge are all forms of utterances."346 The "compelling state interest" test was not fully applied by the Court in Ebralinag. In the Solicitor General's consolidated comment, one of the grounds cited to defend the expulsion orders issued by the public respondents was that "(t)he State's compelling interests being pursued by the DEC's lawful regulations in question do not warrant exemption of the school children of the Jehovah's Witnesses from the flag salute ceremonies on the basis of their own self-perceived religious convictions."347 The Court, however, referred to the test only towards the end of the decision and did not even mention what the Solicitor General argued as the compelling state interest, much less did the Court explain why the interest was not sufficiently compelling to override petitioners' religious freedom. Three years after Ebralinag, the Court decided the 1996 case of Iglesia ni Cristo v. Court of Appeals, et al.348Although there was a dissent with respect to the applicability of the "clear and present danger" test in this case, the majority opinion in unequivocal terms applied the "clear and present danger" test to religious speech. This case involved the television program, "Ang Iglesia ni Cristo," regularly aired over the television. Upon petitioner Iglesia ni Cristo's submission of the VTR tapes of some of its episodes, respondent Board of Review for Motion Pictures and Television classified these as "X" or not for public viewing on the ground that they "offend and constitute an attack against other religions which is expressly prohibited by law." Invoking religious freedom, petitioner alleged that the Board acted without jurisdiction or with grave abuse of discretion in requiring it to submit the VTR tapes of its television program and x-rating them. While upholding the Board's power to review the Iglesia television show, the Court was emphatic about the preferred status of religious freedom. Quoting Justice Cruz' commentary on the constitution, the Court held that freedom to believe is absolute but freedom to act on one's belief, where it affects the public, is subject to the authority of the state. The commentary quoted Justice Frankfurter's dissent in Barnette which was quoted in Gerona, viz: "(t)he constitutional provision on religious freedom terminated disabilities, it did not create new privileges. It gave religious liberty, not civil immunity. Its essence is freedom from conformity to religious dogma, not freedom from conformity to law because of religious dogma."349 Nevertheless, the Court was quick to add the criteria by which the state can regulate the exercise of religious freedom, that is, when the exercise will bring about the "clear and present danger of some substantive evil which the State is duty bound to prevent, i.e., serious detriment to the more overriding interest of public health, public morals, or public welfare."350 In annulling the x-rating of the shows, the Court stressed that the Constitution is hostile to all prior restraints on speech, including religious speech and the x-rating was a suppression of petitioner's freedom of speech as much as it was an interference with its right to free exercise of religion. Citing Cantwell, the Court recognized that the different religions may criticize one another and their tenets may collide, but the Establishment Clause prohibits the state from protecting any religion from this kind of attack.

The Court then called to mind the "clear and present danger" test first laid down in the American Bible Society case and the test of "immediate and grave danger" with "infringement only to the smallest extent necessary to avoid danger" in Victoriano and pointed out that the reviewing board failed to apply the "clear and present danger" test. Applying the test, the Court noted, viz: The records show that the decision of the respondent Board, affirmed by the respondent appellate court, is completely bereft of findings of facts to justify the conclusion that the subject video tapes constitute impermissible attacks against another religion. There is no showing whatsoever of the type of harm the tapes will bring about especially the gravity and imminence of the threatened harm. Prior restraint on speech, including religious speech, cannot be justified by hypothetical fears but only by the showing of a substantive and imminent evil which has taken the life of a reality already on ground. Replying to the challenge on the applicability of the "clear and present danger" test to the case, the Court acknowledged the permutations that the test has undergone, but stressed that the test is still applied to four types of speech: "speech that advocates dangerous ideas, speech that provokes a hostile audience reaction, out of court contempt and release of information that endangers a fair trial"351 and ruled, viz: . . . even allowing the drift of American jurisprudence, there is reason to apply the clear and present danger test to the case at bar which concerns speech that attacks other religions and could readily provoke hostile audience reaction. It cannot be doubted that religious truths disturb and disturb terribly.352 In Iglesia therefore, the Court went back to Gerona insofar as holding that religious freedom cannot be invoked to seek exemption from compliance with a law that burdens one's religious exercise. It also reiterated the "clear and present danger" test in American Bible Society and the "grave and imminent danger" in Victoriano, but this time clearly justifying its applicability and showing how the test was applied to the case. In sum, the Philippine Supreme Court has adopted a posture of not invalidating a law offensive to religious freedom, but carving out an exception or upholding an exception to accommodate religious exercise where it is justified.353 2. Establishment Clause In Philippine jurisdiction, there is substantial agreement on the values sought to be protected by the Establishment Clause, namely, voluntarism and insulation of the political process from interfaith dissension. The first, voluntarism, has both a personal and a social dimension. As a personal value, it refers to the inviolability of the human conscience which, as discussed above, is also protected by the free exercise clause. From the religious perspective, religion requires voluntarism because compulsory faith lacks religious efficacy. Compelled religion is a contradiction in terms.354 As a social value, it means that the "growth of a religious sect as a social force must come from the voluntary support of its members because of the belief that both spiritual and secular society will benefit if religions are allowed to compete on their own intrinsic merit without benefit of official patronage. Such voluntarism cannot be achieved unless the political process is insulated from religion and unless religion

is insulated from politics."355 Non-establishment thus calls for government neutrality in religious matters to uphold voluntarism and avoid breeding interfaith dissension.356 The neutrality principle was applied in the first significant non-establishment case under the 1935 Constitution. In the 1937 case of Aglipay v. Ruiz,357 the Philippine Independent Church challenged the issuance and sale of postage stamps commemorating the Thirty-Third International Eucharistic Congress of the Catholic Church on the ground that the constitutional prohibition against the use of public money for religious purposes has been violated. It appears that the Director of Posts issued the questioned stamps under the provisions of Act No. 4052358 which appropriated a sum for the cost of plates and printing of postage stamps with new designs and authorized the Director of Posts to dispose of the sum in a manner and frequency "advantageous to the Government." The printing and issuance of the postage stamps in question appears to have been approved by authority of the President. Justice Laurel, speaking for the Court, took pains explaining religious freedom and the role of religion in society, and in conclusion, found no constitutional infirmity in the issuance and sale of the stamps, viz: The prohibition herein expressed is a direct corollary of the principle of separation of church and state. Without the necessity of adverting to the historical background of this principle in our country, it is sufficient to say that our history, not to speak of the history of mankind, has taught us that the union of church and state is prejudicial to both, for occasions might arise when the state will use the church, and the church the state, as a weapon in the furtherance of their respective ends and aims . . . It is almost trite to say now that in this country we enjoy both religious and civil freedom. All the officers of the Government, from the highest to the lowest, in taking their oath to support and defend the Constitution, bind themselves to recognize and respect the constitutional guarantee of religious freedom, with its inherent limitations and recognized implications. It should be stated that what is guaranteed by our Constitution is religious liberty, not mere toleration. Religious freedom, however, as a constitutional mandate is not an inhibition of profound reverence for religion and is not a denial of its influence in human affairs. Religion as a profession of faith to an active power that binds and elevates man to his Creator is recognized. And, in so far as it instills into the minds the purest principles of morality, its influence is deeply felt and highly appreciated. When the Filipino people, in the preamble of their Constitution, implored "the aid of Divine Providence, in order to establish a government that shall embody their ideals, conserve and develop the patrimony of the nation, promote the general welfare, and secure to themselves and their posterity the blessings of independence under a regime of justice, liberty and democracy," they thereby manifested their intense religious nature and placed unfaltering reliance upon Him who guides the destinies of men and nations. The elevating influence of religion in human society is recognized here as elsewhere. In fact, certain general concessions are indiscriminately accorded to religious sects and denominations. . .359 xxx xxx xxx

be embarrassed in its activities simply because of incidental results, more or less religious in character, if the purpose had in view is one which could legitimately be undertaken by appropriate legislation. The main purpose should not be frustrated by its subordination to mere incidental results not contemplated. (Vide Bradfield vs. Roberts, 175 U.S. 295; 20 Sup. Ct. Rep., 121; 44 Law. ed., 168)360(emphases supplied) In so deciding the case, the Court, citing U.S. jurisprudence, laid down the doctrine that a law or government action with a legitimate secular purpose does not offend the Establishment Clause even if it incidentally aids a particular religion. Almost forty-five years after Aglipay came Garces v. Estenzo.361 Although the Court found that the separation of church and state was not at issue as the controversy was over who should have custody of a saint's image, it nevertheless made pronouncements on the separation of church and state along the same line as the Aglipay ruling. The Court held that there was nothing unconstitutional or illegal in holding a fiesta and having a patron saint for the barrio. It adhered to the barrio resolutions of the barangay involved in the case stating that the barrio fiesta is a socio-religious affair, the celebration of which is an "ingrained tradition in rural communities" that "relieves the monotony and drudgery of the lives of the masses." Corollarily, the Court found nothing illegal about any activity intended to facilitate the worship of the patron saint such as the acquisition and display of his image bought with funds obtained through solicitation from the barrio residents. The Court pointed out that the image of the patron saint was "purchased in connection with the celebration of the barrio fiesta honoring the patron saint, San Vicente Ferrer, and not for the purpose of favoring any religion nor interfering with religious matters or the religious beliefs of the barrio residents." Citing the Aglipay ruling, the Court declared, viz: Not every governmental activity which involves the expenditure of public funds and which has some religious tint is violative of the constitutional provisions regarding separation of church and state, freedom of worship and banning the use of public money or property. Then came the 1978 case of Pamil v. Teleron, et al.362 which presented a novel issue involving the religion clauses. In this case, Section 2175 of the Revised Administrative Code of 1917 disqualifying ecclesiastics from appointment or election as municipal officer was challenged. After protracted deliberation, the Court was sharply divided on the issue. Seven members of the Court, one short of the number necessary to declare a law unconstitutional, approached the problem from a free exercise perspective and considered the law a religious test offensive of the constitution. They were Justices Fernando, Teehankee, Muoz-Palma, Concepcion, Jr., Santos, Fernandez, and Guerrero. Then Associate Justice Fernando, the ponente, stated, viz: "The challenged Administrative Code provision, certainly insofar as it declares ineligible ecclesiastics to any elective or appointive office, is, on its face, inconsistent with the religious freedom guaranteed by the Constitution." Citing Torcaso v. Watkins,363 the ponencia held, viz: Torcaso v. Watkins, an American Supreme Court decision, has persuasive weight. What was there involved was the validity of a provision in the Maryland Constitution prescribing that 'no religious test ought ever to be required as a disqualification for any office or profit or trust in this State, other than a declaration of belief in the existence of God ***.' Such a constitutional requirement was

It is obvious that while the issuance and sale of the stamps in question may be said to be inseparably linked with an event of a religious character, the resulting propaganda, if any, received by the Roman Catholic Church, was not the aim and purpose of the Government. We are of the opinion that the Government should not

assailed as contrary to the First Amendment of the United States Constitution by an appointee to the office of notary public in Maryland, who was refused a commission as he would not declare a belief in God. He failed in the Maryland Court of Appeals but prevailed in the United States Supreme Court, which reversed the state court decision. It could not have been otherwise. As emphatically declared by Justice Black: 'this Maryland religious test for public office unconstitutionally invades the appellant's freedom of belief and religion and therefore cannot be enforced against him. The analogy appears to be obvious. In that case, it was lack of belief in God that was a disqualification. Here being an ecclesiastic and therefore professing a religious faith suffices to disqualify for a public office. There is thus an incompatibility between the Administrative Code provision relied upon by petitioner and an express constitutional mandate.364 On the other hand, the prevailing five other members of the Court - Chief Justice Castro, Justices Barredo, Makasiar, Antonio and Aquino - approached the case from a nonestablishment perspective and upheld the law as a safeguard against the constant threat of union of church and state that has marked Philippine history. Justice Makasiar stated: "To allow an ecclesiastic to head the executive department of a municipality is to permit the erosion of the principle of separation of Church and State and thus open the floodgates for the violation of the cherished liberty of religion which the constitutional provision seeks to enforce and protect." Consequently, the Court upheld the validity of Section 2175 of the Revised Administrative Code and declared respondent priest ineligible for the office of municipal mayor. Another type of cases interpreting the establishment clause deals with intramural religious disputes. Fonacier v. Court of Appeals365 is the leading case. The issue therein was the right of control over certain properties of the Philippine Independent Church, the resolution of which necessitated the determination of who was the legitimate bishop of the church. The Court cited American Jurisprudence,366 viz: Where, however, a decision of an ecclesiastical court plainly violates the law it professes to administer, or is in conflict with the law of the land, it will not be followed by the civil courts. . . In some instances, not only have the civil courts the right to inquire into the jurisdiction of the religious tribunals and the regularity of their procedure, but they have subjected their decisions to the test of fairness or to the test furnished by the constitution and the law of the church. . .367 The Court then ruled that petitioner Fonacier was legitimately ousted and respondent de los Reyes was the duly elected head of the Church, based on their internal laws. To finally dispose of the property issue, the Court, citingWatson v. Jones,368 declared that the rule in property controversies within religious congregations strictly independent of any other superior ecclesiastical association (such as the Philippine Independent Church) is that the rules for resolving such controversies should be those of any voluntary association. If the congregation adopts the majority rule then the majority should prevail; if it adopts adherence to duly constituted authorities within the congregation, then that should be followed. Applying these rules, Fonacier lost the case. While the Court exercised jurisdiction over the case, it nevertheless refused to touch doctrinal and disciplinary differences raised,viz:

The amendments of the constitution, restatement of articles of religion and abandonment of faith or abjuration alleged by appellant, having to do with faith, practice, doctrine, form of worship, ecclesiastical law, custom and rule of a church and having reference to the power of excluding from the church those allegedly unworthy of membership, are unquestionably ecclesiastical matters which are outside the province of the civil courts.369 VIII. Free Exercise Clause vis--vis Establishment Clause In both Philippine and U.S. jurisdiction, it is recognized that there is a tension between the Free Exercise Clause and the Establishment Clause in their application. There is a natural antagonism between a command not to establish religion and a command not to inhibit its practice; this tension between the religion clauses often leaves the courts with a choice between competing values in religion cases.370 One set of facts, for instance, can be differently viewed from the Establishment Clause perspective and the Free Exercise Clause point of view, and decided in opposite directions. In Pamil, the majority gave more weight to the religious liberty of the priest in holding that the prohibition of ecclesiastics to assume elective or appointive government positions was violative of the Free Exercise Clause. On the other hand, the prevailing five justices gave importance to the Establishment Clause in stating that the principle of separation of church and state justified the prohibition. Tension is also apparent when a case is decided to uphold the Free Exercise Clause and consequently exemptions from a law of general applicability are afforded by the Court to the person claiming religious freedom; the question arises whether the exemption does not amount to support of the religion in violation of the Establishment Clause. This was the case in the Free Exercise Clause case of Sherbert where the U.S. Supreme Court ruled, viz: In holding as we do, plainly we are not fostering the "establishment" of the Seventh-day Adventist religion in South Carolina, for the extension of unemployment benefits to Sabbatarians in common with Sunday worshippers reflects nothing more than the governmental obligation of neutrality in the face of religious differences, and does not represent that involvement of religious with secular institutions which it is the object of the Establishment Clause to forestall.371 (emphasis supplied) Tension also exists when a law of general application provides exemption in order to uphold free exercise as in the Walz case where the appellant argued that the exemption granted to religious organizations, in effect, required him to contribute to religious bodies in violation of the Establishment Clause. But the Court held that the exemption was not a case of establishing religion but merely upholding the Free Exercise Clause by "sparing the exercise of religion from the burden of property taxation levied on private profit institutions." Justice Burger wrote, viz: (t)he Court has struggled to find a neutral course between the two religion clauses, both of which are cast in absolute terms, and either of which, if expanded to a logical extreme, would tend to clash with the other.372

Similarly, the Philippine Supreme Court in the Victoriano case held that the exemption afforded by law to religious sects who prohibit their members from joining unions did not offend the Establishment Clause. We ruled, viz: We believe that in enacting Republic Act No. 3350, Congress acted consistently with the spirit of the constitutional provision. It acted merely to relieve the exercise of religion, by certain persons, of a burden that is imposed by union security agreements.373 (emphasis supplied) Finally, in some cases, a practice is obviously violative of the Establishment Clause but the Court nevertheless upholds it. In Schempp, Justice Brennan stated: "(t)here are certain practices, conceivably violative of the Establishment Clause, the striking down of which might seriously interfere with certain religious liberties also protected by the First Amendment." How the tension between the Establishment Clause and the Free Exercise Clause will be resolved is a question for determination in the actual cases that come to the Court. In cases involving both the Establishment Clause and the Free Exercise Clause, the two clauses should be balanced against each other. The courts must review all the relevant facts and determine whether there is a sufficiently strong free exercise right that should prevail over the Establishment Clause problem. In the United States, it has been proposed that in balancing, the free exercise claim must be given an edge not only because of abundant historical evidence in the colonial and early national period of the United States that the free exercise principle long antedated any broad-based support of disestablishment, but also because an Establishment Clause concern raised by merely accommodating a citizen's free exercise of religion seems far less dangerous to the republic than pure establishment cases. Each time the courts side with the Establishment Clause in cases involving tension between the two religion clauses, the courts convey a message of hostility to the religion that in that case cannot be freely exercised.374 American professor of constitutional law, Laurence Tribe, similarly suggests that the free exercise principle "should be dominant in any conflict with the anti-establishment principle." This dominance would be the result of commitment to religious tolerance instead of "thwarting at all costs even the faintest appearance of establishment."375 In our jurisdiction, Fr. Joaquin Bernas, S.J. asserts that a literal interpretation of the religion clauses does not suffice. Modern society is characterized by the expanding regulatory arm of government that reaches a variety of areas of human conduct and an expanding concept of religion. To adequately meet the demands of this modern society, the societal values the religion clauses are intended to protect must be considered in their interpretation and resolution of the tension. This, in fact, has been the approach followed by the Philippine Court.376 IX. Philippine Religion Clauses: Nature, Purpose, Tests Based on Philippine and American Religion Clause History, Law and Jurisprudence The history of the religion clauses in the 1987 Constitution shows that these clauses were largely adopted from the First Amendment of the U.S. Constitution. The religion clauses in the First Amendment were contained in every organic Act of the Philippines under the American regime. When the delegates of the 1934 Constitutional Convention adopted a Bill of Rights in the 1935 Constitution, they purposely retained the phraseology of the religion clauses in the First Amendment as contained in the Jones Law in order to adopt its historical background, nature, extent and limitations. At that time, there were not too many religion clause cases in the United States as the U.S. Supreme Court decided an Establishment

Clause issue only in the 1947 Everson case. The Free Exercise Clause cases were also scarce then. Over the years, however, with the expanding reach of government regulation to a whole gamut of human actions and the growing plurality and activities of religions, the number of religion clause cases in the U.S. exponentially increased. With this increase came an expansion of the interpretation of the religion clauses, at times reinforcing prevailing case law, at other times modifying it, and still at other times creating contradictions so that two main streams of jurisprudence had become identifiable. The first stream employs separation while the second employs benevolent neutrality in interpreting the religious clauses. Alongside this change in the landscape of U.S. religion clause jurisprudence, the Philippines continued to adopt the 1935 Constitution religion clauses in the 1973 Constitution and later, the 1987 Constitution. Philippine jurisprudence and commentaries on the religious clauses also continued to borrow authorities from U.S. jurisprudence without articulating the stark distinction between the two streams of U.S. jurisprudence. One might simply conclude that the Philippine Constitutions and jurisprudence also inherited the disarray of U.S. religion clause jurisprudence and the two identifiable streams; thus, when a religion clause case comes before the Court, a separationist approach or a benevolent neutrality approach might be adopted and each will have U.S. authorities to support it. Or, one might conclude that as the history of the First Amendment as narrated by the Court in Everson supports the separationist approach, Philippine jurisprudence should also follow this approach in light of the Philippine religion clauses' history. As a result, in a case where the party claims religious liberty in the face of a general law that inadvertently burdens his religious exercise, he faces an almost insurmountable wall in convincing the Court that the wall of separation would not be breached if the Court grants him an exemption. These conclusions, however, are not and were never warranted by the 1987, 1973 and 1935 Constitutions as shown by other provisions on religion in all three constitutions. It is a cardinal rule in constitutional construction that the constitution must be interpreted as a whole and apparently conflicting provisions should be reconciled and harmonized in a manner that will give to all of them full force and effect.377 From this construction, it will be ascertained that the intent of the framers was to adopt a benevolent neutrality approach in interpreting the religious clauses in the Philippine constitutions, and the enforcement of this intent is the goal of construing the constitution.378 We first apply the hermeneutical scalpel to dissect the 1935 Constitution. At the same time that the 1935 Constitution provided for an Establishment Clause, it also provided for tax exemption of church property in Article VI, Section 22, par. 3(b), viz: (3) Cemeteries, churches, and parsonages or convents, appurtenant thereto, and all lands, buildings, and improvements used exclusively for religious, charitable, or educational purposes shall be exempt from taxation. Before the advent of the 1935 Constitution, Section 344 of the Administrative Code provided for a similar exemption. To the same effect, the Tydings-McDuffie Law contained a limitation on the taxing power of the Philippine government during the Commonwealth period.379 The original draft of the Constitution placed this provision in an ordinance to be appended to the Constitution because this was among the provisions prescribed by the Tydings-McDuffie Law. However, in order to have a constitutional guarantee for such an exemption even beyond the Commonwealth period, the provision was introduced in the body of the Constitution on the rationale that "if churches, convents [rectories or parsonages] and their accessories are always necessary for facilitating the exercise of such [religious] freedom, it would also be natural that their existence be also guaranteed by exempting them

from taxation."380 The amendment was readily approved with 83 affirmative votes against 15 negative votes.381 The Philippine constitutional provision on tax exemption is not found in the U.S. Constitution. In the U.S. case of Walz, the Court struggled to justify this kind of exemption to withstand Establishment Clause scrutiny by stating that church property was not singled out but was exempt along with property owned by non-profit, quasi-public corporations because the state upheld the secular policy "that considers these groups as beneficial and stabilizing influences in community life and finds this classification useful, desirable, and in the public interest." The Court also stated that the exemption was meant to relieve the burden on free exercise imposed by property taxation. At the same time, however, the Court acknowledged that the exemption was an exercise of benevolent neutrality to accommodate a long-standing tradition of exemption. With the inclusion of the church property tax exemption in the body of the 1935 Constitution and not merely as an ordinance appended to the Constitution, the benevolent neutrality referred to in the Walz case was given constitutional imprimatur under the regime of the 1935 Constitution. The provision, as stated in the deliberations, was an acknowledgment of the necessity of the exempt institutions to the exercise of religious liberty, thereby evincing benevolence towards religious exercise. Similarly, the 1935 Constitution provides in Article VI, Section 23(3), viz:

introduced and approved. The provision garnered 74 affirmative votes against 34 negative votes.385 As pointed out in the deliberations, the U.S. Constitution does not provide for this exemption. However, the U.S. Supreme Court in Cruz v. Beto, apparently taking a benevolent neutrality approach, implicitly approved the state of Texas' payment of prison chaplains' salaries as reasonably necessary to permit inmates to practice their religion. Also, in the Marsh case, the U.S. Supreme Court upheld the long-standing tradition of beginning legislative sessions with prayers offered by legislative chaplains retained at taxpayers' expense. The constitutional provision exempting religious officers in government institutions affirms the departure of the Philippine Constitution from the U.S. Constitution in its adoption of benevolent neutrality in Philippine jurisdiction. While the provision prohibiting aid to religion protects the wall of separation between church and state, the provision at the same time gives constitutional sanction to a breach in the wall. To further buttress the thesis that benevolent neutrality is contemplated in the Philippine Establishment Clause, the 1935 Constitution provides for optional religious instruction in public schools in Article XIII, Section 5, viz: . . . Optional religious instruction shall be maintained in the public schools as now authorized by law. . . The law then applicable was Section 928 of the Administrative Code, viz:

(3) No public money, or property shall ever be appropriated, applied, or used, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, sectarian institution or system of religion, for the use, benefit or support of any priest, preacher, ministers or other religious teacher or dignitary as such, except when such priest, preacher, minister, or dignitary is assigned to the armed forces or to any penal institution, orphanage, or leprosarium. (emphasis supplied) The original draft of this provision was a reproduction of a portion of section 3 of the Jones Law which did not contain the above exception, viz: No public money or property shall ever be appropriated, applied, or used, directly or indirectly, for the use, benefit, or support of any sect, church denomination, sectarian institution, or system of religion, or for the use, benefit or support of any priest, preacher, minister, or dignitary as such382 In the deliberations of this draft provision, an amendment was proposed to strike down everything after "church denomination."383 The proposal intended to imitate the silence of the U.S. Constitution on the subject of support for priests and ministers. It was also an imitation of the silence of the Malolos Constitution to restore the situation under the Malolos Constitution and prior to the Jones Law, when chaplains of the revolutionary army received pay from public funds with no doubt about its legality. It was pointed out, however, that even with the prohibition under the Jones Law, appropriations were made to chaplains of the national penitentiary and the Auditor General upheld its validity on the basis of a similar United States practice. But it was also pointed out that the U.S. Constitution did not contain a prohibition on appropriations similar to the Jones Law.384 To settle the question on the constitutionality of payment of salaries of religious officers in certain government institutions and to avoid the feared situation where the enumerated government institutions could not employ religious officials with compensation, the exception in the 1935 provision was

It shall be lawful, however, for the priest or minister of any church established in the town where a public school is situated, either in person or by a designated teacher of religion, to teach religion for one-half hour three times a week, in the school building, to those public-school pupils whose parents or guardians desire it and express their desire therefor in writing filed with the principal of the school . . . During the debates of the Constitutional Convention, there were three positions on the issue of religious instruction in public schools. The first held that the teaching of religion in public schools should be prohibited as this was a violation of the principle of separation of church and state and the prohibition against the use of public funds for religious purposes. The second favored the proposed optional religious instruction as authorized by the Administrative Code and recognized that the actual practice of allowing religious instruction in the public schools was sufficient proof that religious instruction was not and would not be a source of religious discord in the schools.386 The third wanted religion to be included as a course in the curriculum of the public schools but would only be taken by pupils at the option of their parents or guardians. After several rounds of debate, the second camp prevailed, thus raising to constitutional stature the optional teaching of religion in public schools, despite the opposition to the provision on the ground of separation of church and state. 387 As in the provisions on church property tax exemption and compensation of religious officers in government institutions, the U.S. Constitution does not provide for optional religious instruction in public schools. In fact, in the McCollum case, the Court, using strict neutrality, prohibited this kind of religious instruction where the religion teachers would conduct class within the school premises. The constitutional provision on optional religious instruction shows that Philippine jurisdiction rejects the strict neutrality approach which does not allow such accommodation of religion. Finally, to make certain the Constitution's benevolence to religion, the Filipino people "implored (ing) the aid of Divine Providence (,) in order to establish a government that shall

embody their ideals, conserve and develop the patrimony of the nation, promote the general welfare, and secure to themselves and their posterity the blessings of independence under a regime of justice, liberty, and democracy, (in) ordain(ing) and promulgat(ing) this Constitution." A preamble is a "key to open the mind of the authors of the constitution as to the evil sought to be prevented and the objects sought to be accomplished by the provisions thereof."388 There was no debate on the inclusion of a "Divine Providence" in the preamble. In Aglipay, Justice Laurel noted that when the Filipino people implored the aid of Divine Providence, "(t)hey thereby manifested their intense religious nature and placed unfaltering reliance upon Him who guides the destinies of men and nations."389 The 1935 Constitution's religion clauses, understood alongside the other provisions on religion in the Constitution, indubitably shows not hostility, but benevolence, to religion.390 The 1973 Constitution contained in Article VI, Section 22(3) a provision similar to Article VI, Section 22, par. 3(b) of the 1935 Constitution on exemption of church property from taxation, with the modification that the property should not only be used directly, but also actually and exclusively for religious or charitable purposes. Parallel to Article VI, Section 23(3) of the 1935 Constitution, the 1973 Constitution also contained a similar provision on salaries of religious officials employed in the enumerated government institutions. Article XIII, Section 5 of the 1935 Constitution on optional religious instruction was also carried to the 1973 Constitution in Article XV, Section 8(8) with the modification that optional religious instruction shall be conducted "as may be provided by law" and not "as now authorized by law" as stated in the 1935 Constitution. The 1973 counterpart, however, made explicit in the constitution that the religious instruction in public elementary and high schools shall be done "(a)t the option expressed in writing by the parents or guardians, and without cost to them and the government." With the adoption of these provisions in the 1973 Constitution, the benevolent neutrality approach continued to enjoy constitutional sanction. In Article XV, Section 15 of the General Provisions of the 1973 Constitution this provision made its maiden appearance: "(t)he separation of church and state shall be inviolable." The 1973 Constitution retained the portion of the preamble "imploring the aid of Divine Providence." In the Report of the Ad Hoc Sub-Committee on Goals, Principles and Problems of the Committee on Church and State of the 1971 Constitutional Convention, the question arose as to whether the "absolute" separation of Church and State as enunciated in the Everson case and reiterated in Schempp - i.e., neutrality not only as between one religion and another but even as between religion and non-religion - is embodied in the Philippine Constitution. The sub-committee's answer was that it did not seem so. Citing the Aglipay case where Justice Laurel recognized the "elevating influence of religion in human society" and the Filipinos' imploring of Divine Providence in the 1935 Constitution, the sub-committee asserted that the state may not prefer or aid one religion over another, but may aid all religions equally or the cause of religion in general.391 Among the position papers submitted to the Committee on Church on State was a background paper for reconsideration of the religion provisions of the constitution by Fr. Bernas, S.J. He stated therein that the Philippine Constitution is not hostile to religion and in fact recognizes the value of religion and accommodates religious values.392 Stated otherwise, the Establishment Clause contemplates not a strict neutrality but benevolent neutrality. While the Committee introduced the provision on separation of church and state in the General Provisions of the 1973 Constitution, this was nothing new as according to it, this principle was implied in the 1935 Constitution even in the absence of a similar provision.393 Then came the 1987 Constitution. The 1973 Constitutional provision on tax exemption of church property was retained with minor modification in Article VI, Section 28(3) of the 1987

Constitution. The same is true with respect to the prohibition on the use of public money and property for religious purposes and the salaries of religious officers serving in the enumerated government institutions, now contained in Article VI, Section 29(2). Commissioner Bacani, however, probed into the possibility of allowing the government to spend public money for purposes which might have religious connections but which would benefit the public generally. Citing the Aglipay case, Commissioner Rodrigo explained that if a public expenditure would benefit the government directly, such expense would be constitutional even if it results to an incidental benefit to religion. With that explanation, Commissioner Bacani no longer pursued his proposal.394 The provision on optional religious instruction was also adopted in the 1987 Constitution in Article XIV, Section 3(3) with the modification that it was expressly provided that optional instruction shall be conducted "within the regular class hours" and "without additional cost to the government". There were protracted debates on what additional cost meant, i.e., cost over and above what is needed for normal operations such as wear and tear, electricity, janitorial services,395 and when during the day instruction would be conducted. 396 In deliberating on the phrase "within the regular class hours," Commissioner Aquino expressed her reservations to this proposal as this would violate the time-honored principle of separation of church and state. She cited the McCullom case where religious instruction during regular school hours was stricken down as unconstitutional and also cited what she considered the most liberal interpretation of separation of church and state in Surach v. Clauson where the U.S. Supreme Court allowed only release time for religious instruction. Fr. Bernas replied, viz: . . . the whole purpose of the provision was to provide for an exception to the rule on non-establishment of religion, because if it were not necessary to make this exception for purposes of allowing religious instruction, then we could just drop the amendment. But, as a matter of fact, this is necessary because we are trying to introduce something here which is contrary to American practices.397 (emphasis supplied) "(W)ithin regular class hours" was approved. he provision on the separation of church and state was retained but placed under the Principles in the Declaration of Principles and State Policies in Article II, Section 6. In opting to retain the wording of the provision, Fr. Bernas stated, viz: . . . It is true, I maintain, that as a legal statement the sentence 'The separation of Church and State is inviolable,' is almost a useless statement; but at the same time it is a harmless statement. Hence, I am willing to tolerate it there, because, in the end, if we look at the jurisprudence on Church and State, arguments are based not on the statement of separation of church and state but on the non-establishment clause in the Bill of Rights.398 The preamble changed "Divine Providence" in the 1935 and 1973 Constitutions to "Almighty God." There was considerable debate on whether to use "Almighty God" which Commissioner Bacani said was more reflective of Filipino religiosity, but Commissioner Rodrigo recalled that a number of atheistic delegates in the 1971 Constitutional Convention objected to reference to a personal God.399 "God of History", "Lord of History" and "God" were also proposed, but the phrase "Almighty God" prevailed. Similar to the 1935 and 1971

Constitutions, it is obvious that the 1987 Constitution is not hostile nor indifferent to religion;400 its wall of separation is not a wall of hostility or indifference.401 The provisions of the 1935, 1973 and 1987 constitutions on tax exemption of church property, salary of religious officers in government institutions, optional religious instruction and the preamble all reveal without doubt that the Filipino people, in adopting these constitutions, did not intend to erect a high and impregnable wall of separation between the church and state.402 The strict neutrality approach which examines only whether government action is for a secular purpose and does not consider inadvertent burden on religious exercise protects such a rigid barrier. By adopting the above constitutional provisions on religion, the Filipinos manifested their adherence to the benevolent neutrality approach in interpreting the religion clauses, an approach that looks further than the secular purposes of government action and examines the effect of these actions on religious exercise. Benevolent neutrality recognizes the religious nature of the Filipino people and the elevating influence of religion in society; at the same time, it acknowledges that government must pursue its secular goals. In pursuing these goals, however, government might adopt laws or actions of general applicability which inadvertently burden religious exercise. Benevolent neutrality gives room for accommodation of these religious exercises as required by the Free Exercise Clause. It allows these breaches in the wall of separation to uphold religious liberty, which after all is the integral purpose of the religion clauses. The case at bar involves this first type of accommodation where an exemption is sought from a law of general applicability that inadvertently burdens religious exercise. Although our constitutional history and interpretation mandate benevolent neutrality, benevolent neutrality does not mean that the Court ought to grant exemptions every time a free exercise claim comes before it. But it does mean that the Court will not look with hostility or act indifferently towards religious beliefs and practices and that it will strive to accommodate them when it can within flexible constitutional limits; it does mean that the Court will not simply dismiss a claim under the Free Exercise Clause because the conduct in question offends a law or the orthodox view for this precisely is the protection afforded by the religion clauses of the Constitution, i.e., that in the absence of legislation granting exemption from a law of general applicability, the Court can carve out an exception when the religion clauses justify it. While the Court cannot adopt a doctrinal formulation that can eliminate the difficult questions of judgment in determining the degree of burden on religious practice or importance of the state interest or the sufficiency of the means adopted by the state to pursue its interest, the Court can set a doctrine on the ideal towards which religious clause jurisprudence should be directed.403 We here lay down the doctrine that in Philippine jurisdiction, we adopt the benevolent neutrality approach not only because of its merits as discussed above, but more importantly, because our constitutional history and interpretation indubitably show that benevolent neutrality is the launching pad from which the Court should take off in interpreting religion clause cases. The ideal towards which this approach is directed is the protection of religious liberty "not only for a minority, however small- not only for a majority, however large- but for each of us" to the greatest extent possible within flexible constitutional limits. Benevolent neutrality is manifest not only in the Constitution but has also been recognized in Philippine jurisprudence, albeit not expressly called "benevolent neutrality" or "accommodation". In Aglipay, the Court not only stressed the "elevating influence of religion in human society" but acknowledged the Constitutional provisions on exemption from tax of church property, salary of religious officers in government institutions, and optional religious instruction as well as the provisions of the Administrative Code making Thursday and Friday

of the Holy Week, Christmas Day and Sundays legal holidays. In Garces, the Court not only recognized the Constitutional provisions indiscriminately granting concessions to religious sects and denominations, but also acknowledged that government participation in longstanding traditions which have acquired a social character - "the barrio fiesta is a socioreligious affair" - does not offend the Establishment Clause. In Victoriano, the Court upheld the exemption from closed shop provisions of members of religious sects who prohibited their members from joining unions upon the justification that the exemption was not a violation of the Establishment Clause but was only meant to relieve the burden on free exercise of religion. In Ebralinag, members of the Jehovah's Witnesses were exempt from saluting the flag as required by law, on the basis not of a statute granting exemption but of the Free Exercise Clause without offending the Establishment Clause. While the U.S. and Philippine religion clauses are similar in form and origin, Philippine constitutional law has departed from the U.S. jurisprudence of employing a separationist or strict neutrality approach. The Philippine religion clauses have taken a life of their own, breathing the air of benevolent neutrality and accommodation. Thus, the wall of separation in Philippine jurisdiction is not as high and impregnable as the wall created by the U.S. Supreme Court in Everson.404 While the religion clauses are a unique American experiment which understandably came about as a result of America's English background and colonization, the life that these clauses have taken in this jurisdiction is the Philippines' own experiment, reflective of the Filipinos' own national soul, history and tradition. After all, "the life of the law. . . has been experience." But while history, constitutional construction, and earlier jurisprudence unmistakably show that benevolent neutrality is the lens with which the Court ought to view religion clause cases, it must be stressed that the interest of the state should also be afforded utmost protection. To do this, a test must be applied to draw the line between permissible and forbidden religious exercise. It is quite paradoxical that in order for the members of a society to exercise their freedoms, including their religious liberty, the law must set a limit when their exercise offends the higher interest of the state. To do otherwise is self-defeating for unlimited freedom would erode order in the state and foment anarchy, eventually destroying the very state its members established to protect their freedoms. The very purpose of the social contract by which people establish the state is for the state to protect their liberties; for this purpose, they give up a portion of these freedoms - including the natural right to free exercise - to the state. It was certainly not the intention of the authors of the constitution that free exercise could be used to countenance actions that would undo the constitutional order that guarantees free exercise.405 The all important question then is the test that should be used in ascertaining the limits of the exercise of religious freedom. Philippine jurisprudence articulates several tests to determine these limits. Beginning with the first case on the Free Exercise Clause, American Bible Society, the Court mentioned the "clear and present danger" test but did not employ it. Nevertheless, this test continued to be cited in subsequent cases on religious liberty. The Gerona case then pronounced that the test of permissibility of religious freedom is whether it violates the established institutions of society and law. The Victoriano case mentioned the "immediate and grave danger" test as well as the doctrine that a law of general applicability may burden religious exercise provided the law is the least restrictive means to accomplish the goal of the law. The case also used, albeit inappropriately, the "compelling state interest" test. After Victoriano, German went back to the Gerona rule. Ebralinag then employed the "grave and immediate danger" test and overruled the Gerona test. The fairly recent case of Iglesia ni Cristo went back to the "clear and present danger" test in the maiden case of

American Bible Society. Not surprisingly, all the cases which employed the "clear and present danger" or "grave and immediate danger" test involved, in one form or another, religious speech as this test is often used in cases on freedom of expression. On the other hand, the Gerona and German cases set the rule that religious freedom will not prevail over established institutions of society and law. Gerona, however, which was the authority cited by German has been overruled by Ebralinag which employed the "grave and immediate danger" test. Victoriano was the only case that employed the "compelling state interest" test, but as explained previously, the use of the test was inappropriate to the facts of the case. The case at bar does not involve speech as in American Bible Society, Ebralinag and Iglesia ni Cristo where the "clear and present danger" and "grave and immediate danger" tests were appropriate as speech has easily discernible or immediate effects. The Gerona and German doctrine, aside from having been overruled, is not congruent with the benevolent neutrality approach, thus not appropriate in this jurisdiction. Similar to Victoriano, the present case involves purely conduct arising from religious belief. The "compelling state interest" test is proper where conduct is involved for the whole gamut of human conduct has different effects on the state's interests: some effects may be immediate and short-term while others delayed and far-reaching. A test that would protect the interests of the state in preventing a substantive evil, whether immediate or delayed, is therefore necessary. However, not any interest of the state would suffice to prevail over the right to religious freedom as this is a fundamental right that enjoys a preferred position in the hierarchy of rights - "the most inalienable and sacred of all human rights", in the words of Jefferson. 406 This right is sacred for an invocation of the Free Exercise Clause is an appeal to a higher sovereignty. The entire constitutional order of limited government is premised upon an acknowledgment of such higher sovereignty,407 thus the Filipinos implore the "aid of Almighty God in order to build a just and humane society and establish a government." As held in Sherbert, only the gravest abuses, endangering paramount interests can limit this fundamental right. A mere balancing of interests which balances a right with just a colorable state interest is therefore not appropriate. Instead, only a compelling interest of the state can prevail over the fundamental right to religious liberty. The test requires the state to carry a heavy burden, a compelling one, for to do otherwise would allow the state to batter religion, especially the less powerful ones until they are destroyed.408 In determining which shall prevail between the state's interest and religious liberty, reasonableness shall be the guide.409 The "compelling state interest" serves the purpose of revering religious liberty while at the same time affording protection to the paramount interests of the state. This was the test used in Sherbert which involved conduct, i.e. refusal to work on Saturdays. In the end, the "compelling state interest" test, by upholding the paramount interests of the state, seeks to protect the very state, without which, religious liberty will not be preserved. X. Application of the Religion Clauses to the Case at Bar A. The Religion Clauses and Morality In a catena of cases, the Court has ruled that government employees engaged in illicit relations are guilty of "disgraceful and immoral conduct" for which he/she may be held administratively liable.410 In these cases, there was not one dissent to the majority's ruling that their conduct was immoral. The respondents themselves did not foist the defense that their conduct was not immoral, but instead sought to prove that they did not commit the alleged act or have abated from committing the act. The facts of the 1975 case of De Dios v. Alejo411 and the 1999 case of Maguad v. De Guzman,412 are similar to the case at bar - i.e.,

the complainant is a mere stranger and the legal wife has not registered any objection to the illicit relation, there is no proof of scandal or offense to the moral sensibilities of the community in which the respondent and the partner live and work, and the government employee is capacitated to marry while the partner is not capacitated but has long been separated in fact. Still, the Court found the government employees administratively liable for "disgraceful and immoral conduct" and only considered the foregoing circumstances to mitigate the penalty. Respondent Escritor does not claim that there is error in the settled jurisprudence that an illicit relation constitutes disgraceful and immoral conduct for which a government employee is held liable. Nor is there an allegation that the norms of morality with respect to illicit relations have shifted towards leniency from the time these precedent cases were decided. The Court finds that there is no such error or shift, thus we find no reason to deviate from these rulings that such illicit relationship constitutes "disgraceful and immoral conduct" punishable under the Civil Service Law. Respondent having admitted the alleged immoral conduct, she, like the respondents in the above-cited cases, could be held administratively liable. However, there is a distinguishing factor that sets the case at bar apart from the cited precedents, i.e., as a defense, respondent invokes religious freedom since her religion, the Jehovah's Witnesses, has, after thorough investigation, allowed her conjugal arrangement with Quilapio based on the church's religious beliefs and practices. This distinguishing factor compels the Court to apply the religious clauses to the case at bar. Without holding that religious freedom is not in issue in the case at bar, both the dissenting opinion of Mme. Justice Ynares-Santiago and the separate opinion of Mr. Justice Vitug dwell more on the standards of morality than on the religion clauses in deciding the instant case. A discussion on morality is in order. At base, morality refers to, in Socrates' words, "how we ought to live" and why. Any definition of morality beyond Socrates' simple formulation is bound to offend one or another of the many rival theories regarding what it means to live morally.413 The answer to the question of how we ought to live necessarily considers that man does not live in isolation, but in society. Devlin posits that a society is held together by a community of ideas, made up not only of political ideas but also of ideas about the manner its members should behave and govern their lives. The latter are their morals; they constitute the public morality. Each member of society has ideas about what is good and what is evil. If people try to create a society wherein there is no fundamental agreement about good and evil, they will fail; if having established the society on common agreement, the agreement collapses, the society will disintegrate. Society is kept together by the invisible bonds of common thought so that if the bonds are too loose, the members would drift apart. A common morality is part of the bondage and the bondage is part of the price of society; and mankind, which needs society, must pay its price.414 This design is parallel with the social contract in the realm of politics: people give up a portion of their liberties to the state to allow the state to protect their liberties. In a constitutional order, people make a fundamental agreement about the powers of government and their liberties and embody this agreement in a constitution, hence referred to as the fundamental law of the land. A complete break of this fundamental agreement such as by revolution destroys the old order and creates a new one.415 Similarly, in the realm of morality, the breakdown of the fundamental agreement about the manner a society's members should behave and govern their lives would disintegrate society. Thus, society is justified in taking steps to preserve its moral code by law as it does to preserve its government and other essential institutions.416 From these propositions of Devlin, one cannot conclude that Devlin negates diversity in society for he is merely saying that in the midst of this diversity, there should nevertheless be a "fundamental agreement about good and evil" that will govern how people in a society ought to live. His propositions, in fact, presuppose

diversity hence the need to come to an agreement; his position also allows for change of morality from time to time which may be brought about by this diversity. In the same vein, a pluralistic society lays down fundamental rights and principles in their constitution in establishing and maintaining their society, and these fundamental values and principles are translated into legislation that governs the order of society, laws that may be amended from time to time. Hart's argument propounded in Mr. Justice Vitug's separate opinion that, "Devlin's view of people living in a single society as having common moral foundation (is) overly simplistic" because "societies have always been diverse" fails to recognize the necessity of Devlin's proposition in a democracy. Without fundamental agreement on political and moral ideas, society will fall into anarchy; the agreement is necessary to the existence and progress of society. In a democracy, this common agreement on political and moral ideas is distilled in the public square. Where citizens are free, every opinion, every prejudice, every aspiration, and every moral discernment has access to the public square where people deliberate the order of their life together. Citizens are the bearers of opinion, including opinion shaped by, or espousing religious belief, and these citizens have equal access to the public square. In this representative democracy, the state is prohibited from determining which convictions and moral judgments may be proposed for public deliberation. Through a constitutionally designed process, the people deliberate and decide. Majority rule is a necessary principle in this democratic governance.417 Thus, when public deliberation on moral judgments is finally crystallized into law, the laws will largely reflect the beliefs and preferences of the majority, i.e., the mainstream or median groups.418 Nevertheless, in the very act of adopting and accepting a constitution and the limits it specifies -- including protection of religious freedom "not only for a minority, however small- not only for a majority, however large- but for each of us" -- the majority imposes upon itself a self-denying ordinance. It promises not to do what it otherwise could do: to ride roughshod over the dissenting minorities.419 In the realm of religious exercise, benevolent neutrality that gives room for accommodation carries out this promise, provided the compelling interests of the state are not eroded for the preservation of the state is necessary to the preservation of religious liberty. That is why benevolent neutrality is necessary in a pluralistic society such as the United States and the Philippines to accommodate those minority religions which are politically powerless. It is not surprising that Smith is much criticized for it blocks the judicial recourse of the minority for religious accommodations. The laws enacted become expressions of public morality. As Justice Holmes put it, "(t)he law is the witness and deposit of our moral life."420 "In a liberal democracy, the law reflects social morality over a period of time."421Occasionally though, a disproportionate political influence might cause a law to be enacted at odds with public morality or legislature might fail to repeal laws embodying outdated traditional moral views.422 Law has also been defined as "something men create in their best moments to protect themselves in their worst moments."423 Even then, laws are subject to amendment or repeal just as judicial pronouncements are subject to modification and reversal to better reflect the public morals of a society at a given time. After all, "the life of the law...has been experience," in the words of Justice Holmes. This is not to say though that law is all of morality. Law deals with the minimum standards of human conduct while morality is concerned with the maximum. A person who regulates his conduct with the sole object of avoiding punishment under the law does not meet the higher moral standards set by society for him to be called a morally upright person.424 Law also serves as "a helpful starting point for thinking about a proper or ideal public morality for a society"425 in pursuit of moral progress.

In Magno v. Court of Appeals, et al.,426 we articulated the relationship between law and public morality. We held that under the utilitarian theory, the "protective theory" in criminal law, "criminal law is founded upon the moral disapprobation x x x of actions which are immoral, i.e., which are detrimental (or dangerous) to those conditions upon which depend the existence and progress of human society. This disapprobation is inevitable to the extent that morality is generally founded and built upon a certain concurrence in the moral opinions of all. x x x That which we call punishment is only an external means of emphasizing moral disapprobation: the method of punishment is in reality the amount of punishment."427 Stated otherwise, there are certain standards of behavior or moral principles which society requires to be observed and these form the bases of criminal law. Their breach is an offense not only against the person injured but against society as a whole. 428 Thus, even if all involved in the misdeed are consenting parties, such as in the case at bar, the injury done is to the public morals and the public interest in the moral order. 429 Mr. Justice Vitug expresses concern on this point in his separate opinion. He observes that certain immoral acts which appear private and not harmful to society such as sexual congress "between a man and a prostitute, though consensual and private, and with no injured third party, remains illegal in this country." His opinion asks whether these laws on private morality are justified or they constitute impingement on one's freedom of belief. Discussion on private morality, however, is not material to the case at bar for whether respondent's conduct, which constitutes concubinage,430 is private in the sense that there is no injured party or the offended spouse consents to the concubinage, the inescapable fact is that the legislature has taken concubinage out of the sphere of private morals. The legislature included concubinage as a crime under the Revised Penal Code and the constitutionality of this law is not being raised in the case at bar. In the definition of the crime of concubinage, consent of the injured party, i.e., the legal spouse, does not alter or negate the crime unlike in rape 431 where consent of the supposed victim negates the crime. If at all, the consent or pardon of the offended spouse in concubinage negates the prosecution of the action,432 but does not alter the legislature's characterization of the act as a moral disapprobation punishable by law. The separate opinion states that, "(t)he ponencia has taken pains to distinguish between secular and private morality, and reached the conclusion that the law, as an instrument of the secular State should only concern itself with secular morality." The Court does not draw this distinction in the case at bar. The distinction relevant to the case is not, as averred and discussed by the separate opinion, "between secular and private morality," but between public and secular morality on the one hand, and religious morality on the other, which will be subsequently discussed. Not every moral wrong is foreseen and punished by law, criminal or otherwise. We recognized this reality in Velayo, et al. v. Shell Co. of the Philippine Islands, et al., where we explained that for those wrongs which are not punishable by law, Articles 19 and 21 in Chapter 2 of the Preliminary Title of the New Civil Code, dealing with Human Relations, provide for the recognition of the wrong and the concomitant punishment in the form of damages. Articles 19 and 21 provide, viz: Art. 19. Any person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due and observe honesty and good faith. xxx xxx xxx

Art. 21. Any person who willfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage. (emphasis supplied) We then cited in Velayo the Code Commission's comment on Article 21: Thus at one stroke, the legislator, if the foregoing rule is approved (as it was approved), would vouchsafe adequate legal remedy for that untold numbers of moral wrongs which is impossible for human foresight to provide for specifically in the statutes. But, it may be asked, would this proposed article obliterate the boundary line between morality and law? The answer is that, in the last analysis, every good law draws its breath of life from morals, from those principles which are written with words of fire in the conscience of man. If this premise is admitted, then the proposed rule is a prudent earnest of justice in the face of the impossibility of enumerating, one by one, all wrongs which cause damages. When it is reflected that while codes of law and statutes have changed from age to age, the conscience of man has remained fixed to its ancient moorings, one can not but feel that it is safe and salutary to transmute, as far as may be, moral norms into legal rules, thus imparting to every legal system that enduring quality which ought to be one of its superlative attributes. Furthermore, there is no belief of more baneful consequence upon the social order than that a person may with impunity cause damage to his fellow-men so long as he does not break any law of the State, though he may be defying the most sacred postulates of morality. What is more, the victim loses faith in the ability of the government to afford him protection or relief. A provision similar to the one under consideration is embodied in article 826 of the German Civil Code.433(emphases supplied) The public morality expressed in the law is necessarily secular for in our constitutional order, the religion clauses prohibit the state from establishing a religion, including the morality it sanctions. Religious morality proceeds from a person's "views of his relations to His Creator and to the obligations they impose of reverence to His being and character and obedience to His Will," in accordance with this Court's definition of religion in American Bible Society citing Davis. Religion also dictates "how we ought to live" for the nature of religion is not just to know, but often, to act in accordance with man's "views of his relations to His Creator." 434 But the Establishment Clause puts a negative bar against establishment of this morality arising from one religion or the other, and implies the affirmative "establishment" of a civil order for the resolution of public moral disputes. This agreement on a secular mechanism is the price of ending the "war of all sects against all"; the establishment of a secular public moral order is the social contract produced by religious truce.435 Thus, when the law speaks of "immorality" in the Civil Service Law or "immoral" in the Code of Professional Responsibility for lawyers436, or "public morals" in the Revised Penal Code,437 or "morals" in the New Civil Code,438 or "moral character" in the Constitution,439 the distinction between public and secular morality on the one hand, and religious morality, on

the other, should be kept in mind.440 The morality referred to in the law is public and necessarily secular, not religious as the dissent of Mr. Justice Carpio holds. "Religious teachings as expressed in public debate may influence the civil public order but public moral disputes may be resolved only on grounds articulable in secular terms."441 Otherwise, if government relies upon religious beliefs in formulating public policies and morals, the resulting policies and morals would require conformity to what some might regard as religious programs or agenda. The non-believers would therefore be compelled to conform to a standard of conduct buttressed by a religious belief, i.e., to a "compelled religion," anathema to religious freedom. Likewise, if government based its actions upon religious beliefs, it would tacitly approve or endorse that belief and thereby also tacitly disapprove contrary religious or non-religious views that would not support the policy. As a result, government will not provide full religious freedom for all its citizens, or even make it appear that those whose beliefs are disapproved are second-class citizens. Expansive religious freedom therefore requires that government be neutral in matters of religion; governmental reliance upon religious justification is inconsistent with this policy of neutrality.442 In other words, government action, including its proscription of immorality as expressed in criminal law like concubinage, must have a secular purpose. That is, the government proscribes this conduct because it is "detrimental (or dangerous) to those conditions upon which depend the existence and progress of human society" and not because the conduct is proscribed by the beliefs of one religion or the other. Although admittedly, moral judgments based on religion might have a compelling influence on those engaged in public deliberations over what actions would be considered a moral disapprobation punishable by law. After all, they might also be adherents of a religion and thus have religious opinions and moral codes with a compelling influence on them; the human mind endeavors to regulate the temporal and spiritual institutions of society in a uniform manner, harmonizing earth with heaven.443 Succinctly put, a law could be religious or Kantian or Aquinian or utilitarian in its deepest roots, but it must have an articulable and discernible secular purpose and justification to pass scrutiny of the religion clauses. Otherwise, if a law has an apparent secular purpose but upon closer examination shows a discriminatory and prohibitory religious purpose, the law will be struck down for being offensive of the religion clauses as in Church of the Lukumi Babalu Aye, Inc. where the U.S. Supreme Court invalidated an ordinance prohibiting animal sacrifice of the Santeria. Recognizing the religious nature of the Filipinos and the elevating influence of religion in society, however, the Philippine constitution's religion clauses prescribe not a strict but a benevolent neutrality. Benevolent neutrality recognizes that government must pursue its secular goals and interests but at the same time strives to uphold religious liberty to the greatest extent possible within flexible constitutional limits. Thus, although the morality contemplated by laws is secular, benevolent neutrality could allow for accommodation of morality based on religion, provided it does not offend compelling state interests. Mr. Justice Vitug's separate opinion embraces the benevolent neutrality approach when it states that in deciding the case at bar, the approach should consider that, "(a)s a rule . . . moral laws are justified only to the extent that they directly or indirectly serve to protect the interests of the larger society. It is only where their rigid application would serve to obliterate the value which society seeks to uphold, or defeat the purpose for which they are enacted would, a departure be justified." In religion clause parlance, the separate opinion holds that laws of general applicability governing morals should have a secular purpose of directly or indirectly protecting the interests of the state. If the strict application of these laws (which are the Civil Service Law and the laws on marriage) would erode the secular purposes of the law (which the separate opinion identifies as upholding the sanctity of marriage and the family),

then in a benevolent neutrality framework, an accommodation of the unconventional religious belief and practice (which the separate opinion holds should be respected on the ground of freedom of belief) that would promote the very same secular purpose of upholding the sanctity of marriage and family through the Declaration Pledging Faithfulness that makes the union binding and honorable before God and men, is required by the Free Exercise Clause. The separate opinion then makes a preliminary discussion of the values society seeks to protect in adhering to monogamous marriage, but concludes that these values and the purposes of the applicable laws should be thoroughly examined and evidence in relation thereto presented in the OCA. The accommodation approach in the case at bar would also require a similar discussion of these values and presentation of evidence before the OCA by the state that seeks to protect its interest on marriage and opposes the accommodation of the unconventional religious belief and practice regarding marriage. The distinction between public and secular morality as expressed - albeit not exclusively - in the law, on the one hand, and religious morality, on the other, is important because the jurisdiction of the Court extends only to public and secular morality. Whatever pronouncement the Court makes in the case at bar should be understood only in this realm where it has authority. More concretely, should the Court declare respondent's conduct as immoral and hold her administratively liable, the Court will be holding that in the realm of public morality, her conduct is reprehensible or there are state interests overriding her religious freedom. For as long as her conduct is being judged within this realm, she will be accountable to the state. But in so ruling, the Court does not and cannot say that her conduct should be made reprehensible in the realm of her church where it is presently sanctioned and that she is answerable for her immorality to her Jehovah God nor that other religions prohibiting her conduct are correct. On the other hand, should the Court declare her conduct permissible, the Court will be holding that under her unique circumstances, public morality is not offended or that upholding her religious freedom is an interest higher than upholding public morality thus her conduct should not be penalized. But the Court is not ruling that the tenets and practice of her religion are correct nor that other churches which do not allow respondent's conjugal arrangement should likewise allow such conjugal arrangement or should not find anything immoral about it and therefore members of these churches are not answerable for immorality to their Supreme Being. The Court cannot speak more than what it has authority to say. In Ballard, the U.S. Supreme Court held that courts cannot inquire about the truth of religious beliefs. Similarly, in Fonacier, this Court declared that matters dealing with "faith, practice, doctrine, form of worship, ecclesiastical law, custom and rule of a churchare unquestionably ecclesiastical matters which are outside the province of the civil courts."444 But while the state, including the Court, accords such deference to religious belief and exercise which enjoy protection under the religious clauses, the social contract and the constitutional order are designed in such a way that when religious belief flows into speech and conduct that step out of the religious sphere and overlap with the secular and public realm, the state has the power to regulate, prohibit and penalize these expressions and embodiments of belief insofar as they affect the interests of the state. The state's inroad on religion exercise in excess of this constitutional design is prohibited by the religion clauses; the Old World, European and American history narrated above bears out the wisdom of this proscription. Having distinguished between public and secular morality and religious morality, the more difficult task is determining which immoral acts under this public and secular morality fall under the phrase "disgraceful and immoral conduct" for which a government employee may be held administratively liable. The line is not easy to draw for it is like "a line that divides land and sea, a coastline of irregularities and indentations."445 But the case at bar does not

require us to comprehensively delineate between those immoral acts for which one may be held administratively liable and those to which administrative liability does not attach. We need not concern ourselves in this case therefore whether "laziness, gluttony, vanity, selfishness, avarice and cowardice" are immoral acts which constitute grounds for administrative liability. Nor need we expend too much energy grappling with the propositions that not all immoral acts are illegal or not all illegal acts are immoral, or different jurisdictions have different standards of morality as discussed by the dissents and separate opinions, although these observations and propositions are true and correct. It is certainly a fallacious argument that because there are exceptions to the general rule that the "law is the witness and deposit of our moral life," then the rule is not true; in fact, that there are exceptions only affirms the truth of the rule. Likewise, the observation that morality is relative in different jurisdictions only affirms the truth that there is morality in a particular jurisdiction; without, however, discounting the truth that underneath the moral relativism are certain moral absolutes such as respect for life and truth-telling, without which no society will survive. Only one conduct is in question before this Court, i.e., the conjugal arrangement of a government employee whose partner is legally married to another which Philippine law and jurisprudence consider both immoral and illegal. Lest the Court inappropriately engage in the impossible task of prescribing comprehensively how one ought to live, the Court must focus its attention upon the sole conduct in question before us. In interpreting "disgraceful and immoral conduct," the dissenting opinion of Mme. Justice Ynares-Santiago groped for standards of morality and stated that the "ascertainment of what is moral or immoral calls for the discovery of contemporary community standards" but did not articulate how these standards are to be ascertained. Instead, it held that, "(f)or those in the service of the Government, provisions of law and court precedents . . . have to be considered." It identified the Civil Service Law and the laws on adultery and concubinage as laws which respondent's conduct has offended and cited a string of precedents where a government employee was found guilty of committing a "disgraceful and immoral conduct" for maintaining illicit relations and was thereby penalized. As stated above, there is no dispute that under settled jurisprudence, respondent's conduct constitutes "disgraceful and immoral conduct." However, the cases cited by the dissent do not involve the defense of religious freedom which respondent in the case at bar invokes. Those cited cases cannot therefore serve as precedents in settling the issue in the case at bar. Mme. Justice Ynares-Santiago's dissent also cites Cleveland v. United States446 in laying down the standard of morality, viz: "(w)hether an act is immoral within the meaning of the statute is not to be determined by respondent's concept of morality. The law provides the standard; the offense is complete if respondent intended to perform, and did in fact perform, the act which it condemns." The Mann Act under consideration in the Cleveland case declares as an offense the transportation in interstate commerce of "any woman or girl for the purpose of prostitution or debauchery, or for any other immoral purpose." 447 The resolution of that case hinged on the interpretation of the phrase "immoral purpose." The U.S. Supreme Court held that the petitioner Mormons' act of transporting at least one plural wife whether for the purpose of cohabiting with her, or for the purpose of aiding another member of their Mormon church in such a project, was covered by the phrase "immoral purpose." In so ruling, the Court relied on Reynolds which held that the Mormons' practice of polygamy, in spite of their defense of religious freedom, was "odious among the northern and western nations of Europe,"448 "a return to barbarism,"449 "contrary to the spirit of Christianity and of the civilization which Christianity has produced in the Western world,"450 and thus punishable by law.

The Cleveland standard, however, does not throw light to the issue in the case at bar. The pronouncements of the U.S. Supreme Court that polygamy is intrinsically "odious" or "barbaric" do not apply in the Philippines where Muslims, by law, are allowed to practice polygamy. Unlike in Cleveland, there is no jurisprudence in Philippine jurisdiction holding that the defense of religious freedom of a member of the Jehovah's Witnesses under the same circumstances as respondent will not prevail over the laws on adultery, concubinage or some other law. We cannot summarily conclude therefore that her conduct is likewise so "odious" and "barbaric" as to be immoral and punishable by law. While positing the view that the resolution of the case at bar lies more on determining the applicable moral standards and less on religious freedom, Mme. Justice YnaresSantiago's dissent nevertheless discussed respondent's plea of religious freedom and disposed of this defense by stating that "(a) clear and present danger of a substantive evil, destructive to public morals, is a ground for the reasonable regulation of the free exercise and enjoyment of religious profession. (American Bible Society v. City of Manila, 101 Phil. 386 [1957]). In addition to the destruction of public morals, the substantive evil in this case is the tearing down of morality, good order, and discipline in the judiciary." However, the foregoing discussion has shown that the "clear and present danger" test that is usually employed in cases involving freedom of expression is not appropriate to the case at bar which involves purely religious conduct. The dissent also cites Reynolds in supporting its conclusion that respondent is guilty of "disgraceful and immoral conduct." The Reynolds ruling, however, was reached with a strict neutrality approach, which is not the approach contemplated by the Philippine constitution. As discussed above, Philippine jurisdiction adopts benevolent neutrality in interpreting the religion clauses. In the same vein, Mr. Justice Carpio's dissent which employs strict neutrality does not reflect the constitutional intent of employing benevolent neutrality in interpreting the Philippine religion clauses. His dissent avers that respondent should be held administratively liable not for "disgraceful and immoral conduct" but "conduct prejudicial to the best interest of the service" as she is a necessary co-accused of her partner in concubinage. The dissent stresses that being a court employee, her open violation of the law is prejudicial to the administration of justice. Firstly, the dissent offends due process as respondent was not given an opportunity to defend herself against the charge of "conduct prejudicial to the best interest of the service." In addition, there is no evidence of the alleged prejudice to the best interest of the service. Most importantly, the dissent concludes that respondent's plea of religious freedom cannot prevail without so much as employing a test that would balance respondent's religious freedom and the state's interest at stake in the case at bar. The foregoing discussion on the doctrine of religious freedom, however, shows that with benevolent neutrality as a framework, the Court cannot simply reject respondent's plea of religious freedom without even subjecting it to the "compelling state interest" test that would balance her freedom with the paramount interests of the state. The strict neutrality employed in the cases the dissent cites -Reynolds, Smith and People v. Bitdu decided before the 1935 Constitution which unmistakably shows adherence to benevolent neutrality - is not contemplated by our constitution. Neither is Sulu Islamic Association of Masjid Lambayong v. Judge Nabdar J. Malik451 cited in Mr. Justice Carpio's dissent decisive of the immorality issue in the case at bar. In that case, the Court dismissed the charge of immorality against a Tausug judge for engaging in an adulterous relationship with another woman with whom he had three children because "it (was) not 'immoral' by Muslim standards for Judge Malik to marry a second time while his first marriage (existed)." Putting the quoted portion in its proper context would

readily show that the Sulu Islamic case does not provide a precedent to the case at bar. Immediately prior to the portion quoted by the dissent, the Court stressed, viz: "(s)ince Art. 180 of P.D. No. 1083, otherwise known as the Code of Muslim Personal Laws of the Philippines, provides that the penal laws relative to the crime of bigamy 'shall not apply to a person married x x x under Muslim Law,' it is not 'immoral' by Muslim standards for Judge Malik to marry a second time while his first marriage exists."452 It was by law, therefore, that the Muslim conduct in question was classified as an exception to the crime of bigamy and thus an exception to the general standards of morality. The constitutionality of P.D. No. 1083 when measured against the Establishment Clause was not raised as an issue in the Sulu Islamic case. Thus, the Court did not determine whether P.D. No. 1083 suffered from a constitutional infirmity and instead relied on the provision excepting the challenged Muslim conduct from the crime of bigamy in holding that the challenged act is not immoral by Muslim standards. In contradistinction, in the case at bar, there is no similar law which the Court can apply as basis for treating respondent's conduct as an exception to the prevailing jurisprudence on illicit relations of civil servants. Instead, the Free Exercise Clause is being invoked to justify exemption. B. Application of Benevolent Neutrality and the Compelling State Interest Test to the Case at Bar The case at bar being one of first impression, we now subject the respondent's claim of religious freedom to the "compelling state interest" test from a benevolent neutrality stance i.e. entertaining the possibility that respondent's claim to religious freedom would warrant carving out an exception from the Civil Service Law; necessarily, her defense of religious freedom will be unavailing should the government succeed in demonstrating a more compelling state interest. In applying the test, the first inquiry is whether respondent's right to religious freedom has been burdened. There is no doubt that choosing between keeping her employment and abandoning her religious belief and practice and family on the one hand, and giving up her employment and keeping her religious practice and family on the other hand, puts a burden on her free exercise of religion. In Sherbert, the Court found that Sherbert's religious exercise was burdened as the denial of unemployment benefits "forces her to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand." The burden on respondent in the case at bar is even greater as the price she has to pay for her employment is not only her religious precept but also her family which, by the Declaration Pledging Faithfulness, stands "honorable before God and men." The second step is to ascertain respondent's sincerity in her religious belief. Respondent appears to be sincere in her religious belief and practice and is not merely using the "Declaration of Pledging Faithfulness" to avoid punishment for immorality. She did not secure the Declaration only after entering the judiciary where the moral standards are strict and defined, much less only after an administrative case for immorality was filed against her. The Declaration was issued to her by her congregation after ten years of living together with her partner, Quilapio, and ten years before she entered the judiciary. Ministers from her congregation testified on the authenticity of the Jehovah's Witnesses' practice of securing a Declaration and their doctrinal or scriptural basis for such a practice. As the ministers testified, the Declaration is not whimsically issued to avoid legal punishment for illicit conduct but to make the "union" of their members under respondent's circumstances "honorable

before God and men." It is also worthy of notice that the Report and Recommendation of the investigating judge annexed letters453 of the OCA to the respondent regarding her request to be exempt from attending the flag ceremony after Circular No. 62-2001 was issued requiring attendance in the flag ceremony. The OCA's letters were not submitted by respondent as evidence but annexed by the investigating judge in explaining that he was caught in a dilemma whether to find respondent guilty of immorality because the Court Administrator and Deputy Court Administrator had different positions regarding respondent's request for exemption from the flag ceremony on the ground of the Jehovah's Witnesses' contrary belief and practice. Respondent's request for exemption from the flag ceremony shows her sincerity in practicing the Jehovah's Witnesses' beliefs and not using them merely to escape punishment. She is a practicing member of the Jehovah's Witnesses and the Jehovah ministers testified that she is a member in good standing. Nevertheless, should the government, thru the Solicitor General, want to further question the respondent's sincerity and the centrality of her practice in her faith, it should be given the opportunity to do so. The government has not been represented in the case at bar from its incipience until this point. In any event, even if the Court deems sufficient respondent's evidence on the sincerity of her religious belief and its centrality in her faith, the case at bar cannot still be decided using the "compelling state interest" test. The case at bar is one of first impression, thus the parties were not aware of the burdens of proof they should discharge in the Court's use of the "compelling state interest" test. We note that the OCA found respondent's defense of religious freedom unavailing in the face of the Court's ruling in Dicdican v. Fernan, et al., viz: It bears emphasis that the image of a court of justice is mirrored in the conduct, official and otherwise, of the personnel who work thereat, from the judge to the lowest of its personnel. Court personnel have been enjoined to adhere to the exacting standards of morality and decency in their professional and private conduct in order to preserve the good name and integrity of the courts of justice. It is apparent from the OCA's reliance upon this ruling that the state interest it upholds is the preservation of the integrity of the judiciary by maintaining among its ranks a high standard of morality and decency. However, there is nothing in the OCA's memorandum to the Court that demonstrates how this interest is so compelling that it should override respondent's plea of religious freedom nor is it shown that the means employed by the government in pursuing its interest is the least restrictive to respondent's religious exercise. Indeed, it is inappropriate for the complainant, a private person, to present evidence on the compelling interest of the state. The burden of evidence should be discharged by the proper agency of the government which is the Office of the Solicitor General. To properly settle the issue in the case at bar, the government should be given the opportunity to demonstrate the compelling state interest it seeks to uphold in opposing the respondent's stance that her conjugal arrangement is not immoral and punishable as it comes within the scope of free exercise protection. Should the Court prohibit and punish her conduct where it is protected by the Free Exercise Clause, the Court's action would be an unconstitutional encroachment of her right to religious freedom.454 We cannot therefore simply take a passing look at respondent's claim of religious freedom, but must instead apply the "compelling state interest" test. The government must be heard on the issue as it has not been given an opportunity to discharge its burden of demonstrating the state's compelling interest which can override respondent's religious belief and practice. To repeat, this is a case of first impression where we are applying the "compelling state interest" test in a case involving purely religious

conduct. The careful application of the test is indispensable as how we will decide the case will make a decisive difference in the life of the respondent who stands not only before the Court but before her Jehovah God. IN VIEW WHEREOF, the case is REMANDED to the Office of the Court Administrator. The Solicitor General is ordered to intervene in the case where it will be given the opportunity (a) to examine the sincerity and centrality of respondent's claimed religious belief and practice; (b) to present evidence on the state's "compelling interest" to override respondent's religious belief and practice; and (c) to show that the means the state adopts in pursuing its interest is the least restrictive to respondent's religious freedom. The rehearing should be concluded thirty (30) days from the Office of the Court Administrator's receipt of this Decision. SO ORDERED. G.R. No. L-27588 December 31, 1927 THE ROMAN CATHOLIC BISHOP OF NUEVA SEGOVIA, as representative of the Roman Catholic Apostolic Church, plaintiff-appellant, vs. THE PROVINCIAL BOARD OF ILOCOS NORTE, ET AL., defendants-appellants. Vicente Llanes and Proceso Provincial Fiscal Santos for defendant-appellants. Coloma for plaintiff-appellant.

AVANCEA, J.: The plaintiff, the Roman Catholic Apostolic Church, represented by the Bishop of Nueva Segovia, possesses and is the owner of a parcel of land in the municipality of San Nicolas, Ilocos Norte, all four sides of which face on public streets. On the south side is a part of the churchyard, the convent and an adjacent lot used for a vegetable garden, containing an area off 1,624 square meters, in which there is a stable and a well for the use of the convent. In the center is the remainder of the churchyard and the church. On the north is an old cemetery with two of its walls still standing, and a portion where formerly stood a tower, the base of which still be seen, containing a total area of 8,955 square meters. As required by the defendants, on July 3, 1925 the plaintiff paid, under protest, the land tax on the lot adjoining the convent and the lot which formerly was the cemetery with the portion where the tower stood. The plaintiff filed this action for the recovery of the sum paid by to the defendants by way of land tax, alleging that the collection of this tax is illegal. The lower court absolved the defendants from the complaint in regard to the lot adjoining convent and declared that the tax collected on the lot, which formerly was the cemetery and on the portion where the lower stood, was illegal. Both parties appealed from this judgment. The exemption in favor of the convent in the payment of the land tax (sec. 344 [c] Administrative Code) refers to the home of the parties who presides over the church and who has to take care of himself in order to discharge his duties. In therefore must, in the sense, include not only the land actually occupied by the church, but also the adjacent ground destined to the ordinary incidental uses of man. Except in large cities where the density of the population and the development of commerce require the use of larger tracts of land for

buildings, a vegetable garden belongs to a house and, in the case of a convent, it use is limited to the necessities of the priest, which comes under the exemption.lawphi1.net In regard to the lot which formerly was the cemetery, while it is no longer used as such, neither is it used for commercial purposes and, according to the evidence, is now being used as a lodging house by the people who participate in religious festivities, which constitutes an incidental use in religious functions, which also comes within the exemption. The judgment appealed from is reversed in all it parts and it is held that both lots are exempt from land tax and the defendants are ordered to refund to plaintiff whatever was paid as such tax, without any special pronouncement as to costs. So ordered. Johnson, Street, Villamor, Ostrand, Johns and Villa-Real, JJ., concur. G.R. No. 115455 August 25, 1994 ARTURO vs. THE SECRETARY OF REVENUE, respondents. M. FINANCE and THE TOLENTINO, petitioner, COMMISSIONER OF INTERNAL

KILOSBAYAN, INC., JOVITO R. SALONGA, CIRILO A. RIGOS, ERME CAMBA, EMILIO C. CAPULONG, JR., JOSE T. APOLO, EPHRAIM TENDERO, FERNANDO SANTIAGO, JOSE ABCEDE, CHRISTINE TAN, FELIPE L. GOZON, RAFAEL G. FERNANDO, RAOUL V. VICTORINO, JOSE CUNANAN, QUINTIN S. DOROMAL, MOVEMENT OF ATTORNEYS FOR BROTHERHOOD, INTEGRITY AND NATIONALISM, INC. ("MABINI"), FREEDOM FROM DEBT COALITION, INC., PHILIPPINE BIBLE SOCIETY, INC., and WIGBERTO TAADA,petitioners, vs. THE EXECUTIVE SECRETARY, THE SECRETARY OF FINANCE, THE COMMISSIONER OF INTERNAL REVENUE and THE COMMISSIONER OF CUSTOMS, respondents. G.R. No. 115852 August 25, 1994 PHILIPPINE vs. THE SECRETARY OF REVENUE, respondents. AIRLINES, FINANCE, and COMMISSIONER INC., petitioner, OF INTERNAL

G.R. No. 115873 August 25, 1994 COOPERATIVE UNION OF THE PHILIPPINES, petitioners, vs. HON. LIWAYWAY V. CHATO, in her capacity as the Commissioner of Internal Revenue, HON. TEOFISTO T. GUINGONA, JR., in his capacity as Executive Secretary, and HON. ROBERTO B. DE OCAMPO, in his capacity as Secretary of Finance, respondents. G.R. No. 115931 August 25, 1994 PHILIPPINE EDUCATIONAL PUBLISHERS ASSOCIATION, INC., and ASSOCIATION OF PHILIPPINE BOOK-SELLERS, petitioners, vs. HON. ROBERTO B. DE OCAMPO, as the Secretary of Finance; HON. LIWAYWAY V. CHATO, as the Commissioner of Internal Revenue and HON. GUILLERMO PARAYNO, JR., in his capacity as the Commissioner of Customs, respondents. Arturo M. Tolentino for and in his behalf. Donna Celeste D. Feliciano and Juan T. David for petitioners in G.R. No. 115525. Roco, Bunag, Kapunan, Migallos and Jardeleza for petitioner R.S. Roco. Villaranza and Cruz for petitioners in G.R. No. 115544. Carlos A. Raneses and Manuel M. Serrano for petitioner in G.R. No. 115754. Salonga, Hernandez & Allado for Freedon From Debts Coalition, Inc. & Phil. Bible Society.

G.R. No. 115525 August 25, 1994 JUAN T. DAVID, petitioner, vs. TEOFISTO T. GUINGONA, JR., as Executive Secretary; ROBERTO DE OCAMPO, as Secretary of Finance; LIWAYWAY VINZONS-CHATO, as Commissioner of Internal Revenue; and their AUTHORIZED AGENTS OR REPRESENTATIVES, respondents. G.R. No. 115543 August 25, 1994 RAUL S. ROCO and the INTEGRATED BAR OF THE PHILIPPINES, petitioners, vs. THE SECRETARY OF THE DEPARTMENT OF FINANCE; THE COMMISSIONERS OF THE BUREAU OF INTERNAL REVENUE AND BUREAU OF CUSTOMS, respondents. G.R. No. 115544 August 25, 1994 PHILIPPINE PRESS INSTITUTE, INC.; EGP PUBLISHING CO., INC.; PUBLISHING CORPORATION; PHILIPPINE JOURNALISTS, INC.; JOSE L. PAVIA; and OFELIA L. DIMALANTA, petitioners, vs. HON. LIWAYWAY V. CHATO, in her capacity as Commissioner of Internal Revenue; HON. TEOFISTO T. GUINGONA, JR., in his capacity as Executive Secretary; and HON. ROBERTO B. DE OCAMPO, in his capacity as Secretary of Finance, respondents. G.R. No. 115754 August 25, 1994 CHAMBER OF REAL ESTATE AND BUILDERS (CREBA), petitioner, vs. THE COMMISSIONER OF INTERNAL REVENUE, respondent. G.R. No. 115781 August 25, 1994 ASSOCIATIONS, INC.,

Estelito P. Mendoza for petitioner in G.R. No. 115852. Panganiban, Benitez, Parlade, Africa & Barinaga Law Offices for petitioners in G.R. No. 115873. R.B. Rodriguez & Associates for petitioners in G.R. No. 115931.

Reve A.V. Saguisag for MABINI.

I. PROCEDURAL ISSUES The contention of petitioners is that in enacting Republic Act No. 7716, or the Expanded Value-Added Tax Law, Congress violated the Constitution because, although H. No. 11197 had originated in the House of Representatives, it was not passed by the Senate but was simply consolidated with the Senate version (S. No. 1630) in the Conference Committee to produce the bill which the President signed into law. The following provisions of the Constitution are cited in support of the proposition that because Republic Act No. 7716 was passed in this manner, it did not originate in the House of Representatives and it has not thereby become a law: Art. VI, 24: All appropriation, revenue or tariff bills, bills authorizing increase of the public debt, bills of local application, and private bills shall originate exclusively in the House of Representatives, but the Senate may propose or concur with amendments. Id., 26(2): No bill passed by either House shall become a law unless it has passed three readings on separate days, and printed copies thereof in its final form have been distributed to its Members three days before its passage, except when the President certifies to the necessity of its immediate enactment to meet a public calamity or emergency. Upon the last reading of a bill, no amendment thereto shall be allowed, and the vote thereon shall be taken immediately thereafter, and the yeasand nays entered in the Journal. It appears that on various dates between July 22, 1992 and August 31, 1993, several bills 1 were introduced in the House of Representatives seeking to amend certain provisions of the National Internal Revenue Code relative to the value-added tax or VAT. These bills were referred to the House Ways and Means Committee which recommended for approval a substitute measure, H. No. 11197, entitled AN ACT RESTRUCTURING THE VALUE-ADDED TAX (VAT) SYSTEM TO WIDEN ITS TAX BASE AND ENHANCE ITS ADMINISTRATION, AMENDING FOR THESE PURPOSES SECTIONS 99, 100, 102, 103, 104, 105, 106, 107, 108 AND 110 OF TITLE IV, 112, 115 AND 116 OF TITLE V, AND 236, 237 AND 238 OF TITLE IX, AND REPEALING SECTIONS 113 AND 114 OF TITLE V, ALL OF THE NATIONAL INTERNAL REVENUE CODE, AS AMENDED The bill (H. No. 11197) was considered on second reading starting November 6, 1993 and, on November 17, 1993, it was approved by the House of Representatives after third and final reading. It was sent to the Senate on November 23, 1993 and later referred by that body to its Committee on Ways and Means. On February 7, 1994, the Senate Committee submitted its report recommending approval of S. No. 1630, entitled AN ACT RESTRUCTURING THE VALUE-ADDED TAX (VAT) SYSTEM TO WIDEN ITS TAX BASE AND ENHANCE ITS ADMINISTRATION, AMENDING FOR THESE PURPOSES SECTIONS 99, 100, 102, 103, 104, 105, 107, 108, AND 110 OF TITLE IV, 112 OF TITLE V, AND 236, 237, AND 238 OF TITLE IX, AND REPEALING SECTIONS 113, 114 and 116 OF TITLE V, ALL OF THE NATIONAL INTERNAL REVENUE CODE, AS AMENDED, AND FOR OTHER PURPOSES

MENDOZA, J.: The value-added tax (VAT) is levied on the sale, barter or exchange of goods and properties as well as on the sale or exchange of services. It is equivalent to 10% of the gross selling price or gross value in money of goods or properties sold, bartered or exchanged or of the gross receipts from the sale or exchange of services. Republic Act No. 7716 seeks to widen the tax base of the existing VAT system and enhance its administration by amending the National Internal Revenue Code. These are various suits for certiorari and prohibition, challenging the constitutionality of Republic Act No. 7716 on various grounds summarized in the resolution of July 6, 1994 of this Court, as follows: I. Procedural Issues: A. Does Republic Act No. 7716 violate Art. VI, 24 of the Constitution? B. Does it violate Art. VI, 26(2) of the Constitution? C. What is the extent of the power of the Bicameral Conference Committee? II. Substantive Issues: A. Does the law violate the following provisions in the Bill of Rights (Art. III)? 1. 1 2. 4 3. 5 4. 10 B. Does the law violate the following other provisions of the Constitution? 1. Art. VI, 28(1) 2. Art. VI, 28(3) These questions will be dealt in the order they are stated above. As will presently be explained not all of these questions are judicially cognizable, because not all provisions of the Constitution are self executing and, therefore, judicially enforceable. The other departments of the government are equally charged with the enforcement of the Constitution, especially the provisions relating to them.

It was stated that the bill was being submitted "in substitution of Senate Bill No. 1129, taking into consideration P.S. Res. No. 734 and H.B. No. 11197." On February 8, 1994, the Senate began consideration of the bill (S. No. 1630). It finished debates on the bill and approved it on second reading on March 24, 1994. On the same day, it approved the bill on third reading by the affirmative votes of 13 of its members, with one abstention. H. No. 11197 and its Senate version (S. No. 1630) were then referred to a conference committee which, after meeting four times (April 13, 19, 21 and 25, 1994), recommended that "House Bill No. 11197, in consolidation with Senate Bill No. 1630, be approved in accordance with the attached copy of the bill as reconciled and approved by the conferees." The Conference Committee bill, entitled "AN ACT RESTRUCTURING THE VALUEADDED TAX (VAT) SYSTEM, WIDENING ITS TAX BASE AND ENHANCING ITS ADMINISTRATION AND FOR THESE PURPOSES AMENDING AND REPEALING THE RELEVANT PROVISIONS OF THE NATIONAL INTERNAL REVENUE CODE, AS AMENDED, AND FOR OTHER PURPOSES," was thereafter approved by the House of Representatives on April 27, 1994 and by the Senate on May 2, 1994. The enrolled bill was then presented to the President of the Philippines who, on May 5, 1994, signed it. It became Republic Act No. 7716. On May 12, 1994, Republic Act No. 7716 was published in two newspapers of general circulation and, on May 28, 1994, it took effect, although its implementation was suspended until June 30, 1994 to allow time for the registration of business entities. It would have been enforced on July 1, 1994 but its enforcement was stopped because the Court, by the vote of 11 to 4 of its members, granted a temporary restraining order on June 30, 1994. First. Petitioners' contention is that Republic Act No. 7716 did not "originate exclusively" in the House of Representatives as required by Art. VI, 24 of the Constitution, because it is in fact the result of the consolidation of two distinct bills, H. No. 11197 and S. No. 1630. In this connection, petitioners point out that although Art. VI, SS 24 was adopted from the American Federal Constitution, 2 it is notable in two respects: the verb "shall originate" is qualified in the Philippine Constitution by the word "exclusively" and the phrase "as on other bills" in the American version is omitted. This means, according to them, that to be considered as having originated in the House, Republic Act No. 7716 must retain the essence of H. No. 11197. This argument will not bear analysis. To begin with, it is not the law but the revenue bill which is required by the Constitution to "originate exclusively" in the House of Representatives. It is important to emphasize this, because a bill originating in the House may undergo such extensive changes in the Senate that the result may be a rewriting of the whole. The possibility of a third version by the conference committee will be discussed later. At this point, what is important to note is that, as a result of the Senate action, a distinct bill may be produced. To insist that a revenue statute and not only the bill which initiated the legislative process culminating in the enactment of the law must substantially be the same as the House bill would be to deny the Senate's power not only to "concur with amendments" but also to "propose amendments." It would be to violate the coequality of legislative power of the two houses of Congress and in fact make the House superior to the Senate. The contention that the constitutional design is to limit the Senate's power in respect of revenue bills in order to compensate for the grant to the Senate of the treaty-ratifying power 3 and thereby equalize its powers and those of the House overlooks the fact that the powers being compared are different. We are dealing here with the legislative power which under the Constitution is vested not in any particular chamber but in the Congress of the Philippines, consisting of "a Senate and a House of Representatives." 4 The exercise of the treaty-ratifying power is not the exercise of legislative power. It is the exercise of a check on the executive power. There is, therefore, no justification for comparing the legislative powers of the House and of the Senate on the basis of the possession of such nonlegislative power

by the Senate. The possession of a similar power by the U.S. Senate 5 has never been thought of as giving it more legislative powers than the House of Representatives. In the United States, the validity of a provision ( 37) imposing an ad valorem tax based on the weight of vessels, which the U.S. Senate had inserted in the Tariff Act of 1909, was upheld against the claim that the provision was a revenue bill which originated in the Senate in contravention of Art. I, 7 of the U.S. Constitution. 6 Nor is the power to amend limited to adding a provision or two in a revenue bill emanating from the House. The U.S. Senate has gone so far as changing the whole of bills following the enacting clause and substituting its own versions. In 1883, for example, it struck out everything after the enacting clause of a tariff bill and wrote in its place its own measure, and the House subsequently accepted the amendment. The U.S. Senate likewise added 847 amendments to what later became the Payne-Aldrich Tariff Act of 1909; it dictated the schedules of the Tariff Act of 1921; it rewrote an extensive tax revision bill in the same year and recast most of the tariff bill of 1922. 7 Given, then, the power of the Senate to propose amendments, the Senate can propose its own version even with respect to bills which are required by the Constitution to originate in the House. It is insisted, however, that S. No. 1630 was passed not in substitution of H. No. 11197 but of another Senate bill (S. No. 1129) earlier filed and that what the Senate did was merely to "take [H. No. 11197] into consideration" in enacting S. No. 1630. There is really no difference between the Senate preserving H. No. 11197 up to the enacting clause and then writing its own version following the enacting clause (which, it would seem, petitioners admit is an amendment by substitution), and, on the other hand, separately presenting a bill of its own on the same subject matter. In either case the result are two bills on the same subject. Indeed, what the Constitution simply means is that the initiative for filing revenue, tariff, or tax bills, bills authorizing an increase of the public debt, private bills and bills of local application must come from the House of Representatives on the theory that, elected as they are from the districts, the members of the House can be expected to be more sensitive to the local needs and problems. On the other hand, the senators, who are elected at large, are expected to approach the same problems from the national perspective. Both views are thereby made to bear on the enactment of such laws. Nor does the Constitution prohibit the filing in the Senate of a substitute bill in anticipation of its receipt of the bill from the House, so long as action by the Senate as a body is withheld pending receipt of the House bill. The Court cannot, therefore, understand the alarm expressed over the fact that on March 1, 1993, eight months before the House passed H. No. 11197, S. No. 1129 had been filed in the Senate. After all it does not appear that the Senate ever considered it. It was only after the Senate had received H. No. 11197 on November 23, 1993 that the process of legislation in respect of it began with the referral to the Senate Committee on Ways and Means of H. No. 11197 and the submission by the Committee on February 7, 1994 of S. No. 1630. For that matter, if the question were simply the priority in the time of filing of bills, the fact is that it was in the House that a bill (H. No. 253) to amend the VAT law was first filed on July 22, 1992. Several other bills had been filed in the House before S. No. 1129 was filed in the Senate, and H. No. 11197 was only a substitute of those earlier bills. Second. Enough has been said to show that it was within the power of the Senate to propose S. No. 1630. We now pass to the next argument of petitioners that S. No. 1630 did not pass three readings on separate days as required by the Constitution 8 because the second and third readings were done on the same day, March 24, 1994. But this was because on February 24, 1994 9 and again on March 22, 1994, 10 the President had certified S. No. 1630 as urgent. The presidential certification dispensed with the requirement not only of printing but also that of reading the bill on separate days. The phrase "except when the President certifies to the necessity of its immediate enactment, etc." in Art. VI, 26(2) qualifies the two stated conditions before a bill can become a law: (i) the bill has passed three readings on separate days and (ii) it has been printed in its final form and distributed three days before it is finally approved.

In other words, the "unless" clause must be read in relation to the "except" clause, because the two are really coordinate clauses of the same sentence. To construe the "except" clause as simply dispensing with the second requirement in the "unless" clause (i.e., printing and distribution three days before final approval) would not only violate the rules of grammar. It would also negate the very premise of the "except" clause: the necessity of securing the immediate enactment of a bill which is certified in order to meet a public calamity or emergency. For if it is only the printing that is dispensed with by presidential certification, the time saved would be so negligible as to be of any use in insuring immediate enactment. It may well be doubted whether doing away with the necessity of printing and distributing copies of the bill three days before the third reading would insure speedy enactment of a law in the face of an emergency requiring the calling of a special election for President and VicePresident. Under the Constitution such a law is required to be made within seven days of the convening of Congress in emergency session. 11 That upon the certification of a bill by the President the requirement of three readings on separate days and of printing and distribution can be dispensed with is supported by the weight of legislative practice. For example, the bill defining the certiorari jurisdiction of this Court which, in consolidation with the Senate version, became Republic Act No. 5440, was passed on second and third readings in the House of Representatives on the same day (May 14, 1968) after the bill had been certified by the President as urgent. 12 There is, therefore, no merit in the contention that presidential certification dispenses only with the requirement for the printing of the bill and its distribution three days before its passage but not with the requirement of three readings on separate days, also. It is nonetheless urged that the certification of the bill in this case was invalid because there was no emergency, the condition stated in the certification of a "growing budget deficit" not being an unusual condition in this country. It is noteworthy that no member of the Senate saw fit to controvert the reality of the factual basis of the certification. To the contrary, by passing S. No. 1630 on second and third readings on March 24, 1994, the Senate accepted the President's certification. Should such certification be now reviewed by this Court, especially when no evidence has been shown that, because S. No. 1630 was taken up on second and third readings on the same day, the members of the Senate were deprived of the time needed for the study of a vital piece of legislation? The sufficiency of the factual basis of the suspension of the writ of habeas corpus or declaration of martial law under Art. VII, 18, or the existence of a national emergency justifying the delegation of extraordinary powers to the President under Art. VI, 23(2), is subject to judicial review because basic rights of individuals may be at hazard. But the factual basis of presidential certification of bills, which involves doing away with procedural requirements designed to insure that bills are duly considered by members of Congress, certainly should elicit a different standard of review. Petitioners also invite attention to the fact that the President certified S. No. 1630 and not H. No. 11197. That is because S. No. 1630 was what the Senate was considering. When the matter was before the House, the President likewise certified H. No. 9210 the pending in the House. Third. Finally it is contended that the bill which became Republic Act No. 7716 is the bill which the Conference Committee prepared by consolidating H. No. 11197 and S. No. 1630. It is claimed that the Conference Committee report included provisions not found in either the House bill or the Senate bill and that these provisions were "surreptitiously" inserted by the Conference Committee. Much is made of the fact that in the last two days of its session on April 21 and 25, 1994 the Committee met behind closed doors. We are not told, however, whether the provisions were not the result of the give and take that often mark the proceedings of conference committees.

Nor is there anything unusual or extraordinary about the fact that the Conference Committee met in executive sessions. Often the only way to reach agreement on conflicting provisions is to meet behind closed doors, with only the conferees present. Otherwise, no compromise is likely to be made. The Court is not about to take the suggestion of a cabal or sinister motive attributed to the conferees on the basis solely of their "secret meetings" on April 21 and 25, 1994, nor read anything into the incomplete remarks of the members, marked in the transcript of stenographic notes by ellipses. The incomplete sentences are probably due to the stenographer's own limitations or to the incoherence that sometimes characterize conversations. William Safire noted some such lapses in recorded talks even by recent past Presidents of the United States. In any event, in the United States conference committees had been customarily held in executive sessions with only the conferees and their staffs in attendance. 13 Only in November 1975 was a new rule adopted requiring open sessions. Even then a majority of either chamber's conferees may vote in public to close the meetings. 14 As to the possibility of an entirely new bill emerging out of a Conference Committee, it has been explained: Under congressional rules of procedure, conference committees are not expected to make any material change in the measure at issue, either by deleting provisions to which both houses have already agreed or by inserting new provisions. But this is a difficult provision to enforce. Note the problem when one house amends a proposal originating in either house by striking out everything following the enacting clause and substituting provisions which make it an entirely new bill. The versions are now altogether different, permitting a conference committee to draft essentially a new bill. . . . 15 The result is a third version, which is considered an "amendment in the nature of a substitute," the only requirement for which being that the third version be germane to the subject of the House and Senate bills. 16 Indeed, this Court recently held that it is within the power of a conference committee to include in its report an entirely new provision that is not found either in the House bill or in the Senate bill. 17 If the committee can propose an amendment consisting of one or two provisions, there is no reason why it cannot propose several provisions, collectively considered as an "amendment in the nature of a substitute," so long as such amendment is germane to the subject of the bills before the committee. After all, its report was not final but needed the approval of both houses of Congress to become valid as an act of the legislative department. The charge that in this case the Conference Committee acted as a third legislative chamber is thus without any basis. 18 Nonetheless, it is argued that under the respective Rules of the Senate and the House of Representatives a conference committee can only act on the differing provisions of a Senate bill and a House bill, and that contrary to these Rules the Conference Committee inserted provisions not found in the bills submitted to it. The following provisions are cited in support of this contention: Rules of the Senate Rule XII: 26. In the event that the Senate does not agree with the House of Representatives on the provision of any bill or joint resolution, the differences shall be settled by a conference committee of both Houses which shall meet within ten days after their composition.

The President shall designate the members of the conference committee in accordance with subparagraph (c), Section 3 of Rule III. Each Conference Committee Report shall contain a detailed and sufficiently explicit statement of the changes in or amendments to the subject measure, and shall be signed by the conferees. The consideration of such report shall not be in order unless the report has been filed with the Secretary of the Senate and copies thereof have been distributed to the Members. (Emphasis added) Rules of the House of Representatives Rule XIV: 85. Conference Committee Reports. In the event that the House does not agree with the Senate on the amendments to any bill or joint resolution, the differences may be settled by conference committees of both Chambers. The consideration of conference committee reports shall always be in order, except when the journal is being read, while the roll is being called or the House is dividing on any question. Each of the pages of such reports shall be signed by the conferees. Each report shall contain a detailed, sufficiently explicit statement of the changes in or amendments to the subject measure. The consideration of such report shall not be in order unless copies thereof are distributed to the Members: Provided, That in the last fifteen days of each session period it shall be deemed sufficient that three copies of the report, signed as above provided, are deposited in the office of the Secretary General. (Emphasis added) To be sure, nothing in the Rules limits a conference committee to a consideration of conflicting provisions. But Rule XLIV, 112 of the Rules of the Senate is cited to the effect that "If there is no Rule applicable to a specific case the precedents of the Legislative Department of the Philippines shall be resorted to, and as a supplement of these, the Rules contained in Jefferson's Manual." The following is then quoted from the Jefferson's Manual: The managers of a conference must confine themselves to the differences committed to them. . . and may not include subjects not within disagreements, even though germane to a question in issue. Note that, according to Rule XLIX, 112, in case there is no specific rule applicable, resort must be to the legislative practice. The Jefferson's Manual is resorted to only as supplement. It is common place in Congress that conference committee reports include new matters which, though germane, have not been committed to the committee. This practice was admitted by Senator Raul S. Roco, petitioner in G.R. No. 115543, during the oral argument in these cases. Whatever, then, may be provided in the Jefferson's Manual must be considered to have been modified by the legislative practice. If a change is desired in the practice it must be sought in Congress since this question is not covered by any constitutional

provision but is only an internal rule of each house. Thus, Art. VI, 16(3) of the Constitution provides that "Each House may determine the rules of its proceedings. . . ." This observation applies to the other contention that the Rules of the two chambers were likewise disregarded in the preparation of the Conference Committee Report because the Report did not contain a "detailed and sufficiently explicit statement of changes in, or amendments to, the subject measure." The Report used brackets and capital letters to indicate the changes. This is a standard practice in bill-drafting. We cannot say that in using these marks and symbols the Committee violated the Rules of the Senate and the House. Moreover, this Court is not the proper forum for the enforcement of these internal Rules. To the contrary, as we have already ruled, "parliamentary rules are merely procedural and with their observance the courts have no concern." 19 Our concern is with the procedural requirements of the Constitution for the enactment of laws. As far as these requirements are concerned, we are satisfied that they have been faithfully observed in these cases. Nor is there any reason for requiring that the Committee's Report in these cases must have undergone three readings in each of the two houses. If that be the case, there would be no end to negotiation since each house may seek modifications of the compromise bill. The nature of the bill, therefore, requires that it be acted upon by each house on a "take it or leave it" basis, with the only alternative that if it is not approved by both houses, another conference committee must be appointed. But then again the result would still be a compromise measure that may not be wholly satisfying to both houses. Art. VI, 26(2) must, therefore, be construed as referring only to bills introduced for the first time in either house of Congress, not to the conference committee report. For if the purpose of requiring three readings is to give members of Congress time to study bills, it cannot be gainsaid that H. No. 11197 was passed in the House after three readings; that in the Senate it was considered on first reading and then referred to a committee of that body; that although the Senate committee did not report out the House bill, it submitted a version (S. No. 1630) which it had prepared by "taking into consideration" the House bill; that for its part the Conference Committee consolidated the two bills and prepared a compromise version; that the Conference Committee Report was thereafter approved by the House and the Senate, presumably after appropriate study by their members. We cannot say that, as a matter of fact, the members of Congress were not fully informed of the provisions of the bill. The allegation that the Conference Committee usurped the legislative power of Congress is, in our view, without warrant in fact and in law. Fourth. Whatever doubts there may be as to the formal validity of Republic Act No. 7716 must be resolved in its favor. Our cases 20 manifest firm adherence to the rule that an enrolled copy of a bill is conclusive not only of its provisions but also of its due enactment. Not even claims that a proposed constitutional amendment was invalid because the requisite votes for its approval had not been obtained 21 or that certain provisions of a statute had been "smuggled" in the printing of the bill 22 have moved or persuaded us to look behind the proceedings of a coequal branch of the government. There is no reason now to depart from this rule. No claim is here made that the "enrolled bill" rule is absolute. In fact in one case 23 we "went behind" an enrolled bill and consulted the Journal to determine whether certain provisions of a statute had been approved by the Senate in view of the fact that the President of the Senate himself, who had signed the enrolled bill, admitted a mistake and withdrew his signature, so that in effect there was no longer an enrolled bill to consider. But where allegations that the constitutional procedures for the passage of bills have not been observed have no more basis than another allegation that the Conference Committee "surreptitiously" inserted provisions into a bill which it had prepared, we should decline the invitation to go behind the enrolled copy of the bill. To disregard the "enrolled bill" rule in such cases would be to disregard the respect due the other two departments of our government.

Fifth. An additional attack on the formal validity of Republic Act No. 7716 is made by the Philippine Airlines, Inc., petitioner in G.R. No. 11582, namely, that it violates Art. VI, 26(1) which provides that "Every bill passed by Congress shall embrace only one subject which shall be expressed in the title thereof." It is contended that neither H. No. 11197 nor S. No. 1630 provided for removal of exemption of PAL transactions from the payment of the VAT and that this was made only in the Conference Committee bill which became Republic Act No. 7716 without reflecting this fact in its title. The title of Republic Act No. 7716 is: AN ACT RESTRUCTURING THE VALUE- ADDED TAX (VAT) SYSTEM, WIDENING ITS TAX BASE AND ENHANCING ITS ADMINISTRATION, AND FOR THESE PURPOSES AMENDING AND REPEALING THE RELEVANT PROVISIONS OF THE NATIONAL INTERNAL REVENUE CODE, AS AMENDED, AND FOR OTHER PURPOSES. Among the provisions of the NIRC amended is 103, which originally read: 103. Exempt transactions. The following shall be exempt from the value-added tax: .... (q) Transactions which are exempt under special laws or international agreements to which the Philippines is a signatory. Among the transactions exempted from the VAT were those of PAL because it was exempted under its franchise (P.D. No. 1590) from the payment of all "other taxes . . . now or in the near future," in consideration of the payment by it either of the corporate income tax or a franchise tax of 2%. As a result of its amendment by Republic Act No. 7716, 103 of the NIRC now provides: 103. Exempt transactions. The following shall be exempt from the value-added tax: .... (q) Transactions which are exempt under special laws, except those granted under Presidential Decree Nos. 66, 529, 972, 1491, 1590. . . . The effect of the amendment is to remove the exemption granted to PAL, as far as the VAT is concerned. The question is whether this amendment of 103 of the NIRC is fairly embraced in the title of Republic Act No. 7716, although no mention is made therein of P.D. No. 1590 as among those which the statute amends. We think it is, since the title states that the purpose of the statute is to expand the VAT system, and one way of doing this is to widen its base by withdrawing some of the exemptions granted before. To insist that P.D. No. 1590 be mentioned in the title of the law, in addition to 103 of the NIRC, in which it is specifically referred to, would be to insist that the title of a bill should be a complete index of its content. The constitutional requirement that every bill passed by Congress shall embrace only one subject which shall be expressed in its title is intended to prevent surprise upon the

members of Congress and to inform the people of pending legislation so that, if they wish to, they can be heard regarding it. If, in the case at bar, petitioner did not know before that its exemption had been withdrawn, it is not because of any defect in the title but perhaps for the same reason other statutes, although published, pass unnoticed until some event somehow calls attention to their existence. Indeed, the title of Republic Act No. 7716 is not any more general than the title of PAL's own franchise under P.D. No. 1590, and yet no mention is made of its tax exemption. The title of P.D. No. 1590 is: AN ACT GRANTING A NEW FRANCHISE TO PHILIPPINE AIRLINES, INC. TO ESTABLISH, OPERATE, AND MAINTAIN AIRTRANSPORT SERVICES IN THE PHILIPPINES AND BETWEEN THE PHILIPPINES AND OTHER COUNTRIES. The trend in our cases is to construe the constitutional requirement in such a manner that courts do not unduly interfere with the enactment of necessary legislation and to consider it sufficient if the title expresses the general subject of the statute and all its provisions are germane to the general subject thus expressed. 24 It is further contended that amendment of petitioner's franchise may only be made by special law, in view of 24 of P.D. No. 1590 which provides: This franchise, as amended, or any section or provision hereof may only be modified, amended, or repealed expressly by a special law or decree that shall specifically modify, amend, or repeal this franchise or any section or provision thereof. This provision is evidently intended to prevent the amendment of the franchise by mere implication resulting from the enactment of a later inconsistent statute, in consideration of the fact that a franchise is a contract which can be altered only by consent of the parties. Thus in Manila Railroad Co. v. Rafferty, 25 it was held that an Act of the U.S. Congress, which provided for the payment of tax on certain goods and articles imported into the Philippines, did not amend the franchise of plaintiff, which exempted it from all taxes except those mentioned in its franchise. It was held that a special law cannot be amended by a general law. In contrast, in the case at bar, Republic Act No. 7716 expressly amends PAL's franchise (P.D. No. 1590) by specifically excepting from the grant of exemptions from the VAT PAL's exemption under P.D. No. 1590. This is within the power of Congress to do under Art. XII, 11 of the Constitution, which provides that the grant of a franchise for the operation of a public utility is subject to amendment, alteration or repeal by Congress when the common good so requires. II. SUBSTANTIVE ISSUES A. Claims of Press Freedom, Freedom of Thought and Religious Freedom The Philippine Press Institute (PPI), petitioner in G.R. No. 115544, is a nonprofit organization of newspaper publishers established for the improvement of journalism in the Philippines. On the other hand, petitioner in G.R. No. 115781, the Philippine Bible Society (PBS), is a nonprofit organization engaged in the printing and distribution of bibles and other religious articles. Both petitioners claim violations of their rights under 4 and 5 of the Bill of Rights as a result of the enactment of the VAT Law.

The PPI questions the law insofar as it has withdrawn the exemption previously granted to the press under 103 (f) of the NIRC. Although the exemption was subsequently restored by administrative regulation with respect to the circulation income of newspapers, the PPI presses its claim because of the possibility that the exemption may still be removed by mere revocation of the regulation of the Secretary of Finance. On the other hand, the PBS goes so far as to question the Secretary's power to grant exemption for two reasons: (1) The Secretary of Finance has no power to grant tax exemption because this is vested in Congress and requires for its exercise the vote of a majority of all its members 26 and (2) the Secretary's duty is to execute the law. 103 of the NIRC contains a list of transactions exempted from VAT. Among the transactions previously granted exemption were: (f) Printing, publication, importation or sale of books and any newspaper, magazine, review, or bulletin which appears at regular intervals with fixed prices for subscription and sale and which is devoted principally to the publication of advertisements. Republic Act No. 7716 amended 103 by deleting (f) with the result that print media became subject to the VAT with respect to all aspects of their operations. Later, however, based on a memorandum of the Secretary of Justice, respondent Secretary of Finance issued Revenue Regulations No. 11-94, dated June 27, 1994, exempting the "circulation income of print media pursuant to 4 Article III of the 1987 Philippine Constitution guaranteeing against abridgment of freedom of the press, among others." The exemption of "circulation income" has left income from advertisements still subject to the VAT. It is unnecessary to pass upon the contention that the exemption granted is beyond the authority of the Secretary of Finance to give, in view of PPI's contention that even with the exemption of the circulation revenue of print media there is still an unconstitutional abridgment of press freedom because of the imposition of the VAT on the gross receipts of newspapers from advertisements and on their acquisition of paper, ink and services for publication. Even on the assumption that no exemption has effectively been granted to print media transactions, we find no violation of press freedom in these cases. To be sure, we are not dealing here with a statute that on its face operates in the area of press freedom. The PPI's claim is simply that, as applied to newspapers, the law abridges press freedom. Even with due recognition of its high estate and its importance in a democratic society, however, the press is not immune from general regulation by the State. It has been held: The publisher of a newspaper has no immunity from the application of general laws. He has no special privilege to invade the rights and liberties of others. He must answer for libel. He may be punished for contempt of court. . . . Like others, he must pay equitable and nondiscriminatory taxes on his business. . . . 27 The PPI does not dispute this point, either. What it contends is that by withdrawing the exemption previously granted to print media transactions involving printing, publication, importation or sale of newspapers, Republic Act No. 7716 has singled out the press for discriminatory treatment and that within the class of mass media the law discriminates against print media by giving broadcast media favored treatment. We have carefully examined this argument, but we are unable to find a differential treatment of the press by the law, much less any censorial motivation for its enactment. If the press is now required to pay a value-added tax on its transactions, it is not because it is being singled out, much less targeted, for special treatment but only because of the removal of the exemption previously granted to it by law. The withdrawal of exemption is all that is involved

in these cases. Other transactions, likewise previously granted exemption, have been delisted as part of the scheme to expand the base and the scope of the VAT system. The law would perhaps be open to the charge of discriminatory treatment if the only privilege withdrawn had been that granted to the press. But that is not the case. The situation in the case at bar is indeed a far cry from those cited by the PPI in support of its claim that Republic Act No. 7716 subjects the press to discriminatory taxation. In the cases cited, the discriminatory purpose was clear either from the background of the law or from its operation. For example, in Grosjean v. American Press Co., 28the law imposed a license tax equivalent to 2% of the gross receipts derived from advertisements only on newspapers which had a circulation of more than 20,000 copies per week. Because the tax was not based on the volume of advertisement alone but was measured by the extent of its circulation as well, the law applied only to the thirteen large newspapers in Louisiana, leaving untaxed four papers with circulation of only slightly less than 20,000 copies a week and 120 weekly newspapers which were in serious competition with the thirteen newspapers in question. It was well known that the thirteen newspapers had been critical of Senator Huey Long, and the Long-dominated legislature of Louisiana respondent by taxing what Long described as the "lying newspapers" by imposing on them "a tax on lying." The effect of the tax was to curtail both their revenue and their circulation. As the U.S. Supreme Court noted, the tax was "a deliberate and calculated device in the guise of a tax to limit the circulation of information to which the public is entitled in virtue of the constitutional guaranties." 29 The case is a classic illustration of the warning that the power to tax is the power to destroy. In the other case 30 invoked by the PPI, the press was also found to have been singled out because everything was exempt from the "use tax" on ink and paper, except the press. Minnesota imposed a tax on the sales of goods in that state. To protect the sales tax, it enacted a complementary tax on the privilege of "using, storing or consuming in that state tangible personal property" by eliminating the residents' incentive to get goods from outside states where the sales tax might be lower. The Minnesota Star Tribune was exempted from both taxes from 1967 to 1971. In 1971, however, the state legislature amended the tax scheme by imposing the "use tax" on the cost of paper and ink used for publication. The law was held to have singled out the press because (1) there was no reason for imposing the "use tax" since the press was exempt from the sales tax and (2) the "use tax" was laid on an "intermediate transaction rather than the ultimate retail sale." Minnesota had a heavy burden of justifying the differential treatment and it failed to do so. In addition, the U.S. Supreme Court found the law to be discriminatory because the legislature, by again amending the law so as to exempt the first $100,000 of paper and ink used, further narrowed the coverage of the tax so that "only a handful of publishers pay any tax at all and even fewer pay any significant amount of tax." 31 The discriminatory purpose was thus very clear. More recently, in Arkansas Writers' Project, Inc. v. Ragland, 32 it was held that a law which taxed general interest magazines but not newspapers and religious, professional, trade and sports journals was discriminatory because while the tax did not single out the press as a whole, it targeted a small group within the press. What is more, by differentiating on the basis of contents (i.e., between general interest and special interests such as religion or sports) the law became "entirely incompatible with the First Amendment's guarantee of freedom of the press." These cases come down to this: that unless justified, the differential treatment of the press creates risks of suppression of expression. In contrast, in the cases at bar, the statute applies to a wide range of goods and services. The argument that, by imposing the VAT only on print media whose gross sales exceeds P480,000 but not more than P750,000, the law discriminates 33 is without merit since it has not been shown that as a result the class subject to tax has been unreasonably narrowed. The fact is that this limitation does not apply to the press along but to all sales. Nor is impermissible motive shown by the fact that print media and broadcast media are treated differently. The press is taxed on its transactions involving printing and publication, which are different from the transactions of broadcast media. There is thus a reasonable basis for the classification.

The cases canvassed, it must be stressed, eschew any suggestion that "owners of newspapers are immune from any forms of ordinary taxation." The license tax in the Grosjean case was declared invalid because it was "one single in kind, with a long history of hostile misuse against the freedom of the press." 34 On the other hand, Minneapolis Star acknowledged that "The First Amendment does not prohibit all regulation of the press [and that] the States and the Federal Government can subject newspapers to generally applicable economic regulations without creating constitutional problems." 35 What has been said above also disposes of the allegations of the PBS that the removal of the exemption of printing, publication or importation of books and religious articles, as well as their printing and publication, likewise violates freedom of thought and of conscience. For as the U.S. Supreme Court unanimously held in Jimmy Swaggart Ministries v. Board of Equalization, 36 the Free Exercise of Religion Clause does not prohibit imposing a generally applicable sales and use tax on the sale of religious materials by a religious organization. This brings us to the question whether the registration provision of the law, 37 although of general applicability, nonetheless is invalid when applied to the press because it lays a prior restraint on its essential freedom. The case of American Bible Society v. City of Manila 38 is cited by both the PBS and the PPI in support of their contention that the law imposes censorship. There, this Court held that an ordinance of the City of Manila, which imposed a license fee on those engaged in the business of general merchandise, could not be applied to the appellant's sale of bibles and other religious literature. This Court relied on Murdock v. Pennsylvania, 39 in which it was held that, as a license fee is fixed in amount and unrelated to the receipts of the taxpayer, the license fee, when applied to a religious sect, was actually being imposed as a condition for the exercise of the sect's right under the Constitution. For that reason, it was held, the license fee "restrains in advance those constitutional liberties of press and religion and inevitably tends to suppress their exercise." 40 But, in this case, the fee in 107, although a fixed amount (P1,000), is not imposed for the exercise of a privilege but only for the purpose of defraying part of the cost of registration. The registration requirement is a central feature of the VAT system. It is designed to provide a record of tax credits because any person who is subject to the payment of the VAT pays an input tax, even as he collects an output tax on sales made or services rendered. The registration fee is thus a mere administrative fee, one not imposed on the exercise of a privilege, much less a constitutional right. For the foregoing reasons, we find the attack on Republic Act No. 7716 on the ground that it offends the free speech, press and freedom of religion guarantees of the Constitution to be without merit. For the same reasons, we find the claim of the Philippine Educational Publishers Association (PEPA) in G.R. No. 115931 that the increase in the price of books and other educational materials as a result of the VAT would violate the constitutional mandate to the government to give priority to education, science and technology (Art. II, 17) to be untenable.

There is, however, no justification for passing upon the claims that the law also violates the rule that taxation must be progressive and that it denies petitioners' right to due process and that equal protection of the laws. The reason for this different treatment has been cogently stated by an eminent authority on constitutional law thus: "[W]hen freedom of the mind is imperiled by law, it is freedom that commands a momentum of respect; when property is imperiled it is the lawmakers' judgment that commands respect. This dual standard may not precisely reverse the presumption of constitutionality in civil liberties cases, but obviously it does set up a hierarchy of values within the due process clause." 41 Indeed, the absence of threat of immediate harm makes the need for judicial intervention less evident and underscores the essential nature of petitioners' attack on the law on the grounds of regressivity, denial of due process and equal protection and impairment of contracts as a mere academic discussion of the merits of the law. For the fact is that there have even been no notices of assessments issued to petitioners and no determinations at the administrative levels of their claims so as to illuminate the actual operation of the law and enable us to reach sound judgment regarding so fundamental questions as those raised in these suits. Thus, the broad argument against the VAT is that it is regressive and that it violates the requirement that "The rule of taxation shall be uniform and equitable [and] Congress shall evolve a progressive system of taxation." 42Petitioners in G.R. No. 115781 quote from a paper, entitled "VAT Policy Issues: Structure, Regressivity, Inflation and Exports" by Alan A. Tait of the International Monetary Fund, that "VAT payment by low-income households will be a higher proportion of their incomes (and expenditures) than payments by higher-income households. That is, the VAT will be regressive." Petitioners contend that as a result of the uniform 10% VAT, the tax on consumption goods of those who are in the higher-income bracket, which before were taxed at a rate higher than 10%, has been reduced, while basic commodities, which before were taxed at rates ranging from 3% to 5%, are now taxed at a higher rate. Just as vigorously as it is asserted that the law is regressive, the opposite claim is pressed by respondents that in fact it distributes the tax burden to as many goods and services as possible particularly to those which are within the reach of higher-income groups, even as the law exempts basic goods and services. It is thus equitable. The goods and properties subject to the VAT are those used or consumed by higher-income groups. These include real properties held primarily for sale to customers or held for lease in the ordinary course of business, the right or privilege to use industrial, commercial or scientific equipment, hotels, restaurants and similar places, tourist buses, and the like. On the other hand, small business establishments, with annual gross sales of less than P500,000, are exempted. This, according to respondents, removes from the coverage of the law some 30,000 business establishments. On the other hand, an occasional paper 43 of the Center for Research and Communication cities a NEDA study that the VAT has minimal impact on inflation and income distribution and that while additional expenditure for the lowest income class is only P301 or 1.49% a year, that for a family earning P500,000 a year or more is P8,340 or 2.2%. Lacking empirical data on which to base any conclusion regarding these arguments, any discussion whether the VAT is regressive in the sense that it will hit the "poor" and middleincome group in society harder than it will the "rich," as the Cooperative Union of the Philippines (CUP) claims in G.R. No. 115873, is largely an academic exercise. On the other hand, the CUP's contention that Congress' withdrawal of exemption of producers cooperatives, marketing cooperatives, and service cooperatives, while maintaining that granted to electric cooperatives, not only goes against the constitutional policy to promote cooperatives as instruments of social justice (Art. XII, 15) but also denies such cooperatives the equal protection of the law is actually a policy argument. The legislature is not required to adhere to a policy of "all or none" in choosing the subject of taxation.44 Nor is the contention of the Chamber of Real Estate and Builders Association (CREBA), petitioner in G.R. 115754, that the VAT will reduce the mark up of its members by as much as 85% to 90% any more concrete. It is a mere allegation. On the other hand, the claim of the

B. Claims of Regressivity, Denial of Due Process, Equal Protection, and Impairment of Contracts There is basis for passing upon claims that on its face the statute violates the guarantees of freedom of speech, press and religion. The possible "chilling effect" which it may have on the essential freedom of the mind and conscience and the need to assure that the channels of communication are open and operating importunately demand the exercise of this Court's power of review.

Philippine Press Institute, petitioner in G.R. No. 115544, that the VAT will drive some of its members out of circulation because their profits from advertisements will not be enough to pay for their tax liability, while purporting to be based on the financial statements of the newspapers in question, still falls short of the establishment of facts by evidence so necessary for adjudicating the question whether the tax is oppressive and confiscatory. Indeed, regressivity is not a negative standard for courts to enforce. What Congress is required by the Constitution to do is to "evolve a progressive system of taxation." This is a directive to Congress, just like the directive to it to give priority to the enactment of laws for the enhancement of human dignity and the reduction of social, economic and political inequalities (Art. XIII, 1), or for the promotion of the right to "quality education" (Art. XIV, 1). These provisions are put in the Constitution as moral incentives to legislation, not as judicially enforceable rights. At all events, our 1988 decision in Kapatiran 45 should have laid to rest the questions now raised against the VAT. There similar arguments made against the original VAT Law (Executive Order No. 273) were held to be hypothetical, with no more basis than newspaper articles which this Court found to be "hearsay and [without] evidentiary value." As Republic Act No. 7716 merely expands the base of the VAT system and its coverage as provided in the original VAT Law, further debate on the desirability and wisdom of the law should have shifted to Congress. Only slightly less abstract but nonetheless hypothetical is the contention of CREBA that the imposition of the VAT on the sales and leases of real estate by virtue of contracts entered into prior to the effectivity of the law would violate the constitutional provision that "No law impairing the obligation of contracts shall be passed." It is enough to say that the parties to a contract cannot, through the exercise of prophetic discernment, fetter the exercise of the taxing power of the State. For not only are existing laws read into contracts in order to fix obligations as between parties, but the reservation of essential attributes of sovereign power is also read into contracts as a basic postulate of the legal order. The policy of protecting contracts against impairment presupposes the maintenance of a government which retains adequate authority to secure the peace and good order of society. 46 In truth, the Contract Clause has never been thought as a limitation on the exercise of the State's power of taxation save only where a tax exemption has been granted for a valid consideration. 47 Such is not the case of PAL in G.R. No. 115852, and we do not understand it to make this claim. Rather, its position, as discussed above, is that the removal of its tax exemption cannot be made by a general, but only by a specific, law. The substantive issues raised in some of the cases are presented in abstract, hypothetical form because of the lack of a concrete record. We accept that this Court does not only adjudicate private cases; that public actions by "non-Hohfeldian" 48 or ideological plaintiffs are now cognizable provided they meet the standing requirement of the Constitution; that under Art. VIII, 1, 2 the Court has a "special function" of vindicating constitutional rights. Nonetheless the feeling cannot be escaped that we do not have before us in these cases a fully developed factual record that alone can impart to our adjudication the impact of actuality 49 to insure that decision-making is informed and well grounded. Needless to say, we do not have power to render advisory opinions or even jurisdiction over petitions for declaratory judgment. In effect we are being asked to do what the Conference Committee is precisely accused of having done in these cases to sit as a third legislative chamber to review legislation. We are told, however, that the power of judicial review is not so much power as it is duty imposed on this Court by the Constitution and that we would be remiss in the performance of that duty if we decline to look behind the barriers set by the principle of separation of powers. Art. VIII, 1, 2 is cited in support of this view:

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. To view the judicial power of review as a duty is nothing new. Chief Justice Marshall said so in 1803, to justify the assertion of this power in Marbury v. Madison: It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. 50 Justice Laurel echoed this justification in 1936 in Angara v. Electoral Commission: And when the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the other departments; it does not in reality nullify or invalidate an act of the legislature, but only asserts the solemn and sacred obligation assigned to it by the Constitution to determine conflicting claims of authority under the Constitution and to establish for the parties in an actual controversy the rights which that instrument secures and guarantees to them. 51 This conception of the judicial cases 52 of this Court following Angara. power has been affirmed in several

It does not add anything, therefore, to invoke this "duty" to justify this Court's intervention in what is essentially a case that at best is not ripe for adjudication. That duty must still be performed in the context of a concrete case or controversy, as Art. VIII, 5(2) clearly defines our jurisdiction in terms of "cases," and nothing but "cases." That the other departments of the government may have committed a grave abuse of discretion is not an independent ground for exercising our power. Disregard of the essential limits imposed by the case and controversy requirement can in the long run only result in undermining our authority as a court of law. For, as judges, what we are called upon to render is judgment according to law, not according to what may appear to be the opinion of the day. _______________________________ In the preceeding pages we have endeavored to discuss, within limits, the validity of Republic Act No. 7716 in its formal and substantive aspects as this has been raised in the various cases before us. To sum up, we hold: (1) That the procedural requirements of the Constitution have been complied with by Congress in the enactment of the statute; (2) That judicial inquiry whether the formal requirements for the enactment of statutes beyond those prescribed by the Constitution have been observed is precluded by the principle of separation of powers; (3) That the law does not abridge freedom of speech, expression or the press, nor interfere with the free exercise of religion, nor deny to any of the parties the right to an education; and

(4) That, in view of the absence of a factual foundation of record, claims that the law is regressive, oppressive and confiscatory and that it violates vested rights protected under the Contract Clause are prematurely raised and do not justify the grant of prospective relief by writ of prohibition. WHEREFORE, the petitions in these cases are DISMISSED. Bidin, Quiason, and Kapunan, JJ., concur. G.R. No. L-45459 GREGORIO vs. JUAN RUIZ, respondent. Vicente Sotto Office of the Solicitor-General Tuason for respondent. LAUREL, J.: The petitioner, Mons. Gregorio Aglipay, Supreme Head of the Philippine Independent Church, seeks the issuance from this court of a writ of prohibition to prevent the respondent Director of Posts from issuing and selling postage stamps commemorative of the Thirty-third International Eucharistic Congress. In May, 1936, the Director of Posts announced in the dailies of Manila that he would order the issues of postage stamps commemorating the celebration in the City of Manila of the Thirty-third international Eucharistic Congress, organized by the Roman Catholic Church. The petitioner, in the fulfillment of what he considers to be a civic duty, requested Vicente Sotto, Esq., member of the Philippine Bar, to denounce the matter to the President of the Philippines. In spite of the protest of the petitioner's attorney, the respondent publicly announced having sent to the United States the designs of the postage stamps for printing as follows: "In the center is chalice, with grape vine and stalks of wheat as border design. The stamps are blue, green, brown, cardinal red, violet and orange, 1 inch by 1,094 inches. The denominations are for 2, 6, 16, 20, 36 and 50 centavos." The said stamps were actually issued and sold though the greater part thereof, to this day, remains unsold. The further sale of the stamps is sought to be prevented by the petitioner herein. The Solicitor-General contends that the writ of prohibition is not the proper legal remedy in the instant case, although he admits that the writ may properly restrain ministerial functions. While, generally, prohibition as an extraordinary legal writ will not issue to restrain or control the performance of other than judicial or quasi-judicial functions (50 C. J., 6580, its issuance and enforcement are regulated by statute and in this jurisdiction may issue to . . . inferior tribunals, corporations, boards, or persons, whether excercising functions judicial or ministerial, which are without or in excess of the jurisdiction of such tribunal, corporation, board, or person, . . . ." (Secs. 516 and 226, Code of Civil Procedure.) The terms "judicial" and "ministerial" used with reference to "functions" in the statute are undoubtedly comprehensive and include the challenged act of the respondent Director of Posts in the present case, which act because alleged to be violative of the Constitution is a fortiorari "without or in excess of . . . jurisdiction." The statutory rule, therefore, in the jurisdiction is that the writ of prohibition is not confined exclusively to courts or tribunals to keep them within the limits of their own jurisdiction and to prevent them from encroaching upon the jurisdiction of other tribunals, but will issue, in appropriate cases, to an officer or person whose acts are without or in excess of his authority. Not infrequently, "the writ is for March 13, 1937 AGLIPAY, petitioner,

granted, where it is necessary for the orderly administration of justice, or to prevent the use of the strong arm of the law in an oppressive or vindictive manner, or a multiplicity of actions." (Dimayuga and Fajardo vs. Fernandez [1923], 43 Phil., 304, 307.) The more important question raised refers to the alleged violation of the Constitution by the respondent in issuing and selling postage stamps commemorative of the Thirty-third International Eucharistic Congress. It is alleged that this action of the respondent is violative of the provisions of section 23, subsection 3, Article VI, of the Constitution of the Philippines, which provides as follows: No public money or property shall ever be appropriated, applied, or used, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, secretarian, institution, or system of religion, or for the use, benefit, or support of any priest, preacher, minister, or other religious teacher or dignitary as such, except when such priest, preacher, minister, or dignitary is assigned to the armed forces or to any penal institution, orphanage, or leprosarium. The prohibition herein expressed is a direct corollary of the principle of separation of church and state. Without the necessity of adverting to the historical background of this principle in our country, it is sufficient to say that our history, not to speak of the history of mankind, has taught us that the union of church and state is prejudicial to both, for ocassions might arise when the estate will use the church, and the church the state, as a weapon in the furtherance of their recognized this principle of separation of church and state in the early stages of our constitutional development; it was inserted in the Treaty of Paris between the United States and Spain of December 10, 1898, reiterated in President McKinley's Instructions of the Philippine Commission, reaffirmed in the Philippine Bill of 1902 and in the autonomy Act of August 29, 1916, and finally embodied in the constitution of the Philippines as the supreme expression of the Filipino people. It is almost trite to say now that in this country we enjoy both religious and civil freedom. All the officers of the Government, from the highest to the lowest, in taking their oath to support and defend the constitution, bind themselves to recognize and respect the constitutional guarantee of religious freedom, with its inherent limitations and recognized implications. It should be stated that what is guaranteed by our Constitution is religious liberty, not mere religious toleration. Religious freedom, however, as a constitutional mandate is not inhibition of profound reverence for religion and is not denial of its influence in human affairs. Religion as a profession of faith to an active power that binds and elevates man to his Creator is recognized. And, in so far as it instills into the minds the purest principles of morality, its influence is deeply felt and highly appreciated. When the Filipino people, in the preamble of their Constitution, implored "the aid of Divine Providence, in order to establish a government that shall embody their ideals, conserve and develop the patrimony of the nation, promote the general welfare, and secure to themselves and their posterity the blessings of independence under a regime of justice, liberty and democracy," they thereby manifested reliance upon Him who guides the destinies of men and nations. The elevating influence of religion in human society is recognized here as elsewhere. In fact, certain general concessions are indiscriminately accorded to religious sects and denominations. Our Constitution and laws exempt from taxation properties devoted exclusively to religious purposes (sec. 14, subsec. 3, Art. VI, Constitution of the Philippines and sec. 1, subsec. 4, Ordinance appended thereto; Assessment Law, sec. 344, par. [c]. Adm. Code). Sectarian aid is not prohibited when a priest, preacher, minister or other religious teacher or dignitary as such is assigned to the armed forces or to any penal institution, orphanage or leprosarium 9 sec. 13, subsec. 3, Art. VI, Constitution of the Philippines). Optional religious instruction in the public schools is by constitutional mandate allowed (sec. 5, Art. XIII, Constitution of the Philippines, in relation to sec. 928, Adm. Code). Thursday and Friday of Holy Week, Thanksgiving Day, Christmas Day, and Sundays and made legal holidays (sec. 29, Adm. Code) because of the secular idea that their observance is conclusive to beneficial moral results. The law allows divorce but punishes polygamy and bigamy; and certain crimes against religious worship are considered crimes against the fundamental laws of the state (see arts. 132 and 133, Revised Penal Code).

petitioner.

In the case at bar, it appears that the respondent Director of Posts issued the postage stamps in question under the provisions of Act No. 4052 of the Philippine Legislature. This Act is as follows: No. 4052. AN ACT APPROPRIATING THE SUM OF SIXTY THOUSAND PESOS AND MAKING THE SAME AVAILABLE OUT OF ANY FUNDS IN THE INSULAR TREASURY NOT OTHERWISE APPROPRIATED FOR THE COST OF PLATES AND PRINTING OF POSTAGE STAMPS WITH NEW DESIGNS, AND FOR OTHER PURPOSES. Be it enacted by the Senate and House of Representatives of the Philippines in Legislature assembled and by the authority of the same: SECTION 1. The sum of sixty thousand pesos is hereby appropriated and made immediately available out of any funds in the Insular Treasury not otherwise appropriated, for the costs of plates and printing of postage stamps with new designs, and other expenses incident thereto. SEC. 2. The Director of Posts, with the approval of the Secretary of Public Works and Communications, is hereby authorized to dispose of the whole or any portion of the amount herein appropriated in the manner indicated and as often as may be deemed advantageous to the Government. SEC. 3. This amount or any portion thereof not otherwise expended shall not revert to the Treasury. SEC. 4. This act shall take effect on its approval. Approved, February 21, 1933. It will be seen that the Act appropriates the sum of sixty thousand pesos for the costs of plates and printing of postage stamps with new designs and other expenses incident thereto, and authorizes the Director of Posts, with the approval of the Secretary of Public Works and Communications, to dispose of the amount appropriated in the manner indicated and "as often as may be deemed advantageous to the Government". The printing and issuance of the postage stamps in question appears to have been approved by authority of the President of the Philippines in a letter dated September 1, 1936, made part of the respondent's memorandum as Exhibit A. The respondent alleges that the Government of the Philippines would suffer losses if the writ prayed for is granted. He estimates the revenue to be derived from the sale of the postage stamps in question at P1,618,17.10 and states that there still remain to be sold stamps worth P1,402,279.02. Act No. 4052 contemplates no religious purpose in view. What it gives the Director of Posts is the discretionary power to determine when the issuance of special postage stamps would be "advantageous to the Government." Of course, the phrase "advantageous to the Government" does not authorize the violation of the Constitution. It does not authorize the appropriation, use or application of public money or property for the use, benefit or support of a particular sect or church. In the present case, however, the issuance of the postage stamps in question by the Director of Posts and the Secretary of Public Works and Communications was not inspired by any sectarian denomination. The stamps were not issue and sold for the benefit of the Roman Catholic Church. Nor were money derived from the sale of the stamps given to that church. On the contrary, it appears from the latter of the Director of Posts of June 5, 1936, incorporated on page 2 of the petitioner's complaint, that the only purpose in issuing and selling the stamps was "to advertise the Philippines and attract more tourist to this country." The officials concerned merely, took advantage of an event considered of international importance "to give publicity to the Philippines and its people" (Letter of the Undersecretary of Public Works and Communications to the President of the Philippines,

June 9, 1936; p. 3, petitioner's complaint). It is significant to note that the stamps as actually designed and printed (Exhibit 2), instead of showing a Catholic Church chalice as originally planned, contains a map of the Philippines and the location of the City of Manila, and an inscription as follows: "Seat XXXIII International Eucharistic Congress, Feb. 3-7,1937." What is emphasized is not the Eucharistic Congress itself but Manila, the capital of the Philippines, as the seat of that congress. It is obvious that while the issuance and sale of the stamps in question may be said to be inseparably linked with an event of a religious character, the resulting propaganda, if any, received by the Roman Catholic Church, was not the aim and purpose of the Government. We are of the opinion that the Government should not be embarassed in its activities simply because of incidental results, more or less religious in character, if the purpose had in view is one which could legitimately be undertaken by appropriate legislation. The main purpose should not be frustrated by its subordinate to mere incidental results not contemplated. (Vide Bradfield vs. Roberts, 175 U. S., 295; 20 Sup. Ct. Rep., 121; 44 Law. ed., 168.) We are much impressed with the vehement appeal of counsel for the petitioner to maintain inviolate the complete separation of church and state and curb any attempt to infringe by indirection a constitutional inhibition. Indeed, in the Philippines, once the scene of religious intolerance and prescription, care should be taken that at this stage of our political development nothing is done by the Government or its officials that may lead to the belief that the Government is taking sides or favoring a particular religious sect or institution. But, upon very serious reflection, examination of Act No. 4052, and scrutiny of the attending circumstances, we have come to the conclusion that there has been no constitutional infraction in the case at bar, Act No. 4052 grants the Director of Posts, with the approval of the Secretary of Public Works and Communications, discretion to misuse postage stamps with new designs "as often as may be deemed advantageous to the Government." Even if we were to assume that these officials made use of a poor judgment in issuing and selling the postage stamps in question still, the case of the petitioner would fail to take in weight. Between the exercise of a poor judgment and the unconstitutionality of the step taken, a gap exists which is yet to be filled to justify the court in setting aside the official act assailed as coming within a constitutional inhibition. The petition for a writ of prohibition is hereby denied, without pronouncement as to costs. So ordered. G.R. No. L-6858 February 15, 1912 STATES, plaintiff-appellee,

THE UNITED vs. DIONISIO LOMONGSOD, ET AL., defendants-appellants. Andres Jayme Attorney-General Villamor for appellee. JOHNSON, J.: for

appellants.

These defendants were charged with the crime of illegal marriage, alleged to have been committed as follows: On or about June 10, 1901, in the municipality of Opon of this province and judicial district, the accused Inez Ompad, a girl 15 years of age, and the accused Dionisio Lomongsod, who knew the age of the said Inez Ompad, did without the knowledge or consent of her parents, contract civil marriage before the justice of the peace of said municipality; the accused Patricia Godinez, Fructuoso Godinez, and Tito Godinez did maliciously, intentionally, and criminally testify under oath, before the justice of the peace, that the accused Inez Ompad was 18 years old on

the day when her marriage ceremony was performed with her coaccused Dionisio Lomongsod, when they well knew that she was not so old; all in violation of law. During the trial of the cause and at the close of the proof presented by the prosecuting attorney, the lower court found that the evidence was insufficient to support the charges against the defendants, Tito Godinez, and dismissed the complaint against them and discharged them from the custody of the law, with three-fifths of the costs de oficio. At the close of the trial the Honorable Adolph Wislizenus, judge, found that the defendants Dionisio Lomongsod and Inez Ompad were guilty of the crime charged in the complaint and sentenced them for a violation of article 475 of the Penal Code, giving them the benefit of article 11 of said code, to be imprisoned for a period of six months and one day of prision correccional, and each to pay one fifth part of the costs. From that sentence the defendants appealed and made several assignments of error in this court. The complaint charges that upon the 10th day of June 1910, in the municipality of Opon, Province of Cebu, the defendant Inez Ompad being 15 years of age, and the defendant Dionisio Lomongsod, were married before a justice of the peace, without the consent or knowledge of the parents of the said Inez Ompad. The marriage was celebrated on the date mentioned. The record shows that Inez Ompad was 16 years of age on the date of the marriage and that Dionisio Lomongsod was 18 years of age on such date. The basis of the prosecution is that such marriage took place without the consent or knowledge of the parents of Inez Ompad and was therefore illegal. Examining the proof adduced during the trial of the cause, we find no proof whatever that the said marriage took place without the consent of the parents of the said Inez Ompad. Her father, for some reason or other, did not appear at the trial of the cause. The fiscal, during the trial, assumed to speak for the father of the said Inez Ompad, and stated that if her father were present he would testify that the marriage took place without his consent. This statement of the fiscal, however, can not be considered as proof in the cause. There is, therefore, no evidence in the record which shows that the defendants herein violated the provisions of article 475 of the Penal Code. The judgment of the lower court must, therefore, be reversed. Attention is called to the decisions of this court in the cases of Aguila vs. Lazaro (4 Phil. Rep., 735) and Lerma vs. Mamaril (9 Phil. Rep., 119), in which we discussed the provisions of General Orders No. 68. In said decisions this court arrived at the conclusion that under the provisions of General Orders No. 68, the marriage of a man over 14 years of age to a woman over 12 years of age is valid and can not be declared to be a nullity, because the consent of the parents was not obtained. For the reason that the record contains no evidence that the said marriage took place without the consent of the parents, the sentence of the lower court is hereby reversed the complaint is ordered to be dismissed and the defendants discharged from the custody of the law, with costs de oficio. G.R. No. 95770 December 29, 1995 ROEL EBRALINAG, EMILY EBRALINAG, represented by their parents, MR. & MRS. LEONARDO EBRALINAG, JUSTINIANA TANTOG, represented by her father, AMOS TANTOG, JEMIL OYAO & JOEL OYAO, represented by their parents MR. & MRS. ELIEZER OYAO, JANETH DIAMOS & JEREMIAS DIAMOS, represented by parents MR. & MRS. GODOFREDO DIAMOS, SARA OSTIA & JONATHAN OSTIA, represented by

their parents MR. & MRS. FAUSTO OSTIA, IRVIN SEQUINO & RENAN SEQUINO, represented by their parents MR. & MRS. LYDIO SEQUINO, NAPTHALE TUNACAO represented by his parents MR. & MRS. MANUEL TUNACAO PRECILA PINO represented by her parents MR. & MRS. FELIPE PINO, MARICRIS ALFAR, RUWINA ALFAR, represented by their parents MR. & MRS. HERMINIGILDO ALFAR, FREDESMINDA ALFAR & GUMERSINDO ALFAR, represented by their parents ABDON ALFAR ALBERTO ALFAR & ARISTIO ALFAR, represented by their parents MR. & MRS. GENEROSO ALFAR, MARTINO VILLAR, represented by their parents MR. & MRS. GENARO VILLAR, PERGEBRIEL GUINITA & CHAREN GUINITA, represented by their parents MR. & MRS. CESAR GUINITA, ALVIN DOOP represented by his parents MR. & MRS. LEONIDES DOOP, RHILYN LAUDE represented by her parents MR. & MRS. RENE LAUDE, LEOREMINDA MONARES represented by her parents MR. & MRS. FLORENCIO MONARES, MERCY MONTECILLO, represented by her parents MR. & MRS. MANUEL MONTECILLO, ROBERTO TANGAHA, represented by his parent ILUMINADA TANGAHA, EVELYN MARIA & FLORA TANGAHA represented by their parents MR. & MRS. ALBERTO TANGAHA, MAXIMO EBRALINAG represented by his parents MR. & MRS. PAQUITO EBRALINAG, JUTA CUMON, GIDEON CUMON & JONATHAN CUMON, represented by their father RAFAEL CUMON, EVIE LUMAKANG and JUAN LUMAKANG, represented by their parents MR. & MRS. LUMAKANG, EMILIO SARSOZO & PAZ AMOR SARSOZO, & IGNA MARIE SARSOZO represented by their parents MR. & MRS. VIRGILIO SARSOZO, MICHAEL JOSEPH & HENRY JOSEPH, represented by parent ANNIE JOSEPH, EMERSON TABLASON & MASTERLOU TABLASON, represented by their parents EMERLITO TABLASON, petitioners, vs. THE DIVISION SUPERINTENDENT OF SCHOOLS OF CEBU, and MR. MANUEL F. BIONGCOG, Cebu District Supervisor, respondents. G.R. No. 95887 December 29, 1995 MAY AMOLO, represented by her parents MR. & MRS. ISAIAS AMOLO, REDFORD ALSADO, JOEBERT ALSADO, & RUDYARD ALSADO represented by their parents MR. & MRS. ABELARDO ALSADO, NESIA ALSADO, REU ALSADO and LILIBETH ALSADO, represented by their parents MR. & MRS. ROLANDO ALSADO, SUZETTE NAPOLES, represented by her parents ISMAILITO NAPOLES and OPHELIA NAPOLES, JESICA CARMELOTES, represented by her parents MR. & MRS. SERGIO CARMELOTES, BABY JEAN MACAPAS, represented by her parents MR. & MRS. TORIBIO MACAPAS, GERALDINE ALSADO, represented by her parents MR. & MRS. JOEL ALSADO, RAQUEL DEMOTOR, and LEAH DEMOTOR, represented by their parents MR. & MRS. LEONARDO DEMOTOR, JURELL VILLA and MELONY VILLA, represented by their parents MR. & MRS. JOVENIANO VILLA, JONELL HOPE MAHINAY, MARY GRACE MAHINAY, and MAGDALENE MAHINAY, represented by their parents MR. & MRS. FELIX MAHINAY, JONALYN ANTIOLA and JERWIN ANTIOLA, represented by their parents FELIPE ANTIOLA and ANECITA ANTIOLA, MARIA CONCEPCION CABUYAO, represented by her parents WENIFREDO CABUYAO and ESTRELLITA CABUYAO, NOEMI TURNO represented by her parents MANUEL TURNO and VEVENCIA TURNO, SOLOMON PALATULON, SALMERO PALATULON and ROSALINA PALATULON, represented by their parents MARTILLANO PALATULON and CARMILA PALATULON, petitioners, vs. THE DIVISION SUPERINTENDENT OF SCHOOLS OF CEBU, and ANTONIO A. SANGUTAN, respondents. R E SO L U T I O N

KAPUNAN, J.:

The State moves for a reconsideration of our decision dated March 1, 1993 granting private respondents' petition for certiorari and prohibition and annulling the expulsion orders issued by the public respondents therein on the ground that the said decision created an exemption in favor of the members of the religious sect, the Jehovah's Witnesses, in violation of the "Establishment Clause" of the Constitution. The Solicitor General, on behalf of the public respondent, furthermore contends that: The accommodation by this Honorable Court to a demand for special treatment in favor of a minority sect even on the basis of a claim of religious freedom may be criticized as granting preference to the religious beliefs of said sect in violation of the "non-establishment guarantee" provision of the Constitution. Surely, the decision of the Court constitutes a special favor which immunizes religious believers such as Jehovah's Witnesses to the law and the DECS rules and regulations by interposing the claim that the conduct required by law and the rules and regulation (sic) are violative of their religious beliefs. The decision therefore is susceptible to the very criticism that the grant of exemption is a violation of the "non-establishment" provision of the Constitution. Furthermore, to grant an exemption to a specific religious minority poses a risk of collision course with the "equal protection of the laws" clause in respect of the non-exempt, and, in public schools, a collision course with the "non-establishment guarantee." Additionally the public respondent insists that this Court adopt a "neutral stance" by reverting to its holding in Gerona declaring the flag as being devoid of any religious significance. He stresses that the issue here is not curtailment of religious belief but regulation of the exercise of religious belief. Finally, he maintains that the State's interests in the case at bench are constitutional and legal obligations to implement the law and the constitutional mandate to inculcate in the youth patriotism and nationalism and to encourage their involvement in public and civic affairs, referring to the test devised by the United States Supreme Court in U.S. vs. O'Brien. 1 II All the petitioners in the original case 2 were minor school children, and members of the sect, Jehovah's Witnesses (assisted by their parents) who were expelled from their classes by various public school authorities in Cebu for refusing to salute the flag, sing the national anthem and recite the patriotic pledge as required by Republic Act No. 1265 of July 11, 1955 and by Department Order No. 8, dated July 21, 1955 issued by the Department of Education. Aimed primarily at private educational institutions which did not observe the flag ceremony exercises, Republic Act No. 1265 penalizes all educational institutions for failure or refusal to observe the flag ceremony with public censure on first offense and cancellation of the recognition or permit on second offense. The implementing regulations issued by the Department of Education thereafter detailed the manner of observance of the same. Immediately pursuant to these orders, school officials in Masbate expelled children belonging to the sect of the Jehovah's Witnesses from school for failing or refusing to comply with the flag ceremony requirement. Sustaining these expulsion orders, this Court in the 1959 case of Gerona vs. Secretary of Education 3 held that: The flag is not an image but a symbol of the Republic of the Philippines, an emblem of national sovereignty, of national unity and cohesion and of freedom and liberty which it and the Constitution guarantee and protect. Considering the complete separation of church and state in our system of government, the flag is utterly devoid of any religious significance. Saluting the flag consequently does not involve any religious ceremony. . . .

After all, the determination of whether a certain ritual is or is not a religious ceremony must rest with the courts. It cannot be left to a religious group or sect, much less to a follower of said group or sect; otherwise, there would be confusion and misunderstanding for there might be as many interpretations and meanings to be given to a certain ritual or ceremony as there are religious groups or sects or followers. Upholding religious freedom as a fundamental right deserving the "highest priority and amplest protection among human rights," this Court, in Ebralinag vs. Division Superintendent of Schools of Cebu 4 re-examined our over two decades-old decision in Gerona and reversed expulsion orders made by the public respondents therein as violative of both the free exercise of religion clause and the right of citizens to education under the 1987 Constitution. 5 From our decision of March 1, 1993, the public respondents filed a motion for reconsideration on grounds hereinabove stated. After a careful study of the grounds adduced in the government's Motion For Reconsideration of our original decision, however, we find no cogent reason to disturb our earlier ruling. The religious convictions and beliefs of the members of the religious sect, the Jehovah's Witnesses are widely known and are equally widely disseminated in numerous books, magazines, brochures and leaflets distributed by their members in their house to house distribution efforts and in many public places. Their refusal to render obeisance to any form or symbol which smacks of idolatry is based on their sincere belief in the biblical injunction found in Exodus 20:4,5, against worshipping forms or idols other than God himself. The basic assumption in their universal refusal to salute the flags of the countries in which they are found is that such a salute constitutes an act of religious devotion forbidden by God's law. This assumption, while "bizarre" to others is firmly anchored in several biblical passages. 6 And yet, while members of Jehovah's Witnesses, on the basis of religious convictions, refuse to perform an act (or acts) which they consider proscribed by the Bible, they contend that such refusal should not be taken to indicate disrespect for the symbols of the country or evidence that they are wanting in patriotism and nationalism. They point out that as citizens, they have an excellent record as law abiding members of society even if they do not demonstrate their refusal to conform to the assailed orders by overt acts of conformity. On the contrary, they aver that they show their respect through less demonstrative methods manifesting their allegiance, by their simple obedience to the country's laws, 7 by not engaging in antigovernment activities of any kind, 8 and by paying their taxes and dues to society as self-sufficient members of the community. 9 While they refuse to salute the flag, they are willing to stand quietly and peacefully at attention, hands on their side, in order not to disrupt the ceremony or disturb those who believe differently. 10 The religious beliefs, practices and convictions of the members of the sect as a minority are bound to be seen by others as odd and different and at divergence with the complex requirements of contemporary societies, particularly those societies which require certain practices as manifestations of loyalty and patriotic behavior. Against those who believe that coerced loyalty and unity are mere shadows of patriotism, the tendency to exact "a hydraulic insistence on conformity to majoritarian standards," 11 is seductive to the bureaucratic mindset as a shortcut to patriotism. No doubt, the State possesses what the Solicitor General describes as the responsibility "to inculcate in the minds of the youth the values of patriotism and nationalism and to encourage their involvement in public and civic affairs." The teaching of these values ranks at the very apex of education's "high responsibility" of shaping up the minds of the youth in those principles which would mold them into responsible and productive members of our society. However, the government's interest in molding the young into patriotic and civic spirited citizens is "not totally free from a balancing process" 12 when it intrudes into other fundamental rights such as those specifically protected by the Free Exercise Clause, the constitutional right to education and the unassailable interest of parents to guide the religious

upbringing of their children in accordance with the dictates of their conscience and their sincere religious beliefs. 13 Recognizing these values, Justice Carolina Grino-Aquino, the writer of the original opinion, underscored that a generation of Filipinos which cuts its teeth on the Bill of Rights would find abhorrent the idea that one may be compelled, on pain of expulsion, to salute the flag sing the national anthem and recite the patriotic pledge during a flag ceremony. 14 "This coercion of conscience has no place in a free society". 15 The State's contentions are therefore, unacceptable, for no less fundamental than the right to take part is the right to stand apart. 16 In the context of the instant case, the freedom of religion enshrined in the Constitution should be seen as the rule, not the exception. To view the constitutional guarantee in the manner suggested by the petitioners would be to denigrate the status of a preferred freedom and to relegate it to the level of an abstract principle devoid of any substance and meaning in the lives of those for whom the protection is addressed. As to the contention that the exemption accorded by our decision benefits a privileged few, it is enough to re-emphasize that "the constitutional protection of religious freedom terminated disabilities, it did not create new privileges. It gave religious equality, not civil immunity." 17 The essence of the free exercise clause is freedom from conformity to religious dogma, not freedom from conformity to law because of religious dogma. 18 Moreover, the suggestion implicit in the State's pleadings to the effect that the flag ceremony requirement would be equally and evenly applied to all citizens regardless of sect or religion and does not thereby discriminate against any particular sect or denomination escapes the fact that "[a] regulation, neutral on its face, may in its application, nonetheless offend the constitutional requirement for governmental neutrality if it unduly burdens the free exercise of religion." 19 III The ostensible interest shown by petitioners in preserving the flag as the symbol of the nation appears to be integrally related to petitioner's disagreement with the message conveyed by the refusal of members of the Jehovah's Witness sect to salute the flag or participate actively in flag ceremonies on religious grounds. 20 Where the governmental interest clearly appears to be unrelated to the suppression of an idea, a religious doctrine or practice or an expression or form of expression, this Court will not find it difficult to sustain a regulation. However, regulations involving this area are generally held against the most exacting standards, and the zone of protection accorded by the Constitution cannot be violated, except upon a showing of a clear and present danger of a substantive evil which the state has a right to protect. 21 Stated differently, in the case of a regulation which appears to abridge a right to which the fundamental law accords high significance it is the regulation, not the act (or refusal to act), which is the exception and which requires the court's strictest scrutiny. In the case at bench, the government has not shown that refusal to do the acts of conformity exacted by the assailed orders, which respondents point out attained legislative cachet in the Administrative Code of 1987, would pose a clear and present danger of a danger so serious and imminent, that it would prompt legitimate State intervention. In a case involving the Flag Protection Act of 1989, the U.S. Supreme Court held that the "State's asserted interest in preserving the fag as a symbol of nationhood and national unity was an interest related to the suppression of free expression . . . because the State's concern with protecting the flag's symbolic meaning is implicated only when a person's treatment of the flag communicates some message. 22 While the very concept of ordered liberty precludes this Court from allowing every individual to subjectively define his own standards on matters of conformity in which society, as a whole has important interests, the records of the case and the long history of flag salute cases abundantly supports the religious quality of the claims adduced by the members of the sect Jehovah's Witnesses. Their treatment of flag as a religious symbol is well-founded and well-documented and is based on grounds religious principle. The message conveyed by their refusal to participate in the flag ceremony is religious, shared by the entire community of Jehovah's Witnesses and is intimately related to their theocratic beliefs and convictions. The subsequent expulsion of members of the sect on the basis of the regulations assailed in the original petitions was therefore clearly directed against religious practice. It is obvious that the assailed orders and

memoranda would gravely endanger the free exercise of the religious beliefs of the members of the sect and their minor children. Furthermore, the view that the flag is not a religious but a neutral, secular symbol expresses a majoritarian view intended to stifle the expression of the belief that an act of saluting the flag might sometimes be to some individuals so offensive as to be worth their giving up another constitutional right the right to education. Individuals or groups of individuals get from a symbol the meaning they put to it. 23 Compelling members of a religious sect to believe otherwise on the pain of denying minor children the right to an education is a futile and unconscionable detour towards instilling virtues of loyalty and patriotism which are best instilled and communicated by painstaking and non-coercive methods. Coerced loyalties, after all, only serve to inspire the opposite. The methods utilized to impose them breed resentment and dissent. Those who attempt to coerce uniformity of sentiment soon find out that the only path towards achieving unity is by way of suppressing dissent. 24 In the end, such attempts only find the "unanimity of the graveyard." 25 To the extent to which members of the Jehovah's Witnesses sect assiduously pursue their belief in the flag's religious symbolic meaning, the State cannot, without thereby transgressing constitutionally protected boundaries, impose the contrary view on the pretext of sustaining a policy designed to foster the supposedly far-reaching goal of instilling patriotism among the youth. While conceding to the idea adverted to by the Solicitor General that certain methods of religious expression may be prohibited 26 to serve legitimate societal purposes, refusal to participate in the flag ceremony hardly constitutes a form of religious expression so offensive and noxious as to prompt legitimate State intervention. It is worth repeating that the absence of a demonstrable danger of a kind which the State is empowered to protect militates against the extreme disciplinary methods undertaken by school authorities in trying to enforce regulations designed to compel attendance in flag ceremonies. Refusal of the children to participate in the flag salute ceremony would not interfere with or deny the rights of other school children to do so. It bears repeating that their absence from the ceremony hardly constitutes a danger so grave and imminent as to warrant the state's intervention. Finally, the respondents' insistence on the validity of the actions taken by the government on the basis of their averment that "a government regulation of expressive conduct is sufficiently justified if it is within the constitutional power of the government (and) furthers an important and substantial government interest" 27 misses the whole point of the test devised by the United States Supreme Court in O'Brien, cited by respondent, because the Court therein was emphatic in stating that "the government interest (should be) unrelated to the suppression of free expression." We have already stated that the interest in regulation in the case at bench was clearly related to the suppression of an expression directly connected with the freedom of religion and that respondents have not shown to our satisfaction that the restriction was prompted by a compelling interest in public order which the state has a right to protect. Moreover, if we were to refer (as respondents did by referring to the test in O'Brien) to the standards devised by the US Supreme Court in determining the validity or extent of restrictive regulations impinging on the freedoms of the mind, then the O'Brien standard is hardly appropriate because the standard devised in O'Brien only applies if the State's regulation is not related to communicative conduct. If a relationship exists, a more demanding standard is applied. 28 The responsibility of inculcating the values of patriotism, nationalism, good citizenship, and moral uprightness is a responsibility shared by the State with parents and other societal institutions such as religious sects and denominations. The manner in which such values are demonstrated in a plural society occurs in ways so variable that government cannot make claims to the exclusivity of its methods of inculcating patriotism so all-encompassing in scope as to leave no room for appropriate parental or religious influences. Provided that those influences do not pose a clear and present danger of a substantive evil to society and its institutions, expressions of diverse beliefs, no matter how upsetting they may seem to the majority, are the price we pay for the freedoms we enjoy.

WHEREFORE, premises considered, the instant Motion is hereby DENIED. SO ORDERED. G.R. No. L-9635 August 26, 1914

THE UNITED STATES, plaintiff-appellant, vs. A. A. ADDISON and PASTOR M. GOMEZ, defendants-appellees. Attorney-General G. E. Campbell for appellees. MORELAND, J.: This is an appeal from a judgment of the Court of First Instance of Ilocos Sur in favor of the defendants in an action on a bond given in a criminal action to procure the liberty of the accused pending trial. On the 10th of June, 1912, the prosecuting attorney of the Province of Ilocos Sur presented a complaint in the justice's court of Vigan, accusing Walter Schultz of the crime of malversation of public funds in violation of the provisions of Act No. 1730. To procure the liberty of the accused pending trial, A. A. Addison and Pastor M. Gomez became his sureties upon a bail bond, the important parts of which are the following: Whereas a complaint has been filed on the 10th of June, 1912, in the court of the justice of the peace of Vigan, Ilocos Sur, P. I., charging Walter Schultz with the offense of `malversation of public funds by a public official,' and he having been admitted to bail in the sum of two thousand pesos (P2,000) Philippine currency: Now, therefore, we, Pastor Gomez, of Calle Sacristia No. 954, and A. A. Addison, of Calle Globo de Oro, No. 70, jointly and severally, hereby undertake that the above-named Walter Schultz will appear and answer the charge above mentioned in whatever court it may be tried, and will at all times hold himself amenable to the orders and process of the court, and if convicted will appear for judgment and render himself to the execution thereof; or if he fails to perform any of these conditions that we will pay to the United States the sum of two thousand pesos (P2,000) Philippine currency. The accused having renounced his right to a preliminary investigation before the justice of the peace, being obeover which the latter had no jurisdiction, was sent to the Court of First Instance for further proceedings. On the 7th of October, 1912, the Court of First Instance received a petition signed by A. A. Addison and Pastor M. Gomez, in which, after alleging that they desired to deliver the accused into the custody of the law and to relieve themselves from the obligation imposed by the bond, they prayed that said court issue an order of arrest against said accused for the purpose of his apprehension. the ground upon which they based this application was that the accused had absented himself from the city of Manila, where he had been for some time, and that the bondsmen were unable to ascertain his whereabouts, although they had made diligent search. On the 8th of October the court denied the petition. On the 22d of November the bondsmen again applied to the court for the issuance of an order of arrest against the accused, basing their application upon the same ground as before. In this application they alleged that the accused could not be found, although the Information Division of the Bureau of Constabulary had made diligent search for him. On the 30th of November the court again denied the application. Avancea for appellant.

At a session of the Court of First Instance of Ilocos Sur held on the 30th of November, 1912, the trial of the case was set for the 26th of December of the same year. At the opening of the court on said 30th of November the bondsmen applied to the court for a reconsideration of ifs previous orders denying the application of the bondsmen to be relieved from their responsibility and for an order of arrest against the accused, and again prayed that the court issue such order of arrest, alleging as a ground therefor that the peace authorities did not believe that they were authorized to arrest the accused without such order. They further prayed that on the issuance of said order of arrest the bond which they had signed be canceled and that they be relieved from all responsibility thereunder. On the 10th of December the court, acting on the petition of the bondsmen above referred to, ordered the clerk to issue to said bondsmen a certified copy of the bail bond, with an order authorizing said bondsmen to arrest their principal or require his arrest by any policeman or peace officer, but refused to relieve the bondsmen from their obligation under the bond. This order was mailed to the bondsmen on the same day that it was issued. On the 31st of March, 1913, the prosecuting attorney of Ilocos Sur moved the court that the said bondsmen be ordered to present the body of the accused on the 10th day of April, 1913, for trial, with the admonition that if they failed or neglected to do so, the bond would be declared forfeited. This order was served on the sureties on the 7th of April. the accused was not served with a copy for the reason that he could not be found within the Philippine Islands. The cause was called for trial on the 10th of April, 1913, and the body of the accused not having been presented, the judge declared the bond forfeited. The order of forfeiture gave the sureties thirty days within which to present the body of the accused and admonished them that if they did not do so within that time or show cause satisfactory to the court why they did not, judgment would be rendered and entered against them for the amount of the obligation. On the 5th of May, 1913, the bondsmen filed their answer, alleging that they did not appear in Vigan before the Court of First Instance on the 10th of April, as ordered, for the reason that they did not have time to reach that place from Manila after they received notice of the order, and that the reason why they were unable to deliver the body of the accused was that the court had refused to issue the order of arrest which they had three times prayed for, and praying that upon the allegations made they be relieved of responsibility. On the 28th of July, 1913, the prosecuting attorney of Ilocos Sur moved the court that judgment be entered against Pastor M. Gomez and A. A. Addison, sureties for Walter Schultz, for the sum of P2,000, and that the judgment be executed at once. This motion was notified to the bondsmen and their counsel and hearing of the same was set for the 3d of September at 8 o'clock in the morning. On the 19th of August G. E. Campbell, attorney for the bondsmen and for the accused, asked for a postponement of the hearing of the motion until the 3d of November. The hearing was finally set for the 26th of December. The bondsmen or the accused not having appeared at the time set, the 26th of December, the court found in their favor, absolving them from all responsibility under the bond. It is against that judgment that this appeal is taken. We are of opinion that the judgment must be reversed. Section 75 of the Code of Civil Procedure provides: The sureties of the bail bond may surrender the defendant at any time prior to forfeiture, or he may surrender himself and the bail be thus executed. An order of exoneration may be made by the court upon proof of surrender and after due notice to the promotor fiscal of the proposed issuance of the order. For the purpose of surrendering the defendant the bail may arrest him, or on written authority

indorsed on a certified copy of the undertaking may cause him to be arrested by any police officer or any other person of suitable age and discretion. As stated by the attorney for the appellees: From the wording of this section it is clear that there are two methods that may be pursued by the bail in order to surrender the accused, . . . they may arrest him themselves or they may cause his arrest thorough certain channels. In order words, the bail may arrest the principal and deliver him to the proper authorities, or they mat cause his arrest to be made to any police officer or other person of suitable age and descrition by indorsing the authority to arrest upon a certified copy of the undertaking and delivering it to such officer or person. These are the only methods, in a general way, by which the sureties may relieve themselves from responsibility relative to the recognizance. The bondsmen did not either of these things. Instead of delivering the principal to the court having jurisdiction over him or to the sheriff thereof or his deputy, or of procuring his arrest by a peace officer authorized by indorsement upon a certified copy of the undertaking, they permitted the accused to escape and then sought to induce the court in which the action against the principal was pending to issue an order of arrest that the principal might be apprehended and they absolved. The court to which the application was presented did not consider itself authorized under the showing was that the principal was at liberty under a bond which had not been revoked or withdrawn in the manner prescribed by law; and that, until the moment of cancellation or revocation of the bail bond in pursuance of law, the accused was entitled to his liberty. The court, therefore, refused to issue the order of arrest. We do not regard this position as altogether tenable. while the contention of the sureties, in their application for the order of the arrest, that they relieved from obligation when the order was issued, cannot be sustained, the Court of First Instance, under the facts presented, should have lent the sureties, in such manner as the law permits, all the aid that it reasonably could in the apprehension of the principal. While the Codes of Criminal Procedure Acts out the methods by which the sureties may release themselves from their obligation, it does not say that the court may not assist them to release themselves; and we think that the court in this case should have assisted them in their endeavor to apprehend and deliver the principal and thereby to relieve themselves from responsibility. We have no doubt about the power of the court, with or without the application of the sureties, to order the arrest of a principal if it is shown or appears that he is attempting or planning his escape or is in hiding for the purpose of defeating the ends of justice. We do not now decide to what court or other official it is necessary for sureties to present their principal in order to be relieved from responsibility under the bond. That question is not before us. the sureties never delivered or attempted to deliver the body of their principal to any court or peace officer. They simply asked the cooperation of certain peace officials for the capture of the principal, whose whereabouts was, at the time, admittedly unknown. When the obligation of bail is assumed, the sureties become in law the jailers of their principal. Their custody of him is the continuance of the original imprisonment, and though they cannot actually confine him, they are subrogated to all the other rights and means which the Government posesses to make their control of him effective. The responsibility assumed by the bail, being purely gratuitous, may be terminated by them at any time, and, to effect this end, they may arrest the principal at pleasure and surrender him into the hands of the law. Even though there were no statute to their effect, the right of the bail to arrest the principal for the purpose of surrendering him is incidental to the engagement, and the issuing of process is not necessary to its exercise. The arrest may be made by the bail, either in person or by agent, in the manner prescribed by statute. they may pursue him; may seize him at any time of the day or night, and may enter his house for the purpose. If resistance be apprehended, they may at all times command the assistance of the peace officers upon complying with the terms of the statue. (Reese vs. U. S., 9 Wall., 13; U. S. vs. Ryder, 110 U. S., 729;

State vs. Lingerfelt, 109 N. C., 775; Taylor vs. Taintor, 16 Wall., 366; Bearden vs. State, 89 Ala., 21; Norfolk vs. People, 43 Ill., 9; Kellogg vs.State, 43 Miss., 57; Hughes vs. State, 28 Tex. App., 499; State vs. Rosseau, 39 Tex., 614; State vs. Cunningham, 10 La. Ann., 393; U. S. vs. Keiver, 56 Fed. Rep., 422; Read vs. Case, 4 Conn., 16; s Ternberg vs. State, 42 Ark., 127.) To the sureties the state gives every facility for the apprehension and surrender of the principal and there is, therefore, very little excuse for their failure to protect themselves. while we do not determine whether or not a peace officer has the right to arrest the principal on the request of the sureties if they do not present a certified copy of the bond properly indorsed, there is no evidence that any peace officer had an opportunity to arrest the principal after having received notice to do so from the sureties, or that the refusal of such an officer, if any, had any influence on the result. nor do we hold, either, that a court may not issue an order of arrest for the accused upon the representation of the bondsmen upon the proper showing. We simply say that, upon the facts before us, we are not prepared to hold that the Court of First Instance of Ilocos Sur erred in refusing to issue the order of arrest under the showing made at least no error was made sufficient to relieve the sureties. It does not appear from the record that the action of the court had any effect on the outcome as it is fairly clear that the sureties permitted the principal to escape before any attempt was made to apprehend him. The judgment absolving the sureties is reversed and the case is remanded to the Court of First Instance of Ilocos Sur, with instructions to enter judgment against the sureties in accordance with this opinion. G.R. No. 113092 September 1, 1994 MARTIN CENTENO, petitioner, vs. HON. VICTORIA VILLALON-PORNILLOS, Presiding Judge of the Regional Trial Court of Malolos, Bulacan, Branch 10, and THE PEOPLE OF THE PHILIPPINES, respondents. Santiago V. Marcos, Jr. for petitioner.

REGALADO, J.: It is indeed unfortunate that a group of elderly men, who were moved by their desire to devote their remaining years to the service of their Creator by forming their own civic organization for that purpose, should find themselves enmeshed in a criminal case for making a solicitation from a community member allegedly without the required permit from the Department of Social Welfare and Development. The records of this case reveal that sometime in the last quarter of 1985, the officers of a civic organization known as the Samahang Katandaan ng Nayon ng Tikay launched a fund drive for the purpose of renovating the chapel of Barrio Tikay, Malolos, Bulacan. Petitioner Martin Centeno, the chairman of the group, together with Vicente Yco, approached Judge Adoracion G. Angeles, a resident of Tikay, and solicited from her a contribution of P1,500.00. It is admitted that the solicitation was made without a permit from the Department of Social Welfare and Development. As a consequence, based on the complaint of Judge Angeles, an information 1 was filed against petitioner Martin Centeno, together with Religio Evaristo and Vicente Yco, for violation of Presidential Decree No. 1564, or the Solicitation Permit Law, before the Municipal Trial Court of Malolos, Bulacan, Branch 2, and docketed as Criminal Case No. 2602.

Petitioner filed a motion to quash the information 2 on the ground that the facts alleged therein do not constitute an offense, claiming that Presidential Decree No. 1564 only covers solicitations made for charitable or public welfare purposes, but not those made for a religious purpose such as the construction of a chapel. This was denied 3 by the trial court, and petitioner's motion for reconsideration having met the same fate, trial on the merits ensued. On December 29, 1992, the said trial court rendered judgment 4 finding accused Vicente Yco and petitioner Centeno guilty beyond reasonable doubt and sentencing them to each pay a fine of P200.00. Nevertheless, the trial court recommended that the accused be pardoned on the basis of its finding that they acted in good faith, plus the fact that it believed that the latter should not have been criminally liable were it not for the existence of Presidential Decree No. 1564 which the court opined it had the duty to apply in the instant case. Both accused Centeno and Yco appealed to the Regional Trial Court of Malolos, Bulacan, Branch 10. However, accused Yco subsequently withdrew his appeal, hence the case proceeded only with respect to petitioner Centeno. On May 21, 1993, respondent Judge Villalon-Pornillos affirmed the decision of the lower court but modified the penalty, allegedly because of the perversity of the act committed which caused damage and prejudice to the complainant, by sentencing petitioner Centeno to suffer an increased penalty of imprisonment of 6 months and a fine of P1,000.00, without subsidiary imprisonment in case of insolvency. 5 The motion for reconsideration of the decision was denied by the court. 6 Thus it is that a fine of P200.00 imposed as a penalty by the lowest court in the judicial hierarchy eventually reached this highest tribunal, challenged on the sole issue of whether solicitations for religious purposes are within the ambit of Presidential Decree No. 1564. Quantitatively, the financial sanction is a nominal imposition but, on a question of principle, it is not a trifling matter. This Court is gratified that it can now grant this case the benefit of a final adjudication. Petitioner questions the applicability of Presidential Decree No. 1564 to solicitations for contributions intended for religious purposes with the submissions that (1) the term "religious purpose" is not expressly included in the provisions of the statute, hence what the law does not include, it excludes; (2) penal laws are to be construed strictly against the State and liberally in favor of the accused; and (3) to subject to State regulation solicitations made for a religious purpose would constitute an abridgment of the right to freedom of religion guaranteed under the Constitution. Presidential Decree No. 1564 (which amended Act No. 4075, otherwise known as the Solicitation Permit Law), provides as follows: Sec. 2. Any person, corporation, organization, or association desiring to solicit or receive contributions for charitable or public welfare purposes shall first secure a permit from the Regional Offices of the Department of Social Services and Development as provided in the Integrated Reorganization Plan. Upon the filing of a written application for a permit in the form prescribed by the Regional Offices of the Department of Social Services and Development, the Regional Director or his duly authorized representative may, in his discretion, issue a permanent or temporary permit or disapprove the application. In the interest of the public, he may in his discretion renew or revoke any permit issued under Act 4075. The main issue to be resolved here is whether the phrase "charitable purposes" should be construed in its broadest sense so as to include a religious purpose. We hold in the negative.

I. Indeed, it is an elementary rule of statutory construction that the express mention of one person, thing, act, or consequence excludes all others. This rule is expressed in the familiar maxim "expressio unius est exclusio alterius." Where a statute, by its terms, is expressly limited to certain matters, it may not, by interpretation or construction, be extended to others. The rule proceeds from the premise that the legislature would not have made specified enumerations in a statute had the intention been not to restrict its meaning and to confine its terms to those expressly mentioned. 7 It will be observed that the 1987 Constitution, as well as several other statutes, treat the words "charitable" and "religious" separately and independently of each other. Thus, the word "charitable" is only one of three descriptive words used in Section 28 (3), Article VI of the Constitution which provides that "charitable institutions, churches and personages . . ., and all lands, buildings, and improvements, actually, directly, and exclusively used for religious, charitable, or educational purposes shall be exempt from taxation." There are certain provisions in statutes wherein these two terms are likewise dissociated and individually mentioned, as for instance, Sections 26 (e) (corporations exempt from income tax) and 28 (8) (E) (exclusions from gross income) of the National Internal Revenue Code; Section 88 (purposes for the organization of non-stock corporations) of the Corporation Code; and Section 234 (b) (exemptions from real property tax) of the Local Government Code. That these legislative enactments specifically spelled out "charitable" and "religious" in an enumeration, whereas Presidential Decree No. 1564 merely stated "charitable or public welfare purposes," only goes to show that the framers of the law in question never intended to include solicitations for religious purposes within its coverage. Otherwise, there is no reason why it would not have so stated expressly. All contributions designed to promote the work of the church are "charitable" in nature, since religious activities depend for their support on voluntary contributions. 8 However, "religious purpose" is not interchangeable with the expression "charitable purpose." While it is true that there is no religious purpose which is not also a charitable purpose, yet the converse is not equally true, for there may be a "charitable" purpose which is not "religious" in the legal sense of the term. 9 Although the term "charitable" may include matters which are "religious," it is a broader term and includes matters which are not "religious," and, accordingly, there is a distinction between "charitable purpose" and "religious purpose," except where the two terms are obviously used synonymously, or where the distinction has been done away with by statute. 10 The word "charitable," therefore, like most other words, is capable of different significations. For example, in the law, exempting charitable uses from taxation, it has a very wide meaning, but under Presidential Decree No. 1564 which is a penal law, it cannot be given such a broad application since it would be prejudicial to petitioners. To illustrate, the rule is that tax exemptions are generally construed strictly against the taxpayer. However, there are cases wherein claims for exemption from tax for "religious purposes" have been liberally construed as covered in the law granting tax exemptions for "charitable purposes." Thus, the term "charitable purposes," within the meaning of a statute providing that the succession of any property passing to or for the use of any institution for purposes only of public charity shall not be subject to succession tax, is deemed to include religious purposes. 11A gift for "religious purposes" was considered as a bequest for "charitable use" as regards exemption from inheritance tax. 12 On the other hand, to subsume the "religious" purpose of the solicitation within the concept of "charitable" purpose which under Presidential Decree No. 1564 requires a prior permit from the Department of Social Services and Development, under paid of penal liability in the absence thereof, would be prejudicial to petitioner. Accordingly, the term "charitable" should be strictly construed so as to exclude solicitations for "religious" purposes. Thereby, we adhere to the fundamental doctrine underlying virtually all penal legislations that such interpretation should be adopted as would favor the accused.

For, it is a well-entrenched rule that penal laws are to be construed strictly against the State and liberally in favor of the accused. They are not to be extended or enlarged by implications, intendments, analogies or equitable considerations. They are not to be strained by construction to spell out a new offense, enlarge the field of crime or multiply felonies. Hence, in the interpretation of a penal statute, the tendency is to subject it to careful scrutiny and to construe it with such strictness as to safeguard the rights of the accused. If the statute is ambiguous and admits of two reasonable but contradictory constructions, that which operates in favor of a party accused under its provisions is to be preferred. The principle is that acts in and of themselves innocent and lawful cannot be held to be criminal unless there is a clear and unequivocal expression of the legislative intent to make them such. Whatever is not plainly within the provisions of a penal statute should be regarded as without its intendment. 13 The purpose of strict construction is not to enable a guilty person to escape punishment through a technicality but to provide a precise definition of forbidden acts. 14 The word "charitable" is a matter of description rather than of precise definition, and each case involving a determination of that which is charitable must be decided on its own particular facts and circumstances. 15 The law does not operate in vacuo nor should its applicability be determined by circumstances in the abstract. Furthermore, in the provisions of the Constitution and the statutes mentioned above, the enumerations therein given which include the words "charitable" and "religious" make use of the disjunctive "or." In its elementary sense, "or" as used in a statute is a disjunctive article indicating an alternative. It often connects a series of words or propositions indicating a choice of either. When "or" is used, the various members of the enumeration are to be taken separately. 16 Accordingly, "charitable" and "religious," which are integral parts of an enumeration using the disjunctive "or" should be given different, distinct, and disparate meanings. There is no compelling consideration why the same treatment or usage of these words cannot be made applicable to the questioned provisions of Presidential Decree No. 1564. II. Petitioner next avers that solicitations for religious purposes cannot be penalized under the law for, otherwise, it will constitute an abridgment or restriction on the free exercise clause guaranteed under the Constitution. It may be conceded that the construction of a church is a social concern of the people and, consequently, solicitations appurtenant thereto would necessarily involve public welfare. Prefatorily, it is not implausible that the regulatory powers of the State may, to a certain degree, extend to solicitations of this nature. Considering, however, that such an activity is within the cloak of the free exercise clause under the right to freedom of religion guaranteed by the Constitution, it becomes imperative to delve into the efficaciousness of a statutory grant of the power to regulate the exercise of this constitutional right and the allowable restrictions which may possibly be imposed thereon. The constitutional inhibition of legislation on the subject of religion has a double aspect. On the one hand, it forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship. Freedom of conscience and freedom to adhere to such religious organization or form of worship as the individual may choose cannot be restricted by law. On the other hand, it safeguards the free exercise of the chosen form of religion. Thus, the constitution embraces two concepts, that is, freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society. The freedom to act must have appropriate definitions to preserve the enforcement of that protection. In every case, the power to regulate must be so exercised, in attaining a permissible end, as not to unduly infringe on the protected freedom. 17 Whence, even the exercise of religion may be regulated, at some slight inconvenience, in order that the State may protect its citizens from injury. Without doubt, a State may protect

its citizens from fraudulent solicitation by requiring a stranger in the community, before permitting him publicly to solicit funds for any purpose, to establish his identity and his authority to act for the cause which he purports to represent. The State is likewise free to regulate the time and manner of solicitation generally, in the interest of public safety, peace, comfort, or convenience. 18 It does not follow, therefore, from the constitutional guaranties of the free exercise of religion that everything which may be so called can be tolerated. 19 It has been said that a law advancing a legitimate governmental interest is not necessarily invalid as one interfering with the "free exercise" of religion merely because it also incidentally has a detrimental effect on the adherents of one or more religion. 20 Thus, the general regulation, in the public interest, of solicitation, which does not involve any religious test and does not unreasonably obstruct or delay the collection of funds, is not open to any constitutional objection, even though the collection be for a religious purpose. Such regulation would not constitute a prohibited previous restraint on the free exercise of religion or interpose an inadmissible obstacle to its exercise. 21 Even with numerous regulative laws in existence, it is surprising how many operations are carried on by persons and associations who, secreting their activities under the guise of benevolent purposes, succeed in cheating and defrauding a generous public. It is in fact amazing how profitable the fraudulent schemes and practices are to people who manipulate them. The State has authority under the exercise of its police power to determine whether or not there shall be restrictions on soliciting by unscrupulous persons or for unworthy causes or for fraudulent purposes. That solicitation of contributions under the guise of charitable and benevolent purposes is grossly abused is a matter of common knowledge. Certainly the solicitation of contributions in good faith for worthy purposes should not be denied, but somewhere should be lodged the power to determine within reasonable limits the worthy from the unworthy. 22 The objectionable practices of unscrupulous persons are prejudicial to worthy and proper charities which naturally suffer when the confidence of the public in campaigns for the raising of money for charity is lessened or destroyed. 23 Some regulation of public solicitation is, therefore, in the public interest. 24 To conclude, solicitation for religious purposes may be subject to proper regulation by the State in the exercise of police power. However, in the case at bar, considering that solicitations intended for a religious purpose are not within the coverage of Presidential Decree No. 1564, as earlier demonstrated, petitioner cannot be held criminally liable therefor. As a final note, we reject the reason advanced by respondent judge for increasing the penalty imposed by the trial court, premised on the supposed perversity of petitioner's act which thereby caused damage to the complainant. It must be here emphasized that the trial court, in the dispositive portion of its decision, even recommended executive clemency in favor of petitioner and the other accused after finding that the latter acted in good faith in making the solicitation from the complainant, an observation with which we fully agree. After all, mistake upon a doubtful and difficult question of law can be the basis of good faith, especially for a layman. There is likewise nothing in the findings of respondent judge which would indicate, impliedly or otherwise, that petitioner and his co-accused acted abusively or malevolently. This could be reflective upon her objectivity, considering that the complainant in this case is herself a judge of the Regional Trial Court at Kalookan City. It bears stressing at this point that a judge is required to so behave at all times as to promote public confidence in the integrity and impartiality of the judiciary, 25 should be vigilant against any attempt to subvert its independence, and must resist any pressure from whatever source. 26 WHEREFORE, the decision appealed from is hereby REVERSED and SET ASIDE, and petitioner Martin Centeno is ACQUITTED of the offense charged, with costs de oficio. SO ORDERED.

G.R. No. L-25246 September 12, 1974 BENJAMIN VICTORIANO, plaintiff-appellee, vs. ELIZALDE ROPE WORKERS' UNION and ELIZALDE ROPE FACTORY, INC., defendants, ELIZALDE ROPE WORKERS' UNION, defendant-appellant. Salonga, Ordonez, Yap, Sicat & Associates for plaintiff-appellee. Cipriano Cid & Associates for defendant-appellant.

upon by the parties during the pre-trial conference, the Court a quorendered its decision on August 26, 1965, the dispositive portion of which reads: IN VIEW OF THE FOREGOING, judgment is rendered enjoining the defendant Elizalde Rope Factory, Inc. from dismissing the plaintiff from his present employment and sentencing the defendant Elizalde Rope Workers' Union to pay the plaintiff P500 for attorney's fees and the costs of this action. 3 From this decision, the Union appealed directly to this Court on purely questions of law, assigning the following errors: I. That the lower court erred when it did not rule that Republic Act No. 3350 is unconstitutional.

ZALDIVAR, J.:p Appeal to this Court on purely questions of law from the decision of the Court of First Instance of Manila in its Civil Case No. 58894. The undisputed facts that spawned the instant case follow: Benjamin Victoriano (hereinafter referred to as Appellee), a member of the religious sect known as the "Iglesia ni Cristo", had been in the employ of the Elizalde Rope Factory, Inc. (hereinafter referred to as Company) since 1958. As such employee, he was a member of the Elizalde Rope Workers' Union (hereinafter referred to as Union) which had with the Company a collective bargaining agreement containing a closed shop provision which reads as follows: Membership in the Union shall be required as a condition of employment for all permanent employees workers covered by this Agreement. The collective bargaining agreement expired on March 3, 1964 but was renewed the following day, March 4, 1964. Under Section 4(a), paragraph 4, of Republic Act No. 875, prior to its amendment by Republic Act No. 3350, the employer was not precluded "from making an agreement with a labor organization to require as a condition of employment membership therein, if such labor organization is the representative of the employees." On June 18, 1961, however, Republic Act No. 3350 was enacted, introducing an amendment to paragraph (4) subsection (a) of section 4 of Republic Act No. 875, as follows: ... "but such agreement shall not cover members of any religious sects which prohibit affiliation of their members in any such labor organization". Being a member of a religious sect that prohibits the affiliation of its members with any labor organization, Appellee presented his resignation to appellant Union in 1962, and when no action was taken thereon, he reiterated his resignation on September 3, 1974. Thereupon, the Union wrote a formal letter to the Company asking the latter to separate Appellee from the service in view of the fact that he was resigning from the Union as a member. The management of the Company in turn notified Appellee and his counsel that unless the Appellee could achieve a satisfactory arrangement with the Union, the Company would be constrained to dismiss him from the service. This prompted Appellee to file an action for injunction, docketed as Civil Case No. 58894 in the Court of First Instance of Manila to enjoin the Company and the Union from dismissing Appellee. 1 In its answer, the Union invoked the "union security clause" of the collective bargaining agreement; assailed the constitutionality of Republic Act No. 3350; and contended that the Court had no jurisdiction over the case, pursuant to Republic Act No. 875, Sections 24 and 9 (d) and (e). 2 Upon the facts agreed II. That the lower court erred when it sentenced appellant herein to pay plaintiff the sum of P500 as attorney's fees and the cost thereof. In support of the alleged unconstitutionality of Republic Act No. 3350, the Union contented, firstly, that the Act infringes on the fundamental right to form lawful associations; that "the very phraseology of said Republic Act 3350, that membership in a labor organization is banned to all those belonging to such religious sect prohibiting affiliation with any labor organization" 4 , "prohibits all the members of a given religious sect from joining any labor union if such sect prohibits affiliations of their members thereto" 5 ; and, consequently, deprives said members of their constitutional right to form or join lawful associations or organizations guaranteed by the Bill of Rights, and thus becomes obnoxious to Article III, Section 1 (6) of the 1935 Constitution. 6 Secondly, the Union contended that Republic Act No. 3350 is unconstitutional for impairing the obligation of contracts in that, while the Union is obliged to comply with its collective bargaining agreement containing a "closed shop provision," the Act relieves the employer from its reciprocal obligation of cooperating in the maintenance of union membership as a condition of employment; and that said Act, furthermore, impairs the Union's rights as it deprives the union of dues from members who, under the Act, are relieved from the obligation to continue as such members. 7 Thirdly, the Union contended that Republic Act No. 3350 discriminatorily favors those religious sects which ban their members from joining labor unions, in violation of Article Ill, Section 1 (7) of the 1935 Constitution; and while said Act unduly protects certain religious sects, it leaves no rights or protection to labor organizations. 8 Fourthly, Republic Act No. 3350, asserted the Union, violates the constitutional provision that "no religious test shall be required for the exercise of a civil right," in that the laborer's exercise of his civil right to join associations for purposes not contrary to law has to be determined under the Act by his affiliation with a religious sect; that conversely, if a worker has to sever his religious connection with a sect that prohibits membership in a labor organization in order to be able to join a labor organization, said Act would violate religious freedom. 9 Fifthly, the Union contended that Republic Act No. 3350, violates the "equal protection of laws" clause of the Constitution, it being a discriminately legislation, inasmuch as by exempting from the operation of closed shop agreement the members of the "Iglesia ni Cristo", it has granted said members undue advantages over their fellow workers, for while the Act exempts them from union obligation and liability, it nevertheless entitles them at the same time to the enjoyment of all concessions, benefits and other emoluments that the union might secure from the employer. 10

Sixthly, the Union contended that Republic Act No. 3350 violates the constitutional provision regarding the promotion of social justice. 11 Appellant Union, furthermore, asserted that a "closed shop provision" in a collective bargaining agreement cannot be considered violative of religious freedom, as to call for the amendment introduced by Republic Act No. 3350; 12and that unless Republic Act No. 3350 is declared unconstitutional, trade unionism in this country would be wiped out as employers would prefer to hire or employ members of the Iglesia ni Cristo in order to do away with labor organizations. 13 Appellee, assailing appellant's arguments, contended that Republic Act No. 3350 does not violate the right to form lawful associations, for the right to join associations includes the right not to join or to resign from a labor organization, if one's conscience does not allow his membership therein, and the Act has given substance to such right by prohibiting the compulsion of workers to join labor organizations; 14 that said Act does not impair the obligation of contracts for said law formed part of, and was incorporated into, the terms of the closed shop agreement; 15 that the Act does not violate the establishment of religion clause or separation of Church and State, for Congress, in enacting said law, merely accommodated the religious needs of those workers whose religion prohibits its members from joining labor unions, and balanced the collective rights of organized labor with the constitutional right of an individual to freely exercise his chosen religion; that the constitutional right to the free exercise of one's religion has primacy and preference over union security measures which are merely contractual16 ; that said Act does not violate the constitutional provision of equal protection, for the classification of workers under the Act depending on their religious tenets is based on substantial distinction, is germane to the purpose of the law, and applies to all the members of a given class; 17 that said Act, finally, does not violate the social justice policy of the Constitution, for said Act was enacted precisely to equalize employment opportunities for all citizens in the midst of the diversities of their religious beliefs." 18 I. Before We proceed to the discussion of the first assigned error, it is necessary to premise that there are some thoroughly established principles which must be followed in all cases where questions of constitutionality as obtains in the instant case are involved. All presumptions are indulged in favor of constitutionality; one who attacks a statute, alleging unconstitutionality must prove its invalidity beyond a reasonable doubt, that a law may work hardship does not render it unconstitutional; that if any reasonable basis may be conceived which supports the statute, it will be upheld, and the challenger must negate all possible bases; that the courts are not concerned with the wisdom, justice, policy, or expediency of a statute; and that a liberal interpretation of the constitution in favor of the constitutionality of legislation should be adopted. 19 1. Appellant Union's contention that Republic Act No. 3350 prohibits and bans the members of such religious sects that forbid affiliation of their members with labor unions from joining labor unions appears nowhere in the wording of Republic Act No. 3350; neither can the same be deduced by necessary implication therefrom. It is not surprising, therefore, that appellant, having thus misread the Act, committed the error of contending that said Act is obnoxious to the constitutional provision on freedom of association. Both the Constitution and Republic Act No. 875 recognize freedom of association. Section 1 (6) of Article III of the Constitution of 1935, as well as Section 7 of Article IV of the Constitution of 1973, provide that the right to form associations or societies for purposes not contrary to law shall not be abridged. Section 3 of Republic Act No. 875 provides that employees shall have the right to self-organization and to form, join of assist labor organizations of their own choosing for the purpose of collective bargaining and to engage in concerted activities for the purpose of collective bargaining and other mutual aid or protection. What the Constitution and the Industrial Peace Act recognize and guarantee is the "right" to form or join associations. Notwithstanding the different theories propounded by the different schools of jurisprudence regarding the nature and contents of a "right", it can be safely said that whatever theory one subscribes to, a right comprehends at least two broad notions, namely: first, liberty or freedom, i.e., the absence of legal restraint, whereby an

employee may act for himself without being prevented by law; and second, power, whereby an employee may, as he pleases, join or refrain from Joining an association. It is, therefore, the employee who should decide for himself whether he should join or not an association; and should he choose to join, he himself makes up his mind as to which association he would join; and even after he has joined, he still retains the liberty and the power to leave and cancel his membership with said organization at any time. 20 It is clear, therefore, that the right to join a union includes the right to abstain from joining any union. 21 Inasmuch as what both the Constitution and the Industrial Peace Act have recognized, and guaranteed to the employee, is the "right" to join associations of his choice, it would be absurd to say that the law also imposes, in the same breath, upon the employee the duty to join associations. The law does not enjoin an employee to sign up with any association. The right to refrain from joining labor organizations recognized by Section 3 of the Industrial Peace Act is, however, limited. The legal protection granted to such right to refrain from joining is withdrawn by operation of law, where a labor union and an employer have agreed on a closed shop, by virtue of which the employer may employ only member of the collective bargaining union, and the employees must continue to be members of the union for the duration of the contract in order to keep their jobs. Thus Section 4 (a) (4) of the Industrial Peace Act, before its amendment by Republic Act No. 3350, provides that although it would be an unfair labor practice for an employer "to discriminate in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization" the employer is, however, not precluded "from making an agreement with a labor organization to require as a condition of employment membership therein, if such labor organization is the representative of the employees". By virtue, therefore, of a closed shop agreement, before the enactment of Republic Act No. 3350, if any person, regardless of his religious beliefs, wishes to be employed or to keep his employment, he must become a member of the collective bargaining union. Hence, the right of said employee not to join the labor union is curtailed and withdrawn. To that all-embracing coverage of the closed shop arrangement, Republic Act No. 3350 introduced an exception, when it added to Section 4 (a) (4) of the Industrial Peace Act the following proviso: "but such agreement shall not cover members of any religious sects which prohibit affiliation of their members in any such labor organization". Republic Act No. 3350 merely excludes ipso jure from the application and coverage of the closed shop agreement the employees belonging to any religious sects which prohibit affiliation of their members with any labor organization. What the exception provides, therefore, is that members of said religious sects cannot be compelled or coerced to join labor unions even when said unions have closed shop agreements with the employers; that in spite of any closed shop agreement, members of said religious sects cannot be refused employment or dismissed from their jobs on the sole ground that they are not members of the collective bargaining union. It is clear, therefore, that the assailed Act, far from infringing the constitutional provision on freedom of association, upholds and reinforces it. It does not prohibit the members of said religious sects from affiliating with labor unions. It still leaves to said members the liberty and the power to affiliate, or not to affiliate, with labor unions. If, notwithstanding their religious beliefs, the members of said religious sects prefer to sign up with the labor union, they can do so. If in deference and fealty to their religious faith, they refuse to sign up, they can do so; the law does not coerce them to join; neither does the law prohibit them from joining; and neither may the employer or labor union compel them to join. Republic Act No. 3350, therefore, does not violate the constitutional provision on freedom of association. 2. Appellant Union also contends that the Act is unconstitutional for impairing the obligation of its contract, specifically, the "union security clause" embodied in its Collective Bargaining Agreement with the Company, by virtue of which "membership in the union was required as a condition for employment for all permanent employees workers". This agreement was already in existence at the time Republic Act No. 3350 was enacted on June 18, 1961, and it cannot, therefore, be deemed to have been incorporated into the agreement. But by reason of this amendment, Appellee, as well as others similarly situated, could no longer be dismissed from his job even if he should cease to be a member, or disaffiliate from the Union, and the Company could continue employing him notwithstanding his disaffiliation

from the Union. The Act, therefore, introduced a change into the express terms of the union security clause; the Company was partly absolved by law from the contractual obligation it had with the Union of employing only Union members in permanent positions, It cannot be denied, therefore, that there was indeed an impairment of said union security clause. According to Black, any statute which introduces a change into the express terms of the contract, or its legal construction, or its validity, or its discharge, or the remedy for its enforcement, impairs the contract. The extent of the change is not material. It is not a question of degree or manner or cause, but of encroaching in any respect on its obligation or dispensing with any part of its force. There is an impairment of the contract if either party is absolved by law from its performance. 22 Impairment has also been predicated on laws which, without destroying contracts, derogate from substantial contractual rights. 23 It should not be overlooked, however, that the prohibition to impair the obligation of contracts is not absolute and unqualified. The prohibition is general, affording a broad outline and requiring construction to fill in the details. The prohibition is not to be read with literal exactness like a mathematical formula, for it prohibits unreasonable impairment only. 24 In spite of the constitutional prohibition, the State continues to possess authority to safeguard the vital interests of its people. Legislation appropriate to safeguarding said interests may modify or abrogate contracts already in effect. 25 For not only are existing laws read into contracts in order to fix the obligations as between the parties, but the reservation of essential attributes of sovereign power is also read into contracts as a postulate of the legal order. All contracts made with reference to any matter that is subject to regulation under the police power must be understood as made in reference to the possible exercise of that power. 26 Otherwise, important and valuable reforms may be precluded by the simple device of entering into contracts for the purpose of doing that which otherwise may be prohibited. The policy of protecting contracts against impairment presupposes the maintenance of a government by virtue of which contractual relations are worthwhile a government which retains adequate authority to secure the peace and good order of society. The contract clause of the Constitution must, therefore, be not only in harmony with, but also in subordination to, in appropriate instances, the reserved power of the state to safeguard the vital interests of the people. It follows that not all legislations, which have the effect of impairing a contract, are obnoxious to the constitutional prohibition as to impairment, and a statute passed in the legitimate exercise of police power, although it incidentally destroys existing contract rights, must be upheld by the courts. This has special application to contracts regulating relations between capital and labor which are not merely contractual, and said labor contracts, for being impressed with public interest, must yield to the common good. 27 In several occasions this Court declared that the prohibition against impairing the obligations of contracts has no application to statutes relating to public subjects within the domain of the general legislative powers of the state involving public welfare. 28 Thus, this Court also held that the Blue Sunday Law was not an infringement of the obligation of a contract that required the employer to furnish work on Sundays to his employees, the law having been enacted to secure the well-being and happiness of the laboring class, and being, furthermore, a legitimate exercise of the police power. 29 In order to determine whether legislation unconstitutionally impairs contract obligations, no unchanging yardstick, applicable at all times and under all circumstances, by which the validity of each statute may be measured or determined, has been fashioned, but every case must be determined upon its own circumstances. Legislation impairing the obligation of contracts can be sustained when it is enacted for the promotion of the general good of the people, and when the means adopted to secure that end are reasonable. Both the end sought and the means adopted must be legitimate, i.e., within the scope of the reserved power of the state construed in harmony with the constitutional limitation of that power. 30 What then was the purpose sought to be achieved by Republic Act No. 3350? Its purpose was to insure freedom of belief and religion, and to promote the general welfare by preventing discrimination against those members of religious sects which prohibit their

members from joining labor unions, confirming thereby their natural, statutory and constitutional right to work, the fruits of which work are usually the only means whereby they can maintain their own life and the life of their dependents. It cannot be gainsaid that said purpose is legitimate. The questioned Act also provides protection to members of said religious sects against two aggregates of group strength from which the individual needs protection. The individual employee, at various times in his working life, is confronted by two aggregates of power collective labor, directed by a union, and collective capital, directed by management. The union, an institution developed to organize labor into a collective force and thus protect the individual employee from the power of collective capital, is, paradoxically, both the champion of employee rights, and a new source of their frustration. Moreover, when the Union interacts with management, it produces yet a third aggregate of group strength from which the individual also needs protection the collective bargaining relationship. 31 The aforementioned purpose of the amendatory law is clearly seen in the Explanatory Note to House Bill No. 5859, which later became Republic Act No. 3350, as follows: It would be unthinkable indeed to refuse employing a person who, on account of his religious beliefs and convictions, cannot accept membership in a labor organization although he possesses all the qualifications for the job. This is tantamount to punishing such person for believing in a doctrine he has a right under the law to believe in. The law would not allow discrimination to flourish to the detriment of those whose religion discards membership in any labor organization. Likewise, the law would not commend the deprivation of their right to work and pursue a modest means of livelihood, without in any manner violating their religious faith and/or belief.32 It cannot be denied, furthermore, that the means adopted by the Act to achieve that purpose exempting the members of said religious sects from coverage of union security agreements is reasonable. It may not be amiss to point out here that the free exercise of religious profession or belief is superior to contract rights. In case of conflict, the latter must, therefore, yield to the former. The Supreme Court of the United States has also declared on several occasions that the rights in the First Amendment, which include freedom of religion, enjoy a preferred position in the constitutional system. 33 Religious freedom, although not unlimited, is a fundamental personal right and liberty, 34 and has a preferred position in the hierarchy of values. Contractual rights, therefore, must yield to freedom of religion. It is only where unavoidably necessary to prevent an immediate and grave danger to the security and welfare of the community that infringement of religious freedom may be justified, and only to the smallest extent necessary to avoid the danger. 3. In further support of its contention that Republic Act No. 3350 is unconstitutional, appellant Union averred that said Act discriminates in favor of members of said religious sects in violation of Section 1 (7) of Article Ill of the 1935 Constitution, and which is now Section 8 of Article IV of the 1973 Constitution, which provides: No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof, and the free exercise and enjoyment of religious profession and worship, without discrimination and preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political rights. The constitutional provision into only prohibits legislation for the support of any religious tenets or the modes of worship of any sect, thus forestalling compulsion by law of the

acceptance of any creed or the practice of any form of worship, 35 but also assures the free exercise of one's chosen form of religion within limits of utmost amplitude. It has been said that the religion clauses of the Constitution are all designed to protect the broadest possible liberty of conscience, to allow each man to believe as his conscience directs, to profess his beliefs, and to live as he believes he ought to live, consistent with the liberty of others and with the common good. 36 Any legislation whose effect or purpose is to impede the observance of one or all religions, or to discriminate invidiously between the religions, is invalid, even though the burden may be characterized as being only indirect. 37 But if the stage regulates conduct by enacting, within its power, a general law which has for its purpose and effect to advance the state's secular goals, the statute is valid despite its indirect burden on religious observance, unless the state can accomplish its purpose without imposing such burden. 38 In Aglipay v. Ruiz 39 , this Court had occasion to state that the government should not be precluded from pursuing valid objectives secular in character even if the incidental result would be favorable to a religion or sect. It has likewise been held that the statute, in order to withstand the strictures of constitutional prohibition, must have a secular legislative purpose and a primary effect that neither advances nor inhibits religion. 40 Assessed by these criteria, Republic Act No. 3350 cannot be said to violate the constitutional inhibition of the "noestablishment" (of religion) clause of the Constitution. The purpose of Republic Act No. 3350 is secular, worldly, and temporal, not spiritual or religious or holy and eternal. It was intended to serve the secular purpose of advancing the constitutional right to the free exercise of religion, by averting that certain persons be refused work, or be dismissed from work, or be dispossessed of their right to work and of being impeded to pursue a modest means of livelihood, by reason of union security agreements. To help its citizens to find gainful employment whereby they can make a living to support themselves and their families is a valid objective of the state. In fact, the state is enjoined, in the 1935 Constitution, to afford protection to labor, and regulate the relations between labor and capital and industry. 41 More so now in the 1973 Constitution where it is mandated that "the State shall afford protection to labor, promote full employment and equality in employment, ensure equal work opportunities regardless of sex, race or creed and regulate the relation between workers and employers. 42 The primary effects of the exemption from closed shop agreements in favor of members of religious sects that prohibit their members from affiliating with a labor organization, is the protection of said employees against the aggregate force of the collective bargaining agreement, and relieving certain citizens of a burden on their religious beliefs; and by eliminating to a certain extent economic insecurity due to unemployment, which is a serious menace to the health, morals, and welfare of the people of the State, the Act also promotes the well-being of society. It is our view that the exemption from the effects of closed shop agreement does not directly advance, or diminish, the interests of any particular religion. Although the exemption may benefit those who are members of religious sects that prohibit their members from joining labor unions, the benefit upon the religious sects is merely incidental and indirect. The "establishment clause" (of religion) does not ban regulation on conduct whose reason or effect merely happens to coincide or harmonize with the tenets of some or all religions. 43 The free exercise clause of the Constitution has been interpreted to require that religious exercise be preferentially aided. 44 We believe that in enacting Republic Act No. 3350, Congress acted consistently with the spirit of the constitutional provision. It acted merely to relieve the exercise of religion, by certain persons, of a burden that is imposed by union security agreements. It was Congress itself that imposed that burden when it enacted the Industrial Peace Act (Republic Act 875), and, certainly, Congress, if it so deems advisable, could take away the same burden. It is certain that not every conscience can be accommodated by all the laws of the land; but when general laws conflict with scrupples of conscience, exemptions ought to be granted unless some "compelling state interest" intervenes.45 In the instant case, We see no such compelling state interest to withhold exemption.

Appellant bewails that while Republic Act No. 3350 protects members of certain religious sects, it leaves no right to, and is silent as to the protection of, labor organizations. The purpose of Republic Act No. 3350 was not to grant rights to labor unions. The rights of labor unions are amply provided for in Republic Act No. 875 and the new Labor Code. As to the lamented silence of the Act regarding the rights and protection of labor unions, suffice it to say, first, that the validity of a statute is determined by its provisions, not by its silence 46 ; and, second, the fact that the law may work hardship does not render it unconstitutional. 47 It would not be amiss to state, regarding this matter, that to compel persons to join and remain members of a union to keep their jobs in violation of their religious scrupples, would hurt, rather than help, labor unions, Congress has seen it fit to exempt religious objectors lest their resistance spread to other workers, for religious objections have contagious potentialities more than political and philosophic objections. Furthermore, let it be noted that coerced unity and loyalty even to the country, and a fortiori to a labor union assuming that such unity and loyalty can be attained through coercion is not a goal that is constitutionally obtainable at the expense of religious liberty. 48 A desirable end cannot be promoted by prohibited means. 4. Appellants' fourth contention, that Republic Act No. 3350 violates the constitutional prohibition against requiring a religious test for the exercise of a civil right or a political right, is not well taken. The Act does not require as a qualification, or condition, for joining any lawful association membership in any particular religion or in any religious sect; neither does the Act require affiliation with a religious sect that prohibits its members from joining a labor union as a condition or qualification for withdrawing from a labor union. Joining or withdrawing from a labor union requires a positive act. Republic Act No. 3350 only exempts members with such religious affiliation from the coverage of closed shop agreements. So, under this Act, a religious objector is not required to do a positive act to exercise the right to join or to resign from the union. He is exempted ipso jure without need of any positive act on his part. A conscientious religious objector need not perform a positive act or exercise the right of resigning from the labor union he is exempted from the coverage of any closed shop agreement that a labor union may have entered into. How then can there be a religious test required for the exercise of a right when no right need be exercised? We have said that it was within the police power of the State to enact Republic Act No. 3350, and that its purpose was legal and in consonance with the Constitution. It is never an illegal evasion of a constitutional provision or prohibition to accomplish a desired result, which is lawful in itself, by discovering or following a legal way to do it. 49 5. Appellant avers as its fifth ground that Republic Act No. 3350 is a discriminatory legislation, inasmuch as it grants to the members of certain religious sects undue advantages over other workers, thus violating Section 1 of Article III of the 1935 Constitution which forbids the denial to any person of the equal protection of the laws. 50 The guaranty of equal protection of the laws is not a guaranty of equality in the application of the laws upon all citizens of the state. It is not, therefore, a requirement, in order to avoid the constitutional prohibition against inequality, that every man, woman and child should be affected alike by a statute. Equality of operation of statutes does not mean indiscriminate operation on persons merely as such, but on persons according to the circumstances surrounding them. It guarantees equality, not identity of rights. The Constitution does not require that things which are different in fact be treated in law as though they were the same. The equal protection clause does not forbid discrimination as to things that are different. 51 It does not prohibit legislation which is limited either in the object to which it is directed or by the territory within which it is to operate. The equal protection of the laws clause of the Constitution allows classification. Classification in law, as in the other departments of knowledge or practice, is the grouping of things in speculation or practice because they agree with one another in certain particulars. A

law is not invalid because of simple inequality. 52 The very idea of classification is that of inequality, so that it goes without saying that the mere fact of inequality in no manner determines the matter of constitutionality. 53 All that is required of a valid classification is that it be reasonable, which means that the classification should be based on substantial distinctions which make for real differences; that it must be germane to the purpose of the law; that it must not be limited to existing conditions only; and that it must apply equally to each member of the class. 54 This Court has held that the standard is satisfied if the classification or distinction is based on a reasonable foundation or rational basis and is not palpably arbitrary. 55 In the exercise of its power to make classifications for the purpose of enacting laws over matters within its jurisdiction, the state is recognized as enjoying a wide range of discretion. 56 It is not necessary that the classification be based on scientific or marked differences of things or in their relation. 57 Neither is it necessary that the classification be made with mathematical nicety. 58 Hence legislative classification may in many cases properly rest on narrow distinctions, 59 for the equal protection guaranty does not preclude the legislature from recognizing degrees of evil or harm, and legislation is addressed to evils as they may appear. We believe that Republic Act No. 3350 satisfies the aforementioned requirements. The Act classifies employees and workers, as to the effect and coverage of union shop security agreements, into those who by reason of their religious beliefs and convictions cannot sign up with a labor union, and those whose religion does not prohibit membership in labor unions. Tile classification rests on real or substantial, not merely imaginary or whimsical, distinctions. There is such real distinction in the beliefs, feelings and sentiments of employees. Employees do not believe in the same religious faith and different religions differ in their dogmas and cannons. Religious beliefs, manifestations and practices, though they are found in all places, and in all times, take so many varied forms as to be almost beyond imagination. There are many views that comprise the broad spectrum of religious beliefs among the people. There are diverse manners in which beliefs, equally paramount in the lives of their possessors, may be articulated. Today the country is far more heterogenous in religion than before, differences in religion do exist, and these differences are important and should not be ignored. Even from the phychological point of view, the classification is based on real and important differences. Religious beliefs are not mere beliefs, mere ideas existing only in the mind, for they carry with them practical consequences and are the motives of certain rules. of human conduct and the justification of certain acts. 60 Religious sentiment makes a man view things and events in their relation to his God. It gives to human life its distinctive character, its tone, its happiness or unhappiness its enjoyment or irksomeness. Usually, a strong and passionate desire is involved in a religious belief. To certain persons, no single factor of their experience is more important to them than their religion, or their not having any religion. Because of differences in religious belief and sentiments, a very poor person may consider himself better than the rich, and the man who even lacks the necessities of life may be more cheerful than the one who has all possible luxuries. Due to their religious beliefs people, like the martyrs, became resigned to the inevitable and accepted cheerfully even the most painful and excruciating pains. Because of differences in religious beliefs, the world has witnessed turmoil, civil strife, persecution, hatred, bloodshed and war, generated to a large extent by members of sects who were intolerant of other religious beliefs. The classification, introduced by Republic Act No. 3350, therefore, rests on substantial distinctions. The classification introduced by said Act is also germane to its purpose. The purpose of the law is precisely to avoid those who cannot, because of their religious belief, join labor unions, from being deprived of their right to work and from being dismissed from their work because of union shop security agreements. Republic Act No. 3350, furthermore, is not limited in its application to conditions existing at the time of its enactment. The law does not provide that it is to be effective for a certain period of time only. It is intended to apply for all times as long as the conditions to which the law is applicable exist. As long as there are closed shop agreements between an employer

and a labor union, and there are employees who are prohibited by their religion from affiliating with labor unions, their exemption from the coverage of said agreements continues. Finally, the Act applies equally to all members of said religious sects; this is evident from its provision. The fact that the law grants a privilege to members of said religious sects cannot by itself render the Act unconstitutional, for as We have adverted to, the Act only restores to them their freedom of association which closed shop agreements have taken away, and puts them in the same plane as the other workers who are not prohibited by their religion from joining labor unions. The circumstance, that the other employees, because they are differently situated, are not granted the same privilege, does not render the law unconstitutional, for every classification allowed by the Constitution by its nature involves inequality. 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. A classification otherwise reasonable does not offend the constitution simply because in practice it results in some inequality. 61 Anent this matter, it has been said that whenever it is apparent from the scope of the law that its object is for the benefit of the public and the means by which the benefit is to be obtained are of public character, the law will be upheld even though incidental advantage may occur to individuals beyond those enjoyed by the general public. 62 6. Appellant's further contention that Republic Act No. 3350 violates the constitutional provision on social justice is also baseless. Social justice is intended to promote the welfare of all the people. 63 Republic Act No. 3350 promotes that welfare insofar as it looks after the welfare of those who, because of their religious belief, cannot join labor unions; the Act prevents their being deprived of work and of the means of livelihood. In determining whether any particular measure is for public advantage, it is not necessary that the entire state be directly benefited it is sufficient that a portion of the state be benefited thereby. Social justice also means the adoption by the Government of measures calculated to insure economic stability of all component elements of society, through the maintenance of a proper economic and social equilibrium in the inter-relations of the members of the community. 64 Republic Act No. 3350 insures economic stability to the members of a religious sect, like the Iglesia ni Cristo, who are also component elements of society, for it insures security in their employment, notwithstanding their failure to join a labor union having a closed shop agreement with the employer. The Act also advances the proper economic and social equilibrium between labor unions and employees who cannot join labor unions, for it exempts the latter from the compelling necessity of joining labor unions that have closed shop agreements and equalizes, in so far as opportunity to work is concerned, those whose religion prohibits membership in labor unions with those whose religion does not prohibit said membership. Social justice does not imply social equality, because social inequality will always exist as long as social relations depend on personal or subjective proclivities. Social justice does not require legal equality because legal equality, being a relative term, is necessarily premised on differentiations based on personal or natural conditions. 65 Social justice guarantees equality of opportunity 66 , and this is precisely what Republic Act No. 3350 proposes to accomplish it gives laborers, irrespective of their religious scrupples, equal opportunity for work. 7. As its last ground, appellant contends that the amendment introduced by Republic Act No. 3350 is not called for in other words, the Act is not proper, necessary or desirable. Anent this matter, it has been held that a statute which is not necessary is not, for that reason, unconstitutional; that in determining the constitutional validity of legislation, the courts are unconcerned with issues as to the necessity for the enactment of the legislation in question. 67 Courts do inquire into the wisdom of laws. 68 Moreover, legislatures, being chosen by the people, are presumed to understand and correctly appreciate the needs of the people, and it may change the laws accordingly. 69 The fear is entertained by appellant that unless the Act is declared unconstitutional, employers will prefer employing members of religious

sects that prohibit their members from joining labor unions, and thus be a fatal blow to unionism. We do not agree. The threat to unionism will depend on the number of employees who are members of the religious sects that control the demands of the labor market. But there is really no occasion now to go further and anticipate problems We cannot judge with the material now before Us. At any rate, the validity of a statute is to be determined from its general purpose and its efficacy to accomplish the end desired, not from its effects on a particular case. 70 The essential basis for the exercise of power, and not a mere incidental result arising from its exertion, is the criterion by which the validity of a statute is to be measured. 71 II. We now pass on the second assignment of error, in support of which the Union argued that the decision of the trial court ordering the Union to pay P500 for attorney's fees directly contravenes Section 24 of Republic Act No. 875, for the instant action involves an industrial dispute wherein the Union was a party, and said Union merely acted in the exercise of its rights under the union shop provision of its existing collective bargaining contract with the Company; that said order also contravenes Article 2208 of the Civil Code; that, furthermore, Appellee was never actually dismissed by the defendant Company and did not therefore suffer any damage at all . 72 In refuting appellant Union's arguments, Appellee claimed that in the instant case there was really no industrial dispute involved in the attempt to compel Appellee to maintain its membership in the union under pain of dismissal, and that the Union, by its act, inflicted intentional harm on Appellee; that since Appellee was compelled to institute an action to protect his right to work, appellant could legally be ordered to pay attorney's fees under Articles 1704 and 2208 of the Civil Code. 73 The second paragraph of Section 24 of Republic Act No. 875 which is relied upon by appellant provides that: No suit, action or other proceedings shall be maintainable in any court against a labor organization or any officer or member thereof for any act done by or on behalf of such organization in furtherance of an industrial dispute to which it is a party, on the ground only that such act induces some other person to break a contract of employment or that it is in restraint of trade or interferes with the trade, business or employment of some other person or with the right of some other person to dispose of his capital or labor. (Emphasis supplied) That there was a labor dispute in the instant case cannot be disputed for appellant sought the discharge of respondent by virtue of the closed shop agreement and under Section 2 (j) of Republic Act No. 875 a question involving tenure of employment is included in the term "labor dispute". 74 The discharge or the act of seeking it is the labor dispute itself. It being the labor dispute itself, that very same act of the Union in asking the employer to dismiss Appellee cannot be "an act done ... in furtherance of an industrial dispute". The mere fact that appellant is a labor union does not necessarily mean that all its acts are in furtherance of an industrial dispute. 75 Appellant Union, therefore, cannot invoke in its favor Section 24 of Republic Act No. 875. This case is not intertwined with any unfair labor practice case existing at the time when Appellee filed his complaint before the lower court. Neither does Article 2208 of the Civil Code, invoked by the Union, serve as its shield. The article provides that attorney's fees and expenses of litigation may be awarded "when the defendant's act or omission has compelled the plaintiff ... to incur expenses to protect his interest"; and "in any other case where the court deems it just and equitable that attorney's fees and expenses of litigation should be recovered". In the instant case, it cannot be gainsaid that appellant Union's act in demanding Appellee's dismissal caused Appellee to incur expenses to prevent his being dismissed from his job. Costs according to Section 1, Rule 142, of the Rules of Court, shall be allowed as a matter of course to the prevailing party.

WHEREFORE, the instant appeal is dismissed, and the decision, dated August 26, 1965, of the Court of First Instance of Manila, in its Civil Case No. 58894, appealed from is affirmed, with costs against appellant Union. It is so ordered. G.R. No. L-34854 November 20, 1978 FORTUNATO R. PAMIL, petitioner-appellant, vs. HONORABLE VICTORINO C. TELERON, as Judge of the Court of First Instance of Bohol, Branch III, and REV. FR. MARGARITO R. GONZAGA, respondents-appellees. Urbano H. Lagunay for petitioner. Cristeto O. Cimagala for respondents.

FERNANDO, J.: The novel question raised in this certiorari proceeding concerns the eligibility of an ecclesiastic to an elective municipal position. Private respondent, Father Margarito R. Gonzaga, was, in 1971, elected to the position of municipal mayor of Alburquerque, Bohol. 1 Therefore, he was duly proclaimed. A suit for quo warranto was then filed by petitioner, himself an aspirant for the office, for his disqualification 2 based on this Administrative Code provision: "In no case shall there be elected or appointed to a municipal office ecclesiastics, soldiers in active service, persons receiving salaries or compensation from provincial or national funds, or contractors for public works of the municipality." 3 The suit did not prosper, respondent Judge sustaining the right of Father Gonzaga to the office of municipal mayor. He ruled that such statutory ineligibility was impliedly repealed by the Election Code of 1971. The matter was then elevated to this Tribunal by petitioner. It is his contention that there was no such implied repeal, that it is still in full force and effect. Thus was the specific question raised. There is no clear-cut answer from this Tribunal. After a lengthy and protracted deliberation, the Court is divided on the issue. Seven members of the Court are of the view that the judgment should be affirmed as the challenged provision is no longer operative either because it was superseded by the 1935 Constitution or repealed. Outside of the writer of this opinion, six other Justices are of this mind They are Justices Teehankee, Muoz Palma Concepcion Jr., Santos, Fernandez, and Guerrero. For them, the overriding principle of the supremacy of the Constitution or, at the very least, the repeal of such provision bars a reversal. 4 The remaining five members of this Court, Chief Justice Castro, Justices Barredo, Makasiar, Antonio, and Aquino, on the other hand, hold the position that such a prohibition against an ecclesiastic running for elective office is not tainted with any constitutional infirmity. The vote is thus indecisive. While five members of the Court constitute a minority, the vote of the remaining seven does not suffice to render the challenged provision ineffective. Section 2175 of the Revised Administrative Code, as far as ecclesiastics are concerned, must be accorded respect. The presumption of validity calls for its application. Under the circumstances, certiorari lies. That is the conclusion arrived at by the writer of this opinion, joined by Justice Concepcion Jr., Santos, Fernandez, and Guerrero. They have no choice then but to vote for the reversal of the lower court decision and declare ineligible respondent Father Margarito R. Gonzaga for the office of municipal mayor. With the aforesaid five other members, led by the Chief Justice, entertaining no doubt as to his lack of eligibility, this petition for certiorari must be granted.

Except for the dispositive part announcing the judgment of the Court, the remainder of this opinion sets forth the reasons why there are constitutional objections to the continuing force and effectivity of Section 2175 as far as ecclesiastics are concerned. 1. The Revised Administrative Code was enacted in 1917. In the 1935 Constitution, as it is now under the present Charter, it is explicitly declared: "No religious test shall be required for the exercise of civil or political rights." 5 The principle of the paramount character of the fundamental law 6 thus comes into play. There are previous rulings to that effect. 6 The ban imposed by the Administrative Code cannot survive. So the writer of this opinion would hold. 2. This is to conform to this provision of the 1935 Charter: "All laws of the Philippine Islands shall continue in force until the inauguration of the Commonwealth of the Philippines; thereafter, such laws shall remain operative, unless inconsistent with this Constitution, until amended, altered, modified, or repealed by the Congress of the Philippines, and all references in such laws to the government or officials of the Philippines shall be construed, in so far as applicable, to refer to the Government and corresponding officials under this Constitution." 7 It was first applied in People v. Linsangan, 8 decided in December, 1935, barely a month after that Constitution took effect. This Court held that Section 2718 of the Revised Administrative Code that would allow the prosecution of a person who remains delinquent in the payment of cedula tax, 9 was no longer in force. As stated by the then Justice, later Chief Justice, Abad Santos, after setting forth that the Constitution prohibits the imprisonment for debt or non-payment of poll tax: 10 "It seems too clear to require demonstration that section 2718 of the Revised Administrative Code is inconsistent with section 1, clause 12, of Article Ill of the Constitution in that, while the former authorizes imprisonment for non-payment of the poll or cedula tax, the latter forbids it. It follows that upon the inauguration of the Government of the Commonwealth, said section 2718 of the Revised Administrative Code became inoperative, and no judgment of conviction can be based thereon." 11 De los Santos v. Mallare 12 came next. The President, under the Revised Administrative Code, could remove at pleasure any of the appointive officials under the Charter of the City of Baguio. 13 Relying on such a provision, the then President Quirino removed petitioner De los Santos, who was appointed City Engineer of Baguio on July 16, 1946, and chose in his place respondent Gil R. Mallare. Why such a power could not pass the test of validity under the 1935 Constitution was pointed out by Justice Tuason thus: "So, unlike legislation that is passed in defiance of the Constitution, assertive and menacing, the questioned part of section 2545 of the Revised Administrative Code does not need a positive declaration of nullity by the court to put it out of the way. To all intents and purposes, it is non-existent, outlawed and eliminated from the statute book by the Constitution itself by express mandate before the petitioner was appointed." 14 Martinez v. Morfe, 15 a 1972 decision, is likewise in point. In the light of the cited provision of the 1935 Constitution, as authoritatively construed, Article 145 of the Revised Penal Code was found to be inoperative. As therein provided, the penalty of prision correccional is imposed on any public officer or employee who, while the Congress was in regular or special session, would arrest or search a member thereof, except in case he had committed a crime punishable by a penalty higher than prision mayor. This Court ruled that the Revised Penal Code extended unduly the legislative privilege of freedom from arrest as ordained in the Constitution. 16 Such a provision then was contrary to and in defiance of the clear expression of the will of the Constitutional Convention of 1934 that such immunity was never intended to exempt members of a legislative body from an arrest for a criminal offense, the phrase treason, felony and breach of the peace being all-inclusive. Reference was likewise made to the prevailing American doctrine to that effect as enunciated by Williamson v. United States. 17 3. It would be an unjustified departure from a settled principle of the applicable construction of the provision on what laws remain operative after 1935 if the plea of petitioner in this case were to be heeded. The challenged Administrative Code provision, certainly insofar as it declares ineligible ecclesiastics to any elective or appointive office, is, on its face,

inconsistent with the religious freedom guaranteed by the Constitution. To so exclude them is to impose a religious test. Torcaso v. Watkins 18 an American Supreme Court decision, has persuasive weight. What was there involved was the validity of a provision in the Maryland Constitution prescribing that "no religious test ought ever to be required as a disqualification for any office or profit or trust in this State, other than a declaration of belief in the existence of God ..." Such a constitutional requirement was assailed as contrary to the First Amendment of the United States Constitution by an appointee to the office of notary public in Maryland, who was refused a commission as he would not declare a belief in God. He failed in the Maryland Court of Appeals but prevailed in the United States Supreme Court, which reversed the state court decision. It could not have been otherwise. As emphatically declared by Justice Black: "this Maryland religious test for public office unconstitutionally invades the appellant's freedom of belief and religion and therefore cannot be enforced against him." 19 The analogy appears to be obvious. In that case, it was lack of belief in God that was a disqualification. Here being an ecclesiastic and therefore professing a religious faith suffices to disqualify for a public office. There is thus an incompatibility between the Administrative Code provision relied upon by petitioner and an express constitutional mandate. It is not a valid argument against this conclusion to assert that under the Philippine Autonomy Act of 1916, there was such a prohibition against a religious test, and yet such a ban on holding a municipal position had not been nullified. It suffices to answer that no question was raised as to its validity. In Vilar v. Paraiso, 20 decided under the 1935 Constitution, it was assumed that there was no conflict with the fundamental law. 4. This is the first case then where this Court has to face squarely such an issue. This excerpt from the opinion of Justice Moreland in the leading case of McGirr v. Hamilton, 21 a 1915 decision, has a force unimpaired by the passage of time: "Relative to the theory that Act No. 1627 has stood so long and been silently acquiesced in for so great a length of time that it should not be disturbed, it may be said that the fact that certain individuals have, by ignorance or neglect, failed to claim their fundamental rights, furnishes no reason why another individual, alert to his rights and their proper enforcement, should be prevented from asserting and sustaining those rights. The fact that Smith and Jones have failed to demand their constitutional rights furnishes no basis for the refusal to consider and uphold the constitutional rights of Richard Roe In the case of Sadler v. Langham (34 Ala. 311), this same question was under consideration and the court in resolving it said: 'It may be urged, that these statutes have stood, and been silently acquiesced in for so great a length of time, they should not now be disturbed. We are sensible of the force of this argument. It will be observed, however, that in Tennessee, the decision which declared the private road law unconstitutional was pronounced forty years after the enact. judgment of the statute; and in New York, after seventy years had elapsed. It is, perhaps, never too late to re- establish constitutional rights, the observance of which had been silently neglected." 22 To support such a conclusion, no less than the great Chief Justice Marshall, speaking for this Court in United States v. More, in disposing of a contention by one of the parties as to appellate jurisdiction having been previously exercised and therefore beyond dispute was likewise relied upon. Thus: "No question was made in that case as to the jurisdiction petition. It passed sub silentio, and the court does not consider itself bound by that case. 23 So it should be in this litigation. As set forth at the outset, it is not even necessary to annul the challenged Administrative Code provision. It is merely declared inoperative by virtue of the mandate of the 1935 Constitution, similarly found in the present Charter. 5. Nonetheless, tie above view failed to obtain the necessary eight votes needed to give it binding force. The attack on the continuing effectivity of Section 2175 having failed, it must be, as noted at the outset, given full force and application. WHEREFORE, the petition for certiorari is granted. The judgment a quo is reversed and set aside. Respondent Gonzaga is hereby ordered immediately to vacate the mayoralty of the municipality of Albuquerque, Bohol, there being a failure to elect. No pronouncement as to costs. G.R. No. L-53622 April 25, 1980

JOVITO R. SALONGA, petitioner, vs. CAPTAIN ROLANDO HERMOSO, TRAVEL PROCESSING CENTER, and GENERAL FABIAN VER, respondents.

that there be no erosion to human rights even in times of martial law, likewise received from President Marcos the accolade of his approval. It would appear, therefore, that in case of doubt of the Officer-in-Charge of the Travel Processing Center, the view of General Fabian Ver should immediately be sought. It goes without saying that the petition for such certificate of eligibility to travel be filed at the earliest opportunity to facilitate the granting thereof and preclude any disclaimer as to the person desiring to travel being in any way responsible for any delay. WHEREFORE, the petition is dismissed for being moot and academic. G.R. No. 88211 September 15, 1989 FERDINAND E. MARCOS, IMELDA R. MARCOS, FERDINAND R. MARCOS, JR., IRENE M. ARANETA, IMEE MANOTOC, TOMAS MANOTOC, GREGORIO ARANETA, PACIFICO E. MARCOS, NICANOR YIGUEZ and PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), represented by its President, CONRADO F. ESTRELLA, petitioners, vs. HONORABLE RAUL MANGLAPUS, CATALINO MACARAIG, SEDFREY ORDOEZ, MIRIAM DEFENSOR SANTIAGO, FIDEL RAMOS, RENATO DE VILLA, in their capacity as Secretary of Foreign Affairs, Executive Secretary, Secretary of Justice, Immigration Commissioner, Secretary of National Defense and Chief of Staff, respectively, respondents.

FERNANDO, C.J.: This is not the first time petitioner Jovito R. Salonga came to this Tribunal by way of a mandamus proceeding to compel the issuance to him of a certificate of eligibility to travel. In the first case, Salonga v. Madella, 1 the case became moot and academic as the Office of the Solicitor General, in its answer to the petition, stated that the travel eligibility certificate was not denied and, as a matter of fact, had been granted. Nonetheless, a brief separate opinion was filed, concurring in the resolution, and worded thus: "Clearly this petition had assumed a moot and academic character. Its dismissal is thus indicated. May I just add these few words as my response to the plea of petitioner in his Manifestation and Reply dated October 28, 1978. This is how I would view the matter not only where petitioner is concerned but in all other similar cases. Respondent Travel Processing Center should discharge its injunction conformably to the mandate of the Universal Declaration of Human Rights on the right to travel. One of the highlights of the keynote address of President Marcos in the Manila World Law Conference in celebration of the World Peace Through Law Day on August 21, 1977 was the lifting of 'the ban on international travel.' There should be fidelity to such a pronouncement. It is the experience of the undersigned in his lectures abroad the last few years, in the United States as well as in Malaysia, Singapore and Australia, that respect accorded constitutional rights under the present emergency regime had elicited the commendation of members of the bench, the bar, and the academe in foreign lands. It is likewise worthy of notice that in his keynote address to the International Law Association, President Marcos made reference to martial law being instituted in accordance with law and that the Constitution had been applied in appropriate cases. As an agency of the executive branch, therefore, the Travel Processing Center should ever be on its guard, lest the impression be created that such declarations amount, to paraphrase Justice Jackson, to no more than munificent bequests in a pauper's will. Petitioner, to my mind, is justified, the more so in the light of the Answer of Acting Solicitor General Vicente Mendoza, to an affirmative response to his prayer in his Manifestation and Reply 'that under the circumstances mentioned in the Petition, Petitioner is entitled to travel abroad, and that it is in recognition of this right that Respondents have issued his Certificate of Eligibility to Travel, as mentioned in the Answer. 2 The present petition is likewise impressed with a moot and academic aspect. In the motion to dismiss of the Solicitor General dated April 21, 1980, it was stated that the certificate of eligibility to travel had been granted petitioner. A xeroxed copy was enclosed. A resolution for dismissal is, therefore, in order. From the docket of this Court, it appears that other petitions of this character had been filed in the past, namely, Santos v. The Special Committee on Travel Abroad, 3 Pimentel v. Travel Processing Center, 4 and Gonzales v. Special Committee on Travel. 5 In the aforesaid cases, as in this and the earlier Salonga petition, there was no occasion to pass on the merits of the controversy as the certificates of eligibility to travel were granted. The necessity for any ruling was thus obviated. Nonetheless, in view of the likelihood that in the future this Court may be faced again with a situation like the present which takes up its time and energy needlessly, it is desirable that respondent Travel Processing Center should exercise the utmost care to avoid the impression that certain citizens desirous of exercising their constitutional right to travel could be subjected to inconvenience or annoyance. In the address of President and Prime Minister Ferdinand E. Marcos before the American Newspaper Publishers Association last Tuesday April 22, 1980, emphasized anew the respect accorded constitutional rights The freedom to travel is certainly one of the most cherished. He cited with approval the ringing affirmation of Willoughby, who, as he noted was "partial to the claims of liberty." 6 Burdick 7 and Willis, 8 both of whom were equally convinced

CORTES, J.: Before the Court is a contreversy of grave national importance. While ostensibly only legal issues are involved, the Court's decision in this case would undeniably have a profound effect on the political, economic and other aspects of national life. We recall that in February 1986, Ferdinand E. Marcos was deposed from the presidency via the non-violent "people power" revolution and forced into exile. In his stead, Corazon C. Aquino was declared President of the Republic under a revolutionary government. Her ascension to and consilidation of power have not been unchallenged. The failed Manila Hotel coup in 1986 led by political leaders of Mr. Marcos, the takeover of television station Channel 7 by rebel troops led by Col. Canlas with the support of "Marcos loyalists" and the unseccessful plot of the Marcos spouses to surreptitiously return from Hawii with mercenaries aboard an aircraft chartered by a Lebanese arms dealer [Manila Bulletin, January 30, 1987] awakened the nation to the capacity of the Marcoses to stir trouble even from afar and to the fanaticism and blind loyalty of their followers in the country. The ratification of the 1987 Constitution enshrined the victory of "people power" and also clearly reinforced the constitutional moorings of Mrs. Aquino's presidency. This did not, however, stop bloody challenges to the government. On August 28, 1987, Col. Gregorio Honasan, one of the major players in the February Revolution, led a failed coup that left scores of people, both combatants and civilians, dead. There were several other armed sorties of lesser significance, but the message they conveyed was the same a split in the ranks of the military establishment that thraetened civilian supremacy over military and brought to the fore the realization that civilian government could be at the mercy of a fractious military. But the armed threats to the Government were not only found in misguided elements and among rabid followers of Mr. Marcos. There are also the communist insurgency and the seccessionist movement in Mindanao which gained ground during the rule of Mr. Marcos, to the extent that the communists have set up a parallel government of their own on the areas they effectively control while the separatist are virtually free to move about in armed bands. There has been no let up on this groups' determination to wrest power from the govermnent.

Not only through resort to arms but also to through the use of propaganda have they been successful in dreating chaos and destabilizing the country. Nor are the woes of the Republic purely political. The accumulated foreign debt and the plunder of the nation attributed to Mr. Marcos and his cronies left the economy devastated. The efforts at economic recovery, three years after Mrs. Aquino assumed office, have yet to show concrete results in alleviating the poverty of the masses, while the recovery of the illgotten wealth of the Marcoses has remained elusive. Now, Mr. Marcos, in his deathbed, has signified his wish to return to the Philipppines to die. But Mrs. Aquino, considering the dire consequences to the nation of his return at a time when the stability of government is threatened from various directions and the economy is just beginning to rise and move forward, has stood firmly on the decision to bar the return of Mr. Marcos and his family. The Petition This case is unique. It should not create a precedent, for the case of a dictator forced out of office and into exile after causing twenty years of political, economic and social havoc in the country and who within the short space of three years seeks to return, is in a class by itself. This petition for mandamus and prohibition asks the Courts to order the respondents to issue travel documents to Mr. Marcos and the immediate members of his family and to enjoin the implementation of the President's decision to bar their return to the Philippines. The Issue Th issue is basically one of power: whether or not, in the exercise of the powers granted by the Constitution, the President may prohibit the Marcoses from returning to the Philippines. According to the petitioners, the resolution of the case would depend on the resolution of the following issues: 1. Does the President have the power to bar the return of former President Marcos and family to the Philippines? a. Is this a political question? 2. Assuming that the President has the power to bar former President Marcos and his family from returning to the Philippines, in the interest of "national security, public safety or public health a. Has the President made a finding that the return of former President Marcos and his family to the Philippines is a clear and present danger to national security, public safety or public health? b. Assuming that she has made that finding (1) Have the requirements of due process been complied with in making such finding? (2) Has there been prior notice to petitioners?

(3) Has there been a hearing? (4) Assuming that notice and hearing may be dispensed with, has the President's decision, including the grounds upon which it was based, been made known to petitioners so that they may controvert the same? c. Is the President's determination that the return of former President Marcos and his family to the Philippines is a clear and present danger to national security, public safety, or public health a political question? d. Assuming that the Court may inquire as to whether the return of former President Marcos and his family is a clear and present danger to national security, public safety, or public health, have respondents established such fact? 3. Have the respondents, therefore, in implementing the President's decision to bar the return of former President Marcos and his family, acted and would be acting without jurisdiction, or in excess of jurisdiction, or with grave abuse of discretion, in performing any act which would effectively bar the return of former President Marcos and his family to the Philippines? [Memorandum for Petitioners, pp. 5-7; Rollo, pp. 234-236.1 The case for petitioners is founded on the assertion that the right of the Marcoses to return to the Philippines is guaranteed under the following provisions of the Bill of Rights, to wit: Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws. xxx xxx xxx Section 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security, public safety, or public health, as may be provided by law. The petitioners contend that the President is without power to impair the liberty of abode of the Marcoses because only a court may do so "within the limits prescribed by law." Nor may the President impair their right to travel because no law has authorized her to do so. They advance the view that before the right to travel may be impaired by any authority or agency of the government, there must be legislation to that effect. The petitioners further assert that under international law, the right of Mr. Marcos and his family to return to the Philippines is guaranteed. The Universal Declaration of Human Rights provides: Article 13. (1) Everyone has the right to freedom of movement and residence within the borders of each state.

(2) Everyone has the right to leave any country, including his own, and to return to his country. Likewise, the International Covenant on Civil and Political Rights, which had been ratified by the Philippines, provides: Article 12 1) Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence. 2) Everyone shall be free to leave any country, including his own. 3) The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (order public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant. 4) No one shall be arbitrarily deprived of the right to enter his own country. On the other hand, the respondents' principal argument is that the issue in this case involves a political question which is non-justiciable. According to the Solicitor General: As petitioners couch it, the question involved is simply whether or not petitioners Ferdinand E. Marcos and his family have the right to travel and liberty of abode. Petitioners invoke these constitutional rights in vacuo without reference to attendant circumstances. Respondents submit that in its proper formulation, the issue is whether or not petitioners Ferdinand E. Marcos and family have the right to return to the Philippines and reside here at this time in the face of the determination by the President that such return and residence will endanger national security and public safety. It may be conceded that as formulated by petitioners, the question is not a political question as it involves merely a determination of what the law provides on the matter and application thereof to petitioners Ferdinand E. Marcos and family. But when the question is whether the two rights claimed by petitioners Ferdinand E. Marcos and family impinge on or collide with the more primordial and transcendental right of the State to security and safety of its nationals, the question becomes political and this Honorable Court can not consider it. There are thus gradations to the question, to wit: Do petitioners Ferdinand E. Marcos and family have the right to return to the Philippines and reestablish their residence here? This is clearly a justiciable question which this Honorable Court can decide. Do petitioners Ferdinand E. Marcos and family have their right to return to the Philippines and reestablish their residence here even if their return and residence here will endanger national security and public

safety? this is still a justiciable question which this Honorable Court can decide. Is there danger to national security and public safety if petitioners Ferdinand E. Marcos and family shall return to the Philippines and establish their residence here? This is now a political question which this Honorable Court can not decide for it falls within the exclusive authority and competence of the President of the Philippines. [Memorandum for Respondents, pp. 9-11; Rollo, pp. 297-299.] Respondents argue for the primacy of the right of the State to national security over individual rights. In support thereof, they cite Article II of the Constitution, to wit: Section 4. The prime duty of the Government is to serve and protect the people. The Government may call upon the people to defend the State and, in the fulfillment thereof, all citizens may be required, under conditions provided by law, to render personal, military, or civil service. Section 5. The maintenance of peace and order, the protection of life, liberty, and property, and the promotion of the general welfare are essential for the enjoyment by all the people of the blessings of democracy. Respondents also point out that the decision to ban Mr. Marcos and family from returning to the Philippines for reasons of national security and public safety has international precedents. Rafael Trujillo of the Dominican Republic, Anastacio Somoza Jr. of Nicaragua, Jorge Ubico of Guatemala, Fulgencio batista of Cuba, King Farouk of Egypt, Maximiliano Hernandez Martinez of El Salvador, and Marcos Perez Jimenez of Venezuela were among the deposed dictators whose return to their homelands was prevented by their governments. [See Statement of Foreign Affairs Secretary Raul S. Manglapus, quoted in Memorandum for Respondents, pp. 26-32; Rollo, pp. 314-319.] The parties are in agreement that the underlying issue is one of the scope of presidential power and its limits. We, however, view this issue in a different light. Although we give due weight to the parties' formulation of the issues, we are not bound by its narrow confines in arriving at a solution to the controversy. At the outset, we must state that it would not do to view the case within the confines of the right to travel and the import of the decisions of the U.S. Supreme Court in the leading cases of Kent v. Dulles [357 U.S. 116, 78 SCt 1113, 2 L Ed. 2d 1204] and Haig v. Agee [453 U.S. 280, 101 SCt 2766, 69 L Ed. 2d 640) which affirmed the right to travel and recognized exceptions to the exercise thereof, respectively. It must be emphasized that the individual right involved is not the right to travel from the Philippines to other countries or within the Philippines. These are what the right to travel would normally connote. Essentially, the right involved is the right to return to one's country, a totally distinct right under international law, independent from although related to the right to travel. Thus, the Universal Declaration of Humans Rights and the International Covenant on Civil and Political Rights treat the right to freedom of movement and abode within the territory of a state, the right to leave a country, and the right to enter one's country as separate and distinct rights. The Declaration speaks of the "right to freedom of movement and residence within the borders of each state" [Art. 13(l)] separately from the "right to leave any country, including his own, and to return to his country." [Art. 13(2).] On the other hand, the Covenant guarantees the "right to liberty of movement and freedom to choose his residence" [Art. 12(l)] and the right to "be free to leave any country, including his own." [Art. 12(2)] which rights may be restricted by such laws as "are necessary to protect national security, public order, public health or morals or enter qqqs own country" of which one cannot be "arbitrarily deprived."

[Art. 12(4).] It would therefore be inappropriate to construe the limitations to the right to return to one's country in the same context as those pertaining to the liberty of abode and the right to travel. The right to return to one's country is not among the rights specifically guaranteed in the Bill of Rights, which treats only of the liberty of abode and the right to travel, but it is our wellconsidered view that the right to return may be considered, as a generally accepted principle of international law and, under our Constitution, is part of the law of the land [Art. II, Sec. 2 of the Constitution.] However, it is distinct and separate from the right to travel and enjoys a different protection under the International Covenant of Civil and Political Rights, i.e., against being "arbitrarily deprived" thereof [Art. 12 (4).] Thus, the rulings in the cases Kent and Haig which refer to the issuance of passports for the purpose of effectively exercising the right to travel are not determinative of this case and are only tangentially material insofar as they relate to a conflict between executive action and the exercise of a protected right. The issue before the Court is novel and without precedent in Philippine, and even in American jurisprudence. Consequently, resolution by the Court of the well-debated issue of whether or not there can be limitations on the right to travel in the absence of legislation to that effect is rendered unnecessary. An appropriate case for its resolution will have to be awaited. Having clarified the substance of the legal issue, we find now a need to explain the methodology for its resolution. Our resolution of the issue will involve a two-tiered approach. We shall first resolve whether or not the President has the power under the Constitution, to bar the Marcoses from returning to the Philippines. Then, we shall determine, pursuant to the express power of the Court under the Constitution in Article VIII, Section 1, whether or not the President acted arbitrarily or with grave abuse of discretion amounting to lack or excess of jurisdiction when she determined that the return of the Marcose's to the Philippines poses a serious threat to national interest and welfare and decided to bar their return. Executive Power

power to grant amnesty with the concurrence of Congress, the power to contract or guarantee foreign loans, the power to enter into treaties or international agreements, the power to submit the budget to Congress, and the power to address Congress [Art. VII, Sec. 14-23]. The inevitable question then arises: by enumerating certain powers of the President did the framers of the Constitution intend that the President shall exercise those specific powers and no other? Are these se enumerated powers the breadth and scope of "executive power"? Petitioners advance the view that the President's powers are limited to those specifically enumerated in the 1987 Constitution. Thus, they assert: "The President has enumerated powers, and what is not enumerated is impliedly denied to her. Inclusion unius est exclusio alterius[Memorandum for Petitioners, p. 4- Rollo p. 233.1 This argument brings to mind the institution of the U.S. Presidency after which ours is legally patterned.** Corwin, in his monumental volume on the President of the United States grappled with the same problem. He said: Article II is the most loosely drawn chapter of the Constitution. To those who think that a constitution ought to settle everything beforehand it should be a nightmare; by the same token, to those who think that constitution makers ought to leave considerable leeway for the future play of political forces, it should be a vision realized. We encounter this characteristic of Article 11 in its opening words: "The executive power shall be vested in a President of the United States of America." . . .. [The President: Office and Powers, 17871957, pp. 3-4.] Reviewing how the powers of the U.S. President were exercised by the different persons who held the office from Washington to the early 1900's, and the swing from the presidency by commission to Lincoln's dictatorship, he concluded that "what the presidency is at any particular moment depends in important measure on who is President." [At 30.] This view is shared by Schlesinger who wrote in The Imperial Presidency:

The 1987 Constitution has fully restored the separation of powers of the three great branches of government. To recall the words of Justice Laurel in Angara v. Electoral Commission [63 Phil. 139 (1936)], "the Constitution has blocked but with deft strokes and in bold lines, allotment of power to the executive, the legislative and the judicial departments of the government." [At 157.1 Thus, the 1987 Constitution explicitly provides that "[the legislative power shall be vested in the Congress of the Philippines" Art VI, Sec. 11, "[t]he executive power shall bevested in the President of the Philippines" [Art. VII, Sec. 11, and "[te judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law" [Art. VIII, Sec. 1.] These provisions not only establish a separation of powers by actual division [Angara v. Electoral Commission, supra] but also confer plenary legislative, executive and judicial powers subject only to limitations provided in the Constitution. For as the Supreme Court inOcampo v. Cabangis [15 Phil. 626 (1910)] pointed out "a grant of the legislative power means a grant of all legislative power; and a grant of the judicial power means a grant of all the judicial power which may be exercised under the government." [At 631-632.1 If this can be said of the legislative power which is exercised by two chambers with a combined membership of more than two hundred members and of the judicial power which is vested in a hierarchy of courts, it can equally be said of the executive power which is vested in one official the President. As stated above, the Constitution provides that "[t]he executive power shall be vested in the President of the Philippines." [Art. VII, Sec. 1]. However, it does not define what is meant by executive power" although in the same article it touches on the exercise of certain powers by the President, i.e., the power of control over all executive departments, bureaus and offices, the power to execute the laws, the appointing power, the powers under the commander-in-chief clause, the power to grant reprieves, commutations and pardons, the

For the American Presidency was a peculiarly personal institution. it remained of course, an agency of government subject to unvarying demands and duties no remained, of cas President. But, more than most agencies of government, it changed shape, intensity and ethos according to the man in charge. Each President's distinctive temperament and character, his values, standards, style, his habits, expectations, Idiosyncrasies, compulsions, phobias recast the WhiteHouse and pervaded the entire government. The executive branch, said Clark Clifford, was a chameleon, taking its color from the character and personality of the President. The thrust of the office, its impact on the constitutional order, therefore altered from President to President. Above all, the way each President understood it as his personal obligation to inform and involve the Congress, to earn and hold the confidence of the electorate and to render an accounting to the nation and posterity determined whether he strengthened or weakened the constitutional order. [At 212- 213.] We do not say that the presidency is what Mrs. Aquino says it is or what she does but, rather, that the consideration of tradition and the development of presidential power under the different constitutions are essential for a complete understanding of the extent of and limitations to the President's powers under the 1987 Constitution. The 1935 Constitution created a strong President with explicitly broader powers than the U.S. President. The 1973 Constitution attempted to modify the system of government into the parliamentary type, with

the President as a mere figurehead, but through numerous amendments, the President became even more powerful, to the point that he was also the de facto Legislature. The 1987 Constitution, however, brought back the presidential system of government and restored the separation of legislative, executive and judicial powers by their actual distribution among three distinct branches of government with provision for checks and balances. It would not be accurate, however, to state that "executive power" is the power to enforce the laws, for the President is head of state as well as head of government and whatever powers inhere in such positions pertain to the office unless the Constitution itself withholds it. Furthermore, the Constitution itself provides that the execution of the laws is only one of the powers of the President. It also grants the President other powers that do not involve the execution of any provision of law, e.g., his power over the country's foreign relations. On these premises, we hold the view that although the 1987 Constitution imposes limitations on the exercise ofspecific powers of the President, it maintains intact what is traditionally considered as within the scope of "executive power." Corollarily, the powers of the President cannot be said to be limited only to the specific powers enumerated in the Constitution. In other words, executive power is more than the sum of specific powers so enumerated, It has been advanced that whatever power inherent in the government that is neither legislative nor judicial has to be executive. Thus, in the landmark decision of Springer v. Government of the Philippine Islands, 277 U.S. 189 (1928), on the issue of who between the Governor-General of the Philippines and the Legislature may vote the shares of stock held by the Government to elect directors in the National Coal Company and the Philippine National Bank, the U.S. Supreme Court, in upholding the power of the Governor-General to do so, said: ...Here the members of the legislature who constitute a majority of the "board" and "committee" respectively, are not charged with the performance of any legislative functions or with the doing of anything which is in aid of performance of any such functions by the legislature. Putting aside for the moment the question whether the duties devolved upon these members are vested by the Organic Act in the GovernorGeneral, it is clear that they are not legislative in character, and still more clear that they are not judicial. The fact that they do not fall within the authority of either of these two constitutes logical ground for concluding that they do fall within that of the remaining one among which the powers of government are divided ....[At 202-203; Emphasis supplied.] We are not unmindful of Justice Holmes' strong dissent. But in his enduring words of dissent we find reinforcement for the view that it would indeed be a folly to construe the powers of a branch of government to embrace only what are specifically mentioned in the Constitution: The great ordinances of the Constitution do not establish and divide fields of black and white. Even the more specific of them are found to terminate in a penumbra shading gradually from one extreme to the other. .... xxx xxx xxx It does not seem to need argument to show that however we may disguise it by veiling words we do not and cannot carry out the distinction between legislative and executive action with mathematical precision and divide the branches into watertight compartments, were it ever so

desirable to do so, which I am far from believing that it is, or that the Constitution requires. [At 210- 211.] The Power Involved The Constitution declares among the guiding principles that "[t]he prime duty of theGovernment is to serve and protect the people" and that "[t]he maintenance of peace and order,the protection of life, liberty, and property, and the promotion of the general welfare are essential for the enjoyment by all the people of the blessings of democracy." [Art. II, Secs. 4 and 5.] Admittedly, service and protection of the people, the maintenance of peace and order, the protection of life, liberty and property, and the promotion of the general welfare are essentially ideals to guide governmental action. But such does not mean that they are empty words. Thus, in the exercise of presidential functions, in drawing a plan of government, and in directing implementing action for these plans, or from another point of view, in making any decision as President of the Republic, the President has to consider these principles, among other things, and adhere to them. Faced with the problem of whether or not the time is right to allow the Marcoses to return to the Philippines, the President is, under the Constitution, constrained to consider these basic principles in arriving at a decision. More than that, having sworn to defend and uphold the Constitution, the President has the obligation under the Constitution to protect the people, promote their welfare and advance the national interest. It must be borne in mind that the Constitution, aside from being an allocation of power is also a social contract whereby the people have surrendered their sovereign powers to the State for the common good. Hence, lest the officers of the Government exercising the powers delegated by the people forget and the servants of the people become rulers, the Constitution reminds everyone that "[s]overeignty resides in the people and all government authority emanates from them." [Art. II, Sec. 1.] The resolution of the problem is made difficult because the persons who seek to return to the country are the deposed dictator and his family at whose door the travails of the country are laid and from whom billions of dollars believed to be ill-gotten wealth are sought to be recovered. The constitutional guarantees they invoke are neither absolute nor inflexible. For the exercise of even the preferred freedoms of speech and ofexpression, although couched in absolute terms, admits of limits and must be adjusted to the requirements of equally important public interests [Zaldivar v. Sandiganbayan, G.R. Nos. 79690-707, October 7, 1981.] To the President, the problem is one of balancing the general welfare and the common good against the exercise of rights of certain individuals. The power involved is the President's residual power to protect the general welfare of the people. It is founded on the duty of the President, as steward of the people. To paraphrase Theodore Roosevelt, it is not only the power of the President but also his duty to do anything not forbidden by the Constitution or the laws that the needs of the nation demand [See Corwin, supra, at 153]. It is a power borne by the President's duty to preserve and defend the Constitution. It also may be viewed as a power implicit in the President's duty to take care that the laws are faithfully executed [see Hyman, The American President, where the author advances the view that an allowance of discretionary power is unavoidable in any government and is best lodged in the President]. More particularly, this case calls for the exercise of the President's powers as protector of the peace. Rossiter The American Presidency].The power of the President to keep the peace is not limited merely to exercising the commander-in-chief powers in times of emergency or to leading the State against external and internal threats to its existence. The President is not only clothed with extraordinary powers in times of emergency, but is also tasked with attending to the day-to-day problems of maintaining peace and order and

ensuring domestic tranquility in times when no foreign foe appears on the horizon. Wide discretion, within the bounds of law, in fulfilling presidential duties in times of peace is not in any way diminished by the relative want of an emergency specified in the commander-inchief provision. For in making the President commander-in-chief the enumeration of powers that follow cannot be said to exclude the President's exercising as Commander-in- Chief powers short of the calling of the armed forces, or suspending the privilege of the writ of habeas corpus or declaring martial law, in order to keep the peace, and maintain public order and security. That the President has the power under the Constitution to bar the Marcose's from returning has been recognized by memembers of the Legislature, and is manifested by the Resolution proposed in the House of Representatives and signed by 103 of its members urging the President to allow Mr. Marcos to return to the Philippines "as a genuine unselfish gesture for true national reconciliation and as irrevocable proof of our collective adherence to uncompromising respect for human rights under the Constitution and our laws." [House Resolution No. 1342, Rollo, p. 321.1 The Resolution does not question the President's power to bar the Marcoses from returning to the Philippines, rather, it appeals to the President's sense of compassion to allow a man to come home to die in his country. What we are saying in effect is that the request or demand of the Marcoses to be allowed to return to the Philippines cannot be considered in the light solely of the constitutional provisions guaranteeing liberty of abode and the right to travel, subject to certain exceptions, or of case law which clearly never contemplated situations even remotely similar to the present one. It must be treated as a matter that is appropriately addressed to those residual unstated powers of the President which are implicit in and correlative to the paramount duty residing in that office to safeguard and protect general welfare. In that context, such request or demand should submit to the exercise of a broader discretion on the part of the President to determine whether it must be granted or denied. The Extent of Review Under the Constitution, judicial power includes the duty to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government." [Art. VIII, Sec. 1] Given this wording, we cannot agree with the Solicitor General that the issue constitutes a political question which is beyond the jurisdiction of the Court to decide. The present Constitution limits resort to the political question doctrine and broadens the scope of judicial inquiry into areas which the Court, under previous constitutions, would have normally left to the political departments to decide. But nonetheless there remain issues beyond the Court's jurisdiction the determination of which is exclusively for the President, for Congress or for the people themselves through a plebiscite or referendum. We cannot, for example, question the President's recognition of a foreign government, no matter how premature or improvident such action may appear. We cannot set aside a presidential pardon though it may appear to us that the beneficiary is totally undeserving of the grant. Nor can we amend the Constitution under the guise of resolving a dispute brought before us because the power is reserved to the people. There is nothing in the case before us that precludes our determination thereof on the political question doctrine. The deliberations of the Constitutional Commission cited by petitioners show that the framers intended to widen the scope of judicial review but they did not intend courts of justice to settle all actual controversies before them. When political questions are involved, the Constitution limits the determination to whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the official whose action is being questioned. If grave abuse is not established, the Court will not substitute its judgment for that of the official concerned and decide a matter which by its nature or by law is for the latter alone to decide. In this light, it would appear clear that the second paragraph of Article VIII, Section 1 of the Constitution, defining "judicial power," which

specifically empowers the courts to determine whether or not there has been a grave abuse of discretion on the part of any branch or instrumentality of the government, incorporates in the fundamental law the ruling in Lansang v. Garcia [G.R. No. L-33964, December 11, 1971, 42 SCRA 4481 that:] Article VII of the [1935] Constitution vests in the Executive the power to suspend the privilege of the writ of habeas corpus under specified conditions. Pursuant to the principle of separation of powers underlying our system of government, the Executive is supreme within his own sphere. However, the separation of powers, under the Constitution, is not absolute. What is more, it goes hand in hand with the system of checks and balances, under which the Executive is supreme, as regards the suspension of the privilege, but only if and when he acts within the sphere alloted to him by the Basic Law, and the authority to determine whether or not he has so acted is vested in the Judicial Department, which, in this respect, is, in turn, constitutionally supreme. In the exercise of such authority, the function of the Court is merely to check not to supplant the Executive, or to ascertain merely whether he has gone beyond the constitutional limits of his jurisdiction, not to exercise the power vested in him or to determine the wisdom of his act [At 479-480.] Accordingly, the question for the Court to determine is whether or not there exist factual bases for the President to conclude that it was in the national interest to bar the return of the Marcoses to the Philippines. If such postulates do exist, it cannot be said that she has acted, or acts, arbitrarily or that she has gravely abused her discretion in deciding to bar their return. We find that from the pleadings filed by the parties, from their oral arguments, and the facts revealed during the briefing in chambers by the Chief of Staff of the Armed Forces of the Philippines and the National Security Adviser, wherein petitioners and respondents were represented, there exist factual bases for the President's decision.. The Court cannot close its eyes to present realities and pretend that the country is not besieged from within by a well-organized communist insurgency, a separatist movement in Mindanao, rightist conspiracies to grab power, urban terrorism, the murder with impunity of military men, police officers and civilian officials, to mention only a few. The documented history of the efforts of the Marcose's and their followers to destabilize the country, as earlier narrated in this ponencia bolsters the conclusion that the return of the Marcoses at this time would only exacerbate and intensify the violence directed against the State and instigate more chaos. As divergent and discordant forces, the enemies of the State may be contained. The military establishment has given assurances that it could handle the threats posed by particular groups. But it is the catalytic effect of the return of the Marcoses that may prove to be the proverbial final straw that would break the camel's back. With these before her, the President cannot be said to have acted arbitrarily and capriciously and whimsically in determining that the return of the Marcoses poses a serious threat to the national interest and welfare and in prohibiting their return. It will not do to argue that if the return of the Marcoses to the Philippines will cause the escalation of violence against the State, that would be the time for the President to step in and exercise the commander-in-chief powers granted her by the Constitution to suppress or stamp out such violence. The State, acting through the Government, is not precluded from taking pre- emptive action against threats to its existence if, though still nascent they are perceived as apt to become serious and direct. Protection of the people is the essence of the duty of government. The preservation of the State the fruition of the people's sovereignty is an obligation in the highest order. The President, sworn to preserve and defend the Constitution and to see the faithful execution the laws, cannot shirk from that responsibility.

We cannot also lose sight of the fact that the country is only now beginning to recover from the hardships brought about by the plunder of the economy attributed to the Marcoses and their close associates and relatives, many of whom are still here in the Philippines in a position to destabilize the country, while the Government has barely scratched the surface, so to speak, in its efforts to recover the enormous wealth stashed away by the Marcoses in foreign jurisdictions. Then, We cannot ignore the continually increasing burden imposed on the economy by the excessive foreign borrowing during the Marcos regime, which stifles and stagnates development and is one of the root causes of widespread poverty and all its attendant ills. The resulting precarious state of our economy is of common knowledge and is easily within the ambit of judicial notice. The President has determined that the destabilization caused by the return of the Marcoses would wipe away the gains achieved during the past few years and lead to total economic collapse. Given what is within our individual and common knowledge of the state of the economy, we cannot argue with that determination. WHEREFORE, and it being our well-considered opinion that the President did not act arbitrarily or with grave abuse of discretion in determining that the return of former President Marcos and his family at the present time and under present circumstances poses a serious threat to national interest and welfare and in prohibiting their return to the Philippines, the instant petition is hereby DISMISSED. SO ORDERED. G.R. No. 94284 April 8, 1991 RICARDO C. SILVERIO, petitioner, vs. THE COURT OF APPEALS, HON. BENIGNO G. GAVIOLA, as Judge of the Regional Trial Court of Cebu City, Branch IX, and PEOPLE OF THE PHILIPPINES, respondents. Quisumbing, Torres & Evangelista for petitioner.

the country. This order was based primarily on the Trial Court's finding that since the filing of the Information on 14 October 1985, "the accused has not yet been arraigned because he has never appeared in Court on the dates scheduled for his arraignment and there is evidence to show that accused Ricardo C. Silverio, Sr. has left the country and has gone abroad without the knowledge and permission of this Court" (Rollo, p. 45). Petitioner's Motion for Reconsideration was denied on 28 July 1988. Petitioner's Certiorari Petition before the Court of Appeals met a similar fate on 31 January 1990. Hence, this Petition for Review filed on 30 July 1990. After the respective pleadings required by the Court were filed, we resolved to give due course and to decide the case. Petitioner contends that respondent Court of Appeals erred in not finding that the Trial Court committed grave abuse of discretion amounting to lack of jurisdiction in issuing its Orders, dated 4 April and 28 July 1988, (1) on the basis of facts allegedly patently erroneous, claiming that the scheduled arraignments could not be held because there was a pending Motion to Quash the Information; and (2) finding that the right to travel can be impaired upon lawful order of the Court, even on grounds other than the "interest of national security, public safety or public health." We perceive no reversible error. 1) Although the date of the filing of the Motion to Quash has been omitted by Petitioner, it is apparent that it was filed long after the filing of the Information in 1985 and only after several arraignments had already been scheduled and cancelled due to Petitioner's nonappearance. In fact, said Motion to Quash was set for hearing only on 19 February 1988. Convincingly shown by the Trial Court and conformed to by respondent Appellate Court is the concurrence of the following circumstances: 1. The records will show that the information was filed on October 14, 1985. Until this date (28 July 1988), the case had yet to be arraigned. Several scheduled arraignments were cancelled and reset, mostly due to the failure of accused Silverio to appear. The reason for accused Silverio's failure to appear had invariably been because he is abroad in the United States of America; 2. Since the information was filed, until this date, accused Silverio had never appeared in person before the Court; 3. The bond posted by accused Silverio had been cancelled twice and warrants of arrest had been issued against him all for the same reason failure to appear at scheduled arraignments. In all candidness, the Court makes the observation that it has given accused Silverio more than enough consideration. The limit had long been reached (Order, 28 July 1988, Crim. Case No. CBU-6304, RTC, Cebu, p. 5; Rollo, p. 73). Patently, therefore, the questioned RTC Orders, dated 4 April 1988 and 28 July 1988, were not based on erroneous facts, as Petitioner would want this Court to believe. To all appearances, the pendency of a Motion to Quash came about only after several settings for arraignment had been scheduled and cancelled by reason of Petitioner's non-appearance.

MELENCIO-HERRERA, J.:p This is a Petition for Review on Certiorari under Rule 45 of the Rules of Court praying that the Decision of respondent Court of Appeals in CA-G.R. SP No. 15827, entitled "Ricardo C. Silverio vs. Hon. Benigno C. Gaviola, etc., et al.," dated 31 January 1990, as well as the Resolution of 29 June 1990 denying reconsideration, be set aside. On 14 October 1985, Petitioner was charged with violation of Section 20 (4) of the Revised Securities Act in Criminal Case No. CBU-6304 of the Regional Trial Court of Cebu. In due time, he posted bail for his provisional liberty. On 26 January 1988, or more than two (2) years after the filing of the Information, respondent People of the Philippines filed an Urgent ex parte Motion to cancel the passport of and to issue a hold-departure Order against accused-petitioner on the ground that he had gone abroad several times without the necessary Court approval resulting in postponements of the arraignment and scheduled hearings. Overruling opposition, the Regional Trial Court, on 4 April 1988, issued an Order directing the Department of Foreign Affairs to cancel Petitioner's passport or to deny his application therefor, and the Commission on Immigration to prevent Petitioner from leaving

2) Petitioner's further submission is that respondent Appellate Court "glaringly erred" in finding that the right to travel can be impaired upon lawful order of the Court, even on grounds other than the "interest of national security, public safety or public health." To start with, and this has not been controverted by Petitioner, the bail bond he had posted had been cancelled and Warrants of Arrest had been issued against him by reason, in both instances, of his failure to appear at scheduled arraignments. Warrants of Arrest having been issued against him for violation of the conditions of his bail bond, he should be taken into custody. "Bail is the security given for the release of a person in custody of the law, furnished by him or a bondsman, conditioned upon his appearance before any court when so required by the Court or the Rules (1985 Rules on Criminal Procedure, as amended, Rule 114, Secs. 1 and 2). The foregoing condition imposed upon an accused to make himself available at all times whenever the Court requires his presence operates as a valid restriction of his right to travel (Manotoc, Jr. vs. Court of Appeals, et al. No. 62100, 30 May 1986, 142 SCRA 149). A person facing criminal charges may be restrained by the Court from leaving the country or, if abroad, compelled to return (Constitutional Law, Cruz, Isagani A., 1987 Edition, p. 138). So it is also that "An accused released on bail may be re-arrested without the necessity of a warrant if he attempts to depart from the Philippines without prior permission of the Court where the case is pending (ibid., Sec. 20 [2nd par. ]). Petitioner takes the posture, however, that while the 1987 Constitution recognizes the power of the Courts to curtail the liberty of abode within the limits prescribed by law, it restricts the allowable impairment of the right to travel only on grounds of interest of national security, public safety or public health, as compared to the provisions on freedom of movement in the 1935 and 1973 Constitutions. Under the 1935 Constitution, the liberty of abode and of travel were treated under one provision. Article III, Section 1(4) thereof reads: The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired. The 1973 Constitution altered the 1935 text by explicitly including the liberty of travel, thus: The liberty of abode and of travel shall not be impaired except upon lawful order of the court or when necessary in the interest of national security, public safety, or public health (Article IV, Section 5). The 1987 Constitution has split the two freedoms into two distinct sentences and treats them differently, to wit: Sec. 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security, public safety, or public health, as may be provided by law. Petitioner thus theorizes that under the 1987 Constitution, Courts can impair the right to travel only on the grounds of "national security, public safety, or public health." The submission is not well taken.

Article III, Section 6 of the 1987 Constitution should be interpreted to mean that while the liberty of travel may be impaired even without Court Order, the appropriate executive officers or administrative authorities are not armed with arbitrary discretion to impose limitations. They can impose limits only on the basis of "national security, public safety, or public health" and "as may be provided by law," a limitive phrase which did not appear in the 1973 text (The Constitution, Bernas, Joaquin G.,S.J., Vol. I, First Edition, 1987, p. 263). Apparently, the phraseology in the 1987 Constitution was a reaction to the ban on international travel imposed under the previous regime when there was a Travel Processing Center, which issued certificates of eligibility to travel upon application of an interested party (See Salonga vs. Hermoso & Travel Processing Center, No. 53622, 25 April 1980, 97 SCRA 121). Article III, Section 6 of the 1987 Constitution should by no means be construed as delimiting the inherent power of the Courts to use all means necessary to carry their orders into effect in criminal cases pending before them. When by law jurisdiction is conferred on a Court or judicial officer, all auxillary writs, process and other means necessary to carry it into effect may be employed by such Court or officer (Rule 135, Section 6, Rules of Court). Petitioner's argument that the ruling in Manotoc, Jr., v. Court of Appeals, et al. (supra), to the effect that the condition imposed upon an accused admitted to bail to make himself available at all times whenever the Court requires his presence operates as a valid restriction on the right to travel no longer holds under the 1987 Constitution, is far from tenable. The nature and function of a bail bond has remained unchanged whether under the 1935, the 1973, or the 1987 Constitution. Besides, the Manotoc ruling on that point was but a reaffirmation of that laid down long before in People v. Uy Tuising, 61 Phil. 404 (1935). Petitioner is facing a criminal charge. He has posted bail but has violated the conditions thereof by failing to appear before the Court when required. Warrants for his arrest have been issued. Those orders and processes would be rendered nugatory if an accused were to be allowed to leave or to remain, at his pleasure, outside the territorial confines of the country. Holding an accused in a criminal case within the reach of the Courts by preventing his departure from the Philippines must be considered as a valid restriction on his right to travel so that he may be dealt with in accordance with law. The offended party in any criminal proceeding is the People of the Philippines. It is to their best interest that criminal prosecutions should run their course and proceed to finality without undue delay, with an accused holding himself amenable at all times to Court Orders and processes. WHEREFORE, the judgment under review is hereby AFFIRMED. Costs against petitioner, Ricardo C. Silverio. SO ORDERED. G.R. No. 134307 December 21, 1998 EDUARDO M. COJUANGCO, vs. SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, respondent. JR., petitioner,

QUISUMBING, J.: This petition for prohibition under Section 2 of Rule 65 of the Rules of Court seeks to dismiss Criminal Case No. 22018 entitled "People of the Philippines vs. Eduardo M. Cojuangco, Jr., et al." now pending before respondent Sandiganbayan (First Division), and to prohibit said court from further proceeding with the case. Petitioner invokes his constitutional

right to due process, a speedy trial, and a speedy determination of his cases before all judicial, quasi-judicial and administrative bodies. Further, he prays for the issuance of a Temporary Restraining Order and/or Writ of Preliminary Injunction enjoining respondent Sandiganbayan (First Division) from further enforcing and or implementing its order dated February 20, 1995 which bans petitioner from leaving the country except upon prior approval by said court. 1 Criminal Case No. 22018 is an offshoot of a complaint filed on January 12, 1990, by the Office of the Solicitor General before the Presidential Commission on Good Government (PCGG), docketed as I.S. No. 74, against the former Administrator of the Philippine Coconut Authority (PCA) and the former members of the PCA Governing Board, petitioner among them, for violation of Republic Act No. 3019, the Anti-Graft and Corrupt Practices Act, as amended. In said complaint, the respondents were charged "for having conspired and confederated together and taking undue advantage of their public positions and/or using their powers; authority, influence, connections or relationship with the former President Ferdinand E. Marcos and former First Lady, Imelda Romualdez-Marcos without authority, granted a donation in the amount of Two Million Pesos (P2,000,000.00) to the Philippine Coconut Producers Federation (COCOFED), a private entity, using PCA special fund, thereby giving COCOFED unwarranted benefits, advantage and preference through manifest partiality, evident bad faith and gross inexcusable negligence to the grave (sic) and prejudice of the Filipino people and to the Republic of the Philippines. 2 Subsequently, however, this Court ruled that all proceedings in the preliminary investigation conducted by the PCGG were null and void and the PCGG was directed to transmit the complaints and records of the case to the Office of the Ombudsman for appropriate action. 3 In a Resolution dated June 2, 1992, the panel of investigators recommended the filling of an Information for violation of Section 3(e) of R.A. No. 3019, as amended, against herein petitioner and five other respondent. As set out in the Memorandum of the Office of the Special Prosecutor, subsequently, the following relevant incidents took place: The above Resolution dated June 2, 1992 was referred by Assistant Ombudsman Abelardo L. Aportadera, Jr. to the Office of the Special Prosecutor for review and if warranted, for the preparation of the criminal information. In a memorandum dated July l5, 1992 the Office of the Special Prosecutor affirmed the recommendation as contained in the Resolution dated June 2, 1992. However, on August 19, 1992 then Ombudsman Conrado M. Vasquez ordered the panel of investigators to discuss the merits of the prejudicial question posed by respondent Lobregat. In a Memorandum dated November 18, 1992, the panel of investigators found that Civil Case No. 0033 does not pose a prejudicial question which will warrant the suspension of the filing of the criminal case. The aforesaid Memorandum was received by Assistant Ombudsman Abelardo L. Aportadera on December 1, 1992 who submitted his comment thereto on December 16, 1992 to then Ombudsman Vasquez.

On December 23, 1992, then Ombudsman Vasquez ordered the panel of investigators to go to the specifics and not the general averments on issue of prejudicial question. In a Memorandum dated December 1, 1993 the panel of investigators recommended that the motion to suspend proceedings be granted. On December 3, 1993 then Ombudsman Vasquez referred for comment to the Office of the Special Prosecutors the Memorandum dated December 1, 1993 of the panel of investigators on the issue of the existence of prejudicial question. In a Memorandum dated January 16, 1995, Special Prosecution Officer Daniel B. Jovacon, Jr. resolved that no prejudicial question exists to warrant the suspension of the criminal proceedings which recommendation was approved by then Ombudsman Vasquez on January 26, 1995. The Information, together with the case record of OMB-0-90-2806, was forwarded to the Office of the Ombudsman on February 10, 1995. On February 16, 1995 Criminal Case No. 22018 was filed with the Sandiganbayan and thereafter raffled to the First Division. On February 17, 1995, an order for the arrest of petitioner was issued by the respondent Sandiganbayan. On February l9, 1995 petitioner filed with respondent court an Opposition to Issuance of Warrant of Arrest with Motion For Leave To File Motion For Reconsideration of Ombudsman Resolutions. In his Opposition, petitioner alleged that since the only documents attached to the Information and submitted to respondent Sandiganbayan were the Resolution dated June 2, 1992 of the panel of investigators and the Memorandum dated January 16, 1995 of the Office of the Special Prosecutor, the same were not adequate for the determination of probable cause for the issuance of a warrant of arrest by respondent Sandiganbayan. Hence, petitioner claims the respondent Sandiganbayan should recall the warrant of arrest already issued or desist from issuing a warrant of arrest. Petitioner, avers, furthermore that the filing of the information was premature considering that he was not furnished a copy of the Ombudsman's Resolution in violation of Section 27 of R.A No. 6770 and prays that he be given leave to file a motion for reconsideration of the Ombudsman's Resolution dated June 2, 1992 and the Office of the Special Prosecutor's Memorandum dated January 16, 1995. On February 22, 1995, petitioner posted bail. On the same day he likewise filed, through counsel, a Manifestation stating that he was posting bail without prejudice to the Opposition To Issuance of Warrant of Arrest with Motion For Leave To File a Motion For Reconsideration of the Ombudsman's Resolution which he filed. In a Resolution dated February 20, 1995, the respondent Sandiganbayan barred petitioner from leaving the country except upon approval of the court. In an Order dated February 22, 1995, the respondent Sandiganbayan gave petitioner and the other accused twenty (20) days

to file their respective motions for reconsideration of the Ombudsman's Resolution with the Office of the Ombudsman. PCGG was likewise given a similar period within which to file its comments to the motions for reconsideration. Furthermore, the respondent Sandiganbayan ordered petitioner to supplement or amplify his existing motion on the issue of the propriety of the issuance of an Order of Arrest based merely on the resolution of the Ombudsman in support of the filing of the Information, among others. On March 9, 1995, petitioner filed a Memorandum in Amplification of Oppositon To Issuance of Warrant of Arrest. In a Resolution dated March 14, 1995, petitioner was granted additional fifteen (15) days or until March 29, 1995, within which to file his motion for reconsideration with the Office of the Ombudsman. Petitioner filed his motion for reconsideration on March 28, 1995. In a Resolution dated, April 3, 1995, the respondent Sandiganbayan denied petitioner's motion seeking the recall of the issuance of the warrant for his arrest. On April 7, 1995, petitioner filed a motion for reconsideration of the Resolution dated April 3, 1995 of the respondent Sandiganbayan. On May 25, 1995, petitioner was conditionally arraigned pleading not guilty to the Information. The arraignment was undertaken solely to accommodate the petitioner in his request to travel pending the determination of probable cause against him at the reinvestigation stage. The conditional arraignment is subject to the condition that if petitioner is exonerated at the preliminary investigation, the arraignment is set aside. On the other hand, should there be cause against the petitioner either as already charged or a separate charge which might be related to the case pending, the arraignment will not serve as basis for the invocation of the right against double jeopardy. In the meantime, in a Memorandum dated October 22, 1995, Special Prosecution Officer Victorio U. Tabanguil found no probable cause to warrant the filing against petitioner and the other accused in Criminal Case No. 22018 and recommended the dismissal of the case. The recommendation for dismissal was approved by the Honorable Ombudsman on November 15, 1996. On December 6, 1996, Special Prosecutors Officer Victorio U. Tabanguil filed a Manifestation attaching a copy of the Memorandum dated October 22, 1995 with the respondent Sandiganbayan for its consideration. On December 13, 1996 petitioner filed an Urgent Motion To Dismiss alleging that with the reversal of the earlier findings of the Ombudsman of probable cause, there was therefore nothing on record before the respondent Sandiganbayan which would warrant the issuance of a warrant of arrest and the assumption of jurisdiction over the instant case. On December 23, 1996 the Office of the Solicitor General, in representation of the OCGG, filed with the Office of the Special

Prosecutor a motion for reconsideration of the Memorandum dated October 22, 1996 recommending the dismissal of the case against petitioner and the other accused in Criminal Case No. 22018. In an Order dated January 6, 1997, Special Prosecution Officer Victorio U. Tabanguil merely noted the motion for reconsideration dated December 23, 1996 oft he Office of the Solicitor General. On January 13, 1997, petitioner filed a Motion To Strike Out Alternatively, Opposition To Complaint's Motion For Reconsideration dated December 23, 1996 alleging that the motion was filed out of time. In an Order dated January 9, 1997, the respondent Sandiganbayan ordered the prosecution to justify the relationship that may be established with respect to the COCOFED on one hand and the Philippine Coconut Authority on the other, as a basis for justifying the position of the prosecution in the case. Furthermore, upon information provided by Prosecutors Tabanguil that the Office of the Solicitor General has sought a reconsideration on the desire of the prosecution to withdraw the information, the Office of the Solicitor General was given fifteen (15) days to submit its comment to the Motion to Withdraw Information. The petitioner and the other accused were given the same period to reply to the comment if they so desire. After which the matter will be deemed submitted for resolution. On January 17, 1997, the prosecution filed its compliance to the Order dated January 9, 1997. On the other hand, the Office of the Solicitor General filed its comment on January 24, 1997. In an Order dated February 4, 1997, the respondent Sandiganbayan ordered the PCGG lawyers to "present themeselves before the respondent court and respond to the claim of the OSG that the exhibits necessary are with the PCGG so that the Republic might effectively substantiate its position that probable cause exists. Furthermore, it is as much the function of the court to determine the existence of probable cause and the propriety of the withdrawal of the Information to be assured that the evidence for the complainant has been properly presented or the accused is properly protected at preliminary investigation. In an Order dated February 17, 1997, the respondent Sandiganbayan, with the agreement of the parties, gave the Office of the Solicitor General ten (10) days within which to submit some form of cataloging and explanation of the documents on record to the prosecution. On the other hand, the prosecution was given fifteen (15) days from receipt of the submission within which to review the matter once more and to respond thereat. On June 13, 1997, the PCGG filed its Entry of Appearance dated June 3, 1997. On June 19, 1997, petitioner filed a Second Motion To Resolve the Urgent Motion To Dismiss dated December 12, 1996. On July 3, 1997, petitioner filed a Motion to Strike Out (Re PCGG's Entry of Appearane) dated June 30, 1997.

On July 16, 1997, the PCGG filed a Opposition to the Motion to Strike Out (Re: PCGG's Entry of Appearance). On July 18, 1997, petitioner filed a Reply to the Oppositions to Strike Out. On July 31, 1997, the PCGG filed a Rejoinder to the Reply of petitioner. On July 23, 1998, petitioner filed a Third Motion To Resolve the Urgent Motion To Dismiss dated December 12, 1996. In an Order dated January 26, 1998, respondent Sandiganbayan duly noted petitioner's Motion to Dismiss. 4 Hence, the present petition. On July 22, 1998, the Court issued a resolution requiring respondents to file their respective comments to the petition. 5 On August 5, 1998, petitioner filed a motion reiterating his application for temporary restraining order and/or writ of prelimary injunction with urgent motion for hearing thereon 6 citing the urgency of lifting the travel restriction on him in view of the various problems involving the investments of San Miguel Corporation (SMC) abroad which must be immediately attended to by petitioner as duly elected Chairman and Chief Executive Officer of SMC. Petitioner asserts that quite often, it becomes necessary for him to attend meetings and conferences abroad where attendance must be confirmed promptly. Considering that he must first secure the permission of respondent Sandiganbayan before he can travel abroad and abide by the conditions imposed by said court upon the grant of such permission, petitioner contends that it becomes impossible for him to immediately attend to the aforecited tasks. On September 2, 1998, the Court noted the respective comments to the petition filed by the Office of the Special Prosecutor and the Solicitor General and required petitioner to file a consolidated reply within ten (10) days from notice. 7 On September 3, 1998, petitioner filed a Second Motion Reiterating Application for Temporary Restraining Order and/or Writ of Preliminary Injunction with Urgent Motion for Hearing, 8 arguing among others that the continued maintenance of the hold-departure order against him has deleterious consequence not only on him personally but also on San Miguel Corporation, a publicly listed stock company, of which he is now Chairman and Executive Officer. 9 On September 7, 1998, the Court resolved to defer action on the aforementioned second motion reiterating the application for the issuance of a temporary restraining order and/or a writ of preliminary injunction until the filing of petitioner's Consolidated Reply and required the Sandiganbayan to file its own Comment on the petition in view of the Comment filed by the Office of the Special Prosecutor divergent from the position taken by respondent Sandiganbayan. 10 On September 10, 1998, petitioner filed a Consolidated Reply 11 and prayed that his Second Application for a Tempory Restraining Order and/or Writ of Preliminary Injunction with Urgent Motion for hearing dated September 2, 1998 be now acted upon.

On September 17, 1998, respondent Sandiganbayan filed a motion for extension of time to file its Comment to the petition. Subsequently, petitioner filed his Third Motion Reiterating Application for Temporary Restraining Order and/or Writ of Preliminary Injunction with Urgent Motion for Hearing 12 in view of the urgency of lifting the ban on foreign travel imposed on him by respondent Sandiganbayan. After respondent Sandiganbayan filed its comment on October 5, 1998, the Court in its Resolution dated October 7, 1998, noted the aforesaid comment and resolved to set the case for oral argument on October 21, 1998. 13 During the oral argument, the Court suggested that the parties take up in their arguments the following issues: (1) whether the warrant of arrest issued by respondent Sandiganbayan is null and void, or should now be lifted if initially valid; (2) whether petitioner's basic rights to due process, speedy trial and speedy disposition of the case have been violated as to warrant dismissal of Criminal Case No. 22018; and (3) whether the ban on foreign travel imposed on petitioner per Order of February 20, 1995 should be vacated to enable petitioner to go abroad without prior permission of, and other restrictions imposed by the respondent Sandiganbayan. 14 After hearing the arguments of the parties, the Court resolved to require them to submit their respective memoranda on the related issues taken up on the hearing including the merits of the case within twenty (20) days. The motion of counsel for petitioner that the issue of lifting the ban on foreign travel imposed on petitioner be resolved first, was held under advisement. 15 On November 6, 1998, petitioner filed another Motion to Resolve Petitioner's "Motion for Issuance of a Temporary Restraining Order or Writ of Preliminary Injunction" Enjoining Enforcement of Respondent Sandiganbayan's Order dated February 20, 1995 (Hold Departure Order) with an alternative prayer to travel abroad within a period of six (6) months. 16 In its Resolution dated November 9, 1998, the Court noted the aforesaid motion and directed petitioner that in the meanwhile, he may address his request for permission to travel abroad to the Sandiganbayan. 17 On November 12, 1998, petitioner filed a Motion for Reconsideration of the Court's resolution dated November 9, 1998 and argued that: xxx xxx xxx (6) While the petitioner may indeed obtain some relief by addressing his "prayer for permission to travel abroad to the Sandiganbayan" to a large extent, this defeats the purpose of the petition because petitioner has precisely come to the Supreme Court to obtain relief from an oppressive regime of authorization to travel abroad that the Order of the Sandiganbayan of February 20, 1995 (Annex 'E', Petition) has imposed. Significantly, not any of the respondents have opposed

petitioner's application for the issuance of temporary restraining order, and/or writ of preliminary injunction or for permission to travel abroad. 18 On November 20, 1998, petitioner filed a Manifestation 19 in support of his motion for reconsideration, setting forth the urgency of lifting the ban on foreign travel imposed on him in view of the need to oversee the critical stages in the international operations of SMC as its Chairman and Chief Executive Officer. On November 20, 1998, the Office of the Solicitor General filed a Manifestation indicating that it is not interposing any objection to petitioner's prayer that he be allowed to travel abroad. With the submission of the parties' respective memoranda, the Court now proceeds to resolve the petition. As postulated during the oral argument, three main issues confront us in this petition, to wit: (1) whether the warrant of arrest issued by respondent Sandiganbayan is null and void, or should now be lifted if initially valid; (2) whether petitioner's basic rights to due process, speedy trial and speedy disposition of the case have been violated as to warrant dismissal of Criminal Case No. 22018; and (3) whether the ban on foreign travel imposed on petitioner per Order of February 20, 1995 should be vacated to enable petitioner to go abroad without prior permission of and other restrictions imposed by the respondent Sandiganbayan. 20 On the first issue, petitioner and the Office of the Special Prosecutor both argue that the warrant of arrest issued by respondent Sandiganbayan is null and void for lack of sufficient basis upon which it could have "personally" determined the existence of probable cause to issue the warrant of arrest against him. They contend that there was a violation of Section 2, Article III of the Constitution because the Information in Criminal Case No. 22018 was accompanied only by the Resolution dated June 2, 1992 of the Panel of Graft Investigators of the Office of the Ombudsman recommending the filing of the information and the Memorandum dated January 16, 1995 of the Office of the Special Prosecutor denying the existence of a prejudicial question which will warrant the suspension of the filing of the criminal case. Their argument is principally anchored on the pronouncements made in the case of Ho vs. People 21 that reliance on the prosecutor's report alone is not sufficient in determining whether there is probable cause for the issuance of a warrant of arrest. Consequent to the nullity of the warrant of arrest, petitioner further argues that the Sandiganbayan has not acquired jurisdiction over him and is without power to exercise the same. However, the Office of the Special Prosecutor and the Office of the Solicitor General maintain that any infirmity that may have attended the issuance of the warrant of arrest was cured by petitioner's voluntary submission to the jurisdiction of the respondent Sandiganbayan when petitioner posted bail and subsequently invoked the jurisdiction of the Sandiganbayan by filing numerous motions wherein he sought affirmative reliefs.

Now, pertinent to the issue at hand is the second clause of Section 2, Article III of the 1987 Constitution, which provides that: Sec. 2. . . . no search warrant or warrant of arrest shall issue except upon a probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. (Emphasis supplied) In Ho vs. People, 22 the Court had the opportunity to elucidate on the matter of determining of probable cause to merit the issuance of a warrant of arrest: First, . . . the determination of probable cause by the prosecutor is for a purpose different from that which is to be made by the judge. Whether there is reasonable ground to believe that the accused is guilty of the offense charged and should be held for trial is what the prosecutor passes upon. The judge, on the other hand, determines whether a warrant of arrest should be issued against the accused, i.e., whether there is a necessity for placing him under immediate custody in order not to frustrate the ends of justice. Thus, even if both should base their findings on one and the same proceeding or evidence, there should be no confusion as to their distinct objectives. Second, since their objectives are different, the judge cannot rely solely on the report of the prosecutor in finding probable cause to justify the issuance of a warrant of arrest. Obviously and understandably, the contents of the prosecutor's report will support his own conclusion that there is reason to charge the accused of an offense and hold him for trial. However, the judge must decide independently. Hence, he must have supporting evidence, other than the prosecutor's bare report, upon which to legally sustain his own findings on the existence (or nonexistence) of a probable cause to issue an arrest order. This responsibility of determining personally and independently the existence or nonexistence of probable cause is lodged in him by no less than the most basic law of the land. Parenthetically, the prosecutor could ease the burden of the judge and speed up the litigation process by forwarding to the latter not only the information and his bare resolution finding probable cause, but also so much of the records and the evidence on hand as to enable His Honor to make his personal and separate judicial finding on whether to issue a warrant of arrest. Lastly, it is not required that the complete or entire records of the case during the preliminary investigation be submitted to and examined by the judge. We do not intend to unduly burden trial courts by obliging them to examine the complete records of every case all the time simply for the purpose of ordering the arrest of an accused. What is required, rather, is that the judge must have sufficient supporting documents (such as the complaint, affidavits, counter-affidavits, sworn statements of witnesses or transcripts of stenographic notes, if any) upon which to make his independent judgment or, at the very least, upon which to verify the findings of the prosecutor as to the existence of probable cause. The point is: he cannot rely solely and entirely on the prosecutor's recommendation, as Respondent Court did in this case. Although the prosecutor enjoys the legal presumption of regularity in the performance of his official duties and functions, which in turn gives his report the presumption of accuracy, the Constitution, we repeat, commands the judge to personally determine probable cause in the issuance of warrants of arrest. This Court has consistently held that a judge fails in

his bounden duty if he relies merely on the certification or the report of the investigating officer. 23 As alleged by petitioner, in the case at bar, the Sandiganbayan had two pieces of documents to consider when it resolved to issue the warrant of arrest against the accused: (1) the Resolution dated June 2, 1992 of the Panel of Investigators of the Office of the Ombudsman recommending the filing of the Information and (2) the Memorandum dated June 16, 1995 of the Office of the Special Prosecutor denying the existence of a prejudicial question which will warrant the suspension of the criminal case. The Sandiganbayan had nothing more to support its resolution. In Roberts vs. Court of Appeals, 24 we struck down as invalid an order for the issuance of a warrant of arrest which were based only on "the information, amended information and Joint Resolution", without the benefit of the records or evidence supporting the prosecutor's finding of probable cause. And in Ho vs. People, 25 we declared that respondent "palpably committed grave abuse of discretion in ipso facto issuing the challenged warrant of arrest on the sole basis of the prosecutor's findings and recommendation, and without determining on its own the issue of probable cause based on evidence other than such bare findings and recommendation. 26 Similarly, we are now constrained to rule that herein respondent court failed to abide by the constitutional mandate of personally determining the existence of probable cause before issuing a warrant of arrest. For the two cited documents were the product of somebody else's determination, insufficient to support a finding of probable cause by the Sandiganbayan. Hence, the warrant of arrest issued by respondent court on February 17, 1995 against herein petitioner is palpably invalid. Consequent to the nullity of the warrant of arrest, the crucial issue now posed is whether or not respondent Sandiganbayan could still exercise jurisdiction over the petitioner and proceed with the trial of the case. As already adverted to, the Office of the Special Prosecutor and the Office of the Solicitor General are in agreement, that whatever infirmity might have attended the issuance of the warrant of arrest against petitioner, it was cured by petitioner's subsequent act of voluntarily submitting to respondent court's jurisdiction by posting his bail and filing the following pleadings which sought affirmative relief, to writ: (1) Opposition to Issuance of Warrant of Arrest with Motion for Leave to File Motion for Reconsideration; (2) Motion for extension of time to file Motion for Reconsideration. (3) seven Motions to Travel Abroad and two Motions for Extension of time to stay abroad. 27Hence, they contend that respondent court's jurisdiction over petitioner has remained in effect. Petitioner objects to this contention, and asserts that "since the warrant of arrest issued by respondent Sandiganbayan is null and void, it never acquired jurisdiction over the person of the petitioner; as a consequence, it never acquired jurisdiction to take cognizance of the offense charged and to issue any order adverse to the rights of petitioner, including an Order restricting his right to travel. 28 According to petitioner, the submission of both the Office of the Special Prosecutor and the Office of the Solicitor General is not only absurd but also oppressive and offensive to the Bill Rights since it would mean that to preserve his right against the issuance of a warrant of arrest without probable cause determined in accordance with Sec. 2, Article III of the Constitution, petitioner should have allowed himself to be incarcerated or imprisoned from the time the warrant of arrest was issued on February 20, 1995 up to the present, or for more than three (3) years now, and continue to be imprisoned until the Supreme Court decides to declare the arrest void. 29 On this score, the rule is well-settled that the giving or posting of bail by the accused is tantamount to submission of his person to the jurisdiction of the court. 30 Thus, it has been held that:

When a defendant in a criminal case is brought before a competent court by virtue of a warrant of arrest or otherwise, in order to avoid the submission of his body to the jurisdiction of the court he must raise the question of the court's jurisdiction over his person at the very earliest opportunity. If he gives bail, demurs to the complaint or files any dilatory plea or pleads to the merits, he thereby gives the court jurisdiction over his person. (State ex rel. John Brown vs. Fitzgerald, 51 Minn., 534) xxx xxx xxx Conceding again that the warrant issued in this case was void for the reason that no probable cause was found by the court before issuing it, the defendant waived all his rights to object to the same by appearing and giving bond. 31 By posting bail, herein petitioner cannot claim exemption effect of being subject to the jurisdiction of respondent court. While petitioner has exerted efforts to continue disputing the validity of the issuance of the warrant of arrest despite his posting bail, his claim has been negated when he himself invoked the jurisdiction of respondent court through the filing of various motions that sought other affirmative reliefs. As ruled in La Naval Drug vs. CA 32. [L]ack of jurisdiction over the person of the defendant may be waived either expressly or impliedly. When a defendant voluntarily appears, he is deemed to have submitted himself to the jurisdiction of the court. If he so wishes not to waive this defense, he must do so seasonably by motion for the purpose of objecting to the jurisdiction of the court, otherwise, he shall be deemed to have submitted himself to that jurisdiction. Moreover, "[w]here the appearance is by motion for the purpose of objecting to the jurisdiction of the court over the person, it must be for the sole and separate purpose of objecting to said jurisdiction. If the appearance is for any other purpose, the defendant is deemed to have submitted himself to the jurisdiction of the court. Such an appearance gives the court jurisdiction over the person. 33 Verily, petitioner's participation in the proceedings before the Sandiganbayan was not confined to his opposition to the issuance of a warrant of arrest but also covered other matters which called for respondent court's exercise of its jurisdiction. Petitioner may not be heard now to deny said court's jurisdiction over him. Nor can we ignore the long line of precedents declaring that where the accused had posted bail, as required, to obtain his provisional liberty, "it becomes futile to assail the validity of the issuance of the warrants of arrest. 34 As to petitioner's contention that he should have just allowed himself to stay in jail pending the resolution of his opposition to the issuance of the warrant of arrest against him, if only to avoid waiving his right to question the jurisdiction of respondent court, the Office of the Special Prosecutor has pointed out that petitioner is not without a remedy. Petitioner could have filed a petition for certiorari and prohibition with prayer for the issuance of a temporary restraining order, rather than actively participate in the proceedings before the Sandiganbayan. And as exemplified by the case of Allado vs. Diokno, 35 this remedy has already proved to be effective. Against the continued exercise of jurisdiction by respondent Sandiganbayan in Criminal Case No. 22018, petitioner also invokes the Memorandum of the Office of the Special Prosecutor dated October 22, 1995 recommending the dismissal of the case against him due

to the absence of probable cause, which was later on approved by the Ombudsman on November 15, 1996. Citing the case of Torralba vs. Sandiganbayan, 36 petitioner argues that this Memorandum is an integral part of the preliminary investigation and should take precedence notwithstanding the fact that the same was made after the filing of the Information before the Sandiganbayan, for to deny any efficacy to the finding of the Office of the Special Prosecutor would negate the right of the petitioner to a preliminary investigation. The well-entrenched rule however, as laid down by the case of Crespo vs. Mogul 37 is that: . . . once a complaint or information is filed in Court any disposition of the case as its dismissal or the conviction or acquittal of the accused rests in the sound discretion of the Court. Although the fiscal retains the direction and control of the prosecution of criminal cases even while the case is already in Court he cannot impose his opinion on the trial court. The Court is the best and sole judge on what to do with the case before it. The determination of the case is within its exclusive jurisdiction and competence. A motion to dismiss the case filed by the fiscal should be addressed to the Court who has the option to grant or deny the same. It does nor matter if this is done before or after the arraignment of the accused or that the motion was filed after a reinvestigation or upon instructions of the Secretary of Justice who reviewed the records of the investigation. Nevertheless, petitioner claims exception to this rule by making this distinction: b. The preliminary investigation in Crespo vs. Mogul, supra, was conducted by the Office of the Provincial Fiscal and, following established procedure with respect to such preliminary investigations, the preliminary investigation conducted by the fiscal, in the language of Crespo, is "terminated upon the filing of the information in the proper court" (at p. 470). On the other hand, the instant case involves a preliminary investigation conducted by the Office of the Special Prosecutor pursuant to Sec. 11[4](a), and under Sec. 27 of R.A. No. 6770. In preliminary investigations conducted by the Office of the Special Prosecutor, the respondent has the right to file a motion for reconsideration of any resolution within five (5) days from receipt of written notice, and pursuant to Sec. 7, Rule II of Administrative Order No. 7 (Rules of Procedure of the Ombudsman), the respondent has the right to file a motion for reconsideration within fifteen (15) days from notice of the Resolution of the Ombudsman. Until the motion for reconsideration is resolved, preliminary investigation is not terminated notwithstanding filing of information in court. In the instant case, no copy of the Resolution of the Office of the Special Prosecutor which brought about the filing of the Information, was served on the petitioner; consequently, when the Information was filed, the preliminary investigation had not yet been terminated. It follows that the Resolution of the Office of the Special Prosecutor (approved by the Ombudsman) resolving in petitioner's favor the "Motion for Reconsideration" he had filed, now finding no probable cause, was an integral part of the preliminary investigation, not subject to review by the Sandiganbayan (see Torralba vs. Sandiganbayan, 230 SCRA 33 [1994]. 38 Petitioner's reliance on Torralba vs. Sandiganbayan is not, in our view, persuasive. In that case the petitioners were not given any chance at all to seek reconsideration from the Ombudsman's final resolution because they were not furnished with a copy of the final resolution of the Ombudsman that could have enabled them to file a motion for reconsideration. As a result, the Court declared that "petitioners were not only effectively denied the opportunity to file a motion for reconsideration of the Ombudsman's final

resolution but also deprived of their right to a full preliminary investigation preparatory to the filing of the information against them. 39 In the case at bar, however, notwithstanding the filing of the Information before the Sandiganbayan, petitioner was able to file a motion for reconsideration of the Ombudsman's Resolution with leave of court, and in fact his two motions for extensions to file the same were granted by the respondent court. 40 This eventually paved the way for the filing of subsequent Memorandum of the Office of the Special Prosecutor, which was later on approved by the Ombudsman, recommending the dismissal of the case against him. However, since the Information has already been filed before the Sandigabayan, the resolution of the aforesaid recommendation now lies within the jurisdiction and discretion of respondent court. Parenthetically, in the Torralba case, we did not altogether deprive the Sandiganbayan of its jurisdiction to proceed with the case, despite the defect in the conduct of the preliminary investigation, since we declared that: The incomplete preliminary investigation in this case, however, does not warrant the quashal of the information, nor should it obliterate the proceedings already had. Neither is the court's jurisdiction nor validity of an information adversely affected by deficiencies in the preliminary investigation. Instead, the Sandiganbayan is to hold in abeyance any further proceedings therein and to remand the case to the Office of the Ombudsman for the completion of the preliminary investigation, the outcome of which shall then be indorsed to Sandiganbayan for its appropriate action. 41 (Emphasis supplied) Clearly, consistent with the rule in Crespo vs. Mogul, after the filing of the information in court, "any disposition of the case as to its dismissal or the conviction or acquittal of the accused rests in the sound discretion of the Court. 42 Proceeding now to the second issue, petitioner maintains that the long delay that characterized the proceedings in Criminal Case No. 22018 before respondent Sandiganbayan has resulted in the violation of his Constitutional right to a speedy trial and a speedy determination of his case. Thus, petitioner submits that: 409. It has been more than three (3) years since the Information in Criminal Case No. 22018 was filed with respondent Sandiganbayan. More than one and a half (1/2) years have elapsed since the Office of the Special Prosecutor filed its Manifestation seeking the dismissal of the case. Based on the Office of the Special Prosecutor's finding of the absence of probable cause, petitioner filed on December 13, 1996, an "Urgent Motion To Dismiss". Three times, on March 24, 1997, June 18, 1997 and January 23, 1998, petitioner has sought resolution of his "Urgent Motion To Dismiss." These notwithstanding, the dismissal of the information as to petitioner remains pending and petitioner continues to be under criminal indictment constrained to suffer without justification in law and the Constitution, the humiliation, the restraints to liberty and the tormenting anxieties of an accused. 43 Respondents concede that there has indeed been some delay but deny that it amounted to a violation of petitioner's right of speedy disposition of his case. They cite as justification the reorganization of the Sandiganbayan on September 23, 1997 wherein it was reconstituted into five (5) Divisions; 44 (2) the filing of motions by petitioner seeking affirmative reliefs from the Sandiganbayan; (3) the failure of petitioner himself to invoke his right to speedy resolution of his pending motions prior to the filing of this petition; 45 (4) the heavy caseload of respondent court. 46

The right to a speedy disposition of a case, like the right to speedy trial, is deemed violated only when the proceeding is attended by vexatious, capricious, and oppressive delays. 47 It should be emphasized that the factors that must be taken into account in determining whether this constitutional rights has been violated are as follows: (1) the length of delay, (2) the reason for such delay and (3) the assertion or failure to assert such right by the accused, and the prejudice caused by the delay. 48 As in previous occasions, the Court takes judicial cognizance of the fact that structural reorganizations 49 and the ever increasing case load of courts have adversely affected the speedy disposition of the cases pending before them. In the instant case, however, the Court finds that delay concerns the resolution of petitioner's "Urgent Motion to Dismiss", which is an offshoot of the Memorandum of the Office of the Special Prosecutor recommending the dismissal of the case. Such delay is now far from excusable. Petitioner's Motion to Dismiss has been filed as early as December 13, 1996 and, on three occasions, petitioner has moved for the urgent resolution of this motion. 50What further militates against further delay in resolving this case is the fact that the government prosecutors themeselves concede that this case is of paramount importance, involving as it does "the recovery of the ill-gotten wealth or government funds, unlawfully used or misused by persons close or percieved to be close to the Marcoses. 51 Respondent court declared in its Order dated February 17, 1997 that the matter would be deemed submitted for resolution upon compliance with the Office of the Special Prosecutor as to whether there is indeed no probable cause against petitioner, 52 which compliance was submitted by the Office of the Special Prosecutor on March 17, 1997. 53 Under these circumstances, the Court does find the period of more than one year that elapsed for resolving petitioner's motion to dismiss quite long, considering that all pertinent pleadings required by the Sandiganbayan were already submitted. Even if petitioner himself might have contributed to said delay, as contended by respondent, in our view it is best that the case be resolved on the merits by the Sandiganbayan with due regard to petitioner's right to due process, speedy trial and speedy disposition of the case against him and his co-accused. Finally, with respect to the issue of whether or not the ban on foreign travel should be continued, as imposed on petitioner by respondent Sandiganbayan per its Order dated February 20, 1995 with accompanying restrictions in effect, we resolve to rule in the negative. The travel ban should be lifted, considering all the circumstances now prevailing. The rule laid down by this Court is that a person facing a criminal indictment and provisionally released on bail does not have an unrestricted right to travel, the reason being that a person's right to travel is subject to the usual constraints imposed by the very necessity of safeguarding the system of justice. 54 But, significantly, the Office of the Solicitor General in its Manifestation dated November 20, 1998 indicated that it is not interposing any objection to petitioner's prayer that he be allowed to travel abroad based on the following considerations: . . . (1) that it is well within the power of this Court to supend its own rules, including the second paragraph, Section 23, Rule 114 of the Rules of Court; (2) that it has been shown in the past that the petitioner has always returned to the Philippines after the expiration of the period of his allowed travel; and (3) that petitioner, now Chairman of the Board of San Miguel Corporation, may be constrained to leave the country for business purposes, more often than he had done in the past, . . . . 55 It however recommended that the period of travel should be reduced to three (3) months instead of six (6) months as requested by petitioner and that the latter should be required to post an additional cash bond equivalent to the present cash bond posted by him. 56

Moreover, prescinding from our initial declaration that the issuance of warrant of arrest against petitioner by respondent court is invalid, it now becomes necessary that there be strong and compelling reasons to justify the continued restriction on petitioner's right to travel abroad. Admittedly, all of petitioner's previous requests to travel abroad has been granted and that, as confirmed by the Office of the Solicitor General, that petitioner has always returned to the Philippines and complied with the restrictions imposed on him. The necessity of further denying petitioner's right to travel abroad, with attendant restrictions, appears less than clear. The risk of flights is further diminished in view of petitioner's recent reinstatement as Chairman and Chief Executive Officer of San Miguel Corporation, though he has now more justification to travel so as to oversee the entire operations of that company. In this regard, it has to be conceded that this assumption of such vital post has come at a time when the current economic crisis has adversely affected the international operations of many companies, including San Miguel. The need to travel abroad frequently on the part of petitioner, to formulate and implement the necessary corporate strategies and decisions, could not be forestalled. These considerations affecting the petitioner's duties to a publicly held company, militate against imposing further restrictions on petitioner's right to travel abroad. WHEREFORE, the Court hereby resolves to DISMISS the petition insofar as the dismissal of Criminal Case No. 22018 against the petitioner is concerned. Respondent Sandiganbayan (First Division) is hereby ordered to proceed with the resolution of the pending motions and incidents in Criminal Case No. 22018 with utmost dispatch. Meanwhile, the Resolution of the Sandiganbayan (First Division), dated February 20, 1995, imposing a ban on petitioner's travel abroad without its prior approval pending the resolution of Criminal Case No. 22018 is, for the reasons heretofore advanced, hereby LIFTED for a period of three (3) months counted from the finality of this decision. Any similar request during the pendency of said case before the Sandiganbayan shall be addressed to that court. No pronouncement as to cost. SO ORDERED. G.R. No. 141529 June 6, 2001

FRANCISCO YAP, JR., aka EDWIN YAP, petitioner, vs. COURT OF APPEALS and THE PEOPLE OF THE PHILIPPINES, respondents. GONZAGA-REYES, J.: The right against excessive bail, and the liberty of abode and travel, are being invoked to set aside two resolutions of the Court of Appeals which fixed bail at P5,500,000.00 and imposed conditions on change of residence and travel abroad. For misappropriating amounts equivalent to P5,500,000.00, petitioner was convicted of estafa by the Regional Trial Court of Pasig City 1 and was sentenced to four years and two months of prision correctional, as minimum to eight years of prision mayor as maximum, "in addition to one (1) year for each additional P10,000.00 in excess of P22,000.00 but in no case shall it exceed twenty (20) years."2 He filed a notice of appeal, and moved to be allowed provisional liberty under the cash bond he had filed earlier in the proceedings. The motion was denied by the trial court in an order dated February 17,1999. After the records of the case were transmitted to the Court of Appeals, petitioner filed with the said court a Motion to Fix Bail For the Provisional Liberty of Accused Appellant Pending Appeal, invoking the last paragraph of Section 5, Rule 114 of the 1997 Revised Rules of Court. Asked to comment on this motion, the Solicitor General opined that petitioner may be allowed to post bail in the amount of P5,500,000.00 and be required to secure "a

certification/guaranty from the Mayor of the place of his residence that he is a resident of the area and that he will remain to be so until final judgment is rendered or in case he transfers residence, it must be with prior notice to the court and private complainant."3 Petitioner filed a Reply, contending that the proposed bail ofP5,500,000.00 was violative of his right against excessive bail. The assailed resolution of the Court of Appeals4, issued on October 6, 1999, upheld the recommendation of the Solicitor General; thus, its dispositive portion reads: WHEREFORE, premises considered, the "Motion to Fix Bail For Provisional Liberty of Accused-Appellant Pending Appeal" is hereby GRANTED. Accusedappellant Francisco Yap, Jr., a.k.a. Edwin Yap is hereby ALLOWED TO POST BAIL in the amount of Five Million Five Hundred Thousand (P5,500,000.00) Pesos, subject to the following conditions, viz. : (1) He (accused-appellant) secures a certification/guaranty from the Mayor of the place of his residence that he is a resident of the area and that he will remain to be a resident therein until final judgment is rendered or in case he transfers residence, it must be with prior notice to the court; (2) The Commission of lmmigration and Deportation (CID) is hereby directed to issue a hold departure order against accused-appellant; and (3) The accused-appellant shall forthwith surrender his passport to the Division Clerk of Court for safekeeping until the court orders its return; (4) Any violation of the aforesaid conditions shall cause the forfeiture of accused-appellant's bail bond, the dismissal of appeal and his immediate arrest and confinement in jail. SO ORDERED.
5

the amount of bail. He prays that bail be reduced to at least P40,000.00, citing the maximum amount of bail that can be posted for the crime of estafa under the 1996 Bail Bond Guide, or P20,000.00, equivalent to the amount of bail he posted during the trial of the case.6 On the other hand, the Solicitor General maintains that no grave abuse of discretion could be ascribed to the Court of Appeals for fixing the amount of bail at P5,500,000.00 considering the severity of the penalty imposed, the weight of the evidence against petitioner, and the gravity of the offense of which petitioner was convicted by the RTC. He asserted that the P5,500,000.00 not only corresponded to civil liability but also to the amount of fraud imputed to petitioner. The Solicitor General further pointed out the probability of flight in case petitioner is released on bail, it having been established that petitioner was in possession of a valid passport and visa and had in fact left the country several times during the course of the proceedings in the lower court. It was also shown that petitioner used different names in his business transactions and had several abodes in different parts of the country. As for the conditions imposed by the bail bond, the Solicitor General advanced that all that the Court of Appeals requires is notice in case of change of address; it does not in any way impair petitioner's right to change abode for as long as the court is apprised of his change of residence during the pendency of the appeal. Petitioner's case falls within the provisions of Section 5, Rule 114 of the 1997 Rules of Court which states: SEC. 5. Bail, when discretionary. -- Upon conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua or life imprisonment, the court, on application, may admit the accused to bail. The court, in its discretion, may allow the accused to continue on provisional liberty under the same bail bond during the period to appeal subject to the consent of the bondsman. If the court imposed a penalty of imprisonment exceeding six (6) years, but not more than twenty (20) years, the accused shall be denied bail, or his bail previously granted shall be cancelled, upon a showing by the prosecution, with notice to the accused, of the following or other similar circumstances: (a) That the accused is a recidivist, quasi-recidivist, or habitual delinquent, or has committed the crime aggravated by the circumstance of reiteration; (b) That the accused is found to have previously escaped from legal confinement, evaded sentence, or has violated the conditions of his bail without valid justification; (c) That the accused committed the offense while on probation, parole, or under conditional pardon; (d) That the circumstances of the accused or his case indicate the probability of flight if released on bail; or (e) That there is undue risk that during the pendency of the appeal, the accused may commit another crime. The appellate court may review the resolution of the Regional Trial Court, on motion and with notice to the adverse party.7

A motion for reconsideration was filed, seeking the reduction of the amount of bail fixed by respondent court, but was denied in a resolution issued on November 25, 1999. Hence, this petition. Petitioner sets out the following assignments of error: The respondent Court of Appeals committed grave abuse of discretion in fixing the bail of the provisional liberty of petitioner pending appeal in the amount of P5 .5 million. The respondent Court of Appeals committed grave abuse of discretion in basing the bail for the provisional liberty of the petitioner on his civil liability. The respondent Court of Appeals unduly restricted petitioner's constitutional liberty of abode and travel in imposing the other conditions for the grant of bail. Petitioner contends that the Court of Appeals, by setting bail at a prohibitory amount, effectively denied him his right to bail. He challenges the legal basis of respondent court for fixing bail at P5,500,000.00, which is equivalent to the amount of his civil liability to private complainant Manila Mahogany Marketing Corporation, and argues that the Rules of Court never intended for the civil liability of the accused to be a guideline or basis for determining

There is no question that in the present case the Court of Appeals exercised its discretion in favor of allowing bail to petitioner on appeal. Respondent court stated that it was doing so for "humanitarian reasons", and despite a perceived high risk of flight, as by petitioner's admission he went out of the country several times during the pendency of the case, for which reason the court deemed it necessary to peg the amount of bail at P5,500,000.00. The prohibition against requiring excessive bail is enshrined in the Constitution. 8 The obvious rationale, as declared in the leading case of De la Camara vs. Enage,9 is that imposing bail in an excessive amount could render meaningless the right to bail. Thus, in Villaseor vs. Abano,10 this Court made the pronouncement that it will not hesitate to exercise its supervisory powers over lower courts should the latter, after holding the accused entitled to bail, effectively deny the same by imposing a prohibitory sum or exacting unreasonable conditions. xxx There is grim irony in an accused being told that he has a right to bail but at the same time being required to post such an exorbitant sum. What aggravates the situation is that the lower court judge would apparently yield to the command of the fundamental law. In reality, such a sanctimonious avowal of respect for a mandate of the Constitution was on a purely verbal level. There is reason to believe that any person in the position of petitioner would under the circumstances be unable to resist thoughts of escaping from confinement, reduced as he must have been to a state of desperation. In the same breath as he was told he could be bailed out, the excessive amount required could only mean that provisional liberty would be beyond his reach. It would have been more forthright if he were informed categorically that such a right could not be availed of. There would have been no disappointment of expectations then. It does call to mind these words of Justice Jackson, "a promise to the ear to be broken to the hope, a teasing illusion like a munificent bequest in a pauper's will." XXX11 At the same time, Section 9, Rule 114 of the Revised Rules of Criminal Procedure advises courts to consider the following factors in the setting of the amount of bail: (a) Financial ability of the accused to give bail; (b) Nature and circumstances of the offense; (c) Penalty for the offense charged; (d) Character and reputation of the accused; (e) Age and health of the accused; (f) Weight of the evidence against the accused; (g) Probability of the accused appearing at the trial; (h) Forfeiture of other bail; (i) The fact that the accused was a fugitive from justice when arrested; and (j) Pendency of other cases where the accused is on bail.

Thus, the court has wide latitude in fixing the amount of bail. Where it fears that the accused may jump bail, it is certainly not precluded from installing devices to ensure against the same. Options may include increasing the bail bond to an appropriate level, or requiring the person to report periodically to the court and to make an accounting of his movements.12 In the present case, where petitioner was found to have left the country several times while the case was pending, the Court of Appeals required the confiscation of his passport and the issuance of a hold-departure order against him. Under the circumstances of this case, we find that appropriate conditions have been imposed in the bail bond to ensure against the risk of flight, particularly, the combination of the hold-departure order and the requirement that petitioner inform the court of any change of residence and of his whereabouts. Although an increase in the amount of bail while the case is on appeal may be meritorious, we find that the setting of the amount at P5,500,000.00 is unreasonable, excessive, and constitutes an effective denial of petitioner's right to bail. The purpose for bail is to guarantee the appearance of the accused at the trial, 13 or whenever so required by the Court14. The amount should be high enough to assure the presence of the accused when required but no higher than is reasonably calculated to fulfill this purpose.15 To fix bail at an amount equivalent to the civil liability of which petitioner is charged (in this case, P5,500,000.00).is to permit the impression that the amount paid as bail is an exaction of the civil liability that accused is charged of; this we cannot allow because bail is not intended as a punishment, nor as a satisfaction of civil liability which should necessarily await the judgment of the appellate court. At the same time, we cannot yield to petitioner's submission that bail in the instant case be set at P40,000.00 based on the 1996 Bail Bond Guide. (The current Bail Bond Guide, issued on August 29, 2000, maintains recommended bail at P40,000.00 for estafa where the amount of fraud is P142,000.00 or over and the imposable penalty 20 years of reclusion temporal). True, the Court has held that the Bail Bond Guide, a circular of the Department of Justice for the guidance of state prosecutors, although technically not binding upon the courts, "merits attention, being in a sense an expression of policy of the Executive Branch, through the Department of Justice, in the enforcement of criminal laws."16 Thus, courts are advised that they must not only be aware but should also consider the Bail Bond Guide due to its significance in the administration of criminal justice.17 This notwithstanding, the Court is not precluded from imposing in petitioner's case an amount higher than P40,000.00 (based on the Bail Bond Guide) where it perceives that an appropriate increase is dictated by the circumstances. It militates emphasis that petitioner is seeking bail on appeal. Section 5, Rule 114 of the Revised Rules of Criminal Procedure is clear that although the grant of bail on appeal is noncapital offenses is discretionary, when the penalty imposed on the convicted accused exceeds six years and circumstances exist that point to the probability of flight if released on bail, then the accused must be denied bail, or his bail previously granted should be cancelled.18 In the same vein, the Court has held that the discretion to extend bail during the course of the appeal should be exercised with grave caution and for strong reasons, considering that the accused had been in fact convicted by the trial court.19 In an earlier case, the Court adopted Senator Vicente J. Francisco's disquisition on why bail should be denied after judgment of conviction as a matter of wise discretion; thus: The importance attached to conviction is due to the underlying principle that bail should be granted only where it is uncertain whether the accused is guilty or innocent, and therefore, where that uncertainty is removed by conviction it would, generally speaking, be absurd to admit to bail. After a person has been tried and convicted the presumption of innocence which may be relied upon in prior applications is rebutted, and the burden is upon the accused to show error in the conviction. From another point of view it may be properly argued that the probability of ultimate punishment is so enhanced by the conviction that the accused is much more likely to attempt to escape if liberated on bail than before conviction.xxx20

Petitioner is seeking bail on appeal. He was in fact declared guilty beyond reasonable doubt by the RTC, and due to the serious amount of fraud involved, sentenced to imprisonment for twenty years --the maximum penalty for estafa by false pretenses or fraudulent acts allowed by the Revised Penal Code. Although it cannot be controverted that the Court of Appeals, despite the foregoing considerations and the possibility of flight still wielded its discretion to grant petitioner bail, the setting of bail in the amount of P5,500,000.00 is unjustified as having no legal nor factual basis. Guided by the penalty imposed by the lower court and the weight of the evidence against petitioner, we believe that the amount of P200,000.00 is more reasonable. Petitioner also contests the condition imposed by the Court of Appeals that he secure "a certification/guaranty from the Mayor of the place of his residence that he is a resident of the area and that he will remain to be a resident therein until final judgment is rendered or in case he transfers residence, it must be with prior notice to the court", claiming that the same violates his liberty of abode and travel. Notably, petitioner does not question the hold-departure order which prevents him from leaving the Philippines unless expressly permitted by the court which issued the order.21 In fact, the petition submits that "the hold-departure order against petitioner is already sufficient guarantee that he will not escape. Thus, to require him to inform the court every time he changed his residence is already unnecessary."22 The right to change abode and travel within the Philippines, being invoked by petitioner, are not absolute rights. Section 6, Article III of the 1987 Constitution states: The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security, public safety, or public health, as may be provided by law. The order of the Court of Appeals releasing petitioner on bail constitutes such lawful order as contemplated by the above provision.23 The condition imposed by the Court of Appeals is simply consistent with the nature and function of a bail bond, which is to ensure that petitioner will make himself available at all times whenever the Court requires his presence. Besides, a closer look at the questioned condition will show that petitioner is not prevented from changing abode; he is merely required to inform the court in case he does so. WHEREFORE, the petition is PARTIALLY GRANTED. Petitioner's bail pending appeal is reduced from P5,500,000.00 to P200,000.00. In all other respects, the resolutions of the Court of Appeals, dated October 6, 1999 and November 25, 1999, respectively, are AFFIRMED. No pronouncement as to costs. SO ORDERED. 1wphi1.nt G.R. No. 158793 June 8, 2006

This petition for review on certiorari1 seeks to reverse the Decision dated 10 March 2003 of the Regional Trial Court, Branch 147, Makati City (RTC) in Civil Case No. 01-034, as well as the RTCs Order dated 16 June 2003 which denied petitioners Motion for Reconsideration. Petitioners assert that Department of Public Works and Highways (DPWH) Department Order No. 74 (DO 74), Department Order No. 215 (DO 215), and the Revised Rules and Regulations on Limited Access Facilities of the Toll Regulatory Board (TRB) violate Republic Act No. 2000 (RA 2000) or the Limited Access Highway Act. Petitioners also seek to declare Department Order No. 123 (DO 123) and Administrative Order No. 1 (AO 1)2 unconstitutional. Antecedent Facts The facts are not in dispute. As summarized by the Solicitor General, the facts are as follows: 1. On January 10, 2001, petitioners filed before the trial court a Petition for Declaratory Judgment with Application for Temporary Restraining Order and Injunction docketed as Civil Case No. 01-034. The petition sought the declaration of nullity of the following administrative issuances for being inconsistent with the provisions of Republic Act 2000, entitled "Limited Access Highway Act" enacted in 1957: a. DPWH Administrative Order No. 1, Series of 1968; b. DPWH Department Order No. 74, Series of 1993; c. Art. II, Sec. 3(a) of the Revised Rules on Limited Access Facilities promulgated in 199[8] by the DPWH thru the Toll Regulatory Board (TRB). 2. Previously, pursuant to its mandate under R.A. 2000, DPWH issued on June 25, 1998 Department Order (DO) No. 215 declaring the Manila-Cavite (Coastal Road) Toll Expressway as limited access facilities. 3. Accordingly, petitioners filed an Amended Petition on February 8, 2001 wherein petitioners sought the declaration of nullity of the aforesaid administrative issuances. Moreover, petitioners prayed for the issuance of a temporary restraining order and/or preliminary injunction to prevent the enforcement of the total ban on motorcycles along the entire breadth of North and South Luzon Expressways and the Manila-Cavite (Coastal Road) Toll Expressway under DO 215. 4. On June 28, 2001, the trial court, thru then Presiding Judge Teofilo Guadiz, after due hearing, issued an order granting petitioners application for preliminary injunction. On July 16, 2001, a writ of preliminary injunction was issued by the trial court, conditioned upon petitioners filing of cash bond in the amount ofP100,000.00, which petitioners subsequently complied with. 5. On July 18, 2001, the DPWH acting thru the TRB, issued Department Order No. 123 allowing motorcycles with engine displacement of 400 cubic centimeters inside limited access facilities (toll ways). 6. Upon the assumption of Honorable Presiding Judge Ma. Cristina Cornejo, both the petitioners and respondents were required to file their respective Memoranda. Petitioners likewise filed [their] Supplemental Memorandum. Thereafter, the case was deemed submitted for decision.

JAMES MIRASOL, RICHARD SANTIAGO, and LUZON MOTORCYCLISTS FEDERATION, INC., Petitioners, vs. DEPARTMENT OF PUBLIC WORKS AND HIGHWAYS and TOLL REGULATORY BOARD, Respondents. DECISION CARPIO, J.:

7. Consequently, on March 10, 2003, the trial court issued the assailed decision dismissing the petition but declaring invalid DO 123. Petitioners moved for a reconsideration of the dismissal of their petition; but it was denied by the trial court in its Order dated June 16, 2003.3 Hence, this petition. The RTCs Ruling The dispositive portion of the RTCs Decision dated 10 March 2003 reads: WHEREFORE, [t]he Petition is denied/dismissed insofar as petitioners seek to declare null and void ab initio DPWH Department Order No. 74, Series of 1993, Administrative Order No. 1, and Art. II, Sec. 3(a) of the Revised Rules on Limited Access Facilities promulgated by the DPWH thru the TRB, the presumed validity thereof not having been overcome; but the petition is granted insofar as DPWH Department Order No. 123 is concerned, declaring the same to be invalid for being violative of the equal protection clause of the Constitution. SO ORDERED.4 The Issues Petitioners seek a reversal and raise the following issues for resolution: 1. WHETHER THE RTCS DECISION IS ALREADY BARRED BY RES JUDICATA; 2. WHETHER DO 74, CONTRAVENE RA 2000; AND DO 215 AND THE TRB REGULATIONS

Validity of DO 74, DO 215 and the TRB Regulations Petitioners claim that DO 74,8 DO 215,9 and the TRBs Rules and Regulations issued under them violate the provisions of RA 2000. They contend that the two issuances unduly expanded the power of the DPWH in Section 4 of RA 2000 to regulate toll ways. Petitioners assert that the DPWHs regulatory authority is limited to acts like redesigning curbings or central dividing sections. They claim that the DPWH is only allowed to re-design the physical structure of toll ways, and not to determine "who or what can be qualified as toll way users."10 Section 4 of RA 200011 reads: SEC. 4. Design of limited access facility. The Department of Public Works and Communications is authorized to so design any limited access facility and to so regulate, restrict, or prohibit access as to best serve the traffic for which such facility is intended; and its determination of such design shall be final. In this connection, it is authorized to divide and separate any limited access facility into separate roadways by the construction of raised curbings, central dividing sections, or other physical separations, or by designating such separate roadways by signs, markers, stripes, and the proper lane for such traffic by appropriate signs, markers, stripes and other devices. No person, shall have any right of ingress or egress to, from or across limited access facilities to or from abutting lands, except at such designated points at which access may be permitted, upon such terms and conditions as may be specified from time to time. (Emphasis supplied) On 19 February 1968, Secretary Antonio V. Raquiza of the Department of Public Works and Communicationsissued AO 1, which, among others, prohibited motorcycles on limited access highways. The pertinent provisions of AO 1 read: SUBJECT: Revised Rules and Regulations Governing Limited Access Highways By virtue of the authority granted the Secretary [of] Public Works and Communications under Section 3 of R.A. 2000, otherwise known as the Limited Access Highway Act, the following rules and regulations governing limited access highways are hereby promulgated for the guidance of all concerned: xxxx Section 3 On limited access highways, it is unlawful for any person or group of persons to: xxxx (h) Drive any bicycle, tricycle, pedicab, motorcycle or any vehicle (not motorized); x x x x12 (Emphasis supplied) On 5 April 1993, Acting Secretary Edmundo V. Mir of the Department of Public Works and Highways issued DO 74: SUBJECT: Declaration of the North Luzon Expressway from Balintawak to Tabang and the South Luzon Expressway from Nichols to Alabang as Limited Access Facilities Pursuant to Section 2 of Republic Act No. 2000, a limited access facility is defined as "a highway or street especially designed for through traffic, and over, from, or to which owners or occupants of abutting land or other persons have no right or easement or only a limited

3. WHETHER AO 1 AND DO 123 ARE UNCONSTITUTIONAL.5 The Ruling of the Court The petition is partly meritorious. Whether the RTCs Decision Dismissing Petitioners Case is Barred by Res Judicata Petitioners rely on the RTCs Order dated 28 June 2001, which granted their prayer for a writ of preliminary injunction. Since respondents did not appeal from that Order, petitioners argue that the Order became "a final judgment" on the issues. Petitioners conclude that the RTC erred when it subsequently dismissed their petition in its Decision dated 10 March 2003. Petitioners are mistaken. As the RTC correctly stated, the Order dated 28 June 2001 was not an adjudication on the merits of the case that would trigger res judicata. A preliminary injunction does not serve as a final determination of the issues. It is a provisional remedy, which merely serves to preserve the status quo until the court could hear the merits of the case.6 Thus, Section 9 of Rule 58 of the 1997 Rules of Civil Procedure requires the issuance of a final injunction to confirm the preliminary injunction should the court during trial determine that the acts complained of deserve to be permanently enjoined. A preliminary injunction is a mere adjunct, an ancillary remedy which exists only as an incident of the main proceeding.7

right or easement of access, light, air or view by reason of the fact that their proper[t]y abuts upon such limited access facility or for any other reason. Such highways or streets may be parkways, from which trucks, buses, and other commerical [sic] vehicles shall be excluded; or they may be free ways open to use by all customary forms of street and highway traffic." Section 3 of the same Act authorizes the Department of Public Works and Communications (now Department of Public Works and Highways) "to plan, designate, establish, regulate, vacate, alter, improve, maintain, and provide limited access facilities for public use wherever it is of the opinion that traffic conditions, present or future, will justify such special facilities." Therefore, by virtue of the authority granted above, the Department of Public Works and Highways hereby designates and declares the Balintawak to Tabang Sections of the North Luzon Expressway, and the Nichols to Alabang Sections of the South Luzon Expressways, to be LIMITED ACCESS HIGHWAYS/FACILITIES subject to such rules and regulations that may be imposed by the DPWH thru the Toll Regulatory Board (TRB). In view thereof, the National Capital Region (NCR) of this Department is hereby ordered, after consultation with the TRB and in coordination with the Philippine National Police (PNP), to close all illegal openings along the said Limited Access Highways/Facilities. In this connection, the NCR is instructed to organize its own enforcement and security group for the purpose of assuring the continued closure of the right-of-way fences and the implementation of the rules and regulations that may be imposed by the DPWH thru the TRB. This Order shall take effect immediately.13 On 25 June 1998, then DPWH Secretary Gregorio R. Vigilar issued DO 215: SUBJECT: Declaration of the R-1 Expressway, from Seaside drive to Zapote, C-5 Link Expressway, from Zapote to Noveleta, of the Manila Cavite Toll Expressway as Limited Access Facility. Pursuant to Section 2 of Republic Act No. 2000, a limited access facility is defined as "a highway or street especially designed for through traffic, and over, from, or to which owners or occupants of abutting land or other persons have no right or easement or only a limited right or easement of access, light, air or view by reason of the fact that their property abuts upon such limited access facility or for any other reason. Such highways or streets may be parkways, from which trucks, buses, and other commercial vehicles shall be excluded; or they may be free ways open to use by all customary forms of street and highway traffic." Section 3 of the same Act authorizes the Department of Public Works and Communications (now Department of Public Works and Highways) "to plan, designate, establish, regulate, vacate, alter, improve, maintain, and provide limited access facilities for public use wherever it is of the opinion that traffic conditions, present or future, will justify such special facilities." Therefore, by virtue of the authority granted above, the Department of Public Works and Highways hereby designates and declares the R-1 Expressway, C-5 Link Expressway and the R-1 Extension Expressway Sections of the Manila Cavite Toll Expressway to be LIMITED ACCESS HIGHWAYS/FACILITIES subject to such rules and regulations that may be imposed by the DPWH thru the Toll Regulatory Board (TRB). In view thereof, the National Capital Region (NCR) of this Department is hereby ordered, after consultation with the TRB and in coordination with the Philippine National Police (PNP), to close all illegal openings along the said Limited Access Highways/Facilities. In this connection, the NCR is instructed to organize its own enforcement and security group for the

purpose of assuring the continued closure of the right-of-way fences and the implementation of the rules and regulations that may be imposed by the DPWH thru the TRB. This Order shall take effect immediately.14 The RTC held that Section 4 of RA 2000 expressly authorized the DPWH to design limited access facilities and to regulate, restrict, or prohibit access as to serve the traffic for which such facilities are intended. According to the RTC, such authority to regulate, restrict, or prohibit logically includes the determination of who and what can and cannot be permitted entry or access into the limited access facilities. Thus, the RTC concluded that AO 1, DO 74, and the Revised Rules and Regulations on Limited Access Facilities, which ban motorcycles entry or access to the limited access facilities, are not inconsistent with RA 2000. RA 2000, otherwise known as the Limited Access Highway Act, was approved on 22 June 1957. Section 4 of RA 2000 provides that "[t]he Department of Public Works and Communications is authorized to so design any limited access facility and to so regulate, restrict, or prohibit access as to best serve the traffic for which such facility is intended." The RTC construed this authorization to regulate, restrict, or prohibit access to limited access facilities to apply to the Department of Public Works and Highways (DPWH). The RTCs ruling is based on a wrong premise. The RTC assumed that the DPWH derived its authority from its predecessor, the Department of Public Works and Communications, which is expressly authorized to regulate, restrict, or prohibit access to limited access facilities under Section 4 of RA 2000. However, such assumption fails to consider the evolution of the Department of Public Works and Communications. Under Act No. 2711, otherwise known as the Revised Administrative Code, approved on 10 March 1917, there were only seven executive departments, namely: the Department of the Interior, the Department of Finance, the Department of Justice, the Department of Agriculture and Commerce, the Department of Public Works and Communications, the Department of Public Instruction, and the Department of Labor.15 On 20 June 1964, Republic Act No. 413616 created the Land Transportation Commission under the Department of Public Works and Communications. Later, the Department of Public Works and Communications was restructured into theDepartment of Public Works, Transportation and Communications. On 16 May 1974, Presidential Decree No. 458 (PD 458) separated the Bureau of Public Highways from the Department of Public Works, Transportation and Communications and created it as a department to be known as Department of Public Highways. Under Section 3 of PD 458, the Department of Public Highways is "responsible for developing and implementing programs on the construction and maintenance of roads, bridges and airport runways." With the amendment of the 1973 Philippine Constitution in 1976, resulting in the shift in the form of government, national agencies were renamed from Departments to Ministries. Thus, the Department of Public Works, Transportation and Communications became the Ministry of Public Works, Transportation and Communications. On 23 July 1979, then President Ferdinand E. Marcos issued Executive Order No. 546 (EO 546), creating aMinistry of Public Works and a Ministry of Transportation and Communications.17 Under Section 1 of EO 546, the Ministry of Public Works assumed the public works functions of the Ministry of Public Works, Transportation and Communications. The functions of the Ministry of Public Works were the "construction, maintenance and repair of port works, harbor facilities, lighthouses, navigational aids, shore protection works, airport buildings and associated facilities, public buildings and school buildings, monuments and other related structures, as well as undertaking harbor and river dredging works, reclamation of foreshore and swampland areas, water supply, and flood control and drainage works."18

On the other hand, the Ministry of Transportation and Communications became the "primary policy, planning, programming, coordinating, implementing, regulating and administrative entity of the executive branch of the government in the promotion, development, and regulation of a dependable and coordinated network of transportation and communication systems."19 The functions of the Ministry of Transportation and Communications were: a. Coordinate and supervise all activities of the Ministry relative to transportation and communications; b. Formulate and recommend national policies and guidelines for the preparation and implementation of an integrated and comprehensive transportation and communications system at the national, regional and local levels; c. Establish and administer comprehensive and integrated programs for transportation and communication, and for this purpose, may call on any agency, corporation, or organization, whether government or private, whose development programs include transportation and communications as an integral part to participate and assist in the preparation and implementation of such programs; d. Regulate, whenever necessary, activities relative to transportation and communications and prescribe and collect fees in the exercise of such power; e. Assess, review and provide direction to transportation and communications research and development programs of the government in coordination with other institutions concerned; and f. Perform such other functions as may be necessary to carry into effect the provisions of this Executive Order.20 (Emphasis supplied) On 27 July 1981, then President Marcos issued Executive Order No. 710 (EO 710), which merged the Ministry of Public Works and the Ministry of Public Highways for "greater simplicity and economy in operations."21 The restructured agency became known as the Ministry of Public Works and Highways. Under Section 1 of EO 710 the functions of the Ministry of Public Works and the Ministry of Public Highways 22 were transferred to the Ministry of Public Works and Highways. Upon the ratification of the 1987 Constitution in February 1987, the former Ministry of Public Works and Highways became the Department of Public Works and Highways (DPWH) and the former Ministry of Transportation and Communications became the Department of Transportation and Communications (DOTC). DPWH issued DO 74 and DO 215 declaring certain expressways as limited access facilities on 5 April 1993 and 25 June 1998, respectively. Later, the TRB, under the DPWH, issued the Revised Rules and Regulations on Limited Access Facilities. However, on 23 July 1979, long before these department orders and regulations were issued, the Ministry of Public Works, Transportation and Communications was divided into two agencies theMinistry of Public Works and the Ministry of Transportation and Communications by virtue of EO 546. The question is, which of these two agencies is now authorized to regulate, restrict, or prohibit access to limited access facilities?23 Under Section 1 of EO 546, the Ministry of Public Works (now DPWH) assumed the public works functions of the Ministry of Public Works, Transportation and Communications. On the other hand, among the functions of the Ministry of

Transportation and Communications (now Department of Transportation and Communications [DOTC]) were to (1) formulate and recommend national policies and guidelines for the preparation and implementation of an integrated and comprehensive transportation and communications systems at the national, regional, and local levels; and (2) regulate, whenever necessary, activities relative to transportation and communications and prescribe and collect fees in the exercise of such power. Clearly, under EO 546, it is the DOTC, not the DPWH, which has authority to regulate, restrict, or prohibit access to limited access facilities. Even under Executive Order No. 125 (EO 125)24 and Executive Order No. 125-A (EO 125-A),25 which further reorganized the DOTC, the authority to administer and enforce all laws, rules and regulations relative to transportation is clearly with the DOTC.26 Thus, DO 74 and DO 215 are void because the DPWH has no authority to declare certain expressways as limited access facilities. Under the law, it is the DOTC which is authorized to administer and enforce all laws, rules and regulations in the field of transportation and to regulate related activities. Since the DPWH has no authority to regulate activities relative to transportation, the TRB27 cannot derive its power from the DPWH to issue regulations governing limited access facilities. The DPWH cannot delegate a power or function which it does not possess in the first place. Since DO 74 and DO 215 are void, it follows that the rules implementing them are likewise void. Whether AO 1 and DO 123 are Unconstitutional DPWH Secretary Simeon A. Datumanong issued DO 123 on 18 July 2001. DO 123 reads in part: SUBJECT: Revised Rules and Regulations Governing Limited Access Highways By virtue of the authority granted the Secretary of Public Works and Highways under Section 3 of R.A. 2000, otherwise known as the Limited Access Highway Act, the following revised rules and regulations governing limited access highways are hereby promulgated for the guidance of all concerned: 1. Administrative Order No. 1 dated February 19, 1968, issued by the Secretary of the then Department of Public Works and Communications, is hereby amended by deleting the word "motorcycles" mentioned in Section 3(h) thereof. Therefore, motorcycles are hereby allowed to operate inside the toll roads and limited access highways, subject to the following: a. Motorcycles shall have an engine displacement of at least 400 cubic centimeters (cc) provided that: x x x x28 (Emphasis supplied) The RTCs Decision dated 10 March 2003 declared DO 123 unconstitutional on the ground that it violates the equal protection clause by allowing only motorcycles with at least 400 cubic centimeters engine displacement to use the toll ways. The RTC reasoned that the creation of a distinction within the class of motorcycles was not based on real differences. We need not pass upon the constitutionality of the classification of motorcycles under DO 123. As previously discussed, the DPWH has no authority to regulate limited access

highways since EO 546 has devolved this function to the DOTC. Thus, DO 123 is void for want of authority of the DPWH to promulgate it. On the other hand, the assailed portion of AO 1 states: Section 3. On limited access highways, it is unlawful for any person or group of persons to: xxxx (h) Drive any bicycle, tricycle, pedicab, motorcycle or any vehicle (not motorized); xxxx Petitioners assail the DPWHs failure to provide "scientific" and "objective" data on the danger of having motorcycles plying our highways. They attack this exercise of police power as baseless and unwarranted. Petitioners belabor the fact that there are studies that provide proof that motorcycles are safe modes of transport. They also claim that AO 1 introduces an unreasonable classification by singling-out motorcycles from other motorized modes of transport. Finally, petitioners argue that AO 1 violates their right to travel. Petitioners arguments do not convince us. We emphasize that the Secretary of the Department of Public Works and Communications issued AO 1 on 19 February 1968. Section 3 of RA 200029 authorized the issuance of the guidelines. In contrast, DPWH issued DO 74, DO 215 and DO 123 after EO 546 devolved to the DOTC the authority to regulate limited access highways. We now discuss the constitutionality of AO 1. Administrative issuances have the force and effect of law.30 They benefit from the same presumption of validity and constitutionality enjoyed by statutes.31 These two precepts place a heavy burden upon any party assailing governmental regulations. The burden of proving unconstitutionality rests on such party.32 The burden becomes heavier when the police power is at issue. The use of public highways by motor vehicles is subject to regulation as an exercise of the police power of the state.33 The police power is far-reaching in scope and is the "most essential, insistent and illimitable" of all government powers.34 The tendency is to extend rather than to restrict the use of police power. The sole standard in measuring its exercise is reasonableness.35 What is "reasonable" is not subject to exact definition or scientific formulation. No all-embracing test of reasonableness exists,36 for its determination rests upon human judgment applied to the facts and circumstances of each particular case.37 We find that AO 1 does not impose unreasonable restrictions. It merely outlines several precautionary measures, to which toll way users must adhere. These rules were designed to ensure public safety and the uninhibited flow of traffic within limited access facilities. They cover several subjects, from what lanes should be used by a certain vehicle, to maximum vehicle height. The prohibition of certain types of vehicles is but one of these. None of these rules violates reason. The purpose of these rules and the logic behind them are quite evident. A toll way is not an ordinary road. The special purpose for which a toll way is constructed necessitates the imposition of guidelines in the manner of its use and operation. Inevitably, such rules will restrict certain rights. But the mere fact that certain rights are restricted does not invalidate the rules.

Consider Section 3(g) of AO 1, which prohibits the conduct of rallies inside toll ways.38 The regulation affects the right to peaceably assemble. The exercise of police power involves restriction, restriction being implicit in the power itself. Thus, the test of constitutionality of a police power measure is limited to an inquiry on whether the restriction imposed on constitutional rights is reasonable, and not whether it imposes a restriction on those rights. None of the rules outlined in AO 1 strikes us as arbitrary and capricious. The DPWH, through the Solicitor General, maintains that the toll ways were not designed to accommodate motorcycles and that their presence in the toll ways will compromise safety and traffic considerations. The DPWH points out that the same study the petitioners rely on cites that the inability of other drivers to detect motorcycles is the predominant cause of accidents.39 Arguably, prohibiting the use of motorcycles in toll ways may not be the "best" measure to ensure the safety and comfort of those who ply the toll ways. However, the means by which the government chooses to act is not judged in terms of what is "best," rather, on simply whether the act is reasonable. The validity of a police power measure does not depend upon the absolute assurance that the purpose desired can in fact be probably fully accomplished, or upon the certainty that it will best serve the purpose intended.40 Reason, not scientific exactitude, is the measure of the validity of the governmental regulation. Arguments based on what is "best" are arguments reserved for the Legislatures discussion. Judicial intervention in such matters will only be warranted if the assailed regulation is patently whimsical. We do not find the situation in this case to be so. Neither do we find AO 1 oppressive. Petitioners are not being deprived of their right to use the limited access facility. They are merely being required, just like the rest of the public, to adhere to the rules on how to use the facility. AO 1 does not infringe upon petitioners right to travel but merely bars motorcycles, bicycles, tricycles, pedicabs, and any nonmotorized vehicles as the mode of traveling along limited access highways.41 Several cheap, accessible and practical alternative modes of transport are open to petitioners. There is nothing oppressive in being required to take a bus or drive a car instead of ones scooter, bicycle, calesa, or motorcycle upon using a toll way. Petitioners reliance on the studies they gathered is misplaced. Police power does not rely upon the existence of definitive studies to support its use. Indeed, no requirement exists that the exercise of police power must first be conclusively justified by research. The yardstick has always been simply whether the governments act is reasonable and not oppressive.42 The use of "reason" in this sense is simply meant to guard against arbitrary and capricious government action. Scientific certainty and conclusiveness, though desirable, may not be demanded in every situation. Otherwise, no government will be able to act in situations demanding the exercise of its residual powers because it will be tied up conducting studies. A police power measure may be assailed upon proof that it unduly violates constitutional limitations like due process and equal protection of the law.43 Petitioners attempt to seek redress from the motorcycle ban under the aegis of equal protection must fail. Petitioners contention that AO 1 unreasonably singles out motorcycles is specious. To begin with, classification by itself is not prohibited.44 A classification can only be assailed if it is deemed invidious, that is, it is not based on real or substantial differences. As explained by Chief Justice Fernando in Bautista v. Juinio:45 x x x To assure that the general welfare be promoted, which is the end of law, a regulatory measure may cut into the rights to liberty and property. Those adversely affected may under such circumstances invoked the equal protection clause only if they can show that the governmental act assailed, far from being inspired by the attainment of the common weal was prompted by the spirit of hostility, or at the very least, discrimination that finds no support

in reason. It suffices then that the laws operate equally and uniformly on all persons under similar circumstances or that all persons must be treated in the same manner, the conditions not being different, both in the privileges conferred and the liabilities imposed. Favoritism and undue preference cannot be allowed. For the principle is that equal protection and security shall be given to every person under circumstances, which if not identical is analogous. If law be looked upon in terms of burden or charges, those that fall within a class should be treated in the same fashion, whatever restrictions cast on some in the group equally binding the rest. We find that it is neither warranted nor reasonable for petitioners to say that the only justifiable classification among modes of transport is the motorized against the nonmotorized. Not all motorized vehicles are created equal. A 16-wheeler truck is substantially different from other light vehicles. The first may be denied access to some roads where the latter are free to drive. Old vehicles may be reasonably differentiated from newer models.46We find that real and substantial differences exist between a motorcycle and other forms of transport sufficient to justify its classification among those prohibited from plying the toll ways. Amongst all types of motorized transport, it is obvious, even to a child, that a motorcycle is quite different from a car, a bus or a truck. The most obvious and troubling difference would be that a two-wheeled vehicle is less stable and more easily overturned than a four-wheeled vehicle. A classification based on practical convenience and common knowledge is not unconstitutional simply because it may lack purely theoretical or scientific uniformity. Moreover, we take note that the Philippines is home to a host of unique motorized modes of transport ranging from modified hand-carts (kuliglig) to bicycle "sidecars" outfitted with a motor. To follow petitioners argument to its logical conclusion would open up toll ways to all these contraptions. Both safety and traffic considerations militate against any ruling that would bring about such a nightmare. Petitioners complain that the prohibition on the use of motorcycles in toll ways unduly deprive them of their right to travel. We are not persuaded. A toll way is not an ordinary road. As a facility designed to promote the fastest access to certain destinations, its use, operation, and maintenance require close regulation. Public interest and safety require the imposition of certain restrictions on toll ways that do not apply to ordinary roads. As a special kind of road, it is but reasonable that not all forms of transport could use it. The right to travel does not mean the right to choose any vehicle in traversing a toll way. The right to travel refers to the right to move from one place to another. Petitioners can traverse the toll way any time they choose using private or public four-wheeled vehicles. Petitioners are not denied the right to move from Point A to Point B along the toll way. Petitioners are free to access the toll way, much as the rest of the public can. The mode by which petitioners wish to travel pertains to the manner of using the toll way, a subject that can be validly limited by regulation. Petitioners themselves admit that alternative routes are available to them. Their complaint is that these routes are not the safest and most convenient. Even if their claim is true, it hardly qualifies as an undue curtailment of their freedom of movement and travel. The right to travel does not entitle a person to the best form of transport or to the most convenient route to his destination. The obstructions found in normal streets, which petitioners complain of (i.e., potholes, manholes, construction barriers, etc.), are not suffered by them alone. Finally, petitioners assert that their possession of a drivers license from the Land Transportation Office (LTO) and the fact that their vehicles are registered with that office entitle them to use all kinds of roads in the country. Again, petitioners are mistaken. There

exists no absolute right to drive. On the contrary, this privilege, is heavily regulated. Only a qualified group is allowed to drive motor vehicles: those who pass the tests administered by the LTO. A drivers license issued by the LTO merely allows one to drive a particular mode of transport. It is not a license to drive or operate any form of transportation on any type of road. Vehicle registration in the LTO on the other hand merely signifies the roadworthiness of a vehicle. This does not preclude the government from prescribing which roads are accessible to certain vehicles. WHEREFORE, we PARTLY GRANT the petition. We MODIFY the Decision dated 10 March 2003 of the Regional Trial Court, Branch 147, Makati City and its Order dated 16 June 2003 in Civil Case No. 01-034. We declare VOIDDepartment Order Nos. 74, 215, and 123 of the Department of Public Works and Highways, and the Revised Rules and Regulations on Limited Access Facilities of the Toll Regulatory Board. We declare VALID Administrative Order No. 1 of the Department of Public Works and Communications. SO ORDERED. G.R. No. 182161 : December 3, 2009 Reverend Father ROBERT P. REYES, Petitioner, v. RAUL M. GONZALEZ, in his capacity as the secretary of the COURT OF APPEALS, secretary DEPARTMENT OF JUSTICE, AND COMMISSIONER MARCELINO C. LIBANAN, IN HIS CAPACITY AS THE COMMISSIONER OF THE BUREAU OF IMMIGRATION, Respondents. DECISION LEONARDO-DE CASTRO, J.: For resolution is the petition for review under Rule 45 of the Rules of Court, assailing the February 4, 2008 Decision1of the Court of Appeals (CA) in CA-G.R. No. 00011 which dismissed the petition for the issuance of the writ of amparo under A.M. No. 07-9-12-SC, as amended. It also assails the CA's Resolution dated March 25, 2008, denying petitioner's motion for reconsideration of the aforesaid February 4, 2008 Decision. The undisputed facts as found by the CA are as follows:cra:nad Petitioner was among those arrested in the Manila Peninsula Hotel siege on November 30, 2007. In the morning of November 30, 2007, petitioner together with fifty (50) others, were brought to Camp Crame to await inquest proceedings. In the evening of the same day, the Department of Justice (DOJ) Panel of Prosecutors, composed of Emmanuel Y. Velasco, Phillip L. Dela Cruz and Aristotle M. Reyes, conducted inquest proceedings to ascertain whether or not there was probable cause to hold petitioner and the others for trial on charges of Rebellion and/or Inciting to Rebellion. On December 1, 2007, upon the request of the Department of Interior and Local Government (DILG), respondent DOJ Secretary Raul Gonzales issued Hold Departure Order (HDO) No. 45 ordering respondent Commissioner of Immigration to include in the Hold Departure List of the Bureau of Immigration and Deportation (BID) the name of petitioner and 49 others relative to the aforementioned case in the interest of national security and public safety.

On December 2, 2007, after finding probable cause against petitioner and 36 others for the crime of Rebellion under Article 134 of the Revised Penal Code, the DOJ Panel of Prosecutors filed an Information docketed as I.S. No. 2007-1045 before the Regional Trial Court, Branch 150 of Makati City. On December 7, 2007, petitioner filed a Motion for Judicial Determination of Probable Cause and Release of the Accused Fr. Reyes Upon Recognizance asserting that the DOJ panel failed to produce any evidence indicating his specific participation in the crime charged; and that under the Constitution, the determination of probable cause must be made personally by a judge. On December 13, 2007, the RTC issued an Order dismissing the charge for Rebellion against petitioner and 17 others for lack of probable cause. The trial court ratiocinated that the evidence submitted by the DOJ Panel of Investigating Prosecutors failed to show that petitioner and the other accused-civilians conspired and confederated with the accused-soldiers in taking arms against the government; that petitioner and other accused-civilians were arrested because they ignored the call of the police despite the deadline given to them to come out from the 2nd Floor of the Hotel and submit themselves to the police authorities; that mere presence at the scene of the crime and expressing one's sentiments on electoral and political reforms did not make them conspirators absent concrete evidence that the accused-civilians knew beforehand the intent of the accusedsoldiers to commit rebellion; and that the cooperation which the law penalizes must be one that is knowingly and intentionally rendered. On December 18, 2007, petitioner's counsel Atty. Francisco L. Chavez wrote the DOJ Secretary requesting the lifting of HDO No. 45 in view of the dismissal of Criminal Case No. 07-3126. On even date, Secretary Gonzales replied to petitioner's letter stating that the DOJ could not act on petitioner's request until Atty. Chavez's right to represent petitioner is settled in view of the fact that a certain Atty. J. V. Bautista representing himself as counsel of petitioner had also written a letter to the DOJ. On January 3, 2008, petitioner filed the instant petition claiming that despite the dismissal of the rebellion case against petitioner, HDO No. 45 still subsists; that on December 19, 2007, petitioner was held by BID officials at the NAIA as his name is included in the Hold Departure List; that had it not been for the timely intervention of petitioner's counsel, petitioner would not have been able to take his scheduled flight to Hong Kong; that on December 26, 2007, petitioner was able to fly back to the Philippines from Hong Kong but every time petitioner would present himself at the NAIA for his flights abroad, he stands to be detained and interrogated by BID officers because of the continued inclusion of his name in the Hold Departure List; and that the Secretary of Justice has not acted on his request for the lifting of HDO No. 45. Petitioner further maintained that immediate recourse to the Supreme Court for the availment of the writ is exigent as the continued restraint on petitioner's right to travel is illegal. On January 24, 2008, respondents represented by the Office of the Solicitor General (OSG) filed the Return of the Writ raising the following affirmative defenses: 1) that the Secretary of Justice is authorized to issue Hold Departure Orders under the DOJ Circulars No. 17, Series of 19982 and No. 18 Series of 20073 pursuant to his mandate under the Administrative Code of 1987 as ahead of the principal law agency of the government; 2) that HDO No. 45 dated December 1, 2007 was issued by the Sec. Gonzales in the course of the

preliminary investigation of the case against herein petitioner upon the request of the DILG; 3) that the lifting of HDO No. 45 is premature in view of public respondent's pending Motion for Reconsideration dated January 3, 2008 filed by the respondents of the Order dated December 13, 2007 of the RTC dismissing Criminal Case No. 07-3126 for Rebellion for lack of probable cause; 4) that petitioner failed to exhaust administrative remedies by filing a motion to lift HDO No. 45 before the DOJ; and 5) that the constitutionality of Circulars No. 17 and 18 can not be attacked collaterally in an amparo proceeding. During the hearing on January 25, 2008 at 10:00 a.m. at the Paras Hall of the Court of Appeals, counsels for both parties appeared. Petitioner's counsel Atty. Francisco Chavez manifested that petitioner is currently in Hong Kong; that every time petitioner would leave and return to the country, the immigration officers at the NAIA detain and interrogate him for several minutes because of the existing HDO; that the power of the DOJ Secretary to issue HDO has no legal basis; and that petitioner did not file a motion to lift the HDO before the RTC nor the DOJ because to do so would be tantamount to recognizing the power of the DOJ Secretary to issue HDO. For respondents' part, the Office of the Solicitor-General (OSG) maintained that the Secretary of the DOJ's power to issue HDO springs from its mandate under the Administrative Code to investigate and prosecute offenders as the principal law agency of the government; that in its ten-year existence, the constitutionality of DOJ Circular No. 17 has not been challenged except now; and that on January 3, 2008, the DOJ Panel of Investigating Prosecutors had filed a Motion for Reconsideration of the Order of Dismissal of the trial court. On February 1, 2008, petitioner filed a Manifestation attaching thereto a copy of the Order dated January 31, 2008 of the trial court denying respondent DOJ's Motion for Reconsideration for utter lack of merit. The trial court also observed that the said Motion should be dismissed outright for being filed out of time. 4 cra The petition for a writ of amparo is anchored on the ground that respondents violated petitioner's constitutional right to travel. Petitioner argues that the DOJ Secretary has no power to issue a Hold Departure Order (HDO) and the subject HDO No. 45 has no legal basis since Criminal Case No. 07-3126 has already been dismissed. On February 4, 2008, the CA rendered the assailed Decision dismissing the petition and denying the privilege of the writ of amparo. Petitioner's Motion for Reconsideration5 thereon was also denied in the assailed Resolution6 dated March 25, 2008. Hence, the present petition which is based on the following grounds: I. THE DOJ SECRETARY'S ARROGATION OF POWER AND USURPATION OF AUTHORITY TO ISSUE A HOLD DEPARTURE ORDER CANNOT BE JUSTIFIED THROUGH A RATIONALE THAT IT HAS SUPPOSEDLY BEEN "REGULARLY EXERCISED IN THE PAST" OR HAS "NEVER BEEN QUESTIONED (IN THE PAST).

II. THE DOJ HAS CLAIMED A POWER TO ISSUE AN HDO INDEPENDENT OF THAT OF THE REGIONAL TRIAL COURTS, HENCE, PETITIONER CANNOT MERELY RELY ON THE RESIDUAL POWER OF THE RTC MAKATI IN CRIMINAL CASE NO. 07-3126 TO ASSAIL SUCH CLAIMED POWER. III. THE UTMOST EXIGENCY OF THE PETITION IS EXEMPLIFIED BY THE CONTINUING ACTUAL RESTRAINT ON PETITIONER'S RIGHT TO TRAVEL THROUGH THE MAINTENANCE OF HIS NAME IN THE HDO LIST AND DOES NOT SIMPLY HINGE ON THE QUESTION OF WHETHER OR NOT PETITIONER WAS ABLE TO TRAVEL DESPITE SUCH A RESTRAINT. IV. DOJ CIRCULAR 17 SERIES OF 1998 PROVIDES NO STATUTORY BASIS FOR THE DOJ SECRETARY'S CLAIMED POWER TO ISSUE AN HDO FOR IT IS NOT A STATUTE. THE CIRCULAR ITSELF APPEARS NOT TO BE BASED ON ANY STATUTE, HENCE, IT DOES NOT HAVE THE FORCE OF LAW AND NEED NOT BE ATTACKED IN A DIRECT PROCEEDING.7 Petitioner maintains that the writ of amparo does not only exclusively apply to situations of extrajudicial killings and enforced disappearances but encompasses the whole gamut of liberties protected by the Constitution. Petitioner argues that "[liberty] includes the right to exist and the right to be free from arbitrary personal restraint or servitude and includes the right of the citizens to be free to use his faculties in all lawful ways." Part of the right to liberty guaranteed by the Constitution is the right of a person to travel. In their Comment,8 both respondents Secretary Gonzalez and Commissioner Libanan argue that: 1) HDO No. 45 was validly issued by the Secretary of Justice in accordance with Department of Justice Circular No. 17, Series of 1998,9and Circular No. 18, Series of 2007,10 which were issued pursuant to said Secretary's mandate under the Administrative Code of 1987, as head of the principal law agency of the government, to investigate the commission of crimes, prosecute offenders, and provide immigration regulatory services; and; 2) the issue of the constitutionality of the DOJ Secretary's authority to issue hold departure orders under DOJ Circulars Nos. 17 and 18 is not within the ambit of a writ of amparo. The case hinges on the issue as to whether or not petitioner's right to liberty has been violated or threatened with violation by the issuance of the subject HDO, which would entitle him to the privilege of the writ of amparo. The petition must fail. Section 1 of the Rule on the Writ of Amparo provides:cra:nad Section 1. Petition. - The petition for a writ of amparo is a remedy available to any person whose right to life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity.

The writ shall cover extralegal killings and enforced disappearances or threats thereof. The Court, in Secretary of National Defense et al. v. Manalo et al.,11 made a categorical pronouncement that the Amparo Rule in its present form is confined to these two instances of "extralegal killings" and "enforced disappearances," or to threats thereof, thus:cra:nad x x x As the Amparo Rule was intended to address the intractable problem of "extralegal killings" and "enforced disappearances," its coverage, in its present form, is confined to these two instances or to threats thereof. "Extralegal killings" are "killings committed without due process of law, i.e., without legal safeguards or judicial proceedings." On the other hand, "enforced disappearances" are "attended by the following characteristics: an arrest, detention or abduction of a person by a government official or organized groups or private individuals acting with the direct or indirect acquiescence of the government; the refusal of the State to disclose the fate or whereabouts of the person concerned or a refusal to acknowledge the deprivation of liberty which places such persons outside the protection of law."12 chanroblesvirtuallawlibary In Tapuz v. Del Rosario,13 the Court laid down the basic principle regarding the rule on the writ of amparo as follows:cra:nad To start off with the basics, the writ of amparo was originally conceived as a response to the extraordinary rise in the number of killings and enforced disappearances, and to the perceived lack of available and effective remedies to address these extraordinary concerns. It is intended to address violations of or threats to the rights to life, liberty or security, as an extraordinary and independent remedy beyond those available under the prevailing Rules, or as a remedy supplemental to these Rules. What it is not, is a writ to protect concerns that are purely property or commercial. Neither is it a writ that we shall issue on amorphous and uncertain grounds. Consequently, the Rule on the Writ of Amparo - in line with the extraordinary character of the writ and the reasonable certainty that its issuance demands - requires that every petition for the issuance of the writ must be supported by justifying allegations of fact, to wit: "(a) The personal circumstances of the petitioner; (b) The name and personal circumstances of the respondent responsible for the threat, act or omission, or, if the name is unknown or uncertain, the respondent may be described by an assumed appellation; (c) The right to life, liberty and security of the aggrieved party violated or threatened with violation by an unlawful act or omission of the respondent, and how such threat or violation is committed with the attendant circumstances detailed in supporting affidavits; (d) The investigation conducted, if any, specifying the names, personal circumstances, and addresses of the investigating authority or individuals, as well as the manner and conduct of the investigation, together with any report; (e) The actions and recourses taken by the petitioner to determine the fate or whereabouts of the aggrieved party and the identity of the person responsible for the threat, act or omission; and

(f) The relief prayed for. The petition may include a general prayer for other just and equitable reliefs."14 chanroblesvirtuallawlibary The writ shall issue if the Court is preliminarily satisfied with the prima facie existence of the ultimate facts determinable from the supporting affidavits that detail the circumstances of how and to what extent a threat to or violation of the rights to life, liberty and security of the aggrieved party was or is being committed. (Emphasis supplied) Here, petitioner invokes this extraordinary remedy of the writ of amparo for the protection of his right to travel. He insists that he is entitled to the protection covered by the Rule on the Writ of Amparo because the HDO is a continuing actual restraint on his right to travel. The Court is thus called upon to rule whether or not the right to travel is covered by the Rule on the Writ of Amparo. The rights that fall within the protective mantle of the Writ of Amparo under Section 1 of the Rules thereon are the following: (1) right to life; (2) right to liberty; and (3) right to security. In Secretary of National Defense et al. v. Manalo et al.,15 the Court explained the concept of right to life in this wise:cra:nad While the right to life under Article III, Section 1 guarantees essentially the right to be alive- upon which the enjoyment of all other rights is preconditioned the right to security of person is a guarantee of the secure quality of this life, viz: "The life to which each person has a right is not a life lived in fear that his person and property may be unreasonably violated by a powerful ruler. Rather, it is a life lived with the assurance that the government he established and consented to, will protect the security of his person and property. The ideal of security in life and property. pervades the whole history of man. It touches every aspect of man's existence." In a broad sense, the right to security of person "emanates in a person's legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation. It includes the right to exist, and the right to enjoyment of life while existing, and it is invaded not only by a deprivation of life but also of those things which are necessary to the enjoyment of life according to the nature, temperament, and lawful desires of the individual."16 cra The right to liberty, on the other hand, was defined in the City of Manila, et al. v. Hon. Laguio, Jr.,17 in this manner:cra:nad Liberty as guaranteed by the Constitution was defined by Justice Malcolm to include "the right to exist and the right to be free from arbitrary restraint or servitude. The term cannot be dwarfed into mere freedom from physical restraint of the person of the citizen, but is deemed to embrace the right of man to enjoy the facilities with which he has been endowed by his Creator, subject only to such restraint as are necessary for the common welfare." x x x Secretary of National Defense et al. v. Manalo et al.18 thoroughly expounded on the import of the right to security, thus:cra:nad

A closer look at the right to security of person would yield various permutations of the exercise of this right. First, the right to security of person is "freedom from fear." In its "whereas" clauses, the Universal Declaration of Human Rights (UDHR) enunciates that "a world in which human beings shall enjoy freedom of speech and belief andfreedom from fear and want has been proclaimed as the highest aspiration of the common people." (emphasis supplied) Some scholars postulate that "freedom from fear" is not only an aspirational principle, but essentially an individual international human right. It is the "right to security of person" as the word "security" itself means "freedom from fear." Article 3 of the UDHR provides, viz:cra:nad Everyone has the right to life, liberty and security of person. xxx The Philippines is a signatory to both the UDHR and the ICCPR. In the context of Section 1 of the Amparo Rule, "freedom from fear" is the right and any threat to the rights to life, liberty or security is the actionable wrong. Fear is a state of mind, a reaction; threat is a stimulus, a cause of action. Fear caused by the same stimulus can range from being baseless to well-founded as people react differently. The degree of fear can vary from one person to another with the variation of the prolificacy of their imagination, strength of character or past experience with the stimulus. Thus, in the amparo context, it is more correct to say that the "right to security" is actually the "freedom from threat." Viewed in this light, the "threatened with violation" Clause in the latter part of Section 1 of the Amparo Rule is a form of violation of the right to security mentioned in the earlier part of the provision. Second, the right to security of person is a guarantee of bodily and psychological integrity or security. Article III, Section II of the 1987 Constitution guarantees that, as a general rule, one's body cannot be searched or invaded without a search warrant. Physical injuries inflicted in the context of extralegal killings and enforced disappearances constitute more than a search or invasion of the body. It may constitute dismemberment, physical disabilities, and painful physical intrusion. As the degree of physical injury increases, the danger to life itself escalates. Notably, in criminal law, physical injuries constitute a crime against persons because they are an affront to the bodily integrity or security of a person. xxx Third, the right to security of person is a guarantee of protection of one's rights by the government. In the context of the writ of amparo, this right is built into the guarantees of the right to life and liberty under Article III, Section 1 of the 1987 Constitution and the right to security of person (as freedom from threat and guarantee of bodily and psychological integrity) under Article III, Section 2. The right to security of person in this third sense is a corollary of the policy that the State "guarantees full respect for human rights" under Article II, Section 11 of the 1987 Constitution. As the government is the chief guarantor of order and security, the Constitutional guarantee of the rights to life, liberty and security of person is rendered ineffective if government does not afford protection to these

rights especially when they are under threat. Protection includes conducting effective investigations, organization of the government apparatus to extend protection to victims of extralegal killings or enforced disappearances (or threats thereof) and/or their families, and bringing offenders to the bar of justice. x x x (emphasis supplied) 19 cra The right to travel refers to the right to move from one place to another. 20 As we have stated in Marcos v. Sandiganbayan,21 "xxx a person's right to travel is subject to the usual constraints imposed by the very necessity of safeguarding the system of justice. In such cases, whether the accused should be permitted to leave the jurisdiction for humanitarian reasons is a matter of the court's sound discretion." 22 cra Here, the restriction on petitioner's right to travel as a consequence of the pendency of the criminal case filed against him was not unlawful. Petitioner has also failed to establish that his right to travel was impaired in the manner and to the extent that it amounted to a serious violation of his right to life, liberty and security, for which there exists no readily available legal recourse or remedy. In Canlas et al. v. Napico Homeowners Association I - XIII, Inc. et al.,23 this Court ruled that:cra:nad This new remedy of writ of amparo which is made available by this Court is intended for the protection of the highest possible rights of any person, which is his or her right to life, liberty and security. The Court will not spare any time or effort on its part in order to give priority to petitions of this nature. However, the Court will also not waste its precious time and effort on matters not covered by the writ. We find the direct recourse to this Court inappropriate, considering the provision of Section 22 of the Rule on the Writ of Amparo which reads:cra:nad Section 22. Effect of Filing of a Criminal Action. - When a criminal action has been commenced, no separate petition for the writ shall be filed. The reliefs under the writ shall be available by motion in the criminal case. The procedure under this Rule shall govern the disposition of the reliefs available under the writ of amparo. Pursuant to the aforementioned Section 22, petitioner should have filed with the RTC-Makati a motion to lift HDO No. 45 in Criminal Case No. 073126. Petitioner, however, did not file in the RTC-Makati a motion to lift the DOJ's HDO, as his co-accused did in the same criminal case. Petitioner argues that it was not the RTC-Makati but the DOJ that issued the said HDO, and that it is his intention not to limit his remedy to the lifting of the HDO but also to question before this Court the constitutionality of the power of the DOJ Secretary to issue an HDO.24 We quote with approval the CA's ruling on this matter:cra:nad The said provision [Section 22] is an affirmation by the Supreme Court of its pronouncement in Crespo v. Mogul25that once a complaint or information is filed in court, any disposition of the case such as its dismissal or its continuation rests on the sound discretion of the court. Despite the denial of respondent's MR of the dismissal of the case against petitioner, the trial court has not lost control over Criminal Case No. 07-3126 which is still pending before it. By virtue of its

residual power, the court a quo retains the authority to entertain incidents in the instant case to the exclusion of even this Court. The relief petitioner seeks which is the lifting of the HDO was and is available by motion in the criminal case. (Sec. 22, Rule on the Writ of amparo, supra).26 cra Even in civil cases pending before the trial courts, the Court has no authority to separately and directly intervene through the writ of amparo, as elucidated in Tapuz v. Del Rosario,27 thus:cra:nad Where, as in this case, there is an ongoing civil process dealing directly with the possessory dispute and the reported acts of violence and harassment, we see no point in separately and directly intervening through a writ of amparo in the absence of any clear prima facie showing that the right to life, liberty or securitythe personal concern that the writ is intended to protectis immediately in danger or threatened, or that the danger or threat is continuing. We see no legal bar, however, to an application for the issuance of the writ, in a proper case, by motion in a pending case on appeal or on certiorari , applying by analogy the provisions on the co-existence of the writ with a separately filed criminal case. Additionally, petitioner is seeking the extraordinary writ of amparo due to his apprehension that the DOJ may deny his motion to lift the HDO. 28 Petitioner's apprehension is at best merely speculative. Thus, he has failed to show any clear threat to his right to liberty actionable through a petition for a writ of amparo. The absence of an actual controversy also renders it unnecessary for us on this occasion to pass upon the constitutionality of DOJ Circular No. 17, Series of 1998 (Prescribing Rules and Regulations Governing the Issuance of Hold Departure Orders); and Circular No. 18, Series of 2007 (Prescribing Rules and Regulations Governing the Issuance and Implementation of Watchlist Orders and for Other Purposes). WHEREFORE, the petition is DISMISSED. The assailed Decision of the CA dated February 4, 2008 in CA-G.R. No. 00011 is hereby AFFIRMED. SO ORDERED. PEOPLE OF THEPHILIPPINES, Plaintiff-Appellee, Present: - versus YNARES-SANTIAGO, Chairperson, CARPIO,* CORONA,** CHICO-NAZARIO, and PERALTA, JJ. Promulgated: G.R. 178300 No.

DOMINGO REYES y PAJE, ALVIN ARNALDO y AVENA and JOSELITO FLORES y VICTORIO, Accused-Appellants.

March 17, 2009 x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

During their arraignment,[5] appellants, assisted by a counsel de oficio, pleaded Not guilty to the CHICO-NAZARIO, J.: charge. Trial on the merits thereafter followed.

For review is the Decision,[1] dated 14 August 2006, and Resolution,[2] dated 18 October 2006, of The prosecution presented as witnesses Jona Abagatnan (Abagatnan), Robert Yao (Robert), Yao the Court of Appeals in CA-G.R. CR-H.C. No. 02301 affirming with modifications the Decision, San, Police Officer 3 (PO3) Alex Alberto, PO3 Roberto Jabien, Atty. Florimond Rous (Atty. Rous) and
[3]

dated 26 February 2002, of the Regional Trial Court (RTC), Branch 12, Malolos, Bulacan, in Atty. Carlo Uminga (Atty. Uminga). Their testimonies, taken together, attest to the following:

Criminal Case No. 1611-M-99 finding herein accused-appellants Domingo Reyes y Paje (Reyes), Alvin Arnaldo y Avena (Arnaldo) and Joselito Flores y Victorio (Flores) guilty of the special complex The Yao family is composed of Yao San (father), Chua Ong Ping Sim (mother), Robert and crime of kidnapping for ransom with homicide and imposing upon each of them the capital punishment Raymond (children), Lenny (daughter-in-law, wife of Robert), Matthew and Charlene (grandchildren), of death. and Jona Abagatnan and Josephine Ortea (housemaids). The Yao family owns and operates a poultry farm in Barangay Santo Cristo, San Jose del Monte, Bulacan. The facts culled from the records are as follows:

On 16 July 1999, at about 11:00 p.m., the Yao family, on board a Mazda MVP van, arrived at the On 11 August 1999, an Information[4] was filed before the RTC charging appellants with the their poultry farm in Barangay Sto. Cristo, San Jose del Monte, Bulacan. Yao San alighted from the special complex crime of kidnapping for ransom with homicide. The accusatory portion of the van to open the gate of the farm. At this juncture, appellant Reyes and a certain Juanito Pataray information reads: (Pataray) approached, poked their guns at Yao San, and dragged him inside the van. Appellant Reyes The undersigned State Prosecutor of the Department of Justice hereby accuses Domingo Reyes y Paje, Alvin Arnaldo y Avena and Joselito Flores y Victorio of the crime of kidnapping for ransom with homicide defined and penalized under Article 267 of the Revised Penal Code, as amended, committed as follows: That on or about 11:00 p.m. on July 16, 1999, at Sitio Lambakin, barangay Sto. Cristo, San Jose del Monte, Bulacan, Philippines and within the jurisdiction of this Honorable Court, the above-named accused conspiring, confederating and mutually helping one another and grouping themselves together with Juanito Pataray y Cayaban, Federico Pataray y Cabayan and Rommel Libarnes y Acejo, who are still at large, did then and there willfully, unlawfully and feloniously, by means of force and intimidation and with use of firearms, carry away and deprive Robert Yao, Yao San, Chua Ong Ping Sim, Raymond Yao, Ronald Matthew Yao, Lennie Yao, Charlene Yao, Jona Abagatnan ang Josephine Ortea against their will and consent on board their Mazda MVP van for the purpose of extorting money in the amount of Five Million Pesos (P5,000,000.00), that during the detention of Chua Ong Ping Sim and Raymong Yao, said accused with intent to kill, willfully and unlawfully strangled Chua Ong Ping Sim and Raymond Yao to death to the damage and prejudice of their heirs in such amount as may be awarded to them by this Honorable Court. and Pataray also boarded the van. Thereupon, appellants Arnaldo and Flores, with two male companions, all armed with guns, arrived and immediately boarded the van. Appellant Flores took the drivers seat and drove the van. Appellants Reyes and Arnaldo and their cohorts then blindfolded each member of the Yao family inside the van with packaging tape.[6]

After about 30 minutes of traveling on the road, the van stopped. Per order of appellants and their cohorts, Chua Ong Ping Sim, Robert, Raymond and Jona Abagatnan (Abagatnan) stepped out of the van with appellants Reyes and Arnaldo, Pataray and one of their male companions.[7] Appellant Flores, with the other male companion, drove the van with the remaining members of theYao family inside the vehicle.[8]

On 18 July 1999, appellants called Yao San through a cellular phone and demanded the ransom Later, the van stopped again. Appellant Flores and his male companion told Yao San to produce the amount of five million pesos (P5,000,000.00) as ransom in exchange for the release of Chua Ong Ping Sim, Robert, Raymond and Abagatnan. Thereafter, appellant Flores and his male companion left the van and fled; while Yao San, Lenny, Matthew, Charlene and Josephine remained inside the van. Upon sensing that the kidnappers had already left, Yao San drove the van towards the poultry farm and sought the help of relatives.[9] On the morning of 19 July 1999, appellants again called Yao San via a cellular phone and threatened to kill Chua Ong Ping Sim and Raymond because of newspaper and radio reports regarding the incident. Yao San clarified to appellants that he did not report the incident to the police and also pleaded with them to spare the life of Chua Ong Ping Sim and Raymond. Appellants then instructed Meanwhile, Chua Ong Ping Sim, Robert, Raymond and Abagatnan were taken on foot by appellants Reyes and Arnaldo, Pataray and one male companion to a safe-house situated in the mountainous part of San Jose Del Monte, Bulacan where they spent the whole night.[10] Yao San to appear and bring with him the ransom of P5 million at 3:00 p.m. in the Usan dumpsite, Litex Road, Fairview,Quezon City. Yao San arrived at the designated place of the pay-off at 4:00 p.m., but none of the appellants or their cohorts showed up. Yao San waited for appellants call, but none came. Thus, Yao San left.[14] On the morning of the following day, at around 4:00 a.m., appellants and their cohorts tried to contact Yao San regarding the ransom demanded, but the latter could not be reached. Thus, appellants instructed Abagatnan to look for Yao San in the poultry farm. Appellants Reyes and Arnaldo and one male companion escorted Abagatnan in proceeding to the poultry farm. Upon arriving therein, Abagatnan searched for Yao San, but the latter could not be found. Appellants Reyes and Arnaldo told Abagatnan to remind Yao San about the ransom demanded. Thereafter, appellants Reyes and Arnaldo and their male companion left Abagatnan in the poultry farm and went back to the safe-house.[11] On 26 July 1999, appellant Arnaldo surrendered to the Presidential Anti-Organized Crime Task Force (PAOCTF) at CampCrame, Quezon City. Thereupon, appellant Arnaldo, with the assistance of Atty. Uminga, executed a written extra-judicial confession narrating his participation in the incident. Appellant Arnaldo identified appellants Reyes and Flores, Pataray and a certain Tata and In the safe-house, appellants told Robert that they would release him so he could help Abagatnan in locating Yao San. Robert and appellants left the safe-house, and after 30 minutes of trekking, appellants abandoned Robert. Robert then ran towards the poultry farm. Upon arriving at the poultry farm, Robert found Yao San and informed him about the ransom demanded by the appellants. Robert also told Yao San that Chua Ong Ping Sim and Raymond were still held by appellants and their cohorts.[12] Subsequently, appellant Reyes was arrested in Sto. Cristo, San Jose del Monte, Bulacan. Thereafter, appellants Arnaldo and Reyes were identified in a police line-up by Yao San, Robert and Abagatnan as their kidnappers.[18] Akey as his co-participants in the incident. Appellant Arnaldo also described the physical features of his cohorts and revealed their whereabouts.[17] On 23 July 1999, the corpses of Chua Ong Ping Sim and Raymond were found at the La Mesa Dam, Novaliches, Quezon City.[15] Both died of asphyxia by strangulation.[16] of P5 million for Chua Ong Ping Sim and Raymond. Yao San acceded to appellants demand. Appellants allowed Yao San to talk with Chua Ong Ping Sim.[13]

On 10

August 1999,

agents of the PAOCTF arrested appellant Flores in

Balayan,

to Camp Crame and

met

therein

Colonel

Cesar

Mancao

III

(Colonel

Mancao)

of

the

Batangas. Afterwards, appellant Flores, with the assistance of Atty. Rous, executed a written extrajudicial confession detailing his participation in the incident. Appellant Floresidentified appellants Reyes and Arnaldo, Pataray and a certain Tata and Akey as his co-participants in the incident. Appellant Floreswas subsequently identified in a police line-up by Yao San, Robert and Abagatnan as one of their kidnappers.[19]

PAOCTF. Colonel Mancao told him that the PAOCTF would arrest Brgy. Capt. Ramos and certain persons named Gerry Bautista and Dadie Bautista. Colonel Mancao instructed him to identify said persons as responsible for the kidnapping of the Yao family. He refused to do so because he feared Brgy. Capt. Ramos. The day after, Colonel Mancao called appellant Arnaldo to his office. Upon arriving thereat, the latter saw Yao San. Yao San promised him that if their kidnappers would be apprehended through his cooperation, he would give him P500,000.00. He accepted Yao Sans offer

The prosecution adduced documentary evidence to bolster the aforesaid allegations, to wit: (1) Sinumpaang Salaysay of Abagatnan (Exhibit A);[20] (2) Karagdagang Sinumpaang Salaysay of Abagatnan, Robert and Yao San (Exhibit B);[21] (3) sketch made by Abagatnan (Exhibit C);[22] (4) death certificates of Chua Ong Ping Sim and Raymond (Exhibits D & E);[23] (5)Sinumpaang Salaysay of Robert (Exhibit F);[24] (6) Sinumpaang Salaysay of Yao San (Exhibit H);[25] (7) joint affidavit of Police Senior Inspector Loreto P. Delelis and PO3 Roberto Jabien (Exhibit I);[26] (8) joint affidavit of PO3 Alex Alberto and PO3 Leonito Fermin (Exhibit J);[27] (9) written extra-judicial confession of appellant Flores (Exhibit K);[28] (10) written extra-judicial confession of appellant Arnaldo (Exhibit L);[29] and (11) sketch made by appellant Arnaldo (Exhibit M).[30]

under the condition that he would identify a different set of suspects. Later, Colonel Mancao gave him P30,000.00.[31]

Subsequently, he pointed to appellants Reyes and Flores as his cohorts in kidnapping the Yao family. He implicated appellants Reyes and Flores to get even with them, since the two had previously mauled him after he sold their fighting cocks and failed to give them the proceeds of the sale.[32]

He denied having met with Atty. Uminga. He was not assisted by the latter when he was forced by the PAOCTF to make a written extra-judicial confession on the kidnapping of

For its part, the defense presented the testimonies of appellants, Marina Reyes, Irene Flores Celestino, Wilfredo Celestino, Jr., Rachel C. Ramos, and Isidro Arnaldo. Appellants denied any liability and interposed alibis and the defense of frame-up. Their testimonies, as corroborated by their witnesses, are as follows:

the Yao family. Further, he claimed that while he was under the custody of PAOCTF, a certain Major Paulino utilized him as a drug pusher. Upon failing to remit the proceeds of the drug sale, he was beaten up by PAOCTF agents and thereafter included as accused with appellants Reyes and Flores for the kidnapping of the Yaofamily.[33]

Appellant Arnaldo testified that he was an asset of the PAOCTF. He narrated that on 25 July 1999, while he was at the tricycle terminal of Brgy. Sto. Cristo, San Jose del Monte, Bulacan, a police officer named Liwanag of the PAOCTF approached and invited him to go to Camp Crame to shed light on a kidnapping case allegedly committed by a certain Brgy. Captain Ramos and by members of the Aguirre and Bautista families. He accepted the invitation. Subsequently, he proceeded

On the other hand, appellant Reyes testified that he slept in his house with his family from 6:00 p.m. of 16 July 1999 until the morning of the next day; that on the early morning of 26 July 1999, five policemen barged into his house and arrested him; that the policemen told him that he was a suspect in the kidnapping of the Yao family; that he was mauled by the policemen outside his house; that the policemen forcibly brought him to Camp Crame, where he was subsequently tortured; that he knew the

Yao family because he worked as a carpenter in the familys poultry farm at Brgy. Sto. Cristo, San Jose del Monte, Bulacan; that he had no involvement in the kidnapping of the family; and that appellant Arnaldo implicated him in the kidnapping of the family because appellant Arnaldo held a grudge against him.[34]

WHEREFORE, finding herein three (3) accused DOMINGO REYES y PAJE, ALVIN ARNALDO y AVENA, and JOSELITO FLORES y VICTORIO guilty as principals beyond reasonable doubt of the crime of KIDNAPPING FOR RANSOM WITH (DOUBLE) HOMICIDE as charged, they are hereby sentenced each to suffer the supreme penalty of DEATH as mandated by law, to jointly and severally indemnify the heirs of deceased Chua Ong Ping Sim and Raymond Yao in the amount of One Hundred Fifty Thousand Pesos (P150,000.00), and all the private offended parties or victims, including the heirs of the deceased, in the amount of Five Hundred Thousand Pesos (P500,000.00) as moral damages, subject to the corresponding filing fee as a first lien, and to pay the costs of the proceedings.[39]

For his part, appellant Flores testified that he stayed in his sisters house at Antipolo City from 12 July 1999 up to 30 July 1999; that he went to her house on 12 July 1999 because it was the birthday of her child; that he worked as a construction worker during his stay in his sisters house; that he was arrested in Batangas and thereafter brought to Camp Crame, where he was beaten up by policemen for refusing to admit involvement in the kidnapping of the Yao family; that after three days of beating, he was forced to sign a document which he later found out to be a written extra-judicial confession; that he never met nor did he know Atty. Rous; that he knew the Yao family because he lived near the familys poultry farm, and he used to work therein as a welder; that he had no participation in the kidnapping of the family; and that appellant Arnaldo implicated him in the kidnapping of the family because he and appellant Reyes had mauled appellant Arnaldo several years ago.[35] On 14 August 2006, the Court of Appeals promulgated its Decision affirming with modifications the RTC Decision. The appellate court reduced the penalty imposed by the RTC on each of the appellants from death penalty to reclusion perpetua without the possibility of parole. It also decreased the amount of civil indemnity from P150,000.00 to P100,000.00. Further, it directed appellants to pay jointly and severally the Yao family P100,000.00 as exemplary damages. The fallo of the Court of Appeals decision states: The defense proffered documentary and object evidence to buttress their foregoing claims, to wit: (1) prayer booklet of appellant Arnaldo (Exhibit 1 for appellant Arnaldo); Mancao (Exhibit 2 for appellant Arnaldo);[37] and (3)
[36]

By reason of the death penalty imposed on each of the appellants, the instant case was elevated to us for automatic review. However, pursuant to our ruling in People v. Mateo,[40] we remanded the instant case to the Court of Appeals for proper disposition.

(2) calling card of Colonel allegedly showing

pictures

WHEREFORE, premises considered, the Decision of the Regional Trial Court of Malolos, Bulacan, Branch 12, dated February 26, 2002, in Criminal Case No. 1611-M-99 convicting accused-appellants of the crime of Kidnapping For Ransom with (Double) Homicide, is hereby AFFIRMED with MODIFICATIONS in that: 1) accused-appellants are instead sentenced to suffer the penalty of reclusion perpetua; 2) to P100,000; and the award of civil indemnity ex delicto is hereby reduced

appellant Flores working as a carpenter in Antipolo City (Exhibits 1 & 2 for appellant Flores).[38]

After trial, the RTC rendered a Decision dated 26 February 2002 convicting appellants of the special complex crime of kidnapping for ransom with homicide and sentencing each of them to suffer the supreme penalty of death. Appellants were also ordered to pay jointly and severally the Yao family P150,000.00 as civil indemnity, P500,000.00 as moral damages and the costs of the proceedings. The dispositive portion of the RTC Decision reads:

3) accused-appellants are further ordered to pay private complainants the amount of P100,000.00 as exemplary damages.[41]

Appellants filed a motion for reconsideration of the Court of Appeals Decision but this was denied. Hence, appellants filed their Notice of Appeal on 25 August 2006.

In their separate briefs,[42] appellants assigned the following errors:

After carefully reviewing the evidence on record and applying the foregoing guidelines to this case, we found no cogent reason to overturn the RTCs ruling finding the testimonies of the prosecution witnesses credible. Prosecution witnesses Abagatnan, Robert, and Yao San positively

I. THE TRIAL COURT ERRED IN GIVING WEIGHT AND CREDENCE TO THE TESTIMONIES OF THE PROSECUTION WITNESSES; II. THE TRIAL COURT ERRED IN FINDING A CONSPIRACY BETWEEN APPELLANTS; III. THE TRIAL COURT ERRED IN GIVING WEIGHT AND CREDENCE TO THE EXTRA-JUDICIAL CONFESSIONS OF APPELLANT ARNALDO AND APPELLANT FLORES; IV. during the incident. He also recounted that appellants and their cohorts detained him and Chua Ong THE TRIAL COURT ERRED IN TOTALLY IGNORING THE CORROBORATED EVIDENCE OF THE DEFENSE; V. THE TRIAL COURT ERRED IN FINDING THAT THE PROSECUTION HAD PROVEN APPELLANTS GUILT BEYOND REASONABLE DOUBT.[43] Ping Sim, Raymond and Abagatnan in a safe-house. He was later instructed by appellants to find Yao San and remind him about the ransom.[46] Yao San declared that during the incident, appellant Reyes and Pataray approached him, poked their guns at him, and dragged him into the identified appellants and their cohorts as their kidnappers during a police line-up and also during trial. Abagatnan specifically testified during the trial that after appellants and their cohorts forcibly entered the van where she and the Yao family were, appellant Flores drove the van away from the poultry farm; that appellants Reyes and Arnaldo were among the kidnappers who guarded her, Robert, Chua Ong Ping Sim and Raymond in the safe-house; and that appellants Reyes and Arnaldo accompanied her in going to the poultry farm to search for Yao San and remind him about the ransom demanded.[45] Robertconfirmed that appellants and their cohorts blindfolded them inside the van

van. Appellant Flores took the drivers seat and drove the van. Appellant Flores and his male companion told him to produce P5 million as ransom money in exchange for the release of Chua Ong Anent the first assigned error, appellants assail the credibility of prosecution witnesses Ping Sim, Robert, Raymond and Abagatnan.[47] Abagatnan, Robert and Yao San.

Abagatnan, Robert and Yao San testified in a clear and candid manner during the trial. Their In resolving issues pertaining to the credibility of the witnesses, this Court is guided by the respective testimonies were consistent with one another. They were steadfast in recounting their following well-settled principles: (1) the reviewing court will not disturb the findings of the lower ordeal despite the grueling cross examination of the defense. Moreover, their testimonies were in court, unless there is a showing that the latter overlooked, misunderstood or misapplied some fact or harmony with the documentary evidence adduced by the prosecution. The RTC and the Court of circumstance of weight and substance that may affect the result of the case; (2) the findings of the trial Appeals found their testimonies credible and trustworthy. Both courts also found no ill motive for court on the credibility of witnesses are entitled to great respect and even finality, as it had the Abagatnan, Robert and Yao San to testify against appellants. opportunity to examine their demeanor when they testified on the witness stand; and (3) a witness who testifies in a clear, positive and convincing manner is a credible witness.[44]

Appellants, nonetheless, maintain that Abagatnan, Robert and Yao San could not have identified their kidnappers, because (1) the incident occurred in the darkness of the night; (2) they were blindfolded then; and (3) the heads of the kidnappers were covered by T-shirts.

Appellants, however, insist that the testimonies of Abagatnan, Robert and Yao San that they were able to recognize the kidnappers -- because although the kidnappers heads were covered with T-shirts, their faces were nevertheless exposed or uncovered -- are incredible. Appellants argue that it is against human nature and experience that kidnappers would cover only their heads and not their faces in

It appears that the crime scene was well-lighted during the incident. At that time, there was a light from a fluorescent bulb hanging above the gate of the poultry farm wherein Yao San was held at gunpoint by appellant Reyes and Pataray.[48] The headlights of the van were also turned on, making it possible for Abagatnan and Robert to see the faces of appellant Reyes and Pataray as the two approached and poked their guns at Yao San.[49] Further, there was a bulb inside the van, which turned on when the doors van was opened. This bulb lighted up when appellants and their cohorts forcibly boarded the van, thus, allowing Abagatnan, Robert and Yao San to glance at the faces of appellants and their cohorts.[50]

concealing their identities.

It is not illogical or against human nature for appellants and their cohorts to cover their heads with T-shirts, while leaving their faces exposed and uncovered when they kidnapped the Yao family. Perhaps, appellants and their cohorts thought that putting T-shirts on their heads without covering their faces was sufficient to conceal their identities. Regardless of their reason, the fact remains that Abagatnan, Robert and Yao San positively identified appellants as their kidnappers, and their said identification and testimonies were found by the RTC, the Court of Appeals and by this Court to be credible. In People v. Barredo,[55] the victim testified that he was able to identify the

Although the Yao family was blindfolded during the incident, it was, nevertheless, shown that it took appellants and their cohorts about 10 minutes before all members of the Yao family were blindfolded.[51] During this considerable length of time, Abagatnan, Robert and Yao San were able to take a good look at the faces of appellants and their cohorts. In addition, Abagatnan and Robert narrated that their respective blindfolds loosened several times, giving them the opportunity to have a glimpse at the faces of appellants and their cohorts.[52]

accused as his assailants because the latter took off their masks during the assault. The accused argued that the victims testimony was incredible because persons who wore masks would not take them off so casually in the presence of their victims, as doing so would reveal their identities. The trial court, nonetheless, ruled that the victims testimony was credible and truthful. We sustained such ruling of the trial court and ratiocinated:

Abagatnan, Robert and Yao San testified that even though the heads of appellants and their cohorts were covered by T-shirts, their faces were, nonetheless, exposed and uncovered, allowing them to see their faces.[53] Robert and Yao San also declared that they recognized the faces of appellants during the incident because the latter resided near the poultry farm of the Yao family, which used to hire them several times in the farm as carpenters/welders.[54]

Appellants dispute the plausibility of Enrico Cebuhanos claim that he was able to identify the assailants because they took off their masks. Persons who wear masks would not take them off so casually in the presence of their victims, as doing so would thereby reveal their identities. x x x. The above arguments are untenable. In his testimony, Enrico Cebuhano clearly stated that the men who entered his home removed their masks when he was brought downstairs. Why they did so was known only to them. It is possible that they thought that there was no one in the vicinity who could identify them, or that they wanted Enrico to see who they were so as to intimidate him. It is also possible that they felt secure because there were 14 of them who were all armed. In any event, what is important is that the trial court found Enrico Cebuhanos testimony to be both credible and believable, and that he was able to positively identify appellants herein, because the men who entered his home removed their masks, x x x.

It is significant to note that Chua Ong Ping Sim and Raymond were brutally killed as a result of the kidnapping. It is difficult to believe that Robert and Yao San would point to appellants and their cohorts as their kidnappers if such were not true. A witness relationship to the victim of a crime makes his testimony more credible as it would be unnatural for a relative interested in vindicating a crime done to their family to accuse somebody other than the real culprit.[56] Relationship with a victim of a crime would deter a witness from indiscriminately implicating anybody in the crime. His natural and usual interest would be to identify the real malefactor and secure his conviction to obtain true justice for the death of a relative.[57]

length of time before a witness comes forward to reveal the identities of the perpetrators of the crime does not taint the credibility of the witness and his testimony where such delay is satisfactorily explained.[60]

Apropos the second assigned error, appellants contend that the prosecution failed to prove that they conspired in kidnapping the Yao family.

Under Article 8 of the Revised Penal Code, there is conspiracy when two or more persons agree to commit a felony and decide to commit it. Conspiracy presupposes unity of purpose and unity in the

Appellants put in issue the failure of Robert and Yao San to immediately report the incident and identify appellants to authorities despite their common claim that they recognized appellants, as the latter used to work in the poultry farm.

execution of the unlawful objective among the accused.[61] When the accused by their acts aimed at the same object, one performing one part and the other performing another part as to complete the crime, with a view to the attainment of the same object, conspiracy exists.[62]

Robert and Yao San cannot be blamed for not immediately reporting the incident to the authorities. Chua Ong Ping Sim and Raymond were still held by appellants and their cohorts when the ransom was demanded for their release. Appellants and their cohorts were armed and dangerous. Appellants and their cohorts also threatened to kill Chua Ong Ping Sim and Raymond if Yao San and Robert would report the incident to the authorities.[58] Understandably, Yao San and Robert were extremely fearful for the safety of their loved ones, and this caused them to refrain from reporting the incident. Robert and Yao San cannot also be blamed for not reporting the incident to the police even after the corpses of Chua Ong Ping Sim and Raymond had already been found, and appellants and their cohorts had cut their communication with them. Certainly, the killings of Chua Ong Ping Sim and Raymond had a chilling/paralyzing effect on Robert and Yao San. Also, appellants and their cohorts were still at large then, and the possibility that they would harm the remaining members of the Yao family was not remote, considering that appellants and their cohorts were familiar with the whereabouts of the Yao family. At any rate, we have held that failure to immediately report the kidnapping incident does not diminish the credibility of the witnesses.[59] The lapse of a considerable

As can be gleaned from the credible testimonies and sworn statements of Abagatnan, Robert and Yao, appellant Reyes and Pataray[63] approached and poked their guns at Yao San, and thereafter dragged the latter into the van. Appellant Flores then took the drivers seat and drove the van, while each member of the Yao family was blindfolded by appellants Reyes and Arnaldo and their cohorts inside the van. Thereafter, appellant Flores instructed Yao San to produce the amount of P5 million as ransom money in exchange for the release of Chua Ong Ping Sim, Robert, Raymond and Abagatnan. Appellant Reyes and appellant Arnaldo were among the kidnappers who guarded Abagatnan, Robert, Chua Ong Ping Sim and Raymond in the safe-house. They also accompanied Abagatnan and Robert in going to the poultry farm to search for and remind Yao San about the ransom demanded. Further, appellants Arnaldo and Flores narrated in their respective extra-judicial confessions[64] how they planned and executed the kidnapping of the Yao family. Their extra-judicial confessions also detailed the particular role/participation played by each of appellants and their cohorts in the kidnapping of the family. Clearly, the foregoing individual acts of appellants and their cohorts

demonstrated their unity of purpose and design in kidnapping the Yao family for the purpose of extorting ransom.

Appellant Arnaldo contends that his written extra-judicial confession should be excluded as evidence, as it was procured in violation of his constitutional right to have an independent counsel of his own choice during custodial investigation. He claims that he was not given freedom to choose his

Appellants, however, challenge the legality and admissibility of the written extra-judicial confessions.

counsel; that the agents of the PAOCTF did not ask him during the custodial investigation whether he had a lawyer of his own choice, and whether he could afford to hire a lawyer; and that the agents of the PAOCTF suggested the availability of Atty. Uminga to him.

Appellant Reyes claims that his alleged participation in the kidnapping of the Yao family was based solely on the written extra-judicial confessions of appellants Arnaldo and Flores. He maintains, however, that said extra-judicial confessions are inadmissible in evidence, because they were obtained in violation of his co-appellants constitutional right to have an independent counsel of their own choice during custodial investigation. Appellant Reyes alleges that the agents of the PAOCTF did not ask his co-appellants during the custodial investigation whether they had a lawyer of their own choice, and whether they could afford to hire a lawyer; that the agents of the PAOCTF suggested the availability of Atty. Uminga and Atty. Rous to his co-appellants; and that Atty. Uminga and Atty. Rous were associates of the PAOCTF. Appellant Reyes also asseverates that the extra-judicial confessions of appellants Arnaldo and Flores cannot be utilized against him. Section 12. (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. (2) No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other forms of detention are prohibited. (3) Any confession or admission obtained in violation of this or Section 17 shall be inadmissible in evidence against him. An extra-judicial confession is a declaration made voluntarily and without compulsion or inducement by a person under custodial investigation, stating or acknowledging that he had committed or participated in the commission of a crime.[65] In order that an extra-judicial confession may be admitted in evidence, Article III, Section 12 of the 1987 Constitution mandates that the following safeguards be observed[66]:

Appellant Flores argues that his written extra-judicial confession is inadmissible in evidence, because it was obtained in violation of his constitutional right to have an independent counsel of his own choice during custodial investigation. He insists that his written extra-judicial confession was elicited through force, torture and without the assistance of a lawyer. He avers that he was not assisted by any lawyer from the time he was arrested until he was coerced to sign the purported confession; that he was forced to sign it because he could not anymore endure the beatings he suffered at the hands of the PAOCTF agents; and that he never met or knew Atty. Rous who, according to the PAOCTF, had assisted him during the custodial investigation.

Thus, we have held that an extra-judicial confession is admissible in evidence if the following requisites have been satisfied: (1) it must be voluntary; (2) it must be made with the assistance of competent and independent counsel; (3) it must be express; and (4) it must be in writing.[67]

The mantle of protection afforded by the above-quoted constitutional provision covers the period from the time a person is taken into custody for the investigation of his possible participation in the commission of a crime or from the time he is singled out as a suspect in the commission of the offense although not yet in custody.[68]

We have gone over the records and found that the PAOCTF investigators have duly apprised The right of an accused to be informed of the right to remain silent and to counsel contemplates the transmission of meaningful information rather than just the ceremonial and perfunctory recitation of an abstract constitutional principle.[69] Such right contemplates effective communication which results in the subject understanding what is conveyed.[70] The Pasubali[76] of appellants Arnaldo and Floress written extra-judicial confessions clearly shows that before they made their respective confessions, the PAOCTF investigators had informed The right to counsel is a fundamental right and is intended to preclude the slightest coercion as would lead the accused to admit something false. [71] The right to counsel attaches upon the start of the investigation, i.e., when the investigating officer starts to ask questions to elicit information and/or confessions or admissions from the accused.[72] The lawyer called to be present during such investigation should be, as far as reasonably possible, the choice of the accused. If the lawyer is one furnished in behalf of accused, he should be competent and independent; that is, he must be willing to fully safeguard the constitutional rights of the accused.[73] A competent and independent counsel is logically required to be present and able to advice and assist his client from the time the latter answers the first question asked by the investigator until the signing of the confession. Moreover, the lawyer should ascertain that the confession was made voluntarily, and that the person under investigation fully understood the nature and the consequence of his extra-judicial confession vis-a-vis his constitutional rights. [74] them that the interrogation about to be conducted on them referred to the kidnapping of the Yao family. Thereafter, the PAOCTF agents explained to them that they had a constitutional right to remain silent, and that anything they would say may be used against them in a court of law. They were also told that they were entitled to a counsel of their own choice, and that they would be provided with one if they had none. When asked if they had a lawyer of their own, appellant Arnaldo replied that he would be assisted by Atty. Uminga, while appellant Flores agreed to be represented by Atty. Rous. Thereafter, when asked if they understood their said rights, they replied in the affirmative. The appraisal of their constitutional rights was done in the presence of their respective lawyers and in the Tagalog dialect, the language spoken and understood by them. Appellants Arnaldo and Flores and their respective counsels, Atty. Uminga and Atty. Rous, also signed and thumbmarked the extrajudicial confessions. Atty. Uminga and Atty. Rous attested to the veracity of the afore-cited facts in their respective court testimonies.[77] Indeed, the appraisal of appellants constitutional rights was not merely perfunctory, because it appeared certain that appellants had understood and, in fact, exercised However, the foregoing rule is not intended to deter to the accused from confessing guilt if he voluntarily and intelligently so desires, but to protect him from admitting what he is being coerced to admit although untrue. To be an effective counsel, a lawyer need not challenge all the questions being propounded to his client. The presence of a lawyer is not intended to stop an accused from saying anything which might incriminate him; but, rather, it was adopted in our Constitution to preclude the slightest coercion on the accused to admit something false. The counsel should never prevent an accused from freely and voluntarily telling the truth.[75] As regards appellant Arnaldo, Atty. Uminga testified that prior to the questioning of appellant Arnaldo about the incident, Atty. Uminga told the PAOCTF investigators and agents to give him and appellant Arnaldo space and privacy, so that they could freely converse. After the PAOCTF Records reflect that appellants Arnaldo and Reyes were likewise accorded their right to competent and independent counsel during their respective custodial investigations. their fundamental rights after being informed thereof. appellants Arnaldo and Flores of their constitutional rights to remain silent and to have competent and independent counsel of their own choice during their respective custodial investigations.

investigators and agents left them, he and appellant Arnaldo went to a cubicle where only the two of them were present. He interviewed appellant Arnaldo in the Tagalog language regarding the latters personal circumstances and asked him why he was in the PAOCTF office and why he wanted a lawyer. Appellant Arnaldo replied that he wanted to make a confession about his participation in the kidnapping of the Yao family. Thereupon, he asked appellant Arnaldo if the latter would accept his assistance as his lawyer for purposes of his confession. Appellant Arnaldo agreed. He warned appellant Arnaldo that he might be sentenced to death if he confessed involvement in the incident. Appellant Arnaldo answered that he would face the consequences because he was bothered by his conscience. He inquired from appellant Arnaldo if he was harmed or intimidated into giving selfincriminating statements to the PAOCTF investigators. Appellant Arnaldo answered in the negative. He requested appellant Arnaldo to remove his shirt for him to check if there were torture marks on his body, but he found none. He also observed that appellant Arnaldos appearance and movements were normal. His conference with appellant Arnaldo lasted for 15 minutes or more. Thereafter, he allowed the PAOCTF investigators to question appellant Arnaldo.[78]

With respect to appellant Flores, Atty. Rous declared that before the PAOCTF investigators began questioning appellant, Atty. Rous interviewed him in Tagalog inside a room, where only the two of them were present. He asked appellant Flores about his personal

circumstances. Appellant Flores replied that he was a suspect in the kidnapping of the Yao family, and he wanted to give a confession regarding his involvement in the said incident. He asked appellant Flores whether he would accept his assistance as his lawyer. Appellant Flores affirmed that he would. He asked appellant Flores why he wanted to give such

confession. AppellantFlores answered that he was bothered by his conscience. Atty. Rous warned appellant Flores that his confession would be used against him in a court of law, and that the death penalty might be imposed on him. Appellant Flores told him that he wanted to tell the truth and unload the burden on his mind. He requested appellant Flores to lift his shirt for the former to verify if there were torture marks or bruises on his body, but found none. Again, he cautioned appellant Flores about the serious consequences of his confession, but the latter maintained that he wanted to tell the truth. Thereafter, he permitted the PAOCTF investigators to question appellant Flores.[80]

Further, Atty. Uminga sat beside appellant Arnaldo during the inquiry and listened to the latters entire confession. After the taking of appellant Arnaldos confession, Atty. Uminga requested the PAOCTF investigators to give him a copy of appellant Arnaldos confession. Upon obtaining such copy, he read it entirely and thereafter gave it to appellant Arnaldo. He instructed appellant Arnaldo to read and comprehend the same carefully. He told appellant Arnaldo to ask him for clarification and comment if he did not agree or understand any part of his written confession. Appellant Arnaldo read his entire written confession and handed it to him. Atty. Uminga asked him if he had objections to it. Appellant Arnaldo replied in the negative. He then reminded appellant Arnaldo that the latter could still change his mind, and that he was not being forced to sign. Appellant Arnaldo manifested that he would sign his written confession. Later, he and appellant Arnaldo affixed their signatures to the written confession.[79]

Additionally, Atty. Rous stayed with appellant Flores while the latter was giving statements to the PAOCTF investigators. After the taking of appellant Flores statements, he instructed appellant Flores to read and check his written confession. AppellantFlores read the same and made some minor corrections. He also read appellant Flores written confession. Afterwards, he and appellant Flores signed the latters written confession.[81]

It is true that it was the PAOCTF which contacted and suggested the availability of Atty. Uminga and Atty. Rous to appellants Arnaldo and Flores, respectively. Nonetheless, this does not automatically imply that their right to counsel was violated. What the Constitution requires is the presence of competent and independent counsel, one who will effectively undertake his clients defense without any intervening conflict of interest. [82] There was no conflict of interest with regard to the legal assistance rendered by Atty. Uminga and Atty. Rous. Both counsels had no interest adverse

to appellants Arnaldo and Flores. Although Atty. Uminga testified that he was a former National Bureau of Investigation (NBI) agent, he, nevertheless, clarified that he had been separated therefrom since 1994[83] when he went into private practice. Atty. Uminga declared under oath that he was a private practitioner when he assisted appellant Arnaldo during the custodial investigation. [84] It appears that Atty. Uminga was called by the PAOCTF to assist appellant Arnaldo, because Atty. Umingas telephone number was listed on the directory of his former NBI officemates detailed at the PAOCTF. Atty. Rous, on the other hand, was a member of the Free Legal Aid Committee of the Integrated Bar of thePhilippines, Quezon City at the time he rendered legal assistance to appellant Flores.[85] Part of Atty. Rous duty as member of the said group was to render legal assistance to the indigents including suspects under custodial investigation. There was no evidence showing that Atty. Rous had organizational or personal links to the PAOCTF. In fact, he proceeded to the PAOCTF office to assist appellant Flores, because he happened to be the lawyer manning the office when the PAOCTF called.
[86]

investigators, the suspect has the final choice, as he may reject the counsel chosen for him and ask for another one. A lawyer provided by the investigators is deemed engaged by the accused when he does not raise any objection to the counsels appointment during the course of the investigation, and the accused thereafter subscribes to the veracity of the statement before the swearing officer.[89] Appellants Arnaldo and Flores did not object to the appointment of Atty. Uminga and Atty. Rous as their lawyers, respectively, during their custodial investigation. Prior to their questioning, appellants Arnaldo and Flores conferred with Atty. Uminga and Atty. Rous. Appellant Arnaldo manifested that he would be assisted by Atty. Uminga, while appellant Flores agreed to be counseled by Atty. Rous. Atty. Uminga and Atty. Rous countersigned the written extra-judicial confessions of appellants Arnaldo and Flores, respectively. Hence, appellants Arnaldo and Flores are deemed to have engaged the services of Atty. Uminga and Atty. Rous, respectively.

In People v. Fabro,[87]we stated:

Since the prosecution has sufficiently established that the respective extra-judicial confessions of appellant Arnaldo and appellant Flores were obtained in accordance with the constitutional guarantees,

The Constitution further requires that the counsel be independent; thus, he cannot be a special counsel, public or private prosecutor, counsel of the police, or a municipal attorney whose interest is admittedly adverse to that of the accused. Atty. Jungco does not fall under any of said enumeration. Nor is there any evidence that he had any interest adverse to that of the accused. The indelible fact is that he was president of the Zambales Chapter of the Integrated Bar of the Philippines, and not a lackey of the lawmen.

these confessions are admissible. They are evidence of a high order because of the strong presumption that no person of normal mind would deliberately and knowingly confess to a crime, unless prompted by truth and conscience.[90] Consequently, the burden of proving that undue pressure or duress was used to procure the confessions rests on appellants Arnaldo and Flores.[91]

Further, as earlier stated, under Section 12(1), Article III of the 1987 Constitution, an accused is entitled to have competent and independent counsel preferably of his own choice. The phrase preferably of his own choice does not convey the message that the choice of a lawyer by a person under investigation is exclusive as to preclude other equally competent and independent attorneys from handling the defense. Otherwise, the tempo of custodial investigation would be solely in the hands of the accused who can impede, nay, obstruct, the progress of the interrogation by simply selecting a lawyer who, for one reason or another, is not available to protect his interest.[88] While the choice of a lawyer in cases where the person under custodial interrogation cannot afford the services of counsel or where the preferred lawyer is not available is naturally lodged in the police In the case at bar, appellants Arnaldo and Flores failed to discharge their burden of proving that they were forced or coerced to make their respective confessions. Other than their self-serving statements that they were maltreated by the PAOCTF officers/agents, they did not present any plausible proof to substantiate their claims. They did not submit any medical report showing that their bodies were subjected to violence or torture. Neither did they file complaints against the persons who had allegedly beaten or forced them to execute their respective confessions despite several opportunities to do so. Appellants Arnaldo and Flores averred that they informed their family members/relatives of the alleged maltreatment, but the latter did not report such allegations to proper

authorities. On the contrary, appellants Arnaldo and Flores declared in their respective confessions that they were not forced or harmed in giving their sworn statements, and that they were not promised or given any award in consideration of the same. Records also bear out that they were physically examined by doctors before they made their confessions.[92] Their physical examination reports certify that no external signs of physical injury or any form of trauma were noted during their examination.
[93]

In People v. Pia,[94] we held that the following factors indicate voluntariness of an extra-judicial

It is also to be noted that APPELLANTS extrajudicial confessions were independently made without collusion, are identical with each other in their material respects and confirmatory of the other. They are, therefore, also admissible as circumstantial evidence against their co-accused implicated therein to show the probability of the latters actual participation in the commission of the crime. They are also admissible as corroborative evidence against the others, it being clear from other facts and circumstances presented that persons other than the declarants themselves participated in the commission of the crime charged and proved. They are what is commonly known as interlocking confession and constitute an exception to the general rule that extrajudicial confessions/admissions are admissible in evidence only against the declarants thereof.

confession: (1) where the accused failed to present credible evidence of compulsion or duress or violence on their persons; (2) where they failed to complain to the officers who administered the oaths; (3) where they did not institute any criminal or administrative action against their alleged intimidators for maltreatment; (4) where there appeared to be no marks of violence on their bodies; and (5) where they did not have themselves examined by a reputable physician to buttress their claim. Nevertheless, even without the extra-judicial confessions of appellants Arnaldo and Flores, It should also be noted that the extra-judicial confessions of appellants Arnaldo and Flores are replete with details on the manner in which the kidnapping was committed, thereby ruling out the possibility that these were involuntarily made. Their extra-judicial confessions clearly state how appellants and their cohorts planned the kidnapping as well as the sequence of events before, during and after its occurrence. The voluntariness of a confession may be inferred from its language if, upon its face, the confession exhibits no suspicious circumstances tending to cast doubt upon its integrity, it being replete with details which could only be supplied by the accused.
[95]

Appellants Arnaldo and Flores stated in their respective confessions that appellant Reyes participated in their kidnapping of theYao family. These statements are, therefore, admissible as corroborative and circumstantial evidence to prove appellant Reyes guilt.

evidence on record is sufficient to sustain a finding of culpability of appellant Reyes. As earlier found, Abagatnan, Robert and Yao positively identified appellant Reyes as one of their kidnappers. They specifically testified that during the incident, appellant Reyes (1) approached and pointed a gun at Yao San and dragged the latter inside the van; and (2) accompanied Abagatnan and Robert in going to the poultry farm to search for and remind Yao San about the ransom demanded. The RTC, Court of Appeals and this Court found such testimonies credible.

Appellants argue that their alibis cast reasonable doubt on their alleged guilt. Appellant Reyes With respect to appellant Reyess claim that the extra-judicial confessions of appellants Arnaldo and Flores cannot be used in evidence against him, we have ruled that although an extra-judicial confession is admissible only against the confessant, jurisprudence makes it admissible as corroborative evidence of other facts that tend to establish the guilt of his co-accused. Alvarez,
[97] [96]

avers that he could not have been one of those who kidnapped the Yao family on the night of 16 July 1999 at around 11:00 p.m., because he was sleeping with his family in their residence during such time and date. Likewise, appellant Flores asseverates that he could not have been present at the crime scene on such date and time, as he was already sleeping in his sisters house at Antipolo City. For his part, appellant Arnaldo asserts that he is a victim of a police frame-up. He alleges that he was an asset of the PAOCTF, but was later utilized as a drug pusher by the said agency. Upon failing to remit the

In People v.

we ruled that where the confession is used as circumstantial evidence to show the

probability of participation by the co-conspirator, that confession is receivable as evidence against a co-accused. In People v. Encipido
[98]

we elucidated as follows:

proceeds of a shabu sale to the PAOCTF officers, he was beaten up and included as accused in the kidnapping of the Yao family.

at that late evening. Obviously, appellants Reyes and Flores failed to prove convincingly that it was physically impossible for them to be at the crime scene during the incident.

Alibi is the weakest of all defenses, for it is easy to contrive and difficult to prove. Alibi must be proved by the accused with clear and convincing evidence; otherwise it cannot prevail over the positive testimonies of credible witnesses who testify on affirmative matters. For alibi to prosper, it is not enough for the accused to prove that he was somewhere else when the crime was committed. He must likewise prove that it was physically impossible for him to be present at the crime scene or its immediate vicinity at the time of its commission.[99]

Appellant Flores submitted two pictures which, according to him, show that he worked as a construction worker from 12 July 1999 up to 30 July 1999 while staying in his sisters house at Antipolo City. These pictures, however, do not clearly and convincingly support such claim, because (1) the pictures were undated; (2) the shots were taken from a far distance; and (3) the face of the man in the pictures which appellant Flores claims as his is blurred, unrecognizable and almost hidden, as such person is wearing a cap and is in a position where only the right and back portions of his head and body are visible.

The defense of frame-up, like alibi, has been invariably viewed by this Court with disfavor, for it can easily be concocted but is difficult to prove. In order to prosper, the defense of frame-up must be proved by the accused with clear and convincing evidence.[100] Appellant Arnaldo also failed to prove with convincing evidence his defense of frame-up. Aside from his self-serving testimony that he was a former PAOCTF agent and that he was beaten and included as accused in the kidnapping of the Yao family by the PAOCTF agents because he failed to It should be observed that the family residence/house of appellant Reyes where he claimed to have slept when the incident occurred is located within Brgy. Sto. Cristo, San Jose del Monte, Bulacan.
[101]

remit to the PAOCTF officers the proceeds of his sale of shabu, he did not present convincing proof to support said allegations. He submitted the calling card of Colonel Mancao, which appears to have been signed by the latter at the back portion, but there is nothing on it which indicates or verifies that appellant Arnaldo was indeed a former PAOCTF agent. He also submitted a prayer book containing his handwritten narration of torture he allegedly experienced at the hands of the PAOCTF agents, but this does not conclusively show that he was beaten by the PAOCTF agents. As we earlier found, appellant Arnaldo did not produce any medical records/certificates or file any complaint against the PAOCTF agents to bolster his claim of maltreatment.

This is the same barangay where the Yao familys poultry farm is situated. Appellant Reyes, in

fact, admitted that the poultry farm is near his residence.[102] There is a huge possibility that appellant Reyes slept for a while, woke up before 11:00 p.m., and thereafter proceeded to the Yao familys poultry farm to participate in the kidnapping of the family. The same is true with appellant Flores. Wilfredo, appellant Flores nephew, testified that he and appellant went to bed and slept together in the house of appellants sister in Antipolo City at about 8:00 p.m. of16 July 1999.[103] It is greatly possible that Wifredo did not notice when appellant Flores woke up later at 9:00 p.m. and immediately proceeded to the Yao familys poultry farm to participate in the kidnapping of the family, arriving therein at about 11:00 p.m. It is a fact that a person coming from Antipolo City may reach San Jose del Monte, Bulacan in two hours via a motor vehicle, considering that there was no more heavy traffic

It is true that the alibis of appellants Reyes and Flores and the defense of frame-up of appellant Arnaldo were corroborated on some points by the testimonies of some of their relatives/friends. We have, however, held that alibi and the defense of frame-up become less plausible when they are corroborated only by relatives and friends because of perceived partiality.[104]

exacting ransom;[109] and (2) the kidnap victims were killed or died as a consequence of the kidnapping Indeed, the positive and credible testimonies of Abagatnan, Robert and Yao San prevail over the alibis and defense of frame-up of appellants.[105] or was raped, or subjected to torture or dehumanizing acts. Both of these qualifying circumstances are alleged in the information and proven during trial.

We shall now determine the propriety of appellants conviction for the special complex crime of kidnapping for ransom with homicide and the corresponding penalties imposed.

As testified to by Abagatnan, Robert and Yao San, appellants and their cohorts demanded the amount of P5 million for the release of Chua Ong Pong Sim and Raymond. In fact, Yao San went to the Usan dumpsite, Litex Road, Fairview, Quezon City, to hand over the ransom money to appellants

Under Article 267 of the Revised Penal Code, the crime of kidnapping is committed with the concurrence of the following elements: (1) the offender is a private individual; (2) he kidnaps or detains another, or in any manner deprives the latter of his liberty; (3) the act of detention or kidnapping is illegal; and (4) in the commission of the offense, any of the following circumstances is present: (a) the kidnapping or detention lasts for more than three days; (b) it is committed by simulating public authority; (c) serious physical injuries are inflicted upon the person kidnapped or detained or threats to kill him are made; or (d) the person kidnapped or detained is a minor, female, or a public officer.[106] All of the foregoing elements were duly establish by the testimonial and documentary evidences for the prosecution in the case at bar. First, appellants and their cohorts are private individuals. Second, appellants and their cohorts kidnapped the Yao family by taking control of their van and detaining them in a secluded place. Third, the Yao family was taken against their will. And fourth, threats to kill were made and the kidnap victims include females.

and their cohorts, but the latter did not show up. It was also apparent that Chua Ong Ping Sim and Raymond were killed or died during their captivity. Yao San declared that appellants and their cohorts called up and told him that they would kill Chua Ong Ping Sim and Raymond who were still under their custody, because they heard the radio report that the incident was already known to the police. True to their threats, the corpses of Chua Ong Ping Sim and Raymond were later found dumped in La Mesa Dam. Their respective death certificates show that they died of asphyxia by strangulation.

Withal, the death penalty cannot be imposed on the appellants in view of the passage of Republic Act No. 9346 on 24 June 2006 prohibiting the imposition of death penalty in the Philippines. In accordance with Sections 2 and 3 thereof, the penalty that should be meted out to the appellants is reclusion perpetua without the possibility of parole. The Court of Appeals, therefore, acted accordingly in imposing the penalty of reclusion perpetua without the possibility of parole on each of

Republic Act No. 7659 provides that the death penalty shall be imposed if any of the two qualifying circumstances is present in the commission of the kidnapping: (1) the motive of the kidnappers is to extort ransom for the release of the kidnap victims, although none of the circumstances mentioned under paragraph four of the elements of kidnapping were present. Ransom means money, price or consideration paid or demanded for the redemption of a captured person that would release him from captivity. [107] Whether or not the ransom is actually paid to or received by the perpetrators is of no moment.[108] It is sufficient that the kidnapping was committed for the purpose of

the appellants.

The Court of Appeals was also correct in ordering appellants to jointly and severally pay civil indemnity and exemplary damages to the Yao family. Nonetheless, their corresponding amounts should be modified. In People v. Quiachon,[110] we explained that even if the death penalty was not to be imposed on accused because of the prohibition in Republic Act No. 9346, the civil indemnity of P75,000.00 was still proper, as the said award was not dependent on the actual imposition of the

death penalty but on the fact that qualifying circumstances warranting the imposition of the death penalty attended the commission of the offense. As earlier stated, both the qualifying circumstances of demand for ransom and the double killing or death of two of the kidnap victims were alleged in the information and proven during trial. Thus, for the twin deaths of Chua Ong Ping Sim and Raymond, their heirs (Yao San, Robert, Lenny, Matthew and Charlene) are entitled to a total amount of P150,000.00 as civil indemnity. Exemplary damages are imposed by way of example or correction for the public good.[111] In criminal offenses, exemplary damages may be recovered when the crime was committed with one or more aggravating circumstances, whether ordinary or qualifying.[112] Since both the qualifying circumstances of demand for ransom and the killing or death of two of the kidnap victims (Chua Ong Ping Sim and Raymond) while in captivity were alleged in the information and proven during trial, and in order to deter others from committing the same despicable acts, the award of exemplary damages is proper. The total amount of P100,000.00 as exemplary damages should be modified. In several cases,[113] we awarded an amount of P100,000.00 to each of the kidnap victims. As in this case, the amount of P100,000.00 as exemplary damages should be awarded each to Yao San, Robert, Lenny, Matthew, Charlene, Abagatnan and Ortea. This makes the total amount of exemplary damages add up to P700,000.00.

Finally, we observed that the RTC and the Court of Appeals denominated the crime committed by appellants in the present case as the special complex crime of kidnapping for ransom with double homicide since two of the kidnap victims were killed or died during the kidnapping. The word double should be deleted therein. Regardless of the number of killings or deaths that occurred as a consequence of the kidnapping, the appropriate denomination of the crime should be the special complex crime of kidnapping for ransom with homicide.

WHEREFORE, the Decision, dated 14 August 2006, and Resolution, dated 18 October 2006, of the Court of Appeals in CA-G.R. CR-H.C. No. 02301 is hereby AFFIRMED with the following MODIFICATIONS: (1) the total amount of civil indemnity is P150,000.00; (2) the total amount of exemplary damages is P700,000.00; (3) the total amount of moral damages isP700,000.00; and (4) the appropriate denomination of the crime committed by appellants is the special complex crime of kidnapping for ransom with homicide.

SO ORDERED. PEOPLE OF THE PHILIPPINES, Appellee, Present: - versus -

G.R. No. 185710

The appellate court aptly held that the award of moral damages is warranted. Under Article 2217 of the New Civil Code, moral damages include physical suffering, mental anguish, fright, serious anxiety, wounded feelings, moral shock and similar injury. Article 2219 of the same Code provides that moral damages may be recovered in cases of illegal detention. There is no doubt that each member of the Yao family suffered physical and/or psychological trauma because of the ordeal, especially because two of the family members were ruthlessly killed during their captivity. Pursuant to prevailing jurisprudence,[114] Yao San, Robert, Lenny, Matthew, Charlene, Abagatnan and Ortea should each receive the amount of P100,000.00 as moral damages. Per computation, the total amount of moral damages is P700,000.00 and not P500,000.00 as fixed by the RTC and the Court of Appeals.

Carpio, J., Chairperson, Brion, Del Castillo, Abad, and Perez, JJ.

ROMULO TUNIACO, JEFFREY DATULAYTA and ALEX ALEMAN, Accused. Promulgated: ALEX ALEMAN, Appellant. January 19, 2010

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

DECISION

Some other police officer first took the statement of accused Jeffrey Datulayta. Officer Tabucon next took the statement of accused Aleman, whom he

ABAD, J.:

observed to be in good physical shape.

This case is about the requirements of a valid extrajudicial confession and the establishment of the existence of corpus delictiin murder cases.

Before anything else, officer Tabucon informed accused Aleman in Cebuano of his constitutional right to remain silent and to the assistance of counsel of his own choice and asked him if he was willing to give a statement. Aleman answered in the affirmative. When asked if he had any complaint to make,

The Facts and the Case

Aleman said that he had none. When Aleman said that he had no lawyer, Tabucon pointed to Atty. Besinga who claimed that he was assisting all the suspects in the case. Tabucon warned Aleman that anything he would say may

The city prosecutor of General Santos City charged the accused Romulo Tuniaco, Jeffrey Datulayta, and Alex Aleman with murder before the Regional Trial Court (RTC) of General Santos City in Criminal Case 8370.

be used against him later in court. Afterwards, the police officer started taking down Alemans statement.

Accused Aleman said that in the course of a drinking bout with accused Based on the findings of the RTC, in the morning of June 13, 1992 some police officers from the Lagao Police Sub-Station requested police officer Jaime Tabucon of the Central Police Station of General Santos City homicide division to take the statement of accused Alex Aleman regarding the slaying of a certain Dondon Cortez. On his arrival at the sub-station, Tabucon noted the presence of Atty. Ruperto Besinga, Jr. of the Public Attorneys Office (PAO) who was conversing with those taken into custody for the offense. When queried if the suspects would be willing to give their statements, Atty. Besinga said that they were. The three accused brought Cortez to Apopong near the dump site and, as they were walking, accused Aleman turned on Cortez and stabbed him on the Datulayta and Tuniaco at around 9 p.m. on June 6, 1992, Dondon Cortez threatened to report his drinking companions illegal activities to the police unless they gave him money for his forthcoming marriage. According to Aleman, Datulayta and Tuniaco had already planned to kill Cortez in Tupi, South Cotabato, for making the same threats and now they decided to do it. They got Cortez drunk then led him out supposedly to get the money he needed.

stomach. Accused Datulayta, on the other hand, drew out his single shot homemade M16 pistol[1]and shot Cortez on the head, causing him to

For some reason, the trial court had Aleman subjected to psychiatric examination at the Davao Mental Hospital. But, shortly after, the hospital sent word that Aleman had escaped. He was later recaptured. When trial in the case resumed, Alemans new PAO lawyer raised the defense of insanity. This prompted the court to require the Provincial Jail Warden to issue a certification regarding Alemans behavior and mental condition while in jail to determine if he was fit to stand trial. The warden complied, stating that Aleman had been

fall. Datulayta handed over the gun to Aleman who fired another shot on Cortezs head. Accused Tuniaco used the same gun to pump some bullets into Cortezs body. Then they covered him with rice husks.

After taking down the statement, Tabucon explained the substance of it to accused Aleman who then signed it in the presence of Atty. Besinga.

observed to have good mental condition and did not commit any infraction while in jail.

On June 15, 1992 the police brought Aleman to the City Prosecutors Office where he swore to his statement before an assistant city prosecutor. In the afternoon, accused Datulayta and Aleman led Tabucon, the city prosecutor, and a police inspector, to the dump site where they left their victims body. After some search, the group found a spot covered with burnt rice husks and a partially burnt body of a man. About a foot from the body, they found the shells of a 5.56 caliber gun and an armalite rifle.

Although the prosecution and defense stipulated that Atty. Besinga assisted accused Aleman during the taking of his extrajudicial confession, the latter, however, recanted what he said to the police during the trial. He testified that sometime in 1992, some police officers took him from his aunts house in Purok Palen, Labangal, General Santos City, and brought him to the Lagao police station. He was there asked to admit having taken part in the murder of Cortez. When he refused, they tortured him until he agreed to sign a document admitting his part in the crime.

On being arraigned, all three accused, assisted by Atty. Besinga, pleaded not guilty to the murder charge. After the prosecution rested its case, accused Tuniaco filed a demurrer to evidence which the Court granted, resulting in the dismissal of the case against him. On being re-arraigned at his request, accused Datulayta pleaded guilty to the lesser offense of Homicide. The trial court sentenced him to imprisonment of six years and one day and to pay P50,000.00 to the victims family. Accused Aleman also testified that he could not remember having been assisted by Atty. Besinga during the police investigation. He even denied ever knowing the lawyer. Aleman further denied prior association with accused Tuniaco and Datulayta. He said that he met them only at the city jail where they were detained for the death of Cortez.

On October 8, 2001 the RTC rendered judgment, finding accused Aleman guilty beyond reasonable doubt of the crime charged, and sentenced him to suffer the penalty of reclusion perpetua. The court also ordered him to pay death indemnity ofP70,000.00 and moral damages of P50,000.00 to the heirs of Cortez.

be evidence that murder has been committed.[2] Corpus delicti has two elements: (a) that a certain result has been established, for example, that a man has died and (b) that some person is criminally responsible for it.[3] The prosecution is burdened to prove corpus delicti beyond reasonable doubt either by direct evidence or by circumstantial or presumptive evidence.[4]

On appeal to the Court of Appeals (CA) in CA-G.R. CR-HC 00311, the court rendered judgment on January 21, 2008, affirming the decision of the RTC with the modification that directed accused Aleman and Datulayta to indemnify the heirs of Cortez, jointly and severally, in the amounts of P50,000.00 as civil indemnity; P50,000.00 as moral damages; P25,000.00 as temperate damages; and P25,000.00 as exemplary damages. Aleman appealed to this Court.

The defense claims that the prosecution failed to prove corpus delicti since it did not bother to present a medical certificate identifying the remains found at the dump site and an autopsy report showing such remains sustained gunshot and stab wounds that resulted in death; and the shells of the guns used in killing the victim.

But corpus delicti need not be proved by an autopsy report of the dead The Issues Presented victims body or even by the testimony of the physician who examined such body.
[5]

While such report or testimony is useful for understanding the nature of the

injuries the victim suffered, they are not indispensable proof of such injuries or of Accused Aleman raises two issues: a) whether or not the prosecution was able to present evidence of corpus delicti; and b) whether or not accused Alemans extrajudicial confession is admissible in evidence. the fact of death.[6] Nor is the presentation of the murder weapons also indispensable since the physical existence of such weapons is not an element of the crime of murder.[7]

The Rulings of the Court

Here, the police authorities found the remains of Cortez at the place pointed to by accused Aleman. That physical confirmation, coming after his testimony of the gruesome murder, sufficiently establishes the corpus delicti of the crime. Of

1.

Corpus delicti has been defined as the body, foundation, or substance

course, that statement must be admissible in evidence.

of a crime. The evidence of a dead body with a gunshot wound on its back would

2.

There is no reason for it not to be. Confession to be admissible must

Further, Aleman asserts that he was lacking in education and so he did not fully realize the consequences of a confession. But as the CA said, no law or jurisprudence requires the police officer to ascertain the educational attainment of the accused. All that is needed is an effective communication between the interrogator and the suspect to the end that the latter is able to understand his rights.[11] This appears to have been done in this case.

be a) voluntary; b) made with the assistance of a competent and independent counsel; c) express; and d) in writing. [8] These requirements were met here. A lawyer, not working with or was not beholden to the police, Atty. Besinga, assisted accused Aleman during the custodial investigation. Officer Tabucon testified that he saw accused Aleman, before the taking of his statement, conversing with counsel at the police station. Atty. Besinga did not dispute this claim.

Moreover, as the lower court noted, it is improbable that the police fabricated Alemans confession and just forced him to sign it. The confession has details Aleman alleges torture as the reason for the execution of the that only the person who committed the crime could have possibly known.
[12]

confession. The appellate court is correct in ruling that such allegation is baseless. It is a settled rule that where the defendant did not present evidence of compulsion, where he did not institute any criminal or administrative action against his supposed intimidators, where no physical evidence of violence was presented, all these will be considered as indicating voluntariness.[9] Here, although Aleman claimed that he bore torture marks on his head, he never brought this to the attention of his counsel, his relatives, or the prosecutor who administered his oath.

What is more, accused Datulaytas confession corroborate that of Aleman in details. Under the doctrine of interlocking confessions, such

important

corroboration is circumstantial evidence against the person implicated in it.[13]

The Court notes that, when it modified the award of civil damages to the heirs of Cortez, the CA made both accused Aleman and Datulayta, jointly and severally liable, for the damages as modified. But the appeal by one or more of several accused cannot affect those who did not appeal, except if the judgment of the appellate court is favorable and applicable to them.[14] Here accused

Accused Aleman claims, citing People v. Galit,[10] that long questions followed by monosyllabic answers do not satisfy the requirement that the accused is amply informed of his rights. But this does not apply here. Tabucon testified that he spoke to Aleman clearly in the language he knew. Aleman, joined by Atty. Besinga, even signed a certification that the investigator sufficiently explained to him his constitutional rights and that he was still willing to give his statement.

Datulayta pleaded guilty to the lesser offense of homicide and the trial court ordered him to pay only P50,000.00 in civil indemnity to the heirs of Cortez. The CA erred in expanding that liability when he did not appeal from his conviction.[15]

IN LIGHT OF THE FOREGOING, the Court AFFIRMS the Court of Appeals judgment in CA-G.R. CR-HC 00311 dated January 21, 2008 against

accused Alex Aleman. The Court, however, DELETES from such judgment the portion increasing the civil liability of accused Jeffrey Datulayta who did not appeal from the RTC decision against him.

WHEREFORE, the consolidated petitions and appeal are hereby DISMISSED. The Decision dated April 1, 2008 of the Court of Appeals in CA-G.R. CR-HC No. 00667 is hereby AFFIRMED with MODIFICATIONS in that the civil indemnity for the death of Col. Rolando N. Abadilla is hereby increased to P75,000.00, and the amounts of moral and exemplary damages awarded to his heirs are reduced to P75,000.00 and P30,000.00, respectively. With costs against the accused-appellants. SO ORDERED.1

SO ORDERED.

Lumanog and Augusto Santos seek the reversal of their conviction on the following grounds: The Honorable Supreme Court erred in:

G.R. No. 182555

February 8, 2011 AUGUSTO SANTOS, Petitioners,

I. Setting out in the facts of the case and the contents of inadmissible extrajudicial confessions; II. Not including the extrajudicial confession of Lorenzo delos Santos as excluded evidence; III. Applying the ruling in People v. Rivera "that the testimony of a sole eyewitness is sufficient to support a conviction so long as it is clear, straightforward and worthy of credence by the trial court"; IV. According finality to the evaluation made by the lower court of the testimony of Freddie Alejo; V. Ruling that there was positive identification; VI. Finding "none of the danger signals enumerated by Patrick M. Wall" when 3, 7, 10, 11, 12 in said enumeration are present; VII. Dismissing the mismatch between the prior description given by the witness and the actual appearances of the accused; VIII. Relying on the ocular inspection conducted at a time when a material condition is significantly altered; IX. Ruling that the inconsistencies in Alejos earlier statement and his in-court testimony have been explained; X. Not discrediting Alejos testimony despite acceptance of benefits from the Abadilla family; XI. Holding that the acquittal of Lorenzo delos Santos does not necessarily benefit the appellants; XII. Ruling that the ballistic and fingerprint examination results are inconclusive and not indispensable;

LENIDO LUMANOG and vs. PEOPLE OF THE PHILIPPINES, Respondent. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 185123 CESAR vs. PEOPLE OF THE PHILIPPINES, Respondent. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 187745 PEOPLE OF THE

FORTUNA, Petitioner,

PHILIPPINES, Plaintiff-Appellee,

vs. SPO2 CESAR FORTUNA y ABUDO, RAMESES DE JESUS y CALMA, LENIDO LUMANOG y LUISTRO, JOEL DE JESUS y VALDEZ and AUGUSTO SANTOS y GALANG, Accused, RAMESES DE JESUS y CALMA and JOEL DE JESUS y VALDEZ, AccusedAppellants. RESOLUTION VILLARAMA, JR., J.: This resolves the motions for reconsideration separately filed by Lenido Lumanog and Augusto Santos, Cesar Fortuna and Rameses de Jesus assailing our Decision dated September 7, 2010 convicting them of the crime of murder, the dispositive portion of which reads:

XIII. Not considering the totality of evidence presented by the defense as against the alleged "positive identification" of the accused. XIV. Allowing Justice Jose Catral Mendoza to take part in the deliberation and the voting; XV. Dismissing the evidence presented by Augusto Santos; XVI. Ruling that the silence of accused Lumanog amounts to a quasiconfession; XVII. Holding that the delay of (4) four years during which the case remained pending with the CA and this Court was not unreasonable, arbitrary or oppressive.2 Rameses de Jesus raised the following grounds in his motion: I. THE HONORABLE SUPREME COURT GRAVELY ERRED IN HEAVILY RELYING ON THE LONE ALLEGED EYEWITNESS SECURITY GUARD (SG) FREDDIE ALEJOS TESTIMONY, WHICH WAS CHARACTERIZED BY MATERIAL OMISSIONS, PATENT INCREDIBILITY, CONTRADICTIONS AND DISCREPANCIES. II. THE HONORABLE SUPREME COURT GROSSLY MISAPPRECIATED THE FIRST SWORN STATEMENT GIVEN BY SG FREDDIE ALEJO, WHEREIN HE STATED THAT THERE WERE FOUR (4) SUSPECTS WHO PERPETRATED THE CRIME CONTRARY TO HIS SUBSEQUENT TESTIMONY IN OPEN COURT. III. THE HONORABLE SUPREME COURT FAILED TO APPRECIATE THE PERSONAL CIRCUMSTANCES OF THE ACCUSED-APPELLANTS, WHICH WOULD SHOW AS HIGHLY UNLIKELY THEIR ALLEGED COLLECTIVE GUILT AND CONSPIRACY. IV. THE HONORABLE SUPREME COURT FAILED TO GIVE WEIGHT TO PHYSICAL EVIDENCE, PARTICULARLY THE EXCULPATORY BALLISTICS AND DACTYLOSCOPY EVIDENCE, AND EXPERT TESTIMONY PRESENTED BY THE DEFENSE.3 On his part, Cesar Fortuna argues that: THE LONE, CONTRADICTED AND INCREDIBLE TESTIMONY OF S/G ALEJO IS NOT SUFFICIENT TO PROVE THE GUILT OF THE ACCUSED BEYOND REASONABLE DOUBT4 At the inception, let it be emphasized that the filing of a motion for reconsideration does not impose on us the obligation to discuss and rule again on the grounds relied upon by the

movant which are mere reiteration of the issues previously raised and thoroughly determined and evaluated in our Decision being questioned.5 In particular, the Court need not dwell again on the extrajudicial confessions of Joel de Jesus and Lorenzo delos Santos which we have held inadmissible, the delay in the resolution of the appeals before the CA and this Court which under the circumstances cannot be deemed unreasonable or arbitrary, the inconclusive ballistic and fingerprint examination results, and the effect of Lorenzo delos Santos acquittal to the rest of appellants. These matters have been passed upon and adequately discussed in our Decision. In fine, the accused-movants strongly assail the weight and credence accorded to the identification of the accused by the lone eyewitness presented by the prosecution, security guard Freddie Alejo. It was pointed out, among others, that: (1) in his statement given to the police investigators immediately after the incident, Alejo mentioned only four suspects, contrary to his subsequent testimony in court; it was impossible for him not to mention the two men he had seen walking back and forth before the shooting; (2) Alejo accepted financial support and benefits from the Abadilla family which could have colored his testimony against the accused; (3) his in-court identification of the six accused is questionable and unreliable considering that it referred to them only by numbers and he had given prior description of only two suspects; and (4) the ocular inspection conducted by the trial court to confirm Alejos observations was likewise unreliable because it was made at a time when a material condition is significantly altered, i.e., it was held from 10:00 a.m. onwards whereas the incident occurred between 8:30 and 9:00 a.m. when the glare of the morning sun directly hits the guard post where Alejo was stationed. Fortuna submitted an Affidavit dated November 12, 2009 executed by a certain Orencio G. Jurado, Jr. who claims to be one of the police officers initially assigned to investigate the case. Fortuna contends that said belated statement would certainly cast doubt on the procedures undertaken by the police authorities in the apprehension of the likely perpetrators. We find the motions bereft of merit. While it is true that Alejo mentioned only four and not six suspects in his June 13, 1996 sworn statement, this did not impair his testimony as an eyewitness. Alejo was simply responding to specific questions as to what he had witnessed during the shooting incident. Herein quoted is an excerpt from the questioning by SPO1 Edilberto S. Nicanor of the Criminal Investigation Division (CID) at Camp Karingal (PNP-NCR) and Alejos answers thereto: 08. T - Habang ikaw ay naka-duty bilang guwardiya sa 211 Katipunan Road, Quezon City, itong araw na ito, may napansin ka bang hindi pangkaraniwang pangyayari? S - Mayroon, Sir. 09. T Ano iyon? S - May binaril na sakay ng kotse sa harap ng puwesto ko sir. 10. T - Anong oras ito nangyari? S - 8:40 ng umaga kanina sir, more or less (13 June 1996) 11. Tanong : Sino ba itong binaril na tinutukoy mo, kung kilala mo? Sagot : Isang hindi ko kilala na lalaki sir.

12. T - Sino naman ang bumaril sa biktima na ito, kung kilala mo? S - Apat na hindi kilalang lalaki sir na armado ng baril. x x x x6 (Emphasis supplied.) The foregoing shows that Alejo merely gave the responsive answer to the question as to those persons whom he saw actually shoot the victim who was in his car. As the question was phrased, Alejo was not being asked about the persons who had participation or involvement in the crime, but only those who actually fired at the victim. Hence, he replied that there were four (4) armed men who suddenly fired shots at the victim. What followed was Alejos narration of what the gunmen further did to the already wounded victim, to those people within the vicinity -- including himself who was ordered at gunpoint to lie down and not interfere -- and until the firing stopped as the suspects ran away. Clearly, it was not a fatal omission on the part of Alejo not to include in his first affidavit the two other suspects who were acting as lookouts. During his testimony in court, Alejo was able to fully recount the details and state that there were two men walking back and forth before the shooting. It is settled that contradictions between the contents of an affiants affidavit and his testimony in the witness stand do not always militate against the witness credibility. This is so because affidavits, which are usually taken ex parte, are often incomplete and inaccurate.7 There is likewise nothing irregular in Alejos manner of testifying in court, initially referring to the accused by numbers, to indicate their relative positions as he remembered them, and the individual participation of each in the violent ambush of Abadilla. As already explained in our decision, Alejos elevated position from the guardhouse gave him such a clear and unobstructed view of the incident that he was able to recognize the faces and physical features of the accused at the time. When two of the accused actually poked a gun at him, it gave him more opportunity to see the faces of the accused who had briefly turned their eyes on him. Furthermore, experience dictates, precisely because of the unusual acts of violence committed right before witnesses eyes, that they remember with a high degree of reliability the identity of criminals.8 Indeed, Alejos recollection is not of "superhuman" level as accused now make it appear, considering that he was a trained security guard, whose job demands extra perceptiveness and vigilance at all times especially during emergency or critical situations. Keen scrutiny of the physical appearance and behavior of persons is a routine part of a security guards work duties. Movants likewise fault this Court for giving considerable weight to the observations made by the trial judge during the ocular inspection, arguing that the timing of said ocular inspection did not coincide with the precise hour in the morning when the shooting incident happened. Because the shooting took place between 8:30 to 9:00 when the glare of the morning sun directly hits the guard post of Alejo, the latter supposedly cannot be said to have had such clear vantage point as found by the trial judge when he positioned himself at the said guard post at a later time, which is already past 10:00 in the morning. We are not persuaded. Movants are raising the issue for the first time before this Court and long after trial and rendition of judgment. We have perused the transcript of stenographic notes taken during the ocular inspection conducted by the trial court on September 26, 1996, and found no objection or comment made by the defense counsel regarding the timing of the inspection and its relevance to the evaluation of Alejos testimony. Neither did the accused complain of any irregularity in the conduct of the said ocular inspection before the appellate court. If indeed, the accused found the timing of the ocular inspection crucial to their defense that Alejo was not really an eyewitness as he could not have clearly seen the faces of all the accused from his guard post, they could have made a proper manifestation or objection before the trial judge. They could have even staged a reenactment to demonstrate to the trial court the alleged glare of the morning sun at the time of the commission of the crime, which could have affected Alejos perception of the incident. But they did not. It is now too late in the day for the

accused to assail as irregular the ocular inspection which was done with the conformity and in the presence of their counsel. It is an admitted fact that Alejo and his family were sheltered and given financial support by the victims family, presumably out of gratitude and sympathy considering that Alejo lost his job after the incident. Such benevolence of the Abadilla family, however, is not sufficient basis for the conclusion that Alejo would falsely accuse movants as the perpetrators of the crime. As we have stressed, Alejo did not waver in his identification of the accused despite a grueling cross-examination by the defense lawyers. Both the trial and appellate courts found Alejos testimony as credible, categorical and straightforward. After a painstaking review of the records, we find no cogent reason to deviate from their findings on the issue of credibility of the prosecutions lone eyewitness. As to the affidavit of Orencio G. Jurado, Jr. submitted by Fortuna, the said affiant claimed that he had a heated argument with Inspector Roger Castillo during one of the hearings before the trial court because Inspector Castillo was urging him (Jurado) "to confirm that those arrested by the joint team of CID and PARAK-DILG were exactly the same people/suspects described by the guards to which [he] firmly declined". Jurado alleged that he was surprised to see the faces of the suspects flashed on TV several days after Herbas and Alejo gave their statements at Camp Karingal because they did not fit the description given by witnesses Herbas and Alejo. Jurado was also allegedly prevented earlier by an unidentified policeman -- as per instruction of then DILG Secretary Robert Barbers -- from interviewing the suspects arrested by the operatives of the CID and PARAK-DILG.9 Evidently, Fortuna seeks the introduction of additional evidence to support the defense argument that there was no positive identification of Abadillas killers. To justify a new trial or setting aside of the judgment of conviction on the basis of such evidence, it must be shown that the evidence was "newly discovered" pursuant to Section 2,10Rule 121 of the Revised Rules of Criminal Procedure, as amended.1avvphi1 Evidence, to be considered newly discovered, must be one that could not, by the exercise of due diligence, have been discovered before the trial in the court below.11 Movant failed to show that the defense exerted efforts during the trial to secure testimonies from police officers like Jurado, or other persons involved in the investigation, who questioned or objected to the apprehension of the accused in this case. Hence, the belatedly executed affidavit of Jurado does not qualify as newly discovered evidence that will justify re-opening of the trial and/or vacating the judgment. In any case, we have ruled that whatever flaw that may have initially attended the out-of-court identification of the accused, the same was cured when all the accused-appellants were positively identified by the prosecution eyewitness during the trial. Finally, we must make it clear that Justice Jose Catral Mendoza, who, as then presiding judge at the trial court, heard the prosecution and defense witnesses, never took part in the deliberations and voting by the Court in this case. The absence of notation in the ponencia that Justice Mendoza had "no part" in the deliberations and voting in this case was purely an oversight and inadvertent omission. The Clerk of Court, Atty. Enriqueta Esguerra-Vidal, had already rectified such error in the Revised Page 75 of our Decision dated September 7, 2010. IN VIEW OF THE FOREGOING, the motions for reconsideration filed by Lenido Lumanog and Augusto Santos, Rameses de Jesus and Cesar Fortuna are hereby DENIED WITH FINALITY. Let entry of judgment be made in due course. SO ORDERED.

EN [G.R. No. L-40294, July 11,

BANC 1986]

were waiting for their 'rancho'. Soon their plan was consummated and the victim, Bernardo Cutamora was the unlucky guy overcome by their respective bladed weapons."[1] In an investigation conducted by the Investigation Section of the NewBilibid Prisons on November 20, 1971, all the accused executed statements admitting their participation in the slaying of BernardoCutamora.[2] Consequently, an Information for Murder was filed against them on April 24, 1973 with the then Circuit Criminal Court of Pasig,Rizal. The delay in filing was due to the separation from the service of a principal investigator. Upon arraignment on July 5, 1973, accused, Tobias Ribadajo, Romeo Corpuz, Loreto Rivera (who died on August 15, 1974, p. 46,Rollo), and Rodolfo Torres, all with the assistance of counsel de officio, pleaded Guilty, while the other two accused Federico Basas and Rolando Aunor, alias Rolando Amor, alias Rolando Anor, alias Tagalog,

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. TOBIAS RIBADAJO, ROMEO CORPUZ, FEDERICO BASAS, ROSENDO ANOR AND RODOLFO TORRES, DEFENDANTS-APPELLANTS. DECISION MELENCIO-HERRERA, J.:

The death penalty having been imposed by the then Circuit Criminal Court of Pasig, Rizal, in Criminal Case No. CCC-VII-1329-Rizal for Murder, the case is now before us for automatic review. There were originally six (6) accused: Tobias Ribadajo, RomeoCorpuz,

entered pleas of Not Guilty.[3] The Information was amended to correct the name of Rolando Aunor to Rosendo Anor, alias Negro, aliasTagalog. Thereafter, evidence was adduced. At
[4]

Federico Basas, Rosendo Anor, Rodolfo Torres and Loreto Rivera, all inmates of the New Bilibid Prison at Muntinlupa, Rizal. One of them, however, Loreto Rivera, died during the pendency of the case. We find the facts of the case, as narrated in the Decision of the Trial Court, borne by the evidence, thus: "From the evidence on record, it is clear that on November 18, 1971, at about 7:55 o'clock in the evening, prisoners from brigade 3-C,Muntinlupa, Rizal, succeeded in opening the door of their dormitory by means of a false key (tin can) attached the inmates from dormitory 3-a, while the latter were then getting their food rations from the delivery truck wherein the victim was among them, Records further show that while the victim, Bernardo Cutamora, was getting his ration he was sandwiched by the accused who rushed towards the door and stabbed the victim simultaneously whereby the latter sustained multiple stab wounds on the different parts of his body which wounds caused his death as evidenced by Necrospy Report marked Exhibit 'A'. To gain exit from their brigade, accused Tobias Ribadajo used a false key (tin can) and immediately the door was opened and his co-accused rushed towards the place where the prisoners of brigade 3-a were waiting for their ration, and with respective matalas on their hands they stabbed the victim to death. All the assailants confessed participation in the killing claiming that they did it because they were being mocked by the inmates of 3-a who were members of the OXO; there was a time when these inmates threw human waste on their brigade shouting that 'you Commando members could not do anything', and then they would laugh at them; that in order to avenge this mockery the accused headed byTobias Ribadajo called up a meeting in the afternoon of November 18, 1971, at around 1:00, and they planned to kill any prisoner from brigade 3-a in the evening and they would do the killing at the time they (inmates from 3-a)

the

presentation and

of evidence Rodolfo

for

the their

defense,

accused pleas in

TobiasRibadajo, of Guilty. killing of the

Romeo Corpuz,

Torres denied

withdrew

their

Accused Corpuz and Ribadajo also

participation

Bernardo Cutamora, and repudiated their confessions, claiming that they had signed the same under duress. Accused Federico Basas and Rodolfo Torres admitted having executed their respective confessions[5], while accused Rosendo Anor changed his plea of Not Guilty to Guilty of the lesser offense of Homicide.[6] On November 28, 1974, the Trial Court pronounced a verdict of guilty, as follows: "WHEREFORE, after determining the degree of culpability of all the accused, namely: Tobias Ribadajo, Romeo Corpuz, Federico Basas,Rosendo Anor and Rodolfo Torres, the Court finds them GUILTY, beyond reasonable doubt, of the crime of Murder, as defined under Article 248 of the Revised Penal Code, as charged in the information, and hereby sentences each one of them to suffer the penalty of DEATH; to indemnify the heirs of the victim the amount of P12,000.00, jointly and severally; to pay moral damages in the amount of P10,000.00 and another P10,000.00, as exemplary damages, jointly and severally, and to pay their proportionate shares of the costs."[7] Appellants claim infirmity of the Trial Court Decision on the following grounds: I "The Trial Court erred in admitting as evidence, and in giving weight to the supposed extrajudicial confession of the accused.

II "The Trial Court erred in finding the presence of the aggravating

We find no sufficient basis, therefore, to destroy the presumption ofvoluntariness of appellants' confessions. The presumption of the law is in favor of the spontaneity and voluntariness of an extrajudicial confession of an accused in a criminal case[9], for no sane person would deliberately confess to the commission of a crime unless prompted to do so by truth and conscience.[10] The burden of proof is upon thedeclarant to destroy this presumption.[11] Mere repudiation of confessionby the accused at the trial is not sufficient to disregard his confession.[12]Concrete evidence of compulsion or duress must be presented to sustain their claim of maltreatment. No such evidence has been put forward. No report of such maltreatment was made to the prison authorities nor to the Fiscal who conducted the preliminary investigation. During cross-examination, Corpuz admitted that he was not maltreated.[13] Ribadajo himself did not protest when he was brought to Exequiel Santos, Administrative Office III, Bureau of Prisons, who, in his own words, was "like a father to me".
[14]

circumstances of treachery, evident premeditation and recidivism. III "The Trial Court erred in convicting the accused and in imposing the death penalty." Appellants submit that their extrajudicial confessions were extracted by force; that, they had been exposed for more or less one day to the heat of the sun and the wetness and coldness of the rain, and had been subsequently beaten up and placed in a "bartolina." On their face, however, the individual confessions do not show any suspicious circumstance casting doubt on their integrity. On theContrary, they are replete with details only appellants could have supplied. In those statements, they called their co-accused by their nicknames, not knowing their true names, like "Lilat" for Basas, "Manok" for Anor and "Bukid" for Torres. The investigators could not have concocted that on November 18, 1971, at around 1:00 P.M., appellants had planned to kill any prisoner from Brigade 3-a during the distribution of the "rancho"; that they are members of the Sigue-SigueCommando Gang and their leader is accused Ribadajo; that, as planned, on the same date at around 8:00 P.M. Ribadajo using a false key (tin can) opened the door of their dormitory and all the accused rushed towards the place where the inmates from Brigade 3-a were waiting for their food; that they stabbed the victim with their "matalas"; and their motive was to avenge the throwing of human waste on them heat by inmates of Brigade 3-a.

As to appellants' claim that they have not been informed of their right to silence and to consel during custodial investigation, suffice it to state that the proscription against the admissibility of confessions obtained from an accused during the period of custodial interrogation, in violation of procedural safeguards, applies to confessions obtained after theeffectivity of the 1973 Constitution.[15] No law gives the accused the right to be so informed before the enactment of the 1973 Constitution [16], even if presented after January 17, 1973.[17] That Constitutional guaranty relative to confessions obtained during custodial investigation does not have any retroactive effect.[18] The Trial Court committed no reversible error either in finding the existence of the aggravating circumstance of treachery, evident premeditation and recidivism. Treachery was present because the attack on the victim was sudden and unexpected.
[19]

What is more, during the presentation of evidence by the defense, they were all admitting their guilt but for the lesser offense of Homicide,as manifested by their de officio counsel. "Atty. Galvan "Your Honor, inasmuch as I have also conferred with all the accused and that having appointed me as counsel de oficio before when Fiscal Guerrero was here and after a long conference with the accused, and if the Fiscal will not object if all the accused will change their former plea of not guilty .to that of guilty, as that was their proposal and they were very insistent, that if the Court will allow them to withdraw their former plea of not guilty and substitute with a plea of guilty to a lesser of homicide, your Honor.[8] Despite counsel's appeal for "humanity sake," the prosecution, however, opposed the change of plea because it had already finished with the presentation of its evidence.

When the inmates from Brigade 3-a went out to get their food ration, appellants

immediately rushed out of their own cell and attacked, with their improvised weapon, the unsuspecting victim. There was a collective effort on appellants' part, who were all armed, in assaulting the victim who was unarmed[20], and who was completely deprived of an opportunity to prepare for the attack or to defend himself[21], or to prepare for a fight or retreat.
[22]

Evident premeditation was also present because the plan to kill any prisoner from Brigade 3-a was hatched around 1:00 o'clock in the afternoon of November 18, 1971, and the plan was consummated at about 8:00 in the evening of the same day. Evident premeditation is present when murder was contemplated at least one hour prior to its execution.
[23]

Appellants had ample time to desist from the execution of the offense but they clung to

their determination to achieve their criminal intent. The aggravating circumstance of recidivism has to be considered because all the accused at the time of the commission of the offense, were serving their respective sentences by virtue of a final judgment for other crimes embraced in the same Title of the

Revised Penal Code (Corpuz for Homicide; Rabadajo for Murder; Basas for Murder; Anor for Murder; and Torres for Homicide). No error either was committed by the Trial Court in imposing the death penalty. The penalty for murder is reclusion temporal in its maximum period to death.[24] Considering that appellants committed the present felony after having been convicted by final judgment and while serving their respective sentences, they should be punished by the maximum period of the penalty prescribed by law for the new felony.[25]Given this circumstance, Anor's change of plea from Guilty to Not Guilty will not change his liability besides the fact that it was made after the prosecution had rested its case. [26] The defense contention that appellants should be held guilty only for "Death Caused in a Tumultous Affray" and sentenced to prision mayorunder Article 251 of the Revised Penal Code, upon the allegation that the commotion was spontaneous, lacks merit. There was no confusion and tumultuous quarrel or affray, nor was there a reciprocal aggression between both parties.[27] Appellants rushed out of their cell with the common purpose of attacking the victim of a rival group, which unity of purpose indicates appellants' common responsibility for the consequences of their aggression.[28] WHEREFORE, the judgment of conviction is hereby AFFIRMED. However, for lack of the necessary votes, the penalty to be imposed on all the accused-appellants is reduced to reclusion perpetua. The indemnity to be paid to the heirs of the deceased is hereby raised to P130,000.00. Proportionate costs against the accused. SO ORDERED. G.R. No. 79543 October 16, 1996 JOSE D. FILOTEO, JR., petitioner, vs. SANDIGANBAYAN and THE PEOPLE OF THE PHILIPPINES, respondents.

petitioner of brigandage, and the Resolution 3 promulgated on July 27, 1987 denying his motion for reconsideration. The Facts Petitioner Jose D. Filoteo, Jr. was a police investigator of the Western Police District in Metro Manila, an old hand at dealing with suspected criminals. A recipient of various awards and commendations attesting to his competence and performance as a police officer, he could not therefore imagine that one day he would be sitting on the other side of the investigation table as the suspected mastermind of the armed hijacking of a postal delivery van. Along with his co-accused Martin Mateo, Jr. y Mijares, PC/Sgt. Bernardo Relator, Jr. y Retino, CIC Ed Saguindel y Pabinguit, Ex-PC/Sgt. Danilo Miravalles y Marcelo and civilians Ricardo Perez, Reynaldo Frias, Raul Mendoza, Angel Liwanag, Severino Castro and Gerardo Escalada, petitioner Filoteo was charged in the following Information: 4 That on or about the 3rd day of May, 1982, in the municipality of Meycauayan, province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the said accused, two of whom were armed with guns, conspiring, confederating together and helping one another, did then and there wilfully, unlawfully and feloniously with intent of gain and by means of violence, threat and intimidation, stop the Postal Delivery Truck of the Bureau of Postal while it was travelling along the MacArthur Highway of said municipality, at the point of their guns, and then take, rob and carry away with them the following, to wit: 1) Postal Delivery Truck 2) Social Security System Medicare Checks and Vouchers 3) Social Security System Pension Checks and Vouchers 4) Treasury Warrants 5) Several Mail Matters from abroad in the total amount of P253,728.29 more or less, belonging to US Government Pensionados, SSS Pensionados, SSS Medicare Beneficiaries and Private Individuals from Bulacan, Pampanga, Bataan, Zambales and Olongapo City, to the damage and prejudice of the owners in the aforementioned amount. Contrary to law On separate dates, accused Filoteo, Mateo, Saguindel, Relator and Miravalles, assisted by their respective counsel, pleaded not guilty. Their co-accused Perez, Frias, Mendoza, Liwanag, Castro and Escalada were never arrested and remained at large. Accused Mateo escaped from police custody and was tried in absentia in accordance with Article IV, Section 19 of the 1973 Constitution. Accused Saguindel and Relator failed to appear during the trial on February 21, 1985 and on March 31, 1986, respectively, and were thus ordered arrested but remained at large since then. Like in the case of Mateo, proceedings against them were held in absentia. 5 Only Filoteo filed this petition, after the respondent Court rendered its assailed Decision and Resolution.

PANGANIBAN, J.:p A person under investigation for the commission of an offense is constitutionally guaranteed certain rights. One of the most cherished of these is the right "to have competent and independent counsel preferably of his choice". The 1987 Constitution, unlike its predecessors, expressly covenants that such guarantee "cannot be waived except in writing and in the presence of counsel". In the present case, petitioner claims that such proscription against an uncounselled waiver of the right to counsel is applicable to him retroactively, even though his custodial investigation took place in 1983 long before the effectivity of the new Constitution. He also alleges that his arrest was illegal, that his extrajudicial confession was extracted through torture, and that the prosecution's evidence was insufficient to convict him. Finally, though not raised by petitioner, the question of what crime - brigandage or robbery was committed is likewise motu proprio addressed by the Court in this Decision. Challenged in the instant amended petition is the Decision 1 of respondent Sandiganbayan 2 in Criminal Case No. 8496 promulgated on June 19, 1987 convicting

Before trial commenced and upon the instance of the prosecution for a stipulation of facts, the defense admitted the following: 6 The existence of the bound record of Criminal Case No. 50737-B82, consisting of 343 pages from the Bulacan CFI (Exhibit A); in 1982 or thereabouts, accused Bernardo Relator was a PC Sergeant at Camp Bagong Diwa, Bicutan, Metro Manila; as such PC Sergeant, accused Relator was issued a service revolver, Smith & Wesson Revolver, 32 (sic), with Serial No. 11707 (Exhibit B) and holster (Exhibit B-1) with six (6) live ammo (Exhibit B-2); in 1982 or thereabouts, accused Eddie Saguindel was a PC Constable First Class; on May 30, 1982, accused Saguindel, together with accused Relator and Danilo Miravalles, a former PC Sergeant, was invited for investigation in connection with the hijacking of a delivery van by the elements of the Special Operations Group, PC, and the three availed of their right to remain silent and to have counsel of their choice, as shown by their Joint Affidavit (Exhibit A20); and the existence of the sworn statement executed by accused Martin Mateo (Exhibit A-11) as well as the Certification dated May 30, 1982, subject to the qualification that said document was made under duress. The prosecution sought to prove its case with the testimonies of Bernardo Bautista, Rodolfo Miranda, Capt. Rosendo Ferrer, M/Sgt. Noel Alcazar and Capt. Samuel Pagdilao, Jr. 6-a and the submission of Exhibits A to K. In their defense, accused Filoteo and Miravalles presented their respective testimonies plus those of Gary Gallardo and Manolo Almogera. Filoteo also submitted his Exhibits 1-14-Filoteo, but Miravalles filed no written evidence. Thereafter, the prosecution proffered rebuttal evidence and rested with the admission of Exhibits A-16-a, A-31 and L. Evidence for the Prosecution At about 6:30 in the morning of May 3, 1982, Bureau of Post mail van no. MVD 02 left San Fernando, Pampanga to pick up and deliver mail matters to and from Manila. On board the vehicle were Nerito Miranda, the driver, and two couriers named Bernardo Bautista and Eminiano Tagudar who were seated beside the driver. They arrived at around 9:40 that morning at the Airmail Distribution Center of the Manila International Airport where they were issued waybills 7 for the sacks of mail they collected. They then proceeded to the Central Post Office where they likewise gathered mail matters including 737 check letters 8 sent by the United States Embassy. All the mail matters were placed inside the delivery van, and its door padlocked. As they had to deliver mail matters to several towns of Bulacan, they took the MacArthur Highway on the return trip to Pampanga. When they reached Kalvario, Meycauayan, Bulacan at about 4:30 in the afternoon, an old blue Mercedes Benz sedan 9 overtook their van and cut across its path. The car had five (5) passengers three seated in front and two at the back. The car's driver and the passenger beside him were in white shirts; the third man in front and the person immediately behind him were both clad in fatigue uniforms, while the fifth man in the back had on a long-sleeved shirt. 10 Two of the car passengers aimed an armalite and a hand gun at driver Nerito Miranda as someone uttered, "Are you not going to stop this truck?" 11 Frightened, Miranda pulled over and stopped the van's engine. Alighting from the car, the armed group identified themselves as policemen. 12 They ordered the postal employees to disembark from the van. As he stepped out of the van, Miranda took the ignition key with him, but when threatened, he surrendered it to one of the car passengers. 13 The three postal employees were then ordered to board the Benz.

As he was about to enter the car, Bautista looked back and saw one of the malefactors, who turned out to be Reynaldo Frias, going up the van. Inside the car, the three delivery employees were ordered to lower their heads. They sat between two of their captors at the back of the car while two others were in front. Later, Nerito Miranda asked permission to straighten up as he was feeling dizzy for lack of air. As he stretched, he caught a glimpse of the pimply face of the man to his left. He also recognized the driver who had glanced back. These men turned out to be Angel Liwanag and Reynaldo Frias, respectively. 14 As the car started moving, Bautista complained about feeling "densely confined." We was allowed to raise his head but with eyes closed. However, he sneaked a look and recognized the driver of the car as Raul Mendoza and the fellow beside him who poked a "balisong" at him as Angel Liwanag. The man in uniform on the front seat was Eddie Saguindel. Earlier, as he was about to enter the car, Bautista looked back and recognized Frias. 15 These incidents yielded the pieces of information critical to the subsequent identification of Mendoza, Liwanag, Saguindel and Frias in the line-up of suspects at Camp Crame later on. The car seemed to move around in circles. When it finally came to a stop, the captured men discovered that they were along Kaimito Road in Kalookan City They were made to remove their pants and shoes and then told to run towards the shrubs with their heads lowered. Upon realizing that the hijackers had left, they put on their pants and reported the incident to the Kalookan Police Station. The Security and Intelligence Unit of the Bureau of Posts recovered the postal van at the corner of Malindang and Angelo Streets, La Loma, Quezon City on May 4, 1982. Discovered missing were several mail matters, 16 including checks and warrants, along with the van's battery, tools and fuel. 17 In a letter-request dated May 6, 1982 to then Col. Ramon Montao, then Postmaster General Roilo S. Golez sought the assistance of the Special Operations Group (SOG) of the Philippine Constabulary in the investigation of the hijacking incident. 18 Responding to the request, the SOG, which was tasked to detect, investigate and "neutralize" criminal syndicates in Metro Manila and adjacent provinces, organized two investigative teams. One group was led by Capt. Rosendo Ferrer and the other by 1st Lt. Samuel Pagdilao. Initially, they conducted a "massive intelligence build-up" to monitor the drop points where the stolen checks could be sold or negotiated. On May 28, 1982, the SOG received a tip from a civilian informer that two persons were looking for buyers of stolen checks. Capt. Ferrer requested the informer to arrange a meeting with them. The meeting materialized at about 9:00 P.M. of May 29, 1982 at the Bughaw Restaurant in Cubao, Quezon City. With cash on hand, Capt. Ferrer posed as the buyer. The informer introduced him to Rey Frias and Rafael Alcantara. Frias in turn showed Capt. Ferrer a sample Social Security System (SSS) pension check and told him that the bulk of the checks were in the possession of their companions in Obrero, Tondo, Manila. After some negotiations, they agreed to proceed to Tondo. Then as they boarded a car, Capt. Ferrer introduced himself and his companions as lawmen investigating the hijacking incident. Shocked and distressed, Frias calmed down only when assured that his penalty would be mitigated should he cooperate with the authorities. Frias thus volunteered to help crack the case and lead the SOG team to Ricardo Perez and Raul Mendoza. Capt. Ferrer instructed Lt. Pagdilao, his assistant operations officer who was in another car during the mission, to accompany Frias to Obrero Tondo while he escorted Alcantara to their headquarters at Camp Crame. On the way to the headquarters, Alcantara denied participation in the hijacking although he admitted living with Martin Mateo who allegedly was in possession of several checks. Alcantara was turned over to the investigation section of the SOG for further questioning.

Meanwhile, Lt. Pagdilao's group was able to corner Ricardo Perez in his house in Tondo. Confronted with the hijacking incident, Perez admitted participation therein and expressed disappointment over his inability to dispose of the checks even after a month from the hijacking. He surrendered the checks in his possession to Lt. Pagdilao.'s. 19 An hour and a half later, Capt. Ferrer received information over their two-way radio that Ricardo Perez and Raul Mendoza were in Lt. Pagdilao's custody. Capt. Ferrer ordered that, instead of returning to headquarters, Lt. Pagdilao and his companions should meet him in Quirino, Novaliches to apprehend Martin Mateo. They met at the designated place and proceeded to Gulod, Novaliches arriving there at about 10:30 P.M. of May 29, 1982. Walking atop a ricefield dike to the house of Mateo, they noticed two men heading in their direction. Perez identified them as Martin Mateo and Angel Liwanag. The latter threw something into the ricefield which, when retrieved, turned out to be bundles of checks wrapped in cellophane inside a plastic bag. 20 As the two were about to board the SOG teams's car, Mateo said, "Sir, Kung baga sa basketball, talo na kami. Ibibigay ko yong para sa panalo. Marami pa akong tseke doon sa bahay ko, sir, kunin na natin para di na natin babalikan." 21 Capt. Ferrer accompanied Mateo to his house where they retrieved several other checks in another plastic bag. On the way to the SOG headquarters in Camp Crame, Mateo and Liwanag admitted participation in the postal hijacking. At a confrontation with Perez and Mendoza, all four of them pointed to petitioner, Jose D. Filoteo, Jr., as the mastermind of the crime. Consequently, Capt. Ferrer directed Lt. Pagdilao to accompany Mateo to the house of petitioner in Tondo, Manila. The lawmen found petitioner at home. Upon being invited to Camp Crame to shed light on his participation in the hijacking, petitioner was dumbfounded (" parang nagulat). Pursuant to standard operating procedure in arrests, petitioner was informed of his constitutional rights, 22 whereupon they proceeded to Camp Crame. However, the group, including petitioner, returned to the latter's place to recover the loot. It was "in the neighborhood," not in petitioner's house, where the authorities located the checks. 23 The authorities confronted Filoteo about his participation in the hijacking, telling him that Frias, Mendoza and Perez had earlier volunteered the information that petitioner furnished the Benz used in the hijacking. Thereupon, Filoteo admitted involvement in the crime and pointed to three other soldiers, namely, Eddie Saguindel, Bernardo Relator and Jack Miravalles (who turned out to be a discharged soldier), as his confederates. At 1:45 in the afternoon of May 30, 1982, petitioner executed a sworn statement in Tagalog before M/Sgt. Arsenio C. Carlos and Sgt. Romeo P. Espero which, quoted in full, reads as follows: BABA LA Nais kong ipaalam sa iyo, Patrolman Filoteo, na ang dahilan ng pagsisiyasa t na ito ay tungkol sa isang kasong Robbery-inBand/HiJacking na naganap a. Na ikaw ay may karapatang tumahimik;

noong ika-3 ng Mayo 1982 doon sa Meycauaya n, Bulacan, mga bandang alas-4:00 ng hapon, humigitkumulang, kung saang maraming tsekeng US, tseke ng BIR at iba pang mga personal na tseke ang nabawi mula sa iyo. Nais ko ring ibigay sa iyo ang babala alinsunod sa mga isinasaad ng Section 20, Article IV ng Bagong Saligang Batas ng Republika ng Pilipinas, kagaya ng mga sumusunod :

b. Na ikaw ay may karapatang kumuha ng isang abugadong sarili mong pili upang may magpapayo sa iyo habang ikaw ay sinisiyasat; c. Na ikaw ay may karapatang huwag sumagot sa mga katanungang maaring makasira sa iyo sa dahilang anumang iyong isasalaysay ay maaring gamitin pabor or laban sa iyo sa kinauukulang hukuman; d. Na kung ikaw ay walang maibabayad sa isang abugado, ako mismo ang makipag-ugnayan sa CLAO-IBP upang ikaw ay magkaroon ng isang abugadong walang bayad.

1. TANONG: Ang mga bagay-bagay bang akin nang naipaliwanag sa iyo ay iyong lubos na naiintindihan at nauunawaan? SAGOT: Opo. 2. T: Handa mo bang lagdaan ang ilalim ng katanungan at sagot na ito bilang katibayan na iyo ngang naiintindihan ang iyong mga karapatan at gayun na rin sa dahilan ng pagsisiyasat na ito, at ikaw din ay nakahanda ngang magbigay ng isang malaya at kusang-loob na salaysay, sumagot sa mga katanungan at sumusumpang lahat ng iyong isasalaysay ay pawang mga katotohanan lamang? S: Opo, pipirma ako Ser. (Sgd.) JOSE D. (Affiant) MGA SAKSI: (Sgd.) (Sgd.) ROMEO P. ESPERO THERESA L. TOLENTINO Ssg., PC C1C, WAC (PC) 3. T: Maari bang sabihin mong mull ang iyong buong pangalan, edad at iba pang bagaybagay na maaring mapagkakikilalanan sa iyo? S: Jose Filoteo y Diendo, 30-anyos, mayasawa, isang Patrolman ng Western Police District, Metropolitan Police Force na kasalukuyang nakatalaga sa General Assignment Section, Investigation Division ng naturang Distrito ng Pulisya at kasalukuyang nakatira sa No. 810 Cabesas St., Dagupan, Tondo, Manila. 4. T: Kailan ka pa na-appoint sa service bilang isang Kabatas? S: Noon pong October 1978, hindi ko maalaala ang exactong petsa, noong ako ay mapasok sa serbisyo. 5. T: Kailan ka pa naman na-assign sa GAS, WPD, MPF? S: Noon lamang pong January 1982. 6. T: Patrolman Filoteo, ikaw ba ay tubong saang bayan, lungsod or lalawigan?

S: Pagkakaalam ko sa tatay ko ay Bulacan samantalang ang aking ina naman ay Bisaya, pero ako ay ipinanganak na sa Maynila noon July 17, 1951. 7. T: Ano naman ang natapos mong kurso sa pag-aaral? S: Undergraduate ako ng BS Criminology sa PCCr, dahil hindi ko natapos ang second semester ng 4th year ko. 8. T: Ano naman ang iyong specific designation sa GAS, ID, WPD-MPF? S: Sa Follow-Up Unit ako. FILOTEO 9. T: At bilang miyembro ng follow-up unit no GAS, ano naman ang iyong mga specific duties? S: Kami po ang magsasagawa ng follow-up kung may mga at-large sa mga suspects namin sa mga kasong hawak ng investigation. 10. T: Noong ika-3 ng Mayo 1982, mga bandang alas-4:00 ng hapon humigit-kumulang, saan ka naroroon at ano ang iyong ginagawa? S: Nasa Plaza Lawton ho kami, eh, at inaantay na namin iyong hi-nayjack namin na Philippine Mail delivery van. 11. T: Wika mo'y kami, sinu-sino ang tinutukoy mong mga kasamahan? S: Si Carding Perez, ho; si Junior ho (Affiant pointed to Martin Mateo, Jr. who was seated in the investigation room and asked the name and was duly answered: Martin Mateo, Jr.); si Rey Frias, Raul Mendoza; Angelo Liwanag at ang mga taga LRP ng PC Brigade na sina Sgt. Ed Saguindel, Sgt. Dan Miravales at isa pang Sergeant na ang alam ko lang sa kanya ay JUN ang tawag namin. Walo (8) (corrected and initialled by affiant to read as "SIYAM [9]") kaming lahat doon noon at ang mga gamit naman naming kotse noon ay ang kotse ng kumpare kong si Rudy Miranda na isang Mercedes Benz na may plakang NMJ-659 kung saang ang driver namin noon ay si Raul Mendoza (corrected and initialled by affiant to read as "AKO") at ang mga kasama naman naming sakay ay sina Angelo Liwanag, Sgt. Ed Saguindel at Sgt. Jun na parehong taga-LRP (affiant added and initialled this additional fact: "AT RAUL MENDOZA"). Ang isang kotse namang gamit namin ay pag-aari daw ng pinsan ni Carding Perez na kanya na rin mismong minaneho na isang Lancer na

dirty-white ang kulay at ang mga sakay naman ni Carding Perez ay sina Junior Mateo, Rey Frias at Sgt. Dan Miravalles ng LRP rin. Pero may kasama pa kaming contact ni Carding Perez na taga-loob ng Post Office na sina AliasNINOY na isang dispatcher at Alias JERRY, dahil ang mastermind dito sa trabahong ito ay si Carding PEREZ at kami naman ng mga sundalong taga-LRP ay kanila lamang inimporta upang umeskort sa kaniia sa pag-hijack ng delivery van. 12. T: Anong oras naman noong umalis ang delivery van ng Post Office patungong norte? S: Kung hindi ako nagkakamali ay nasa pagitan na noon ng alas- 4:00 hanggang alas-5:00 ng hapon. 13. T: Isalaysay mo nga ng buong-buo kung ano ang mga naganap noong hapon na iyon? S: Noon pong lumakad na ang delivery van ng Central Post Office, sinundan na namin, una ang van, sumunod ang Lancer at huli ang Mercedes Benz namin. Pagdating namin sa Malinta, Valenzuela Metro Manila ay nagpalit kami ng puwesto sa pagsunod, van naman ngayon, sunod ang Mercedes Benz at huli na ang Lancer. Noong makapasok na kami ng boundary ng Meycauayan, Bulacan ay kumuha na kami ng tiyempo at noon makatiyempo kami ay kinat namin ang delivery van. Tumigil naman ito at bumaba kaagad sina Sgt. Ed Saguindel at Sgt. Jun ng LRP datiil sila noon ang may hawak ng kanilang Armalite Rifle pero may service pa silang maiksing baril. Pinababa nila ang tatlong maydala ng delivery van at pinasakay sa Mercedes Benz, habang nakatutok ang kanilang mga baril sa kanila. Ako naman ay bumaba na sa aming kotse at sumakay ng delivery van at ako na mismo ang nagmaneho at sinamahan naman ako nina Junior Mateo at si Rey Frias, tatlo (3) rin kaming pumalit sa puwesto noong tatlong (3) tagaPost Office na maydala ng delivery van. Nag-Utturn (sic) kami ngayon at ibinalik na namin sa Manila ang van. Iyong Mercedes Benz na minaneho pa rin ni Raul Mendoza ay dumeretso pa norte samantalang ang Lancer naman ay nag-U-turn din at sumunod sa amin. Noong makarating na kami sa Malinta, Valenzuela, Metro Manila ay inunahan na kami ng Lancer at iyon na nga, parang follow the leader na dahil siya na noon ang aming guide. 14. T: pagsasalaysay? Ipagpatuloy mo ang iyong

sa kaniling garahe at doon ay ibinaba namin lahat ang mga duffle bag, hindi ko na ho alam kung ilan lahat iyon, na siyang laman ng delivery van at pagkatapos ay umalis kaming muli ng mga kasama ko rin sa van papuntang Quezon City kung saan namin inabandon ang delivery van. Sa Retiro ho yata iyong lugar na iyon, kung hindi ako nagkakamali. 15. T: Ano ang mga sumunod na nangyari? S: Sumakay kami ngayon ng taksi at bumalik na kami kina Carding Perez sa may bahay nila sa Obrero, Tondo, Manila at inabutan na namin sila na nagkakarga na noong mga duffle bag sa (sic), madilim na ho noon, sa isang kotseng mamula-mula o orange na Camaro at isa pang Mercedes Benz na brown, dahil ang Lancer ay isinoli na raw nila sa may-ari. Dinala nila ngayon ang mga duffle bag sa Bocaue, Bulacan, iyon kasi ang usapan namin noon dahil sumilip lamang ako noon at kasama ko si Carding Perez, kami naman ngayon ay pumunta sa bahay nina Rudy Miranda sa San Marcelino, Malate, Manila na sakay ng isang Toyota Corona na brown na si Carding Perez ang nagmaneho. Pagdating namin doon sa kina Rudy Miranda ay naroon na rin noon ang Mercedes Benz na ginamit namin, pero wala na ang crew ng delivery van dahil ibinaba at iniwanan daw nila sa Caloocan City. Ang naroroon na lamang noon ay sina Angelo Liwanag, si Raul Mendoza, si Sgt. Ed Saguindel at si Sgt. Jun na parehong taga-LRP. Naiwan na noon ang Mercedes Benz namin doon kina Rudy Miranda at iniwan na rin ang susi doon sa kamag-anak, dahil hindi nila alam ang trabahong ito. Sumakay na iyong apat naming kasama sa Toyota Corona na sakay namin at inihatid namin sina Sgt. Saguindel at Sgt. Jun doon sa tinitirhan nitong huling nabanggit na sundalo doon sa malapit sa Del Pan Bridge sa may Recto Avenue sa San Nicolas yata iyon sa Manila. Kami naman ngayong apat, sina Carding Perez, Angelo Liwanag at si Raul Mendoza ay tumuloy na sa Bocaue, Bulacan. Dumaan kami sa North Diversion Road at paglabas namin sa exit papuntang Bocaue, Bulacan ay hindi na kalayuan doon, hindi ko alam ang lugar pero alam kong puntahan. Bahay daw yata ng kamag-anak ni Carding Perez iyon pero hindi ko alam ang pangalan. Naroon na ngayon ang buong tropa, maliban sa mga dalawang sundalong naihatid na namin sa may Manila, at may mga nadagdag pang ibang mukha pero hindi ko ito mga kakilala. Si JACK o Sgt. Dan Miravalles ay naroon din noon. Kumain kami, pagkatapos ay nagbukasan na ng mga duffle bag. Iyon na nga, nakita na namin ang mga tsekeng ito, (Affiant pointed to the checks he voluntarily surrendered) at aming inihiwalay ngayon sa mga sulat na naroon na sinunog lahat pagkatapos doon sa bahay ni Junior Mateo sa Novaliches. Di magdamag ngayon ang trabaho namin, kinabukasan

S: Dumeretso kami ngayon sa may Obrero, sa bahay mismo nina Carding Perez, at noong nakarating na kami roon ay iniyatras ko na ang van

ay kanya-kanyang uwian na, pagkatapos ay pahinga. Kinabukasan mull, gabi, inilipat na namin doon sa bahay ni Junior Mateo ang mga tsekeng ito (Affiant again referred to said checks). Isinakay namin noon sa isang cargo truck na pag-aari din daw nina Carding. lyong mga tsekeng iyan ngayon ay nakalagay noon doon sa isang sikretong compartment sa gitna ng truck, doon ba sa may chassis. Sikretong compartment iyon, na mahirap mahalata. 16. T: Ikaw ba naman ay mayroong dalang baril noon at kung ganoon, sabihin mo nga kung anong uring baril iyon? S: Wala po akong baril, Ser. 17. T: Paano naman napunta ang mga tsekeng ito (the checks recovered from the Affiant was referred to) sa iyo? S: E, di ganoon na nga he, habang tumatagal ay umiinit ang situwasyon sa aming grupo, dahil iyong partehan sana namin ay puro pangako ang nangyari. Kaya napagpasyahan namin na hatiin na lamang iyong mga tseke upang walang onsehan sa amin. Ito ngayon ay parte namin nina Sgt. Ed Saguindel, Sgt. Dan Miravalles Alias JACK at ni Sgt. Jun, dahil noong una ay doon muna sa amin ito nakatago (The checks recovered from the Affiant was referred to). Pero habang tumatagal ay umiinit at nalaman namin pati na may alarma na, kaya't inilipat namin doon sa may Raxa Bago sa may likod ng Alhambra Cigar & Cigarette Factory sa Tondo, Manila at akin munang ipinatago sa isang kumare ko doon, pansamantala, pero hindi alam nitong kumare ko ang laman noon dahil mahigpit kong ipinagbilin na huwag nilang bubuksan. Doon na rin namin kinuha iyon noong isurender ko ang mga tsekeng ito kagabi, at hanggang sa kinuha na namin ang supot na ito (the checks placed in a plastic bag was again referred to) ay wala pa rin kamalay- malay ang kumare ko. 18. T: Iyong sinasabi mong mga kontak nina Carding Perez sa Central Post Office, mga kakilala mo rin ba ang mga ito? S: Iyong araw lamang na iyon ko sila nakita, dahil maghapon ko noon silang nakikita, itong si Alias NINOY lamang ang dispatcher, dahil palabas-labas siya noon at nakikipag-usap kina Carding Perez, Raul Mendoza at saka si Rey Frias. Makikilala ko itong si AliasNINOY kung makita ko siyang muli. 19. T: Sino naman ang kumontak sa iyo upang sumama sa trabahong ito?

S: Si Junior Mateo po, ipinakilala niya ako kina Carding at sa buong tropa na namin. 20. T: Pansamantala ay wala na muna akong itatanong pa sa iyo, mayroon ka bang nais na idagdag, bawasin o palitan kaya sa salaysay na ito? S: Wala na po. 21. T: Handa mo bang lagdaan ang iyong salaysay na ito bilang patotoo sa katotohanan nito nang hindi ka pinilit, sinaktan or pinangakuan kaya ng anuman upang lumagda lamang? S: Opo. WAKAS NG SALAYSAY: . . . ./ac

(S JOSE MGA SAKSI SA LAGDA: (Sgd.) SSG ROMEO P. ESPERO PC (Sgd.) C1C THERESA TOLENTINO WAC (PC) 24 Petitioner executed two other documents on the same day, May 30, 1982. One was a certification stating that he voluntarily surrendered "voluminous assorted US checks and vouchers," that because of the "large number of pieces" of checks, he affixed his signature upon the middle portion of the back of each check "to serve as identification in the future, prior to the completion of its proper inventory and listing conducted by elements of SOG" in his presence, and that he "guided the elements of SOG" to the residence of Rodolfo C. Miranda, the owner of the sky-blue Mercedes Benz car which was surrendered to the SOG Headquarters. 25 The other document was a sworn statement wherein petitioner attested to his waiver of the provisions of Article 125 of the Revised Penal Code and the following facts: (a) that he was apprised of his constitutional rights under Section 20, Article IV of the (1973) Constitution, that he understood all his rights thereunder, and that the investigators offered him counsel from the CLAO-IBP but he refused to avail of the privilege; (b) that he was arrested by SOG men in his house at around 11:00 p.m. of May 29, 1982" sa dahilang ako ay kasangkot sa pagnanakaw ng mga US Treasury Warrants, SSS Pension Checks and Vouchers at SSS Medicare Checks and Vouchers mula sa delivery van ng Philippine Mail;" (c) that the SOG men confiscated from him numerous checks and a Mercedes Benz 200 colored sky-blue, and (d) that he was not hurt or maltreated nor was anything taken from him which was not duly receipted for. 26 As certified to by petitioner (in the above described document), he led the SOG operatives to the house of Rodolfo Miranda on Singalong where the latter admitted that petitioner was his friend. He denied, however, having knowledge that his car was used in the hijacking until the authorities came to his house. According to Miranda, he was made to believe that his car would be used for surveillance purposes because petitioner's jeep was not available. The car was not returned until the evening following that when it was borrowed. 27 After the trip to Miranda's house, petitioner informed the investigators that some

more checks could be recovered from hiskumare. Said checks were retrieved and turned over to headquarters along with the car surrendered by Miranda who later executed a sworn statement dated May 31, 1992 at the SOG. 28 Upon learning of the whereabouts of Miravalles, Eddie Saguindel and Bernardo Relator, the team of Capt. Ferrer proceeded to Taguig, Metro Manila in the afternoon of May 30, 1982. They met Miravalles along the way to his house. Informed by Capt. Ferrer that six of his companions were already under custody and that they implicated him as one of their confederates, Miravalles reacted by saying, "Sir, ang hihina kasi ng mga loob niyan, eh." 29 Capt. Ferrer later asked Miravalles to bring him to Eddie Saguindel. At the barracks of the Long Range Patrol in Bicutan, Metro Manila, Saguindel voluntarily accepted the invitation to proceed to the SOG headquarters, after Miravalles initially informed him of the facts obtained during the investigation. Saguindel was heard saying, "Hindi na kami interesado, sir, sa mga tsekeng iyan kasi isang buwan na hindi pa nabebenta." 30 With Miravalles and Saguindel, Capt. Ferrer and his team moved on to Binondo, Manila to look for Bernardo Relator. When they found him at home, Relator excused himself, went upstairs, returned with a .32 caliber revolver with six bullets 31 and said, "Sir, ito yong baril na nagamit." 32 The three suspects were brought to Camp Crame for further investigation. Thereafter, Capt. Ferrer submitted an after-operations report about their mission and executed jointly with Lt. Pagdilao an affidavit on the same matter. 33 Aside from petitioner, Liwanag, Mateo and Perez executed sworn statements. 34 Prior to doing so, they waived their right to counsel. Liwanag and Mateo admitted their participation and implicated petitioner in the crime. Perez, on the other hand, denied having driven a Lancer car in the hijacking and stated that he was implicated in the crime only because in one drinking spree with petitioner, Mateo and one alias "Buro" during that month of May, they had a heated altercation. Like petitioner, Liwanag and Mendoza certified that they voluntarily surrendered vouchers and checks which were part of their loot in the hijacking; they also executed waivers under Article 125 of the Revised Penal Code. For his part, Relator executed a certification to the effect that he voluntarily surrendered his .32 caliber Smith & Wesson service revolver used in the commission of the crime. In spite of the fact that his father-in-law was a lawyer, petitioner did not manifest that he needed the assistance of counsel. During the taking of his statement, petitioner was visited by Jimmy Victorino and another comrade from the General Assignment Section of the WPD. For their part, Relator, Saguindel and Miravalles executed a joint affidavit 35 manifesting their option to avail of their right to remain silent until such time as they would have retained a counsel of their choice. Frias and Mendoza executed a similar joint affidavit. 36 Severino Castro, the postal employee implicated, also chose to remain silent as he wanted to testify in court. However, he linked to the crime a certain Gerardo Escalada, a former clerk of the Central Post Office and son of a director of the Bureau of Posts in Region I. 37 On May 31, 1982, then Postmaster General Golez summoned postal employees Miranda, Bautista and Tagudar and directed them to proceed to Camp Crame. At the office of the SOG, they were told to go over some pictures for identification of the culprits. The three recognized and pointed to the suspects in a line-up. Tagudar identified Saguindel and Liwanag. 38 Miranda pointed at Frias and Liwanag 39 while Bautista identified Frias, Mendoza and Liwanag. 40 Petitioner himself, when told to identify his alleged cohorts, pointed to Severino Castro as their contact at the post office. 41 Five of the suspects who were not identified in the line-up were however implicated by Liwanag, Mateo and petitioner. SOG Chief Investigator Jorge C. Mercado filed a complaint for robbery-in-band (hijacking) before the Municipal Court of Meycauayan, Bulacan against petitioner and ten (10) others, namely, Mateo, Saguindel, Relator, Miravalles, Perez, Frias, Mendoza, Liwanag, Castro and Escalada (Criminal Case No. 7885). 42

On August 8, 1983, the Information previously referred to and aforequoted was filed with the Sandiganbayan and docketed as Criminal Case No. 8496. On September 20, 1983, Sandiganbayan Associate Justice Romeo M. Escareal issued orders for the arrest of the accused 43 and fixed bail at P13,000.00 each. Saguindel and Relator filed a motion to quash the Information asserting that under the Articles of War and Section 1 of P.D. 1850, they should be tried by a court martial. 44 The Sandiganbayan denied the motion on January 3, 1984 45 on the ground that courts martial could no longer exercise jurisdiction over them by virtue of their separation from military service. Evidence for the Defense Testifying in his own defense, petitioner alleged that as a patrolman since August 21, 1978 assigned to the Investigation Division or the Detective Bureau of the WPD to which the General Assignment Section belonged, he was the recipient of several awards and recognitions starting with ranking fifth in the Final Order of Merit in the basic course for police officers. 46 He also claimed to have received a loyalty medal for meritorious service above the call of duty 47 and several commendations 48 for the distinguished performance of his duties. On that fateful date of May 3, 1982, he was a member of the Special Task Force Unit covering the tourist belt area. Of the ten other accused in this case, petitioner admitted knowing only Martin Mateo whose name appeared in the initial follow-up operation he allegedly participated in regarding a P250,000 qualified theft case on May 16, 1980 at the Shemberg Marketing Corporation. 49 Although a suspect, Mateo was not charged in the information subsequently filed in that case. Sometime in March 1981, Mateo visited petitioner at the police headquarters seeking assistance in his bid to lead a new life. Considering Mateo's familiarity with underworld characters, petitioner readily made him an informer who was paid from time to time out of the police intelligence fund. Mateo proved to be an effective informer. In fact, he allegedly supplied vital information on the identities and whereabouts of suspects in robbery cases at the La Elegancia Jewelry Store, at the Likha Antique and Crafts, 50 and in an alleged racket in Aranque Market in Manila involving jewelries. As such informer, Mateo became accustomed to borrowing petitioner's owner-type jeep whenever he was given an assignment. In one instance however, petitioner saw Mateo using his jeep with some male companions. Because Mateo denied the occurrence of the incident, petitioner from then on refused to lend his jeep to Mateo. Instead, Mateo was given an allowance to cover his traveling expenses. About a month prior to May 3, 1982, petitioner met Mateo and requested the latter to give him a good project as he was working for his transfer to the Metrocom Intelligence Security Group (MISG). On May 2, 1982, Mateo urged petitioner to lend him his jeep in order that he could follow-up a bank robbery case. That same evening, petitioner approached his kumpare, accused Rodolfo Miranda, to borrow the latter's old Mercedes Benz since, if the jeep was used, Mateo could be identified as an informer. Petitioner left his jeep with Miranda and "went around boasting of the Mercedes Benz." 51 Mateo took the Benz in the morning of May 3, 1982. Petitioner advised him to return the car between the hours of two and three in the afternoon at the Lakan Beer House at the corner of Rizal Avenue and Zurbaran Streets in Sta. Cruz, Manila where petitioner was to meet his friend Manolo Almoguera who would be celebrating his birthday there. Petitioner met Almoguera and company at around 3:30 in the afternoon. He waited for Mateo until shortly before 5:00 in the afternoon when he was constrained to leave without seeing Mateo because he had to attend a mandatory regular troop formation at 5:00 P.M. at the police headquarters. From there, petitioner proceeded to his area of responsibility in the tourist belt. He returned to the beer house at about 6:00 in the evening hoping to find Mateo and the automobile. A little before 8:00 o'clock, someone informed him that Mateo had finally arrived.

Petitioner went out and scolded Mateo for being late; the latter apologized and said that his surveillance bore good results. Petitioner then returned the car to Miranda, through the latter's cousin. At around 11:00 in the evening of May 29, 1982, Mateo, escorted by a group of military men, went to petitioner's house at 810 Cabezas St., Tondo, Manila. The group refused to give any reason for their visit but arrested him. Wearing only short pants, petitioner was made to board a car where he was handcuffed. The men asked him about the Benz and the identities of his companions in an alleged hijacking incident. Petitioner admitted having knowledge of the exact location of the car but denied participation in the crime. Nobody apprised him of his constitutional rights to remain silent and to be assisted by counsel. 52 Petitioner was then instructed to accompany Lt. Pagdilao to the residence of Miranda to get the Benz. They were on board two cars. When petitioner noticed that they were not heading for Miranda's place, he clutched the hand of Lt. Pagdilao, pleading for pity and thinking that he was about to be "salvaged". Lt. Pagdilao however informed him that they would be dropping by petitioner's house first per the investigator's information that more checks could be recovered thereat. A warrantless search was then allegedly conducted in petitioner's house but nothing was found. Suddenly, someone from the other car came out of a nearby house owned by Mateo and reported that they had recovered some checks. Thereafter, they proceeded to the house of Miranda who was also invited for questioning. The latter surrendered his Benz to the group. At the SOG headquarters in Camp Crame, petitioner was repeatedly coaxed to admit participation in the hijacking. As he vehemently denied the accusation against him, someone blindfolded him from behind, led him outside and loaded him in a car. He was taken to an unidentified place and made to lie flat on his back. An object was tied to his small finger to electrocute him. While a wet handkerchief was stuffed in his mouth, someone mounted his chest and applied the "water cure" ("tinutubig") through his nose. Because these ordeals were simultaneously carried out, petitioner felt unbearable pain. He sought permission to get in touch with his father-in-law, Atty. Felix Rosacia, but his request was denied. They urged him to cooperate otherwise something terrible would happen to him. Meanwhile, petitioner's wife reported to the WPD General Assignment Section her husband's forcible abduction by armed men whom she mistook for CIS agents. A check with the CIS yielded negative results. Thereafter, Lt. Reynaldo Dator went to the SOG where he was informed that petitioner was being investigated but no details were given thereon pending clearance with superior officers. 53 Consequently, a newspaper carried an item on the SOG's refusal to allow petitioner's co-police officers to see him in his detention cell. 54 Among his comrades, only Jimmy Victorino, formerly of the WPD who was transferred to the SOG, was able to visit him. Petitioner revealed to Victorino the maltreatment done him but the latter expressed helplessness about it. In fact, Victorino advised him to just cooperate so that the SOG would not incriminate him (" para hindi ka pag-initan dito"). 55 The advice came after petitioner was warned that he, like Pat. Serrano of the WPD, would be liquidated by the SOG, 56 should he refuse to cooperate. Later, Mateo came to petitioner's cell and confided that he had been similarly maltreated and forced to implicate petitioner. After Mateo left, a prepared statement was shown and read to petitioner. Because its contents were false, petitioner refused to sign it. Placing his arm around petitioner, a certain Capt. Lagman told petitioner that he thought they had an understanding already. Petitioner later discovered that Lagman was not member of the military but an "agent" of the SOG, and a member of the "Contreras gang". Petitioner was therefore constrained to sign the statement because of his excruciating experience ("hirap na hirap"). He however admitted having read the document before affixing his signature thereto and initialing the corrections therein. The waiver under Article 125 of the Revised Penal Code and the certification he executed were allegedly also obtained by duress. Although he picked out one Severino Castro in a police

line-up, he did not even know Castro. He implicated Castro because he was threatened by a certain Boy Zapanta. Petitioner filed a complaint for grave coercion and maltreatment against Lt. Rosendo Ferrer and several John Does. On August 4, 1982, Asst. City Fiscal Emelita H. Garayblas recommended its dismissal for petitioner's failure to appear despite subpoenas and to answer clarificatory questions as well as to authenticate his statement. 57However, petitioner swore that he never received the subpoenas. Petitioner's alibi was supported by Manolo Almoguera whose birthday on May 3, 1995 was the reason for the celebration at the Lakan Beer House. While his baptismal certificate indicated that he was born on May 4, 1956, 58a joint affidavit 59 also attested that his birth date was actually May 3, 1956. Gary Gallardo, the owner of the beer house, corroborated Almoguera's testimony as to petitioner's alleged presence during the birthday celebration. The Respondent Court's Decision On June 18, 1987, the Sandiganbayan rendered the herein questioned 51-page Decision, the dispositive portion of which reads: WHEREFORE, judgment is hereby rendered finding accused Jose Filoteo, Jr. y Diendo, Martin Mateo, Jr. y Mijares, Bernardo Relator, Jr. y Retino and Eddie Saguindel y Pabinguit GUILTY as co-principals beyond reasonable doubt of the violation of Section 2 (e), in relation to Section 3 (b) of Presidential Decree No. 532, otherwise known as the Anti-Piracy and Anti-Highway Robbery Law of 1974 and hereby sentences each of said accused to suffer the indeterminate penalty ranging from TWELVE (12) YEARS and ONE (1) DAY as minimum, to THIRTEEN (13) YEARS, ONE (1) MONTH and ELEVEN (11) DAYS as maximum, both of reclusion temporal, and to pay their proportionate share of the costs of the action. Accused Danilo Miravalles y Marcelo is hereby acquitted, with costs de oficio, for insufficiency of evidence. No civil indemnity is hereby awarded due to the complete dearth of any proof as to the actual damages suffered by the Bureau of Posts or the owners of the pilfered mail matters, and it further appearing that the mail van which was hijacked had been recovered, as well as most of the checks and warrants which were surrendered by some of the accused, without prejudice to the institution of the proper civil action to recover damages should proof thereof be available. Consequently, it is hereby ordered that Exhibits B, B-l and B-2, which are the .32 Cal. Revolver, Smith and Wesson, Serial No. 11707, its holster and six (6) live ammunition respectively, which were surrendered by accused Relator, and Exhibits J, J-l to J-5, consisting of 187, 222, 215, 197, 194 and 22 pieces, respectively, of Social Security System and Medicare checks and vouchers, be returned to the Firearm and Explosives Unit (FEU), PC, Camp Crame, Quezon City and the Social Security System, respectively, upon proper receipts. Let copies of this decision be furnished the Postmaster-General, Central Post Office, Liwasang Bonifacio, Metro Manila and the Commanding General and Chief, PC-INP, Camp Crame, Quezon City for their information and guidance with respect to the other accused who are still at-large. SO ORDERED.

Petitioner's motion for reconsideration of said Decision was denied by the Sandiganbayan in its challenged Resolution of July 27, 1987. Hence, the instant alternative petition for certiorari and/or review on certioraricharging the Sandiganbayan with having gravely abused its discretion amounting to lack or excess of jurisdiction and with reversible error in arriving at said Decision. The Issues The amended petition raises the following: Assignments of and/or Excess of Jurisdiction/Grave Abuse of Discretion xxx xxx xxx First The respondent court erred and gravely abused its discretion as well as exceeded its jurisdiction when it made its determination of the alleged guilt of petitioner on the basis of mere preponderance of evidence and not proof beyond reasonable doubt. Second The respondent court erred and gravely abused its discretion as well as exceeded its jurisdiction in finding that petitioner's having borrowed the Mercedes Benz car utilized by the other accused in the hijacking of the mail van indubitably established his direct participation and/or indispensable cooperation in the said hijacking, the same being in gross disregard of basic Rules of Law. Third The respondent court erred and gravely abused its discretion as well as exceeded its jurisdiction in finding that the voluminous SSS Medicare and Pension Checks were confiscated from and surrendered by petitioner and three of the other accused and in finding the testimonies and investigation reports relative thereto. "credible and unrefuted", said findings being, insofar as petitioner is concerned, absolutely without any basis in the evidence and in fact contrary to the prosecution's only evidence that has some measure of competency and admissibility. Fourth The respondent court erred and gravely abused its discretion in finding that dorsal portions of the checks and warrants allegedly taken from petitioner were signed by him to indicate his admission of accountability therefor and that his signatures thereon confirm the confiscation from and/or surrender by him of said checks, said findings being absolutely without any support in the evidence. Fifth Error

The respondent court erred and gravely abused its discretion as well as exceeded its jurisdiction in admitting and considering against petitioner his alleged extra judical confession, despite petitioner's uncontradicted testimony and documentary proof that he was made to give or sign the same through torture, maltreatment, physical compulsion, threats and intimidation and without the presence and assistance of counsel, his request for which was refused, in gross violation of Constitutional Provisions and the prevailing jurisprudence. Sixth The respondent court erred and gravely abused its discretion as well as exceeded its jurisdiction in finding that petitioner's participation in the hijacking of the mail van is indubitably established "by the manner by which the SOG operatives succeeded in ferreting out the members of the hijacking syndicate one by one through patient sleuthing" and in finding that they did so "without resorting to extra-legal measures" and that "no evidence having been adduced to show that they were actuated by improper motives to testify falsely against the herein accused, then their testimonies should be accorded full credence". Seventh The respondent court erred and gravely abused its discretion as well as exceeded its jurisdiction in finding that "even setting aside the inter-locking confessional statements of Filoteo, Mateo and Liwanag, . . substantial and sufficient evidence exist which indubitably prove the guilt of Filoteo" (Petitioner). Eighth Insofar as petitioner is concerned, the respondent court erred and gravely abused its discretion as well as exceeded its jurisdiction in finding that "accused Filoteo's ( petitioner's) and Mateo's [alleged]unexplained possession of the stolen checks raised the presumption that "they were responsible for the robbery in question", petitioner's alleged possession not being borne out but disputed by the prosecution's own evidence. Ninth The respondent court erred and gravely abused its discretion as well as exceeded its jurisdiction in finding that "accused Filoteo's denials and alibi cannot be entertained for being quite weak and implausible". The truth of the matter being that they should have been sustained since petitioner was not identified by direct victimseyewitnesses as among those who participated in or were present at the hijack and none of the checks and treasury warrants were found in his possession or retrieved from him. Tenth The respondent court erred and gravely abused its discretion as well as exceeded its jurisdiction in finding that the participation of petitioner in the criminal conspiracy has been proven beyond reasonable doubt by the evidence of record and that said evidence "not only

confirms the conspiracy between [him and the other accused] as easily discernible from their conduct before, during and after the commission of the offense, but also their participation and/or indispensable cooperation". Eleventh The respondent Court erred and gravely abused its discretion as well as exceeded its jurisdiction in cavalierly rejecting, through the use of pejorative words, and without stating the legal basis of such rejection, the various vital factual points raised by petitioner, in gross violation of the express mandate of the 1987 Constitution. The Court believes that the above "errors" may be condensed into four: (1) Are the written statements, particularly the extra-judicial confession executed by the accused without the presence of his lawyer, admissible in evidence against him? (2) Were said statements obtained through torture, duress, maltreatment and intimidation and therefore illegal and inadmissible? (3) Was petitioner's warrantless arrest valid and proper? (4) Is the evidence of the prosecution sufficient to find the petitioner guilty beyond reasonable doubt? The Court's Ruling Preliminary Issue: Rule 4 or Rule 65? Before ruling on the foregoing issues, it is necessary to dwell on the procedural aspects of the case. Petitioner, a "segurista", opted to file an (amended) "alternative petition" for certiorari under Rule 65 and for review oncertiorari under Rule 45 of the Rules of Court. We however hold that the instant petition must be considered as one for review on certiorari under Rule 45. In Jariol, Jr. vs. Sandiganbayan, 60 this Court clearly ruled: Presidential Decree No. 1486, as amended by P.D. No. 1606, which created the Sandiganbayan, specified that decisions and final orders of the Sandiganbayan shall be subject to review on certiorariby this Court in accordance with Rule 45 of the Rules of Court. And Rule 45 of the Revised Rules of Court provides, in Section 2, that only questions of law may be raised in the Petition for Review and these must be distinctly set forth. Thus, in principle, findings of fact of the Sandiganbayan are not to be reviewed by this Court in a petition for review on certiorari. There are, of course, certain exceptions to this general principle. Here, reading petitioner's Petition for Review and Memorandum in the most favorable possible light, petitioner may be seen to be in effect asserting that the Sandiganbayan misapprehended certain (f)acts in arriving at its factual conclusions. As amended by Republic Act No. 7975, Section 7 of P.D. No. 1606 expressly provides that "(d)ecisions and final orders of the Sandiganbayan shall be appealable to the Supreme Court by petition for review on certiorari raising pure questions of law in accordance with Rule 45 of the Rules of Court." However, in exceptional cases, this Court has taken cognizance of questions of fact in order to resolve legal issues, as where there was palpable error or grave

misapprehension of facts by the lower court. Criminal cases elevated by convicted public officials from the Sandiganbayan deserve the same thorough treatment by this Court as criminal cases involving ordinary citizens simply because the constitutional presumption of innocence must be overcome by proof beyond reasonable doubt. In all criminal cases, a person's life and liberty are at stake. 61 As a petition for review under Rule 45 is the available remedy, a petition for certiorari under Rule 65 would not prosper. Basic it is that certiorari is invocable only where there is no other plain, speedy or adequate remedy. For waffling on procedural matters, petitioner could have lost this battle through a summary dismissal of his "alternative" petition. But in view of the importance of the issues raised, the Court decided to take cognizance of the matter. First Issue: Uncounselled Waiver On the merits of the petition, we find that the pivotal issue here is the admissibility of petitioner's extrajudicial confession which lays out in detail his complicity in the crime. Petitioner contends that respondent Court erred in admitting his extrajudicial confession notwithstanding uncontradicted testimony and documentary proof that he was made to sign the same through torture, maltreatment, physical compulsion, threats and intimidation and without the presence and assistance of counsel. He also claims that in executing the extrajudicial confession, he was denied the right to counsel in the sameway that his waiver of the said right was likewise without the benefit of counsel. Petitioner therefore questions the respondent Court's admission evidence of his extrajudicial confession on the strength of cases 62 upholding the admissibility of extrajudicial confessions notwithstanding the absence of counsel "especially where the statements are replete with details and circumstances which are indicative of voluntariness." We shall first tackle the issue of his uncounselled waiver of his right to counsel. The pertinent provision of Article IV, Section 20 of the 1973 Constitution reads as follows: No person shall be compelled to be a witness against himself. Any person under investigation for the commission of an offense shall have the right to remain silent and to counsel and to be informed of such rights. No force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him. Any confession obtained in violation of this section shall be inadmissible in evidence. In comparison, the relevant rights of an accused under Article III, Section 12 of the 1987 Constitution are, inter alia, as follows: (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one.These rights cannot be waived except in writing and in the presence of counsel. (2) No torture, force, violence, threat, intimidation; or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited.

(3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him. (4) The law shall provide for penal and civil sanctions for violations of this section as well as compensation to and rehabilitation of victims of torture or similar practices and their families." (emphasis supplied. Obviously, the 1973 Constitution did not contain the right against an uncounselled waiver of the right to counsel which is provided under paragraph 1, Section 12, Article III of the 1987 Constitution, above underscored.) In the landmark case of Magtoto vs. Manguera, 63 the Court categorically held that the aforequoted provisions of the 1973 Constitution (which were not included in the 1935 Charter) must be prospectively applied. This Court said: We hold that this specific portion of this constitutional mandate has and should be given a prospective and not a retrospective effect. Consequently, a confession obtained from a person under investigation for the commission of an offense, who has not been informed of his right (to silence and) to counsel, is inadmissible in evidence if the same had been obtained after the effectivity of the New Constitution on January 17, 1973. Conversely, such confession is admissible in evidence against the accused, if the same had been obtained before the effectivity of the New Constitution, even if presented after January 17, 1973, and even if he had not been informed of his right to counsel, since no law gave the accused the right to be so informed before that date. By parity of reasoning, the specific provision of the 1987 Constitution requiring that a waiver by an accused of his right to counsel during custodial investigation must be made with the assistance of counsel may not be applied retroactively or in cases where the extrajudicial confession was made prior to the effectivity of said Constitution. Accordingly, waivers of the right to counsel during custodial investigation without the benefit of counsel during the effectivity of the 1973 Constitution should, by such argumentation, be admissible. Although a number of cases held that extrajudicial confessions made while the 1973 Constitution was in force and effect, should have been made with the assistance of counsel, 64 the definitive ruling was enunciated only on April 26, 1983 when this Court, through Morales, Jr. vs. Enrile, 65 issued the guidelines to be observed by law enforcers during custodial investigation. The Court specifically ruled that "(t)he right to counsel may be waived but the waiver shall not be valid unless made with the assistance of counsel. 66 Thereafter, in People vs. Luvendino, 67 the Court through Mr. Justice Florentino P. Feliciano vigorously taught: . . . The doctrine that an uncounseled waiver of the right to counsel is not to be given legal effect was initially a judge-made one and was first announced on 26 April 1983 in Morales vs. Enrile and reiterated on 20 March 1985 in People vs. Galit. . . . While the Morales-Galit doctrine eventually became part of Section 12(1) of the 1987 Constitution, that doctrine affords no comfort to appellant Luvendino for the requirements and restrictions outlined in Morales and Galit have no retroactive effect and do not reach waivers made prior to 26 April 1983 the date of promulgation of Morales. Pursuant to the above doctrine, petitioner may not claim the benefits of the Morales and Galit rulings because he executed his extrajudicial confession and his waiver to the right to counsel on May 30, 1982, or before April 26, 1983. The prospective application of "judgemade" laws was underscored in Co vs. Court of Appeals 68 where the Court ruled thru Chief Justice Andres R. Narvasa that in accordance with Article 8 of the Civil Code which provides that "(j)udicial decisions applying or interpreting the laws or the Constitution shall form part of

the legal system of the Philippines," and Article 4 of the same Code which states that "(l)aws shall have no retroactive effect unless the contrary is provided," the principle of prospectivity of statutes, original or amendatory, shall apply to judicial decisions, which, although in themselves are not laws, are nevertheless evidence of what the law means. 69 Petitioner's contention that Article III, Section 12 of the 1987 Constitution should be given retroactive effect for being favorable to him as an accused, cannot be sustained. While Article 22 of the Revised Penal Code provides that "(p)enal laws shall have a retroactive effect insofar as they favor the person guilty of a felony who is not a habitual criminal," what is being construed here is a constitutional provision specifically contained in the Bill of Rights which is obviously not a penal statute. A bill of rights is a declaration and enumeration of the individual rights and privileges which the Constitution is designed to protect against violations by the government, or by individuals or groups of individuals. It is a charter of liberties for the individual and a limitation upon the power of the state. 70 Penal laws, on the other hand, strictly and properly are those imposing punishment for an offense committed against the state which the executive of the state has the power to pardon. In other words, a penal law denotes punishment imposed and enforced by the state for a crime or offense against its law. 71 Hence, petitioner's vigorous reliance on People vs. Sison 72 to make his extrajudicial confession inadmissible is misplaced. In that case, the extrajudicial confession was executed on May 19, 1983, clearly after the promulgation of Morales on April 26, 1983. The admissibility of petitioner's uncounselled waiver of the right to counsel notwithstanding, the Court has still to determine whether such waiver was made voluntarily and intelligently. 73 The waiver must also be categorical and definitive, 74 and must rest on clear evidence. 75 In his affidavit of May 30, 1982 waiving the provisions of Article 125 of the Revised Penal Code, 76 petitioner stated that: . . . matapos akong mapagpaliwanagan ng mga imbestigador ng Special Operations Group, PC/INP Central Anti-Organized Crime Task Force, Camp Crame, Quezon City ng aking mga karapatan alinsunod sa mga isinasaad ng Section 20, Article IV ng Bagong Saligang Batas ng Republika ng Pilipinas ay malaya at kusang-loob na nagsasalaysay ng mga sumusunod kahit na walang abugadong magpapayo sa akin sa pagsasagawa nito sa dahilang alam at nauunawaan ko ang aking ginagawa at wala naman akong isasalaysay kung hindi mga katotohanan lamang, bagama't ako ay inalok ng mga imbestigador na ikuha ng isang abugadong walang bayad mula sa CLAO-IBP na akin namang tinanggihan: xxx xxx xxx Na ako ay hindi sinaktan a minaltrato gayunding walang kinuha mula sa akin na hindi niresibohan; xxx xxx xxx Sgt. Arsenio Carlos, investigating officer, testified that he apprised petitioner of his right to counsel even in waiving the same right 77 but petitioner did not even inform him that his father-in-law was a lawyer. Although allowed to talk for thirty minutes with Jimmy Victorino, who was his comrade at the WPD General Assignment Section, 78 still, petitioner did not invoke his right to counsel.

It should be emphasized that petitioner could not have been ignorant of his rights as an accused. He was a fourth year criminology student and a topnotch student in the police basic course. 79 Having been in the police force since 1978, with stints at the investigation division or the detective bureau, he knew the tactics used by investigators to incriminate criminal suspects. 80 In other words, he was knowledgeable on the matterof extrajudicial confessions. The Second Issue: Confession Extracted Through Torture? Petitioner's claim that he was tortured into signing the confession appears incredible, or at least susceptible to serious doubts. The allegation of torture was negated by the medical report 81 showing no evidence of physical injuries upon his person. As correctly observed by the Solicitor General, there is no reason to maltreat him in particular when the record shows that the investigating team respected the right of the other suspects to remain silent. When he was presented before Judge Mariano Mendieta of the municipal court in Meycauayan, petitioner even waived his right to present evidence 82 instead of impugning his confession on account of the torture allegedly inflicted upon him. If indeed he had been tortured, he would have revived the case he filed against his alleged torturers upon learning of its dismissal. Furthermore, an examination of his signatures in the different documents on record bearing the same discloses an evenness of lines and strokes in his penmanship which is markedly consistent in his certification, extrajudicial confession and waiver of detention. Human experience has proven that the lines and strokes of a person's handwriting reflect his disposition at a certain given time. In the present case, no handwriting expert is needed to declare that petitioner's signatures were written voluntarily and not under compulsion of fear immediately after he had been subjected to maltreatment. In view of the foregoing, his extrajudicial confession is presumed to have been voluntarily made, in the absence of conclusive evidence showing that petitioner's consent in executing the same had been vitiated. 83 Besides, the question of whether petitioner was indeed subjected to torture or maltreatment is a factual question addressed primarily to trial courts, the findings of which are binding on this Court whose function, as afore-discussed, is principally to review only of questions of law. Moreover, we have pored over the assailed Decision and we are satisfied that respondent Court performed its duty in evaluating the evidence. More on this later. The Third Issue: Illegal Arrest? Petitioner questions the manner of his arrest, stating that the arresting officers "invited" him without a warrant of arrest and brought him to Camp Crame where he was allegedly subjected to torture almost a month after the commission of the crime. 84 Petitioner's claim is belatedly made. He should have questioned the validity of his arrest before he entered his plea in the trial court. On this point, this Court explained in People vs. Lopez, Jr.: 85 Finally, it is much too late for appellant to raise the question of his arrest without a warrant. When accused-appellant was arrested and a case was filed against him, he pleaded not guilty upon arraignment, participated in the trial and presented his evidence. Appellant is thus estopped from questioning the legality of his arrest. It is well-settled that any objection involving a warrant of arrest or procedure in the acquisition by the court of jurisdiction over the person of an accused must be made before he enters his plea, otherwise the objection is deemed waived. Besides, this issue is being raised for the first time by appellant. He did not move for the quashal of the information before the trial court on this ground. Consequently, any irregularity attendant to his arrest, if any, was cured when he voluntarily submitted himself to the jurisdiction of the trial court by entering a plea of not guilty and by participating in the trial. Moreover, the illegal arrest of an accused is not sufficient cause for

setting aside a valid judgment rendered upon a sufficient complaint after trial free from error. The only move petitioner made in regard to his arrest was to file a complaint for "grave coercion, grave threat & maltreatment" which was docketed as I.S. No. 82-12684 before the Fiscal's Office of Quezon City. 86 The complaint was an offshoot of his alleged maltreatment in the hands of the SOG upon his arrest. However, as stated above, he did not lift a finger to revive it upon its dismissal. The Fourth Issue: Sufficiency of the Prosecution's Evidence Contrary to petitioner's claim, his culpability has been proven beyond reasonable doubt. He borrowed a car to use in the hijacking knowing fully well that his owner-type jeep would give away his identity. Hecould not be identified by the postal employees in the postal van simply because after overtaking said vehicle and forcing its driver to pull over, he gave up driving the Mercedes Benz where the postal employees were made to ride, and commandeered the van. That the checks were not found in his own home is of no moment. Before the arrest and upon learning that the authorities had begun to nail down the identities of the malefactors, hehad entrusted them to his "kumare". It was petitioner himself who led the team of Lt. Pagdilao back to his place after he had admitted to Sgt. Arsenio Carlos that his share of the checks were in the possession of his "kumare" in the neighborhood. 87 In view of these facts, it is beyond dispute that petitioner was a direct participant in the commission of the crime. His alibi has been correctly considered by the Sandiganbayan to be weak and implausible. The distance between Kalvario, Meycauayan, Bulacan and downtown Manila where petitioner claimed to have been at the crucial time was between fifteen (15) to twenty (20) kilometers, which, through first-class roads, could be negotiated during that time in approximately thirty (30) minutes. It could not therefore have been physically impossible for him to be at the crime scene or its immediate vicinity when the crime was committed. 88 Having already ruled on the admissibility of petitioner's confession, this Court holds that the full force of the totality of the prosecution's evidence proves his guilt well beyond reasonable doubt. Weighing heavily against the defense is the well-settled doctrine that findings of facts of the trial courts in this case, the Sandiganbayan itself particularly in the assessment of the credibility of witnesses, is binding upon this Court, absent any arbitrariness, abuse or palpable error. . . . It is well-settled that this Court will not interfere with the judgment of the trial court in passing on the credibility of the witnesses, unless there appears in the record some fact or circumstance of weight and influence which has been overlooked or the significance of which has been misapprehended or misinterpreted. The reason for this is that the trial court is in a better position to decide the question, having heard the witnesses themselves and observed their deportment and manner of testifying during the trial. 89 The doctrine is firmly settled that the trial court's conclusion on issues of credibility is accorded with highest respect by the appellate courts (People v. Dominguez, 217 SCRA 170). Appellate courts will generally respect the findings of trial courts on the credibility of witnesses since trial courts are in a better position to weigh conflicting testimonies. They heard the witnesses themselves and observed their deportment and manner of testifying. . . . 90 So overwhelming is the prosecution's evidence that respondent Court opined that even without the "inter-locking confessions of Filoteo, Mateo and Liwanag" the remaining evidence would still be sufficient for conviction. 91 Said the respondent tribunal:

However, even setting aside the inter-locking confessional statements of Filoteo, Mateo and Liwanag, we are of the considered opinion that substantial and sufficient evidence exist which indubitably prove the guilt of Filoteo, Relator, Mateo and Saguindel who had submitted themselves to the jurisdiction of this Court. As above-stated, Filoteo was responsible for securing the use of the Mercedes Benz car used by the co-conspirators in the hi-jacking. Together with Mateo, Liwanag and Mendoza, he surrendered voluminous assorted checks which were part of the loot. Relator admitted that his service firearm was used by him in the hi-jacking, which firearm was identified by prosecution witnesses Miranda and Bautista. Saguindel was identified in line-ups at the SOG office as the suspect clad in fatigue uniform and carrying an Armalite rifle by prosecution witnesses Tagudar and Bautista. All three (3) accused, namely, Mateo, Relator and Saguindel also jumped bail during the trial and did not offer any evidence to refute the evidence presented by the prosecution against them. Such flight to evade prosecution constitutes an implied admission of guilt. Moreover, accused Filoteo's and Mateo's unexplained possession of the stolen checks raises the presumption that they were responsible for the robbery in question. It is a rule established by an abundance of jurisprudence that when stolen property is found in the possession of one, not the owner, without a satisfactory explanation of his possession, he will be presumed the thief. This rule is in accordance with the disputable presumption "that a person found in possession of a thing taken in the doing of a recent wrongful act is the taker and doer of the whole act." In the instant case, said accused has not given such satisfactory explanation, much more so when their possession had been positively established by the testimonies of prosecution witnesses Capt. Ferrer and Sgt. Carlos and by accused's own signatures at the back of said checks. Furthermore, accused Filoteo's denials and alibi cannot be entertained for being quite weak and implausible. His claim that he merely borrowed the Mercedes Bent car from Rodolfo Miranda to help out his co-accused Mateo, who had been utilized by the police as an "informer" and was following up tips in certain unsolved cases, appears to be incredible and fantastic. He also claimed that he could not have participated in the hi-jack because after giving the car to Mateo in the morning of May 2, 1982, he waited at the corner of Zurbaran St. and Avenida Rizal between 2-3:00 o'clock p.m. of the same day and then went to the WPD headquarters to attend the police formation at around 5:00 o'clock p.m. when Mateo failed to show up. Thereafter, he tried to show through his witnesses Gary Gallardo and Manolo Almogera that he was with them between 3:00 o'clock to 4:45 o'clock p.m., then from 6:00 o'clock to 8:30 o'clock p.m. and, finally, from 10:45 o'clock p.m. to 11:00 o'clock of the same date. It was through said witnesses that he tried to establish his whereabouts between 4:30 o'clock to 7:30 o'clock p.m. of May 2, 1982, the period from the time the mail van was hi-jacked up to when postal employees Bautista, Miranda and Tagudar were brought to Caloocan City and freed by their captors. Such alibi, however, fails to show that it was physically impossible for him to be present at the scene of the hi-jacking. We take judicial notice that the distance between the crime scene and down-town Manila is some 15-20 kilometers and negotiable over first- class roads in some thirty (30) minutes. We are likewise convinced that there is sufficient evidence of conspiracy as convincing as the evidence of the participation of each of the accused. As ratiocinated in the assailed Decision: 92

The participation of accused Filoteo, Mateo, Relator and Saguindel in the criminal conspiracy have (sic) been proved beyond reasonable doubt by the evidence on record and which evidence not only confirms the existence of the conspiracy between them as easily discernible from their conduct before, during and after the commission of the offense, but also their participation therein as co-principals by direct participation and/or indispensable cooperation. Their concerted efforts were performed with closeness and coordination indicating their common purpose. Hence, there being collective criminal responsibility, the act of one is the act of all, and each of the participants are responsible for what the others did in all the stages of execution of the offense. Final Question: Brigandage or Robbery? The Court believes that, though not raised as an issue and though not argued by the parties in their pleadings, the question of which law was violated by the accused should be discussed and passed upon. In fact, petitioner should have brought up such question as it may benefit him with a reduced penalty. The respondent Court convicted the accused of brigandage punishable under Presidential Decree No. 532. 93 Justifying the above disposition, the assailed Decision ratiocinates: Accused herein are charged with the violation of Presidential Decree No. 532, otherwise known as the Anti-Piracy and Anti-Highway Robbery Law of 1974. Under said decree, with respect to the highway robbery aspect, the offense is committed on a "Philippine Highway" which under Section 2 (c) thereof has been defined as "any road, street, passage, highway and bridges or any part thereof, or railway or railroad within the Philippines, used by persons or vehicles, or locomotives or trains for the movement or circulation of persons or transportation of goods, articles or property or both", while under Section 2 (e) thereof "Highway Robbery/ Brigandage" has been defined as the "the seizure of any person for ransom, extortion or other unlawful purposes or the taking away of property of another by means of violence against or intimidation of persons nor force upon things or other unlawful means, committed by any person on any Philippine Highway". (Emphasis supplied) The offense described in the information and established by the evidence presented by the prosecution properly falls within the ambit of the aforesaid special law. Therein, it was conclusively proven that a postal van containing mail matters, including checks and warrants, was hi-jacked along the national highway in Bulacan by the accused, with the attendant use of force, violence and intimidation against the three (3) postal employees who were occupants thereof, resulting in the unlawful taking and asportation of the entire van and its contents consisting of mail matters. Also the evidence further showed that the crime was committed by the accused who were PC soldiers, policeman (sic) and private individuals in conspiracy with their co-accused Castro and Escalada who were postal employees and who participated in the planning of the crime. Accordingly, all the essential requisites to constitute a consummated offense under the law in point are present. (Emphasis in the original text.) Obviously, the Court a quo labored under the belief that because the taking or robbery was perpetrated on anational highway (McArthur Highway), ergo, Presidential Decree No. 532, otherwise known as the Anti-Piracy and Anti-Highway Robbery Law of 1974, must have

been the statute violated. Such reasoning has already been debunked by this Court in the case of People vs. Isabelo Puno, 94 where it was ruled in unmistakable language that it takes more than the situs of the robbery to bring it within the ambit of PD 532. Said the Court through Mr. Justice Florenz D. Regalado: The following salient distinctions between brigandage and robbery are succinctly explained in a treatise on the subject and are of continuing validity: The main object of the Brigandage Law is to prevent the formation of bands of robbers. The heart of the offense consists in the formation of a band by more than three armed persons for the purpose indicated in art. 306. Such formation is sufficient to constitute a violation of art. 306. It would not be necessary to show, in a prosecution under it, that a member or members of the band actually committed robbery or kidnapping or any other purpose attainable by violent means. The crime is proven when the organization and purpose of the band are shown to be such as are contemplated by art. 306. On the other hand, if robbery is committed by a band, whose members were not primarily organized for the purpose of committing robbery or kidnapping, etc., the crime would not be brigandage, but only robbery. Simply because robbery was committed by a band of more than three armed persons, it would not follow that it was committed by a band of brigands. In the Spanish text of art. 306, it is required that the band "sala a los campos para dedicarse a robar." (Emphasis ours.) In fine, the purpose of brigandage, is inter alia, indiscriminate highway robbery. If the purpose is only a particular robbery, the crime is only robbery, or robbery in band if there are at least four armed participants. The martial law legislator, in creating and promulgating Presidential Decree No. 532 for the objectives announced therein, could not have been unaware of that distinction and is presumed to have adopted the same, there being no indication to the contrary. This conclusion is buttressed by the rule on contemporaneous construction, since it is one drawn from the time when and the circumstances under which the decree to be construed originated. Contemporaneous exposition or construction is the best and strongest in the law. Further, that Presidential Decree No. 532 punishes as highway robbery or brigandage only acts of robbery perpetrated by outlaws indiscriminately against any person or persons on Philippine highways as defined therein, and not acts of robbery committed against only a predetermined or particular victim, is evident from the preambular clauses thereof, to wit: WHEREAS, reports from law-enforcement agencies reveal that lawless elements are still committing acts of depredation upon the persons and properties of innocent and defenseless inhabitants who travel from one place to another, thereby disturbing the peace, order and tranquility of the nation and stunting the economic and social progress of the people:

WHEREAS, such acts of depredations constitute . . . highway robbery/brigandage which are among the highest forms of lawlessness condemned by the penal statutes of all countries: WHEREAS, it is imperative that said lawless elements be discouraged from perpetrating such acts of depredations by imposing heavy penalty on the offenders, with the end in view of eliminating all obstacles to the economic, social, educational and community progress of the people; (Emphasis supplied.) Indeed, it is hard to conceive of how a single act of robbery against a particular person chosen by the accused as their specific victim could be considered as committed on the "innocent and defenseless inhabitants who travel from one place to another," and which single act of depredation would be capable of "stunting the economic and social progress of the people" as to be considered "among the highest forms of lawlessness condemned by the penal statutes of all countries, and would accordingly constitute an obstacle "to the economic, social, educational and community progress of the people, such that said isolated act would constitute the highway robbery or brigandage contemplated and punished is said decree. This would be an exaggeration bordering on the ridiculous. From the above, it is clear that a finding of brigandage or highway robbery involves not just the locus of the crime or the fact that more than three (3) persons perpetrated it. It is essential to prove that the outlaws were purposely organized not just for one act of robbery but for several indiscriminate commissions thereof. In the present case, there had been no evidence presented that the accused were a band of outlaws organized for the purpose of "depredation upon the persons and properties of innocent and defenseless inhabitants who travel from one place to another." What was duly proven in the present case is one isolated hijacking of a postal van. There was also no evidence of any previous attempts at similar robberies by the accused to show the "indiscriminate" commission thereof. 95 Upon the other hand, the Information did not specifically mention P.D. 532. 96 The facts alleged therein and proven by the evidence constitute the offense of robbery defined in Art. 293 in relation to Art. 295 and punished by Art. 244, par. 5, all of the Revised Penal Code. 97 From the facts, it was duly proven that: * personal property (treasury warrants, checks, mail, van, tools, etc.) * belonging to another were * unlawfully taken by the accused * with intent to gain (animo lucrandi) * with intimidation against three persons (Art. 293) * in an uninhabited place, or * by an band, or

* by attacking a moving motor vehicle * on a highway; and * the intimidation was made with the use of firearms (Art. 295) Hence, the offender shall be punished by the maximum period of the penalty provided under paragraph 5 of Art. 294, which is, " prision correccional in its maximum period to prision mayor in its medium period". Effectively, the penalty imposed by the Court a quo should be lightened. However, such lighter penalty shall benefit only herein petitioner and not his co-accused who did not contest or appeal the Sandiganbayan's Decision. WHEREFORE, the petition is DENIED, but the first paragraph of the dispositive portion of the assailed Decision is partially MODIFIED to read as follows: WHEREFORE, judgment is hereby rendered finding accused Jose Filoteo, Jr. y Diendo GUILTY beyond reasonable doubt as co-principal in the crime of robbery as defined in Arts. 293 and 295 and penalized under Art. 294, paragraph 5, of the Revised Penal Code Code IMPOSING on him an indeterminate sentence of four (4) years and two (2) months of prision correccional, as minimum, to ten (10) years of prision mayor as maximum, and to pay his proportionate share of the costs of the action. All other parts of the disposition are hereby AFFIRMED. SO ORDERED.

ALFREDO R. FAJARDO, JR., petitioner, vs. SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES,respondents.

[G.R. No. 72387-89. December 8, 2000]

MARCELO S. DESIDERIO, petitioner, vs. PEOPLE OF THE PHILIPPINES and SANDIGANBAYAN,respondents. DECISION BUENA, J.: Challenged in these four separate petitions for review on certiorari is the Decision dated July 19, 1985[1] of the Sandiganbayan disposing of Criminal Case Nos. 5949 to 5951 as follows: WHEREFORE, judgment is hereby rendered, finding accused Alfredo Fajardo, Jr. alias Boy Fajardo, Marcelo Desiderio y Silvestre, Jesus Estacio y Estrella and Rolando Santos y Ramirez alias Mickey Mouse, GUILTY as co-principals in the three (3) separate complex crimes of Estafa Thru Falsification of Public Documents and hereby sentences them as follows: 1. In Criminal Case No. 5949, there being no modifying circumstance in attendance, each of said accused to suffer the indeterminate penalty ranging from FOUR (4) YEARS, TWO (2) MONTHS and ONE (1) DAY of prision correccional as the minimum, to TEN (10) YEARS and ONE (1) DAY of prision mayor as the maximum; to pay a fine of P5,000.00 each, to indemnify, jointly and severally, the Bank of the Philippine Islands and/or the Central Bank of the Philippines in the amount of P1 million representing the amount defrauded, and to pay their proportionate costs of said action; 2. In Criminal Case No. 5950, there being no modifying circumstance in attendance, sentences each of said accused to suffer the indeterminate penalty ranging from FOUR (4) YEARS, TWO (2) MONTHS and ONE (1) DAY of prision correccional as the minimum, to TEN (10) YEARS and ONE (1) DAY of prision mayor as the maximum, to pay a fine of P5,000.00 each, to indemnify, jointly and severally, the Bank of the Philippine Islands and/or the Central Bank of the Philippines, in the amount of P3 million representing the amount defrauded, and to pay their proportionate share of the costs of said action; 3. In Criminal Case No. 5951, there being no modifying circumstance in attendance, sentences each of them to suffer the indeterminate penalty ranging from FOUR (4) YEARS, TWO (2) MONTHS and ONE (1) DAY of prision correccional as the minimum, to TEN (10) YEARS and ONE (1) DAY of prision mayor as the maximum, to pay a fine of P5,000.00 each, to indemnify, jointly and severally, the Bank of the Philippine Islands in the amount of P5 million representing the amount defrauded, and to pay their proportionate share of the costs of said action. Accused Estacio, Fajardo, Jr., Santos and Desiderio appear to have been detained at the NBI as of February 16, 1982 by virtue of a Presidential Commitment Order, although all of them were later bonded and released on different dates, except Santos who has remained in custody up to the present. Accordingly, they should be granted the benefits of such preventive imprisonment under Article 29 of the Revised Penal Code, as amended, as follows: Santos from February 16, 1982 up to the date of the promulgation of this decision;

[G.R. No. 71523-25. December 8, 2000]

ROLANDO SANTOS y RAMIREZ, petitioner, vs. SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES,respondents.

[G.R. No. 72420-22. December 8, 2000]

JESUS E. ESTACIO, petitioner, vs. SANDIGANBAYAN, respondent.

[G.R. No. 72384-86. December 8, 2000]

Estacio up to April 29, 1985; Fajardo, Jr. up to April 26, 1982 and Desiderio up to April 19, 1982. Let copies of this decision be furnished the Hon. Governor, Central Bank; the Citibank; the Bank of the Philippine Islands and the Bankers Association of the Philippines for their information and guidance. SO ORDERED. On April 15, 1982, the Tanodbayan filed with the Sandiganbayan three (3) informations for estafa thru falsification of public documents against Felipe Salamanca, Mariano Bustamante, Basilio Tan, Alfredo Fajardo, Jr., Jesus Estacio, Rolando San Pedro, Manuel Valentino, Rolando Santos, Marcelo Desiderio, Jaime Tan and Emilio Reyes.[2] The informations filed were similarly worded except for the dates of commission of the crime charged, the number of the checks involved, and the amounts allegedly misappropriated. Thus: That on or about (October 19, 1981 in Crim. Case No. 5949, November 20, 1981 in Crim. Case No. 5950, and October 30, 1981 in Crim. Case No. 5951), in the City of Manila and within the jurisdiction of this Honorable Court, accused Manuel Valentino, employed as Bookkeeper detailed at the Clearing Office, Central Bank of the Philippines and accused Jesus Estacio y Estrella, employed as Janitor-Messenger of the Central Bank of the Philippines, and as such are public employees, with abuse of confidence and taking advantage of their official position, in order to implement a plan or scheme to defraud the Bank of the Philippine Islands, Laoag City Branch, which plan or scheme was previously formulated and agreed upon by all the herein accused immediately prior to (October 19, 1981 in Crim. Case No. 5949, November 20, 1981 in Crim. Case No. 5950, and October 30, 1981 in Crim. Case No. 5951), accused Manuel Valentino pursuant to said plan or scheme, did then and there wilfully, unlawfully and feloniously and taking advantage of his official position and with intent to gain and to defraud, falsify the Clearing Statement prepared by the Central Clearing office of the Bank of the Philippine Islands and submitted to the Clearing Section of the Central Bank of the Philippines as well as the Manifest prepared by the Central Bank Clearing Office in connection thereto by crossing out the entry in the duplicate copies of the aforesaid Clearing Statement and Manifest which entries refer to Check No. (27101 in Crim. Case No. 5949, 27111 in Crim. Case No. 5950, and 27108 in Crim. Case No. 5951) and Check No. (27105 in Crim. Case No. 5949, 27118 in Crim. Case No. 5950 and 27121 in Crim. Case No. 5951) issued by accused Bustamante against his checking account at the Bank of Philippine Islands, Laoag City Branch, which has only an outstanding balance of P1,000.00 and which checks were deposited in the current account of Magna Management Consultant with the Citibank Greenhills Branch by accused Rolando San Pedro and as a result of the aforesaid falsification which made it appear that no such checks were submitted by the Bank of Philippine Islands to the Central Bank of the Philippines for clearing, the Bank of the Philippine Islands, Laoag City Branch has not issued any notice of dishonor or stop payment to the Citibank Greenhills Branch, and as a consequence thereof accused Rolando San Pedro was able to withdraw from the Citibank the full amount of the two checks amounting to (P1,000,000.00 in Crim. Case No. 5949, P3,000,000.00 in Crim. Case No. 5950, and P5,000,000.00 in Crim. Case No. 5951) and thereafter all the accused appropriated among themselves the proceeds thereof to their own personal use and benefit and to the damage and prejudice of the Central Bank of the Philippines or the Bank of the Philippine Islands, Laoag City Branch in the aforementioned amount of (P1,000,000.00 in Crim. Case No. 5949, P3,000,000.00 in Crim. Case No. 5950, and P5,000,000.00 in Crim. Case No. 5951). Upon arraignment, accused Fajardo, Jr. @ Boy Fajardo, Desiderio, Estacio, Valentino and Santos, assisted by their respective counsel, pleaded not guilty to the crimes charged. [3] Salamanca, Basilio Tan, Jaime Tan, Reyes and Bustamante have remained at-large while San Pedro died. Upon agreement of the prosecution and the defense, a joint trial of the three cases was ordered conducted.[4]

Estacio was first discharged as an accused to be utilized as a state witness. [5] Later, he filed a motion for his re-inclusion in the information as an accused allegedly for the sake of the safety of his family. The Sandiganbayan granted his motion and thus he was re-included as an accused in Crim. Case Nos. 5949-5951.[6] The prosecution also moved for the discharge of Valentino as an accused but the Sandiganbayan denied that motion. Exercising its discretion, the Sandiganbayan eventually discharged Valentino from the three informations to be a state witness.[7] The antecedent facts that gave rise to the instant petitions are as follows: Sometime in 1981, a syndicate masterminded by Felipe Salamanca infiltrated the Clearing Center of the Central Bank of the Philippines (Central Bank, for brevity). In its operation, the syndicate employed two schemes: the switching scheme, and the pilferage scheme. In the switching scheme, a syndicate would open a current account with such banks as the Bank of America (BA) and the Philippine Veterans Bank (PVB) in Iloilo. As a matter of procedure, checks drawn on the BA were forwarded to the Central Bank for clearing. Upon receipt of those checks by the clearing clerk of the Central Bank, who was a member of the syndicate, he would substitute those checks with ones bearing the stamp of another bank. Thus, instead of forwarding the checks to the BA, these were misrouted to cause delay in the clearing procedure. Upon the lapse of the clearing period, the depositor would withdraw the amount of the checks. However, the scheme faltered as the huge amounts covered by the checks caused suspicion on the part of the PVB. It called up the BA to inquire about those checks and hence, the former bank discovered that the checks were insufficiently funded. In the pilferage scheme, current accounts would be opened with a provincial bank, such as the Bank of the Philippine Islands (BPI), Laoag branch, and a city bank such as the Citibank-Greenhills, Manila. A BPI check deposited with Citibank would then be forwarded to the Central Bank clearing house where members of the syndicate, who were employed there, would pilfer the check and alter the Central Bank manifest and the entries in the clearing bank statements. The pilferage was intended to provide opportunity for the syndicate to blot out entries referring to the pilfered check. Consequently, BPI-Laoag would not know that a check drawn on it had been deposited with Citibank. After the lapse of the five-day clearing period, the syndicate would withdraw the amount deposited from Citibank simply because said bank would have considered the check cleared and funded, as no protest or notice of dishonor could be received from BPI-Laoag. In utilizing this scheme in the commission of the crimes charged in Criminal Case Nos. 5949 to 5951, the syndicate netted Nine Million Pesos (P9,000,000.00).

EVIDENCE FOR THE PROSECUTION

The prosecution offered the testimonies of sixteen (16) witnesses,[8] and documentary evidence marked Exhibits A to DD, and Annexes B to QQ, with sub-markings, to prove the following: On October 14, 1981, one Mariano Bustamante[9] opened a savings account with BPILaoag with an initial deposit of P3,000.00: P2,000.00 of which was in check, and P1,000.00 in cash.[10] That same day, he opened a current account with P1,000.00 as initial deposit in the same bank. Upon his request, a checkbook was issued to him.[11] That same month, Marcelo Desiderio, allegedly a representative of Magna Management Consultant, approached Maria Nieves Garrido, personal banker of Citibank-Greenhills, and requested signature cards and other requirements for the purpose of opening a current account. Thereafter, Desiderio returned to the bank, submitted the required documents and duly accomplished forms, and made an initial deposit ofP10,000.00. Thus, a checking account in the name of Magna Management Consultant was opened in Citibank-Greenhills with Rolando San Pedro as its representative. A checkbook was given to Desiderio.[12]

On October 15, 1981, at the Ramada Hotel, Felipe Salamanca informed Manuel Valentino that two (2) checks were to be deposited with Citibank the following day. Salamanca instructed Valentino to watch out for those checks in the clearing house at the Central Bank. On October 16, 1981, two (2) checks in the amounts of Four Hundred Ninety-Eight Thousand Seven Hundred Nineteen Pesos (P498,719.00), and Five Hundred One Thousand Two Hundred Sixty Pesos and Thirty Centavos (P501,260.30) were indeed deposited with the Citibank-Greenhills under the current account of Magna Management Consultant, represented by Rolando San Pedro. On October 30, 1981, two (2) more checks were deposited at the same bank in the total amount of P3,000,000.00. Another deposit of checks was made on November 20, 1981 in the total amount of P5,000,000.00. All these checks were brought to the Central Bank Clearing Center. The checks deposited on October 16, 1981 did not reach the Central Bank on that day, which was a Friday, but on Monday, October 19, 1981. Manuel Valentino, a bookkeeper at the Clearing Operations Division of the Central Bank, received from Jesus Estacio, a Central Bank janitor-messenger, the demand envelope containing the two (2) BPI-Laoag checks in the total amount of P1,000,000.00 in the comfort room on the fourth floor of the Central Bank administration building. Therein Valentino altered the amount of P1,076,416.95 by crossing out the amount of One Million Pesos. Thus, under the column Total amount received, only the amount of P76,416.95 was reflected in order that BPI-Laoag would not look for the P1 million check.[13] Valentino then brought the altered clearing statement back to the Clearing Center and prepared a Central Bank Manifest where he changed the figure in the original copy to tally with those in the altered clearing statement. On October 30, 1981, the syndicate employed the same scheme. As soon as the demand envelope containing the BPI-Laoag checks arrived, Valentino took it and gave it to Jesus Estacio who then brought the same to the comfort room at the fourth floor. Valentino followed him there and took the two BPI checks amounting to P3,000,000.00, and altered the figures in the BPI Clearing Statement. Valentino thereafter brought said envelopes to the clearing house, and prepared the Central Bank Manifest, likewise altering the figures in the original to tally with the figures in the altered clearing statement. At the last operation on November 20, 1981, the group followed the same procedure Valentino asked Estacio to give him the demand envelope and the former then went to the comfort room. Valentino took the two BPI-Laoag checks in the total amount of P5,000,000.00 which he later gave to Salamanca. Again, he altered the figures in the clearing statement and those in the Central Bank Manifest so that these would conform with each other.[14] As a matter of procedure, the demand envelopes containing the checks intended for BPI-Laoag, the altered Central Bank Manifests, and the clearing statements were forwarded to the Regional Clearing Center. The pilfered checks deposited in the account of Magna Management Consultant were not included in those envelopes. Because BPI-Laoag did not receive the checks with a total value of P9,000,000.00, these were not processed. Consequently, as no objection or protest regarding the checks were registered and no notice of dishonor of the checks for insufficient funds was made by the BPI-Laoag, and since the reglementary period for making such protest or notice of dishonor had elapsed, Citibank-Greenhills considered the checks as good and funded. Hence, on different dates covering the period from October 26 to December 6, 1981, Citibank-Greenhills allowed withdrawals in the aggregate amount of P9,000,000.00 from the account of Magna Management Consultant. Withdrawals were made through checks endorsed by Rolando San Pedro and encashed by Jaime R. Tan.[15] The proceeds of the anomalous transactions were divided among the members of the syndicate. Salamanca gave Estacio P10,000.00 after the October 19, 1981 operation, P4,900.00 after the October 30, 1981 operation andP5,000.00 after the November 20, 1981 operation. Valentino received P20,000.00, P10,000.00 and P20,000.00 after the October 16 and 30, and November 20, 1981 operations. On January 28, 1982, Segundo Gonzaga, then Administrative Assistant for Transit Center (Clearing Center of BPI), was informed through a long distance telephone call by the manager of BPI-Laoag that their clearing transactions on October 19, 1981, October 30, 1981 and November 20, 1981 registered an outstanding discrepancy of P9,000,000.00 as reflected in their inter-office reconciliation statement. The manager of BPI-Laoag and the BPI Regional

Manager for Northern Luzon who went to the office at BPI-Ayala showed the clearing statements to Gonzaga. Upon comparing the xerox copies of the BPI Clearing Statements (Laoag copies) and xerox copies of the clearing envelope sent to Citibank Manila, Gonzaga noticed the alterations. Thus, he went to the Accounting Department of BPI-Ayala and found out that the Central Bank debited their bank in the amount of P9,000,000.00.[16] Gonzaga went to Citibank-Greenhills and talked to Jake Ocampo, its assistant manager, about the clearing items. After checking their outgoing clearing checks for October 19, 1981, October 30, 1981 and November 20, 1981, Ocampo told Gonzaga that they did not recall said clearing checks. He gave Gonzaga reproduced microfilm copies of those checks. Gonzaga submitted the checks to his superiors with an accompanying report. [17] The BPI and the Central Bank jointly referred the matter for investigation to the National Bureau of Investigation (NBI) which assigned the case to Head Agent Salvador Ranin of the Special Investigation Division.[18] On February 12, 1982, the Chief of the Anti-Bank Fraud Unit of the Central Bank, Atty. Agapito Fajardo, the banks Chief Security Officer, and the BPI Vice-President and Comptroller brought Manuel Valentino to the NBI. The following day, Agent Ranin took Valentinos statement. Valentino waived his rights to remain silent and to counsel. He signed the waiver on the first page of his statement. On March 22, 1982, Agent Ranin took Valentinos supplementary sworn statement. The same NBI agent took Jesus Estacios statement on February 17, 1982 and supplementary statement on March 22, 1982. Like Valentino, Estacio waived his right to counsel. In their respective statements, Valentino and Estacio admitted their participation in the commission of the crime, narrated how they carried out the plan to defraud the banks, and identified those who participated in the criminal acts. After the investigation, Agent Ranin came out with a Memorandum Report dated April 26, 1982.[19]

EVIDENCE FOR THE DEFENSE

On December 2, 1969, the Central Bank of the Philippines employed Jesus Estacio as janitor-messenger. In 1978, a certain Rico Javier introduced Estacio to Felipe Salamanca. When Salamanca learned that Estacio was connected with the Central Bank, he asked Estacio if he knew any bookkeeper thereat as his compadre needed one. Estacio replied that he would look for one. A week later, Salamanca called up Estacio and asked him if he had found a bookkeeper. Estacio mentioned Manuel Valentino. Salamanca instructed Estacio to bring Valentino to Jacks Restaurant in Quezon City after office hours. In that restaurant, Estacio introduced Valentino to Salamanca. Valentino was in turn introduced to Basilio Tan. During their conversation, Valentino told Salamanca about his work as a bookkeeper at the Central Bank.[20] Sometime in October 1981, Valentino requested Estacio to accompany him to the EDCOR office. There they met Salamanca, Marcelo Desiderio, Rolando Santos and Basilio Tan. Salamanca told Estacio to stay outside the office because the group was going to discuss something. Half an hour later, the group dispersed. That same month, Estacio saw Romeo Villasanta, another accused, at the clearing office of the Central Bank. When Estacio asked why Villasanta was there, the latter answered that he was just expediting something. Estacio saw Villasanta for the second time that same month talking with Valentino at the clearing office. Valentino asked Estacio to point out the office of the Department of Economic Research to Villasanta because Villasanta would be doing some research. Estacio went with Villasanta to the fourth floor and showed him the said office. Villasanta then inquired where the comfort room in that floor was. Estacio thereafter went back to his work and did not see Villasanta anymore.[21]1 On November 20, 1981, Valentino asked Estacio to bring an envelope to the fourth floor and to wait for him at its lobby. Estacio acceded and later, Valentino arrived. Valentino took the envelope from Estacio and went to the comfort room. Thereafter, Estacio went to the Clearing Office.[22]

Sometime in February 1982, upon learning that somebody from the NBI was looking for him, Estacio went to the NBI. There he told Agent Ranin that he wanted to call a lawyer but Agent Ranin did not allow him to do so. Agent Ranin investigated him from 5:30 p.m. until 7:30 p.m. on February 17, 1982. This continued the following day and lasted a week. In the course of the investigation, Agent Ranin promised Estacio that he would not be harmed should he cooperate and admit the charges against him, and that he would be freed once he becomes a state witness. However, Agent Ranin hit him with a newspaper and poked his gun at him. Estacio was allowed to read the statement before he signed it.[23] On cross-examination, Estacio admitted that during his stay at the NBI for about two months, his wife and children would visit him every week and he could talk to them freely. [24] He was transferred to Muntinlupa and detained at the Death Row for two years. On March 22, 1982, Agent Ranin took his second statement that was a continuation of his first statement. He was unable to read his supplementary statement because of fear of Agent Ranin, who was scaring him. He stressed that the statements he made before the NBI were not true and that he only signed those documents[25] because he was afraid of Agent Ranin.[26] Rolando Santos came to know Felipe Salamanca when he sold his car to him (Salamanca) on installment with P15,000.00 as down payment with the balance of P20,000.00 to be paid in two or three months. He accepted partial payment for the car. After a time, Salamanca fully paid the balance. In July 1981, Salamanca gave him P3,000.00. Twice or thrice, Salamanca tried to convince him to join a scheme to defraud a bank. After Salamanca had paid him the full price of the car, Salamanca asked him again to join his group. All he had to do was to open a checking account. He could have easily facilitated this, being the Vice-President for Finance of American Steamship Agencies. In those meetings with Salamanca where he was persuaded to open a checking account with a bank, Basilio Tan, the son of a general and his classmate at San Beda College, Valentino, and Desiderio were present. When he told Salamanca that he was not interested in the scheme to defraud a bank, as he was busy with his job, Salamanca got mad. On October 20, 1981, an unidentified assailant shot him in his house. He sustained three (3) gunshot wounds and was confined at the Paraaque Medical Center.[27] Marcelo Desiderio came to know Felipe Salamanca sometime in July 1981 when Salamanca went to his office[28] because he wanted to open an account with CitibankGreenhills. Desiderio went to Citibank-New York to inquire about the requirements for opening an account. Two days later, he gave Salamanca the bank forms and signature cards to be accomplished. He learned from Salamanca that the forms would be filled up by Rolando San Pedro. For the initial deposit, Salamanca gave him P10,000.00 in cash and check. He also received P2,500.00 as consultancy fee. He went to Citibank-Greenhills to make the deposit and the bank issued him a checkbook.[29] Desiderio denied that he was present in any meeting where Salamanca and his group discussed a plan to defraud a bank. He acceded in opening the bank account at CitibankGreenhills because Salamanca assured him that the account would be opened in connection with a loan application with the Citibank of New York. He denied that Salamancas group tasked him and Rolando Santos with opening accounts in Metro Manila banks, particularly with Citibank-Greenhills. He denied knowing Santos and Estacio personally although he admitted that Estacio, with Manuel Valentino, came to his office to deliver a tailored suit for a certain Atty. Martin. He further denied knowing Jaime Tan but admitted knowing Alfredo Fajardo, who was his client when he was still connected with BPI.[30] Alfredo Fajardo opted to waive his right to testify and said that he has no documentary evidence to present before the Sandiganbayan.[31]Another accused, Emilio Reyes, voluntarily surrendered to the Sandiganbayan and was detained at the Security and Sheriff Services office.[32] He filed a motion for reinvestigation on June 16, 1987 but it was resolved against him.[33] He pleaded not guilty to the charges against him.[34]However, since July 17, 1989, Reyes failed to appear for trial. On February 16, 1990, the Sandiganbayan acquitted him in these cases on account of the prosecutions failure to prove his guilt beyond reasonable doubt.[35] Because the cases against Reyes were tried in absentia, the Sandiganbayan ordered that these be archived without prejudice to revival for purposes of contempt citation in the event that he shall have been apprehended and brought within the jurisdiction of the court.[36]

Rolando San Pedro was arrested on March 22, 1988 at the vicinity of the Sandiganbayan.[37] He entered a plea of not guilty to the charges against him.[38] On June 11, 1989, he died.[39] Thus, the Sandiganbayan dismissed the cases against him. In the Resolution of February 23, 1990, which was promulgated on March 12, 1990, the Sandiganbayan resolved that the cases against Felipe Salamanca, Basilio Tan, Jaime Tan and Mariano Bustamante be archived.[40] As stated earlier, the Sandiganbayan convicted Estacio, Desiderio, Santos, and Fajardo of the complex crimes of estafa thru falsification of public documents. Estacio, Desiderio and Fajardo filed separate motions for reconsideration,[41] while Santos filed with the Supreme Court a motion for extension of time to file a petition for certiorari.[42] On September 26, 1985, the Sandiganbayan denied those motions for reconsideration.[43] Hence, the instant petitions for review on certiorari that they individually filed with this Court, but which were consolidated in the Resolution of December 10, 1985.[44] In its consolidated comment on the petitions, the Office of the Solicitor General (OSG) questions the propriety of raising factual issues in a petition for review on certiorari under Rule 45 of a Decision of the Sandiganbayan.[45] The OSG asserts that in such a petition, this Courts jurisdiction is confined to questions of law and hence, this Court is not supposed to reweigh evidence but only to determine its substantiality. On this matter, in Filoteo, Jr. vs. Sandiganbayan,[46] this Court, after citing Jariol, Jr. vs. Sandiganbayan,[47] said: As amended by Republic Act No. 7975, Section 7 of P.D. No. 1606 expressly provides that `(d)ecisions and final orders of the Sandiganbayan shall be appealable to the Supreme Court by petition for review on certiorari raising pure questions of law in accordance with Rule 45 of the Rules of Court. However, in exceptional cases, this Court has taken cognizance of questions of fact in order to resolve legal issues, as where there was palpable error or grave misapprehension of facts by the lower court. Criminal cases elevated by convicted public officials from the Sandiganbayan deserve the same thorough treatment by this Court as criminal cases involving ordinary citizens simply because the constitutional presumption of innocence must be overcome by proof beyond reasonable doubt. In all criminal cases, a persons life and liberty are at stake. While only petitioner Estacio is a government employee in these cases, as the three others are private individuals, it is in the light of this pronouncement that the instant petitions shall be considered and resolved. Moreover, in the recent case of Armed Forces of the Philippines Mutual Benefit Association, Inc. vs. Court of Appeals,[48] the Court, citing Supreme Court Circular No. 2-90 dated March 9, 1990, held that a petition for review on certiorari questioning the final judgment, order, or resolution of the Court of Appeals, the Sandiganbayan, the Regional Trial Courts or other courts, may raise factual issues. In the exercise of its sound discretion, taking into account the attendant circumstances, this Court retains the option of either taking cognizance of, and deciding such issues, or referring the case to the proper court for determination. In these criminal cases, this Court chooses to take cognizance of factual questions raised in the interest of proper administration of justice. In their separate petitions, petitioners assert that there was no proof beyond reasonable doubt that they committed the crimes charged principally because: (a) the extrajudicial confessions of petitioner Estacio and Valentino are inadmissible in evidence as their right to counsel was violated when said confessions were executed; (b) the discharge of Valentino from the informations to be a state witness was improper; and (c) conspiracy, which made all petitioners equally guilty, was not adequately proven. Notably, petitioners Santos and Estacio aver that, should they be convicted as charged, they should be held individually liable only as an accomplice.[49]

Relevant to petitioners contention on the admissibility of the extrajudicial confessions of petitioner Estacio and Valentino is Article IV, Section 20 of the 1973 Constitution providing for the rights of an accused during custodial investigation. It reads: No person shall be compelled to be a witness against himself. Any person under investigation for the commission of an offense shall have the right to remain silent and to counsel, and to be informed of such rights. No force, violence, threat, intimidation, or any other means which vitiates the free will shall be used against him. Any confession obtained in violation of this section shall be inadmissible in evidence. On the other hand, the first paragraph of Article III, Section 12 of the 1987 Constitution states: (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. A comparison of these provisions would readily show that the 1973 Constitution does not specify the right against uncounselled waiver of the right to counsel, which is found in paragraph 1, Section 12, Article III of the 1987 Constitution. However, the latter constitutional provision cannot be applied to extrajudicial confessions made prior to its date of effectivity. In Filoteo, Jr. vs. Sandiganbayan, this Court held that: x x x the specific provision of the 1987 Constitution requiring that a waiver by an accused of his right to counsel during custodial investigation must be made with the assistance of counsel may not be applied retroactively or in cases where the extrajudicial confession was made prior to the effectivity of said Constitution. Accordingly, waivers of the right to counsel during custodial investigation without the benefit of counsel during the effectivity of the 1973 Constitution should, by such argumentation, be admissible. Although a number of cases held that extrajudicial confessions made while the 1973 Constitution was in force and effect, should have been made with the assistance of counsel, the definitive ruling was enunciated only on April 26, 1983 when this Court, through Morales, Jr. vs. Enrile, issued the guidelines to be observed by law enforcers during custodial investigation. The Court specifically ruled that `(t)he right to counsel may be waived but the waiver shall not be valid unless made with the assistance of counsel. Thereafter, in People vs. Luvendino, the Court through Mr. Justice Florentino P. Feliciano vigorously taught: `x x x. The doctrine that an uncounselled waiver of the right to counsel is not to be given legal effect was initially a judge-made one and was first announced on 26 April 1983 in Morales vs. Enrile and reiterated on 20 March 1985 in People vs. Galit. x x x. While the Morales-Galit doctrine eventually became part of Section 12 (1) of the 1987 Constitution, that doctrine affords no comfort to appellant Luvendino for the requirements and restrictions outlined in Morales and Galit have no retroactive effect and do not reach waivers made prior to 26 April 1983 the date of promulgation of Morales.[50] Clearly then, the Morales-Galit rulings are inapplicable in these cases as the extrajudicial confessions in question here, were taken on February 13, February 17 and March 22, 1982, long before the date of promulgation of the Morales Decision on April 26, 1983. Prior to this date, the guidelines requiring that waiver of the right to counsel by an accused can be properly made only with the presence and assistance of counsel, had yet to be formulated and pronounced by this Court.[51] The rule on prospective application of judge-made laws was stressed in Co vs. Court of Appeals.[52] In that case, the Court, through then Chief Justice Andres R. Narvasa, ruled

that in accordance with Article 8 of the Civil Code providing that (j)udicial decisions applying or interpreting the laws or the Constitution shall form a part of the legal system of the Philippines, and Article 4 of the same Code stating that (l)aws shall have no retroactive effect, unless the contrary is provided, the principle of prospectivity of statutes, original or amendatory, shall apply to judicial decisions, which, although in themselves are not laws, are nevertheless evidences of what the law means. As to the admissibility of the uncounselled waivers of Valentino and petitioner Estacio of their right to counsel during custodial investigation, the intelligent and voluntary execution thereof should be determined. The pre-interrogation advisories to the extrajudicial confessants uniformly state: 01. QUESTION: Mr. MANUEL VALENTINO, we are informing you that you are under investigation in connection with the alleged Estafa thru Falsification of Commercial/Official Documents committed at the Central Bank of the Philippines. But before we ask you any question, you must understand your legal rights. You have the right to remain silent. You have the right not to give any statement if you do not wish to. Anything you say may be used as evidence against you in any proceeding. You are entitled to the assistance of counsel of your own choice. If you cannot afford a lawyer and you want one, a lawyer will be appointed for you before we ask you any question. Now, after having been so informed, are you still willing to give a free and voluntary statement and swear to tell the truth and nothing but the truth in this investigation? ANSWER: Yes, sir. 02. Q: Are you willing to sign a Waiver of your rights? A: Yes, sir. WAIVER I have been advised of my right to remain silent; that anything that I say may be used as evidence against me and that I have the right to a lawyer to be present with me while I am being questioned. I understand these rights and I am willing to make a statement and answer questions. I do not want the assistance of counsel and I understand and know whag (sic) I am doing. No promises or threats have been made to me and no force or pressure of any kind has been used against me. (Sgd. with thumbmark) MANUEL VALENTINO SOCAN 13 Manila[53] It is settled that once the prosecution has shown that there was compliance with the constitutional requirement on pre-interrogation advisories, a confession is presumed to be voluntary and the declarant bears the burden of proving that his confession is involuntary and untrue.[54] The defense attempted to prove that Valentino and petitioner Estacio were subjected to threats and intimidation at the NBI to obtain their confessions. Other than their bare assertions, Valentino and petitioner Estacio miserably failed to present any convincing evidence to prove the NBIs use of force or intimidation on their persons. Before signing their statements, they never protested against any form of intimidation, much more, of maltreatment that they could have relayed to relatives visiting them at the NBI. In People vs. Pia,[55] the Court said: x x x It has been held that where the defendants did not present evidence of compulsion or duress or violence on their persons; where they failed to complain to the February 1982, NBI,

officers who administered the oaths; where they did not institute any criminal or administrative action against their alleged intimidators for maltreatment; where there appeared to be no marks of violence on their bodies and where they did not have themselves examined by a reputable physician to buttress their claim, all these should be considered as factors indicating voluntariness of confessions. That the statements were intelligently executed is borne out by the fact that both confessants have reached the tertiary level of education: Valentino holds the degree of Bachelor of Science in Commerce[56] while petitioner Estacio reached the first year of college education in banking and finance.[57] Possessed with sufficient education and not proven to be mentally unfit, they could have protested the forced extraction of culpability from themselves if indeed that was true. Moreover, the extrajudicial confessions in question are replete with details on the manner in which the crimes were committed, thereby ruling out the probability that these were involuntarily made.[58] Voluntariness of a confession may be inferred from its language such that, if upon its face the confession exhibits no sign of suspicious circumstances tending to cast doubt upon its integrity, it being replete with details which could possibly be supplied only by the accused reflecting spontaneity and coherence which, psychologically, cannot be associated with a mind to which violence and torture have been applied, it may be considered voluntary.[59] In U.S. vs. De los Santos,[60] the Court said: If a confession be free and voluntary the deliberate act of the accused with a full comprehension of its significance, there is no impediment to its admission as evidence, and it then becomes evidence of a high order; since it is supported by the presumption a very strong one that no person of normal mind will deliberately and knowingly confess himself to be the perpetrator of a crime, especially if it be a serious crime, unless prompted by truth and conscience. In these cases, the NBI investigator would not have known the members of the syndicate and the sophisticated manner by which the crimes in question were perpetrated if Valentino and Estacio, who were directly involved therein, did not reveal these. With respect to the admissibility of the extrajudicial confessions of Valentino and petitioner Estacio against their co-accused, once again, this Court declares that although an extrajudicial confession is admissible only against the confessant, jurisprudence makes it admissible as corroborative evidence of other facts that tend to establish the guilt of his coaccused.[61] In People vs. Alvarez,[62] this Court ruled that where the confession is used as circumstantial evidence to show the probability of participation by the co-conspirator, that confession is receivable as evidence against a co-accused. The Court elucidated further in People vs. Encipido[63] as follows: It is also to be noted that APPELLANTS extrajudicial confessions were independently made without collusion, are identical with each other in their material respects and confirmatory of the other. They are, therefore, also admissible as circumstantial evidence against their co-accused implicated therein to show the probability of the latters actual participation in the commission of the crime. They are also admissible as corroborative evidence against the others, it being clear from other facts and circumstances presented that persons other than the declarants themselves participated in the commission of the crime charged and proved. They are what is commonly known as interlocking confession and constitute an exception to the general rule that extrajudicial confessions/admissions are admissible in evidence only against the declarants thereof. Petitioner Estacio claimed that, to his surprise, he found Valentino at the NBI. They talked for a while and Valentino told him to say whatever he (Valentino) would say.[64] That allegation alone cannot be considered as indicative of collusion between them as their sworn statements both contain facts showing their deep involvement in the scheme to defraud a bank. Human experience dictates that no one would volunteer to demonstrate ones culpability unless it was the truth. It may thus be safely presumed that in telling petitioner

Estacio to say whatever he would say, Valentino was merely cautioning petitioner Estacio to tell the truth. Nevertheless, even without the extrajudicial confessions of petitioner Estacio and Valentino, evidence on record is sufficient to sustain a finding of culpability.[65] On the validity of the discharge of Valentino from the information to be a state witness, the determination of who should be used as a state witness to bolster the successful prosecution of criminal offenses is part of prosecutorial discretion.[66] However, it is the courts that finally determine whether the requirements of the Rules of Court[67] have been satisfied to justify the discharge of an accused to become a state witness. It should be recalled that petitioner Estacio was originally discharged to be a state witness. Upon his manifestation that he would rather remain an accused in these cases for the protection of his family, the court re-included him in the information. Apparently considering the nature of the crimes and the secrecy by which these were perpetrated, the prosecution was left with no recourse but to side with Valentinos motion for his discharge to be a state witness. The absolute necessity for the testimony of someone who was a participant in the criminal scheme is buttressed by the ruling that where a crime is contrived in secret then the discharge of one of the conspirators is essential so he can testify against the other conspirators.[68] In a conspiracy which was done in secret, there is a necessity to discharge one of the accused to provide direct evidence of the commission of the crime.[69] Worth noting, however, is that Valentinos testimony and his sworn statements differ with regard to petitioner Estacios participation in the commission of the October 19, 1981 criminal act, and the participation of petitioner Fajardo in the three crimes. Valentino stated in his sworn statement that on October 19, 1981, when he noticed that the BPI representative had placed the demand envelope containing the BPI-Laoag checks for clearing at the Laoag counter behind him, petitioner Estacio, who was the syndicates messenger, immediately came with a push cart. Petitioner Estacio placed the demand envelope in the pushcart and proceeded to the comfort room in the fourth floor where Valentino followed him to alter the documents to suit the syndicates purposes. On the other hand, when he testified, Valentino asserted that he did not see petitioner Estacio at the meeting when they hatched the first operation on October 16, 1981. When the alterations were made on October 19, 1981, Valentino claimed that petitioner Estacio was not with them[70] for it was he himself who brought the bundle of checks to the fourth floor comfort room where Villasanta took the checks and altered the bank statements. With respect to petitioner Fajardo, Valentino averred in his supplementary sworn statement that petitioner Fajardo was present in three or four conferences where he participated in the discussion to defraud a bank.[71] However, on the witness stand, Valentino swore that petitioner Fajardo had no participation in these cases[72] or in the three operations subjects of these cases. These discrepancies in Valentinos sworn statements and testimony are material ones as far as petitioners Estacio and Fajardo are concerned. On this issue, the Court has consistently held that: x x x discrepancies between the statement of the affiant in his affidavit and those made by him on the witness stand do not necessarily discredit him since ex-parte affidavits are generally incomplete. Affidavits are generally subordinate in importance to open court declarations because they are oftentimes not in such a state as to afford him a fair opportunity of narrating in full the incident which has transpired in his affidavit and those made by him. This is so because affidavits are frequently prepared by the administering officer and cast in the latters language or the latters understanding of what the affiant had said, while the affiant frequently simply signs the affidavit after the same has been read to him. [73] In People vs. Fabro, the Court ruled that repudiation and recantation of confessions which have been obtained in accordance with the Constitution are looked upon with disfavor as unreliable.[74] However, that ruling may not find application under the circumstances of these cases. In Fabro, it was the accused himself who recanted his confession when, on the witness stand, he denied he committed the crime. No other witness testified for the

defense. On the other hand, in these cases, Valentino, a co-conspirator who appeared as a state witness before the court, adhered to his confession as regards the participation of the accused, except that he testified that petitioner Estacio was absent when the first crime was planned and committed, and that petitioner Fajardo was not involved in the three cases. It has been held that where a witness who testified for the prosecution subsequently testifies for the defense by retracting his previous testimony, the test to decide which testimony to believe is a comparison coupled with the application of the general rules of evidence.[75] Although these cases do not involve the conflicting testimonies of a witness, that rule may be applied in a conflict between a sworn statement and the testimony while recognizing the inferiority of a sworn statement to a testimony. In these cases, the narration of facts in Valentinos sworn statements were in substance reproduced in his testimony which, in turn, was supported by other testimonial evidence and the voluminous documentary evidence. In the absence of any reason to question the credibility of Valentino and that of his testimony, that portion of his testimony on the nonparticipation of petitioner Estacio in Crim. Case No. 5949 and petitioner Fajardo in all three cases shall be controlling. We deem the variance in Valentinos testimony as endeavors to rectify his sworn statements to conform to the truth. To reiterate, such variance, does not make him a less credible witness or affect the merit of his testimony, as the other pieces of prosecution evidence support it and do not prove that it is untruthful or contrived. The value of Valentinos testimony in the prosecution of these cases cannot be underestimated. It fills in the gaps in the prosecution evidence that the other prosecution witnesses failed to cover. Without it, conspiracy to defraud the BPI-Laoag of P9,000,000.00 through falsification of the clearing statement and manifest would not have been proven beyond reasonable doubt. A conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it.[76] As creditably shown by the prosecution, the crimes were committed not solely by the person who altered the clearing statement and manifest. That all-important act, the conception of which could have been hatched only by one familiar with banking procedures, would not have been possible if not for the indispensable cooperation of others. Thus, Valentino testified: Q Will you please describe in detail what was agreed upon during the meeting? A It was agreed upon that Salamanca and Villasanta will open an account at Laoag Branch of the Bank of the Philippine Islands and Desiderio also and Santos are also in charge in opening accounts in Metro Manila, particularly Citibank, Greenhills. Basilio Tan, he is stationary in the office. Jaime Tan and Rolando San Pedro are the ones in charge in withdrawals at the Citibank.[77] However, the liability of each of the petitioners must be considered within the purview of the following pronouncement in the celebrated case of People vs. Berroya[78] where the Court said that: x x x to hold an accused liable as co-principal by reason of conspiracy, he must be shown to have performed an overt act in pursuance or furtherance of the conspiracy. That overt act may consist of active participation in the actual commission of the crime itself, or it may consist of moral assistance to his co-conspirators by being present at the time of the commission of the crime, or by exerting moral ascendancy over the other co-conspirators by moving them to execute or implement the conspiracy. Hence, the mere presence of an accused at the discussion of a conspiracy, even approval of it without any active participation in the same, is not enough for purposes of conviction. Thus, assuming Vienes was a participant in the planning to abduct a Taiwanese national, in the absence of eyewitnesses to the actual abduction, there is a paucity of evidence as to whether or not Vienes carried out his part of the plan. (emphasis supplied) In these cases, even if Valentinos supplementary sworn statement stating that petitioner Fajardo participated in the discussion of the scheme to milk money from a bank should be given evidentiary weight, still, that evidence is not enough to convict him. There is

no evidence showing that he participated in opening a bank account in the procedure to alter the clearing manifests and statements, or in the withdrawal of substantial amounts resulting from such alteration of documents. There is thus insufficient evidence against petitioner Fajardo to find him culpable for the crimes charged in these cases and hence, he should be acquitted. Similarly situated as petitioner Fajardo, is petitioner Santos. His admission to having attended several meetings of Salamancas group did not satisfactorily define his liability as a conspirator considering the absence of any proof that he committed an overt act in pursuance of the syndicates scheme. His pretext of having entered into a car sale with Salamanca may ring hollow in truth but the weakness of his defense cannot be taken against him considering the insufficiency of prosecution evidence on his participation in the actual commission of the crime. His acquittal is, therefore, likewise in order. With respect to petitioner Estacio, Valentinos testimony on the first syndicate operation on October 16, 1981 should be counted in his favor. There is insufficient evidence that he participated in the alteration of documents at the Central Bank Clearing Office on October 19, 1981 much more in the prior discussion to perpetrate the crime. Hence, his acquittal in Criminal Case No. 5949 should follow. However, as regards the syndicate operations on October 30, 1981 and November 20, 1981, there is proof beyond reasonable doubt of his role in carrying the demand envelopes to the Central Banks fourth floor comfort room where alterations were made. By the nature of his work, he had access to these demand envelopes containing BPI checks. His participation in the conspiracy was therefore vital to the realization of the syndicates objectives. Parenthetically, the Court notes with dismay the Sandiganbayans pronouncement that petitioner Estacios wishy-washy attitude in offering himself as a state witness confirmed his knowledge of the intimate details of the conspiracy and the mode or manner by which its operations and schemes would be initiated and consummated.[79] Such conclusion is in consonance with the presumption of guilt, not with that of innocence. An accused may have some reasons for his irresolute action as far as testifying for the prosecution is concerned. Petitioner Estacio had such reason he feared for the safety of his family considering that he would be up against a syndicate that, because of the success of its evil scheme, had the money to harm their perceived enemies. That petitioner Estacio was deeply enmeshed in the syndicates activities to bleed money from banks is shown by the fact that in Crim. Case No. 6603 involving the syndicates operation in the Solidbank, his conviction for the crime of estafa thru falsification of public/commercial documents was affirmed by this Court in G.R. No. 75362.[80] But such conviction for another crime must not be the basis for a conclusion that the accused is guilty of another crime charged, although basically, the same criminal acts were committed. We therefore find the Sandiganbayans pronouncement totally unexpected of a court that must determine the culpability of an accused based on the prosecution evidence and not on the weakness of the defense or the reputation of an accused. Petitioner Desiderio, on the other hand, has been proven guilty beyond reasonable doubt for having participated both in the discussion and mapping out of the malevolent scheme and in its actual execution. Desiderios knowledge of banking procedures provided the rationale for his giving birth, or having authored the scheme along with Salamanca and Villasanta.[81] He had served as branch manager in the BPI where he was employed for twenty-seven years, or until he was charged with estafa for accommodating a clients loan against an uncollected deposit.[82]Nieves Garrido, a personal banker at Citibank-Greenhills, who entertained him when he made queries about opening a current account, confirmed his having opened said account for Magna Management Consultant, thereby lending credence to and corroborating Valentinos testimony on his role in the implementation of the criminal scheme. Petitioner Desiderios claim that he opened that account in accordance with his legitimate role as consultant in Mardes Management Consultant is a lame excuse. Anyone, especially a businessman such as San Pedro or Salamanca, could have opened a current account without hiring the services of a management consultant. That lame excuse sounds even lamer considering the evidence showing that his alleged client was also engaged in management consultancy. Desiderio thus relied on denial as a mode of defense. A denial,

like other defenses, remains subject to the strength of the prosecution evidence which is independently assessed. When the evidence for the prosecution convincingly connects the crime and the culprit, the probative value of the denial is negligible.[83] Desiderios denial of complicity in the scheme cannot, therefore, prevail over the positive testimonies of Nieves Garrido and Valentino that he played the important role of opening the current account that paved the way to the inside jobs of petitioner Estacio, Valentino and, probably, Villasanta. His sole overt act under the syndicates scheme facilitated the commission of all three counts of estafa thru falsification of public documents. Notably, in these cases, the Sandiganbayan observed that none of the accused refuted the documentary exhibits offered in evidence by the prosecution.[84] The pieces of documentary evidence consist of bank records including deposit slips, ledger cards, specimen cards, checks for deposit and withdrawal, clearing statements and clearing manifests. All of these clearly and positively buttress the prosecutions theory as to how the pilferage scheme was successfully implemented. The defense obviously could not demolish the evidentiary weight of the prosecutions documentary evidence and hence, it focused on the prosecution evidence on the membership of the accused in the syndicate, and on the probative value of the interlocking confessions of Valentino and petitioner Estacio. There is thus no alternative to giving full credence and merit to the prosecutions documentary evidence, and to declaring them to be in complete accord with the prosecution theory on the commission of the offenses and the nature and extent of participation of the accused. The informations filed in these cases individually charge an offense defined and penalized under Article 315, par. 2 (a) in relation to Article 171, par. 2 of the Revised Penal Code. The elements of estafa are as follows: (1) the accused defrauded another by abuse of confidence, or by means of deceit; and (2) the offended party or a third party suffered damage or prejudice capable of pecuniary estimation.[85] It is indubitable that estafa was committed by abuse of confidence in these cases. The conspirators that enlisted and utilized the assistance of Central Bank employees abused the confidence that the banking system reposed upon such employees. As a result of such abuse of confidence, the BPI sustained damage in the aggregate of Nine Million Pesos (P9,000,000.00). Verily, the perpetrators of the crimes breached even the confidence that people reposed on the Central Bank and the whole banking system. By falsifying clearing documents, the offenders committed the complex crime of estafa thru falsification of public documents. Under Article 171 (4) of the Revised Penal Code, any public officer or employee who, taking advantage of his official position, makes untruthful statements in a narration of facts, commits the crime of falsification of public documents. This kind of falsification requires the concurrence of the following requisites: (a) the offender makes in a document untruthful statements in a narration of facts; (b) he has a legal obligation to disclose the truth of the facts narrated by him; and (c) the facts narrated by the offender are absolutely false.[86] The prosecution has duly proven these requisites. Valentino occupies a public position as bookkeeper at the Clearing Office of the Central Bank. He intercepted and pilfered BPILaoag checks with the assistance of petitioner Estacio, a janitor-messenger at the Central Bank. In the comfort room, Valentino and/or Villasanta, who has so far avoided the clutches of the law, tampered with the clearing statements and clearing manifests which Estacio had taken from Valentinos desk. The tampered documents, along with the pilfered demand envelopes, were then sent to the Central Bank Regional Clearing Center in Laoag. These inside jobs were perpetrated as part of the decadent scheme that private individuals had hatched to gain monetary gratification. Article 315, paragraph 2 (a) under which the defendants were charged in these cases, states that any person who shall defraud another by means of using fictitious name, or falsely pretending to possess power, influence, qualifications, property, credit, agency, business or imaginary transactions, or by means of other similar deceits shall be held liable for the crime of swindling (estafa). Under the peculiar circumstances proven in these cases, the crime actually committed by the offenders is that defined in Article 318 of the Revised Penal Code on other deceits. The first paragraph of this article states that (t)he penalty of arresto mayor and a fine of not less than the amount of the damage caused and not more

than twice such amount shall be imposed upon any person who shall defraud or damage another by any other deceit not mentioned in the preceding articles of this chapter. Although the information charged the accused with violation of paragraph 2 of Article 171 of the Revised Penal Code defining the crime of falsification by public officer of employee, the Sandiganbayan correctly found that the accused violated paragraph 4 of the same Article which states as follows: The penalty of prision mayor and a fine not to exceed P5,000 pesos shall be imposed upon any public officer, employee, or notary who, taking advantage of his official position, shall falsify a document by committing any of the following acts: xxx xxx xxx

4. Making untruthful statements in a narration of facts. Inasmuch as the crime committed in these cases is the complex crime of estafa thru falsification of public documents and Article 48 of the Revised Penal Code states that when an offense is a necessary means for committing another offense, the penalty for the most serious crime shall be imposed in its maximum period, the penalty for the crimes committed in these cases is that imposed for falsification of public documents or prision mayor in its maximum period and a fine of P5,000.00. While it appears that the Sandiganbayan correctly held that the basis for imposition of penalty should be that imposed by law for falsification of public documents, it erred in imposing the maximum penalty of the indeterminate sentence it meted upon the accused. Finding no modifying circumstances, the Sandiganbayan imposed for each complex crime of estafa thru falsification of public document, the indeterminate penalty of four (4) years, two (2) months and one (1) day of prision correccional to ten (10) years and one (1) day of prision mayor. Under the procedural guidelines for imposing penalties for complex crimes enunciated in Nizurtado vs. Sandiganbayan,[87] the first step in determining the proper penalty is to consider whether or not aggravating and/or mitigating circumstances attended the commission of the crimes. Only petitioner Estacio claimed that he voluntarily surrendered. For said mitigating circumstance to be appreciated, surrender must be made spontaneously or in such a manner that it shows the intent of the accused to surrender unconditionally to the authorities, either because he acknowledges his guilt, or because he wishes to save them the trouble and expense of finding and capturing him.[88] According to NBI Agent Ranin, petitioner Estacio went to the NBI bearing a referral note from Atty. Agapito Fajardo, Chief of Anti-Fraud Unit of the Central Bank.[89]However, it was proven by the prosecution beyond peradventure of doubt that petitioner Estacios alleged surrender was anything but spontaneous. He went to the NBI on February 17, 1982,[90] five days after Atty. Fajardo had brought Valentino to that office for questioning, and a day after a Presidential Commitment Order (PCO) had been issued against him and Valentino.[91] Moreover, the booking sheet and arrest report states that petitioner Estacio was arrested on February 16, 1982.[92] Voluntary surrender having been insufficiently proven, as far as penalty is concerned, petitioner Estacio in Crim. Cases Nos. 5950-51 shall suffer the same penalty as petitioner Desiderio who did not present proof that could mitigate the penalty that he should suffer for the crimes. Article 64 of the Revised Penal Code states that when the penalty prescribed by law is a single divisible penalty, the accused shall be imposed the medium period of such penalty when there are neither aggravating nor mitigating circumstances. The propriety of imposing the medium period of the more serious penalty for a complex crime after considering the modifying circumstances notwithstanding that Article 48 requires the imposition of the penalty in its maximum period has been settled.[93] It is supported by the doctrine that penal provisions shall be interpreted in favor of the accused.

The medium period of prision mayor is eight (8) years and one (1) day to ten (10) years. In the absence of impediments to the application of the Indeterminate Sentence Law, for each crime committed, the penalty that should be imposed upon petitioner Estacio in Crim. Case Nos. 5950 and 5951, and upon petitioner Desiderio in Crim. Case Nos. 5949, 5950 and 5951, shall be the indeterminate sentence comprising of the minimum penalty within the range of prision correccional, to the maximum penalty of prision mayor medium plus a fine of P5,000.00. It will be observed that the maximum penalty erroneously imposed by the Sandiganbayan is ten (10) years and one (1) day which is already within the period of prision mayor maximum. WHEREFORE, IN VIEW OF THE FOREGOING, petitioner Rolando Santos y Ramirez in G.R. Nos. 71523-25, petitioner Alfredo R. Fajardo, Jr. in G.R. No. 72384-86 and petitioner Jesus E. Estacio in G.R. No. 72420-22 with respect to Criminal Case No. 5949 are hereby ACQUITTED of the crimes charged for lack of proof beyond reasonable doubt. The Decision of the Sandiganbayan as far as petitioner Marcelo S. Desiderio in G. R. No. 72387-89 and petitioner Jesus E. Estacio, with respect to Criminal Case Nos. 5950 and 5951 are concerned, is herby AFFIRMED subject to the modification that, for each crime, they shall suffer the indeterminate sentence of four (4) years, two (2) months, and one (1) day of prision correccional maximum to ten (10) years of prision mayor medium. SO ORDERED.

The prosecution presented four witnesses: Wilfredo Tapian, a carpenter; Demosthenes Peralta, the barangay captain of Tiguian, Margosatubig, Zamboanga del Sur; SPO3 Jesus Reales of the Philippine National Police (PNP); and Teresita Dano, widow of the victim. The prosecutions evidence established the following: On March 16, 1994, at around half past six oclock in the evening, prosecution witness Wilfredo Tapian was resting in the house of a Neneng Miras in Tiguian, Margosatubig, when Teresita Dano arrived and asked for his help. Teresita told Wilfredo that her husband, Emeterio, attacked his brother Alberto, herein appellant, in the latters house.[2] Wilfredo immediately rushed to appellants house, which was some one hundred meters away. On arriving at appellants house, Wilfredo saw the victim pacing back and forth in appellants front yard. The victim, armed with a scythe was shouting at appellant, who was looking out of the window, to come down so they could fight to the death. (Kanaog diri kay magkamatay ta.)[3]Wilfredo tried to pacify the victim who kept repeating his challenge while striking his scythe on the ground, but to no avail.[4] Appellant also advised his younger brother to go home, but the latter refused to listen. Suddenly, Emeterio leaped at appellant who was standing with his head out of the window and slashed appellant with his scythe but missed. [5] Seeing that his efforts to stop the fraternal quarrel were of no use and fearful of being hit in the affray, Wilfredo left for home. Between the hours of six and seven oclock that same evening, Demosthenes Peralta, the barangay captain of Tiguian, was informed by Wilfredo and a certain Fernando Teves that the Dano brothers were quarreling.[6] Demosthenes went to appellants home to investigate. On his way, he met appellant. The latter told Peralta he had killed Emeterio and voluntarily surrendered to him.[7] Demosthenes left appellant in Wilfredos house and proceeded to appellants residence where he saw the bloody corpse of the victim sprawled in the yard, near the stairs.[8]He noticed that the body bore several hacking and slashing wounds.[9] Demosthenes fetched appellant from Wilfredos house and took him to the police station. Early in the morning of the next day, Demosthenes fetched a doctor from the town proper of Margosatubig. The latter examined the victims body, still lying in appellants yard. At the request of the police station commander, Demosthenes took photos of the corpse, which he later turned over to the police. [10] He conducted a further examination of the crime scene and found a bloodstained scythe beneath appellants house.[11] The scythes wooden handle had the name Alberto Dano carved on it. He turned over the scythe to the police. The necropsy report established that the cause of death was acute blood loss, secondary to multiple hacking wounds.[12] When interrogated by the police, appellant, without assistance of counsel, admitted he killed his brother. The pertinent portion of his statement, contained in the police blotter, and read into the records without objection by the defense, reads: [S]ubject admitted of (sic) killing his younger brother as the latter was drunk and provoked him for (sic) a scythe duel right downstair(s) of his house that prompted him to get his scythe and come down from his house and allegedly boxed first his brother and subsequently hacked several times as he was already commanded by his evil thought(s).[13] The victims widow admitted that the scythe, which her late husband carried on that fateful day, was returned to her by some people in their barangay. [14] She did not turn over the scythe to the police.[15] The defense presented appellant and his spouse as its witness. Appellant claimed that he acted in self-defense and in defense of his family. He narrated that he and his family were preparing to go to bed at around 6:30 p.m. March 16, 1994, when he heard somebody shout Boy, come down and we will fight to death. (Boy kanang diha kay magpatay ta)[16] At first, he tried to ignore the challenge, but when it was repeated

[G.R. No. 117690. September 1, 2000]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ALBERTO DANO y JUGILON, accused-appellant. DECISION QUISUMBING, J.: On appeal is the decision of the Regional Trial Court of San Miguel, Zamboanga del Sur, Branch 29, in Criminal Case No. 1579, promulgated on July 25, 1994, finding appellant Alberto Dano y Jugilon guilty beyond reasonable doubt of murder, for the death of his brother Emeterio Dano, and imposing upon him the penalty of reclusion perpetua. The facts of this case are gleaned from the records. On April 11, 1994, the Provincial Prosecutor of Zamboanga del Sur charged appellant with the crime of murder, as follows: That on or about March 16, 1994 at around 6:30 oclock in the evening, more or less, at Tiguian, Margosatubig, Zamboanga del Sur, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with treachery and evident premeditation, did, then and there, wilfully, unlawfully and feloniously, assault, attack, hack and stab his brother Emeterio Dano inflicting several mortal wounds causing his instantaneous death. Contrary to law with qualifying aggravating circumstances of evident premeditation and treachery.[1] On May 3, 1994, appellant was arraigned and with the assistance of counsel de parte, pleaded not guilty to the charge. Trial on the merits then ensued.

several times, he looked out the window and saw his brother Emeterio outside, armed with a scythe. He told his brother to go home but the latter, who appeared disturbed, did not heed his words. Instead, he kept on hitting the ground with the scythe. [17] Without any provocation on his part, Emeterio suddenly leaped at him and attacked him with the scythe, which he evaded.[18] Emeterio then ascended the stairs to push open the bamboo door on the porch leading to their living room.[19] The door partially opened after Emeterio slammed it several times. Appellants wife and children screamed and cried in fear.[20] Appellant held and twisted his brothers wrist to disarm him of the scythe.[21] They grappled for the scythe while in the porch, then tumbled down the stairs.[22] When they hit the ground, the victim was dead. Appellant did not know how many times he hit his brother or how many wounds he inflicted.[23] He said he was not in a normal state of mind. Seeing that he had killed his brother, appellant threw the scythe under his house and went to the barangay captain to surrender. His spouse largely corroborated appellants version of the first round of the fratricidal affray.[24] She claimed, however, that she did not see how the victim was killed as they were inside the house and she, as well as her children, had their eyes closed in shock and fear.[25] Appellant denied owning the scythe found by the barangay captain beneath his house. He did not know why his name was engraved on the wooden handle of said scythe.[27] He was sure, however, that it was the same scythe that his brother was carrying during the incident.[28]
[26]

THE LOWER COURT ERRED IN RELYING TOO MUCH CREDENCE (sic) TO THE TESTIMONY OF TERESITA DANO WHO DECLARED THAT THE SCYTHE (EXHIBIT D FOR THE DEFENSE ON ONE HAND, WHILE EXHIBIT 4 FOR THE PROSECUTION) WAS OWNED BY THE ACCUSED AND NOT THAT OF THE VICTIM. Simply stated, the pertinent issues for our consideration are: (1) Did the trial court err in admitting the extrajudicial confession of the accused? (2) Did the court a quo err in failing to appreciate appellants defense of self-defense and/or defense of relatives, or at the least incomplete selfdefense and/or defense of relatives? (3) Did it err in convicting appellant of murder qualified by treachery and imposing the penalty therefor? On the first issue, appellant avers that it was error for the trial court to give weight to the admissions made by appellant during custodial investigation (Exhibit E). Appellant contends that his constitutional and statutory right to counsel during custodial investigation was violated when the police took his statements without a lawyer to assist him. He further argues that the trial court should have declared his statements before the police inadmissible when they were objected to during the trial. A person under investigation for the commission of an offense is guaranteed the following rights by the Constitution: (1) the right to remain silent; (2) the right to have competent and independent counsel of his own choice, and to be provided one if he cannot afford the services of counsel; and (3) the right to be informed of these rights. [31] These rights cannot be waived except in writing and in the presence of counsel.[32]A confession to be admissible must satisfy the following requirements: (1) the confession must be voluntary; (2) the confession must be made with the assistance of competent and independent counsel; (3) the confession must be express; and (4) the confession must be in writing. [33] In convicting the accused of the offense charged, the trial court held: Accuseds testimony on the witness stand however, contradicts his version appearing on the police blotter of the police station of Margosatubig dated March 16, 1994, where he admitted the killing of his younger brother Emeterio Dano as the latter was drunk and provoked him for (sic) a scythe duel right downstairs of his house that prompted him to get his scythe and come down from his house and allegedly boxed first his brother and subsequently hacked several times as he was already commanded by evil thoughts. During the formal offer of evidence by the prosecution, defense counsel admitted the authenticity of the extract of above entry in the police blotter (Exhibit B, prosecution) containing the foregoing recital as testified to by SPO4 Jesus Reales. Such entry in the police blotter when not objected to, is presumed to have been accomplished in the regular performance of official duties by the police officer who made the entry, hence is entitled to full faith and credit. It having been entered at the time when the accused had just surrendered to the authorities in a remorseful attitude and in a spontaneous manner free of any extraneous influence and coaching of a lawyer, the same entry carries great weight and high probative value, in the absence of any proof of tampering or alteration thereof. This Court therefore considers the recital in said entry more credible and easy to believe, than the self-serving version of the accused given on the witness stand which is more a product of an afterthought and concocted story than an honest and truthful version of what actually happened.[34] We have carefully scrutinized the records including the List of Exhibits for the Prosecution[35] and the prosecutions offer of evidence[36] and nowhere find mention of Exhibit E. What we find offered by the prosecution as evidence is the testimony of SPO3 Jesus Reales on the authenticity of the entries on the police blotter.[37] The blotter recorded the incident immediately after the crime and another entry in the morning, recorded what was observed on the scene of the crime including a description of the prostrate body of the accused.[38] We also noted in the records that the defense objected to the admission of the

Appellant explained that he had a previous misunderstanding with the victim over the purchase of a horse from his cousin Doroteo Oliver on installment basis. Emeterio wanted to buy the horse, but appellant bought it ahead of him, which caused the former to resent him.[29] The court below disbelieved appellants version of the incident and decided as follows: WHEREFORE, judgment is hereby rendered finding the accused Alberto Dano y Jugilon guilty beyond reasonable doubt of the crime of Murder, qualified by treachery, defined and penalized under Article 248 of the Revised Penal Code, and there being no proof of any modifying circumstances either to aggravate or mitigate the liability, hereby sentences said accused to suffer the penalty of reclusion perpetua; to pay the heirs of the deceased the sum of P50,000.00 by way of indemnity for the death of said victim; P3,000.00 as actual damages, compensatory damages of P2,000.00 by way of unrealized earnings and to pay the costs. SO ORDERED.[30] On August 2, 1994, appellant seasonably filed his notice of appeal. He assigns the following errors: I THE LOWER COURT ERRED IN MAKING A SWEEPING CONCLUSION THAT TREACHERY EXISTS IN THE CASE AT BAR. II THE LOWER COURT ERRED IN DISREGARDING, IF NOT TOTALLY IGNORING, THE ACCUSEDS CLAIM OF SELF-DEFENSE AND/OR DEFENSE OF RELATIVES, OR AT LEAST INCOMPLETE SELF-DEFENSE AND/OR DEFENSE OF RELATIVES. III THE LOWER COURT ERRED WHEN IT SAID THAT EXHIBIT E OF THE PROSECUTION WAS NOT OBJECTED TO BY THE DEFENSE. IV

testimony of SPO3 Reales because said witness is incompetent to testify as to the entry having admittedthat he was not one who entered that (sic) events in the police blotter andthat he has no knowledge when the entries in the police blotter were made.[39] Moreover, we noted that SPO3 Reales admitted that as an assistant investigator, he was familiar with investigation procedures.[40] Under cross-examination, he also admitted appellant was interrogated by the police regarding the incident,[41] but there was no showing whatsoever appellant was assisted by counsel during custodial investigation.[42] Considering the foregoing circumstances, we find merit in appellants claim that his constitutional rights were violated. First, the trial court erred when it relied on the supposed extrajudicial confession of appellant in the police blotter. Extrajudicial confessions must conform to the requirements of the Constitution.[43] A suspects confession, whether verbal or non-verbal, when taken without the assistance of counsel without a valid waiver of such assistance regardless of the absence of coercion or the fact that it had been voluntarily given, [44] is inadmissible in evidence,[45] even if appellants confession were gospel truth. We also find the courts reliance on the presumption that official duty has been regularly performed[46] misplaced. This presumption cannot by itself prevail over positive averments concerning violations of the constitutional rights of an accused.[47] It was also error for the trial court to have considered and relied on the questioned entry in the police blotter, given the failure of the prosecution to offer it in evidence. Evidence which has not been formally offered cannot be considered by courts.[48] There is valid reason, therefore, to strike down the lower courts reliance on the assailed police blotter entry in convicting appellant. All these, however, do not suffice to acquit appellant of the offense charged. Appellant admitted killing the victim before the barangay captain, who is neither a police officer nor a law enforcement agent. Such admission, even if done without the assistance of a lawyer, is not in violation of appellants constitutional rights.[49] The constitutional requirements on custodial investigation do not apply to spontaneous statements made in a voluntary manner whereby appellant orally admitted authorship of the crime.[50] What the Constitution proscribes is the compulsory or coercive disclosure of incriminating facts. On the second issue, appellant pleads self-defense and/or defense of relatives. When an accused invokes self-defense, the onus probandito show that the killing was justified shifts to him.[51] Even if the prosecution evidence were weak, it could not be readily dismissed after the accused had openly admitted his responsibility for the killing. Self-defense, like alibi, is inherently a weak defense, which can easily be concocted.[52] For self-defense to prosper, appellant must prove by clear and convincing evidence the following elements: (1) unlawful aggression on the part of the victim; (2) reasonable necessity of the means employed to prevent or repel it; and (3) lack of sufficient provocation on the part of the person defending himself.[53] In order that defense of a relative may be appreciated, the following requisites must concur: (1) unlawful aggression by the victim; (2) reasonable necessity of the means employed to prevent or repel it; and (3) in case the provocation was given by the person attacked, that the person making the defense took no part therein.[54] Appellant faults the trial court when it concluded that unlawful aggression was absent at the time of the killing. He insists that the killing of and the attack by the victim were nearly simultaneous, without appreciable interval of time. Assuming that the number of wounds sustained by the deceased negated self-defense and/or defense of relative, according to appellant, the trial court erred in not appreciating incomplete self-defense, given the fact that the other elements of the justifying circumstances involved were present, namely, unlawful aggression on the part of the victim and lack of sufficient provocation on appellants part. The Solicitor General counters that appellants defenses cannot be appreciated since the victim was already unarmed when killed. There was no more danger to the life and limb of appellant or to the members of his family. Unlawful aggression was absent at the time of the killing. Furthermore, the appellant was unscathed in the tumult, while he was able to inflict

twelve (12) hacking wounds on the victim. This fact belies appellants theory and reveal an intent to kill the victim. Inasmuch as appellant failed to prove there was no unlawful aggression, there cannot be any self-defense, complete or incomplete, according to the Solicitor General. For self-defense or defense of a relative, whether complete or incomplete, to be appreciated, the element of unlawful aggression is indispensable.[55] If there is no unlawful aggression, there is nothing to prevent or repel.[56] For unlawful aggression to be appreciated, there must be a positively strong act of real aggression, and not merely a threat or an intimidating stance. Thus, the accused who claims self-defense or defense of relative must positively establish that there was an actual, sudden, and unexpected attack or imminent danger thereof, on the part of the victim. In the instant case, the trial court found: Despite the long scuffle over the possession of the scythe with his deceased brother which started from the porch of their house up to the ground near the stairway, accused has (sic) never sustained a single wound on his body, not even a scratch or a bruise. In contrast, the deceased sustained twelve (12) multiple hacking wounds all over his bodyHe admitted that from the time he gained control and possession of the scythe from his brother, the deceased was already armless (sic) and there was no more danger to himself coming from his brother.[57] The question of whether appellant acted in self-defense is essentially a question of fact. In the instant case, the trial court found that appellant was able to disarm the victim before the killing. It was also established that, despite appellants assertion that he engaged in a life or death struggle for the possession of the weapon during which the combatants fell from the porch to ground, he incredibly sustained nary a scratch or injury. By contrast, the victim suffered twelve (12) ghastly wounds, some of which were at his back. In view of these findings, the evidence for the defense cannot be characterized as clear and convincing. The deceased and appellant were allegedly wrestling all over the crime scene for possession of the weapon, yet the victim sustained wounds in the back. The number, location, and gravity of the wounds that the victim sustained do not support the claim of unlawful aggression on his part at the time he was killed. If appellant were merely defending himself, he did not have to hack the deceased a dozen times. Moreover, appellants inability to explain why he came out of the fierce struggle unscathed seriously and hopelessly damages his credibility. Thus, in the absence of any showing that the factual findings were reached arbitrarily or without sufficient basis, appellate courts accord the highest respect and even finality to findings of fact by trial courts.[59]
[58]

We share the view that appellant was able to disarm his assailant before the latter was killed. Then there was no longer any real peril to the life or safety of the appellant or his family when the victim lost his weapon. When unlawful aggression which has begun earlier no longer exists, the one making the defense has no right to kill or even wound the former aggressor.[60] To successfully invoke self-defense and defense of relative, appellant must prove by evidence most satisfactory, the concurrence of all the elements of self-defense and/or defense of a relative, the most important of which is unlawful aggression on the victims part. Absent unlawful aggression, there can be no self-defense or defense of a relative, complete or incomplete, and conviction of appellant must follow.[61] On the third issue. Appellant submits the qualifying element of treachery is absent in the instant case. He relies on People v. Butler, 120 SCRA 281(1983) where we held that treachery is not present where accused and victim grappled with each other and People v. Maguddatu,124 SCRA 594 (1983), where we ruled that treachery cannot be appreciated where the killing was made on the spur of the moment. To this the Solicitor General agrees. The Solicitor General points out that treachery cannot be appreciated because the evidence on the record is bereft of any showing of the precise manner in which the killing was done. He cites People v. Timple, 237 SCRA 52 (1994). Relying onPeople v. Cedenio, 233 SCRA 356 (1994), he argues that treachery cannot be presumed but must be proved by evidence as convincing and conclusive as the

killing itself. Thus, he concludes that appellant should only be convicted of the crime of homicide. Treachery occurs when the accused employs means, methods, or forms in the execution thereof without risk to himself arising from the defense which the offended party might make.[62] There is treachery where the accuseds attack was so sudden and launched from behind that the victim was caught off guard without an opportunity to defend himself.[63] The trial courts findings with respect to the presence of treachery cannot be sustained. For treachery to be appreciated, the following must be proven: (1) the employment of means of execution which give the person assaulted no opportunity to defend himself or retaliate; and (2) the deliberate or conscious adoption of such means adopted by the assailant.[64] In this case, there was no showing whatsoever by the prosecution that appellant deliberately adopted the means of attack used to kill the victim. Note that it has been established that there was, initially, unlawful aggression on the part of the deceased. Appellant in defending himself from the deadly assault was able to grab the weapon of the victim, disarm him, and kill him. The circumstances of the assault show that appellant did not have the luxury of time to deliberate and contemplate the manner or method of killing the victim. Moreover, the deceased had deliberately provoked and attacked appellant. For treachery to be appreciated there must not be even the slightest provocation on the part of the victim.[65] Absent the qualifying circumstance of treachery, the offense committed is not murder but only homicide under Article 249 of the Revised Penal Code.[66] Lastly, we find that the trial court failed to appreciate two mitigating circumstances in appellants favor, namely: (1) that sufficient provocation or threat on the part of the offended party immediately preceded the killing, and (2) that appellant voluntarily surrendered himself to a person in authority or his agents. The record is categorical that appellant surrendered to the barangay captain of Tiguian after the incident. A barangay leader is a person in authority.
[67]

YIELDING to man's brutish instinct for revenge, Edward Endino, with the aid of Gerry Galgarin alias Toto, slew Dennis Aquino in the presence of a lady whose love they once shared.1wphi1.nt On a busy street in Puerto Princesa City in the evening of 16 October 1991, an emboldened Gerry Galgarin, uncle of accused Edward Endino, suddenly and without warning lunged at Dennis and stabbed him repeatedly on the chest. Dennis' girlfriend Clara Agagas who was with him, stunned by the unexpected attack, pleaded to Galgarin to stop. Dennis struggled and succeeded momentarily to free himself from his attacker. Dennis dashed towards the nearby Midtown Sales but his escape was foiled when from out of nowhere Edward Endino appeared and fired at Dennis. As Dennis staggered for safety, the two (2) assailants fled in the direction of the airport. Meanwhile, Dennis, wounded and bleeding, sought refuge inside the Elohim Store where he collapsed on the floor. He was grasping for breath and near death. Clara with the help of some onlookers took him to the hospital but Dennis expired even before he could receive medical attention. According to the autopsy report of Dr. Josephine Goh-Cruz, cause of death was "cardio-respiratory arrest secondary to hypovolemic shock secondary to a stab wound which penetrated the heart."1 On 18 October 1991, an Information for the murder of Dennis Aquino was filed against Edward Endino and accused-appellant Gerry Galgarin and warrants were issued for their arrest. However, as both accused remained at large, the trial court issued on 26 December 1991 an order putting the case in the archives without prejudice to its reinstatement upon their apprehension. On 19 November 1992, Gerry Galgarin was arrested through the combined efforts of the Antipolo and Palawan police forces at a house in Sitio Sto. Nio, Antipolo, Rizal. He was immediately taken into temporary custody by the Antipolo Police. Early in the evening of the following day, he was fetched from the Antipolo Police Station by PO3 Gaudencio Manlavi and PO3 Edwin Magbanua of the Palawan police force to be taken to Palawan and be tried accordingly. On their way to the airport, they stopped at the ABS-CBN television station where accused Galgarin was interviewed by reporters. Video footages of the interview were taken showing Galgarin admitting his guilt while pointing to his nephew Edward Endino as the gunman. According to Galgarin, after attacking Aquino, they left for Roxas, Palawan, where his sister Langging who is Edward's mother, was waiting. Langging gave them money for their fare for Manila. They took the boat for Batangas, where they stayed for a few days, and proceeded to Manila where they separated, with him heading for Antipolo. Galgarin appealed for Edward to give himself up to the authorities. His interview was shown over the ABS-CBN evening news program TV Patrol. The case against accused-appellant Gerry Galgarin was established through the testimony of Clara Agagas who said that she was with the victim Dennis Aquino standing outside the Soundlab Recording Studio, a barhouse owned by him, when Galgarin suddenly approached them and without any prior warning stabbed Dennis. Dennis tried to run away, but Edward, a spurned lover who harbored ill-feelings towards her and Dennis, shot Dennis. She recognized Edward and Gerry because the street was sufficiently lighted.2 The testimony of Clara Agagas was corroborated by Anita Leong, next-door neighbor of Dennis, who testified that a little past six o'clock in the evening of 16 October 1991 Gerry Galgarin together with a companion went to her house looking for Dennis. She instructed them to proceed to the Soundlab Recording Studio as Dennis might still be there. But a few minutes later she heard a Instinctively, she instructed her two (2) young daughters to duck for cover while she anxiously waited for her seven (7)-year old daughter Josephine who was out of the house for an errand for her. Soon enough she heard Josephine knocking at their door. She was crying because she said herKuya Dennis had been shot and stabbed.3

The penalty for homicide is reclusion temporal. Where there are two mitigating circumstances and no aggravating circumstances present, the court shall impose the penalty next lower to that prescribed by law in the period that it may deem applicable.[68] The penalty next lower isprision mayor. Applying the Indeterminate Sentence Law, the maximum penalty to be imposed shall be taken from the medium period of the imposable penalty which is prision mayor, while the minimum shall be taken from the penalty next lower in degree which is prision correcional in any of its periods. Prision mayor in its medium period is eight (8) years and one (1) day to ten (10) years. Prision correcional in its maximum period is four (4) years, two (2) months, and one (1) day to six (6) years. WHEREFORE, the decision appealed from is hereby MODIFIED. Appellant Alberto Dano y Jugilon is found GUILTY of the crime of HOMICIDE and consequently, sentenced to suffer an indeterminate prison term of four (4) years, two (2) months, and one (1) day of prision correcional as minimum to eight (8) years and twenty (20) days of prision mayor as maximum, and to pay the heirs of Emeterio Dano P50,000.00 as indemnity for his death and P3,000.00 for burial expenses. No pronouncement as to costs. SO ORDERED. G.R. No. 133026 PEOPLE February 20, 2001 OF THE PHILIPPINES, plaintiff-appellee, alias TOTO, accused.

vs. EDWARD ENDINO (at large) and GERRY GALGARIN GERRY GALGARIN alias TOTO, accused-appellant. BELLOSILLO, J.:

Josephine confirmed her mother's testimony and even said that she had seen Gerry Galgarin stab her KuyaDennis and she could remember Gerry very well because of the mole below his nose.4 For his part, accused-appellant Gerry Galgarin disclaimed having taking part in the slaying of Dennis. Gerry asserted that on 14 October 1991 he was in Antipolo to help his common-law wife Maria Marasigan give birth to their first born. He stayed with her until the 16th of October when she was discharged from the Pedragoza Maternity Clinic.5 Clarita Florentino Pedragoza, the midwife who delivered his son, supported the alibi of accused-appellant. However, she admitted that when she registered the child's birth on 13 December 1993 or more than two (2) years after the delivery, she informed the civil registrar that the child's father was "unknown."6 His story was also confirmed by Dolores Arciaga and Maria Tomenio, his co-workers at the Kainan sa Kubo Sing Along Restaurant, who testified that accused-appellant was fetched by a neighbor from the restaurant in the early afternoon of 14 October with the news that his wife was having labor pains.7 Accused-appellant disowned the confession which he made over TV Patrol and claimed that it was induced by the threats of the arresting police officers. He asserted that the videotaped confession was constitutionally infirmed and inadmissible under the exclusionary rule provided in Sec.12, Art. III, of the Constitution.8 The trial court however admitted the video footages on the strength of the testimony of the police officers that no force or compulsion was exerted on accused-appellant and upon a finding that his confession was made before a group of newsmen that could have dissipated any semblance of hostility towards him. The court gave credence to the arresting officers' assertion that it was even accused-appellant who pleaded with them that he be allowed to air his appeal on national television for Edward to surrender. The alibi of Galgarin was likewise rejected since there was no convincing evidence to support his allegation that he was not at the locus criminis on the evening of 16 October 1991. Accordingly, accused-appellant Gerry Galgarin was convicted of murder qualified by treachery9 and sentenced to reclusion perpetua. Additionally, he was ordered to indemnify the heirs of Dennis Aquino P50,000.00 as compensatory damages and P72,725.35 as actual damages. The case against his nephew and co-accused Edward Endino remained in the archives without prejudice to its reinstatement as soon as he could be arrested.10 In his Appellant's Brief, Gerry Galgarin assails the trial court for rejecting his alibi and admitting his videotaped confession as evidence against him. The argument that accused-appellant could not be at the scene of the crime on 16 October 1991 as he was in Antipolo assisting his wife who was giving birth on the 14th of that month, is not persuasive. Alibi is a weak defense. The testimony of Cornelio Tejero Jr.,11 Philippine Airlines Load Controller of the Puerto Princesa City, that the name of "Gerry Galgarin" did not appear on their passenger manifest for the 16 October 1991 Manila-Puerto Princesa flight, could not be relied upon inasmuch as he himself admitted that they could not be sure of their passengers' real identities. The testimonies of accused-appellant's coworkers that he was in Antipolo on 14 October 1991 did not fortify his defense either since these witnesses did not categorically state that they saw him in Antipolo in the evening of 16 October 1991. With accused-appellant having been positively identified by the prosecution witnesses as the one who stabbed Dennis, his bare denial proves futile and unavailing. Josephine Leong's identification of accused-appellant was given in a very categorical and spontaneous manner. Her confidence as to the attacker's identity was clearly shown by her vivid recollection of him having a mole below his nose, which is correct. Moreover, it is inconceivable for Josephine and Anita to implicate accused-appellant, a complete stranger to

them, if there was no truth to their assertion. As for Clara, her naming of accused-appellant as her boyfriend's assailant was not done out of spite, but was impelled by her desire to seek justice for Dennis. Corroborating further accused-appellant's guilt, probably with intense incriminating effect, were his immediate flight after the slaying, and his attempt at jailbreak12 revealing a guilty conscience, hence, his persistent effort to evade the clutches of the law. Apropos the court a quo's admission of accused-appellant's videotaped confession, we find such admission proper. The interview was recorded on video and it showed accusedappellant unburdening his guilt willingly, openly and publicly in the presence of newsmen. Such confession does not form part of custodial investigation as it was not given to police officers but to media men in an attempt to elicit sympathy and forgiveness from the public. Besides, if he had indeed been forced into confessing, he could have easily sought succor from the newsmen who, in all likelihood, would have been symphatetic with him. As the trial court stated in its Decision13 Furthermore, accused, in his TV interview (Exh. H), freely admitted that he had stabbed Dennis Aquino, and that Edward Endino had shot him (Aquino). There is no showing that the interview of accused was coerced or against his will. Hence, there is basis to accept the truth of his statements therein. We agree. However, because of the inherent danger in the use of television as a medium for admitting one's guilt, and the recurrence of this phenomenon in several cases, 14 it is prudent that trial courts are reminded that extreme caution must be taken in further admitting similar confessions. For in all probability, the police, with the connivance of unscrupulous media practitioners, may attempt to legitimize coerced extrajudicial confessions and place them beyond the exclusionary rule by having an accused admit an offense on television. Such a situation would be detrimental to the guaranteed rights of the accused and thus imperil our criminal justice system.1wphi1.nt We do not suggest that videotaped confessions given before media men by an accused with the knowledge of and in the presence of police officers are impermissible. Indeed, the line between proper and invalid police techniques and conduct is a difficult one to draw, particularly in cases such as this where it is essential to make sharp judgments in determining whether a confession was given under coercive physical or psychological atmosphere. A word of counsel then to lower courts: we should never presume that all media confessions described as voluntary have been freely given. This type of confession always remains suspect and therefore should be thoroughly examined and scrutinized. Detection of coerced confessions is admittedly a difficult and arduous task for the courts to make. It requires persistence and determination in separating polluted confessions from untainted ones. We have a sworn duty to be vigilant and protective of the rights guaranteed by the Constitution. With all the evidence tightly ringed around accused-appellant, the question that next presents itself is whether the trial court correctly denominated the crime as murder qualified by treachery. Doubtless, the crime committed is one of murder considering that the victim was stabbed while he was simply standing on the pavement with his girlfriend waiting for a ride, blissfully oblivious of the accused's criminal design. The suddenness of the assault on an unsuspecting victim, without the slightest provocation from him who had no opportunity to parry the attack, certainly qualifies the killing to murder.15 WHEREFORE, the Decision of the court a quo finding accused-appellant GERRY GALGARIN alias Toto guilty of Murder qualified by Treachery, sentencing him to reclusion perpetua, and ordering him to indemnify the heirs of Dennis Aquino in the

amount of P50,000.00 as compensatory damages and P72,725.35 as actual damages, isAFFIRMED with the MODIFICATION that accused-appellant is further ordered to compensate the decedent's heirs P50,000.00 as moral damages for their emotional and mental anguish. Costs against accused-appellant. SO ORDERED. G.R. No. 131864-65 September 27, 2001 PHILIPPINES, plaintiff-appellee, JOSE PRECIOSO, accused,

The police officers asked why they shot the victim, and accused- appellant answered that he shot the victim because the latter resisted his demand for money. He added that after shooting the driver, he panicked and immediately scampered away, leaving the money bills scattered on the floor of the taxicab.7 Dr. Tito Dormal, medico-legal officer of the PNP, Iloilo, conducted the autopsy on the deceased, Teodorico Parreo, Jr. He testified that the entrance wound was located above the right armpit. The bullet entered the chest cavity, perforated the right lung, and traveled thru the middle lobe of the left lung, where the slug was recovered. He inspected the slug and opined that the same must have been fired from a .38 caliber revolver.8 SPO3 Ely Superio, of the Firearms and Explosive Unit of Region VI, testified that accused-appellant did not appear on the record as one of those licensed to possess and carry firearms.9 The two accused, eighteen year-old Sherjohn Arondain and twenty- seven year-old Jose Precioso, interposed self-defense. Arondain testified that on the night of October 3, 1996, he and Jose Precioso were on board the Chin-chin taxicab driven by the deceased. He was seated in front; while Precioso was at the back seat. He claimed that the deceased overcharged them and asked for P80.00, when the usual fare was only P40.00. He insisted in paying only P40.00, which infuriated the deceased. When he extended his hand to tender the P40.00, the deceased slapped his hand, causing the money to fall on the floor of the cab. The deceased then immediately applied the brakes and blew his horn. Accused-appellant asked why he slapped his hand, and the deceased punched him on the left face. Accusedappellant tried to hit back, but the deceased allegedly drew a gun from his waist. Accusedappellant declared that he and his companion tried to wrestle the gun away from the deceased. In the ensuing affray, accused- appellant was able to take hold of the gun. He was so nervous that when the deceased tried to get back the gun, it went off and hit the latter. Frightened and shocked by the incident, accused-appellant and Precioso ran toward the field at the back of the Florete Compound, where they waited for the police officers to arrive so they can turn themselves in.10 On June 17, 1997, the trial court rendered the assailed decision, the dispositive portion of which reads: Accordingly, the Court, finding the accused, Sherjohn Arondain and Jose Precioso, guilty beyond reasonable doubt of the crime of Frustrated Robbery with Homicide as defined and punished under Article 297 of the Revised Penal Code, hereby sentences each of them to suffer the following penalties: a) Reclusion Perpetua with such accessories as provided in Article 41 of the Revised Penal Code; b) To jointly reimburse the family of the victim the amount of P50,000.00; c) To jointly reimburse the family of the victim P67,677.00 as expenses for his wake and burial; d) To jointly pay the victim's family the amount of P312,000.00 representing the loss of support which the family was deprived as a result of his death; and e) To jointly pay the wife of the victim the amount of P300,000.00 as moral damages and P50,000.00 as exemplary damages.

PEOPLE OF THE vs. SHERJOHN ARONDAIN and SHERJOHN ARONDAIN, accused-appellant. YNARES-SANTIAGO, J.:

Robo con homicido is a special complex crime against property. Absent clear and convincing evidence that the crime of robbery was perpetrated, and that, on occasion or by reason thereof, a homecide was committed, an accused cannot be found guilty of robbery with homicide, but only homicide, or murder, as the case may be. Before us on automatic review is the Joint Decision1 of the Regional Trial Court of Iloilo City, Branch 25, convicting and sentencing accused Sherjohn Arondain to death in Criminal Case No.47067 for Qualified Illegal Possession of Firearm; and convicting accused Sherjohn Arondain and Jose Precioso of Frustrated Robbery with Homicide and sentencing them to suffer the penalty of reclusion perpetua. At around 8:00 o'clock in the evening of October 3, 1996, police officers Buenoji1do Loja, Fidel Mosquito, Marcelino Melendes2 and Roberto Catubuan responded to a report of a hold-up incident near the Florete Compound, along Q. Abeto Street, Mandurriao, Iloilo City. The police officers found many people at the scene milling around a Chin-chin taxicab with its lights still on.3 Officer Melendes inspected the taxicab and found its driver, Teodorico Parreo, Jr., dead in the driver's seat. His foot was still on the accelerator, while his body was dangling on the open door of the cab, and his head was on the ground. Scattered on the floor of the cab and on the ground beneath the open door were money bills of different denominations totaling P1,040.00. The deceased's wallet containing a small amount of money was found beside him.4 Meanwhile, Officers Loja, Mosquito, and Catubuan were informed by John Gallo, a security guard of the Florete Compound, that after he heard a gunshot, he saw two male persons come out of the Chin-chin taxicab and run toward the field at the back of the Florete Compound. One of them came from the backseat of the taxicab while the other from the front seat, carrying a gun. They were later identified as Jose Precioso and accused-appellant Sherjohn Arondain.5 Acting on the lead, the police officers requested the security guard of the compound to illuminate the field. As soon as the search light was turned on, the policemen saw accusedappellant holding a gun. Officer Mosquito fired a warning shot and approached accusedappellant. He asked him where his companion was, and he pointed to Jose Precioso who was lying on his belly about 8 to 10 meters away. Found in accused-appellant's possession was a .38 caliber revolver without serial number, with 2 live bullets and an empty shell, which the policemen confiscated.6

The Court, likewise finding accused Sherjohn Arondain guilty beyond reasonable doubt of the crime of Illegal Possession of Firearm, hereby sentences him to suffer the penalty of death in accord with the first paragraph of Section 1 of PD 1866, as amended. SO ORDERED.11 Accused-appellant contends that: I THE TRIAL COURT ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT OF FRUSTRATED ROBBERY WITH HOMICIDE AS DEFINED AND PUNISHED UNDER ARTICLE 297 OF THE REVISED PENAL CODE. II THE TRIAL COURT ERRED IN APPRECIATING THE GENERIC AGGRAVATING CIRCUMSTANCE OF NIGHTTIME AGAINST THE ACCUSEDAPPELLANT. III THE TRIAL COURT ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF ILLEGAL POSSESSION OF FIREARM AND SENTENCING HIM TO SUFFER THE PENALTY OF DEATH. IV THE TRIAL COURT ERRED IN NOT FINDING THE ACCUSED- APPELLANT ONLY GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF HOMICIDE. V THE TRIAL COURT ERRED IN NOT APPRECIATING IN FAVOR OF THE ACCUSED-APPELLANT THE MITIGATING CIRCUMSTANCE OF VOLUNTARY SURRENDER.12 Accused-appelant does not deny authorship of the victim's death. He contends, however, that the killing of the victim was not on occasion or by reason of robbery, hence, he should not have been convicted for the complex crime of robbery with homecide, but only for homecide. To sustain a conviction for robbery with homecide, the prosecution has the onus probandi to establish the following elements: (a) the taking of personal property with the use of violence or intimidation against a person; (b) the property thus taken belongs to another; (c) the taking is characterized by intent to gain or animus lucrandi; and (d) on the occasion of the robbery or by reason thereof, the crime of homecide, which is therein used in a generic sense, was committed.13 In People v. Suza,14 we ruled that in order to sustain a conviction for robbery with homecide, it is necessary that the robbery itself be proven conclusively as any other essential

element of a crime. In order for the crime of robbery with homecide to exist, it is necessary that it be clearly established that a robbery has actually taken place, and that, as a consequence or on the occasion of such robbery, a homecide be committed. Where the evidence does not conclusively prove the robbery, the killing of the victim would, therefore, be classified either as a simple homecide or a murder, depending upon the absence or presence of any qualifying circumstance, and not the complex offense of robbery with homecide." In the case at bar, the trial court's conclusion that the killing of deceased was done on occasion or by reason of robbery was based on the following circumstances: 1) that the victim's wallet containing a small amount of money was found beside his dead body and no longer in his pocket; 2) the presence of money in paper bills of different denominations amounting to a total of P1,040.00 scattered on the floor of the front seats, and on the ground beneath the doors of the taxicab; 3) the statement of accused-appellant immediately after his arrest that he shot the victim because the latter refused his demand for money, which statement is allegedly admissible as part of theres gestae.15 Based on applicable jurisprudence, we find that the trial court erred in finding accusedappelant guilty of the complex crime of robbery with homecide. The confession made by the accused-appellant admitting the crime of frustrated robbery cannot be admitted as part of res gastae. It must be stressed that said statement, if it was at all made by accused-appellant, was obtained in violation of his constitutional rights. Said confession was given after he was arrested and without the assistance of counsel. He was not informed of his right to remain silent or right to counsel. From time he was arrested and deprived of his freedom, all the questions propounded on him by the police authorities for the purpose of eliciting admissions, confessions, or any information came within the ambit of a custodial investigation.16 As such, he was entitled to the rights enshrined under Article III, Section 12, of the Constitution. Failing to observe this constitutional mandate, the alleged confession of accused-appellant cannot be admitted as evidence against him. Absent accused-appellant's confession, only two pieces of circumstantial evidence remain to prove the crime of frustrated robbery, to with: 1) that the victim's wallet containing a small amount of money was found beside his dead body and no longer in his pocket; and 2) the scattered money in paper bills of different denominations amounting to a total of P1,040.00. A combination of these circumstances, however is not sufficient to establish intent to gain or animus lucrandi. That there was a struggle between the accused-appellant and the victim is not denied. Thus, the probability that the scattered money bills was caused by the scuffle between the two cannot be discounted. As to the cause thereof, the prosecution failed to substantiate their claim of an attemp tp unlawfully take the deceased's money. There was no proof that the victim's wallet which as found beside him was taken out from his pocket by accused-appellant. Prosecution witness John Ballo, who saw accused-appellant come out of the victim's taxi cab, never testified that the accused-appellant robbed the victim. His declaration was that accused-appellant went out of the cab carrying a gun. Nowhere in his testimony did he say that he saw accused-appellant attempting to rob, or walking away with the money of the victim. In the absence of clear and convincing evidence that accused-appellant commited frustrated robbery, he should only be found guilty of the crime of homecide. In convicting accused-appellant, the trial court appreciated the aggravating circumstance of nighttime, though the same was not alleged in the information. In People v. Ramirez,17 citing the case of People v. Gano,18 the Court held that "pursuant to the amended provisions of Rule 110 Section 8 and 9, of the Revised Rules on Criminal Procedure, which took effect on December 1, 2000, aggravating as well as qualifying circumstances affecting the commission of the crime, must be alleged in the information, otherwise, they cannot be considered against the accused even if proven at the trial." This rule may be applied retroactively, because it is favorable to the accused. Thus, nighttime should not be appreciated as an aggravating circumstances considering that the same was not alleged in the information.

At any rate, even if nighttime was alleged in the information, the same will still not affect accused-appellant criminal liability as there was no showing that he deliberately sought nocturnity to facilitate the commission of the crime, or that it insured his immunity from capture.19 For the mitigating circumstance of voluntary surrender, accused-appellant must prove that: (1) he had not been actually arrested; (2) he surrendered himself to a person in authority or the latter's agent; and (3) the surrender was voluntary. There must be a showing of spontaneity and an intent to surrender unconditionally to the authorities, either because the accused acknowledges his guilt or he wishes to spare them the trouble and expense concomitant to his capture.20 In the case at bar, voluntary surrender cannot mitigate the liability of accused-appellant considering that his surrender was not in fact voluntary. The record show that he and his cohort immediately fled and hid behind the Florete Compound right after the shooting incident. It was only when accused-appellant realized that the presence of police officers in the field precluded his escape that he gave himself up. In the two informations filed against accused-appellant, he was charged for two separate crimes, namely, robbery with homecide, and illegal possession of firearm under P.D. No. 1866. After trial, a decision was rendered applying the then prevailing ruling in People v. Quijada,21 that the killing of a person with the use of an unlicensed firearm gave rise to two separate offenses, namely, (1) homecide or murder under the Revised Penal Code; and (2) illegal possession of firearm in its aggravated form. Consequently, he was found guilty of frustrated robbery with homecide and was sentenced to suffer the penalty of reclusion perpetua; and of Qualified Illegal Possession of Firearm, and was accordingly sentenced to suffer the penalty of death. With the passage of Republic Act. No. 8294, however, the use of an unlicensed firearm in the commission of homecide or murder is no longer treated as a separate offense, but only as a special aggravating circumstance. Moreover, under said Act, only one crime is committed, i.e., homecide or murder with the aggravating circumstance of illegal possession of firearm, and only one penalty shall be imposed on the accused.22 R.A. No. 8294 favors the accused-appellant in the instant case since it treats the two offenses for which he was charged only as a single offense. Hence, the amendatory provision should be retroactively applied to accused-appellant, who was not shown to be a habitual delinquent. Accordingly, he should be acquitted in Criminal Case No. 47067, for violation of P.D. No. 1866. Notably, even in the absence of R.A. No. 8294, accused-appellant cannot be convicted of illegal possession of firearm in its aggravated form, much more be meted out the penalty of death for a reason that the information in Criminal Case No. 47067 charged him only with simple illegal possession of firearm. The information is bereft of any allegation that an unlicensed firearm was used in killing the victim. Without said allegation, accused-appellant cannot be convicted of aggravated illegal possession of firearm under Section 1 and 2 of P.D. No. 1866, without violating his constitutional right to be informed of the nature and cause of the accusation against him. Moreover, even assuming that there was an allegation that an unlicensed firearm was used in murder or homecide, still the imposition of the death penalty on accused-appellant was erroneous. In People v. Nepumuceno, Jr.23 we pointed out that: As was emphasized in Quijada, under the second paragraph of Section 1 of P.D. No. 1866 the commission of murder or homecide with the use of an

unlicensed firearm serve to aggrevate the offense of illegal possession of firearm and, accordingly, increased the penalty prescribed in the first paragraph of the Section, i.e., from "reclusion temporal in its maximum penalty period to reclusion perpetua" to single indivisible penalty of death. It must be underscored that although R.A. No. 7659 had already taken effect at the time the violation of P.D. No. 1866 was allegedly committed by [accusedappellant], there is nothing in R.A. No. 7659 which specifically reimposed the death penalty in P.D. No. 1866. Without such reimposition, the death penalty imposed in Section 1 of P.D. No. 1866 for aggravated illegal possession of firearm shall remain suspended pursuant to Section 19 (1) of Article III of the Constitution. Conformably therewith, what the trial court could impose was reclusion perpetua. Applying Article 249, in relation to Article 64, paragraph 1 of the Revised Penal Code, reclusion temporal, which is the penalty for homicide, shall be imposed in its medium period, there being no modifying circumstance attendant in the commission of the crime. Since accused-appellant is entitled to the benefits of the Indeterminate Sentence Law,24 he can thus be sentenced to an indeterminate penalty , the maximum of which shall be within the range ofreclusion temporal in its medium period; and the minimum, within the range of prision mayor, the penalty next lower to that prescribed. Anent accused-appellant's civil liability, the following guidelines regarding the award of actual damages representing burial, wake, and funeral expenses, laid down in the case of People v. Degoma,25 are pertinent, thus: ...Of the expenses allegedly incurred, the Court can only give credence to those supported by receipt and which appear to have been genuinely incurred in connection with the death, wake or burial of the victim. Thus, the Court cannot take account of receipts showing expenses incurred before the date of the slaying of the victim; those incurred after a considerable lapse of time from the burial of the victim and which do not have any relation to the death, wake or burial of the victim; those incurred for purely aesthetic or social purposes, such as the lining with marble of the tomb of the victim; those which appear to have been modified to show an increase in the amount of expenditure such as by adding a number to increase the purchase value from tens to hundreds; those expenditures which could not be reasonably itemized or determined to have been incurred in connection with the death, wake or burial of the victim; those which, would nonetheless, have been incurred despite the death, wake and burial of the victim, the death, wake and burial being merely incidental; and those which were not in fact shouldered by the immediate heirs of the victim, such as plane tickets by relatives or in-laws. Accordingly, the P67,677.00 funeral, wake, and burial expenses awarded by the trial court should be reduced to P17,818.40, being the total amount of expenses which were reasonably itemized, supported by receipts, and determined to have been incurred in connection with the funeral, wake or burial of the victim. The records reveal that at the time of his death, the victim was a 48-year old taxi driver, earning an average daily wage of P300.00 or P9,000.00 a month.26 Hence, accusedappellant should indemnify the heirs of the deceased the amount of P1,151,820.00, for the deceased's loss of earning capacity, computed pursuant to the following formula,27 to wit Net Earning Capacity (x) = Life Expectancy x Gross Annual Income -Living Expenses (50% of gross Annual Income) where life expectancy = 2/3 x (80 - age of deceased [ 48 years ]) x = 2/3 x (80- 48) x [(P108,000.00) - (P54,000.00)]

x = [2/3 x 32] x P54,000.00 x = 21.33 x P54,000.00 x = P1,151,820.00

[G.R. Nos. 144086-87 : February 6, 2002] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, TABOGA, Accused-Appellant. DECISION vs. EDRALIN

While the testimony of the victim's widow that the death of her husband caused her grief and sorrow justifies the award of moral damages, the award of P300,000.00 must, however, be reduced to P50,000.00 in line with prevailing jurisprudence.28 Under Article 2230 of the Civil Code, exemplary damages may be imposed when the crime was committed with one or more aggravating circumstances. Since there is no aggravating circumstance attendant in the present case, the award of P50,000.00 exemplary should therefore be deleted. The Court notes that accused Jose Precioso who was sentenced to suffer the penalty of reclusion perpetua for robbery with homicide, did not file an appellant's brief. Nevertheless, he shall benefit from the favorable decision of this Court with respect to accused-appellant Sherjohn Arondain. Section 11 (a), Rule 122, of the Revised Rules on Criminal Procedure, provides that: "An appeal taken by one or more of several accused shall not affect those who did not appeal, except insofar as the judgment of the appellate court is favorable and applicable to the latter." Considering that the conclusions arrived at in the present case are similarly applicable to accused Jose Precioso, he should likewise be found guilty only for the crime of homicide. The same goes for the modifications of the civil liability. Thus, the reduction of the award of moral damages and funeral, burial, and wake expenses to P50,000.00 and P 17,818.40, respectively, as well as the deletion of exemplary damages, which are favorable to accused Jose Precioso, should also be applied to him. The additional monetary award imposed upon accused-appellant Sherjohn Arondain, which are clearly not favorable to accused Jose Precioso, shall, however apply only to the former who pursued the present appeal.29 WHEREFORE, the Decision of the Regional Trial Court of Iloilo City, Branch 25, in Criminal Case Nos. 47066 and 47067 is MODIFIED, as follows: 1) In Criminal Case No. 47066, accused-appellant Sherjohn Arondain and accused Jose Precioso, are found guilty beyond reasonable doubt of the crime of Homicide, and is sentenced to suffer an indeterminate penalty ranging from Seven (7) years of prision mayor, as minimum, to Fourteen (14) years, Eight (8) months, and One (1) day, ofreclusion temporal, as maximum. 2) Accused-appellant Sherjohn Arondain and accused Jose Precioso are sentenced to pay, jointly and severally, the following amounts to the heirs of the victim, to wit: a) P50,000.00 as death indemnity; (b ) PI7,818.40, as funeral, burial, and wake expenses; and c) P50,000.00 by way of moral damages. The award of P50,000.00 exemplary damages is deleted. Accused-appellant Sherjohn Arondain is further ordered to pay the heirs of the victim the amount ofP1,151,820.00 for loss of earning capacity of the deceased.1wphi1.nt 3) In Criminal Case No. 47067, for violation of P.D. No. 1866, accused-appellant Sherjohn Arondain is herebyACQUITTED. SO ORDERED.

YNARES-SANTIAGO, J.: Francisca Tubon, a widowed septuagenarian, was robbed, stabbed and burned beyond recognition when her house built of strong materials was set on fire. For the commission of the above felonies, Edralin Taboga was charged in Criminal Case No. 1818-K with Robbery with Homicide in an Information[1 which reads as follows: That on or about the 1st day of April 1998, in the municipality of Magsingal, province of Ilocos Sur, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with intent to gain, and with violence against person[s], did then and there wilfully, unlawfully and feloniously enter the house of one FRANCISCA TUBON, and once inside, did then and there, with treachery and abuse of superior strength, assault, attack and stab FRANCISCA TUBON, thereby inflicting upon her mortal wounds which necessarily caused the death of saidFRANCISCA TUBON, and then, did then and there wilfully, unlawfully and feloniously take, steal and carry awaythree (3) finger rings, one (1) necklace with pendant, and one (1) vial of perfume, and four (4) gantas of ricebelonging to FRANCISCA TUBON. Contrary to law and aggravated by the circumstances that the crime was committed in disregard of the respect due the offended party on account of her age and sex, that the crime was committed in the dwelling of the offended party and that the crime was committed after an unlawful entry. Accused-appellant Taboga was likewise indicted for Arson in Criminal Case No. 1819-K in an Information[2 which avers: That on or about the 1st day of April 1999, in the municipality of Magsingal, province of Ilocos Sur, Philippines and within the jurisdiction of this Honorable Court, the above-named accused did then and there wilfully, unlawfully and feloniously set fire to the house of FRANCISCA TUBON after having robbed and stabbed her inside the said house and by reason or on occasion of the arson the death of FRANCISCA TUBON resulted. Contrary to law and aggravated by the circumstance that the crime was committed in the dwelling of the offended party and that the crime was committed after an unlawful entry. Upon arraignment, accused-appellant entered separate pleas of Not Guilty to the crimes charged.[3 The cases were thereafter tried jointly. It appears that at 2:00 in the early morning of April 1, 1998, at Magsingal, Ilocos Sur, Barangay Councilman Cirilo Urayani woke up to the sound of loud

explosions. He thought people were lighting firecrackers in the neighboring barangay to celebrate their fiesta. He went out of the house to fetch water, and he saw the house of Francisca Tubon on fire. Marites Ceria, a niece of Francisca Tubon, was also awakened by the explosions. She rushed to her aunts house and, seeing it on fire, shouted for help. She called out the name of her aunt but there was no response. Barangay Captain William Pagao heard Marites shouts for help. He and other barangay officials and residents helped in dousing out the fire using a water pump. When they entered the burned house, they discovered the charred remains of Francisca Tubon. They examined the body and found stab wounds on the chest of the deceased. Later that morning, Pagao reported the incident to the police authorities of Magsingal, Ilocos Sur. SPO1 Tiburcio Panod went to the scene of the crime to investigate and gather physical evidence. He saw the charred remains of Francisca Tubon inside what used to be her bedroom. He also found stab wounds on her chest. Meanwhile, Hilaria Migo, a niece of the deceased, took pictures of the charred remains. A sack of about four (4) gantas of rice was found some thirty to forty meters away from the burned house. Also found were two crumpled five peso bills, twenty peso and fifty peso bills, and a five dollar bill underneath a big stone along the barangay road. The investigators likewise found a necklace with pendant, three rings, a certificate of ownership of large cattle and a vial of perfume near the scene. The deceaseds former farm workers were rounded up, namely, Mario Ceria, Edwin Ceria, Tante Dumadag and Edralin Taboga. Brgy. Capt. Pagao noticed fresh blood stains on the short pants of Taboga. He confronted Taboga, and the latter readily admitted that he killed Francisca Tubon and set the flue-cured tobacco stored inside her house on fire, causing the whole house, including the dead body of the old woman, to be burned. Taboga was brought to the police station for further investigation. During the investigation, SPO1 Panod asked Taboga, Apay, sica ti akinaramid wenno saan? (Why, were you the one who did it or not?) Taboga answered, Wen, Sir, ngem tulungannac cadi. (Yes, sir, but please help me.) SPO1 Panod prepared a written extra-judicial confession for Taboga. During the inquest, however, Taboga refused to sign the confession upon the advice of his lawyer. The following day, April 2, 1998, Mr. Mario Contaoi, a radio announcer of DZNS, went to the Magsingal Municipal Police Station to interview the suspect, Edralin Taboga. Again, Taboga admitted killing the deceased and setting her and her house on fire. In the meantime, the Forensic Biologist of the National Bureau of Investigation (NBI), who examined the bloodstains on Tabogas shorts and on the kitchen knife, found that the said specimens contained human blood Type O, [4 the blood type of the deceased. On the other hand, the Municipal Health Officer of Magsingal, Ilocos Sur who performed an autopsy on the victims charred remains, found several stab wounds

on the chest.[5 According to him, the victim may have been stabbed to death before she and her house were burned. The daughter of the deceased, Dr. Marcelina T. Salvador, testified that the family spent the total amount of P115,960.00 for the wake and interment of her mother, and that the house, including the pieces of furniture, fixtures and valuables therein, was easily worth P1,000,000.00. Accused-appellant Edralin Taboga raised the defense of denial and alibi. He alleged that he was in the house of the parents of his live-in partner, Liza Almazan, at Brgy. Maratudo, Magsingal, Ilocos Sur, seventy meters away from the house of the deceased. He knew the deceased as he used to gather tobacco leaves for her. On the night prior to the commission of the crimes, he had supper at home at 7:00, after which he washed the dishes and went to sleep at 8:00. At around 1:00 to 2:00 the next morning, he was awakened by shouts for help. He got out and helped put out the fire at the house of the deceased. At 3:00 a.m., he returned home and went back to sleep. At 6:00 a.m., he was fetched from the house and brought to the scene of the fire. The police asked him about the blood stains on his short pants, but he did not know anything about it. Accused-appellant further claimed that he was maltreated by the policemen and forced to admit the crime. Regarding his admission to radio announcer Mario Contaoi, he narrated that the interview was held inside the investigation room of the police station where policemen were present. Thus, he had to admit the crimes because he was afraid of the policemen. Moreover, relatives of the deceased beat him up by kicking him, hitting him with a chair, slapping him and punching him on the head and face. Accused-appellants live-in partner corroborated his testimony. She stated that she got up to relieve herself at about1:00 at dawn of April 1, 1998 when she heard shouts of a fire. She woke up accused-appellant and, together, they went to help put out the fire. After an hour, they returned home and went back to sleep. After trial, the Regional Trial Court of Cabugao, Ilocos Sur, Branch 24, rendered judgment finding him guilty beyond reasonable doubt of both crimes and accordingly sentencing him as follows: WHEREFORE, judgment is hereby rendered, as follows: (1) In Criminal Case No. 1818-K, the Court finds the accused Edralin Taboga GUILTY beyond reasonable doubt of the special complex crime of Robbery with Homicide with all the aggravating circumstances alleged in the information, and hereby sentences him to suffer the supreme penalty of DEATH by lethal injection, to indemnify the heirs of Francisca Tubon in the following amounts: (a) P50,000.00 as death indemnity; (b) P115,960.00 as reimbursement for actual expenses; and (c) P50,000.00 as moral damages and to pay the costs

(2) In Criminal Case No. 1819-K, the Court finds the accused, Edralin Taboga, GUILTY beyond reasonable doubt of Destructive Arson and hereby sentences him to suffer reclusion perpetua, with all the accessory penalties provided for by law, to indemnify the heirs of Francisca Tubon in the amount of P1,000,000.00 without subsidiary imprisonment in case of insolvency, and to pay the costs. He shall be credited in full with the period of his preventive imprisonment. SO ORDERED.[6 The case is now before us on automatic review pursuant to Section 22 of Republic Act No. 7659, amending Article 47 of the Revised Penal Code. In his brief, accused-appellant alleges that: I THE TRIAL COURT ERRED IN ADMITTING IN EVIDENCE THE EXTRAJUDICIAL CONFESSION MADE BY THE ACCUSED TO A RADIO REPORTER FOR THE LATTER WAS ACTING AS AN AGENT FOR THE PROSECUTION AND HENCE THE PROCEDURAL SAFEGUARDS ENSHRINED IN THE CONSTITUTION SHOULD HAVE BEEN OBSERVED. II THE TRIAL COURT ERRED IN FINDING THE ACCUSED GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF ROBBERY WITH HOMICIDE FOR THE ROBBERY OR THEFT WAS NOT PROVEN WITHOUT THE SAID EXTRAJUDICIAL CONFESSION AND HENCE ONLY THE CRIME OF HOMICIDE EXISTS. The first assigned error is untenable. There is nothing in the record to show that the radio announcer colluded with the police authorities to elicit inculpatory evidence against accused-appellant. Neither is there anything on record which even remotely suggests that the radio announcer was instructed by the police to extract information from him on the details of the crimes. Indeed, the reporter even asked permission from the officer-in-charge to interview accused-appellant. Nor was the information obtained under duress. In fact, accused-appellant was very much aware of what was going on. He was informed at the outset by the radio announcer that he was a reporter who will be interviewing him to get his side of the incident: Q Will you please tell the court what [did] you tell the accused before you conducted the interview if any? A It is inside the tape of our conversation, sir. Q We see a small tape recorder in your possession Mr. Witness, where was that place[d]? A In front of the suspect, sir.

Court Q And he was aware of that? A Of course, Your Honor. xxx Q Was he aware he was being interviewed? A Yes, sir, I introduced myself as a reporter from the DZNS, sir. Q What else did you ask after asking his name and personal circumstances? A Regarding the crime which was allegedly committed, sir. Q Did he answer your question? A Yes, sir. Q In your observation, Mr. Witness, as a radio reporter were the answers given to your questions voluntary? A Voluntary, sir.[7 During cross-examination, defense counsel failed to extract an admission from the reporter that accused-appellant was under compulsion from the police to face him: Q Before you conducted the interview, you do know what transpired between the suspect and the policeman? A I do not know, sir. Q You did not observe Mr. Witness whether the suspect during your interview was under pressure or intimidated? A When I went there I saw the suspect watching the TV together with the policeman, sir. Q You did not see relatives of the victim? A I dont recognize [them], sir. Q How about [the] barangay officials of Barangay Maratudo? A I only see (sic) the barangay captain of Maratudo at the house of the victim, sir.

Q When you interviewed the suspect, he do (sic) not know that the interview will be aired? A I told him I am a reporter, sir. Q But you did not tell him that the interview will be aired? A I tell (sic) him that the interview will be aired, sir.[8 The records also show that accused-appellant not only confessed to the radio reporter but to several others, among them his live-in partner,[9 Barangay Captain William Pagao, [10 and SPO1 Tiburcio Panod.[11 The defense maintained that the confessions were obtained through compulsion. Accused-appellant claimed that the policemen maltreated him by hitting him four (4) times on the head with a chair and forced him to admit the crimes.[12 However, accused-appellant failed to present convincing evidence to substantiate his claim, other than his bare self-serving assertion. Apropos is our ruling in People v. Pia,[13 where we said that: where the defendants did not present evidence of compulsion or duress or violence on their persons; where they failed to complain to the officers who administered the oaths; where they did not institute any criminal or administrative action against their alleged intimidators for maltreatment; where there appeared to be no marks of violence on their bodies and where they did not have themselves examined by a reputable physician to buttress their claim, all these should be considered as factors indicating the voluntariness of the confession.[14 Furthermore, accused-appellants confession is replete with details on the manner in which the crimes were committed, thereby ruling out the probability that it was involuntarily made. The voluntariness of a confession may be inferred from its language such that if, upon its face the confession exhibits no sign of suspicious circumstances tending to cast doubt upon its integrity, it being replete with details which could be supplied only by the accused reflecting spontaneity and coherence which, psychologically, cannot be associated with a mind to which violence and torture have been applied, it may be considered voluntary.[15 In the early case of U.S. v. De los Santos,[16 we stated: If a confession be free and voluntary the deliberate act of the accused with a full comprehension of its significance, there is no impediment to its admission as evidence, and it becomes evidence of a high order; since it is supported by the presumption a very strong presumption that no person of normal mind will deliberately and knowingly confess himself to be a perpetrator of a crime, especially if it be a serious crime, unless prompted by truth and conscience. Under Rule 133, Section 3 of the Rules of Court, an extrajudicial confession made by an accused shall not be a sufficient ground for conviction, unless corroborated by evidence of corpus delicti. As defined, it means the body of the crime and, in its primary sense, means a crime has actually been committed. [17 Applied to a particular offense, it is the actual commission by someone of the particular crime charged.[18 In the case at bar, the confession made by accusedappellant was corroborated by several items found by the authorities, to wit: the knife which was used to kill the victim and the charred body of the victim.

The court a quo did not err in admitting in evidence accused-appellants taped confession. Such confession did not form part of custodial investigation. It was not given to police officers but to a media man in an apparent attempt to elicit sympathy. The record even discloses that accused-appellant admitted to the Barangay Captain that he clubbed and stabbed the victim even before the police started investigating him at the police station.[19 Besides, if he had indeed been forced into confessing, he could have easily asked help from the newsman. In People v. Endino, et al.,[20we held: We do not suggest that videotaped confessions given before media men by an accused with the knowledge of and in the presence of police officers are impermissible. Indeed, the line between proper and invalid police techniques and conduct is a difficult one to draw, particularly in cases such as this where it is essential to make sharp judgments in determining whether a confession was given under coercive physical or psychological atmosphere. Even assuming for the nonce that the extra-judicial confession was indeed inadmissible, this will not absolve accused-appellant from criminal liability because there exists independent evidence to establish his authorship of the victims death. While there was no prosecution witness who positively identified accused-appellant as the assailant of the victim, his culpability was nonetheless proven through circumstantial evidence. Hence, accused-appellants second assigned error that his guilt was not proven beyond reasonable doubt must likewise fall. Direct evidence of the commission of the crime is not the only matrix wherefrom a court may draw its conclusions and findings of guilt.[21 The rules on evidence[22 and case law sustain the conviction of the accused through circumstantial evidence when the following requisites concur: (1) there must be more than one circumstance; (2) the facts from which the inferences are derived are proven; and (3) the combination of all circumstances is such as to produce a conviction beyond reasonable doubt of the guilt of the accused.[23 With regard to the yardsticks to be used in assaying the probative value thereof Wharton suggests four basic guidelines in the appreciation of circumstantial evidence, (1) it should be acted upon with caution; (2) all the essential facts must be consistent with the hypothesis of guilt; (3) the facts must exclude every other theory but that of guilt; and (4) the facts must establish such a certainty of guilt of the accused as to convince the judgment beyond reasonable doubt that the accused is the one who committed the offense. The peculiarity of circumstantial evidence is that the guilt of the accused cannot be deduced from scrutinizing just one particular piece of evidence. It is far more like puzzle which when put together reveals a convincing picture pointing towards the conclusion the accused is the author of the crime.[24 In the case at bar, the following circumstances cited by the trial court lead to the inevitable conclusion that accused-appellant perpetrated the crimes, to wit: 1. As the victims farm worker, the accused must have acquired knowledge of the set-up of the victims house, including its openings, as well as the places where the victim used to keep her valuables;

2. When confronted by Brgy. Captain William Pagao with respect to the fresh blood stains on his short pants, the accused immediately became restless and his face turned pale; 3. Upon scientific examination of the blood stains found on the knife and short pants of the accused, it was found that the same consisted of human blood belonging to Type O which was the blood type of the deceased Francisca Tubon; 4. When the Barangay Captain asked him if he had something to do with the killing of the victim and the burning of the house, the accused broke down and admitted his guilt; 5. When he was interviewed by the radio announcer, Dr. Mario Contaoi, the accused reiterated his earlier confession given to Brgy. Captain William Pagao and SPO1 Tiburcio Panod; and 6. He could only present his live-in partner, Liza Almazan, and no other, to corroborate his denial and alibi.[25 Moreover, it appears that accused-appellant had a criminal record for theft. [26 The foregoing circumstances when viewed in their entirety are as convincing as direct evidence and, as such, negate the innocence of the accused-appellant. [27 In stark contrast to the foregoing factual and evidentiary circumstances arrayed against him, all accused-appellant could muster in his defense of alibi. For the defense of alibi to prosper, the accused must prove not only that he was at some other place at the time the crime was committed but that it was likewise impossible for him to be at thelocus criminis at the time of the alleged crime. [28 In the instant case, accused-appellant failed to prove and demonstrate the physical impossibility of his being at the scene of the crime at the approximate time of its commission. No less than accused-appellant himself admitted that the house where he was staying was only seventy meters away from the house of the victim.[29 As an element of a credible alibi, physical impossibility refers to the distance between the place where the accused was when the crime transpired and the place it was committed, as well as the facility of access between the two places.[30 Basic is the rule that alibi is easy to concoct, and accused-appellant failed to prove that it was physically impossible for him to be at the scene of the crime at the approximate time of its commission. While, indeed, accused-appellants common-law wife Liza Almazan corroborated his alibi, the trial court aptly pointed out that witnesses who are either wives or mothers of the accused, in almost all instances, would freely perjure themselves for the sake of their loved ones. [31 Consequently, accused-appellants defense of alibi can not prosper.[32 The doctrinal rule is that findings of fact made by the trial court, which had the opportunity to directly observe the witnesses and to determine the probative value of the other testimonies are entitled to great weight and respect because the trial court is in a better position to assess the same, an opportunity not equally open to an appellate court.[33 Verily Truth does not always stalk boldly forth naked, but modest withal, in a printed abstract in a court of last resort. She oft hides in nooks and crannies

visible only to the minds eye of the judge who tries the case x x x x. The brazen face of the liar, the glibness of the schooled witness in reciting a lesson, or the overeagerness of the swift witness, as well as the honest face of the truthful one, are alone seen by him.[34 What remains to be determined is whether the elements of the felonies have been established. The Court will not dwell further on the crime of Arson because, as admitted no less by counsel for accused-appellant, the penalty of reclusion perpetua has become final and executory for failure of the defense to appeal the same.[35 On the other hand, the Information indicting accused-appellant for the special complex crime of Robbery with Homicide alleged that the felony was committed with disregard to the respect due the offended party on account of her age and sex, further aggravated by dwelling and unlawful entry. The elements of the complex crime of Robbery with Homicide are: (1) the taking of personal property with the use of violence or intimidation against a person; (2) the property thus taken belongs to another; (3) the taking is characterized by intent to gain or animus lucrandi; and (4) on occasion of the robbery or by reason thereof, the crime of homicide, which is used in a generic sense, was committed. [36 In the appreciation of evidence in criminal cases, it is the basic tenet that the prosecution has the burden of proof in establishing the guilt of the accused for all the offenses charged ei incumbit probatio qui dicit, non qui negat.[37 He who asserts, not he who denies, must prove.[38 The conviction of accused-appellant must rest not on the weakness of his defense but on the strength of the prosecutions evidence. In proving the case of Robbery with Homicide, it is necessary that the robbery itself be established conclusively as any other essential element of the crime.[39 This is not so in the instant case. Apart from the sack of rice, necklace with pendant, three rings, vial of perfume and cash which were recovered within the vicinity of the burned house, no one saw accused-appellant actually asporting these items, much less has it been satisfactorily shown that robbery was the main purpose of the culprit in perpetrating the crimes. In fact, the sack containing the four gantas of rice was found some forty to fifty meters away from the house,[40 while the rest of the items were found hidden under some rocks nearby.[41 Yet accused-appellant was convicted of the complex crime because according to the lower court, [w]ith the recovery of the various items in or about the vicinity of the burned house, including cash money, the [c]ourt isconvinced that robbery was the main purpose of the culprit and that the killing was merely incidental thereto.[42 This is a glaring error because it practically convicts the accused-appellant of the crime charged on the basis of anassumption. Where a complex crime is charged and the evidence fails to support the charge as to one of the component offenses, the accused can be convicted only of the offense proved.[43 Absent any evidence that the accused indeed robbed the victim, the special complex crime of robbery with homicide cannot stand.[44 In any event, the aggravating circumstances alleged attended the killing. The immutable fact remains that the crimeof homicide was committed in the victims dwelling and without regard to her age and sex.

The circumstance of dwelling aggravates the felony when the crime was committed in the residence of the offended party and the latter was not given provocation.[45 It is considered an aggravating circumstance primarily because of the sanctity of privacy that the law accords to the human abode.[46 As one commentator puts it, ones dwelling is a sanctuary worthy of respect; thus one who slanders another in the latters house is more severely punished than one who offends him elsewhere.[47 According to Cuello Calon, the commission of the crime in anothers dwelling shows worse perversity and produces graver alarm. [48 Anent the circumstance of age, there must be a showing that the malefactor deliberately intended to offend or insult the age of the victim. [49 Neither could disregard of respect due to sex be appreciated if the offender did not manifest any intention to offend or disregard the sex of the victim.[50 In other words, killing a woman is not attended by the aggravating circumstance if the offender did not manifest any specific insult or disrespect towards the offended partys sex.[51 In the case at bar, there is absolutely no showing that accused-appellant deliberately intended to offend or insult the victim. However, even if disrespect or disregard of age or sex were not appreciated, the four circumstances enumerated in Article 14, paragraph 3 of the Revised Penal Code, as amended, can be considered singly or together.[52 Article 64, paragraph 3, of the Revised Penal Code is clear on this point: ART. 64. Rules for the application of penalties which contain three periods. In cases in which the penalties prescribed by law contain three periods, whether it be a single divisible penalty or composed of three different penalties, each one of which forms a period in accordance with the provisions of Article 76 and 77, the courts shall observe for the application of the penalty the following rules according to whether there are no mitigating or aggravating circumstances: xxx 3. When only an aggravating circumstance is present in the commission of the act, they shall impose the maximum period. xxx. The penalty imposable on accused-appellant for homicide, under Article 249 of the Revised Penal Code, is reclusion temporal in its maximum period. Applying the Indeterminate Sentence Law, accused-appellant should be sentenced to suffer the penalty of ten years and one day of prision mayor, as minimum, to seventeen years, four months and one day of reclusion temporal, as maximum. The civil damages awarded by the trial court are in accordance with controlling statutory provisions and case law on the matter. Following prevailing jurisprudence and in line with controlling policy, the Court finds the award of P50,000.00 as civil indemnity for the death of the victims proper, without any need of proof other than the death of the victim.[53 The award of moral damages in the amount of P50,000.00 to the victims heirs is likewise proper taking into consideration the pain and anguish of the victims family brought about by her death.[54

The award of P115,960.00 as actual damages for the funeral and burial expenses incurred by the heirs of Francisca Tubon, being amply supported by documentary evidence,[55 is likewise sustained. The attendance of an aggravating circumstance, however, warrants the additional imposition of exemplary damages under Article 2230 of the Civil Code, [56 which the Court fixes at P50,000.00.[57 WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court of Cabugao, Ilocos Sur, Branch 24, in Criminal Case Nos. 1818-K, is MODIFIED. Accused-appellant Edralin Taboga is found guilty beyond reasonable doubt of the crime of Homicide and is sentenced to suffer an indeterminate penalty of ten (10) years and one (1) day ofprision mayor, as minimum, to seventeen (17) years, four (4) months and one (1) day of reclusion temporal, as maximum. He is ordered to pay the heirs of the deceased the sum of P50,000.00 as exemplary damages, in addition to the amounts of P50,000.00 as civil indemnity, P115,960.00 as actual damages, and P50,000.00 as moral damages. SO ORDERED. .R. No. 140740 April 12, 2002 PHILIPPINES, plaintiff-appellee,

PEOPLE OF THE vs. JUANITO BALOLOY, accused-appellant. PER CURIAM:

At the waterfalls of Barangay Inasagan, Aurora, Zamboanga del Sur, on the evening of 3 August 1996, the dead body of an 11-year-old girl Genelyn Camacho (hereafter GENELYN) was found. The one who caused its discovery was accused-appellant Juanito Baloloy (hereafter JUANITO) himself, who claimed that he had caught sight of it while he was catching frogs in a nearby creek. However, based on his alleged extrajudicial confession, coupled with circumstantial evidence, the girls unfortunate fate was pinned on him. Hence, in this automatic review, he seeks that his alleged confession be disregarded for having been obtained in violation of his constitutional rights, and that his conviction on mere circumstantial evidence be set aside. The information1 charging JUANITO with the crime of rape with homicide reads as follows: That on August 3, 1996 at about 6:30 oclock in the evening, at Barangay Inasagan, Municipality of Aurora, province of Zamboanga del Sur, Republic of the Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, by means of force and intimidation, did then and there, willfully, unlawfully and feloniously have carnal knowledge with one Genelyn Camacho, a minor against the latters will and on said occasion and by reason of the rape, the said Genelyn Camacho died as a result of personal violence, inflicted upon her by the accused. Act contrary to Article 335 of the Revised Penal Code as amended by R.A. No. 7659. The case was docketed as Criminal Case No. AZ-CC-96-156.

Upon arraignment2 on 10 December 1996, JUANITO entered a plea of not guilty. Trial on the merits ensued thereafter. Jose Camacho, father of GENELYN and resident of Inasagan, Purok Mabia, Aurora, Zamboanga del Sur, testified that at about 5:00 p.m. of 3 August 1996, he asked GENELYN to borrow some rice from their neighbor Wilfredo Balogbog whose house was about 200 meters away. GENELYN forthwith left, but never returned. Thus, Jose went to the house of Wilfredo, who informed him that GENELYN had already left with one ganta of rice. Jose then started to look for GENELYN. Speculating that GENELYN might have taken shelter at the house of their neighbor Olipio Juregue while it was raining, Jose proceeded to Olipios house. Unfortunately, Jose did not find GENELYN there. Not losing hope, Jose proceeded to the house of Ernesto Derio. On his way, he met Wilfredo, who accompanied him to the house of Ernesto. GENELYN was not there either. They continued their search for GENELYN, but when it proved to be in vain, the two decided to go home.3 A few minutes after Jose reached his house, Ernesto and JUANITO arrived. JUANITO informed Jose that he saw a dead body at the waterfalls, whose "foot was showing." When asked whose body it was, JUANITO answered that it was GENELYNs. Immediately, the three went to the waterfalls where JUANITO pointed the spot where he saw GENELYNs body. With the aid of his flashlight, Jose went to the spot, and there he saw the dead body floating face down in the knee-high water. True enough, it was GENELYNs. Jose reported the incident to Barangay Captain Luzviminda Ceniza. Upon Cenizas order, the Bantay Bayan members and some policemen retrieved and brought GENELYNs dead body to Joses house.4 Wilfredo Balogbog corroborated the testimony of Jose that GENELYN came to his house in the afternoon of 3 August 1996 to borrow some rice. GENELYN had with her an umbrella that afternoon, as it was raining. He learned that GENELYN failed to reach her home when Jose came to look for her.5 Ernesto Derio, JUANITOs uncle-in-law, testified that at about 6:30 p.m. of 3 August 1996, Jose, together with Wilfredo Balogbog, arrived at his house to look for GENELYN, but they immediately left when they did not find her. At about 7:30 p.m., JUANITO arrived at Ernestos house, trembling and apparently weak. JUANITO was then bringing a sack and a kerosene lamp. When Ernesto asked JUANITO where he was going, the latter said that he would catch frogs; and then he left. After thirty minutes, JUANITO returned and told Ernesto that he saw a foot of a dead child at the waterfalls. With the disappearance of GENELYN in mind, Ernesto lost no time to go the house of Jose. JUANITO followed him. There, JUANITO told Jose that he saw a foot of a dead child at the waterfalls. When Jose asked whether it was GENELYNs, JUANITO answered in the affirmative. The three then proceeded to the waterfalls, where JUANITO pointed the place where he saw the body of GENELYN. Jose immediately approached the body, and having confirmed that it was GENELYNs, he brought it to a dry area.6 Ernesto also testified that on 4 August 1996, he saw Antonio Camacho hand over a black rope to Barangay Captain Ceniza. The latter asked those present as to who owned the rope. When JUANITO admitted ownership of the rope, Ceniza brought him away from the crowd to a secluded place and talked to him.7 Finally, Ernesto testified that JUANITO previously attempted to molest his (Ernestos) child, an incident that caused a fight between him (JUANITO) and his (Ernestos) wife.8 Antonio Camacho, a cousin of Jose, testified that on 3 August 1996, he was informed by Joses brother that GENELYN was "drowned." He and the Bantay Bayan members proceeded to the place of the incident and retrieved the body of GENELYN. At 8:00 a.m. of the following day he, together with Edgar Sumalpong and Andres Dolero, went to the waterfalls to trace the path up to where GENELYN was found. There, they found a black rope and an umbrella. They gave the umbrella to Joses wife, and the black rope to Barangay

Captain Ceniza, who was then attending the wake of GENELYN. Ceniza asked those who were at the wake whether anyone of them owned the rope. JUANITO answered that he owned it. Thereafter Ceniza talked to JUANITO.9 Andres Dolero corroborated the testimony of Antonio on the recovery of the black rope and umbrella at the waterfalls where GENELYNs body was found.10 Barangay Captain Ceniza of Inasagan, Aurora, Zamboanga del Sur, testified that at about 8:30 p.m. of 3 August 1996, Jose Camacho, Ernesto Derio, Porferio Camacho, and JUANITO arrived at her house to inform her that JUANITO found GENELYNs dead body at the waterfalls. Ceniza forthwith ordered the members of the Bantay Bayan to retrieve the body of GENELYN, and reported the incident to the police headquarters of Aurora, Zamboanga del Sur. She specifically named JUANITO as her suspect. She then went home and proceeded to Joses house for GENELYNs wake. She saw JUANITO at the wake and noticed that he was very uneasy.11 Ceniza further revealed that on 4 August 1996, while she was on her way to Joses house, Antonio gave her a black rope, which he reportedly found at the spot where the dead body of GENELYN was retrieved. Ceniza then asked the people at the wake about the rope. JUANITO, who was among those present, claimed the rope as his. She brought JUANITO away from the others and asked him why his rope was found at the place where GENELYNs body was discovered. JUANITO answered: "I have to claim this as my rope because I can commit sin to God if I will not claim this as mine because this is mine." Ceniza further asked JUANITO to tell her everything. JUANITO told Ceniza that his intention was only to frighten GENELYN, not to molest and kill her. When GENELYN ran away, he chased her. As to how he raped her, JUANITO told Ceniza that he first inserted his fingers into GENELYNs vagina and then raped her. Thereafter, he threw her body into the ravine.12 After such confession, Ceniza examined his body and found a wound on his right shoulder, as well as abrasions and scratches on other parts of his body. Upon further inquiry, JUANITO told her that the wound on his shoulder was caused by the bite of GENELYN. Ceniza then turned over JUANITO to a policeman for his own protection, as the crowd became unruly when she announced to them that JUANITO was the culprit. JUANITO was forthwith brought to the police headquarters.13 Victor Mosqueda, a member of the Philippine National Police (PNP) stationed at the Aurora Police Station, testified that at about 10:00 p.m. of 4 August 1996 he was at Joses house. Ceniza informed him that JUANITO was the suspect in the killing of GENELYN, and she turned over to him a black rope which belonged to JUANITO. He wanted to interrogate JUANITO, but Ceniza cautioned him not to proceed with his inquiry because the people around were getting unruly and might hurt JUANITO. Mosqueda immediately brought JUANITO to the police station, and on that same day, he took the affidavits of the witnesses. The following day, a complaint was filed against JUANITO.14 Dr. Arturo Lumacad, Municipal Health Officer of the Aurora Rural Health Clinic, testified that he examined JUANITO so as to verify the information that JUANITO sustained wounds in his body.15 His examination of JUANITO revealed the following injuries: 1. fresh abrasions on the right portion of the cheek; 2. multiple abrasions on the right shoulder; 3. abrasion on the left shoulder; and 4. abrasions on the left forearm.16

Dr. Lumacad also testified that he examined the dead body of GENELYN on 4 August 1996 and found the following injuries: 1. 2.5-inch lacerated wound at her left neck, front of the head; 2. 1-inch wound at the right cheek just below the first wound; 3. multiple contusions on her chest; 4. contusion at the right hip; and 5. fresh lacerations on her vagina at 9 oclock and 3 oclock positions.17 He opined that the fresh lacerations could have been caused by a large object inserted into GENELYNs vagina, such as a male sex organ, a rod, or a piece of wood or metal.18 Presiding Judge Celestino V. Dicon of the Municipal Trial Court of Aurora, Zamboanga del Sur, testified that when he arrived in his office at around 8:30 a.m. of 4 August 1996 several people, including Barangay Captain Ceniza, were already in his courtroom. He learned that they came to swear to their affidavits before him. After reading the affidavit of Ceniza, he asked Ceniza whether her statements were true. Ceniza answered in the affirmative and pointed to JUANITO as the culprit. Judge Dicon turned to JUANITO and asked him whether the charge against him was true. JUANITO replied in the dialect: "[N]apanuwayan ko, sir" ("I was demonized"). While Judge Dicon realized that he should not have asked JUANITO as to the truthfulness of the allegations against him, he felt justified in doing so because the latter was not under custodial investigation. Judge Dicon thus proceeded to ask JUANITO whether he had a daughter as old as the victim and whether he was aware of what he had done to GENELYN. Again, JUANITO responded that he was demonized, and he spontaneously narrated that after he struck GENELYNs head with a stone he dropped her body into the precipice.19 Lopecino Albano, process server in the court of Judge Dicon, corroborated the testimony of the latter as to JUANITOs admission that he was demonized when he raped and killed GENELYN.20 The sole witness for the defense was JUANITO, who invoked denial and alibi. He testified that he was at his mothers house at around 6:30 p.m. of 3 August 1996. An hour later, he left for the creek to catch frogs; and while catching frogs, he saw a foot. He forthwith headed for Ernesto Derios house to ask for help. There, he told Ernesto and his wife of what he had seen. Ernestos wife asked JUANITO whether the person was still alive, and JUANITO answered that he was not sure. At this point, Ernesto informed him that Jose Camacho was looking for GENELYN. JUANITO and Ernesto then proceeded to the house of Jose to inform the latter of what he, JUANITO, had seen. The three forthwith went to the creek. There, they found out that the foot was GENELYNs and that she was already dead. Upon Joses request, JUANITO and Ernesto informed Joses brother about the incident, and they proceeded to the house of Ceniza. Thereafter, they, along with the members of the Bantay Bayan, went back to the creek to retrieve the body of GENELYN.21 JUANITO further recalled that after the body of GENELYN was brought to her parents house, he helped saw the lumber for her coffin. Thereafter, he went to Ernestos house to get the sack containing the seventeen frogs he had caught that night, which he earlier left at Ernestos house. He was shocked to find out that the rope which he used to tie the sack, as well as all the frogs he caught, was missing. As it was already dawn, JUANITO left his sack at his mothers house; then he proceeded to the house of Jose to help make the coffin of GENELYN. But, at around 8:00 a.m., policeman Banaag came looking for him. He stopped working on GENELYNs coffin and identified himself. Banaag took him away from the house

of Jose and asked him whether he owned the rope. JUANITO answered in the affirmative. At this point, policeman Mosqueda came near them and escorted him and Banaag back to Joses house. At Joses house, Mosqueda announced to the crowd that JUANITO was the suspect in GENELYNs untimely demise. JUANITO was then detained and investigated at the police station.22 During his investigation by the police officers and by Judge Dicon, he was never assisted by a lawyer.23 In its challenged decision,24 the trial court found JUANITO guilty beyond reasonable doubt of the crime of rape with homicide. On the challenge on the admissibility of the admissions he made to Barangay Captain Ceniza and Judge Dicon, it ruled that they are not the law enforcement authorities referred to in the constitutional provisions on the conduct of custodial investigation. Hence, JUANITOs confessions made to them are admissible in evidence. Moreover, no ill-motive could be attributed to both Ceniza and Judge Dicon. It also found unsubstantiated JUANITOs claim that he was threatened by his fellow inmates to make the confession before Judge Dicon; and that, even assuming that he was indeed threatened by them, the threat was not of the kind contemplated in the Bill of Rights. The threat, violence or intimidation that invalidates confession must come from the police authorities and not from a civilian. Finally, it ruled that JUANITOs self-serving negative evidence cannot stand against the prosecutions positive evidence. The trial court, thus, convicted JUANITO of rape with homicide and imposed on him the penalty of death. It also ordered him to pay the heirs of the victim the amount of P50,000 by way of civil indemnity. Hence, this automatic review. In his Appellants Brief, JUANITO imputes to the trial court the following errors: I THE COURT A QUO GRAVELY ERRED IN ADMITTING THE ALLEGED CONFESSION OF THE ACCUSED-APPELLANT TO WITNESSES LUZVIMINDA CE[N]IZA AND JUDGE CELESTINO DICON AS EVIDENCE AGAINST THE ACCUSED. II ON ACCOUNT OF THE INADMISSIBILITY OF THE ACCUSEDS ALLEGED CONFESSION THE COURT GRAVELY ERRED IN CONVICTING THE ACCUSED BASED ON MERE CIRCUMSTANTIAL EVIDENCE. Anent the first assigned error, JUANITO maintains that the trial court violated Section 12(1) of Article III of the Constitution25 when it admitted in evidence his alleged extrajudicial confession to Barangay Captain Ceniza and Judge Dicon. According to him, the two failed to inform him of his constitutional rights before they took it upon themselves to elicit from him the incriminatory information. It is of no moment that Ceniza and Dicon are not police investigators, for as public officials it was incumbent upon them to observe the express mandate of the Constitution. While these rights may be waived, the prosecution failed to show that he effectively waived his rights through a written waiver executed in the presence of counsel. He concludes that his extrajudicial confession is inadmissible in evidence. In his second assigned error, JUANITO asserts that the prosecution miserably failed to establish with moral certainty his guilt. He points to the contradicting testimonies of the witnesses for the prosecution concerning the retrieved rope owned by him. Consequently, with the inadmissibility of his alleged extrajudicial confession and the apparent contradiction surrounding the prosecutions evidence against him, the trial court should have acquitted him. In the Appellees Brief, the Office of the Solicitor General (OSG) supports the trial courts finding that JUANITO is guilty beyond reasonable doubt of the crime as charged. His bare

denial and alibi cannot overcome the positive assertions of the witnesses for the prosecution. Moreover, he was unable to establish by sufficient evidence that Barangay Captain Ceniza and Judge Dicon had an ulterior motive to implicate him in the commission of the crime. The OSG recommends that the civil indemnity of P50,000 awarded by the trial court be increased to P75,000; and that in line with current jurisprudence, moral damages in the amount of P50,000 be awarded to the heirs of GENELYN. We shall first address the issue of admissibility of JUANITOs extrajudicial confession to Barangay Captain Ceniza. It has been held that the constitutional provision on custodial investigation does not apply to a spontaneous statement, not elicited through questioning by the authorities but given in an ordinary manner whereby the suspect orally admits having committed the crime. Neither can it apply to admissions or confessions made by a suspect in the commission of a crime before he is placed under investigation. What the Constitution bars is the compulsory disclosure of incriminating facts or confessions. The rights under Section 12 of the Constitution are guaranteed to preclude the slightest use of coercion by the state as would lead the accused to admit something false, not to prevent him from freely and voluntarily telling the truth.26 In the instant case, after he admitted ownership of the black rope and was asked by Ceniza to tell her everything, JUANITO voluntarily narrated to Ceniza that he raped GENELYN and thereafter threw her body into the ravine. This narration was a spontaneous answer, freely and voluntarily given in an ordinary manner. It was given before he was arrested or placed under custody for investigation in connection with the commission of the offense. It may be stressed further that Cenizas testimony on the facts disclosed to her by JUANITO was confirmed by the findings of Dr. Lumacad. GENELYNs physical resistance and biting of the right shoulder of JUANITO were proved by the wound on JUANITOs right shoulder and scratches on different parts of his body. His admission that he raped GENELYN was likewise corroborated by the fresh lacerations found in GENELYNs vagina. Moreover, JUANITO did not offer any evidence of improper or ulterior motive on the part of Ceniza, which could have compelled her to testify falsely against him. Where there is no evidence to show a doubtful reason or improper motive why a prosecution witness should testify against the accused or falsely implicate him in a crime, the said testimony is trustworthy.27 However, there is merit in JUANITOs claim that his constitutional rights during custodial investigation were violated by Judge Dicon when the latter propounded to him incriminating questions without informing him of his constitutional rights. It is settled that at the moment the accused voluntarily surrenders to, or is arrested by, the police officers, the custodial investigation is deemed to have started. So, he could not thenceforth be asked about his complicity in the offense without the assistance of counsel.28 Judge Dicons claim that no complaint has yet been filed and that neither was he conducting a preliminary investigation deserves scant consideration. The fact remains that at that time JUANITO was already under the custody of the police authorities, who had already taken the statement of the witnesses who were then before Judge Dicon for the administration of their oaths on their statements. While Mosqueda claims that JUANITO was not arrested but was rather brought to the police headquarters on 4 August 1996 for his protection, the records reveal that JUANITO was in fact arrested. If indeed JUANITOs safety was the primordial concern of the police authorities, the need to detain and deprive him of his freedom of action would not have been necessary. Arrest is the taking of a person into custody in order that he may be bound to

answer for the commission of an offense, and it is made by an actual restraint of the person to be arrested, or by his submission to the person making the arrest.29 At any rate, while it is true that JUANITOs extrajudicial confession before Judge Dicon was made without the advice and assistance of counsel and hence inadmissible in evidence, it could however be treated as a verbal admission of the accused, which could be established through the testimonies of the persons who heard it or who conducted the investigation of the accused.30 JUANITOs defense of alibi is futile because of his own admission that he was at the scene of the crime. Alibi is a defense that places an accused at the relevant time of a crime in a place other than the scene involved and so removed therefrom as to render it impossible for him to be the guilty party.31 Likewise, a denial that is unsubstantiated by clear and convincing evidence is a negative and self-serving evidence, which cannot be accorded greater evidentiary weight than the declaration of credible witnesses who testify on affirmative matters.32 Anent the alleged inconsistencies in the details surrounding the recovery of the black rope, the same are irrelevant and trite and do not impair the credibility of the witnesses. Minor inconsistencies and honest lapses strengthen rather than weaken the credibility of witnesses, as they erase doubts that such testimonies have been coached or rehearsed.33 What matters is that the testimonies of witnesses agree on the essential fact that JUANITO was the owner of the black rope and the perpetrator of the crime. Even if JUANITOs confession or admission is disregarded, there is more than enough evidence to support his conviction. The following circumstances constitute an unbroken chain proving beyond reasonable doubt that it was JUANITO who raped and killed GENELYN: 1. At about 5:00 p.m. of 3 August 1996, Jose Camacho bid his daughter GENELYN to borrow some rice from their neighbor Wilfredo Balogbog. GENELYN did so as told, but failed to return home. 2. About 7:30 p.m. of the same day, JUANITO arrived at Ernestos house bringing a sack and kerosene lamp, trembling and apparently weak. 3. Thirty minutes thereafter, JUANITO returned to Ernestos house and told Ernesto that he saw a foot of a dead child at the waterfalls, without disclosing the identity of the deceased. 4. When JUANITO and Ernesto were at Joses house, the former told Jose that it was GENELYNs foot he saw at the waterfalls. 5. GENELYN was found dead at the waterfalls with fresh lacerations on her vaginal wall at 9 and 3 oclock positions. 6. At about 8:00 a.m. of 4 August 1996, Antonio Camacho, Andres Dolero and Edgar Sumalpong recovered at the crime site a black rope, which they turned over to Ceniza, who was then at GENELYNs wake. 7. When Ceniza asked the people around as to who owned the black rope, JUANITO claimed it as his. 8. When Ceniza examined JUANITOs body, she saw a wound on his right shoulder and scratches on different parts of his body.

9. Dr. Lumancads physical examination of JUANITO revealed abrasions, which could have been caused by scratches. Guilt may be established through circumstantial evidence provided that the following requisites concur: (1) there is more than one circumstance; (2) the inferences are based on proven facts; and (3) the combination of all circumstances produces a conviction beyond reasonable doubt of the guilt of the accused.34 All these requisites are present in the case at bar. With JUANITOs guilt for rape with homicide proven beyond reasonable doubt, we are constrained to affirm the death penalty** imposed by the trial court. Article 335 of the Revised Penal Code, as amended by Section 11 of R.A. No. 7659, pertinently provides: "When by reason or on occasion of the rape, a homicide is committed, the penalty shall be death." As to JUANITOs civil liability, prevailing judicial policy has authorized the mandatory award of P100,00035 as civil indemnity ex delicto in cases of rape with homicide (broken down as follows: P50,000 for the death and P50,000 upon the finding of the fact of rape). Thus, if homicide is committed by reason or on occasion of rape, the indemnity in the amount of P100,000 is fully justified and properly commensurate with the seriousness of the said special complex crime. Moral damages in the amount of P50,000 may be additionally awarded to the heirs of the victim without the need for pleading or proof of the basis thereof; the fact that they suffered the trauma of mental, physical and psychological sufferings, which constitutes the basis for moral damages under the Civil Code, is too obvious to still require the recital thereof at the trial.36 WHEREFORE, the decision of the Regional Trial Court, Branch 30, Aurora, Zamboanga Del Sur, in Criminal Case No. AZ-CC-96-156, finding accused-appellant Juanito Baloloy guilty of the crime of rape with homicide and sentencing him to suffer the penalty of death is AFFIRMED with the modification that he is ordered to pay the heirs of Genelyn Camacho P100,000 as indemnity and P50,000 as moral damages. In consonance with Section 25 of R.A. No. 7659 amending Article 83 of the Revised Penal Code, upon finality of this Decision, let the records of this case be forthwith forwarded to the Office of the President for possible exercise of the pardoning power. Costs de oficio. SO ORDERED.