Serrano vs.

Gallant Maritime

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 167614 March 24, 2009

ANTONIO M. SERRANO, Petitioner, vs. Gallant MARITIME SERVICES, INC. and MARLOW NAVIGATION CO., INC., Respondents. DECISION AUSTRIA-MARTINEZ, J.: For decades, the toil of solitary migrants has helped lift entire families and communities out of poverty. Their earnings have built houses, provided health care, equipped schools and planted the seeds of businesses. They have woven together the world by transmitting ideas and knowledge from country to country. They have provided the dynamic human link between cultures, societies and economies. Yet, only recently have we begun to understand not only how much international migration impacts development, but how smart public policies can magnify this effect. United Nations Secretary-General Ban Ki-Moon Global Forum on Migration and Development Brussels, July 10, 20071 For Antonio Serrano (petitioner), a Filipino seafarer, the last clause in the 5th paragraph of Section 10, Republic Act (R.A.) No. 8042,2 to wit: Sec. 10. Money Claims. - x x x In case of termination of overseas employment without just, valid or authorized cause as defined by law or contract, the workers shall be entitled to the full reimbursement of his placement fee with interest of twelve percent (12%) per annum, plus his salaries for the unexpired portion of his employment contract or for three (3) months for every year of the unexpired term, whichever is less. x x x x (Emphasis and underscoring supplied) does not magnify the contributions of overseas Filipino workers (OFWs) to national development, but exacerbates the hardships borne by them by unduly limiting their entitlement in case of illegal dismissal to their lump-sum salary either for the unexpired portion of their employment contract "or for three months for every year of the unexpired term, whichever is less" (subject clause). Petitioner claims that the last clause violates the OFWs' constitutional rights in that it impairs the terms of their contract, deprives them of equal protection and denies them due process.

Serrano vs. Gallant Maritime By way of Petition for Review under Rule 45 of the Rules of Court, petitioner assails the December 8, 2004 Decision3 and April 1, 2005 Resolution4 of the Court of Appeals (CA), which applied the subject clause, entreating this Court to declare the subject clause unconstitutional.
Petitioner was hired by Gallant Maritime Services, Inc. and Marlow Navigation Co., Ltd. (respondents) under a Philippine Overseas Employment Administration (POEA)-approved Contract of Employment with the following terms and conditions: Duration of contract Position Basic monthly salary Hours of work Overtime 12 months Chief Officer US$1,400.00 48.0 hours per week US$700.00 per month

Vacation leave with pay 7.00 days per month5 On March 19, 1998, the date of his departure, petitioner was constrained to accept a downgraded employment contract for the position of Second Officer with a monthly salary of US$1,000.00, upon the assurance and representation of respondents that he would be made Chief Officer by the end of April 1998.6 Respondents did not deliver on their promise to make petitioner Chief Officer.7 Hence, petitioner refused to stay on as Second Officer and was repatriated to the Philippines on May 26, 1998.8 Petitioner's employment contract was for a period of 12 months or from March 19, 1998 up to March 19, 1999, but at the time of his repatriation on May 26, 1998, he had served only two (2) months and seven (7) days of his contract, leaving an unexpired portion of nine (9) months and twenty-three (23) days. Petitioner filed with the Labor Arbiter (LA) a Complaint9 against respondents for constructive dismissal and for payment of his money claims in the total amount of US$26,442.73, broken down as follows: May 27/31, 1998 (5 days) incl. Leave pay June 01/30, 1998 July 01/31, 1998 August 01/31, 1998 Sept. 01/30, 1998 US$ 413.90

2,590.00

2,590.00

2,590.00

2,590.00

Serrano vs. Gallant Maritime

Oct. 01/31, 1998 Nov. 01/30, 1998 Dec. 01/31, 1998 Jan. 01/31, 1999 Feb. 01/28, 1999 Mar. 1/19, 1999 (19 days) incl. leave pay 2,590.00

2,590.00

2,590.00

2,590.00

2,590.00

1,640.00

-------------------------------------------------------------------------------25,382.23 Amount adjusted to chief mate's salary (March 19/31, 1998 to April 1/30, 1998) + 1,060.5010

---------------------------------------------------------------------------------------------TOTAL CLAIM US$ 26,442.7311

as well as moral and exemplary damages and attorney's fees. The LA rendered a Decision dated July 15, 1999, declaring the dismissal of petitioner illegal and awarding him monetary benefits, to wit: WHEREFORE, premises considered, judgment is hereby rendered declaring that the dismissal of the complainant (petitioner) by the respondents in the above-entitled case was illegal and the respondents are hereby ordered to pay the complainant [petitioner], jointly and severally, in Philippine Currency, based on the rate of exchange prevailing at the time of payment, the amount of EIGHT THOUSAND SEVEN HUNDRED

Serrano vs. Gallant Maritime SEVENTY U.S. DOLLARS (US $8,770.00), representing the complainants salary for three (3) months of the unexpired portion of the aforesaid contract of employment.
1avvphi 1

The respondents are likewise ordered to pay the complainant [petitioner], jointly and severally, in Philippine Currency, based on the rate of exchange prevailing at the time of payment, the amount of FORTY FIVE U.S. DOLLARS (US$ 45.00),12 representing the complainants claim for a salary differential. In addition, the respondents are hereby ordered to pay the complainant, jointly and severally, in Philippine Currency, at the exchange rate prevailing at the time of payment, the complainants (petitioner's) claim for attorneys fees equivalent to ten percent (10%) of the total amount awarded to the aforesaid employee under this Decision. The claims of the complainant for moral and exemplary damages are hereby DISMISSED for lack of merit. All other claims are hereby DISMISSED. SO ORDERED.13 (Emphasis supplied) In awarding petitioner a lump-sum salary of US$8,770.00, the LA based his computation on the salary period of three months only -- rather than the entire unexpired portion of nine months and 23 days of petitioner's employment contract - applying the subject clause. However, the LA applied the salary rate of US$2,590.00, consisting of petitioner's "[b]asic salary, US$1,400.00/month + US$700.00/month, fixed overtime pay, + US$490.00/month, vacation leave pay = US$2,590.00/compensation per month."14 Respondents appealed15 to the National Labor Relations Commission (NLRC) to question the finding of the LA that petitioner was illegally dismissed. Petitioner also appealed16 to the NLRC on the sole issue that the LA erred in not applying the ruling of the Court in Triple Integrated Services, Inc. v. National Labor Relations Commission17 that in case of illegal dismissal, OFWs are entitled to their salaries for the unexpired portion of their contracts.18 In a Decision dated June 15, 2000, the NLRC modified the LA Decision, to wit: WHEREFORE, the Decision dated 15 July 1999 is MODIFIED. Respondents are hereby ordered to pay complainant, jointly and severally, in Philippine currency, at the prevailing rate of exchange at the time of payment the following: 1. Three (3) months salary $1,400 x 3 2. Salary differential US$4,245.00 3. 10% Attorneys fees 424.50 TOTAL The other findings are affirmed. SO ORDERED.19 The NLRC corrected the LA's computation of the lump-sum salary awarded to petitioner by reducing the applicable salary rate from US$2,590.00 to US$1,400.00 because R.A. No. 8042 "does not provide for the award of overtime pay, which should be proven to have been actually performed, and for vacation leave pay."20 US$4,669.50 US$4,200.00 45.00

Serrano vs. Gallant Maritime Petitioner filed a Motion for Partial Reconsideration, but this time he questioned the constitutionality of the subject clause.21 The NLRC denied the motion.22
Petitioner filed a Petition for Certiorari23 with the CA, reiterating the constitutional challenge against the subject clause.24 After initially dismissing the petition on a technicality, the CA eventually gave due course to it, as directed by this Court in its Resolution dated August 7, 2003 which granted the petition for certiorari, docketed as G.R. No. 151833, filed by petitioner. In a Decision dated December 8, 2004, the CA affirmed the NLRC ruling on the reduction of the applicable salary rate; however, the CA skirted the constitutional issue raised by petitioner.25 His Motion for Reconsideration26 having been denied by the CA,27 petitioner brings his cause to this Court on the following grounds: I The Court of Appeals and the labor tribunals have decided the case in a way not in accord with applicable decision of the Supreme Court involving similar issue of granting unto the migrant worker back wages equal to the unexpired portion of his contract of employment instead of limiting it to three (3) months II In the alternative that the Court of Appeals and the Labor Tribunals were merely applying their interpretation of Section 10 of Republic Act No. 8042, it is submitted that the Court of Appeals gravely erred in law when it failed to discharge its judicial duty to decide questions of substance not theretofore determined by the Honorable Supreme Court, particularly, the constitutional issues raised by the petitioner on the constitutionality of said law, which unreasonably, unfairly and arbitrarily limits payment of the award for back wages of overseas workers to three (3) months. III Even without considering the constitutional limitations [of] Sec. 10 of Republic Act No. 8042, the Court of Appeals gravely erred in law in excluding from petitioners award the overtime pay and vacation pay provided in his contract since under the contract they form part of his salary.28 On February 26, 2008, petitioner wrote the Court to withdraw his petition as he is already old and sickly, and he intends to make use of the monetary award for his medical treatment and medication.29 Required to comment, counsel for petitioner filed a motion, urging the court to allow partial execution of the undisputed monetary award and, at the same time, praying that the constitutional question be resolved.30 Considering that the parties have filed their respective memoranda, the Court now takes up the full merit of the petition mindful of the extreme importance of the constitutional question raised therein. On the first and second issues The unanimous finding of the LA, NLRC and CA that the dismissal of petitioner was illegal is not disputed. Likewise not disputed is the salary differential of US$45.00 awarded to petitioner in all three fora. What remains disputed is only the computation of the lump-sum salary to be awarded to petitioner by reason of his illegal dismissal. Applying the subject clause, the NLRC and the CA computed the lump-sum salary of petitioner at the monthly rate of US$1,400.00 covering the period of three months out of the unexpired portion of nine months and 23 days of his employment contract or a total of US$4,200.00. Impugning the constitutionality of the subject clause, petitioner contends that, in addition to the US$4,200.00 awarded by the NLRC and the CA, he is entitled to US$21,182.23 more or a total of US$25,382.23, equivalent to his salaries for the entire nine months and 23 days left of his employment contract, computed at the monthly rate of US$2,590.00.31

Serrano vs. Gallant Maritime The Arguments of Petitioner

Petitioner contends that the subject clause is unconstitutional because it unduly impairs the freedom of OFWs to negotiate for and stipulate in their overseas employment contracts a determinate employment period and a fixed salary package.32 It also impinges on the equal protection clause, for it treats OFWs differently from local Filipino workers (local workers) by putting a cap on the amount of lump-sum salary to which OFWs are entitled in case of illegal dismissal, while setting no limit to the same monetary award for local workers when their dismissal is declared illegal; that the disparate treatment is not reasonable as there is no substantial distinction between the two groups;33 and that it defeats Section 18,34 Article II of the Constitution which guarantees the protection of the rights and welfare of all Filipino workers, whether deployed locally or overseas.35 Moreover, petitioner argues that the decisions of the CA and the labor tribunals are not in line with existing jurisprudence on the issue of money claims of illegally dismissed OFWs. Though there are conflicting rulings on this, petitioner urges the Court to sort them out for the guidance of affected OFWs.36 Petitioner further underscores that the insertion of the subject clause into R.A. No. 8042 serves no other purpose but to benefit local placement agencies. He marks the statement made by the Solicitor General in his Memorandum, viz.: Often, placement agencies, their liability being solidary, shoulder the payment of money claims in the event that jurisdiction over the foreign employer is not acquired by the court or if the foreign employer reneges on its obligation. Hence, placement agencies that are in good faith and which fulfill their obligations are unnecessarily penalized for the acts of the foreign employer. To protect them and to promote their continued helpful contribution in deploying Filipino migrant workers, liability for money claims was reduced under Section 10 of R.A. No. 8042. 37(Emphasis supplied) Petitioner argues that in mitigating the solidary liability of placement agencies, the subject clause sacrifices the wellbeing of OFWs. Not only that, the provision makes foreign employers better off than local employers because in cases involving the illegal dismissal of employees, foreign employers are liable for salaries covering a maximum of only three months of the unexpired employment contract while local employers are liable for the full lump-sum salaries of their employees. As petitioner puts it: In terms of practical application, the local employers are not limited to the amount of backwages they have to give their employees they have illegally dismissed, following well-entrenched and unequivocal jurisprudence on the matter. On the other hand, foreign employers will only be limited to giving the illegally dismissed migrant workers the maximum of three (3) months unpaid salaries notwithstanding the unexpired term of the contract that can be more than three (3) months.38 Lastly, petitioner claims that the subject clause violates the due process clause, for it deprives him of the salaries and other emoluments he is entitled to under his fixed-period employment contract.39 The Arguments of Respondents In their Comment and Memorandum, respondents contend that the constitutional issue should not be entertained, for this was belatedly interposed by petitioner in his appeal before the CA, and not at the earliest opportunity, which was when he filed an appeal before the NLRC.40 The Arguments of the Solicitor General The Solicitor General (OSG)41 points out that as R.A. No. 8042 took effect on July 15, 1995, its provisions could not have impaired petitioner's 1998 employment contract. Rather, R.A. No. 8042 having preceded petitioner's contract, the provisions thereof are deemed part of the minimum terms of petitioner's employment, especially on the matter of money claims, as this was not stipulated upon by the parties.42 Moreover, the OSG emphasizes that OFWs and local workers differ in terms of the nature of their employment, such that their rights to monetary benefits must necessarily be treated differently. The OSG enumerates the essential elements that distinguish OFWs from local workers: first, while local workers perform their jobs within Philippine territory, OFWs perform their jobs for foreign employers, over whom it is difficult for our courts to acquire jurisdiction, or

Serrano vs. Gallant Maritime against whom it is almost impossible to enforce judgment; and second, as held in Coyoca v. National Labor Relations Commission43 and Millares v. National Labor Relations Commission,44 OFWs are contractual employees who can never acquire regular employment status, unlike local workers who are or can become regular employees. Hence, the OSG posits that there are rights and privileges exclusive to local workers, but not available to OFWs; that these peculiarities make for a reasonable and valid basis for the differentiated treatment under the subject clause of the money claims of OFWs who are illegally dismissed. Thus, the provision does not violate the equal protection clause nor Section 18, Article II of the Constitution.45
Lastly, the OSG defends the rationale behind the subject clause as a police power measure adopted to mitigate the solidary liability of placement agencies for this "redounds to the benefit of the migrant workers whose welfare the government seeks to promote. The survival of legitimate placement agencies helps [assure] the government that migrant workers are properly deployed and are employed under decent and humane conditions."46 The Court's Ruling The Court sustains petitioner on the first and second issues. When the Court is called upon to exercise its power of judicial review of the acts of its co-equals, such as the Congress, it does so only when these conditions obtain: (1) that there is an actual case or controversy involving a conflict of rights susceptible of judicial determination;47 (2) that the constitutional question is raised by a proper party48 and at the earliest opportunity;49 and (3) that the constitutional question is the very lis mota of the case,50otherwise the Court will dismiss the case or decide the same on some other ground.51 Without a doubt, there exists in this case an actual controversy directly involving petitioner who is personally aggrieved that the labor tribunals and the CA computed his monetary award based on the salary period of three months only as provided under the subject clause. The constitutional challenge is also timely. It should be borne in mind that the requirement that a constitutional issue be raised at the earliest opportunity entails the interposition of the issue in the pleadings before acompetent court, such that, if the issue is not raised in the pleadings before that competent court, it cannot be considered at the trial and, if not considered in the trial, it cannot be considered on appeal.52 Records disclose that the issue on the constitutionality of the subject clause was first raised, not in petitioner's appeal with the NLRC, but in his Motion for Partial Reconsideration with said labor tribunal,53 and reiterated in his Petition forCertiorari before the CA.54 Nonetheless, the issue is deemed seasonably raised because it is not the NLRC but the CA which has the competence to resolve the constitutional issue. The NLRC is a labor tribunal that merely performs a quasi-judicial function its function in the present case is limited to determining questions of fact to which the legislative policy of R.A. No. 8042 is to be applied and to resolving such questions in accordance with the standards laid down by the law itself;55 thus, its foremost function is to administer and enforce R.A. No. 8042, and not to inquire into the validity of its provisions. The CA, on the other hand, is vested with the power of judicial review or the power to declare unconstitutional a law or a provision thereof, such as the subject clause.56Petitioner's interposition of the constitutional issue before the CA was undoubtedly seasonable. The CA was therefore remiss in failing to take up the issue in its decision. The third condition that the constitutional issue be critical to the resolution of the case likewise obtains because the monetary claim of petitioner to his lump-sum salary for the entire unexpired portion of his 12-month employment contract, and not just for a period of three months, strikes at the very core of the subject clause. Thus, the stage is all set for the determination of the constitutionality of the subject clause. Does the subject clause violate Section 10, Article III of the Constitution on non-impairment of contracts? The answer is in the negative. Petitioner's claim that the subject clause unduly interferes with the stipulations in his contract on the term of his employment and the fixed salary package he will receive57 is not tenable.

Serrano vs. Gallant Maritime Section 10, Article III of the Constitution provides:
No law impairing the obligation of contracts shall be passed. The prohibition is aligned with the general principle that laws newly enacted have only a prospective operation,58and cannot affect acts or contracts already perfected;59 however, as to laws already in existence, their provisions are read into contracts and deemed a part thereof.60 Thus, the non-impairment clause under Section 10, Article II is limited in application to laws about to be enacted that would in any way derogate from existing acts or contracts by enlarging, abridging or in any manner changing the intention of the parties thereto. As aptly observed by the OSG, the enactment of R.A. No. 8042 in 1995 preceded the execution of the employment contract between petitioner and respondents in 1998. Hence, it cannot be argued that R.A. No. 8042, particularly the subject clause, impaired the employment contract of the parties. Rather, when the parties executed their 1998 employment contract, they were deemed to have incorporated into it all the provisions of R.A. No. 8042. But even if the Court were to disregard the timeline, the subject clause may not be declared unconstitutional on the ground that it impinges on the impairment clause, for the law was enacted in the exercise of the police power of the State to regulate a business, profession or calling, particularly the recruitment and deployment of OFWs, with the noble end in view of ensuring respect for the dignity and well-being of OFWs wherever they may be employed.61 Police power legislations adopted by the State to promote the health, morals, peace, education, good order, safety, and general welfare of the people are generally applicable not only to future contracts but even to those already in existence, for all private contracts must yield to the superior and legitimate measures taken by the State to promote public welfare.62 Does the subject clause violate Section 1, Article III of the Constitution, and Section 18, Article II and Section 3, Article XIII on labor as a protected sector? The answer is in the affirmative. Section 1, Article III of the Constitution guarantees: 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 law. Section 18,63 Article II and Section 3,64 Article XIII accord all members of the labor sector, without distinction as to place of deployment, full protection of their rights and welfare. To Filipino workers, the rights guaranteed under the foregoing constitutional provisions translate to economic security and parity: all monetary benefits should be equally enjoyed by workers of similar category, while all monetary obligations should be borne by them in equal degree; none should be denied the protection of the laws which is enjoyed by, or spared the burden imposed on, others in like circumstances.65 Such rights are not absolute but subject to the inherent power of Congress to incorporate, when it sees fit, a system of classification into its legislation; however, to be valid, the classification must comply with these requirements: 1) it is based on substantial distinctions; 2) it is germane to the purposes of the law; 3) it is not limited to existing conditions only; and 4) it applies equally to all members of the class.66 There are three levels of scrutiny at which the Court reviews the constitutionality of a classification embodied in a law: a) the deferential or rational basis scrutiny in which the challenged classification needs only be shown to be rationally related to serving a legitimate state interest;67 b) the middle-tier or intermediate scrutiny in which the government must show that the challenged classification serves an important state interest and that the classification is at least substantially related to serving that interest;68 and c) strict judicial scrutiny69 in which a legislative classification which impermissibly interferes with the exercise of a fundamental right70 or operates to the peculiar disadvantage of a suspect class71 is presumed unconstitutional, and the burden is upon the government to prove that the classification is necessary to achieve a compelling state interest and that it is the least restrictive means to protect such interest.72

Serrano vs. Gallant Maritime Under American jurisprudence, strict judicial scrutiny is triggered by suspect classifications73 based on race74 or gender75 but not when the classification is drawn along income categories.76
It is different in the Philippine setting. In Central Bank (now Bangko Sentral ng Pilipinas) Employee Association, Inc. v. Bangko Sentral ng Pilipinas,77 the constitutionality of a provision in the charter of the Bangko Sentral ng Pilipinas (BSP), a government financial institution (GFI), was challenged for maintaining its rank-and-file employees under the Salary Standardization Law (SSL), even when the rank-and-file employees of other GFIs had been exempted from the SSL by their respective charters. Finding that the disputed provision contained a suspect classification based on salary grade, the Court deliberately employed the standard of strict judicial scrutiny in its review of the constitutionality of said provision. More significantly, it was in this case that the Court revealed the broad outlines of its judicial philosophy, to wit: Congress retains its wide discretion in providing for a valid classification, and its policies should be accorded recognition and respect by the courts of justice except when they run afoul of the Constitution. The deference stops where the classification violates a fundamental right, or prejudices persons accorded special protection by the Constitution. When these violations arise, this Court must discharge its primary role as the vanguard of constitutional guaranties, and require a stricter and more exacting adherence to constitutional limitations. Rational basis should not suffice. Admittedly, the view that prejudice to persons accorded special protection by the Constitution requires a stricter judicial scrutiny finds no support in American or English jurisprudence. Nevertheless, these foreign decisions and authorities are not per se controlling in this jurisdiction. At best, they are persuasive and have been used to support many of our decisions. We should not place undue and fawning reliance upon them and regard them as indispensable mental crutches without which we cannot come to our own decisions through the employment of our own endowments. We live in a different ambience and must decide our own problems in the light of our own interests and needs, and of our qualities and even idiosyncrasies as a people, and always with our own concept of law and justice. Our laws must be construed in accordance with the intention of our own lawmakers and such intent may be deduced from the language of each law and the context of other local legislation related thereto. More importantly, they must be construed to serve our own public interest which is the be-all and the end-all of all our laws. And it need not be stressed that our public interest is distinct and different from others. xxxx Further, the quest for a better and more "equal" world calls for the use of equal protection as a tool of effective judicial intervention. Equality is one ideal which cries out for bold attention and action in the Constitution. The Preamble proclaims "equality" as an ideal precisely in protest against crushing inequities in Philippine society. The command to promote social justice in Article II, Section 10, in "all phases of national development," further explicitated in Article XIII, are clear commands to the State to take affirmative action in the direction of greater equality. x x x [T]here is thus in the Philippine Constitution no lack of doctrinal support for a more vigorous state effort towards achieving a reasonable measure of equality. Our present Constitution has gone further in guaranteeing vital social and economic rights to marginalized groups of society, including labor. Under the policy of social justice, the law bends over backward to accommodate the interests of the working class on the humane justification that those with less privilege in life should have more in law. And the obligation to afford protection to labor is incumbent not only on the legislative and executive branches but also on the judiciary to translate this pledge into a living reality. Social justice calls for the humanization of laws and the equalization of social and economic forces by the State so that justice in its rational and objectively secular conception may at least be approximated. xxxx Under most circumstances, the Court will exercise judicial restraint in deciding questions of constitutionality, recognizing the broad discretion given to Congress in exercising its legislative power. Judicial scrutiny would be based on the "rational basis" test, and the legislative discretion would be given deferential treatment.

Serrano vs. Gallant Maritime But if the challenge to the statute is premised on the denial of a fundamental right, or the perpetuation of prejudice against persons favored by the Constitution with special protection, judicial scrutiny ought to be more strict. A weak and watered down view would call for the abdication of this Courts solemn duty to strike down any law repugnant to the Constitution and the rights it enshrines. This is true whether the actor committing the unconstitutional act is a private person or the government itself or one of its instrumentalities. Oppressive acts will be struck down regardless of the character or nature of the actor.
xxxx In the case at bar, the challenged proviso operates on the basis of the salary grade or officer-employee status. It is akin to a distinction based on economic class and status, with the higher grades as recipients of a benefit specifically withheld from the lower grades. Officers of the BSP now receive higher compensation packages that are competitive with the industry, while the poorer, low-salaried employees are limited to the rates prescribed by the SSL. The implications are quite disturbing: BSP rank-and-file employees are paid the strictly regimented rates of the SSL while employees higher in rank - possessing higher and better education and opportunities for career advancement - are given higher compensation packages to entice them to stay. Considering that majority, if not all, the rank-and-file employees consist of people whose status and rank in life are less and limited, especially in terms of job marketability, it is they - and not the officers - who have the real economic and financial need for the adjustment . This is in accord with the policy of the Constitution "to free the people from poverty, provide adequate social services, extend to them a decent standard of living, and improve the quality of life for all." Any act of Congress that runs counter to this constitutional desideratum deserves strict scrutiny by this Court before it can pass muster. (Emphasis supplied) Imbued with the same sense of "obligation to afford protection to labor," the Court in the present case also employs the standard of strict judicial scrutiny, for it perceives in the subject clause a suspect classification prejudicial to OFWs. Upon cursory reading, the subject clause appears facially neutral, for it applies to all OFWs. However, a closer examination reveals that the subject clause has a discriminatory intent against, and an invidious impact on, OFWs at two levels: First, OFWs with employment contracts of less than one year vis--vis OFWs with employment contracts ofone year or more; Second, among OFWs with employment contracts of more than one year; and Third, OFWs vis--vis local workers with fixed-period employment; OFWs with employment contracts of less than one year vis--vis OFWs with employment contracts of one year or more As pointed out by petitioner,78 it was in Marsaman Manning Agency, Inc. v. National Labor Relations Commission79 (Second Division, 1999) that the Court laid down the following rules on the application of the periods prescribed under Section 10(5) of R.A. No. 804, to wit: A plain reading of Sec. 10 clearly reveals that the choice of which amount to award an illegally dismissed overseas contract worker, i.e., whether his salaries for the unexpired portion of his employment contract or three (3) months salary for every year of the unexpired term, whichever is less, comes into play only when the employment contract concerned has a term of at least one (1) year or more. This is evident from the words "for every year of the unexpired term" which follows the words "salaries x x x for three months."To follow petitioners thinking that private respondent is entitled to three (3) months salary only simply because it is the lesser amount is to completely disregard and overlook some words used in the statute while giving effect to some. This is contrary to the well-established rule in legal hermeneutics that in interpreting a statute, care should be taken that every part or word thereof be given effect since the law-making body is presumed to know the meaning of the words employed in the statue and to have used them advisedly. Ut res magis valeat quam pereat.80 (Emphasis supplied) In Marsaman, the OFW involved was illegally dismissed two months into his 10-month contract, but was awarded his salaries for the remaining 8 months and 6 days of his contract.

Serrano vs. Gallant Maritime Prior to Marsaman, however, there were two cases in which the Court made conflicting rulings on Section 10(5). One was Asian Center for Career and Employment System and Services v. National Labor Relations Commission(Second Division, October 1998),81 which involved an OFW who was awarded a two-year employment contract,but was dismissed after working for one year and two months. The LA declared his dismissal illegal and awarded him SR13,600.00 as lump-sum salary covering eight months, the unexpired portion of his contract. On appeal, the Court reduced the award to SR3,600.00 equivalent to his three months salary, this being the lesser value, to wit:
Under Section 10 of R.A. No. 8042, a worker dismissed from overseas employment without just, valid or authorized cause is entitled to his salary for the unexpired portion of his employment contract or for three (3) months for every year of the unexpired term, whichever is less. In the case at bar, the unexpired portion of private respondents employment contract is eight (8) months. Private respondent should therefore be paid his basic salary corresponding to three (3) months or a total of SR3,600.82 Another was Triple-Eight Integrated Services, Inc. v. National Labor Relations Commission (Third Division, December 1998),83 which involved an OFW (therein respondent Erlinda Osdana) who was originally granted a 12-month contract, which was deemed renewed for another 12 months. After serving for one year and seven-and-a-half months, respondent Osdana was illegally dismissed, and the Court awarded her salaries for the entire unexpired portion of four and one-half months of her contract. The Marsaman interpretation of Section 10(5) has since been adopted in the following cases: Case Title Contract Period Period of Service Unexpired Period Period Applied in the Computation of the Monetary Award 4 months 4 months

Skippers v. Maguad84 Bahia Shipping v. Reynaldo Chua 85 Centennial Transmarine v. dela Cruz l86 Talidano v. Falcon87 Univan v. CA88 Oriental v. CA89 PCL v. NLRC90 Olarte v. Nayona91 JSS v.Ferrer92 Pentagon v. Adelantar93 Phil. Employ v.

6 months 9 months

2 months 8 months

4 months 4 months

9 months

4 months

5 months

5 months

12 months 12 months 12 months 12 months 12 months 12 months 12 months 12 months

3 months 3 months more than 2 months more than 2 months 21 days 16 days 9 months and 7 days 10 months

9 months 9 months 10 months more or less 9 months 11 months and 9 days 11 months and 24 days 2 months and 23 days 2 months

3 months 3 months 3 months 3 months 3 months 3 months 2 months and 23 days Unexpired portion

Serrano vs. Gallant Maritime

Paramio, et al.94 Flourish Maritime v. Almanzor 95 Athenna Manpower v. Villanos 96 2 years 26 days 23 months and 4 days 1 year, 9 months and 28 days 6 months or 3 months for each year of contract 6 months or 3 months for each year of contract

1 year, 10 months and 28 days

1 month

As the foregoing matrix readily shows, the subject clause classifies OFWs into two categories. The first category includes OFWs with fixed-period employment contracts of less than one year; in case of illegal dismissal, they are entitled to their salaries for the entire unexpired portion of their contract. The second category consists of OFWs with fixed-period employment contracts of one year or more; in case of illegal dismissal, they are entitled to monetary award equivalent to only 3 months of the unexpired portion of their contracts. The disparity in the treatment of these two groups cannot be discounted. In Skippers, the respondent OFW worked for only 2 months out of his 6-month contract, but was awarded his salaries for the remaining 4 months. In contrast, the respondent OFWs in Oriental and PCL who had also worked for about 2 months out of their 12-month contracts were awarded their salaries for only 3 months of the unexpired portion of their contracts. Even the OFWs involved in Talidano and Univan who had worked for a longer period of 3 months out of their 12-month contracts before being illegally dismissed were awarded their salaries for only 3 months. To illustrate the disparity even more vividly, the Court assumes a hypothetical OFW-A with an employment contract of 10 months at a monthly salary rate of US$1,000.00 and a hypothetical OFW-B with an employment contract of 15 months with the same monthly salary rate of US$1,000.00. Both commenced work on the same day and under the same employer, and were illegally dismissed after one month of work. Under the subject clause, OFW-A will be entitled to US$9,000.00, equivalent to his salaries for the remaining 9 months of his contract, whereas OFW-B will be entitled to only US$3,000.00, equivalent to his salaries for 3 months of the unexpired portion of his contract, instead of US$14,000.00 for the unexpired portion of 14 months of his contract, as the US$3,000.00 is the lesser amount. The disparity becomes more aggravating when the Court takes into account jurisprudence that, prior to the effectivity of R.A. No. 8042 on July 14, 1995,97 illegally dismissed OFWs, no matter how long the period of their employment contracts, were entitled to their salaries for the entire unexpired portions of their contracts. The matrix below speaks for itself: Case Title Contract Period 2 years 2 years 2 years 2 years 2 years 12 months Period of Service 2 months 7 days 9 months 2 months 5 months 4 months Unexpired Period 22 months 23 months and 23 days 15 months 22 months 19 months 8 months Period Applied in the Computation of the Monetary Award 22 months 23 months and 23 days 15 months 22 months 19 months 8 months

ATCI v. CA, et al.98 Phil. Integrated v. NLRC99 JGB v. NLC100 Agoy v. NLRC101 EDI v. NLRC, et al.102 Barros v. NLRC, et al.103

Serrano vs. Gallant Maritime

Philippine Transmarine v. Carilla104 12 months 6 months and 22 days 5 months and 18 days 5 months and 18 days

It is plain that prior to R.A. No. 8042, all OFWs, regardless of contract periods or the unexpired portions thereof, were treated alike in terms of the computation of their monetary benefits in case of illegal dismissal. Their claims were subjected to a uniform rule of computation: their basic salaries multiplied by the entire unexpired portion of their employment contracts. The enactment of the subject clause in R.A. No. 8042 introduced a differentiated rule of computation of the money claims of illegally dismissed OFWs based on their employment periods, in the process singling out one category whose contracts have an unexpired portion of one year or more and subjecting them to the peculiar disadvantage of having their monetary awards limited to their salaries for 3 months or for the unexpired portion thereof, whichever is less, but all the while sparing the other category from such prejudice, simply because the latter's unexpired contracts fall short of one year. Among OFWs With Employment Contracts of More Than One Year Upon closer examination of the terminology employed in the subject clause, the Court now has misgivings on the accuracy of the Marsaman interpretation. The Court notes that the subject clause "or for three (3) months for every year of the unexpired term, whichever is less" contains the qualifying phrases "every year" and "unexpired term." By its ordinary meaning, the word "term" means a limited or definite extent of time.105 Corollarily, that "every year" is but part of an "unexpired term" is significant in many ways: first, the unexpired term must be at least one year, for if it were any shorter, there would be no occasion for such unexpired term to be measured by every year; and second, the original term must be more than one year, for otherwise, whatever would be the unexpired term thereof will not reach even a year. Consequently, the more decisive factor in the determination of when the subject clause "for three (3) months forevery year of the unexpired term, whichever is less" shall apply is not the length of the original contract period as held in Marsaman,106 but the length of the unexpired portion of the contract period -- the subject clause applies in cases when the unexpired portion of the contract period is at least one year, which arithmetically requires that the original contract period be more than one year. Viewed in that light, the subject clause creates a sub-layer of discrimination among OFWs whose contract periods are for more than one year: those who are illegally dismissed with less than one year left in their contracts shall be entitled to their salaries for the entire unexpired portion thereof, while those who are illegally dismissed with one year or more remaining in their contracts shall be covered by the subject clause, and their monetary benefits limited to their salaries for three months only. To concretely illustrate the application of the foregoing interpretation of the subject clause, the Court assumes hypothetical OFW-C and OFW-D, who each have a 24-month contract at a salary rate of US$1,000.00 per month. OFW-C is illegally dismissed on the 12th month, and OFW-D, on the 13th month. Considering that there is at least 12 months remaining in the contract period of OFW-C, the subject clause applies to the computation of the latter's monetary benefits. Thus, OFW-C will be entitled, not to US$12,000,00 or the latter's total salaries for the 12 months unexpired portion of the contract, but to the lesser amount of US$3,000.00 or the latter's salaries for 3 months out of the 12-month unexpired term of the contract. On the other hand, OFW-D is spared from the effects of the subject clause, for there are only 11 months left in the latter's contract period. Thus, OFW-D will be entitled to US$11,000.00, which is equivalent to his/her total salaries for the entire 11-month unexpired portion. OFWs vis--vis Local Workers With Fixed-Period Employment As discussed earlier, prior to R.A. No. 8042, a uniform system of computation of the monetary awards of illegally dismissed OFWs was in place. This uniform system was applicable even to local workers with fixed-term employment.107

Serrano vs. Gallant Maritime The earliest rule prescribing a uniform system of computation was actually Article 299 of the Code of Commerce (1888),108 to wit:
Article 299. If the contracts between the merchants and their shop clerks and employees should have been made of a fixed period, none of the contracting parties, without the consent of the other, may withdraw from the fulfillment of said contract until the termination of the period agreed upon. Persons violating this clause shall be subject to indemnify the loss and damage suffered, with the exception of the provisions contained in the following articles. In Reyes v. The Compaia Maritima,109 the Court applied the foregoing provision to determine the liability of a shipping company for the illegal discharge of its managers prior to the expiration of their fixed-term employment. The Court therein held the shipping company liable for the salaries of its managers for the remainder of their fixed-term employment. There is a more specific rule as far as seafarers are concerned: Article 605 of the Code of Commerce which provides: Article 605. If the contracts of the captain and members of the crew with the agent should be for a definite period or voyage, they cannot be discharged until the fulfillment of their contracts, except for reasons of insubordination in serious matters, robbery, theft, habitual drunkenness, and damage caused to the vessel or to its cargo by malice or manifest or proven negligence. Article 605 was applied to Madrigal Shipping Company, Inc. v. Ogilvie,110 in which the Court held the shipping company liable for the salaries and subsistence allowance of its illegally dismissed employees for the entire unexpired portion of their employment contracts. While Article 605 has remained good law up to the present,111 Article 299 of the Code of Commerce was replaced by Art. 1586 of the Civil Code of 1889, to wit: Article 1586. Field hands, mechanics, artisans, and other laborers hired for a certain time and for a certain work cannot leave or be dismissed without sufficient cause, before the fulfillment of the contract. (Emphasis supplied.) Citing Manresa, the Court in Lemoine v. Alkan112 read the disjunctive "or" in Article 1586 as a conjunctive "and" so as to apply the provision to local workers who are employed for a time certain although for no particular skill. This interpretation of Article 1586 was reiterated in Garcia Palomar v. Hotel de France Company.113 And in both Lemoine and Palomar, the Court adopted the general principle that in actions for wrongful discharge founded on Article 1586, local workers are entitled to recover damages to the extent of the amount stipulated to be paid to them by the terms of their contract. On the computation of the amount of such damages, the Court in Aldaz v. Gay114 held: The doctrine is well-established in American jurisprudence, and nothing has been brought to our attention to the contrary under Spanish jurisprudence, that when an employee is wrongfully discharged it is his duty to seek other employment of the same kind in the same community, for the purpose of reducing the damages resulting from such wrongful discharge. However, while this is the general rule, the burden of showing that he failed to make an effort to secure other employment of a like nature, and that other employment of a like nature was obtainable, is upon the defendant. When an employee is wrongfully discharged under a contract of employment his prima facie damage is the amount which he would be entitled to had he continued in such employment until the termination of the period. (Howard vs. Daly, 61 N. Y., 362; Allen vs. Whitlark, 99 Mich., 492; Farrell vs. School District No. 2, 98 Mich., 43.)115 (Emphasis supplied) On August 30, 1950, the New Civil Code took effect with new provisions on fixed-term employment: Section 2 (Obligations with a Period), Chapter 3, Title I, and Sections 2 (Contract of Labor) and 3 (Contract for a Piece of Work), Chapter 3, Title VIII, Book IV.116 Much like Article 1586 of the Civil Code of 1889, the new provisions of the Civil Code do not expressly provide for the remedies available to a fixed-term worker who is illegally discharged. However, it is noted that in Mackay Radio & Telegraph Co., Inc. v. Rich,117 the Court carried over the principles on the payment of damages underlying Article 1586 of the Civil Code of 1889 and applied the same to a case involving the illegal

Serrano vs. Gallant Maritime discharge of a local worker whose fixed-period employment contract was entered into in 1952, when the new Civil Code was already in effect.118
More significantly, the same principles were applied to cases involving overseas Filipino workers whose fixed-term employment contracts were illegally terminated, such as in First Asian Trans & Shipping Agency, Inc. v. Ople,119involving seafarers who were illegally discharged. In Teknika Skills and Trade Services, Inc. v. National Labor Relations Commission,120 an OFW who was illegally dismissed prior to the expiration of her fixed-period employment contract as a baby sitter, was awarded salaries corresponding to the unexpired portion of her contract. The Court arrived at the same ruling in Anderson v. National Labor Relations Commission,121 which involved a foreman hired in 1988 in Saudi Arabia for a fixed term of two years, but who was illegally dismissed after only nine months on the job -the Court awarded him salaries corresponding to 15 months, the unexpired portion of his contract. In Asia World Recruitment, Inc. v. National Labor Relations Commission,122 a Filipino working as a security officer in 1989 in Angola was awarded his salaries for the remaining period of his 12-month contract after he was wrongfully discharged. Finally, in Vinta Maritime Co., Inc. v. National Labor Relations Commission,123 an OFW whose 12-month contract was illegally cut short in the second month was declared entitled to his salaries for the remaining 10 months of his contract. In sum, prior to R.A. No. 8042, OFWs and local workers with fixed-term employment who were illegally discharged were treated alike in terms of the computation of their money claims: they were uniformly entitled to their salaries for the entire unexpired portions of their contracts. But with the enactment of R.A. No. 8042, specifically the adoption of the subject clause, illegally dismissed OFWs with an unexpired portion of one year or more in their employment contract have since been differently treated in that their money claims are subject to a 3-month cap, whereas no such limitation is imposed on local workers with fixed-term employment. The Court concludes that the subject clause contains a suspect classification in that, in the computation of the monetary benefits of fixed-term employees who are illegally discharged, it imposes a 3-month cap on the claim of OFWs with an unexpired portion of one year or more in their contracts, but none on the claims of other OFWs or local workers with fixed-term employment. The subject clause singles out one classification of OFWs and burdens it with a peculiar disadvantage. There being a suspect classification involving a vulnerable sector protected by the Constitution, the Court now subjects the classification to a strict judicial scrutiny, and determines whether it serves a compelling state interest through the least restrictive means. What constitutes compelling state interest is measured by the scale of rights and powers arrayed in the Constitution and calibrated by history.124 It is akin to the paramount interest of the state125 for which some individual liberties must give way, such as the public interest in safeguarding health or maintaining medical standards,126 or in maintaining access to information on matters of public concern.127 In the present case, the Court dug deep into the records but found no compelling state interest that the subject clause may possibly serve. The OSG defends the subject clause as a police power measure "designed to protect the employment of Filipino seafarers overseas x x x. By limiting the liability to three months [sic], Filipino seafarers have better chance of getting hired by foreign employers." The limitation also protects the interest of local placement agencies, which otherwise may be made to shoulder millions of pesos in "termination pay."128 The OSG explained further: Often, placement agencies, their liability being solidary, shoulder the payment of money claims in the event that jurisdiction over the foreign employer is not acquired by the court or if the foreign employer reneges on its obligation. Hence, placement agencies that are in good faith and which fulfill their obligations are unnecessarily penalized for the acts of the foreign employer. To protect them and to promote their continued helpful contribution in deploying Filipino migrant workers, liability for money are reduced under Section 10 of RA 8042.

Serrano vs. Gallant Maritime This measure redounds to the benefit of the migrant workers whose welfare the government seeks to promote. The survival of legitimate placement agencies helps [assure] the government that migrant workers are properly deployed and are employed under decent and humane conditions.129 (Emphasis supplied)
However, nowhere in the Comment or Memorandum does the OSG cite the source of its perception of the state interest sought to be served by the subject clause. The OSG locates the purpose of R.A. No. 8042 in the speech of Rep. Bonifacio Gallego in sponsorship of House Bill No. 14314 (HB 14314), from which the law originated;130 but the speech makes no reference to the underlying reason for the adoption of the subject clause. That is only natural for none of the 29 provisions in HB 14314 resembles the subject clause. On the other hand, Senate Bill No. 2077 (SB 2077) contains a provision on money claims, to wit: Sec. 10. Money Claims. - Notwithstanding any provision of law to the contrary, the Labor Arbiters of the National Labor Relations Commission (NLRC) shall have the original and exclusive jurisdiction to hear and decide, within ninety (90) calendar days after the filing of the complaint, the claims arising out of an employer-employee relationship or by virtue of the complaint, the claim arising out of an employer-employee relationship or by virtue of any law or contract involving Filipino workers for overseas employment including claims for actual, moral, exemplary and other forms of damages. The liability of the principal and the recruitment/placement agency or any and all claims under this Section shall be joint and several. Any compromise/amicable settlement or voluntary agreement on any money claims exclusive of damages under this Section shall not be less than fifty percent (50%) of such money claims: Provided, That any installment payments, if applicable, to satisfy any such compromise or voluntary settlement shall not be more than two (2) months. Any compromise/voluntary agreement in violation of this paragraph shall be null and void. Non-compliance with the mandatory period for resolutions of cases provided under this Section shall subject the responsible officials to any or all of the following penalties: (1) The salary of any such official who fails to render his decision or resolution within the prescribed period shall be, or caused to be, withheld until the said official complies therewith; (2) Suspension for not more than ninety (90) days; or (3) Dismissal from the service with disqualification to hold any appointive public office for five (5) years. Provided, however, That the penalties herein provided shall be without prejudice to any liability which any such official may have incurred under other existing laws or rules and regulations as a consequence of violating the provisions of this paragraph. But significantly, Section 10 of SB 2077 does not provide for any rule on the computation of money claims. A rule on the computation of money claims containing the subject clause was inserted and eventually adopted as the 5th paragraph of Section 10 of R.A. No. 8042. The Court examined the rationale of the subject clause in the transcripts of the "Bicameral Conference Committee (Conference Committee) Meetings on the Magna Carta on OCWs (Disagreeing Provisions of Senate Bill No. 2077 and House Bill No. 14314)." However, the Court finds no discernible state interest, let alone a compelling one, that is sought to be protected or advanced by the adoption of the subject clause. In fine, the Government has failed to discharge its burden of proving the existence of a compelling state interest that would justify the perpetuation of the discrimination against OFWs under the subject clause.

Serrano vs. Gallant Maritime Assuming that, as advanced by the OSG, the purpose of the subject clause is to protect the employment of OFWs by mitigating the solidary liability of placement agencies, such callous and cavalier rationale will have to be rejected. There can never be a justification for any form of government action that alleviates the burden of one sector, but imposes the same burden on another sector, especially when the favored sector is composed of private businesses such as placement agencies, while the disadvantaged sector is composed of OFWs whose protection no less than the Constitution commands. The idea that private business interest can be elevated to the level of a compelling state interest is odious.
Moreover, even if the purpose of the subject clause is to lessen the solidary liability of placement agencies vis-avis their foreign principals, there are mechanisms already in place that can be employed to achieve that purpose without infringing on the constitutional rights of OFWs. The POEA Rules and Regulations Governing the Recruitment and Employment of Land-Based Overseas Workers, dated February 4, 2002, imposes administrative disciplinary measures on erring foreign employers who default on their contractual obligations to migrant workers and/or their Philippine agents. These disciplinary measures range from temporary disqualification to preventive suspension. The POEA Rules and Regulations Governing the Recruitment and Employment of Seafarers, dated May 23, 2003, contains similar administrative disciplinary measures against erring foreign employers. Resort to these administrative measures is undoubtedly the less restrictive means of aiding local placement agencies in enforcing the solidary liability of their foreign principals. Thus, the subject clause in the 5th paragraph of Section 10 of R.A. No. 8042 is violative of the right of petitioner and other OFWs to equal protection.
1avvphi1

Further, there would be certain misgivings if one is to approach the declaration of the unconstitutionality of the subject clause from the lone perspective that the clause directly violates state policy on labor under Section 3,131Article XIII of the Constitution. While all the provisions of the 1987 Constitution are presumed self-executing,132 there are some which this Court has declared not judicially enforceable, Article XIII being one,133 particularly Section 3 thereof, the nature of which, this Court, in Agabon v. National Labor Relations Commission,134 has described to be not self-actuating: Thus, the constitutional mandates of protection to labor and security of tenure may be deemed as self-executing in the sense that these are automatically acknowledged and observed without need for any enabling legislation. However, to declare that the constitutional provisions are enough to guarantee the full exercise of the rights embodied therein, and the realization of ideals therein expressed, would be impractical, if not unrealistic. The espousal of such view presents the dangerous tendency of being overbroad and exaggerated. The guarantees of "full protection to labor" and "security of tenure", when examined in isolation, are facially unqualified, and the broadest interpretation possible suggests a blanket shield in favor of labor against any form of removal regardless of circumstance. This interpretation implies an unimpeachable right to continued employment-a utopian notion, doubtless-but still hardly within the contemplation of the framers. Subsequent legislation is still needed to define the parameters of these guaranteed rights to ensure the protection and promotion, not only the rights of the labor sector, but of the employers' as well. Without specific and pertinent legislation, judicial bodies will be at a loss, formulating their own conclusion to approximate at least the aims of the Constitution. Ultimately, therefore, Section 3 of Article XIII cannot, on its own, be a source of a positive enforceable rightto stave off the dismissal of an employee for just cause owing to the failure to serve proper notice or hearing. As manifested by several framers of the 1987 Constitution, the provisions on social justice require legislative enactments for their enforceability.135 (Emphasis added) Thus, Section 3, Article XIII cannot be treated as a principal source of direct enforceable rights, for the violation of which the questioned clause may be declared unconstitutional. It may unwittingly risk opening the floodgates of litigation to every worker or union over every conceivable violation of so broad a concept as social justice for labor.

Serrano vs. Gallant Maritime It must be stressed that Section 3, Article XIII does not directly bestow on the working class any actual enforceable right, but merely clothes it with the status of a sector for whom the Constitution urges protection through executive or legislative action and judicial recognition. Its utility is best limited to being an impetus not just for the executive and legislative departments, but for the judiciary as well, to protect the welfare of the working class. And it was in fact consistent with that constitutional agenda that the Court in Central Bank (now Bangko Sentral ng Pilipinas) Employee Association, Inc. v. Bangko Sentral ng Pilipinas, penned by then Associate Justice now Chief Justice Reynato S. Puno, formulated the judicial precept that when the challenge to a statute is premised on the perpetuation of prejudice against persons favored by the Constitution with special protection -- such as the working class or a section thereof -- the Court may recognize the existence of a suspect classification and subject the same to strict judicial scrutiny.
The view that the concepts of suspect classification and strict judicial scrutiny formulated in Central Bank Employee Association exaggerate the significance of Section 3, Article XIII is a groundless apprehension. Central Bank applied Article XIII in conjunction with the equal protection clause. Article XIII, by itself, without the application of the equal protection clause, has no life or force of its own as elucidated in Agabon. Along the same line of reasoning, the Court further holds that the subject clause violates petitioner's right to substantive due process, for it deprives him of property, consisting of monetary benefits, without any existing valid governmental purpose.136 The argument of the Solicitor General, that the actual purpose of the subject clause of limiting the entitlement of OFWs to their three-month salary in case of illegal dismissal, is to give them a better chance of getting hired by foreign employers. This is plain speculation. As earlier discussed, there is nothing in the text of the law or the records of the deliberations leading to its enactment or the pleadings of respondent that would indicate that there is an existing governmental purpose for the subject clause, or even just a pretext of one. The subject clause does not state or imply any definitive governmental purpose; and it is for that precise reason that the clause violates not just petitioner's right to equal protection, but also her right to substantive due process under Section 1,137 Article III of the Constitution. The subject clause being unconstitutional, petitioner is entitled to his salaries for the entire unexpired period of nine months and 23 days of his employment contract, pursuant to law and jurisprudence prior to the enactment of R.A. No. 8042. On the Third Issue Petitioner contends that his overtime and leave pay should form part of the salary basis in the computation of his monetary award, because these are fixed benefits that have been stipulated into his contract. Petitioner is mistaken. The word salaries in Section 10(5) does not include overtime and leave pay. For seafarers like petitioner, DOLE Department Order No. 33, series 1996, provides a Standard Employment Contract of Seafarers, in which salary is understood as the basic wage, exclusive of overtime, leave pay and other bonuses; whereas overtime pay is compensation for all work "performed" in excess of the regular eight hours, and holiday pay is compensation for any work "performed" on designated rest days and holidays. By the foregoing definition alone, there is no basis for the automatic inclusion of overtime and holiday pay in the computation of petitioner's monetary award, unless there is evidence that he performed work during those periods. As the Court held in Centennial Transmarine, Inc. v. Dela Cruz,138 However, the payment of overtime pay and leave pay should be disallowed in light of our ruling in Cagampan v. National Labor Relations Commission, to wit: The rendition of overtime work and the submission of sufficient proof that said was actually performed are conditions to be satisfied before a seaman could be entitled to overtime pay which should be computed on the basis of 30% of the

Serrano vs. Gallant Maritime basic monthly salary. In short, the contract provision guarantees the right to overtime pay but the entitlement to such benefit must first be established.
In the same vein, the claim for the day's leave pay for the unexpired portion of the contract is unwarranted since the same is given during the actual service of the seamen. WHEREFORE, the Court GRANTS the Petition. The subject clause "or for three months for every year of the unexpired term, whichever is less" in the 5th paragraph of Section 10 of Republic Act No. 8042 is DECLAREDUNCONSTITUTIONAL; and the December 8, 2004 Decision and April 1, 2005 Resolution of the Court of Appeals are MODIFIED to the effect that petitioner is AWARDED his salaries for the entire unexpired portion of his employment contract consisting of nine months and 23 days computed at the rate of US$1,400.00 per month. No costs. SO ORDERED.

Santos vs. People

THIRD DIVISION [G.R. No. 173176, August 26, 2008] JUDY ANNE L. SANTOS, PETITIONER, VS. PEOPLE OF THE PHILIPPINES AND BUREAU OF INTERNAL REVENUE, RESPONDENTS. DECISION
CHICO-NAZARIO, J.: Before this Court is a Petition for Review on Certiorari[1] under Rule 45 of the Revised Rules of Court filed by petitioner Judy Anne L. Santos (Santos) seeking the reversal and setting aside of the Resolution,[2] dated 19 June 2006, of the Court of Tax Appeals (CTA) en banc in C.T.A. EB. CRIM. No. 001 which denied petitioner's Motion for Extension of Time to File Petition for Review. Petitioner intended to file the Petition for Review with the CTA en banc to appeal the Resolutions dated 23 February 2006[3]and 11 May 2006[4] of the CTA First Division in C.T.A. Crim. Case No. 0-012 denying, respectively, her Motion to Quash the Information filed against her for violation of Section 255, in relation to Sections 254 and 248(B) of the National Internal Revenue Code (NIRC), as amended; and her Motion for Reconsideration. There is no controversy as to the facts that gave rise to the present Petition. On 19 May 2005, then Bureau of Internal Revenue (BIR) Commissioner Guillermo L. Parayno, Jr. wrote to the Department of Justice (DOJ) Secretary Raul M. Gonzales a letter[5] regarding the possible filing of criminal charges against petitioner. BIR Commissioner Parayno began his letter with the following statement: I have the honor to refer to you for preliminary investigation and filing of an information in court if evidence so warrants, the herein attached Joint Affidavit of RODERICK C. ABAD, STIMSON P. CUREG, VILMA V. CARONAN, RHODORA L. DELOS REYES under Group SupervisorTEODORA V. PURINO, of the National Investigation Division, BIR National Office Building, BIR Road, Diliman, Quezon City, recommending the criminal prosecution of MS. JUDY ANNE LUMAGUI SANTOS forsubstantial underdeclaration of income, which constitutes asprima facie evidence of false or fraudulent return under Section 248(B) of the NIRC and punishable under Sections 254 and 255 of the Tax Code. In said letter, BIR Commissioner Parayno summarized the findings of the investigating BIR officers that petitioner, in her Annual Income Tax Return for taxable year 2002 filed with the BIR, declared an income of P8,033,332.70 derived from her talent fees solely from ABS-CBN; initial documents gathered from the BIR offices and those given by petitioner's accountant and third parties, however, confirmed that petitioner received in 2002 income in the amount of at least P14,796,234.70, not only from ABS-CBN, but also from other sources, such as movies and product endorsements; the estimated tax liability arising from petitioner's underdeclaration amounted to P1,718,925.52, including incremental penalties; the non-declaration by petitioner of an amount equivalent to at least 84.18% of the income declared in her return was considered a substantial underdeclaration of income, which constituted prima facieevidence of false or fraudulent return under Section 248(B)[6] of the NIRC, as amended; and petitioner's failure to account as part of her income the professional fees she received from sources other than ABS-CBN and her underdeclaration of the income she received from ABS-CBN amounted to manifest violations of Sections 254[7] and 255,[8] as well as Section 248(B) of the NIRC, as amended. After an exchange of affidavits and other pleadings by the parties, Prosecution Attorney Olivia Laroza-Torrevillas issued a Resolution[9] dated 21 October 2005 finding probable cause and recommending the filing of a criminal information against petitioner for violation of Section 255 in relation to Sections 254 and 248(B) of the NIRC, as amended. The said Resolution was approved by Chief State Prosecutor Jovencito R. Zuno. Pursuant to the 21 October 2005 DOJ Resolution, an Information[10] for violation of Section 255 in relation to Sections 254 and 248(B) of the NIRC, as amended, was filed with the CTA on 3 November 2005 and docketed as C.T.A. Crim. Case No. 0-012. However, the CTA First Division, after noting several discrepancies in the Information filed, required the State Prosecutor to clarify and explain the same, and to submit the original copies of the parties' affidavits, memoranda, and all other evidence on record.[11] Consequently, Prosecution Attorney Torrevillas, on behalf of respondent People, submitted on 1 December 2005 a Compliance with Ex Parte Motion to Admit Attached Information.[12] Prosecution Attorney Torrevillas moved that the documents submitted be admitted as part of the record of the case and the first Information be substituted by the attached second Information. The second Information[13]addressed the discrepancies noted by the CTA in the first Information, by now reading thus:

Santos vs. People

The undersigned Prosecution Attorney of the Department of Justice hereby accuses JUDY ANNE SANTOS y Lumagui of the offense of violation of Section 255, of Republic Act No. 8424, otherwise known as the "Tax Reform Act of 1997," as amended, committed as follows: "That on or about the 15th day of April, 2003, at Quezon City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused did then and there, willfully, unlawfully, and feloniously file a false and fraudulent income tax return for taxable year 2002 by indicating therein a gross income of P8,033,332.70 when in truth and in fact her correct income for taxable year 2002 is P16,396,234.70 or a gross underdeclaration/difference of P8,362,902 resulting to an income tax deficiency of P1,395,116.24 excluding interest and penalties thereon of P1,319,500.94 or a total income tax deficiency of P2,714,617.18 to the damage and prejudice of the government of the same amount.["] In a Resolution[14] dated 8 December 2005, the CTA First Division granted the People's Ex Parte Motion and admitted the second Information. The CTA First Division then issued on 9 December 2005 a warrant for the arrest of petitioner.[15] The tax court lifted and recalled the warrant of arrest on 21 December 2005 after petitioner voluntarily appeared and submitted herself to its jurisdiction and filed the required bail bond in the amount of P20,000.00.[16] On 10 January 2006, petitioner filed with the CTA First Division a Motion to Quash[17]the Information filed in C.T.A. Crim. Case No. 0-012 on the following grounds: 1. 2. 3. 4. The facts alleged in the INFORMATION do not constitute an offense; The officer who filed the information had no authority to do so; The Honorable Court of Tax Appeals has no jurisdiction over the subject matter of the case; and The information is void ab initio, being violative of due process, and the equal protection of the laws.

In a Resolution[18] dated 23 February 2006, the CTA First Division denied petitioner's Motion to Quash and accordingly scheduled her arraignment on 2 March 2006 at 9:00 a.m. Petitioner filed a Motion for Reconsideration and/or Reinvestigation,[19] which was again denied by the CTA First Division in a Resolution[20] dated 11 May 2006. Petitioner received a copy of the 11 May 2006 Resolution of the CTA First Division on 17 May 2006. On 1 June 2006, petitioner filed with the CTA en banc a Motion for Extension of Time to File Petition for Review, docketed as C.T.A. EB. CRIM. No. 001. She filed her Petition for Review with the CTA en banc on 16 June 2006. However, in its Resolution[21] dated 19 June 2006, the CTA en banc denied petitioner's Motion for Extension of Time to File Petition for Review, ratiocinating that: In the case before Us, the petitioner is asking for an extension of time to file her Petition for Review to appeal the denial of her motion to quash in C.T.A. Crim. Case No. 0-012. As stated above, a resolution denying a motion to quash is not a proper subject of an appeal to the Court En Banc under Section 11 of R.A. No. 9282 because a ruling denying a motion to quash is only an interlocutory order, as such, it cannot be made the subject of an appeal pursuant to said law and the Rules of Court. Section 1 of Rule 41 of the Rules of Court provides that "no appeal may be taken from an interlocutory order" and Section 1 (i) of Rule 50 provides for the dismissal of an appeal on the ground that "the order or judgment appealed from is not appealable". Time and again, the Supreme Court had ruled that the remedy of the accused in case of denial of a motion to quash is for the accused to enter a plea, go to trial and after an adverse decision is rendered, to appeal therefrom in the manner authorized by law. Since a denial of a Motion to Quash is not appealable, granting petitioner's Motion for Extension of Time to File Petition for Review will only be an exercise in futility considering that the dismissal of the Petition for Review that will be filed by way of appeal is mandated both by law and jurisprudence.[22] Ultimately, the CTA en banc decreed: WHEREFORE, premises considered, petitioner's Motion for Extension of Time to File Petition for Review filed on June 1, 2006 is hereby DENIED for lack of merit.[23] Now comes petitioner before this Court raising the sole issue of: WHETHER A RESOLUTION OF A CTA DIVISION DENYING A MOTION TO QUASH IS A PROPER SUBJECT OF AN APPEAL TO THE CTA EN BANCUNDER SECTION 11 OF REPUBLIC ACT NO. 9282, AMENDING SECTION 18 OF REPUBLIC ACT NO. 1125.[24] Section 18 of Republic Act No. 1125,[25] as amended by Republic Act No. 9282,[26]provides: SEC. 18. Appeal to the Court of Tax Appeals En Banc. - No civil proceedings involving matters arising under the National Internal Revenue Code, the Tariff and Customs Code or the Local Government Code shall be maintained, except as herein provided, until and unless an appeal has been previously filed with the CTA and disposed of in accordance with the provisions of this Act.

Santos vs. People

A party adversely affected by a resolution of a Division of the CTA on a motion for reconsideration or new trial, may file a petition for review with the CTA en banc. Petitioner's primary argument is that a resolution of a CTA Division denying a motion to quash is a proper subject of an appeal to the CTA en banc under Section 18 of Republic Act No. 1125, as amended, because the law does not say that only a resolution that constitutes a final disposition of a case may be appealed to the CTA en banc. If the interpretation of the law by the CTA en banc prevails, a procedural void is created leaving the parties, such as petitioner, without any remedy involving erroneous resolutions of a CTA Division. The Court finds no merit in the petitioner's assertion. The petition for review under Section 18 of Republic Act No. 1125, as amended, may be new to the CTA, but it is actually a mode of appeal long available in courts of general jurisdiction. Petitioner is invoking a very narrow and literal reading of Section 18 of Republic Act No. 1125, as amended. Indeed, the filing of a petition for review with the CTA en banc from a decision, resolution, or order of a CTA Division is a remedy newly made available in proceedings before the CTA, necessarily adopted to conform to and address the changes in the CTA. There was no need for such rule under Republic Act No. 1125, prior to its amendment, since the CTA then was composed only of one Presiding Judge and two Associate Judges.[27] Any two Judges constituted a quorum and the concurrence of two Judges was necessary to promulgate any decision thereof.[28] The amendments introduced by Republic Act No. 9282 to Republic Act No. 1125 elevated the rank of the CTA to a collegiate court, with the same rank as the Court of Appeals, and increased the number of its members to one Presiding Justice and five Associate Justices.[29] The CTA is now allowed to sit en banc or in two Divisions with each Division consisting of three Justices. Four Justices shall constitute a quorum for sessions en banc, and the affirmative votes of four members of the Court en banc are necessary for the rendition of a decision or resolution; while two Justices shall constitute a quorum for sessions of a Division and the affirmative votes of two members of the Division shall be necessary for the rendition of a decision or resolution.[30] In A.M. No. 05-11-07-CTA, the Revised CTA Rules, this Court delineated the jurisdiction of the CTA en banc[31] and in Divisions.[32] Section 2, Rule 4 of the Revised CTA Rules recognizes the exclusive appellate jurisdiction of the CTA en bancto review by appeal the following decisions, resolutions, or orders of the CTA Division: SEC. 2. Cases within the jurisdiction of the Court en banc. - The Courten banc shall exercise exclusive appellate jurisdiction to review by appeal the following: (a) Decisions or resolutions on motions for reconsideration or new trial of the Court in Divisions in the exercise of its exclusive appellate jurisdiction over:
(1) (2) (3) Cases arising from administrative agencies - Bureau of Internal Revenue, Bureau of Customs, Department of Finance, Department of Trade and Industry, Department of Agriculture; Local tax cases decided by the Regional Trial Courts in the exercise of their original jurisdiction; and Tax collection cases decided by the Regional Trial Courts in the exercise of their original jurisdiction involving final and executory assessments for taxes, fees, charges and penalties, where the principal amount of taxes and penalties claimed is less than one million pesos;

xxxx (f) Decisions, resolutions or orders on motions for reconsideration or new trial of the Court in Division in the exercise of its exclusive original jurisdiction over cases involving criminal offenses arising from violations of the National Internal Revenue Code or the Tariff and Customs Code and other laws administered by the Bureau of Internal Revenue or Bureau of Customs. (g) Decisions, resolutions or order on motions for reconsideration or new trial of the Court in Division in the exercise of its exclusive appellate jurisdiction over criminal offenses mentioned in the preceding subparagraph; x x x. Although the filing of a petition for review with the CTA en banc from a decision, resolution, or order of the CTA Division, was newly made available to the CTA, such mode of appeal has long been available in Philippine courts of general jurisdiction. Hence, the Revised CTA Rules no longer elaborated on it but merely referred to existing rules of procedure on petitions for review and appeals, to wit:

Santos vs. People

RULE 7 PROCEDURE IN THE COURT OF TAX APPEALS SEC. 1. Applicability of the Rules of the Court of Appeals. - The procedure in the Court en banc or in Divisions in original and in appealed cases shall be the same as those in petitions for review and appeals before the Court of Appeals pursuant to the applicable provisions of Rules 42, 43, 44 and 46 of the Rules of Court, except as otherwise provided for in these Rules. RULE 8 PROCEDURE IN CIVIL CASES xxxx SEC. 4. Where to appeal; mode of appeal. xxxx (b) An appeal from a decision or resolution of the Court in Division on a motion for reconsideration or new trial shall be taken to the Court by petition for review as provided in Rule 43 of the Rules of Court. The Court en banc shall act on the appeal. xxxx RULE 9 PROCEDURE IN CRIMINAL CASES SEC. 1. Review of cases in the Court. - The review of criminal cases in the Court en banc or in Division shall be governed by the applicable provisions of Rule 124 of the Rules of Court. xxxx SEC. 9. Appeal; period to appeal. xxxx (b) An appeal to the Court en banc in criminal cases decided by the Court in Division shall be taken by filing a petition for review as provided in Rule 43 of the Rules of Court within fifteen days from receipt of a copy of the decision or resolution appealed from. The Court may, for good cause, extend the time for filing of the petition for review for an additional period not exceeding fifteen days. (Emphasis ours.) Given the foregoing, the petition for review to be filed with the CTA en banc as the mode for appealing a decision, resolution, or order of the CTA Division, under Section 18 of Republic Act No. 1125, as amended, is not a totally new remedy, unique to the CTA, with a special application or use therein. To the contrary, the CTA merely adopts the procedure for petitions for review and appeals long established and practiced in other Philippine courts. Accordingly, doctrines, principles, rules, and precedents laid down in jurisprudence by this Court as regards petitions for review and appeals in courts of general jurisdiction should likewise bind the CTA, and it cannot depart therefrom. General rule: The denial of a motion to quash is an interlocutory order which is not the proper subject of an appeal or a petition for certiorari. According to Section 1, Rule 41 of the Revised Rules of Court, governing appeals from the Regional Trial Courts (RTCs) to the Court of Appeals, an appeal may be taken only from a judgment or final order that completely disposes of the case or of a matter therein when declared by the Rules to be appealable. Said provision, thus, explicitly states that no appeal may be taken from an interlocutory order.[33] The Court distinguishes final judgments and orders from interlocutory orders in this wise: Section 2, Rule 41 of the Revised Rules of Court provides that "(o)nly final judgments or orders shall be subject to appeal." Interlocutory or incidental judgments or orders do not stay the progress of an action nor are they subject of appeal "until final judgment or order is rendered for one party or the other." The test to determine whether an order or judgment is interlocutory or final is this: "Does it leave something to be done in the trial court with respect to the merits of the case? If it does, it is interlocutory; if it does not, it is final". A court order is final in character if it puts an end to the particular matter resolved or settles definitely the matter therein disposed of, such that no further questions can come before the court except the execution of the order. The term "final" judgment or order signifies a judgment or an order which disposes of the cause as to all the parties, reserving no further questions or directions for future determination. The order or judgment may validly refer to the

Santos vs. People

entire controversy or to some definite and separate branch thereof. "In the absence of a statutory definition, a final judgment, order or decree has been held to be x x x one that finally disposes of, adjudicates, or determines the rights, or some right or rights of the parties, either on the entire controversy or on some definite and separate branch thereof, and which concludes them until it is reversed or set aside." The central point to consider is, therefore, the effects of the order on the rights of the parties. A court order, on the other hand, is merely interlocutory in character if it is provisional and leaves substantial proceeding to be had in connection with its subject. The word "interlocutory" refers to "something intervening between the commencement and the end of a suit which decides some point or matter but is not a final decision of the whole controversy."[34] In other words, after a final order or judgment, the court should have nothing more to do in respect of the relative rights of the parties to the case. Conversely, "an order that does not finally dispose of the case and does not end the Court's task of adjudicating the parties' contentions in determining their rights and liabilities as regards each other, but obviously indicates that other things remain to be done by the Court, is interlocutory."[35] The rationale for barring the appeal of an interlocutory order was extensively discussed in Matute v. Court of Appeals,[36] thus: It is settled that an "interlocutory order or decree made in the progress of a case is always under the control of the court until the final decision of the suit, and may be modified or rescinded upon sufficient grounds shown at any time before final judgment . . ." Of similar import is the ruling of this Court declaring that "it is rudimentary that such (interlocutory) orders are subject to change in the discretion of the court." Moreover, one of the inherent powers of the court is "To amend and control its process and orders so as to make them conformable to law and justice. In the language of Chief Justice Moran, paraphrasing the ruling in Veluz vs. Justice of the Peace of Sariaya, "since judges are human, susceptible to mistakes, and are bound to administer justice in accordance with law, they are given the inherent power of amending their orders or judgments so as to make them conformable to law and justice, and they can do so before they lose their jurisdiction of the case, that is before the time to appeal has expired and no appeal has been perfected." And in the abovecited Veluz case, this Court held that "If the trial court should discover or be convinced that it had committed an error in its judgment, or had done an injustice, before the same has become final, it may, upon its own motion or upon a motion of the parties, correct such error in order to do justice between the parties. . . . It would seem to be the very height of absurdity to prohibit a trial judge from correcting an error, mistake, or injustice which is called to his attention before he has lost control of his judgment." Corollarily, it has also been held "that a judge of first instance is not legally prevented from revoking the interlocutory order of another judge in the very litigation subsequently assigned to him for judicial action." Another recognized reason of the law in permitting appeal only from a final order or judgment, and not from an interlocutory or incidental one, is to avoid multiplicity of appeals in a single action, which must necessarily suspend the hearing and decision on the merits of the case during the pendency of the appeal. If such appeal were allowed, the trial on the merits of the case would necessarily be delayed for a considerable length of time, and compel the adverse party to incur unnecessary expenses, for one of the parties may interpose as many appeals as incidental questions may be raised by him, and interlocutory orders rendered or issued by the lower court.[37] There is no dispute that a court order denying a motion to quash is interlocutory. The denial of the motion to quash means that the criminal information remains pending with the court, which must proceed with the trial to determine whether the accused is guilty of the crime charged therein. Equally settled is the rule that an order denying a motion to quash, being interlocutory, is not immediately appealable,[38] nor can it be the subject of a petition for certiorari. Such order may only be reviewed in the ordinary course of law by an appeal from the judgment after trial.[39] The Court cannot agree in petitioner's contention that there would exist a procedural void following the denial of her Motion to Quash by the CTA First Division in its Resolutions dated 23 February 2006 and 11 May 2006, leaving her helpless. The remedy of an accused from the denial of his or her motion to quash has already been clearly laid down as follows: An order denying a Motion to Acquit (like an order denying a motion to quash) is interlocutory and not a final order. It is, therefore, not appealable. Neither can it be the subject of a petition for certiorari. Such order of denial may only be reviewed, in the ordinary course of law, by an appeal from the judgment, after trial. As stated in Collins vs. Wolfe, and reiterated in Mill vs. Yatco, the accused, after the denial of his motion to quash, should have proceeded with the trial of the case in the court below, and if final judgment is rendered against him, he could then appeal, and, upon such appeal, present the questions which he sought to be decided by the appellate court in a petition for certiorari. In Acharon vs. Purisima, the procedure was well defined, thus: "Moreover, when the motion to quash filed by Acharon to nullify the criminal cases filed against him was denied by the Municipal Court of General Santos his remedy was not to file a petition for certiorari but to go to trial without prejudice on his part to reiterate the special defenses he had invoked in his motion and, if, after trial on the merits, an adverse decision is rendered, to appeal therefrom in the manner authorized by law. This is the procedure that he should have followed as authorized by law and precedents. Instead, he took the usual step of filing a writ of certiorari before the Court of First Instance which in our opinion is unwarranted it being contrary to the usual course of law."[40]

Santos vs. People

Hence, the CTA en banc herein did not err in denying petitioner's Motion for Extension of Time to File Petition for Review, when such Petition for Review is the wrong remedy to assail an interlocutory order denying her Motion to Quash. While the general rule proscribes the appeal of an interlocutory order, there are also recognized exceptions to the same. The general rule is not absolute. Where special circumstances clearly demonstrate the inadequacy of an appeal, then the special civil action of certiorari or prohibition may exceptionally be allowed.[41] This Court recognizes that under certain situations, recourse to extraordinary legal remedies, such as a petition for certiorari, is considered proper to question the denial of a motion to quash (or any other interlocutory order) in the interest of a "more enlightened and substantial justice";[42] or to promote public welfare and public policy;[43] or when the cases "have attracted nationwide attention, making it essential to proceed with dispatch in the consideration thereof";[44] or when the order was rendered with grave abuse of discretion.[45] Certiorari is an appropriate remedy to assail an interlocutory order (1) when the tribunal issued such order without or in excess of jurisdiction or with grave abuse of discretion; and (2) when the assailed interlocutory order is patently erroneous, and the remedy of appeal would not afford adequate and expeditious relief.[46] Recourse to a petition for certiorari to assail an interlocutory order is now expressly recognized in the ultimate paragraph of Section 1, Rule 41 of the Revised Rules of Court on the subject of appeal, which states: In all the above instances where the judgment or final order is not appealable, the aggrieved party may file an appropriate special civil action under Rule 65. As to whether the CTA en banc, under its expanded jurisdiction in Republic Act No. 9282, has been granted jurisdiction over special civil actions for certiorari is not raised as an issue in the Petition at bar, thus, precluding the Court from making a definitive pronouncement thereon. However, even if such an issue is answered in the negative, it would not substantially affect the ruling of this Court herein, for a party whose motion to quash had been denied may still seek recourse, under exceptional and meritorious circumstances, via a special civil action for certiorari with this Court, refuting petitioner's assertion of a procedural void. The CTA First Division did not commit grave abuse of discretion in denying petitioner's Motion to Quash. Assuming that the CTA en banc, as an exception to the general rule, allowed and treated petitioner's Petition for Review in C.T.A. EB. CRIM. No. 001 as a special civil action for certiorari, [47] it would still be dismissible for lack of merit. An act of a court or tribunal may only be considered as committed in grave abuse of discretion when the same was performed in a capricious or whimsical exercise of judgment, which is equivalent to lack of jurisdiction. The abuse of discretion must be so patent and gross as to amount to an evasion of positive duty or to a virtual refusal to perform a duty enjoined by law or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion or personal hostility. In this connection, it is only upon showing that the court acted without or in excess of jurisdiction or with grave abuse of discretion that an interlocutory order such as that involved in this case may be impugned. Be that as it may, it must be emphasized that this practice is applied only under certain exceptional circumstances to prevent unnecessary delay in the administration of justice and so as not to unduly burden the courts.[48] Certiorari is not available to correct errors of procedure or mistakes in the judge's findings and conclusions of law and fact. It is only in the presence of extraordinary circumstances evincing a patent disregard of justice and fair play where resort to a petition for certiorari is proper. A party must not be allowed to delay litigation by the sheer expediency of filing a petition for certiorari under Rule 65 of the Revised Rules of Court based on scant allegations of grave abuse.[49] A writ of certiorari is not intended to correct every controversial interlocutory ruling: it is resorted to only to correct a grave abuse of discretion or a whimsical exercise of judgment equivalent to lack of jurisdiction. Its function is limited to keeping an inferior court within its jurisdiction and to relieve persons from arbitrary acts - acts which courts or judges have no power or authority in law to perform. It is not designed to correct erroneous findings and conclusions made by the courts.[50] The Petition for Review which petitioner intended to file before the CTA en banc relied on two grounds: (1) the lack of authority of Prosecuting Attorney Torrevillas to file the Information; and (2) the filing of the said Information in violation of petitioner's constitutional rights to due process and equal protection of the laws. Anent the first ground, petitioner argues that the Information was filed without the approval of the BIR Commissioner in violation of Section 220 of NIRC, as amended, which provides: SEC. 220. Form and Mode of Proceeding in Actions Arising under this Code. - Civil and criminal actions and proceedings instituted in behalf of the Government under the authority of this Code or other law enforced by the Bureau of Internal Revenue

Santos vs. People

shall be brought in the name of the Government of the Philippines and shall be conducted by legal officers of the Bureau of Internal Revenue but no civil or criminal action for the recovery of taxes or the enforcement of any fine, penalty or forfeiture under this Code shall be filed in court without the approval of the Commissioner. Petitioner's argument must fail in light of BIR Commissioner Parayno's letter dated 19 May 2005 to DOJ Secretary Gonzales referring "for preliminary investigation and filing of an information in court if evidence so warrants," the findings of the BIR officers recommending the criminal prosecution of petitioner. In said letter, BIR Commissioner Parayno already gave his prior approval to the filing of an information in court should the DOJ, based on the evidence submitted, find probable cause against petitioner during the preliminary investigation. Section 220 of the NIRC, as amended, simply requires that the BIR Commissioner approve the institution of civil or criminal action against a tax law violator, but it does not describe in what form such approval must be given. In this case, BIR Commissioner Parayno's letter of 19 May 2005 already states his express approval of the filing of an information against petitioner and his signature need not appear on the Resolution of the State Prosecutor or the Information itself. Still on the purported lack of authority of Prosecution Attorney Torrevillas to file the Information, petitioner asserts that it is the City Prosecutor under the Quezon City Charter, who has the authority to investigate and prosecute offenses allegedly committed within the jurisdiction of Quezon City, such as petitioner's case. The Court is not persuaded. Under Republic Act No. 537, the Revised Charter of Quezon City, the City Prosecutor shall have the following duties relating to the investigation and prosecution of criminal offenses: SEC. 28. The City Attorney - His assistants - His duties. xxxx (g) He shall also have charge of the prosecution of all crimes, misdemeanors, and violations of city ordinances, in the Court of First Instance and the municipal courts of the city, and shall discharge all the duties in respect to the criminal prosecutions enjoined by law upon provincial fiscals. (h) He shall cause to be investigated all charges of crimes, misdemeanors, and violations of ordinances and have the necessary information or complaints prepared or made against the persons accused. He or any of his assistants may conduct such investigations by taking oral evidence of reputable witnesses, and for this purpose may issue subpoena, summon witnesses to appear and testify under oath before him, and the attendance or evidence of an absent or recalcitrant witness may be enforced by application to the municipal court or the Court of First Instance. No witness summoned to testify under this section shall be under obligation to give any testimony which tend to incriminate himself. Evident from the foregoing is that the City Prosecutor has the power to investigate crimes, misdemeanors, and violations of ordinances committed within the territorial jurisdiction of the city, and which can be prosecuted before the trial courts of the said city. The charge against petitioner, however, is already within the exclusive original jurisdiction of the CTA,[51] as the Information states that her gross underdeclaration resulted in an income tax deficiency of P1,395,116.24, excluding interest and penalties. The City Prosecutor does not have the authority to appear before the CTA, which is now of the same rank as the Court of Appeals. In contrast, the DOJ is the principal law agency of the Philippine government which shall be both its legal counsel and prosecution arm.[52] It has the power to investigate the commission of crimes, prosecute offenders and administer the probation and correction system.[53] Under the DOJ is the Office of the State Prosecutor whose functions are described as follows: Sec. 8. Office of the Chief State Prosecutor. - The Office of the Chief State Prosecutor shall have the following functions: (1) Assist the Secretary in the performance of powers and functions of the Department relative to its role as the prosecution arm of the government; (2) Implement the provisions of laws, executive orders and rules, and carry out the policies, plans, programs and projects of the Department relative to the investigation and prosecution of criminal cases; (3) Assist the Secretary in exercising supervision and control over the National Prosecution Service as constituted under P.D. No. 1275 and/or otherwise hereinafter provided; and (4) Perform such other functions as may be provided by law or assigned by the Secretary.[54] As explained by CTA First Division in its Resolution dated 11 May 2006:

Santos vs. People

[T]he power or authority of the Chief State Prosecutor Jovencito Zuo, Jr. and his deputies in the Department of Justice to prosecute cases is national in scope; and the Special Prosecutor's authority to sign and file informations in court proceeds from the exercise of said person's authority to conduct preliminary investigations.[55] Moreover, there is nothing in the Revised Quezon City Charter which would suggest that the power of the City Prosecutor to investigate and prosecute crimes, misdemeanors, and violations of ordinances committed within the territorial jurisdiction of the city is to the exclusion of the State Prosecutors. In fact, the Office of the State Prosecutor exercises control and supervision over City Prosecutors under Executive Order No. 292, otherwise known as the Administrative Code of 1987. As regards petitioner's second ground in her intended Petition for Review with the CTAen banc, she asserts that she has been denied due process and equal protection of the laws when similar charges for violation of the NIRC, as amended, against Regina Encarnacion A. Velasquez (Velasquez) were dismissed by the DOJ in its Resolution dated 10 August 2005 in I.S. No. 2005-330 for the reason that Velasquez's tax liability was not yet fully determined when the charges were filed. The Court is unconvinced. First, a motion to quash should be based on a defect in the information which is evident on its face.[56] The same cannot be said herein. The Information against petitioner appears valid on its face; and that it was filed in violation of her constitutional rights to due process and equal protection of the laws is not evident on the face thereof. As pointed out by the CTA First Division in its 11 May 2006 Resolution, the more appropriate recourse petitioner should have taken, given the dismissal of similar charges against Velasquez, was to appeal the Resolution dated 21 October 2005 of the Office of the State Prosecutor recommending the filing of an information against her with the DOJ Secretary.[57] Second, petitioner cannot claim denial of due process when she was given the opportunity to file her affidavits and other pleadings and submit evidence before the DOJ during the preliminary investigation of her case and before the Information was filed against her. Due process is merely an opportunity to be heard. In addition, preliminary investigation conducted by the DOJ is merely inquisitorial. It is not a trial of the case on the merits. Its sole purpose is to determine whether a crime has been committed and whether the respondent therein is probably guilty of the crime. It is not the occasion for the full and exhaustive display of the parties' evidence. Hence, if the investigating prosecutor is already satisfied that he can reasonably determine the existence of probable cause based on the parties' evidence thus presented, he may terminate the proceedings and resolve the case.[58] Third, petitioner cannot likewise aver that she has been denied equal protection of the laws. The equal protection clause exists to prevent undue favor or privilege. It is intended to eliminate discrimination and oppression based on inequality. Recognizing the existence of real differences among men, the equal protection clause does not demand absolute equality. It merely requires that all persons shall be treated alike, under like circumstances and conditions, both as to the privileges conferred and liabilities enforced.[59] Petitioner was not able to duly establish to the satisfaction of this Court that she and Velasquez were indeed similarly situated, i.e., that they committed identical acts for which they were charged with the violation of the same provisions of the NIRC; and that they presented similar arguments and evidence in their defense - yet, they were treated differently. Furthermore, that the Prosecution Attorney dismissed what were supposedly similar charges against Velasquez did not compel Prosecution Attorney Torrevillas to rule the same way on the charges against petitioner. In People v. Dela Piedra,[60] this Court explained that: The prosecution of one guilty person while others equally guilty are not prosecuted, however, is not, by itself, a denial of the equal protection of the laws. Where the official action purports to be in conformity to the statutory classification, an erroneous or mistaken performance of the statutory duty, although a violation of the statute, is not without more a denial of the equal protection of the laws. The unlawful administration by officers of a statute fair on its face, resulting in its unequal application to those who are entitled to be treated alike, is not a denial of equal protection unless there is shown to be present in it an element of intentional or purposeful discrimination. This may appear on the face of the action taken with respect to a particular class or person, or it may only be shown by extrinsic evidence showing a discriminatory design over another not to be inferred from the action itself. But a discriminatory purpose is not presumed, there must be a showing of "clear and intentional discrimination." Appellant has failed to show that, in charging appellant in court, that there was a "clear and intentional discrimination" on the part of the prosecuting officials. The discretion of who to prosecute depends on the prosecution's sound assessment whether the evidence before it can justify a reasonable belief that a person has committed an offense. The presumption is that the prosecuting officers regularly

Santos vs. People

performed their duties, and this presumption can be overcome only by proof to the contrary, not by mere speculation.Indeed, appellant has not presented any evidence to overcome this presumption. The mere allegation that appellant, a Cebuana, was charged with the commission of a crime, while a Zamboanguea, the guilty party in appellant's eyes, was not, is insufficient to support a conclusion that the prosecution officers denied appellant equal protection of the laws. There is also common sense practicality in sustaining appellant's prosecution. While all persons accused of crime are to be treated on a basis of equality before the law, it does not follow that they are to be protected in the commission of crime. It would be unconscionable, for instance, to excuse a defendant guilty of murder because others have murdered with impunity. The remedy for unequal enforcement of the law in such instances does not lie in the exoneration of the guilty at the expense of society x x x. Protection of the law will be extended to all persons equally in the pursuit of their lawful occupations, but no person has the right to demand protection of the law in the commission of a crime. Likewise, [i]f the failure of prosecutors to enforce the criminal laws as to some persons should be converted into a defense for others charged with crime, the result would be that the trial of the district attorney for nonfeasance would become an issue in the trial of many persons charged with heinous crimes and the enforcement of law would suffer a complete breakdown. (Emphasis ours.) In the case at bar, no evidence of a clear and intentional discrimination against petitioner was shown, whether by Prosecution Attorney Torrevillas in recommending the filing of Information against petitioner or by the CTA First Division in denying petitioner's Motion to Quash. The only basis for petitioner's claim of denial of equal protection of the laws was the dismissal of the charges against Velasquez while those against her were not. And lastly, the Resolutions of the CTA First Division dated 23 February 2006 and 11 May 2006 directly addressed the arguments raised by petitioner in her Motion to Quash and Motion for Reconsideration, respectively, and explained the reasons for the denial of both Motions. There is nothing to sustain a finding that these Resolutions were rendered capriciously, whimsically, or arbitrarily, as to constitute grave abuse of discretion amounting to lack or excess of jurisdiction. In sum, the CTA en banc did not err in denying petitioner's Motion for Extension of Time to File Petition for Review. Petitioner cannot file a Petition for Review with the CTA en banc to appeal the Resolution of the CTA First Division denying her Motion to Quash. The Resolution is interlocutory and, thus, unappealable. Even if her Petition for Review is to be treated as a petition for certiorari, it is dismissible for lack of merit. WHEREFORE, premises considered, the instant Petition for Review is herebyDENIED. Costs against petitioner. SO ORDERED.

Quinto vs. COMELEC

EN BANC ELEAZAR P. QUINTO and GERINO A. TOLENTINO, JR., Petitioners, G.R. No. 189698 Present: PUNO, C.J., CARPIO, CORONA, CARPIO MORALES, VELASCO, JR., NACHURA, LEONARDO-DE CASTRO, BRION, PERALTA, BERSAMIN, DEL CASTILLO, ABAD, VILLARAMA, JR., PEREZ, and MENDOZA, JJ.

versus -

Promulgated: COMMISSION ON ELECTIONS, Respondent. February 22, 2010 x ----------------------------------------------------------------------------------------x RESOLUTION PUNO, C.J.: Upon a careful review of the case at bar, this Court resolves to grant the respondent Commission on Elections (COMELEC) motion for reconsideration, and the movants-intervenors motions for reconsideration-in-intervention, of this Courts December 1, 2009 Decision (Decision).[1] The assailed Decision granted the Petition for Certiorari and Prohibition filed by Eleazar P. Quinto and Gerino A. Tolentino, Jr. and declared as unconstitutional the second proviso in the third paragraph of Section 13 of Republic Act No. 9369, [2] Section 66 of the Omnibus Election Code[3] and Section 4(a) of COMELEC Resolution No. 8678,[4] mainly on the ground that they violate the equal protection clause of the Constitution and suffer from overbreadth. The assailed

Quinto vs. COMELEC

Decision thus paved the way for public appointive officials to continue discharging the powers, prerogatives and functions of their office notwithstanding their entry into the political arena. In support of their respective motions for reconsideration, respondent COMELEC and movants-intervenors submit the following arguments: (1) The assailed Decision is contrary to, and/or violative of, the constitutional proscription against the participation of public appointive officials and members of the military in partisan political activity; (2) The assailed provisions do not violate the equal protection clause when they accord differential treatment to elective and appointive officials, because such differential treatment rests on material and substantial distinctions and is germane to the purposes of the law; (3) The assailed provisions do not suffer from the infirmity of overbreadth; and (4) There is a compelling need to reverse the assailed Decision, as public safety and interest demand such reversal. We find the foregoing arguments meritorious. I. Procedural Issues First, we shall resolve the procedural issues on the timeliness of the COMELECs motion for reconsideration which was filed on December 15, 2009, as well as the propriety of the motions for reconsideration-in-intervention which were filed after the Court had rendered its December 1, 2009 Decision. i. Timeliness of COMELECs Motion for Reconsideration

Pursuant to Section 2, Rule 56-A of the 1997 Rules of Court,[5] in relation to Section 1, Rule 52 of the same rules,[6] COMELEC had a period of fifteen days from receipt of notice of the assailed Decision within which to move for its reconsideration. COMELEC received notice of the assailed Decision on December 2, 2009, hence, had until December 17, 2009 to file a Motion for Reconsideration. The Motion for Reconsideration of COMELEC was timely filed. It was filed on December 14, 2009. The corresponding Affidavit of Service (in substitution of the one originally submitted on December 14, 2009) was subsequently filed on December 17, 2009 still within the reglementary period. ii. Propriety of the Motions for Reconsideration-in-Intervention Section 1, Rule 19 of the Rules of Court provides:

Quinto vs. COMELEC

A person who has legal interest in the matter in litigation or in the success of either of the parties, or an interest against both, or is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof may, with leave of court, be allowed to intervene in the action. The court shall consider whether or not the intervention will unduly delay or prejudice the adjudication of the rights of the original parties, and whether or not the intervenors rights may be fully protected in a separate proceeding.

Pursuant to the foregoing rule, this Court has held that a motion for intervention shall be entertained when the following requisites are satisfied: (1) the would-be intervenor shows that he has a substantial right or interest in the case; and (2) such right or interest cannot be adequately pursued and protected in another proceeding.[7] Upon the other hand, Section 2, Rule 19 of the Rules of Court provides the time within which a motion for intervention may be filed, viz.:
SECTION 2. Time to intervene. The motion for intervention may be filed at any time before rendition of judgment by the trial court. A copy of the pleading-in-intervention shall be attached to the motion and served on the original parties. (italics supplied)

This rule, however, is not inflexible. Interventions have been allowed even beyond the period prescribed in the Rule, when demanded by the higher interest of justice. Interventions have also been granted to afford indispensable parties, who have not been impleaded, the right to be heard even after a decision has been rendered by the trial court, [8] when the petition for review of the judgment has already been submitted for decision before the Supreme Court, [9] and even where the assailed order has already become final and executory. [10] In Lim v. Pacquing,[11] the motion for intervention filed by the Republic of the Philippines was allowed by this Court to avoid grave injustice and injury and to settle once and for all the substantive issues raised by the parties. In fine, the allowance or disallowance of a motion for intervention rests on the sound discretion of the court[12] after consideration of the appropriate circumstances.[13] We stress again that Rule 19 of the Rules of Court is a rule of procedure whose object is to make the powers of the court fully and completely available for justice.[14] Its purpose is not to hinder or delay, but to facilitate and promote the administration of justice.[15] We rule that, with the exception of the IBP Cebu City Chapter, all the movantsintervenors may properly intervene in the case at bar. First, the movants-intervenors have each sufficiently established a substantial right or interest in the case. As a Senator of the Republic, Senator Manuel A. Roxas has a right to challenge the December 1, 2009 Decision, which nullifies a long established law; as a voter, he has a right to

Quinto vs. COMELEC

intervene in a matter that involves the electoral process; and as a public officer, he has a personal interest in maintaining the trust and confidence of the public in its system of government. On the other hand, former Senator Franklin M. Drilon and Tom V. Apacible are candidates in the May 2010 elections running against appointive officials who, in view of the December 1, 2009 Decision, have not yet resigned from their posts and are not likely to resign from their posts. They stand to be directly injured by the assailed Decision, unless it is reversed. Moreover, the rights or interests of said movants-intervenors cannot be adequately pursued and protected in another proceeding. Clearly, their rights will be foreclosed if this Courts Decision attains finality and forms part of the laws of the land. With regard to the IBP Cebu City Chapter, it anchors its standing on the assertion that this case involves the constitutionality of elections laws for this coming 2010 National Elections, and that there is a need for it to be allowed to intervene xxx so that the voice of its members in the legal profession would also be heard before this Highest Tribunal as it resolves issues of transcendental importance.[16] Prescinding from our rule and ruling case law, we find that the IBP-Cebu City Chapter has failed to present a specific and substantial interest sufficient to clothe it with standing to intervene in the case at bar. Its invoked interest is, in character, too indistinguishable to justify its intervention. We now turn to the substantive issues. II. Substantive Issues The assailed Decision struck down Section 4(a) of Resolution 8678, the second proviso in the third paragraph of Section 13 of Republic Act (RA) 9369, and Section 66 of the Omnibus Election Code, on the following grounds: (1) They violate the equal protection clause of the Constitution because of the differential treatment of persons holding appointive offices and those holding elective positions; (2) They are overbroad insofar as they prohibit the candidacy of all civil servants holding appointive posts: (a) without distinction as to whether or not they occupy high/influential positions in the government, and (b) they limit these civil servants activity regardless of whether they be partisan or nonpartisan in character, or whether they be in the national, municipal or barangay level; and (3) Congress has not shown a compelling state interest to restrict the fundamental right of these public appointive officials.

Quinto vs. COMELEC

We grant the motions for reconsideration. We now rule that Section 4(a) of Resolution 8678, Section 66 of the Omnibus Election Code, and the second proviso in the third paragraph of Section 13 of RA 9369 are not unconstitutional, and accordingly reverse our December 1, 2009 Decision. III. Section 4(a) of COMELEC Resolution 8678 Compliant with Law Section 4(a) of COMELEC Resolution 8678 is a faithful reflection of the present state of the law and jurisprudence on the matter, viz.: Incumbent Appointive Official. - Under Section 13 of RA 9369, which reiterates Section 66 of the Omnibus Election Code, any person holding a public appointive office or position, including active members of the Armed Forces of the Philippines, and officers and employees in government-owned or -controlled corporations, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy. Incumbent Elected Official. Upon the other hand, pursuant to Section 14 of RA 9006 or the Fair Election Act,[17] which repealed Section 67 of the Omnibus Election Code[18] and rendered ineffective Section 11 of R.A. 8436 insofar as it considered an elected official as resigned only upon the start of the campaign period corresponding to the positions for which they are running,[19] an elected official is not deemed to have resigned from his office upon the filing of his certificate of candidacy for the same or any other elected office or position. In fine, an elected official may run for another position without forfeiting his seat. These laws and regulations implement Section 2(4), Article IX-B of the 1987 Constitution, which prohibits civil service officers and employees from engaging in any electioneering or partisan political campaign. The intention to impose a strict limitation on the participation of civil service officers and employees in partisan political campaigns is unmistakable. The exchange between Commissioner Quesada and Commissioner Foz during the deliberations of the Constitutional Commission is instructive:
MS. QUESADA. xxxx Secondly, I would like to address the issue here as provided in Section 1 (4), line 12, and I quote: "No officer or employee in the civil service shall engage, directly or indirectly, in any partisan political activity." This is almost the same provision as in the 1973 Constitution. However, we in the government service have actually experienced how this provision has been violated by the direct or indirect partisan political activities of many government officials.

Quinto vs. COMELEC

So, is the Committee willing to include certain clauses that would make this provision more strict, and which would deter its violation? MR. FOZ. Madam President, the existing Civil Service Law and the implementing rules on the matter are more than exhaustive enough to really prevent officers and employees in the public service from engaging in any form of partisan political activity. But the problem really lies in implementation because, if the head of a ministry, and even the superior officers of offices and agencies of government will themselves violate the constitutional injunction against partisan political activity, then no string of words that we may add to what is now here in this draft will really implement the constitutional intent against partisan political activity. x x x[20] (italics supplied)

To emphasize its importance, this constitutional ban on civil service officers and employees is presently reflected and implemented by a number of statutes. Section 46(b)(26), Chapter 7 and Section 55, Chapter 8 both of Subtitle A, Title I, Book V of the Administrative Code of 1987 respectively provide in relevant part:
Section 44. Discipline: General Provisions: xxxx (b) The following shall be grounds for disciplinary action: xxxx (26) Engaging directly or indirectly in partisan political activities by one holding a nonpolitical office. xxxx Section 55. Political Activity. No officer or employee in the Civil Service including members of the Armed Forces, shall engage directly or indirectly in any partisan political activity or take part in any election except to vote nor shall he use his official authority or influence to coerce the political activity of any other person or body. Nothing herein provided shall be understood to prevent any officer or employee from expressing his views on current political problems or issues, or from mentioning the names of his candidates for public office whom he supports: Provided, That public officers and employees holding political offices may take part in political and electoral activities but it shall be unlawful for them to solicit contributions from their subordinates or subject them to any of the acts involving subordinates prohibited in the Election Code.

Section 261(i) of Batas Pambansa Blg. 881 (the Omnibus Election Code) further makes intervention by civil service officers and employees in partisan political activities an election offense, viz.:
SECTION 261. Prohibited Acts. The following shall be guilty of an election offense: xxxx

Quinto vs. COMELEC

(i) Intervention of public officers and employees. Any officer or employee in the civil service, except those holding political offices; any officer, employee, or member of the Armed Forces of the Philippines, or any police force, special forces, home defense forces, barangay self-defense units and all other para-military units that now exist or which may hereafter be organized who, directly or indirectly, intervenes in any election campaign or engages in any partisan political activity, except to vote or to preserve public order, if he is a peace officer.

The intent of both Congress and the framers of our Constitution to limit the participation of civil service officers and employees in partisan political activities is too plain to be mistaken. But Section 2(4), Article IX-B of the 1987 Constitution and the implementing statutes apply only to civil servants holding apolitical offices. Stated differently, the constitutional ban does not cover elected officials, notwithstanding the fact that [t]he civil service embraces all branches, subdivisions, instrumentalities, and agencies of the Government, including government-owned or controlled corporations with original charters.[21] This is because elected public officials, by the very nature of their office, engage in partisan political activities almost all year round, even outside of the campaign period.[22]Political partisanship is the inevitable essence of a political office, elective positions included.[23] The prohibition notwithstanding, civil service officers and employees are allowed to vote, as well as express their views on political issues, or mention the names of certain candidates for public office whom they support. This is crystal clear from the deliberations of the Constitutional Commission, viz.:
MS. AQUINO: Mr. Presiding Officer, my proposed amendment is on page 2, Section 1, subparagraph 4, lines 13 and 14. On line 13, between the words "any" and "partisan," add the phrase ELECTIONEERING AND OTHER; and on line 14, delete the word "activity" and in lieu thereof substitute the word CAMPAIGN. May I be allowed to explain my proposed amendment? THE PRESIDING OFFICER (Mr. Treas): Commissioner Aquino may proceed. MS. AQUINO: The draft as presented by the Committee deleted the phrase "except to vote" which was adopted in both the 1935 and 1973 Constitutions. The phrase "except to vote" was not intended as a guarantee to the right to vote but as a qualification of the general prohibition against taking part in elections. Voting is a partisan political activity. Unless it is explicitly provided for as an exception to this prohibition, it will amount to disenfranchisement. We know that suffrage, although plenary, is not an unconditional right. In other words, the Legislature can always pass a statute which can withhold from any class the right to vote in an election, if public interest so required. I would only like to reinstate the qualification by specifying the prohibited acts so that those who may want to vote but who are likewise prohibited from participating in partisan political campaigns or electioneering may vote.

Quinto vs. COMELEC

MR. FOZ: There is really no quarrel over this point, but please understand that there was no intention on the part of the Committee to disenfranchise any government official or employee. The elimination of the last clause of this provision was precisely intended to protect the members of the civil service in the sense that they are not being deprived of the freedom of expression in a political contest. The last phrase or clause might have given the impression that a government employee or worker has no right whatsoever in an election campaign except to vote, which is not the case. They are still free to express their views although the intention is not really to allow them to take part actively in a political campaign.[24]

IV. Section 4(a) of Resolution 8678, Section 13 of RA 9369, and Section 66 of the Omnibus Election Code Do Not Violate the Equal Protection Clause We now hold that Section 4(a) of Resolution 8678, Section 66 of the Omnibus Election Code, and the second proviso in the third paragraph of Section 13 of RA 9369 are not violative of the equal protection clause of the Constitution. i. Farias, et al. v. Executive Secretary, et al. is Controlling

In truth, this Court has already ruled squarely on whether these deemed-resigned provisions challenged in the case at bar violate the equal protection clause of the Constitution in Farias, et al. v. Executive Secretary, et al.[25] In Farias, the constitutionality of Section 14 of the Fair Election Act, in relation to Sections 66 and 67 of the Omnibus Election Code, was assailed on the ground, among others, that it unduly discriminates against appointive officials. As Section 14 repealed Section 67 (i.e., the deemed-resigned provision in respect of elected officials) of the Omnibus Election Code, elected officials are no longer considered ipso facto resigned from their respective offices upon their filing of certificates of candidacy. In contrast, since Section 66 was not repealed, the limitation on appointive officials continues to be operative they are deemed resigned when they file their certificates of candidacy. The petitioners in Farias thus brought an equal protection challenge against Section 14, with the end in view of having the deemed-resigned provisions apply equally to both elected and appointive officials. We held, however, that the legal dichotomy created by the Legislature is a reasonable classification, as there are material and significant distinctions between the two classes of officials. Consequently, the contention that Section 14 of the Fair Election Act, in relation to Sections 66 and 67 of the Omnibus Election Code, infringed on the equal protection clause of the Constitution, failed muster. We ruled:
The petitioners' contention, that the repeal of Section 67 of the Omnibus Election Code pertaining to elective officials gives undue benefit to such officials as against the appointive ones and violates the equal protection clause of the constitution, is tenuous.

Quinto vs. COMELEC

The equal protection of the law clause in the Constitution is not absolute, but is subject to reasonable classification. If the groupings are characterized by substantial distinctions that make real differences, one class may be treated and regulated differently from the other. The Court has explained the nature of the equal protection guarantee in this manner: The equal protection of the law clause is against undue favor and individual or class privilege, as well as hostile discrimination or the oppression of inequality. It is not intended to prohibit legislation which is limited either in the object to which it is directed or by territory within which it is to operate. It does not demand absolute equality among residents; it merely requires that all persons shall be treated alike, under like circumstances and conditions both as to privileges conferred and liabilities enforced. The equal protection clause is not infringed by legislation which applies only to those persons falling within a specified class, if it applies alike to all persons within such class, and reasonable grounds exist for making a distinction between those who fall within such class and those who do not. Substantial distinctions clearly exist between elective officials and appointive officials. The former occupy their office by virtue of the mandate of the electorate. They are elected to an office for a definite term and may be removed therefrom only upon stringent conditions. On the other hand, appointive officials hold their office by virtue of their designation thereto by an appointing authority. Some appointive officials hold their office in a permanent capacity and are entitled to security of tenure while others serve at the pleasure of the appointing authority. Another substantial distinction between the two sets of officials is that under Section 55, Chapter 8, Title I, Subsection A. Civil Service Commission, Book V of the Administrative Code of 1987 (Executive Order No. 292), appointive officials, as officers and employees in the civil service, are strictly prohibited from engaging in any partisan political activity or take (sic) part in any election except to vote. Under the same provision, elective officials, or officers or employees holding political offices, are obviously expressly allowed to take part in political and electoral activities. By repealing Section 67 but retaining Section 66 of the Omnibus Election Code, the legislators deemed it proper to treat these two classes of officials differently with respect to the effect on their tenure in the office of the filing of the certificates of candidacy for any position other than those occupied by them. Again, it is not within the power of the Court to pass upon or look into the wisdom of this classification. Since the classification justifying Section 14 of Rep. Act No. 9006, i.e., elected officials vis-vis appointive officials, is anchored upon material and significant distinctions and all the persons belonging under the same classification are similarly treated, the equal protection clause of the Constitution is, thus, not infringed.[26]

The case at bar is a crass attempt to resurrect a dead issue. The miracle is that our assailed Decision gave it new life. We ought to be guided by the doctrine of stare decisis et non quieta movere. This doctrine, which is really adherence to precedents, mandates that once a case has been decided one way, then another case involving exactly the same point at issue should be decided in the same manner.[27] This doctrine is one of policy grounded on the necessity for securing certainty and stability of judicial decisions. As the renowned jurist Benjamin Cardozo stated in his treatise The Nature of the Judicial Process:

Quinto vs. COMELEC

It will not do to decide the same question one way between one set of litigants and the opposite way between another. If a group of cases involves the same point, the parties expect the same decision. It would be a gross injustice to decide alternate cases on opposite principles. If a case was decided against me yesterday when I was a defendant, I shall look for the same judgment today if I am plaintiff. To decide differently would raise a feeling of resentment and wrong in my breast; it would be an infringement, material and moral, of my rights." Adherence to precedent must then be the rule rather than the exception if litigants are to have faith in the even-handed administration of justice in the courts.[28]

Our Farias ruling on the equal protection implications of the deemed-resigned provisions cannot be minimalized as mere obiter dictum. It is trite to state that an adjudication on any point within the issues presented by the case cannot be considered as obiter dictum.[29] This rule applies to all pertinent questions that are presented and resolved in the regular course of the consideration of the case and lead up to the final conclusion, and to any statement as to the matter on which the decision is predicated.[30] For that reason, a point expressly decided does not lose its value as a precedent because the disposition of the case is, or might have been, made on some other ground; or even though, by reason of other points in the case, the result reached might have been the same if the court had held, on the particular point, otherwise than it did.[31] As we held in Villanueva, Jr. v. Court of Appeals, et al.:[32]
A decision which the case could have turned on is not regarded as obiter dictum merely because, owing to the disposal of the contention, it was necessary to consider another question, nor can an additional reason in a decision, brought forward after the case has been disposed of on one ground, be regarded as dicta. So, also, where a case presents two (2) or more points, any one of which is sufficient to determine the ultimate issue, but the court actually decides all such points, the case as an authoritative precedent as to every point decided, and none of such points can be regarded as having the status of a dictum, and one point should not be denied authority merely because another point was more dwelt on and more fully argued and considered, nor does a decision on one proposition make statements of the court regarding other propositions dicta.[33] (italics supplied)

ii.

Classification Germane to the Purposes of the Law

The Farias ruling on the equal protection challenge stands on solid ground even if reexamined. To start with, the equal protection clause does not require the universal application of the laws to all persons or things without distinction.[34] What it simply requires is equality among equals as determined according to a valid classification.[35] The test developed by jurisprudence here and yonder is that of reasonableness,[36] which has four requisites: (1) The classification rests on substantial distinctions; (2) It is germane to the purposes of the law; (3) It is not limited to existing conditions only; and (4) It applies equally to all members of the same class.[37]

Quinto vs. COMELEC

Our assailed Decision readily acknowledged that these deemed-resigned provisions satisfy the first, third and fourth requisites of reasonableness. It, however, proffers the dubious conclusion that the differential treatment of appointive officials vis--vis elected officials is not germane to the purpose of the law, because whether one holds an appointive office or an elective one, the evils sought to be prevented by the measure remain, viz.:
For example, the Executive Secretary, or any Member of the Cabinet for that matter, could wield the same influence as the Vice-President who at the same time is appointed to a Cabinet post (in the recent past, elected Vice-Presidents were appointed to take charge of national housing, social welfare development, interior and local government, and foreign affairs). With the fact that they both head executive offices, there is no valid justification to treat them differently when both file their [Certificates of Candidacy] for the elections. Under the present state of our law, the VicePresident, in the example, running this time, let us say, for President, retains his position during the entire election period and can still use the resources of his office to support his campaign.[38]

Sad to state, this conclusion conveniently ignores the long-standing rule that to remedy an injustice, the Legislature need not address every manifestation of the evil at once; it may proceed one step at a time.[39] In addressing a societal concern, it must invariably draw lines and make choices, thereby creating some inequity as to those included or excluded. [40] Nevertheless, as long as the bounds of reasonable choice are not exceeded, the courts must defer to the legislative judgment.[41] We may not strike down a law merely because the legislative aim would have been more fully achieved by expanding the class.[42]Stated differently, the fact that a legislative classification, by itself, is underinclusive will not render it unconstitutionally arbitrary or invidious.[43] There is no constitutional requirement that regulation must reach each and every class to which it might be applied;[44] that the Legislature must be held rigidly to the choice of regulating all or none. Thus, any person who poses an equal protection challenge must convincingly show that the law creates a classification that is palpably arbitrary or capricious.[45] He must refute all possible rational bases for the differing treatment, whether or not the Legislature cited those bases as reasons for the enactment,[46] such that the constitutionality of the law must be sustained even if the reasonableness of the classification is fairly debatable.[47] In the case at bar, the petitioners failed and in fact did not even attempt to discharge this heavy burden. Our assailed Decision was likewise silent as a sphinx on this point even while we submitted the following thesis:
... [I]t is not sufficient grounds for invalidation that we may find that the statutes distinction is unfair, underinclusive, unwise, or not the best solution from a public-policy standpoint; rather, we must find that there is no reasonably rational reason for the differing treatment.[48] In the instant case, is there a rational justification for excluding elected officials from the operation of the deemed resigned provisions? I submit that there is. An election is the embodiment of the popular will, perhaps the purest expression of the sovereign power of the people.[49] It involves the choice or selection of candidates to public office

Quinto vs. COMELEC

by popular vote.[50] Considering that elected officials are put in office by their constituents for a definite term, it may justifiably be said that they were excluded from the ambit of the deemed resigned provisions in utmost respect for the mandate of the sovereign will. In other words, complete deference is accorded to the will of the electorate that they be served by such officials until the end of the term for which they were elected. In contrast, there is no such expectation insofar as appointed officials are concerned. The dichotomized treatment of appointive and elective officials is therefore germane to the purposes of the law. For the law was made not merely to preserve the integrity, efficiency, and discipline of the public service; the Legislature, whose wisdom is outside the rubric of judicial scrutiny, also thought it wise to balance this with the competing, yet equally compelling, interest of deferring to the sovereign will.[51] (emphasis in the original)

In fine, the assailed Decision would have us equalize the playing field by invalidating provisions of law that seek to restrain the evils from running riot. Under the pretext of equal protection, it would favor a situation in which the evils are unconfined and vagrant, existing at the behest of both appointive and elected officials, over another in which a significant portion thereof is contained. The absurdity of that position is self-evident, to say the least. The concern, voiced by our esteemed colleague, Mr. Justice Nachura, in his dissent, that elected officials (vis--vis appointive officials) have greater political clout over the electorate, is indeed a matter worth exploring but not by this Court. Suffice it to say that the remedy lies with the Legislature. It is the Legislature that is given the authority, under our constitutional system, to balance competing interests and thereafter make policy choices responsive to the exigencies of the times. It is certainly within the Legislatures power to make the deemed -resigned provisions applicable to elected officials, should it later decide that the evils sought to be prevented are of such frequency and magnitude as to tilt the balance in favor of expanding the class. This Court cannot and should not arrogate unto itself the power to ascertain and impose on the people the best state of affairs from a public policy standpoint. iii. Mancuso v. Taft Has Been Overruled

Finding no Philippine jurisprudence to prop up its equal protection ruling, our assailed Decision adverted to, and extensively cited, Mancuso v. Taft.[52] This was a decision of the First Circuit of the United States Court of Appeals promulgated in March 1973, which struck down as unconstitutional a similar statutory provision. Pathetically, our assailed Decision, relying on Mancuso, claimed: (1) The right to run for public office is inextricably linked with two fundamental freedoms freedom of expression and association; (2) Any legislative classification that significantly burdens this fundamental right must be subjected to strict equal protection review; and (3) While the state has a compelling interest in maintaining the honesty and impartiality of its public work force, the deemed-resigned provisions pursue their objective in a far too heavy-handed manner as to render them unconstitutional.

Quinto vs. COMELEC

It then concluded with the exhortation that since the Americans, from whom we copied the provision in question, had already stricken down a similar measure for being unconstitutional[,] it is high-time that we, too, should follow suit. Our assailed Decisions reliance on Mancuso is completely misplaced. We cannot blink away the fact that the United States Supreme Courteffectively overruled Mancuso three months after its promulgation by the United States Court of Appeals. In United States Civil Service Commission, et al. v. National Association of Letter Carriers AFL-CIO, et al.[53] and Broadrick, et al. v. State of Oklahoma, et al.,[54] the United States Supreme Court was faced with the issue of whether statutory provisions prohibiting federal[55] and state[56] employees from taking an active part in political management or in political campaigns were unconstitutional as to warrant facial invalidation. Violation of these provisions results in dismissal from employmentand possible criminal sanctions. The Court declared these provisions compliant with the equal protection clause. It held that (i) in regulating the speech of its employees, the state as employer has interests that differ significantly from those it possesses in regulating the speech of the citizenry in general; (ii) the courts must therefore balance the legitimate interest of employee free expression against the interests of the employer in promoting efficiency of public services; (iii) if the employees expression interferes with the maintenance of efficient and regularly functioning services, the limitation on speech is not unconstitutional; and (iv) the Legislature is to be given some flexibility or latitude in ascertaining which positions are to be covered by any statutory restrictions.[57] Therefore, insofar as government employees are concerned, the correct standard of review is an interest-balancing approach, a means-end scrutiny that examines the closeness of fit between the governmental interests and the prohibitions in question.[58] Letter Carriers elucidated on these principles, as follows:
Until now, the judgment of Congress, the Executive, and the country appears to have been that partisan political activities by federal employees must be limited if the Government is to operate effectively and fairly, elections are to play their proper part in representative government, and employees themselves are to be sufficiently free from improper influences. The restrictions so far imposed on federal employees are not aimed at particular parties, groups, or points of view, but apply equally to all partisan activities of the type described. They discriminate against no racial, ethnic, or religious minorities. Nor do they seek to control political opinions or beliefs, or to interfere with or influence anyone's vote at the polls. But, as the Court held in Pickering v. Board of Education,[59] the government has an interest in regulating the conduct and the speech of its employees that differ(s) significantly from those it possesses in connection with regulation of the speech of the citizenry in general. The problem in any case is to arrive at a balance between the interests of the (employee), as a citizen, in commenting upon matters of public concern and the interest of the (government), as an employer, in promoting the efficiency of the public services it performs through its employees. Although Congress is free to strike a different balance than it has, if it so chooses, we think the balance it has so far struck is

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sustainable by the obviously important interests sought to be served by the limitations on partisan political activities now contained in the Hatch Act. It seems fundamental in the first place that employees in the Executive Branch of the Government, or those working for any of its agencies, should administer the law in accordance with the will of Congress, rather than in accordance with their own or the will of a political party. They are expected to enforce the law and execute the programs of the Government without bias or favoritism for or against any political party or group or the members thereof. A major thesis of the Hatch Act is that to serve this great end of Government-the impartial execution of the laws-it is essential that federal employees, for example, not take formal positions in political parties, not undertake to play substantial roles in partisan political campaigns, and not run for office on partisan political tickets. Forbidding activities like these will reduce the hazards to fair and effective government. There is another consideration in this judgment: it is not only important that the Government and its employees in fact avoid practicing political justice, but it is also critical that they appear to the public to be avoiding it, if confidence in the system of representative Government is not to be eroded to a disastrous extent. Another major concern of the restriction against partisan activities by federal employees was perhaps the immediate occasion for enactment of the Hatch Act in 1939. That was the conviction that the rapidly expanding Government work force should not be employed to build a powerful, invincible, and perhaps corrupt political machine.The experience of the 1936 and 1938 campaigns convinced Congress that these dangers were sufficiently real that substantial barriers should be raised against the party in power-or the party out of power, for that matter-using the thousands or hundreds of thousands of federal employees, paid for at public expense, to man its political structure and political campaigns. A related concern, and this remains as important as any other, was to further serve the goal that employment and advancement in the Government service not depend on political performance, and at the same time to make sure that Government employees would be free from pressure and from express or tacit invitation to vote in a certain way or perform political chores in order to curry favor with their superiors rather than to act out their own beliefs. It may be urged that prohibitions against coercion are sufficient protection; but for many years the joint judgment of the Executive and Congress has been that to protect the rights of federal employees with respect to their jobs and their political acts and beliefs it is not enough merely to forbid one employee to attempt to influence or coerce another. For example, at the hearings in 1972 on proposed legislation for liberalizing the prohibition against political activity, the Chairman of the Civil Service Commission stated that the prohibitions against active participation in partisan political management and partisan political campaigns constitute the most significant safeguards against coercion . . .. Perhaps Congress at some time will come to a different view of the realities of political life and Government service; but that is its current view of the matter, and we are not now in any position to dispute it. Nor, in our view, does the Constitution forbid it. Neither the right to associate nor the right to participate in political activities is absolute in any event.[60] x x x xxxx

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As we see it, our task is not to destroy the Act if we can, but to construe it, if consistent with the will of Congress, so as to comport with constitutional limitations. (italics supplied)

Broadrick likewise definitively constitutionally permissible, viz.:

stated

that

the

assailed

statutory

provision

is

Appellants do not question Oklahoma's right to place even-handed restrictions on the partisan political conduct of state employees. Appellants freely concede that such restrictions serve valid and important state interests, particularly with respect to attracting greater numbers of qualified people by insuring their job security, free from the vicissitudes of the elective process, and by protecting them from political extortion. Rather, appellants maintain that however permissible, even commendable, the goals of s 818 may be, its language is unconstitutionally vague and its prohibitions too broad in their sweep, failing to distinguish between conduct that may be proscribed and conduct that must be permitted. For these and other reasons, appellants assert that the sixth and seventh paragraphs of s 818 are void in toto and cannot be enforced against them or anyone else. We have held today that the Hatch Act is not impermissibly vague.[61] We have little doubt that s 818 is similarly not so vague that men of common intelligence must necessarily guess at its meaning.[62] Whatever other problems there are with s 818, it is all but frivolous to suggest that the section fails to give adequate warning of what activities it proscribes or fails to set out explicit standards' for those who must apply it. In the plainest language, it prohibits any state classified employee from being an officer or member of a partisan political club or a candidate for any paid public office. It forbids solicitation of contributions for any political organization, candidacy or other political purpose and taking part in the management or affairs of any political party or in any political campaign. Words inevitably contain germs of uncertainty and, as with the Hatch Act, there may be disputes over the meaning of such terms in s 818 as partisan, or take part in, or affairs of political parties. But what was said in Letter Carriers, is applicable here: there are limitations in the English language with respect to being both specific and manageably brief, and it seems to us that although the prohibitions may not satisfy those intent on finding fault at any cost, they are set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with, without sacrifice to the public interest.' x x x xxxx [Appellants] nevertheless maintain that the statute is overbroad and purports to reach protected, as well as unprotected conduct, and must therefore be struck down on its face and held to be incapable of any constitutional application. We do not believe that the overbreadth doctrine may appropriately be invoked in this manner here. xxxx The consequence of our departure from traditional rules of standing in the First Amendment area is that any enforcement of a statute thus placed at issue is totally forbidden until and unless a limiting construction or partial invalidation so narrows it as to remove the seeming threat or deterrence to constitutionally protected expression. Application of the overbreadth doctrine in this manner is, manifestly, strong medicine. It has been employed by the Court sparingly and only as a last resort. x x x

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x x x But the plain import of our cases is, at the very least, that facial over-breadth adjudication is an exception to our traditional rules of practice and that its function, a limited one at the outset, attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from pure speech toward conduct and that conduct-even if expressive-falls within the scope of otherwise valid criminal laws that reflect legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct. Although such laws, if too broadly worded, may deter protected speech to some unknown extent, there comes a point where that effectat best a prediction-cannot, with confidence, justify invalidating a statute on its face and so prohibiting a State from enforcing the statute against conduct that is admittedly within its power to proscribe. To put the matter another way, particularly where conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep. It is our view that s 818 is not substantially overbroad and that whatever overbreadth may exist should be cured through case-bycase analysis of the fact situations to which its sanctions, assertedly, may not be applied. Unlike ordinary breach-of-the peace statutes or other broad regulatory acts, s 818 is directed, by its terms, at political expression which if engaged in by private persons would plainly be protected by the First and Fourteenth Amendments. But at the same time, s 818 is not a censorial statute, directed at particular groups or viewpoints. The statute, rather, seeks to regulate political activity in an even-handed and neutral manner. As indicted, such statutes have in the past been subject to a less exacting overbreadth scrutiny. Moreover, the fact remains that s 818 regulates a substantial spectrum of conduct that is as manifestly subject to state regulation as the public peace or criminal trespass. This much was established in United Public Workers v. Mitchell, and has been unhesitatingly reaffirmed today in Letter Carriers. Under the decision in Letter Carriers, there is no question that s 818 is valid at least insofar as it forbids classified employees from: soliciting contributions for partisan candidates, political parties, or other partisan political purposes; becoming members of national, state, or local committees of political parties, or officers or committee members in partisan political clubs, or candidates for any paid public office; taking part in the management or affairs of any political party's partisan political campaign; serving as delegates or alternates to caucuses or conventions of political parties; addressing or taking an active part in partisan political rallies or meetings; soliciting votes or assisting voters at the polls or helping in a partisan effort to get voters to the polls; participating in the distribution of partisan campaign literature; initiating or circulating partisan nominating petitions; or riding in caravans for any political party or partisan political candidate. x x x It may be that such restrictions are impermissible and that s 818 may be susceptible of some other improper applications. But, as presently construed, we do not believe that s 818 must be discarded in toto because some persons arguably protected conduct may or may not be caught or chilled by the statute. Section 818 is not substantially overbroad and it not, therefore, unconstitutional on its face. (italics supplied)

It bears stressing that, in his Dissenting Opinion, Mr. Justice Nachura does not deny the principles enunciated in Letter Carriers and Broadrick. He would hold, nonetheless, that these cases cannot be interpreted to mean a reversal of Mancuso, since they pertain to different types of laws and were decided based on a different set of facts, viz.:
In Letter Carriers, the plaintiffs alleged that the Civil Service Commission was enforcing, or threatening to enforce, the Hatch Acts prohibition against active participation in political management or political campaigns. The plaintiffs desired to campaign for candidates for public

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office, to encourage and get federal employees to run for state and local offices, to participate as delegates in party conventions, and to hold office in a political club. In Broadrick, the appellants sought the invalidation for being vague and overbroad a provision in the (sic) Oklahomas Merit System of Personnel Administration Act restricting the political activities of the States classified civil servants, in much the same manner as the Hatch Act proscribed partisan political activities of federal employees. Prior to the commencement of the action, the appellants actively participated in the 1970 reelection campaign of their superior, and were administratively charged for asking other Corporation Commission employees to do campaign work or to give referrals to persons who might help in the campaign, for soliciting money for the campaign, and for receiving and distributing campaign posters in bulk. Mancuso, on the other hand, involves, as aforesaid, an automatic resignation provision. Kenneth Mancuso, a full time police officer and classified civil service employee of the City of Cranston, filed as a candidate for nomination as representative to the Rhode Island General Assembly. The Mayor of Cranston then began the process of enforcing the resign-to-run provision of the City Home Rule Charter. Clearly, as the above-cited US cases pertain to different types of laws and were decided based on a different set of facts, Letter Carriers and Broadrick cannot be interpreted to mean a reversal of Mancuso. x x x (italics in the original)

We hold, however, that his position is belied by a plain reading of these cases. Contrary to his claim, Letter Carriers, Broadrick and Mancuso allconcerned the constitutionality of resign-to-run laws, viz.: (1) Mancuso involved a civil service employee who filed as a candidate for nomination as representative to the Rhode Island General Assembly. He assailed the constitutionality of 14.09(c) of the City Home Rule Charter, which prohibits continuing in the classified service of the city after becoming a candidate for nomination or election to any public office. (2) Letter Carriers involved plaintiffs who alleged that the Civil Service Commission was enforcing, or threatening to enforce, the Hatch Acts prohibition against active participation in political management or political campaigns[63] with respect to certain defined activities in which they desired to engage. The plaintiffs relevant to this discussion are: (a) The National Association of Letter Carriers, which alleged that its members were desirous of, among others, running in local elections for offices such as school board member, city council member or mayor; (b) Plaintiff Gee, who alleged that he desired to, but did not, file as a candidate for the office of Borough Councilman in his local community for fear that his participation in a partisan election would endanger his job; and (c) Plaintiff Myers, who alleged that he desired to run as a Republican candidate in the 1971 partisan election for the mayor of West

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Lafayette, Indiana, and that he would do so except for fear of losing his job by reason of violation of the Hatch Act. The Hatch Act defines active participation in political management or political campaigns by cross-referring to the rules made by the Civil Service Commission. The rule pertinent to our inquiry states:
30. Candidacy for local office: Candidacy for a nomination or for election to any National, State, county, or municipal office is not permissible. The prohibition against political activity extends not merely to formal announcement of candidacy but also to the preliminaries leading to such announcement and to canvassing or soliciting support or doing or permitting to be done any act in furtherance of candidacy. The fact that candidacy, is merely passive is immaterial; if an employee acquiesces in the efforts of friends in furtherance of such candidacy such acquiescence constitutes an infraction of the prohibitions against political activity. (italics supplied)

Section 9(b) requires the immediate removal of violators and forbids the use of appropriated funds thereafter to pay compensation to these persons.[64] (3) Broadrick was a class action brought by certain Oklahoma state employees seeking a declaration of unconstitutionality of two sub-paragraphs of Section 818 of Oklahomas Merit System of Personnel Administration Act. Section 818 (7), the paragraph relevant to this discussion, states that [n]o employee in the classified service shall be a candidate for nomination or election to any paid public office Violation of Section 818 results in dismissal from employment, possible criminal sanctions and limited state employment ineligibility. Consequently, it cannot be denied that Letter Carriers and Broadrick effectively overruled Mancuso. By no stretch of the imagination couldMancuso still be held operative, as Letter Carriers and Broadrick (i) concerned virtually identical resign-to-run laws, and (ii) were decided by a superior court, the United States Supreme Court. It was thus not surprising for the First Circuit Court of Appeals the same court that decided Mancuso to holdcategorically and emphatically in Magill v. Lynch[65] that Mancuso is no longer good law. As we priorly explained:
Magill involved Pawtucket, Rhode Island firemen who ran for city office in 1975. Pawtuckets Little Hatch Act prohibits city employees from engaging in a broad range of political activities. Becoming a candidate for any city office is specifically proscribed, [66] the violation being punished by removal from office or immediate dismissal. The firemen brought an action against the city officials on the ground that that the provision of the city charter was unconstitutional. However, the court, fully cognizant of Letter Carriersand Broadrick, took the position that Mancuso had since lost considerable vitality. It observed that the view that political candidacy was a fundamental interest which could be infringed upon only if less restrictive alternatives were not available, was a position which was no longer viable, since the Supreme Court (finding that the governments interest in regulating both the conduct and

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speech of its employees differed significantly from its interest in regulating those of the citizenry in general) had given little weight to the argument that prohibitions against the coercion of government employees were a less drastic means to the same end, deferring to the judgment of Congress, and applying a balancing test to determine wheth er limits on political activity by public employees substantially served government interests which were important enough to outweigh the employees First Amendment rights.[67] It must be noted that the Court of Appeals ruled in this manner even though the election in Magill was characterized as nonpartisan, as it was reasonable for the city to fear, under the circumstances of that case, that politically active bureaucrats might use their official power to help political friends and hurt political foes. Ruled the court: The question before us is whether Pawtucket's charter provision, which bars a city employee's candidacy in even a nonpartisan city election, is constitutional. The issue compels us to extrapolate two recent Supreme Court decisions, Civil Service Comm'n v. Nat'l Ass'n of Letter Carriers and Broadrick v. Oklahoma. Both dealt with laws barring civil servants from partisan political activity. Letter Carriers reaffirmed United Public Workers v. Mitchell, upholding the constitutionality of the Hatch Act as to federal employees. Broadrick sustained Oklahoma's Little Hatch Act against constitutional attack, limiting its holding toOklahoma's construction that the Act barred only activity in partisan politics. In Mancuso v. Taft, we assumed that proscriptions of candidacy in nonpartisan elections would not be constitutional. Letter Carriers and Broadrick compel new analysis. xxxx What we are obligated to do in this case, as the district court recognized, is to apply the Courts interest balancing approach to the kind of nonpartisan election revealed in this record. We believe that the district court found more residual vigor in our opinion in Mancuso v. Taft than remains after Letter Carriers. We have particular reference to our view that political candidacy was a fundamental interest which could be trenched upon only if less restrictive alternatives were not available. While this approach may still be viable for citizens who are not government employees, the Court in Letter Carriers recognized that the government's interest in regulating both the conduct and speech of its employees differs significantly from its interest in regulating those of the citizenry in general. Not only was United Public Workers v. Mitchell "unhesitatingly" reaffirmed, but the Court gave little weight to the argument that prohibitions against the coercion of government employees were a less drastic means to the same end, deferring to the judgment of the Congress. We cannot be more precise than the Third Circuit in characterizing the Court's approach as "some sort of 'balancing' process".[68] It appears that the government may place limits on campaigning by public employees if the limits substantially serve government interests that are "important" enough to outweigh the employees' First Amendment rights. x x x (italics supplied) Upholding thus the constitutionality of the law in question, the Magill court detailed the major governmental interests discussed in Letter Carriers and applied them to thePawtucket provision as follows:

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In Letter Carriers[,] the first interest identified by the Court was that of an efficient government, faithful to the Congress rather than to party. The district court discounted this interest, reasoning that candidates in a local election would not likely be committed to a state or national platform. This observation undoubtedly has substance insofar as allegiance to broad policy positions is concerned. But a different kind of possible political intrusion into efficient administration could be thought to threaten municipal government: not into broad policy decisions, but into the particulars of administration favoritism in minute decisions affecting welfare, tax assessments, municipal contracts and purchasing, hiring, zoning, licensing, and inspections. Just as the Court in Letter Carriers identified a second governmental interest in the avoidance of the appearance of "political justice" as to policy, so there is an equivalent interest in avoiding the appearance of political preferment in privileges, concessions, and benefits. The appearance (or reality) of favoritism that the charter's authors evidently feared is not exorcised by the nonpartisan character of the formal election process. Where, as here, party support is a key to successful campaigning, and party rivalry is the norm, the city might reasonably fear that politically active bureaucrats would use their official power to help political friends and hurt political foes. This is not to say that the city's interest in visibly fair and effective administration necessarily justifies a blanket prohibition of all employee campaigning; if parties are not heavily involved in a campaign, the danger of favoritism is less, for neither friend nor foe is as easily identified. A second major governmental interest identified in Letter Carriers was avoiding the danger of a powerful political machine. The Court had in mind the large and growing federal bureaucracy and its partisan potential. The district court felt this was only a minor threat since parties had no control over nominations. But in fact candidates sought party endorsements, and party endorsements proved to be highly effective both in determining who would emerge from the primary election and who would be elected in the final election. Under the prevailing customs, known party affiliation and support were highly significant factors in Pawtucketelections. The charter's authors might reasonably have feared that a politically active public work force would give the incumbent party, and the incumbent workers, an unbreakable grasp on the reins of power. In municipal elections especially, the small size of the electorate and the limited powers of local government may inhibit the growth of interest groups powerful enough to outbalance the weight of a partisan work force. Even when nonpartisan issues and candidacies are at stake, isolated government employees may seek to influence voters or their co-workers improperly; but a more real danger is that a central party structure will mass the scattered powers of government workers behind a single party platform or slate. Occasional misuse of the public trust to pursue private political ends is tolerable, especially because the political views of individual employees may balance each other out. But party discipline eliminates this diversity and tends to make abuse systematic. Instead of a handful of employees pressured into advancing their immediate superior's political ambitions, the entire government work force may be expected to turn out for many candidates in every election. In Pawtucket, where parties are a continuing presence in political campaigns, a carefully orchestrated use of city employees in support of the incumbent party's candidates is possible. The danger is scarcely lessened by the openness of Pawtucket's nominating procedure or the lack of party labels on its ballots.

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The third area of proper governmental interest in Letter Carriers was ensuring that employees achieve advancement on their merits and that they be free from both coercion and the prospect of favor from political activity. The district court did not address this factor, but looked only to the possibility of a civil servant using his position to influence voters, and held this to be no more of a threat than in the most nonpartisan of elections. But we think that the possibility of coercion of employees by superiors remains as strong a factor in municipal elections as it was in Letter Carriers. Once again, it is the systematic and coordinated exploitation of public servants for political ends that a legislature is most likely to see as the primary threat of employees' rights. Political oppression of public employees will be rare in an entirely nonpartisan system. Some superiors may be inclined to ride herd on the politics of their employees even in a nonpartisan context, but without party officials looking over their shoulders most supervisors will prefer to let employees go their own ways. In short, the government may constitutionally restrict its employees' participation in nominally nonpartisan elections if political parties play a large role in the campaigns. In the absence of substantial party involvement, on the other hand, the interests identified by the Letter Carriers Court lose much of their force. While the employees' First Amendment rights would normally outbalance these diminished interests, we do not suggest that they would always do so. Even when parties are absent, many employee campaigns might be thought to endanger at least one strong public interest, an interest that looms larger in the context of municipal elections than it does in the national elections considered in Letter Carriers. The city could reasonably fear the prospect of a subordinate running directly against his superior or running for a position that confers great power over his superior. An employee of a federal agency who seeks a Congressional seat poses less of a direct challenge to the command and discipline of his agency than a fireman or policeman who runs for mayor or city council. The possibilities of internal discussion, cliques, and political bargaining, should an employee gather substantial political support, are considerable. (citations omitted) The court, however, remanded the case to the district court for further proceedings in respect of the petitioners overbreadth charge. Noting that invalidating a statute for being overbroad is not to be taken lightly, much less to be taken in the dark, the court held: The governing case is Broadrick, which introduced the doctrine of "substantial" overbreadth in a closely analogous case. Under Broadrick, when one who challenges a law has engaged in constitutionally unprotected conduct (rather than unprotected speech) and when the challenged law is aimed at unprotected conduct, "the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." Two major uncertainties attend the doctrine: how to distinguish speech from conduct, and how to define "substantial" overbreadth. We are spared the first inquiry by Broadrick itself. The plaintiffs in that case had solicited support for a candidate, and they were subject to discipline under a law proscribing a wide range of activities, including soliciting contributions for political candidates and becoming a candidate. The Court found that this combination required a substantial overbreadth approach. The facts of this case are so similar that we may reach the same result without worrying unduly about the sometimes opaque distinction between speech and conduct.

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The second difficulty is not so easily disposed of. Broadrick found no substantial overbreadth in a statute restricting partisan campaigning. Pawtucket has gone further, banning participation in nonpartisan campaigns as well. Measuring the substantiality of a statute's overbreadth apparently requires, inter alia, a rough balancing of the number of valid applications compared to the number of potentially invalid applications. Some sensitivity to reality is needed; an invalid application that is far-fetched does not deserve as much weight as one that is probable. The question is a matter of degree; it will never be possible to say that a ratio of one invalid to nine valid applications makes a law substantially overbroad. Still, an overbreadth challenger has a duty to provide the court with some idea of the number of potentially invalid applications the statute permits. Often, simply reading the statute in the light of common experience or litigated cases will suggest a number of probable invalid applications. But this case is different. Whether the statute is overbroad depends in large part on the number of elections that are insulated from party rivalry yet closed to Pawtucket employees. For all the record shows, every one of the city, state, or federal elections in Pawtucket is actively contested by political parties. Certainly the record suggests that parties play a major role even in campaigns that often are entirely nonpartisan in other cities. School committee candidates, for example, are endorsed by the local Democratic committee. The state of the record does not permit us to find overbreadth; indeed such a step is not to be taken lightly, much less to be taken in the dark. On the other hand, the entire focus below, in the short period before the election was held, was on the constitutionality of the statute as applied. Plaintiffs may very well feel that further efforts are not justified, but they should be afforded the opportunity to demonstrate that the charter forecloses access to a significant number of offices, the candidacy for which by municipal employees would not pose the possible threats to government efficiency and integrity which Letter Carriers, as we have interpreted it, deems significant. Accordingly, we remand for consideration of plaintiffs' overbreadth claim. (italics supplied, citations omitted) Clearly, Letter Carriers, Broadrick, and Magill demonstrate beyond doubt that Mancuso v. Taft, heavily relied upon by the ponencia, has effectively been overruled.[69] As it is no longer good law, the ponencias exhortation that [since] the Americans, from whom we copied the provision in question, had already stricken down a similar measure for being unconstitutional[,] it is high-time that we, too, should follow suit is misplaced and unwarranted.[70]

Accordingly, our assailed Decisions submission that the right to run for public office is inextricably linked with two fundamental freedoms those of expression and association lies on barren ground. American case law has in fact never recognized a fundamental right to express ones political views through candidacy,[71] as to invoke a rigorous standard of review.[72] Bart v. Telford[73] pointedly stated that [t]he First Amendment does not in terms confer a right to run for public office, and this court has held that it does not do so by implication either. Thus, ones interest in seeking office, by itself, is not entitled to constitutional protection.[74] Moreover, one cannot bring ones action under the rubric of freedom of association, absent any allegation that, by running for an elective position, one is advancing the political ideas of a particular set of voters.[75]

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Prescinding from these premises, it is crystal clear that the provisions challenged in the case at bar, are not violative of the equal protection clause. The deemed-resigned provisions substantially serve governmental interests (i.e., (i) efficient civil service faithful to the government and the people rather than to party; (ii) avoidance of the appearance of political justice as to policy; (iii) avoidance of the danger of a powerful political machine; and (iv) ensuring that employees achieve advancement on their merits and that they be free from both coercion and the prospect of favor from political activity). These are interests that are important enough to outweigh the non-fundamental right of appointive officials and employees to seek elective office. En passant, we find it quite ironic that Mr. Justice Nachura cites Clements v. Fashing[76] and Morial, et al. v. Judiciary Commission of the State of Louisiana, et al.[77] to buttress his dissent. Maintaining that resign-to-run provisions are valid only when made applicable to specified officials, he explains:
U.S. courts, in subsequent cases, sustained the constitutionality of resign-to-run provisions when applied to specified or particular officials, as distinguished from all others,[78] under a classification that is germane to the purposes of the law. These resign-to-run legislations were not expressed in a general and sweeping provision, and thus did not violate the test of being germane to the purpose of the law, the second requisite for a valid classification. Directed, as they were, to particular officials, they were not overly encompassing as to be overbroad. (emphasis in the original)

This reading is a regrettable misrepresentation of Clements and Morial. The resign-to-run provisions in these cases were upheld not because they referred to specified or particular officials (vis--vis a general class); the questioned provisions were found valid precisely because the Court deferred to legislative judgment and found that a regulation is not devoid of a rational predicate simply because it happens to be incomplete. In fact, the equal protection challenge in Clements revolved around the claim that the State of Texas failed to explain why some public officials are subject to the resign-to-run provisions, while others are not. Ruled the United States Supreme Court:
Article XVI, 65, of the Texas Constitution provides that the holders of certain offices automatically resign their positions if they become candidates for any other elected office, unless the unexpired portion of the current term is one year or less. The burdens that 65 imposes on candidacy are even less substantial than those imposed by 19. The two provisions, of course, serve essentially the same state interests. The District Court found 65 deficient, however, not because of the nature or extent of the provision's restriction on candidacy, but because of the manner in which the offices are classified. According to the District Court, the classification system cannot survive equal protection scrutiny, because Texas has failed to explain sufficiently why some elected public officials are subject to 65 and why others are not. As with the case of 19, we conclude that 65 survives a challenge under the Equal Protection Clause unless appellees can show that there is no rational predicate to the classification scheme. The history behind 65 shows that it may be upheld consistent with the "one step at a time" approach that this Court has undertaken with regard to state regulation not subject to more vigorous scrutiny than that sanctioned by the traditional principles. Section 65 was enacted in 1954

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as a transitional provision applying only to the 1954 election. Section 65 extended the terms of those offices enumerated in the provision from two to four years. The provision also staggered the terms of other offices so that at least some county and local offices would be contested at each election. The automatic resignation proviso to 65 was not added until 1958. In that year, a similar automatic resignation provision was added in Art. XI, 11, which applies to officeholders in home rule cities who serve terms longer than two years. Section 11 allows home rule cities the option of extending the terms of municipal offices from two to up to four years. Thus, the automatic resignation provision in Texas is a creature of the State's electoral reforms of 1958. That the State did not go further in applying the automatic resignation provision to those officeholders whose terms were not extended by 11 or 65, absent an invidious purpose, is not the sort of malfunctioning of the State's lawmaking process forbidden by the Equal Protection Clause. A regulation is not devoid of a rational predicate simply because it happens to be incomplete. The Equal Protection Clause does not forbid Texas to restrict one elected officeholder's candidacy for another elected office unless and until it places similar restrictions on other officeholders. The provision's language and its history belie any notion that 65 serves the invidious purpose of denying access to the political process to identifiable classes of potential candidates. (citations omitted and italics supplied)

Furthermore, it is unfortunate that the dissenters took the Morial line that there is no blanket approval of restrictions on the right of public employees to become candidates for public office out of context. A correct reading of that line readily shows that the Court only meant to confine its ruling to the facts of that case, as each equal protection challenge would necessarily have to involve weighing governmental interests vis--vis the specific prohibition assailed. The Court held:
The interests of public employees in free expression and political association are unquestionably entitled to the protection of the first and fourteenth amendments. Nothing in today's decision should be taken to imply that public employees may be prohibited from expressing their private views on controversial topics in a manner that does not interfere with the proper performance of their public duties. In today's decision, there is no blanket approval of restrictions on the right of public employees to become candidates for public office. Nor do we approve any general restrictions on the political and civil rights of judges in particular. Our holding is necessarily narrowed by the methodology employed to reach it. A requirement that a state judge resign his office prior to becoming a candidate for non-judicial office bears a reasonably necessary relation to the achievement of the state's interest in preventing the actuality or appearance of judicial impropriety. Such a requirement offends neither the first amendment's guarantees of free expression and association nor the fourteenth amendment's guarantee of equal protection of the laws. (italics supplied)

Indeed, the Morial court even quoted Broadrick and stated that:
In any event, the legislature must have some leeway in determining which of its employment positions require restrictions on partisan political activities and which may be left unregulated. And a State can hardly be faulted for attempting to limit the positions upon which such restrictions are placed. (citations omitted)

Quinto vs. COMELEC

V. Section 4(a) of Resolution 8678, Section 13 of RA 9369, and Section 66 of the Omnibus Election Code Do Not Suffer from Overbreadth Apart from nullifying Section 4(a) of Resolution 8678, Section 13 of RA 9369, and Section 66 of the Omnibus Election Code on equal protection ground, our assailed Decision struck them down for being overbroad in two respects, viz.: (1) The assailed provisions limit the candidacy of all civil servants holding appointive posts without due regard for the type of position being held by the employee seeking an elective post and the degree of influence that may be attendant thereto;[79] and (2) The assailed provisions limit the candidacy of any and all civil servants holding appointive positions without due regard for the type of office being sought, whether it be partisan or nonpartisan in character, or in the national, municipal or barangay level. Again, on second look, we have to revise our assailed Decision. i. Limitation on Candidacy Regardless of Incumbent Appointive Officials Position, Valid According to the assailed Decision, the challenged provisions of law are overly broad because they apply indiscriminately to all civil servants holding appointive posts, without due regard for the type of position being held by the employee running for elective office and the degree of influence that may be attendant thereto. Its underlying assumption appears to be that the evils sought to be prevented are extant only when the incumbent appointive official running for elective office holds an influential post. Such a myopic view obviously fails to consider a different, yet equally plausible, threat to the government posed by the partisan potential of a large and growing bureaucracy: the danger of systematic abuse perpetuated by a powerful political machine that has amassed the scattered powers of government workers so as to give itself and its incumbent workers an unbreakable grasp on the reins of power.[80] As elucidated in our prior exposition:[81]
Attempts by government employees to wield influence over others or to make use of their respective positions (apparently) to promote their own candidacy may seem tolerable even innocuous particularly when viewed in isolation from other similar attempts by other government employees. Yet it would be decidedly foolhardy to discount the equally (if not more) realistic and dangerous possibility that such seemingly disjointed attempts, when taken together, constitute a veiled effort on the part of an emerging central party structure to advance its own agenda through a carefully orchestrated use of [appointive and/or elective] officials coming from various levels of the bureaucracy.

Quinto vs. COMELEC

[T]he avoidance of such a politically active public work force which could give an emerging political machine an unbreakable grasp on the reins of power is reason enough to impose a restriction on the candidacies of all appointive public officials without further distinction as to the type of positions being held by such employees or the degree of influence that may be attendant thereto. (citations omitted)

ii. Limitation on Candidacy Regardless of Type of Office Sought, Valid The assailed Decision also held that the challenged provisions of law are overly broad because they are made to apply indiscriminately to all civil servants holding appointive offices, without due regard for the type of elective office being sought, whether it be partisan or nonpartisan in character, or in the national, municipal or barangay level. This erroneous ruling is premised on the assumption that the concerns of a truly partisan office and the temptations it fosters are sufficiently different from those involved in an office removed from regular party politics [so as] to warrant distinctive treatment,[82] so that restrictions on candidacy akin to those imposed by the challenged provisions can validly apply only to situations in which the elective office sought is partisan in character. To the extent, therefore, that such restrictions are said to preclude even candidacies for nonpartisan elective offices, the challenged restrictions are to be considered as overbroad. Again, a careful study of the challenged provisions and related laws on the matter will show that the alleged overbreadth is more apparent than real. Our exposition on this issue has not been repudiated, viz.:
A perusal of Resolution 8678 will immediately disclose that the rules and guidelines set forth therein refer to the filing of certificates of candidacy and nomination of official candidates of registered political parties, in connection with the May 10, 2010 National and Local Elections.[83] Obviously, these rules and guidelines, including the restriction in Section 4(a) of Resolution 8678, were issued specifically for purposes of the May 10, 2010 National and Local Elections, which, it must be noted, are decidedlypartisan in character. Thus, it is clear that the restriction in Section 4(a) of RA 8678 applies only to the candidacies of appointive officials vying for partisan elective posts in the May 10, 2010 National and Local Elections. On this score, the overbreadth challenge leveled against Section 4(a) is clearly unsustainable. Similarly, a considered review of Section 13 of RA 9369 and Section 66 of the Omnibus Election Code, in conjunction with other related laws on the matter, will confirm that these provisions are likewise not intended to apply to elections for nonpartisan public offices. The only elections which are relevant to the present inquiry are the elections for barangay offices, since these are the only elections in this country which involve nonpartisanpublic offices.[84] In this regard, it is well to note that from as far back as the enactment of the Omnibus Election Code in 1985, Congress has intended that these nonpartisan barangayelections be governed

Quinto vs. COMELEC

by special rules, including a separate rule on deemed resignations which is found in Section 39 of the Omnibus Election Code. Said provision states: Section 39. Certificate of Candidacy. No person shall be elected punong barangay or kagawad ng sangguniang barangay unless he files a sworn certificate of candidacy in triplicate on any day from the commencement of the election period but not later than the day before the beginning of the campaign period in a form to be prescribed by the Commission. The candidate shall state the barangay office for which he is a candidate. xxxx Any elective or appointive municipal, city, provincial or national official or employee, or those in the civil or military service, including those in governmentowned or-controlled corporations, shall be considered automatically resigned upon the filing of certificate of candidacy for a barangay office. Since barangay elections are governed by a separate deemed resignation rule, under the present state of law, there would be no occasion to apply the restriction on candidacy found in Section 66 of the Omnibus Election Code, and later reiterated in the proviso of Section 13 of RA 9369, to any election other than a partisan one. For this reason, the overbreadth challenge raised against Section 66 of the Omnibus Election Code and the pertinent proviso in Section 13 of RA [85] 9369 must also fail.

In any event, even if we were to assume, for the sake of argument, that Section 66 of the Omnibus Election Code and the corresponding provision in Section 13 of RA 9369 are general rules that apply also to elections for nonpartisan public offices, the overbreadth challenge would still be futile. Again, we explained:
In the first place, the view that Congress is limited to controlling only partisan behavior has not received judicial imprimatur, because the general proposition of the relevant US cases on the matter is simply that the government has an interest in regulating the conduct and speech of its employees that differs significantly from those it possesses in connection with regulation of the speech of the citizenry in general.[86] Moreover, in order to have a statute declared as unconstitutional or void on its face for being overly broad, particularly where, as in this case, conduct and not pure speech is involved, the overbreadth must not only be real, but substantial as well, judged in relation to the statutes plainly legitimate sweep.[87] In operational terms, measuring the substantiality of a statutes overbreadth would entail, among other things, a rough balancing of the number of valid applications compared to the number of potentially invalid applications.[88] In this regard, some sensitivity to reality is needed; an invalid application that is far-fetched does not deserve as much weight as one that is probable.[89] The question is a matter of degree.[90] Thus, assuming for the sake of argument that the partisannonpartisan distinction is valid and necessary such that a statute which fails to make this distinction is susceptible to an overbreadth attack, the overbreadth challenge presently mounted must demonstrate or provide this Court with some idea of the number of potentially invalid elections (i.e.

Quinto vs. COMELEC

the number of elections that were insulated from party rivalry but were nevertheless closed to appointive employees) that may in all probability result from the enforcement of the statute.[91] The state of the record, however, does not permit us to find overbreadth. Borrowing from the words of Magill v. Lynch, indeed, such a step is not to be taken lightly, much less to be taken in the dark,[92] especially since an overbreadth finding in this case would effectively prohibit the State from enforcing an otherwise valid measure against conduct that is admittedly within its power to proscribe.[93]

This Court would do well to proceed with tiptoe caution, particularly when it comes to the application of the overbreadth doctrine in the analysis of statutes that purportedly attempt to restrict or burden the exercise of the right to freedom of speech, for such approach is manifestly strong medicine that must be used sparingly, and only as a last resort.[94] In the United States, claims of facial overbreadth have been entertained only where, in the judgment of the court, the possibility that protected speech of others may be muted and perceived grievances left to fester (due to the possible inhibitory effects of overly broad statutes) outweighs the possible harm to society in allowing some unprotected speech or conduct to go unpunished.[95] Facial overbreadth has likewise not been invoked where a limiting construction could be placed on the challenged statute, and where there are readily apparent constructions that would cure, or at least substantially reduce, the alleged overbreadth of the statute.[96] In the case at bar, the probable harm to society in permitting incumbent appointive officials to remain in office, even as they actively pursue elective posts, far outweighs the less likely evil of having arguably protected candidacies blocked by the possible inhibitory effect of a potentially overly broad statute. In this light, the conceivably impermissible applications of the challenged statutes which are, at best, bold predictions cannot justify invalidating these statutes in toto and prohibiting the State from enforcing them against conduct that is, and has for more than 100 years been, unquestionably within its power and interest to proscribe.[97] Instead, the more prudent approach would be to deal with these conceivably impermissible applications through case-by-case adjudication rather than through a total invalidation of the statute itself.[98] Indeed, the anomalies spawned by our assailed Decision have taken place. In his Motion for Reconsideration, intervenor Drilon stated that a number of high-ranking Cabinet members had already filed their Certificates of Candidacy without relinquishing their posts.[99] Several COMELEC election officers had likewise filed their Certificates of Candidacy in their respective provinces.[100] Even the Secretary of Justice had filed her certificate of substitution for representative of the first district of Quezon province last December 14, 2009[101] even as her position as Justice Secretary includes supervision over the City and Provincial Prosecutors,[102] who, in turn, act as Vice-Chairmen of the respective Boards of Canvassers.[103] The Judiciary has not been spared, for a Regional Trial Court Judge in the South

Quinto vs. COMELEC

has thrown his hat into the political arena. We cannot allow the tilting of our electoral playing field in their favor. For the foregoing reasons, we now rule that Section 4(a) of Resolution 8678 and Section 13 of RA 9369, which merely reiterate Section 66 of the Omnibus Election Code, are not unconstitutionally overbroad. IN VIEW WHEREOF, the Court RESOLVES to GRANT the respondents and the intervenors Motions for Reconsideration; REVERSE and SET ASIDE this Courts December 1, 2009 Decision; DISMISS the Petition; and ISSUE this Resolution declaring as not UNCONSTITUTIONAL (1) Section 4(a) of COMELEC Resolution No. 8678, (2) the second proviso in the third paragraph of Section 13 of Republic Act No. 9369, and (3) Section 66 of the Omnibus Election Code. SO ORDERED.

Biraogo vs. Philippine Truth Commission

EN BANC
LOUIS BAROK C. BIRAOGO, Petitioner, - versus THE PHILIPPINE TRUTH COMMISSION OF 2010, Respondent. x-----------------------x REP. EDCEL C. LAGMAN, REP. RODOLFO B. ALBANO, JR., REP. SIMEON A. DATUMANONG, and REP. ORLANDO B. FUA, SR., Petitioners, G.R. No. 193036 Present: CORONA, C.J., CARPIO, CARPIO MORALES, VELASCO, JR., NACHURA, LEONARDO-DE CASTRO, BRION, PERALTA, BERSAMIN, DEL CASTILLO, ABAD, VILLARAMA, JR., PEREZ, MENDOZA, and SERENO, JJ. Promulgated: December 7, 2010 G.R. No. 192935

- versus -

EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR. and DEPARTMENT OF BUDGET AND MANAGEMENT SECRETARY FLORENCIO B. ABAD, Respondents.

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

DECISION

Biraogo vs. Philippine Truth Commission

MENDOZA, J.:
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. --- Justice Jose P. Laurel[1] The role of the Constitution cannot be overlooked. It is through the Constitution that the fundamental powers of government are established, limited and defined, and by which these powers are distributed among the several departments.[2] The Constitution is the basic and paramount law to which all other laws must conform and to which all persons, including the highest officials of the land, must defer.[3] Constitutional doctrines must remain steadfast no matter what may be the tides of time. It cannot be simply made to sway and accommodate the call of situations and much more tailor itself to the whims and caprices of government and the people who run it.[4] For consideration before the Court are two consolidated cases[5] both of which essentially assail the validity and constitutionality of Executive Order No. 1, dated July 30, 2010, entitled Creating the Philippine Truth Commission of 2010.

The first case is G.R. No. 192935, a special civil action for prohibition instituted by petitioner Louis Biraogo (Biraogo) in his capacity as a citizen and taxpayer. Biraogo assails Executive Order No. 1 for being violative of the legislative power of Congress under Section 1, Article VI of the Constitution[6] as it usurps the constitutional authority of the legislature to create a public office and to appropriate funds therefor.[7] The second case, G.R. No. 193036, is a special civil action for certiorari and prohibition filed by petitioners Edcel C. Lagman, Rodolfo B. Albano Jr., Simeon A. Datumanong, and Orlando B. Fua, Sr. (petitioners-legislators) as incumbent members of the House of Representatives. The genesis of the foregoing cases can be traced to the events prior to the historic May 2010 elections, when then Senator Benigno Simeon Aquino III declared his staunch condemnation of

Biraogo vs. Philippine Truth Commission

graft and corruption with his slogan, Kung walang corrupt, walang mahirap. The Filipino people, convinced of his sincerity and of his ability to carry out this noble objective, catapulted the good senator to the presidency. To transform his campaign slogan into reality, President Aquino found a need for a special body to investigate reported cases of graft and corruption allegedly committed during the previous administration. Thus, at the dawn of his administration, the President on July 30, 2010, signed Executive Order No. 1 establishing the Philippine Truth Commission of 2010 (Truth Commission). Pertinent provisions of said executive order read:
EXECUTIVE ORDER NO. 1 CREATING THE PHILIPPINE TRUTH COMMISSION OF 2010 WHEREAS, Article XI, Section 1 of the 1987 Constitution of the Philippines solemnly enshrines the principle that a public office is a public trust and mandates that public officers and employees, who are servants of the people, must at all times be accountable to the latter, serve them with utmost responsibility, integrity, loyalty and efficiency, act with patriotism and justice, and lead modest lives; WHEREAS, corruption is among the most despicable acts of defiance of this principle and notorious violation of this mandate; WHEREAS, corruption is an evil and scourge which seriously affects the political, economic, and social life of a nation; in a very special way it inflicts untold misfortune and misery on the poor, the marginalized and underprivileged sector of society; WHEREAS, corruption in the Philippines has reached very alarming levels, and undermined the peoples trust and confidence in the Government and its institutions; WHEREAS, there is an urgent call for the determination of the truth regarding certain reports of large scale graft and corruption in the government and to put a closure to them by the filing of the appropriate cases against those involved, if warranted, and to deter others from committing the evil, restore the peoples faith and confidence in the Government and in their public servants; WHEREAS, the Presidents battlecry during his campaign for the Presidency in the last elections kung walang corrupt, walang mahirap expresses a solemn pledge that if elected, he would end corruption and the evil it breeds; WHEREAS, there is a need for a separate body dedicated solely to investigating and finding out the truth concerning the reported cases of graft and corruption during the previous administration, and which will recommend the prosecution of the offenders and secure justice for all; WHEREAS, Book III, Chapter 10, Section 31 of Executive Order No. 292, otherwise known as the Revised Administrative Code of the Philippines, gives the President the continuing authority to reorganize the Office of the President.

Biraogo vs. Philippine Truth Commission NOW, THEREFORE, I, BENIGNO SIMEON AQUINO III, President of the Republic of the Philippines, by virtue of the powers vested in me by law, do hereby order: SECTION 1. Creation of a Commission. There is hereby created the PHILIPPINE TRUTH COMMISSION, hereinafter referred to as theCOMMISSION, which shall primarily seek and find the truth on, and toward this end, investigate reports of graft and corruption of such scale and magnitude that shock and offend the moral and ethical sensibilities of the people, committed by public officers and employees, their co-principals, accomplices and accessories from the private sector, if any, during the previous administration; and thereafter recommend the appropriate action or measure to be taken thereon to ensure that the full measure of justice shall be served without fear or favor. The Commission shall be composed of a Chairman and four (4) members who will act as an independent collegial body. SECTION 2. Powers and Functions. The Commission, which shall have all the powers of an investigative body under Section 37, Chapter 9, Book I of the Administrative Code of 1987, is primarily tasked to conduct a thorough fact-finding investigation of reported cases of graft and corruption referred to in Section 1, involving third level public officers and higher, their coprincipals, accomplices and accessories from the private sector, if any, during the previous administration and thereafter submit its finding and recommendations to the President, Congress and the Ombudsman. In particular, it shall: a) Identify and determine the reported cases of such graft and corruption which it will investigate; b) Collect, receive, review and evaluate evidence related to or regarding the cases of large scale corruption which it has chosen to investigate, and to this end require any agency, official or employee of the Executive Branch, including government-owned or controlled corporations, to produce documents, books, records and other papers; c) Upon proper request or representation, obtain information and documents from the Senate and the House of Representatives records of investigations conducted by committees thereof relating to matters or subjects being investigated by the Commission; d) Upon proper request and representation, obtain information from the courts, including the Sandiganbayan and the Office of the Court Administrator, information or documents in respect to corruption cases filed with the Sandiganbayan or the regular courts, as the case may be; e) Invite or subpoena witnesses and take their testimonies and for that purpose, administer oaths or affirmations as the case may be; f) Recommend, in cases where there is a need to utilize any person as a state witness to ensure that the ends of justice be fully served, that such person who qualifies as a state witness under the Revised Rules of Court of the Philippines be admitted for that purpose; g) Turn over from time to time, for expeditious prosecution, to the appropriate prosecutorial authorities, by means of a special or interim report and recommendation, all evidence on corruption of public officers and employees and their private sector co-principals, accomplices or accessories, if any, when in the course of its investigation the Commission finds that there is reasonable ground to believe that they are liable for graft and corruption under pertinent applicable laws;

Biraogo vs. Philippine Truth Commission h) Call upon any government investigative or prosecutorial agency such as the Department of Justice or any of the agencies under it, and the Presidential Anti-Graft Commission, for such assistance and cooperation as it may require in the discharge of its functions and duties; i) Engage or contract the services of resource persons, professionals and other personnel determined by it as necessary to carry out its mandate; j) Promulgate its rules and regulations or rules of procedure it deems necessary to effectively and efficiently carry out the objectives of this Executive Order and to ensure the orderly conduct of its investigations, proceedings and hearings, including the presentation of evidence; k) Exercise such other acts incident to or are appropriate and necessary in connection with the objectives and purposes of this Order. SECTION 3. Staffing Requirements. x x x. SECTION 4. Detail of Employees. x x x. SECTION 5. Engagement of Experts. x x x SECTION 6. Conduct of Proceedings. x x x. SECTION 7. Right to Counsel of Witnesses/Resource Persons. x x x. SECTION 8. Protection of Witnesses/Resource Persons. x x x. SECTION 9. Refusal to Obey Subpoena, Take Oath or Give Testimony. Any government official or personnel who, without lawful excuse, fails to appear upon subpoena issued by the Commission or who, appearing before the Commission refuses to take oath or affirmation, give testimony or produce documents for inspection, when required, shall be subject to administrative disciplinary action. Any private person who does the same may be dealt with in accordance with law. SECTION 10. Duty to Extend Assistance to the Commission. x x x.

SECTION 11. Budget for the Commission. The Office of the President shall provide the necessary funds for the Commission to ensure that it can exercise its powers, execute its functions, and perform its duties and responsibilities as effectively, efficiently, and expeditiously as possible. SECTION 12. Office. x x x. SECTION 13. Furniture/Equipment. x x x. SECTION 14. Term of the Commission. The Commission shall accomplish its mission on or before December 31, 2012. SECTION 15. Publication of Final Report. x x x. SECTION 16. Transfer of Records and Facilities of the Commission. x x x. SECTION 17. Special Provision Concerning Mandate. If and when in the judgment of the President there is a need to expand the mandate of the Commission as defined in Section 1 hereof to include the investigation of cases and instances of graft and corruption during the prior administrations, such mandate may be so extended accordingly by way of a supplemental Executive Order.

Biraogo vs. Philippine Truth Commission

SECTION 18. Separability Clause. If any provision of this Order is declared unconstitutional, the same shall not affect the validity and effectivity of the other provisions hereof. SECTION 19. Effectivity. This Executive Order shall take effect immediately. DONE in the City of Manila, Philippines, this 30th day of July 2010. (SGD.) BENIGNO S. AQUINO III By the President: (SGD.) PAQUITO N. OCHOA, JR. Executive Secretary

Nature of the Truth Commission As can be gleaned from the above-quoted provisions, the Philippine Truth Commission (PTC) is a mere ad hoc body formed under the Office of the President with the primary task to investigate reports of graft and corruption committed by third-level public officers and employees, their co-principals, accomplices and accessories during the previous administration, and thereafter to submit its finding and recommendations to the President, Congress and the Ombudsman. Though it has been described as an independent collegial body, it is essentially an entity within the Office of the President Proper and subject to his control. Doubtless, it constitutes a public office, as an ad hoc body is one.[8] To accomplish its task, the PTC shall have all the powers of an investigative body under Section 37, Chapter 9, Book I of the Administrative Code of 1987. It is not, however, a quasijudicial body as it cannot adjudicate, arbitrate, resolve, settle, or render awards in disputes between contending parties. All it can do is gather, collect and assess evidence of graft and corruption and make recommendations. It may have subpoena powers but it has no power to cite people in contempt, much less order their arrest. Although it is a fact-finding body, it cannot determine from such facts if probable cause exists as to warrant the filing of an information in our courts of law. Needless to state, it cannot impose criminal, civil or administrative penalties or sanctions. The PTC is different from the truth commissions in other countries which have been created as official, transitory and non-judicial fact-finding bodiesto establish the facts and context of serious violations of human rights or of international humanitarian law in a countrys past.[9] They are usually established by states emerging from periods of internal unrest, civil strife or authoritarianism to serve as mechanisms for transitional justice.

Biraogo vs. Philippine Truth Commission

Truth commissions have been described as bodies that share the following characteristics: (1) they examine only past events; (2) they investigate patterns of abuse committed over a period of time, as opposed to a particular event; (3) they are temporary bodies that finish their work with the submission of a report containing conclusions and recommendations; and (4) they are officially sanctioned, authorized or empowered by the State.[10] Commissions members are usually empowered to conduct research, support victims, and propose policy recommendations to prevent recurrence of crimes. Through their investigations, the commissions may aim to discover and learn more about past abuses, or formally acknowledge them. They may aim to prepare the way for prosecutions and recommend institutional reforms.[11] Thus, their main goals range from retribution to reconciliation. The Nuremburg and Tokyo war crime tribunals are examples of a retributory or vindicatory body set up to try and punish those responsible for crimes against humanity. A form of a reconciliatory tribunal is the Truth and Reconciliation Commission of South Africa, the principal function of which was to heal the wounds of past violence and to prevent future conflict by providing a cathartic experience for victims. The PTC is a far cry from South Africas model. The latter placed more emphasis on reconciliation than on judicial retribution, while the marching order of the PTC is the identification and punishment of perpetrators. As one writer[12] puts it:
The order ruled out reconciliation. It translated the Draconian code spelled out by Aquino in his inaugural speech: To those who talk about reconciliation, if they mean that they would like us to simply forget about the wrongs that they have committed in the past, we have this to say: There can be no reconciliation without justice. When we allow crimes to go unpunished, we give consent to their occurring over and over again.

The Thrusts of the Petitions Barely a month after the issuance of Executive Order No. 1, the petitioners asked the Court to declare it unconstitutional and to enjoin the PTC from performing its functions. A perusal of the arguments of the petitioners in both cases shows that they are essentially the same. The petitioners-legislators summarized them in the following manner: (a) E.O. No. 1 violates the separation of powers as it arrogates the power of the Congress to create a public office and appropriate funds for its operation. (b) The provision of Book III, Chapter 10, Section 31 of the Administrative Code of 1987 cannot legitimize E.O. No. 1 because the delegated authority of the

Biraogo vs. Philippine Truth Commission

President to structurally reorganize the Office of the President to achieve economy, simplicity and efficiency does not include the power to create an entirely new public office which was hitherto inexistent like the Truth Commission. (c) E.O. No. 1 illegally amended the Constitution and pertinent statutes when it vested the Truth Commission with quasi-judicial powers duplicating, if not superseding, those of the Office of the Ombudsman created under the 1987 Constitution and the Department of Justice created under the Administrative Code of 1987. (d) E.O. No. 1 violates the equal protection clause as it selectively targets for investigation and prosecution officials and personnel of the previous administration as if corruption is their peculiar species even as it excludes those of the other administrations, past and present, who may be indictable. (e) The creation of the Philippine Truth Commission of 2010 violates the consistent and general international practice of four decades wherein States constitute truth commissions to exclusively investigate human rights violations, which customary practice forms part of the generally accepted principles of international law which the Philippines is mandated to adhere to pursuant to the Declaration of Principles enshrined in the Constitution. (f) The creation of the Truth Commission is an exercise i n futility, an adventure in partisan hostility, a launching pad for trial/conviction by publicity and a mere populist propaganda to mistakenly impress the people that widespread poverty will altogether vanish if corruption is eliminated without even addressing the other major causes of poverty. (g) The mere fact that previous commissions were not constitutionally challenged is of no moment because neither laches nor estoppel can bar an eventual question on the constitutionality and validity of an executive issuance or even a statute.[13] In their Consolidated Comment,[14] the respondents, through the Office of the Solicitor General (OSG), essentially questioned the legal standing of petitioners and defended the assailed executive order with the following arguments: 1] E.O. No. 1 does not arrogate the powers of Congress to create a public office because the Presidents executive power and power of control necessarily include the inherent power to conduct investigations to ensure that laws are faithfully executed and that, in any event, the Constitution, Revised Administrative Code of 1987 (E.O. No. 292), [15] Presidential Decree (P.D.) No. 1416[16] (as amended by P.D. No. 1772),

Biraogo vs. Philippine Truth Commission

R.A. No. 9970,[17] and settled jurisprudence that authorize the President to create or form such bodies. 2] E.O. No. 1 does not usurp the power of Congress to appropriate funds because there is no appropriation but a mere allocation of funds already appropriated by Congress. 3] The Truth Commission does not duplicate or supersede the functions of the Office of the Ombudsman (Ombudsman) and the Department of Justice (DOJ), because it is a fact-finding body and not a quasi-judicial body and its functions do not duplicate, supplant or erode the latters jurisdiction. 4] The Truth Commission does not violate the equal protection clause because it was validly created for laudable purposes. The OSG then points to the continued existence and validity of other executive orders and presidential issuances creating similar bodies to justify the creation of the PTC such as Presidential Complaint and Action Commission (PCAC) by President Ramon B. Magsaysay, Presidential Committee on Administrative Performance Efficiency (PCAPE) by President Carlos P. Garcia and Presidential Agency on Reform and Government Operations (PARGO)by President Ferdinand E. Marcos.[18] From the petitions, pleadings, transcripts, and memoranda, the following are the principal issues to be resolved: 1. Whether or not the petitioners have the legal standing to file their respective petitions and question Executive Order No. 1; 2. Whether or not Executive Order No. 1 violates the principle of separation of powers by usurping the powers of Congress to create and to appropriate funds for public offices, agencies and commissions; 3. Whether or not Executive Order No. 1 supplants the powers of the Ombudsman and the DOJ; 4. Whether or not Executive Order No. 1 violates the equal protection clause; and 5. Whether or not petitioners are entitled to injunctive relief.

Biraogo vs. Philippine Truth Commission

Essential requisites for judicial review Before proceeding to resolve the issue of the constitutionality of Executive Order No. 1, the Court needs to ascertain whether the requisites for a valid exercise of its power of judicial review are present. Like almost all powers conferred by the Constitution, the power of judicial review is subject to limitations, to wit: (1) there must be an actual case or controversy calling for the exercise of judicial power; (2) the person challenging the act must have the standing to question the validity of the subject act or issuance; otherwise stated, he must have a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement; (3) the question of constitutionality must be raised at the earliest opportunity; and (4) the issue of constitutionality must be the very lis mota of the case.[19] Among all these limitations, only the legal standing of the petitioners has been put at issue. Legal Standing of the Petitioners The OSG attacks the legal personality of the petitioners-legislators to file their petition for failure to demonstrate their personal stake in the outcome of the case. It argues that the petitioners have not shown that they have sustained or are in danger of sustaining any personal injury attributable to the creation of the PTC. Not claiming to be the subject of the commissions investigations, petitioners will not sustain injury in its creation or as a result of its proceedings.[20] The Court disagrees with the OSG in questioning the legal standing of the petitionerslegislators to assail Executive Order No. 1. Evidently, their petition primarily invokes usurpation of the power of the Congress as a body to which they belong as members. This certainly justifies their resolve to take the cudgels for Congress as an institution and present the complaints on the usurpation of their power and rights as members of the legislature before the Court.As held in Philippine Constitution Association v. Enriquez,[21]
To the extent the powers of Congress are impaired, so is the power of each member thereof, since his office confers a right to participate in the exercise of the powers of that institution. An act of the Executive which injures the institution of Congress causes a derivative but nonetheless substantial injury, which can be questioned by a member of Congress. In such a case, any member of Congress can have a resort to the courts.

Biraogo vs. Philippine Truth Commission

Indeed, legislators have a legal standing to see to it that the prerogative, powers and privileges vested by the Constitution in their office remain inviolate. Thus, they are allowed to question the validity of any official action which, to their mind, infringes on their prerogatives as legislators.[22] With regard to Biraogo, the OSG argues that, as a taxpayer, he has no standing to question the creation of the PTC and the budget for its operations.[23] It emphasizes that the funds to be used for the creation and operation of the commission are to be taken from those funds already appropriated by Congress. Thus, the allocation and disbursement of funds for the commission will not entail congressional action but will simply be an exercise of the Presidents power over contingent funds. As correctly pointed out by the OSG, Biraogo has not shown that he sustained, or is in danger of sustaining, any personal and direct injury attributable to the implementation of Executive Order No. 1. Nowhere in his petition is an assertion of a clear right that may justify his clamor for the Court to exercise judicial power and to wield the axe over presidential issuances in defense of the Constitution. The case of David v. Arroyo[24] explained the deep-seated rules on locus standi. Thus:
Locus standi is defined as a right of appearance in a court of justice on a given question. In private suits, standing is governed by the real-parties-in interest rule as contained in Section 2, Rule 3 of the 1997 Rules of Civil Procedure, as amended. It provides that every action must be prosecuted or defended in the name of the real party in interest. Accordingly, the real-party-in interest is the party who stands to be benefited or injured by the judgment in the suit or the party entitled to the avails of the suit. Succinctly put, the plaintiffs standing is based on his own right to the relief sought. The difficulty of determining locus standi arises in public suits. Here, the plaintiff who asserts a public right in assailing an allegedly illegal official action, does so as a representative of the general public. He may be a person who is affected no differently from any other person. He could be suing as a stranger, or in the category of a citizen, or taxpayer. In either case, he has to adequately show that he is entitled to seek judicial protection. In other words, he has to make out a sufficient interest in the vindication of the public order and the securing of relief as a citizen or taxpayer. Case law in most jurisdictions now allows both citizen and taxpayer standing in public actions. The distinction was first laid down inBeauchamp v. Silk, where it was held that the plaintiff in a taxpayers suit is in a different category from the plaintiff in a citizens suit. In the former, the plaintiff is affected by the expenditure of public funds, while in the latter, he is but the mere instrument of the public concern. As held by the New York Supreme Court in People ex rel Case v. Collins: In matter of mere public right, howeverthe people are the real partiesIt is at least the right, if not the duty, of every citizen to interfere and see that a public offence be properly pursued and punished, and that a public grievance be remedied. With respect to taxpayers suits, Terr v. Jordan held

Biraogo vs. Philippine Truth Commission

that the right of a citizen and a taxpayer to maintain an action in courts to restrain the unlawful use of public funds to his injury cannot be denied. However, to prevent just about any person from seeking judicial interference in any official policy or act with which he disagreed with, and thus hinders the activities of governmental agencies engaged in public service, the United State Supreme Court laid down the more stringent direct injury testin Ex Parte Levitt, later reaffirmed in Tileston v. Ullman. The same Court ruled that for a private individual to invoke the judicial power to determine the validity of an executive or legislative action, he must show that he has sustained a direct injury as a result of that action, and it is not sufficient that he has a general interest common to all members of the public. This Court adopted the direct injury test in our jurisdiction. In People v. Vera, it held that the person who impugns the validity of a statute must have a personal and substantial interest in the case such that he has sustained, or will sustain direct injury as a result. The Vera doctrine was upheld in a litany of cases, such as, Custodio v. President of the Senate, Manila Race Horse Trainers Association v. De la Fuente, Pascual v. Secretary of Public Worksand Anti-Chinese League of the Philippines v. Felix. [Emphases included. Citations omitted]

Notwithstanding, the Court leans on the doctrine that the rule on standing is a matter of procedure, hence, can be relaxed for nontraditional plaintiffs like ordinary citizens, taxpayers, and legislators when the public interest so requires, such as when the matter is of transcendental importance, of overreaching significance to society, or of paramount public interest.[25] Thus, in Coconut Oil Refiners Association, Inc. v. Torres,[26] the Court held that in cases of paramount importance where serious constitutional questions are involved, the standing requirements may be relaxed and a suit may be allowed to prosper even where there is no direct injury to the party claiming the right of judicial review. In the first Emergency Powers Cases,[27] ordinary citizens and taxpayers were allowed to question the constitutionality of several executive orders although they had only an indirect and general interest shared in common with the public. The OSG claims that the determinants of transcendental importance[28] laid down in CREBA v. ERC and Meralco[29] are non-existent in this case. The Court, however, finds reason in Biraogos assertion that the petition covers matters of transcendental importance to justify the exercise of jurisdiction by the Court. There are constitutional issues in the petition which deserve the attention of this Court in view of their seriousness, novelty and weight as precedents. Where the issues are of transcendental and paramount importance not only to the public but also to the Bench and the Bar, they should be resolved for the guidance of all.[30] Undoubtedly, the Filipino people are more than interested to know the status of the Presidents first effort to bring about a promised change to the country. The Court takes cognizance of the petition not due to overwhelming political undertones that clothe the issue in the eyes of the public, but because the

Biraogo vs. Philippine Truth Commission

Court stands firm in its oath to perform its constitutional duty to settle legal controversies with overreaching significance to society. Power of the President to Create the Truth Commission In his memorandum in G.R. No. 192935, Biraogo asserts that the Truth Commission is a public office and not merely an adjunct body of the Office of the President.[31] Thus, in order that the President may create a public office he must be empowered by the Constitution, a statute or an authorization vested in him by law. According to petitioner, such power cannot be presumed[32] since there is no provision in the Constitution or any specific law that authorizes the President to create a truth commission.[33] He adds that Section 31 of the Administrative Code of 1987, granting the President the continuing authority to reorganize his office, cannot serve as basis for the creation of a truth commission considering the aforesaid provision merely uses verbs such as reorganize, transfer, consolidate, merge, and abolish.[34] Insofar as it vests in the President the plenary power to reorganize the Office of the President to the extent of creating a public office, Section 31 is inconsistent with the principle of separation of powers enshrined in the Constitution and must be deemed repealed upon the effectivity thereof.[35] Similarly, in G.R. No. 193036, petitioners-legislators argue that the creation of a public office lies within the province of Congress and not with the executive branch of government. They maintain that the delegated authority of the President to reorganize under Section 31 of the Revised Administrative Code: 1) does not permit the President to create a public office, much less a truth commission; 2) is limited to the reorganization of the administrative structure of the Office of the President; 3) is limited to the restructuring of the internal organs of the Office of the President Proper, transfer of functions and transfer of agencies; and 4) only to achieve simplicity, economy and efficiency.[36] Such continuing authority of the President to reorganize his office is limited, and by issuing Executive Order No. 1, the President overstepped the limits of this delegated authority. The OSG counters that there is nothing exclusively legislative about the creation by the President of a fact-finding body such as a truth commission. Pointing to numerous offices created by past presidents, it argues that the authority of the President to create public offices within the Office of the President Proper has long been recognized.[37] According to the OSG, the Executive, just like the other two branches of government, possesses the inherent authority to create factfinding committees to assist it in the performance of its constitutionally mandated functions and in the exercise of its administrative functions.[38]This power, as the OSG explains it, is but an adjunct of the plenary powers wielded by the President under Section 1 and his power of control under Section 17, both of Article VII of the Constitution.[39]

Biraogo vs. Philippine Truth Commission

It contends that the President is necessarily vested with the power to conduct fact-finding investigations, pursuant to his duty to ensure that all laws are enforced by public officials and employees of his department and in the exercise of his authority to assume directly the functions of the executive department, bureau and office, or interfere with the discretion of his officials. [40] The power of the President to investigate is not limited to the exercise of his power of control over his subordinates in the executive branch, but extends further in the exercise of his other powers, such as his power to discipline subordinates,[41]his power for rule making, adjudication and licensing purposes[42] and in order to be informed on matters which he is entitled to know.[43] The OSG also cites the recent case of Banda v. Ermita,[44] where it was held that the President has the power to reorganize the offices and agencies in the executive department in line with his constitutionally granted power of control and by virtue of a valid delegation of the legislative power to reorganize executive offices under existing statutes. Thus, the OSG concludes that the power of control necessarily includes the power to create offices. For the OSG, the President may create the PTC in order to, among others, put a closure to the reported large scale graft and corruption in the government.[45] The question, therefore, before the Court is this: Does the creation of the PTC fall within the ambit of the power to reorganize as expressed in Section 31 of the Revised Administrative Code? Section 31 contemplates reorganization as limited by the followin g functional and structural lines: (1) restructuring the internal organization of the Office of the President Proper by abolishing, consolidating or merging units thereof or transferring functions from one unit to another; (2) transferring any function under the Office of the President to any other Department/Agency or vice versa; or (3) transferring any agency under the Office of the President to any other Department/Agency or vice versa. Clearly, the provision refers to reduction of personnel, consolidation of offices, or abolition thereof by reason of economy or redundancy of functions. These point to situations where a body or an office is already existent but a modification or alteration thereof has to be effected. The creation of an office is nowhere mentioned, much less envisioned in said provision. Accordingly, the answer to the question is in the negative. To say that the PTC is borne out of a restructuring of the Office of the President under Section 31 is a misplaced supposition, even in the plainest meaning attributable to the term restructure an alteration of an existing structure. Evidently, the PTC was not part of the structure of the Office of the President prior to the enactment of Executive Order No. 1. As held in Buklod ng Kawaning EIIB v. Hon. Executive Secretary,[46]

Biraogo vs. Philippine Truth Commission

But of course, the list of legal basis authorizing the President to reorganize any department or agency in the executive branch does not have to end here. We must not lose sight of the very source of the power that which constitutes an express grant of power. Under Section 31, Book III of Executive Order No. 292 (otherwise known as the Administrative Code of 1987), "the President, subject to the policy in the Executive Office and in order to achieve simplicity, economy and efficiency, shall have the continuing authority to reorganize the administrative structure of the Office of the President." For this purpose, he may transfer the functions of other Departments or Agencies to the Office of the President. In Canonizado v. Aguirre [323 SCRA 312 (2000)], we ruled that reorganization "involves the reduction of personnel, consolidation of offices, or abolition thereof by reason of economy or redundancy of functions." It takes place when there is an alteration of the existing structure of government offices or units therein, including the lines of control, authority and responsibility between them. The EIIB is a bureau attached to the Department of Finance. It falls under the Office of the President. Hence, it is subject to the Presidents continuing authority to reorganize. [Emphasis Supplied]

In the same vein, the creation of the PTC is not justified by the Presidents power of control. Control is essentially the power to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former with that of the latter.[47] Clearly, the power of control is entirely different from the power to create public offices. The former is inherent in the Executive, while the latter finds basis from either a valid delegation from Congress, or his inherent duty to faithfully execute the laws. The question is this, is there a valid delegation of power from Congress, empowering the President to create a public office? According to the OSG, the power to create a truth commission pursuant to the above provision finds statutory basis under P.D. 1416, as amended by P.D. No. 1772. [48] The said law granted the President the continuing authority to reorganize the national government, including the power to group, consolidate bureaus and agencies, to abolish offices, to transfer functions, to create and classify functions, services and activities, transfer appropriations, and to standardize salaries and materials. This decree, in relation to Section 20, Title I, Book III of E.O. 292 has been invoked in several cases such as Larin v. Executive Secretary.[49] The Court, however, declines to recognize P.D. No. 1416 as a justification for the President to create a public office. Said decree is already stale, anachronistic and inoperable. P.D. No. 1416 was a delegation to then President Marcos of the authority to reorganize the administrative structure of the national government including the power to create offices and transfer appropriations pursuant to one of the purposes of the decree, embodied in its last Whereas clause:

Biraogo vs. Philippine Truth Commission

WHEREAS, the transition towards the parliamentary form of government will necessitate flexibility in the organization of the national government.

Clearly, as it was only for the purpose of providing manageability and resiliency during the interim, P.D. No. 1416, as amended by P.D. No. 1772, became functus oficio upon the convening of the First Congress, as expressly provided in Section 6, Article XVIII of the 1987 Constitution. In fact, even the Solicitor General agrees with this view. Thus:

ASSOCIATE JUSTICE CARPIO: Because P.D. 1416 was enacted was the last whereas clause of P.D. 1416 says it was enacted to prepare the transition from presidential to parliamentary. Now, in a parliamentary form of government, the legislative and executive powers are fused, correct? SOLICITOR GENERAL CADIZ: ASSOCIATE JUSTICE CARPIO: Yes, Your Honor. That is why, that P.D. 1416 was issued. Now would you agree with me that P.D. 1416 should not be considered effective anymore upon the promulgation, adoption, ratification of the 1987 Constitution. Not the whole of P.D. [No.] 1416, Your Honor. The power of the President to reorganize the entire National Government is deemed repealed, at least, upon the adoption of the 1987 Constitution, correct. Yes, Your Honor.[50]

SOLICITOR GENERAL CADIZ: ASSOCIATE JUSTICE CARPIO:

SOLICITOR GENERAL CADIZ:

While the power to create a truth commission cannot pass muster on the basis of P.D. No. 1416 as amended by P.D. No. 1772, the creation of the PTC finds justification under Section 17, Article VII of the Constitution, imposing upon the President the duty to ensure that the laws are faithfully executed. Section 17 reads:
Section 17. The President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the laws be faithfully executed.(Emphasis supplied).

As correctly pointed out by the respondents, the allocation of power in the three principal branches of government is a grant of all powers inherent in them. The Presidents power to conduct investigations to aid him in ensuring the faithful execution of laws in this case,

Biraogo vs. Philippine Truth Commission

fundamental laws on public accountability and transparency is inherent in the Presidents powers as the Chief Executive. That the authority of the President to conduct investigations and to create bodies to execute this power is not explicitly mentioned in the Constitution or in statutes does not mean that he is bereft of such authority.[51] As explained in the landmark case of Marcos v. Manglapus:[52]
x x x. The 1987 Constitution, however, brought back the presidential system of government and restored the separation of legislative, executive and judicial powers by their actual distribution among three distinct branches of government with provision for checks and balances. It would not be accurate, however, to state that "executive power" is the power to enforce the laws, for the President is head of state as well as head of government and whatever powers inhere in such positions pertain to the office unless the Constitution itself withholds it. Furthermore, the Constitution itself provides that the execution of the laws is only one of the powers of the President. It also grants the President other powers that do not involve the execution of any provision of law, e.g., his power over the country's foreign relations. On these premises, we hold the view that although the 1987 Constitution imposes limitations on the exercise of specific powers of the President, it maintains intact what is traditionally considered as within the scope of "executive power." Corollarily, the powers of the President cannot be said to be limited only to the specific powers enumerated in the Constitution. In other words, executive power is more than the sum of specific powers so enumerated. It has been advanced that whatever power inherent in the government that is neither legislative nor judicial has to be executive. x x x.

Indeed, the Executive is given much leeway in ensuring that our laws are faithfully executed. As stated above, the powers of the President are not limited to those specific powers under the Constitution.[53] One of the recognized powers of the President granted pursuant to this constitutionally-mandated duty is the power to create ad hoc committees. This flows from the obvious need to ascertain facts and determine if laws have been faithfully executed. Thus, inDepartment of Health v. Camposano,[54] the authority of the President to issue Administrative Order No. 298, creating an investigative committee to look into the administrative charges filed against the employees of the Department of Health for the anomalous purchase of medicines was upheld. In said case, it was ruled:
The Chief Executives power to create the Ad hoc Investigating Committee cannot be doubted. Having been constitutionally granted full control of the Executive Department, to which respondents belong, the President has the obligation to ensure that all executive officials and employees faithfully comply with the law. With AO 298 as mandate, the legality of the investigation is sustained. Such validity is not affected by the fact that the

Biraogo vs. Philippine Truth Commission

investigating team and the PCAGC had the same composition, or that the former used the offices and facilities of the latter in conducting the inquiry. [Emphasis supplied]

It should be stressed that the purpose of allowing ad hoc investigating bodies to exist is to allow an inquiry into matters which the President is entitled to know so that he can be properly advised and guided in the performance of his duties relative to the execution and enforcement of the laws of the land. And if history is to be revisited, this was also the objective of the investigative bodies created in the past like the PCAC, PCAPE, PARGO, the Feliciano Commission, the Melo Commission and the Zenarosa Commission. There being no changes in the government structure, the Court is not inclined to declare such executive power as non-existent just because the direction of the political winds have changed. On the charge that Executive Order No. 1 transgresses the power of Congress to appropriate funds for the operation of a public office, suffice it to say that there will be no appropriation but only an allotment or allocations of existing funds already appropriated. Accordingly, there is no usurpation on the part of the Executive of the power of Congress to appropriate funds. Further, there is no need to specify the amount to be earmarked for the operation of the commission because, in the words of the Solicitor General, whatever funds the Congress has provided for the Office of the President will be the very source of the funds for the commission.[55] Moreover, since the amount that would be allocated to the PTC shall be subject to existing auditing rules and regulations, there is no impropriety in the funding. Power of the Truth Commission to Investigate The Presidents power to conduct investigations to ensure that laws are faithfully executed is well recognized. It flows from the faithful-execution clause of the Constitution under Article VII, Section 17 thereof.[56] As the Chief Executive, the president represents the government as a whole and sees to it that all laws are enforced by the officials and employees of his department. He has the authority to directly assume the functions of the executive department. [57] Invoking this authority, the President constituted the PTC to primarily investigate reports of graft and corruption and to recommend the appropriate action. As previously stated, no quasijudicial powers have been vested in the said body as it cannot adjudicate rights of persons who come before it. It has been said that Quasi-judicial powers involve the power to hear and determine questions of fact to which the legislative policy is to apply and to decide in accordance with the standards laid down by law itself in enforcing and administering the same law. [58] In simpler terms, judicial discretion is involved in the exercise of these quasi-judicial power, such that it is exclusively vested in the judiciary and must be clearly authorized by the legislature in the case of administrative agencies.

Biraogo vs. Philippine Truth Commission

The distinction between the power to investigate and the power to adjudicate was delineated by the Court in Cario v. Commission on Human Rights.[59] Thus:
"Investigate," commonly understood, means to examine, explore, inquire or delve or probe into, research on, study. The dictionary definition of "investigate" is "to observe or study closely: inquire into systematically: "to search or inquire into: x x to subject to an official probe x x: to conduct an official inquiry." The purpose of investigation, of course, is to discover, to find out, to learn, obtain information. Nowhere included or intimated is the notion of settling, deciding or resolving a controversy involved in the facts inquired into by application of the law to the facts established by the inquiry. The legal meaning of "investigate" is essentially the same: "(t)o follow up step by step by patient inquiry or observation. To trace or track; to search into; to examine and inquire into with care and accuracy; to find out by careful inquisition; examination; the taking of evidence; a legal inquiry;" "to inquire; to make an investigation," "investigation" being in turn described as "(a)n administrative function, the exercise of which ordinarily does not require a hearing. 2 Am J2d Adm L Sec. 257; x x an inquiry, judicial or otherwise, for the discovery and collection of facts concerning a certain matter or matters." "Adjudicate," commonly or popularly understood, means to adjudge, arbitrate, judge, decide, determine, resolve, rule on, settle. The dictionary defines the term as "to settle finally (the rights and duties of the parties to a court case) on the merits of issues raised: x x to pass judgment on: settle judicially: x x act as judge." And "adjudge" means "to decide or rule upon as a judge or with judicial or quasi-judicial powers: x x to award or grant judicially in a case of controversy x x." In the legal sense, "adjudicate" means: "To settle in the exercise of judicial authority. To determine finally. Synonymous with adjudge in its strictest sense;" and "adjudge" means: "To pass on judicially, to decide, settle or decree, or to sentence or condemn. x x. Implies a judicial determination of a fact, and the entry of a judgment." [Italics included. Citations Omitted]

Fact-finding is not adjudication and it cannot be likened to the judicial function of a court of justice, or even a quasi-judicial agency or office. The function of receiving evidence and ascertaining therefrom the facts of a controversy is not a judicial function. To be considered as such, the act of receiving evidence and arriving at factual conclusions in a controversy must be accompanied by the authority of applying the law to the factual conclusions to the end that the controversy may be decided or resolved authoritatively, finally and definitively, subject to appeals or modes of review as may be provided by law.[60]Even respondents themselves admit that the commission is bereft of any quasi-judicial power.[61] Contrary to petitioners apprehension, the PTC will not supplant the Ombudsman or the DOJ or erode their respective powers. If at all, the investigative function of the commission will complement those of the two offices. As pointed out by the Solicitor General, the recommendation to prosecute is but a consequence of the overall task of the commission to conduct a fact-finding investigation.[62] The actual prosecution of suspected offenders, much less

Biraogo vs. Philippine Truth Commission

adjudication on the merits of the charges against them,[63] is certainly not a function given to the commission. The phrase, when in the course of its investigation, under Section 2(g), highlights this fact and gives credence to a contrary interpretation from that of the petitioners. The function of determining probable cause for the filing of the appropriate complaints before the courts remains to be with the DOJ and the Ombudsman.[64] At any rate, the Ombudsmans power to investigate under R.A. No. 6770 is not exclusive but is shared with other similarly authorized government agencies. Thus, in the case of Ombudsman v. Galicia,[65] it was written:
This power of investigation granted to the Ombudsman by the 1987 Constitution and The Ombudsman Act is not exclusive but is shared with other similarly authorized government agencies such as the PCGG and judges of municipal trial courts and municipal circuit trial courts. The power to conduct preliminary investigation on charges against public employees and officials is likewise concurrently shared with the Department of Justice. Despite the passage of the Local Government Code in 1991, the Ombudsman retains concurrent jurisdiction with the Office of the President and the local Sangguniansto investigate complaints against local elective officials. [Emphasis supplied].

Also, Executive Order No. 1 cannot contravene the power of the Ombudsman to investigate criminal cases under Section 15 (1) of R.A. No. 6770, which states:
(1) Investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient. It has primary jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of its primary jurisdiction, it may take over, at any stage, from any investigatory agency of government, the investigation of such cases.[Emphases supplied]

The act of investigation by the Ombudsman as enunciated above contemplates the conduct of a preliminary investigation or the determination of the existence of probable cause. This is categorically out of the PTCs sphere of functions. Its power to investigate is limited to obtaining facts so that it can advise and guide the President in the performance of his duties relative to the execution and enforcement of the laws of the land. In this regard, the PTC commits no act of usurpation of the Ombudsmans primordial duties. The same holds true with respect to the DOJ. Its authority under Section 3 (2), Chapter 1, Title III, Book IV in the Revised Administrative Code is by no means exclusive and, thus, can be shared with a body likewise tasked to investigate the commission of crimes.

Biraogo vs. Philippine Truth Commission

Finally, nowhere in Executive Order No. 1 can it be inferred that the findings of the PTC are to be accorded conclusiveness. Much like its predecessors, the Davide Commission, the Feliciano Commission and the Zenarosa Commission, its findings would, at best, be recommendatory in nature. And being so, the Ombudsman and the DOJ have a wider degree of latitude to decide whether or not to reject the recommendation. These offices, therefore, are not deprived of their mandated duties but will instead be aided by the reports of the PTC for possible indictments for violations of graft laws. Violation of the Equal Protection Clause Although the purpose of the Truth Commission falls within the investigative power of the President, the Court finds difficulty in upholding the constitutionality of Executive Order No. 1 in view of its apparent transgression of the equal protection clause enshrined in Section 1, Article III (Bill of Rights) of the 1987 Constitution. Section 1 reads:
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.

The petitioners assail Executive Order No. 1 because it is violative of this constitutional safeguard. They contend that it does not apply equally to all members of the same class such that the intent of singling out the previous administration as its sole object makes the PT C an adventure in partisan hostility.[66] Thus, in order to be accorded with validity, the commission must also cover reports of graft and corruption in virtually all administrations previous to that of former President Arroyo.[67] The petitioners argue that the search for truth behind the reported cases of graft and corruption must encompass acts committed not only during the administration of former President Arroyo but also during prior administrations where the same magnitude of controversies and anomalies[68] were reported to have been committed against the Filipino people. They assail the classification formulated by the respondents as it does not fall under the recognized exceptions because first, there is no substantial distinction between the group of officials targeted for investigation by Executive Order No. 1 and other groups or persons who abused their public office for personal gain; and second, the selective classification is not germane to the purpose of Executive Order No. 1 to end corruption.[69] In order to attain constitutional permission, the petitioners advocate that the commission should deal with graft and grafters prior and subsequent to the Arroyo administration with the strong arm of the law with equal force.[70] Position of respondents

Biraogo vs. Philippine Truth Commission

According to respondents, while Executive Order No. 1 identifies the previous administration as the initial subject of the investigation, following Section 17 thereof, the PTC will not confine itself to cases of large scale graft and corruption solely during the said administration.[71] Assuming arguendothat the commission would confine its proceedings to officials of the previous administration, the petitioners argue that no offense is committed against the equal protection clause for the segregation of the transactions of public officers during the previous administration as possible subjects of investigation is a valid classification based on substantial distinctions and is germane to the evils which the Executive Order seeks to correct.[72] To distinguish the Arroyo administration from past administrations, it recited the following: First. E.O. No. 1 was issued in view of widespread reports of large scale graft and corruption in the previous administration which have eroded public confidence in public institutions. There is, therefore, an urgent call for the determination of the truth regarding certain reports of large scale graft and corruption in the government and to put a closure to them by the filing of the appropriate cases against those involved, if warranted, and to deter others from committing the evil, restore the peoples faith and confidence in the Government and in their public servants. Second. The segregation of the preceding administration as the object of factfinding is warranted by the reality that unlike with administrations long gone, the current administration will most likely bear the immediate consequence of the policies of the previous administration. Third. The classification of the previous administration as a separate class for investigation lies in the reality that the evidence of possible criminal activity, the evidence that could lead to recovery of public monies illegally dissipated, the policy lessons to be learned to ensure that anti-corruption laws are faithfully executed, are more easily established in the regime that immediately precede the current administration. Fourth. Many administrations subject the transactions of their predecessors to investigations to provide closure to issues that are pivotal to national life or even as a routine measure of due diligence and good housekeeping by a nascent administration like the Presidential Commission on Good Government (PCGG), created by the late President Corazon C. Aquino under Executive Order No. 1 to pursue the recovery of ill-gotten wealth of her predecessor former President Ferdinand Marcos and his cronies, and the Saguisag Commission created by former President Joseph Estrada under Administrative Order No, 53, to form an ad-hoc and independent citizens committee to investigate all the facts and circumstances surroundi ng Philippine Centennial projects of his predecessor, former President Fidel V. Ramos.[73] [Emphases supplied]

Biraogo vs. Philippine Truth Commission

Concept of the Equal Protection Clause One of the basic principles on which this government was founded is that of the equality of right which is embodied in Section 1, Article III of the 1987 Constitution. The equal protection of the laws is embraced in the concept of due process, as every unfair discrimination offends the requirements of justice and fair play. It has been embodied in a separate clause, however, to provide for a more specific guaranty against any form of undue favoritism or hostility from the government. Arbitrariness in general may be challenged on the basis of the due process clause. But if the particular act assailed partakes of an unwarranted partiality or prejudice, the sharper weapon to cut it down is the equal protection clause.[74] According to a long line of decisions, equal protection simply requires that all persons or things similarly situated should be treated alike, both as to rights conferred and responsibilities imposed.[75] It requires public bodies and institutions to treat similarly situated individuals in a similar manner.[76]The purpose of the equal protection clause is to secure every person within a states jurisdiction against intentional and arbitrary discrimination, whether occasioned by the express terms of a statue or by its improper execution through the states duly constituted authorities.[77] In other words, the concept of equal justice un der the law requires the state to govern impartially, and it may not draw distinctions between individuals solely on differences that are irrelevant to a legitimate governmental objective.[78] The equal protection clause is aimed at all official state actions, not just those of the legislature.[79] Its inhibitions cover all the departments of the government including the political and executive departments, and extend to all actions of a state denying equal protection of the laws, through whatever agency or whatever guise is taken. [80] It, however, does not require the universal application of the laws to all persons or things without distinction. What it simply requires is equality among equals as determined according to a valid classification. Indeed, the equal protection clause permits classification. Such classification, however, to be valid must pass the test of reasonableness. The test has four requisites: (1) The classification rests on substantial distinctions; (2) It is germane to the purpose of the law; (3) It is not limited to existing conditions only; and

Biraogo vs. Philippine Truth Commission

(4) It applies equally to all members of the same class.[81] Superficial differences do not make for a valid classification.[82] For a classification to meet the requirements of constitutionality, it must include or embrace all persons who naturally belong to the class.[83] The classification will be regarded as invalid if all the members of the class are not similarly treated, both as to rights conferred and obligations imposed. It is not necessary that the classification be made with absolute symmetry, in the sense that the members of the class should possess the same characteristics in equal degree. Substantial similarity will suffice; and as long as this is achieved, all those covered by the classification are to be treated equally. The mere fact that an individual belonging to a class differs from the other members, as long as that class is substantially distinguishable from all others, does not justify the non-application of the law to him.[84] The classification must not be based on existing circumstances only, or so constituted as to preclude addition to the number included in the class. It must be of such a nature as to embrace all those who may thereafter be in similar circumstances and conditions. It must not leave out or underinclude those that should otherwise fall into a certain classification. As elucidated in Victoriano v. Elizalde Rope Workers' Union[85] and reiterated in a long line of cases,[86]
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. 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. 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. 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. 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. [Citations omitted]

Applying these precepts to this case, Executive Order No. 1 should be struck down as violative of the equal protection clause. The clear mandate of the envisioned truth commission is

Biraogo vs. Philippine Truth Commission

to investigate and find out the truth concerning the reported cases of graft and corruption during the previous administration[87] only. The intent to single out the previous administration is plain, patent and manifest. Mention of it has been made in at least three portions of the questioned executive order. Specifically, these are:
WHEREAS, there is a need for a separate body dedicated solely to investigating and finding out the truth concerning the reported cases of graft and corruption during the previous administration, and which will recommend the prosecution of the offenders and secure justice for all; SECTION 1. Creation of a Commission. There is hereby created the PHILIPPINE TRUTH COMMISSION, hereinafter referred to as theCOMMISSION, which shall primarily seek and find the truth on, and toward this end, investigate reports of graft and corruption of such scale and magnitude that shock and offend the moral and ethical sensibilities of the people, committed by public officers and employees, their co-principals, accomplices and accessories from the private sector, if any, during the previous administration; and thereafter recommend the appropriate action or measure to be taken thereon to ensure that the full measure of justice shall be served without fear or favor. SECTION 2. Powers and Functions. The Commission, which shall have all the powers of an investigative body under Section 37, Chapter 9, Book I of the Administrative Code of 1987, is primarily tasked to conduct a thorough fact-finding investigation of reported cases of graft and corruption referred to in Section 1, involving third level public officers and higher, their co-principals, accomplices and accessories from the private sector, if any, during theprevious administration and thereafter submit its finding and recommendations to the President, Congress and the Ombudsman. [Emphases supplied]

In this regard, it must be borne in mind that the Arroyo administration is but just a member of a class, that is, a class of past administrations. It is not a class of its own. Not to include past administrations similarly situated constitutes arbitrariness which the equal protection clause cannot sanction. Such discriminating differentiation clearly reverberates to label the commission as a vehicle for vindictiveness and selective retribution. Though the OSG enumerates several differences between the Arroyo administration and other past administrations, these distinctions are not substantial enough to merit the restriction of the investigation to the previous administration only. The reports of widespread corruption in the Arroyo administration cannot be taken as basis for distinguishing said administration from earlier administrations which were also blemished by similar widespread reports of impropriety. They are not inherent in, and do not inure solely to, the Arroyo administration. As Justice Isagani Cruz put it, Superficial differences do not make for a valid classification.[88]

The public needs to be enlightened why Executive Order No. 1 chooses to limit the scope of the intended investigation to the previous administration only. The OSG ventures to opine that to

Biraogo vs. Philippine Truth Commission

include other past administrations, at this point, may unnecessarily overburden the commission and lead it to lose its effectiveness.[89] The reason given is specious. It is without doubt irrelevant to the legitimate and noble objective of the PTC to stamp out or end corruption and the evil it breeds.[90] The probability that there would be difficulty in unearthing evidence or that the earlier reports involving the earlier administrations were already inquired into is beside the point. Obviously, deceased presidents and cases which have already prescribed can no longer be the subjects of inquiry by the PTC. Neither is the PTC expected to conduct simultaneous investigations of previous administrations, given the bodys limited time and resources. The law does not require the impossible (Lex non cogit ad impossibilia).[91] Given the foregoing physical and legal impossibility, the Court logically recognizes the unfeasibility of investigating almost a centurys worth of graft cases. However, the fact remains that Executive Order No. 1 suffers from arbitrary classification. The PTC, to be true to its mandate of searching for the truth, must not exclude the other past administrations. The PTC must, at least, have the authority to investigate all past administrations. While reasonable prioritization is permitted, it should not be arbitrary lest it be struck down for being unconstitutional. In the often quoted language of Yick Wo v. Hopkins,[92]

Though the law itself be fair on its face and impartial in appearance, yet, if applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the constitution. [Emphasis supplied] It could be argued that considering that the PTC is an ad hoc body, its scope is limited. The Court, however, is of the considered view that although its focus is restricted, the constitutional guarantee of equal protection under the laws should not in any way be circumvented. The Constitution is the fundamental and paramount law of the nation to which all other laws must conform and in accordance with which all private rights determined and all public authority administered.[93] Laws that do not conform to the Constitution should be stricken down for being unconstitutional.[94] While the thrust of the PTC is specific, that is, for investigation of acts of graft and corruption, Executive Order No. 1, to survive, must be read together with the provisions of the Constitution. To exclude the earlier administrations in the guise of substantial distinctions would only confirm the petitioners lament that the subject executive order is only an adventure in partisan hostility. In the case of US v. Cyprian,[95] it was written: A rather limited number of

Biraogo vs. Philippine Truth Commission

such classifications have routinely been held or assumed to be arbitrary; those include: race, national origin, gender, political activity or membership in a political party, union activity or membership in a labor union, or more generally the exercise of first amendment rights. To reiterate, in order for a classification to meet the requirements of constitutionality, it must include or embrace all persons who naturally belong to the class.[96] Such a classification must not be based on existing circumstances only, or so constituted as to preclude additions to the number included within a class, but must be of such a nature as to embrace all those who may thereafter be in similar circumstances and conditions. Furthermore, all who are in situations and circumstances which are relative to the discriminatory legislation and which are indistinguishable from those of the members of the class must be brought under the influence of the law and treated by it in the same way as are the members of the class.[97] The Court is not unaware that mere underinclusiveness is not fatal to the validity of a law under the equal protection clause.[98] Legislation is not unconstitutional merely because it is not all-embracing and does not include all the evils within its reach.[99] It has been written that a regulation challenged under the equal protection clause is not devoid of a rational predicate simply because it happens to be incomplete.[100] In several instances, the underinclusiveness was not considered a valid reason to strike down a law or regulation where the purpose can be attained in future legislations or regulations. These cases refer to the step by step process.[101] With regard to equal protection claims, a legislature does not run the risk of losing the entire remedial scheme simply because it fails, through inadvertence or otherwise, to cover every evil that might conceivably have been attacked.[102] In Executive Order No. 1, however, there is no inadvertence. That the previous administration was picked out was deliberate and intentional as can be gleaned from the fact that it was underscored at least three times in the assailed executive order. It must be noted that Executive Order No. 1 does not even mention any particular act, event or report to be focused on unlike the investigative commissions created in the past. The equal protection clause is violated by purposeful and intentional discrimination.[103] To disprove petitioners contention that there is deliberate discrimination, the OSG clarifies that the commission does not only confine itself to cases of large scale graft and corruption committed during the previous administration.[104] The OSG points to Section 17 of Executive Order No. 1, which provides:

SECTION 17. Special Provision Concerning Mandate. If and when in the judgment of the President there is a need to expand the mandate of the Commission as defined in Section 1 hereof to include

Biraogo vs. Philippine Truth Commission

the investigation of cases and instances of graft and corruption during the prior administrations, such mandate may be so extended accordingly by way of a supplemental Executive Order.

The Court is not convinced. Although Section 17 allows the President the discretion to expand the scope of investigations of the PTC so as to include the acts of graft and corruption committed in other past administrations, it does not guarantee that they would be covered in the future. Such expanded mandate of the commission will still depend on the whim and caprice of the President. If he would decide not to include them, the section would then be meaningless. This will only fortify the fears of the petitioners that the Executive Order No. 1 was crafted to tailor -fit the prosecution of officials and personalities of the Arroyo administration.[105]

The Court tried to seek guidance from the pronouncement in the case of Virata v. Sandiganbayan,[106] that the PCGG Charter (composed of Executive Orders Nos. 1, 2 and 14) does not violate the equal protection clause. The decision, however, was devoid of any discussion on how such conclusory statement was arrived at, the principal issue in said case being only the sufficiency of a cause of action. A final word The issue that seems to take center stage at present is - whether or not the Supreme Court, in the exercise of its constitutionally mandated power of Judicial Review with respect to recent initiatives of the legislature and the executive department, is exercising undue interference. Is the Highest Tribunal, which is expected to be the protector of the Constitution, itself guilty of violating fundamental tenets like the doctrine of separation of powers? Time and again, this issue has been addressed by the Court, but it seems that the present political situation calls for it to once again explain the legal basis of its action lest it continually be accused of being a hindrance to the nations thrust to progress. The Philippine Supreme Court, according to Article VIII, Section 1 of the 1987 Constitution, is vested with Judicial Power that 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 of abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government. Furthermore, in Section 4(2) thereof, it is vested with the power of judicial review which is the power to declare a treaty, international or executive agreement, law, presidential decree,

Biraogo vs. Philippine Truth Commission

proclamation, order, instruction, ordinance, or regulation unconstitutional. This power also includes the duty to rule on the constitutionality of the application, or operation of presidential decrees, proclamations, orders, instructions, ordinances, and other regulations. These provisions, however, have been fertile grounds of conflict between the Supreme Court, on one hand, and the two co-equal bodies of government, on the other. Many times the Court has been accused of asserting superiority over the other departments. To answer this accusation, the words of Justice Laurel would be a good source of enlightenment, to wit: 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.[107] Thus, the Court, in exercising its power of judicial review, is not imposing its own will upon a co-equal body but rather simply making sure that any act of government is done in consonance with the authorities and rights allocated to it by the Constitution. And, if after said review, the Court finds no constitutional violations of any sort, then, it has no more authority of proscribing the actions under review. Otherwise, the Court will not be deterred to pronounce said act as void and unconstitutional. It cannot be denied that most government actions are inspired with noble intentions, all geared towards the betterment of the nation and its people. But then again, it is important to remember this ethical principle: The end does not justify the means. No matter how noble and worthy of admiration the purpose of an act, but if the means to be employed in accomplishing it is simply irreconcilable with constitutional parameters, then it cannot still be allowed.[108] The Court cannot just turn a blind eye and simply let it pass. It will continue to uphold the Constitution and its enshrined principles. The Constitution must ever remain supreme. All must bow to the mandate of this law. Expediency must not be allowed to sap its strength nor greed for power debase its rectitude.[109]

Lest it be misunderstood, this is not the death knell for a truth commission as nobly envisioned by the present administration. Perhaps a revision of the executive issuance so as to include the earlier past administrations would allow it to pass the test of reasonableness and not be an affront to the Constitution. Of all the branches of the government, it is the judiciary

Biraogo vs. Philippine Truth Commission

which is the most interested in knowing the truth and so it will not allow itself to be a hindrance or obstacle to its attainment. It must, however, be emphasized that the search for the truth must be within constitutional bounds for ours is still a government of laws and not of men. [110] WHEREFORE, the petitions are GRANTED. Executive Order No. 1 is hereby declared UNCONSTITUTIONAL insofar as it is violative of the equal protection clause of the Constitution. As also prayed for, the respondents are hereby ordered to cease and desist from carrying out the provisions of Executive Order No. 1. SO ORDERED.

US vs Grubbs
UNITED STATES v. GRUBBS certiorari to the united states court of appeals for the ninth circuit No. 04-1414. Argued January 18, 2006--Decided March 21, 2006 A Magistrate Judge issued an "anticipatory" search warrant for respondent Grubbs' house based on a federal officer's affidavit. The affidavit explained that the warrant would not be executed until a parcel containing a videotape of child pornography--which Grubbs had ordered from an undercover postal inspector--was received at, and physically taken into, the residence. The affidavit also referred to two attachments describing the residence and the items to be seized. After the package was delivered and the search commenced, Grubbs was given a copy of the warrant, which included the attachments but not the supporting affidavit. When he admitted ordering the videotape, he was arrested, and the videotape and other items were seized. Following his indictment for receiving child pornography, see 18 U. S. C. 2252(a)(2), Grubbs moved to suppress the seized evidence, arguing, inter alia, that the warrant was invalid because it failed to list the triggering condition. The District Court denied the motion, and Grubbs pleaded guilty. The Ninth Circuit reversed, concluding that the warrant ran afoul of the Fourth Amendment's particularity requirement, which, under Circuit precedent, applied to the conditions precedent to an anticipatory warrant. Held: 1. Anticipatory warrants are not categorically unconstitutional under the Fourth Amendment's provision that "no Warrants shall issue, but upon probable cause." Probable cause exists when "there is a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v.Gates, 462 U. S. 213, 238. When an anticipatory warrant is issued, the fact that the contraband is not presently at the place described is immaterial, so long as there is probable cause to believe it will be there when the warrant is executed. Anticipatory warrants are, therefore, no different in principle from ordinary warrants: They require the magistrate to determine (1) that it is now probable that (2) contraband, evidence of a crime, or a fugitive will be on the described premises (3) when the warrant is executed. Where the anticipatory warrant places a condition (other than the mere passage of time) upon its execution, the first of these determinations goes not merely to what will probably be found ifthe condition is met, but also to the likelihood that the condition will be met, and thus that a proper object of seizure will be on the described premises. Here, the occurrence of the triggering condition--successful delivery of the videotape-would plainly establish probable cause for the search, and the affidavit established probable cause to believe the triggering condition would be satisfied. Pp. 3-7. 2. The warrant at issue did not violate the Fourth Amendment's particularity requirement. The Amendment specifies only two matters that the warrant must "particularly describ[e]": "the place to be searched" and "the persons or things to be seized." That language is decisive here; the particularity requirement does not include the conditions precedent to execution of the warrant. Cf. Dalia v. United States, 441 U. S. 238, 255, 257. Respondent's two policy rationales--that setting forth the triggering condition in the warrant itself is necessary (1) to delineate the limits of the executing officer's power and (2) to allow the individual whose property is searched or seized to police the officer's conduct--find no basis in either the Fourth Amendment or Federal Rule of Criminal Procedure 41. Pp. 7-9. 377 F. 3d 1072 and 389 F. 3d 1306, reversed and remanded. Scalia, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Thomas, andBreyer, JJ., joined, and in which Stevens, Souter, and Ginsburg, J., joined as to Parts I and II. Souter, J., filed an opinion concurring in part and concurring in the judgment, in which Stevens and Ginsburg, JJ., joined. Alito, J., took no part in the consideration or decision of the case.

US vs Grubbs
UNITED STATES, PETITIONER v. JEFFREY GRUBBS on writ of certiorari to the united states court of appeals for the ninth circuit [March 21, 2006]

Justice Scalia delivered the opinion of the Court. Federal law enforcement officers obtained a search warrant for respondent's house on the basis of an affidavit explaining that the warrant would be executed only after a controlled delivery of contraband to that location. We address two challenges to the constitutionality of this anticipatory warrant. I Respondent Jeffrey Grubbs purchased a videotape containing child pornography from a Web site operated by an undercover postal inspector. Officers from the Postal Inspection Service arranged a controlled delivery of a package containing the videotape to Grubbs' residence. A postal inspector submitted a search warrant application to a Magistrate Judge for the Eastern District of California, accompanied by an affidavit describing the proposed operation in detail. The affidavit stated: "Execution of this search warrant will not occur unless and until the parcel has been received by a person(s) and has been physically taken into the residence . . . . At that time, and not before, this search warrant will be executed by me and other United States Postal inspectors, with appropriate assistance from other law enforcement officers in accordance with this warrant's command." App. to Pet. for Cert. 72a. In addition to describing this triggering condition, the affidavit referred to two attachments, which described Grubbs' residence and the items officers would seize. These attachments, but not the body of the affidavit, were incorporated into the requested warrant. The affidavit concluded: "Based upon the foregoing facts, I respectfully submit there exists probable cause to believe that the items set forth in Attachment B to this affidavit and the search warrant, will be found [at Grubbs' residence], which residence is further described at Attachment A." Ibid. The Magistrate Judge issued the warrant as requested. Two days later, an undercover postal inspector delivered the package. Grubbs' wife signed for it and took the unopened package inside. The inspectors detained Grubbs as he left his home a few minutes later, then entered the house and commenced the search. Roughly 30 minutes into the search, Grubbs was provided with a copy of the warrant, which included both attachments but not the supporting affidavit that explained when the warrant would be executed. Grubbs consented to interrogation by the postal inspectors and admitted ordering the videotape. He was placed under arrest, and various items were seized, including the videotape. A grand jury for the Eastern District of California indicted Grubbs on one count of receiving a visual depiction of a minor engaged in sexually explicit conduct. See 18 U. S. C. 2252(a)(2). He moved to suppress the evidence seized during the search of his residence, arguing as relevant here that the warrant was invalid because it failed to list the triggering condition. After an evidentiary hearing, the District Court denied the motion. Grubbs pleaded guilty, but reserved his right to appeal the denial of his motion to suppress.

US vs Grubbs
The Court of Appeals for the Ninth Circuit reversed. 377 F. 3d 1072, amended, 389 F. 3d 1306 (2004). Relying on Circuit precedent, it held that "the particularity requirement of the Fourth Amendment applies with full force to the conditions precedent to an anticipatory search warrant." 377 F. 3d, at 1077-1078 (citing United States v. Hotal, 143 F. 3d 1223, 1226 (CA9 1998)). An anticipatory warrant defective for that reason may be "cur[ed]" if the conditions precedent are set forth in an affidavit that is incorporated in the warrant and "presented to the person whose property is being searched." 377 F. 3d, at 1079. Because the postal inspectors "failed to present the affidavit--the only document in which the triggering conditions were listed"--to Grubbs or his wife, the "warrant was ... inoperative, and the search was illegal." Ibid. We granted certiorari. 545 U. S. ___ (2005). II Before turning to the Ninth Circuit's conclusion that the warrant at issue here ran afoul of the Fourth Amendment's particularity requirement, we address the antecedent question whether anticipatory search warrants are categorically unconstitutional.1 An anticipatory warrant is "a warrant based upon an affidavit showing probable cause that at some future time (but not presently) certain evidence of crime will be located at a specified place." 2 W. LaFave, Search and Seizure 3.7(c), p. 398 (4th ed. 2004). Most anticipatory warrants subject their execution to some condition precedent other than the mere passage of time--a so-called "triggering condition." The affidavit at issue here, for instance, explained that "[e]xecution of th[e] search warrant will not occur unless and until the parcel [containing child pornography] has been received by a person(s) and has been physically taken into the residence." App. to Pet. for Cert. 72a. If the government were to execute an anticipatory warrant before the triggering condition occurred, there would be no reason to believe the item described in the warrant could be found at the searched location; by definition, the triggering condition which establishes probable cause has not yet been satisfied when the warrant is issued. Grubbs argues that for this reason anticipatory warrants contravene the Fourth Amendment's provision that "no Warrants shall issue, but upon probable cause." We reject this view, as has every Court of Appeals to confront the issue, see, e.g., United States v.Loy, 191 F. 3d 360, 364 (CA3 1999) (collecting cases). Probable cause exists when "there is a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates,462 U. S. 213, 238 (1983). Because the probable-cause requirement looks to whether evidence will be found when the search is conducted, all warrants are, in a sense, "anticipatory." In the typical case where the police seek permission to search a house for an item they believe is already located there, the magistrate's determination that there is probable cause for the search amounts to a prediction that the item will still be there when the warrant is executed. See People v. Glen, 30 N. Y. 2d 252, 258, 282 N. E. 2d 614, 617 (1972) ("[P]resent possession is only probative of the likelihood of future possession."). 2 The anticipatory nature of warrants is even clearer in the context of electronic surveillance. See, e.g., Katz v. United States, 389 U. S. 347 (1967). When police request approval to tap a telephone line, they do so based on the probability that, during the course of the surveillance, the subject will use the phone to engage in crime-related conversations. The relevant federal provision requires a judge authorizing "interception of wire, oral, or electronic communications" to determine that "there is probable cause for belief that particular communications concerning [one of various listed offenses] will be obtained through such interception." 18 U. S. C. 2518(3)(b) (emphasis added); see also United States v. Ricciardelli, 998 F. 2d 8, 11, n. 3 (CA1 1993) ("[T]he magistrate issues the warrant on the basis of a substantial probability that crime-related conversations will ensue."). Thus, when an anticipatory warrant is issued, "the fact that the contraband is not presently located at the place described in the warrant is immaterial, so long as there is probable cause to believe that it will be there when the search warrant is executed." United States v. Garcia, 882 F. 2d 699, 702 (CA2 1989) (quoting United States v. Lowe, 575 F. 2d 1193, 1194 (CA6 1978); internal quotation marks omitted). Anticipatory warrants are, therefore, no different in principle from ordinary warrants. They require the magistrate to determine (1) that it is now probable that (2) contraband, evidence of a crime, or a fugitive will be on the described premises (3) when the warrant is executed. It should be noted, however, that where the anticipatory warrant places a condition (other than the mere passage of time) upon its execution, the first of these determinations goes not merely to what will probably be

US vs Grubbs
found ifthe condition is met. (If that were the extent of the probability determination, an anticipatory warrant could be issued for every house in the country, authorizing search and seizure if contraband should be delivered--though for any single location there is no likelihood that contraband will be delivered.) Rather, the probability determination for a conditioned anticipatory warrant looks also to the likelihood that the condition will occur, and thus that a proper object of seizure will be on the described premises. In other words, for a conditioned anticipatory warrant to comply with the Fourth Amendment's requirement of probable cause, two prerequisites of probability must be satisfied. It must be true not only that if the triggering condition occurs "there is a fair probability that contraband or evidence of a crime will be found in a particular place," Gates, supra, at 238, but also that there is probable cause to believe the triggering condition will occur. The supporting affidavit must provide the magistrate with sufficient information to evaluate both aspects of the probable-cause determination. See Garcia, supra, at 703. In this case, the occurrence of the triggering condition--successful delivery of the videotape to Grubbs' residence--would plainly establish probable cause for the search. In addition, the affidavit established probable cause to believe the triggering condition would be satisfied. Although it is possible that Grubbs could have refused delivery of the videotape he had ordered, that was unlikely. The Magistrate therefore "had a 'substantial basis for . . . conclud[ing]' that probable cause existed."Gates, 462 U. S., at 238-239 (quoting Jones v. United States, 362 U. S. 257, 271 (1960)). III The Ninth Circuit invalidated the anticipatory search warrant at issue here because the warrant failed to specify the triggering condition. The Fourth Amendment's particularity requirement, it held, "applies with full force to the conditions precedent to an anticipatory search warrant." 377 F. 3d, at 1077-1078. The Fourth Amendment, however, does not set forth some general "particularity requirement." It specifies only two matters that must be "particularly describ[ed]" in the warrant: "the place to be searched" and "the persons or things to be seized." We have previously rejected efforts to expand the scope of this provision to embrace unenumerated matters. In Dalia v. United States, 441 U. S. 238(1979), we considered an order authorizing the interception of oral communications by means of a "bug" installed by the police in the petitioner's office. The petitioner argued that, if a covert entry is necessary to install such a listening device, the authorizing order must "explicitly set forth its approval of such entries before the fact." Id., at 255. This argument fell before the " 'precise and clear' " words of the Fourth Amendment: "Nothing in the language of the Constitution or in this Court's decisions interpreting that language suggests that, in addition to the [requirements set forth in the text], search warrants also must include a specification of the precise manner in which they are to be executed." Id., at 255 (quoting Stanford v. Texas, 379 U. S. 476, 481 (1965)), 257. The language of the Fourth Amendment is likewise decisive here; its particularity requirement does not include the conditions precedent to execution of the warrant. Respondent, drawing upon the Ninth Circuit's analysis below, relies primarily on two related policy rationales. First, he argues, setting forth the triggering condition in the warrant itself is necessary "to delineate the limits of the executing officer's power." Brief for Respondent 20. This is an application, respondent asserts, of the following principle: "[I]f there is a precondition to the valid exercise of executive power, that precondition must be particularly identified on the face of the warrant." Id., at 23. That principle is not to be found in the Constitution. The Fourth Amendment does not require that the warrant set forth the magistrate's basis for finding probable cause, even though probable cause is the quintessential "precondition to the valid exercise of executive power." Much less does it require description of a triggering condition. Second, respondent argues that listing the triggering condition in the warrant is necessary to " 'assur[e] the individual whose property is searched or seized of the lawful authority of the executing officer, his need to search, and the limits of his power to search.' " Id., at 19 (quoting United States v.Chadwick, 433 U. S. 1, 9 (1977)). The Ninth Circuit went even further, asserting that if the property owner were not informed of the triggering condition, he "would 'stand [no] real chance of policing the officers' conduct.' " 377 F. 3d, at 1079 (quoting Ramirez v. Butte-Silver Bow County, 298 F. 3d 1022, 1027 (CA9

US vs Grubbs
2002)). This argument assumes that the executing officer must present the property owner with a copy of the warrant before conducting his search. See 377 F. 3d, at 1079, n. 9. In fact, however, neither the Fourth Amendment nor Rule 41 of the Federal Rules of Criminal Procedure imposes such a requirement. See Groh v. Ramirez, 540 U. S. 551, 562, n. 5 (2004). "The absence of a constitutional requirement that the warrant be exhibited at the outset of the search, or indeed until the search has ended, is ... evidence that the requirement of particular description does not protect an interest in monitoring searches." United States v. Stefonek, 179 F. 3d 1030, 1034 (CA7 1999) (citations omitted). The Constitution protects property owners not by giving them license to engage the police in a debate over the basis for the warrant, but by interposing, ex ante, the "deliberate, impartial judgment of a judicial officer . . . between the citizen and the police." Wong Sun v. United States, 371 U. S. 471, 481482 (1963), and by providing, ex post, a right to suppress evidence improperly obtained and a cause of action for damages. * * *

Because the Fourth Amendment does not require that the triggering condition for an anticipatory search warrant be set forth in the warrant itself, the Court of Appeals erred in invalidating the warrant at issue here. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Justice Alito took no part in the consideration or decision of this case.

UNITED STATES, PETITIONER v. JEFFREY GRUBBS on writ of certiorari to the united states court of appeals for the ninth circuit [March 21, 2006]

Justice Souter, with whom Justice Stevens and Justice Ginsburg join, concurring in part and concurring in the judgment. I agree with the Court that anticipatory warrants are constitutional for the reasons stated in Part II of the Court's opinion, and I join in the disposition of this case. But I would qualify some points made in Part III. The Court notes that a warrant's failure to specify the place to be searched and the objects sought violates an express textual requirement of the Fourth Amendment, whereas the text says nothing about a condition placed by the issuing magistrate on the authorization to search (here, delivery of the package of contraband). That textual difference is, however, no authority for neglecting to specify the point or contingency intended by the magistrate to trigger authorization, and the government should beware of banking on the terms of a warrant without such specification. The notation of a starting date was an established feature even of the objectionable 18th-century writs of assistance, see, e.g., Massachusetts Writs of Assistance Bill, 1762, reprinted in M. Smith, The Writs of Assistance Case 567-568 (1978); Writ of Assistance (English) of George III, 1761, reprinted in id., at 524-527. And it is fair to say that the very word "warrant" in the Fourth Amendment means a statement of authority that sets out the time at which (or, in the case of anticipatory warrants, the condition on which) the authorization begins.** An issuing magistrate's failure to mention that condition can lead to several untoward consequences with constitutional significance. To begin with, a warrant that fails to tell the truth about what a magistrate authorized cannot inform the police officer's responsibility to respect the limits of authorization, see Groh v. Ramirez, 540 U. S. 551, 560-563, 561, and n. 4 (2004), a failing assuming real significance when the warrant is not executed by the official who applied for it and happens to

US vs Grubbs
know the unstated condition. The peril is that if an officer simply takes such a warrant on its face and makes the ostensibly authorized search before the unstated condition has been met, the search will be held unreasonable. It is true that we have declined to apply the exclusionary rule when a police officer reasonably relies on the product of a magistrate's faulty judgment or sloppy practice, seeMassachusetts v. Sheppard, 468 U. S. 981, 987-991 (1984). But when a government officer obtains what the magistrate says is an anticipatory warrant, he must know or should realize when it omits the condition on which authorization depends, and it is hard to see why the government should not be held to the condition despite the unconditional face of the warrant. Cf. Groh v. Ramirez, supra, at 554-555, 563, and n. 6 (declaring unconstitutional a search conducted pursuant to a warrant failing to specify the items the government asked the magistrate permission to seize in part because "officers leading a search team must 'make sure that they have a proper warrant that in fact authorizes the search and seizure they are about to conduct' " (brackets omitted)). Nor does an incomplete anticipatory warrant address an owner's interest in an accurate statement of the government's authority to search property. To be sure, the extent of that interest is yet to be settled; in Groh v. Ramirez, supra, the Court was careful to note that the right of an owner to demand to see a copy of the warrant before making way for the police had not been determined, id., at 562, n. 5, and it remains undetermined today. But regardless of any right on the owner's part, showing an accurate warrant reliably "assures the individual whose property is searched or seized of the lawful authority of the executing officer, his need to search, and the limits of his power to search." United States v. Chadwick, 433 U. S. 1, 9 (1977), quoted in Groh v. Ramirez, supra, at 561. And if a later case holds that the homeowner has a right to inspect the warrant on request, a statement of the condition of authorization would give the owner a right to correct any misapprehension on the police's part that the condition had been met when in fact it had not been. If the police were then to enter anyway without a reasonable (albeit incorrect) justification, the search would certainly be open to serious challenge as unreasonable within the meaning of the Fourth Amendment.

AAA vs. Carbonell

THIRD DIVISION
AAA,* Petitioner, Present: - versus Ynares-Santiago, J. (Chairperson), Austria-Martinez, Chico-Nazario, and Nachura, JJ. HON. ANTONIO A. CARBONELL, in his capacity as Presiding Judge, Branch 27, Regional Trial Court, San Fernando City, La Union and ENGR. JAIME O. ARZADON, Respondents. June 8, 2007 Promulgated: G.R. No. 171465

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

AAA vs. Carbonell

DECISION
YNARES-SANTIAGO, J.:

This petition for certiorari[1] assails the December 16, 2005[2] Order of the Regional Trial Court, Branch 27, San Fernando, La Union in Criminal Case No. 6983, dismissing the rape case filed against private respondent Jaime O. Arzadon for lack of probable cause; and its February 3, 2006[3] Order denying petitioners motion for reconsideration.

Petitioner worked as a secretary at the Arzadon Automotive and Car Service Center from February 28, 2001 to August 16, 2001. On May 27, 2001 at about 6:30 p.m., Arzadon asked her to deliver a book to an office located at another building but when she returned to their office, the lights had been turned off and the gate was closed. Nevertheless, she went inside to get her handbag.

On her way out, she saw Arzadon standing beside a parked van holding a pipe. He told her to go near him and upon reaching his side, he threatened her with the pipe and forced her to lie on the pavement. He removed her pants and underwear, and inserted his penis into her vagina. She wept and cried out for help but to no avail because there was nobody else in the premises.

Petitioner did not report the incident because Arzadon threatened to kill her and her family. But when she discovered that she was pregnant as a consequence of the rape, she narrated the incident to her parents. On July 24, 2002, petitioner filed a complaint for rape against Arzadon.

On September 16, 2002, Assistant City Prosecutor Imelda Cosalan issued a Resolution[4] finding probable cause and recommending the filing of an information for rape. Arzadon moved for reconsideration and during the clarificatory hearing held on October

AAA vs. Carbonell

11, 2002, petitioner testified before the investigating prosecutor. However, she failed to attend the next hearing hence, the case was provisionally dismissed.

On March 5, 2003, petitioner filed another Affidavit-Complaint[5] with a comprehensive account of the alleged rape incident. The case was assigned to 2nd Assistant Provincial Prosecutor Georgina Hidalgo. During the preliminary investigation, petitioner appeared for clarificatory questioning. On June 11, 2003, the investigating prosecutor issued a Resolution[6] finding that a prima facie case of rape exists and recommending the filing of the information.

Arzadon moved for reconsideration and requested that a panel of prosecutors be constituted to review the case. Thus, a panel of prosecutors was created and after the clarificatory questioning, the panel issued on October 13, 2003 a Resolution[7] finding probable cause and denying Arzadons motion for reconsideration.

An Information[8] for rape was filed before the Regional Trial Court, Branch 27, San Fernando, La Union on February 6, 2004, docketed as Criminal Case No. 6415. Thereafter, Arzadon filed a Motion to Hold in Abeyance All Court Proceedings Including the Issuance of a Warrant of Arrest and to Determine Probable Cause for the Purpose of Issuing a Warrant of Arrest.[9] On March 18, 2004, respondent Judge Antonio A. Carbonell granted the motion and directed petitioner and her witnesses to take the witness stand for determination of probable cause.

Arzadon also appealed the Resolution of the panel of prosecutors finding probable cause before the Department of Justice. On July 9, 2004, then Acting Secretary of Justice Merceditas Gutierrez found no probable cause and directed the withdrawal of the Information in Criminal Case No. 6415.[10]

Upon motion for reconsideration by petitioner, however, Secretary of Justice Raul Gonzales reversed the July 9, 2004 Resolution and issued another Resolution[11] finding that probable cause exists. Thus, a new Information[12] for rape was filed against Arzadon docketed as Criminal Case No. 6983.

AAA vs. Carbonell

Consequently, Arzadon filed an Urgent Motion for Judicial Determination of Probable Cause for the Purpose of Issuing a Warrant of Arrest.[13] In an Order dated August 11, 2005, respondent Judge Carbonell granted the motion and directed petitioner and her witnesses to take the witness stand.

Instead of taking the witness stand, petitioner filed a motion for reconsideration claiming that the documentary evidence sufficiently established the existence of probable cause. Pending resolution thereof, she likewise filed a petition[14] with this Court for the transfer of venue of Criminal Case No. 6983. The case was docketed as Administrative Matter No. 05-12-756-RTC and entitled Re: Transfer of Venue of Criminal Case No. 6983, formerly Criminal Case No. 6415, from the Regional Trial Court, Branch 27, San Fernando City, La Union, to any Court in Metro Manila.

In a Resolution[15] dated January 18, 2006, the Court granted petitioners request for transfer of venue. The case was raffled to the Regional Trial Court of Manila, Branch 25, and docketed as Criminal Case No. 06-242289. However, the proceedings have been suspended pending the resolution of this petition.

Meanwhile, on December 16, 2005, respondent Judge Carbonell issued the assailed Order dismissing Criminal Case No. 6983 for lack of probable cause. Petitioners motion for reconsideration was denied hence, this petition.

Petitioner raises the following issues:[16]

RESPONDENT JUDGE ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF OR IN EXCESS OF JURISDICTION WHEN IT GRANTED THE MOTION FOR DETERMINATION OF PROBABLE CAUSE FILED BY THE PRIVATE RESPONDENT AND THE SUBSEQUENT DENIAL OF THE MOTION FOR RECONSIDERATION

II

AAA vs. Carbonell RESPONDENT JUDGE COMMITTED FURTHER ACTS CONSTITUTING GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR IN EXCESS OF JURISDICTION WHEN IT ORDERED THE COMPLAINANT AND WITNESSES TO TAKE THE STAND FOR THE PURPOSE OF DETERMINING PROBABLE CAUSE

III

RESPONDENT JUDGE ACTED WITH GRAVE ABUSE OF DISCRETION WHEN HE REFUSED TO INHIBIT FROM FURTHER HANDLING THE CASE DESPITE WHISPERS OF DOUBT ON HIS BIAS AND PARTIALITY

IV

RESPONDENT JUDGE ACTED WITH GRAVE ABUSE OF DISCRETION WHEN IT ISSUED THE ORDER OF FEBRUARY 3, 2006, DENYING THE MOTION FOR RECONSIDERATION, DESPITE THE SUPREME COURT RESOLUTION OF JANUARY 18, 2006, GRANTING THE TRANSFER OF VENUE

Petitioner contends that the judge is not required to personally examine the complainant and her witnesses in satisfying himself of the existence of probable cause for the issuance of a warrant of arrest. She argues that respondent Judge Carbonell should have taken into consideration the documentary evidence as well as the transcript of stenographic notes which sufficiently established the existence of probable cause.

Arzadon claims that the petition should be dismissed outright for being the wrong mode of appeal, it appearing that the issues raised by petitioner properly fall under an action for certiorari under Rule 65, and not Rule 45, of the Rules of Court.

Respondent Judge Carbonell argues in his Comment[17] that the finding of probable cause by the investigating prosecutor is not binding or obligatory, and that he was justified in requiring petitioner and her witnesses to take the witness stand in order to determine probable cause.

The issues for resolution are 1) whether the petition should be dismissed for being the wrong mode of appeal; and 2) whether respondent Judge Carbonell acted with grave abuse of discretion in dismissing Criminal Case No. 6983 for lack of probable cause.

AAA vs. Carbonell

The petition has merit.

A petition for review on certiorari under Rule 45 is distinct from a petition for certiorari under Rule 65 in that the former brings up for review errors of judgment while the latter concerns errors of jurisdiction or grave abuse of discretion amounting to lack or excess of jurisdiction. Grave abuse of discretion is not an allowable ground under Rule 45. However, a petition for review on certiorari under Rule 45 may be considered a petition for certiorari under Rule 65 where it is alleged that the respondents abused their discretion in their questioned actions, as in the instant case.[18] While petitioner claims to have brought the instant action under Rule 45, the grounds raised herein involve an alleged grave abuse of discretion on the part of respondent Judge Carbonell. Accordingly, the Court shall treat the same as a petition for certiorari under Rule 65.

However, we must point out the procedural error committed by petitioner in directly filing the instant petition before this Court instead of the Court of Appeals, thereby violating the principle of judicial hierarchy of courts. It is well-settled that although the Supreme Court, Court of Appeals and the Regional Trial Courts have concurrent jurisdiction to issue writs of certiorari, prohibition, mandamus, quo warranto, habeas corpus and injunction, such concurrence does not give the petitioner unrestricted freedom of choice of court forum.[19] In this case, however, the gravity of the offense charged and the length of time that has passed since the filing of the complaint for rape, compel us to resolve the present controversy in order to avoid further delay.[20]

We thus proceed to the issue of whether respondent Judge Carbonell acted with grave abuse of discretion in dismissing Criminal Case No. 6983 for lack of probable cause.

We rule in the affirmative.

Respondent Judge Carbonell dismissed Criminal Case No. 6983 for lack of probable cause on the ground that petitioner and her witnesses failed to comply with his orders to take the witness stand. Thus

AAA vs. Carbonell

In RESUME therefore, as indubitably borne out by the case record and considering that the Private Prosecutor, despite several admonitions contumaciously nay contemptuously refused to comply/obey this Courts Orders of March 18, 2004, August 11, 2005 and eight (8) other similar Orders issued in open Court that directed the complainant/witnesses to take the witness stand to be asked probing/clarificatory questions consonant with cited jurisprudential rulings of the Supreme Court, this Court in the exercise of its discretion and sound judgment finds and so holds that NO probable cause was established to warrant the issuance of an arrest order and the further prosecution of the instant case.

Record also shows in no unclear terms that in all the scheduled hearings of the case, the accused had always been present. A contrario, the private complainant failed to appear during the last four (4) consecutive settings despite due notice without giving any explanation, which to the mind of the Court may indicate an apparent lack of interest in the further prosecution of this case. That failure may even be construed as a confirmation of the Defenses contention reflected in the case record, that the only party interested in this case is the Private prosecutor, prodded by the accuseds alleged hostile siblings to continue with the case.

WHEREFORE, premises considered, for utter lack of probable cause, the instant case is hereby ordered DISMISSED.[21]

He claims that under Section 2, Article III of the 1987 Constitution, no warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce.

However, in the leading case of Soliven v. Makasiar,[22] the Court explained that this constitutional provision does not mandatorily require the judge to personally examine the complainant and her witnesses. Instead, he may opt to personally evaluate the report and supporting documents submitted by the prosecutor or he may disregard the prosecutors report and require the submission of supporting affidavits of witnesses. Thus:

The addition of the word personally after the word determined and the deletion of the grant of authority by the 1973 Constitution to issue warrants to other responsible officers as may be authorized by law, has apparently convinced petitioner Beltran that the Constitution now requires the judge to personally examine the complainant and his witnesses in his determination of probable cause for the issuance of warrants of arrest. This is not an accurate interpretation.

AAA vs. Carbonell What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of probable cause. In satisfying himself of the existence of probable cause for the issuance of a warrant of arrest, the judge is not required to personally examine the complainant and his witnesses. Following established doctrine and procedure, he shall: (1) personally evaluate the report and the supporting documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest; or (2) if on the basis thereof he finds no probable cause, he may disregard the fiscals report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause.

Sound policy dictates this procedure, otherwise judges would by unduly laden with the preliminary examination and investigation of criminal complaints instead of concentrating on hearing and deciding cases filed before their courts.[23]

We reiterated the above ruling in the case of Webb v. De Leon,[24] where we held that before issuing warrants of arrest, judges merely determine the probability, not the certainty, of guilt of an accused. In doing so, judges do not conduct a de novo hearing to determine the existence of probable cause. They just personally review the initial determination of the prosecutor finding a probable cause to see if it is supported by substantial evidence.[25]

It is well to remember that there is a distinction between the preliminary inquiry which determines probable cause for the issuance of a warrant of arrest and the preliminary investigation proper which ascertains whether the offender should be held for trial or be released. The determination of probable cause for purposes of issuing the warrant of arrest is made by the judge. The preliminary investigation proper whether or not there is reasonable ground to believe that the accused is guilty of the offense charged is the function of the investigating prosecutor.[26]

True, there are cases where the circumstances may call for the judges personal examination of the complainant and his witnesses. But it must be emphasized that such personal examination is not mandatory and indispensable in the determination of probable cause for the issuance of a warrant of arrest. The necessity arises only when there is an utter failure of the evidence to show the existence of probable cause.[27] Otherwise, the judge may rely on the report of the investigating prosecutor, provided that he likewise evaluates the documentary evidence in support thereof.

AAA vs. Carbonell

Indeed, what the law requires as personal determination on the part of the judge is that he should not rely solely on the report of the investigating prosecutor. In Okabe v. Gutierrez,[28] we stressed that the judge should consider not only the report of the investigating prosecutor but also the affidavit and the documentary evidence of the parties, the counter-affidavit of the accused and his witnesses, as well as the transcript of stenographic notes taken during the preliminary investigation, if any, submitted to the court by the investigating prosecutor upon the filing of the Information.[29] If the report, taken together with the supporting evidence, is sufficient to sustain a finding of probable cause, it is not compulsory that a personal examination of the complainant and his witnesses be conducted.

In this case, respondent Judge Carbonell dismissed Criminal Case No. 6983 without taking into consideration the June 11, 2003 Resolution of 2ndAssistant Provincial Prosecutor Georgina Hidalgo, the October 13, 2003 Resolution of the panel of prosecutors, and the July 1, 2005 Resolution of the Department of Justice, all of which sustain a finding of probable cause against Arzadon. Moreover, he failed to evaluate the evidence in support thereof. Respondent judges finding of lack of probable cause was premised only on the complainants and her witnesses absence during the hearing scheduled by the respondent judge for the judicial determination of probable cause.

Petitioner narrated in detail the alleged rape incident both in her Sinumpaang Salaysay[30] dated July 24, 2002 and Complaint-Affidavit[31] datedMarch 5, 2003. She attended several clarificatory hearings that were conducted in the instant case. The transcript of stenographic notes[32] of the hearing held on October 11, 2002 shows that she positively identified Arzadon as her assailant, and the specific time and place of the incident. She also claimed that she bore a child as a result of the rape and, in support of her contentions, presented the child and her birth certificate as evidence. In contrast, Arzadon merely relied on the defense of alibi which is the weakest of all defenses.

After a careful examination of the records, we find that there is sufficient evidence to establish probable cause. The gravamen of rape is the carnal knowledge by the accused of the private complainant under any of the circumstances provided in Article 335 of the Revised Penal Code, as amended.[33] Petitioner has categorically stated that Arzadon raped her, recounting her ordeal in detail during the preliminary investigations. Taken with the other evidence presented before the investigating prosecutors, such is sufficient for purposes of establishing probable cause. It is well-settled that a finding of probable cause need not be based on clear and

AAA vs. Carbonell

convincing evidence beyond reasonable doubt. Probable cause is that which engenders a wellfounded belief that a crime has been committed and that the respondent is probably guilty thereof and should be held for trial. It does not require that the evidence would justify conviction.[34]

It is clear therefore that respondent Judge Carbonell gravely abused his discretion in dismissing Criminal Case No. 6983 for lack of probable cause on the ground that petitioner and her witnesses failed to take the witness stand. Considering there is ample evidence and sufficient basis on record to support a finding of probable cause, it was unnecessary for him to take the further step of examining the petitioner and her witnesses. Moreover, he erred in holding that petitioners absences in the scheduled hearings were indicative of a lack of interest in prosecuting the case. In fact, the records show that she has relentlessly pursued the same.

Needless to say, a full-blown trial is to be preferred to ferret out the truth.[35] As it were, the incidents of this case have been pending for almost five years without having even passed the preliminary investigation stage. Suffice to say that the credibility of petitioner may be tested during the trial where the respective allegations and defenses of the complainant and the accused are properly ventilated. It is only then that the truth as to Arzadons innocence or guilt can be determined.

WHEREFORE, the petition is GRANTED. The Orders of the Regional Trial Court, Branch 27, San Fernando, La Union dated December 16, 2005, and February 3, 2006 dismissing Criminal Case No. 6983 for lack of probable cause are REVERSED and SET ASIDE, and the Information in the said case is hereby REINSTATED. The Regional Trial Court, Branch 25, Manila is DIRECTED to take cognizance of the case and let the records thereof beREMANDED to the said court for further proceedings.

SO ORDERED.

LA County vs. Rettle

Per Curiam

SUPREME COURT OF THE UNITED STATES

LOS ANGELES COUNTY, CALIFORNIA, et al. v.MAX RETTELE et al.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

No. 06605. Decided May 21, 2007

Per Curiam. Deputies of the Los Angeles County Sheriffs Department obtained a valid warrant to search a house, but they were unaware that the suspects being sought had moved out three months earlier. When the deputies searched the house, they found in a bedroom two residents who were of a different race than the suspects. The deputies ordered these innocent residents, who had been sleeping unclothed, out of bed. The deputies required them to stand for a few minutes before allowing them to dress. The residents brought suit under Rev. Stat. 1979, 42 U. S. C. 1983, naming the deputies and other parties and accusing them of violating the Fourth Amendment right to be free from unreasonable searches and seizures. The District Court granted summary judgment to all named defendants. The Court of Appeals for the Ninth Circuit reversed, concluding both that the deputies violated the Fourth Amendment and that they were not entitled to qualified immunity because a reasonable deputy would have stopped the search upon discovering that respondents were of a different race than the suspects and because a reasonable deputy would not have ordered respondents from their bed. We grant the petition for certiorari and reverse the judgment of the Court of Appeals by this summary disposition. I From September to December 2001, Los Angeles County Sheriffs Department Deputy Dennis Watters investigated a fraud and identity-theft crime ring. There were four suspects of the investigation. One had registered a 9-millimeter Glock handgun. The four suspects were known to be African-Americans. On December 11, Watters obtained a search warrant for two houses in Lancaster, California, where he believed he could find the suspects. The warrant authorized him to search the homes and three of the suspects for documents and computer files. In support of the search warrant an affidavit cited various sources showing the suspects resided at respondents home. The sources included Department of Motor Vehicles reports, mailing

LA County vs. Rettle address listings, an outstanding warrant, and an Internet telephone directory. In this Court respondents do not dispute the validity of the warrant or the means by which it was obtained.
What Watters did not know was that one of the houses (the first to be searched) had been sold in September to a Max Rettele. He had purchased the home and moved into it three months earlier with his girlfriend Judy Sadler and Sadlers 17-year-old son Chase Hall. All three, respondents here, are Caucasians. On the morning of December 19, Watters briefed six other deputies in preparation for the search of the houses. Watters informed them they would be searching for three African-American suspects, one of whom owned a registered handgun. The possibility a suspect would be armed caused the deputies concern for their own safety. Watters had not obtained special permission for a night search, so he could not execute the warrant until 7 a.m. See Cal. Penal Code Ann. 1533 (West 2000). Around 7:15 Watters and six other deputies knocked on the door and announced their presence. Chase Hall answered. The deputies entered the house after ordering Hall to lie face down on the ground. The deputies announcement awoke Rettele and Sadler. The deputies entered their bedroom with guns drawn and ordered them to get out of their bed and to show their hands. They protested that they were not wearing clothes. Rettele stood up and attempted to put on a pair of sweatpants, but deputies told him not to move. Sadler also stood up and attempted, without success, to cover herself with a sheet. Rettele and Sadler were held at gunpoint for one to two minutes before Rettele was allowed to retrieve a robe for Sadler. He was then permitted to dress. Rettele and Sadler left the bedroom within three to four minutes to sit on the couch in the living room. By that time the deputies realized they had made a mistake. They apologized to Rettele and Sadler, thanked them for not becoming upset, and left within five minutes. They proceeded to the other house the warrant authorized them to search, where they found three suspects. Those suspects were arrested and convicted. Rettele and Sadler, individually and as guardians ad litem for Hall, filed this 1983 suit against Los Angeles County, the Los Angeles County Sheriffs Department, Deputy Watters, and other members of the sheriffs department. Respondents alleged petitioners violated their Fourth Amendment rights by obtaining a warrant in reckless fashion and conducting an unreasonable search and detention. The District Court held that the warrant was obtained by proper procedures and the search was reasonable. It concluded in the alternative that any Fourth Amendment rights the deputies violated were not clearly established and that, as a result, the deputies were entitled to qualified immunity. On appeal respondents did not challenge the validity of the warrant; they did argue that the deputies had conducted the search in an unreasonable manner. A divided panel of the Court of Appeals for the Ninth Circuit reversed in an unpublished opinion. 186Fed. Appx. 765 (2006). The majority held that

LA County vs. Rettle because (1) no African-Americans lived in [respondents] home; (2) [respondents], a Caucasian couple, purchased the residence several months before the search and the deputies did not conduct an ownership inquiry; (3) the African-American suspects were not accused of a crime that required an emergency search; and (4) [respondents] were ordered out of bed naked and held at gunpoint while the deputies searched their bedroom for the suspects and a gun, we find that a reasonable jury could conclude that the search and detention were unnecessarily painful, degrading, or prolonged, and involved an undue invasion of privacy, Franklin v. Foxworth, 31 F. 3d 873, 876 (9th Cir. 1994). Id., at 766.
Turning to whether respondents Fourth Amendment rights were clearly established, the majority held that a reasonable deputy should have known the search and detention were unlawful. Judge Cowen dissented. In his view the deputies had authority to detain respondents for the duration of the search and were justified in ordering respondents from their bed because weapons could have been concealed under the bedcovers. He also concluded that, assuming a constitutional violation, the law was not clearlyestablished. The Court of Appeals denied rehearing and rehearing en banc. II Because respondents were of a different race than the suspects the deputies were seeking, the Court of Appeals held that [a]fter taking one look at [respondents], the deputies should have realized that [respondents] were not the subjects of the search warrant and did not pose a threat to the deputies safety. Ibid. We need not pause long in rejecting this unsound proposition. When the deputies ordered respondents from their bed, they had no way of knowing whether the African-American suspects were elsewhere in the house. The presence of some Caucasians in the residence did not eliminate the possibility that the suspects lived there as well. As the deputies stated in their affidavits, it is not uncommon in our society for people of different races to live together. Just as people of different races live and work together, so too might they engage in joint criminal activity. The deputies, who were searching a house where they believed a suspect might be armed, possessed authority to secure the premises before deciding whether to continue with the search. In Michigan v. Summers, 452 U. S. 692 (1981) , this Court held that officers executing a search warrant for contraband may detain the occupants of the premises while a proper search is conducted. Id., at 705. In weighing whether the search in Summers was reasonable the Court first found that detention represents only an incremental intrusion on personal liberty when the search of a home has been authorized by a valid warrant. Id., at 703. Against that interest, it balanced preventing flight in the event that incriminating evidence is found; minimizing the risk of harm to the officers; and facilitating the orderly completion of the search. Id., at 702703; see Muehler v. Mena, 544 U. S. 93 (2005) .

LA County vs. Rettle In executing a search warrant officers may take reasonable action to secure the premises and to ensure their own safety and the efficacy of the search. Id.,at 98100; see also id., at 103 (Kennedy, J., concurring); Summers, supra, at 704705. The test of reasonableness under the Fourth Amendment is an objective one. Graham v. Connor, 490 U. S. 386, 397 (1989) (addressing the reasonableness of a seizure of the person). Unreasonable actions include the use of excessive force or restraints that cause unnecessary pain or are imposed for a prolonged and unnecessary period of time. Mena, supra, at 100; Graham,supra, at 396399.
The orders by the police to the occupants, in the context of this lawful search, were permissible, and perhaps necessary, to protect the safety of the deputies. Blankets and bedding can conceal a weapon, and one of the suspects was known to own a firearm, factors which underscore this point. The Constitution does not require an officer to ignore the possibility that an armed suspect may sleep with a weapon within reach. The reports are replete with accounts of suspects sleeping close to weapons. See United States v. Enslin, 327 F. 3d 788, 791 (CA9 2003) (When [the suspect] put his hands in the air and began to sit up, his movement shifted the covers and the marshals could see a gun in the bed next to him); see also United States v. Jones, 336 F. 3d 245, 248 (CA3 2003) (suspect kept a 9-millimeter Luger under his pillow while he slept);United States v. Hightower, 96 F. 3d 211 (CA7 1996) (suspect kept a loaded five-shot handgun under his pillow); State v. Willis, 36,759KA, p. 3 (La. App. 4/9/03), 843 So. 2d 592, 595 (officers pulled back the bed covers and found a .38 caliber Model 10 Smith and Wesson revolver located near where defendants left hand had been); State v. Kypreos, 115 Wash. App. 207, 61 P. 3d 352 (2002) (suspect kept a handgun in the bed). The deputies needed a moment to secure the room and ensure that other persons were not close by or did not present a danger. Deputies were not required to turn their backs to allow Rettele and Sadler to retrieve clothing or to cover themselves with the sheets. Rather, [t]he risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation. Summers, 452 U. S., at 702703. This is not to say, of course, that the deputies were free to force Rettele and Sadler to remain motionless and standing for any longer than necessary. We have recognized that special circumstances, or possibly a prolonged detention might render a search unreasonable. See id., at 705, n. 21. There is no accusation that the detention here was prolonged. The deputies left the home less than 15 minutes after arriving. The detention was shorter and less restrictive than the 2- to 3-hour handcuff detention upheld in Mena. See 544 U. S., at 100. And there is no allegation that the deputies prevented Sadler and Rettele from dressing longer than necessary to protect their safety. Sadler was unclothed for no more than two minutes, and Rettele for only slightly more time than that. Sadler testified that once the police were satisfied that no immediate threat was presented, they wanted us to get dressed and they were pressing us really fast to hurry up and get

LA County vs. Rettle some clothes on. Deposition of Judy Lorraine Sadler in No. CV0206262RSWL (RNBX) (CD Cal., June 10, 2003), Doc. 26, Exh. 4, p. 55.
The Fourth Amendment allows warrants to issue on probable cause, a standard well short of absolute certainty. Valid warrants will issue to search the innocent, and people like Rettele and Sadler unfortunately bear the cost. Officers executing search warrants on occasion enter a house when residents are engaged in private activity; and the resulting frustration, embarrassment, and humiliation may be real, as was true here. When officers execute a valid warrant and act in a reasonable manner to protect themselves from harm, however, the Fourth Amendment is not violated. As respondents constitutional rights were not violated, there is no necessity for further inquiries concerning qualified immunity. Saucier v. Katz,533 U. S. 194, 201 (2001) . The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

Valeroso vs CA
Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 164815 September 3, 2009

SR. INSP. JERRY C. VALEROSO, Petitioner, vs. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, Respondents. RESOLUTION NACHURA, J.: For resolution is the Letter-Appeal1 of Senior Inspector (Sr. Insp.) Jerry C. Valeroso (Valeroso) praying that our February 22, 2008 Decision2 and June 30, 2008 Resolution3 be set aside and a new one be entered acquitting him of the crime of illegal possession of firearm and ammunition. The facts are briefly stated as follows: Valeroso was charged with violation of Presidential Decree No. 1866, committed as follows: That on or about the 10th day of July, 1996, in Quezon City, Philippines, the said accused without any authority of law, did then and there willfully, unlawfully and knowingly have in his/her possession and under his/her custody and control One (1) cal. 38 "Charter Arms" revolver bearing serial no. 52315 with five (5) live ammo. without first having secured the necessary license/permit issued by the proper authorities. CONTRARY TO LAW.4 When arraigned, Valeroso pleaded "not guilty."5 Trial on the merits ensued. During trial, the prosecution presented two witnesses: Senior Police Officer (SPO)2 Antonio Disuanco (Disuanco) of the Criminal Investigation Division of the Central Police District Command; and Epifanio Deriquito (Deriquito), Records Verifier of the Firearms and Explosives Division in Camp Crame. Their testimonies are summarized as follows: On July 10, 1996, at around 9:30 a.m., Disuanco received a Dispatch Order from the desk officer directing him and three (3) other policemen to serve a Warrant of Arrest, issued by Judge Ignacio Salvador, against Valeroso for a case of kidnapping with ransom.6 After a briefing, the team conducted the necessary surveillance on Valeroso checking his hideouts in Cavite, Caloocan, and Bulacan. Eventually, the team members proceeded to the Integrated National Police (INP) Central Police Station in Culiat, Quezon City, where they saw Valeroso about to board a tricyle. Disuanco and his team approached Valeroso. They put him under arrest, informed him of his constitutional rights, and bodily searched him. They found a Charter Arms revolver, bearing Serial No. 52315, with five (5) pieces of live ammunition, tucked in his waist.7 Valeroso was then brought to the police station for questioning. Upon verification in the Firearms and Explosives Division in Camp Crame, Deriquito presented a certification8 that the subject firearm was not issued to Valeroso, but was licensed in the name of a certain Raul Palencia Salvatierra of Sampaloc, Manila.9

Valeroso vs CA On the other hand, Valeroso, SPO3 Agustin R. Timbol, Jr. (Timbol), and Adrian Yuson testified for the defense. Their testimonies are summarized as follows:
On July 10, 1996, Valeroso was sleeping inside a room in the boarding house of his children located at Sagana Homes, Barangay New Era, Quezon City. He was awakened by four (4) heavily armed men in civilian attire who pointed their guns at him and pulled him out of the room.10 The raiding team tied his hands and placed him near the faucet (outside the room) then went back inside, searched and ransacked the room. Moments later, an operative came out of the room and exclaimed, "Hoy, may nakuha akong baril sa loob!"11 Disuanco informed Valeroso that there was a standing warrant for his arrest. However, the raiding team was not armed with a search warrant.12 Timbol testified that he issued to Valeroso a Memorandum Receipt13 dated July 1, 1993 covering the subject firearm and its ammunition, upon the verbal instruction of Col. Angelito Moreno.14 On May 6, 1998, the Regional Trial Court (RTC), Branch 97, Quezon City, convicted Valeroso as charged and sentenced him to suffer the indeterminate penalty of four (4) years, two (2) months and one (1) day, as minimum, to six (6) years, as maximum. The gun subject of the case was further ordered confiscated in favor of the government.15 On appeal, the Court of Appeals (CA) affirmed16 the RTC decision but the minimum term of the indeterminate penalty was lowered to four (4) years and two (2) months. On petition for review, we affirmed17 in full the CA decision. Valeroso filed a Motion for Reconsideration18 which was denied with finality19 on June 30, 2008. Valeroso is again before us through this Letter-Appeal20 imploring this Court to once more take a contemplative reflection and deliberation on the case, focusing on his breached constitutional rights against unreasonable search and seizure.21 Meanwhile, as the Office of the Solicitor General (OSG) failed to timely file its Comment on Valerosos Motion for Reconsideration, it instead filed a Manifestation in Lieu of Comment.22 In its Manifestation, the OSG changed its previous position and now recommends Valerosos acquittal. After a second look at the evidence presented, the OSG considers the testimonies of the witnesses for the defense more credible and thus concludes that Valeroso was arrested in a boarding house. More importantly, the OSG agrees with Valeroso that the subject firearm was obtained by the police officers in violation of Valerosos constitutional right against illegal search and seizure, and should thus be excluded from the evidence for the prosecution. Lastly, assuming that the subject firearm was admissible in evidence, still, Valeroso could not be convicted of the crime, since he was able to establish his authority to possess the gun through the Memorandum Receipt issued by his superiors. After considering anew Valerosos arguments through his Letter-Appeal, together with the OSGs position recommending his acquittal, and keeping in mind that substantial rights must ultimately reign supreme over technicalities, this Court is swayed to reconsider.23 The Letter-Appeal is actually in the nature of a second motion for reconsideration. While a second motion for reconsideration is, as a general rule, a prohibited pleading, it is within the sound discretion of the Court to admit the same, provided it is filed with prior leave whenever substantive justice may be better served thereby.24 This is not the first time that this Court is suspending its own rules or excepting a particular case from the operation of the rules. In De Guzman v. Sandiganbayan,25 despite the denial of De Guzmans motion for reconsideration, we still entertained his Omnibus Motion, which was actually a second motion for reconsideration. Eventually, we reconsidered our earlier decision and remanded the case to the Sandiganbayan for reception and appreciation of petitioners evidence. In that case, we said that if we would not compassionately bend backwards and flex technicalities, petitioner would surely experience the disgrace and misery of incarceration for a crime which he might not have committed after all.26 Also in Astorga v. People,27 on a second motion for reconsideration, we set aside our earlier decision, re-examined the records of the case, then finally acquitted Benito Astorga of the crime of Arbitrary Detention on the ground of

Valeroso vs CA reasonable doubt. And in Sta. Rosa Realty Development Corporation v. Amante,28 by virtue of the January 13, 2004 En Banc Resolution, the Court authorized the Special First Division to suspend the Rules, so as to allow it to consider and resolve respondents second motion for reconsideration after the motion was heard on oral arguments. After a reexamination of the merits of the case, we granted the second motion for reconsideration and set aside our earlier decision.
Clearly, suspension of the rules of procedure, to pave the way for the re-examination of the findings of fact and conclusions of law earlier made, is not without basis. We would like to stress that rules of procedure are merely tools designed to facilitate the attainment of justice. They are conceived and promulgated to effectively aid the courts in the dispensation of justice. Courts are not slaves to or robots of technical rules, shorn of judicial discretion. In rendering justice, courts have always been, as they ought to be, conscientiously guided by the norm that, on the balance, technicalities take a backseat to substantive rights, and not the other way around. Thus, if the application of the Rules would tend to frustrate rather than to promote justice, it would always be within our power to suspend the rules or except a particular case from its operation.29 Now on the substantive aspect. The Court notes that the version of the prosecution, as to where Valeroso was arrested, is different from the version of the defense. The prosecution claims that Valeroso was arrested near the INP Central Police Station in Culiat, Quezon City, while he was about to board a tricycle. After placing Valeroso under arrest, the arresting officers bodily searched him, and they found the subject firearm and ammunition. The defense, on the other hand, insists that he was arrested inside the boarding house of his children. After serving the warrant of arrest (allegedly for kidnapping with ransom), some of the police officers searched the boarding house and forcibly opened a cabinet where they discovered the subject firearm. After a thorough re-examination of the records and consideration of the joint appeal for acquittal by Valeroso and the OSG, we find that we must give more credence to the version of the defense. Valerosos appeal for acquittal focuses on his constitutional right against unreasonable search and seizure alleged to have been violated by the arresting police officers; and if so, would render the confiscated firearm and ammunition inadmissible in evidence against him. The right against unreasonable searches and seizures is secured by Section 2, Article III of the Constitution which states: SEC. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. From this constitutional provision, it can readily be gleaned that, as a general rule, the procurement of a warrant is required before a law enforcer can validly search or seize the person, house, papers, or effects of any individual.30 To underscore the significance the law attaches to the fundamental right of an individual against unreasonable searches and seizures, the Constitution succinctly declares in Article III, Section 3(2), that "any evidence obtained in violation of this or the preceding section shall be inadmissible in evidence for any purpose in any proceeding."31 The above proscription is not, however, absolute. The following are the well-recognized instances where searches and seizures are allowed even without a valid warrant: 1. Warrantless search incidental to a lawful arrest;

Valeroso vs CA 2. [Seizure] of evidence in "plain view." The elements are: a) a prior valid intrusion based on the valid warrantless arrest in which the police are legally present in the pursuit of their official duties; b) the evidence was inadvertently discovered by the police who have the right to be where they are; c) the evidence must be immediately apparent; and d) "plain view" justified mere seizure of evidence without further search;
3. Search of a moving vehicle. Highly regulated by the government, the vehicles inherent mobility reduces expectation of privacy especially when its transit in public thoroughfares furnishes a highly reasonable suspicion amounting to probable cause that the occupant committed a criminal activity; 4. Consented warrantless search; 5. Customs search; 6. Stop and Frisk; 7. Exigent and emergency circumstances.32 8. Search of vessels and aircraft; [and] 9. Inspection of buildings and other premises for the enforcement of fire, sanitary and building regulations.33 In the exceptional instances where a warrant is not necessary to effect a valid search or seizure, what constitutes a reasonable or unreasonable search or seizure is purely a judicial question, determinable from the uniqueness of the circumstances involved, including the purpose of the search or seizure, the presence or absence of probable cause, the manner in which the search and seizure was made, the place or thing searched, and the character of the articles procured.34 In light of the enumerated exceptions, and applying the test of reasonableness laid down above, is the warrantless search and seizure of the firearm and ammunition valid? We answer in the negative. For one, the warrantless search could not be justified as an incident to a lawful arrest. Searches and seizures incident to lawful arrests are governed by Section 13, Rule 126 of the Rules of Court, which reads: SEC. 13. Search incident to lawful arrest. A person lawfully arrested may be searched for dangerous weapons or anything which may have been used or constitute proof in the commission of an offense without a search warrant. We would like to stress that the scope of the warrantless search is not without limitations. In People v. Leangsiri,35People v. Cubcubin, Jr.,36 and People v. Estella,37 we had the occasion to lay down the parameters of a valid warrantless search and seizure as an incident to a lawful arrest. When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapon that the latter might use in order to resist arrest or effect his escape. Otherwise, the officers safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestees person in order to prevent its concealment or destruction.38 Moreover, in lawful arrests, it becomes both the duty and the right of the apprehending officers to conduct a warrantless search not only on the person of the suspect, but also in the permissible area within the latters reach.39 Otherwise stated, a valid arrest allows the seizure of evidence or dangerous weapons either on the person of the one arrested or within the area of his immediate control.40 The phrase "within the area of his immediate control" means the area from within which he might gain possession of a weapon or destructible evidence.41 A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested.42

Valeroso vs CA In the present case, Valeroso was arrested by virtue of a warrant of arrest allegedly for kidnapping with ransom. At that time, Valeroso was sleeping inside the boarding house of his children. He was awakened by the arresting officers who were heavily armed. They pulled him out of the room, placed him beside the faucet outside the room, tied his hands, and then put him under the care of Disuanco.43 The other police officers remained inside the room and ransacked the locked cabinet44 where they found the subject firearm and ammunition.45 With such discovery, Valeroso was charged with illegal possession of firearm and ammunition.
From the foregoing narration of facts, we can readily conclude that the arresting officers served the warrant of arrest without any resistance from Valeroso. They placed him immediately under their control by pulling him out of the bed, and bringing him out of the room with his hands tied. To be sure, the cabinet which, according to Valeroso, was locked, could no longer be considered as an "area within his immediate control" because there was no way for him to take any weapon or to destroy any evidence that could be used against him. The arresting officers would have been justified in searching the person of Valeroso, as well as the tables or drawers in front of him, for any concealed weapon that might be used against the former. But under the circumstances obtaining, there was no comparable justification to search through all the desk drawers and cabinets or the other closed or concealed areas in that room itself.46 It is worthy to note that the purpose of the exception (warrantless search as an incident to a lawful arrest) is to protect the arresting officer from being harmed by the person arrested, who might be armed with a concealed weapon, and to prevent the latter from destroying evidence within reach. The exception, therefore, should not be strained beyond what is needed to serve its purpose.47 In the case before us, search was made in the locked cabinet which cannot be said to have been within Valerosos immediate control. Thus, the search exceeded the bounds of what may be considered as an incident to a lawful arrest.48 Nor can the warrantless search in this case be justified under the "plain view doctrine." The "plain view doctrine" may not be used to launch unbridled searches and indiscriminate seizures or to extend a general exploratory search made solely to find evidence of defendants guilt. The doctrine is usually applied where a police officer is not searching for evidence against the accused, but nonetheless inadvertently comes across an incriminating object.49 As enunciated in People v. Cubcubin, Jr.50 and People v. Leangsiri:51 What the "plain view" cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which[,] he came inadvertently across a piece of evidence incriminating the accused. The doctrine serves to supplement the prior justification whether it be a warrant for another object, hot pursuit, search incident to lawful arrest, or some other legitimate reason for being present unconnected with a search directed against the accused and permits the warrantless seizure. Of course, the extension of the original justification is legitimate only where it is immediately apparent to the police that they have evidence before them; the "plain view" doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges.52 Indeed, the police officers were inside the boarding house of Valerosos children, because they were supposed to serve a warrant of arrest issued against Valeroso. In other words, the police officers had a prior justification for the intrusion. Consequently, any evidence that they would inadvertently discover may be used against Valeroso. However, in this case, the police officers did not just accidentally discover the subject firearm and ammunition; they actually searched for evidence against Valeroso. Clearly, the search made was illegal, a violation of Valerosos right against unreasonable search and seizure. Consequently, the evidence obtained in violation of said right is inadmissible in evidence against him.
1avv phi 1

Unreasonable searches and seizures are the menace against which the constitutional guarantees afford full protection. While the power to search and seize may at times be necessary for public welfare, still it may be exercised and the law enforced without transgressing the constitutional rights of the citizens, for no enforcement of any statute is of sufficient importance to justify indifference to the basic principles of government. Those who are supposed to enforce the law are

Valeroso vs CA not justified in disregarding the rights of an individual in the name of order. Order is too high a price to pay for the loss of liberty.53
Because a warrantless search is in derogation of a constitutional right, peace officers who conduct it cannot invoke regularity in the performance of official functions.54 The Bill of Rights is the bedrock of constitutional government. If people are stripped naked of their rights as human beings, democracy cannot survive and government becomes meaningless. This explains why the Bill of Rights, contained as it is in Article III of the Constitution, occupies a position of primacy in the fundamental law way above the articles on governmental power.55 Without the illegally seized firearm, Valerosos conviction cannot stand. There is simply no sufficient evidence to convict him.56 All told, the guilt of Valeroso was not proven beyond reasonable doubt measured by the required moral certainty for conviction. The evidence presented by the prosecution was not enough to overcome the presumption of innocence as constitutionally ordained. Indeed, it would be better to set free ten men who might probably be guilty of the crime charged than to convict one innocent man for a crime he did not commit.57 With the foregoing disquisition, there is no more need to discuss the other issues raised by Valeroso. One final note. The Court values liberty and will always insist on the observance of basic constitutional rights as a condition sine qua non against the awesome investigative and prosecutory powers of the government.58 WHEREFORE, in view of the foregoing, the February 22, 2008 Decision and June 30, 2008 Resolution are RECONSIDERED and SET ASIDE. Sr. Insp. Jerry Valeroso is hereby ACQUITTED of illegal possession of firearm and ammunition. SO ORDERED.

Galvante vs. Casimiro

THIRD DIVISION [G.R. No. 162808, April 22, 2008] FELICIANO GALVANTE, PETITIONER, VS. HON. ORLANDO C. CASIMIRO, DEPUTY OMBUDSMAN FOR THE MILITARY AND OTHER LAW ENFORCEMENT OFFICES, BIENVENIDO C. BLANCAFLOR, DIRECTOR, DENNIS L. GARCIA, GRAFT INVESTIGATION AND PROSECUTION OFFICER, SPO4 RAMIL AVENIDO, PO1 EDDIE DEGRAN, PO1 VALENTINO RUFANO, AND PO1 FEDERICO BALOLOT, RESPONDENTS. DECISION
AUSTRIA-MARTINEZ, J.: Assailed herein by Petition for Certiorari and Mandamus under Rule 65 of the Rules of Court are the October 30, 2003 Resolution[1] of the Office of the Deputy Ombudsman for the Military and Other Law Enforcement Offices - Office of the Ombudsman (Ombudsman) which dismissed for lack of probable cause the criminal complaint, docketed as OMB-P-C-02-0109-B, filed by Feliciano Galvante[2] (petitioner) against SPO4 Benjamin Conde, PO1 Ramil Avenido, PO1 Eddie Degran, PO1 Valentino Rufano, and PO1 Federico Balolot (private respondents) for arbitrary detention, illegal search and grave threats; and the January 20, 2004 Ombudsman Order[3] which denied his motion for reconsideration. The facts are of record. In the afternoon of May 14, 2001 at Sitio Cahi-an, Kapatungan, Trento, Agusan del Sur, private respondents confiscated from petitioner one colt pistol super .38 automatic with serial no. 67973, one short magazine, and nine super .38 live ammunitions.[4] The confiscated materials were covered by an expired Memorandum Receipt dated September 2, 1999.[5] Consequently, the Assistant Provincial Prosecutor filed against petitioner an Information[6] for Illegal Possession of Firearms and Ammunitions in Relation to Commission on Elections (Comelec) Resolution No. 3258, docketed as Criminal Case No. 5047, before the Regional Trial Court (RTC), Prosperidad, Agusan del Sur. Pending resolution of Criminal Case No. 5047, petitioner filed against private respondents an administrative case, docketed as Administrative Case No. IASOB-020007 for Grave Misconduct, before the Internal Affairs Service (IAS), Region XIII, Department of Interior and Local Government (DILG);[7] and a criminal case, docketed as OMB-P-C-02-0109-B for Arbitrary Detention, Illegal Search and Grave Threats, before the Ombudsman.[8] In the June 21, 2001 Affidavit-Complaint he filed in both cases, petitioner narrated how, on May 14, 2001, private respondents aimed their long firearms at him, arbitrarily searched his vehicle and put him in detention, thus: 1. That sometime on May 14, 2001 I left my house at around 1:00 o'clock in the afternoon after having lunch for Sitio Cahi-an, Brgy. Kapatungan, Trento, Agusan del Sur to meet retired police Percival Plaza and inquire about the retirement procedure for policemen; That upon arrival at the house of retired police Percival Plaza, together with Lorenzo Sanoria, Delfin Ramirez and Pedro Ramas who asked for a ride from the highway in going to Sitio Cahi-an, I immediately went down of the jeep but before I could call Mr. Plaza, four policemen in uniform blocked my way; That the four policemen were [private respondents] PO1 Romil Avenido PNP, PO1 Valentino Rufano, PNP both member of 142nd Company, Regional Mobile Group and PO1 Eddie Degran PNP and PO1 Federico Balolot PNP members of 1403 Prov'l Mobile Group, all of Bunawan Brook, Bunawan, Agusan del Sur; who all pointed their long firearms ready to fire [at] me, having heard the sound of the release of the safety lock; That raising my arms, I heard [private respondent] PO1 Avenido saying, "ANG IMONG PUSIL, IHATAG" which means "Give me your firearm," to which I answered, "WALA MAN KO'Y PUSIL" translated as "I have no firearm," showing my waistline when I raised my T-shirt; That my other companions on the jeep also went down and raised their arms and showed their waistline when the same policemen and a person in civilian attire holding an armalite also pointed their firearms to them to which Mr. Percival

2.

3.

4.

5.

Galvante vs. Casimiro

Plaza who came down from his house told them not to harass me as I am also a former police officer but they did not heed Mr. Plaza's statements; 6. That while we were raising our arms [private respondent] SPO4 Benjamin Conde, Jr. went near my owner type jeep and conducted a search. To which I asked them if they have any search warrant; That after a while they saw my super .38 pistol under the floormat of my jeep and asked me of the MR of the firearm but due to fear that their long arms were still pointed to us, I searched my wallet and gave the asked [sic] document; That immediately the policemen left me and my companions without saying anything bringing with them the firearm; That at about 2:30 p.m., I left Mr. Percival's house and went to Trento Police Station where I saw a person in civilian attire with a revolver tucked on his waist, to which I asked the police officers including those who searched my jeep to apprehend him also;

7.

8. 9.

10. That nobody among the policemen at the station made a move to apprehend the armed civilian person so I went to the office of Police Chief Rocacorba who immediately called the armed civilian to his office and when already inside his office, the disarming was done; 11. That after the disarming of the civilian I was put to jail with the said person by Police Chief Rocacorba and was released only at 4:00 o'clock in the afternoon of May 16, 2001 after posting a bailbond; 12. That I caused the execution of this document for the purpose of filing cases of Illegal Search, Grave Misconduct and Abuse of Authority against SPO4 Benjamin Conde, Jr., of Trento Police Station; PO1 Ramil Avenido, PO1 Velantino Rufano, PO1 Federico Balolot and PO1 Eddie Degran.[9] Petitioner also submitted the Joint Affidavit[10] of his witnesses, Lorenzo Sanoria and Percival Plaza. Private respondent Conde filed a Counter-Affidavit dated March 20, 2002, where he interposed the following defenses: First, he had nothing to do with the detention of petitioner as it was Chief of Police/Officer-in-Charge Police Inspector Dioscoro Mehos Rocacorba who ordered the detention. Petitioner himself admitted this fact in his own Complaint-Affidavit;[11] and Second, he denies searching petitioner's vehicle,[12] but admits that even though he was not armed with a warrant, he searched the person of petitioner as the latter, in plain view, was committing a violation of Comelec Resolutions No. 3258 and No. 3328 by carrying a firearm in his person. Private respondents Avenido, Degran, Rufano and Balolot filed their Joint-Affidavit dated March 25, 2002, which contradicts the statements of private respondent Conde,viz: 1. that we executed a joint counter-affidavit dated August 28, 2001 where we stated among other things, that "we saw Feleciano "Nani" Galvante armed with a handgun/pistol tucked on his waist;" that this statement is not accurate because the truth of the matter is that the said handgun was taken by SPO4 BENJAMIN CONDE, JR., who was acting as our team leader during the May 14, 2001 Elections, from the jeep of Mr. Galvante after searching the same; and that we noticed the aforementioned discrepancy in our affidavit dated August 28, 2001 after we have already affixed our signatures thereon.[13]

2.

3.

Consequently, petitioner filed an Affidavit of Desistance dated March 25, 2002 with both the IAS and Ombudsman, absolving private respondents Avenido, Degran, Rufano and Balolot, but maintaining that private respondent Conde alone be prosecuted in both administrative and criminal cases.[14] On July 17, 2002, the IAS issued a Decision in Administrative Case No. IASOB-020007, finding all private respondents guilty of grave misconduct but penalized them with suspension only. The IAS noted however that private respondents were merely being "[enthusiastic] in the conduct of the arrest in line of duty." [15]

Galvante vs. Casimiro

Meanwhile, in Criminal Case No. 5047, petitioner filed with the RTC a Motion for Preliminary Investigation and to Hold in Abeyance the Issuance of or Recall the Warrant of Arrest.[16] The RTC granted the same in an Order[17] dated August 17, 2001. Upon reinvestigation, Prosecutor II Eliseo Diaz, Jr. filed a "Reinvestigation with Motion to Dismiss" dated November 22, 2001, recommending the dismissal of Criminal Case No. 5047 on the ground that "the action of the policemen who conducted the warrantless search in spite of the absence of any circumstances justifying the same intruded into the privacy of the accused and the security of his property."[18] Officer-in-Charge Prosecutor II Victoriano Pag-ong approved said recommendation.[19] The RTC granted the prosecution's motion to dismiss in an Order[20] dated January 16, 2003. Apparently unaware of what transpired in Criminal Case No. 5047, Ombudsman Investigation & Prosecution Officer Dennis L. Garcia issued in OMB-P-C-02-0109-B, the October 30, 2003 Resolution, to wit: After a careful evaluation, the undersigned prosecutor finds no probable cause for any of the offenses charged against abovenamed respondents. The allegations of the complainant failed to establish the factual basis of the complaint, it appearing from the records that the incident stemmed from a valid warrantless arrest. The subsequent execution of an affidavit of desistance by the complainant rendered the complaint even more uncertain and subject to doubt, especially so since it merely exculpated some but not all of the respondents. These circumstances, coupled with the presumption of regularity in the performance of duty, negates any criminal liability on the part of the respondents. WHEREFORE, premises considered, it is hereby recommended that the above-captioned case be dismissed for lack of probable cause.[21] (Emphasis supplied) Upon the recommendation of Director Bienvenido C. Blancaflor, Deputy Ombudsman for the Military Orlando C. Casimiro (Deputy Ombudsman) approved the October 30, 2003 Resolution.[22] In his Motion for Reconsideration,[23] petitioner called the attention of the Ombudsman to the earlier IAS Decision, the Reinvestigation with Motion to Dismiss of Prosecutor II Eliseo Diaz, Jr. and the RTC Order, all of which declared the warrantless search conducted by private respondents illegal,[24] which are contradicted by the October 30, 2003 Ombudsman Resolution declaring the warrantless search legal. The Ombudsman denied petitioner's motion for reconsideration on the ground that the latter offered "no new evidence or errors of law which would warrant the reversal or modification"[25] of its October 30, 2003 Resolution. Petitioner filed the present petition, attributing to Deputy Ombudsman Casimiro, Director Blancaflor and Prosecutor Garcia (public respondents) the following acts of grave abuse of discretion: I. Public respondents acted without or in excess of their jurisdiction and/or with grave abuse of discretion amounting to lack or excess of jurisdiction when, in their Resolution dated October 30, 2003, public respondents found that the incident upon which petitioner's criminal complaint was based stemmed from a valid warrantless arrest and dismissed petitioner's complaint despite the fact that: A. Petitioner has clearly shown that the search conducted by the private respondents was made without a valid warrant, nor does it fall under any of the instances of valid warrantless searches. B. Notwithstanding the absence of a valid warrant, petitioner was arrested and detained by the private respondents. II. Public respondents acted without or in excess of their jurisdiction and/or with grave abuse of discretion amounting to lack or excess of jurisdiction when, in their Order dated January 20, 2004, public respondents denied the petitioner's motion for reconsideration in a capricious, whimsical, despotic and arbitrary manner. [26] In its Memorandum,[27] the Office of the Solicitor General argued that public respondents acted within the bounds of their discretion in dismissing OMB-P-C-02-0109-B given that private respondents committed no crime in searching petitioner and confiscating his firearm as the former were merely performing their duty of enforcing the law against illegal possession of firearms and the Comelec ban against the carrying of firearms outside of one's residence. Private respondent Conde filed a Comment[28] and a Memorandum for himself.[29] Private respondents Avenido, Degran, Rufano and Balolot filed their separate Letter-Comment dated June 25, 2004.[30] The petition lacks merit.

Galvante vs. Casimiro

The Constitution vests in the Ombudsman the power to determine whether there exists reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof and, thereafter, to file the corresponding information with the appropriate courts.[31] The Court respects the relative autonomy of the Ombudsman to investigate and prosecute, and refrains from interfering when the latter exercises such powers either directly or through the Deputy Ombudsman,[32] except when the same is shown to be tainted with grave abuse of discretion amounting to lack or excess of jurisdiction.[33] Grave abuse of discretion is an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law or to act in contemplation of law as when judgment rendered is not based on law and evidence but on caprice, whim and despotism.[34] This does not obtain in the present case. It is noted that the criminal complaint which petitioner filed with the Ombudsman charges private respondents with warrantless search, arbitrary detention, and grave threats. The complaint for warrantless search charges no criminal offense. The conduct of a warrantless search is not a criminal act for it is not penalized under the Revised Penal Code (RPC) or any other special law. What the RPC punishes are only two forms of searches: Art. 129. Search warrants maliciously obtained and abuse in the service of those legally obtained. - In addition to the liability attaching to the offender for the commission of any other offense, the penalty of arrestomayor in its maximum period to prision correccional in its minimum period and a fine not exceeding P1,000.00 pesos shall be imposed upon any public officer or employee who shall procure a search warrant without just cause, or, having legally procured the same, shall exceed his authority or use unnecessary severity in executing the same. Art. 130. Searching domicile without witnesses. - The penalty of arrestomayor in its medium and maximum periods shall be imposed upon a public officer or employee who, in cases where a search is proper, shall search the domicile, papers or other belongings of any person, in the absence of the latter, any member of his family, or in their default, without the presence of two witnesses residing in the same locality. Petitioner did not allege any of the elements of the foregoing felonies in his Affidavit-Complaint; rather, he accused private respondents of conducting a search on his vehicle without being armed with a valid warrant. This situation, while lamentable, is not covered by Articles 129 and 130 of the RPC. The remedy of petitioner against the warrantless search conducted on his vehicle is civil,[35] under Article 32, in relation to Article 2219[36] (6) and (10) of the Civil Code, which provides: Art. 32. Any public officer or employee, or any private individual, who directly or indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages: xxxx (9) The right to be secure in one's person, house, papers, and effects against unreasonable searches and seizures; xxxx The indemnity shall include moral damages. Exemplary damages may also be adjudicated. and/or disciplinary and administrative, under Section 41 of Republic Act No. 6975.[37] To avail of such remedies, petitioner may file against private respondents a complaint for damages with the regular courts[38] or an administrative case with the PNP/DILG,[39] as petitioner did in Administrative Case No. IASOB-020007, and not a criminal action with the Ombudsman. Public respondents' dismissal of the criminal complaint for illegal search which petitioner filed with the Ombudsman against private respondents was therefore proper, although the reasons public respondents cited for dismissing the complaint are rather off the mark because they relied solely on the finding that the warrantless search conducted by private respondents was valid and that the Affidavit of Desistance which petitioner executed cast doubt on the veracity of his complaint.[40] Public respondents completely overlooked the fact that the criminal complaint was not cognizable by the Ombudsman as illegal search is not a criminal offense. Nevertheless, the result achieved is the same: the dismissal of a groundless criminal complaint for illegal search which is not an offense under the RPC. Thus, the Court need not resolve the issue of whether or not public respondents erred in their finding on the validity of the search for that issue is completely hypothetical under the circumstance.

Galvante vs. Casimiro

The criminal complaint for abitrary detention was likewise properly dismissed by public respondents. To sustain a criminal charge for arbitrary detention, it must be shown that (a) the offender is a public officer or employee, (b) the offender detained the complainant, and (c) the detention is without legal grounds.[41] The second element was not alleged by petitioner in his Affidavit-Complaint. As pointed out by private respondent Conde in his Comment[42] and Memorandum,[43] petitioner himself identified in his Affidavit-Complaint that it was Police Chief Rocacorba who caused his detention. Nowhere in said affidavit did petitioner allege that private respondents effected his detention, or were in any other way involved in it.[44] There was, therefore, no factual or legal basis to sustain the criminal charge for arbitrary detention against private respondents. Finally, on the criminal complaint for grave threats, the Solicitor General aptly pointed out that the same is based merely on petitioner's bare allegation that private respondents aimed their firearms at him.[45] Such bare allegation stands no chance against the well-entrenched rule applicable in this case, that public officers enjoy a presumption of regularity in the performance of their official function.[46] The IAS itself observed that private respondents may have been carried away by their "enthusiasm in the conduct of the arrest in line of duty."[47] Petitioner expressed the same view when, in his Affidavit of Desistance, he accepted that private respondents may have been merely following orders when they pointed their long firearms at him. All said, public respondents did not act with grave abuse of discretion in dismissing the criminal complaint against private respondents. WHEREFORE, the petition is DENIED. No costs. SO ORDERED.

Camara vs. Municipal Court

CAMARA V. MUNICIPAL COURT, 387 U. S. 523 (1967)

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U.S. Supreme Court

Camara v. Municipal Court, 387 U.S. 523 (1967)
Camara v. Municipal Court of the City and County of San Francisco No. 92 Argued February 15, 1967 Decided June 5, 1967 387 U.S. 523 APPEAL FROM THE DISTRICT COURT OF APPEAL OF CALIFORNIA, FIRST APPELLATE DISTRICT Syllabus Appellant was charged with violating the San Francisco Housing Code for refusing, after three efforts by city housing inspectors to secure his consent, to allow a warrantless inspection of the ground-floor quarters which he leased and residential use of which allegedly violated the apartment building's occupancy permit. Claiming the inspection ordinance unconstitutional for failure to require a warrant for inspections, appellant while awaiting trial, sued in a State Superior Court for a writ of prohibition, which the court denied. Relying on Frank v. Maryland, 359 U. S. 360, and similar cases, the District Court of Appeal affirmed, holding that the ordinance did not violate the Fourth Amendment. The State Supreme Court denied a petition for hearing. Held: 1. The Fourth Amendment bars prosecution of a person who has refused to permit a warrantless code enforcement inspection of his personal residence. Frank v. Maryland, supra, pro tanto overruled. Pp. 387 U. S. 528-534. (a) The basic purpose of the Fourth Amendment, which is enforceable against the States through the Fourteenth, through its prohibition of "unreasonable" searches and seizures is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials. P. 387 U. S. 528. (b) With certain carefully defined exceptions, an unconsented warrantless search of private property is "unreasonable." Pp. 387 U. S. 528-529.

Camara vs. Municipal Court

(c) Contrary to the assumption of Frank v. Maryland, supra, Fourth Amendment interests are not merely "peripheral" where municipal fire, health, and housing inspection programs are involved whose purpose is to determine the existence of physical conditions not complying with local ordinances. Those programs, moreover, are enforceable by criminal process, as is refusal to allow an inspection. Pp. 387 U. S. 529-531. (d) Warrantless administrative searches cannot be justified on the grounds that they make minimal demands on occupants; Page 387 U. S. 524 that warrant in such cases are unfeasible; or that area inspection programs could not function under reasonable search warrant requirements. Pp. 387 U. S. 531-533. 2. Probable cause upon the basis of which warrants are to be issued for area code enforcement inspections is not dependent on the inspector's belief that a particular dwelling violates the code, but on the reasonableness of the enforcement agency's appraisal of conditions in the area as a whole. The standards to guide the magistrate in the issuance of such search warrants will necessarily vary with the municipal program being enforced. Pp. 387 U. S. 534-539. 3. Search warrants which are required in nonemergency situations should normally be sought only after entry is refused. Pp. 387 U. S. 539-540. 4. In the nonemergency situation here, appellant had a right to insist that the inspectors obtain a search warrant. P. 387 U. S. 540. 237 Cal.App.2d 128, 46 Cal.Rptr. 585, vacated and remanded. Page 387 U. S. 525 MR. JUSTICE WHITE delivered the opinion of the Court. In Frank v. Maryland, 359 U. S. 360, this Court upheld, by a five-to-four vote, a state court conviction of a homeowner who refused to permit a municipal health inspector to enter and inspect his premises without a search warrant. In Eaton v. Price, 364 U. S. 263, a similar conviction was affirmed by an equally divided Court. Since those closely divided decisions, more intensive efforts at all levels of government to contain and eliminate urban blight have led to increasing use of such inspection techniques, while numerous decisions of this Court have more fully defined the Fourth Amendment's effect on state and municipal action. E.g., Mapp v. Ohio, 367 U. S. 643; Ker v. California, 374 U. S. 23. In view of the growing nationwide importance of the problem, we noted probable jurisdiction in this case and in See v. City of Seattle, post, p. 387 U. S. 541, to reexamine whether administrative inspection programs, as presently authorized and conducted, violate Fourth Amendment rights as those rights are enforced against the States through the Fourteenth Amendment. 385 U.S. 808.

Camara vs. Municipal Court

Appellant brought this action in a California Superior Court alleging that he was awaiting trial on a criminal charge of violating the San Francisco Housing Code by refusing to permit a warrantless inspection of his residence, and that a writ of prohibition should issue to the criminal court because the ordinance authorizing such inspections is unconstitutional on its face. The Superior Court denied the writ, the District Court of Appeal affirmed, and the Supreme Court of California denied a petition for hearing. Appellant properly raised and had considered by the California courts the federal constitutional questions he now presents to this Court. Though there were no judicial findings of fact in this prohibition proceeding, we shall set forth the parties' factual allegations. On November 6, 1963, an inspector Page 387 U. S. 526 of the Division of Housing Inspection of the San Francisco Department of Public Health entered an apartment building to make a routine annual inspection for possible violations of the city's Housing Code. [Footnote 1] The building's manager informed the inspector that appellant, lessee of the ground floor, was using the rear of his leasehold as a personal residence. Claiming that the building's occupancy permit did not allow residential use of the ground floor, the inspector confronted appellant and demanded that he permit an inspection of the premises. Appellant refused to allow the inspection because the inspector lacked a search warrant. The inspector returned on November 8, again without a warrant, and appellant again refused to allow an inspection. A citation was then mailed ordering appellant to appear at the district attorney's office. When appellant failed to appear, two inspectors returned to his apartment on November 22. They informed appellant that he was required by law to permit an inspection under 503 of the Housing Code: "Sec. 503 RIGHT TO ENTER BUILDING. Authorized employees of the City departments or City agencies, so far as may be necessary for the performance of their duties, shall, upon presentation of proper credentials, have the right to enter, at reasonable times, any building, structure, or premises in the City to perform any duty imposed upon them by the Municipal Code. " Page 387 U. S. 527 Appellant nevertheless refused the inspectors access to his apartment without a search warrant. Thereafter, a complaint was filed charging him with refusing to permit a lawful inspection in violation of 507 of the Code. [Footnote 2] Appellant was arrested on December 2 and released on bail. When his demurrer to the criminal complaint was denied, appellant filed this petition for a writ of prohibition. Appellant has argued throughout this litigation that 503 is contrary to the Fourth and Fourteenth Amendments in that it authorizes municipal officials to enter a private dwelling without a search warrant and without probable cause to believe that a violation of the Housing Code exists therein. Consequently, appellant contends, he may not be prosecuted under 507 for refusing to permit an inspection

Camara vs. Municipal Court

unconstitutionally authorized by 503. Relying on Frank v. Maryland, Eaton v. Price, and decisions in other States, [Footnote 3] the District Page 387 U. S. 528 Court of Appeal held that 503 does not violate Fourth Amendment rights because it "is part of a regulatory scheme which is essentially civil, rather than criminal in nature, inasmuch as that section creates a right of inspection which is limited in scope and may not be exercised under unreasonable conditions." Having concluded that Frank v. Maryland, to the extent that it sanctioned such warrantless inspections, must be overruled, we reverse.

I
The Fourth Amendment provides that, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." The basic purpose of this Amendment, as recognized in countless decisions of this Court, is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials. The Fourth Amendment thus gives concrete expression to a right of the people which "is basic to a free society." Wolf v. Colorado, 338 U. S. 25,338 U. S. 27. As such, the Fourth Amendment is enforceable against the States through the Fourteenth Amendment. Ker v. California, 374 U. S. 23, 374 U. S. 30. Though there has been general agreement as to the fundamental purpose of the Fourth Amendment, translation of the abstract prohibition against "unreasonable searches and seizures" into workable guidelines for the decision of particular cases is a difficult task which has for many years divided the members of this Court. Nevertheless, one governing principle, justified by history and by current experience, has consistently been followed: except in certain carefully defined classes of cases, a search of private property without proper consent Page 387 U. S. 529 is "unreasonable" unless it has been authorized by a valid search warrant. See, e.g., Stoner v. California, 376 U. S. 483; United States v. Jeffers, 342 U. S. 48; McDonald v. United States, 335 U. S. 451; Agnello v. United States, 269 U. S. 20. As the Court explained in Johnson v. United States, 333 U. S. 10, 333 U. S. 14: "The right of officers to thrust themselves into a home is also a grave concern not only to the individual, but to a society, which chooses to dwell in reasonable security and freedom from surveillance. When the

Camara vs. Municipal Court

right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent." In Frank v. Maryland, this Court upheld the conviction of one who refused to permit a warrantless inspection of private premises for the purposes of locating and abating a suspected public nuisance. Although Frank can arguably be distinguished from this case on its facts, [Footnote 4] the Frank opinion has generally been interpreted as carving out an additional exception to the rule that warrantless searches are unreasonable under the Fourth Amendment. See Eaton v. Price, supra. The District Court of Appeal so interpreted Frank in this case, and that ruling is the core of appellant's challenge here. We proceed to a reexamination of the factors which Page 387 U. S. 530 persuaded the Frank majority to adopt this construction of the Fourth Amendment's prohibition against unreasonable searches. To the Frank majority, municipal fire, health, and housing inspection programs "touch at most upon the periphery of the important interests safeguarded by the Fourteenth Amendment's protection against official intrusion," 359 U.S. at 359 U. S. 367, because the inspections are merely to determine whether physical conditions exist which do not comply with minimum standards prescribed in local regulatory ordinances. Since the inspector does not ask that the property owner open his doors to a search for "evidence of criminal action" which may be used to secure the owner's criminal conviction, historic interests of "selfprotection" jointly protected by the Fourth and Fifth Amendments [Footnote 5] are said not to be involved, but only the less intense "right to be secure from intrusion into personal privacy." Id. at 359 U. S. 365. We may agree that a routine inspection of the physical condition of private property is a less hostile intrusion than the typical policeman's search for the fruits and instrumentalities of crime. For this reason alone, Frank differed from the great bulk of Fourth Amendment cases which have been considered by this Court. But we cannot agree that the Fourth Amendment interests at stake in these inspection cases are merely "peripheral." It is surely anomalous to say that the individual and his private property are fully protected by the Fourth Amendment only when the individual is suspected of criminal behavior. [Footnote 6] For instance, even the most law-abiding citizen Page 387 U. S. 531 has a very tangible interest in limiting the circumstances under which the sanctity of his home may be broken by official authority, for the possibility of criminal entry under the guise of official sanction is a serious threat to personal and family security. And even accepting Frank's rather remarkable premise, inspections of the kind we are here considering do, in fact, jeopardize "self-protection" interests of the property owner. Like most regulatory laws, fire, health, and housing codes are enforced by criminal

Camara vs. Municipal Court

processes. In some cities, discovery of a violation by the inspector leads to a criminal complaint. [Footnote 7] Even in cities where discovery of a violation produces only an administrative compliance order, [Footnote 8] refusal to comply is a criminal offense, and the fact of compliance is verified by a second inspection, again without a warrant. [Footnote 9] Finally, as this case demonstrates, refusal to permit an inspection is itself a crime, punishable by fine or even by jail sentence. The Frank majority suggested, and appellee reasserts, two other justifications for permitting

administrative health and safety inspections without a warrant. First, it is argued that these inspections are "designed to make the least possible demand on the individual occupant." 359 U.S. at 359 U. S. 367. The ordinances authorizing inspections are hedged with safeguards, and at any rate the inspector's particular decision to enter must comply with the constitutional standard of reasonableness even if he may enter without a warrant. [Footnote 10] In addition, the argument Page 387 U. S. 532 proceeds, the warrant process could not function effectively in this field. The decision to inspect an entire municipal area is based upon legislative or administrative assessment of broad factors such as the area's age and condition. Unless the magistrate is to review such policy matters, he must issue a "rubber stamp" warrant which provides no protection at all to the property owner. In our opinion, these arguments unduly discount the purposes behind the warrant machinery contemplated by the Fourth Amendment. Under the present system, when the inspector demands entry, the occupant has no way of knowing whether enforcement of the municipal code involved requires inspection of his premises, no way of knowing the lawful limits of the inspector's power to search, and no way of knowing whether the inspector himself is acting under proper authorization. These are questions which may be reviewed by a neutral magistrate without any reassessment of the basic agency decision to canvass an area. Yet only by refusing entry and risking a criminal conviction can the occupant at present challenge the inspector's decision to search. And even if the occupant possesses sufficient fortitude to take this risk, as appellant did here, he may never learn any more about the reason for the inspection than that the law generally allows housing inspectors to gain entry. The practical effect of this system is to leave the occupant subject to the discretion of the official in the field. This is precisely the discretion to invade private property which we have consistently circumscribed by a requirement that a disinterested party warrant the need to Page 387 U. S. 533 search. See cases cited p. 387 U. S. 529 supra. We simply cannot say that the protections provided by the warrant procedure are not needed in this context; broad statutory safeguards are no substitute for individualized review, particularly when those safeguards may only be invoked at the risk of a criminal penalty. The final justification suggested for warrantless administrative searches is that the public interest demands such a rule: it is vigorously argued that the health and safety of entire urban populations is

Camara vs. Municipal Court

dependent upon enforcement of minimum fire, housing, and sanitation standards, and that the only effective means of enforcing such codes is by routine systematized inspection of all physical structures. Of course, in applying any reasonableness standard, including one of constitutional dimension, an argument that the public interest demands a particular rule must receive careful consideration. But we think this argument misses the mark. The question is not, at this stage, at least, whether these inspections may be made, but whether they may be made without a warrant. For example, to say that gambling raids may not be made at the discretion of the police without a warrant is not necessarily to say that gambling raids may never be made. In assessing whether the public interest demands creation of a general exception to the Fourth Amendment's warrant requirement, the question is not whether the public interest justifies the type of search in question, but whether the authority to search should be evidenced by a warrant, which in turn depends in part upon whether the burden of obtaining a warrant is likely to frustrate the governmental purpose behind the search. See Schmerber v. California, 384 U. S. 757, 384 U. S. 770-771. It has nowhere been urged that fire, health, and housing code inspection programs could not achieve their goals within the confines of a reasonable search warrant requirement. Thus, we do not find the public need argument dispositive. Page 387 U. S. 534 In summary, we hold that administrative searches of the kind at issue here are significant intrusions upon the interests protected by the Fourth Amendment, that such searches, when authorized and conducted without a warrant procedure, lack the traditional safeguards which the Fourth Amendment guarantees to the individual, and that the reasons put forth in Frank v. Maryland and in other cases for upholding these warrantless searches are insufficient to justify so substantial a weakening of the Fourth Amendment's protections. Because of the nature of the municipal programs under consideration, however, these conclusions must be the beginning, not the end, of our inquiry. The Frank majority gave recognition to the unique character of these inspection programs by refusing to require search warrants; to reject that disposition does not justify ignoring the question whether some other accommodation between public need and individual rights is essential.

II
The Fourth Amendment provides that, "no Warrants shall issue but upon probable cause." Borrowing from more typical Fourth Amendment cases, appellant argues not only that code enforcement inspection programs must be circumscribed by a warrant procedure, but also that warrants should issue only when the inspector possesses probable cause to believe that a particular dwelling contains violations of the minimum standards prescribed by the code being enforced. We disagree. In cases in which the Fourth Amendment requires that a warrant to search be obtained, "probable cause" is the standard by which a particular decision to search is tested against the constitutional mandate of reasonableness. To apply this standard, it is obviously necessary first to focus upon the governmental interest which allegedly justifies official intrusion upon the constitutionally protected

Camara vs. Municipal Court

Page 387 U. S. 535 interests of the private citizen. For example, in a criminal investigation, the police may undertake to recover specific stolen or contraband goods. But that public interest would hardly justify a sweeping search of an entire city conducted in the hope that these goods might be found. Consequently, a search for these goods, even with a warrant, is "reasonable" only when there is "probable cause" to believe that they will be uncovered in a particular dwelling. Unlike the search pursuant to a criminal investigation, the inspection programs at issue here are aimed at securing city-wide compliance with minimum physical standards for private property. The primary governmental interest at stake is to prevent even the unintentional development of conditions which are hazardous to public health and safety. Because fires and epidemics may ravage large urban areas, because unsightly conditions adversely affect the economic values of neighboring structures, numerous courts have upheld the police power of municipalities to impose and enforce such minimum standards even upon existing structures. [Footnote 11] In determining whether a particular inspection is reasonable -- and thus in determining whether there is probable cause to issue a warrant for that inspection -- the need for the inspection must be weighed in terms of these reasonable goals of code enforcement. There is unanimous agreement among those most familiar with this field that the only effective way to seek universal compliance with the minimum standards required by municipal codes is through routine periodic Page 387 U. S. 536 inspections of all structures. [Footnote 12] It is here that the probable cause debate is focused, for the agency's decision to conduct an area inspection is unavoidably based on its appraisal of conditions in the area as a whole, not on its knowledge of conditions in each particular building. Appellee contends that, if the probable cause standard urged by appellant is adopted, the area inspection will be eliminated as a means of seeking compliance with code standards, and the reasonable goals of code enforcement will be dealt a crushing blow. In meeting this contention, appellant argues, first, that his probable cause standard would not jeopardize area inspection programs because only a minute portion of the population will refuse to consent to such inspections, and second, that individual privacy, in any event, should be given preference to the public interest in conducting such inspections. The first argument, even if true, is irrelevant to the question whether the area inspection is reasonable within the meaning of the Fourth Amendment. The second argument is, in effect, an assertion that the area inspection is an unreasonable search. Unfortunately, there can be no ready test for determining reasonableness Page 387 U. S. 537

Camara vs. Municipal Court

other than by balancing the need to search against the invasion which the search entails. But we think that a number of persuasive factors combine to support the reasonableness of area code enforcement inspections. First, such programs have a long history of judicial and public acceptance. See Frank v. Maryland, 359 U.S. at 359 U. S. 367-371. Second, the public interest demands that all dangerous conditions be prevented or abated, yet it is doubtful that any other canvassing technique would achieve acceptable results. Many such conditions -- faulty wiring is an obvious example -- are not observable from outside the building, and indeed may not be apparent to the inexpert occupant himself. Finally, because the inspections are neither personal in nature nor aimed at the discovery of evidence of crime, they involve a relatively limited invasion of the urban citizen's privacy. Both the majority and the dissent in Frankemphatically supported this conclusion: "Time and experience have forcefully taught that the power to inspect dwelling places, either as a matter of systematic area-by-area search or, as here, to treat a specific problem, is of indispensable importance to the maintenance of community health; a power that would be greatly hobbled by the blanket requirement of the safeguards necessary for a search of evidence of criminal acts. The need for preventive action is great, and city after city has seen this need and granted the power of inspection to its health officials, and these inspections are apparently welcomed by all but an insignificant few. Certainly the nature of our society has not vitiated the need for inspections first thought necessary 158 years ago, nor has experience revealed any abuse or inroad on freedom in meeting this need by means that history and dominant public opinion have sanctioned." 359 U.S. at 359 U. S. 372. Page 387 U. S. 538 ". . . This is not to suggest that a health official need show the same kind of proof to a magistrate to obtain a warrant as one must who would search for the fruits or instrumentalities of crime. Where considerations of health and safety are involved, the facts that would justify an inference of 'probable cause' to make an inspection are clearly different from those that would justify such an inference where a criminal investigation has been undertaken. Experience may show the need for periodic inspections of certain facilities without a further showing of cause to believe that substandard conditions dangerous to the public are being maintained. The passage of a certain period without inspection might of itself be sufficient in a given situation to justify the issuance of a warrant. The test of 'probable cause' required by the Fourth Amendment can take into account the nature of the search that is being sought. 359 U.S. at 359 U. S. 383 (MR. JUSTICE DOUGLAS, dissenting)." Having concluded that the area inspection is a "reasonable" search of private property within the meaning of the Fourth Amendment, it is obvious that "probable cause" to issue a warrant to inspect must exist if reasonable legislative or administrative standards for conducting an area inspection are satisfied with respect to a particular dwelling. Such standards, which will vary with the municipal program being enforced, may be based upon the passage of time, the nature of the building ( e.g., a

Camara vs. Municipal Court

multi-family apartment house), or the condition of the entire area, but they will not necessarily depend upon specific knowledge of the condition of the particular dwelling. It has been suggested that so to vary the probable cause test from the standard applied in criminal cases would be to authorize a "synthetic search warrant," and thereby to lessen the overall protections of the Fourth Amendment. Frank v. Maryland, 359 Page 387 U. S. 539 U.S. at 359 U. S. 373. But we do not agree. The warrant procedure is designed to guarantee that a decision to search private property is justified by a reasonable governmental interest. But reasonableness is still the ultimate standard. If a valid public interest justifies the intrusion contemplated, then there is probable cause to issue a suitably restricted search warrant. Cf. Oklahoma Press Pub. Co. v. Walling, 327 U. S. 186. Such an approach neither endangers time-honored doctrines applicable to criminal investigations nor makes a nullity of the probable cause requirement in this area. It merely gives full recognition to the competing public and private interests here at stake and, in so doing, best fulfills the historic purpose behind the constitutional right to be free from unreasonable government invasions of privacy. See Eaton v. Price, 364 U.S. at 364 U. S. 273-274 (opinion of MR. JUSTICE BRENNAN).

III
Since our holding emphasizes the controlling standard of reasonableness, nothing we say today is intended to foreclose prompt inspections, even without a warrant, that the law has traditionally upheld in emergency situations. See North American Cold Storage Co. v. City of Chicago, 211 U. S. 306 (seizure of unwholesome food); Jacobson v. Massachusetts, 197 U. S. 11 (compulsory smallpox vaccination); Compagnie Francaise v. Board of Health, 186 U. S. 380 (health quarantine); Kroplin v. Truax, 119 Ohio St. 610, 165 N.E. 498 (summary destruction of tubercular cattle). On the other hand, in the case of most routine area inspections, there is no compelling urgency to inspect at a particular time or on a particular day. Moreover, most citizens allow inspections of their property without a warrant. Thus, as a practical matter, and in light of the Fourth Amendment's requirement that a warrant specify the property to be searched, it seems likely that warrants should normally be sought only after entry is refused unless Page 387 U. S. 540 there has been a citizen complaint or there is other satisfactory reason for securing immediate entry. Similarly, the requirement of a warrant procedure does not suggest any change in what seems to be the prevailing local policy, in most situations, of authorizing entry, but not entry by force, to inspect.

IV
In this case, appellant has been charged with a crime for his refusal to permit housing inspectors to enter his leasehold without a warrant. There was no emergency demanding immediate access; in fact,

Camara vs. Municipal Court

the inspectors made three trips to the building in an attempt to obtain appellant's consent to search. Yet no warrant was obtained, and thus appellant was unable to verify either the need for or the appropriate limits of the inspection. No doubt, the inspectors entered the public portion of the building with the consent of the landlord, through the building's manager, but appellee does not contend that such consent was sufficient to authorize inspection of appellant's premises. Cf. Stoner v. California, 376 U. S. 483; Chapman v. United States, 365 U. S. 610;McDonald v. United States, 335 U. S. 451. Assuming the facts to be as the parties have alleged, we therefore conclude that appellant had a constitutional right to insist that the inspectors obtain a warrant to search and that appellant may not constitutionally be convicted for refusing to consent to the inspection. It appears from the opinion of the District Court of Appeal that, under these circumstances, a writ of prohibition will issue to the criminal court under California law. The judgment is vacated, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered.

Kyllo vs. US
SUPREME COURT OF THE UNITED STATES

KYLLO v. UNITED STATES

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

No. 998508. Argued February 20, 2001Decided June 11, 2001

Suspicious that marijuana was being grown in petitioner Kyllos home in a triplex, agents used a thermal imaging device to scan the triplex to determine if the amount of heat emanating from it was consistent with the high-intensity lamps typically used for indoor marijuana growth. The scan showed that Kyllos garage roof and a side wall were relatively hot compared to the rest of his home and substantially warmer than the neighboring units. Based in part on the thermal imaging, a Federal Magistrate Judge issued a warrant to search Kyllos home, where the agents found marijuana growing. After Kyllo was indicted on a federal drug charge, he unsuccessfully moved to suppress the evidence seized from his home and then entered a conditional guilty plea. The Ninth Circuit ultimately affirmed, upholding the thermal imaging on the ground that Kyllo had shown no subjective expectation of privacy because he had made no attempt to conceal the heat escaping from his home. Even if he had, ruled the court, there was no objectively reasonable expectation of privacy because the thermal imager did not expose any intimate details of Kyllos life, only amorphous hot spots on his homes exterior. Held: Where, as here, the Government uses a device that is not in general public use, to explore details of a private home that would previously have been unknowable without physical intrusion, the surveillance is a Fourth Amendmentsearch, and is presumptively unreasonable without a warrant. Pp. 313. (a) The question whether a warrantless search of a home is reasonable and hence constitutional must be answered no in most instances, but the antecedent question whether a Fourth Amendment search has occurred is not so simple. This Court has approved warrantless visual surveillance of a home, see California v. Ciraolo, 476 U.S. 207, 213, ruling that visual observation is no search at all, see Dow Chemical Co. v. United States, 476 U.S. 227, 234235, 239. In assessing when a search is not a search, the Court has adapted a principle first enunciated in Katz v. United States, 389 U.S. 347, 361: A search does not occureven when its object is a house explicitly protected by theFourth Amendmentunless the individual manifested a subjective expectation of privacy in the searched object, and society is willing to recognize that expectation as reasonable, see, e.g., California v. Ciraolo, supra, at 211. Pp. 35. (b) While it may be difficult to refine the Katz test in some instances, in the case of the search of a homes interiorthe prototypical and hence most commonly litigated area of

Kyllo vs. US
protected privacythere is a ready criterion, with roots deep in the common law, of the minimal expectation of privacy thatexists, and that is acknowledged to be reasonable. To withdraw protection of this minimum expectation would be to permit police technology to erode the privacy guaranteed by the Fourth Amendment. Thus, obtaining by senseenhancing technology any information regarding the homes interior that could not otherwise have been obtained without physical intrusion into a constitutionally protected area, Silverman v. United States, 365 U.S. 505, 512, constitutes a searchat least where (as here) the technology in question is not in general public use. This assures preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted. Pp. 67. (c) Based on this criterion, the information obtained by the thermal imager in this case was the product of a search. The Court rejects the Governments argument that the thermal imaging must be upheld because it detected only heat radiating from the homes external surface. Such a mechanical interpretation of the Fourth Amendment was rejected in Katz, where the eavesdropping device in question picked up only sound waves that reached the exterior of the phone booth to which it was attached. Reversing that approach would leave the homeowner at the mercy of advancing technologyincluding imaging technology that could discern all human activity in the home. Also rejected is the Governments contention that the thermal imaging was constitutional because it did not detect intimate details. Such an approach would be wrong in principle because, in the sanctity of the home, all details are intimate details. See e.g., United States v. Karo, 468 U.S. 705; Dow Chemical, supra, at 238, distinguished. It would also be impractical in application, failing to provide a workable accommodation between law enforcement needs andFourth Amendment interests. See Oliver v. United States, 466 U.S. 170, 181. Pp. 712. (d) Since the imaging in this case was an unlawful search, it will remain for the District Court to determine whether, without the evidence it provided, the search warrant was supported by probable causeand if not, whether there is any other basis for supporting admission of that evidence. Pp. 1213. 190 F.3d 1041, reversed and remanded.

Social Justice Society vs. Dangerous Drugs Board

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 157870 November 3, 2008

SOCIAL JUSTICE SOCIETY (SJS), petitioner vs. DANGEROUS DRUGS BOARD and PHILIPPINE DRUG ENFORCEMENT AGENCY (PDEA),respondents. x-----------------------------------------------x G.R. No. 158633 November 3, 2008

ATTY. MANUEL J. LASERNA, JR., petitioner vs. DANGEROUS DRUGS BOARD and PHILIPPINE DRUG ENFORCEMENT AGENCY, respondents. x-----------------------------------------------x G.R. No. 161658 November 3, 2008

AQUILINO Q. PIMENTEL, JR., petitioner vs. COMMISSION ON ELECTIONS, respondents. DECISION VELASCO, JR., J.: In these kindred petitions, the constitutionality of Section 36 of Republic Act No. (RA) 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002, insofar as it requires mandatory drug testing of candidates for public office, students of secondary and tertiary schools, officers and employees of public and private offices, and persons charged before the prosecutor's office with certain offenses, among other personalities, is put in issue. As far as pertinent, the challenged section reads as follows: SEC. 36. Authorized Drug Testing. - Authorized drug testing shall be done by any government forensic laboratories or by any of the drug testing laboratories accredited and monitored by the DOH to safeguard the quality of the test results. x x x The drug testing shall employ, among others, two (2) testing methods, the screening test which

Social Justice Society vs. Dangerous Drugs Board

will determine the positive result as well as the type of drug used and the confirmatory test which will confirm a positive screening test. x x x The following shall be subjected to undergo drug testing: xxxx (c) Students of secondary and tertiary schools. - Students of secondary and tertiary schools shall, pursuant to the related rules and regulations as contained in the school's student handbook and with notice to the parents, undergo a random drug testing x x x; (d) Officers and employees of public and private offices. - Officers and employees of public and private offices, whether domestic or overseas, shall be subjected to undergo a random drug test as contained in the company's work rules and regulations, x x x for purposes of reducing the risk in the workplace. Any officer or employee found positive for use of dangerous drugs shall be dealt with administratively which shall be a ground for suspension or termination, subject to the provisions of Article 282 of the Labor Code and pertinent provisions of the Civil Service Law; xxxx (f) All persons charged before the prosecutor's office with a criminal offense having an imposable penalty of imprisonment of not less than six (6) years and one (1) day shall undergo a mandatory drug test; (g) All candidates for public office whether appointed or elected both in the national or local government shall undergo a mandatory drug test. In addition to the above stated penalties in this Section, those found to be positive for dangerous drugs use shall be subject to the provisions of Section 15 of this Act. G.R. No. 161658 (Aquilino Q. Pimentel, Jr. v. Commission on Elections) On December 23, 2003, the Commission on Elections (COMELEC) issued Resolution No. 6486, prescribing the rules and regulations on the mandatory drug testing of candidates for public office in connection with the May 10, 2004 synchronized national and local elections. The pertinent portions of the said resolution read as follows: WHEREAS, Section 36 (g) of Republic Act No. 9165 provides: SEC. 36. Authorized Drug Testing. - x x x xxxx (g) All candidates for public office x x x both in the national or local government shall undergo a mandatory drug test.

Social Justice Society vs. Dangerous Drugs Board

WHEREAS, Section 1, Article XI of the 1987 Constitution provides that public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty and efficiency; WHEREAS, by requiring candidates to undergo mandatory drug test, the public will know the quality of candidates they are electing and they will be assured that only those who can serve with utmost responsibility, integrity, loyalty, and efficiency would be elected x x x. NOW THEREFORE, The [COMELEC], pursuant to the authority vested in it under the Constitution, Batas Pambansa Blg. 881 (Omnibus Election Code), [RA] 9165 and other election laws, RESOLVED to promulgate, as it hereby promulgates, the following rules and regulations on the conduct of mandatory drug testing to candidates for public office[:] SECTION 1. Coverage. - All candidates for public office, both national and local, in the May 10, 2004 Synchronized National and Local Elections shall undergo mandatory drug test in government forensic laboratories or any drug testing laboratories monitored and accredited by the Department of Health. SEC. 3. x x x On March 25, 2004, in addition to the drug certificates filed with their respective offices, the Comelec Offices and employees concerned shall submit to the Law Department two (2) separate lists of candidates. The first list shall consist of those candidates who complied with the mandatory drug test while the second list shall consist of those candidates who failed to comply x x x. SEC. 4. Preparation and publication of names of candidates. - Before the start of the campaign period, the [COMELEC] shall prepare two separate lists of candidates. The first list shall consist of those candidates who complied with the mandatory drug test while the second list shall consist of those candidates who failed to comply with said drug test. x x x SEC. 5. Effect of failure to undergo mandatory drug test and file drug test certificate. No person elected to any public office shall enter upon the duties of his office until he has undergone mandatory drug test and filed with the offices enumerated under Section 2 hereof the drug test certificate herein required. (Emphasis supplied.) Petitioner Aquilino Q. Pimentel, Jr., a senator of the Republic and a candidate for re election in the May 10, 2004 elections,1 filed a Petition for Certiorari and Prohibition under Rule 65. In it, he seeks (1) to nullify Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 dated December 23, 2003 for being unconstitutional in that they impose a qualification for candidates for senators in addition to those already provided for in the 1987 Constitution; and (2) to enjoin the COMELEC from implementing Resolution No. 6486.

Social Justice Society vs. Dangerous Drugs Board

Pimentel invokes as legal basis for his petition Sec. 3, Article VI of the Constitution, which states: SECTION 3. No person shall be a Senator unless he is a natural - born citizen of the Philippines, and, on the day of the election, is at least thirty - five years of age, able to read and write, a registered voter, and a resident of the Philippines for not less than two years immediately preceding the day of the election. According to Pimentel, the Constitution only prescribes a maximum of five (5) qualifications for one to be a candidate for, elected to, and be a member of the Senate. He says that both the Congress and COMELEC, by requiring, via RA 9165 and Resolution No. 6486, a senatorial aspirant, among other candidates, to undergo a mandatory drug test, create an additional qualification that all candidates for senator must first be certified as drug free. He adds that there is no provision in the Constitution authorizing the Congress or COMELEC to expand the qualification requirements of candidates for senator. G.R. No. 157870 (Social Justice Society v. Dangerous Drugs Board and Philippine Drug Enforcement Agency) In its Petition for Prohibition under Rule 65, petitioner Social Justice Society (SJS), a registered political party, seeks to prohibit the Dangerous Drugs Board (DDB) and the Philippine Drug Enforcement Agency (PDEA) from enforcing paragraphs (c), (d), (f), and (g) of Sec. 36 of RA 9165 on the ground that they are constitutionally infirm. For one, the provisions constitute undue delegation of legislative power when they give unbridled discretion to schools and employers to determine the manner of drug testing. For another, the provisions trench in the equal protection clause inasmuch as they can be used to harass a student or an employee deemed undesirable. And for a third, a person's constitutional right against unreasonable searches is also breached by said provisions. G.R. No. 158633 (Atty. Manuel J. Laserna, Jr. v. Dangerous Drugs Board and Philippine Drug Enforcement Agency) Petitioner Atty. Manuel J. Laserna, Jr., as citizen and taxpayer, also seeks in his Petition for Certiorari and Prohibition under Rule 65 that Sec. 36(c), (d), (f), and (g) of RA 9165 be struck down as unconstitutional for infringing on the constitutional right to privacy, the right against unreasonable search and seizure, and the right against self - incrimination, and for being contrary to the due process and equal protection guarantees. The Issue on Locus Standi First off, we shall address the justiciability of the cases at bench and the matter of the standing of petitioners SJS and Laserna to sue. As respondents DDB and PDEA assert, SJS and Laserna failed to allege any incident amounting to a violation of the constitutional rights mentioned in their separate petitions.2

Social Justice Society vs. Dangerous Drugs Board

It is basic that the power of judicial review can only be exercised in connection with a bona fidecontroversy which involves the statute sought to be reviewed.3 But even with the presence of an actual case or controversy, the Court may refuse to exercise judicial review unless the constitutional question is brought before it by a party having the requisite standing to challenge it.4 To have standing, one must establish that he or she has suffered some actual or threatened injury as a result of the allegedly illegal conduct of the government; the injury is fairly traceable to the challenged action; and the injury is likely to be redressed by a favorable action.5 The rule on standing, however, is a matter of procedure; hence, it can be relaxed for non traditional plaintiffs, like ordinary citizens, taxpayers, and legislators when the public interest so requires, such as when the matter is of transcendental importance, of overarching significance to society, or of paramount public interest.6 There is no doubt that Pimentel, as senator of the Philippines and candidate for the May 10, 2004 elections, possesses the requisite standing since he has substantial interests in the subject matter of the petition, among other preliminary considerations. Regarding SJS and Laserna, this Court is wont to relax the rule on locus standi owing primarily to the transcendental importance and the paramount public interest involved in the enforcement of Sec. 36 of RA 9165. The Consolidated Issues The principal issues before us are as follows: (1) Do Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 impose an additional qualification for candidates for senator? Corollarily, can Congress enact a law prescribing qualifications for candidates for senator in addition to those laid down by the Constitution? and (2) Are paragraphs (c), (d), (f), and (g) of Sec. 36, RA 9165 unconstitutional? Specifically, do these paragraphs violate the right to privacy, the right against unreasonable searches and seizure, and the equal protection clause? Or do they constitute undue delegation of legislative power? Pimentel Petition (Constitutionality of Sec. 36[g] of RA 9165 and COMELEC Resolution No. 6486) In essence, Pimentel claims that Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 illegally impose an additional qualification on candidates for senator. He points out that, subject to the provisions on nuisance candidates, a candidate for senator needs only to meet the qualifications laid down in Sec. 3, Art. VI of the Constitution, to wit: (1) citizenship, (2) voter registration, (3) literacy, (4) age, and (5) residency. Beyond these stated qualification requirements, candidates for senator need not possess any other qualification to run for senator and be voted upon and elected as member of the Senate. The Congress cannot

Social Justice Society vs. Dangerous Drugs Board

validly amend or otherwise modify these qualification standards, as it cannot disregard, evade, or weaken the force of a constitutional mandate,7 or alter or enlarge the Constitution. Pimentel's contention is well - taken. Accordingly, Sec. 36(g) of RA 9165 should be, as it is hereby declared as, unconstitutional. It is basic that if a law or an administrative rule violates any norm of the Constitution, that issuance is null and void and has no effect. The Constitution is the basic law to which all laws must conform; no act shall be valid if it conflicts with the Constitution.8 In the discharge of their defined functions, the three departments of government have no choice but to yield obedience to the commands of the Constitution. Whatever limits it imposes must be observed.9 Congress' inherent legislative powers, broad as they may be, are subject to certain limitations. As early as 1927, in Government v. Springer, the Court has defined, in the abstract, the limits on legislative power in the following wise: Someone has said that the powers of the legislative department of the Government, like the boundaries of the ocean, are unlimited. In constitutional governments, however, as well as governments acting under delegated authority, the powers of each of the departments x x x are limited and confined within the four walls of the constitution or the charter, and each department can only exercise such powers as are necessarily implied from the given powers. The Constitution is the shore of legislative authority against which the waves of legislative enactment may dash, but over which it cannot leap.10 Thus, legislative power remains limited in the sense that it is subject to substantive and constitutional limitations which circumscribe both the exercise of the power itself and the allowable subjects of legislation.11 The substantive constitutional limitations are chiefly found in the Bill of Rights12 and other provisions, such as Sec. 3, Art. VI of the Constitution prescribing the qualifications of candidates for senators. In the same vein, the COMELEC cannot, in the guise of enforcing and administering election laws or promulgating rules and regulations to implement Sec. 36(g), validly impose qualifications on candidates for senator in addition to what the Constitution prescribes. If Congress cannot require a candidate for senator to meet such additional qualification, the COMELEC, to be sure, is also without such power. The right of a citizen in the democratic process of election should not be defeated by unwarranted impositions of requirement not otherwise specified in the Constitution.13 Sec. 36(g) of RA 9165, as sought to be implemented by the assailed COMELEC resolution, effectively enlarges the qualification requirements enumerated in the Sec. 3, Art. VI of the Constitution. As couched, said Sec. 36(g) unmistakably requires a candidate for senator to be certified illegal - drug clean, obviously as a pre - condition to the validity of a certificate of candidacy for senator or, with like effect, a condition sine qua non to be voted upon and, if proper, be proclaimed as senator - elect. The COMELEC resolution completes the chain with the proviso that "[n]o person elected to any public office shall enter upon the duties of his

Social Justice Society vs. Dangerous Drugs Board

office until he has undergone mandatory drug test." Viewed, therefore, in its proper context, Sec. 36(g) of RA 9165 and the implementing COMELEC Resolution add another qualification layer to what the 1987 Constitution, at the minimum, requires for membership in the Senate. Whether or not the drug - free bar set up under the challenged provision is to be hurdled before or after election is really of no moment, as getting elected would be of little value if one cannot assume office for non - compliance with the drug - testing requirement. It may of course be argued, in defense of the validity of Sec. 36(g) of RA 9165, that the provision does not expressly state that non - compliance with the drug test imposition is a disqualifying factor or would work to nullify a certificate of candidacy. This argument may be accorded plausibility if the drug test requirement is optional. But the particular section of the law, without exception, made drug - testing on those covered mandatory, necessarily suggesting that the obstinate ones shall have to suffer the adverse consequences for not adhering to the statutory command. And since the provision deals with candidates for public office, it stands to reason that the adverse consequence adverted to can only refer to and revolve around the election and the assumption of public office of the candidates. Any other construal would reduce the mandatory nature of Sec. 36(g) of RA 9165 into a pure jargon without meaning and effect whatsoever. While it is anti - climactic to state it at this juncture, COMELEC Resolution No. 6486 is no longer enforceable, for by its terms, it was intended to cover only the May 10, 2004 synchronized elections and the candidates running in that electoral event. Nonetheless, to obviate repetition, the Court deems it appropriate to review and rule, as it hereby rules, on its validity as an implementing issuance. It ought to be made abundantly clear, however, that the unconstitutionality of Sec. 36(g) of RA 9165 is rooted on its having infringed the constitutional provision defining the qualification or eligibility requirements for one aspiring to run for and serve as senator. SJS Petition (Constitutionality of Sec. 36[c], [d], [f], and [g] of RA 9165) The drug test prescribed under Sec. 36(c), (d), and (f) of RA 9165 for secondary and tertiary level students and public and private employees, while mandatory, is a random and suspicionless arrangement. The objective is to stamp out illegal drug and safeguard in the process "the well being of [the] citizenry, particularly the youth, from the harmful effects of dangerous drugs." This statutory purpose, per the policy - declaration portion of the law, can be achieved via the pursuit by the state of "an intensive and unrelenting campaign against the trafficking and use of dangerous drugs x x x through an integrated system of planning, implementation and enforcement of anti - drug abuse policies, programs and projects."14 The primary legislative intent is not criminal prosecution, as those found positive for illegal drug use as a result of this random testing are not necessarily treated as criminals. They may even be exempt from criminal liability should the illegal drug user consent to undergo rehabilitation. Secs. 54 and 55 of RA 9165 are clear on this point:

Social Justice Society vs. Dangerous Drugs Board

Sec. 54. Voluntary Submission of a Drug Dependent to Confinement, Treatment and Rehabilitation. - A drug dependent or any person who violates Section 15 of this Act may, by himself/herself or through his/her parent, [close relatives] x x x apply to the Board x x x for treatment and rehabilitation of the drug dependency. Upon such application, the Board shall bring forth the matter to the Court which shall order that the applicant be examined for drug dependency. If the examination x x x results in the certification that the applicant is a drug dependent, he/she shall be ordered by the Court to undergo treatment and rehabilitation in a Center designated by the Board x x x. xxxx Sec. 55. Exemption from the Criminal Liability Under the Voluntary Submission Program. - A drug dependent under the voluntary submission program, who is finally discharged from confinement, shall be exempt from the criminal liability under Section 15 of this Act subject to the following conditions: xxxx School children, the US Supreme Court noted, are most vulnerable to the physical, psychological, and addictive effects of drugs. Maturing nervous systems of the young are more critically impaired by intoxicants and are more inclined to drug dependency. Their recovery is also at a depressingly low rate.15 The right to privacy has been accorded recognition in this jurisdiction as a facet of the right protected by the guarantee against unreasonable search and seizure16 under Sec. 2, Art. III17 of the Constitution. But while the right to privacy has long come into its own, this case appears to be the first time that the validity of a state - decreed search or intrusion through the medium of mandatory random drug testing among students and employees is, in this jurisdiction, made the focal point. Thus, the issue tendered in these proceedings is veritably one of first impression. US jurisprudence is, however, a rich source of persuasive jurisprudence. With respect to random drug testing among school children, we turn to the teachings of Vernonia School District 47J v. Acton (Vernonia) and Board of Education of Independent School District No. 92 of Pottawatomie County, et al. v. Earls, et al. (Board of Education),18 both fairly pertinent US Supreme Court - decided cases involving the constitutionality of governmental search. In Vernonia, school administrators in Vernonia, Oregon wanted to address the drug menace in their respective institutions following the discovery of frequent drug use by school athletes. After consultation with the parents, they required random urinalysis drug testing for the school's athletes. James Acton, a high school student, was denied participation in the football program after he refused to undertake the urinalysis drug testing. Acton forthwith sued, claiming that the school's drug testing policy violated, inter alia, the Fourth Amendment19 of the US Constitution.

Social Justice Society vs. Dangerous Drugs Board

The US Supreme Court, in fashioning a solution to the issues raised in Vernonia, considered the following: (1) schools stand in loco parentis over their students; (2) school children, while not shedding their constitutional rights at the school gate, have less privacy rights; (3) athletes have less privacy rights than non - athletes since the former observe communal undress before and after sports events; (4) by joining the sports activity, the athletes voluntarily subjected themselves to a higher degree of school supervision and regulation; (5) requiring urine samples does not invade a student's privacy since a student need not undress for this kind of drug testing; and (6) there is need for the drug testing because of the dangerous effects of illegal drugs on the young. The US Supreme Court held that the policy constituted reasonable search under the Fourth20 and 14th Amendments and declared the random drug - testing policy constitutional. In Board of Education, the Board of Education of a school in Tecumseh, Oklahoma required a drug test for high school students desiring to join extra - curricular activities. Lindsay Earls, a member of the show choir, marching band, and academic team declined to undergo a drug test and averred that the drug - testing policy made to apply to non - athletes violated the Fourth and 14th Amendments. As Earls argued, unlike athletes who routinely undergo physical examinations and undress before their peers in locker rooms, non - athletes are entitled to more privacy. The US Supreme Court, citing Vernonia, upheld the constitutionality of drug testing even among non - athletes on the basis of the school's custodial responsibility and authority. In so ruling, said court made no distinction between a non - athlete and an athlete. It ratiocinated that schools and teachers act in place of the parents with a similar interest and duty of safeguarding the health of the students. And in holding that the school could implement its random drug - testing policy, the Court hinted that such a test was a kind of search in which even a reasonable parent might need to engage. In sum, what can reasonably be deduced from the above two cases and applied to this jurisdiction are: (1) schools and their administrators stand in loco parentis with respect to their students; (2) minor students have contextually fewer rights than an adult, and are subject to the custody and supervision of their parents, guardians, and schools; (3) schools, acting in loco parentis, have a duty to safeguard the health and well - being of their students and may adopt such measures as may reasonably be necessary to discharge such duty; and (4) schools have the right to impose conditions on applicants for admission that are fair, just, and non-discriminatory. Guided by Vernonia and Board of Education, the Court is of the view and so holds that the provisions of RA 9165 requiring mandatory, random, and suspicionless drug testing of students are constitutional. Indeed, it is within the prerogative of educational institutions to require, as a condition for admission, compliance with reasonable school rules and regulations and policies. To be sure, the right to enroll is not absolute; it is subject to fair, reasonable, and equitable requirements.

Social Justice Society vs. Dangerous Drugs Board

The Court can take judicial notice of the proliferation of prohibited drugs in the country that threatens the well - being of the people,21 particularly the youth and school children who usually end up as victims. Accordingly, and until a more effective method is conceptualized and put in motion, a random drug testing of students in secondary and tertiary schools is not only acceptable but may even be necessary if the safety and interest of the student population, doubtless a legitimate concern of the government, are to be promoted and protected. To borrow from Vernonia, "[d]eterring drug use by our Nation's schoolchildren is as important as enhancing efficient enforcement of the Nation's laws against the importation of drugs"; the necessity for the State to act is magnified by the fact that the effects of a drug infested school are visited not just upon the users, but upon the entire student body and faculty.22Needless to stress, the random testing scheme provided under the law argues against the idea that the testing aims to incriminate unsuspecting individual students. Just as in the case of secondary and tertiary level students, the mandatory but random drug test prescribed by Sec. 36 of RA 9165 for officers and employees of public and private offices is justifiable, albeit not exactly for the same reason. The Court notes in this regard that petitioner SJS, other than saying that "subjecting almost everybody to drug testing, without probable cause, is unreasonable, an unwarranted intrusion of the individual right to privacy,"23 has failed to show how the mandatory, random, and suspicionless drug testing under Sec. 36(c) and (d) of RA 9165 violates the right to privacy and constitutes unlawful and/or unconsented search under Art. III, Secs. 1 and 2 of the Constitution.24Petitioner Laserna's lament is just as simplistic, sweeping, and gratuitous and does not merit serious consideration. Consider what he wrote without elaboration: The US Supreme Court and US Circuit Courts of Appeals have made various rulings on the constitutionality of mandatory drug tests in the school and the workplaces. The US courts have been consistent in their rulings that the mandatory drug tests violate a citizen's constitutional right to privacy and right against unreasonable search and seizure. They are quoted extensively hereinbelow.25 The essence of privacy is the right to be left alone.26 In context, the right to privacy means the right to be free from unwarranted exploitation of one's person or from intrusion into one's private activities in such a way as to cause humiliation to a person's ordinary sensibilities. 27 And while there has been general agreement as to the basic function of the guarantee against unwarranted search, "translation of the abstract prohibition against unreasonable searches and seizures' into workable broad guidelines for the decision of particular cases is a difficult task," to borrow from C. Camara v. Municipal Court.28Authorities are agreed though that the right to privacy yields to certain paramount rights of the public and defers to the state's exercise of police power.29 As the warrantless clause of Sec. 2, Art III of the Constitution is couched and as has been held, "reasonableness" is the touchstone of the validity of a government search or intrusion.30 And whether a search at issue hews to the reasonableness standard is judged by the balancing of the government - mandated intrusion on the individual's privacy interest against the promotion of some compelling state interest.31 In the criminal context,

Social Justice Society vs. Dangerous Drugs Board

reasonableness requires showing of probable cause to be personally determined by a judge. Given that the drug - testing policy for employees--and students for that matter--under RA 9165 is in the nature of administrative search needing what was referred to in Vernonia as "swift and informal disciplinary procedures," the probable - cause standard is not required or even practicable. Be that as it may, the review should focus on the reasonableness of the challenged administrative search in question. The first factor to consider in the matter of reasonableness is the nature of the privacy interest upon which the drug testing, which effects a search within the meaning of Sec. 2, Art. III of the Constitution, intrudes. In this case, the office or workplace serves as the backdrop for the analysis of the privacy expectation of the employees and the reasonableness of drug testing requirement. The employees' privacy interest in an office is to a large extent circumscribed by the company's work policies, the collective bargaining agreement, if any, entered into by management and the bargaining unit, and the inherent right of the employer to maintain discipline and efficiency in the workplace. Their privacy expectation in a regulated office environment is, in fine, reduced; and a degree of impingement upon such privacy has been upheld. Just as defining as the first factor is the character of the intrusion authorized by the challenged law. Reduced to a question form, is the scope of the search or intrusion clearly set forth, or, as formulated inOple v. Torres, is the enabling law authorizing a search "narrowly drawn" or "narrowly focused"?32 The poser should be answered in the affirmative. For one, Sec. 36 of RA 9165 and its implementing rules and regulations (IRR), as couched, contain provisions specifically directed towards preventing a situation that would unduly embarrass the employees or place them under a humiliating experience. While every officer and employee in a private establishment is under the law deemed forewarned that he or she may be a possible subject of a drug test, nobody is really singled out in advance for drug testing. The goal is to discourage drug use by not telling in advance anyone when and who is to be tested. And as may be observed, Sec. 36(d) of RA 9165 itself prescribes what, in Ople, is a narrowing ingredient by providing that the employees concerned shall be subjected to "random drug test as contained in the company's work rules and regulations x x x for purposes of reducing the risk in the work place." For another, the random drug testing shall be undertaken under conditions calculated to protect as much as possible the employee's privacy and dignity. As to the mechanics of the test, the law specifies that the procedure shall employ two testing methods, i.e., the screening test and the confirmatory test, doubtless to ensure as much as possible the trustworthiness of the results. But the more important consideration lies in the fact that the test shall be conducted by trained professionals in access - controlled laboratories monitored by the Department of Health (DOH) to safeguard against results tampering and to ensure an accurate chain of custody.33 In addition, the IRR issued by the DOH provides that access to the drug results shall be on the "need to know" basis;34 that the "drug test result and the records shall be [kept] confidential subject to the usual accepted practices to protect the

Social Justice Society vs. Dangerous Drugs Board

confidentiality of the test results."35Notably, RA 9165 does not oblige the employer concerned to report to the prosecuting agencies any information or evidence relating to the violation of the Comprehensive Dangerous Drugs Act received as a result of the operation of the drug testing. All told, therefore, the intrusion into the employees' privacy, under RA 9165, is accompanied by proper safeguards, particularly against embarrassing leakages of test results, and is relatively minimal. To reiterate, RA 9165 was enacted as a measure to stamp out illegal drug in the country and thus protect the well - being of the citizens, especially the youth, from the deleterious effects of dangerous drugs. The law intends to achieve this through the medium, among others, of promoting and resolutely pursuing a national drug abuse policy in the workplace via a mandatory random drug test.36 To the Court, the need for drug testing to at least minimize illegal drug use is substantial enough to override the individual's privacy interest under the premises. The Court can consider that the illegal drug menace cuts across gender, age group, and social - economic lines. And it may not be amiss to state that the sale, manufacture, or trafficking of illegal drugs, with their ready market, would be an investor's dream were it not for the illegal and immoral components of any of such activities. The drug problem has hardly abated since the martial law public execution of a notorious drug trafficker. The state can no longer assume a laid back stance with respect to this modern day scourge. Drug enforcement agencies perceive a mandatory random drug test to be an effective way of preventing and deterring drug use among employees in private offices, the threat of detection by random testing being higher than other modes. The Court holds that the chosen method is a reasonable and enough means to lick the problem. Taking into account the foregoing factors, i.e., the reduced expectation of privacy on the part of the employees, the compelling state concern likely to be met by the search, and the well defined limits set forth in the law to properly guide authorities in the conduct of the random testing, we hold that the challenged drug test requirement is, under the limited context of the case, reasonable and, ergo, constitutional. Like their counterparts in the private sector, government officials and employees also labor under reasonable supervision and restrictions imposed by the Civil Service law and other laws on public officers, all enacted to promote a high standard of ethics in the public service.37 And if RA 9165 passes the norm of reasonableness for private employees, the more reason that it should pass the test for civil servants, who, by constitutional command, are required to be accountable at all times to the people and to serve them with utmost responsibility and efficiency.38 Petitioner SJS' next posture that Sec. 36 of RA 9165 is objectionable on the ground of undue delegation of power hardly commends itself for concurrence. Contrary to its position, the provision in question is not so extensively drawn as to give unbridled options to schools and employers to determine the manner of drug testing. Sec. 36 expressly provides how drug testing for students of secondary and tertiary schools and officers/employees of public/private offices should be conducted. It enumerates the persons who shall undergo drug testing. In the case of students, the testing shall be in accordance with the school rules

Social Justice Society vs. Dangerous Drugs Board

as contained in the student handbook and with notice to parents. On the part of officers/employees, the testing shall take into account the company's work rules. In either case, the random procedure shall be observed, meaning that the persons to be subjected to drug test shall be picked by chance or in an unplanned way. And in all cases, safeguards against misusing and compromising the confidentiality of the test results are established. Lest it be overlooked, Sec. 94 of RA 9165 charges the DDB to issue, in consultation with the DOH, Department of the Interior and Local Government, Department of Education, and Department of Labor and Employment, among other agencies, the IRR necessary to enforce the law. In net effect then, the participation of schools and offices in the drug testing scheme shall always be subject to the IRR of RA 9165. It is, therefore, incorrect to say that schools and employers have unchecked discretion to determine how often, under what conditions, and where the drug tests shall be conducted. The validity of delegating legislative power is now a quiet area in the constitutional landscape.39 In the face of the increasing complexity of the task of the government and the increasing inability of the legislature to cope directly with the many problems demanding its attention, resort to delegation of power, or entrusting to administrative agencies the power of subordinate legislation, has become imperative, as here. Laserna Petition (Constitutionality of Sec. 36[c], [d], [f], and [g] of RA 9165) Unlike the situation covered by Sec. 36(c) and (d) of RA 9165, the Court finds no valid justification for mandatory drug testing for persons accused of crimes. In the case of students, the constitutional viability of the mandatory, random, and suspicionless drug testing for students emanates primarily from the waiver by the students of their right to privacy when they seek entry to the school, and from their voluntarily submitting their persons to the parental authority of school authorities. In the case of private and public employees, the constitutional soundness of the mandatory, random, and suspicionless drug testing proceeds from the reasonableness of the drug test policy and requirement. We find the situation entirely different in the case of persons charged before the public prosecutor's office with criminal offenses punishable with six (6) years and one (1) day imprisonment. The operative concepts in the mandatory drug testing are "randomness" and "suspicionless." In the case of persons charged with a crime before the prosecutor's office, a mandatory drug testing can never be random or suspicionless. The ideas of randomness and being suspicionless are antithetical to their being made defendants in a criminal complaint. They are not randomly picked; neither are they beyond suspicion. When persons suspected of committing a crime are charged, they are singled out and are impleaded against their will. The persons thus charged, by the bare fact of being haled before the prosecutor's office and peaceably submitting themselves to drug testing, if that be the case, do not necessarily consent to the procedure, let alone waive their right to privacy.40 To impose mandatory drug testing on the accused is a blatant attempt to harness a medical test as a tool for criminal prosecution, contrary to the stated objectives of RA 9165. Drug testing

Social Justice Society vs. Dangerous Drugs Board

in this case would violate a persons' right to privacy guaranteed under Sec. 2, Art. III of the Constitution. Worse still, the accused persons are veritably forced to incriminate themselves. WHEREFORE, the Court resolves to GRANT the petition in G.R. No. 161658 and declares Sec. 36(g)of RA 9165 and COMELEC Resolution No. 6486 as UNCONSTITUTIONAL; and to PARTIALLY GRANT the petition in G.R. Nos. 157870 and 158633 by declaring Sec. 36(c) and (d) of RA 9165 CONSTITUTIONAL, but declaring its Sec. 36(f) UNCONSTITUTIONAL. All concerned agencies are, accordingly, permanently enjoined from implementing Sec. 36(f) and (g) of RA 9165. No costs. SO ORDERED.

Pollo vs. Constantino-David

Decisions / Signed Resolutions

EN BANC [G.R. No. 181881, October 18, 2011] BRICCIO "RICKY" A. POLLO, PETITIONER, VS. CHAIRPERSON KARINA CONSTANTINO-DAVID, DIRECTOR IV RACQUEL DE GUZMAN BUENSALIDA, DIRECTOR IV LYDIA A. CASTILLO, DIRECTOR III ENGELBERT ANTHONY D. UNITE AND THE CIVIL SERVICE COMMISSION, RESPONDENTS. DECISION
VILLARAMA, JR., J.: This case involves a search of office computer assigned to a government employee who was charged administratively and eventually dismissed from the service. The employee's personal files stored in the computer were used by the government employer as evidence of misconduct. Before us is a petition for review on certiorari under Rule 45 which seeks to reverse and set aside the Decision[1] dated October 11, 2007 and Resolution[2] dated February 29, 2008 of the Court of Appeals (CA). The CA dismissed the petition for certiorari (CA-G.R. SP No. 98224) filed by petitioner Briccio "Ricky" A. Pollo to nullify the proceedings conducted by the Civil Service Commission (CSC) which found him guilty of dishonesty, grave misconduct, conduct prejudicial to the best interest of the service, and violation of Republic Act (R.A.) No. 6713 and penalized him with dismissal. The factual antecedents: Petitioner is a former Supervising Personnel Specialist of the CSC Regional Office No. IV and also the Officer-in-Charge of the Public Assistance and Liaison Division (PALD) under the "Mamamayan Muna Hindi Mamaya Na" program of the CSC. On January 3, 2007 at around 2:30 p.m., an unsigned letter-complaint addressed to respondent CSC Chairperson Karina Constantino-David which was marked "Confidential" and sent through a courier service (LBC) from a certain "Alan San Pascual" of Bagong Silang, Caloocan City, was received by the Integrated Records Management Office (IRMO) at the CSC Central Office. Following office practice in which documents marked "Confidential" are left unopened and instead sent to the addressee, the aforesaid letter was given directly to Chairperson David. The letter-complaint reads: The Chairwoman Civil Service Commission Batasan Hills, Quezon City Dear Madam Chairwoman, Belated Merry Christmas and Advance Happy New Year! As a concerned citizen of my beloved country, I would like to ask from you personally if it is just alright for an employee of your agency to be a lawyer of an accused gov't employee having a pending case in the csc. I honestly think this is a violation of law and unfair to others and your office. I have known that a person have been lawyered by one of your attorny in the region 4 office. He is the chief of the Mamamayan muna hindi mamaya na division. He have been helping many who have pending cases in the Csc. The justice in our govt system will not be served if this will continue. Please investigate this anomaly because our perception of your clean and good office is being tainted. Concerned Govt employee[3]

Pollo vs. Constantino-David

Chairperson David immediately formed a team of four personnel with background in information technology (IT), and issued a memo directing them to conduct an investigation and specifically "to back up all the files in the computers found in the Mamamayan Muna (PALD) and Legal divisions."[4] After some briefing, the team proceeded at once to the CSC-ROIV office at Panay Avenue, Quezon City. Upon their arrival thereat around 5:30 p.m., the team informed the officials of the CSC-ROIV, respondents Director IV Lydia Castillo (Director Castillo) and Director III Engelbert Unite (Director Unite) of Chairperson David's directive. The backing-up of all files in the hard disk of computers at the PALD and Legal Services Division (LSD) was witnessed by several employees, together with Directors Castillo and Unite who closely monitored said activity. At around 6:00 p.m., Director Unite sent text messages to petitioner and the head of LSD, who were both out of the office at the time, informing them of the ongoing copying of computer files in their divisions upon orders of the CSC Chair. The text messages received by petitioner read: "Gud p.m. This is Atty. Unite FYI: Co people are going over the PCs of PALD and LSD per instruction of the Chairman. If you can make it here now it would be better." "All PCs Of PALD and LSD are being backed up per memo of the chair." "CO IT people arrived just now for this purpose. We were not also informed about this. "We can't do anything about ... it ... it's a directive from chair." "Memo of the chair was referring to an anonymous complaint"; "ill send a copy of the memo via mms"[5] Petitioner replied also thru text message that he was leaving the matter to Director Unite and that he will just get a lawyer. Another text message received by petitioner from PALD staff also reported the presence of the team from CSC main office: "Sir may mga taga C.O. daw sa kuarto natin."[6] At around 10:00 p.m. of the same day, the investigating team finished their task. The next day, all the computers in the PALD were sealed and secured for the purpose of preserving all the files stored therein. Several diskettes containing the back-up files sourced from the hard disk of PALD and LSD computers were turned over to Chairperson David. The contents of the diskettes were examined by the CSC's Office for Legal Affairs (OLA). It was found that most of the files in the 17 diskettes containing files copied from the computer assigned to and being used by the petitioner, numbering about 40 to 42 documents, were draft pleadings or letters[7] in connection with administrative cases in the CSC and other tribunals. On the basis of this finding, Chairperson David issued the Show-Cause Order[8] dated January 11, 2007, requiring the petitioner, who had gone on extended leave, to submit his explanation or counter-affidavit within five days from notice. Evaluating the subject documents obtained from petitioner's personal files, Chairperson David made the following observations: Most of the foregoing files are drafts of legal pleadings or documents that are related to or connected with administrative cases that may broadly be lumped as pending either in the CSCRO No. IV, the CSC-NCR, the CSC-Central Office or other tribunals. It is also of note that most of these draft pleadings are for and on behalves of parties, who are facing charges as respondents in administrative cases. This gives rise to the inference that the one who prepared them was knowingly, deliberately and willfully aiding and advancing interests adverse and inimical to the interest of the CSC as the central personnel agency of the government tasked to discipline misfeasance and malfeasance in the government service. The number of pleadings so prepared further demonstrates that such person is not merely engaged in an isolated practice but pursues it with seeming regularity. It would also be the height of naivete or credulity, and certainly against common human experience, to believe that the person concerned had engaged in this customary practice without any consideration, and in fact, one of the retrieved files (item 13 above) appears to insinuate the collection of fees. That these draft pleadings were obtained from the computer assigned to Pollo invariably raises the presumption that he was the one responsible or had a hand in their drafting or preparation since the computer of origin was within his direct control and disposition.[9] Petitioner filed his Comment, denying that he is the person referred to in the anonymous letter-complaint which had no attachments to it, because he is not a lawyer and neither is he "lawyering" for people with cases in the CSC. He accused CSC officials of conducting a "fishing expedition" when they unlawfully copied and printed personal files in his computer, and subsequently asking him to submit his comment which violated his right against self-incrimination. He asserted that he had protested the unlawful taking of his computer done while he was on leave, citing the letter dated January 8, 2007 in which he informed Director Castillo that the files in his computer were his personal files and those of his sister, relatives, friends and some associates and that he is not authorizing their sealing, copying, duplicating and printing as these would violate his constitutional

Pollo vs. Constantino-David

right to privacy and protection against self-incrimination and warrantless search and seizure. He pointed out that though government property, the temporary use and ownership of the computer issued under a Memorandum of Receipt (MR) is ceded to the employee who may exercise all attributes of ownership, including its use for personal purposes. As to the anonymous letter, petitioner argued that it is not actionable as it failed to comply with the requirements of a formal complaint under the Uniform Rules on Administrative Cases in the Civil Service (URACC). In view of the illegal search, the files/documents copied from his computer without his consent is thus inadmissible as evidence, being "fruits of a poisonous tree."[10] On February 26, 2007, the CSC issued Resolution No. 070382[11] finding prima faciecase against the petitioner and charging him with Dishonesty, Grave Misconduct, Conduct Prejudicial to the Best Interest of the Service and Violation of R.A. No. 6713 (Code of Conduct and Ethical Standards for Public Officials and Employees). Petitioner was directed to submit his answer under oath within five days from notice and indicate whether he elects a formal investigation. Since the charges fall under Section 19 of the URACC, petitioner was likewise placed under 90 days preventive suspension effective immediately upon receipt of the resolution. Petitioner received a copy of Resolution No. 070382 on March 1, 2007. Petitioner filed an Omnibus Motion (For Reconsideration, to Dismiss and/or to Defer) assailing the formal charge as without basis having proceeded from an illegal search which is beyond the authority of the CSC Chairman, such power pertaining solely to the court. Petitioner reiterated that he never aided any people with pending cases at the CSC and alleged that those files found in his computer were prepared not by him but by certain persons whom he permitted, at one time or another, to make use of his computer out of close association or friendship. Attached to the motion were the affidavit of Atty. Ponciano R. Solosa who entrusted his own files to be kept at petitioner's CPU and Atty. Eric N. Estrellado, the latter being Atty. Solosa's client who attested that petitioner had nothing to do with the pleadings or bill for legal fees because in truth he owed legal fees to Atty. Solosa and not to petitioner. Petitioner contended that the case should be deferred in view of the prejudicial question raised in the criminal complaint he filed before the Ombudsman against Director Buensalida, whom petitioner believes had instigated this administrative case. He also prayed for the lifting of the preventive suspension imposed on him. In its Resolution No. 070519[12] dated March 19, 2007, the CSC denied the omnibus motion. The CSC resolved to treat the said motion as petitioner's answer. On March 14, 2007, petitioner filed an Urgent Petition[13] under Rule 65 of the Rules of Court, docketed as CA-G.R. SP No. 98224, assailing both the January 11, 2007 Show-Cause Order and Resolution No. 070382 dated February 26, 2007 as having been issued with grave abuse of discretion amounting to excess or total absence of jurisdiction. Prior to this, however, petitioner lodged an administrative/criminal complaint against respondents Directors Racquel D.G. Buensalida (Chief of Staff, Office of the CSC Chairman) and Lydia A. Castillo (CSC-RO IV) before the Office of the Ombudsman, and a separate complaint for disbarment against Director Buensalida.[14] On April 17, 2007, petitioner received a notice of hearing from the CSC setting the formal investigation of the case on April 30, 2007. On April 25, 2007, he filed in the CA an Urgent Motion for the issuance of TRO and preliminary injunction.[15] Since he failed to attend the pre-hearing conference scheduled on April 30, 2007, the CSC reset the same to May 17, 2007 with warning that the failure of petitioner and/or his counsel to appear in the said pre-hearing conference shall entitle the prosecution to proceed with the formal investigation ex-parte.[16] Petitioner moved to defer or to reset the pre-hearing conference, claiming that the investigation proceedings should be held in abeyance pending the resolution of his petition by the CA. The CSC denied his request and again scheduled the pre-hearing conference on May 18, 2007 with similar warning on the consequences of petitioner and/or his counsel's non-appearance.[17] This prompted petitioner to file another motion in the CA, to cite the respondents, including the hearing officer, in indirect contempt.[18] On June 12, 2007, the CSC issued Resolution No. 071134[19] denying petitioner's motion to set aside the denial of his motion to defer the proceedings and to inhibit the designated hearing officer, Atty. Bernard G. Jimenez. The hearing officer was directed to proceed with the investigation proper with dispatch. In view of the absence of petitioner and his counsel, and upon the motion of the prosecution, petitioner was deemed to have waived his right to the formal investigation which then proceeded ex parte. On July 24, 2007, the CSC issued Resolution No. 071420,[20] the dispositive part of which reads: WHEREFORE, foregoing premises considered, the Commission hereby finds Briccio A. Pollo, a.k.a. Ricky A. Pollo GUILTY of Dishonesty, Grave Misconduct, Conduct Prejudicial to the Best Interest of the Service and Violation of Republic Act 6713. He is meted the penalty of DISMISSAL FROM THE SERVICE with all its accessory penalties, namely, disqualification to hold public office, forfeiture of retirement benefits, cancellation of civil service eligibilities and bar from taking future civil service examinations.[21]

Pollo vs. Constantino-David

On the paramount issue of the legality of the search conducted on petitioner's computer, the CSC noted the dearth of jurisprudence relevant to the factual milieu of this case where the government as employer invades the private files of an employee stored in the computer assigned to him for his official use, in the course of initial investigation of possible misconduct committed by said employee and without the latter's consent or participation. The CSC thus turned to relevant rulings of the United States Supreme Court, and cited the leading case of O'Connor v. Ortega[22] as authority for the view that government agencies, in their capacity as employers, rather than law enforcers, could validly conduct search and seizure in the governmental workplace without meeting the "probable cause" or warrant requirement for search and seizure. Another ruling cited by the CSC is the more recent case of United States v. Mark L. Simons[23] which declared that the federal agency's computer use policy foreclosed any inference of reasonable expectation of privacy on the part of its employees. Though the Court therein recognized that such policy did not, at the same time, erode the respondent's legitimate expectation of privacy in the office in which the computer was installed, still, the warrantless search of the employee's office was upheld as valid because a government employer is entitled to conduct a warrantless search pursuant to an investigation of work-related misconduct provided the search is reasonable in its inception and scope. With the foregoing American jurisprudence as benchmark, the CSC held that petitioner has no reasonable expectation of privacy with regard to the computer he was using in the regional office in view of the CSC computer use policy which unequivocally declared that a CSC employee cannot assert any privacy right to a computer assigned to him. Even assuming that there was no such administrative policy, the CSC was of the view that the search of petitioner's computer successfully passed the test of reasonableness for warrantless searches in the workplace as enunciated in the aforecited authorities. The CSC stressed that it pursued the search in its capacity as government employer and that it was undertaken in connection with an investigation involving work-related misconduct, which exempts it from the warrant requirement under the Constitution. With the matter of admissibility of the evidence having been resolved, the CSC then ruled that the totality of evidence adequately supports the charges of grave misconduct, dishonesty, conduct prejudicial to the best interest of the service and violation of R.A. No. 6713 against the petitioner. These grave infractions justified petitioner's dismissal from the service with all its accessory penalties. In his Memorandum[24] filed in the CA, petitioner moved to incorporate the above resolution dismissing him from the service in his main petition, in lieu of the filing of an appeal via a Rule 43 petition. In a subsequent motion, he likewise prayed for the inclusion of Resolution No. 071800[25] which denied his motion for reconsideration. By Decision dated October 11, 2007, the CA dismissed the petition for certiorari after finding no grave abuse of discretion committed by respondents CSC officials. The CA held that: (1) petitioner was not charged on the basis of the anonymous letter but from the initiative of the CSC after a fact-finding investigation was conducted and the results thereof yielded a prima facie case against him; (2) it could not be said that in ordering the back-up of files in petitioner's computer and later confiscating the same, Chairperson David had encroached on the authority of a judge in view of the CSC computer policy declaring the computers as government property and that employee-users thereof have no reasonable expectation of privacy in anything they create, store, send, or receive on the computer system; and (3) there is nothing contemptuous in CSC's act of proceeding with the formal investigation as there was no restraining order or injunction issued by the CA. His motion for reconsideration having been denied by the CA, petitioner brought this appeal arguing that I THE HONORABLE COURT OF APPEALS GRIEVOUSLY ERRED AND COMMITTED SERIOUS IRREGULARITY AND BLATANT ERRORS IN LAW AMOUNTING TO GRAVE ABUSE OF DISCRETION WHEN IT RULED THAT ANONYMOUS COMPLAINT IS ACTIONABLE UNDER E.O. 292 WHEN IN TRUTH AND IN FACT THE CONTRARY IS EXPLICITLY PROVIDED UNDER 2nd PARAGRAPH OF SECTION 8 OF CSC RESOLUTION NO. 99-1936, WHICH IS AN [AMENDMENT] TO THE ORIGINAL RULES PER CSC RESOLUTION NO. 940521; II THE HONORABLE COURT GRIEVOUSLY ERRED AND COMMITTED PALPABLE ERRORS IN LAW AMOUNTING TO GRAVE ABUSE OF DISCRETION WHEN IT RULED THAT PETITIONER CANNOT INVOKE HIS RIGHT TO PRIVACY, TO UNREASONABLE SEARCH AND SEIZURE, AGAINST SELF-INCRIMINATION, BY VIRTUE OF OFFICE MEMORANDUM NO. 10 S. 2002, A MERE INTERNAL MEMORANDUM SIGNED SOLELY AND EXCLUSIVELY BY RESPONDENT DAVID AND NOT BY THE COLLEGIAL COMMISSION CONSIDERING THAT POLICY MATTERS INVOLVING SUB[S]TANTIAL RIGHTS CANNOT BE COVERED BY AN OFFICE MEMORANDUM WHICH IS LIMITED TO PROCEDURAL AND ROUTINARY INSTRUCTION;

Pollo vs. Constantino-David

III THE HONORABLE COURT GRAVELY ERRED AND COMMITTED GRAVE ABUSE OF DISCRETION WHEN IT RULED THAT MEMO SEARCH DATED JANUARY 3, 2007 AND THE TAKING OF DOCUMENTS IN THE EVENING THEREOF FROM 7:00 TO 10:00 P.M. IS NOT GRAVE ABUSE OF DISCRETION LIMITING THE DEFINITION [OF] GRAVE ABUSE OF DISCRETION TO ONE INVOLVING AND TAINTED WITH PERSONAL HOSTILITY. IT LIKEWISE ERRED IN HOLDING THAT DATA STORED IN THE GOVERNMENT COMPUTERS ARE GOVERNMENT PROPERTIES INCLUDING THE PERSONAL FILES WHEN THE CONTRARY IS PROVIDED UNDER SECTION 14 OF OM. 10 s. 2002. AND GRIEVOUSLY ERRED STILL WHEN IT RULED THAT RESPONDENT DAVID BY VIRTUE OF O.M. 10 DID NOT ENCROACH ON THE DUTIES AND FUNCTIONS OF A JUDGE PURSUANT TO ARTICLE III, SECTION 2 OF THE 1987 PHILIPPINE CONSTITUTION; IV THE HONORABLE COURT ERRED WHEN IT FAILED TO CONSIDER ALL OTHER NEW ARGUMENTS, ADDITIONAL EVIDENCE HEREUNTO SUBMITTED AS WELL AS ITS FAILURE TO EVALUATE AND TAKE ACTION ON THE 2 MOTIONS TO ADMIT AND INCORPORATE CSC RESOLUTION NOS. 07-1420 DATED JULY 24, 2007 AND CSC RESOLUTION 07-1800 DATED SEPTEMBER 10, 2007. IT DID NOT RULE LIKEWISE ON THE FOUR URGENT MOTION TO RESOLVE ANCILLARY PRAYER FOR TRO. [26] Squarely raised by the petitioner is the legality of the search conducted on his office computer and the copying of his personal files without his knowledge and consent, alleged as a transgression on his constitutional right to privacy. The right to privacy has been accorded recognition in this jurisdiction as a facet of the right protected by the guarantee against unreasonable search and seizure under Section 2, Article III of the 1987 Constitution,[27] which provides: Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. The constitutional guarantee is not a prohibition of all searches and seizures but only of "unreasonable" searches and seizures.[28] But to fully understand this concept and application for the purpose of resolving the issue at hand, it is essential that we examine the doctrine in the light of pronouncements in another jurisdiction. As the Court declared in People v. Marti[29]: Our present constitutional provision on the guarantee against unreasonable search and seizure had its origin in the 1935 Charter which, worded as follows: "The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, to be determined by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched, and the persons or things to be seized." (Sec. 1[3], Article III) was in turn derived almost verbatim from the Fourth Amendment to the United States Constitution. As such, the Court may turn to the pronouncements of the United States Federal Supreme Court and State Appellate Courts which are considered doctrinal in this jurisdiction.[30] In the 1967 case of Katz v. United States,[31] the US Supreme Court held that the act of FBI agents in electronically recording a conversation made by petitioner in an enclosed public telephone booth violated his right to privacy and constituted a "search and seizure". Because the petitioner had a reasonable expectation of privacy in using the enclosed booth to make a personal telephone call, the protection of the Fourth Amendment extends to such area. In the concurring opinion of Mr. Justice Harlan, it was further noted that the existence of privacy right under prior decisions involved a two-fold requirement: first, that a person has exhibited an actual (subjective) expectation of privacy; and second, that the expectation be one that society is prepared to recognize as reasonable (objective).[32] In Mancusi v. DeForte[33] which addressed the reasonable expectations of privateemployees in the workplace, the US Supreme Court held that a union employee had Fourth Amendment rights with regard to an office at union headquarters that he shared with other union officials, even as the latter or their guests could enter the office. The Court thus "recognized that employees may have a reasonable expectation of privacy against intrusions by police."

Pollo vs. Constantino-David

That the Fourth Amendment equally applies to a government workplace was addressed in the 1987 case of O'Connor v. Ortega[34] where a physician, Dr. Magno Ortega, who was employed by a state hospital, claimed a violation of his Fourth Amendment rights when hospital officials investigating charges of mismanagement of the psychiatric residency program, sexual harassment of female hospital employees and other irregularities involving his private patients under the state medical aid program, searched his office and seized personal items from his desk and filing cabinets. In that case, the Court categorically declared that "[i]ndividuals do not lose Fourth Amendment rights merely because they work for the government instead of a private employer."[35] A plurality of four Justices concurred that the correct analysis has two steps: first, because "some government offices may be so open to fellow employees or the public that no expectation of privacy is reasonable", a court must consider "[t]he operational realities of the workplace" in order to determine whether an employee's Fourth Amendment rights are implicated; and next, where an employee has a legitimate privacy expectation, an employer's intrusion on that expectation "for noninvestigatory, work-related purposes, as well as for investigations of work-related misconduct, should be judged by the standard of reasonableness under all the circumstances."[36] On the matter of government employees' reasonable expectations of privacy in their workplace, O'Connor teaches: x x x Public employees' expectations of privacy in their offices, desks, and file cabinets, like similar expectations of employees in the private sector, may be reduced by virtue of actual office practices and procedures, or by legitimate regulation. x x x The employee's expectation of privacy must be assessed in the context of the employment relation. An office is seldom a private enclave free from entry by supervisors, other employees, and business and personal invitees. Instead, in many cases offices are continually entered by fellow employees and other visitors during the workday for conferences, consultations, and other workrelated visits. Simply put, it is the nature of government offices that others - such as fellow employees, supervisors, consensual visitors, and the general public - may have frequent access to an individual's office. We agree with JUSTICE SCALIA that "[c]onstitutional protection against unreasonable searches by the government does not disappear merely because the government has the right to make reasonable intrusions in its capacity as employer," x x x but some government offices may be so open to fellow employees or the public that no expectation of privacy is reasonable. x x x Given the great variety of work environments in the public sector, the question of whether an employee has a reasonable expectation of privacy must be addressed on a case-by-case basis.[37] (Citations omitted; emphasis supplied.) On the basis of the established rule in previous cases, the US Supreme Court declared that Dr. Ortega's Fourth Amendment rights are implicated only if the conduct of the hospital officials infringed "an expectation of privacy that society is prepared to consider as reasonable." Given the undisputed evidence that respondent Dr. Ortega did not share his desk or file cabinets with any other employees, kept personal correspondence and other private items in his own office while those work-related files (on physicians in residency training) were stored outside his office, and there being no evidence that the hospital had established any reasonable regulation or policy discouraging employees from storing personal papers and effects in their desks or file cabinets (although the absence of such a policy does not create any expectation of privacy where it would not otherwise exist), the Court concluded that Dr. Ortega has a reasonable expectation of privacy at least in his desk and file cabinets.[38] Proceeding to the next inquiry as to whether the search conducted by hospital officials was reasonable, the O'Connor plurality decision discussed the following principles: Having determined that Dr. Ortega had a reasonable expectation of privacy in his office, the Court of Appeals simply concluded without discussion that the "search...was not a reasonable search under the fourth amendment." x x x "[t]o hold that the Fourth Amendment applies to searches conducted by [public employers] is only to begin the inquiry into the standards governing such searches...[W]hat is reasonable depends on the context within which a search takes place. x x x Thus, we must determine the appropriate standard of reasonableness applicable to the search. A determination of the standard of reasonableness applicable to a particular class of searches requires "balanc[ing] the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion." x x x In the case of searches conducted by a public employer, we must balance the invasion of the employees' legitimate expectations of privacy against the government's need for supervision, control, and the efficient operation of the workplace. xxxx In our view, requiring an employer to obtain a warrant whenever the employer wished to enter an employee's office, desk, or file cabinets for a work-related purpose would seriously disrupt the routine conduct of business and would be unduly burdensome. Imposing unwieldy warrant procedures in such cases upon supervisors, who would otherwise have no reason to be familiar with such procedures, is simply unreasonable. In contrast to other circumstances in which we have required warrants, supervisors in offices such as at the Hospital are hardly in the business of investigating the violation of criminal laws. Rather, work-related

Pollo vs. Constantino-David

searches are merely incident to the primary business of the agency. Under these circumstances, the imposition of a warrant requirement would conflict with the "common-sense realization that government offices could not function if every employment decision became a constitutional matter." x x x xxxx The governmental interest justifying work-related intrusions by public employers is the efficient and proper operation of the workplace. Government agencies provide myriad services to the public, and the work of these agencies would suffer if employers were required to have probable cause before they entered an employee's desk for the purpose of finding a file or piece of office correspondence. Indeed, it is difficult to give the concept of probable cause, rooted as it is in the criminal investigatory context, much meaning when the purpose of a search is to retrieve a file for work-related reasons. Similarly, the concept of probable cause has little meaning for a routine inventory conducted by public employers for the purpose of securing state property. x x x To ensure the efficient and proper operation of the agency, therefore, public employers must be given wide latitude to enter employee offices for work-related, noninvestigatory reasons. We come to a similar conclusion for searches conducted pursuant to an investigation of work-related employee misconduct. Even when employers conduct an investigation, they have an interest substantially different from "the normal need for law enforcement." x x x Public employers have an interest in ensuring that their agencies operate in an effective and efficient manner, and the work of these agencies inevitably suffers from the inefficiency, incompetence, mismanagement, or other workrelated misfeasance of its employees. Indeed, in many cases, public employees are entrusted with tremendous responsibility, and the consequences of their misconduct or incompetence to both the agency and the public interest can be severe. In contrast to law enforcement officials, therefore, public employers are not enforcers of the criminal law; instead, public employers have a direct and overriding interest in ensuring that the work of the agency is conducted in a proper and efficient manner. In our view, therefore, a probable cause requirement for searches of the type at issue here would impose intolerable burdens on public employers. The delay in correcting the employee misconduct caused by the need for probable cause rather than reasonable suspicion will be translated into tangible and often irreparable damage to the agency's work, and ultimately to the public interest. x x x xxxx In sum, we conclude that the "special needs, beyond the normal need for law enforcement make the...probable-cause requirement impracticable," x x x for legitimate, work-related noninvestigatory intrusions as well as investigations of work-related misconduct. A standard of reasonableness will neither unduly burden the efforts of government employers to ensure the efficient and proper operation of the workplace, nor authorize arbitrary intrusions upon the privacy of public employees. We hold, therefore, that public employer intrusions on the constitutionally protected privacy interests of government employees for noninvestigatory, work-related purposes, as well as for investigations of work-related misconduct, should be judged by the standard of reasonableness under all the circumstances. Under this reasonableness standard, both the inception and the scope of the intrusion must be reasonable: "Determining the reasonableness of any search involves a twofold inquiry: first, one must consider `whether the...action was justified at its inception,' x x x ; second, one must determine whether the search as actually conducted `was reasonably related in scope to the circumstances which justified the interference in the first place,'" x x x Ordinarily, a search of an employee's office by a supervisor will be "justified at its inception" when there are reasonable grounds for suspecting that the search will turn up evidence that the employee is guilty of work-related misconduct, or that the search is necessary for a noninvestigatory work-related purpose such as to retrieve a needed file. x x x The search will be permissible in its scope when "the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of ...the nature of the [misconduct]." x x x[39] (Citations omitted; emphasis supplied.) Since the District Court granted summary judgment without a hearing on the factual dispute as to the character of the search and neither was there any finding made as to the scope of the search that was undertaken, the case was remanded to said court for the determination of the justification for the search and seizure, and evaluation of the reasonableness of both the inception of the search and its scope. In O'Connor the Court recognized that "special needs" authorize warrantless searches involving public employees for workrelated reasons. The Court thus laid down a balancing test under which government interests are weighed against the employee's reasonable expectation of privacy. This reasonableness test implicates neither probable cause nor the warrant

Pollo vs. Constantino-David

requirement, which are related to law enforcement.[40] O'Connor was applied in subsequent cases raising issues on employees' privacy rights in the workplace. One of these cases involved a government employer's search of an office computer, United States v. Mark L. Simons[41] where the defendant Simons, an employee of a division of the Central Intelligence Agency (CIA), was convicted of receiving and possessing materials containing child pornography. Simons was provided with an office which he did not share with anyone, and a computer with Internet access. The agency had instituted a policy on computer use stating that employees were to use the Internet for official government business only and that accessing unlawful material was specifically prohibited. The policy also stated that users shall understand that the agency will periodically audit, inspect, and/or monitor the user's Internet access as deemed appropriate. CIA agents instructed its contractor for the management of the agency's computer network, upon initial discovery of prohibited internet activity originating from Simons' computer, to conduct a remote monitoring and examination of Simons' computer. After confirming that Simons had indeed downloaded pictures that were pornographic in nature, all the files on the hard drive of Simon's computer were copied from a remote work station. Days later, the contractor's representative finally entered Simon's office, removed the original hard drive on Simon's computer, replaced it with a copy, and gave the original to the agency security officer. Thereafter, the agency secured warrants and searched Simons' office in the evening when Simons was not around. The search team copiedthe contents of Simons' computer; computer diskettes found in Simons' desk drawer; computer files stored on the zip drive or on zip drive diskettes; videotapes; and various documents, including personal correspondence. At his trial, Simons moved to suppress these evidence, arguing that the searches of his office and computer violated his Fourth Amendment rights. After a hearing, the district court denied the motion and Simons was found guilty as charged. Simons appealed his convictions. The US Supreme Court ruled that the searches of Simons' computer and office did not violate his Fourth Amendment rights and the first search warrant was valid. It held that the search remains valid under the O'Connorexception to the warrant requirement because evidence of the crime was discovered in the course of an otherwise proper administrative inspection. Simons' violation of the agency's Internet policy happened also to be a violation of criminal law; this does not mean that said employer lost the capacity and interests of an employer. The warrantless entry into Simons' office was reasonable under the Fourth Amendment standard announced in O'Connor because at the inception of the search, the employer had "reasonable grounds for suspecting" that the hard drive would yield evidence of misconduct, as the employer was already aware that Simons had misused his Internet access to download over a thousand pornographic images. The retrieval of the hard drive was reasonably related to the objective of the search, and the search was not excessively intrusive. Thus, while Simons had a reasonable expectation of privacy in his office, he did not have such legitimate expectation of privacy with regard to the files in his computer. x x x To establish a violation of his rights under the Fourth Amendment, Simons must first prove that he had a legitimate expectation of privacy in the place searched or the item seized. x x x And, in order to prove a legitimate expectation of privacy, Simons must show that his subjective expectation of privacy is one that society is prepared to accept as objectively reasonable. xxx xxxx x x x We conclude that the remote searches of Simons' computer did not violate his Fourth Amendment rights because, in light of the Internet policy, Simons lacked a legitimate expectation of privacy in the files downloaded from the Internet. Additionally, we conclude that Simons' Fourth Amendment rights were not violated by FBIS' retrieval of Simons' hard drive from his office. Simons did not have a legitimate expectation of privacy with regard to the record or fruits of his Internet use in light of the FBIS Internet policy. The policy clearly stated that FBIS would "audit, inspect, and/or monitor" employees' use of the Internet, including all file transfers, all websites visited, and all e-mail messages, "as deemed appropriate." x x x This policy placed employees on notice that they could not reasonably expect that their Internet activity would be private. Therefore, regardless of whether Simons subjectively believed that the files he transferred from the Internet were private, such a belief was not objectively reasonable after FBIS notified him that it would be overseeing his Internet use. x x x Accordingly, FBIS' actions in remotely searching and seizing the computer files Simons downloaded from the Internet did not violate the Fourth Amendment. xxxx The burden is on Simons to prove that he had a legitimate expectation of privacy in his office . x x x Here, Simons has shown that he had an office that he did not share. As noted above, the operational realities of Simons' workplace may have diminished his legitimate privacy expectations. However, there is no evidence in the record of any workplace practices, procedures, or regulations that had such an effect. We therefore conclude that, on this record, Simons possessed a legitimate

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expectation of privacy in his office. xxxx In the final analysis, this case involves an employee's supervisor entering the employee's government office and retrieving a piece of government equipment in which the employee had absolutely no expectation of privacy - equipment that the employer knew contained evidence of crimes committed by the employee in the employee's office. This situation may be contrasted with one in which the criminal acts of a government employee were unrelated to his employment. Here, there was a conjunction of the conduct that violated the employer's policy and the conduct that violated the criminal law. We consider that FBIS' intrusion into Simons' office to retrieve the hard drive is one in which a reasonable employer might engage. x x x[42] (Citations omitted; emphasis supplied.) This Court, in Social Justice Society (SJS) v. Dangerous Drugs Board[43] which involved the constitutionality of a provision in R.A. No. 9165 requiring mandatory drug testing of candidates for public office, students of secondary and tertiary schools, officers and employees of public and private offices, and persons charged before the prosecutor's office with certain offenses, have also recognized the fact that there may be such legitimate intrusion of privacy in the workplace. The first factor to consider in the matter of reasonableness is the nature of the privacy interest upon which the drug testing, which effects a search within the meaning of Sec. 2, Art. III of the Constitution, intrudes. In this case, the office or workplace serves as the backdrop for the analysis of the privacy expectation of the employees and the reasonableness of drug testing requirement. The employees' privacy interest in an office is to a large extent circumscribed by the company's work policies, the collective bargaining agreement, if any, entered into by management and the bargaining unit, and the inherent right of the employer to maintain discipline and efficiency in the workplace. Their privacy expectation in a regulated office environment is, in fine, reduced; and a degree of impingement upon such privacy has been upheld. (Emphasis supplied.) Applying the analysis and principles announced in O'Connor and Simons to the case at bar, we now address the following questions: (1) Did petitioner have a reasonable expectation of privacy in his office and computer files?; and (2) Was the search authorized by the CSC Chair, the copying of the contents of the hard drive on petitioner's computer reasonable in its inception and scope? In this inquiry, the relevant surrounding circumstances to consider include "(1) the employee's relationship to the item seized; (2) whether the item was in the immediate control of the employee when it was seized; and (3) whether the employee took actions to maintain his privacy in the item." These factors are relevant to both the subjective and objective prongs of the reasonableness inquiry, and we consider the two questions together.[44] Thus, where the employee used a password on his computer, did not share his office with co-workers and kept the same locked, he had a legitimate expectation of privacy and any search of that space and items located therein must comply with the Fourth Amendment.[45] We answer the first in the negative. Petitioner failed to prove that he had an actual (subjective) expectation of privacy either in his office or government-issued computer which contained his personal files. Petitioner did not allege that he had a separate enclosed office which he did not share with anyone, or that his office was always locked and not open to other employees or visitors. Neither did he allege that he used passwords or adopted any means to prevent other employees from accessing his computer files. On the contrary, he submits that being in the public assistance office of the CSC-ROIV, he normally would have visitors in his office like friends, associates and even unknown people, whom he even allowed to use his computer which to him seemed a trivial request. He described his office as "full of people, his friends, unknown people" and that in the past 22 years he had been discharging his functions at the PALD, he is "personally assisting incoming clients, receiving documents, drafting cases on appeals, in charge of accomplishment report, Mamamayan Muna Program, Public Sector Unionism, Correction of name, accreditation of service, and hardly had anytime for himself alone, that in fact he stays in the office as a paying customer."[46]Under this scenario, it can hardly be deduced that petitioner had such expectation of privacy that society would recognize as reasonable. Moreover, even assuming arguendo, in the absence of allegation or proof of the aforementioned factual circumstances, that petitioner had at least a subjective expectation of privacy in his computer as he claims, such is negated by the presence of policy regulating the use of office computers, as in Simons. Office Memorandum No. 10, S. 2002 "Computer Use Policy (CUP)" explicitly provides: POLICY

Pollo vs. Constantino-David

1.

The Computer Resources are the property of the Civil Service Commission and may be used only for legitimate business purposes. Users shall be permitted access to Computer Resources to assist them in the performance of their respective jobs. Use of the Computer Resources is a privilege that may be revoked at any given time.

2. 3.

xxxx No Expectation of Privacy 4. No expectation of privacy. Users except the Members of the Commission shall not have an expectation of privacy in anything they create, store, send, or receive on the computer system. The Head of the Office for Recruitment, Examination and Placement shall select and assign Users to handle the confidential examination data and processes. 5. Waiver of privacy rights. Users expressly waive any right to privacy in anything they create, store, send, or receive on the computer through the Internet or any other computer network.Users understand that the CSC may use human or automated means to monitor the use of its Computer Resources. Non-exclusivity of Computer Resources. A computer resource is not a personal property or for the exclusive use of a User to whom a memorandum of receipt (MR) has been issued. It can be shared or operated by other users. However, he is accountable therefor and must insure its care and maintenance.

6.

xxxx Passwords 12. Responsibility for passwords. Users shall be responsible for safeguarding their passwords for access to the computer system. Individual passwords shall not be printed, stored online, or given to others. Users shall be responsible for all transactions made using their passwords. No User may access the computer system with another User's password or account. 13. Passwords do not imply privacy. Use of passwords to gain access to the computer system or to encode particular files or messages does not imply that Users have an expectation of privacy in the material they create or receive on the computer system. The Civil Service Commission has global passwords that permit access to all materials stored on its networked computer system regardless of whether those materials have been encoded with a particular User's password. Only members of the Commission shall authorize the application of the said global passwords.

x x x x[47] (Emphasis supplied.) The CSC in this case had implemented a policy that put its employees on notice that they have no expectation of privacy in anything they create, store, send or receive on the office computers, and that the CSC may monitor the use of the computer resources using both automated or human means. This implies that on-the-spot inspections may be done to ensure that the computer resources were used only for such legitimate business purposes. One of the factors stated in O'Connor which are relevant in determining whether an employee's expectation of privacy in the workplace is reasonable is the existence of a workplace privacy policy.[48] In one case, the US Court of Appeals Eighth Circuit held that a state university employee has not shown that he had a reasonable expectation of privacy in his computer files where the university's computer policy, the computer user is informed not to expect privacy if the university has a legitimate reason to

Pollo vs. Constantino-David

conduct a search. The user is specifically told that computer files, including e-mail, can be searched when the university is responding to a discovery request in the course of litigation. Petitioner employee thus cannot claim a violation of Fourth Amendment rights when university officials conducted a warrantless search of his computer for work-related materials.[49] As to the second point of inquiry on the reasonableness of the search conducted on petitioner's computer, we answer in the affirmative. The search of petitioner's computer files was conducted in connection with investigation of work-related misconduct prompted by an anonymous letter-complaint addressed to Chairperson David regarding anomalies in the CSC-ROIV where the head of the Mamamayan Muna Hindi Mamaya Na division is supposedly "lawyering" for individuals with pending cases in the CSC. Chairperson David stated in her sworn affidavit: 8. That prior to this, as early as 2006, the undersigned has received several text messages from unknown sources adverting to certain anomalies in Civil Service Commission Regional Office IV (CSCRO IV) such as, staff working in another government agency, "selling" cases and aiding parties with pending cases, all done during office hours and involved the use of government properties; That said text messages were not investigated for lack of any verifiable leads and details sufficient to warrant an investigation;

9.

10. That the anonymous letter provided the lead and details as it pinpointed the persons and divisions involved in the alleged irregularities happening in CSCRO IV; 11. That in view of the seriousness of the allegations of irregularities happening in CSCRO IV and its effect on the integrity of the Commission, I decided to form a team of Central Office staff to back up the files in the computers of the Public Assistance and Liaison Division (PALD) and Legal Division; x x x x[50]

A search by a government employer of an employee's office is justified at inception when there are reasonable grounds for suspecting that it will turn up evidence that the employee is guilty of work-related misconduct.[51] Thus, in the 2004 case decided by the US Court of Appeals Eighth Circuit, it was held that where a government agency's computer use policy prohibited electronic messages with pornographic content and in addition expressly provided that employees do not have any personal privacy rights regarding their use of the agency information systems and technology, the government employee had no legitimate expectation of privacy as to the use and contents of his office computer, and therefore evidence found during warrantless search of the computer was admissible in prosecution for child pornography. In that case, the defendant employee's computer hard drive was first remotely examined by a computer information technician after his supervisor received complaints that he was inaccessible and had copied and distributed non-work-related e-mail messages throughout the office. When the supervisor confirmed that defendant had used his computer to access the prohibited websites, in contravention of the express policy of the agency, his computer tower and floppy disks were taken and examined. A formal administrative investigation ensued and later search warrants were secured by the police department. The initial remote search of the hard drive of petitioner's computer, as well as the subsequent warrantless searches was held as valid under theO'Connor ruling that a public employer can investigate work-related misconduct so long as any search is justified at inception and is reasonably related in scope to the circumstances that justified it in the first place.[52] Under the facts obtaining, the search conducted on petitioner's computer was justified at its inception and scope. We quote with approval the CSC's discussion on the reasonableness of its actions, consistent as it were with the guidelines established byO'Connor: Even conceding for a moment that there is no such administrative policy, there is no doubt in the mind of the Commission that the search of Pollo's computer has successfully passed the test of reasonableness for warrantless searches in the workplace as enunciated in the above-discussed American authorities. It bears emphasis that the Commission pursued the search in its capacity as a government employer and that it was undertaken in connection with an investigation involving a work-related misconduct, one of the circumstances exempted from the warrant requirement. At the inception of the search, a complaint was received recounting that a certain division chief in the CSCRO No. IV was "lawyering" for parties having pending cases with the said regional office or in the Commission.The nature of the imputation was serious, as it was grievously disturbing. If, indeed, a CSC employee was found to be furtively engaged in the practice of "lawyering" for parties with pending

Pollo vs. Constantino-David

cases before the Commission would be a highly repugnant scenario, then such a case would have shattering repercussions. It would undeniably cast clouds of doubt upon the institutional integrity of the Commission as a quasi-judicial agency, and in the process, render it less effective in fulfilling its mandate as an impartial and objective dispenser of administrative justice. It is settled that a court or an administrative tribunal must not only be actually impartial but must be seen to be so, otherwise the general public would not have any trust and confidence in it. Considering the damaging nature of the accusation, the Commission had to act fast, if only to arrest or limit any possible adverse consequence or fall-out. Thus, on the same date that the complaint was received, a search was forthwith conducted involving the computer resources in the concerned regional office. That it was the computers that were subjected to the search was justified since these furnished the easiest means for an employee to encode and store documents. Indeed, the computers would be a likely starting point in ferreting out incriminating evidence. Concomitantly, the ephemeral nature of computer files, that is, they could easily be destroyed at a click of a button, necessitated drastic and immediate action. Pointedly, to impose the need to comply with the probable cause requirement would invariably defeat the purpose of the wok-related investigation. Worthy to mention, too, is the fact that the Commission effected the warrantless search in an open and transparent manner. Officials and some employees of the regional office, who happened to be in the vicinity, were on hand to observe the process until its completion. In addition, the respondent himself was duly notified, through text messaging, of the search and the concomitant retrieval of files from his computer. All in all, the Commission is convinced that the warrantless search done on computer assigned to Pollo was not, in any way, vitiated with unconstitutionality. It was a reasonable exercise of the managerial prerogative of the Commission as an employer aimed at ensuring its operational effectiveness and efficiency by going after the work-related misfeasance of its employees. Consequently, the evidence derived from the questioned search are deemed admissible.[53] Petitioner's claim of violation of his constitutional right to privacy must necessarily fail. His other argument invoking the privacy of communication and correspondence under Section 3(1), Article III of the 1987 Constitution is also untenable considering the recognition accorded to certain legitimate intrusions into the privacy of employees in the government workplace under the aforecited authorities. We likewise find no merit in his contention that O'Connor and Simons are not relevant because the present case does not involve a criminal offense like child pornography. As already mentioned, the search of petitioner's computer was justified there being reasonable ground for suspecting that the files stored therein would yield incriminating evidence relevant to the investigation being conducted by CSC as government employer of such misconduct subject of the anonymous complaint. This situation clearly falls under the exception to the warrantless requirement in administrative searches defined inO'Connor. The Court is not unaware of our decision in Anonymous Letter-Complaint against Atty. Miguel Morales, Clerk of Court, Metropolitan Trial Court of Manila[54] involving a branch clerk (Atty. Morales) who was investigated on the basis of an anonymous letter alleging that he was consuming his working hours filing and attending to personal cases, using office supplies, equipment and utilities. The OCA conducted a spot investigation aided by NBI agents. The team was able to access Atty. Morales' personal computer and print two documents stored in its hard drive, which turned out to be two pleadings, one filed in the CA and another in the RTC of Manila, both in the name of another lawyer. Atty. Morales' computer was seized and taken in custody of the OCA but was later ordered released on his motion, but with order to the MISO to first retrieve the files stored therein. The OCA disagreed with the report of the Investigating Judge that there was no evidence to support the charge against Atty. Morales as no one from the OCC personnel who were interviewed would give a categorical and positive statement affirming the charges against Atty. Morales, along with other court personnel also charged in the same case. The OCA recommended that Atty. Morales should be found guilty of gross misconduct. The Court En Banc held that while Atty. Morales may have fallen short of the exacting standards required of every court employee, the Court cannot use the evidence obtained from his personalcomputer against him for it violated his constitutional right against unreasonable searches and seizures. The Court found no evidence to support the claim of OCA that they were able to obtain the subject pleadings with the consent of Atty. Morales, as in fact the latter immediately filed an administrative case against the persons who conducted the spot investigation, questioning the validity of the investigation and specifically invoking his constitutional right against unreasonable search and seizure. And as there is no other evidence, apart from the pleadings, retrieved from the unduly confiscated personal computer of Atty. Morales, to hold him administratively liable, the Court had no choice but to dismiss the charges against him for insufficiency of evidence. The above case is to be distinguished from the case at bar because, unlike the former which involved a personal computer of a court employee, the computer from which the personal files of herein petitioner were retrieved is a government-issued computer, hence government property the use of which the CSC has absolute right to regulate and monitor. Such relationship of the petitioner with the item seized (office computer) and other relevant factors and circumstances under American Fourth

Pollo vs. Constantino-David

Amendment jurisprudence, notably the existence of CSC MO 10, S. 2007 on Computer Use Policy, failed to establish that petitioner had a reasonable expectation of privacy in the office computer assigned to him. Having determined that the personal files copied from the office computer of petitioner are admissible in the administrative case against him, we now proceed to the issue of whether the CSC was correct in finding the petitioner guilty of the charges and dismissing him from the service. Well-settled is the rule that the findings of fact of quasi-judicial agencies, like the CSC, are accorded not only respect but even finality if such findings are supported by substantial evidence. Substantial evidence is such amount of relevant evidence which a reasonable mind might accept as adequate to support a conclusion, even if other equally reasonable minds might conceivably opine otherwise.[55] The CSC based its findings on evidence consisting of a substantial number of drafts of legal pleadings and documents stored in his office computer, as well as the sworn affidavits and testimonies of the witnesses it presented during the formal investigation. According to the CSC, these documents were confirmed to be similar or exactly the same content-wise with those on the case records of some cases pending either with CSCRO No. IV, CSC-NCR or the Commission Proper. There were also substantially similar copies of those pleadings filed with the CA and duly furnished the Commission. Further, the CSC found the explanation given by petitioner, to the effect that those files retrieved from his computer hard drive actually belonged to his lawyer friends Estrellado and Solosa whom he allowed the use of his computer for drafting their pleadings in the cases they handle, as implausible and doubtful under the circumstances. We hold that the CSC's factual finding regarding the authorship of the subject pleadings and misuse of the office computer is well-supported by the evidence on record, thus: It is also striking to note that some of these documents were in the nature of pleadings responding to the orders, decisions or resolutions of these offices or directly in opposition to them such as a petition for certiorari or a motion for reconsideration of CSC Resolution. This indicates that the author thereof knowingly and willingly participated in the promotion or advancement of the interests of parties contrary or antagonistic to the Commission. Worse, the appearance in one of the retrieved documents the phrase, "Eric N. Estr[e]llado, Epal kulang ang bayad mo," lends plausibility to an inference that the preparation or drafting of the legal pleadings was pursued with less than a laudable motivation. Whoever was responsible for these documents was simply doing the same for the money - a "legal mercenary" selling or purveying his expertise to the highest bidder, so to speak. Inevitably, the fact that these documents were retrieved from the computer of Pollo raises the presumption that he was the author thereof. This is because he had a control of the said computer. More significantly, one of the witnesses, Margarita Reyes, categorically testified seeing a written copy of one of the pleadings found in the case records lying on the table of the respondent. This was the Petition for Review in the case of Estrellado addressed to the Court of Appeals. The said circumstances indubitably demonstrate that Pollo was secretly undermining the interest of the Commission, his very own employer. To deflect any culpability, Pollo would, however, want the Commission to believe that the documents were the personal files of some of his friends, including one Attorney Ponciano Solosa, who incidentally served as his counsel of record during the formal investigation of this case. In fact, Atty. Solosa himself executed a sworn affidavit to this effect. Unfortunately, this contention of the respondent was directly rebutted by the prosecution witness, Reyes, who testified that during her entire stay in the PALD, she never saw Atty. Solosa using the computer assigned to the respondent. Reyes more particularly stated that she worked in close proximity with Pollo and would have known if Atty. Solosa, whom she personally knows, was using the computer in question. Further, Atty. Solosa himself was never presented during the formal investigation to confirm his sworn statement such that the same constitutes self-serving evidence unworthy of weight and credence. The same is true with the other supporting affidavits, which Pollo submitted. At any rate, even admitting for a moment the said contention of the respondent, it evinces the fact that he was unlawfully authorizing private persons to use the computer assigned to him for official purpose, not only once but several times gauging by the number of pleadings, for ends not in conformity with the interests of the Commission. He was, in effect, acting as a principal by indispensable cooperation...Or at the very least, he should be responsible for serious misconduct for repeatedly allowing CSC resources, that is, the computer and the electricity, to be utilized for purposes other than what they were officially intended. Further, the Commission cannot lend credence to the posturing of the appellant that the line appearing in one of the documents, "Eric N. Estrellado, Epal kulang ang bayad mo," was a private joke between the person alluded to therein, Eric N. Estrellado, and his counsel, Atty. Solosa, and not indicative of anything more sinister. The same is too preposterous to be believed. Why would such a statement appear in a legal pleading stored in the computer assigned to the respondent, unless he had something to do with it?[56]

Pollo vs. Constantino-David

Petitioner assails the CA in not ruling that the CSC should not have entertained an anonymous complaint since Section 8 of CSC Resolution No. 99-1936 (URACC) requires a verified complaint: Rule II - Disciplinary Cases SEC. 8. Complaint. - A complaint against a civil service official or employee shall not be given due course unless it is in writing and subscribed and sworn to by the complainant. However, in cases initiated by the proper disciplining authority, the complaint need not be under oath. No anonymous complaint shall be entertained unless there is obvious truth or merit to the allegation therein or supported by documentary or direct evidence, in which case the person complained of may be required to comment. xxxx We need not belabor this point raised by petitioner. The administrative complaint is deemed to have been initiated by the CSC itself when Chairperson David, after a spot inspection and search of the files stored in the hard drive of computers in the two divisions adverted to in the anonymous letter -- as part of the disciplining authority's own fact-finding investigation and information-gathering -- found a prima facie case against the petitioner who was then directed to file his comment. As this Court held inCivil Service Commission v. Court of Appeals[57] -Under Sections 46 and 48 (1), Chapter 6, Subtitle A, Book V of E.O. No. 292 and Section 8, Rule II of Uniform Rules on Administrative Cases in the Civil Service, a complaint may be initiated against a civil service officer or employee by the appropriate disciplining authority, even without being subscribed and sworn to. Considering that the CSC, as the disciplining authority for Dumlao, filed the complaint, jurisdiction over Dumlao was validly acquired. (Emphasis supplied.) As to petitioner's challenge on the validity of CSC OM 10, S. 2002 (CUP), the same deserves scant consideration. The alleged infirmity due to the said memorandum order having been issued solely by the CSC Chair and not the Commission as a collegial body, upon which the dissent of Commissioner Buenaflor is partly anchored, was already explained by Chairperson David in her Reply to the Addendum to Commissioner Buenaflor's previous memo expressing his dissent to the actions and disposition of the Commission in this case. According to Chairperson David, said memorandum order was in fact exhaustively discussed, provision by provision in the January 23, 2002 Commission Meeting, attended by her and former Commissioners Erestain, Jr. and Valmores. Hence, the Commission En Banc at the time saw no need to issue a Resolution for the purpose and further because the CUP being for internal use of the Commission, the practice had been to issue a memorandum order.[58]Moreover, being an administrative rule that is merely internal in nature, or which regulates only the personnel of the CSC and not the public, the CUP need not be published prior to its effectivity.[59] In fine, no error or grave abuse of discretion was committed by the CA in affirming the CSC's ruling that petitioner is guilty of grave misconduct, dishonesty, conduct prejudicial to the best interest of the service, and violation of R.A. No. 6713. The gravity of these offenses justified the imposition on petitioner of the ultimate penalty of dismissal with all its accessory penalties, pursuant to existing rules and regulations. WHEREFORE, the petition for review on certiorari is DENIED. The Decision dated October 11, 2007 and Resolution dated February 29, 2008 of the Court of Appeals in CA-G.R. SP No. 98224 are AFFIRMED. With costs against the petitioner. SO ORDERED.

US vs. Verdugo-Urquidez

U.S. Supreme Court

UNITED STATES v. VERDUGO-URQUIDEZ, 494 U.S. 259 (1990)
494 U.S. 259 UNITED STATES v. VERDUGO-URQUIDEZ CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 88-1353. Argued November 7, 1989 Decided February 28, 1990 After the Government obtained an arrest warrant for respondent - a Mexican citizen and resident believed to be a leader of an organization that smuggles narcotics into this country - he was apprehended by Mexican police and transported here, where he was arrested. Following his arrest, Drug Enforcement Administration (DEA) agents, working with Mexican officials, searched his Mexican residences and seized certain documents. The District Court granted his motion to suppress the evidence, concluding that the Fourth Amendment - which protects "the people" against unreasonable searches and seizures applied to the searches, and that the DEA agents had failed to justify searching the premises without a warrant. The Court of Appeals affirmed. Citing Reid v. Covert, 354 U.S. 1 - which held that American citizens tried abroad by United States military officials were entitled to Fifth and Sixth Amendment protections - the court concluded that the Constitution imposes substantive constraints on the Federal Government, even when it operates abroad. Relying on INS v. Lopez-Mendoza, 468

U.S. 1032 - where a majority assumed that illegal aliens in the United States have Fourth Amendment rights - the court
observed that it would be odd to acknowledge that respondent was entitled to trial-related rights guaranteed by the Fifth and Sixth Amendments, but not to Fourth Amendment protection. Held: The Fourth Amendment does not apply to the search and seizure by United States agents of property owned by a nonresident alien and located in a foreign country. Pp. 264-275. (a) If there were a constitutional violation in this case, it occurred solely in Mexico, since a Fourth Amendment violation is fully accomplished at the time of an unreasonable governmental intrusion whether or not the evidence seized is sought for use in a criminal trial. Thus, the Fourth Amendment functions differently from the Fifth Amendment, whose privilege against self-incrimination is a fundamental trial right of criminal defendants. P. 264. (b) The Fourth Amendment phrase "the people" seems to be a term of art used in select parts of the Constitution and contrasts with the words "person" and "accused" used in Articles of the Fifth and Sixth Amendments regulating criminal procedures. This suggests that "the people" [494 U.S. 259, 260] refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community. Pp. 264-266. (c) The Fourth Amendment's drafting history shows that its purpose was to protect the people of the United States against arbitrary action by their own Government and not to restrain the Federal Government's actions against aliens outside United States territory. Nor is there any indication that the Amendment was understood by the Framers' contemporaries to apply to United States activities directed against aliens in foreign territory or in international waters. Pp. 266-268.

US vs. Verdugo-Urquidez
(d) The view that every constitutional provision applies wherever the Government exercises its power is contrary to this Court's decisions in the Insular Cases, which held that not all constitutional provisions apply to governmental activity even in territories where the United States has sovereign power. See, e. g., Balzac v. Porto Rico, 258 U.S. 298 . Indeed, the claim that extraterritorial aliens are entitled to rights under the Fifth Amendment - which speaks in the relatively universal term of "person" - has been emphatically rejected. Johnson v. Eisentrager, 339 U.S. 763, 784 . Pp. 268-269. (e) Respondent's reliance on Reid, supra, is misplaced, since that case stands only for the proposition that United States citizens stationed abroad could invoke the protection of the Fifth and Sixth Amendments. Similarly, those cases in which aliens have been determined to enjoy certain constitutional rights establish only that aliens receive such protections when they have come within the territory of, and have developed substantial connections with, this country. See, e. g., Plyler v. Doe, 457 U.S. 202, 212 . Respondent, however, is an alien with no previous significant voluntary connection with the United States, and his legal but involuntary presence here does not indicate any substantial connection with this country. The Court of Appeals' reliance on INS v. Lopez-Mendoza, supra, is also misplaced, since that case assumed that, but did not expressly address the question whether, the Fourth Amendment applies to illegal aliens in the United States. Even assuming such aliens - who are in this country voluntarily and presumably have accepted some societal obligations - would be entitled to Fourth Amendment protections, their situation differs from that of respondent, who had no voluntary connection with this country that might place him among "the people." This Court's decisions expressly according differing protection to aliens than to citizens also undermine respondent's claim that treating aliens differently under the Fourth Amendment violates the equal protection component of the Fifth Amendment. Pp. 269-273. (f) The Court of Appeals' rule would have significant and deleterious consequences for the United States in conducting activities beyond its [494 U.S. 259, 261] borders. The rule would apply not only to law enforcement operations abroad, but also to other foreign operations - such as Armed Forces actions - which might result in "searches and seizures." Under the rule, aliens with no attachment to this country might bring actions for damages to remedy claimed violations of the Fourth Amendment in foreign countries or in international waters, and Members of the Executive and Legislative Branches would be plunged into a sea of uncertainty as to what might be reasonable in the way of searches and seizures conducted abroad. Any restrictions on searches and seizures incident to American action abroad must be imposed by the political branches through diplomatic understanding, treaty, or legislation. Pp. 273-275. 856 F.2d 1214, reversed. REHNQUIST, C. J., delivered the opinion of the Court, in which WHITE, O'CONNOR, SCALIA, and KENNEDY, JJ., joined. KENNEDY, J., filed a concurring opinion, post, p. 275. STEVENS, J., filed an opinion concurring in the judgment, post, p. 279. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 279. BLACKMUN, J., filed a dissenting opinion, post, p. 297. Lawrence S. Robbins argued the cause for the United States. With him on the briefs were Solicitor General Starr, Assistant Attorney General Dennis, and Deputy Solicitor General Bryson. Michael Pancer argued the cause for respondent. With him on the brief were Charles L. Goldberg and Patrick Q. Hall. * [ Footnote * ] Kent S. Scheidegger filed a brief for the Criminal Justice Legal Foundation as amicus curiae urging reversal. John A. Powell, Paul L. Hoffman, and David D. Cole filed a brief for the American Civil Liberties Union et al. as amici curiae urging affirmance. CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.

US vs. Verdugo-Urquidez
The question presented by this case is whether the Fourth Amendment applies to the search and seizure by United States agents of property that is owned by a nonresident alien and located in a foreign country. We hold that it does not. [494 U.S. 259, 262] Respondent Rene Martin Verdugo-Urquidez is a citizen and resident of Mexico. He is believed by the United States Drug Enforcement Agency (DEA) to be one of the leaders of a large and violent organization in Mexico that smuggles narcotics into the United States. Based on a complaint charging respondent with various narcotics-related offenses, the Government obtained a warrant for his arrest on August 3, 1985. In January 1986, Mexican police officers, after discussions with United States marshals, apprehended Verdugo-Urquidez in Mexico and transported him to the United States Border Patrol station in Calexico, California. There, United States marshals arrested respondent and eventually moved him to a correctional center in San Diego, California, where he remains incarcerated pending trial. Following respondent's arrest, Terry Bowen, a DEA agent assigned to the Calexico DEA office, decided to arrange for searches of Verdugo-Urquidez's Mexican residences located in Mexicali and San Felipe. Bowen believed that the searches would reveal evidence related to respondent's alleged narcotics trafficking activities and his involvement in the kidnaping and torturemurder of DEA Special Agent Enrique Camarena Salazar (for which respondent subsequently has been convicted in a separate prosecution. See United States v. Verdugo-Urquidez, No. CR-87-422-ER (CD Cal., Nov. 22, 1988)). Bowen telephoned Walter White, the Assistant Special Agent in charge of the DEA office in Mexico City, and asked him to seek authorization for the search from the Director General of the Mexican Federal Judicial Police (MFJP). After several attempts to reach high ranking Mexican officials, White eventually contacted the Director General, who authorized the searches and promised the cooperation of Mexican authorities. Thereafter, DEA agents working in concert with officers of the MFJP searched respondent's properties in Mexicali and San Felipe and seized certain documents. In particular, the search of the Mexicali residence uncovered a tally sheet, which the Government [494 U.S. 259, 263] believes reflects the quantities of marijuana smuggled by Verdugo-Urquidez into the United States. The District Court granted respondent's motion to suppress evidence seized during the searches, concluding that the Fourth Amendment applied to the searches and that the DEA agents had failed to justify searching respondent's premises without a warrant. A divided panel of the Court of Appeals for the Ninth Circuit affirmed. 856 F.2d 1214 (1988). It cited this Court's decision in Reid v. Covert, 354 U.S. 1 (1957), which held that American citizens tried by United States military authorities in a foreign country were entitled to the protections of the Fifth and Sixth Amendments, and concluded that "[t]he Constitution imposes substantive constraints on the federal government, even when it operates abroad." 856 F.2d, at 1218. Relying on our decision in INS v. Lopez-Mendoza, 468 U.S. 1032 (1984), where a majority of Justices assumed that illegal aliens in the United States have Fourth Amendment rights, the Ninth Circuit majority found it "difficult to conclude that VerdugoUrquidez lacks these same protections." 856 F.2d, at 1223. It also observed that persons in respondent's position enjoy certain trial-related rights, and reasoned that "[i]t would be odd indeed to acknowledge that Verdugo-Urquidez is entitled to due process under the fifth amendment, and to a fair trial under the sixth amendment, . . . and deny him the protection from unreasonable searches and seizures afforded under the fourth amendment." Id., at 1224. Having concluded that the Fourth Amendment applied to the searches of respondent's properties, the court went on to decide that the searches violated the Constitution because the DEA agents failed to procure a search warrant. Although recognizing that "an American search warrant would be of no legal validity in Mexico," the majority deemed it sufficient that a warrant would have "substantial constitutional value in this country." because it would reflect a magistrate's determination [494 U.S. 259, 264] that there existed probable cause to search and would define the scope of the search. Id., at 1230. The dissenting judge argued that this Court's statement in United States v. Curtiss-Wright Export Corp.,299 U.S. 304,

318 (1936), that "[n]either the Constitution nor the laws passed in pursuance of it have any force in foreign territory unless in
respect of our own citizens," foreclosed any claim by respondent to Fourth Amendment rights. More broadly, he viewed the

US vs. Verdugo-Urquidez
Constitution as a "compact" among the people of the United States, and the protections of the Fourth Amendment were expressly limited to "the people." We granted certiorari, 490 U.S. 1019 (1989). Before analyzing the scope of the Fourth Amendment, we think it significant to note that it operates in a different manner than the Fifth Amendment, which is not at issue in this case. The privilege against self-incrimination guaranteed by the Fifth Amendment is a fundamental trial right of criminal defendants. See Malloy v. Hogan, 378 U.S. 1 (1964). Although conduct by law enforcement officials prior to trial may ultimately impair that right, a constitutional violation occurs only at trial. Kastigar v. United States, 406 U.S. 441, 453 (1972). The Fourth Amendment functions differently. It prohibits "unreasonable searches and seizures" whether or not the evidence is sought to be used in a criminal trial, and a violation of the Amendment is "fully accomplished" at the time of an unreasonable governmental intrusion. United States v. Calandra, 414 U.S. 338, 354 (1974); United States v. Leon,468 U.S. 897, 906 (1984). For purposes of this case, therefore, if there were a constitutional violation, it occurred solely in Mexico. Whether evidence obtained from respondent's Mexican residences should be excluded at trial in the United States is a remedial question separate from the existence vel non of the constitutional violation. Calandra, supra, at 354; Leon, supra, at 906. The Fourth Amendment provides: [494 U.S. 259, 265] "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." That text, by contrast with the Fifth and Sixth Amendments, extends its reach only to "the people." Contrary to the suggestion of amici curiae that the Framers used this phrase "simply to avoid [an] awkward rhetorical redundancy," Brief for American Civil Liberties Union et al. as Amici Curiae 12, n. 4, "the people" seems to have been a term of art employed in select parts of the Constitution. The Preamble declares that the Constitution is ordained and established by "the people of the United States." The Second Amendment protects "the right of the people to keep and bear Arms," and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to "the people." See also U.S. Const., Amdt. 1 ("Congress shall make no law . . . abridging . . . the right of the people peaceably to assemble") (emphasis added); Art. I, 2, cl. 1 ("The House of Representatives shall be composed of Members chosen every second Year by the people of the several States") (emphasis added). While this textual exegesis is by no means conclusive, it suggests that "the people" protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community. See United States ex rel. Turner v. Williams, 194 U.S. 279, 292 (1904) (Excludable alien is not entitled to First Amendment rights, because "[h]e does not become one of the people to whom these things are secured by our Constitution by an attempt to enter forbidden by law"). The language of these Amendments contrasts with the words [494 U.S. 259, 266] "person" and "accused" used in the Fifth and Sixth Amendments regulating procedure in criminal cases. What we know of the history of the drafting of the Fourth Amendment also suggests that its purpose was to restrict searches and seizures which might be conducted by the United States in domestic matters. The Framers originally decided not to include a provision like the Fourth Amendment, because they believed the National Government lacked power to conduct searches and seizures. See C. Warren, The Making of the Constitution 508-509 (1928); The Federalist No. 84, p. 513 (C. Rossiter ed. 1961) (A. Hamilton); 1 Annals of Cong. 437 (1789) (statement of J. Madison). Many disputed the original view that the Federal Government possessed only narrow delegated powers over domestic affairs, however, and ultimately felt an Amendment prohibiting unreasonable searches and seizures was necessary. Madison, for example, argued that "there is a clause granting to Congress the power to make all laws which shall be necessary and proper for carrying into execution all of the powers vested in the Government of the United States," and that general warrants might be considered "necessary" for the purpose of collecting revenue. Id., at 438. The driving force behind the adoption of the Amendment, as suggested by

US vs. Verdugo-Urquidez
Madison's advocacy, was widespread hostility among the former colonists to the issuance of writs of assistance empowering revenue officers to search suspected places for smuggled goods, and general search warrants permitting the search of private houses, often to uncover papers that might be used to convict persons of libel. See Boyd v. United States, 116 U.S. 616,

625 -626 (1886). The available historical data show, therefore, that the purpose of the Fourth Amendment was to protect the
people of the United States against arbitrary action by their own Government; it was never suggested that the provision was intended to restrain the actions of the Federal Government against aliens outside of the United States territory. [494 U.S. 259, 267] There is likewise no indication that the Fourth Amendment was understood by contemporaries of the Framers to apply to activities of the United States directed against aliens in foreign territory or in international waters. Only seven years after the ratification of the Amendment, French interference with American commercial vessels engaged in neutral trade triggered what came to be known as the "undeclared war" with France. In an Act to "protect the Commerce of the United States" in 1798, Congress authorized President Adams to "instruct the commanders of the public armed vessels which are, or which shall be employed in the service of the United States, to subdue, seize and take any armed French vessel, which shall be found within the jurisdictional limits of the United States, or elsewhere, on the high seas." 1 of An Act Further to Protect the Commerce of the United States, ch. 68, 1 Stat. 578. This public naval force consisted of only 45 vessels, so Congress also gave the President power to grant to the owners of private armed ships and vessels of the United States "special commissions," which would allow them "the same license and authority for the subduing, seizing and capturing any armed French vessel, and for the recapture of the vessels, goods and effects of the people of the United States, as the public armed vessels of the United States may by law have." 2, 1 Stat. 579; see U.S. Const., Art. I, 8, cl. 11 (Congress has power to grant letters of marque and reprisal). Under the latter provision, 365 private armed vessels were commissioned before March 1, 1799, see G. Allen, Our Naval War with France 59 (1967); together, these enactments resulted in scores of seizures of foreign vessels under congressional authority. See M. Palmer, Stoddert's War: Naval Operations During the Quasi-War with France, 1798-1801, p. 235 (1987). See also An Act Further to Suspend the Commercial Intercourse Between the United States and France, ch. 2, 1 Stat. 613. Some commanders were held liable by this Court for unlawful seizures because their actions were beyond the scope of the congressional [494 U.S. 259, 268] grant of authority, see, e. g., Little v. Barreme, 2 Cranch 170, 177-178 (1804); cf. Talbot v. Seeman, 1 Cranch 1, 31 (1801) (seizure of neutral ship lawful where American captain had probable cause to believe vessel was French), but it was never suggested that the Fourth Amendment restrained the authority of Congress or of United States agents to conduct operations such as this. The global view taken by the Court of Appeals of the application of the Constitution is also contrary to this Court's decisions in the Insular Cases, which held that not every constitutional provision applies to governmental activity even where the United States has sovereign power. See, e. g., Balzac v. Porto Rico, 258 U.S. 298 (1922) (Sixth Amendment right to jury trial inapplicable in Puerto Rico); Ocampo v. United States, 234 U.S. 91 (1914) (Fifth Amendment grand jury provision inapplicable in Philippines); Dorr v. United States, 195 U.S. 138 (1904) (jury trial provision inapplicable in Philippines); Hawaii v. Mankichi, 190 U.S. 197 (1903) (provisions on indictment by grand jury and jury trial inapplicable in Hawaii); Downes v. Bidwell, 182 U.S. 244 (1901) (Revenue Clauses of Constitution inapplicable to Puerto Rico). In Dorr, we declared the general rule that in an unincorporated territory - one not clearly destined for statehood - Congress was not required to adopt "a system of laws which shall include the right of trial by jury, and that the Constitution does not, without legislation and of its own force, carry such right to territory so situated." 195 U.S., at 149 (emphasis added). Only "fundamental" constitutional rights are guaranteed to inhabitants of those territories. Id., at 148; Balzac, supra, at 312-313; see Examining Board of Engineers, Architects and Surveyors v. Flores de Otero, 426 U.S. 572, 599 , n. 30 (1976). If that is true with respect to territories ultimately governed by Congress, respondent's claim that the protections of the Fourth Amendment extend to aliens in foreign nations is even weaker. And certainly, it is not open to us in light of the Insular Cases to endorse the [494 U.S. 259, 269] view that every constitutional provision applies wherever the United States Government exercises its power.

US vs. Verdugo-Urquidez
Indeed, we have rejected the claim that aliens are entitled to Fifth Amendment rights outside the sovereign territory of the United States. In Johnson v. Eisentrager, 339 U.S. 763 (1950), the Court held that enemy aliens arrested in China and imprisoned in Germany after World War II could not obtain writs of habeas corpus in our federal courts on the ground that their convictions for war crimes had violated the Fifth Amendment and other constitutional provisions. The Eisentrager opinion acknowledged that in some cases constitutional provisions extend beyond the citizenry; "[t]he alien . . . has been accorded a generous and ascending scale of rights as he increases his identity with our society." Id., at 770. But our rejection of extraterritorial application of the Fifth Amendment was emphatic: "Such extraterritorial application of organic law would have been so significant an innovation in the practice of governments that, if intended or apprehended, it could scarcely have failed to excite contemporary comment. Not one word can be cited. No decision of this Court supports such a view. Cf. Downes v. Bidwell, 182 U.S. 244 [(1901)]. None of the learned commentators on our Constitution has even hinted at it. The practice of every modern government is opposed to it." Id., at 784. If such is true of the Fifth Amendment, which speaks in the relatively universal term of "person," it would seem even more true with respect to the Fourth Amendment, which applies only to "the people." To support his all-encompassing view of the Fourth Amendment, respondent points to language from the plurality opinion in Reid v. Covert, 354 U.S. 1 (1957). Reid involved an attempt by Congress to subject the wives of American servicemen to trial by military tribunals without the protection of the Fifth and Sixth Amendments. The Court held that it was unconstitutional to apply the Uniform Code of Military [494 U.S. 259, 270] Justice to the trials of the American women for capital crimes. Four Justices "reject[ed] the idea that when the United States acts against citizens abroad it can do so free of the Bill of Rights." Id., at 5 (emphasis added). The plurality went on to say: "The United States is entirely a creature of the Constitution. Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution. When the Government reaches out to punish a citizen who is abroad, the shield which the Bill of Rights and other parts of the Constitution provide to protect his life and liberty should not be stripped away just because he happens to be in another land." Id., at 5-6 (emphasis added; footnote omitted). Respondent urges that we interpret this discussion to mean that federal officials are constrained by the Fourth Amendment wherever and against whomever they act. But the holding of Reid stands for no such sweeping proposition: it decided that United States citizens stationed abroad could invoke the protection of the Fifth and Sixth Amendments. The concurrences by Justices Frankfurter and Harlan in Reid resolved the case on much narrower grounds than the plurality and declined even to hold that United States citizens were entitled to the full range of constitutional protections in all overseas criminal prosecutions. See id., at 75 (Harlan, J., concurring in result) ("I agree with my brother FRANKFURTER that . . . we have before us a question analogous, ultimately, to issues of due process; one can say, in fact, that the question of which specific safeguards of the Constitution are appropriately to be applied in a particular context overseas can be reduced to the issue of what process is `due' a defendant in the particular circumstances of a particular case"). Since respondent is not a United States citizen, he can derive no comfort from the Reid holding. Verdugo-Urquidez also relies on a series of cases in which we have held that aliens enjoy certain constitutional rights. [494 U.S. 259, 271] See, e. g., Plyler v. Doe, 457 U.S. 202, 211 -212 (1982) (illegal aliens protected by Equal Protection Clause); Kwong Hai Chew v. Colding, 344 U.S. 590, 596(1953) (resident alien is a "person" within the meaning of the Fifth Amendment); Bridges v. Wixon, 326 U.S. 135, 148 (1945) (resident aliens have First Amendment rights); Russian Volunteer Fleet v. United States, 282 U.S. 481 (1931) (Just Compensation Clause of Fifth Amendment); Wong Wing v. United States, 163 U.S. 228, 238 (1896) (resident aliens entitled to Fifth and Sixth Amendment rights); Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886) (Fourteenth Amendment protects resident aliens). These cases, however, establish only that aliens receive constitutional protections when they have come within the territory of the United States and developed

US vs. Verdugo-Urquidez
substantial connections with this country. See, e. g., Plyler, supra, at 212 (The provisions of the Fourteenth Amendment "`are universal in their application, to all persons within the territorial jurisdiction . . .'") (quoting Yick Wo, supra, at 369); Kwong Hai Chew, supra, at 596, n. 5("The Bill of Rights is a futile authority for the alien seeking admission for the first time to these shores. But once an alien lawfully enters and resides in this country he becomes invested with the rights guaranteed by the Constitution to all people within our borders") (quoting Bridges, supra, at 161 (concurring opinion) (emphasis added)). Respondent is an alien who has had no previous significant voluntary connection with the United States, so these cases avail him not. JUSTICE STEVENS' concurrence in the judgment takes the view that even though the search took place in Mexico, it is nonetheless governed by the requirements of the Fourth Amendment because respondent was "lawfully present in the United States . . . even though he was brought and held here against his will." Post, at 279. But this sort of presence - lawful but involuntary - is not of the sort to indicate any substantial connection with our country. The extent to which respondent might claim the protection of the Fourth Amendment [494 U.S. 259, 272] if the duration of his stay in the United States were to be prolonged - by a prison sentence, for example - we need not decide. When the search of his house in Mexico took place, he had been present in the United States for only a matter of days. We do not think the applicability of the Fourth Amendment to the search of premises in Mexico should turn on the fortuitous circumstance of whether the custodian of its nonresident alien owner had or had not transported him to the United States at the time the search was made. The Court of Appeals found some support for its holding in our decision in INS v. Lopez-Mendoza, 468 U.S. 1032 (1984), where a majority of Justices assumed that the Fourth Amendment applied to illegal aliens in the United States. We cannot fault the Court of Appeals for placing some reliance on the case, but our decision did not expressly address the proposition gleaned by the court below. The question presented for decision in Lopez-Mendoza was limited to whether the Fourth Amendment's exclusionary rule should be extended to civil deportation proceedings; it did not encompass whether the protections of the Fourth Amendment extend to illegal aliens in this country. The Court often grants certiorari to decide particular legal issues while assuming without deciding the validity of antecedent propositions, compare, e. g., Maine v. Thiboutot, 448 U.S. 1 (1980) (assuming State is a "person" within the meaning of 42 U.S.C. 1983), with Will v. Michigan Dept. of State Police, 491 U.S. 58(1989) (State is not a "person"), and such assumptions - even on jurisdictional issues - are not binding in future cases that directly raise the questions. Id., at 63, n. 4; Hagans v. Lavine, 415 U.S. 528, 535 , n. 5 (1974). Our statements in Lopez-Mendoza are therefore not dispositive of how the Court would rule on a Fourth Amendment claim by illegal aliens in the United States if such a claim were squarely before us. Even assuming such aliens would be entitled to Fourth Amendment protections, their situation is [494 U.S. 259, 273] different from respondent's. The illegal aliens in Lopez-Mendoza were in the United States voluntarily and presumably had accepted some societal obligations; but respondent had no voluntary connection with this country that might place him among "the people" of the United States. Respondent also contends that to treat aliens differently from citizens with respect to the Fourth Amendment somehow violates the equal protection component of the Fifth Amendment to the United States Constitution. He relies on Graham v. Richardson, 403 U.S. 365 (1971), and Foley v. Connelie,435 U.S. 291 (1978), for this proposition. But the very cases previously cited with respect to the protection extended by the Constitution to aliens undermine this claim. They are constitutional decisions of this Court expressly according differing protection to aliens than to citizens, based on our conclusion that the particular provisions in question were not intended to extend to aliens in the same degree as to citizens. Cf. Mathews v. Diaz, 426 U.S. 67, 79 -80 (1976) ("In the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens"). Not only are history and case law against respondent, but as pointed out in Johnson v. Eisentrager, 393 U.S. 763 (1950), the result of accepting his claim would have significant and deleterious consequences for the United States in conducting activities beyond its boundaries. The rule adopted by the Court of Appeals would apply not only to law enforcement operations abroad, but also to other foreign policy operations which might result in "searches or seizures." The United States

US vs. Verdugo-Urquidez
frequently employs Armed Forces outside this country - over 200 times in our history - for the protection of American citizens or national security. Congressional Research Service, Instances of Use of United States Armed Forces Abroad, 1798-1989 (E. Collier ed. 1989). Application of the Fourth Amendment to those circumstances could significantly disrupt the ability of the political [494 U.S. 259, 274] branches to respond to foreign situations involving our national interest. Were respondent to prevail, aliens with no attachment to this country might well bring actions for damages to remedy claimed violations of the Fourth Amendment in foreign countries or in international waters. See Bivens v. Six Unknown Federal Narcotics Agents, 403

U.S. 388 (1971); cf. Tennessee v. Garner, 471 U.S. 1 (1985); Graham v. Connor,490 U.S. 386 (1989). Perhaps a Bivens
action might be unavailable in some or all of these situations due to "`special factors counselling hesitation,'" see Chappell v. Wallace, 462 U.S. 296, 298 (1983) (quoting Bivens, supra, at 396), but the Government would still be faced with case-bycase adjudications concerning the availability of such an action. And even were Bivens deemed wholly inapplicable in cases of foreign activity, that would not obviate the problems attending the application of the Fourth Amendment abroad to aliens. The Members of the Executive and Legislative Branches are sworn to uphold the Constitution, and they presumably desire to follow its commands. But the Court of Appeals' global view of its applicability would plunge them into a sea of uncertainty as to what might be reasonable in the way of searches and seizures conducted abroad. Indeed, the Court of Appeals held that absent exigent circumstances, United States agents could not effect a "search or seizure" for law enforcement purposes in a foreign country without first obtaining a warrant - which would be a dead letter outside the United States - from a magistrate in this country. Even if no warrant were required, American agents would have to articulate specific facts giving them probable cause to undertake a search or seizure if they wished to comply with the Fourth Amendment as conceived by the Court of Appeals. We think that the text of the Fourth Amendment, its history, and our cases discussing the application of the Constitution to aliens and extraterritorially require rejection of respondent's claim. At the time of the search, he was a citizen and resident of Mexico with no voluntary attachment to the [494 U.S. 259, 275] United States, and the place searched was located in Mexico. Under these circumstances, the Fourth Amendment has no application. For better or for worse, we live in a world of nation-states in which our Government must be able to "functio[n] effectively in the company of sovereign nations." Perez v. Brownell, 356 U.S. 44, 57 (1958). Some who violate our laws may live outside our borders under a regime quite different from that which obtains in this country. Situations threatening to important American interests may arise halfway around the globe, situations which in the view of the political branches of our Government require an American response with armed force. If there are to be restrictions on searches and seizures which occur incident to such American action, they must be imposed by the political branches through diplomatic understanding, treaty, or legislation. The judgment of the Court of Appeals is accordingly Reversed. JUSTICE KENNEDY, concurring. I agree that no violation of the Fourth Amendment has occurred and that we must reverse the judgment of the Court of Appeals. Although some explanation of my views is appropriate given the difficulties of this case, I do not believe they depart in fundamental respects from the opinion of the Court, which I join. In cases involving the extraterritorial application of the Constitution, we have taken care to state whether the person claiming its protection is a citizen, see, e. g., Reid v. Covert, 354 U.S. 1 (1957), or an alien, see, e. g., Johnson v. Eisentrager, 339

U.S. 763 (1950). The distinction between citizens and aliens follows from the undoubted proposition that the Constitution
does not create, nor do general principles of law create, any juridical relation between our country and some undefined, limitless class of noncitizens who are beyond our territory. We should note, however, that the absence of [494 U.S. 259,

US vs. Verdugo-Urquidez
276] this relation does not depend on the idea that only a limited class of persons ratified the instrument that formed our Government. Though it must be beyond dispute that persons outside the United States did not and could not assent to the Constitution, that is quite irrelevant to any construction of the powers conferred or the limitations imposed by it. As Justice Story explained in his Commentaries: "A government may originate in the voluntary compact or assent of the people of several states, or of a people never before united, and yet when adopted and ratified by them, be no longer a matter resting in compact; but become an executed government or constitution, a fundamental law, and not a mere league. But the difficulty in asserting it to be a compact between the people of each state, and all the people of the other states is, that the constitution itself contains no such expression, and no such designation of parties." 1 Commentaries on the Constitution 365, p. 335 (1833) (footnote omitted). The force of the Constitution is not confined because it was brought into being by certain persons who gave their immediate assent to its terms. For somewhat similar reasons, I cannot place any weight on the reference to "the people" in the Fourth Amendment as a source of restricting its protections. With respect, I submit these words do not detract from its force or its reach. Given the history of our Nation's concern over warrantless and unreasonable searches, explicit recognition of "the right of the people" to Fourth Amendment protection may be interpreted to underscore the importance of the right, rather than to restrict the category of persons who may assert it. The restrictions that the United States must observe with reference to aliens beyond its territory or jurisdiction depend, as a consequence, on general principles of interpretation, not on an inquiry as to who formed the Constitution or a construction that some rights are mentioned as being those of "the people." [494 U.S. 259, 277] I take it to be correct, as the plurality opinion in Reid v. Covert sets forth, that the Government may act only as the Constitution authorizes, whether the actions in question are foreign or domestic. See 354 U.S., at 6 . But this principle is only a first step in resolving this case. The question before us then becomes what constitutional standards apply when the Government acts, in reference to an alien, within its sphere of foreign operations. We have not overruled either In re Ross, 140 U.S. 453 (1891), or the so-called Insular Cases (i. e., Downes v. Bidwell, 182 U.S. 244 (1901); Hawaii v. Mankichi, 190 U.S. 197 (1903); Dorr v. United States, 195 U.S. 138 (1904); Balzac v. Porto Rico, 258 U.S. 298 (1922). These authorities, as well as United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 318 (1936), stand for the proposition that we must interpret constitutional protections in light of the undoubted power of the United States to take actions to assert its legitimate power and authority abroad. Justice Harlan made this observation in his opinion concurring in the judgment in Reid v. Covert: "I cannot agree with the suggestion that every provision of the Constitution must always be deemed automatically applicable to American citizens in every part of the world. For Ross and the Insular Cases do stand for an important proposition, one which seems to me a wise and necessary gloss on our Constitution. The proposition is, of course, not that the Constitution `does not apply' overseas, but that there are provisions in the Constitution which do not necessarily apply in all circumstances in every foreign place. In other words, it seems to me that the basic teaching of Ross and the Insular Cases is that there is no rigid and abstract rule that Congress, as a condition precedent to exercising power over Americans overseas, must exercise it subject to all the guarantees of the Constitution, no matter what the conditions and considerations are that would make adherence to a [494 U.S. 259, 278] specific guarantee altogether impracticable and anomalous." 354 U.S., at 74 . The conditions and considerations of this case would make adherence to the Fourth Amendment's warrant requirement impracticable and anomalous. Just as the Constitution in the Insular Cases did not require Congress to implement all constitutional guarantees in its territories because of their "wholly dissimilar traditions and institutions," the Constitution does not require United States agents to obtain a warrant when searching the foreign home of a nonresident alien. If the search had occurred in a residence within the United States, I have little doubt that the full protections of the Fourth Amendment would apply. But that is not this case. The absence of local judges or magistrates available to issue warrants, the

US vs. Verdugo-Urquidez
differing and perhaps unascertainable conceptions of reasonableness and privacy that prevail abroad, and the need to cooperate with foreign officials all indicate that the Fourth Amendment's warrant requirement should not apply in Mexico as it does in this country. For this reason, in addition to the other persuasive justifications stated by the Court, I agree that no violation of the Fourth Amendment has occurred in the case before us. The rights of a citizen, as to whom the United States has continuing obligations, are not presented by this case. I do not mean to imply, and the Court has not decided, that persons in the position of the respondent have no constitutional protection. The United States is prosecuting a foreign national in a court established under Article III, and all of the trial proceedings are governed by the Constitution. All would agree, for instance, that the dictates of the Due Process Clause of the Fifth Amendment protect the defendant. Indeed, as Justice Harlan put it, "the question of which specific safeguards . . . are appropriately to be applied in a particular context . . . can be reduced to the issue of what process is `due' a defendant in the particular circumstances of a particular case." Reid, supra, at 75. Nothing approaching a violation of due process has occurred in this case. [494 U.S. 259, 279] JUSTICE STEVENS, concurring in the judgment. In my opinion aliens who are lawfully present in the United States are among those "people" who are entitled to the protection of the Bill of Rights, including the Fourth Amendment. Respondent is surely such a person even though he was brought and held here against his will. I therefore cannot join the Court's sweeping opinion. * I do agree, however, with the Government's submission that the search conducted by the United States agents with the approval and cooperation of the Mexican authorities was not "unreasonable" as that term is used in the first Clause of the Amendment. I do not believe the Warrant Clause has any application to searches of noncitizens' homes in foreign jurisdictions because American magistrates have no power to authorize such searches. I therefore concur in the Court's judgment. [ Footnote * ] The Court's interesting historical discussion is simply irrelevant to the question whether an alien lawfully within the sovereign territory of the United States is entitled to the protection of our laws. Nor is comment on illegal aliens' entitlement to the protections of the Fourth Amendment necessary to resolve this case. JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, dissenting. Today the Court holds that although foreign nationals must abide by our laws even when in their own countries, our Government need not abide by the Fourth Amendment when it investigates them for violations of our laws. I respectfully dissent.

I
Particularly in the past decade, our Government has sought, successfully, to hold foreign nationals criminally liable under federal laws for conduct committed entirely beyond the territorial limits of the United States that nevertheless has effects [494 U.S. 259, 280] in this country. Foreign nationals must now take care not to violate our drug laws, 1 our antitrust laws, 2 our securities laws, 3 and a host of other federal criminal statutes. 4 The [494 U.S. 259, 281] enormous expansion of federal criminal jurisdiction outside our Nation's boundaries has led one commentator to suggest that our country's three largest exports are now "rock music, blue jeans, and United States law." Grundman, The New Imperialism: The Extraterritorial Application of United States Law, 14 Int'l Law. 257, 257 (1980). The Constitution is the source of Congress' authority to criminalize conduct, whether here or abroad, and of the Executive's authority to investigate and prosecute such conduct. But the same Constitution also prescribes limits on our Government's authority to investigate, prosecute, and punish criminal conduct, whether foreign or domestic. As a plurality of the Court noted in Reid v. Covert, 354 U.S. 1, 5 -6 (1957): "The United States is entirely a creature of the Constitution. Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution." (Footnotes

US vs. Verdugo-Urquidez
omitted.) See also ante, at 277 (KENNEDY, J., concurring) ("[T]he Government may act only as the Constitution authorizes, whether the actions in question are foreign or domestic"). In particular, the Fourth Amendment provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no Warrants shall issue but upon probable cause, supported by [494 U.S. 259, 282] Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." The Court today creates an antilogy: the Constitution authorizes our Government to enforce our criminal laws abroad, but when Government agents exercise this authority, the Fourth Amendment does not travel with them. This cannot be. At the very least, the Fourth Amendment is an unavoidable correlative of the Government's power to enforce the criminal law.

A
The Fourth Amendment guarantees the right of "the people" to be free from unreasonable searches and seizures and provides that a warrant shall issue only upon presentation of an oath or affirmation demonstrating probable cause and particularly describing the place to be searched and the persons or things to be seized. According to the majority, the term "the people" refers to "a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community." Ante, at 265. The Court admits that "the people" extends beyond the citizenry, but leaves the precise contours of its "sufficient connection" test unclear. At one point the majority hints that aliens are protected by the Fourth Amendment only when they come within the United States and develop "substantial connections" with our country. Ante, at 271. At other junctures, the Court suggests that an alien's presence in the United States must be voluntary 5and that the alien must have "accepted some societal [494 U.S. 259, 283] obligations." 6 Ante, at 273. At yet other points, the majority implies that respondent would be protected by the Fourth Amendment if the place searched were in the United States. 7 Ante, at 266, 274-275. What the majority ignores, however, is the most obvious connection between Verdugo-Urquidez and the United States: he was investigated and is being prosecuted for violations of United States law and may well spend the rest of his life in a United States prison. The "sufficient connection" is supplied not by Verdugo-Urquidez, but by the Government. [494 U.S. 259, 284] Respondent is entitled to the protections of the Fourth Amendment because our Government, by investigating him and attempting to hold him accountable under United States criminal laws, has treated him as a member of our community for purposes of enforcing our laws. He has become, quite literally, one of the governed. Fundamental fairness and the ideals underlying our Bill of Rights compel the conclusion that when we impose "societal obligations," ante, at 273, such as the obligation to comply with our criminal laws, on foreign nationals, we in turn are obliged to respect certain correlative rights, among them the Fourth Amendment. By concluding that respondent is not one of "the people" protected by the Fourth Amendment, the majority disregards basic notions of mutuality. If we expect aliens to obey our laws, aliens should be able to expect that we will obey our Constitution when we investigate, prosecute, and punish them. We have recognized this fundamental principle of mutuality since the time of the Framers. James Madison, universally recognized as the primary architect of the Bill of Rights, emphasized the importance of mutuality when he spoke out against the Alien and Sedition Acts less than a decade after the adoption of the Fourth Amendment: "[I]t does not follow, because aliens are not parties to the Constitution, as citizens are parties to it, that, whilst they actually conform to it, they have no right to its protection. Aliens are not more parties to the laws than they are parties to the Constitution; yet it will not be disputed that, as they owe, on one hand, a temporary obedience, they are entitled, in return, to their protection and advantage." Madison's Report on the Virginia Resolutions (1800), reprinted in 4 Elliot's Debates 556 (2d ed. 1836).

US vs. Verdugo-Urquidez
Mutuality is essential to ensure the fundamental fairness that underlies our Bill of Rights. Foreign nationals investigated and prosecuted for alleged violations of United States criminal laws are just as vulnerable to oppressive Government [494 U.S. 259, 285] behavior as are United States citizens investigated and prosecuted for the same alleged violations. Indeed, in a case such as this where the Government claims the existence of an international criminal conspiracy, citizens and foreign nationals may be codefendants, charged under the same statutes for the same conduct and facing the same penalties if convicted. They may have been investigated by the same agents pursuant to the same enforcement authority. When our Government holds these codefendants to the same standards of conduct, the Fourth Amendment, which protects the citizen from unreasonable searches and seizures, should protect the foreign national as well. Mutuality also serves to inculcate the values of law and order. By respecting the rights of foreign nationals, we encourage other nations to respect the rights of our citizens. Moreover, as our Nation becomes increasingly concerned about the domestic effects of international crime, we cannot forget that the behavior of our law enforcement agents abroad sends a powerful message about the rule of law to individuals everywhere. As Justice Brandeis warned in Olmstead v. United States, 277 U.S. 438(1928): "If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means . . . would bring terrible retribution. Against that pernicious doctrine, this Court should resolutely set its face." Id., at 485 (dissenting opinion). This principle is no different when the United States applies its rules of conduct to foreign nationals. If we seek respect for law and order, we must observe these principles ourselves. Lawlessness breeds lawlessness. Finally, when United States agents conduct unreasonable searches, whether at home or abroad, they disregard our Nation's values. For over 200 years, our country has considered itself the world's foremost protector of liberties. The [494 U.S. 259, 286] privacy and sanctity of the home have been primary tenets of our moral, philosophical, and judicial beliefs. 8 Our national interest is defined by those values and by the need to preserve our own just institutions. We take pride in our commitment to a Government that cannot, on mere whim, break down doors and invade the most personal of places. We exhort other nations to follow our example. How can we explain to others - and to ourselves - that these long cherished ideals are suddenly of no consequence when the door being broken belongs to a foreigner? The majority today brushes aside the principles of mutuality and fundamental fairness that are central to our Nation's constitutional conscience. The Court articulates a "sufficient connection" test but then refuses to discuss the underlying principles upon which any interpretation of that test must rest. I believe that by placing respondent among those governed by federal criminal laws and investigating him for violations of those laws, the Government has made him a part of our community for purposes of the Fourth Amendment.

B
In its effort to establish that respondent does not have sufficient connection to the United States to be considered one of "the people" protected by the Fourth Amendment, the Court relies on the text of the Amendment, historical evidence, and cases refusing to apply certain constitutional provisions outside the United States. None of these, however, justifies the majority's cramped interpretation of the Fourth Amendment's applicability. [494 U.S. 259, 287] The majority looks to various constitutional provisions and suggests that "`the people' seems to have been a term of art." Ante, at 265. But the majority admits that its "textual exegesis is by no means conclusive." Ibid. 9 One Member of the majority even states that he "cannot place any weight on the reference to `the people' in the Fourth Amendment as a source of restricting its protections." Ante, at 276 (KENNEDY, J., concurring). The majority suggests a restrictive interpretation of those with "sufficient connection" to this country to be considered among "the people," but the term "the people" is better understood as a rhetorical counterpoint to "the Government," such that rights that were reserved to "the people" were to

US vs. Verdugo-Urquidez
protect all those subject to "the Government." Cf. New Jersey v. T. L. O., 469 U.S. 325, 335 (1985) ("[T]he Court has long spoken of the Fourth Amendment's strictures as restraints imposed upon `governmental action'"). "The people" are "the governed." In drafting both the Constitution and the Bill of Rights, the Framers strove to create a form of Government decidedly different from their British heritage. Whereas the British Parliament was unconstrained, the Framers intended to create a Government of limited powers. See B. Bailyn, The Ideological Origins of the American Revolution 182 (1967); 1 The Complete AntiFederalist 65 (H. Storing ed. 1981). The colonists considered the British Government dangerously omnipotent. After all, the British declaration of rights in [494 U.S. 259, 288] 1688 had been enacted not by the people, but by Parliament. The Federalist No. 84, p. 439 (M. Beloff ed. 1987). Americans vehemently attacked the notion that rights were matters of "`favor and grace,'" given to the people from the Government. B. Bailyn, supra, at 187 (quoting John Dickinson). Thus, the Framers of the Bill of Rights did not purport to "create" rights. Rather, they designed the Bill of Rights to prohibit our Government from infringing rights and liberties presumed to be pre-existing. See e. g., U.S. Const., Amdt. 9 ("The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people"). The Fourth Amendment, for example, does not create a new right of security against unreasonable searches and seizures. It states that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . ." The focus of the Fourth Amendment is on what the Government can and cannot do, and how it may act, not on against whom these actions may be taken. Bestowing rights and delineating protected groups would have been inconsistent with the Drafters' fundamental conception of a Bill of Rights as a limitation on the Government's conduct with respect to all whom it seeks to govern. It is thus extremely unlikely that the Framers intended the narrow construction of the term "the people" presented today by the majority. The drafting history of the Fourth Amendment also does not support the majority's interpretation of "the people." First, the Drafters chose not to limit the right against unreasonable searches and seizures in more specific ways. They could have limited the right to "citizens," "freemen," "residents," or "the American people." The conventions called to ratify the Constitution in New York and Virginia, for example, each recommended an amendment stating, "That every freeman has a right to be secure from all unreasonable searches and seizures . . . ." W. Cuddihy, Search and Seizure [494 U.S. 259, 289] in Great Britain and the American Colonies, pt. 2, p. 571, n. 129, 574, n. 134 (1974). But the Drafters of the Fourth Amendment rejected this limitation and instead provided broadly for "[t]he right of the people to be secure in their persons, houses, papers, and effects." Second, historical materials contain no evidence that the Drafters intended to limit the availability of the right expressed in the Fourth Amendment. 10 The Amendment was introduced on the floor of Congress, considered by Committee, debated by the House of Representatives and the Senate, and submitted to the 13 States for approval. Throughout that entire process, no speaker or commentator, pro or con, referred to the term "the people" as a limitation. [494 U.S. 259, 290] The Court also relies on a series of cases dealing with the application of criminal procedural protections outside of the United States to conclude that "not every constitutional provision applies to governmental activity even where the United States has sovereign power." Ante, at 268. None of these cases, however, purports to read the phrase "the people" as limiting the protections of the Fourth Amendment to those with "sufficient connection" to the United States, and thus none gives content to the majority's analysis. The cases shed no light on the question whether respondent - a citizen of a nonenemy nation being tried in a United States federal court - is one of "the people" protected by the Fourth Amendment. The majority mischaracterizes Johnson v. Eisentrager, 339 U.S. 763 (1950), as having "rejected the claim that aliens are entitled to Fifth Amendment rights outside the sovereign territory of the United States." Ante, at 269. In Johnson, 21 German nationals were convicted of engaging in continued military activity against the United States after the surrender of Germany and before the surrender of Japan in World War II. The Court held that "the Constitution does not confer a right of personal

US vs. Verdugo-Urquidez
security or an immunity from military trial and punishment upon an alien enemy engaged in the hostile service of a government at war with the United States." 339 U.S., at 785 (emphasis added). As the Court wrote: "It is war that exposes the relative vulnerability of the alien's status. The security and protection enjoyed while the nation of his allegiance remains in amity with the United States are greatly impaired when his nation takes up arms against us. . . . But disabilities this country lays upon the alien who becomes also an enemy are imposed temporarily as an incident of war and not as an incident of alienage." Id., at 771-772. [494 U.S. 259, 291] The Court rejected the German nationals' efforts to obtain writs of habeas corpus not because they were foreign nationals, but because they were enemy soldiers. The Insular Cases, Balzac v. Porto Rico, 258 U.S. 298 (1922), Ocampo v. United States, 234 U.S. 91(1914), Dorr v. United States, 195 U.S. 138 (1904), and Hawaii v. Mankichi, 190 U.S. 197 (1903), are likewise inapposite. The Insular Cases all concerned whether accused persons enjoyed the protections of certain rights in criminal prosecutions brought by territorial authorities in territorial courts. These cases were limited to their facts long ago, see Reid v. Covert, 354 U.S., at 14 (plurality opinion) ("[I]t is our judgment that neither the cases nor their reasoning should be given any further expansion"), and they are of no analytical value when a criminal defendant seeks to invoke the Fourth Amendment in a prosecution by the Federal Government in a federal court. 11

C
The majority's rejection of respondent's claim to Fourth Amendment protection is apparently motivated by its fear that application of the Amendment to law enforcement searches against foreign nationals overseas "could significantly disrupt the ability of the political branches to respond to foreign situations involving our national interest." Ante, at 273-274. The majority's doomsday scenario - that American Armed Forces conducting a mission to protect our national security with no law enforcement objective "would have to articulate specific facts giving them probable cause to undertake a search or seizure," ante, at 274 - is fanciful. Verdugo-Urquidez is protected by the Fourth Amendment [494 U.S. 259, 292] because our Government, by investigating and prosecuting him, has made him one of "the governed." See supra, at 284, 287. Accepting respondent as one of "the governed," however, hardly requires the Court to accept enemy aliens in wartime as among "the governed" entitled to invoke the protection of the Fourth Amendment. See Johnson v. Eisentrager, supra. Moreover, with respect to non-law-enforcement activities not directed against enemy aliens in wartime but nevertheless implicating national security, doctrinal exceptions to the general requirements of a warrant and probable cause likely would be applicable more frequently abroad, thus lessening the purported tension between the Fourth Amendment's strictures and the Executive's foreign affairs power. Many situations involving sensitive operations abroad likely would involve exigent circumstances such that the warrant requirement would be excused. Cf. Warden v. Hayden, 387 U.S. 294, 298 (1967). Therefore, the Government's conduct would be assessed only under the reasonableness standard, the application of which depends on context. See United States v. Montoya de Hernandez, 473 U.S. 531, 537 (1985) ("What is reasonable depends upon all of the circumstances surrounding the search or seizure and the nature of the search or seizure itself"). In addition, where the precise contours of a "reasonable" search and seizure are unclear, the Executive Branch will not be "plunge[d] . . . into a sea of uncertainty," ante, at 274, that will impair materially its ability to conduct foreign affairs. Doctrines such as official immunity have long protected Government agents from any undue chill on the exercise of lawful discretion. See, e. g., Butz v. Economou, 438 U.S. 478 (1978). Similarly, the Court has recognized that there may be certain situations in which the offensive use of constitutional rights should be limited. Cf. Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 396 (1971) (precluding suits for damages for violations of the Fourth Amendment where there are "special factors [494 U.S. 259, 293] counselling hesitation"). In most cases implicating foreign policy concerns in which the reasonableness of an overseas search or seizure is unclear, application of the Fourth Amendment will not interfere with the Executive's traditional prerogative in foreign affairs because a court will have occasion to decide the constitutionality of such a

US vs. Verdugo-Urquidez
search only if the Executive decides to bring a criminal prosecution and introduce evidence seized abroad. When the Executive decides to conduct a search as part of an ongoing criminal investigation, fails to get a warrant, and then seeks to introduce the fruits of that search at trial, however, the courts must enforce the Constitution.

II
Because the Fourth Amendment governs the search of respondent's Mexican residences, the District Court properly suppressed the evidence found in that search because the officers conducting the search did not obtain a warrant. 12 I cannot agree with JUSTICE BLACKMUN and JUSTICE STEVENS that the Warrant Clause has no application to searches [494 U.S. 259, 294] of noncitizens' homes in foreign jurisdictions because American magistrates lack the power to authorize such searches. 13 See post, at 297 (BLACKMUN, J., dissenting); ante at 279 (STEVENS, J., concurring in judgment). The Warrant Clause would serve the same primary functions abroad as it does domestically, and I see no reason to distinguish between foreign and domestic searches. The primary purpose of the warrant requirement is its assurance of neutrality. As Justice Jackson stated for [494 U.S. 259, 295] the Court in Johnson v. United States 333 U.S. 10, 13 -14 (1948) (footnotes omitted): "The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. Any assumption that evidence sufficient to support a magistrate's disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people's homes secure only in the discretion of police officers. . . . When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent." See also Welsh v. Wisconsin, 466 U.S. 740, 748 -749, and n. 10(1984); Coolidge v. New Hampshire,403 U.S. 443,

449 (1971). A warrant also defines the scope of a search and limits the discretion of the inspecting officers. See New York v. Burger, 482 U.S. 691, 703 (1987); Marron v. United States, 275 U.S. 192, 196 (1927). These purposes would be served no
less in the foreign than in the domestic context. The Warrant Clause cannot be ignored simply because Congress has not given any United States magistrate authority to issue search warrants for foreign searches. See Fed. Rule Crim. Proc. 41(a). Congress cannot define the contours of the Constitution. If the Warrant Clause applies, Congress cannot excise the Clause from the Constitution by failing to provide a means for United States agents to obtain a warrant. See Best v. United States, 184 F.2d 131. 138 (CA1 1950) ("Obviously, Congress may not nullify the guarantees of the Fourth Amendment by the simple expedient of [494 U.S. 259, 296] not empowering any judicial officer to act on an application for a warrant"), cert. denied, 340 U.S. 939(1951). Nor is the Warrant Clause inapplicable merely because a warrant from a United States magistrate could not "authorize" a search in a foreign country. Although this may be true as a matter of international law, it is irrelevant to our interpretation of the Fourth Amendment. As a matter of United States constitutional law, a warrant serves the same primary function overseas as it does domestically: it assures that a neutral magistrate has authorized the search and limited its scope. The need to protect those suspected of criminal activity from the unbridled discretion of investigating officers is no less important abroad than at home. 14

III
When our Government conducts a law enforcement search against a foreign national outside of the United States and its territories, it must comply with the Fourth Amendment. Absent exigent circumstances or consent, it must obtain a [494 U.S. 259, 297] search warrant from a United States court. When we tell the world that we expect all people, wherever they may

US vs. Verdugo-Urquidez
be, to abide by our laws, we cannot in the same breath tell the world that our law enforcement officers need not do the same. Because we cannot expect others to respect our laws until we respect our Constitution, I respectfully dissent.

Abelita III vs. Doria

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 170672 August 14, 2009

JUDGE FELIMON ABELITA III, Petitioner, vs. P/SUPT. GERMAN B. DORIA and SPO3 CESAR RAMIREZ, Respondents. DECISION CARPIO, J.: The Case Before the Court is a petition for review1 assailing the 10 July 2004 Decision2 and 18 October 2004 Order3 of the Regional Trial Court of Quezon City, Branch 217 (trial court), in Civil Case No. Q-98-33442 for Damages. The Antecedent Facts Judge Felimon Abelita III (petitioner) filed a complaint for Damages under Articles 32(4) and (9) of the Civil Code against P/Supt. German B. Doria (P/Supt. Doria) and SPO3 Cesar Ramirez (SPO3 Ramirez). Petitioner alleged in his complaint that on 24 March 1996, at around 12 noon, he and his wife were on their way to their house in Bagumbayan, Masbate, Masbate when P/Supt. Doria and SPO3 Ramirez (respondents), accompanied by 10 unidentified police officers, requested them to proceed to the Provincial PNP Headquarters at Camp Boni Serrano, Masbate, Masbate. Petitioner was suspicious of the request and told respondents that he would proceed to the PNP Headquarters after he had brought his wife home. Petitioner alleged that when he parked his car in front of their house, SPO3 Ramirez grabbed him, forcibly took the key to his Totoya Lite Ace van, barged into the vehicle, and conducted a search without a warrant. The search resulted to the seizure of a licensed shotgun. Petitioner presented the shotguns license to respondents. Thereafter, SPO3 Ramirez continued his search and then produced a .45 caliber pistol which he allegedly found inside the vehicle. Respondents arrested petitioner and detained him, without any appropriate charge, at the PNP special detention cell. P/Supt. Doria alleged that his office received a telephone call from a relative of Rosa Sia about a shooting incident in Barangay Nursery. He dispatched a team headed by SPO3 Ramirez to investigate the incident. SPO3 Ramirez later reported that a certain William Sia was wounded while petitioner, who was implicated in the incident, and his wife just left the place of the incident. P/Supt. Doria looked for petitioner and when he found him, he informed him of the incident report. P/Supt. Doria requested petitioner to go with him to the police headquarters as he was reported to be involved in the incident. Petitioner agreed but suddenly sped up his vehicle and proceeded to his residence. P/Supt. Doria and his companions chased petitioner. Upon reaching petitioners residence, they caught up with petitioner as he was about to run towards his house. The police officers saw a gun in the front seat of the vehicle beside the drivers seat as petitioner opened the door. They also saw a shotgun at the back of the drivers seat. The police officers confiscated the firearms and arrested petitioner. P/Supt. Doria alleged that his men also arrested other persons who were identified to be with petitioner during the shooting incident. Petitioner was charged with illegal possession of firearms and frustrated murder. An administrative case was also filed against petitioner before this Court.4 The Decision of the Trial Court In its 10 July 2004 Decision, the trial court dismissed petitioners complaint. The trial court found that petitioner was at the scene of the shooting incident in Barangay Nursery. The trial court ruled that the police officers who conducted the search were of the belief, based on reasonable grounds, that petitioner was

Abelita III vs. Doria involved in the incident and that the firearm used in the commission of the offense was in his possession. The trial court ruled that petitioners warrantless arrest and the warrantless seizure of the firearms were valid and legal. The trial court gave more credence to the testimonies of respondents who were presumed to have performed their duties in accordance with law. The trial court rejected petitioners claim of frame-up as weak and insufficient to overthrow the positive testimonies of the police officers who conducted the arrest and the incidental search. The trial court
concluded that petitioners claim for damages under Article 32 of the Civil Code is not warranted under the circumstances. Petitioner filed a motion for reconsideration. In its 18 October 2004 Order, the trial court denied the motion. Hence, the petition before this Court. The Issues The issues in this case are the following: 1. Whether the warrantless arrest and warrantless search and seizure were illegal under Section 5, Rule 113 of the 1985 Rules on Criminal Procedure; 2. Whether respondents are civilly liable for damages under Articles 32(4) and (9) of the Civil Code; and 3. Whether the findings in the administrative case against petitioner are conclusive in this case. The Ruling of this Court The petition has no merit. Application of Section 5, Rule 113 of the 1985 Rules on Criminal Procedure Petitioner alleges that his arrest and the search were unlawful under Section 5, Rule 113 of the 1985 Rules on Criminal Procedure. Petitioner alleges that for the warrantless arrest to be lawful, the arresting officer must have personal knowledge of facts that the person to be arrested has committed, is actually committing, or is attempting to commit an offense. Petitioner alleges that the alleged shooting incident was just relayed to the arresting officers, and thus they have no personal knowledge of facts as required by the Rules. We do not agree. Section 5, Rule 113 of the 1985 Rules on Criminal Procedure states: Sec. 5. Arrest without warrant; when lawful. A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has in fact just been committed and he has personal knowledge of facts indicating that the person to be arrested has committed it; and

Abelita III vs. Doria (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.
For the warrantless arrest under this Rule to be valid, two requisites must concur: (1) the offender has just committed an offense; and (2) the arresting peace officer or private person has personal knowledge of facts indicating that the person to be arrested has committed it.5 Personal knowledge of facts must be based on probable cause, which means an actual belief or reasonable grounds of suspicion.6 The grounds of suspicion are reasonable when, in the absence of actual belief of the arresting officers, the suspicion that the person to be arrested is probably guilty of committing the offense is based on actual facts, i.e., supported by circumstances sufficiently strong in themselves to create the probable cause of guilt of the person to be arrested.7 A reasonable suspicion, therefore, must be founded on probable cause, coupled with good faith on the part of the peace officers making the arrest.8 Section 5, Rule 113 of the 1985 Rules on Criminal Procedure does not require the arresting officers to personally witness the commission of the offense with their own eyes. In this case, P/Supt. Doria received a report about the alleged shooting incident. SPO3 Ramirez investigated the report and learned from witnesses that petitioner was involved in the incident. They were able to track down petitioner, but when invited to the police headquarters to shed light on the incident, petitioner initially agreed then sped up his vehicle, prompting the police authorities to give chase. Petitioners act of trying to get away, coupled with the incident report which they investigated, is enough to raise a reasonable suspicion on the part of the police authorities as to the existence of probable cause. Plain View Doctrine The seizure of the firearms was justified under the plain view doctrine. Under the plain view doctrine, objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be presented as evidence.9 The plain view doctrine applies when the following requisites concur: (1) the law enforcement officer in search of the evidence has a prior justification for an intrusion or is in a position from which he can view a particular area; (2) the discovery of the evidence in plain view is inadvertent; and (3) it is immediately apparent to the officer that the item he observes may be evidence of a crime, contraband or otherwise subject to seizure.10 In this case, the police authorities were in the area because that was where they caught up with petitioner after the chase. They saw the firearms inside the vehicle when petitioner opened the door. Since a shooting incident just took place and it was reported that petitioner was involved in the incident, it was apparent to the police officers that the firearms may be evidence of a crime. Hence, they were justified in seizing the firearms. Civil Liability Under Article 32 of the Civil Code Petitioner alleges that respondents are civilly liable under paragraphs (4) and (9) of Article 32 of the Civil Code. Paragraphs (4) and (9) of Article 32 of the Civil Code respectively state: Art. 32. Any public officer or employee, or any private individual, who directly or indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages: xxxx (4) Freedom from arbitrary or illegal detention; xxxx

Abelita III vs. Doria (9) The right to be secure in ones person, house, papers, and effects against unreasonable searches and seizures;
xxxx In this case, it was established that petitioner was lawfully arrested without a warrant and that firearms were validly seized from his possession. The trial court found that petitioner was charged with illegal possession of firearms and frustrated murder. We agree with the trial court in rejecting petitioners allegation that he was merely framed-up. We also agree with the trial court that respondents were presumed to be performing their duties in accordance with law. Hence, respondents should not be held civilly liable for their actions. Res Judicata Does Not Apply Respondents raise the defense of res judicata against petitioners claim for damages. Res judicata has two aspects: bar by prior judgment and conclusiveness of judgment provided under Section 47(b) and (c), Rule 39, respectively, of the 1997 Rules of Civil Procedure11 which provide: Sec. 47. Effect of judgments or final orders. The effect of a judgment or final order rendered by a court of the Philippines, having jurisdiction to pronounce the judgment or final order, may be as follows: xxx (b) In other cases, the judgment or final order is, with respect to the matter directly adjudged or as to any other matter that could have been raised in relation thereto, conclusive between the parties and their successors in interest by title subsequent to the commencement of the action or special proceeding, litigating for the same thing and under the same title and in the same capacity; and (c) In any other litigation between the same parties or their successors in interest, that only is deemed to have been adjudged in a former judgment or final order which appears upon its face to have been so adjudged, or which was actually and necessarily included therein or necessary thereto. Bar by prior judgment and conclusiveness of judgment differ as follows: There is "bar by prior judgment" when, as between the first case where the judgment was rendered and the second case that is sought to be barred, there is identity of parties, subject matter, and causes of action. In this instance, the judgment in the first case constitutes an absolute bar to the second action. Otherwise put, the judgment or decree of the court of competent jurisdiction on the merits concludes the litigation between the parties, as well as their privies, and constitutes a bar to a new action or suit involving the same cause of action before the same or other tribunal.
1avv phi1

But where there is identity of parties in the first and second cases, but no identity of causes of action, the first judgment is conclusive only as to those matters actually and directly controverted and determined and not as to matters merely involved therein. This is the concept of res judicata known as "conclusiveness of judgment." Stated differently, any right, fact or matter in issue directly adjudicated or necessarily involved in the determination of an action before a competent court in which judgment is rendered on the merits is conclusively settled by the judgment therein and cannot again be litigated between the parties and their privies whether or not the claim, demand, purpose, or subject matter of the two actions is the same.12 For res judicata to apply, the following requisites must be present: (a) the former judgment or order must be final; (b) it must be a judgment or order on the merits, that is, it was rendered after a consideration of the evidence or stipulations submitted by the parties at the trial of the case; (c) it must have been rendered by a court having jurisdiction over the subject matter and the parties; and

Abelita III vs. Doria (d) there must be, between the first and second actions, identity of parties, of subject matter, and of cause of action; this requisite is satisfied if the two actions are substantially between the same parties.13
While the present case and the administrative case are based on the same essential facts and circumstances, the doctrine of res judicata will not apply. An administrative case deals with the administrative liability which may be incurred by the respondent for the commission of the acts complained of.14 The case before us deals with the civil liability for damages of the police authorities. There is no identity of causes of action in the cases. While identity of causes of action is not required in the application of res judicata in the concept of conclusiveness of judgment,15 it is required that there must always be identity of parties in the first and second cases. There is no identity of parties between the present case and the administrative case. The administrative case was filed by Benjamin Sia Lao (Sia Lao) against petitioner. Sia Lao is not a party to this case. Respondents in the present case were not parties to the administrative case between Sia Lao and petitioner. In the present case, petitioner is the complainant against respondents. Hence, while res judicata is not a defense to petitioners complaint for damages, respondents nevertheless cannot be held liable for damages as discussed above. WHEREFORE, we DENY the petition. We AFFIRM the 10 July 2004 Decision and 18 October 2004 Order of the Regional Trial Court of Quezon City, Branch 217, in Civil Case No. Q-98-33442. SO ORDERED.

Lucas vs. Lucas

SECOND DIVISION

JESSE U. LUCAS, Petitioner,

G.R. No. 190710

Present:

CARPIO, J., Chairperson, NACHURA, - versus PERALTA, ABAD, and MENDOZA, JJ.

Promulgated: JESUS S. LUCAS, June 6, 2011 Respondent.

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

DECISION

Lucas vs. Lucas

NACHURA, J.:

Is a prima facie showing necessary before a court can issue a DNA testing order? In this petition for review on certiorari, we address this question to guide the Bench and the Bar in dealing with a relatively new evidentiary tool. Assailed in this petition are the Court of Appeals (CA) Decision[1] dated September 25, 2009 and Resolution dated December 17, 2009.

Lucas vs. Lucas

The antecedents of the case are, as follows:

On July 26, 2007, petitioner, Jesse U. Lucas, filed a Petition to Establish Illegitimate Filiation (with Motion for the Submission of Parties to DNA Testing)[2] before the Regional Trial Court (RTC), Branch 72, Valenzuela City. Petitioner narrated that, sometime in 1967, his mother, Elsie Uy (Elsie), migrated to Manila from Davao and stayed with a certain Ate Belen (Belen) who worked in a prominent nightspot in Manila. Elsie would oftentimes accompany Belen to work. On one occasion, Elsie got acquainted with respondent, Jesus S. Lucas, at Belens workplace, and an intimate relationship developed between the two. Elsie eventually got pregnant and, on March 11, 1969, she gave birth to petitioner, Jesse U. Lucas. The name of petitioners father was not stated in petitioners certificate of live birth. However, Elsie later on told petitioner that his father is respondent. On August 1, 1969, petitioner was baptized at San Isidro Parish, Taft Avenue, Pasay City. Respondent allegedly extended financial support to Elsie and petitioner for a period of about two years. When the relationship of Elsie and respondent ended, Elsie refused to accept respondents offer of support and decided to raise petitioner on her own. While petitioner was growing up, Elsie made several attempts to introduce petitioner to respondent, but all attempts were in vain.

Attached to the petition were the following: (a) petitioners certificate of live birth; (b) petitioners baptismal certificate; (c) petitioners college diploma, showing that he graduated from Saint Louis University in Baguio City with a degree in Psychology; (d) his Certificate of Graduation from the same school; (e) Certificate of Recognition from the University of the Philippines, College of Music; and (f) clippings of several articles from different newspapers about petitioner, as a musical prodigy. Respondent was not served with a copy of the petition. Nonetheless, respondent learned of the petition to establish filiation. His counsel therefore went to the trial court on August 29, 2007 and obtained a copy of the petition.

Petitioner filed with the RTC a Very Urgent Motion to Try and Hear the Case. Hence, on September 3, 2007, the RTC, finding the petition to be sufficient in form and substance, issued the Order[3] setting the case for hearing and urging anyone who has any objection to the petition to file his opposition. The court also directed that the Order be published once a week for three consecutive weeks in any newspaper of general circulation in the Philippines, and that the Solicitor General be furnished with copies of the Order and the petition in order that he may appear and represent the State in the case.

Lucas vs. Lucas

On September 4, 2007, unaware of the issuance of the September 3, 2007 Order, respondent filed a Special Appearance and Comment. He manifestedinter alia that: (1) he did not receive the summons and a copy of the petition; (2) the petition was adversarial in nature and therefore summons should be served on him as respondent; (3) should the court agree that summons was required, he was waiving service of summons and making a voluntary appearance; and (4) notice by publication of the petition and the hearing was improper because of the confidentiality of the subject matter.[4]

On September 14, 2007, respondent also filed a Manifestation and Comment on Petitioners Very Urgent Motion to Try and Hear the Case. Respondent reiterated that the petition for recognition is adversarial in nature; hence, he should be served with summons. After learning of the September 3, 2007 Order, respondent filed a motion for reconsideration.[5] Respondent averred that the petition was not in due form and substance because petitioner could not have personally known the matters that were alleged therein. He argued that DNA testing cannot be had on the basis of a mere allegation pointing to respondent as petitioners father. Moreover, jurisprudence is still unsettled on the acceptability of DNA evidence.

On July 30, 2008, the RTC, acting on respondents motion for reconsideration, issued an Order[6] dismissing the case. The court remarked that, based on the case of Herrera v. Alba,[7] there are four significant procedural aspects of a traditional paternity action which the parties have to face: a prima faciecase, affirmative defenses, presumption of legitimacy, and physical resemblance between the putative father and the child. The court opined that petitioner must first establish these four procedural aspects before he can present evidence of paternity and filiation, which may include incriminating acts or scientific evidence like blood group test and DNA test results. The court observed that the petition did not show that these procedural aspects were present. Petitioner failed to establish a prima facie case considering that (a) his mother did not personally declare that she had sexual relations with respondent, and petitioners statement as to what his mother told him about his father was clearly hearsay; (b) the certificate of live birth was not signed by respondent; and (c) although petitioner used the surname of respondent, there was no allegation that he was treated as the child of respondent by the latter or his family.

Lucas vs. Lucas

The court opined that, having failed to establish a prima facie case, respondent had no obligation to present any affirmative defenses. The dispositive portion of the said Order therefore reads:
WHEREFORE, for failure of the petitioner to establish compliance with the four procedural aspects of a traditional paternity action in his petition, his motion for the submission of parties to DNA testing to establish paternity and filiation is hereby DENIED. This case is DISMISSED without prejudice.

SO ORDERED.[8]

Petitioner seasonably filed a motion for reconsideration to the Order dated July 30, 2008, which the RTC resolved in his favor. Thus, on October 20, 2008, it issued the Order[9] setting aside the courts previous order, thus:

WHEREFORE, in view of the foregoing, the Order dated July 30, 2008 is hereby reconsidered and set aside.

Let the Petition (with Motion for the Submission of Parties to DNA Testing) be set for hearing on January 22, 2009 at 8:30 in the morning.

xxxx

SO ORDERED.[10]

This time, the RTC held that the ruling on the grounds relied upon by petitioner for filing the petition is premature considering that a full-blown trial has not yet taken place. The court stressed that the petition was sufficient in form and substance. It was verified, it included a certification against forum shopping, and it contained a plain, concise, and direct statement of the ultimate facts on which petitioner relies on for his claim, in accordance with Section 1, Rule 8 of the Rules of Court. The court remarked that the allegation that the statements in the petition were not of petitioners personal knowledge is a matter of evidence. The court also dismissed respondents arguments that there is no basis for the taking of DNA test, and that jurisprudence

Lucas vs. Lucas

is still unsettled on the acceptability of DNA evidence. It noted that the new Rule on DNA Evidence[11] allows the conduct of DNA testing, whether at the courts instance or upon application of any person who has legal interest in the matter in litigation.

Respondent filed a Motion for Reconsideration of Order dated October 20, 2008 and for Dismissal of Petition,[12] reiterating that (a) the petition was not in due form and substance as no defendant was named in the title, and all the basic allegations were hearsay; and (b) there was no prima facie case, which made the petition susceptible to dismissal.

The RTC denied the motion in the Order dated January 19, 2009, and rescheduled the hearing.[13]

Aggrieved, respondent filed a petition for certiorari with the CA, questioning the Orders dated October 20, 2008 and January 19, 2009.

On September 25, 2009, the CA decided the petition for certiorari in favor of respondent, thus:

WHEREFORE, the instant petition for certiorari is hereby GRANTED for being meritorious. The assailed Orders dated October 20, 2008 and January 19, 2009 both issued by the Regional Trial Court, Branch 172 of Valenzuela City in SP. Proceeding Case No. 30-V-07 are REVERSED and SET ASIDE. Accordingly, the case docketed as SP. Proceeding Case No. 30-V-07 is DISMISSED.[14]

The CA held that the RTC did not acquire jurisdiction over the person of respondent, as no summons had been served on him. Respondents special appearance could not be considered as voluntary appearance because it was filed only for the purpose of questioning the jurisdiction of the court over respondent. Although respondent likewise questioned the courts jurisdiction over the subject matter of the petition, the same is not equivalent to a waiver of his right to object to the jurisdiction of the court over his person.

Lucas vs. Lucas

The CA remarked that petitioner filed the petition to establish illegitimate filiation, specifically seeking a DNA testing order to abbreviate the proceedings. It noted that petitioner failed to show that the four significant procedural aspects of a traditional paternity action had been met. The CA further held that a DNA testing should not be allowed when the petitioner has failed to establish a prima facie case, thus:

While the tenor [of Section 4, Rule on DNA Evidence] appears to be absolute, the rule could not really have been intended to trample on the substantive rights of the parties. It could have not meant to be an instrument to promote disorder, harassment, or extortion. It could have not been intended to legalize unwarranted expedition to fish for evidence. Such will be the situation in this particular case if a court may at any time order the taking of a DNA test. If the DNA test in compulsory recognition cases is immediately available to the petitioner/complainant without requiring first the presentation of corroborative proof, then a dire and absurd rule would result. Such will encourage and promote harassment and extortion.

xxxx

At the risk of being repetitious, the Court would like to stress that it sees the danger of allowing an absolute DNA testing to a compulsory recognition test even if the plaintiff/petitioner failed to establish prima facie proof. x x x If at anytime, motu proprio and without pre-conditions, the court can indeed order the taking of DNA test in compulsory recognition cases, then the prominent and well-to-do members of our society will be easy prey for opportunists and extortionists. For no cause at all, or even for [sic] casual sexual indiscretions in their younger years could be used as a means to harass them. Unscrupulous women, unsure of the paternity of their children may just be taking the chances-just in case-by pointing to a sexual partner in a long past one-time encounter. Indeed an absolute and unconditional taking of DNA test for compulsory recognition case opens wide the opportunities for extortionist to prey on victims who have no stomach for scandal.[15]

Petitioner moved for reconsideration. On December 17, 2009, the CA denied the motion for lack of merit.[16] In this petition for review on certiorari, petitioner raises the following issues:
I. WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT RESOLVED THE ISSUE OF LACK OF JURISDICTION OVER THE PERSON OF HEREIN RESPONDENT ALBEIT THE SAME WAS NEVER RAISED IN THE PETITION FOR CERTIORARI.

I.A

Lucas vs. Lucas WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT RULED THAT JURISDICTION WAS NOT ACQUIRED OVER THE PERSON OF THE RESPONDENT.

I.B WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT FAILED TO REALIZE THAT THE RESPONDENT HAD ALREADY SUBMITTED VOLUNTARILY TO THE JURISDICTION OF THE COURT A QUO.

I.C WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT ESSENTIALLY RULED THAT THE TITLE OF A PLEADING, RATHER THAN ITS BODY, IS CONTROLLING.

II. WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT ORDERED THE DISMISSAL OF THE PETITION BY REASON OF THE MOTION (FILED BY THE PETITIONER BEFORE THE COURT A QUO) FOR THE CONDUCT OF DNA TESTING.

II.A WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT ESSENTIALLY RULED THAT DNA TESTING CAN ONLY BE ORDERED AFTER THE PETITIONER ESTABLISHES PRIMA FACIE PROOF OF FILIATION.

III. WHETHER OR NOT THE COURT OF APPEALS ERRED WITH ITS MISPLACED RELIANCE ON THE CASE OF HERRERA VS. ALBA,

ESPECIALLY AS REGARDS THE FOUR SIGNIFICANT PROCEDURAL ASPECTS OF A TRADITIONAL PATERNITY ACTION.[17]

Petitioner contends that respondent never raised as issue in his petition for certiorari the courts lack of jurisdiction over his person. Hence, the CA had no legal basis to discuss the same, because issues not raised are deemed waived or abandoned. At any rate, respondent had already

Lucas vs. Lucas

voluntarily submitted to the jurisdiction of the trial court by his filing of several motions asking for affirmative relief, such as the (a) Motion for Reconsideration of the Order dated September 3, 2007; (b) Ex Parte Motion to Resolve Motion for Reconsideration of the Order dated November 6, 2007; and (c) Motion for Reconsideration of the Order dated October 20, 2008 and for Dismissal of Petition. Petitioner points out that respondent even expressly admitted that he has waived his right to summons in his Manifestation and Comment on Petitioners Very Urgent Motion to Try and Hear the Case. Hence, the issue is already moot and academic.

Petitioner argues that the case was adversarial in nature. Although the caption of the petition does not state respondents name, the body of the petition clearly indicates his name and his known address. He maintains that the body of the petition is controlling and not the caption.

Finally, petitioner asserts that the motion for DNA testing should not be a reason for the dismissal of the petition since it is not a legal ground for the dismissal of cases. If the CA entertained any doubt as to the propriety of DNA testing, it should have simply denied the motion.[18] Petitioner points out that Section 4 of the Rule on DNA Evidence does not require that there must be a prior proof of filiation before DNA testing can be ordered. He adds that the CA erroneously relied on the four significant procedural aspects of a paternity case, as enunciated in Herrera v. Alba.[19] Petitioner avers that these procedural aspects are not applicable at this point of the proceedings because they are matters of evidence that should be taken up during the trial.[20]

In his Comment, respondent supports the CAs ruling on most issues raised in the petition for certiorari and merely reiterates his previous arguments. However, on the issue of lack of jurisdiction, respondent counters that, contrary to petitioners assertion, he raised the issue before the CA in relation to his claim that the petition was not in due form and substance. Respondent denies that he waived his right to the service of summons. He insists that the alleged waiver and voluntary appearance was conditional upon a finding by the court that summons is indeed required. He avers that the assertion of affirmative defenses, aside from lack of jurisdiction over the person of the defendant, cannot be considered as waiver of the defense of lack of jurisdiction over such person.

The petition is meritorious.

Lucas vs. Lucas

Primarily, we emphasize that the assailed Orders of the trial court were orders denying respondents motion to dismiss the petition for illegitimate filiation. An order denying a motion to dismiss is an interlocutory order which neither terminates nor finally disposes of a case, as it leaves something to be done by the court before the case is finally decided on the merits. As such, the general rule is that the denial of a motion to dismiss cannot be questioned in a special civil action for certiorari, which is a remedy designed to correct errors of jurisdiction and not errors of judgment. Neither can a denial of a motion to dismiss be the subject of an appeal unless and until a final judgment or order is rendered. In a number of cases, the court has granted the extraordinary remedy of certiorari on the denial of the motion to dismiss but only when it has been tainted with grave abuse of discretion amounting to lack or excess of jurisdiction.
[21]

In the present case, we

discern no grave abuse of discretion on the part of the trial court in denying the motion to dismiss.

The grounds for dismissal relied upon by respondent were (a) the courts lack of jurisdiction over his person due to the absence of summons, and (b) defect in the form and substance of the petition to establish illegitimate filiation, which is equivalent to failure to state a cause of action.

We need not belabor the issues on whether lack of jurisdiction was raised before the CA, whether the court acquired jurisdiction over the person of respondent, or whether respondent waived his right to the service of summons. We find that the primordial issue here is actually whether it was necessary, in the first place, to serve summons on respondent for the court to acquire jurisdiction over the case. In other words, was the service of summons jurisdictional? The answer to this question depends on the nature of petitioners action, that is, whether it is an action in personam, in rem, or quasi in rem.

An action in personam is lodged against a person based on personal liability; an action in rem is directed against the thing itself instead of the person; while an action quasi in rem names a person as defendant, but its object is to subject that person's interest in a property to a corresponding lien or obligation. A petition directed against the "thing" itself or the res, which concerns the status of a person, like a petition for adoption, annulment of marriage, or correction of entries in the birth certificate, is an action in rem.
[22]

Lucas vs. Lucas In an action in personam, jurisdiction over the person of the defendant is necessary for the court to validly try and decide the case. In a proceeding in rem or quasi in rem, jurisdiction over the person of the defendant is not a prerequisite to confer jurisdiction on the court, provided that the latter has jurisdiction over the res. Jurisdiction over the res is acquired either (a) by the seizure of the property under legal process, whereby it is brought into actual custody of the law, or (b) as a result of the institution of legal proceedings, in which the power of the court is recognized and made effective.
[23]

The herein petition to establish illegitimate filiation is an action in rem. By the simple filing of the petition to establish illegitimate filiation before the RTC, which undoubtedly had jurisdiction over the subject matter of the petition, the latter thereby acquired jurisdiction over the case. An in rem proceeding is validated essentially through publication. Publication is notice to the whole world that the proceeding has for its object to bar indefinitely all who might be minded to make an objection of any sort to the right sought to be established. parties are deemed notified of the petition.
[24]

Through publication, all interested

If at all, service of summons or notice is made to the defendant, it is not for the purpose of vesting the court with jurisdiction, but merely for satisfying the due process requirements. concerned the opportunity to protect his interest if he so chooses.
[25]

This is but proper in order to afford the person

[26]

Hence, failure to serve summons will not deprive the

court of its jurisdiction to try and decide the case. In such a case, the lack of summons may be excused where it is determined that the adverse party had, in fact, the opportunity to file his opposition, as in this case. We find that the due process requirement with respect to respondent has been satisfied, considering that he has participated in the proceedings in this case and he has the opportunity to file his opposition to the petition to establish filiation.

To address respondents contention that the petition should have been adversarial in form, we further hold that the herein petition to establish filiation was sufficient in form. It was indeed adversarial in nature despite its caption which lacked the name of a defendant, the failure to implead respondent as defendant, and the non-service of summons upon respondent. A proceeding is adversarial where the party seeking relief has given legal warning to the other party and afforded the latter an opportunity to contest it. General, as directed by the trial court.
[27]

In this petitionclassified as an action in remthe notice requirement

for an adversarial proceeding was likewise satisfied by the publication of the petition and the giving of notice to the Solicitor

The petition to establish filiation is sufficient in substance. It satisfies Section 1, Rule 8 of the Rules of Court, which requires the complaint to contain a plain, concise, and direct statement of the ultimate facts upon which the plaintiff bases his claim. A fact is essential if it cannot be stricken out without leaving the statement of the cause of action inadequate.
[28]

A complaint states a cause of action when it contains the following elements: (1) the legal right of plaintiff,

Lucas vs. Lucas (2) the correlative obligation of the defendant, and (3) the act or omission of the defendant in violation of said legal right.
[29]

Lucas vs. Lucas

The petition sufficiently states the ultimate facts relied upon by petitioner to establish his filiation to respondent. Respondent, however, contends that the allegations in the petition were hearsay as they were not of petitioners personal knowledge. Such matter is clearly a matter of evidence that cannot be determined at this point but only during the trial when petitioner presents his evidence.

In a motion to dismiss a complaint based on lack of cause of action, the question submitted to the court for determination is the sufficiency of the allegations made in the complaint to constitute a cause of action and not whether those allegations of fact are true, for said motion must hypothetically admit the truth of the facts alleged in the complaint.[30] [31] The inquiry is confined to the four corners of the complaint, and no other. The test of the sufficiency of the facts alleged in the complaint is whether or not, admitting the facts alleged, the court could render a valid judgment upon the same in accordance with the prayer of the complaint.[32]

If the allegations of the complaint are sufficient in form and substance but their veracity and correctness are assailed, it is incumbent upon the court to deny the motion to dismiss and require the defendant to answer and go to trial to prove his defense. The veracity of the assertions of the parties can be ascertained at the trial of the case on the merits.[33]

The statement in Herrera v. Alba[34] that there are four significant procedural aspects in a traditional paternity case which parties have to face has been widely misunderstood and misapplied in this case. A party is confronted by these so-called procedural aspects during trial, when the parties have presented their respective evidence. They are matters of evidence that cannot be determined at this initial stage of the proceedings, when only the petition to establish filiation has been filed. The CAs observation that petitioner failed to establish a prima facie casethe first procedural aspect in a paternity caseis therefore misplaced. A prima facie case is built by a partys evidence and not by mere allegations in the initiatory pleading.

Clearly then, it was also not the opportune time to discuss the lack of a prima facie case vis--vis the motion for DNA testing since no evidence has, as yet, been presented by petitioner. More essentially, it is premature to discuss whether, under the circumstances, a DNA testing order is warranted considering that no such order has yet been issued by the trial court. In fact, the latter has just set the said case for hearing.

Lucas vs. Lucas

At any rate, the CAs view that it would be dangerous to allow a DNA testing without corroborative proof is well taken and deserves the Courts attention. In light of this observation, we find that there is a need to supplement the Rule on DNA Evidence to aid the courts in resolving motions for DNA testing order, particularly in paternity and other filiation cases. We, thus, address the question of whether a prima facie showing is necessary before a court can issue a DNA testing order.

The Rule on DNA Evidence was enacted to guide the Bench and the Bar for the introduction and use of DNA evidence in the judicial system. It provides the prescribed parameters on the requisite elements for reliability and validity (i.e., the proper procedures, protocols, necessary laboratory reports, etc.), the possible sources of error, the available objections to the admission of DNA test results as evidence as well as the probative value of DNA evidence. It seeks to ensure that the evidence gathered, using various methods of DNA analysis, is utilized effectively and properly, [and] shall not be misused and/or abused and, more importantly, shall continue to ensure that DNA analysis serves justice and protects, rather than prejudice the public.[35]

Not surprisingly, Section 4 of the Rule on DNA Evidence merely provides for conditions that are aimed to safeguard the accuracy and integrity of the DNA testing. Section 4 states:

SEC. 4. Application for DNA Testing Order. The appropriate court may, at any time, either motu proprio or on application of any person who has a legal interest in the matter in litigation, order a DNA testing. Such order shall issue after due hearing and notice to the parties upon a showing of the following: (a) A biological sample exists that is relevant to the case; (b) The biological sample: (i) was not previously subjected to the type of DNA testing now requested; or (ii) was previously subjected to DNA testing, but the results may require confirmation for good reasons; (c) The DNA testing uses a scientifically valid technique; (d) The DNA testing has the scientific potential to produce new information that is relevant to the proper resolution of the case; and (e) The existence of other factors, if any, which the court may consider as potentially affecting the accuracy or integrity of the DNA testing.

Lucas vs. Lucas This Rule shall not preclude a DNA testing, without need of a prior court order, at the behest of any party, including law enforcement agencies, before a suit or proceeding is commenced.

This does not mean, however, that a DNA testing order will be issued as a matter of right if, during the hearing, the said conditions are established.

In some states, to warrant the issuance of the DNA testing order, there must be a show cause hearing wherein the applicant must first present sufficient evidence to establish a prima facie case or a reasonable possibility of paternity or good cause for the holding of the test. [36] In these states, a court order for blood testing is considered a search, which, under their Constitutions (as in ours), must be preceded by a finding of probable cause in order to be valid. Hence, the requirement of a prima facie case, or reasonable possibility, was imposed in civil actions as a counterpart of a finding of probable cause. The Supreme Court of Louisiana eloquently explained

Although a paternity action is civil, not criminal, the constitutional prohibition against unreasonable searches and seizures is still applicable, and a proper showing of sufficient justification under the particular factual circumstances of the case must be made before a court may order a compulsory blood test. Courts in various jurisdictions have differed regarding the kind of procedures which are required, but those jurisdictions have almost universally found that a preliminary showing must be made before a court can constitutionally order compulsory blood testing in paternity cases. We agree, and find that, as a preliminary matter, before the court may issue an order for compulsory blood testing, the moving party must show that there is a reasonable possibility of paternity. As explained hereafter, in cases in which paternity is contested and a party to the action refuses to voluntarily undergo a blood test, a show cause hearing must be held in which the court can determine whether there is sufficient evidence to establish a prima facie case which warrants issuance of a court order for blood testing.[37]

The same condition precedent should be applied in our jurisdiction to protect the putative father from mere harassment suits. Thus, during the hearing on the motion for DNA testing, the petitioner must present prima facie evidence or establish a reasonable possibility of paternity.

Lucas vs. Lucas

Notwithstanding these, it should be stressed that the issuance of a DNA testing order remains discretionary upon the court. The court may, for example, consider whether there is absolute necessity for the DNA testing. If there is already preponderance of evidence to establish paternity and the DNA test result would only be corroborative, the court may, in its discretion, disallow a DNA testing.

WHEREFORE, premises considered, the petition is GRANTED. The Court of Appeals Decision dated September 25, 2009 and Resolution dated December 17, 2009 are REVERSED and SET ASIDE. The Orders dated October 20, 2008 and January 19, 2009 of the Regional Trial Court of ValenzuelaCity are AFFIRMED.

SO

ORDERED.

Katz vs. US

U.S. Supreme Court

KATZ v. UNITED STATES, 389 U.S. 347 (1967)
389 U.S. 347 KATZ v. UNITED STATES. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT. No. 35. Argued October 17, 1967. Decided December 18, 1967. Petitioner was convicted under an indictment charging him with transmitting wagering information by telephone across state lines in violation of 18 U.S.C. 1084. Evidence of petitioner's end of the conversations, overheard by FBI agents who had attached an electronic listening and recording device to the outside of the telephone booth from which the calls were made, was introduced at the trial. The Court of Appeals affirmed the conviction, finding that there was no Fourth Amendment violation since there was "no physical entrance into the area occupied by" petitioner. Held: 1. The Government's eavesdropping activities violated the privacy upon which petitioner justifiably relied while using the telephone booth and thus constituted a "search and seizure" within the meaning of the Fourth Amendment. Pp. 350-353. (a) The Fourth Amendment governs not only the seizure of tangible items but extends as well to the recording of oral statements. Silverman v. United States, 365 U.S. 505, 511 . P. 353. (b) Because the Fourth Amendment protects people rather than places, its reach cannot turn on the presence or absence of a physical intrusion into any given enclosure. The "trespass" doctrine of Olmstead v. United States, 277 U.S. 438 , and Goldman v. United States, 316 U.S. 129 , is no longer controlling. Pp. 351, 353. 2. Although the surveillance in this case may have been so narrowly circumscribed that it could constitutionally have been authorized in advance, it was not in fact conducted pursuant to the warrant procedure which is a constitutional precondition of such electronic surveillance. Pp. 354-359. 369 F.2d 130, reversed. Burton Marks and Harvey A. Schneider argued the cause and filed briefs for petitioner. [389 U.S. 347, 348] John S. Martin, Jr., argued the cause for the United States. With him on the brief were Acting Solicitor General Spritzer, Assistant Attorney General Vinson and Beatrice Rosenberg. MR. JUSTICE STEWART delivered the opinion of the Court. The petitioner was convicted in the District Court for the Southern District of California under an eight-count indictment charging him with transmitting wagering information by telephone from Los Angeles to Miami and Boston, in violation of a federal statute. 1 At trial the Government was permitted, over the petitioner's objection, to introduce evidence of the petitioner's end of telephone conversations, overheard by FBI agents who had attached an electronic listening and recording device to the outside of the public telephone booth from which he had placed his calls. In affirming his conviction, the Court of Appeals rejected the contention that the recordings had been obtained in violation of the Fourth Amendment, [389 U.S. 347, 349] because "[t]here was no physical entrance into the area occupied by [the petitioner]." 2 We granted certiorari in order to consider the constitutional questions thus presented. 3

Katz vs. US
The petitioner has phrased those questions as follows: "A. Whether a public telephone booth is a constitutionally protected area so that evidence obtained by attaching an electronic listening recording device to the top of such a booth is obtained in violation of the right to privacy of the user of the booth. [389 U.S. 347, 350] "B. Whether physical penetration of a constitutionally protected area is necessary before a search and seizure can be said to be violative of the Fourth Amendment to the United States Constitution." We decline to adopt this formulation of the issues. In the first place, the correct solution of Fourth Amendment problems is not necessarily promoted by incantation of the phrase "constitutionally protected area." Secondly, the Fourth Amendment cannot be translated into a general constitutional "right to privacy." That Amendment protects individual privacy against certain kinds of governmental intrusion, but its protections go further, and often have nothing to do with privacy at all. 4 Other provisions of the Constitution protect personal privacy from other forms of governmental invasion. 5But the protection of a person's general right to privacy - his right to be let alone by other people 6 - is, like the [389 U.S. 347, 351] protection of his property and of his very life, left largely to the law of the individual States. 7 Because of the misleading way the issues have been formulated, the parties have attached great significance to the characterization of the telephone booth from which the petitioner placed his calls. The petitioner has strenuously argued that the booth was a "constitutionally protected area." The Government has maintained with equal vigor that it was not. 8 But this effort to decide whether or not a given "area," viewed in the abstract, is "constitutionally protected" deflects attention from the problem presented by this case. 9 For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. See Lewis v. United States, 385 U.S. 206, 210 ; United States v. Lee, 274 U.S. 559, 563 . But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. [389 U.S. 347, 352] See Rios v. United States, 364 U.S. 253 ; Ex parte Jackson, 96 U.S. 727, 733 . The Government stresses the fact that the telephone booth from which the petitioner made his calls was constructed partly of glass, so that he was as visible after he entered it as he would have been if he had remained outside. But what he sought to exclude when he entered the booth was not the intruding eye - it was the uninvited ear. He did not shed his right to do so simply because he made his calls from a place where he might be seen. No less than an individual in a business office, 10 in a friend's apartment,11 or in a taxicab, 12 a person in a telephone booth may rely upon the protection of the Fourth Amendment. One who occupies it, shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world. To read the Constitution more narrowly is to ignore the vital role that the public telephone has come to play in private communication. The Government contends, however, that the activities of its agents in this case should not be tested by Fourth Amendment requirements, for the surveillance technique they employed involved no physical penetration of the telephone booth from which the petitioner placed his calls. It is true that the absence of such penetration was at one time thought to foreclose further Fourth Amendment inquiry, Olmstead v. United States, 277 U.S. 438, 457 , 464, 466; Goldman v. United States, 316 U.S. 129, 134 -136, for that Amendment was thought to limit only searches and seizures of tangible [389 U.S. 347, 353] property. 13 But "[t]he premise that property interests control the right of the Government to search and seize has been discredited." Warden v. Hayden, 387 U.S. 294,

304 . Thus, although a closely divided Court supposed in Olmstead

that surveillance without any trespass and without the seizure of any material object fell outside the ambit of the Constitution, we have since departed from the narrow view on which that decision rested. Indeed, we have expressly held that the Fourth Amendment governs not only the seizure of tangible items, but extends as well to the recording of oral statements, over-heard without any "technical trespass under . . . local property law." Silverman v. United States, 365 U.S. 505, 511 . Once this much is acknowledged, and once it is recognized that the Fourth Amendment protects people - and not simply "areas" -

Katz vs. US
against unreasonable searches and seizures, it becomes clear that the reach of that Amendment cannot turn upon the presence or absence of a physical intrusion into any given enclosure. We conclude that the underpinnings of Olmstead and Goldman have been so eroded by our subsequent decisions that the "trespass" doctrine there enunciated can no longer be regarded as controlling. The Government's activities in electronically listening to and recording the petitioner's words violated the privacy upon which he justifiably relied while using the telephone booth and thus constituted a "search and seizure" within the meaning of the Fourth Amendment. The fact that the electronic device employed to achieve that end did not happen to penetrate the wall of the booth can have no constitutional significance. [389 U.S. 347, 354] The question remaining for decision, then, is whether the search and seizure conducted in this case complied with constitutional standards. In that regard, the Government's position is that its agents acted in an entirely defensible manner: They did not begin their electronic surveillance until investigation of the petitioner's activities had established a strong probability that he was using the telephone in question to transmit gambling information to persons in other States, in violation of federal law. Moreover, the surveillance was limited, both in scope and in duration, to the specific purpose of establishing the contents of the petitioner's unlawful telephonic communications. The agents confined their surveillance to the brief periods during which he used the telephone booth, 14and they took great care to overhear only the conversations of the petitioner himself. 15 Accepting this account of the Government's actions as accurate, it is clear that this surveillance was so narrowly circumscribed that a duly authorized magistrate, properly notified of the need for such investigation, specifically informed of the basis on which it was to proceed, and clearly apprised of the precise intrusion it would entail, could constitutionally have authorized, with appropriate safeguards, the very limited search and seizure that the Government asserts in fact took place. Only last Term we sustained the validity of [389 U.S. 347, 355] such an authorization, holding that, under sufficiently "precise and discriminate circumstances," a federal court may empower government agents to employ a concealed electronic device "for the narrow and particularized purpose of ascertaining the truth of the . . . allegations" of a "detailed factual affidavit alleging the commission of a specific criminal offense." Osborn v. United States, 385 U.S. 323, 329 -330. Discussing that holding, the Court in Berger v. New York, 388 U.S. 41 , said that "the order authorizing the use of the electronic device" in Osborn "afforded similar protections to those . . . of conventional warrants authorizing the seizure of tangible evidence." Through those protections, "no greater invasion of privacy was permitted than was necessary under the circumstances." Id., at 57. 16 Here, too, a similar [389 U.S. 347, 356] judicial order could have accommodated "the legitimate needs of law enforcement" 17 by authorizing the carefully limited use of electronic surveillance. The Government urges that, because its agents relied upon the decisions in Olmstead and Goldman, and because they did no more here than they might properly have done with prior judicial sanction, we should retroactively validate their conduct. That we cannot do. It is apparent that the agents in this case acted with restraint. Yet the inescapable fact is that this restraint was imposed by the agents themselves, not by a judicial officer. They were not required, before commencing the search, to present their estimate of probable cause for detached scrutiny by a neutral magistrate. They were not compelled, during the conduct of the search itself, to observe precise limits established in advance by a specific court order. Nor were they directed, after the search had been completed, to notify the authorizing magistrate in detail of all that had been seized. In the absence of such safeguards, this Court has never sustained a search upon the sole ground that officers reasonably expected to find evidence of a particular crime and voluntarily confined their activities to the least intrusive [389 U.S. 347, 357] means consistent with that end. Searches conducted without warrants have been held unlawful "notwithstanding facts unquestionably showing probable cause," Agnello v. United States, 269 U.S. 20, 33 , for the Constitution requires "that the deliberate, impartial judgment of a judicial officer . . . be interposed between the citizen and the police . . . ." Wong Sun v. United States, 371 U.S. 471, 481 -482. "Over and again this Court has emphasized that the mandate of the [Fourth] Amendment requires adherence to judicial processes," United States v. Jeffers, 342 U.S. 48, 51 , and that searches

Katz vs. US
conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment 18 - subject only to a few specifically established and well-delineated exceptions. 19 It is difficult to imagine how any of those exceptions could ever apply to the sort of search and seizure involved in this case. Even electronic surveillance substantially contemporaneous with an individual's arrest could hardly be deemed an "incident" of that arrest. 20 [389 U.S. 347, 358] Nor could the use of electronic surveillance without prior authorization be justified on grounds of "hot pursuit." 21 And, of course, the very nature of electronic surveillance precludes its use pursuant to the suspect's consent. 22 The Government does not question these basic principles. Rather, it urges the creation of a new exception to cover this case. 23 It argues that surveillance of a telephone booth should be exempted from the usual requirement of advance authorization by a magistrate upon a showing of probable cause. We cannot agree. Omission of such authorization "bypasses the safeguards provided by an objective predetermination of probable cause, and substitutes instead the far less reliable procedure of an after-the-event justification for the . . . search, too likely to be subtly influenced by the familiar shortcomings of hindsight judgment." Beck v. Ohio, 379 U.S. 89, 96. And bypassing a neutral predetermination of the scope of a search leaves individuals secure from Fourth Amendment [389 U.S. 347, 359] violations "only in the discretion of the police." Id., at 97. These considerations do not vanish when the search in question is transferred from the setting of a home, an office, or a hotel room to that of a telephone booth. Wherever a man may be, he is entitled to know that he will remain free from unreasonable searches and seizures. The government agents here ignored "the procedure of antecedent justification . . . that is central to the Fourth Amendment," 24 a procedure that we hold to be a constitutional precondition of the kind of electronic surveillance involved in this case. Because the surveillance here failed to meet that condition, and because it led to the petitioner's conviction, the judgment must be reversed. It is so ordered. MR. JUSTICE MARSHALL took no part in the consideration or decision of this case.

Footnotes
[ Footnote 1 ] 18 U.S.C. 1084. That statute provides in pertinent part: "(a) Whoever being engaged in the business of betting or wagering knowingly uses a wire communication facility for the transmission in interstate or foreign commerce of bets or wagers or information assisting in the placing of bets or wagers on any sporting event or contest, or for the transmission of a wire communication which entitles the recipient to receive money or credit as a result of bets or wagers, or for information assisting in the placing of bets or wagers, shall be fined not more than $10,000 or imprisoned not more than two years, or both. "(b) Nothing in this section shall be construed to prevent the transmission in interstate or foreign commerce of information for use in news reporting of sporting events or contests, or for the transmission of information assisting in the placing of bets or wagers on a sporting event or contest from a State where betting on that sporting event or contest is legal into a State in which such betting is legal." [ Footnote 2 ] 369 F.2d 130, 134. [ Footnote 3 ] 386 U.S. 954 . The petition for certiorari also challenged the validity of a warrant authorizing the search of the petitioner's premises. In light of our disposition of this case, we do not reach that issue.

Katz vs. US
We find no merit in the petitioner's further suggestion that his indictment must be dismissed. After his conviction was affirmed by the Court of Appeals, he testified before a federal grand jury concerning the charges involved here. Because he was compelled to testify pursuant to a grant of immunity, 48 Stat. 1096, as amended, 47 U.S.C. 409(l), it is clear that the fruit of his testimony cannot be used against him in any future trial. But the petitioner asks for more. He contends that his conviction must be vacated and the charges against him dismissed lest he be "subjected to [a] penalty . . . on account of [a] . . . matter . . . concerning which he [was] compelled . . . to testify . . . ." 47 U.S.C. 409 (l). Frank v. United States, 347 F.2d 486. We disagree. In relevant part, 409 (l) substantially repeats the language of the Compulsory Testimony Act of 1893, 27 Stat. 443, 49 U.S.C. 46, which was Congress' response to this Court's statement that an immunity statute can supplant the Fifth Amendment privilege against self-incrimination only if it affords adequate protection from future prosecution or conviction. Counselman v. Hitchcock, 142 U.S. 547, 585 -586. The statutory provision here involved was designed to provide such protection, see Brown v. United States, 359 U.S. 41, 45 -46, not to confer immunity from punishment pursuant to a prior prosecution and adjudication of guilt. Cf. Reina v. United States, 364 U.S. 507, 513 -514. [ Footnote 4 ] "The average man would very likely not have his feelings soothed any more by having his property seized openly than by having it seized privately and by stealth. . . . And a person can be just as much, if not more, irritated, annoyed and injured by an unceremonious public arrest by a policeman as he is by a seizure in the privacy of his office or home." Griswold v. Connecticut, 381 U.S. 479, 509(dissenting opinion of MR. JUSTICE BLACK). [ Footnote 5 ] The First Amendment, for example, imposes limitations upon governmental abridgment of "freedom to associate and privacy in one's associations." NAACP v. Alabama, 357 U.S. 449, 462 . The Third Amendment's prohibition against the unconsented peace-time quartering of soldiers protects another aspect of privacy from governmental intrusion. To some extent, the Fifth Amendment too "reflects the Constitution's concern for . . . `. . . the right of each individual "to a private enclave where he may lead a private life."'" Tehan v. Shott, 382 U.S. 406, 416 . Virtually every governmental action interferes with personal privacy to some degree. The question in each case is whether that interference violates a command of the United States Constitution. [ Footnote 6 ] See Warren & Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890). [ Footnote 7 ] See, e. g., Time, Inc. v. Hill, 385 U.S. 374 . Cf. Breard v. Alexandria, 341 U.S. 622 ; Kovacs v. Cooper, 336 U.S. 77 . [ Footnote 8 ] In support of their respective claims, the parties have compiled competing lists of "protected areas" for our consideration. It appears to be common ground that a private home is such an area, Weeks v. United States, 232 U.S. 383 , but that an open field is not. Hester v. United States, 265 U.S. 57 . Defending the inclusion of a telephone booth in his list the petitioner cites United States v. Stone, 232 F. Supp. 396, and United States v. Madison, 32 L. W. 2243 (D.C. Ct. Gen. Sess.). Urging that the telephone booth should be excluded, the Government finds support in United States v. Borgese, 235 F. Supp. 286. [ Footnote 9 ] It is true that this Court has occasionally described its conclusions in terms of "constitutionally protected areas," see, e. g., Silverman v. United States, 365 U.S. 505, 510 , 512; Lopez v. United States, 373 U.S. 427, 438 -439; Berger v. New York, 388

U.S. 41, 57 , 59, but we have never suggested that this concept can serve as a talismanic solution to

every Fourth Amendment problem. [ Footnote 10 ] Silverthorne Lumber Co. v. United States, 251 U.S. 385 . [ Footnote 11 ] Jones v. United States, 362 U.S. 257 . [ Footnote 12 ] Rios v. United States, 364 U.S. 253 .

Katz vs. US
[ Footnote 13 ] See Olmstead v. United States, 277 detention or arrest under the Fourth Amendment. [ Footnote 14 ] Based upon their previous visual observations of the petitioner, the agents correctly predicted that he would use the telephone booth for several minutes at approximately the same time each morning. The petitioner was subjected to electronic surveillance only during this predetermined period. Six recordings, averaging some three minutes each, were obtained and admitted in evidence. They preserved the petitioner's end of conversations concerning the placing of bets and the receipt of wagering information. [ Footnote 15 ] On the single occasion when the statements of another person were inadvertently intercepted, the agents refrained from listening to them. [ Footnote 16 ] Although the protections afforded the petitioner in Osborn were "similar . . . to those . . . of conventional warrants," they were not identical. A conventional warrant ordinarily serves to notify the suspect of an intended search. But if Osborn had been told in advance that federal officers intended to record his conversations, the point of making such recordings would obviously have been lost; the evidence in question could not have been obtained. In omitting any requirement of advance notice, the federal court that authorized electronic surveillance in Osborn simply recognized, as has this Court, that officers need not announce their purpose before conducting an otherwise authorized search if such an announcement would provoke the escape of the suspect or the destruction of critical evidence. See Ker v. California, 374 U.S. 23, 37 -41. Although some have thought that this "exception to the notice requirement where exigent circumstances are present," id., at 39, should be deemed inapplicable where police enter a home before its occupants are aware that officers are present, id., at 55-58 (opinion of MR. JUSTICE BRENNAN), the reasons for such a limitation have no bearing here. However true it may be that "[i]nnocent citizens should not suffer the shock, fright or embarrassment attendant upon an unannounced police intrusion," id., at 57, and that "the requirement of awareness . . . serves to minimize the hazards of the officers' dangerous calling," id., at 57-58, these considerations are not relevant [389 U.S. 347, 356] to the problems presented by judicially authorized electronic surveillance. Nor do the Federal Rules of Criminal Procedure impose an inflexible requirement of prior notice. Rule 41 (d) does require federal officers to serve upon the person searched a copy of the warrant and a receipt describing the material obtained, but it does not invariably require that this be done before the search takes place. Nordelli v. United States, 24 F.2d 665, 666-667. Thus the fact that the petitioner in Osborn was unaware that his words were being electronically transcribed did not prevent this Court from sustaining his conviction, and did not prevent the Court in Berger from reaching the conclusion that the use of the recording device sanctioned in Osborn was entirely lawful. 388 U.S. 41, 57 . [ Footnote 17 ] Lopez v. United States, 373 U.S. 427, 464 (dissenting opinion of MR. JUSTICE BRENNAN). [ Footnote 18 ] See, e. g., Jones v. United States, 357 U.S. 493, 497 -499; Rios v. United States, 364 U.S. Chapman v. United States, 365 U.S. 610, 613 -615; Stoner v. California, 376 U.S. 483, 486 -487.

U.S. 438, 464 -466. We do not deal in this case with the law of

253, 261 ;

[ Footnote 19 ] See, e. g., Carroll v. United States, 267 U.S. 132, 153 , 156; McDonald v. United States,335 U.S. 451,

454 -456; Brinegar v. United States, 338 U.S. 160, 174 -177; Cooper v. California, 386 U.S. 58 ; Warden v. Hayden, 387 U.S. 294, 298 -300.
[ Footnote 20 ] In Agnello v. United States, 269 U.S. 20, 30 , the Court stated:

Katz vs. US
"The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the means by which it was committed, as well as weapons and other things to effect an escape from custody, is not to be doubted." Whatever one's view of "the long-standing practice of searching for other proofs of guilt within the control of the accused found upon arrest," United States v. Rabinowitz, 339 U.S. 56, 61 ; cf. id., at [389 U.S. 347, 358] 71-79 (dissenting opinion of Mr. Justice Frankfurter), the concept of an "incidental" search cannot readily be extended to include surreptitious surveillance of an individual either immediately before, or immediately after, his arrest. [ Footnote 21 ] Although "[t]he Fourth Amendment does not require police officers to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others," Warden v. Hayden, 387 U.S. 294, 298 -299, there seems little likelihood that electronic surveillance would be a realistic possibility in a situation so fraught with urgency. [ Footnote 22 ] A search to which an individual consents meets Fourth Amendment requirements, Zap v. United States, 328 U.S. 624 , but of course "the usefulness of electronic surveillance depends on lack of notice to the suspect." Lopez v. United States, 373 U.S. 427, 463 (dissenting opinion of MR. JUSTICE BRENNAN). [ Footnote 23 ] Whether safeguards other than prior authorization by a magistrate would satisfy the Fourth Amendment in a situation involving the national security is a question not presented by this case. [ Footnote 24 ] See Osborn v. United States, 385 U.S. 323, 330 . MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BRENNAN joins, concurring. While I join the opinion of the Court, I feel compelled to reply to the separate concurring opinion of my Brother WHITE, which I view as a wholly unwarranted green light for the Executive Branch to resort to electronic eaves-dropping without a warrant in cases which the Executive Branch itself labels "national security" matters. Neither the President nor the Attorney General is a magistrate. In matters where they believe national security may be involved they are not detached, disinterested, and neutral as a court or magistrate must be. Under the separation of powers created by the Constitution, the Executive Branch is not supposed to be neutral and disinterested. Rather it should vigorously investigate [389 U.S. 347, 360] and prevent breaches of national security and prosecute those who violate the pertinent federal laws. The President and Attorney General are properly interested parties, cast in the role of adversary, in national security cases. They may even be the intended victims of subversive action. Since spies and saboteurs are as entitled to the protection of the Fourth Amendment as suspected gamblers like petitioner, I cannot agree that where spies and saboteurs are involved adequate protection of Fourth Amendment rights is assured when the President and Attorney General assume both the position of adversary-and-prosecutor and disinterested, neutral magistrate. There is, so far as I understand constitutional history, no distinction under the Fourth Amendment between types of crimes. Article III, 3, gives "treason" a very narrow definition and puts restrictions on its proof. But the Fourth Amendment draws no lines between various substantive offenses. The arrests in cases of "hot pursuit" and the arrests on visible or other evidence of probable cause cut across the board and are not peculiar to any kind of crime. I would respect the present lines of distinction and not improvise because a particular crime seems particularly heinous. When the Framers took that step, as they did with treason, the worst crime of all, they made their purpose manifest. MR. JUSTICE HARLAN, concurring.

Katz vs. US
I join the opinion of the Court, which I read to hold only (a) that an enclosed telephone booth is an area where, like a home, Weeks v. United States, 232 U.S. 383 , and unlike a field, Hester v. United States,265 U.S. 57 , a person has a constitutionally protected reasonable expectation of privacy; (b) that electronic as well as physical intrusion into a place that is in this sense private may constitute a violation of the Fourth Amendment; [389 U.S. 347, 361] and (c) that the invasion of a constitutionally protected area by federal authorities is, as the Court has long held, presumptively unreasonable in the absence of a search warrant. As the Court's opinion states, "the Fourth Amendment protects people, not places." The question, however, is what protection it affords to those people. Generally, as here, the answer to that question requires reference to a "place." My understanding of the rule that has emerged from prior decisions is that there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as "reasonable." Thus a man's home is, for most purposes, a place where he expects privacy, but objects, activities, or statements that he exposes to the "plain view" of outsiders are not "protected" because no intention to keep them to himself has been exhibited. On the other hand, conversations in the open would not be protected against being overheard, for the expectation of privacy under the circumstances would be unreasonable. Cf. Hester v. United States, supra. The critical fact in this case is that "[o]ne who occupies it, [a telephone booth] shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume" that his conversation is not being intercepted. Ante, at 352. The point is not that the booth is "accessible to the public" at other times, ante, at 351, but that it is a temporarily private place whose momentary occupants' expectations of freedom from intrusion are recognized as reasonable. Cf. Rios v. United States, 364 U.S. 253 . In Silverman v. United States, 365 U.S. 505 , we held that eavesdropping accomplished by means of an electronic device that penetrated the premises occupied by petitioner was a violation of the Fourth Amendment. [389 U.S. 347, 362] That case established that interception of conversations reasonably intended to be private could constitute a "search and seizure," and that the examination or taking of physical property was not required. This view of the Fourth Amendment was followed in Wong Sun v. United States, 371 U.S. 471 , at 485, and Berger v. New York, 388 U.S. 41 , at 51. Also compare Osborn v. United States, 385 U.S. 323 , at 327. In Silverman we found it unnecessary to re-examine Goldman v. United States, 316

U.S. 129 , which had held that electronic surveillance accomplished without the physical penetration of petitioner's premises
by a tangible object did not violate the Fourth Amendment. This case requires us to reconsider Goldman, and I agree that it should now be overruled.* Its limitation on Fourth Amendment protection is, in the present day, bad physics as well as bad law, for reasonable expectations of privacy may be defeated by electronic as well as physical invasion. Finally, I do not read the Court's opinion to declare that no interception of a conversation one-half of which occurs in a public telephone booth can be reasonable in the absence of a warrant. As elsewhere under the Fourth Amendment, warrants are the general rule, to which the legitimate needs of law enforcement may demand specific exceptions. It will be time enough to consider any such exceptions when an appropriate occasion presents itself, and I agree with the Court that this is not one. [ Footnote * ] I also think that the course of development evinced by Silverman, supra, Wong Sun, supra, Berger, supra, and today's decision must be recognized as overruling Olmstead v. United States, 277 U.S. 438 , which essentially rested on the ground that conversations were not subject to the protection of the Fourth Amendment. MR. JUSTICE WHITE, concurring. I agree that the official surveillance of petitioner's telephone conversations in a public booth must be subjected [389 U.S. 347, 363] to the test of reasonableness under the Fourth Amendment and that on the record now before us the particular surveillance undertaken was unreasonable absent a warrant properly authorizing it. This application of the Fourth Amendment need not interfere with legitimate needs of law enforcement. *

Katz vs. US
In joining the Court's opinion, I note the Court's acknowledgment that there are circumstances in which it is reasonable to search without a warrant. In this connection, in footnote 23 the Court points out that today's decision does not reach national security cases. Wiretapping to protect the security of the Nation has been authorized by successive Presidents. The present Administration would apparently save national security cases from restrictions against wiretapping. See Berger v. New York, 388 U.S. 41, 112 -118 (1967) (WHITE, J., [389 U.S. 347, 364] dissenting). We should not require the warrant procedure and the magistrate's judgment if the President of the United States or his chief legal officer, the Attorney General, has considered the requirements of national security and authorized electronic surveillance as reasonable. [ Footnote * ] In previous cases, which are undisturbed by today's decision, the Court has upheld, as reasonable under the Fourth Amendment, admission at trial of evidence obtained (1) by an undercover police agent to whom a defendant speaks without knowledge that he is in the employ of the police, Hoffa v. United States, 385 U.S. 293 (1966); (2) by a recording device hidden on the person of such an informant, Lopez v. United States, 373 U.S. 427 (1963); Osborn v. United States, 385 U.S. 323 (1966); and (3) by a policeman listening to the secret micro-wave transmissions of an agent conversing with the defendant in another location, On Lee v. United States, 343 U.S. 747 (1952). When one man speaks to another he takes all the risks ordinarily inherent in so doing, including the risk that the man to whom he speaks will make public what he has heard. The Fourth Amendment does not protect against unreliable (or law-abiding) associates. Hoffa v. United States, supra. It is but a logical and reasonable extension of this principle that a man take the risk that his hearer, free to memorize what he hears for later verbatim repetitions, is instead recording it or transmitting it to another. The present case deals with an entirely different situation, for as the Court emphasizes the petitioner "sought to exclude . . . the uninvited ear," and spoke under circumstances in which a reasonable person would assume that uninvited ears were not listening. MR. JUSTICE BLACK, dissenting. If I could agree with the Court that eavesdropping carried on by electronic means (equivalent to wiretapping) constitutes a "search" or "seizure," I would be happy to join the Court's opinion. For on that premise my Brother STEWART sets out methods in accord with the Fourth Amendment to guide States in the enactment and enforcement of laws passed to regulate wiretapping by government. In this respect today's opinion differs sharply from Berger v. New York, 388 U.S. 41 , decided last Term, which held void on its face a New York statute authorizing wiretapping on warrants issued by magistrates on showings of probable cause. The Berger case also set up what appeared to be insuperable obstacles to the valid passage of such wiretapping laws by States. The Court's opinion in this case, however, removes the doubts about state power in this field and abates to a large extent the confusion and near-paralyzing effect of the Berger holding. Notwithstanding these good efforts of the Court, I am still unable to agree with its interpretation of the Fourth Amendment. My basic objection is twofold: (1) I do not believe that the words of the Amendment will bear the meaning given them by today's decision, and (2) I do not believe that it is the proper role of this Court to rewrite the Amendment in order "to bring it into harmony with the times" and thus reach a result that many people believe to be desirable. [389 U.S. 347, 365] While I realize that an argument based on the meaning of words lacks the scope, and no doubt the appeal, of broad policy discussions and philosophical discourses on such nebulous subjects as privacy, for me the language of the Amendment is the crucial place to look in construing a written document such as our Constitution. The Fourth Amendment says that "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." The first clause protects "persons, houses, papers, and effects, against unreasonable searches and seizures . . . ." These words connote the idea of tangible things with size, form, and weight, things capable of being searched, seized, or both. The second clause of the Amendment still further establishes its Framers' purpose to limit its protection to tangible things by providing

Katz vs. US
that no warrants shall issue but those "particularly describing the place to be searched, and the persons or things to be seized." A conversation overheard by eavesdropping, whether by plain snooping or wiretapping, is not tangible and, under the normally accepted meanings of the words, can neither be searched nor seized. In addition the language of the second clause indicates that the Amendment refers not only to something tangible so it can be seized but to something already in existence so it can be described. Yet the Court's interpretation would have the Amendment apply to overhearing future conversations which by their very nature are nonexistent until they take place. How can one "describe" a future conversation, and, if one cannot, how can a magistrate issue a warrant to eavesdrop one in the future? It is argued that information showing what [389 U.S. 347, 366] is expected to be said is sufficient to limit the boundaries of what later can be admitted into evidence; but does such general information really meet the specific language of the Amendment which says "particularly describing"? Rather than using language in a completely artificial way, I must conclude that the Fourth Amendment simply does not apply to eavesdropping. Tapping telephone wires, of course, was an unknown possibility at the time the Fourth Amendment was adopted. But eavesdropping (and wiretapping is nothing more than eavesdropping by telephone) was, as even the majority opinion in Berger, supra, recognized, "an ancient practice which at common law was condemned as a nuisance. 4 Blackstone, Commentaries 168. In those days the eavesdropper listened by naked ear under the eaves of houses or their windows, or beyond their walls seeking out private discourse." 388 U.S., at 45 . There can be no doubt that the Framers were aware of this practice, and if they had desired to outlaw or restrict the use of evidence obtained by eavesdropping, I believe that they would have used the appropriate language to do so in the Fourth Amendment. They certainly would not have left such a task to the ingenuity of language-stretching judges. No one, it seems to me, can read the debates on the Bill of Rights without reaching the conclusion that its Framers and critics well knew the meaning of the words they used, what they would be understood to mean by others, their scope and their limitations. Under these circumstances it strikes me as a charge against their scholarship, their common sense and their candor to give to the Fourth Amendment's language the eavesdropping meaning the Court imputes to it today. I do not deny that common sense requires and that this Court often has said that the Bill of Rights' safeguards should be given a liberal construction. This [389 U.S. 347, 367] principle, however, does not justify construing the search and seizure amendment as applying to eavesdropping or the "seizure" of conversations. The Fourth Amendment was aimed directly at the abhorred practice of breaking in, ransacking and searching homes and other buildings and seizing people's personal belongings without warrants issued by magistrates. The Amendment deserves, and this Court has given it, a liberal construction in order to protect against warrantless searches of buildings and seizures of tangible personal effects. But until today this Court has refused to say that eavesdropping comes within the ambit of Fourth Amendment restrictions. See, e. g., Olmstead v. United States, 277 U.S. 438 (1928), and Goldman v. United States, 316 U.S. 129 (1942). So far I have attempted to state why I think the words of the Fourth Amendment prevent its application to eavesdropping. It is important now to show that this has been the traditional view of the Amendment's scope since its adoption and that the Court's decision in this case, along with its amorphous holding in Berger last Term, marks the first real departure from that view. The first case to reach this Court which actually involved a clear-cut test of the Fourth Amendment's applicability to eavesdropping through a wiretap was, of course, Olmstead, supra. In holding that the interception of private telephone conversations by means of wiretapping was not a violation of the Fourth Amendment, this Court, speaking through Mr. Chief Justice Taft, examined the language of the Amendment and found, just as I do now, that the words could not be stretched to encompass overheard conversations: "The Amendment itself shows that the search is to be of material things - the person, the house, his papers or his effects. The description of the warrant necessary to make the proceeding lawful, is [389 U.S. 347, 368] that it must specify the place to be searched and the person or things to be seized. . . .

Katz vs. US
..... "Justice Bradley in the Boyd case [Boyd v. United States, 116 U.S. 616 ], and Justice Clark[e] in the Gouled case [Gouled v. United States, 255 U.S. 298 ], said that the Fifth Amendment and the Fourth Amendment were to be liberally construed to effect the purpose of the framers of the Constitution in the interest of liberty. But that can not justify enlargement of the language employed beyond the possible practical meaning of houses, persons, papers, and effects, or so to apply the words search and seizure as to forbid hearing or sight." 277 U.S., at 464 -465. Goldman v. United States, 316 U.S. 129 , is an even clearer example of this Court's traditional refusal to consider eavesdropping as being covered by the Fourth Amendment. There federal agents used a detectaphone, which was placed on the wall of an adjoining room, to listen to the conversation of a defendant carried on in his private office and intended to be confined within the four walls of the room. This Court, referring to Olmstead, found no Fourth Amendment violation. It should be noted that the Court in Olmstead based its decision squarely on the fact that wiretapping or eavesdropping does not violate the Fourth Amendment. As shown, supra, in the cited quotation from the case, the Court went to great pains to examine the actual language of the Amendment and found that the words used simply could not be stretched to cover eavesdropping. That there was no trespass was not the determinative factor, and indeed the Court in citing Hester v. United States, 265 U.S. 57 , indicated that even where there was a trespass the Fourth Amendment does not automatically apply to evidence obtained by "hearing or [389 U.S. 347, 369] sight." The Olmstead majority characterized Hester as holding "that the testimony of two officers of the law who trespassed on the defendant's land, concealed themselves one hundred yards away from his house and saw him come out and hand a bottle of whiskey to another, was not inadmissible. While there was a trespass, there was no search of person, house, papers or effects." 277 U.S., at 465 . Thus the clear holding of the Olmstead and Goldman cases, undiluted by any question of trespass, is that eavesdropping, in both its original and modern forms, is not violative of the Fourth Amendment. While my reading of the Olmstead and Goldman cases convinces me that they were decided on the basis of the inapplicability of the wording of the Fourth Amendment to eavesdropping, and not on any trespass basis, this is not to say that unauthorized intrusion has not played an important role in search and seizure cases. This Court has adopted an exclusionary rule to bar evidence obtained by means of such intrusions. As I made clear in my dissenting opinion in Berger v. New York, 388 U.S.

41, 76 , I continue to believe that this exclusionary rule formulated in Weeks v. United States, 232 U.S. 383 , rests on the
"supervisory power" of this Court over other federal courts and is not rooted in the Fourth Amendment. See Wolf v. Colorado, concurring opinion, 338 U.S. 25, 39 , at 40. See also Mapp v. Ohio, concurring opinion, 367 U.S. 643, 661 -666. This rule has caused the Court to refuse to accept evidence where there has been such an intrusion regardless of whether there has been a search or seizure in violation of the Fourth Amendment. As this Court said in Lopez v. United States, 373 U.S. 427,

438 -439, "The Court has in the past sustained instances of `electronic eavesdropping' against constitutional challenge, when
devices have been used to enable government agents to overhear conversations which would have been beyond the reach of the human ear [citing [389 U.S. 347, 370] Olmstead and Goldman]. It has been insisted only that the electronic device not be planted by an unlawful physical invasion of a constitutionally protected area. Silverman v. United States." To support its new interpretation of the Fourth Amendment, which in effect amounts to a rewriting of the language, the Court's opinion concludes that "the underpinnings of Olmstead and Goldman have been . . . eroded by our subsequent decisions . . . ." But the only cases cited as accomplishing this "eroding" are Silverman v. United States, 365 U.S. 505 , and Warden v. Hayden, 387 U.S. 294 . Neither of these cases "eroded" Olmstead or Goldman. Silverman is an interesting choice since there the Court expressly refused to re-examine the rationale of Olmstead or Goldman although such a re-examination was strenuously urged upon the Court by the petitioners' counsel. Also it is significant that in Silverman, as the Court described it, "the eavesdropping was accomplished by means of an unauthorized physical penetration into the premises occupied by the petitioners," 365 U.S., at 509 , thus calling into play the supervisory exclusionary rule of evidence. As I have pointed out above, where there is an unauthorized intrusion, this Court has rejected admission of evidence obtained

Katz vs. US
regardless of whether there has been an unconstitutional search and seizure. The majority's decision here relies heavily on the statement in the opinion that the Court "need not pause to consider whether or not there was a technical trespass under the local property law relating to party walls." (At 511.) Yet this statement should not becloud the fact that time and again the opinion emphasizes that there has been an unauthorized intrusion: "For a fair reading of the record in this case shows that the eavesdropping was accomplished by means of an unauthorized physical penetration into the premises occupied by the petitioners." (At 509, emphasis added.) "Eavesdropping [389 U.S. 347, 371] accomplished by means of such a physical intrusion is beyond the pale of even those decisions . . . ." (At 509, emphasis added.) "Here . . . the officers overheard the petitioners' conversations only by usurping part of the petitioners' house or office . . . ." (At 511, emphasis added.) "[D]ecision here . . . is based upon the reality of an actual intrusion . . . ." (At 512, emphasis added.) "We find no occasion to re-examine Goldman here, but we decline to go beyond it, by even a fraction of an inch." (At 512, emphasis added.) As if this were not enough, Justices Clark and Whittaker concurred with the following statement: "In view of the determination by the majority that the unauthorized physical penetration into petitioners' premises constituted sufficient trespass to remove this case from the coverage of earlier decisions, we feel obliged to join in the Court's opinion." (At 513, emphasis added.) As I made clear in my dissent in Berger, the Court in Silverman held the evidence should be excluded by virtue of the exclusionary rule and "I would not have agreed with the Court's opinion in Silverman . . . had I thought that the result depended on finding a violation of the Fourth Amendment . . . ." 388 U.S., at 79 -80. In light of this and the fact that the Court expressly refused to reexamine Olmstead and Goldman, I cannot read Silverman as overturning the interpretation stated very plainly in Olmstead and followed in Goldman that eavesdropping is not covered by the Fourth Amendment. The other "eroding" case cited in the Court's opinion is Warden v. Hayden, 387 U.S. 294 . It appears that this case is cited for the proposition that the Fourth Amendment applies to "intangibles," such as conversation, and the following ambiguous statement is quoted from the opinion: "The premise that property interests control the right of the Government to search and seize has been discredited." 387 U.S., at 304 . But far from being concerned [389 U.S. 347, 372] with eavesdropping, Warden v. Hayden upholds the seizure of clothes, certainly tangibles by any definition. The discussion of property interests was involved only with the common-law rule that the right to seize property depended upon proof of a superior property interest. Thus, I think that although the Court attempts to convey the impression that for some reason today Olmstead and Goldman are no longer good law, it must face up to the fact that these cases have never been overruled or even "eroded." It is the Court's opinions in this case and Berger which for the first time since 1791, when the Fourth Amendment was adopted, have declared that eavesdropping is subject to Fourth Amendment restrictions and that conversations can be "seized." * I must align myself with all those judges who up to this year have never been able to impute such a meaning to the words of the Amendment. [389 U.S. 347, 373] Since I see no way in which the words of the Fourth Amendment can be construed to apply to eavesdropping, that closes the matter for me. In interpreting the Bill of Rights, I willingly go as far as a liberal construction of the language takes me, but I simply cannot in good conscience give a meaning to words which they have never before been thought to have and which they certainly do not have in common ordinary usage. I will not distort the words of the Amendment in order to "keep the Constitution up to date" or "to bring it into harmony with the times." It was never meant that this Court have such power, which in effect would make us a continuously functioning constitutional convention. With this decision the Court has completed, I hope, its rewriting of the Fourth Amendment, which started only recently when the Court began referring incessantly to the Fourth Amendment not so much as a law against unreasonable searches and seizures as one to protect an individual's privacy. By clever word juggling the Court finds it plausible to argue that language aimed specifically at searches and seizures of things that can be searched and seized may, to protect privacy, be applied to eavesdropped evidence of conversations that can neither be searched nor seized. Few things happen to an individual that do not affect his privacy in one way or another. Thus, by arbitrarily substituting the Court's language, designed to protect privacy,

Katz vs. US
for the Constitution's language, designed to protect against unreasonable searches and seizures, the Court has made the Fourth Amendment its vehicle for holding all laws violative of the Constitution which offend the Court's broadest concept of privacy. As I said in Griswold v. Connecticut, 381 U.S. 479 , "The Court talks about a constitutional `right of privacy' as though there is some constitutional provision or provisions forbidding any law ever to be passed which might abridge the `privacy' [389 U.S. 347, 374] of individuals. But there is not." (Dissenting opinion, at 508.) I made clear in that dissent my fear of the dangers involved when this Court uses the "broad, abstract and ambiguous concept" of "privacy" as a "comprehensive substitute for the Fourth Amendment's guarantee against `unreasonable searches and seizures.'" (See generally dissenting opinion, at 507-527.) The Fourth Amendment protects privacy only to the extent that it prohibits unreasonable searches and seizures of "persons, houses, papers, and effects." No general right is created by the Amendment so as to give this Court the unlimited power to hold unconstitutional everything which affects privacy. Certainly the Framers, well acquainted as they were with the excesses of governmental power, did not intend to grant this Court such omnipotent lawmaking authority as that. The history of governments proves that it is dangerous to freedom to repose such powers in courts. For these reasons I respectfully dissent.

Ontario vs. Quon

Ontario v. Quon, sometimes cited as City of Ontario v. Quon, 560 U.S. ___ (2010), is a United States Supreme Court case concerning the extent to which the right to privacy applies to electronic communications in a government workplace. It was an appeal by the city of Ontario, California, from a Ninth Circuit decision holding that it had violated the Fourth Amendment rights of two of its police officers when it disciplined them following an audit of pager text messages that discovered many of those messages were personal in nature, some sexually explicit. The Court unanimously held that the audit was work-related and thus did not violate the Fourth Amendment's protections against unreasonable search and seizure. Ontario police sergeant Jeff Quon, along with other officers and those they were exchanging messages with, had sued the city, their superiors and the pager service provider in federal court. They had alleged a violation of not only their constitutional rights but federal telecommunications privacy laws. Their defense was that a superior officer had promised the pager messages themselves would not be audited if the officers reimbursed the city for fees it incurred when they exceeded a monthly character limit. Justice Anthony Kennedy wrote the majority opinion signed by seven of his fellow justices. It decided the case purely on the reasonableness of the pager audit, explicitly refusing to consider "far-reaching issues" it raised on the grounds that modern communications technology and its role in society was still evolving. He nevertheless discussed those issues at some length in explaining why the Court chose not to rule on them, in addition to responding, for argument's sake, more directly to issues raised by the respondents. John Paul Stevens wrote a separate concurring opinion, as did Antonin Scalia, who would have used a different test he had proposed in an earlier case to reach the same result. Outside commentators mostly praised the justices for this display of restraint, but Scalia criticized it harshly in his concurrence, calling it vague. He considered his fellow justices in "disregard of duty" for their refusal to address the Fourth Amendment issues. A month after the court handed it down, an appellate panel in a Georgia case similarly criticized it for "a marked lack of clarity" as it narrowed an earlier ruling to remove a finding that there was no expectation of privacy in the contents of email.
[1]

A New York Times article later noted this criticism, and its "faux unanimity", as emblematic of what judges
[2]

and lawyers had found an increasingly frustrating trend in opinions of the Roberts Court.

In 2001 the Ontario Police Department (OPD) acquired 20 alphanumeric pagers to distribute to officers in its SWAT unit so they could better coordinate their activities. Mobility,
[4] [3]

The contract between the department and Arch Wireless, now USA
[5]

was for usage up to a fixed limit of 25,000 characters per month,

above which an overage fee would be charged.

Pager use was covered by the OPD's computer and Internet use policy, under which employees agreed that "the city reserves the right to monitor and log all network activity including e-mail and Internet use, with or without notice." The policy did not specifically mention text messages, but employees were told both verbally, at a staff meeting and through a memorandum that they were included and that only "light personal communications" were allowed during work hours.
[5] [6]

It

also stated that "inappropriate, derogatory, obscene, suggestive, defamatory, or harassing language in the e-mail system will not be tolerated."

Several officers, including Sgt. Jeff Quon, a 20-year veteran of the department,

[7]

exceeded the limit during the first two billing

cycles. He was allowed to reimburse the city for the fee. Lt. James Duke, head of the department's Administrative Bureau, told him that his communications would not be monitored if he paid the overage,
[6]

but that he should stop using the pager so

much. When Quon and another officer continued to exceed the limit and reimburse the city, Duke told then-Chief Lloyd

Ontario vs. Quon

Scharf he was "tired of being a bill collector". The OPD began to consider whether the character limit it had contracted for was too low and it was forcing officers to pay for work-related communications, as had sometimes happened in the past. At Scharf's direction, Duke requested from Arch transcripts of text messages sent by Quon and the other officer. After verifying that the city was the subscriber on the account, an Arch employee sent Duke the transcripts. Many messages were personal and some were sexually explicit, sent by the married Quon to his girlfriend at work. In one month as few as 8% of Quon's texts had been work-related. A transcript from which messages sent when Quon and the other officer were off-duty had been redacted was sent to the OPD's internal affairs sergeant, and after an investigation Quon and the other officer were allegedly disciplined.

Existing law
The case would involve two areas of law, both coming under the

Fourth Amendment. The first was the privacy rights

Quon and the other officers had over text messages sent on equipment paid for by their employers. The other was their rights as public employees, since their superiors were also agents of the state. Congress had passed the Electronic

Communications Privacy Act in 1986, which addressed issues raised as more and more companies stored records with highly personal data about individual consumers in off-site databases operated by third parties. A key section, known as the Stored Communications Act (SCA), distinguished between electronic
communications services which actively transmitted and received data and remote communications services whose only role was to archive and backup transmitted data for at least some period of time. The former could release transmitted data only to its sender or recipient; the latter could also release that information to the subscriber regardless of who had sent or received it.
[8]

The following year, 1987, the Supreme Court had first dealt with the Fourth Amendment rights of government employees under administrative investigation in O'Connor

v. Ortega, a case arising from the search of a supervising physician's

office and records at a California public hospital. By a 5-4 margin the court had ruled that while public employees had Fourth Amendment protections, the search was reasonable and constitutional and that other such warrantless searches of public employees' belongings or workspace, where applicable, were similarly permissible as long as they were reasonably workrelated in inception and scope.
[9]

The justices in that majority differed on what standards to use for evaluating the reasonableness of a search of a public employees' personal space and belongings. Sandra

Day O'Connor wrote for a four-justice plurality declaring that of

government employees did not lose their Fourth Amendment rights at work. In the latter instance, since the working environments of public employees can be drastically different, leading to some where no reasonable expectation
[9]

privacy could be argued to exist, lower courts should consider the "operational realities" of the work environment when
determining if a public employee's rights against unreasonable search and seizure were violated. Following the principle laid out in Connick

v. Myers, an earlier decision concerning the constitutional rights of public employees, that "government
[10]

offices could not function if every employment decision became a constitutional matter",

the majority distinguished

between searches "merely incident to the primary business of the agency," such as the retrieval of a document or tool from a desk or locker and thus not requiring a warrant at all, from those conducted to investigate a possible violation of workplace rules and procedures.
[11]

Ontario vs. Quon

In a concurring

opinion, Antonin Scalia rejected the plurality analysis, saying instead that "government searches to
[12]

retrieve work-related materials or to investigate violations of workplace rules searches of the sort that are regarded as reasonable and normal in the private employer context do not violate the Fourth Amendment".

Since Scalia's opinion had provided the case's deciding vote, either it or the plurality could be used by lower courts until another such case were to come to the court and force a resolution of the question. The court would consider the Fourth Amendment rights of public employees again two years later, in 1989's another divided court upheld the

Treasury Employees v. Von Raab. In that case

Customs Service's requirement that applicants for positions that involved carrying a firearm and the possibility of drug interdiction undergo drug tests by urinalysis.
[edit]Litigation The case began in federal court. After a district court found in favor of the defendants, a three-judge appellate panel reversed the decision. The circuit court denied a petition for an Court was granted. A major issue at all levels was whether the department's written Internet policy, or Duke's practice of just collecting the overage fee, was the operating reality of the OPD workplace. If it was the former, Quon had no reasonable expectation

en banc rehearing; a simultaneous certiorari petition to the Supreme

of

privacy for his pager messages. The city and department argued that Duke could not set or amend policy so what he said was irrelevant. And even if it was, it did not matter since the pager messages could be disclosed under the California Public Records Act. The plaintiffsargued that since Duke was the officer in charge of the contract with Arch, and the
policy change that covered the pagers was never communicated in any definitive way, his assurance that he would not read Quon's messages if he reimbursed the city was all that mattered.
[5] [13]

For Quon's co-plaintiffs, there was what one commentator later called "the really tricky question in the case,"

their claim

that the city violated their privacy in the course of investigating Quon. Two of the other plaintiffs were OPD employees who had not had pager overuse problems, and the third, his estranged wife, had left the OPD's employment and was using her own pager. The city argued that they should have been aware Quon had no expectation of privacy and that thus their exchanges with him would not be protected, either. [edit]Trial In 2003 Quon, his ex-wife, girlfriend and Arch in Central
[6][note 1] [14]

and another officer, Steve Trujillo, sued the city, the department, the police chief

California U.S. district court, Eastern Division, in Riverside.[note 2] Judge Stephen G.

Larson[15] heard their claims of SCA violation, invasion of privacy and their constitutional protections against unreasonable search and seizure. Arch was granted summary judgment in its favor on the SCA claim since it was found
to be a remote computing service, not subject to the statute's provisions. The court ruled that Quon and his fellow plaintiffs had a reasonable

expectation of privacy. It ordered a jury trial to

determine whether the purpose of the audit was, as the department maintained, to find out whether it needed higher character limits or, as Quon claimed, to expose the personal nature of the texts. When the jury found in favor of the OPD, judgment was entered in favor of the defendants. [edit]Appeal

Ontario vs. Quon

On appeal in 2008, a panel of two Ninth with Western

Circuit judges, Kim McLane Wardlaw and Harry Pregerson, along

Washingtondistrict judge Ronald B. Leighton. Wardlaw, writing for all three, noted that "[t]he recently
[16]

minted standard of electronic communication via e-mails, text messages, and other means opens a new frontier in Fourth Amendment jurisprudence that has been little explored". They agreed with the district court that Quon and his co-

appellees had a reasonable expectation of privacy due to the assurances from Duke. But they reversed since they found the search unreasonable as a matter of law. "The OPD surreptitiously reviewed messages that all parties reasonably believed were free from third-party review", Wardlaw wrote. The OPD could have obtained the information it sought in a number of less intrusive ways without viewing the content of the messages, such as warning Quon ahead of time or asking him to redact personal messages from an unreviewed transcript, she observed. The ruling was applauded by online privacy advocates. The Electronic
[17] [5]

Frontier Foundation called it a "tremendous

victory ... the Fourth Amendment applies to your communications online just as strongly as it does to your letters and packages".

Ars Technica said it "provide[d] an extensive space for workspace privacy".[18] George Washington

University law professor Orin Kerr, a Fourth Amendment scolar who was cited in the opinion, called it "a noteworthy [19] holding that I think is correct and very important" at the Volokh Conspiracy blawg. It also overturned the summary
judgment granted to Arch on the SCA claim, finding the company to be an electronic communications service and thus subject to stricter privacy requirements. The police chief was granted
[5]

qualified immunity due to the lack of clearly

established law in the area, while the city and department were denied their claim to statutory immunity. The SCA claims were remanded to district court.

The appellees petitioned for an en dissented. Sandra

banc rehearing and were denied early in 2009. Six justices[note 3] on the circuit

Segal Ikuta, writing for them, criticized her colleague for two errors. Ikuta insisted the department's policy, and California's Public Records Act, mooted any discretionary interpretation of the policy that Duke may have
conveyed to Quon, thus denying him a reasonable expectation of privacy. She also reminded Wardlaw that the Supreme Court had several times
[note 4]

rejected the test on which she read Wardlaw's opinion relying on, that governments must use
[3][20]

the least intrusive method of obtaining information available in order to protect employees' Fourth Amendment rights, a rule followed by seven other circuits as well.

Judge Wardlaw wrote a rare concurrence with the order, criticzing the dissent for ignoring the facts of the case. "[N]o poet ever interpreted nature as freely as Judge Ikuta interprets the record on this appeal", she said. As a matter of law, it was the dissenters, not her, who had ignored O'Connor: "By stripping public employees of all rights to privacy regardless of the actual operational realities of each workplace, the dissent would have us create a far broader rule than Supreme Court precedent allows. The majority of our court properly rejected the dissenting judge's efforts to do so." [edit]Certiorari
[20]

petition

Concurrent with the en banc petition, the appellees filed a certiorari petition to the Supreme Court, requesting it hear the case. They reiterated many of Ikuta's points, particularly her criticism of the panel's apparent adoption of the rejected leastintrusive-means test, and said it would be an "excellent vehicle" for revisiting O'Connor in light of new technology that complicated the workplace privacy issue. California Cities filed an amicus
[21]

A month later the California

[22]

State Association of Counties and League of

curiae brief in support of the petition making the same arguments, but in particular saying

the opinion mischaracterized the operational realities of the case.

Ontario vs. Quon

In opposition, Quon and the other respondents argued, as Wardlaw's concurrence had, that Ikuta and petitioners had greatly exaggerated the role that the less-intrusive-means test had played in the panel opinion, and that the facts of the case did not present any constitutional issues. agreed
[24] [23]

In a reply brief, the petitioners noted that other commentators on the case
[25]

that it had mistakenly applied the less-intrusive-means test.

Late that year, the Supreme Court granted certiorari to the city, OPD and Chief Scharf, making the case into Ontario v. Quon.
[15][26]

Kerr found this "an odd grant", since he had not expected the Supreme Court to find any issues making the case

worth hearing. He suspected the justices were responding to a common issue with cases from the Ninth Circuit, where the minority of judges with politically conservative leanings had reacted vigorously to a perceived excess on the part of the circuit's dominant liberals. [edit]Before
[27]

Oral arguments were scheduled for April, with a decision expected in June.[28]

the Court

The decision to hear Quon attracted attention from several quarters. It would be the first case touching on the workplace privacy rights of public employees since Von Raab, and raised the possibility that the Court would resolve the O'Connor conflict between Scalia's private-workplace standard and the plurality's "operational realities" consideration. It had not been an issue in the case, but Scalia was the only justice from that majority still on the court.
[29]

New justice Sonia

Sotomayor was expected to favor the city's side, since she had ruled for New York State's right to search an employee's [30] computer in a similar case as a judge on the Second Circuit.
Electronic privacy advocates agreed with Wardlaw that the case was a "new frontier" for Fourth Amendment jurisprudence, since personal communications technology had advanced considerably since 1987, intertwining personal and work lives much more closely. It was expected that the court's ruling, though it would only directly affect government workplaces, would have an impact on the private workplace as well. Kerr told The
[31][32]

New York Times that despite the novelty of the issue, he expected the resulting decision to be narrow due
[15]

to the unusual circumstances from which the case arose.

Elsewhere, he said the Court would be better off avoiding the

[14]

question of whether the department violated the privacy of the people Quon was texting due to the lack of clear precedent for such a ruling with older technologies and the minimal treatment of the issue in the lower-court opinions. [edit]Briefs The parties' briefs reiterated their earlier arguments. "The City and Department should not be punished because a legitimate workplace search happened to turn up sexually explicit messages that plaintiffs need not and should not have sent on government-issued equipment in the first place," the city stated.
[33]

The respondents urged the Court to use the case to adopt

[34]

the O'Connor plurality's "operational realities" standard, and set forth a more extensive response to the pettioners' claim that the text messages' status as public records was fatal to any reasonable expectation of privacy by any correspondent.

Amici briefs were filed by several interested organizations for both sides. The city was joined by the federal government,

General's office,[35] theNational League of Cities and other organizations representing [36] municipal and county governments and school-governance organizations led by the National School Boards [37] Association. All believed their ability to function effectively as government bodies would be impeded if the Ninth Circuit was upheld. The Los Angeles Times and other media organizations also urged reversal on the grounds that the public
represented by the Solicitor

Ontario vs. Quon

interest was served by as broad a definition of public records as possible, particularly where police operations were concerned.
[38] [39]

Weighing in on Quon's side was the AFL-CIO,

on behalf of those members of its constituent labor

unions who were

public employees. The New York Intellectual Property Law Association (NYIPLA), whose members litigate privacy claims, called on the Court to refrain from setting down any clear rules as technology, and social expectations of privacy related to it,

Privacy Information Center's brief, signed by technical experts as well as [41] lawyers, focused on the importance of data minimization to both security and privacy protection. The Electronic Frontier Foundation (EFF), American Civil Liberties Union, Center for Democracy and Technology andPublic Citizen filed a joint brief.[42] The conservative Rutherford Institute filed a motion requesting
were still evolving. leave to file their amicus in favor of respondents since one withheld permission. [edit]Oral
[43]

[40]

The Electronic

argument
Nicole Smith in Marshall v. Marshall,[44] and Deputy Solicitor General Neal Katyal argued
[45]

Oral arguments were heard on April 19, 2010. Kent Richland, the city's lawyer, who had previously argued before the
justices on behalf of Anna for petitioners; Dieter Dammeier, a former police officer himself, argued for Quon and the respondents.
[46]

Commentators, looking for signs as to how the Court would rule, felt the justices' questions suggested a narrow focus on the issue of whether the search was reasonable. Chief Justice sympathy for Quon's claims. work,
[49] [47][48]

John Roberts surprised some with his apparent strong

Orin Kerr noted the many questions asked about how the pagers and other technologies

and how that lack of familiarity reinforced, in his view, the need for caution, quoting from one of his own papers:
[50]

"Judges who attempt to use the Fourth Amendment to craft broad regulatory rules covering new technologies run an unusually high risk of crafting rules based on incorrect assumptions of context and technological practice." [edit]Petitioners During Richland's argument, the justices inquired closely about the city's contention that Quon had no reasonable expectation of privacy over his text messages. JusticeSotomayor asked Richland about a hypothetical scenario in which a sergeant knew that various officers engaged in sexually explicit texting with romantic partners and decided to look at the transcripts out of sheer salacity. "Does that officer have any expectation of privacy that his boss won't just listen in out of prurient interest?" Richland answered that the motive of the examiner should have no impact on a privacy expectation. "[W]hen the filthyminded police chief listens in, it's a very bad thing, but it's notit's not offending your right of privacy," concluded Justice Antonin Justice Ruth

Scalia.[51]

Bader Ginsburg asked how the OPD could have examined the transcripts lawfully if the SCA forbade their release. Richland replied that the statute was complex and highly technical, and cited the Court's 1980 United States v. Payner[52] to the effect that "a complicated law ... simply cannot be the basis for a reasonable expectation of privacy." [53] He
then turned over the rest of his time to Katyal. During the Deputy Solicitor General's argument, another recent appointee, Justice

Samuel Alito talked about the

[note 5]

uncertainties of modern communications technology. "There isn't a well-established understanding about what is private and what isn't private. It's a little different from putting garbage out in front of your house, which has happened for a long

time". After Katyal agreed that these things were "in flux" and thus the Court should avoid making any broadly applicable

Ontario vs. Quon

rules on the first hearing, Chief Justice John

Roberts speculated that that principle cut both ways and that perhaps the
[54]

Court should at least say the Constitution applied in this case and make rules later. [edit]Respondents When Dammeier argued for the respondents, Ginsburg and

Breyer pressed him on why it was unreasonable for the

department to review the content of the messages if it wanted to find out if it needed a higher character limit. The lawyer reiterated the jury's finding and said "they didn't need to do that". In response to further questioning from Breyer, he restated the other ways Judge Wardlaw had suggested the department could have obtained the information without reviewing the messages themselves. Justice Sotomayor was skeptical. "You're relying on the very person you're auditing to do the audit for you. That doesn't seem either practical or business-wise." Justice John
[55]

Paul Stevens brought up the issue of public review. His colleague Anthony Kennedy noted that attorneys cause for a police raid would probably request the pager messages among other things, which Quon

challenging probable

would certainly have been aware of, affecting his expectation of privacy. Dammeier responded that any mail he or anyone else sends would certainly be discoverable in litigation, but that possibility did not materially affect his expectation of privacy over it. He further reminded Scalia that in O'Connor the Court had found a reasonable expectation of privacy over the contents of a public employee's desk. Stevens pointed out that it was more likely that law enforcement communications would be reviewed by third parties than documents in doctors' desks. "I don't think we're taking away the government's ability to do searches under proper circumstances," Dammeier told him.
[56]

Dammeier addressed the SCA and Richland's argument that it was too complex to bear on the reasonableness of Quon's expectation of privacy. "It certainly may be not the end-all to the question, but it should be a factor in determining whether or not theres going to be an expectation of privacy." Scalia said he had not been aware of the statute, and as ked if it was reasonable to assume that Quon did. "Petitioners make an argument that because there is this California Public Records Act, that that may diminish one's expectation of privacy", Dammeier said. "Certainly, if we're going to have that, then we should also be having the Stored Communications Act."
[57]

The rest of Dammeier's argument was devoted to the issue of the other respondents' privacy expectations in communicating with Quon, after Sotomayor asked him if they could prevail even if Quon did not. Dammeier likened the department's actions to going to the post office to get letters sent to Quon instead of his house. Scalia pointed out that Quon could have obtained hard copies of the messages and circulated them himself. "[W]hen I get a piece of mail from somebody, I could do that as well," the lawyer replied, "but that doesn't mean that the government gets to go to the post office and get my mail before I get it". Richland replied in his rebuttal argument that "the truth is that all of these plaintiffs admitted that they knew that this was a department-issued pager, and this wasn't a post office." [edit]Decision The Court handed down its decision in June, near the end of its term. Unanimously, the justices ruled for the city that the review of the texts had been a reasonable work-related search, discussing the difficulties raised by the broader issues involved and ultimately declining to rule on them. Kennedy wrote the majority opinion; Scalia and Stevens added concurrences of their own. [edit]Majority
[58]

Ontario vs. Quon

Kennedy began by setting forth the facts of the case, its legal history and the relevant laws and precedent. In the opinion's third section, he cautiously considered the question of Quon's privacy expectation. "The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear," he observed, referencing the Court's Olmstead

v. United States decision in 1928,[59] in which it had permitted bootleggers under

[60]

warrantless wiretapping on the grounds that the wiretaps did not actually enter the property of the investigation, and the Katz

v. United States decision

which overruled it four decades later.

[61]

In that latter case, he wrote, the Court had the "knowledge and experience" to conclude that there was a reasonable expectation of privacy in a telephone booth. "It is not so clear that courts at present are on so sure a ground." He elaborated on these uncertainties, referring to the amici briefs filed by the EFF and NYIPLA: Prudence counsels caution before the facts in the instant case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communication devices. Rapid changes in the dynamics of communication and information transmission are evident not just in the technology itself but in what society accepts as proper behavior. As one amici brief notes, many employers expect or at least tolerate personal use of such equipment by employees because it often increases worker efficiency. At present, it is uncertain how workplace norms, and the law's treatment of them, will evolve. Even if the Court were certain that the O'Connor plurality's approach were the right one, the Court would have difficulty predicting how employees' privacy expectations will be shaped by those changes or the degree to which society will be prepared to recognize those expectations as reasonable. For instance, he noted that the ready availability of cell phones made them potentially "necessary instruments for selfexpression, even self-identification", strengthening a privacy claim. But at the same time they were affordable enough that anyone wanting one for such a purpose could buy their own rather than use one provided by an employer
[61]

"A broad holding concerning employees' privacy expectations vis--vis employer-provided technological equipment might have implications for future cases that cannot be predicted," Kennedy wrote. "It is preferable to dispose of this case on narrower grounds." He accepted, for argument's sake, three points: that Quon had a reasonable expectation of privacy in his pager messages, that the review of them constituted a search and that the same principles governing a physical search of a public employee's workspace applied to electronic privacy.
[61]

On those grounds, the search had been reasonable under O'Connor. Its inception, to see whether the city needed a higher character limit, was legitimately work-related. Review of the content of the messages was an "efficient and expedient" way of achieving that goal, Kennedy wrote. The OPD's decision to limit the review to just two months' worth of messages, and redact those sent when Quon was off duty further bolstered its case, he noted.
[61]

While Quon could have had some expectation of privacy, Kennedy continued, it could not have been enough to prevent a review of the messages. Not only had he been told of the possibility of an audit, but as a police officer "he would or should have known that his actions were likely to come under legal scrutiny, and that this might entail an analysis of his on-the-job communications." And, in particular, since the city had purchased pagers for SWAT team members to improve their performance in that capacity, it was reasonable to expect that the city might audit those pagers to assess the performance of both the units and the pagers in SWAT situations.
[61]

Ontario vs. Quon

Citing the same precedent cases that Ikuta had in her dissent from the rehearing denial, Kennedy said the Ninth Circuit erred in suggesting less intrusive means would have yielded the same information. After quoting from those cases to the effect that the text was not required and that letting judges apply it would make effective investigations almost impossible, he concluded that "[e]ven assuming there were ways that OPD could have performed the search that would have been less intrusive, it does not follow that the search as conducted was unreasonable."
[61]

He could not find any legal authority or precedent for the respondents' argument that the SCA violation, which was not before the Court, rendered the search per se unconstitutional. To the contrary, he pointed to the Virginia

v.

Moore case

[62]

decided the previous term, in which evidence from a search conducted after an illegal arrest was ruled

admissible since statutory violations did not inherently constitute Fourth Amendment violations. Nor would an SCA violation have rendered the actions of petitioners unconstitutional since they themselves did not violate it. "The otherwise reasonable search by OPD is not rendered unreasonable by the assumption that Arch Wireless violated the SCA by turning over the transcripts."
[61]

Lastly, he ruled that the other respondents beside Quon had not suffered a violation of their privacy. The respondents had, Kennedy wrote, simply argued that a violation of Quon's privacy necessarily violated that of those he exchanged messages with, and did not make a case that they could have suffered a violation even if Quon had not. Since the Court had found that Quon's Fourth Amendment rights were not violated, it therefore had to hold that the others' were not, either. [edit]Concurrences Stevens' brief concurrence approved of the Court's decision not to resolve the split in standards left by O'Connor. He noted that the facts of the case argued more strongly for the standard proposed by Justice
[61]

Harry Blackmun in his dissent, which

Stevens had joined. Blackmun had said the justices should adopt neither the plurality's "operational realities" standard nor Scalia's reasonable-in-the-private-sector alternative, but instead consider the circumstances of each particular search. In this case, he reiterated his line of reasoning from oral argument, that Quon's position as a police officer would have seriously limited his expectation of privacy.
[63]

Scalia, too, began by addressing O'Connor. The intervening years had not changed his position that the plurality's position in that case was "standardless and unsupported." Nor, a footnote responding to Stevens added, was the approach of that case's dissent relevant unless it was overruled at some point. Applying the test from his concurrence in that case to the instant case, he wrote, "the proper threshold inquiry should be not whether the Fourth Amendment applies to messages on public employees' employer-issued pagers, but whether it applies in general to such messages on employer-issued pagers." But it was unnecessary to answer that question since he agreed with the majority that the search had been reasonable.
[64]

Since, he felt, that was all the Court needed to say, the majority's "excursus on the complexity and consequences of answering ... that admittedly irrelevant threshold question" was similarly a waste of effort. "To whom do we owe an additional explanation for declining to decide an issue, once we have explained that it makes no difference?" He then excoriated the majority's "exaggerated" case for restraint: Applying the Fourth Amendment to new technologies may sometimes be difficult, but when it is necessary to decide a case we have no choice. The Court's implication ... that where electronic privacy is concerned we should decide less than we otherwise would (that is, less than the principle of law necessary to resolve the case and guide private action) or that we

Ontario vs. Quon

should hedge our bets by concocting case-specific standards or issuing opaque opinionsis in my view indefensible. Thetimes-they-are-a-changin' is a feeble excuse for disregard of duty. It was "a heavy-handed hint" to lower courts and future litigants that was likely to encourage even more such suits in the future. "In short, in saying why it is not saying more, the Court says much more than it should."
[64]

Lastly, he found it ironic that the Court had relied on the plurality standard in O'Connor, since its discussion would make it even harder to assess what the operating realities of the workplace were. "Any rule that requires evaluating whether a given gadget is a 'necessary instrumen[t] for self-expression, even self-identification,' on top of assessing the degree to which 'the law's treatment of [workplace norms has] evolve[d],' ... is (to put it mildly) unlikely to yield objective answers." [edit]Reaction Commentary on the decision focused on the broader issues the Court did not decide. A
[64]

New York Washington Post three weeks

Times editorial praised the majority's restraint.

later.
[66]

[65]

"Holding off from making broad pronouncements in the midst of a rapidly

changing technology environment is a wise display of restraint by the court," agreed The

The EFF likewise praised the limited scope of the decision and found "hopeful hints" in Kennedy's explanation of the

cautious approach suggesting that the Court would "cautiously make such decisions based on society's privacy expectations and its level of reliance on new communications technologies." It called on Congress to pass proposed legislation that addressed these issues. EPIC president Marc
[67]

Rotenberg was dismayed by the Court's caution. "[T]he court could have done what it has done in

the past and updated constitutional safeguards in light of new technology", as it did in Katz, he said in a letter responding to the Times editorial. That case had influenced privacy law internationally, and "the court's reluctance to assess these privacy issues also means that it will have less influence on other high courts that address similar questions." [edit]Subsequent
[68]

jurisprudence

Scalia's criticism was echoed by Eleventh

Circuit judge Frank M. Hull in a case reheard to take Quon into account. In March 2010, she had written for a panel decidingRehberg v. Paulk, a case in which a Georgia man had sued the Dougherty County district attorney alleging malicious prosecution for an investigation into harassing faxes sent to a local hospital. Rehberg had also claimed his privacy was violated by his Internet Service Provider's (ISP) release of his emails [69] from its server in response to asubpoena.
No appeals court had

yet been called upon to decide whether users had a reasonable expectation of privacy over the Circuit ruling on email addresses, to assert that there was no reasonable

content of email. Hull's opinion extrapolated from older precedents on postal and telephone communications, along with more recent cases from district courts and a Tenth

expectation of privacy over email content once it reached a third party's server, since it was transmitted from there to other servers and copied and archived along the way. There was at the time no settled law on the subject, and privacy advocates expressed concern and criticized the decision.
[70]

After Quon, the panel granted rehearing.

The new decision, handed down a month after Quon, followed it in declining to establish a precedent. "The Supreme Court's more-recent precedent shows a marked lack of clarity in what privacy expectations as to content of electronic communications are reasonable ... Given the lack of precedent, we now question whether it would be prudent in this case

Ontario vs. Quon

and on this limited factual record to establish broad precedent as to the reasonable privacy expectation in email content." The panel thus limited its decision to finding for the appellees on

qualified immunity grounds.[1] York Times Supreme Court reporter Adam

The criticism from within and without led to an article by New

Liptak finding Quon emblematic of two trends observers found increasingly problematic in Roberts Court opinions:
vagueness, and apparent unanimity undermined by multiple concurring opinions. It had been among the record 77% of unanimous decisions from the term with at least one concurrence; as for the former issue, he characterized Hull's description of Quon as calling it "almost aggressively unhelpful to lawyers and judges". [edit]Analysis A Harvard
[2]

and commentary

Law Review article was critical of the decision, concurring with Scalia and Hull that it provided "no helpful

guidance" to lower courts in resolving similar cases. "[I]ts reluctance to devise an intelligible principle for Fourth Amendment rights regarding technology will have the negative effect of causing lower courts to rely on O'Connor to an even greater extent, [allowing] judges ... to reach whatever conclusion they want. The Court should have ruled that public employees do not enjoy a reasonable expectation of privacy when sending text messages from government-issued devices."
[71]

The article noted the irony of Kennedy's musings about the difficulty of crafting privacy standards with technology evolving at a rapid pace when applied to a case that turned on text messages sent on "two-way pager devices that were issued to employees a decade ago and that would likely be deemed antiquated by today's teenagers and young professionals", who largely tend to use cell phones for texting. "Presumably, societal norms with respect to pagers are as developed as they will ever be." Nor could it see work-related employer-issued pagers or other devices being used for self-expressive purposes as Kennedy suggested, since they were functionally no different from any other such item a police department might issue to officers, "much like a police officer's patrol cruiser or sidearm".
[72]

It did concede that the conflict between the department's

[73]

written policy and Lt. Duke's verbal assurances to Quon made the issue more complex in this particular case.

The Court's apparent suggestion that "any technology can be seen as emerging", the Review suggested, would not only lead to muddled future jurisprudence, but was in contrast to various lower courts' more successful efforts to do so.
[note 6]

"While it

may be true that technological advances and the increased availability of advanced mobile handsets to individual consumers have blurred the line between private life and the workplace," the article concluded, "it does not necessarily follow that a user has a reasonable expectation of privacy on workplace equipment provided by the employer." As Kennedy had also noted, the proliferation of personal communications devices could make workers more respectful of those distinctions than less. The Review cited as an example the use of

webmail services from work computers by many people.[73]

Another commentator took it upon herself to address the issues the Court left unresolved, even before it had heard oral arguments. "Because this holding is so limited, it practically begs for a new case to address the issue more broadly", wrote Amanda Higgins of the Ninth Circuit's opinions, in the Oklahoma Journal of Law and Technology. She agreed with Ikuta's criticism of the panel decision, but argued that the panel should have devoted more attention to the larger issues of Quon's expectation of privacy. "To focus the analysis elsewhere is less than helpful in this already murky area of law."
[74]

The jury's finding that the audit was legitimately work-related and not an investigation of misconduct may ultimately have hurt the city, Higgins wrote, since it focused attention on whether it was necessary to read the messages. Had it been found to be investigatory, there would have been more grounds to rule the audit a reasonable search. Other public employers facing

Ontario vs. Quon

similar litigation "will want to get on the court record that their search was for some purpose that will not only pass as reasonable at its inception under the facts of the case ... and will also allow the court to find that the actual method was not excessive in relation to the purpose." They would be best served, she concluded, by making clear, explicit policies on personal use of communications devices and rigorously enforcing those policies. Informal policies in partial or complete conflict with formal ones had created problems for employers in other areas of the law, and it was better to prevent such lawsuits from arising altogether.
[75]

Chavez vs. Gonzales

EN BANC x---------------------------------------------------------------------------------x

FRANCISCO CHAVEZ, Petitioner,

G.R. No. 168338 Present: PUNO, C.J., QUISUMBING, YNARES-SANTIAGO, SANDOVAL-GUTIERREZ, CARPIO, AUSTRIA-MARTINEZ, CORONA, CARPIO MORALES, AZCUNA, TINGA, CHICO-NAZARIO, VELASCO, JR., NACHURA, REYES, and LEONARDO-DE CASTRO, JJ.

- versus -

DECISI ON
PUNO, C.J.: A. Precis

In this jurisdiction, it is established that freedom of the press is crucial and so Promulgated: inextricably February 15, 2008 woven into the right to free speech and free expression, that any attempt to restrict it must be met with an examination so critical that only a danger that is clear and present would be allowed to curtail it. RAUL M. GONZALES, in his capacity as the Secretary of the Department of Justice; and NATIONAL TELECOMMUNICATIONS COMMISSION (NTC), Respondents. Indeed, we have not wavered in the duty to uphold this cherished freedom. We have struck down laws and issuances meant to curtail this right, as in Adiong v. COMELEC,[1] Burgos v. Chief of Staff,[2] Social Weather Stations v. COMELEC,[3] and Bayan v. Executive Secretary Ermita.[4] When on its face, it is clear that a governmental act is nothing more than a naked means to prevent the free exercise of speech, it must be nullified. B. The Facts 1. The case originates from events that occurred a year after the 2004 national and local elections. On June 5, 2005, Press Secretary Ignacio Bunye told reporters that the opposition

Chavez vs. Gonzales

was planning to destabilize the administration by releasing an audiotape of a mobile phone conversation allegedly between the President of the Philippines, Gloria Macapagal Arroyo, and a high-ranking official of the Commission on Elections (COMELEC). The conversation was audiotaped allegedly through wire-tapping.[5] Later, in a Malacaang press briefing, Secretary Bunye produced two versions of the tape, one supposedly the complete version, and the other, a spliced, doctored or altered version, which would suggest that the President had instructed the COMELEC official to manipulate the election results in the Presidents favor. [6] It seems that Secretary Bunye admitted that the voice was that of President Arroyo, but subsequently made a retraction. [7] 2. On June 7, 2005, former counsel of deposed President Joseph Estrada, Atty. Alan Paguia, subsequently released an alleged authentic tape recording of the wiretap. Included in the tapes were purported conversations of the President, the First Gentleman Jose Miguel Arroyo, COMELEC Commissioner Garcillano, and the late Senator Barbers.[8] 3. On June 8, 2005, respondent Department of Justice (DOJ) Secretary Raul Gonzales warned reporters that those who had copies of the compact disc (CD) and those broadcasting or publishing its contents could be held liable under the Anti-Wiretapping Act. These persons included Secretary Bunye and Atty. Paguia. He also stated that persons possessing or airing said tapes were committing a continuing offense, subject to arrest by anybody who had personal knowledge if the crime was committed or was being committed in their presence.[9] 4. On June 9, 2005, in another press briefing, Secretary Gonzales ordered the National Bureau of Investigation (NBI) to go after media organizations found to have caused the spread, the playing and the printing of the contents of a tape of an alleged wiretapped conversation involving the President about fixing votes in the 2004 national elections. Gonzales said that he was going to start with Inq7.net, a joint venture between thePhilippine Daily Inquirer and GMA7 television network, because by the very nature of the Internet medium, it was able to disseminate the contents of the tape more widely. He then expressed his intention of inviting the editors and managers of Inq7.net and GMA7 to a probe, and supposedly declared, I [have] asked the NBI to conduct a tactical interrogation of all concerned. [10] 5. On June 11, 2005, the NTC issued this press release: [11]
NTC GIVES FAIR WARNING TO RADIO AND TELEVISION OWNERS/OPERATORS TO OBSERVE ANTI-WIRETAPPING LAW AND PERTINENT CIRCULARS ON PROGRAM STANDARDS xxx xxx xxx

Chavez vs. Gonzales

Taking into consideration the countrys unusual situation, and in order not to unnecessarily aggravate the same, the NTC warns all radio stations and television network owners/operators that the conditions of the authorization and permits issued to them by Government like the Provisional Authority and/or Certificate of Authority explicitly provides that said companies shall not use [their] stations for the broadcasting or telecasting of false information or willful misrepresentation. Relative thereto, it has come to the attention of the [NTC] that certain personalities are in possession of alleged taped conversations which they claim involve the President of the Philippines and a Commissioner of the COMELEC regarding supposed violation of election laws. These personalities have admitted that the taped conversations are products of illegal wiretapping operations. Considering that these taped conversations have not been duly authenticated nor could it be said at this time that the tapes contain an accurate or truthful representation of what was recorded therein, it is the position of the [NTC] that the continuous airing or broadcast of the said taped conversations by radio and television stations is a continuing violation of the Anti-Wiretapping Law and the conditions of the Provisional Authority and/or Certificate of Authority issued to these radio and television stations. It has been subsequently established that the said tapes are false and/or fraudulent after a prosecution or appropriate investigation, the concerned radio and television companies are hereby warned that their broadcast/airing of such false information and/or willful misrepresentation shall be just cause for the suspension, revocation and/or cancellation of the licenses or authorizations issued to the said companies. In addition to the above, the [NTC] reiterates the pertinent NTC circulars on program standards to be observed by radio and television stations. NTC Memorandum Circular 111-12-85 explicitly states, among others, that all radio broadcasting and television stations shall, during any broadcast or telecast, cut off from the air the speech, play, act or scene or other matters being broadcast or telecast the tendency thereof is to disseminate false information or such other willful misrepresentation, or to propose and/or incite treason, rebellion or sedition. The foregoing directive had been reiterated by NTC Memorandum Circular No. 22-89, which, in addition thereto, prohibited radio, broadcasting and television stations from using their stations to broadcast or telecast any speech, language or scene disseminating false information or willful misrepresentation, or inciting, encouraging or assisting in subversive or treasonable acts. The [NTC] will not hesitate, after observing the requirements of due process, to apply with full force the provisions of said Circulars and their accompanying sanctions on erring radio and television stations and their owners/operators.

Chavez vs. Gonzales

6. On June 14, 2005, NTC held a dialogue with the Board of Directors of the Kapisanan ng mga Brodkaster sa Pilipinas (KBP). NTC allegedly assured the KBP that the press release did not violate the constitutional freedom of speech, of expression, and of the press, and the right to information. Accordingly, NTC and KBP issued a Joint Press Statement which states, among others, that: [12] NTC respects and will not hinder freedom of the press and the right to information on matters of public concern. KBP & its members have always been committed to the exercise of press freedom with high sense of responsibility and discerning judgment of fairness and honesty. NTC did not issue any MC [Memorandum Circular] or Order constituting a restraint of press freedom or censorship. The NTC further denies and does not intend to limit or restrict the interview of members of the opposition or free expression of views. What is being asked by NTC is that the exercise of press freedom [be] done responsibly. KBP has program standards that KBP members will observe in the treatment of news and public affairs programs. These include verification of sources, non-airing of materials that would constitute inciting to sedition and/or rebellion. The KBP Codes also require that no false statement or willful misrepresentation is made in the treatment of news or commentaries. The supposed wiretapped tapes should be treated with sensitivity and handled responsibly giving due consideration to the process being undertaken to verify and validate the authenticity and actual content of the same.

C. The Petition Petitioner Chavez filed a petition under Rule 65 of the Rules of Court against respondents Secretary Gonzales and the NTC, praying for the issuance of the writs of certiorari and prohibition, as extraordinary legal remedies, to annul void proceedings, and to prevent the unlawful, unconstitutional and oppressive exercise of authority by the respondents.[13]

Chavez vs. Gonzales

Alleging that the acts of respondents are violations of the freedom on expression and of the press, and the right of the people to information on matters of public concern, [14] petitioner specifically asked this Court: [F]or [the] nullification of acts, issuances, and orders of respondents committed or made since June 6, 2005 until the present that curtail the publics rights to freedom of expression and of the press, and to information on matters of public concern specifically in relation to information regarding the controversial taped conversion of President Arroyo and for prohibition of the further commission of such acts, and making of such issuances, and orders by respondents. [15] Respondents[16] denied that the acts transgress the Constitution, and questioned petitioners legal standing to file the petition. Among the arguments they raised as to the validity of the fair warning issued by respondent NTC, is that broadcast media enjoy lesser constitutional guarantees compared to print media, and the warning was issued pursuant to the NTCs mandate to regulate the telecommunications industry. [17] It was also stressed that most of the [television] and rad io stations continue, even to this date, to air the tapes, but of late within the parameters agreed upon between the NTC and KBP. [18] D. THE PROCEDURAL THRESHOLD: LEGAL STANDING To be sure, the circumstances of this case make the constitutional challenge peculiar. Petitioner, who is not a member of the broadcast media, prays that we strike down the acts and statements made by respondents as violations of the right to free speech, free expression and a free press. For another, the recipients of the press statements have not come forward neither intervening nor joining petitioner in this action. Indeed, as a group, they issued a joint statement with respondent NTC that does not complain about restraints on freedom of the press. It would seem, then, that petitioner has not met the requisite legal standing, having failed to allege such a personal stake in the outcome of the controversy as to assure that co ncrete adverseness which sharpens the presentation of issues upon which the Court so largely depends for illumination of difficult constitutional questions. [19] But as early as half a century ago, we have already held that where serious constitutional questions are involved, the transcendental importance to the public of these cases demands that they be settled promptly and definitely, brushing aside if we must, technicalities of procedure. [20] Subsequently, this Court has repeatedly and consistently refused to wield procedural barriers as impediments to its addressing and resolving serious legal questions that greatly impact on public interest,[21] in keeping with the Court's duty under the 1987 Constitution

Chavez vs. Gonzales

to determine whether or not other branches of government have kept themselves within the limits of the Constitution and the laws and that they have not abused the discretion given to them. Thus, in line with the liberal policy of this Court on locus standi when a case involves an issue of overarching significance to our society,[22] we therefore brush aside technicalities of procedure and take cognizance of this petition,[23] seeing as it involves a challenge to the most exalted of all the civil rights, the freedom of expression. The petition raises other issues like the extent of the right to information of the public. It is fundamental, however, that we need not address all issues but only the most decisive one which in the case at bar is whether the acts of the respondents abridge freedom of speech and of the press. But aside from the primordial issue of determining whether free speech and freedom of the press have been infringed, the case at bar also gives this Court the opportunity: (1) to distill the essence of freedom of speech and of the press now beclouded by the vagaries of motherhood statements; (2) to clarify the types of speeches and their differing restraints allowed by law; (3) to discuss the core concepts of prior restraint, content-neutral and content-based regulations and their constitutional standard of review; (4) to examine the historical difference in the treatment of restraints between print and broadcast media and stress the standard of review governing both; and (5) to call attention to the ongoing blurring of the lines of distinction between print and broadcast media.

E. RE-EXAMINING THE LAW ON FREEDOM OF SPEECH, OF EXPRESSION AND OF THE PRESS No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.[24] Freedom of expression has gained recognition as a fundamental principle of every democratic government, and given a preferred right that stands on a higher level than substantive economic freedom or other liberties. The cognate rights codified by Article III, Section 4 of the Constitution, copied almost verbatim from the First Amendment of the U.S. Bill of Rights, [25] were considered the necessary consequence of republican institutions and the complement of free speech.[26] This preferred status of free speech has also been codified at the international level, its recognition now enshrined in international law as a customary norm that binds all nations. [27] In the Philippines, the primacy and high esteem accorded freedom of expression is a fundamental postulate of our constitutional system. [28] This right was elevated to constitutional

Chavez vs. Gonzales

status in the 1935, the 1973 and the 1987 Constitutions, reflecting our own lesson of history, both political and legal, that freedom of speech is an indispensable condition for nearly every other form of freedom.[29] Moreover, our history shows that the struggle to protect the freedom of speech, expression and the press was, at bottom, the struggle for the indispensable preconditions for the exercise of other freedoms.[30] For it is only when the people have unbridled access to information and the press that they will be capable of rendering enlightened judgments. In the oftquoted words of Thomas Jefferson, we cannot both be free and ignorant. E.1. ABSTRACTION OF FREE SPEECH Surrounding the freedom of speech clause are various concepts that we have adopted as part and parcel of our own Bill of Rights provision on this basic freedom. [31] What is embraced under this provision was discussed exhaustively by the Court in Gonzales v. Commission on Elections, [32] in which it was held: At the very least, free speech and free press may be identified with the liberty to discuss publicly and truthfully any matter of public interest without censorship and punishment. There is to be no previous restraint on the communication of views or subsequent liability whether in libel suits, prosecution for sedition, or action for damages, or contempt proceedings unless there be a clear and present danger of substantive evil that Congress has a right to prevent. [33] Gonzales further explained that the vital need of a constitutional democracy for freedom of expression is undeniable, whether as a means of assuring individual self-fulfillment; of attaining the truth; of assuring participation by the people in social, including political, decision-making; and of maintaining the balance between stability and change.[34] As early as the 1920s, the trend as reflected in Philippine and American decisions was to recognize the broadest scope and assure the widest latitude for this constitutional guarantee. The trend represents a profound commitment to the principle that debate on public issue should be uninhibited, robust, and wide-open. [35] Freedom of speech and of the press means something more than the right to approve existing political beliefs or economic arrangements, to lend support to official measures, and to take refuge in the existing climate of opinion on any matter of public consequence. [36] When atrophied, the right becomes meaningless.[37] The right belongs as well -- if not more to those who question, who do not conform, who differ.[38] The ideas that may be expressed under this freedom are confined not only to those that are conventional or acceptable to the majority. To be truly meaningful, freedom of speech and of the press should allow and even encourage the articulation of the unorthodox view, though it be hostile to or derided by others; or though such view induces a condition of unrest, creates dissatisfaction with conditions as they are, or even

Chavez vs. Gonzales

stirs people to anger.[39] To paraphrase Justice Holmes, it is freedom for the thought that we hate, no less than for the thought that agrees with us. [40] The scope of freedom of expression is so broad that it extends protection to nearly all forms of communication. It protects speech, print and assembly regarding secular as well as political causes, and is not confined to any particular field of human interest. The protection covers myriad matters of public interest or concern embracing all issues, about which information is needed or appropriate, so as to enable members of society to cope with the exigencies of their period. The constitutional protection assures the broadest possible exercise of free speech and free press for religious, political, economic, scientific, news, or informational ends, inasmuch as the Constitution's basic guarantee of freedom to advocate ideas is not confined to the expression of ideas that are conventional or shared by a majority. The constitutional protection is not limited to the exposition of ideas. The protection afforded free speech extends to speech or publications that are entertaining as well as instructive or informative. Specifically, in Eastern Broadcasting Corporation (DYRE) v. Dans,[41] this Court stated that all forms of media, whether print or broadcast, are entitled to the broad protection of the clause on freedom of speech and of expression. While all forms of communication are entitled to the broad protection of freedom of expression clause, the freedom of film, television and radio broadcasting is somewhat lesser in scope than the freedom accorded to newspapers and other print media, as will be subsequently discussed. E.2. DIFFERENTIATION: THE LIMITS & RESTRAINTS OF FREE SPEECH From the language of the specific constitutional provision, it would appear that the right to free speech and a free press is not susceptible of any limitation. But the realities of life in a complex society preclude a literal interpretation of the provision prohibiting the passage of a law that would abridge such freedom. For freedom of expression is not an absolute, [42] nor is it an unbridled license that gives immunity for every possible use of language and prevents the punishment of those who abuse this freedom. Thus, all speech are not treated the same. Some types of speech may be subjected to some regulation by the State under its pervasive police power, in order that it may not be injurious to the equal right of others or those of the community or society. [43] The difference in treatment is expected because the relevant interests of one type of speech, e.g., political speech, may vary from those of another, e.g., obscene speech. Distinctions have therefore been made in the treatment,

Chavez vs. Gonzales

analysis, and evaluation of the permissible scope of restrictions on various categories of speech. [44] We have ruled, for example, that in our jurisdiction slander or libel, lewd and obscene speech, as well as fighting words are not entitled to constitutional protection and may be penalized.[45] Moreover, the techniques of reviewing alleged restrictions on speech (overbreadth, vagueness, and so on) have been applied differently to each category, either consciously or unconsciously. [46] A study of free speech jurisprudencewhether here or abroadwill reveal that courts have developed different tests as to specific types or categories of speech in concrete situations; i.e., subversive speech; obscene speech; the speech of the broadcast media and of the traditional print media; libelous speech; speech affecting associational rights; speech before hostile audiences; symbolic speech; speech that affects the right to a fair trial; and speech associated with rights of assembly and petition. [47] Generally, restraints on freedom of speech and expression are evaluated by either or a combination of three tests, i.e., (a) the dangerous tendency doctrine which permits limitations on speech once a rational connection has been established between the speech restrained and the danger contemplated;[48] (b) the balancing of interests tests, used as a standard when courts need to balance conflicting social values and individual interests, and requires a conscious and detailed consideration of the interplay of interests observable in a given situation of type of situation; [49] and (c) the clear and present danger rule which rests on the premise that speech may be restrained because there is substantial danger that the speech will likely lead to an evil the government has a right to prevent. This rule requires that the evil consequences sought to be prevented must be substantive, extremely serious and the degree of imminence extremely high. [50] As articulated in our jurisprudence, we have applied either the dangerous tendency doctrine or clear and present danger test to resolve free speech challenges. More recently, we have concluded that we have generally adhered to the clear and present danger test. [51] E.3. IN FOCUS: FREEDOM OF THE PRESS Much has been written on the philosophical basis of press freedom as part of the larger right of free discussion and expression. Its practical importance, though, is more easily grasped. It is the chief source of information on current affairs. It is the most pervasive and perhaps most powerful vehicle of opinion on public questions. It is the instrument by which citizens keep their government informed of their needs, their aspirations and their grievances. It is the sharpest weapon in the fight to keep government responsible and efficient. Without a vigilant press, the

Chavez vs. Gonzales

mistakes of every administration would go uncorrected and its abuses unexposed. As Justice Malcolm wrote in United States v. Bustos:[52] The interest of society and the maintenance of good government demand a full discussion of public affairs. Complete liberty to comment on the conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in public life may suffer under a hostile and unjust accusation; the wound can be assuaged with the balm of clear conscience. Its contribution to the public weal makes freedom of the press deserving of extra protection. Indeed, the press benefits from certain ancillary rights. The productions of writers are classified as intellectual and proprietary. Persons who interfere or defeat the freedom to write for the press or to maintain a periodical publication are liable for damages, be they private individuals or public officials. E.4. ANATOMY OF RESTRICTIONS: PRIOR RESTRAINT, CONTENT-NEUTRAL AND CONTENT-BASED REGULATIONS Philippine jurisprudence, even as early as the period under the 1935 Constitution, has recognized four aspects of freedom of the press. These are (1) freedom from prior restraint; (2) freedom from punishment subsequent to publication; [53] (3) freedom of access to information; [54] and (4) freedom of circulation.[55] Considering that petitioner has argued that respondents press statement constitutes a form of impermissible prior restraint, a closer scrutiny of this principle is in order, as well as its sub-specie of content-based (as distinguished from content-neutral) regulations. At this point, it should be noted that respondents in this case deny that their acts constitute prior restraints. This presents a unique tinge to the present challenge, considering that the cases in our jurisdiction involving prior restrictions on speech never had any issue of whether the governmental act or issuanceactually constituted prior restraint. Rather, the determinations were always about whether the restraint was justified by the Constitution. Be that as it may, the determination in every case of whether there is an impermissible restraint on the freedom of speech has always been based on the circumstances of each case, including the nature of the restraint. And in its application in our jurisdiction, the parameters of this principle have been etched on a case-to-case basis, always tested by scrutinizing the governmental issuance or act against the circumstances in which they operate, and then determining the appropriate test with which to evaluate.

Chavez vs. Gonzales

Prior restraint refers to official governmental restrictions on the press or other forms of expression in advance of actual publication or dissemination.[56] Freedom from prior restraint is largely freedom from government censorship of publications, whatever the form of censorship, and regardless of whether it is wielded by the executive, legislative or judicial branch of the government. Thus, it precludes governmental acts that required approval of a proposal to publish; licensing or permits as prerequisites to publication including the payment of license taxes for the privilege to publish; and even injunctions against publication. Even the closure of the business and printing offices of certain newspapers, resulting in the discontinuation of theirprinting and publication, are deemed as previous restraint or censorship. [57] Any law or official that requires some form of permission to be had before publication can be made, commits an infringement of the constitutional right, and remedy can be had at the courts. Given that deeply ensconced in our fundamental law is the hostility against all prior restraints on speech, and any act that restrains speech is presumed invalid,[58] and any act that restrains speech is hobbled by the presumption of invalidity and should be greeted with furrowed brows, [59] it is important to stress not all prior restraints on speech are invalid. Certain previous restraints may be permitted by the Constitution, but determined only upon a careful evaluation of the challenged act as against the appropriate test by which it should be measured against. Hence, it is not enough to determine whether the challenged act constitutes some form of restraint on freedom of speech. A distinction has to be made whether the restraint is (1) a contentneutral regulation, i.e., merely concerned with the incidents of the speech, or one that merely controls the time, place or manner, and under well defined standards;[60] or (2) a contentbased restraint or censorship, i.e., the restriction is based on the subject matter of the utterance or speech. [61] The cast of the restriction determines the test by which the challenged act is assayed with. When the speech restraints take the form of a content-neutral regulation, only a substantial governmental interest is required for its validity.[62] Because regulations of this type are not designed to suppress any particular message, they are not subject to the strictest form of judicial scrutiny but anintermediate approachsomewhere between the mere rationality that is required of any other law and the compelling interest standard applied to content-based restrictions.[63] The test is called intermediate because the Court will not merely rubberstamp the validity of a law but also require that the restrictions be narrowly-tailored to promote an important or significant governmental interest that is unrelated to the suppression of expression. The intermediate approach has been formulated in this manner:

Chavez vs. Gonzales

A governmental regulation is sufficiently justified if it is within the constitutional power of the Government, if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incident restriction on alleged [freedom of speech & expression] is no greater than is essential to the furtherance of that interest. [64] On the other hand, a governmental action that restricts freedom of speech or of the press based on content is given the strictest scrutiny in light of its inherent and invasive impact. Only when the challenged act has overcome the clear and present danger rule will it pass constitutional muster,[65] with the government having the burden of overcoming the presumed unconstitutionality. Unless the government can overthrow this presumption, the content-based restraint will be struck down.[66] With respect to content-based restrictions, the government must also show the type of harm the speech sought to be restrained would bring about especially the gravity and the imminence of the threatened harm otherwise the prior restraint will be invalid. Prior restraint on speech based on its content cannot be justified by hypothetical fears, but only by showing a substantive and imminent evil that has taken the life of a reality already on ground. [67] As formulated, the question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.[68] The regulation which restricts the speech content must also serve an important or substantial government interest, which is unrelated to the suppression of free expression. [69] Also, the incidental restriction on speech must be no greater than what is essential to the furtherance of that interest. [70] A restriction that is so broad that it encompasses more than what is required to satisfy the governmental interest will be invalidated. [71] The regulation, therefore, must be reasonable and narrowly drawn to fit the regulatory purpose, with the least restrictive means undertaken. [72] Thus, when the prior restraint partakes of a content-neutral regulation, it is subjected to an intermediate review. A content-based regulation,[73]however, bears a heavy presumption of invalidity and is measured against the clear and present danger rule. The latter will pass constitutional muster only if justified by a compelling reason, and the restrictions imposed are neither overbroad nor vague. [74]

Chavez vs. Gonzales

Applying the foregoing, it is clear that the challenged acts in the case at bar need to be subjected to the clear and present danger rule, as they arecontent-based restrictions. The acts of respondents focused solely on but one object a specific content fixed as these were on the alleged taped conversations between the President and a COMELEC official. Undoubtedly these did not merely provide regulations as to the time, place or manner of the dissemination of speech or expression. E.5. Dichotomy of Free Press: Print v. Broadcast Media Finally, comes respondents argument that the challenged act is valid on the ground that broadcast media enjoys free speech rights that are lesser in scope to that of print media. We next explore and test the validity of this argument, insofar as it has been invoked to validate a contentbased restriction on broadcast media. The regimes presently in place for each type of media differ from one other. Contrasted with the regime in respect of books, newspapers, magazines and traditional printed matter, broadcasting, film and video have been subjected to regulatory schemes. The dichotomy between print and broadcast media traces its origins in the United States. There, broadcast radio and television have been held to havelimited First Amendment protection,[75] and U.S. Courts have excluded broadcast media from the application of the strict scrutiny standard that they would otherwise apply to content-based restrictions.[76] According to U.S. Courts, the three major reasons why broadcast media stands apart from print media are: (a) the scarcity of the frequencies by which the medium operates [i.e., airwaves are physically limited while print medium may be limitless]; [77] (b) its pervasiveness as a medium; and (c) its unique accessibility to children.[78] Because cases involving broadcast media need not follow precisely the same approach that [U.S. courts] have applied to other media, nor go so far as to demand that such regulations serve compelling government interests, [79] they are decided on whether the governmental restriction is narrowly tailored to further a substantial governmental interest,[80]or the intermediate test. As pointed out by respondents, Philippine jurisprudence has also echoed a differentiation in treatment between broadcast and print media. Nevertheless, a review of Philippine case law on broadcast media will show thatas we have deviated with the American conception of the Bill of Rights[81] we likewise did not adopt en masse the U.S. conception of free speech as it relates to broadcast media, particularly as to which test would govern content-based prior restraints.

Chavez vs. Gonzales

Our cases show two distinct features of this dichotomy. First, the difference in treatment, in the main, is in the regulatory scheme applied to broadcast media that is not imposed on traditional print media, and narrowly confined to unprotected speech (e.g., obscenity, pornography, seditious and inciting speech), or is based on a compelling government interest that also has constitutional protection, such as national security or the electoral process. Second, regardless of the regulatory schemes that broadcast media is subjected to, the Court has consistently held that the clear and present danger test applies to content-based restrictions on media, without making a distinction as to traditional print or broadcast media. The distinction between broadcast and traditional print media was first enunciated in Eastern Broadcasting Corporation (DYRE) v. Dans,[82] wherein it was held that [a]ll forms of media, whether print or broadcast, are entitled to the broad protection of the freedom of speech and expression clause. The test for limitations on freedom of expression continues to be the clear and present danger rule[83] Dans was a case filed to compel the reopening of a radio station which had been summarily closed on grounds of national security. Although the issue had become moot and academic because the owners were no longer interested to reopen, the Court still proceeded to do an analysis of the case and made formulations to serve as guidelines for all inferior courts and bodies exercising quasi-judicial functions. Particularly, the Court made a detailed exposition as to what needs be considered in cases involving broadcast media. Thus:[84]
xxx (3) xxx xxx

All forms of media, whether print or broadcast, are entitled to the broad protection of the freedom of speech and expression clause. The test for limitations on freedom of expression continues to be the clear and present danger rule, that words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that the lawmaker has a right to prevent, In hisConstitution of the Philippines (2nd Edition, pp. 569-570) Chief Justice Enrique M. Fernando cites at least nine of our decisions which apply the test. More recently, the clear and present danger test was applied in J.B.L. Reyes in behalf of the Anti-Bases Coalition v. Bagatsing. (4) The clear and present danger test, however, does not lend itself to a simplistic and all embracing interpretation applicable to all utterances in all forums. Broadcasting has to be licensed. Airwave frequencies have to be allocated among qualified users. A broadcast corporation cannot simply appropriate a certain frequency without regard for government regulation or for the rights of others.

Chavez vs. Gonzales

All forms of communication are entitled to the broad protection of the freedom of expression clause. Necessarily, however, the freedom of television and radio broadcasting is somewhat lesser in scope than the freedom accorded to newspaper and print media. The American Court in Federal Communications Commission v. Pacifica Foundation (438 U.S. 726), confronted with a patently offensive and indecent regular radio program, explained why radio broadcasting, more than other forms of communications, receives the most limited protection from the free expression clause. First, broadcast media have established a uniquely pervasive presence in the lives of all citizens, Material presented over the airwaves confronts the citizen, not only in public, but in the privacy of his home. Second, broadcasting is uniquely accessible to children. Bookstores and motion picture theaters may be prohibited from making certain material available to children, but the same selectivity cannot be done in radio or television, where the listener or viewer is constantly tuning in and out. Similar considerations apply in the area of national security. The broadcast media have also established a uniquely pervasive presence in the lives of all Filipinos. Newspapers and current books are found only in metropolitan areas and in the poblaciones of municipalities accessible to fast and regular transportation. Even here, there are low income masses who find the cost of books, newspapers, and magazines beyond their humble means. Basic needs like food and shelter perforce enjoy high priorities. On the other hand, the transistor radio is found everywhere. The television set is also becoming universal. Their message may be simultaneously received by a national or regional audience of listeners including the indifferent or unwilling who happen to be within reach of a blaring radio or television set. The materials broadcast over the airwaves reach every person of every age, persons of varying susceptibilities to persuasion, persons of different I.Q.s and mental capabilities, persons whose reactions to inflammatory or offensive speech would be difficult to monitor or predict. The impact of the vibrant speech is forceful and immediate. Unlike readers of the printed work, the radio audience has lesser opportunity to cogitate analyze, and reject the utterance. (5) The clear and present danger test, therefore, must take the particular circumstances of broadcast media into account. The supervision of radio stations-whether by government or through self-regulation by the industry itself calls for thoughtful, intelligent and sophisticated handling. The government has a right to be protected against broadcasts which incite the listeners to violently overthrow it. Radio and television may not be used to organize a rebellion or to signal the start of widespread uprising. At the same time, the people have a right to be informed. Radio and television would have little reason for existence if broadcasts are limited to bland, obsequious, or pleasantly entertaining utterances. Since they are the most convenient and popular means of disseminating varying views on public issues, they also deserve special protection.

Chavez vs. Gonzales

(6)

The freedom to comment on public affairs is essential to the vitality of a representative democracy. In the 1918 case of United States v. Bustos (37 Phil. 731) this Court was already stressing that. The interest of society and the maintenance of good government demand a full discussion of public affairs. Complete liberty to comment on the conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in public life may suffer under a hostile and an unjust accusation; the wound can be assuaged with the balm of a clear conscience. A public officer must not be too thin-skinned with reference to comment upon his official acts. Only thus can the intelligence and dignity of the individual be exalted.

(7)

Broadcast stations deserve the special protection given to all forms of media by the due process and freedom of expression clauses of the Constitution. [Citations omitted]

It is interesting to note that the Court in Dans adopted the arguments found in U.S. jurisprudence to justify differentiation of treatment (i.e., the scarcity, pervasiveness and accessibility to children), but only after categorically declaring that the test for limitations on freedom of expression continues to be the clear and present danger rule, for all forms of media, whether print or broadcast. Indeed, a close reading of the above-quoted provisions would show that the differentiation that the Court in Dans referred to was narrowly restricted to what is otherwise deemed as unprotected speech (e.g., obscenity, national security, seditious and inciting speech), or to validate a licensing or regulatory scheme necessary to allocate the limited broadcast frequencies, which is absent in print media. Thus, when this Court declared in Dans that the freedom given to broadcast media was somewhat lesser in scope than the freedom accorded to newspaper and print media, it was not as to what test should be appl ied, but the context by which requirements of licensing, allocation of airwaves, and application of norms to unprotected speech. [85] In the same year that the Dans case was decided, it was reiterated in Gonzales v. Katigbak,[86] that the test to determine free expression challenges was the clear and present danger, again without distinguishing the media.[87] Katigbak, strictly speaking, does not treat of broadcast media but motion pictures. Although the issue involved obscenity standards as applied to movies,[88] the Court concluded its decision with the following obiter dictum that a less liberal approach would be used to resolve obscenity issues in television as opposed to motion pictures: All that remains to be said is that the ruling is to be limited to the concept of obscenity applicable to motion pictures. It is the consensus of this Court that where television is concerned, a less liberal approach calls for observance. This is so because unlike motion pictures where the patrons have to pay their way, television reaches every home where there is a set. Children then will likely be among the

Chavez vs. Gonzales

avid viewers of the programs therein shown..It cannot be denied though that the State as parens patriae is called upon to manifest an attitude of caring for the welfare of the young. More recently, in resolving a case involving the conduct of exit polls and dissemination of the results by a broadcast company, we reiterated that the clear and present danger rule is the test we unquestionably adhere to issues that involve freedoms of speech and of the press.[89] This is not to suggest, however, that the clear and present danger rule has been applied to all cases that involve the broadcast media. The rule applies to all media, including broadcast, but only when the challenged act is a content-based regulation that infringes on free speech, expression and the press. Indeed, in Osmena v. COMELEC,[90] which also involved broadcast media, the Court refused to apply the clear and present danger rule to a COMELEC regulation of time and manner of advertising of political advertisements because the challenged restriction was content-neutral.[91] And in a case involving due process and equal protection issues, the Court in Telecommunications and Broadcast Attorneys of the Philippines v. COMELEC [92] treated a restriction imposed on a broadcast media as a reasonable condition for the grant of the medias franchise, without going into which test would apply. That broadcast media is subject to a regulatory regime absent in print media is observed also in other jurisdictions, where the statutory regimes in place over broadcast media include elements of licensing, regulation by administrative bodies, and censorship. As explained by a British author: The reasons behind treating broadcast and films differently from the print media differ in a number of respects, but have a common historical basis. The stricter system of controls seems to have been adopted in answer to the view that owing to their particular impact on audiences, films, videos and broadcasting require a system of prior restraints, whereas it is now accepted that books and other printed media do not. These media are viewed as beneficial to the public in a number of respects, but are also seen as possible sources of harm.[93]

Chavez vs. Gonzales

Parenthetically, these justifications are now the subject of debate. Historically, the scarcity of frequencies was thought to provide a rationale. However,cable and satellite television have enormously increased the number of actual and potential channels. Digital technology will further increase the number of channels available. But still, the argument persists that broadcasting is the most influential means of communication, since it comes into the home, and so much time is spent watching television. Since it has a unique impact on people and affects children in a way that the print media normally does not, that regulation is said to be necessary in order to preserve pluralism. It has been argued further that a significant main threat to free expression in terms of diversitycomes not from government, but from private corporate bodies. These developments show a need for a reexamination of the traditional notions of the scope and extent of broadcast media regulation. [94] The emergence of digital technology -- which has led to the convergence of broadcasting, telecommunications and the computer industry -- has likewise led to the question of whether the regulatory model for broadcasting will continue to be appropriate in the converged environment.[95] Internet, for example, remains largely unregulated, yet the Internet and the broadcast media share similarities, [96] and the rationales used to support broadcast regulation apply equally to the Internet.[97] Thus, it has been argued that courts, legislative bodies and the government agencies regulating media must agree to regulate both, regulate neither or develop a new regulatory framework and rationale to justify the differential treatment. [98] F. The Case At Bar Having settled the applicable standard to content-based restrictions on broadcast media, let us go to its application to the case at bar. To recapitulate, a governmental action that restricts freedom of speech or of the press based on content is given the strictest scrutiny, with the government having the burden of overcoming the presumed unconstitutionality by the clear and present danger rule. This rule applies equally to all kinds of media,including broadcast media. This outlines the procedural map to follow in cases like the one at bar as it spells out the following: (a) the test; (b) the presumption; (c) the burden of proof; (d) the party to discharge the burden; and (e) the quantum of evidence necessary. On the basis of the records of the case at bar, respondents who have the burden to show that these acts do not abridge freedom of speech and of the press failed to hurdle the clear and present danger test. It appears that thegreat evil which government wants to prevent is the airing of a tape recording in alleged violation of the anti-

Chavez vs. Gonzales

wiretapping law. The records of the case at bar, however, are confused and confusing, and respondents evidence falls short of satisfying the clear and present danger test. Firstly, the various statements of the Press Secretary obfuscate the identity of the voices in the tape recording. Secondly, the integrity of the taped conversation is also suspect. The Press Secretary showed to the public two versions, one supposed to be a complete version and the other, an altered version. Thirdly, the evidence of the respondents on the whos and the hows of the wiretapping act is ambivalent, especially considering the tapes different versions. The identity of the wire-tappers, the manner of its commission and other related and relevant proofs are some of the invisibles of this case. Fourthly, given all these unsettled facets of the tape, it is even arguable whether its airing would violate the anti-wiretapping law. We rule that not every violation of a law will justify straitjacketing the exercise of freedom of speech and of the press. Our laws are of different kinds and doubtless, some of them provide norms of conduct which even if violated have only an adverse effect on a persons private comfort but does not endanger national security. There are laws of great significance but their violation, by itself and without more, cannot support suppression of free speech and free press. In fine, violation of law is just a factor, a vital one to be sure, which should be weighed in adjudging whether to restrain freedom of speech and of the press. The totality of the injurious effects of the violation to private and public interest must be calibrated in light of the preferred status accorded by the Constitution and by related international covenants protecting freedom of speech and of the press. In calling for a careful and calibrated measurement of the circumference of all these factors to determine compliance with the clear and present danger test, the Court should not be misinterpreted as devaluing violations of law. By all means, violations of law should be vigorously prosecuted by the State for they breed their own evil consequence. But to repeat, the need to prevent their violation cannot per se trump the exercise of free speech and free press, a preferred right whose breach can lead to greater evils. For this failure of the respondents alone to offer proof to satisfy the clear and present danger test, the Court has no option but to uphold the exercise of free speech and free press. There is no showing that the feared violation of the anti-wiretapping law clearly endangers the national security of the State. This is not all the faultline in the stance of the respondents. We slide to the issue of whether the mere press statements of the Secretary of Justice and of the NTC in question constitute a form of content-based prior restraint that has transgressed the Constitution. In resolving this issue, we hold that it is not decisive that the press statements made by respondents were not reduced in or followed up with formal orders or circulars. It is sufficient that the press statements were made by respondents while in the exercise of their official functions. Undoubtedly, respondent Gonzales made his statements as Secretary of Justice,

Chavez vs. Gonzales

while the NTC issued its statement as the regulatory body of media. Any act done, such as a speech uttered, for and on behalf of the government in an official capacity is covered by the rule on prior restraint. The concept of an act does not limit itself to acts already converted to a formal order or official circular. Otherwise, the non formalization of an act into an official order or circular will result in the easy circumvention of the prohibition on prior restraint. The press statements at bar are acts that should be struck down as they constitute impermissible forms of prior restraints on the right to free speech and press. There is enough evidence of chilling effect of the complained acts on record. The warnings given to media came from no less the NTC, a regulatory agency that can cancel the Certificate of Authority of the radio and broadcast media. They also came from the Secretary of Justice, the alter ego of the Executive, who wields the awesome power to prosecute those perceived to be violating the laws of the land. After the warnings, the KBP inexplicably joined the NTC in issuing an ambivalent Joint Press Statement. After the warnings, petitioner Chavez was left alone to fight this battle for freedom of speech and of the press. This silence on the sidelines on the part of some media practitioners is too deafening to be the subject of misinterpretation. The constitutional imperative for us to strike down unconstitutional acts should always be exercised with care and in light of the distinct facts of each case. For there are no hard and fast rules when it comes to slippery constitutional questions, and the limits and construct of relative freedoms are never set in stone. Issues revolving on their construct must be decided on a case to case basis, always based on the peculiar shapes and shadows of each case. But in cases where the challenged acts are patent invasions of a constitutionally protected right, we should be swift in striking them down as nullities per se. A blow too soon struck for freedom is preferred than a blow too late. In VIEW WHEREOF, the petition is GRANTED. The writs of certiorari and prohibition are hereby issued, nullifying the official statements made by respondents on June 8, and 11, 2005 warning the media on airing the alleged wiretapped conversation between the President and other personalities, for constituting unconstitutional prior restraint on the exercise of freedom of speech and of the press SO ORDERED.

Soriano vs. Laguardia Republic of the Philippines SUPREME COURT Manila

EN BANC

ELISEO F. SORIANO, Petitioner, - versus MA. CONSOLIZA P. LAGUARDIA, in her capacity as Chairperson of the Movie and Television Review and Classification Board, MOVIE AND TELEVISION REVIEW AND CLASSIFICATION BOARD, JESSIE L. GALAPON, ANABEL M. DELA CRUZ, MANUEL M. HERNANDEZ, JOSE L. LOPEZ, CRISANTO SORIANO, BERNABE S. YARIA, JR., MICHAEL M. SANDOVAL, and ROLDAN A. GAVINO, Respondents. x-------------------------------------------x ELISEO F. SORIANO, Petitioner, - versus -

G.R. No. 164785

Present:

PUNO, C.J., QUISUMBING, YNARES-SANTIAGO, CARPIO, AUSTRIA-MARTINEZ, CORONA, CARPIO MORALES, TINGA, CHICO-NAZARIO, VELASCO, JR., NACHURA, LEONARDO-DE CASTRO,

Soriano vs. Laguardia

BRION, MOVIE AND TELEVISION REVIEW AND CLASSIFICATION BOARD, ZOSIMO G. ALEGRE, JACKIE AQUINOGAVINO, NOEL R. DEL PRADO, EMMANUELBORLAZA, JOSE E. ROMERO IV, and FLORIMONDO C. ROUS,in their capacity as members of the Hearing and Adjudication Committee of the MTRCB, JESSIE L. GALAPON, ANABEL M. DELA CRUZ, MANUEL M. HERNANDEZ, JOSE L. LOPEZ, CRISANTO SORIANO, BERNABE S. YARIA, JR., MICHAEL M. SANDOVAL, and ROLDAN A. GAVINO, in their capacity as complainants before the MTRCB, Respondents. PERALTA, and BERSAMIN, JJ.

G.R. No. 165636

Soriano vs. Laguardia

Promulgated:

April 29, 2009

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

DECISION

VELASCO, JR., J.:

In these two petitions for certiorari and prohibition under Rule 65, petitioner Eliseo F. Soriano seeks to nullify and set aside an order and a decision of the Movie and Television Review and Classification Board (MTRCB) in connection with certain utterances he made in his television show, Ang Dating Daan.

Facts of the Case

On August 10, 2004, at around 10:00 p.m., petitioner, as host of the program Ang Dating Daan, aired on UNTV 37, made the following remarks:

Lehitimong anak ng demonyo; sinungaling;

Soriano vs. Laguardia Gago ka talaga Michael, masahol ka pa sa putang babae o di ba. Yung putang babae ang gumagana lang doon yung ibaba, [dito] kay Michael ang gumagana ang itaas, o di ba! O, masahol pa sa putang babae yan. Sabi ng lola ko masahol pa sa putang babae yan. Sobra ang kasinungalingan ng mga demonyong ito.[1] x x x

Two days after, before the MTRCB, separate but almost identical affidavit-complaints were lodged by Jessie L. Galapon and seven other private respondents, all members of the Iglesia ni Cristo (INC),[2] against petitioner in connection with the above broadcast. Respondent Michael M. Sandoval, who felt directly alluded to in petitioners remark, was then a minister of INC and a regular host of the TV program Ang Tamang Daan.[3] Forthwith, the MTRCB sent petitioner a notice of the hearing on August 16, 2004 in relation to the alleged use of some cuss words in the August 10, 2004 episode of Ang Dating Daan.[4]

After a preliminary conference in which petitioner appeared, the MTRCB, by Order of August 16, 2004, preventively suspended the showing of Ang Dating Daan program for 20 days, in accordance with Section 3(d) of Presidential Decree No. (PD) 1986, creating the MTRCB, in relation to Sec. 3, Chapter XIII of the 2004 Implementing Rules and Regulations (IRR) of PD 1986 and Sec. 7, Rule VII of the MTRCB Rules of Procedure.[5] The same order also set the case for preliminary investigation.

The following day, petitioner sought reconsideration of the preventive suspension order, praying that Chairperson Consoliza P. Laguardia and two other members of the adjudication board recuse themselves from hearing the case.[6] Two days after, however, petitioner sought to withdraw[7] his motion for reconsideration, followed by the filing with this Court of a petition for certiorari and prohibition,[8] docketed as G.R. No. 164785, to nullify the preventive suspension order thus issued.

On September 27, 2004, in Adm. Case No. 01-04, the MTRCB issued a decision, disposing as follows:

WHEREFORE, in view of all the foregoing, a Decision is hereby rendered, finding respondent Soriano liable for his utterances and thereby imposing on him a penalty of three (3) months suspension from his program, Ang Dating Daan.

Soriano vs. Laguardia

Co-respondents Joselito Mallari, Luzviminda Cruz and UNTV Channel 37 and its owner, PBC, are hereby exonerated for lack of evidence.

SO ORDERED.[9]

Petitioner then filed this petition for certiorari and prohibition with prayer for injunctive relief, docketed as G.R. No. 165636.

In a Resolution dated April 4, 2005, the Court consolidated G.R. No. 164785 with G.R. No. 165636.

In G.R. No. 164785, petitioner raises the following issues:

THE ORDER OF PREVENTIVE SUSPENSION PROMULGATED BY RESPONDENT [MTRCB] DATED 16 AUGUST 2004 AGAINST THE TELEVISION PROGRAM ANG DATING DAAN x x x IS NULL AND VOID FOR BEING ISSUED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION

(A) BY REASON THAT THE [IRR] IS INVALID INSOFAR AS IT PROVIDES FOR THE ISSUANCE OF PREVENTIVE SUSPENSION ORDERS; (B) BY REASON OF LACK OF DUE HEARING IN THE CASE AT BENCH; (C) FOR BEING VIOLATIVE OF EQUAL PROTECTION UNDER THE LAW; (D) FOR BEING VIOLATIVE OF FREEDOM OF RELIGION; AND (E) FOR BEING VIOLATIVE OF FREEDOM OF SPEECH AND EXPRESSION.[10]

In G.R. No. 165636, petitioner relies on the following grounds:

SECTION 3(C) OF [PD] 1986, IS PATENTLY UNCONSTITUTIONAL AND ENACTED WITHOUT OR IN EXCESS OF JURISDICTION x x x CONSIDERING THAT:

Soriano vs. Laguardia

SECTION 3(C) OF [PD] 1986, AS APPLIED TO PETITIONER, UNDULY INFRINGES ON THE CONSTITUTIONAL GUARANTEE OF FREEDOM OF RELIGION, SPEECH, AND EXPRESSION AS IT PARTAKES OF THE NATURE OF A SUBSEQUENT PUNISHMENT CURTAILING THE SAME; CONSEQUENTLY, THE IMPLEMENTING RULES AND REGULATIONS, RULES OF PROCEDURE, AND OFFICIAL ACTS OF THE MTRCB PURSUANT THERETO, I.E. DECISION DATED 27 SEPTEMBER 2004 AND ORDER DATED 19 OCTOBER 2004, ARE LIKEWISE CONSTITUTIONALLY INFIRM AS APPLIED IN THE CASE AT BENCH;

II

SECTION 3(C) OF [PD] 1986, AS APPLIED TO PETITIONER, UNDULY INFRINGES ON THE CONSTITUTIONAL GUARANTEE OF DUE PROCESS OF LAW AND EQUAL PROTECTION UNDER THE LAW; CONSEQUENTLY, THE [IRR], RULES OF PROCEDURE, AND OFFICIAL ACTS OF THE MTRCB PURSUANT THERETO, I.E., DECISION DATED 27 SEPTEMBER 2004 AND ORDER DATED 19 OCTOBER 2004, ARE LIKEWISE CONSTITUTIONALLY INFIRM AS APPLIED IN THE CASE AT BENCH; AND

III

[PD] 1986 IS NOT COMPLETE IN ITSELF AND DOES NOT PROVIDE FOR A SUFFICIENT STANDARD FOR ITS IMPLEMENTATION THEREBY RESULTING IN AN UNDUE DELEGATION OF LEGISLATIVE POWER BY REASON THAT IT DOES NOT PROVIDE FOR THE PENALTIES FOR VIOLATIONS OF ITS PROVISIONS. CONSEQUENTLY, THE [IRR], RULES OF PROCEDURE, AND OFFICIAL ACTS OF THE MTRCB PURSUANT THERETO, I.E. DECISION DATED 27 SEPTEMBER 2004 AND ORDER DATED 19 OCTOBER 2004, ARE LIKEWISE CONSTITUTIONALLY INFIRM AS APPLIED IN THE CASE AT BENCH[11]

G.R. No. 164785

Soriano vs. Laguardia

We shall first dispose of the issues in G.R. No. 164785, regarding the assailed order of preventive suspension, although its implementability had already been overtaken and veritably been rendered moot by the equally assailed September 27, 2004 decision.

It is petitioners threshold posture that the preventive suspension imposed against him and the relevant IRR provision authorizing it are invalid inasmuch as PD 1986 does not expressly authorize the MTRCB to issue preventive suspension.

Petitioners contention is untenable.

Administrative agencies have powers and functions which may be administrative, investigatory, regulatory, quasi-legislative, or quasi-judicial, or a mix of the five, as may be conferred by the Constitution or by statute.[12] They have in fine only such powers or authority as are granted or delegated, expressly or impliedly, by law.[13] And in determining whether an agency has certain powers, the inquiry should be from the law itself. But once ascertained as existing, the authority given should be liberally construed.[14]

A perusal of the MTRCBs basic mandate under PD 1986 reveals the possession by the agency of the authority, albeit impliedly, to issue the challenged order of preventive suspension. And this authority stems naturally from, and is necessary for the exercise of, its power of regulation and supervision.

Sec. 3 of PD 1986 pertinently provides the following:

Section 3. Powers and Functions.The BOARD shall duties:

have the following functions, powers and

xxxx

c) To approve or disapprove, delete objectionable portions from and/or prohibit the x x x production, x x x exhibition and/or television broadcast of the motion pictures, television programs and publicity materials

Soriano vs. Laguardia subject of the preceding paragraph, which, in the judgment of the board applying contemporary Filipino cultural values as standard, are objectionable for being immoral, indecent, contrary to law and/or good customs, injurious to the prestige of the Republic of the Philippines or its people, or with a dangerous tendency to encourage the commission of violence or of wrong or crime such as but not limited to:

xxxx

vi) Those which are libelous or defamatory to the good name and reputation of any person, whether living or dead;

xxxx

(d) To supervise, regulate, and grant, deny or cancel, permits for the x x x production, copying, distribution, sale, lease, exhibition, and/or television broadcast of all motion pictures, television programs and publicity materials, to the end that no such pictures, programs and materials as are determined by the BOARD to be objectionable in accordance with paragraph (c) hereof shall be x x x produced, copied, reproduced, distributed, sold, leased, exhibited and/or broadcast by television;

xxxx

k) To exercise such powers and functions as may be necessary or incidental to the attainment of the purposes and objectives of this Act x x x. (Emphasis added.)

The issuance of a preventive suspension comes well within the scope of the MTRCBs authority and functions expressly set forth in PD 1986, more particularly under its Sec. 3(d), as quoted above, which empowers the MTRCB to supervise, regulate, and grant, deny or cancel, permits for the x x x exhibition, and/or television broadcast of all motion pictures, television programs and publicity materials, to the end that no such pictures, programs and materials as are determined by the BOARD to be objectionable in accordance with paragraph (c) hereof shall be x x x exhibited and/or broadcast by television.

Surely, the power to issue preventive suspension forms part of the MTRCBs express regulatory and supervisory statutory mandate and its investigatory and disciplinary authority

Soriano vs. Laguardia

subsumed in or implied from such mandate. Any other construal would render its power to regulate, supervise, or discipline illusory.

Preventive suspension, it ought to be noted, is not a penalty by itself, being merely a preliminary step in an administrative investigation.[15] And the power to discipline and impose penalties, if granted, carries with it the power to investigate administrative complaints and, during such investigation, to preventively suspend the person subject of the complaint.[16]

To reiterate, preventive suspension authority of the MTRCB springs from its powers conferred under PD 1986. The MTRCB did not, as petitioner insinuates, empower itself to impose preventive suspension through the medium of the IRR of PD 1986. It is true that the matter of imposing preventive suspension is embodied only in the IRR of PD 1986. Sec. 3, Chapter XIII of the IRR provides:

Sec. 3. PREVENTION SUSPENSION ORDER.Any time during the pendency of the case, and in order to prevent or stop further violations or for the interest and welfare of the public, the Chairman of the Board may issue a Preventive Suspension Order mandating the preventive x x x suspension of the permit/permits involved, and/or closure of the x x x television network, cable TV station x x x provided that the temporary/preventive order thus issued shall have a life of not more than twenty (20) days from the date of issuance.

But the mere absence of a provision on preventive suspension in PD 1986, without more, would not work to deprive the MTRCB a basic disciplinary tool, such as preventive suspension. Recall that the MTRCB is expressly empowered by statute to regulate and supervise television programs to obviate the exhibition or broadcast of, among others, indecent or immoral materials and to impose sanctions for violations and, corollarily, to prevent further violations as it investigates. Contrary to petitioners assertion, the aforequoted Sec. 3 of the IRR neither amended PD 1986 nor extended the effect of the law. Neither did the MTRCB, by imposing the assailed preventive suspension, outrun its authority under the law. Far from it. The preventive suspension was actually done in furtherance of the law, imposed pursuant, to repeat, to the MTRCBs duty of regulating or supervising television programs, pending a determination of whether or not there has actually been a violation. In the final analysis, Sec. 3, Chapter XIII of the 2004 IRR merely formalized a power which PD 1986 bestowed, albeit impliedly, on MTRCB.

Soriano vs. Laguardia

Sec. 3(c) and (d) of PD 1986 finds application to the present case, sufficient to authorize the MTRCBs assailed action. Petitioners restrictive reading of PD 1986, limiting the MTRCB to functions within the literal confines of the law, would give the agency little leeway to operate, stifling and rendering it inutile, when Sec. 3(k) of PD 1986 clearly intends to grant the MTRCB a wide room for flexibility in its operation. Sec. 3(k), we reiterate, provides, To exercise such powers and functions as may be necessary or incidental to the attainment of the purposes and objectives of this Act x x x. Indeed, the power to impose preventive suspension is one of the implied powers of MTRCB. As distinguished from express powers, implied powers are those that can be inferred or are implicit in the wordings or conferred by necessary or fair implication of the enabling act.[17] As we held in Angara v. Electoral Commission, when a general grant of power is conferred or a duty enjoined, every particular power necessary for the exercise of one or the performance of the other is also conferred by necessary implication.[18] Clearly, the power to impose preventive suspension pending investigation is one of the implied or inherent powers of MTRCB.

We cannot agree with petitioners assertion that the aforequoted IRR provision on preventive suspension is applicable only to motion pictures and publicity materials. The scope of the MTRCBs authority extends beyond motion pictures. What the acronym MTRCB stands for would suggest as much. And while the law makes specific reference to the closure of a television network, the suspension of a television program is a far less punitive measure that can be undertaken, with the purpose of stopping further violations of PD 1986. Again, the MTRCB would regretfully be rendered ineffective should it be subject to the restrictions petitioner envisages.

Just as untenable is petitioners argument on the nullity of the preventive suspension order on the ground of lack of hearing. As it were, the MTRCB handed out the assailed order after petitioner, in response to a written notice, appeared before that Board for a hearing on private respondents complaint. No less than petitioner admitted that the order was issued after the adjournment of the hearing,[19] proving that he had already appeared before the MTRCB. Under Sec. 3, Chapter XIII of the IRR of PD 1986, preventive suspension shall issue *a+ny time during the pendency of the case. In this particular case, it was done after MTRCB duly apprised petitioner of his having possibly violated PD 1986[20] and of administrative complaints that had been filed against him for such violation.[21]

At any event, that preventive suspension can validly be meted out even without a hearing.[22]

Soriano vs. Laguardia

Petitioner next faults the MTRCB for denying him his right to the equal protection of the law, arguing that, owing to the preventive suspension order, he was unable to answer the criticisms coming from the INC ministers.

Petitioners position does not persuade. The equal protection clause demands that all persons subject to legislation should be treated alike, under like circumstances and conditions both in the privileges conferred and liabilities imposed.[23] It guards against undue favor and individual privilege as well as hostile discrimination.[24] Surely, petitioner cannot, under the premises, place himself in the same shoes as the INC ministers, who, for one, are not facing administrative complaints before the MTRCB. For another, he offers no proof that the said ministers, in their TV programs, use language similar to that which he used in his own, necessitating the MTRCBs disciplinary action. If the immediate result of the preventive suspension order is that petitioner remains temporarily gagged and is unable to answer his critics, this does not become a deprivation of the equal protection guarantee. The Court need not belabor the fact that the circumstances of petitioner, as host of Ang Dating Daan, on one hand, and the INC ministers, as hosts of Ang Tamang Daan, on the other, are, within the purview of this case, simply too different to even consider whether or not there is a prima facie indication of oppressive inequality.

Petitioner next injects the notion of religious freedom, submitting that what he uttered was religious speech, adding that words like putang babae were said in exercise of his religious freedom.

The argument has no merit.

The Court is at a loss to understand how petitioners utterances in question can come within the pale of Sec. 5, Article III of the 1987 Constitution on religious freedom. The section reads as follows:

No law shall be made respecting the establishment of a religion, or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or

Soriano vs. Laguardia preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political rights.

There is nothing in petitioners statements subject of the complaints expressing any particular religious belief, nothing furthering his avowed evangelical mission. The fact that he came out with his statements in a televised bible exposition program does not automatically accord them the character of a religious discourse. Plain and simple insults directed at another person cannot be elevated to the status of religious speech. Even petitioners attempts to place his words in context show that he was moved by anger and the need to seek retribution, not by any religious conviction. His claim, assuming its veracity, that some INC ministers distorted his statements respecting amounts Ang Dating Daan owed to a TV station does not convert the foul language used in retaliation as religious speech. We cannot accept that petitioner made his statements in defense of his reputation and religion, as they constitute no intelligible defense or refutation of the alleged lies being spread by a rival religious group. They simply illustrate that petitioner had descended to the level of name-calling and foul-language discourse. Petitioner could have chosen to contradict and disprove his detractors, but opted for the low road.

Petitioner, as a final point in G.R. No. 164785, would have the Court nullify the 20-day preventive suspension order, being, as insisted, an unconstitutional abridgement of the freedom of speech and expression and an impermissible prior restraint. The main issue tendered respecting the adverted violation and the arguments holding such issue dovetails with those challenging the three-month suspension imposed under the assailed September 27, 2004 MTRCB decision subject of review under G.R. No. 165636. Both overlapping issues and arguments shall be jointly addressed.

G.R. No. 165636 Petitioner urges the striking down of the decision suspending him from hosting Ang Dating Daan for three months on the main ground that the decision violates, apart from his religious freedom, his freedom of speech and expression guaranteed under Sec. 4, Art. III of the Constitution, which reads:

No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievance.

Soriano vs. Laguardia

He would also have the Court declare PD 1986, its Sec. 3(c) in particular, unconstitutional for reasons articulated in this petition.

We are not persuaded as shall be explained shortly. But first, we restate certain general concepts and principles underlying the freedom of speech and expression.

It is settled that expressions by means of newspapers, radio, television, and motion pictures come within the broad protection of the free speech and expression clause. [25] Each method though, because of its dissimilar presence in the lives of people and accessibility to children, tends to present its own problems in the area of free speech protection, with broadcast media, of all forms of communication, enjoying a lesser degree of protection.[26] Just as settled is the rule that restrictions, be it in the form of prior restraint, e.g., judicial injunction against publication or threat of cancellation of license/franchise, or subsequent liability, whether in libel and damage suits, prosecution for sedition, or contempt proceedings, are anathema to the freedom of expression. Prior restraint means official government restrictions on the press or other forms of expression in advance of actual publication or dissemination.[27] The freedom of expression, as with the other freedoms encased in the Bill of Rights, is, however, not absolute. It may be regulated to some extent to serve important public interests, some forms of speech not being protected. As has been held, the limits of the freedom of expression are reached when the expression touches upon matters of essentially private concern.[28] In the oft-quoted expression of Justice Holmes, the constitutional guarantee obviously was not intended to give immunity for every possible use of language.[29] From Lucas v. Royo comes this line: *T+he freedom to express ones sentiments and belief does not grant one the license to vilify in public the honor and integrity of another. Any sentiments must be expressed within the proper forum and with proper regard for the rights of others.[30]

Indeed, as noted in Chaplinsky v. State of New Hampshire,[31] there are certain welldefined and narrowly limited classes of speech that are harmful, the prevention and punishment of which has never been thought to raise any Constitutional problems. In net effect, some forms of speech are not protected by the Constitution, meaning that restrictions on unprotected speech may be decreed without running afoul of the freedom of speech clause.[32] A speech would fall under the unprotected type if the utterances involved are no essential part of a ny

Soriano vs. Laguardia

exposition of ideas, and are of such slight social value as a step of truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.[33] Being of little or no value, there is, in dealing with or regulating them, no imperative call for the application of the clear and present danger rule or the balancing-ofinterest test, they being essentially modes of weighing competing values,[34] or, with like effect, determining which of the clashing interests should be advanced.

Petitioner asserts that his utterance in question is a protected form of speech.

The Court rules otherwise. It has been established in this jurisdiction that unprotected speech or low-value expression refers to libelous statements, obscenity or pornography, false or misleading advertisement, insulting or fighting words, i.e., those which by their very utterance inflict injury or tend to incite an immediate breach of peace and expression endangering national security.

The Court finds that petitioners statement can be treated as obscene, at least with respect to the average child. Hence, it is, in that context, unprotected speech. In Fernando v. Court of Appeals, the Court expressed difficulty in formulating a definition of obscenity that would apply to all cases, but nonetheless stated the ensuing observations on the matter:

There is no perfect definition of obscenity but the latest word is that of Miller v. California which established basic guidelines, to wit: (a) whether to the average person, applying contemporary standards would find the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. But, it would be a serious misreading of Miller to conclude that the trier of facts has the unbridled discretion in determining what is patently offensive. x x x What remains clear is that obscenity is an issue proper for judicial determination and should be treated on a case to case basis and on the judges sound discretion.[35]

Following the contextual lessons of the cited case of Miller v. California,[36] a patently offensive utterance would come within the pale of the termobscenity should it appeal to the prurient interest of an average listener applying contemporary standards.

Soriano vs. Laguardia

A cursory examination of the utterances complained of and the circumstances of the case reveal that to an average adult, the utterances Gago ka talaga x x x, masahol ka pa sa putang babae x x x. Yung putang babae ang gumagana lang doon yung ibaba, [dito] kay Michael ang gumagana ang itaas, o di ba! may not constitute obscene but merely indecent utterances. They can be viewed as figures of speech or merely a play on words. In the context they were used, they may not appeal to the prurient interests of an adult. The problem with the challenged statements is that they were uttered in a TV program that is rated G or for general viewership, and in a time slot that would likely reach even the eyes and ears of children.

While adults may have understood that the terms thus used were not to be taken literally, children could hardly be expected to have the same discernment. Without parental guidance, the unbridled use of such language as that of petitioner in a television broadcast could corrupt impressionable young minds. The term putang babae means a female prostitute, a term wholly inappropriate for children, who could look it up in a dictionary and just get the literal meaning, missing the context within which it was used. Petitioner further used the terms, ang gumagana lang doon yung ibaba, making reference to the female sexual organ and how a female prostitute uses it in her trade, then stating that Sandoval was worse than that by using his mouth in a similar manner. Children could be motivated by curiosity and ask the meaning of what petitioner said, also without placing the phrase in context. They may be inquisitive as to why Sandoval is different from a female prostitute and the reasons for the dissimilarity. And upon learning the meanings of the words used, young minds, without the guidance of an adult, may, from their end, view this kind of indecent speech as obscene, if they take these words literally and use them in their own speech or form their own ideas on the matter. In this particular case, where children had the opportunity to hear petitioners words, when speaking of the average person in the test for obscenity, we are speaking of the average child, not the average adult. The average child may not have the adults grasp of figures of speech, and may lack the understanding that language may be colorful, and words may convey more than the literal meaning. Undeniably the subject speech is very suggestive of a female sexual organ and its function as such. In this sense, we find petitioners utterances obscene and not entitled to protection under the umbrella of freedom of speech.

Even if we concede that petitioners remarks are not obscene but merely indecent speech, still the Court rules that petitioner cannot avail himself of the constitutional protection of free speech. Said statements were made in a medium easily accessible to children. With respect to the young minds, said utterances are to be treated as unprotected speech.

Soriano vs. Laguardia

No doubt what petitioner said constitutes indecent or offensive utterances. But while a jurisprudential pattern involving certain offensive utterances conveyed in different mediums has emerged, this case is veritably one of first impression, it being the first time that indecent speech communicated viatelevision and the applicable norm for its regulation are, in this jurisdiction, made the focal point. Federal Communications Commission (FCC) v. PacificaFoundation,[37] a 1978 American landmark case cited in Eastern Broadcasting Corporation v. Dans, Jr.[38] and Chavez v. Gonzales,[39] is a rich source of persuasive lessons. Foremost of these relates to indecent speech without prurient appeal component coming under the category of protected speech depending on the context within which it was made, irresistibly suggesting that, within a particular context, such indecent speech may validly be categorized as unprotected, ergo, susceptible to restriction.

In FCC, seven of what were considered filthy words[40] earlier recorded in a monologue by a satiric humorist later aired in the afternoon over a radio station owned by Pacifica Foundation. Upon the complaint of a man who heard the pre-recorded monologue while driving with his son, FCC declared the language used as patently offensive and indecent under a prohibiting law, though not necessarily obscene. FCC added, however, that its declaratory order was issued in a special factual context, referring, in gist, to an afternoon radio broadcast when children were undoubtedly in the audience. Acting on the question of whether the FCC could regulate the subject utterance, the US Supreme Court ruled in the affirmative, owing to two special features of the broadcast medium, to wit: (1) radio is a pervasive medium and (2) broadcasting is uniquely accessible to children. The US Court, however, hastened to add that the monologue would be protected speech in other contexts, albeit it did not expound and identify a compelling state interest in putting FCCs content-based regulatory action under scrutiny.

The Court in Chavez[41] elucidated on the distinction between regulation or restriction of protected speech that is content-based and that which is content-neutral. A content-based restraint is aimed at the contents or idea of the expression, whereas a content-neutral restraint intends to regulate the time, place, and manner of the expression under well-defined standards tailored to serve a compelling state interest, without restraint on the message of the expression. Courts subject content-based restraint to strict scrutiny.

With the view we take of the case, the suspension MTRCB imposed under the premises was, in one perspective, permissible restriction. We make this disposition against the backdrop of

Soriano vs. Laguardia

the following interplaying factors: First, the indecent speech was made via television, a pervasive medium that, to borrow from Gonzales v. Kalaw Katigbak,[42] easily reaches every home where there is a set [and where] [c]hildren will likely be among the avid viewers of the programs therein shown; second, the broadcast was aired at the time of the day when there was a reasonable risk that children might be in the audience; andthird, petitioner uttered his speech on a G or for general patronage rated program. Under Sec. 2(A) of Chapter IV of the IRR of the MTRCB, a show for general patronage is *s+uitable for all ages, meaning that the material for television x x x in the judgment of the BOARD, does not contain anything unsuitable for children and minors, and may be viewed without adult guidance or supervision. The words petitioner used were, by any civilized norm, clearly not suitable for children. Where a language is categorized as indecent, as in petitioners utterances on a general-patronage rated TV program, it may be readily proscribed as unprotected speech.

A view has been advanced that unprotected speech refers only to pornography, [43] false or misleading advertisement,[44] advocacy of imminent lawless action, and expression endangering national security. But this list is not, as some members of the Court would submit, exclusive or carved in stone. Without going into specifics, it may be stated without fear of contradiction that US decisional law goes beyond the aforesaid general exceptions. As the Court has been impelled to recognize exceptions to the rule against censorship in the past, this particular case constitutes yet another exception, another instance of unprotected speech, created by the necessity of protecting the welfare of our children. As unprotected speech, petitioners utterances can be subjected to restraint or regulation.

Despite the settled ruling in FCC which has remained undisturbed since 1978, petitioner asserts that his utterances must present a clear and present danger of bringing about a substantive evil the State has a right and duty to prevent and such danger must be grave and imminent.[45]

Petitioners invocation of the clear and present danger doctrine, arguably the most permissive of speech tests, would not avail him any relief, for the application of said test is uncalled for under the premises. The doctrine, first formulated by Justice Holmes, accords protection for utterances so that the printed or spoken words may not be subject to prior restraint or subsequent punishment unless its expression creates a clear and present danger of bringing about a substantial evil which the government has the power to prohibit.[46] Under the doctrine, freedom of speech and of press is susceptible of restriction when and only when

Soriano vs. Laguardia

necessary to prevent grave and immediate danger to interests which the government may lawfully protect. As it were, said doctrine evolved in the context of prosecutions for rebellion and other crimes involving the overthrow of government.[47] It was originally designed to determine the latitude which should be given to speech that espouses anti-government action, or to have serious and substantial deleterious consequences on the security and public order of the community.[48] The clear and present danger rule has been applied to this jurisdiction.[49] As a standard of limitation on free speech and press, however, the clear and present danger test is not a magic incantation that wipes out all problems and does away with analysis and judgment in the testing of the legitimacy of claims to free speech and which compels a court to release a defendant from liability the moment the doctrine is invoked, absent proof of imminent catastrophic disaster.[50] As we observed in Eastern Broadcasting Corporation, the clear and present danger test does not lend itself to a simplistic and all embracing interpretation applicable to all utterances in all forums.[51]

To be sure, the clear and present danger doctrine is not the only test which has been applied by the courts. Generally, said doctrine is applied to cases involving the overthrow of the government and even other evils which do not clearly undermine national security. Since not all evils can be measured in terms of proximity and degree the Court, however, in several cases Ayer Productions v. Capulong[52] and Gonzales v. COMELEC,[53] applied the balancing of interests test. Former Chief Justice Fred Ruiz Castro, in Gonzales v. COMELEC, elucidated in his Separate Opinion that where the legislation under constitutional attack interferes with the freedom of speech and assembly in a more generalized way and where the effect of the speech and assembly in terms of the probability of realization of a specific danger is not susceptible even of impressionistic calculation,[54] then the balancing of interests test can be applied.

The Court explained also in Gonzales v. COMELEC the balancing of interests test:

When particular conduct is regulated in the interest of public order, and the regulation results in an indirect, conditional, partial abridgment of speech, the duty of the courts is to determine which of the two conflicting interests demands the greater protection under the particular circumstances presented. x x x We must, therefore, undertake the delicate and difficult task x x x to weigh the circumstances and to appraise the substantiality of the reasons advanced in support of the regulation of the free enjoyment of rights x x x.

Soriano vs. Laguardia In enunciating standard premised on a judicial balancing of the conflicting social values and individual interests competing for ascendancy in legislation which restricts expression, the court in Douds laid the basis for what has been called the balancing-of-interests test which has found application in more recent decisions of the U.S. Supreme Court. Briefly stated, the balancing test requires a court to take conscious and detailed consideration of the interplay of interests observable in a given situation or type of situation.

xxxx

Although the urgency of the public interest sought to be secured by Congressional power restricting the individuals freedom, and the social importance and value of the freedom so restricted, are to be judged in the concrete, not on the basis of abstractions, a wide range of factors are necessarily relevant in ascertaining the point or line of equilibrium. Among these are (a) the social value and importance of the specific aspect of the particular freedom restricted by the legislation; (b) the specific thrust of the restriction, i.e., whether the restriction is direct or indirect, whether or not the persons affected are few; (c) the value and importance of the public interest sought to be secured by the legislationthe reference here is to the nature and gravity of the evil which Congress seeks to prevent; (d) whether the specific restriction decreed by Congress is reasonably appropriate and necessary for the protection of such public interest; and (e) whether the necessary safeguarding of the public interest involved may be achieved by some other measure less restrictive of the protected freedom.[55]

This balancing of interest test, to borrow from Professor Kauper,[56] rests on the theory that it is the courts function in a case before it when it finds public interests served by legislation, on the one hand, and the free expression clause affected by it, on the other, to balance one against the other and arrive at a judgment where the greater weight shall be placed. If, on balance, it appears that the public interest served by restrictive legislation is of such nature that it outweighs the abridgment of freedom, then the court will find the legislation valid. In short, the balance-of-interests theory rests on the basis that constitutional freedoms are not absolute, not even those stated in the free speech and expression clause, and that they may be abridged to some extent to serve appropriate and important interests.[57] To the mind of the Court, the balancing of interest doctrine is the more appropriate test to follow. In the case at bar, petitioner used indecent and obscene language and a three (3)-month suspension was slapped on him for breach of MTRCB rules. In this setting, the assertion by petitioner of his enjoyment of his freedom of speech is ranged against the duty of the government to protect and promote the development and welfare of the youth.

Soriano vs. Laguardia

After a careful examination of the factual milieu and the arguments raised by petitioner in support of his claim to free speech, the Court rules that the governments interest to protect and promote the interests and welfare of the children adequately buttresses the reasonable curtailment and valid restraint on petitioners prayer to continue as program host of Ang Dating Daan during the suspension period.

No doubt, one of the fundamental and most vital rights granted to citizens of a State is the freedom of speech or expression, for without the enjoyment of such right, a free, stable, effective, and progressive democratic state would be difficult to attain. Arrayed against the freedom of speech is the right of the youth to their moral, spiritual, intellectual, and social being which the State is constitutionally tasked to promote and protect. Moreover, the State is also mandated to recognize and support the vital role of the youth in nation building as laid down in Sec. 13, Art. II of the 1987 Constitution.

The Constitution has, therefore, imposed the sacred obligation and responsibility on the State to provide protection to the youth against illegal or improper activities which may prejudice their general well-being. The Article on youth, approved on second reading by the Constitutional Commission, explained that the State shall extend social protection to minors against all forms of neglect, cruelty, exploitation, immorality, and practices which may foster racial, religious or other forms of discrimination.[58]

Indisputably, the State has a compelling interest in extending social protection to minors against all forms of neglect, exploitation, and immorality which may pollute innocent minds. It has a compelling interest in helping parents, through regulatory mechanisms, protect their childrens minds from exposure to undesirable materials and corrupting experiences. The Constitution, no less, in fact enjoins the State, as earlier indicated, to promote and protect the physical, moral, spiritual, intellectual, and social well-being of the youth to better prepare them fulfill their role in the field of nation-building.[59] In the same way, the State is mandated to support parents in the rearing of the youth for civic efficiency and the development of moral character.[60]

Soriano vs. Laguardia

Petitioners offensive and obscene language uttered in a television broadcast, without doubt, was easily accessible to the children. His statements could have exposed children to a language that is unacceptable in everyday use. As such, the welfare of children and the States mandate to protect and care for them, as parens patriae,[61] constitute a substantial and compelling government interest in regulating petitioners utterances in TV broadcast as provided in PD 1986.

FCC explains the duty of the government to act as parens patriae to protect the children who, because of age or interest capacity, are susceptible of being corrupted or prejudiced by offensive language, thus:

[B]roadcasting is uniquely accessible to children, even those too young to read. Although Cohens written message, *Fuck the Draft+, might have been incomprehensible to a first grader, Pacificas broadcast could have enlarged a childs vocabulary in an instant. Other forms of offensive expression may be withheld from the young without restricting the expression at its source. Bookstores and motion picture theaters, for example, may be prohibited from making indecent material available to children. We held in Ginsberg v.New York that the governments interest in the well-being of its youth and in supporting parents claim to authority in their own household justified the regulation of otherwise protected expression. The ease with which children may obtain access to broadcast material, coupled with the concerns recognized in Ginsberg, amply justify special treatment of indecent broadcasting.

Moreover, Gonzales v. Kalaw Katigbak likewise stressed the duty of the State to attend to the welfare of the young:

x x x It is the consensus of this Court that where television is concerned, a less liberal approach calls for observance. This is so because unlike motion pictures where the patrons have to pay their way, television reaches every home where there is a set. Children then will likely will be among the avid viewers of the programs therein shown. As was observed by Circuit Court of Appeals Judge Jerome Frank, it is hardly the concern of the law to deal with the sexual fantasies of the adult population. It cannot be denied though that the State as parens patriae is called upon to manifest an attitude of caring for the welfare of the young.[62]

Soriano vs. Laguardia

The compelling need to protect the young impels us to sustain the regulatory action MTRCB took in the narrow confines of the case. To reiterate,FCC justified the restraint on the TV broadcast grounded on the following considerations: (1) the use of television with its unique accessibility to children, as a medium of broadcast of a patently offensive speech; (2) the time of broadcast; and (3) the G rating of the Ang Dating Daan program. And in agreeing with MTRCB, the court takes stock of and cites with approval the following excerpts from FCC:

It is appropriate, in conclusion, to emphasize the narrowness of our holding. This case does not involve a two-way radio conversation between a cab driver and a dispatcher, or a telecast of an Elizabethan comedy. We have not decided that an occasional expletive in either setting would justify any sanction. x x x The *FFCs] decision rested entirely on a nuisance rationale under which context is all important. The concept requires consideration of a host of variables. The time of day was emphasized by the [FFC]. The content of the program in which the language is used will affect the composition of the audience x x x. As Mr. Justice Sutherland wrote a nuisance may be merely a right thing in the wrong place, like a pig in the parlor instead of the barnyard. We simply hold that when the [FCC] finds that a pig has entered the parlor, the exercise of its regulatory power does not depend on proof that the pig is obscene. (Citation omitted.)

There can be no quibbling that the remarks in question petitioner uttered on prime-time television are blatantly indecent if not outright obscene. It is the kind of speech that PD 1986 proscribes necessitating the exercise by MTRCB of statutory disciplinary powers. It is the kind of speech that the State has the inherent prerogative, nay duty, to regulate and prevent should such action served and further compelling state interests. One who utters indecent, insulting, or offensive words on television when unsuspecting children are in the audience is, in the graphic language of FCC, a pig in the parlor. Public interest would be served if the pig is reasonably restrained or even removed from the parlor.

Ergo, petitioners offensive and indecent language can be subjected to prior restraint.

Petitioner theorizes that the three (3)-month suspension is either prior restraint or subsequent punishment that, however, includes prior restraint, albeit indirectly.

After a review of the facts, the Court finds that what MTRCB imposed on petitioner is an administrative sanction or subsequent punishment for his offensive and obscene language in Ang Dating Daan.

Soriano vs. Laguardia

To clarify, statutes imposing prior restraints on speech are generally illegal and presumed unconstitutional breaches of the freedom of speech. The exceptions to prior restraint are movies, television, and radio broadcast censorship in view of its access to numerous people, including the young who must be insulated from the prejudicial effects of unprotected speech. PD 1986 was passed creating the Board of Review for Motion Pictures and Television (now MTRCB) and which requires prior permit or license before showing a motion picture or broadcasting a TV program. The Board can classify movies and television programs and can cancel permits for exhibition of films or television broadcast.

The power of MTRCB to regulate and even impose some prior restraint on radio and television shows, even religious programs, was upheld in Iglesia Ni Cristo v. Court of Appeals. Speaking through Chief Justice Reynato S. Puno, the Court wrote:

We thus reject petitioners postulate that its religious program is per se beyond review by the respondent Board. Its public broadcast on TV of its religious program brings it out of the bosom of internal belief. Television is a medium that reaches even the eyes and ears of children. The Court iterates the rule that the exercise of religious freedom can be regulated by the State when it 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. x x x

xxxx

While the thesis has a lot to commend itself, we are not ready to hold that [PD 1986] is unconstitutional for Congress to grant an administrative body quasi-judicial power to preview and classify TV programs and enforce its decision subject to review by our courts. As far back as 1921, we upheld this setup in Sotto vs. Ruiz, viz:

The use of the mails by private persons is in the nature of a privilege which can be regulated in order to avoid its abuse. Persons possess no absolute right to put into the mail anything they please, regardless of its character.[63]

Bernas adds:

Soriano vs. Laguardia

Under the decree a movie classification board is made the arbiter of what movies and television programs or parts of either are fit for public consumption. It decides what movies are immoral, indecent, contrary to law and/or good customs, injurious to the prestige of the Republic of the Philippines or its people, and what tend to incite subversion, insurrection, rebellion or sedition, or tend to undermine the faith and confidence of the people in their government and/or duly constituted authorities, etc. Moreover, its decisions are executory unless stopped by a court.[64]

Moreover, in MTRCB v. ABS-CBN Broadcasting Corporation,[65] it was held that the power of review and prior approval of MTRCB extends to all television programs and is valid despite the freedom of speech guaranteed by the Constitution. Thus, all broadcast networks are regulated by the MTRCB since they are required to get a permit before they air their television programs. Consequently, their right to enjoy their freedom of speech is subject to that requirement. As lucidly explained by Justice Dante O. Tinga, government regulations through the MTRCB became a necessary evil with the government taking the role of assigning bandwidth to individual broadcasters. The stations explicitly agreed to this regulatory scheme; otherwise, chaos would result in the television broadcast industry as competing broadcasters will interfere or co-opt each others signals. In this scheme, station owners and broadcasters in effect waived their right to the full enjoyment of their right to freedom of speech in radio and television programs and impliedly agreed that said right may be subject to prior restraintdenial of permit or subsequent punishment, like suspension or cancellation of permit, among others.

The three (3) months suspension in this case is not a prior restraint on the right of petitioner to continue with the broadcast of Ang Dating Daan as a permit was already issued to him by MTRCB for such broadcast. Rather, the suspension is in the form of permissible administrative sanction or subsequent punishment for the offensive and obscene remarks he uttered on the evening of August 10, 2004 in his television program, Ang Dating Daan. It is a sanction that the MTRCB may validly impose under its charter without running afoul of the free speech clause. And the imposition is separate and distinct from the criminal action the Board may take pursuant to Sec. 3(i) of PD 1986 and the remedies that may be availed of by the aggrieved private party under the provisions on libel or tort, if applicable. As FCC teaches, the imposition of sanctions on broadcasters who indulge in profane or indecent broadcasting does not constitute forbidden censorship. Lest it be overlooked, the sanction imposed is not per se for petitioners exercise of his freedom of speech via television, but for the indecent contents of his utterances in a G rated TV program.

Soriano vs. Laguardia

More importantly, petitioner is deemed to have yielded his right to his full enjoyment of his freedom of speech to regulation under PD 1986 and its IRR as television station owners, program producers, and hosts have impliedly accepted the power of MTRCB to regulate the broadcast industry. Neither can petitioners virtual inability to speak in his program during the period of suspension be plausibly treated as prior restraint on future speech. For viewed in its proper perspective, the suspension is in the nature of an intermediate penalty for uttering an unprotected form of speech. It is definitely a lesser punishment than the permissible cancellation of exhibition or broadcast permit or license. In fine, the suspension meted was simply part of the duties of the MTRCB in the enforcement and administration of the law which it is tasked to implement. Viewed in its proper context, the suspension sought to penalize past speech made on prime-time G rated TV program; it does not bar future speech of petitioner in other television programs; it is a permissible subsequent administrative sanction; it should not be confused with a prior restraint on speech. While not on all fours, the Court, in MTRCB,[66] sustained the power of the MTRCB to penalize a broadcast company for exhibiting/airing a pre-taped TV episode without Board authorization in violation of Sec. 7 of PD 1986.

Any simplistic suggestion, however, that the MTRCB would be crossing the limits of its authority were it to regulate and even restrain the prime-time television broadcast of indecent or obscene speech in a G rated program is not acceptable. As made clear in Eastern Broadcasting Corporation, the freedom of television and radio broadcasting is somewhat lesser in scope than the freedom accorded to newspaper and print media. The MTRCB, as a regulatory agency, must have the wherewithal to enforce its mandate, which would not be effective if its punitive actions would be limited to mere fines. Television broadcasts should be subject to some form of regulation, considering the ease with which they can be accessed, and violations of the regulations must be met with appropriate and proportional disciplinary action. The suspension of a violating television program would be a sufficient punishment and serve as a deterrent for those responsible. The prevention of the broadcast of petitioners television program is justified, and does not constitute prohibited prior restraint. It behooves the Court to respond to the needs of the changing times, and craft jurisprudence to reflect these times.

Petitioner, in questioning the three-month suspension, also tags as unconstitutional the very law creating the MTRCB, arguing that PD 1986, as applied to him, infringes also upon his

Soriano vs. Laguardia

freedom of religion. The Court has earlier adequately explained why petitioners undue reliance on the religious freedom cannot lend justification, let alone an exempting dimension to his licentious utterances in his program. The Court sees no need to address anew the repetitive arguments on religious freedom. As earlier discussed in the disposition of the petition in G.R. No. 164785, what was uttered was in no way a religious speech. Parenthetically, petitioners attempt to characterize his speech as a legitimate defense of his religion fails miserably. He tries to place his words in perspective, arguing evidently as an afterthought that this was his method of refuting the alleged distortion of his statements by the INC hosts of Ang Tamang Daan. But on the night he uttered them in his television program, the word simply came out as profane language, without any warning or guidance for undiscerning ears.

As to petitioners other argument about having been denied due process and equal protection of the law, suffice it to state that we have at length debunked similar arguments in G.R. No. 164785. There is no need to further delve into the fact that petitioner was afforded due process when he attended the hearing of the MTRCB, and that he was unable to demonstrate that he was unjustly discriminated against in the MTRCB proceedings.

Finally, petitioner argues that there has been undue delegation of legislative power, as PD 1986 does not provide for the range of imposable penalties that may be applied with respect to violations of the provisions of the law.

The argument is without merit.

In Edu v. Ericta, the Court discussed the matter of undue delegation of legislative power in the following wise:

It is a fundamental principle flowing from the doctrine of separation of powers that Congress may not delegate its legislative power to the two other branches of the government, subject to the exception that local governments may over local affairs participate in its exercise. What cannot be delegated is the authority under the Constitution to make laws and to alter and repeal them; the test is the completeness of the statute in all its term and provisions when it leaves the hands of the legislature. To determine whether or not there is an undue delegation of legislative power, the inquiry must be directed to the scope and definiteness of the measure enacted. The legislature does not abdicate its functions when it describes what job must be done, who is to do it, and what is the scope of his authority. For a complex economy, that may

Soriano vs. Laguardia indeed be the only way in which the legislative process can go forward. A distinction has rightfully been made between delegation of power to make laws which necessarily involves a discretion as to what it shall be, which constitutionally may not be done, and delegation of authority or discretion as to its execution to be exercised under and in pursuance of the law, to which no valid objection can be made. The Constitution is thus not to be regarded as denying the legislature the necessary resources of flexibility and practicability.

To avoid the taint of unlawful delegation, there must be a standard, which implies at the very least that the legislature itself determines matters of principle and lays down fundamental policy. Otherwise, the charge of complete abdication may be hard to repel. A standard thus defines legislative policy, marks its limits, maps out its boundaries and specifies the public agency to apply it. It indicates the circumstances under which the legislative command is to be effected. It is the criterion by which legislative purpose may be carried out. Thereafter, the executive or administrative office designated may in pursuance of the above guidelines promulgate supplemental rules and regulations.[67]

Based on the foregoing pronouncements and analyzing the law in question, petitioners protestation about undue delegation of legislative power for the sole reason that PD 1986 does not provide for a range of penalties for violation of the law is untenable. His thesis is that MTRCB, in promulgating the IRR of PD 1986, prescribing a schedule of penalties for violation of the provisions of the decree, went beyond the terms of the law.

Petitioners posture is flawed by the erroneous assumptions holding it together, the first assumption being that PD 1986 does not prescribe the imposition of, or authorize the MTRCB to impose, penalties for violators of PD 1986. As earlier indicated, however, the MTRCB, by express and direct conferment of power and functions, is charged with supervising and regulating, granting, denying, or canceling permits for the exhibition and/or television broadcast of all motion pictures, television programs, and publicity materials to the end that no such objectionable pictures, programs, and materials shall be exhibited and/or broadcast by television. Complementing this provision is Sec. 3(k) of the decree authorizing the MTRCB to exercise such powers and functions as may be necessary or incidental to the attainment of the purpose and objectives of *the law+. As earlier explained, the investiture of supervisory, regulatory, and disciplinary power would surely be a meaningless grant if it did not carry with it the power to penalize the supervised or the regulated as may be proportionate to the offense committed, charged, and proved. As the Court said in Chavez v. National Housing Authority:

Soriano vs. Laguardia x x x [W]hen a general grant of power is conferred or duty enjoined, every particular power necessary for the exercise of the one or the performance of the other is also conferred. x x x [W]hen the statute does not specify the particular method to be followed or used by a government agency in the exercise of the power vested in it by law, said agency has the authority to adopt any reasonable method to carry out its function.[68]

Given the foregoing perspective, it stands to reason that the power of the MTRCB to regulate and supervise the exhibition of TV programs carries with it or necessarily implies the authority to take effective punitive action for violation of the law sought to be enforced. And would it not be logical too to say that the power to deny or cancel a permit for the exhibition of a TV program or broadcast necessarily includes the lesser power to suspend?

The MTRCB promulgated the IRR of PD 1986 in accordance with Sec. 3(a) which, for reference, provides that agency with the power *to+ promulgate such rules and regulations as are necessary or proper for the implementation of this Act, and the accomplishment of its purposes and objectives x x x. And Chapter XIII, Sec. 1 of the IRR providing:
Section 1. VIOLATIONS AND ADMINISTRATIVE SANCTIONS.Without prejudice to the immediate filing of the appropriate criminal action and the immediate seizure of the pertinent articles pursuant to Section 13, any violation of PD 1986 and its Implementing Rules and Regulations governing motion pictures, television programs, and related promotional materials shall be penalized with suspension or cancellation of permits and/or licenses issued by the Board and/or with the imposition of fines and other administrative penalty/penalties. The Board recognizes the existing Table of Administrative Penalties attached without prejudice to the power of the Board to amend it when the need arises. In the meantime the existing revised Table of Administrative Penalties shall be enforced. (Emphasis added.)

This is, in the final analysis, no more than a measure to specifically implement the aforequoted provisions of Sec. 3(d) and (k). Contrary to what petitioner implies, the IRR does not expand the mandate of the MTRCB under the law or partake of the nature of an unauthorized administrative legislation. The MTRCB cannot shirk its responsibility to regulate the public airwaves and employ such means as it can as a guardian of the public.

In Sec. 3(c), one can already find the permissible actions of the MTRCB, along with the standards to be applied to determine whether there have been statutory breaches. The MTRCB

Soriano vs. Laguardia

may evaluate motion pictures, television programs, and publicity materials applying contemporary Filipino cultural values as standard, and, from there, determine whether these audio and video materials are objectionable for being immoral, indecent, contrary to law and/or good customs, *etc.+ x x x and apply the sanctions it deems proper. The lawmaking body cannot possibly provide for all the details in the enforcement of a particular statute.[69] The grant of the rule-making power to administrative agencies is a relaxation of the principle of separation of powers and is an exception to the non-delegation of legislative powers.[70] Administrative regulations or subordinate legislation calculated to promote the public interest are necessary because of the growing complexity of modern life, the multiplication of the subjects of governmental regulations, and the increased difficulty of administering the law.[71] Allowing the MTRCB some reasonable elbow-room in its operations and, in the exercise of its statutory disciplinary functions, according it ample latitude in fixing, by way of an appropriate issuance, administrative penalties with due regard for the severity of the offense and attending mitigating or aggravating circumstances, as the case may be, would be consistent with its mandate to effectively and efficiently regulate the movie and television industry.

But even as we uphold the power of the MTRCB to review and impose sanctions for violations of PD 1986, its decision to suspend petitioner must be modified, for nowhere in that issuance, particularly the power-defining Sec. 3 nor in the MTRCB Schedule of Administrative Penalties effective January 1, 1999 is the Board empowered to suspend the program host or even to prevent certain people from appearing in television programs. The MTRCB, to be sure, may prohibit the broadcast of such television programs or cancel permits for exhibition, but it may not suspend television personalities, for such would be beyond its jurisdiction. The MTRCB cannot extend its exercise of regulation beyond what the law provides. Only persons, offenses, and penalties clearly falling clearly within the letter and spirit of PD 1986 will be considered to be within the decrees penal or disciplinary operation. And when it exists, the reasonable doubt must be resolved in favor of the person charged with violating the statute and for whom the penalty is sought. Thus, the MTRCBs decision in Administrative Case No. 01-04 dated September 27, 2004 and the subsequent order issued pursuant to said decision must be modified. The suspension should cover only the television program on which petitioner appeared and uttered the offensive and obscene language, which sanction is what the law and the facts obtaining call for.

In ending, what petitioner obviously advocates is an unrestricted speech paradigm in which absolute permissiveness is the norm. Petitioners flawed belief that he may simply utter gutter profanity on television without adverse consequences, under the guise of free speech, does not

Soriano vs. Laguardia

lend itself to acceptance in this jurisdiction. We repeat: freedoms of speech and expression are not absolute freedoms. To say any act that restrains speech should be greeted with furrowed brows is not to say that any act that restrains or regulates speech or expression is per se invalid. This only recognizes the importance of freedoms of speech and expression, and indicates the necessity to carefully scrutinize acts that may restrain or regulate speech.

WHEREFORE, the decision of the MTRCB in Adm. Case No. 01-04 dated September 27, 2004 is hereby AFFIRMED with the MODIFICATIONof limiting the suspension to the program Ang Dating Daan. As thus modified, the fallo of the MTRCB shall read as follows:

WHEREFORE, in view of all the foregoing, a Decision is hereby rendered, imposing a penalty of THREE (3) MONTHS SUSPENSION on the television program,Ang Dating Daan, subject of the instant petition.

Co-respondents Joselito Mallari, Luzviminda Cruz, and UNTV Channel 37 and its owner, PBC, are hereby exonerated for lack of evidence.

Costs against petitioner.

SO ORDERED.

Tulfo vs. People

Decisions / Signed Resolutions

SECOND DIVISION [G.R. No. 161032, September 16, 2008] ERWIN TULFO, PETITIONER, VS. PEOPLE OF THE PHILIPPINES AND ATTY. CARLOS T. SO, RESPONDENTS. G.R. NO. 161176 SUSAN CAMBRI, REY SALAO, JOCELYN BARLIZO, AND PHILIP PICHAY, PETITIONERS, VS. COURT OF APPEALS, PEOPLE OF THE PHILIPPINES, AND CARLOS SO, RESPONDENTS. DECISION
VELASCO JR., J.: The freedom of the press is one of the cherished hallmarks of our democracy; but even as we strive to protect and respect the fourth estate, the freedom it enjoys must be balanced with responsibility. There is a fine line between freedom of expression and libel, and it falls on the courts to determine whether or not that line has been crossed. The Facts On the complaint of Atty. Carlos "Ding" So of the Bureau of Customs, four (4) separate informations were filed on September 8, 1999 with the Regional Trial Court in (RTC) Pasay City. These were assigned to Branch 112 and docketed as Criminal Case Nos. 99-1597 to 99-1600, and charged petitioners Erwin Tulfo, as author/writer, Susan Cambri, as managing editor, Rey Salao, as national editor, Jocelyn Barlizo, as city editor, and Philip Pichay, as president of the Carlo Publishing House, Inc., of the daily tabloid Remate, with the crime of libel in connection with the publication of the articles in the column "Direct Hit" in the issues of May 11, 1999; May 12, 1999; May 19, 1999; and June 25, 1999.[1] The four informations read as follows: Criminal Case No. 99-1598 That on or about the 11th day of May, 1999 in Pasay City, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together and mutually helping one another, being then the columnist, publisher and managing editor, respectively of "REMATE", a tabloid published daily and of general circulation in the Philippines, did then and there willfully, unlawfully and feloniously and with malicious intent to discredit or dishonor complainant, ATTY. CARLOS "DING" SO, and with the malicious intent of injuring and exposing said complainant to public hatred, contempt and ridicule, write and publish in the regular issue of said publication on May 11, 1999, its daily column "DIRECT HIT", quoted hereunder, to wit: PINAKAMAYAMAN SA CUSTOMS Ito palang si Atty. Ding So ng Intelligence Division ng Bureau of Customs and [sic] pinakamayaman na yata na government official sa buong bansa sa pangungurakot lamang diyan sa South Harbor. Hindi matibag ang gagong attorney dahil malakas daw ito sa Iglesia ni Kristo. Hoy, So! . . nakakahiya ka sa mga INC, ikaw na yata ang pinakagago at magnanakaw na miyembro nito. Balita ko, malapit ka nang itiwalag ng nasabing simbahan dahil sa mga kalokohan mo. Abangan bukas ang mga raket ni So sa BOC. WHEREIN said complainant was indicated as an extortionist, a corrupt public official, smuggler and having illegally acquired wealth, all as already stated, with the object of destroying his reputation, discrediting and ridiculing him before the bar of public opinion.[2] Criminal Case No. 99-1599

Tulfo vs. People

That on or about the 12th day of May, 1999 in Pasay City, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together and mutually helping one another, being then the columnist, publisher and managing editor, respectively of "REMATE", a tabloid published daily and of general circulation in the Philippines, did then and there willfully, unlawfully and feloniously and with malicious intent to discredit or dishonor complainant, ATTY. CARLOS "DING" SO, and with the malicious intent of injuring and exposing said complainant to public hatred, contempt and ridicule, write and publish in the regular issue of said publication on May 12, 1999, in daily column "DIRECT HIT", quoted hereunder, to wit: SI ATTY. SO NG BOC "LINTEK" din sa pangungurakot itong Ding So ng Bureau of Customs Intelligence Unit sa South Harbor. Daan-daang libong piso ang kinikita ng masiba at matakaw na si So sa mga importer na ayaw ideklara ang totoong laman ng mga container para makaiwas sa pagbayad ng malaking customs duties at taxes. Si So ang nagpapadrino sa mga pag-inspection ng mga container na ito. Siyempre-binibigyan din niya ng salapi yung ibang mga ahensiya para pumikit na lang at itikom ang kanilang nga [sic] bibig diyan sa mga buwayang taga BOC. Awang-awa ako sa ating gobyerno. Bankrupt na nga, ninanakawan pa ng mga kawatan tulad ni So. Ewan ko ba rito kay Atty. So, bakit hindi na lang tumayo ng sarili niyang robbery-hold-up gang para kumita ng mas mabilis. Hoy So.. hindi bagay sa iyo ang pagiging attorney . . . Mas bagay sa iyo ang pagiging buwayang naka korbata at holdaper. Magnanakaw ka So!!" WHEREIN said complainant was indicated as an extortionist, a corrupt public official, smuggler and having illegally acquired wealth, all as already stated, with the object of destroying his reputation, discrediting and ridiculing him before the bar of public opinion.[3] Criminal Case No. 99-1600 That on or about 19th day of May, 1999 in Pasay City, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together and mutually helping one another, being then the columnist, publisher and managing editor, respectively of "REMATE", a tabloid published daily and of general circulation in the Philippines, did then and there willfully, unlawfully and feloniously and with malicious intent to discredit or dishonor complainant, ATTY. CARLOS "DING" SO, and with the malicious intent of injuring and exposing said complainant to public hatred, contempt and ridicule, write and publish in the regular issue of said publication on May 19, 1999, in daily column "DIRECT HIT", quoted hereunder, to wit: xxxx "Tulad ni Atty. Ding So ng Bureau of Customs Intelligence Division, saksakan din ng lakas itong si Daniel Aquino ng Presidential Anti-Smuggling Unit na nakatalaga sa South Harbor. Tulad ni So, magnanakaw na tunay itong si Aquino. Panghihingi ng pera sa mga brokers, ang lakad nito. Pag hindi nagbigay ng pera ang mga brokers, maiipit ang pagre-release ng kanilang kargamento." WHEREIN said complainant was indicated as an extortionist, a corrupt public official, smuggler and having illegally acquired wealth, all as already stated, with the object of destroying his reputation, discrediting and ridiculing him before the bar of public opinion.[4] Criminal Case No. 99-1597 That on or about 25th day of June, 1999 in Pasay City, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together and mutually helping one another, being then the columnist, publisher and managing editor, respectively of "REMATE", a tabloid published daily and of general circulation in the

Tulfo vs. People

Philippines, did then and there willfully, unlawfully and feloniously and with malicious intent to discredit or dishonor complainant, ATTY. CARLOS "DING" T. SO, and with the malicious intent of injuring and exposing said complainant to public hatred, contempt and ridicule, write and publish in the regular issue of said publication on June 25, 1999, its daily column "DIRECT HIT", quoted hereunder, to wit: xxxx Nagfile ng P10 M na libel suit itong si Atty. Carlos So ng Bureau of Customs laban sa inyong lingkod at ilang opisyales ng Remate sa Pasay City Court. Nagalit itong tarantadong si Atty. So dahil binanatan ko siya at inexpose ang kagaguhan niya sa BOC. Hoy, So . . . dagdagan mo pa ang pagnanakaw mo dahil hindi kita tatantanan. Buhay ka pa sinusunog na ang iyong kaluluwa sa impyerno. WHEREIN said complainant was indicated as an extortionist, a corrupt public official, smuggler and having illegally acquired wealth, all as already stated, with the object of destroying his reputation, discrediting and ridiculing him before the bar of public opinion.[5] On November 3, 1999, Tulfo, Salao, and Cambri were arraigned, while Barlizo and Pichay were arraigned on December 15, 1999. They all pleaded not guilty to the offenses charged. At pre-trial, the following were admitted by petitioners: (1) that during the four dates of the publication of the questioned articles, the complaining witness was not assigned at South Harbor; (2) that the accused and complaining witness did not know each other during all the time material to the four dates of publication; (3) that Remate is a newspaper/tabloid of general circulation in the Philippines; (4) the existence and genuineness of the Remate newspaper; (5) the column therein and its authorship and the alleged libelous statement as well as the editorial post containing the designated positions of the other accused; and (6) the prosecution's qualified admission that it is the duty of media persons to expose corruption.[6] The prosecution presented four witnesses, namely: Oscar M. Ablan, Atty. James Fortes, Jr., Gladys Fontanilla, and complainant Atty. So. The prosecution presented documentary evidence as well. Ablan testified that he had read the four columns written by Tulfo, and that the articles were untrue because he had known Atty. So since 1992 and had worked with him in the Customs Intelligence and Investigation Service Division of the Bureau of Customs. He further testified that upon reading the articles written by Tulfo, he concluded that they referred to Atty. So because the subject articles identified "Atty. Carlos" as "Atty. `Ding' So" of the Customs Intelligence and Investigation Service Division, Bureau of Customs and there was only one Atty. Carlos "Ding" So of the Bureau of Customs.[7] Fontanilla, Records Officer I of the Bureau of Customs, testified that she issued a certification in connection with these cases upon the request of Atty. So.[8] This certification stated that as per records available in her office, there was only one employee by the name of "Atty. Carlos T. So" who was also known as "Atty. Ding So" in the Intelligence Division of the Customs Intelligence and Investigation Service or in the entire Bureau of Customs.[9] Atty. Fortes testified that he knew Atty. So as a fellow member of the Iglesia Ni Kristoand as a lawyer, and that having read the articles of Tulfo, he believed that these were untrue, as he knew Atty. Carlos "Ding" So.[10] Atty. So testified that he was the private complainant in these consolidated cases. He further testified that he is also known as Atty. "Ding" So, that he had been connected with the Bureau of Customs since October 1981, and that he was assigned as Officer-in-Charge (OIC) of the Customs Intelligence and Investigation Service Division at the Manila International Container Port since December 27, 1999. He executed two complaint-affidavits, one dated June 4, 1999 and the other dated July 5, 1999, for Criminal Case Nos. 99-1598 to 99-1600. Prior to this, he also filed 14 cases of libel against Raffy Tulfo, brother of petitioner Erwin Tulfo. He testified that petitioner Tulfo's act of imputing upon him criminality, assailing his honesty and integrity, caused him dishonor, discredit, and contempt among his co-members in the legal profession, co-officers of the Armed Forces of the Philippines, co-members and peers in the Iglesia ni Kristo, his co-officers and employees and superior officers in the Bureau of Customs, and among ordinary persons who had read said articles. He said it also caused him and his family sleepless nights, mental anguish, wounded feelings, intrigues, and embarrassment. He further testified that he included in his complaint for libel the officers of Remate such as the publisher, managing editor, city editor, and national editor because under Article 360 of the Revised Penal Code (RPC), they are equally responsible and liable to the same extent as if they were the author of the articles. He also testified that "Ding" is his nickname and that he is the only person in the entire Bureau of Customs who goes by the name of Atty. Carlos T. So or Atty. Carlos "Ding" So.[11] In his defense, petitioner Tulfo testified that he did not write the subject articles with malice, that he neither knew Atty. So nor met him before the publication of the articles. He testified that his criticism of a certain Atty. So of the South Harbor was not

Tulfo vs. People

directed against the complainant, but against a person by the name of Atty. "Ding" So at the South Harbor. Tulfo claimed that it was the practice of certain people to use other people's names to advance their corrupt practices. He also claimed that his articles had neither discredited nor dishonored the complainant because as per his source in the Bureau of Customs, Atty. So had been promoted. He further testified that he did not do any research on Atty. So before the subject articles, because as a columnist, he had to rely on his source, and that he had several sources in the Bureau of Customs, particularly in the South Harbor.[12] Petitioner Salao testified that he came to know Atty. Carlos "Ding" So when the latter filed a case against them. He testified that he is an employee of Carlo Publishing House, Inc.; that he was designated as the national editor of the newspaper Rematesince December 1999; that the duties of the position are to edit, evaluate, encode, and supervise layout of the news from the provinces; and that Tulfo was under the supervision of Rey Briones, Vice President for Editorial and Head of the Editorial Division. Salao further testified that he had no participation in the subject articles of Tulfo, nor had he anything to do with the latter's column.[13] Petitioner Cambri, managing editor of Remate, testified that she classifies the news articles written by the reporters, and that in the Editorial Division, the officers are herself; Briones, her supervisor; Lydia Bueno, as news and city editor; and Salao as national editor. She testified that petitioner Barlizo is her subordinate, whose duties and responsibilities are the typesetting, editing, and layout of the page assigned to her, the Metro page. She further testified that she had no participation in the writing, editing, or publication of the column of Tulfo because the column was not edited. She claimed that none among her co-accused from the Remate newspaper edited the columns of Tulfo, that the publication and editing of the subject articles were the responsibility of Tulfo, and that he was given blanket authority to write what he wanted to write. She also testified that the page wherein Tulfo's column appeared was supervised by Bueno as news editor.[14] Petitioner Pichay testified that he had been the president of Carlo Publishing House, Inc. since December 1998. He testified that the company practice was to have the columnists report directly to the vice-president of editorials, that the columnists were given autonomy on their columns, and that the vice-president for editorials is the one who would decide what articles are to be published and what are not. He further testified that Tulfo was already a regular contributor.[15] The Ruling of the RTC In a Decision dated November 17, 2000, the RTC found petitioners guilty of the crime of Libel. The dispositive portion reads as follows: WHEREFORE, the Court finds the accused ERWIN TULFO, SUSAN CAMBRI, REY SALAO, JOCELYN BARLIZO and PHILIP PICHAY guilty beyond reasonable doubt of four (4) counts of the crime of LIBEL, as defined in Article 353 of the Revised Penal Code, and penalized by prision correccional in its minimum and medium periods, or a fine ranging from P200.00 Pesos to P6,000.00 Pesos or both, under Article 355 of the same Code. Applying the Indeterminate Sentence Law, the Court hereby sentences EACH of the accused to suffer imprisonment of SIX (6) MONTHS of arresto mayor, as minimum, to FOUR (4) YEARS and TWO (2) MONTHS of prision correccional, as maximum, for EACH count with accessory penalties provided by law. Considering that the accused Erwin Tulfo, Susan Cambri, Rey Salao, Jocelyn Barlizo and Philip Pichay wrote and published the four (4) defamatory articles with reckless disregard, being, in the mind of the Court, of whether it was false or not, the said articles libelous per se, they are hereby ordered to pay, jointly and severally, the sum of EIGHT HUNDRED THOUSAND (P800,000.00) PESOS, as actual damages, the sum of ONE MILLION PESOS (P1,000,000.00), as moral damages, and an additional amount of FIVE HUNDRED THOUSAND PESOS (P500,000.00), by way of exemplary damages, all with subsidiary imprisonment, in case of insolvency, and to pay the costs. SO ORDERED.[16] The Ruling of the Court of Appeals Before the Court of Appeals (CA), Tulfo assigned the following errors: 1. THE LOWER COURT ERRED IN IGNORING THE UNREBUTTED TESTIMONY OF THE APPELLANT THAT HE DID NOT CRITICIZE THE PRIVATE COMPLAINANT WORKING AT THE NAIA. HE CRITICIZED ANOTHER PERSON WORKING AT THE SOUTH HARBOR. HENCE, THE ELEMENT OF IDENTITY IS LACKING.

Tulfo vs. People

2. THE LOWER COURT ERRED IN IGNORING THE LACK OF THE ESSENTIAL ELEMENT OF DISCREDIT OR DISHONOR, AS DEFINED BY JURISPRUDENCE. THERE WAS NO MALICE AGAINST THE PRIVATE COMPLAINANT ATTY. CARLOS "DING" SO. [17]

3.

His co-accused assigned the following errors: A The trial court seriously erred in holding accused Susan Cambri, Rey Salao, Jocelyn Barlizo and Philip Pichay liable for the defamations contained in the questioned articles despite the fact that the trial court did not have any finding as to their participation in the writing, editing and/or publication of the questioned articles. B The trial court seriously erred in concluding that libel was committed by all of the accused on the basis of its finding that the elements of libel have been satisfactorily established by evidence on record. C The trial court seriously erred in considering complainant to be the one referred to by Erwin Tulfo in his articles in question.[18] In a Decision[19] dated June 17, 2003, the Eighth Division of the CA dismissed the appeal and affirmed the judgment of the trial court. A motion for reconsideration dated June 30, 2003 was filed by Tulfo, while the rest of his co-accused filed a motion for reconsideration dated July 2, 2003. In a Resolution dated December 11, 2003, both motions were denied for lack of merit.[20] Petitions for Review on Certiorari under Rule 45 Tulfo brought this petition docketed as G.R. No. 161032, seeking to reverse the Decision of the CA in CA-G.R. CR No. 25318 which affirmed the decision of the RTC. Petitioners Cambri, Salao, Barlizo, and Pichay brought a similar petition docketed as G.R. No. 161176, seeking the nullification of the same CA decision. In a Resolution dated March 15, 2004, the two cases were consolidated since both cases arise from the same set of facts, involve the same parties, assail the same decision of the CA, and seek identical reliefs.[21] Assignment of Errors Petitioner Tulfo submitted the following assignment of errors: I Assuming that the Prosecution presented credible and relevant evidence, the Honorable CA erred in not declaring the assailed articles as privileged; the CA erred in concluding that malice in law exists by the court's having incorrectly reasoned out that malice was presumed in the instant case. II Even assuming arguendo that the articles complained of are not privileged, the lower court, nonetheless, committed gross error as defined by the provisions of Section 6 of Rule 45 by its misappreciation of the evidence presented on matters substantial and material to the guilt or innocence of the petitioner.[22] Petitioners Cambri, Salao, Barlizo, and Pichay submitted their own assignment of errors, as follows: A - The Court of Appeals Seriously Erred In Its Application of Article 360 Of The Revised Penal Code By Holding Cambri, Salao And Barlizo Liable For The Defamatory Articles In The May 11, 12, 19 And June 25, 1999 Issues Of Remate Simply Because They Were Managing Editor, National Editor And City Editor Respectively Of Remate And By Holding Pichay Also Liable For Libel Merely Because He Was The President Of Carlo Publishing House, Inc. Without Taking Into Account The Unrebutted Evidence That Petitioners Had No Participation In The Editing Or Publication Of The Defamatory Articles In Question. B - The Court Of Appeals Committed Grave Abuse Of Discretion In Manifestly Disregarding The Unrebutted Evidence That Petitioners Had No Participation In The Editing Or Publication Of The Defamatory Articles In Question.

Tulfo vs. People

C - The Court Of Appeals Seriously Misappreciated The Evidence In Holding That The Person Referred To In The Published Articles Was Private Complainant Atty. Carlos So.[23] Our Ruling The petitions must be dismissed. The assignment of errors of petitioner Tulfo shall be discussed first. In his appeal, Tulfo claims that the CA erred in not applying the ruling in Borjal v. Court of Appeals.[24] In essence, he argues that the subject articles fall under "qualifiedly privileged communication" under Borjal and that the presumption of malice in Art. 354 of the RPC does not apply. He argues that it is the burden of the prosecution to prove malice in fact. This case must be distinguished from Borjal on several points, the first being thatBorjal stemmed from a civil action for damages based on libel, and was not a criminal case. Second, the ruling in Borjal was that there was no sufficient identification of the complainant, which shall be differentiated from the present case in discussing the second assignment of error of Tulfo. Third, the subject in Borjal was a private citizen, whereas in the present case, the subject is a public official. Finally, it was held inBorjal that the articles written by Art Borjal were "fair commentaries on matters of public interest."[25] It shall be discussed and has yet to be determined whether or not the articles fall under the category of "fair commentaries." In passing, it must be noted that the defense of Tulfo's articles being qualifiedly privileged communication is raised for the first time in the present petition, and this particular issue was never brought before either the RTC or the CA. Thus, neither the RTC nor the CA had a chance to properly consider and evaluate this defense. Tulfo now draws parallels between his case and that of Art Borjal, and argues that the prosecution should have proved malice in fact, and it was error on the part of the trial and appellate courts to use the presumption of malice in law in Art. 354 of the RPC. This lays an unusual burden on the part of the prosecution, the RTC, and the CA to refute a defense that Tulfo had never raised before them. Whether or not the subject articles are privileged communications must first be established by the defense, which it failed to do at the level of the RTC and the CA. Even so, it shall be dealt with now, considering that an appeal in a criminal proceeding throws the whole case open for review. There is no question of the status of Atty. So as a public official, who served as the OIC of the Bureau of Customs Intelligence and Investigation Service at the Ninoy Aquino International Airport (NAIA) at the time of the printing of the allegedly libelous articles. Likewise, it cannot be refuted that the goings-on at the Bureau of Customs, a government agency, are matters of public interest. It is now a matter of establishing whether the articles of Tulfo are protected as qualified privileged communication or are defamatory and written with malice, for which he would be liable. Freedom of the Press v. Responsibility of the Press The Court has long respected the freedom of the press, and upheld the same when it came to commentaries made on public figures and matters of public interest. Even in cases wherein the freedom of the press was given greater weight over the rights of individuals, the Court, however, has stressed that such freedom is not absolute and unbounded. The exercise of this right or any right enshrined in the Bill of Rights, indeed, comes with an equal burden of responsible exercise of that right. The recognition of a right is not free license for the one claiming it to run roughshod over the rights of others. The Journalist's Code of Ethics adopted by the National Union of Journalists of the Philippines shows that the press recognizes that it has standards to follow in the exercise of press freedom; that this freedom carries duties and responsibilities. Art. I of said code states that journalists "recognize the duty to air the other side and the duty to correct substantive errors promptly." Art. VIII states that journalists "shall presume persons accused of crime of being innocent until proven otherwise." In the present case, it cannot be said that Tulfo followed the Journalist's Code of Ethicsand exercised his journalistic freedom responsibly. In his series of articles, he targeted one Atty. "Ding" So of the Bureau of Customs as being involved in criminal activities, and was using his public position for personal gain. He went even further than that, and called Atty. So an embarrassment to his religion, saying "ikaw na yata ang pinakagago at magnanakaw sa miyembro nito."[26]He accused Atty. So of stealing from the government with his alleged corrupt activities.[27] And when Atty. So filed a libel suit against him, Tulfo wrote another article, challenging Atty. So, saying, "Nagalit itong tarantadong si Atty. So dahil binabantayan ko siya at in-expose ang kagaguhan niya sa [Bureau of Customs]."[28]

Tulfo vs. People

In his testimony, Tulfo admitted that he did not personally know Atty. So, and had neither met nor known him prior to the publication of the subject articles. He also admitted that he did not conduct a more in-depth research of his allegations before he published them, and relied only on his source at the Bureau of Customs. In his defense before the trial court, Tulfo claimed knowledge of people using the names of others for personal gain, and even stated that he had been the victim of such a practice. He argued then that it may have been someone else using the name of Atty. So for corrupt practices at the South Harbor, and this person was the target of his articles. This argument weakens his case further, for even with the knowledge that he may be in error, even knowing of the possibility that someone else may have used Atty. So's name, as Tulfo surmised, he made no effort to verify the information given by his source or even to ascertain the identity of the person he was accusing. The trial court found Tulfo's accusations against Atty. So to be false, but Tulfo argues that the falsity of contents of articles does not affect their privileged character. It may be that the falsity of the articles does not prove malice. Neither did Borjal give journalists carte blanche with regard to their publications. It cannot be said that a false article accusing a public figure would always be covered by the mantle of qualified privileged communication. The portion of Borjal cited by Tulfo must be scrutinized further: Even assuming that the contents of the articles are false, mere error, inaccuracy or even falsity alone does not prove actual malice. Errors or misstatements are inevitable in any scheme of truly free expression and debate. Consistent with good faith and reasonable care, the press should not be held to account, to a point of suppression, for honest mistakes or imperfections in the choice of language. There must be some room for misstatement of fact as well as for misjudgment. Only by giving them much leeway and tolerance can they courageously and effectively function as critical agencies in our democracy. In Bulletin Publishing Corp. v. Noel we held A newspaper especially one national in reach and coverage, should be free to report on events and developments in which the public has a legitimate interest with minimum fear of being hauled to court by one group or another on criminal or civil charges for libel, so long as the newspaper respects and keeps within the standards of morality and civility prevailing within the general community. To avoid the self-censorship that would necessarily accompany strict liability for erroneous statements, rules governing liability for injury to reputation are required to allow an adequate margin of error by protecting some inaccuracies. It is for the same reason that the New York Times doctrine requires that liability for defamation of a public official or public figure may not be imposed in the absence of proof of "actual malice" on the part of the person making the libelous statement.[29] (Emphasis supplied.) Reading more deeply into the case, the exercise of press freedom must be done "consistent with good faith and reasonable care." This was clearly abandoned by Tulfo when he wrote the subject articles. This is no case of mere error or honest mistake, but a case of a journalist abdicating his responsibility to verify his story and instead misinforming the public. Journalists may be allowed an adequate margin of error in the exercise of their profession, but this margin does not expand to cover every defamatory or injurious statement they may make in the furtherance of their profession, nor does this margin cover total abandonment of responsibility. Borjal may have expanded the protection of qualified privileged communication beyond the instances given in Art. 354 of the RPC, but this expansion does not cover Tulfo. The addition to the instances of qualified privileged communications is reproduced as follows: To reiterate, fair commentaries on matters of public interest are privileged and constitute a valid defense in an action for libel or slander. The doctrine of fair comment means that while in general every discreditable imputation publicly made is deemed false, because every man is presumed innocent until his guilt is judicially proved, and every false imputation is deemed malicious, nevertheless, when the discreditable imputation is directed against a public person in his public capacity, it is not necessarily actionable. In order that such discreditable imputation to a public official may be actionable, it must either be a false allegation of fact or a comment based on a false supposition. If the comment is an expression of opinion, based on established facts, then it is immaterial that the opinion happens to be mistaken, as long as it might reasonably be inferred from the facts.[30] (Emphasis supplied.) The expansion speaks of "fair commentaries on matters of public interest." WhileBorjal places fair commentaries within the scope of qualified privileged communication, the mere fact that the subject of the article is a public figure or a matter of public interest does not automatically exclude the author from liability.Borjal allows that for a discreditable imputation to a public official to be actionable, it must be a false allegation of fact or a comment based on a false supposition. As previously mentioned, the trial court found that the allegations against Atty. So were false and that Tulfo did not exert effort to verify the information before publishing his articles. Tulfo offered no proof for his accusations. He claimed to have a source in the Bureau of Customs and relied only on this source for his columns, but did no further research on his story. The records of the case are bereft of any showing that Atty. So was

Tulfo vs. People

indeed the villain Tulfo pictured him to be. Tulfo's articles related no specific details or acts committed to prove Atty. So was indeed a corrupt public official. These columns were unsubstantiated attacks on Atty. So, and cannot be countenanced as being privileged simply because the target was a public official. Although wider latitude is given to defamatory utterances against public officials in connection with or relevant to their performance of official duties, or against public officials in relation to matters of public interest involving them, such defamatory utterances do not automatically fall within the ambit of constitutionally protected speech.[31] Journalists still bear the burden of writing responsibly when practicing their profession, even when writing about public figures or matters of public interest. As held in In Re: Emil P. Jurado: Surely it cannot be postulated that the law protects a journalist who deliberately prints lies or distorts the truth; or that a newsman may ecape liability who publishes derogatory or defamatory allegations against a person or entity, but recognizes no obligation bona fide to establish beforehand the factual basis of such imputations and refuses to submit proof thereof when challenged to do so. It outrages all notions of fair play and due process, and reduces to uselessness all the injunctions of the Journalists' Code of Ethics to allow a newsman, with all the potential of his profession to influence popular belief and shape public opinion, to make shameful and offensive charges destructive of personal or institutional honor and repute, and when called upon to justify the same, cavalierly beg off by claiming that to do so would compromise his sources and demanding acceptance of his word for the reliability of those sources.[32] The prosecution showed that Tulfo could present no proof of his allegations against Atty. So, only citing his one unnamed source. It is not demanded of him that he name his source. The confidentiality of sources and their importance to journalists are accepted and respected. What cannot be accepted are journalists making no efforts to verify the information given by a source, and using that unverified information to throw wild accusations and besmirch the name of possibly an innocent person. Journalists have a responsibility to report the truth, and in doing so must at least investigate their stories before publication, and be able to back up their stories with proof. The rumors and gossips spread by unnamed sources are not truth. Journalists are not storytellers or novelists who may just spin tales out of fevered imaginings, and pass them off as reality. There must be some foundation to their reports; these reports must be warranted by facts. Jurado also established that the journalist should exercise some degree of care even when writing about public officials. The case stated: Clearly, the public interest involved in freedom of speech and the individual interest of judges (and for that matter, all other public officials) in the maintenance of private honor and reputation need to be accommodated one to the other. And the point of adjustment or accommodation between these two legitimate interests is precisely found in the norm which requires those who, invoking freedom of speech, publish statements which are clearly defamatory to identifiable judges or other public officials to exercise bona fide care in ascertaining the truth of the statements they publish. The norm does not require that a journalist guarantee the truth of what he says or publishes. But the norm does prohibit the reckless disregard of private reputation by publishing or circulating defamatory statements without any bona fideeffort to ascertain the truth thereof. That this norm represents the generally accepted point of balance or adjustment between the two interests involved is clear from a consideration of both the pertinent civil law norms and the Code of Ethics adopted by the journalism profession in the Philippines.[33] Tulfo has clearly failed in this regard. His articles cannot even be considered as qualified privileged communication under the second paragraph of Art. 354 of the RPC which exempts from the presumption of malice "a fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative, or other official proceedings which are not of confidential nature, or any statement, report, or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions." This particular provision has several elements which must be present in order for the report to be exempt from the presumption of malice. The provision can be dissected as follows: In order that the publication of a report of an official proceeding may be considered privileged, the following conditions must exist:
(a) (b) (c) That it is a fair and true report of a judicial, legislative, or other official proceedings which are not of confidential nature, or of a statement, report or speech delivered in said proceedings, or of any other actperformed by a public officer in the exercise of his functions; That it is made in good faith; and That it is without any comments or remarks.[34]

The articles clearly are not the fair and true reports contemplated by the provision. They provide no details of the acts committed by the subject, Atty. So. They are plain and simple baseless accusations, backed up by the word of one unnamed source. Good faith is lacking, as Tulfo failed to substantiate or even attempt to verify his story before publication. Tulfo goes even further to attack the character of the subject, Atty. So, even calling him a disgrace to his religion and the legal profession. As none of the elements of the second paragraph of Art. 354 of the RPC is present in Tulfo's articles, it cannot thus be argued that they are qualified privileged communications under the RPC. Breaking down the provision further, looking at the terms "fair" and "true," Tulfo's articles do not meet the standard. "Fair" is defined as "having the qualities of impartiality and honesty."[35] "True" is defined as "conformable to fact; correct; exact; actual; genuine; honest."[36] Tulfo failed to satisfy these requirements, as he did not do research before making his allegations, and it

Tulfo vs. People

has been shown that these allegations were baseless. The articles are not "fair and true reports," but merely wild accusations. Even assuming arguendo that the subject articles are covered by the shield of qualified privileged communication, this would still not protect Tulfo. In claiming that his articles were covered by qualified privileged communication, Tulfo argues that the presumption of malice in law under Art. 354 of the RPC is no longer present, placing upon the prosecution the burden of proving malice in fact. He then argues that for him to be liable, there should have been evidence that he was motivated by ill will or spite in writing the subject articles. The test to be followed is that laid down in New York Times Co. v. Sullivan,[37] and reiterated in Flor v. People, which should be to determine whether the defamatory statement was made with actual malice, that is, with knowledge that it was false or with reckless disregard of whether it was false or not.[38] The trial court found that Tulfo had in fact written and published the subject articles with reckless disregard of whether the same were false or not, as proven by the prosecution. There was the finding that Tulfo failed to verify the information on which he based his writings, and that the defense presented no evidence to show that the accusations against Atty. So were true. Tulfo cannot argue that because he did not know the subject, Atty. So, personally, there was no malice attendant in his articles. The test laid down is the "reckless disregard" test, and Tulfo has failed to meet that test. The fact that Tulfo published another article lambasting respondent Atty. So can be considered as further evidence of malice, as held in U.S. vs. Montalvo,[39] wherein publication after the commencement of an action was taken as further evidence of a malicious design to injure the victim. Tulfo did not relent nor did he pause to consider his actions, but went on to continue defaming respondent Atty. So. This is a clear indication of his intent to malign Atty. So, no matter the cost, and is proof of malice. Leaving the discussion of qualified privileged communication, Tulfo also argues that the lower court misappreciated the evidence presented as to the identity of the complainant: that Tulfo wrote about Atty. "Ding" So, an official of the Bureau of Customs who worked at the South Harbor, whereas the complainant was Atty. Carlos So who worked at the NAIA. He claims that there has arisen a cloud of doubt as to the identity of the real party referred to in the articles. This argument is patently without merit. The prosecution was able to present the testimonies of two other witnesses who identified Atty. So from Tulfo's articles. There is the certification that there is only one Atty. So in the Bureau of Customs. And most damning to Tulfo's case is the last column he wrote on the matter, referring to the libel suit against him by Atty. So of the Bureau of Customs. In this article, Tulfo launched further attacks against Atty. So, stating that the libel case was due to the exposs Tulfo had written on the corrupt acts committed by Atty. So in the Bureau of Customs. This last article is an admission on the part of Tulfo that Atty. So was in fact the target of his attacks. He cannot now point to a putative "Atty. Ding So" at South Harbor, or someone else using the name of Atty. So as the real subject of his attacks, when he did not investigate the existence or non-existence of an Atty. So at South Harbor, nor investigate the alleged corrupt acts of Atty. So of the Bureau of Customs. Tulfo cannot say that there is doubt as to the identity of the Atty. So referred to in his articles, when all the evidence points to one Atty. So, the complainant in the present case. Having discussed the issue of qualified privileged communication and the matter of the identity of the person referred to in the subject articles, there remains the petition of the editors and president of Remate, the paper on which the subject articles appeared. In sum, petitioners Cambri, Salao, Barlizo, and Pichay all claim that they had no participation in the editing or writing of the subject articles, and are thus not liable. The argument must fail. The language of Art. 360 of the RPC is plain. It lists the persons responsible for libel: Art. 360. Persons responsible.--Any person who shall publish, exhibit, or cause the publication or exhibition of any defamation in writing or by similar means, shall be responsible for the same.

Tulfo vs. People

The author or editor of a book or pamphlet, or the editor or business manager of a daily newspaper, magazine or serial publication, shall be responsible for the defamations contained therein to the same extent as if he were the author thereof. The claim that they had no participation does not shield them from liability. The provision in the RPC does not provide absence of participation as a defense, but rather plainly and specifically states the responsibility of those involved in publishing newspapers and other periodicals. It is not a matter of whether or not they conspired in preparing and publishing the subject articles, because the law simply so states that they are liable as they were the author. Neither the publisher nor the editors can disclaim liability for libelous articles that appear on their paper by simply saying they had no participation in the preparation of the same. They cannot say that Tulfo was all alone in the publication of Remate, on which the subject articles appeared, when they themselves clearly hold positions of authority in the newspaper, or in the case of Pichay, as the president in the publishing company. As Tulfo cannot simply say that he is not liable because he did not fulfill his responsibility as a journalist, the other petitioners cannot simply say that they are not liable because they did not fulfill their responsibilities as editors and publishers. An editor or manager of a newspaper, who has active charge and control of its management, conduct, and policy, generally is held to be equally liable with the owner for the publication therein of a libelous article.[40] On the theory that it is the duty of the editor or manager to know and control the contents of the paper,[41] it is held that said person cannot evade responsibility by abandoning the duties to employees,[42]so that it is immaterial whether or not the editor or manager knew the contents of the publication.[43] In Fermin v. People of the Philippines,[44] the Court held that the publisher could not escape liability by claiming lack of participation in the preparation and publication of a libelous article. The Court cited U.S. v. Ocampo, stating the rationale for holding the persons enumerated in Art. 360 of the RPC criminally liable, and it is worth reiterating: According to the legal doctrines and jurisprudence of the United States, the printer of a publication containing libelous matter is liable for the same by reason of his direct connection therewith and his cognizance of the contents thereof. With regard to a publication in which a libel is printed, not only is the publisher but also all other persons who in any way participate in or have any connection with its publication are liable as publishers. xxxx In the case of State vs. Mason (26 L.R.A., 779; 26 Oreg., 273, 46 Am. St. Rep., 629), the question of the responsibility of the manager or proprietor of a newspaper was discussed. The court said, among other things (pp. 782, 783): "The question then recurs as to whether the manager or proprietor of a newspaper can escape criminal responsibility solely on the ground that the libelous article was published without his knowledge or consent. When a libel is published in a newspaper, such fact alone is sufficient evidence prima facie to charge the manager or proprietor with the guilt of its publication. "The manager and proprietor of a newspaper, we think ought to be held prima facie criminally for whatever appears in his paper; and it should be no defense that the publication was made without his knowledge or consent, x x x. "One who furnishes the means for carrying on the publication of a newspaper and entrusts its management to servants or employees whom he selects and controls may be said to cause to be published what actually appears, and should be held responsible therefore, whether he was individually concerned in the publication or not, x x x. Criminal responsibility for the acts of an agent or servant in the course of his employment necessarily implies some degree of guilt or delinquency on the part of the publisher; x x x. "We think, therefore, the mere fact that the libelous article was published in the newspaper without the knowledge or consent of its proprietor or manager is no defense to a criminal prosecution against such proprietor or manager." In the case of Commonwealth vs. Morgan (107 Mass., 197), this same question was considered and the court held that in the criminal prosecution of a publisher of a newspaper in which a libel appears, he isprima facie presumed to have published the libel, and that the exclusion of an offer by the defendant to prove that he never saw the libel and was not aware of its publication until it was pointed out to him and that an apology and retraction were afterwards published in the same paper, gave him no ground for exception. In this same case, Mr. Justice Colt, speaking for the court, said: "It is the duty of the proprietor of a public paper, which may be used for the publication of improper communications, to use reasonable caution in the conduct of his business that no libels be published." (Wharton's Criminal Law, secs. 1627, 1649; 1 Bishop's Criminal Law, secs. 219, 221; People vs. Wilson, 64 Ill., 195; Commonwealth vs. Damon, 136 Mass., 441.) The above doctrine is also the doctrine established by the English courts. In the case of Rex vs. Walter (3 Esp., 21) Lord Kenyon

Tulfo vs. People

said that he was "clearly of the opinion that the proprietor of a newspaper was answerable criminally as well as civilly for the acts of his servants or agents for misconduct in the management of the paper." This was also the opinion of Lord Hale, Mr. Justice Powell, and Mr. Justice Foster. Lofft, an English author, in his work on Libel and Slander, said: "An information for libel will lie against the publisher of a papers, although he did not know of its being put into the paper and stopped the sale as soon as he discovered it." In the case of People vs. Clay (86 Ill., 147) the court held that "A person who makes a defamatory statement to the agent of a newspaper for publication, is liable both civilly and criminally, and his liability is shared by the agent and all others who aid in publishing it."[45] Under Art. 360 of the RPC, as Tulfo, the author of the subject articles, has been found guilty of libel, so too must Cambri, Salao, Barlizo, and Pichay. Though we find petitioners guilty of the crime charged, the punishment must still be tempered with justice. Petitioners are to be punished for libel for the first time. They did not apply for probation to avoid service of sentence possibly in the belief that they have not committed any crime. In Buatis, Jr. v. People,[46] the Court, in a criminal case for libel, removed the penalty of imprisonment and instead imposed a fine as penalty. In Sazon v. Court of Appeals,[47] the accused was merely fined in lieu of the original penalty of imprisonment and fine. Freedom of expression as well as freedom of the press may not be unrestrained, but neither must it be reined in too harshly. In light of this, considering the necessity of a free press balanced with the necessity of a responsible press, the penalty of a fine of PhP 6,000 for each count of libel, with subsidiary imprisonment in case of insolvency, should suffice.[48] Lastly, the responsibilities of the members of the press notwithstanding, the difficulties and hazards they encounter in their line of work must also be taken into consideration. The award of damages by the lower court must be modified. Art. 2199 of the Civil Code provides, "Except as provided by law or by stipulation, one is entitled to an adequate compensation only for such pecuniary loss suffered by him as he has duly proved. Such compensation is referred to as actual or compensatory damages." There was no showing of any pecuniary loss suffered by the complainant Atty. So. Without proof of actual loss that can be measured, the award of actual damages cannot stand. In Del Mundo v. Court of Appeals, it was held, as regards actual and moral damages: A party is entitled to an adequate compensation for such pecuniary loss actually suffered by him as he has duly proved. Such damages, to be recoverable, must not only be capable of proof, but must actually be proved with a reasonable degree of certainty. We have emphasized that these damages cannot be presumed, and courts, in making an award must point out specific facts which could afford a basis for measuring whatever compensatory or actual damages are borne. Moral damages, upon the other hand, may be awarded to compensate one for manifold injuries such as physical suffering, mental anguish, serious anxiety, besmirched reputation, wounded feelings and social humiliation. These damages must be understood to be in the concept of grants, not punitive or corrective in nature, calculated to compensate the claimant for the injury suffered. Although incapable of exactness and no proof of pecuniary loss is necessary in order that moral damages may be awarded, the amount of indemnity being left to the sound discretion of the court, it is imperative, nevertheless, that (1) injury must have been suffered by the claimant, and (2) such injury must have sprung from any of the cases expressed in Article 2219 and Article 2220 of the Civil Code. A causal relation, in fine, must exist between the act or omission referred to in the Code which underlies, or gives rise to, the case or proceeding on the one hand, and the resulting injury, on the other hand; i.e. the first must be the proximate cause and the latter the direct consequence thereof.[49] It was the articles of Tulfo that caused injury to Atty. So, and for that Atty. So deserves the award of moral damages. Justification for the award of moral damages is found in Art. 2219(7) of the Civil Code, which states that moral damages may be recovered in cases of libel, slander, or any other form of defamation. As the cases involved are criminal cases of libel, they fall squarely within the ambit of Art. 2219(7). Moral damages can be awarded even in the absence of actual or compensatory damages. The fact that no actual or compensatory damage was proven before the trial court does not adversely affect the offended party's right to recover moral damages.[50] And while on the subject of moral damages, it may not be amiss to state at this juncture that Tulfo's libelous articles are abhorrent not only because of its vilifying and demeaning effect on Atty. So himself, but also because of their impact on

Tulfo vs. People

members of his family, especially on the children and possibly even the children's children. The Court can perhaps take judicial notice that the sense of kinship runs deeply in a typical Filipino family, such that the whole family usually suffers or rejoices at the misfortune or good fortune, as the case may be, of any of its member. Accordingly, any attempt to dishonor or besmirch the name and reputation of the head of the family, as here, invariably puts the other members in a state of disrepute, distress, or anxiety. This reality adds an imperative dimension to the award of moral damages to the defamed party. The award of exemplary damages, however, cannot be justified. Under Art. 2230 of the Civil Code, "In criminal offenses, exemplary damages as a part of the civil liability may be imposed when the crime was committed with one or more aggravating circumstances. Such damages are separate and distinct from fines and shall be paid to the offended party." No aggravating circumstances accompanied the commission of the libelous acts; thus, no exemplary damages can be awarded. Conclusion The press wields enormous power. Through its widespread reach and the information it imparts, it can mold and shape thoughts and opinions of the people. It can turn the tide of public opinion for or against someone, it can build up heroes or create villains. It is in the interest of society to have a free press, to have liberal discussion and dissemination of ideas, and to encourage people to engage in healthy debate. It is through this that society can progress and develop. Those who would publish under the aegis of freedom of the press must also acknowledge the corollary duty to publish responsibly. To show that they have exercised their freedom responsibly, they must go beyond merely relying on unfounded rumors or shadowy anonymous sources. There must be further investigation conducted, some shred of proof found to support allegations of misconduct or even criminal activity. It is in fact too easy for journalists to destroy the reputation and honor of public officials, if they are not required to make the slightest effort to verify their accusations. Journalists are supposed to be reporters of facts, not fiction, and must be able to back up their stories with solid research. The power of the press and the corresponding duty to exercise that power judiciously cannot be understated. But even with the need for a free press, the necessity that it be free does not mean that it be totally unfettered. It is still acknowledged that the freedom can be abused, and for the abuse of the freedom, there must be a corresponding sanction. It falls on the press to wield such enormous power responsibly. It may be a clich that the pen is mightier than the sword, but in this particular case, the lesson to be learned is that such a mighty weapon should not be wielded recklessly or thoughtlessly, but always guided by conscience and careful thought. A robust and independently free press is doubtless one of the most effective checks on government power and abuses. Hence, it behooves government functionaries to respect the value of openness and refrain from concealing from media corruption and other anomalous practices occurring within their backyard. On the other hand, public officials also deserve respect and protection against false innuendoes and unfounded accusation of official wrongdoing from an abusive press. As it were, the law and jurisprudence on libel heavily tilt in favor of press freedom. The common but most unkind perception is that government institutions and their officers and employees are fair game to official and personal attacks and even ridicule. And the practice on the ground is just as disconcerting. Reports and accusation of official misconduct often times merit front page or primetime treatment, while defenses set up, retraction issued, or acquittal rendered get no more, if ever, perfunctory coverage. The unfairness needs no belaboring. The balm of clear conscience is sometimes not enough. Perhaps lost in the traditional press freedom versus government impasse is the fact that a maliciously false imputation of corruption and dishonesty against a public official, as here, leaves a stigmatizing mark not only on the person but also the office to which he belongs. In the ultimate analysis, public service also unduly suffers. WHEREFORE, in view of the foregoing, the petitions in G.R. Nos. 161032 and 161176 are DISMISSED. The CA Decision dated June 17, 2003 in CA-G.R. CR No. 25318 is hereby AFFIRMED with the MODIFICATIONS that in lieu of imprisonment, the penalty to be imposed upon petitioners shall be a fine of six thousand pesos (PhP 6,000) for each count of libel, with subsidiary imprisonment in case of insolvency, while the award of actual damages and exemplary damages is DELETED. The Decision dated November 17, 2000 of the RTC, Branch 112 in Pasay City in Criminal Case Nos. 99-1597 to 99-1600 is modified to read as follows: WHEREFORE, the Court finds the accused ERWIN TULFO, SUSAN CAMBRI, REY SALAO, JOCELYN BARLIZO, and PHILIP PICHAY guilty beyond reasonable doubt of four (4) counts of the crime of LIBEL, as defined in Article 353 of the Revised Penal Code, and sentences EACH of the accused to pay a fine of SIX THOUSAND PESOS (PhP 6,000) per count of libel with

Tulfo vs. People

subsidiary imprisonment, in case of insolvency. Considering that the accused Erwin Tulfo, Susan Cambri, Rey Salao, Jocelyn Barlizo, and Philip Pichay wrote and published the four (4) defamatory articles with reckless disregard whether it was false or not, the said articles being libelous per se, they are hereby ordered to pay complainant Atty. Carlos T. So, jointly and severally, the sum of ONE MILLION PESOS (PhP 1,000,000) as moral damages. The claim of actual and exemplary damages is denied for lack of merit. Costs against petitioners. SO ORDERED.

Binay vs. Secretary of Justice

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 170643 September 8, 2006

JEJOMAR C. BINAY, for and in behalf of his minor daughter, JOANNA* MARIE BIANCA S. BINAY,petitioner, vs. THE SECRETARY OF JUSTICE, GENIVI V. FACTAO and VICENTE G. TIROL, respondents. DECISION YNARES-SANTIAGO, J.: This petition for review assails the November 22, 2004 Decision1 of the Court of Appeals in CA-G.R. SP No. 75989, which affirmed the Resolutions dated July 2, 20022 and January 8, 20033 of the Secretary of Justice reversing the Makati City Prosecutors finding of probable cause against private respondents and ordering the withdrawal of the information for libel filed in court against them, as well as the November 25, 2005 Resolution,4denying petitioners** motion for reconsideration. In the April 15-21, 2001 issue of Pinoy Times Special Edition, an article entitled "ALYAS ERAP JR." was published regarding the alleged extravagant lifestyle of the Binays and the assets that they acquired while in public office. Paragraph 25 of the article reads: Si Joanne Marie Bianca, 13 ang sinasabing ampong anak ng mga Binay, ay bumibili ng panty na nagkakahalaga ng P1,000 ang isa, ayon sa isang writer ni Binay. Magarbo ang pamumuhay ng batang ito dahil naspoiled umano ng kanyang ama. Based on this article, Elenita S. Binay, mother of the minor Joanna Marie Bianca,5 filed a complaint6 for libel against private respondents Vicente G. Tirol as publisher, and Genivi V. Factao as writer of the article, with the Office of the City Prosecutor of Makati. The pertinent portions of the complaint read: xxxx 5. GENIVI V. FACTAO, as writer of the said article, voluntarily, illegally, and with the object to insinuate and made it understood, and was in effect understood and interpreted by the public who read it, that the young lady referred to therein can be no other than my daughter Joanne, in this manner transmitting maliciously and intentionally to the public the impression that Joanne is a spoiled, spendthrift brat who would not mind or care to spend P1,000 for her underwear, all as already stated, with the object of destroying her reputation and discrediting and ridiculing her before the bar of public opinion. 6. The said article, for whatever its avowed purpose may be, is clearly aimed at scurrilously attacking my husband Jejomar C. Binay. In which case, the insinuations directed at Joanne are clearly pointless and was done only for purposes of exposing Joanne to public contempt. 6.1. That the said article should specifically focus in on Joannes panty is a clear and malicious invasion of her privacy and calculated to heap scorn and ridicule upon her. On top of this, there is no connection whatsoever to her being an adopted child despite which this was needlessly and maliciously highlighted.7 Joanna also submitted an affidavit8 where she claimed that:

Binay vs. Secretary of Justice 4. The article was completely unmindful of the hurt and anguish I felt after it needlessly and maliciously highlighted my being an adopted daughter. Furthermore, the article is a blatant lie. I have never in my life bought an underwear costing P1,000.00 or more. On the contrary, I have always maintained to keep a simple and modest life as it is how my parents had brought me up. The questioned article has no valid object except to destroy my reputation and to discredit and to bring ridicule upon me before my peers and that of the public.
Private respondents did not file their counter-affidavits. The City Prosecutor found a prima facie case for libel and recommended the filing of information against private respondents. The case9 was filed with the Regional Trial Court of Makati City. Alleging that they did not receive the subpoena and copy of the complaint, private respondents filed an omnibus motion to re-open the preliminary investigation. The City Prosecutor, however, denied private respondents motion for reconsideration,10 thus they filed a petition for review11 with the Secretary of Justice. On July 2, 2002, then Acting Justice Secretary Merceditas N. Gutierrez12 reversed the City Prosecutors findings and directed the withdrawal of the information filed in court.13 Elenitas motion for reconsideration was denied in the Resolution14 dated January 8, 2003, hence a petition for certiorari and prohibition15 was filed with the Court of Appeals which rendered the assailed Decision dated November 22, 2004, denying the petition and sustaining the Justice Secretarys ruling that there was nothing libelous in the subject article. The dispositive portion of the Decision reads: WHEREFORE, the present petition is dismissed for lack of merit and the Resolutions dated July 2, 2002 and January 8, 2003 of public respondent are affirmed in toto. SO ORDERED.16 The Court of Appeals also denied Elenitas motion for reconsideration, hence this petition, raising the following issues: I. The CA erred in not holding that public respondent acted with grave abuse of discretion tantamount to lack or excess of jurisdiction. II. The CA erred in not holding that the public respondent gravely abused its discretion for not abiding by the ruling in Sazon vs. Court of Appeals which states that an attack upon the private character of a public officer on matters which are not related to the discharge of his official functions may be libelous. III. The CA erred in not holding that there is probable cause to indict private respondents for the crime of libel and that they are probably guilty thereof.17 In a resolution dated March 20, 2006, the Court granted the motion of Jejomar C. Binay to replace his wife, Elenita S. Binay, as petitioner and representative of their minor daughter Joanna.18 The issue to be resolved is whether there is prima facie evidence showing that the subject article was libelous. Petitioner claims that the article is defamatory as it tends to, if not actually, injure Joannas reputation and diminish the esteem, respect, and goodwill that others have of her. Petitioner alleges that there is no good intention or justifiable motive in publishing Joannas status as an adopted child which is essentially a private concern and the purchase of an expensive intimate apparel, but to ridicule and to induce readers to lower their perception of Joanna. On the other hand, private respondents allege that they did not harp on Joannas status as an adopted child as the same was mentioned only once in the article; that they did not intend to injure her reputation or diminish her selfesteem; that they referred to the price of the underwear not for the purpose of maligning her or to make her look frivolous in the publics eyes, but to show that petitioner and his family lead lavish and extravagant lives; and that this matter is within the realm of public interest given that petitioner is an aspirant to a public office while his wife is an incumbent public official.

Binay vs. Secretary of Justice We grant the petition.

Under Article 353 of the Revised Penal Code, libel is defined as "a public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead." Its elements are as follows: (a) an imputation of a discreditable act or condition to another; (b) publication of the imputation; (c) identity of the person defamed; and (d) the existence of malice.19 Thus, for an imputation to be libelous, it must be defamatory, malicious, published, and the victim is identifiable.20 The elements of publication and identity of the person defamed are present in this case. Thus, in resolving the issue at hand, we limit our discussion on whether paragraph 25 of the subject article contains the two other elements of libel, to wit: (a) imputation of a discreditable act or condition to another, i.e., whether the paragraph is defamatory; and (b) existence of malice. In MVRS Pub. Inc. v. Islamic Da'wah Council of the Phils., Inc.,21 we defined defamatory language in this wise: Defamation, which includes libel and slander, means the offense of injuring a person's character, fame or reputation through false and malicious statements. It is that which tends to injure reputation or to diminish the esteem, respect, good will or confidence in the plaintiff or to excite derogatory feelings or opinions about the plaintiff. It is the publication of anything which is injurious to the good name or reputation of another or tends to bring him into disrepute. Defamation is an invasion of arelational interest since it involves the opinion which others in the community may have, or tend to have, of the plaintiff. It must be stressed that words which are merely insulting are not actionable as libel or slander per se, and mere words of general abuse however opprobrious, ill-natured, or vexatious, whether written or spoken, do not constitute a basis for an action for defamation in the absence of an allegation for special damages. The fact that the language is offensive to the plaintiff does not make it actionable by itself. (Emphasis added) In determining whether a statement is defamatory, the words used are construed in their entirety and taken in their plain, natural and ordinary meaning as they would naturally be understood by persons reading them, unless it appears that they were used and understood in another sense.22 Tested against the foregoing, we find that there is prima facie showing that paragraph 25 of the subject article is defamatory. It is opprobrious, ill-natured, and vexatious as it has absolutely nothing to do with petitioner's qualification as a mayoralty candidate or as a public figure. It appears that private respondents only purpose in focusing on Joannas status as an adopted child and her alleged extravagant purchases was to malign her before the public and to bring her into disrepute. This is a clear and simple invasion of her privacy. In Buatis, Jr. v. People,23 the Court found libelous a letter addressed to a lawyer for using words such as "lousy," "inutile," "carabao English," "stupidity," and "satan." It cast aspersion on the character, integrity and reputation of respondent as a lawyer and exposed him to public ridicule. Evidence aliunde was found unnecessary to prove libel. In the same manner, we need not require any evidence aliunde to prove that paragraph 25 is defamatory. It has exposed Joanna to the public at large as a spoiled and spendthrift adopted daughter and a compulsive buyer who has no qualms buying expensive lingerie. Private respondents argue that paragraph 25 constitutes privileged communication because it was a fair comment on the fitness of petitioner to run for public office, particularly on his lifestyle and that of his family. As such, malice cannot be presumed. It is now petitioners burden to prove malice in fact. We are not convinced. In the first place, paragraph 25 does not qualify as a conditionally or qualifiedly privileged communication, which Article 354 of the Revised Penal Code limits to the following instances: (1) A private communication made by a person to another in the performance of any legal, moral, or social duty; and (2) A fair and true report, made in good faith, without

Binay vs. Secretary of Justice any comments or remarks, of any judicial, legislative, or other official proceedings which are not of confidential nature, or of any statement, report, or speech delivered in said proceedings, or of any act performed by public officers in the exercise of their functions.
To qualify under the first category of a conditionally or qualifiedly privileged communication, paragraph 25 must fulfill the following elements: (1) the person who made the communication had a legal, moral, or social duty to make the communication, or at least, had an interest to protect, which interest may either be his own or of the one to whom it is made; (2) the communication is addressed to an officer or a board, or superior, having some interest or duty in the matter, and who has the power to furnish the protection sought; and (3) the statements in the communication are made in good faith and without malice. 24 Whichever way we view it, we cannot discern a legal, moral, or social duty in publishing Joanna's status as an adopted daughter. Neither is there any public interest respecting her purchases of panties worth P1,000.00. Whether she indeed bought those panties is not something that the public can afford any protection against. With this backdrop, it is obvious that private respondents' only motive in inserting paragraph 25 in the subject article is to embarrass Joanna before the reading public. In addition, the claim that paragraph 25 constitutes privileged communication is a matter of defense, 25 which is can only be proved in a full-blown trial. It is elementary that "a preliminary investigation is not the occasion for the full and exhaustive display of the parties evidence. It is for the presentation of such evidence only as may engender a wellgrounded belief that an offense has been committed and the accused is probably guilty thereof."26 Moreover, under Article 354 of the Revised Penal Code, every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown. It is thus incumbent upon private respondents to prove that "good intention and justifiable motive" attended the publication of the subject article. WHEREFORE, the petition is GRANTED. The Court of Appeals Decision in CA-G.R. SP No. 75989 dated November 22, 2004, upholding the Justice Secretarys Resolutions dated July 2, 2002 and January 8, 2003, ordering the withdrawal of the information filed against private respondents Genivi V. Factao and Vicente G. Tirol and the Resolution dated November 25, 2005, denying petitioners motion for reconsideration, are REVERSED AND SET ASIDE. The City Prosecutor of Makati City is ORDERED to continue and proceed with the case for libel against private respondents Vicente G. Tirol and Genivi V. Factao. SO ORDERED. Panganiban, Austria-Ma

MTRCB vs ABSCBN

THIRD DIVISION

[G.R. No. 155282. January 17, 2005]

MOVIE AND TELEVISION REVIEW AND CLASSIFICATION BOARD (MTRCB), petitioner, vs. ABS-CBN BROADCASTING CORPORATION and LOREN LEGARDA, respondents. DECISION
SANDOVAL-GUTIERREZ, J.:

For our resolution is the petition for review on certiorari under Rule 45 of the 1997 Rules of Court, as amended, filed by petitioner Movie and Television Review and Classification Board (MTRCB) against ABS-CBN Broadcasting Corporation (ABS-CBN) and former Senator Loren Legarda, respondents, assailing the (a) Decision dated November 18, 1997,[1] and (b) Order dated August 26, 2002[2] of the Regional Trial Court, Branch 77, Quezon City, in Civil Case No. Q-93-16052. The facts are undisputed. On October 15, 1991, at 10:45 in the evening, respondent ABS-CBN aired Prosti-tuition, an episode of the television (TV) program The Inside Story produced and hosted by respondent Legarda. It depicted female students moonlighting as prostitutes to enable them to pay for their tuition fees. In the course of the program, student prostitutes, pimps, customers, and some faculty members were interviewed. The Philippine Womens University (PWU) was named as the school of some of the students involved and the facade of PWU Building at Taft Avenue, Manila conspicuously served as the background of the episode. The showing of The Inside Story caused uproar in the PWU community. Dr. Leticia P. de Guzman, Chancellor and Trustee of the PWU, and the PWU Parents and Teachers Association filed lettercomplaints[3] with petitioner MTRCB. Both complainants alleged that the episode besmirched the name of the PWU and resulted in the harassment of some of its female students. Acting on the letter-complaints, the MTRCB Legal Counsel initiated a formal complaint with the MTRCB Investigating Committee, alleging among others, that respondents (1) did not submit The Inside Story to petitioner for its review and (2) exhibited the same without its permission, thus, violating Section 7[4] of Presidential Decree (P.D.) No. 1986[5] and Section 3,[6] Chapter III and Section 7,[7] Chapter IV of the MTRCB Rules and Regulations.[8] In their answer,[9] respondents explained that the The Inside Story is a public affairs program, news documentary and socio-political editorial, the airing of which isprotected by the constitutional provision on freedom of expression and of the press. Accordingly, petitioner has no power, authority and jurisdiction to impose any form of prior restraint upon respondents. On February 5, 1993, after hearing and submission of the parties memoranda, the MTRCB Investigating Committee rendered a Decision, the decretal portion of which reads:

MTRCB vs ABSCBN

WHEREFORE, the aforementioned premises, the respondents are ordered to pay the sum of TWENTY THOUSAND PESOS (P20,000.00) for non-submission of the program, subject of this case for review and approval of the MTRCB. Heretofore, all subsequent programs of the The Inside Story and all other programs of the ABS -CBN Channel 2 of the same category shall be submitted to the Board of Review and Approval before showing; otherwise the Board will act accordingly.[10]
On appeal, the Office of Atty. Henrietta S. Mendez, Chairman of the MTRCB, issued a Decision dated March 12, 1993 affirming the above ruling of its Investigating Committee.[11] Respondents filed a motion for reconsideration but was denied in a Resolution dated April 14, 1993. [12] Respondents then filed a special civil action for certiorari with the Regional Trial Court (RTC), Branch 77, Quezon City. It seeks to: (1) declare as unconstitutional Sections [13] [14] [15] [16] [17] [18] [19] [20] [21] 3(b), 3(c), 3(d), 4, 7, and 11 of P. D. No. 1986 and Sections 3, 7, and 28 (a) of the MTRCB Rules and Regulations;[22] (2) (in the alternative) exclude the The Inside Story from the coverage of the above cited provisions; and (3) annul and set aside the MTRCB Decision dated March 12, 1993 and Resolution dated April 14, 1993. Respondents averred that the above-cited provisions constitute prior restraint on respondents exercise of freedom of expression and of the press, and, therefore, unconstitutional. Furthermore, the above cited provisions do not apply to the The Inside Story because it falls under the category of public affairs program, news documentary, or socio -political editorials governed by standards similar to those governing newspapers. On November 18, 1997, the RTC rendered a Decision[23] in favor of respondents, the dispositive portion of which reads:

WHEREFORE, PREMISES CONSIDERED, judgment is hereby rendered: 1. ANNULLING AND SETTING ASIDE the assailed Decision and Resolution of MTRCB dated March 12, 1993; 2. DECLARING AND DECREEING that Sections 3 (b), (c), and (d), 4, 7, and 11 of P.D. No. 1986 and Sections 3, 7, 28 (a) of its Implementing Rules do not cover the TV Program The Inside Story and other similar programs, they being public affairs programs which can be equated to newspapers; and 3. MAKING PERMANENT the Injunction against Respondents or all persons acting in their behalf. SO ORDERED.
Petitioner filed a motion for reconsideration but was denied.[24] Hence, this petition for review on certiorari. Petitioner MTRCB through the Solicitor General, contends inter alia: first, all television programs, including public affairs programs, news documentaries, or socio-political editorials, are subject to petitioners power of review under Section 3 (b) of P.D. No. 1986 and pursuant to this Courts ruling in Iglesia ni Cristo vs. Court of Appeals;[25] second, television programs are more accessible to the public than newspapers, thus, the liberal regulation of the latter cannot apply to the former; third,petitioners power to review television programs under Section 3(b) of P. D. No. 1986 does not amount to prior

MTRCB vs ABSCBN

restraint; and fourth, Section 3(b) of P. D. No. 1986 does not violate respondents constitutional freedom of expression and of the press. Respondents take the opposite stance. The issue for our resolution is whether the MTRCB has the power or authority to review the The Inside Story prior to its exhibition or broadcast by television. The petition is impressed with merit. The present controversy brings into focus the provisions of Section 3 of P. D. No. 1986, partly reproduced as follows:

SEC. 3. Powers and Functions. The BOARD shall have the following functions, powers and duties: x x x x x x

b) To screen, review and examine all motion pictures as herein defined, television programs, including publicity materials such as advertisements, trailers and stills, whether such motion pictures and publicity materials be for theatrical or non-theatrical distribution, for television broadcast or for general viewing, imported or produced in the Philippines, and in the latter case, whether they be for local viewing or for export. c) To approve or disapprove, delete objectionable portions from and/or prohibit the importation, exportation, production, copying, distribution, sale, lease exhibition and/or television broadcast of the motion pictures, television programs and publicity materials subject of the preceding paragraph, which, in the judgment of the BOARD applying contemporary Filipino cultural values as standard, are objectionable for being immoral, indecent, contrary to law and/or good customs, injurious to the prestige of the Republic of the Philippines or its people, or with a dangerous tendency to encourage the commission of violence or of a wrong or crime, such as but not limited to: x x x d) To supervise, regulate, and grant, deny or cancel, permits for the importation, exportation, production, copying, distribution, sale, lease, exhibition, and/or television broadcast of all motion pictures, television programs and publicity materials, to the end and that no such pictures, programs and materials as are determined by the BOARD to be objectionable in accordance with paragraph (c) hereof shall be imported, exported, produced, copied, reproduced, distributed, sold, leased, exhibited and/or broadcast by television; x x x x x x.

Vis-a-vis the foregoing provisions, our task is to decide whether or not petitioner has the power to review the television program The Inside Story. The task is not Herculean because it merely resurrects this Court En Bancs ruling in Iglesia ni Cristo vs. Court of Appeals.[26] There, the Iglesia ni Cristo sought exception from petitioners review power contending that the term television programs under Sec. 3 (b) does not include religious programs which are protected under Section 5, Article III of the Constitution.[27] This Court, through Justice Reynato Puno, categorically ruled that P.D. No. 1986 gives

MTRCB vs ABSCBN

petitioner the power to screen, review and examine all television programs, emphasizing the phrase all television programs, thus:

The law gives the Board the power to screen, review and examine all television programs. By the clear terms of the law, the Board has the power to approve, delete x x x and/or prohibit the x x x exhibition and/or television broadcast of x x x television programs x x x. The law also directs the Board to apply contemporary Filipino cultural values as standard to determine those which are objectionable for being immoral, indecent, contrary to law and/or good customs, injurious to the prestige of the Republic of the Philippines and its people, or with a dangerous tendency to encourage the commission of violence or of a wrong or crime.
Settled is the rule in statutory construction that where the law does not make any exception, courts may not except something therefrom, unless there is compelling reason apparent in the law to justify it.[28] Ubi lex non distinguit nec distinguere debemos. Thus, when the law says all television programs, the word all covers all television programs, whether religious, public affairs, news documentary, etc.[29] The principle assumes that the legislative body made no qualification in the use of general word or expression.[30] It then follows that since The Inside Story is a television program, it is within the jurisdiction of the MTRCB over which it has power of review. Here, respondents sought exemption from the coverage of the term television programs on the ground that the The Inside Story is a public affairs program, news documentary and socio-political editorial protected under Section 4,[31] Article III of the Constitution. Albeit, respondents basis is not freedom of religion, as in Iglesia ni Cristo,[32] but freedom of expression and of the press, the ruling in Iglesia ni Cristo applies squarely to the instant issue. It is significant to note that in Iglesia ni Cristo, this Court declared that freedom of religion has been accorded a preferred status by the framers of our fundamental laws, past and present, designed to protect the broadest possible liberty of conscience, to allow each man to believe as his conscience directs x x x. Yet despite the fact that freedom of religion has been accorded a preferred status, still this Court, did not exempt the Iglesia ni Cristos religious program from petitioners review power. Respondents claim that the showing of The Inside Story is protected by the constitutional provision on freedom of speech and of the press. However, there has been no declaration at all by the framers of the Constitution that freedom of expression and of the press has a preferred status. If this Court, in Iglesia ni Cristo, did not exempt religious programs from the jurisdiction and review power of petitioner MTRCB, with more reason, there is no justification to exempt therefrom The Inside Story which, according to respondents, is protected by the constitutional provision on freedom of expression and of the press, a freedom bearing no preferred status. The only exceptions from the MTRCBs power of review are those expressly mentioned in Section 7 of P. D. No. 1986, such as (1) television programs imprinted or exhibited by the Philippine Government and/or its departments and agencies, and (2) newsreels. Thus:

SEC. 7. Unauthorized showing or exhibition. It shall be unlawful for any person or entity to exhibit or cause to be exhibited in any moviehouse, theatre, or public place or by television within the Philippines any motion picture, television program or publicity material, including trailers, and stills for lobby displays in connection with motion pictures, not duly authorized by the owner or his assignee and passed by the BOARD; or to print or cause to be printed on any motion picture to be exhibited in any theater or public place or by television a label or notice showing the same to have

MTRCB vs ABSCBN

been officially passed by the BOARD when the same has not been previously authorized, except motion pictures, television programs or publicity material imprinted or exhibited by the Philippine Government and/or its departments and agencies, and newsreels.
Still in a desperate attempt to be exempted, respondents contend that the The Inside Story falls under the category of newsreels. Their contention is unpersuasive. P. D. No. 1986 does not define newsreels. Websters dictionary defines newsreels as short motion picture films portraying or dealing with current events. [33] A glance at actual samples of newsreels shows that they are mostly reenactments of events that had already happened. Some concrete examples are those of Dziga Vertovs Russian Kino-Pravda newsreel series (Kino-Pravda means literally film-truth, a term that was later translated literally into the French cinema verite) and Frank CaprasWhy We Fight series.[34] Apparently, newsreels are straight presentation of events. They are depiction of actualities. Correspondingly, the MTRCB Rules and Regulations[35] implementing P. D. No. 1986 define newsreels as straight news reporting, as distinguished from news analyses, commentaries and opinions. Talk shows on a given issue are not considered newsreels .[36] Clearly, the The Inside Story cannot be considered a newsreel. It is more of a public affairs program which is described as a variety of news treatment; a cross between pure television news and news-related commentaries, analysis and/or exchange of opinions.[37] Certainly, such kind of program is within petitioners review power. It bears stressing that the sole issue here is whether petitioner MTRCB has authority to review The Inside Story. Clearly, we are not called upon to determine whether petitioner violated Section 4, Article III (Bill of Rights) of the Constitution providing that no law shall be passed abridging the freedom of speech, of oppression or the press. Petitioner did not disapprove or ban the showing of the program. Neither did it cancel respondents permit. Respondents were merely penalized for their failure to submit to petitioner The Inside Story for its review and approval. Therefore, we need not resolve whether certain provisions of P. D. No. 1986 and the MTRCB Rules and Regulations specified by respondents contravene the Constitution. Consequently, we cannot sustain the RTCs ruling that Sections 3 (c) (d), 4, 7 and 11 of P. D. No. 1986 and Sections 3, 7 and 28 (a) of the MTRCB Rules and Regulations are unconstitutional. It is settled that no question involving the constitutionality or validity of a law or governmental act may be heard and decided by the court unless there is compliance with the legal requisites for judicial inquiry, namely: (1) that the question must be raised by the proper party; (2) that there must be an actual case or controversy; (3) that the question must be raised at the earliest possible opportunity; and, (4) that the decision on the constitutional or legal question must be necessary to the determination of the case itself.[38] WHEREFORE, the instant petition is GRANTED. The assailed RTC Decision dated November 18, 1997 and Order dated August 26, 2002 are hereby REVERSED. The Decision dated March 12, 1993 of petitioner MTRCB is AFFIRMED. Costs against respondents. SO ORDERED.

JAL vs. Simangan

THIRD DIVISION [G.R. No. 170141, April 22, 2008] JAPAN AIRLINES, PETITIONER, VS. JESUS SIMANGAN, RESPONDENT. DECISION
REYES, R.T., J.: WHEN an airline issues a ticket to a passenger confirmed on a particular flight on a certain date, a contract of carriage arises, and the passenger has every right to expect that he would fly on that flight and on that date. If he does not, then the carrier opens itself to a suit for breach of contract of carriage.[1] The power to admit or not an alien into the country is a sovereign act which cannot be interfered with even by Japan Airlines (JAL).[2] In this petition for review on certiorari,[3] petitioner JAL appeals the: (1) Decision[4]dated May 31, 2005 of the Court of Appeals (CA) ordering it to pay respondent Jesus Simangan moral and exemplary damages; and (2) Resolution[5] of the same court dated September 28, 2005 denying JAL's motion for reconsideration. The Facts In 1991, respondent Jesus Simangan decided to donate a kidney to his ailing cousin, Loreto Simangan, in UCLA School of Medicine in Los Angeles, California, U.S.A. Upon request of UCLA, respondent undertook a series of laboratory tests at the National Kidney Institute in Quezon City to verify whether his blood and tissue type are compatible with Loreto's.[6] Fortunately, said tests proved that respondent's blood and tissue type were well-matched with Loreto's.[7] Respondent needed to go to the United States to complete his preliminary work-up and donation surgery. Hence, to facilitate respondent's travel to the United States, UCLA wrote a letter to the American Consulate in Manila to arrange for his visa. In due time, respondent was issued an emergency U.S. visa by the American Embassy in Manila.[8] Having obtained an emergency U.S. visa, respondent purchased a round trip plane ticket from petitioner JAL for US$1,485.00 and was issued the corresponding boarding pass.[9] He was scheduled to a particular flight bound for Los Angeles, California, U.S.A. via Narita, Japan.[10] On July 29, 1992, the date of his flight, respondent went to Ninoy Aquino International Airport in the company of several relatives and friends.[11] He was allowed to check-in at JAL's counter.[12] His plane ticket, boarding pass, travel authority and personal articles were subjected to rigid immigration and security routines.[13] After passing through said immigration and security procedures, respondent was allowed by JAL to enter its airplane.[14] While inside the airplane, JAL's airline crew suspected respondent of carrying a falsified travel document and imputed that he would only use the trip to the United States as a pretext to stay and work in Japan.[15] The stewardess asked respondent to show his travel documents. Shortly after, the stewardess along with a Japanese and a Filipino haughtily ordered him to stand up and leave the plane.[16] Respondent protested, explaining that he was issued a U.S. visa. Just to allow him to board the plane, he pleaded with JAL to closely monitor his movements when the aircraft stops over in Narita.[17] His pleas were ignored. He was then constrained to go out of the plane.[18] In a nutshell, respondent was bumped off the flight. Respondent went to JAL's ground office and waited there for three hours. Meanwhile, the plane took off and he was left behind.[19] Afterwards, he was informed that his travel documents were, indeed, in order.[20] Respondent was refunded the cost of his plane ticket less the sum of US$500.00 which was deducted by JAL.[21] Subsequently, respondent's U.S. visa was cancelled.[22] Displeased by the turn of events, respondent filed an action for damages against JAL with the Regional Trial Court (RTC) in Valenzuela City, docketed as Civil Case No. 4195-V-93. He claimed he was not able to donate his kidney to Loreto; and that he suffered terrible embarrassment and mental anguish.[23] He prayed that he be awarded P3 million as moral damages, P1.5 million as exemplary damages and P500,000.00 as attorney's fees.[24]

JAL vs. Simangan

JAL denied the material allegations of the complaint. It argued, among others, that its failure to allow respondent to fly on his scheduled departure was due to "a need for his travel documents to be authenticated by the United States Embassy"[25] because no one from JAL's airport staff had encountered a parole visa before.[26] It posited that the authentication required additional time; that respondent was advised to take the flight the following day, July 30, 1992. JAL alleged that respondent agreed to be rebooked on July 30, 1992.[27] JAL also lodged a counterclaim anchored on respondent's alleged wrongful institution of the complaint. It prayed for litigation expenses, exemplary damages and attorney's fees.[28] On September 21, 2000, the RTC presided by Judge Floro P. Alejo rendered its decision in favor of respondent (plaintiff), disposing as follows: WHEREFORE, judgment is hereby rendered ordering the defendant to pay the plaintiff the amount of P1,000,000.00 as moral damages, the amount of P500,000.00 as exemplary damages and the amount of P250,000.00 as attorney's fees, plus the cost of suit.[29] The RTC explained: In summarily and insolently ordering the plaintiff to disembark while the latter was already settled in his assigned seat, the defendant violated the contract of carriage; that when the plaintiff was ordered out of the plane under the pretext that the genuineness of his travel documents would be verified it had caused him embarrassment and besmirched reputation; and that when the plaintiff was finally not allowed to take the flight, he suffered more wounded feelings and social humiliation for which the plaintiff was asking to be awarded moral and exemplary damages as well as attorney's fees. The reason given by the defendant that what prompted them to investigate the genuineness of the travel documents of the plaintiff was that the plaintiff was not then carrying a regular visa but just a letter does not appear satisfactory. The defendant is engaged in transporting passengers by plane from country to country and is therefore conversant with the travel documents. The defendant should not be allowed to pretend, to the prejudice of the plaintiff not to know that the travel documents of the plaintiff are valid documents to allow him entry in the United States. The foregoing act of the defendant in ordering the plaintiff to deplane while already settled in his assigned seat clearly demonstrated that the defendant breached its contract of carriage with the plaintiff as passenger in bad faith and as such the plaintiff is entitled to moral and exemplary damages as well as to an award of attorney's fees.[30] Disagreeing with the RTC judgment, JAL appealed to the CA contending that it is not guilty of breach of contract of carriage, hence, not liable for damages.[31] It posited that it is the one entitled to recover on its counterclaim.[32] CA Ruling In a Decision[33] dated May 31, 2005, the CA affirmed the decision of the RTC with modification in that it lowered the amount of moral and exemplary damages and deleted the award of attorney's fees. The fallo of the CA decision reads: WHEREFORE, the appealed Decision is AFFIRMED with MODIFICATION. Appellant JAPAN AIR LINES is ordered to pay appellee JESUS SIMANGAN the reduced sums, as follows: Five Hundred Thousand Pesos (P500,000.00) as moral damages, and Two Hundred Fifty Thousand Pesos (P250,000.00) as exemplary damages. The award of attorney's fees is hereby DELETED.[34] The CA elucidated that since JAL issued to respondent a round trip plane ticket for a lawful consideration, "there arose a perfected contract between them."[35] It found that respondent was "haughtily ejected"[36] by JAL and that "he was certainly embarrassed and humiliated"[37] when, in the presence of other passengers, JAL's airline staff "shouted at him to stand up and arrogantly asked him to produce his travel papers, without the least courtesy every human being is entitled to";[38] and that "he was compelled to deplane on the grounds that his papers were fake."[39] The CA ratiocinated: While the protection of passengers must take precedence over convenience, the implementation of security measures must be attended by basic courtesies. In fact, breach of the contract of carriage creates against the carrier a presumption of liability, by a simple proof of injury, relieving the injured passenger of the duty to establish the fault of the carrier or of his employees; and placing on the carrier the burden to prove that it was due to an unforeseen event or to force majeure. That appellee possessed bogus travel documents and that he might stay illegally in Japan are allegations without substantiation. Also, appellant's attempt to rebook appellee the following day was too late and did not relieve it from liability. The damage had been done. Besides, its belated theory of novation, i.e., that appellant's original obligation to carry appellee to Narita and Los Angeles on July 29, 1992 was extinguished by novation when appellant and appellant agreed that appellee will

JAL vs. Simangan

instead take appellant's flight to Narita on the following day, July 30, 1992, deserves little attention. It is inappropriate at bar. Questions not taken up during the trial cannot be raised for the first time on appeal.[40] (Underscoring ours and citations were omitted) Citing Ortigas, Jr. v. Lufthansa German Airlines,[41] the CA declared that "(i)n contracts of common carriage, inattention and lack of care on the part of the carrier resulting in the failure of the passenger to be accommodated in the class contracted for amounts to bad faith or fraud which entitles the passengers to the award of moral damages in accordance with Article 2220 of the Civil Code."[42] Nevertheless, the CA modified the damages awarded by the RTC. It explained: Fundamental in the law on damages is that one injured by a breach of a contract, or by a wrongful or negligent act or omission shall have a fair and just compensation commensurate to the loss sustained as consequence of the defendant's act. Being discretionary on the court, the amount, however, should not be palpably and scandalously excessive. Here, the trial court's award of P1,000,000.00 as moral damages appears to be overblown. No other proof of appellee's social standing, profession, financial capabilities was presented except that he was single and a businessman. To Us, the sum of 500,000.00 is just and fair. For, moral damages are emphatically not intended to enrich a complainant at the expense of the defendant. They are awarded only to enable the injured party to obtain means, diversion or amusements that will serve to alleviate the moral suffering he has undergone, by reason of the defendant's culpable action. Moreover, the grant of P500,000.00 as exemplary damages needs to be reduced to a reasonable level. The award of exemplary damages is designed to permit the courts to mould behavior that has socially deleterious consequences and its imposition is required by public policy to suppress the wanton acts of the offender. Hence, the sum of P250,000.00 is adequate under the circumstances. The award of P250,000.00 as attorney's fees lacks factual basis. Appellee was definitely compelled to litigate in protecting his rights and in seeking relief from appellant's misdeeds. Yet, the record is devoid of evidence to show the cost of the services of his counsel and/or the actual expenses incurred in prosecuting his action.[43] (Citations were omitted) When JAL's motion for reconsideration was denied, it resorted to the petition at bar. Issues JAL poses the following issues I. WHETHER OR NOT THE COURT OF APPEALS ERRED IN RULING THAT RESPONDENT WAS ENTITLED TO MORAL DAMAGES, CONSIDERING THAT: A. JAL WAS NOT GUILTY OF BREACH OF CONTRACT. B. MORAL DAMAGES MAY BE AWARDED IN BREACH OF CONTRACT CASES ONLY WHEN THE BREACH IS ATTENDED BY FRAUD OR BAD FAITH. ASSUMINGARGUENDO THAT JAL WAS GUILTY OF BREACH, JAL DID NOT ACT FRAUDULENTLY OR IN BAD FAITH AS TO ENTITLE RESPONDENT TO MORAL DAMAGES. C. THE LAW DISTINGUISHES A CONTRACTUAL BREACH EFFECTED IN GOOD FAITH FROM ONE ATTENDED BY BAD FAITH. II. WHETHER OR NOT THE COURT OF APPEALS ERRED IN RULING THAT RESPONDENT WAS ENTITLED TO EXEMPLARY DAMAGES CONSIDERING THAT: A. EXEMPLARY DAMAGES ARE NOT RECOVERABLE IN BREACH OF CONTRACT OF CARRIAGE UNLESS THE CARRIER IS GUILTY OF WANTON, FRAUDULENT, RECKLESS, OPPRESSIVE OR MALEVOLENT CONDUCT. B. ASSUMING ARGUENDO THAT JAL WAS GUILTY OF BREACH, JAL DID NOT ACT IN A WANTON FRAUDULENT, RECKLESS, OPPRESSIVE OR MALEVOLENT MANNER AS TO ENTITLE RESPONDENT TO EXEMPLARY DAMAGES. III. ASSUMING ARGUENDO THAT RESPONDENT WAS ENTITLED TO AN AWARD OF DAMAGES, WHETHER OR NOT THE COURT OF APPEALS AWARD OF P750,000 IN DAMAGES WAS EXCESSIVE AND UNPRECEDENTED. IV.

JAL vs. Simangan

WHETHER OR NOT THE COURT OF APPEALS ERRED IN NOT FINDING FOR JAL ON ITS COUNTERCLAIM.[44] (Underscoring Ours) Basically, there are three (3) issues to resolve here: (1) whether or not JAL is guilty of contract of carriage; (2) whether or not respondent is entitled to moral and exemplary damages; and (3) whether or not JAL is entitled to its counterclaim for damages. Our Ruling This Court is not a trier of facts. Chiefly, the issues are factual. The RTC findings of facts were affirmed by the CA. The CA also gave its nod to the reasoning of the RTC except as to the awards of damages, which were reduced, and that of attorney's fees, which was deleted. We are not a trier of facts. We generally rely upon, and are bound by, the conclusions on this matter of the lower courts, which are better equipped and have better opportunity to assess the evidence first-hand, including the testimony of the witnesses.[45] We have repeatedly held that the findings of fact of the CA are final and conclusive and cannot be reviewed on appeal to the Supreme Court provided they are based on substantial evidence.[46] We have no jurisdiction, as a rule, to reverse their findings.[47] Among the exceptions to this rule are: (a) when the conclusion is a finding grounded entirely on speculations, surmises or conjectures; (b) when the inference made is manifestly mistaken, absurd or impossible; (c) where there is grave abuse of discretion; (d) when the judgment is based on a misapprehension of facts; (e) when the findings of facts are conflicting; (f) when the CA, in making its findings, went beyond the issues of the case and the same is contrary to the admissions of both appellant and appellee.[48] The said exceptions, which are being invoked by JAL, are not found here. There is no indication that the findings of the CA are contrary to the evidence on record or that vital testimonies of JAL's witnesses were disregarded. Neither did the CA commit misapprehension of facts nor did it fail to consider relevant facts. Likewise, there was no grave abuse of discretion in the appreciation of facts or mistaken and absurd inferences. We thus sustain the coherent facts as established by the courts below, there being no sufficient showing that the said courts committed reversible error in reaching their conclusions. JAL is guilty of breach of contract of carriage. That respondent purchased a round trip plane ticket from JAL and was issued the corresponding boarding pass is uncontroverted.[49] His plane ticket, boarding pass, travel authority and personal articles were subjected to rigid immigration and security procedure.[50] After passing through said immigration and security procedure, he was allowed by JAL to enter its airplane to fly to Los Angeles, California, U.S.A. via Narita, Japan.[51] Concisely, there was a contract of carriage between JAL and respondent. Nevertheless, JAL made respondent get off the plane on his scheduled departure on July 29, 1992. He was not allowed by JAL to fly. JAL thus failed to comply with its obligation under the contract of carriage. JAL justifies its action by arguing that there was "a need to verify the authenticity of respondent's travel document."[52] It alleged that no one from its airport staff had encountered a parole visa before.[53] It further contended that respondent agreed to fly the next day so that it could first verify his travel document, hence, there was novation.[54] It maintained that it was not guilty of breach of contract of carriage as respondent was not able to travel to the United States due to his own voluntary desistance.[55] We cannot agree. JAL did not allow respondent to fly. It informed respondent that there was a need to first check the authenticity of his travel documents with the U.S. Embassy.[56] As admitted by JAL, "the flight could not wait for Mr. Simangan because it was ready to depart."[57] Since JAL definitely declared that the flight could not wait for respondent, it gave respondent no choice but to be left behind. The latter was unceremoniously bumped off despite his protestations and valid travel documents and notwithstanding his contract of carriage with JAL. Damage had already been done when respondent was offered to fly the next day on July 30, 1992. Said offer did not cure JAL's default.

JAL vs. Simangan

Considering that respondent was forced to get out of the plane and left behind against his will, he could not have freely consented to be rebooked the next day. In short, he did not agree to the alleged novation. Since novation implies a waiver of the right the creditor had before the novation, such waiver must be express.[58] It cannot be supposed, without clear proof, that respondent had willingly done away with his right to fly on July 29, 1992. Moreover, the reason behind the bumping off incident, as found by the RTC and CA, was that JAL personnel imputed that respondent would only use the trip to the United States as a pretext to stay and work in Japan.[59] Apart from the fact that respondent's plane ticket, boarding pass, travel authority and personal articles already passed the rigid immigration and security routines,[60] JAL, as a common carrier, ought to know the kind of valid travel documents respondent carried. As provided in Article 1755 of the New Civil Code: "A common carrier is bound to carry the passengers safely as far as human care and foresight can provide,using the utmost diligence of very cautious persons, with a due regard for all the circumstances."[61] Thus, We find untenable JAL's defense of "verification of respondent's documents" in its breach of contract of carriage. It bears repeating that the power to admit or not an alien into the country is a sovereign act which cannot be interfered with even by JAL.[62] In an action for breach of contract of carriage, all that is required of plaintiff is to prove the existence of such contract and its non-performance by the carrier through the latter's failure to carry the passenger safely to his destination.[63] Respondent has complied with these twin requisites. Respondent is entitled to moral and exemplary damages and attorney's fees plus legal interest. With reference to moral damages, JAL alleged that they are not recoverable in actionsex contractu except only when the breach is attended by fraud or bad faith. It is contended that it did not act fraudulently or in bad faith towards respondent, hence, it may not be held liable for moral damages. As a general rule, moral damages are not recoverable in actions for damages predicated on a breach of contract for it is not one of the items enumerated under Article 2219 of the Civil Code.[64] As an exception, such damages are recoverable: (1) in cases in which the mishap results in the death of a passenger, as provided in Article 1764, in relation to Article 2206(3) of the Civil Code; and (2) in the cases in which the carrier is guilty of fraud or bad faith, as provided in Article 2220.[65] The acts committed by JAL against respondent amounts to bad faith. As found by the RTC, JAL breached its contract of carriage with respondent in bad faith. JAL personnel summarily and insolently ordered respondent to disembark while the latter was already settled in his assigned seat. He was ordered out of the plane under the alleged reason that the genuineness of his travel documents should be verified. These findings of facts were upheld by the CA, to wit: x x x he was haughtily ejected by appellant. He was certainly embarrassed and humiliated when, in the presence of other passengers, the appellant's airline staff shouted at him to stand up and arrogantly asked him to produce his travel papers, without the least courtesy every human being is entitled to. Then, he was compelled to deplane on the grounds that his papers were fake. His protestation of having been issued a U.S. visa coupled with his plea to appellant to closely monitor his movements when the aircraft stops over in Narita, were ignored. Worse, he was made to wait for many hours at the office of appellant only to be told later that he has valid travel documents.[66] (Underscoring ours) Clearly, JAL is liable for moral damages. It is firmly settled that moral damages are recoverable in suits predicated on breach of a contract of carriage where it is proved that the carrier was guilty of fraud or bad faith, as in this case. Inattention to and lack of care for the interests of its passengers who are entitled to its utmost consideration, particularly as to their convenience, amount to bad faith which entitles the passenger to an award of moral damages. What the law considers as bad faith which may furnish the ground for an award of moral damages would be bad faith in securing the contract and in the execution thereof, as well as in the enforcement of its terms, or any other kind of deceit.[67] JAL is also liable for exemplary damages as its above-mentioned acts constitute wanton, oppressive and malevolent acts against respondent. Exemplary damages, which are awarded by way of example or correction for the public good, may be recovered in contractual obligations, as in this case, if defendant acted in wanton, fraudulent, reckless, oppressive, or malevolent manner.[68] Exemplary damages are designed by our civil law to permit the courts to reshape behaviour that is socially deleterious in its

JAL vs. Simangan

consequence by creating negative incentives or deterrents against such behaviour. In requiring compliance with the standard of extraordinary diligence, a standard which is, in fact, that of the highest possible degree of diligence, from common carriers and in creating a presumption of negligence against them, the law seeks to compel them to control their employees, to tame their reckless instincts and to force them to take adequate care of human beings and their property.[69] Neglect or malfeasance of the carrier's employees could give ground for an action for damages. Passengers have a right to be treated by the carrier's employees with kindness, respect, courtesy and due consideration and are entitled to be protected against personal misconduct, injurious language, indignities and abuses from such employees.[70] The assessment of P500,000.00 as moral damages and P100,000.00 as exemplary damages in respondent's favor is, in Our view, reasonable and realistic. This award is reasonably sufficient to indemnify him for the humiliation and embarrassment he suffered. This also serves as an example to discourage the repetition of similar oppressive acts. With respect to attorney's fees, they may be awarded when defendant's act or omission has compelled plaintiff to litigate with third persons or to incur expenses to protect his interest.[71] The Court, in Construction Development Corporation of the Philippines v. Estrella,[72] citing Traders Royal Bank Employees Union-Independent v. National Labor Relations Commission,[73] elucidated thus: There are two commonly accepted concepts of attorney's fees, the so-called ordinary and extraordinary. In its ordinary concept, an attorney's fee is the reasonable compensation paid to a lawyer by his client for the legal services he has rendered to the latter. The basis of this compensation is the fact of his employment by and his agreement with the client. In its extraordinary concept, an attorney's fee is an indemnity for damages ordered by the court to be paid by the losing party in a litigation. The basis of this is any of the cases provided by law where such award can be made, such as those authorized in Article 2208, Civil Code, and is payable not to the lawyer but to the client, unless they have agreed that the award shall pertain to the lawyer as additional compensation or as part thereof .[74] It was therefore erroneous for the CA to delete the award of attorney's fees on the ground that the record is devoid of evidence to show the cost of the services of respondent's counsel. The amount is actually discretionary upon the Court so long as it passes the test of reasonableness. They may be recovered as actual or compensatory damages when exemplary damages are awarded and whenever the court deems it just and equitable,[75] as in this case. Considering the factual backdrop of this case, attorney's fees in the amount of P200,000.00 is reasonably modest. The above liabilities of JAL in the total amount of P800,000.00 earn legal interest pursuant to the Court's ruling in Construction Development Corporation of the Philippines v. Estrella,[76] citing Eastern Shipping Lines, Inc. v. Court of Appeals,[77]to wit: Regarding the imposition of legal interest at the rate of 6% from the time of the filing of the complaint, we held in Eastern Shipping Lines, Inc. v. Court of Appeals, that when an obligation, regardless of its source, i.e., law, contracts, quasicontracts, delicts or quasi-delicts is breached, the contravenor can be held liable for payment of interest in the concept of actual and compensatory damages, subject to the following rules, to wit 1. When the obligation is breached, and it consists in the payment of a sum of money, i.e., a loan or forbearance of money, the interest due should be that which may have been stipulated in writing. Furthermore, the interest due shall itself earn legal interest from the time it is judicially demanded. In the absence of stipulation, the rate of interest shall be 12% per annum to be computed from default, i.e., from judicial or extrajudicial demand under and subject to the provisions of Article 1169 of the Civil Code. 2. When an obligation, not constituting a loan or forbearance of money, is breached, an interest on the amount of damages awarded may be imposed at the discretion of the court at the rate of 6% per annum. No interest, however, shall be adjudged on unliquidated claims or damages except when or until the demand can be established with reasonable certainty. Accordingly, where the demand is established with reasonable certainty, the interest shall begin to run from the time the claim is made judicially or extrajudicially (Art. 1169, Civil Code) but when such certainty cannot be so reasonably established at the time the demand is made, the interest shall begin to run only from the date the judgment of the court is made (at which time the quantification of damages may be deemed to have been reasonably ascertained) . The actual base for the computation of legal interest shall, in any case, be on the amount finally adjudged. 3. When the judgment of the court awarding a sum of money becomes final and executory, the rate of legal interest, whether the case falls under paragraph 1 or paragraph 2, above, shall be 12% per annum from such finality until its satisfaction, this interim period being deemed to be by then an equivalent to a forbearance of credit.[78] (Emphasis supplied and citations omitted)

JAL vs. Simangan

Accordingly, in addition to the said total amount of P800,000.00, JAL is liable to pay respondent legal interest. Pursuant to the above ruling of the Court, the legal interest is 6% and it shall be reckoned from September 21, 2000 when the RTC rendered its judgment. From the time this Decision becomes final and executory, the interest rate shall be 12% until its satisfaction. JAL is not entitled to its counterclaim for damages. The counterclaim of JAL in its Answer[79] is a compulsory counterclaim for damages and attorney's fees arising from the filing of the complaint. There is no mention of any other counter claims. This compulsory counterclaim of JAL arising from the filing of the complaint may not be granted inasmuch as the complaint against it is obviously not malicious or unfounded. It was filed by respondent precisely to claim his right to damages against JAL. Well-settled is the rule that the commencement of an action does not per se make the action wrongful and subject the action to damages, for the law could not have meant to impose a penalty on the right to litigate.[80] We reiterate case law that if damages result from a party's exercise of a right, it isdamnum absque injuria.[81] Lawful acts give rise to no injury. Walang perhuwisyong maaring idulot ang paggamit sa sariling karapatan. During the trial, however, JAL presented a witness who testified that JAL suffered further damages. Allegedly, respondent caused the publications of his subject complaint against JAL in the newspaper for which JAL suffered damages.[82] Although these additional damages allegedly suffered by JAL were not incorporated in its Answer as they arose subsequent to its filing, JAL's witness was able to testify on the same before the RTC.[83] Hence, although these issues were not raised by the pleadings, they shall be treated in all respects as if they had been raised in the pleadings. As provided in Section 5, Rule 10 of the Rules of Court, "(w)hen issues not raised by the pleadings are tried with the express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings." Nevertheless, JAL's counterclaim cannot be granted. JAL is a common carrier. JAL's business is mainly with the traveling public. It invites people to avail themselves of the comforts and advantages it offers.[84] Since JAL deals with the public, its bumping off of respondent without a valid reason naturally drew public attention and generated a public issue. The publications involved matters about which the public has the right to be informed because they relate to a public issue. This public issue or concern is a legitimate topic of a public comment that may be validly published. Assuming that respondent, indeed, caused the publication of his complaint, he may not be held liable for damages for it. The constitutional guarantee of freedom of the speech and of the press includes fair commentaries on matters of public interest. This is explained by the Court in Borjal v. Court of Appeals,[85] to wit: To reiterate, fair commentaries on matters of public interest are privileged and constitute a valid defense in an action for libel or slander. The doctrine of fair comment means that while in general every discreditable imputation publicly made is deemed false, because every man is presumed innocent until his guilt is judicially proved, and every false imputation is deemed malicious, nevertheless, when the discreditable imputation is directed against a public person in his public capacity, it is not necessarily actionable. In order that such discreditable imputation to a public official may be actionable, it must either be a false allegation of fact or a comment based on a false supposition. If the comment is an expression of opinion, based on established facts, then it is immaterial that the opinion happens to be mistaken, as long as it might reasonably be inferred from the facts.[86] (Citations omitted and underscoring ours) Even though JAL is not a public official, the rule on privileged commentaries on matters of public interest applies to it. The privilege applies not only to public officials but extends to a great variety of subjects, and includes matters of public concern, public men, and candidates for office.[87] Hence, pursuant to the Borjal case, there must be an actual malice in order that a discreditable imputation to a public person in his public capacity or to a public official may be actionable. To be considered malicious, the libelous statements must be shown to have been written or published with the knowledge that they are false or in reckless disregard of whether they are false or not.[88] Considering that the published articles involve matters of public interest and that its expressed opinion is not malicious but

JAL vs. Simangan

based on established facts, the imputations against JAL are not actionable. Therefore, JAL may not claim damages for them. WHEREFORE, the petition is DENIED. The appealed Decision of the Court of Appeals is AFFIRMED WITH MODIFICATION. As modified, petitioner Japan Airlines is ordered to pay respondent Jesus Simangan the following: (1) P500,000.00 as moral damages; (2) P100,000.00 as exemplary damages; and (3) P200,000.00 as attorney's fees. The total amount adjudged shall earn legal interest at the rate of 6% per annum from the date of judgment of the Regional Trial Court on September 21, 2000 until the finality of this Decision. From the time this Decision becomes final and executory, the unpaid amount, if any, shall earn legal interest at the rate of 12% per annum until its satisfaction. SO ORDERED.

Reno vs. American Civil Liberties Union

RENO, ATTORNEY GENERAL OF THE UNITED STATES, et al. v. AMERICAN CIVIL LIBERTIES UNION et al.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

No. 96-511. Argued March 19, 1997 -- Decided June 26, 1997 Two provisions of the Communications Decency Act of 1996 (CDA or Act) seek to protect minors from harmful material on the Internet, an international network of interconnected computers that enables millions of people to communicate with one another in "cyberspace" and to access vast amounts of information from around the world. Title 47 U. S. C. A. 223(a)(1)(B)(ii) (Supp. 1997) criminalizes the "knowing" transmission of "obscene or indecent" messages to any recipient under 18 years of age. Section 223(d) prohibits the "knowin[g]" sending or displaying to a person under 18 of any message "that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs." Affirmative defenses are provided for those who take "good faith, . . . effective . . . actions" to restrict access by minors to the prohibited communications, 223(e)(5)(A), and those who restrict such access by requiring certain designated forms of age proof, such as a verified credit card or an adult identification number, 223(e)(5)(B). A number of plaintiffs filed suit challenging the constitutionality of 223(a)(1) and 223(d). After making extensive findings of fact, a three judge District Court convened pursuant to the Act entered a preliminary injunction against enforcement of both challenged provisions. The court's judgment enjoins the Government from enforcing 223(a)(1)(B)'s prohibitions insofar as they relate to "indecent" communications, but expressly preserves the Government's right to investigate and prosecute the obscenity or child pornography activities prohibited therein. The injunction against enforcement of 223(d) is unqualified because that section contains no separate reference to obscenity or child pornography. The Government appealed to this Court under the Act's special review provisions, arguing that the District Court erred in holding that the CDA violated both the First Amendment because it is overbroad and the Fifth Amendment because it is vague. Held: The CDA's "indecent transmission" and "patently offensive display" provisions abridge "the freedom of speech" protected by the First Amendment. Pp. 17-40. (a) Although the CDA's vagueness is relevant to the First Amendmentoverbreadth inquiry, the judgment should be affirmed without reaching theFifth Amendment issue. P. 17. (b) A close look at the precedents relied on by the Government--Ginsberg v.New York, 390 U.S. 629; FCC v. Pacifica Foundation, 438 U.S. 726; and Renton v.Playtime Theatres, Inc., 475 U.S. 41--raises, rather than relieves, doubts about the CDA's constitutionality. The CDA differs from the various laws and orders upheld in those cases in many ways, including that it does not allow parents to consent to their children's use of restricted materials; is not limited to commercial transactions; fails to provide any definition of

Reno vs. American Civil Liberties Union "indecent" and omits any requirement that "patently offensive" material lack socially redeeming value; neither limits its broad categorical prohibitions to particular times nor bases them on an evaluation by an agency familiar with the medium's unique characteristics; is punitive; applies to a medium that, unlike radio, receives fullFirst Amendment protection; and cannot be properly analyzed as a form of time, place, and manner regulation because it is a content based blanket restriction on speech. These precedents, then, do not require the Court to uphold the CDA and are fully consistent with the application of the most stringent review of its provisions. Pp. 17-21.
(c) The special factors recognized in some of the Court's cases as justifying regulation of the broadcast media--the history of extensive government regulation of broadcasting, see, e.g., Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 399-400; the scarcity of available frequencies at its inception, see, e.g., Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 637-638; and its "invasive" nature, see Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115, 128--are not present in cyberspace. Thus, these cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to the Internet. Pp. 22-24. (d) Regardless of whether the CDA is so vague that it violates the Fifth Amendment, the many ambiguities concerning the scope of its coverage render it problematic for First Amendment purposes. For instance, its use of the undefined terms "indecent" and "patently offensive" will provoke uncertainty among speakers about how the two standards relate to each other and just what they mean. The vagueness of such a content based regulation, see, e.g.,Gentile v. State Bar of Nev., 501 U.S. 1030, coupled with its increased deterrent effect as a criminal statute, see, e.g., Dombrowski v. Pfister, 380 U.S. 479, raise special First Amendment concerns because of its obvious chilling effect on free speech. Contrary to the Government's argument, the CDA is not saved from vagueness by the fact that its "patently offensive" standard repeats the second part of the three prong obscenity test set forth in Miller v. California, 413 U.S. 15, 24. The second Miller prong reduces the inherent vagueness of its own "patently offensive" term by requiring that the proscribed material be "specifically defined by the applicable state law." In addition, the CDA applies only to "sexual conduct," whereas, the CDA prohibition extends also to "excretory activities" and "organs" of both a sexual and excretory nature. Each of Miller's other two prongs also critically limits the uncertain sweep of the obscenity definition. Just because a definition including three limitations is not vague, it does not follow that one of those limitations, standing alone, is not vague. The CDA's vagueness undermines the likelihood that it has been carefully tailored to the congressional goal of protecting minors from potentially harmful materials. Pp. 24-28. (e) The CDA lacks the precision that the First Amendment requires when a statute regulates the content of speech. Although the Government has an interest in protecting children from potentially harmful materials, see, e.g., Ginsberg, 390 U. S., at 639, the CDA pursues that interest by suppressing a large amount of speech that adults have a constitutional right to send and receive, see, e.g., Sable, supra, at 126. Its breadth is

Reno vs. American Civil Liberties Union wholly unprecedented. The CDA's burden on adult speech is unacceptable if less restrictive alternatives would be at least as effective in achieving the Act's legitimate purposes. See, e.g., Sable,492 U. S., at 126. The Government has not proved otherwise. On the other hand, the District Court found that currently available user based software suggests that a reasonably effective method by which parents can prevent their children from accessing material which the parents believe is inappropriate will soon be widely available. Moreover, the arguments in this Court referred to possible alternatives such as requiring that indecent material be "tagged" to facilitate parental control, making exceptions for messages with artistic or educational value, providing some tolerance for parental choice, and regulating some portions of the Internet differently than others. Particularly in the light of the absence of any detailed congressional findings, or even hearings addressing the CDA's special problems, the Court is persuaded that the CDA is not narrowly tailored. Pp. 28-33.
(f) The Government's three additional arguments for sustaining the CDA's affirmative prohibitions are rejected. First, the contention that the Act is constitutional because it leaves open ample "alternative channels" of communication is unpersuasive because the CDA regulates speech on the basis of its content, so that a "time, place, and manner" analysis is inapplicable. See,e.g., Consolidated Edison Co. of N. Y. v. Public Serv. Comm'n of N. Y., 447 U.S. 530, 536. Second, the assertion that the CDA's "knowledge" and "specific person" requirements significantly restrict its permissible application to communications to persons the sender knows to be under 18 is untenable, given that most Internet forums are open to all comers and that even the strongest reading of the "specific person" requirement would confer broad powers of censorship, in the form of a "heckler's veto," upon any opponent of indecent speech. Finally, there is no textual support for the submission that material having scientific, educational, or other redeeming social value will necessarily fall outside the CDA's prohibitions. Pp. 33-35. (g) The 223(e)(5) defenses do not constitute the sort of "narrow tailoring" that would save the CDA. The Government's argument that transmitters may take protective "good faith actio[n]" by "tagging" their indecent communications in a way that would indicate their contents, thus permitting recipients to block their reception with appropriate software, is illusory, given the requirement that such action be "effective": The proposed screening software does not currently exist, but, even if it did, there would be no way of knowing whether a potential recipient would actually block the encoded material. The Government also failed to prove that 223(b)(5)'s verification defense would significantly reduce the CDA's heavy burden on adult speech. Although such verification is actually being used by some commercial providers of sexually explicit material, the District Court's findings indicate that it is not economically feasible for most noncommercial speakers. Pp. 35-37. (h) The Government's argument that this Court should preserve the CDA's constitutionality by honoring its severability clause, 608, and by construing nonseverable terms narrowly, is acceptable in only one respect. Because obscene speech may be banned totally, see Miller, supra, at 18, and 223(a)'s restriction of "obscene" material enjoys a textual

Reno vs. American Civil Liberties Union manifestation separate from that for "indecent" material, the Court can sever the term "or indecent" from the statute, leaving the rest of 223(a) standing. Pp. 37-39.
(i) The Government's argument that its "significant" interest in fostering the Internet's growth provides an independent basis for upholding the CDA's constitutionality is singularly unpersuasive. The dramatic expansion of this new forum contradicts the factual basis underlying this contention: that the unregulated availability of "indecent" and "patently offensive" material is driving people away from the Internet. P. 40. 929 F. Supp. 824, affirmed. Stevens, J., delivered the opinion of the Court, in which Scalia, Kennedy, Souter, Thomas, Ginsburg, and Breyer, JJ., joined. O'Connor, J., filed an opinion concurring in the judgment in part and dissenting in part, in which Rehnquist, C. J., joined.

SWS vs. Ascuncion

Pharmaceutical and Health Care Association of the Philippines vs Duque

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 173034 October 9, 2007

PHARMACEUTICAL AND HEALTH CARE ASSOCIATION OF THE PHILIPPINES, petitioner, vs. HEALTH SECRETARY FRANCISCO T. DUQUE III; HEALTH UNDER SECRETARIES DR. ETHELYN P. NIETO, DR. MARGARITA M. GALON, ATTY. ALEXANDER A. PADILLA, & DR. JADE F. DEL MUNDO; and ASSISTANT SECRETARIES DR. MARIO C. VILLAVERDE, DR. DAVID J. LOZADA, AND DR. NEMESIO T. GAKO,respondents. DECISION AUSTRIA-MARTINEZ, J.: The Court and all parties involved are in agreement that the best nourishment for an infant is mother's milk. There is nothing greater than for a mother to nurture her beloved child straight from her bosom. The ideal is, of course, for each and every Filipino child to enjoy the unequaled benefits of breastmilk. But how should this end be attained? Before the Court is a petition for certiorari under Rule 65 of the Rules of Court, seeking to nullify Administrative Order (A.O.) No. 2006-0012 entitled, Revised Implementing Rules and Regulations of Executive Order No. 51, Otherwise Known as The "Milk Code," Relevant International Agreements, Penalizing Violations Thereof, and for Other Purposes (RIRR). Petitioner posits that the RIRR is not valid as it contains provisions that are not constitutional and go beyond the law it is supposed to implement. Named as respondents are the Health Secretary, Undersecretaries, and Assistant Secretaries of the Department of Health (DOH). For purposes of herein petition, the DOH is deemed impleaded as a co-respondent since respondents issued the questioned RIRR in their capacity as officials of said executive agency.1 Executive Order No. 51 (Milk Code) was issued by President Corazon Aquino on October 28, 1986 by virtue of the legislative powers granted to the president under the Freedom Constitution. One of the preambular clauses of the Milk Code states that the law seeks to give effect to Article 112 of the International Code of Marketing of Breastmilk Substitutes (ICMBS), a code adopted by the World Health Assembly (WHA) in 1981. From 1982 to 2006, the WHA adopted several Resolutions to the effect that breastfeeding should be supported, promoted and protected, hence, it should be ensured that nutrition and health claims are not permitted for breastmilk substitutes. In 1990, the Philippines ratified the International Convention on the Rights of the Child. Article 24 of said instrument provides that State Parties should take appropriate measures to diminish infant and child mortality, and ensure that all segments of society, specially parents and children, are informed of the advantages of breastfeeding. On May 15, 2006, the DOH issued herein assailed RIRR which was to take effect on July 7, 2006. However, on June 28, 2006, petitioner, representing its members that are manufacturers of breastmilk substitutes, filed the present Petition for Certiorari and Prohibition with Prayer for the Issuance of a Temporary Restraining Order (TRO) or Writ of Preliminary Injunction. The main issue raised in the petition is whether respondents officers of the DOH acted without or in excess of jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and in violation of the provisions of the Constitution in promulgating the RIRR.3 On August 15, 2006, the Court issued a Resolution granting a TRO enjoining respondents from implementing the questioned RIRR.

Pharmaceutical and Health Care Association of the Philippines vs Duque After the Comment and Reply had been filed, the Court set the case for oral arguments on June 19, 2007. The Court issued an Advisory (Guidance for Oral Arguments) dated June 5, 2007, to wit:
The Court hereby sets the following issues: 1. Whether or not petitioner is a real party-in-interest; 2. Whether Administrative Order No. 2006-0012 or the Revised Implementing Rules and Regulations (RIRR) issued by the Department of Health (DOH) is not constitutional; 2.1 Whether the RIRR is in accord with the provisions of Executive Order No. 51 (Milk Code); 2.2 Whether pertinent international agreements1 entered into by the Philippines are part of the law of the land and may be implemented by the DOH through the RIRR; If in the affirmative, whether the RIRR is in accord with the international agreements; 2.3 Whether Sections 4, 5(w), 22, 32, 47, and 52 of the RIRR violate the due process clause and are in restraint of trade; and 2.4 Whether Section 13 of the RIRR on Total Effect provides sufficient standards. _____________ 1 (1) United Nations Convention on the Rights of the Child; (2) the WHO and Unicef "2002 Global Strategy on Infant and Young Child Feeding;" and (3) various World Health Assembly (WHA) Resolutions. The parties filed their respective memoranda. The petition is partly imbued with merit. On the issue of petitioner's standing With regard to the issue of whether petitioner may prosecute this case as the real party-in-interest, the Court adopts the view enunciated in Executive Secretary v. Court of Appeals,4 to wit: The modern view is that an association has standing to complain of injuries to its members. This view fuses the legal identity of an association with that of its members. An association has standing to file suit for its workers despite its lack of direct interest if its members are affected by the action. An organization has standing to assert the concerns of its constituents. xxxx x x x We note that, under its Articles of Incorporation, the respondent was organized x x x to act as the representative of any individual, company, entity or association on matters related to the manpower recruitment industry, and to perform other acts and activities necessary to accomplish the purposes embodied therein. The respondent is, thus, the appropriate party to assert the rights of its members, because it and its members are in every practical sense identical. x x x The respondent [association] is but the medium through which its individual members seek to make more effective the expression of their voices and the redress of their grievances. 5 (Emphasis supplied) which was reasserted in Purok Bagong Silang Association, Inc. v. Yuipco,6 where the Court ruled that an association has the legal personality to represent its members because the results of the case will affect their vital interests.7 Herein petitioner's Amended Articles of Incorporation contains a similar provision just like in Executive Secretary, that the association is formed "to represent directly or through approved representatives the pharmaceutical and health care

Pharmaceutical and Health Care Association of the Philippines vs Duque industry before the Philippine Government and any of its agencies, the medical professions and the general public."8 Thus, as an organization, petitioner definitely has an interest in fulfilling its avowed purpose of representing members who are part of the pharmaceutical and health care industry. Petitioner is duly authorized9to take the appropriate course of action to bring to the attention of government agencies and the courts any grievance suffered by its members which are directly affected by the RIRR. Petitioner, which is mandated by its Amended Articles of Incorporation to represent the entire industry, would be remiss in its duties if it fails to act on governmental action that would affect any of its industry members, no matter how few or numerous they are. Hence, petitioner, whose legal identity is deemed fused with its members, should be considered as a real party-in-interest which stands to be benefited or injured by any judgment in the present action.
On the constitutionality of the provisions of the RIRR First, the Court will determine if pertinent international instruments adverted to by respondents are part of the law of the land. Petitioner assails the RIRR for allegedly going beyond the provisions of the Milk Code, thereby amending and expanding the coverage of said law. The defense of the DOH is that the RIRR implements not only the Milk Code but also various international instruments10 regarding infant and young child nutrition. It is respondents' position that said international instruments are deemed part of the law of the land and therefore the DOH may implement them through the RIRR. The Court notes that the following international instruments invoked by respondents, namely: (1) The United Nations Convention on the Rights of the Child; (2) The International Covenant on Economic, Social and Cultural Rights; and (3) the Convention on the Elimination of All Forms of Discrimination Against Women, only provide in general terms that steps must be taken by State Parties to diminish infant and child mortality and inform society of the advantages of breastfeeding, ensure the health and well-being of families, and ensure that women are provided with services and nutrition in connection with pregnancy and lactation. Said instruments do not contain specific provisions regarding the use or marketing of breastmilk substitutes. The international instruments that do have specific provisions regarding breastmilk substitutes are the ICMBS and various WHA Resolutions. Under the 1987 Constitution, international law can become part of the sphere of domestic law either bytransformation or incorporation.11 The transformation method requires that an international law be transformed into a domestic law through a constitutional mechanism such as local legislation. The incorporation method applies when, by mere constitutional declaration, international law is deemed to have the force of domestic law.12 Treaties become part of the law of the land through transformation pursuant to Article VII, Section 21 of the Constitution which provides that "[n]o treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the members of the Senate." Thus, treaties or conventional international law must go through a process prescribed by the Constitution for it to be transformed into municipal law that can be applied to domestic conflicts.13 The ICMBS and WHA Resolutions are not treaties as they have not been concurred in by at least two-thirds of all members of the Senate as required under Section 21, Article VII of the 1987 Constitution. However, the ICMBS which was adopted by the WHA in 1981 had been transformed into domestic law through local legislation, the Milk Code. Consequently, it is the Milk Code that has the force and effect of law in this jurisdiction and not the ICMBS per se. The Milk Code is almost a verbatim reproduction of the ICMBS, but it is well to emphasize at this point that the Code did not adopt the provision in the ICMBS absolutely prohibiting advertising or other forms of promotion to the general public of products within the scope of the ICMBS. Instead, the Milk Code expressly provides that advertising, promotion, or other marketing materials may be allowed if such materials are duly authorized and approved by the Inter-Agency Committee (IAC).

Pharmaceutical and Health Care Association of the Philippines vs Duque On the other hand, Section 2, Article II of the 1987 Constitution, to wit:
SECTION 2. The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation and amity with all nations. (Emphasis supplied) embodies the incorporation method.14 In Mijares v. Ranada,15 the Court held thus: [G]enerally accepted principles of international law, by virtue of the incorporation clause of the Constitution, form part of the laws of the land even if they do not derive from treaty obligations. The classical formulation in international law sees those customary rules accepted as binding result from the combination [of] two elements: the established, widespread, and consistent practice on the part of States; and a psychological element known as the opinion juris sive necessitates (opinion as to law or necessity). Implicit in the latter element is a belief that the practice in question is rendered obligatory by the existence of a rule of law requiring it.16 (Emphasis supplied) "Generally accepted principles of international law" refers to norms of general or customary international law which are binding on all states,17 i.e., renunciation of war as an instrument of national policy, the principle of sovereign immunity,18 a person's right to life, liberty and due process,19 and pacta sunt servanda,20 among others. The concept of "generally accepted principles of law" has also been depicted in this wise: Some legal scholars and judges look upon certain "general principles of law" as a primary source of international law because they have the "character of jus rationale" and are "valid through all kinds of human societies." (Judge Tanaka in his dissenting opinion in the 1966 South West Africa Case, 1966 I.C.J. 296). O'Connell holds that certain priniciples are part of international law because they are "basic to legal systems generally" and hence part of the jus gentium. These principles, he believes, are established by a process of reasoning based on the common identity of all legal systems. If there should be doubt or disagreement, one must look to state practice and determine whether the municipal law principle provides a just and acceptable solution. x x x 21 (Emphasis supplied) Fr. Joaquin G. Bernas defines customary international law as follows: Custom or customary international law means "a general and consistent practice of states followed by them from a sense of legal obligation [opinio juris]." (Restatement) This statement contains the two basic elements of custom: the material factor, that is, how states behave, and the psychological orsubjective factor, that is, why they behave the way they do. xxxx The initial factor for determining the existence of custom is the actual behavior of states. This includes several elements: duration, consistency, and generality of the practice of states. The required duration can be either short or long. x x x xxxx Duration therefore is not the most important element. More important is the consistency and the generality of the practice. x x x xxxx Once the existence of state practice has been established, it becomes necessary to determine why states behave the way they do. Do states behave the way they do because they consider it obligatory to behave thus or do they do it only as a matter of courtesy? Opinio juris, or the belief that a certain form of

Pharmaceutical and Health Care Association of the Philippines vs Duque behavior is obligatory, is what makes practice an international rule. Without it, practice is not law.22 (Underscoring and Emphasis supplied)
Clearly, customary international law is deemed incorporated into our domestic system.23 WHA Resolutions have not been embodied in any local legislation. Have they attained the status of customary law and should they then be deemed incorporated as part of the law of the land? The World Health Organization (WHO) is one of the international specialized agencies allied with the United Nations (UN) by virtue of Article 57,24 in relation to Article 6325 of the UN Charter. Under the 1946 WHO Constitution, it is the WHA which determines the policies of the WHO,26 and has the power to adopt regulations concerning "advertising and labeling of biological, pharmaceutical and similar products moving in international commerce,"27 and to "make recommendations to members with respect to any matter within the competence of the Organization."28 The legal effect of its regulations, as opposed to recommendations, is quite different. Regulations, along with conventions and agreements, duly adopted by the WHA bind member states thus: Article 19. The Health Assembly shall have authority to adopt conventions or agreements with respect to any matter within the competence of the Organization. A two-thirds vote of the Health Assembly shall be required for the adoption of such conventions or agreements, which shall come into force for each Member when accepted by it in accordance with its constitutional processes. Article 20. Each Member undertakes that it will, within eighteen months after the adoption by the Health Assembly of a convention or agreement, take action relative to the acceptance of such convention or agreement. Each Member shall notify the Director-General of the action taken, and if it does not accept such convention or agreement within the time limit, it will furnish a statement of the reasons for non-acceptance. In case of acceptance, each Member agrees to make an annual report to the Director-General in accordance with Chapter XIV. Article 21. The Health Assembly shall have authority to adopt regulations concerning: (a) sanitary and quarantine requirements and other procedures designed to prevent the international spread of disease; (b) nomenclatures with respect to diseases, causes of death and public health practices; (c) standards with respect to diagnostic procedures for international use; (d) standards with respect to the safety, purity and potency of biological, pharmaceutical and similar products moving in international commerce; (e) advertising and labeling of biological, pharmaceutical and similar products moving in international commerce. Article 22. Regulations adopted pursuant to Article 21 shall come into force for all Members after due notice has been given of their adoption by the Health Assembly except for such Members as may notify the DirectorGeneral of rejection or reservations within the period stated in the notice. (Emphasis supplied) On the other hand, under Article 23, recommendations of the WHA do not come into force for members,in the same way that conventions or agreements under Article 19 and regulations under Article 21 come into force. Article 23 of the WHO Constitution reads: Article 23. The Health Assembly shall have authority to make recommendations to Members with respect to any matter within the competence of the Organization. (Emphasis supplied) The absence of a provision in Article 23 of any mechanism by which the recommendation would come into force for member states is conspicuous. The former Senior Legal Officer of WHO, Sami Shubber, stated that WHA recommendations are generally not binding, but they "carry moral and political weight, as they constitute the judgment on a health issue of the collective membership of the highest international body in the field of health."29 Even the ICMBS itself was adopted as a mere recommendation, as WHA Resolution No. 34.22 states:

Pharmaceutical and Health Care Association of the Philippines vs Duque "The Thirty-Fourth World Health Assembly x x x adopts, in the sense of Article 23 of the Constitution, the International Code of Marketing of Breastmilk Substitutes annexed to the present resolution." (Emphasis supplied)
The Introduction to the ICMBS also reads as follows: In January 1981, the Executive Board of the World Health Organization at its sixty-seventh session, considered the fourth draft of the code, endorsed it, and unanimously recommended to the Thirty-fourth World Health Assembly the text of a resolution by which it would adopt the code in the form of a recommendation rather than a regulation. x x x (Emphasis supplied) The legal value of WHA Resolutions as recommendations is summarized in Article 62 of the WHO Constitution, to wit: Art. 62. Each member shall report annually on the action taken with respect to recommendations made to it by the Organization, and with respect to conventions, agreements and regulations. Apparently, the WHA Resolution adopting the ICMBS and subsequent WHA Resolutions urging member states to implement the ICMBS are merely recommendatory and legally non-binding. Thus, unlike what has been done with the ICMBS whereby the legislature enacted most of the provisions into law which is the Milk Code, the subsequent WHA Resolutions,30 specifically providing for exclusive breastfeeding from 0-6 months, continued breastfeeding up to 24 months, and absolutely prohibiting advertisements and promotions of breastmilk substitutes, have not been adopted as a domestic law. It is propounded that WHA Resolutions may constitute "soft law" or non-binding norms, principles and practices that influence state behavior.31 "Soft law" does not fall into any of the categories of international law set forth in Article 38, Chapter III of the 1946 Statute of the International Court of Justice.32 It is, however, an expression of non-binding norms, principles, and practices that influence state behavior.33 Certain declarations and resolutions of the UN General Assembly fall under this category.34 The most notable is the UN Declaration of Human Rights, which this Court has enforced in various cases, specifically, Government of Hongkong Special Administrative Region v. Olalia,35 Mejoff v. Director of Prisons,36 Mijares v. Raada37 and Shangri-la International Hotel Management, Ltd. v. Developers Group of Companies, Inc..38 The World Intellectual Property Organization (WIPO), a specialized agency attached to the UN with the mandate to promote and protect intellectual property worldwide, has resorted to soft law as a rapid means of norm creation, in order "to reflect and respond to the changing needs and demands of its constituents."39 Other international organizations which have resorted to soft law include the International Labor Organization and the Food and Agriculture Organization (in the form of the Codex Alimentarius).40 WHO has resorted to soft law. This was most evident at the time of the Severe Acute Respiratory Syndrome (SARS) and Avian flu outbreaks. Although the IHR Resolution does not create new international law binding on WHO member states, it provides an excellent example of the power of "soft law" in international relations. International lawyers typically distinguish binding rules of international law-"hard law"-from non-binding norms, principles, and practices that influence state behavior-"soft law." WHO has during its existence generated many soft law norms, creating a "soft law regime" in international governance for public health. The "soft law" SARS and IHR Resolutions represent significant steps in laying the political groundwork for improved international cooperation on infectious diseases. These resolutions clearly define WHO member states' normative duty to cooperate fully with other countries and with WHO in connection with infectious disease surveillance and response to outbreaks. This duty is neither binding nor enforceable, but, in the wake of the SARS epidemic, the duty is powerful politically for two reasons. First, the SARS outbreak has taught the lesson that participating in, and

Pharmaceutical and Health Care Association of the Philippines vs Duque enhancing, international cooperation on infectious disease controls is in a country's self-interest x x x if this warning is heeded, the "soft law" in the SARS and IHR Resolution could inform the development of general and consistent state practice on infectious disease surveillance and outbreak response, perhaps crystallizing eventually into customary international law on infectious disease prevention and control.41
In the Philippines, the executive department implemented certain measures recommended by WHO to address the outbreaks of SARS and Avian flu by issuing Executive Order (E.O.) No. 201 on April 26, 2003 and E.O. No. 280 on February 2, 2004, delegating to various departments broad powers to close down schools/establishments, conduct health surveillance and monitoring, and ban importation of poultry and agricultural products. It must be emphasized that even under such an international emergency, the duty of a state to implement the IHR Resolution was still considered not binding or enforceable, although said resolutions had great political influence. As previously discussed, for an international rule to be considered as customary law, it must be established that such rule is being followed by states because they consider it obligatory to comply with such rules (opinio juris). Respondents have not presented any evidence to prove that the WHA Resolutions, although signed by most of the member states, were in fact enforced or practiced by at least a majority of the member states; neither have respondents proven that any compliance by member states with said WHA Resolutions was obligatory in nature. Respondents failed to establish that the provisions of pertinent WHA Resolutions are customary international law that may be deemed part of the law of the land. Consequently, legislation is necessary to transform the provisions of the WHA Resolutions into domestic law. The provisions of the WHA Resolutions cannot be considered as part of the law of the land that can be implemented by executive agencies without the need of a law enacted by the legislature. Second, the Court will determine whether the DOH may implement the provisions of the WHA Resolutions by virtue of its powers and functions under the Revised Administrative Code even in the absence of a domestic law. Section 3, Chapter 1, Title IX of the Revised Administrative Code of 1987 provides that the DOH shall define the national health policy and implement a national health plan within the framework of the government's general policies and plans, and issue orders and regulations concerning the implementation of established health policies. It is crucial to ascertain whether the absolute prohibition on advertising and other forms of promotion of breastmilk substitutes provided in some WHA Resolutions has been adopted as part of the national health policy. Respondents submit that the national policy on infant and young child feeding is embodied in A.O. No. 2005-0014, dated May 23, 2005. Basically, the Administrative Order declared the following policy guidelines: (1) ideal breastfeeding practices, such as early initiation of breastfeeding, exclusive breastfeeding for the first six months, extended breastfeeding up to two years and beyond; (2) appropriate complementary feeding, which is to start at age six months; (3) micronutrient supplementation; (4) universal salt iodization; (5) the exercise of other feeding options; and (6) feeding in exceptionally difficult circumstances. Indeed, the primacy of breastfeeding for children is emphasized as a national health policy. However, nowhere in A.O. No. 2005-0014 is it declared that as part of such health policy, the advertisement or promotion of breastmilk substitutes should be absolutely prohibited. The national policy of protection, promotion and support of breastfeeding cannot automatically be equated with a total ban on advertising for breastmilk substitutes. In view of the enactment of the Milk Code which does not contain a total ban on the advertising and promotion of breastmilk substitutes, but instead, specifically creates an IAC which will regulate said advertising and promotion, it follows that a total ban policy could be implemented only pursuant to a law amending the Milk Code passed by the constitutionally authorized branch of government, the legislature. Thus, only the provisions of the Milk Code, but not those of subsequent WHA Resolutions, can be validly implemented by the DOH through the subject RIRR.

Pharmaceutical and Health Care Association of the Philippines vs Duque Third, the Court will now determine whether the provisions of the RIRR are in accordance with those of the Milk Code.
In support of its claim that the RIRR is inconsistent with the Milk Code, petitioner alleges the following: 1. The Milk Code limits its coverage to children 0-12 months old, but the RIRR extended its coverage to "young children" or those from ages two years old and beyond: MILK CODE WHEREAS, in order to ensure that safe and adequate nutrition for infants is provided, there is a need to protect and promote breastfeeding and to inform the public about the proper use of breastmilk substitutes and supplements and related products through adequate, consistent and objective information and appropriate regulation of the marketing and distribution of the said substitutes, supplements and related products; RIRR Section 2. Purpose These Revised Rules and Regulations are hereby promulgated to ensure the provision of safe and adequate nutrition for infants and young children by the promotion, protection and support of breastfeeding and by ensuring the proper use of breastmilk substitutes, breastmilk supplements and related products when these are medically indicated and only when necessary, on the basis of adequate information and through appropriate marketing SECTION 4(e). "Infant" means a person falling and distribution. within the age bracket of 0-12 months. Section 5(ff). "Young Child" means a person from the age of more than twelve (12) months up to the age of three (3) years (36 months). 2. The Milk Code recognizes that infant formula may be a proper and possible substitute for breastmilk in certain instances; but the RIRR provides "exclusive breastfeeding for infants from 0-6 months" and declares that "there is no substitute nor replacement for breastmilk": MILK CODE WHEREAS, in order to ensure that safe and adequate nutrition for infants is provided, there is a need to protect and promote breastfeeding and to inform the public about the proper use of breastmilk substitutes and supplements and related products through adequate, consistent and objective information and appropriate regulation of the marketing and distribution of the said substitutes, supplements and related products; RIRR Section 4. Declaration of Principles The following are the underlying principles from which the revised rules and regulations are premised upon: a. Exclusive breastfeeding is for infants from 0 to six (6) months. b. There is no substitute or replacement for breastmilk.

3. The Milk Code only regulates and does not impose unreasonable requirements for advertising and promotion; RIRR imposes an absolute ban on such activities for breastmilk substitutes intended for infants from 0-24 months old or beyond, and forbids the use of health and nutritional claims. Section 13 of the RIRR, which provides for a "total effect" in the promotion of products within the scope of the Code, is vague: MILK CODE SECTION 6. The General Public and Mothers. RIRR Section 4. Declaration of Principles The following are the underlying principles from which the revised rules and regulations are premised upon:

(a) No advertising, promotion or other marketing materials, whether written, audio or visual, for products within the scope of this xxxx Code shall be printed, published, distributed, exhibited and broadcast unless such materials

Pharmaceutical and Health Care Association of the Philippines vs Duque are duly authorized and approved by an inter- f. Advertising, promotions, or sponsor-ships of agency committee created herein pursuant to infant formula, breastmilk substitutes and other the applicable standards provided for in this related products are prohibited. Code. Section 11. Prohibition No advertising, promotions, sponsorships, or marketing materials and activities for breastmilk substitutes intended for infants and young children up to twenty-four (24) months, shall be allowed, because they tend to convey or give subliminal messages or impressions that undermine breastmilk and breastfeeding or otherwise exaggerate breastmilk substitutes and/or replacements, as well as related products covered within the scope of this Code.
Section 13. "Total Effect" - Promotion of products within the scope of this Code must be objective and should not equate or make the product appear to be as good or equal to breastmilk or breastfeeding in the advertising concept. It must not in any case undermine breastmilk or breastfeeding. The "total effect" should not directly or indirectly suggest that buying their product would produce better individuals, or resulting in greater love, intelligence, ability, harmony or in any manner bring better health to the baby or other such exaggerated and unsubstantiated claim. Section 15. Content of Materials. - The following shall not be included in advertising, promotional and marketing materials: a. Texts, pictures, illustrations or information which discourage or tend to undermine the benefits or superiority of breastfeeding or which idealize the use of breastmilk substitutes and milk supplements. In this connection, no pictures of babies and children together with their mothers, fathers, siblings, grandparents, other relatives or caregivers (or yayas) shall be used in any advertisements for infant formula and breastmilk supplements; b. The term "humanized," "maternalized," "close to mother's milk" or similar words in describing breastmilk substitutes or milk supplements; c. Pictures or texts that idealize the use of infant and milk formula. Section 16. All health and nutrition claims for products within the scope of the Code are

Pharmaceutical and Health Care Association of the Philippines vs Duque absolutely prohibited. For this purpose, any phrase or words that connotes to increase emotional, intellectual abilities of the infant and young child and other like phrases shall not be allowed.
4. The RIRR imposes additional labeling requirements not found in the Milk Code: MILK CODE SECTION 10. Containers/Label. RIRR Section 26. Content Each container/label shall contain such message, in both Filipino (a) Containers and/or labels shall be designed and English languages, and which message to provide the necessary information about the cannot be readily separated therefrom, relative appropriate use of the products, and in such a the following points: way as not to discourage breastfeeding. (a) The words or phrase "Important Notice" or "Government Warning" or their equivalent; (b) Each container shall have a clear, conspicuous and easily readable and understandable message in Pilipino or English (b) A statement of the superiority of printed on it, or on a label, which message can breastfeeding; not readily become separated from it, and which shall include the following points: (c) A statement that there is no substitute for breastmilk; (i) the words "Important Notice" or their equivalent; (d) A statement that the product shall be used only on the advice of a health worker as to the (ii) a statement of the superiority of need for its use and the proper methods of breastfeeding; use; (iii) a statement that the product shall be used (e) Instructions for appropriate prepara-tion, only on the advice of a health worker as to the and a warning against the health hazards of need for its use and the proper methods of inappropriate preparation; and use; and (f) The health hazards of unnecessary or (iv) instructions for appropriate preparation, improper use of infant formula and other and a warning against the health hazards of related products including information that inappropriate preparation. powdered infant formula may contain pathogenic microorganisms and must be prepared and used appropriately. 5. The Milk Code allows dissemination of information on infant formula to health professionals; the RIRR totally prohibits such activity: MILK CODE SECTION 7. Health Care System. (b) No facility of the health care system shall be used for the purpose of promoting infant formula or other products within the scope of this Code. This Code does not, however, preclude the dissemination of information to health professionals as provided in Section 8(b). RIRR Section 22. No manufacturer, distributor, or representatives of products covered by the Code shall be allowed to conduct or be involved in any activity on breastfeeding promotion, education and production of Information, Education and Communication (IEC) materials on breastfeeding, holding of or participating as speakers in classes or seminars for women and children activities and to avoid the use of these venues to market

Pharmaceutical and Health Care Association of the Philippines vs Duque SECTION 8. Health Workers. their brands or company names.
(b) Information provided by manufacturers and distributors to health professionals regarding products within the scope of this Code shall be restricted to scientific and factual matters and such information shall not imply or create a belief that bottle-feeding is equivalent or superior to breastfeeding. It shall also include the information specified in Section 5(b). SECTION 16. All health and nutrition claims for products within the scope of the Code are absolutely prohibited. For this purpose, any phrase or words that connotes to increase emotional, intellectual abilities of the infant and young child and other like phrases shall not be allowed.

6. The Milk Code permits milk manufacturers and distributors to extend assistance in research and continuing education of health professionals; RIRR absolutely forbids the same. MILK CODE SECTION 8. Health Workers (e) Manufacturers and distributors of products within the scope of this Code may assist in the research, scholarships and continuing education, of health professionals, in accordance with the rules and regulations promulgated by the Ministry of Health. RIRR Section 4. Declaration of Principles The following are the underlying principles from which the revised rules and regulations are premised upon: i. Milk companies, and their representatives,should not form part of any policymaking body or entity in relation to the advancement of breasfeeding. SECTION 22. No manufacturer, distributor, or representatives of products covered by the Code shall be allowed to conduct or be involved in any activity on breastfeeding promotion, education and production of Information, Education and Communication (IEC) materials on breastfeeding, holding of or participating as speakers in classes or seminars for women and children activitiesand to avoid the use of these venues to market their brands or company names. SECTION 32. Primary Responsibility of Health Workers - It is the primary responsibility of the health workers to promote, protect and support breastfeeding and appropriate infant and young child feeding. Part of this responsibility is to continuously update their knowledge and skills on breastfeeding. No assistance, support, logistics or training from milk companies shall be permitted. 7. The Milk Code regulates the giving of donations; RIRR absolutely prohibits it. MILK CODE SECTION 6. The General Public and Mothers. RIRR Section 51. Donations Within the Scope of This Code - Donations of products, materials, defined and covered under the Milk Code and

Pharmaceutical and Health Care Association of the Philippines vs Duque (f) Nothing herein contained shall prevent these implementing rules and regulations, shall donations from manufacturers and distributors be strictly prohibited. of products within the scope of this Code upon request by or with the approval of the Ministry Section 52. Other Donations By Milk of Health. Companies Not Covered by this Code. Donations of products, equipments, and the like, not otherwise falling within the scope of this Code or these Rules, given by milk companies and their agents, representatives, whether in kind or in cash, may only be coursed through the Inter Agency Committee (IAC), which shall determine whether such donation be accepted or otherwise.
8. The RIRR provides for administrative sanctions not imposed by the Milk Code. MILK CODE RIRR Section 46. Administrative Sanctions. The following administrative sanctions shall be imposed upon any person, juridical or natural, found to have violated the provisions of the Code and its implementing Rules and Regulations: a) 1st violation Warning; b) 2nd violation Administrative fine of a minimum of Ten Thousand (P10,000.00) to Fifty Thousand (P50,000.00) Pesos, depending on the gravity and extent of the violation, including the recall of the offending product; c) 3rd violation Administrative Fine of a minimum of Sixty Thousand (P60,000.00) to One Hundred Fifty Thousand (P150,000.00) Pesos, depending on the gravity and extent of the violation, and in addition thereto, the recall of the offending product, and suspension of the Certificate of Product Registration (CPR); d) 4th violation Administrative Fine of a minimum of Two Hundred Thousand (P200,000.00) to Five Hundred (P500,000.00) Thousand Pesos, depending on the gravity and extent of the violation; and in addition thereto, the recall of the product, revocation of the CPR, suspension of the License to Operate (LTO) for one year; e) 5th and succeeding repeated violations Administrative Fine of One Million (P1,000,000.00) Pesos, the recall of the offending product, cancellation of the CPR, revocation of the License to Operate (LTO) of the company concerned, including the

Pharmaceutical and Health Care Association of the Philippines vs Duque blacklisting of the company to be furnished the Department of Budget and Management (DBM) and the Department of Trade and Industry (DTI);
f) An additional penalty of Two Thou-sand Five Hundred (P2,500.00) Pesos per day shall be made for every day the violation continues after having received the order from the IAC or other such appropriate body, notifying and penalizing the company for the infraction. For purposes of determining whether or not there is "repeated" violation, each product violation belonging or owned by a company, including those of their subsidiaries, are deemed to be violations of the concerned milk company and shall not be based on the specific violating product alone. 9. The RIRR provides for repeal of existing laws to the contrary. The Court shall resolve the merits of the allegations of petitioner seriatim. 1. Petitioner is mistaken in its claim that the Milk Code's coverage is limited only to children 0-12 months old. Section 3 of the Milk Code states: SECTION 3. Scope of the Code The Code applies to the marketing, and practices related thereto, of the following products: breastmilk substitutes, including infant formula; other milk products, foods and beverages, including bottle-fed complementary foods, when marketed or otherwise represented to be suitable, with or without modification, for use as a partial or total replacement of breastmilk; feeding bottles and teats. It also applies to their quality and availability, and to information concerning their use. Clearly, the coverage of the Milk Code is not dependent on the age of the child but on the kind of product being marketed to the public. The law treats infant formula, bottle-fed complementary food, and breastmilk substitute as separate and distinct product categories. Section 4(h) of the Milk Code defines infant formula as "a breastmilk substitute x x x to satisfy the normal nutritional requirements of infants up to between four to six months of age, and adapted to their physiological characteristics"; while under Section 4(b), bottle-fed complementary food refers to "any food, whether manufactured or locally prepared, suitable as a complement to breastmilk or infant formula, when either becomes insufficient to satisfy the nutritional requirements of the infant." An infant under Section 4(e) is a person falling within the age bracket 0-12 months. It is the nourishment of this group of infants or children aged 0-12 months that is sought to be promoted and protected by the Milk Code. But there is another target group. Breastmilk substitute is defined under Section 4(a) as "any food being marketed or otherwise presented as a partial or total replacement for breastmilk, whether or not suitable for that purpose."This section conspicuously lacks reference to any particular age-group of children. Hence, the provision of the Milk Code cannot be considered exclusive for children aged 0-12 months. In other words, breastmilk substitutes may also be intended for young children more than 12 months of age. Therefore, by regulating breastmilk substitutes, the Milk Code also intends to protect and promote the nourishment of children more than 12 months old. Evidently, as long as what is being marketed falls within the scope of the Milk Code as provided in Section 3, then it can be subject to regulation pursuant to said law, even if the product is to be used by children aged over 12 months. There is, therefore, nothing objectionable with Sections 242 and 5(ff)43 of the RIRR.

Pharmaceutical and Health Care Association of the Philippines vs Duque 2. It is also incorrect for petitioner to say that the RIRR, unlike the Milk Code, does not recognize that breastmilk substitutes may be a proper and possible substitute for breastmilk.
The entirety of the RIRR, not merely truncated portions thereof, must be considered and construed together. As held in De Luna v. Pascual,44 "[t]he particular words, clauses and phrases in the Rule should not be studied as detached and isolated expressions, but the whole and every part thereof must be considered in fixing the meaning of any of its parts and in order to produce a harmonious whole." Section 7 of the RIRR provides that "when medically indicated and only when necessary, the use of breastmilk substitutes is proper if based on complete and updated information." Section 8 of the RIRR also states that information and educational materials should include information on the proper use of infant formula when the use thereof is needed. Hence, the RIRR, just like the Milk Code, also recognizes that in certain cases, the use of breastmilk substitutes may be proper. 3. The Court shall ascertain the merits of allegations 345 and 446 together as they are interlinked with each other. To resolve the question of whether the labeling requirements and advertising regulations under the RIRR are valid, it is important to deal first with the nature, purpose, and depth of the regulatory powers of the DOH, as defined in general under the 1987 Administrative Code,47 and as delegated in particular under the Milk Code. Health is a legitimate subject matter for regulation by the DOH (and certain other administrative agencies) in exercise of police powers delegated to it. The sheer span of jurisprudence on that matter precludes the need to further discuss it..48 However, health information, particularly advertising materials on apparently non-toxic products like breastmilk substitutes and supplements, is a relatively new area for regulation by the DOH.49 As early as the 1917 Revised Administrative Code of the Philippine Islands,50 health information was already within the ambit of the regulatory powers of the predecessor of DOH.51 Section 938 thereof charged it with the duty to protect the health of the people, and vested it with such powers as "(g) the dissemination of hygienic information among the people and especially the inculcation of knowledge as to the proper care of infants and the methods of preventing and combating dangerous communicable diseases." Seventy years later, the 1987 Administrative Code tasked respondent DOH to carry out the state policy pronounced under Section 15, Article II of the 1987 Constitution, which is "to protect and promote the right to health of the people and instill health consciousness among them."52 To that end, it was granted under Section 3 of the Administrative Code the power to "(6) propagate health information and educate the population on important health, medical and environmental matters which have health implications."53 When it comes to information regarding nutrition of infants and young children, however, the Milk Code specifically delegated to the Ministry of Health (hereinafter referred to as DOH) the power to ensure that there is adequate, consistent and objective information on breastfeeding and use of breastmilk substitutes, supplements and related products; and the power to control such information. These are expressly provided for in Sections 12 and 5(a), to wit: SECTION 12. Implementation and Monitoring xxxx (b) The Ministry of Health shall be principally responsible for the implementation and enforcement of the provisions of this Code. For this purpose, the Ministry of Health shall have the following powers and functions: (1) To promulgate such rules and regulations as are necessary or proper for the implementation of this Code and the accomplishment of its purposes and objectives. xxxx

Pharmaceutical and Health Care Association of the Philippines vs Duque (4) To exercise such other powers and functions as may be necessary for or incidental to the attainment of the purposes and objectives of this Code.
SECTION 5. Information and Education (a) The government shall ensure that objective and consistent information is provided on infant feeding, for use by families and those involved in the field of infant nutrition. This responsibility shall cover the planning, provision, design and dissemination of information, and the control thereof, on infant nutrition. (Emphasis supplied) Further, DOH is authorized by the Milk Code to control the content of any information on breastmilk vis--visbreastmilk substitutes, supplement and related products, in the following manner: SECTION 5. x x x (b) Informational and educational materials, whether written, audio, or visual, dealing with the feeding of infants and intended to reach pregnant women and mothers of infants, shall include clear information on all the following points: (1) the benefits and superiority of breastfeeding; (2) maternal nutrition, and the preparation for and maintenance of breastfeeding; (3) the negative effect on breastfeeding of introducing partial bottlefeeding; (4) the difficulty of reversing the decision not to breastfeed; and (5) where needed, the proper use of infant formula, whether manufactured industrially or home-prepared. When such materials contain information about the use of infant formula, they shall include the social and financial implications of its use; the health hazards of inappropriate foods or feeding methods; and, in particular, the health hazards of unnecessary or improper use of infant formula and other breastmilk substitutes. Such materials shall not use any picture or text which may idealize the use of breastmilk substitutes. SECTION 8. Health Workers xxxx (b) Information provided by manufacturers and distributors to health professionals regarding products within the scope of this Code shall be restricted to scientific and factual matters, and such information shall not imply or create a belief that bottlefeeding is equivalent or superior to breastfeeding. It shall also include the information specified in Section 5(b). SECTION 10. Containers/Label (a) Containers and/or labels shall be designed to provide the necessary information about the appropriate use of the products, and in such a way as not to discourage breastfeeding. xxxx (d) The term "humanized," "maternalized" or similar terms shall not be used. (Emphasis supplied) The DOH is also authorized to control the purpose of the information and to whom such information may be disseminated under Sections 6 through 9 of the Milk Code54 to ensure that the information that would reach pregnant women, mothers of infants, and health professionals and workers in the health care system is restricted to scientific and factual matters and shall not imply or create a belief that bottlefeeding is equivalent or superior to breastfeeding. It bears emphasis, however, that the DOH's power under the Milk Code to control information regarding breastmilk visa-vis breastmilk substitutes is not absolute as the power to control does not encompass the power to absolutely prohibit the advertising, marketing, and promotion of breastmilk substitutes. The following are the provisions of the Milk Code that unequivocally indicate that the control over information given to the DOH is not absolute and that absolute prohibition is not contemplated by the Code:

Pharmaceutical and Health Care Association of the Philippines vs Duque a) Section 2 which requires adequate information and appropriate marketing and distribution of breastmilk substitutes, to wit:
SECTION 2. Aim of the Code The aim of the Code is to contribute to the provision of safe and adequate nutrition for infants by the protection and promotion of breastfeeding and by ensuring the proper use of breastmilk substitutes and breastmilk supplements when these are necessary, on the basis of adequate information and through appropriate marketing and distribution. b) Section 3 which specifically states that the Code applies to the marketing of and practices related to breastmilk substitutes, including infant formula, and to information concerning their use; c) Section 5(a) which provides that the government shall ensure that objective and consistent information is provided on infant feeding; d) Section 5(b) which provides that written, audio or visual informational and educational materials shall not use any picture or text which may idealize the use of breastmilk substitutes and should include information on the health hazards of unnecessary or improper use of said product; e) Section 6(a) in relation to Section 12(a) which creates and empowers the IAC to review and examine advertising, promotion, and other marketing materials; f) Section 8(b) which states that milk companies may provide information to health professionals but such information should be restricted to factual and scientific matters and shall not imply or create a belief that bottlefeeding is equivalent or superior to breastfeeding; and g) Section 10 which provides that containers or labels should not contain information that would discourage breastfeeding and idealize the use of infant formula. It is in this context that the Court now examines the assailed provisions of the RIRR regarding labeling and advertising. Sections 1355 on "total effect" and 2656 of Rule VII of the RIRR contain some labeling requirements, specifically: a) that there be a statement that there is no substitute to breastmilk; and b) that there be a statement that powdered infant formula may contain pathogenic microorganisms and must be prepared and used appropriately. Section 1657 of the RIRR prohibits all health and nutrition claims for products within the scope of the Milk Code, such as claims of increased emotional and intellectual abilities of the infant and young child. These requirements and limitations are consistent with the provisions of Section 8 of the Milk Code, to wit: SECTION 8. Health workers xxxx (b) Information provided by manufacturers and distributors to health professionals regarding products within the scope of this Code shall be restricted to scientific and factual matters, and such information shall not imply or create a belief that bottlefeeding is equivalent or superior to breastfeeding. It shall also include the information specified in Section 5.58 (Emphasis supplied) and Section 10(d)59 which bars the use on containers and labels of the terms "humanized," "maternalized," or similar terms. These provisions of the Milk Code expressly forbid information that would imply or create a belief that there is any milk product equivalent to breastmilk or which is humanized or maternalized, as such information would be inconsistent with the superiority of breastfeeding.

Pharmaceutical and Health Care Association of the Philippines vs Duque It may be argued that Section 8 of the Milk Code refers only to information given to health workers regarding breastmilk substitutes, not to containers and labels thereof. However, such restrictive application of Section 8(b) will result in the absurd situation in which milk companies and distributors are forbidden to claim to health workers that their products are substitutes or equivalents of breastmilk, and yet be allowed to display on the containers and labels of their products the exact opposite message. That askewed interpretation of the Milk Code is precisely what Section 5(a) thereof seeks to avoid by mandating that all information regarding breastmilk vis-a-vis breastmilk substitutes be consistent, at the same time giving the government control over planning, provision, design, and dissemination of information on infant feeding.
Thus, Section 26(c) of the RIRR which requires containers and labels to state that the product offered is not a substitute for breastmilk, is a reasonable means of enforcing Section 8(b) of the Milk Code and deterring circumvention of the protection and promotion of breastfeeding as embodied in Section 260 of the Milk Code. Section 26(f)61 of the RIRR is an equally reasonable labeling requirement. It implements Section 5(b) of the Milk Code which reads: SECTION 5. x x x xxxx (b) Informational and educational materials, whether written, audio, or visual, dealing with the feeding of infants and intended to reach pregnant women and mothers of infants, shall include clear information on all the following points: x x x (5) where needed, the proper use of infant formula, whether manufactured industrially or home-prepared. When such materials contain information about the use of infant formula, they shall include the social and financial implications of its use; the health hazards of inappropriate foods or feeding methods; and, in particular, the health hazards of unnecessary or improper use of infant formula and other breastmilk substitutes. Such materials shall not use any picture or text which may idealize the use of breastmilk substitutes. (Emphasis supplied) The label of a product contains information about said product intended for the buyers thereof. The buyers of breastmilk substitutes are mothers of infants, and Section 26 of the RIRR merely adds a fair warning about the likelihood of pathogenic microorganisms being present in infant formula and other related products when these are prepared and used inappropriately. Petitioners counsel has admitted during the hearing on June 19, 2007 that formula milk is prone to contaminations and there is as yet no technology that allows production of powdered infant formula that eliminates all forms of contamination.62 Ineluctably, the requirement under Section 26(f) of the RIRR for the label to contain the message regarding health hazards including the possibility of contamination with pathogenic microorganisms is in accordance with Section 5(b) of the Milk Code. The authority of DOH to control information regarding breastmilk vis-a-vis breastmilk substitutes and supplements and related products cannot be questioned. It is its intervention into the area of advertising, promotion, and marketing that is being assailed by petitioner. In furtherance of Section 6(a) of the Milk Code, to wit: SECTION 6. The General Public and Mothers. (a) No advertising, promotion or other marketing materials, whether written, audio or visual, for products within the scope of this Code shall be printed, published, distributed, exhibited and broadcast unless such materials are duly authorized and approved by an inter-agency committee created herein pursuant to the applicable standards provided for in this Code.

Pharmaceutical and Health Care Association of the Philippines vs Duque the Milk Code invested regulatory authority over advertising, promotional and marketing materials to an IAC, thus:
SECTION 12. Implementation and Monitoring (a) For purposes of Section 6(a) of this Code, an inter-agency committee composed of the following members is hereby created: Minister of Health Minister of Trade and Industry Minister of Justice Minister of Social Services and Development ------------------------------------------------------------------------Chairman Member Member Member

The members may designate their duly authorized representative to every meeting of the Committee. The Committee shall have the following powers and functions: (1) To review and examine all advertising. promotion or other marketing materials, whether written, audio or visual, on products within the scope of this Code; (2) To approve or disapprove, delete objectionable portions from and prohibit the printing, publication, distribution, exhibition and broadcast of, all advertising promotion or other marketing materials, whether written, audio or visual, on products within the scope of this Code; (3) To prescribe the internal and operational procedure for the exercise of its powers and functions as well as the performance of its duties and responsibilities; and (4) To promulgate such rules and regulations as are necessary or proper for the implementation of Section 6(a) of this Code. x x x (Emphasis supplied) However, Section 11 of the RIRR, to wit: SECTION 11. Prohibition No advertising, promotions, sponsorships, or marketing materials and activities for breastmilk substitutes intended for infants and young children up to twenty-four (24) months, shall be allowed, because they tend to convey or give subliminal messages or impressions that undermine breastmilk and breastfeeding or otherwise exaggerate breastmilk substitutes and/or replacements, as well as related products covered within the scope of this Code. prohibits advertising, promotions, sponsorships or marketing materials and activities for breastmilk substitutes in line with the RIRRs declaration of principle under Section 4(f), to wit: SECTION 4. Declaration of Principles xxxx (f) Advertising, promotions, or sponsorships of infant formula, breastmilk substitutes and other related products are prohibited. The DOH, through its co-respondents, evidently arrogated to itself not only the regulatory authority given to the IAC but also imposed absolute prohibition on advertising, promotion, and marketing.

Pharmaceutical and Health Care Association of the Philippines vs Duque Yet, oddly enough, Section 12 of the RIRR reiterated the requirement of the Milk Code in Section 6 thereof for prior approval by IAC of all advertising, marketing and promotional materials prior to dissemination.
Even respondents, through the OSG, acknowledged the authority of IAC, and repeatedly insisted, during the oral arguments on June 19, 2007, that the prohibition under Section 11 is not actually operational, viz: SOLICITOR GENERAL DEVANADERA: xxxx x x x Now, the crux of the matter that is being questioned by Petitioner is whether or not there is an absolute prohibition on advertising making AO 2006-12 unconstitutional. We maintained that what AO 2006-12 provides is not an absolute prohibition because Section 11 while it states and it is entitled prohibition it states that no advertising, promotion, sponsorship or marketing materials and activities for breast milk substitutes intended for infants and young children up to 24 months shall be allowed because this is the standard they tend to convey or give subliminal messages or impression undermine that breastmilk or breastfeeding x x x. We have to read Section 11 together with the other Sections because the other Section, Section 12, provides for the inter agency committee that is empowered to process and evaluate all the advertising and promotion materials. xxxx What AO 2006-12, what it does, it does not prohibit the sale and manufacture, it simply regulates the advertisement and the promotions of breastfeeding milk substitutes. xxxx Now, the prohibition on advertising, Your Honor, must be taken together with the provision on the Inter-Agency Committee that processes and evaluates because there may be some information dissemination that are straight forward information dissemination. What the AO 2006 is trying to prevent is any material that will undermine the practice of breastfeeding, Your Honor. xxxx ASSOCIATE JUSTICE SANTIAGO: Madam Solicitor General, under the Milk Code, which body has authority or power to promulgate Rules and Regulations regarding the Advertising, Promotion and Marketing of Breastmilk Substitutes? SOLICITOR GENERAL DEVANADERA: Your Honor, please, it is provided that the Inter-Agency Committee, Your Honor. xxxx ASSOCIATE JUSTICE SANTIAGO: x x x Don't you think that the Department of Health overstepped its rule making authority when it totally banned advertising and promotion under Section 11 prescribed the total effect rule as well as the content of materials under Section 13 and 15 of the rules and regulations? SOLICITOR GENERAL DEVANADERA:

Pharmaceutical and Health Care Association of the Philippines vs Duque Your Honor, please, first we would like to stress that there is no total absolute ban. Second, the Inter-Agency Committee is under the Department of Health, Your Honor.
xxxx ASSOCIATE JUSTICE NAZARIO: x x x Did I hear you correctly, Madam Solicitor, that there is no absolute ban on advertising of breastmilk substitutes in the Revised Rules? SOLICITOR GENERAL DEVANADERA: Yes, your Honor. ASSOCIATE JUSTICE NAZARIO: But, would you nevertheless agree that there is an absolute ban on advertising of breastmilk substitutes intended for children two (2) years old and younger? SOLICITOR GENERAL DEVANADERA: It's not an absolute ban, Your Honor, because we have the Inter-Agency Committee that can evaluate some advertising and promotional materials, subject to the standards that we have stated earlier, which are- they should not undermine breastfeeding, Your Honor. xxxx x x x Section 11, while it is titled Prohibition, it must be taken in relation with the other Sections, particularly 12 and 13 and 15, Your Honor, because it is recognized that the Inter-Agency Committee has that power to evaluate promotional materials, Your Honor. ASSOCIATE JUSTICE NAZARIO: So in short, will you please clarify there's no absolute ban on advertisement regarding milk substitute regarding infants two (2) years below? SOLICITOR GENERAL DEVANADERA: We can proudly say that the general rule is that there is a prohibition, however, we take exceptions and standards have been set. One of which is that, the Inter-Agency Committee can allow if the advertising and promotions will not undermine breastmilk and breastfeeding, Your Honor.63 Sections 11 and 4(f) of the RIRR are clearly violative of the Milk Code. However, although it is the IAC which is authorized to promulgate rules and regulations for the approval or rejection of advertising, promotional, or other marketing materials under Section 12(a) of the Milk Code, said provision must be related to Section 6 thereof which in turn provides that the rules and regulations must be "pursuant to the applicable standards provided for in this Code." Said standards are set forth in Sections 5(b), 8(b), and 10 of the Code, which, at the risk of being repetitious, and for easy reference, are quoted hereunder: SECTION 5. Information and Education xxxx

Pharmaceutical and Health Care Association of the Philippines vs Duque (b) Informational and educational materials, whether written, audio, or visual, dealing with the feeding of infants and intended to reach pregnant women and mothers of infants, shall include clear information on all the following points: (1) the benefits and superiority of breastfeeding; (2) maternal nutrition, and the preparation for and maintenance of breastfeeding; (3) the negative effect on breastfeeding of introducing partial bottlefeeding; (4) the difficulty of reversing the decision not to breastfeed; and (5) where needed, the proper use of infant formula, whether manufactured industrially or home-prepared. When such materials contain information about the use of infant formula, they shall include the social and financial implications of its use; the health hazards of inappropriate foods of feeding methods; and, in particular, the health hazards of unnecessary or improper use of infant formula and other breastmilk substitutes. Such materials shall not use any picture or text which may idealize the use of breastmilk substitutes.
xxxx SECTION 8. Health Workers. xxxx (b) Information provided by manufacturers and distributors to health professionals regarding products within the scope of this Code shall be restricted to scientific and factual matters and such information shall not imply or create a belief that bottle feeding is equivalent or superior to breastfeeding. It shall also include the information specified in Section 5(b). xxxx SECTION 10. Containers/Label (a) Containers and/or labels shall be designed to provide the necessary information about the appropriate use of the products, and in such a way as not to discourage breastfeeding. (b) Each container shall have a clear, conspicuous and easily readable and understandable message in Pilipino or English printed on it, or on a label, which message can not readily become separated from it, and which shall include the following points: (i) the words "Important Notice" or their equivalent; (ii) a statement of the superiority of breastfeeding; (iii) a statement that the product shall be used only on the advice of a health worker as to the need for its use and the proper methods of use; and (iv) instructions for appropriate preparation, and a warning against the health hazards of inappropriate preparation. Section 12(b) of the Milk Code designates the DOH as the principal implementing agency for the enforcement of the provisions of the Code. In relation to such responsibility of the DOH, Section 5(a) of the Milk Code states that: SECTION 5. Information and Education (a) The government shall ensure that objective and consistent information is provided on infant feeding, for use by families and those involved in the field of infant nutrition. This responsibility shall cover the planning, provision, design and dissemination of information, and the control thereof, on infant nutrition. (Emphasis supplied)

Pharmaceutical and Health Care Association of the Philippines vs Duque Thus, the DOH has the significant responsibility to translate into operational terms the standards set forth in Sections 5, 8, and 10 of the Milk Code, by which the IAC shall screen advertising, promotional, or other marketing materials.
It is pursuant to such responsibility that the DOH correctly provided for Section 13 in the RIRR which reads as follows: SECTION 13. "Total Effect" - Promotion of products within the scope of this Code must be objective and should not equate or make the product appear to be as good or equal to breastmilk or breastfeeding in the advertising concept. It must not in any case undermine breastmilk or breastfeeding. The "total effect" should not directly or indirectly suggest that buying their product would produce better individuals, or resulting in greater love, intelligence, ability, harmony or in any manner bring better health to the baby or other such exaggerated and unsubstantiated claim. Such standards bind the IAC in formulating its rules and regulations on advertising, promotion, and marketing. Through that single provision, the DOH exercises control over the information content of advertising, promotional and marketing materials on breastmilk vis-a-vis breastmilk substitutes, supplements and other related products. It also sets a viable standard against which the IAC may screen such materials before they are made public. In Equi-Asia Placement, Inc. vs. Department of Foreign Affairs,64 the Court held: x x x [T]his Court had, in the past, accepted as sufficient standards the following: "public interest," "justice and equity," "public convenience and welfare," and "simplicity, economy and welfare."65 In this case, correct information as to infant feeding and nutrition is infused with public interest and welfare. 4. With regard to activities for dissemination of information to health professionals, the Court also finds that there is no inconsistency between the provisions of the Milk Code and the RIRR. Section 7(b)66 of the Milk Code, in relation to Section 8(b)67 of the same Code, allows dissemination of information to health professionals but suchinformation is restricted to scientific and factual matters. Contrary to petitioner's claim, Section 22 of the RIRR does not prohibit the giving of information to health professionals on scientific and factual matters. What it prohibits is the involvement of the manufacturer and distributor of the products covered by the Code in activities for the promotion, education and production of Information, Education and Communication (IEC) materials regarding breastfeeding that are intended forwomen and children. Said provision cannot be construed to encompass even the dissemination of information to health professionals, as restricted by the Milk Code. 5. Next, petitioner alleges that Section 8(e)68 of the Milk Code permits milk manufacturers and distributors to extend assistance in research and in the continuing education of health professionals, while Sections 22 and 32 of the RIRR absolutely forbid the same. Petitioner also assails Section 4(i)69 of the RIRR prohibiting milk manufacturers' and distributors' participation in any policymaking body in relation to the advancement of breastfeeding. Section 4(i) of the RIRR provides that milk companies and their representatives should not form part of any policymaking body or entity in relation to the advancement of breastfeeding. The Court finds nothing in said provisions which contravenes the Milk Code. Note that under Section 12(b) of the Milk Code, it is the DOH which shall be principally responsible for the implementation and enforcement of the provisions of said Code. It is entirely up to the DOH to decide which entities to call upon or allow to be part of policymaking bodies on breastfeeding. Therefore, the RIRR's prohibition on milk companies participation in any policymaking body in relation to the advancem ent of breastfeeding is in accord with the Milk Code. Petitioner is also mistaken in arguing that Section 22 of the RIRR prohibits milk companies from giving reasearch assistance and continuing education to health professionals. Section 2270 of the RIRR does not pertain to research assistance to or the continuing education of health professionals; rather, it deals with breastfeeding promotion and education for women and children. Nothing in Section 22 of the RIRR prohibits milk companies from giving assistance for research or continuing education to health professionals; hence, petitioner's argument against this particular provision must be struck down.

Pharmaceutical and Health Care Association of the Philippines vs Duque It is Sections 971 and 1072 of the RIRR which govern research assistance. Said sections of the RIRR provide thatresearch assistance for health workers and researchers may be allowed upon approval of an ethics committee, and with certain disclosure requirements imposed on the milk company and on the recipient of the research award.
The Milk Code endows the DOH with the power to determine how such research or educational assistance may be given by milk companies or under what conditions health workers may accept the assistance. Thus, Sections 9 and 10 of the RIRR imposing limitations on the kind of research done or extent of assistance given by milk companies are completely in accord with the Milk Code. Petitioner complains that Section 3273 of the RIRR prohibits milk companies from giving assistance, support, logistics or training to health workers. This provision is within the prerogative given to the DOH under Section 8(e)74 of the Milk Code, which provides that manufacturers and distributors of breastmilk substitutes may assist in researches, scholarships and the continuing education, of health professionals in accordance with the rules and regulations promulgated by the Ministry of Health, now DOH. 6. As to the RIRR's prohibition on donations, said provisions are also consistent with the Milk Code. Section 6(f) of the Milk Code provides that donations may be made by manufacturers and distributors of breastmilk substitutesupon the request or with the approval of the DOH. The law does not proscribe the refusal of donations. The Milk Code leaves it purely to the discretion of the DOH whether to request or accept such donations. The DOH then appropriately exercised its discretion through Section 5175 of the RIRR which sets forth its policy not to request or approve donations from manufacturers and distributors of breastmilk substitutes. It was within the discretion of the DOH when it provided in Section 52 of the RIRR that any donation from milk companies not covered by the Code should be coursed through the IAC which shall determine whether such donation should be accepted or refused. As reasoned out by respondents, the DOH is not mandated by the Milk Code to accept donations. For that matter, no person or entity can be forced to accept a donation. There is, therefore, no real inconsistency between the RIRR and the law because the Milk Code does not prohibit the DOH from refusing donations. 7. With regard to Section 46 of the RIRR providing for administrative sanctions that are not found in the Milk Code, the Court upholds petitioner's objection thereto. Respondent's reliance on Civil Aeronautics Board v. Philippine Air Lines, Inc.76 is misplaced. The glaring difference in said case and the present case before the Court is that, in the Civil Aeronautics Board, the Civil Aeronautics Administration (CAA) was expressly granted by the law (R.A. No. 776) the power to impose fines and civil penalties, while the Civil Aeronautics Board (CAB) was granted by the same law the power to review on appeal the order or decision of the CAA and to determine whether to impose, remit, mitigate, increase or compromise such fine and civil penalties. Thus, the Court upheld the CAB's Resolution imposing administrative fines. In a more recent case, Perez v. LPG Refillers Association of the Philippines, Inc.,77 the Court upheld the Department of Energy (DOE) Circular No. 2000-06-10 implementing Batas Pambansa (B.P.) Blg. 33. The circular provided for fines for the commission of prohibited acts. The Court found that nothing in the circular contravened the law because the DOE was expressly authorized by B.P. Blg. 33 and R.A. No. 7638 to impose fines or penalties. In the present case, neither the Milk Code nor the Revised Administrative Code grants the DOH the authority to fix or impose administrative fines. Thus, without any express grant of power to fix or impose such fines, the DOH cannot provide for those fines in the RIRR. In this regard, the DOH again exceeded its authority by providing for such fines or sanctions in Section 46 of the RIRR. Said provision is, therefore, null and void. The DOH is not left without any means to enforce its rules and regulations. Section 12(b) (3) of the Milk Code authorizes the DOH to "cause the prosecution of the violators of this Code and other pertinent laws on products covered by this Code." Section 13 of the Milk Code provides for the penalties to be imposed on violators of the provision of the Milk Code or the rules and regulations issued pursuant to it, to wit: SECTION 13. Sanctions

Pharmaceutical and Health Care Association of the Philippines vs Duque (a) Any person who violates the provisions of this Code or the rules and regulations issued pursuant to this Code shall, upon conviction, be punished by a penalty of two (2) months to one (1) year imprisonment or a fine of not less than One Thousand Pesos (P1,000.00) nor more than Thirty Thousand Pesos (P30,000.00) or both. Should the offense be committed by a juridical person, the chairman of the Board of Directors, the president, general manager, or the partners and/or the persons directly responsible therefor, shall be penalized.
(b) Any license, permit or authority issued by any government agency to any health worker, distributor, manufacturer, or marketing firm or personnel for the practice of their profession or occupation, or for the pursuit of their business, may, upon recommendation of the Ministry of Health, be suspended or revoked in the event of repeated violations of this Code, or of the rules and regulations issued pursuant to this Code. (Emphasis supplied) 8. Petitioners claim that Section 57 of the RIRR repeals existing laws that are contrary to the RIRR is frivolous. Section 57 reads: SECTION 57. Repealing Clause - All orders, issuances, and rules and regulations or parts thereof inconsistent with these revised rules and implementing regulations are hereby repealed or modified accordingly. Section 57 of the RIRR does not provide for the repeal of laws but only orders, issuances and rules and regulations. Thus, said provision is valid as it is within the DOH's rule-making power. An administrative agency like respondent possesses quasi-legislative or rule-making power or the power to make rules and regulations which results in delegated legislation that is within the confines of the granting statute and the Constitution, and subject to the doctrine of non-delegability and separability of powers.78 Such express grant of rulemaking power necessarily includes the power to amend, revise, alter, or repeal the same.79 This is to allow administrative agencies flexibility in formulating and adjusting the details and manner by which they are to implement the provisions of a law,80 in order to make it more responsive to the times. Hence, it is a standard provision in administrative rules that prior issuances of administrative agencies that are inconsistent therewith are declared repealed or modified. In fine, only Sections 4(f), 11 and 46 are ultra vires, beyond the authority of the DOH to promulgate and in contravention of the Milk Code and, therefore, null and void. The rest of the provisions of the RIRR are in consonance with the Milk Code. Lastly, petitioner makes a "catch-all" allegation that: x x x [T]he questioned RIRR sought to be implemented by the Respondents is unnecessary and oppressive, and is offensive to the due process clause of the Constitution, insofar as the same is in restraint of trade and because a provision therein is inadequate to provide the public with a comprehensible basis to determine whether or not they have committed a violation.81 (Emphasis supplied) Petitioner refers to Sections 4(f),82 4(i),83 5(w),84 11,85 22,86 32,87 46,88 and 5289 as the provisions that suppress the trade of milk and, thus, violate the due process clause of the Constitution. The framers of the constitution were well aware that trade must be subjected to some form of regulation for the public good. Public interest must be upheld over business interests.90 In Pest Management Association of the Philippines v. Fertilizer and Pesticide Authority,91 it was held thus: x x x Furthermore, as held in Association of Philippine Coconut Desiccators v. Philippine Coconut Authority,despite the fact that "our present Constitution enshrines free enterprise as a policy, it nonetheless reserves to the government the power to intervene whenever necessary to promote the general welfare." There can be no question that the unregulated use or proliferation of pesticides would be hazardous to our environment. Thus, in the aforecited case, the Court declared that "free enterprise does not call for removal of protective regulations." x x x It must be clearly explained and proven by competent

Pharmaceutical and Health Care Association of the Philippines vs Duque evidence just exactly how such protective regulation would result in the restraint of trade. [Emphasis and underscoring supplied]
In this case, petitioner failed to show that the proscription of milk manufacturers participation in any policymaking body (Section 4(i)), classes and seminars for women and children (Section 22); the giving of assistance, support and logistics or training (Section 32); and the giving of donations (Section 52) would unreasonably hamper the trade of breastmilk substitutes. Petitioner has not established that the proscribed activities are indispensable to the trade of breastmilk substitutes. Petitioner failed to demonstrate that the aforementioned provisions of the RIRR are unreasonable and oppressive for being in restraint of trade. Petitioner also failed to convince the Court that Section 5(w) of the RIRR is unreasonable and oppressive. Said section provides for the definition of the term "milk company," to wit: SECTION 5 x x x. (w) "Milk Company" shall refer to the owner, manufacturer, distributor of infant formula, follow-up milk, milk formula, milk supplement, breastmilk substitute or replacement, or by any other description of such nature, including their representatives who promote or otherwise advance their commercial interests in marketing those products; On the other hand, Section 4 of the Milk Code provides: (d) "Distributor" means a person, corporation or any other entity in the public or private sector engaged in the business (whether directly or indirectly) of marketing at the wholesale or retail level a product within the scope of this Code. A "primary distributor" is a manufacturer's sales agent, representative, national distributor or broker. xxxx (j) "Manufacturer" means a corporation or other entity in the public or private sector engaged in the business or function (whether directly or indirectly or through an agent or and entity controlled by or under contract with it) of manufacturing a products within the scope of this Code. Notably, the definition in the RIRR merely merged together under the term "milk company" the entities defined separately under the Milk Code as "distributor" and "manufacturer." The RIRR also enumerated in Section 5(w) the products manufactured or distributed by an entity that would qualify it as a "milk company," whereas in the Milk Code, what is used is the phrase "products within the scope of this Code." Those are the only differences between the definitions given in the Milk Code and the definition as re-stated in the RIRR. Since all the regulatory provisions under the Milk Code apply equally to both manufacturers and distributors, the Court sees no harm in the RIRR providing for just one term to encompass both entities. The definition of "milk company" in the RIRR and the definitions of "distributor" and "manufacturer" provided for under the Milk Code are practically the same. The Court is not convinced that the definition of "milk company" provided in the RIRR would bring about any change in the treatment or regulation of "distributors" and "manufacturers" of breastmilk substitutes, as defined under the Milk Code. Except Sections 4(f), 11 and 46, the rest of the provisions of the RIRR are in consonance with the objective, purpose and intent of the Milk Code, constituting reasonable regulation of an industry which affects public health and welfare and, as such, the rest of the RIRR do not constitute illegal restraint of trade nor are they violative of the due process clause of the Constitution. WHEREFORE, the petition is PARTIALLY GRANTED. Sections 4(f), 11 and 46 of Administrative Order No. 2006-0012 dated May 12, 2006 are declared NULL and VOID for being ultra vires. The Department of Health and respondents are PROHIBITED from implementing said provisions.

Pharmaceutical and Health Care Association of the Philippines vs Duque The Temporary Restraining Order issued on August 15, 2006 is LIFTED insofar as the rest of the provisions of Administrative Order No. 2006-0012 is concerned.
SO ORDERED.

Pleasant Grove City vs Summum

Facts of the Case Summum, a religious organization, sent a letter to the mayor of Pleasant Grove, Utah asking to place a monument in one of the city's parks. Although the park already housed a monument to the Ten Commandments, the mayor denied Summum's request because the monument did not "directly relate to the history of Pleasant Grove." Summum filed suit against the city in federal court citing, among other things, a violation of its First Amendment free speech rights. The U.S. District Court for the District of Utah denied Summum's request for a preliminary injunction. The U.S. Court of Appeals for the Tenth Circuit reversed the district court and granted Summum's injunction request. The Tenth Circuit held that the park was in fact a "public" forum, not a non-public forum as the district court had held. Furthermore, Summum demonstrated that it would suffer irreparable harm if the injunction were to be denied, and the interests of the city did not outweigh this potential harm. The injunction, according to the court, was also not against the public interest. Question Does a city's refusal to place a religious organization's monument in a public park violate that organization's First Amendment free speech rights when the park already contains a monument from a different religious group? Conclusion Decision: 9 votes for Pleasant Grove City, 0 vote(s) against Legal provision: First Amendment No. The Supreme Court reversed the Tenth Circuit holding that the placement of a monument in a public park is a form of government speech and therefore not subject to scrutiny under the Free Speech Clause of the First Amendment. With Justice Samuel A. Alito writing for the majority and joined by Chief Justice John G. Roberts and Justices John Paul Stevens, Antonin G. Scalia, Anthony M. Kennedy, Clarence Thomas, Ruth Bader Ginsburg, and Stephen G. Breyer, the Court reasoned that since Pleasant Grove City had retained final authority over which monuments were displayed, the monuments represented an expression of the city's viewpoints and thus government speech. Justice Stevens, joined by Justice Ginsburg, wrote a separate concurring opinion that largely embraced the majority's reasoning. Justice Scalia, joined by Justice Thomas, also wrote a separate concurring opinion. Agreeing with the Court's reasoning, he also noted that there were likely no violations of the Establishment Clause of the First Amendment on the part of Pleasant Grove City. He argued that displays of the Ten Commandments had been construed by the Court as "having an undeniable historical meaning" and thus did not attempt to establish a religion. Justice Breyer also wrote a separate concurring opinion in which he noted that "government speech" should be considered a rule of thumb and not a rigid category. He stated that sometimes the Court should ask "whether a government's actions burdens speech disproportionately in light of the action's tendency to further a legitimate government objective." Justice Souter also wrote separately, concurring in the judgment, but warning that public monuments should not be considered government speech categorically.

Bayan vs. Ermita

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 169838 April 25, 2006

BAYAN, KARAPATAN, KILUSANG MAGBUBUKID NG PILIPINAS (KMP), GABRIELA, Fr. Jose Dizon, Renato Constantino, Jr., Froyel Yaneza, and Fahima Tajar, Petitioners, vs. EDUARDO ERMITA, in his capacity as Executive Secretary, Manila City Mayor LITO ATIENZA, Chief of the Philippine National Police, Gen. ARTURO M. LOMIBAO, NCRPO Chief Maj. Gen. VIDAL QUEROL, and Western Police District Chief Gen. PEDRO BULAONG, Respondents. x---------------------------------x G.R. No. 169848 April 25, 2006

Jess Del Prado, Wilson Fortaleza, Leody de Guzman, Pedro Pinlac, Carmelita Morante, Rasti Delizo, Paul Bangay, Marie Jo Ocampo, Lilia dela Cruz, Cristeta Ramos, Adelaida Ramos, Mary Grace Gonzales, Michael Torres, Rendo Sabusap, Precious Balute, Roxanne Magboo, Ernie Bautista, Joseph de Jesus, Margarita Escober, Djoannalyn Janier, Magdalena Sellote, Manny Quiazon, Ericson Dizon, Nenita Cruzat, Leonardo De los Reyes, Pedrito Fadrigon, Petitioners, vs. EDUARDO ERMITA, in his official capacity as The Executive Secretary and in his personal capacity, ANGELO REYES, in his official capacity as Secretary of the Interior and Local Governments, ARTURO LOMIBAO, in his official capacity as the Chief, Philippine National Police, VIDAL QUEROL, in his official capacity as the Chief, National Capital Regional Police Office (NCRPO), PEDRO BULAONG, in his official capacity as the Chief, Manila Police District (MPD) AND ALL OTHER PUBLIC OFFICERS GARCIA, and AND PRIVATE INDIVIDUALS ACTING UNDER THEIR CONTROL, SUPERVISION AND INSTRUCTIONS, Respondents. x---------------------------------x G.R. No. 169881 April 25, 2006

KILUSANG MAYO UNO, represented by its Chairperson ELMER C. LABOG and Secretary General JOEL MAGLUNSOD, NATIONAL FEDERATION OF LABOR UNIONS-KILUSANG MAYO UNO (NAFLU-KMU), represented by its National President, JOSELITO V. USTAREZ, ANTONIO C. PASCUAL, SALVADOR T. CARRANZA, GILDA SUMILANG, FRANCISCO LASTRELLA, and ROQUE M. TAN, Petitioners, vs. THE HONORABLE EXECUTIVE SECRETARY, PNP DIRECTOR GENRAL ARTURO LOMIBAO, HONORABLE MAYOR LITO ATIENZA, and PNP MPD CHIEF SUPT. PEDRO BULAONG, Respondents. DECISION AZCUNA, J.: Petitioners come in three groups. The first petitioners, Bayan, et al., in G.R. No. 169838,1 allege that they are citizens and taxpayers of the Philippines and that their rights as organizations and individuals were violated when the rally they participated in on October 6, 2005 was violently dispersed by policemen implementing Batas Pambansa (B.P.) No. 880.

Bayan vs. Ermita The second group consists of 26 individual petitioners, Jess del Prado, et al., in G.R. No. 169848,2 who allege that they were injured, arrested and detained when a peaceful mass action they held on September 26, 2005 was preempted and violently dispersed by the police. They further assert that on October 5, 2005, a group they participated in marched to Malacaang to protest issuances of the Palace which, they claim, put the country under an "undeclared" martial rule, and the protest was likewise dispersed violently and many among them were arrested and suffered injuries.
The third group, Kilusang Mayo Uno (KMU), et al., petitioners in G.R. No. 169881,3 allege that they conduct peaceful mass actions and that their rights as organizations and those of their individual members as citizens, specifically the right to peaceful assembly, are affected by Batas Pambansa No. 880 and the policy of "Calibrated Preemptive Response" (CPR) being followed to implement it. KMU, et al., claim that on October 4, 2005, a rally KMU co-sponsored was to be conducted at the Mendiola bridge but police blocked them along C.M. Recto and Lepanto Streets and forcibly dispersed them, causing injuries to several of their members. They further allege that on October 6, 2005, a multi-sectoral rally which KMU also co-sponsored was scheduled to proceed along Espaa Avenue in front of the University of Santo Tomas and going towards Mendiola bridge. Police officers blocked them along Morayta Street and prevented them from proceeding further. They were then forcibly dispersed, causing injuries on one of them.4 Three other rallyists were arrested. All petitioners assail Batas Pambansa No. 880, some of them in toto and others only Sections 4, 5, 6, 12, 13(a), and 14(a), as well as the policy of CPR. They seek to stop violent dispersals of rallies under the "no permit, no rally" policy and the CPR policy recently announced. B.P. No. 880, "The Public Assembly Act of 1985," provides: Batas Pambansa Blg. 880 An Act Ensuring The Free Exercise By The People Of Their Right Peaceably To Assemble And Petition The Government [And] For Other Purposes Be it enacted by the Batasang Pambansa in session assembled: Section 1. Title. This Act shall be known as "The Public Assembly Act of 1985." Sec. 2. Declaration of policy. The constitutional right of the people peaceably to assemble and petition the government for redress of grievances is essential and vital to the strength and stability of the State. To this end, the State shall ensure the free exercise of such right without prejudice to the rights of others to life, liberty and equal protection of the law. Sec. 3. Definition of terms. For purposes of this Act: (a) "Public assembly" means any rally, demonstration, march, parade, procession or any other form of mass or concerted action held in a public place for the purpose of presenting a lawful cause; or expressing an opinion to the general public on any particular issue; or protesting or influencing any state of affairs whether political, economic or social; or petitioning the government for redress of grievances. The processions, rallies, parades, demonstrations, public meetings and assemblages for religious purposes shall be governed by local ordinances; Provided, however, That the declaration of policy as provided in Section 2 of this Act shall be faithfully observed. The definition herein contained shall not include picketing and other concerted action in strike areas by workers and employees resulting from a labor dispute as defined by the Labor Code, its implementing rules and regulations, and by the Batas Pambansa Bilang 227.

Bayan vs. Ermita (b) "Public place" shall include any highway, boulevard, avenue, road, street, bridge or other thoroughfare, park, plaza, square, and/or any open space of public ownership where the people are allowed access.
(c) "Maximum tolerance" means the highest degree of restraint that the military, police and other peace keeping authorities shall observe during a public assembly or in the dispersal of the same. (d) "Modification of a permit" shall include the change of the place and time of the public assembly, rerouting of the parade or street march, the volume of loud-speakers or sound system and similar changes. Sec. 4. Permit when required and when not required. A written permit shall be required for any person or persons to organize and hold a public assembly in a public place. However, no permit shall be required if the public assembly shall be done or made in a freedom park duly established by law or ordinance or in private property, in which case only the consent of the owner or the one entitled to its legal possession is required, or in the campus of a government-owned and operated educational institution which shall be subject to the rules and regulations of said educational institution. Political meetings or rallies held during any election campaign period as provided for by law are not covered by this Act. Sec. 5. Application requirements. All applications for a permit shall comply with the following guidelines: (a) The applications shall be in writing and shall include the names of the leaders or organizers; the purpose of such public assembly; the date, time and duration thereof, and place or streets to be used for the intended activity; and the probable number of persons participating, the transport and the public address systems to be used. (b) The application shall incorporate the duty and responsibility of the applicant under Section 8 hereof. (c) The application shall be filed with the office of the mayor of the city or municipality in whose jurisdiction the intended activity is to be held, at least five (5) working days before the scheduled public assembly. (d) Upon receipt of the application, which must be duly acknowledged in writing, the office of the city or municipal mayor shall cause the same to immediately be posted at a conspicuous place in the city or municipal building. Sec. 6. Action to be taken on the application. (a) It shall be the duty of the mayor or any official acting in his behalf to issue or grant a permit unless there is clear and convincing evidence that the public assembly will create a clear and present danger to public order, public safety, public convenience, public morals or public health. (b) The mayor or any official acting in his behalf shall act on the application within two (2) working days from the date the application was filed, failing which, the permit shall be deemed granted. Should for any reason the mayor or any official acting in his behalf refuse to accept the application for a permit, said application shall be posted by the applicant on the premises of the office of the mayor and shall be deemed to have been filed. (c) If the mayor is of the view that there is imminent and grave danger of a substantive evil warranting the denial or modification of the permit, he shall immediately inform the applicant who must be heard on the matter. (d) The action on the permit shall be in writing and served on the applica[nt] within twenty-four hours. (e) If the mayor or any official acting in his behalf denies the application or modifies the terms thereof in his permit, the applicant may contest the decision in an appropriate court of law. (f) In case suit is brought before the Metropolitan Trial Court, the Municipal Trial Court, the Municipal Circuit Trial Court, the Regional Trial Court, or the Intermediate Appellate court, its decisions may be appealed to the appropriate court within forty-eight (48) hours after receipt of the same. No appeal bond and record on appeal

Bayan vs. Ermita shall be required. A decision granting such permit or modifying it in terms satisfactory to the applicant shall be immediately executory.
(g) All cases filed in court under this section shall be decided within twenty-four (24) hours from date of filing. Cases filed hereunder shall be immediately endorsed to the executive judge for disposition or, in his absence, to the next in rank. (h) In all cases, any decision may be appealed to the Supreme Court. (i) Telegraphic appeals to be followed by formal appeals are hereby allowed. Sec. 7. Use of Public throroughfare. Should the proposed public assembly involve the use, for an appreciable length of time, of any public highway, boulevard, avenue, road or street, the mayor or any official acting in his behalf may, to prevent grave public inconvenience, designate the route thereof which is convenient to the participants or reroute the vehicular traffic to another direction so that there will be no serious or undue interference with the free flow of commerce and trade. Sec. 8. Responsibility of applicant. It shall be the duty and responsibility of the leaders and organizers of a public assembly to take all reasonable measures and steps to the end that the intended public assembly shall be conducted peacefully in accordance with the terms of the permit. These shall include but not be limited to the following: (a) To inform the participants of their responsibility under the permit;
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(b) To police the ranks of the demonstrators in order to prevent non-demonstrators from disrupting the lawful activities of the public assembly; (c) To confer with local government officials concerned and law enforcers to the end that the public assembly may be held peacefully; (d) To see to it that the public assembly undertaken shall not go beyond the time stated in the permit; and (e) To take positive steps that demonstrators do not molest any person or do any act unduly interfering with the rights of other persons not participating in the public assembly. Sec. 9. Non-interference by law enforcement authorities. Law enforcement agencies shall not interfere with the holding of a public assembly. However, to adequately ensure public safety, a law enforcement contingent under the command of a responsible police officer may be detailed and stationed in a place at least one hundred (100) meters away from the area of activity ready to maintain peace and order at all times. Sec. 10. Police assistance when requested. It shall be imperative for law enforcement agencies, when their assistance is requested by the leaders or organizers, to perform their duties always mindful that their responsibility to provide proper protection to those exercising their right peaceably to assemble and the freedom of expression is primordial. Towards this end, law enforcement agencies shall observe the following guidelines: (a) Members of the law enforcement contingent who deal with the demonstrators shall be in complete uniform with their nameplates and units to which they belong displayed prominently on the front and dorsal parts of their uniform and must observe the policy of "maximum tolerance" as herein defined; (b) The members of the law enforcement contingent shall not carry any kind of firearms but may be equipped with baton or riot sticks, shields, crash helmets with visor, gas masks, boots or ankle high shoes with shin guards; (c) Tear gas, smoke grenades, water cannons, or any similar anti-riot device shall not be used unless the public assembly is attended by actual violence or serious threats of violence, or deliberate destruction of property.

Bayan vs. Ermita Sec. 11. Dispersal of public assembly with permit. No public assembly with a permit shall be dispersed. However, when an assembly becomes violent, the police may disperse such public assembly as follows:
(a) At the first sign of impending violence, the ranking officer of the law enforcement contingent shall call the attention of the leaders of the public assembly and ask the latter to prevent any possible disturbance; (b) If actual violence starts to a point where rocks or other harmful objects from the participants are thrown at the police or at the non-participants, or at any property causing damage to such property, the ranking officer of the law enforcement contingent shall audibly warn the participants that if the disturbance persists, the public assembly will be dispersed; (c) If the violence or disturbance prevailing as stated in the preceding subparagraph should not stop or abate, the ranking officer of the law enforcement contingent shall audibly issue a warning to the participants of the public assembly, and after allowing a reasonable period of time to lapse, shall immediately order it to forthwith disperse; (d) No arrest of any leader, organizer or participant shall also be made during the public assembly unless he violates during the assembly a law, statute, ordinance or any provision of this Act. Such arrest shall be governed by Article 125 of the Revised Penal Code, as amended; (e) Isolated acts or incidents of disorder or breach of the peace during the public assembly shall not constitute a ground for dispersal. Sec. 12. Dispersal of public assembly without permit. When the public assembly is held without a permit where a permit is required, the said public assembly may be peacefully dispersed. Sec. 13. Prohibited acts. The following shall constitute violations of the Act: (a) The holding of any public assembly as defined in this Act by any leader or organizer without having first secured that written permit where a permit is required from the office concerned, or the use of such permit for such purposes in any place other than those set out in said permit: Provided, however, That no person can be punished or held criminally liable for participating in or attending an otherwise peaceful assembly; (b) Arbitrary and unjustified denial or modification of a permit in violation of the provisions of this Act by the mayor or any other official acting in his behalf; (c) The unjustified and arbitrary refusal to accept or acknowledge receipt of the application for a permit by the mayor or any official acting in his behalf; (d) Obstructing, impeding, disrupting or otherwise denying the exercise of the right to peaceful assembly; (e) The unnecessary firing of firearms by a member of any law enforcement agency or any person to disperse the public assembly; (f) Acts in violation of Section 10 hereof; (g) Acts described hereunder if committed within one hundred (100) meters from the area of activity of the public assembly or on the occasion thereof: 1. the carrying of a deadly or offensive weapon or device such as firearm, pillbox, bomb, and the like; 2. the carrying of a bladed weapon and the like; 3. the malicious burning of any object in the streets or thoroughfares;

Bayan vs. Ermita 4. the carrying of firearms by members of the law enforcement unit;
5. the interfering with or intentionally disturbing the holding of a public assembly by the use of a motor vehicle, its horns and loud sound systems. Sec. 14. Penalties. Any person found guilty and convicted of any of the prohibited acts defined in the immediately preceding section shall be punished as follows: (a) violation of subparagraph (a) shall be punished by imprisonment of one month and one day to six months; (b) violations of subparagraphs (b), (c), (d), (e), (f), and item 4, subparagraph (g) shall be punished by imprisonment of six months and one day to six years; (c) violation of item 1, subparagraph (g) shall be punished by imprisonment of six months and one day to six years without prejudice to prosecution under Presidential Decree No. 1866; (d) violations of item 2, item 3, or item 5 of subparagraph (g) shall be punished by imprisonment of one day to thirty days. Sec. 15. Freedom parks. Every city and municipality in the country shall within six months after the effectivity of this Act establish or designate at least one suitable "freedom park" or mall in their respective jurisdictions which, as far as practicable, shall be centrally located within the poblacion where demonstrations and meetings may be held at any time without the need of any prior permit. In the cities and municipalities of Metropolitan Manila, the respective mayors shall establish the freedom parks within the period of six months from the effectivity this Act. Sec. 16. Constitutionality. Should any provision of this Act be declared invalid or unconstitutional, the validity or constitutionality of the other provisions shall not be affected thereby. Sec. 17. Repealing clause. All laws, decrees, letters of instructions, resolutions, orders, ordinances or parts thereof which are inconsistent with the provisions of this Act are hereby repealed, amended, or modified accordingly. Sec. 18. Effectivity. This Act shall take effect upon its approval. Approved, October 22, 1985. CPR, on the other hand, is a policy set forth in a press release by Malacaang dated September 21, 2005, shown in Annex "A" to the Petition in G.R. No. 169848, thus: Malacaang Official Manila, Philippines NEWS Release No. 2 September 21, 2005 STATEMENT OF EXECUTIVE SECRETARY EDUARDO ERMITA On Unlawful Mass Actions In view of intelligence reports pointing to credible plans of anti-government groups to inflame the political situation, sow disorder and incite people against the duly constituted authorities, we have instructed the PNP as well as the local government units to strictly enforce a "no permit, no rally" policy, disperse groups that run afoul of this standard and

Bayan vs. Ermita arrest all persons violating the laws of the land as well as ordinances on the proper conduct of mass actions and demonstrations.
The rule of calibrated preemptive response is now in force, in lieu of maximum tolerance. The authorities will not stand aside while those with ill intent are herding a witting or unwitting mass of people and inciting them into actions that are inimical to public order, and the peace of mind of the national community. Unlawful mass actions will be dispersed. The majority of law-abiding citizens have the right to be protected by a vigilant and proactive government. We appeal to the detractors of the government to engage in lawful and peaceful conduct befitting of a democratic society. The Presidents call for unity and reconciliation stands, based on the rule of law. Petitioners Bayan, et al., contend that Batas Pambansa No. 880 is clearly a violation of the Constitution and the International Covenant on Civil and Political Rights and other human rights treaties of which the Philippines is a signatory.5 They argue that B.P. No. 880 requires a permit before one can stage a public assembly regardless of the presence or absence of a clear and present danger. It also curtails the choice of venue and is thus repugnant to the freedom of expression clause as the time and place of a public assembly form part of the message for which the expression is sought. Furthermore, it is not content-neutral as it does not apply to mass actions in support of the government. The words "lawful cause," "opinion," "protesting or influencing" suggest the exposition of some cause not espoused by the government. Also, the phrase "maximum tolerance" shows that the law applies to assemblies against the government because they are being tolerated. As a content-based legislation, it cannot pass the strict scrutiny test. Petitioners Jess del Prado, et al., in turn, argue that B.P. No. 880 is unconstitutional as it is a curtailment of the right to peacefully assemble and petition for redress of grievances because it puts a condition for the valid exercise of that right. It also characterizes public assemblies without a permit as illegal and penalizes them and allows their dispersal. Thus, its provisions are not mere regulations but are actually prohibitions. Furthermore, the law delegates powers to the Mayor without providing clear standards. The two standards stated in the laws (clear and present danger and imminent and grave danger) are inconsistent. Regarding the CPR policy, it is void for being an ultra vires act that alters the standard of maximum tolerance set forth in B.P. No. 880, aside from being void for being vague and for lack of publication. Finally, petitioners KMU, et al., argue that the Constitution sets no limits on the right to assembly and therefore B.P. No. 880 cannot put the prior requirement of securing a permit. And even assuming that the legislature can set limits to this right, the limits provided are unreasonable: First, allowing the Mayor to deny the permit on clear and convincing evidence of a clear and present danger is too comprehensive. Second, the five-day requirement to apply for a permit is too long as certain events require instant public assembly, otherwise interest on the issue would possibly wane. As to the CPR policy, they argue that it is preemptive, that the government takes action even before the rallyists can perform their act, and that no law, ordinance or executive order supports the policy. Furthermore, it contravenes the maximum tolerance policy of B.P. No. 880 and violates the Constitution as it causes a chilling effect on the exercise by the people of the right to peaceably assemble. Respondents in G.R. No. 169838 are Eduardo Ermita, as Executive Secretary, Manila City Mayor Lito Atienza, Chief, of the Philippine National Police (PNP) Gen. Arturo Lomibao, National Capital Region Police Office (NCRPO) Chief, PNP Maj. Gen. Vidal Querol, and Manila Police District (MPD) Chief Gen. Pedro Bulaong. Respondents in G.R. No. 169848 are Eduardo Ermita as Executive Secretary and in his personal capacity;Angelo Reyes, as Secretary of the Interior and Local Governments; Arturo Lomibao, as Chief Vidal Querol, as Chief,

Bayan vs. Ermita NCRPO; Pedro Bulaong, as Chief, MPD, and all other public officers and private individuals acting under their control, supervision and instruction.
Respondents in G.R. No. 169881 are the Honorable Executive Secretary, PNP Director General Arturo Lomibao, the Honorable Mayor Joselito Atienza, and PNP MPD Chief Pedro Bulaong. Respondents argue that: 1. Petitioners have no standing because they have not presented evidence that they had been "injured, arrested or detained because of the CPR," and that "those arrested stand to be charged with violating Batas Pambansa [No.] 880 and other offenses." 2. Neither B.P. No. 880 nor CPR is void on its face. Petitioners cannot honestly claim that the time, place and manner regulation embodied in B.P. No. 880 violates the three-pronged test for such a measure, to wit: (a) B.P. No. 880 is content-neutral, i.e., it has no reference to content of regulated speech; (b) B.P. No. 880 is narrowly tailored to serve a significant governmental interest, i.e., the interest cannot be equally well served by a means that is less intrusive of free speech interests; and (c) B.P. No. 880 leaves open alternative channels for communication of the information.6 3. B.P. No. 880 is content-neutral as seen from the text of the law. Section 5 requires the statement of the public assemblys time, place and manner of conduct. It entails traffic re-routing to prevent grave public inconvenience and serious or undue interference in the free flow of commerce and trade. Furthermore, nothing in B.P. No. 880 authorizes the denial of a permit on the basis of a rallys program content or the statements of the speakers therein, except under the constitutional precept of the "clear and present danger test." The status of B.P. No. 880 as a content-neutral regulation has been recognized in Osmea v. Comelec.7 4. Adiong v. Comelec8 held that B.P. No. 880 is a content-neutral regulation of the time, place and manner of holding public assemblies and the law passes the test for such regulation, namely, these regulations need only a substantial governmental interest to support them. 5. Sangalang v. Intermediate Appellate Court9 held that a local chief executive has the authority to exercise police power to meet "the demands of the common good in terms of traffic decongestion and public convenience." Furthermore, the discretion given to the mayor is narrowly circumscribed by Sections 5 (d), and 6 (a), (b), (c), (d), (e), 13 and 15 of the law. 6. The standards set forth in the law are not inconsistent. "Clear and convincing evidence that the public assembly will create a clear and present danger to public order, public safety, public convenience, public morals or public health" and "imminent and grave danger of a substantive evil" both express the meaning of the "clear and present danger test."10 7. CPR is simply the responsible and judicious use of means allowed by existing laws and ordinances to protect public interest and restore public order. Thus, it is not accurate to call it a new rule but rather it is a more proactive and dynamic enforcement of existing laws, regulations and ordinances to prevent chaos in the streets. It does not replace the rule of maximum tolerance in B.P. No. 880. Respondent Mayor Joselito Atienza, for his part, submitted in his Comment that the petition in G.R. No. 169838 should be dismissed on the ground that Republic Act No. 7160 gives the Mayor power to deny a permit independently of B.P. No. 880; that his denials of permits were under the "clear and present danger" rule as there was a clamor to stop rallies that disrupt the economy and to protect the lives of other people; that J. B. L. Reyes v. Bagatsing,11 Primicias v. Fugoso,12 and Jacinto v. CA,13 have affirmed the constitutionality of requiring a permit; that the permit is for the use of a public place and not for the exercise of rights; and that B.P. No. 880 is not a content-based regulation because it covers all rallies. The petitions were ordered consolidated on February 14, 2006. After the submission of all the Comments, the Court set the cases for oral arguments on April 4, 2006,14 stating the principal issues, as follows:

Bayan vs. Ermita 1. On the constitutionality of Batas Pambansa No. 880, specifically Sections 4, 5, 6, 12 13(a) and 14(a) thereof, and Republic Act No. 7160:
(a) Are these content-neutral or content-based regulations? (b) Are they void on grounds of overbreadth or vagueness? (c) Do they constitute prior restraint? (d) Are they undue delegations of powers to Mayors? (e) Do they violate international human rights treaties and the Universal Declaration of Human Rights? 2. On the constitutionality and legality of the policy of Calibrated Preemptive Response (CPR): (a) Is the policy void on its face or due to vagueness? (b) Is it void for lack of publication? (c) Is the policy of CPR void as applied to the rallies of September 26 and October 4, 5 and 6, 2005? During the course of the oral arguments, the following developments took place and were approved and/or noted by the Court: 1. Petitioners, in the interest of a speedy resolution of the petitions, withdrew the portions of their petitions raising factual issues, particularly those raising the issue of whether B.P. No. 880 and/or CPR is void as applied to the rallies of September 20, October 4, 5 and 6, 2005. 2. The Solicitor General agreed with the observation of the Chief Justice that CPR should no longer be used as a legal term inasmuch as, according to respondents, it was merely a "catchword" intended to clarify what was thought to be a misunderstanding of the maximum tolerance policy set forth in B.P. No. 880 and that, as stated in the affidavit executed by Executive Secretary Eduardo Ermita and submitted to the Ombudsman, it does not replace B.P. No. 880 and the maximum tolerance policy embodied in that law. The Court will now proceed to address the principal issues, taking into account the foregoing developments. Petitioners standing cannot be seriously challenged. Their right as citizens to engage in peaceful assembly and exercise the right of petition, as guaranteed by the Constitution, is directly affected by B.P. No. 880 which requires a permit for all who would publicly assemble in the nations streets and parks. They have, in fact, purposely engaged in public assemblies without the required permits to press their claim that no such permit can be validly required without violating the Constitutional guarantee. Respondents, on the other hand, have challenged such action as contrary to law and dispersed the public assemblies held without the permit. Section 4 of Article III of the Constitution provides: Sec. 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances. The first point to mark is that the right to peaceably assemble and petition for redress of grievances is, together with freedom of speech, of expression, and of the press, a right that enjoys primacy in the realm of constitutional protection. For these rights constitute the very basis of a functional democratic polity, without which all the other rights would be meaningless and unprotected. As stated in Jacinto v. CA,15 the Court, as early as the onset of this century, in U.S. v. Apurado,16 already upheld the right to assembly and petition, as follows:

Bayan vs. Ermita There is no question as to the petitioners rights to peaceful assembly to petition the government for a redress of grievances and, for that matter, to organize or form associations for purposes not contrary to law, as well as to engage in peaceful concerted activities. These rights are guaranteed by no less than the Constitution, particularly Sections 4 and 8 of the Bill of Rights, Section 2(5) of Article IX, and Section 3 of Article XIII. Jurisprudence abounds with hallowed pronouncements defending and promoting the peoples exercise of these rights. As early as the onset of this century, this Court in U.S. vs. Apurado, already upheld the right to assembly and petition and even went as far as to acknowledge:
"It is rather to be expected that more or less disorder will mark the public assembly of the people to protest against grievances whether real or imaginary, because on such occasions feeling is always wrought to a high pitch of excitement, and the greater, the grievance and the more intense the feeling, the less perfect, as a rule will be the disciplinary control of the leaders over their irresponsible followers. But if the prosecution be permitted to seize upon every instance of such disorderly conduct by individual members of a crowd as an excuse to characterize the assembly as a seditious and tumultuous rising against the authorities, then the right to assemble and to petition for redress of grievances would become a delusion and a snare and the attempt to exercise it on the most righteous occasion and in the most peaceable manner would expose all those who took part therein to the severest and most unmerited punishment, if the purposes which they sought to attain did not happen to be pleasing to the prosecuting authorities. If instances of disorderly conduct occur on such occasions, the guilty individuals should be sought out and punished therefor, but the utmost discretion must be exercised in drawing the line betweendisorderly and seditious conduct and between an essentially peaceable assembly and a tumultuous uprising." Again, in Primicias v. Fugoso,17 the Court likewise sustained the primacy of freedom of speech and to assembly and petition over comfort and convenience in the use of streets and parks. Next, however, it must be remembered that the right, while sacrosanct, is not absolute. In Primicias, this Court said: The right to freedom of speech, and to peacefully assemble and petition the government for redress of grievances, are fundamental personal rights of the people recognized and guaranteed by the constitutions of democratic countries. But it is a settled principle growing out of the nature of well-ordered civil societies that the exercise of those rights is not absolute for it may be so regulated that it shall not be injurious to the equal enjoyment of others having equal rights, nor injurious to the rights of the community or society. The power to regulate the exercise of such and other constitutional rights is termed the sovereign "police power," which is the power to prescribe regulations, to promote the health, morals, peace, education, good order or safety, and general welfare of the people. This sovereign police power is exercised by the government through its legislative branch by the enactment of laws regulating those and other constitutional and civil rights, and it may be delegated to political subdivisions, such as towns, municipalities and cities by authorizing their legislative bodies called municipal and city councils to enact ordinances for the purpose.18 Reyes v. Bagatsing19 further expounded on the right and its limits, as follows: 1. It is thus clear that the Court is called upon to protect the exercise of the cognate rights to free speech and peaceful assembly, arising from the denial of a permit. The Constitution is quite explicit: "No law shall be passed abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and petition the Government for redress of grievances." Free speech, like free press, may be identified with the liberty to discuss publicly and truthfully any matter of public concern without censorship or punishment. There is to be then no previous restraint on the communication of views or subsequent liability whether in libel suits, prosecution for sedition, or action for damages, or contempt proceedings unless there be a "clear and present danger of a substantive evil that [the State] has a right to prevent." Freedom of assembly connotes the right of the people to meet peaceably for consultation and discussion of matters of public concern. It is entitled to be accorded the utmost deference and respect. It is not to be limited, much less denied, except on a showing, as is the case with freedom of expression, of a clear and present danger of a substantive evil that the state has a right to prevent. Even prior to the 1935 Constitution, Justice Malcolm had occasion to stress that it is a necessary consequence of our republican institutions and complements the right of free speech. To paraphrase the opinion of Justice Rutledge, speaking for the majority of the American Supreme Court in Thomas v. Collins, it was not by accident or coincidence that the rights to freedom of speech and of the press were coupled in a single guarantee with the rights of the people peaceably to assemble and to petition the government for redress of grievances. All these rights, while not identical, are inseparable. In every case, therefore, where there is a limitation placed on the exercise of this right, the judiciary is called upon to examine the effects of the

Bayan vs. Ermita challenged governmental actuation. The sole justification for a limitation on the exercise of this right, so fundamental to the maintenance of democratic institutions, is the 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.
2. Nowhere is the rationale that underlies the freedom of expression and peaceable assembly better expressed than in this excerpt from an opinion of Justice Frankfurter: "It must never be forgotten, however, that the Bill of Rights was the child of the Enlightenment. Back of the guaranty of free speech lay faith in the power of an appeal to reason by all the peaceful means for gaining access to the mind. It was in order to avert force and explosions due to restrictions upon rational modes of communication that the guaranty of free speech was given a generous scope. But utterance in a context of violence can lose its significance as an appeal to reason and become part of an instrument of force. Such utterance was not meant to be sheltered by the Constitution." What was rightfully stressed is the abandonment of reason, the utterance, whether verbal or printed, being in a context of violence. It must always be remembered that this right likewise provides for a safety valve, allowing parties the opportunity to give vent to their views, even if contrary to the prevailing climate of opinion. For if the peaceful means of communication cannot be availed of, resort to non-peaceful means may be the only alternative. Nor is this the sole reason for the expression of dissent. It means more than just the right to be heard of the person who feels aggrieved or who is dissatisfied with things as they are. Its value may lie in the fact that there may be something worth hearing from the dissenter. That is to ensure a true ferment of ideas. There are, of course, well-defined limits. What is guaranteed is peaceable assembly. One may not advocate disorder in the name of protest, much less preach rebellion under the cloak of dissent. The Constitution frowns on disorder or tumult attending a rally or assembly. Resort to force is ruled out and outbreaks of violence to be avoided. The utmost calm though is not required. As pointed out in an early Philippine case, penned in 1907 to be precise, United States v. Apurado: "It is rather to be expected that more or less disorder will mark the public assembly of the people to protest against grievances whether real or imaginary, because on such occasions feeling is always wrought to a high pitch of excitement, and the greater the grievance and the more intense the feeling, the less perfect, as a rule, will be the disciplinary control of the leaders over their irresponsible followers." It bears repeating that for the constitutional right to be invoked, riotous conduct, injury to property, and acts of vandalism must be avoided. To give free rein to ones destructive urges is to call for condemnation. It is to make a mockery of the high estate occupied by intellectual liberty in our scheme of values. There can be no legal objection, absent the existence of a clear and present danger of a substantive evil, on the choice of Luneta as the place where the peace rally would start. The Philippines is committed to the view expressed in the plurality opinion, of 1939 vintage, of Justice Roberts in Hague v. CIO: "Whenever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but must not, in the guise of regulation, be abridged or denied." The above excerpt was quoted with approval in Primicias v. Fugoso. Primicias made explicit what was implicit in Municipality of Cavite v. Rojas, a 1915 decision, where this Court categorically affirmed that plazas or parks and streets are outside the commerce of man and thus nullified a contract that leased Plaza Soledad of plaintiffmunicipality. Reference was made to such plaza "being a promenade for public use," which certainly is not the only purpose that it could serve. To repeat, there can be no valid reason why a permit should not be granted for the proposed march and rally starting from a public park that is the Luneta. 4. Neither can there be any valid objection to the use of the streets to the gates of the US embassy, hardly two blocks away at the Roxas Boulevard. Primicias v. Fugoso has resolved any lurking doubt on the matter. In holding that the then Mayor Fugoso of the City of Manila should grant a permit for a public meeting at Plaza Miranda in Quiapo, this Court categorically declared: "Our conclusion finds support in the decision in the case of Willis Cox v. State of New Hampshire, 312 U.S., 569. In that case, the statute of New Hampshire P.L. chap. 145, section 2, providing that no parade or procession upon any ground abutting thereon, shall be permitted unless a special license therefor shall first be obtained from the selectmen of the town or from licensing committee, was construed by the Supreme Court of New Hampshire as not conferring upon the licensing board unfettered discretion to refuse to grant the license, and held valid. And the Supreme Court of the United States, in its decision (1941) penned by Chief Justice Hughes affirming the judgment of the State Supreme Court, held

Bayan vs. Ermita that a statute requiring persons using the public streets for a parade or procession to procure a special license therefor from the local authorities is not an unconstitutional abridgment of the rights of assembly or of freedom of speech and press, where, as the statute is construed by the state courts, the licensing authorities are strictly limited, in the issuance of licenses, to a consideration of the time, place, and manner of the parade or procession, with a view to conserving the public convenience and of affording an opportunity to provide proper policing, and are not invested with arbitrary discretion to issue or refuse license, * * *. "Nor should the point made by Chief Justice Hughes in a subsequent portion of the opinion be ignored: "Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses of unrestricted abuses. The authority of a municipality to impose regulations in order to assure the safety and convenience of the people in the use of public highways has never been regarded as inconsistent with civil liberties but rather as one of the means of safeguarding the good order upon which they ultimately depend. The control of travel on the streets of cities is the most familiar illustration of this recognition of social need. Where a restriction of the use of highways in that relation is designed to promote the public convenience in the interest of all, it cannot be disregarded by the attempted exercise of some civil right which in other circumstances would be entitled to protection."
xxx 6. x x x The principle under American doctrines was given utterance by Chief Justice Hughes in these words: "The question, if the rights of free speech and peaceable assembly are to be preserved, is not as to the auspices under which the meeting is held but as to its purpose; not as to the relations of the speakers, but whether their utterances transcend the bounds of the freedom of speech which the Constitution protects." There could be danger to public peace and safety if such a gathering were marked by turbulence. That would deprive it of its peaceful character. Even then, only the guilty parties should be held accountable. It is true that the licensing official, here respondent Mayor, is not devoid of discretion in determining whether or not a permit would be granted. It is not, however, unfettered discretion. While prudence requires that there be a realistic appraisal not of what may possibly occur but of what may probably occur, given all the relevant circumstances, still the assumption especially so where the assembly is scheduled for a specific public place is that the permit must be for the assembly being held there. The exercise of such a right, in the language of Justice Roberts, speaking for the American Supreme Court, is not to be "abridged on the plea that it may be exercised in some other place." xxx 8. By way of a summary. The applicants for a permit to hold an assembly should inform the licensing authority of the date, the public place where and the time when it will take place. If it were a private place, only the consent of the owner or the one entitled to its legal possession is required. Such application should be filed well ahead in time to enable the public official concerned to appraise whether there may be valid objections to the grant of the permit or to its grant but at another public place. It is an indispensable condition to such refusal or modification that the clear and present danger test be the standard for the decision reached. If he is of the view that there is such an imminent and grave danger of a substantive evil, the applicants must be heard on the matter. Thereafter, his decision, whether favorable or adverse, must be transmitted to them at the earliest opportunity. Thus if so minded, they can have recourse to the proper judicial authority. Free 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 felicitiously 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. x x x. B.P. No. 880 was enacted after this Court rendered its decision in Reyes. The provisions of B.P. No. 880 practically codify the ruling in Reyes:

Bayan vs. Ermita

Reyes v. Bagatsing (G.R. No. L-65366, November 9, 1983, 125 SCRA 553, 569) 8. By way of a summary. The applicants for a permit to hold an assembly should inform the licensing authority of the date, the public placewhere and the time when it will take place. If it were a private place, only the consent of the owner or the one entitled to its legal possession is required. Such application should be filed well ahead in time to enable the public official concerned to appraise whether there may be valid objections to the grant of the permit or to its grant but at another public place. It is an indispensable condition to such refusal or modification that the clear and present danger test be the standard for the decision reached. If he is of the view that there is such an imminent and grave danger of a substantive evil, the applicants must be heard on the matter. Thereafter, his decision, whether favorable or adverse, must be transmitted to them at the earliest opportunity. Thus if so minded, they can have recourse to the proper judicial authority. B.P. No. 880 Sec. 4. Permit when required and when not required.-- A written permit shall be required for any person or persons to organize and hold a public assembly in a public place. However, no permit shall be required if the public assembly shall be done or made in a freedom park duly established by law or ordinance or in private property, in which case only the consent of the owner or the one entitled to its legal possession is required, or in the campus of a government-owned and operated educational institution which shall be subject to the rules and regulations of said educational institution. Political meetings or rallies held during any election campaign period as provided for by law are not covered by this Act. Sec. 5. Application requirements.-- All applications for a permit shall comply with the following guidelines: (a) The applications shall be in writing and shall include the names of the leaders or organizers; the purpose of such public assembly; the date, time and duration thereof, and place or streets to be used for the intended activity; and the probable number of persons participating, the transport and the public address systems to be used. (b) The application shall incorporate the duty and responsibility of applicant under Section 8 hereof. (c) The application shall be filed with the office of the mayor of the city or municipality in whose jurisdiction the intended activity is to be held, at least five (5) working days before the scheduled public assembly. (d) Upon receipt of the application, which must be duly acknowledged in writing, the office of the city or municipal mayor shall cause the same to immediately be posted at a conspicuous place in the city or municipal building. Sec. 6. Action to be taken on the application. (a) It shall be the duty of the mayor or any official acting in his behalf to issue or grant a permit unless there is clear and convincing evidence that the public assembly will create a clear and present danger to public order, public safety, public convenience, public morals or

Bayan vs. Ermita

public health. (b) The mayor or any official acting in his behalf shall act on the application within two (2) working days from the date the application was filed, failing which, the permit shall be deemed granted. Should for any reason the mayor or any official acting in his behalf refuse to accept the application for a permit, said application shall be posted by the applicant on the premises of the office of the mayor and shall be deemed to have been filed. (c) If the mayor is of the view that there is imminent and grave danger of a substantive evil warranting the denial or modification of the permit, he shall immediately inform the applicant who must be heard on the matter. (d) The action on the permit shall be in writing and served on the applica[nt] within twenty-four hours. (e) If the mayor or any official acting in his behalf denies the application or modifies the terms thereof in his permit, the applicant may contest the decision in an appropriate court of law. (f) In case suit is brought before the Metropolitan Trial Court, the Municipal Trial Court, the Municipal Circuit Trial Court, the Regional Trial Court, or the Intermediate Appellate Court, its decisions may be appealed to the appropriate court within forty-eight (48) hours after receipt of the same. No appeal bond and record on appeal shall be required. A decision granting such permit or modifying it in terms satisfactory to the applicant shall be immediately executory. (g) All cases filed in court under this section shall be decided within twenty-four (24) hours from date of filing. Cases filed hereunder shall be immediately endorsed to the executive judge for disposition or, in his absence, to the next in rank. (h) In all cases, any decision may be appealed to the Supreme Court. (i) Telegraphic appeals to be followed by formal appeals are hereby allowed.

Bayan vs. Ermita It is very clear, therefore, that B.P. No. 880 is not an absolute ban of public assemblies but a restriction that simply regulates the time, place and manner of the assemblies. This was adverted to in Osmea v. Comelec,20 where the Court referred to it as a "content-neutral" regulation of the time, place, and manner of holding public assemblies.21
A fair and impartial reading of B.P. No. 880 thus readily shows that it refers to all kinds of public assemblies22 that would use public places. The reference to "lawful cause" does not make it content-based because assemblies really have to be for lawful causes, otherwise they would not be "peaceable" and entitled to protection. Neither are the words "opinion," "protesting" and "influencing" in the definition of public assembly content based, since they can refer to any subject. The words "petitioning the government for redress of grievances" come from the wording of the Constitution, so its use cannot be avoided. Finally, maximum tolerance is for the protection and benefit of all rallyists and is independent of the content of the expressions in the rally. Furthermore, the permit can only be denied on the ground of clear and present danger to public order, public safety, public convenience, public morals or public health. This is a recognized exception to the exercise of the right even under the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, thus: Universal Declaration of Human Rights Article 20 1. Everyone has the right to freedom of peaceful assembly and association. xxx Article 29 1. Everyone has duties to the community in which alone the free and full development of his personality is possible. 2. In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society. 3. These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations. The International Covenant on Civil and Political Rights Article 19. 1. Everyone shall have the right to hold opinions without interference. 2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. 3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals.

Bayan vs. Ermita Contrary to petitioners claim, the law is very clear and is nowhere vague in its provisions. "Public" does not have to be defined. Its ordinary meaning is well-known. Websters Dictionary defines it, thus:23
public, n, x x x 2a: an organized body of people x x x 3: a group of people distinguished by common interests or characteristics x x x. Not every expression of opinion is a public assembly. The law refers to "rally, demonstration, march, parade, procession or any other form of mass or concerted action held in a public place." So it does not cover any and all kinds of gatherings. Neither is the law overbroad. It regulates the exercise of the right to peaceful assembly and petition only to the extent needed to avoid a clear and present danger of the substantive evils Congress has the right to prevent. There is, likewise, no prior restraint, since the content of the speech is not relevant to the regulation. As to the delegation of powers to the mayor, the law provides a precise and sufficient standard the clear and present danger test stated in Sec. 6(a). The reference to "imminent and grave danger of a substantive evil" in Sec. 6(c) substantially means the same thing and is not an inconsistent standard. As to whether respondent Mayor has the same power independently under Republic Act No. 716024 is thus not necessary to resolve in these proceedings, and was not pursued by the parties in their arguments. Finally, for those who cannot wait, Section 15 of the law provides for an alternative forum through the creation of freedom parks where no prior permit is needed for peaceful assembly and petition at any time: Sec. 15. Freedom parks. Every city and municipality in the country shall within six months after the effectivity of this Act establish or designate at least one suitable "freedom park" or mall in their respective jurisdictions which, as far as practicable, shall be centrally located within the poblacion where demonstrations and meetings may be held at any time without the need of any prior permit. In the cities and municipalities of Metropolitan Manila, the respective mayors shall establish the freedom parks within the period of six months from the effectivity this Act. This brings up the point, however, of compliance with this provision. The Solicitor General stated during the oral arguments that, to his knowledge, only Cebu City has declared a freedom park Fuente Osmea. That of Manila, the Sunken Gardens, has since been converted into a golf course, he added. If this is so, the degree of observance of B.P. No. 880s mandate that every city and municipality set aside a freedom park within six months from its effectivity in 1985, or 20 years ago, would be pathetic and regrettable. The matter appears to have been taken for granted amidst the swell of freedom that rose from the peaceful revolution of 1986. Considering that the existence of such freedom parks is an essential part of the laws system of regulation of the peoples exercise of their right to peacefully assemble and petition, the Court is constrained to rule that after thirty (30) days from the finality of this Decision, no prior permit may be required for the exercise of such right in any public park or plaza of a city or municipality until that city or municipality shall have complied with Section 15 of the law. For without such alternative forum, to deny the permit would in effect be to deny the right. Advance notices should, however, be given to the authorities to ensure proper coordination and orderly proceedings. The Court now comes to the matter of the CPR. As stated earlier, the Solicitor General has conceded that the use of the term should now be discontinued, since it does not mean anything other than the maximum tolerance policy set forth in B.P. No. 880. This is stated in the Affidavit of respondent Executive Secretary Eduardo Ermita, submitted by the Solicitor General, thus:

Bayan vs. Ermita 14. The truth of the matter is the policy of "calibrated preemptive response" is in consonance with the legal definition of "maximum tolerance" under Section 3 (c) of B.P. Blg. 880, which is the "highest degree of restraint that the military, police and other peacekeeping authorities shall observe during a public assembly or in the dispersal of the same." Unfortunately, however, the phrase "maximum tolerance" has acquired a different meaning over the years. Many have taken it to mean inaction on the part of law enforcers even in the face of mayhem and serious threats to public order. More so, other felt that they need not bother secure a permit when holding rallies thinking this would be "tolerated." Clearly, the popular connotation of "maximum tolerance" has departed from its real essence under B.P. Blg. 880.
15. It should be emphasized that the policy of maximum tolerance is provided under the same law which requires all pubic assemblies to have a permit, which allows the dispersal of rallies without a permit, and which recognizes certain instances when water cannons may be used. This could only mean that "maximum tolerance" is not in conflict with a "no permit, no rally policy" or with the dispersal and use of water cannons under certain circumstances for indeed, the maximum amount of tolerance required is dependent on how peaceful or unruly a mass action is. Our law enforcers should calibrate their response based on the circumstances on the ground with the view to preempting the outbreak of violence. 16. Thus, when I stated that calibrated preemptive response is being enforced in lieu of maximum tolerance I clearly was not referring to its legal definition but to the distorted and much abused definition that it has now acquired. I only wanted to disabuse the minds of the public from the notion that law enforcers would shirk their responsibility of keeping the peace even when confronted with dangerously threatening behavior. I wanted to send a message that we would no longer be lax in enforcing the law but would henceforth follow it to the letter. Thus I said, "we have instructed the PNP as well as the local government units to strictly enforce a no permit, no rally policy . . . arrest all persons violating the laws of the land . . . unlawful mass actions will be dispersed." None of these is at loggerheads with the letter and spirit of Batas Pambansa Blg. 880. It is thus absurd for complainants to even claim that I ordered my co-respondents to violate any law.25 At any rate, the Court rules that in view of the maximum tolerance mandated by B.P. No. 880, CPR serves no valid purpose if it means the same thing as maximum tolerance and is illegal if it means something else. Accordingly, what is to be followed is and should be that mandated by the law itself, namely, maximum tolerance, which specifically means the following: Sec. 3. Definition of terms. For purposes of this Act: xxx (c) "Maximum tolerance" means the highest degree of restraint that the military, police and other peace keeping authorities shall observe during a public assembly or in the dispersal of the same. xxx Sec. 9. Non-interference by law enforcement authorities. Law enforcement agencies shall not interfere with the holding of a public assembly. However, to adequately ensure public safety, a law enforcement contingent under the command of a responsible police officer may be detailed and stationed in a place at least one hundred (100) meters away from the area of activity ready to maintain peace and order at all times. Sec. 10. Police assistance when requested. It shall be imperative for law enforcement agencies, when their assistance is requested by the leaders or organizers, to perform their duties always mindful that their responsibility to provide proper protection to those exercising their right peaceably to assemble and the freedom of expression is primordial. Towards this end, law enforcement agencies shall observe the following guidelines:
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(a) Members of the law enforcement contingent who deal with the demonstrators shall be in complete uniform with their nameplates and units to which they belong displayed prominently on the front and dorsal parts of their uniform and must observe the policy of "maximum tolerance" as herein defined;

Bayan vs. Ermita (b) The members of the law enforcement contingent shall not carry any kind of firearms but may be equipped with baton or riot sticks, shields, crash helmets with visor, gas masks, boots or ankle high shoes with shin guards;
(c) Tear gas, smoke grenades, water cannons, or any similar anti-riot device shall not be used unless the public assembly is attended by actual violence or serious threats of violence, or deliberate destruction of property. Sec. 11. Dispersal of public assembly with permit. No public assembly with a permit shall be dispersed. However, when an assembly becomes violent, the police may disperse such public assembly as follows: (a) At the first sign of impending violence, the ranking officer of the law enforcement contingent shall call the attention of the leaders of the public assembly and ask the latter to prevent any possible disturbance; (b) If actual violence starts to a point where rocks or other harmful objects from the participants are thrown at the police or at the non-participants, or at any property causing damage to such property, the ranking officer of the law enforcement contingent shall audibly warn the participants that if the disturbance persists, the public assembly will be dispersed; (c) If the violence or disturbance prevailing as stated in the preceding subparagraph should not stop or abate, the ranking officer of the law enforcement contingent shall audibly issue a warning to the participants of the public assembly, and after allowing a reasonable period of time to lapse, shall immediately order it to forthwith disperse; (d) No arrest of any leader, organizer or participant shall also be made during the public assembly unless he violates during the assembly a law, statute, ordinance or any provision of this Act. Such arrest shall be governed by Article 125 of the Revised Penal Code, as amended; (d) Isolated acts or incidents of disorder or breach of the peace during the public assembly shall not constitute a ground for dispersal. xxx Sec. 12. Dispersal of public assembly without permit. When the public assembly is held without a permit where a permit is required, the said public assembly may be peacefully dispersed. Sec. 13. Prohibited acts. The following shall constitute violations of the Act: (e) Obstructing, impeding, disrupting or otherwise denying the exercise of the right to peaceful assembly; (f) The unnecessary firing of firearms by a member of any law enforcement agency or any person to disperse the public assembly; (g) Acts described hereunder if committed within one hundred (100) meters from the area of activity of the public assembly or on the occasion thereof: xxx 4. the carrying of firearms by members of the law enforcement unit; 5. the interfering with or intentionally disturbing the holding of a public assembly by the use of a motor vehicle, its horns and loud sound systems. Furthermore, there is need to address the situation adverted to by petitioners where mayors do not act on applications for a permit and when the police demand a permit and the rallyists could not produce one, the rally is immediately dispersed. In such a situation, as a necessary consequence and part of maximum tolerance, rallyists who can show the

Bayan vs. Ermita police an application duly filed on a given date can, after two days from said date, rally in accordance with their application without the need to show a permit, the grant of the permit being then presumed under the law, and it will be the burden of the authorities to show that there has been a denial of the application, in which case the rally may be peacefully dispersed following the procedure of maximum tolerance prescribed by the law.
In sum, this Court reiterates its basic policy of upholding the fundamental rights of our people, especially freedom of expression and freedom of assembly. In several policy addresses, Chief Justice Artemio V. Panganiban has repeatedly vowed to uphold the liberty of our people and to nurture their prosperity. He said that "in cases involving liberty, the scales of justice should weigh heavily against the government and in favor of the poor, the oppressed, the marginalized, the dispossessed and the weak. Indeed, laws and actions that restrict fundamental rights come to the courts with a heavy presumption against their validity. These laws and actions are subjected toheightened scrutiny."26 For this reason, the so-called calibrated preemptive response policy has no place in our legal firmament and must be struck down as a darkness that shrouds freedom. It merely confuses our people and is used by some police agents to justify abuses. On the other hand, B.P. No. 880 cannot be condemned as unconstitutional; it does not curtail or unduly restrict freedoms; it merely regulates the use of public places as to the time, place and manner of assemblies. Far from being insidious, "maximum tolerance" is for the benefit of rallyists, not the government. The delegation to the mayors of the power to issue rally "permits" is valid because it is subject to the constitutionally-sound "clear and present danger" standard. In this Decision, the Court goes even one step further in safeguarding liberty by giving local governments a deadline of 30 days within which to designate specific freedom parks as provided under B.P. No. 880. If, after that period, no such parks are so identified in accordance with Section 15 of the law, all public parks and plazas of the municipality or city concerned shall in effect be deemed freedom parks; no prior permit of whatever kind shall be required to hold an assembly therein. The only requirement will be written notices to the police and the mayors office to allow proper coordination and orderly activities. WHEREFORE, the petitions are GRANTED in part, and respondents, more particularly the Secretary of the Interior and Local Governments, are DIRECTED to take all necessary steps for the immediate compliance with Section 15 of Batas Pambansa No. 880 through the establishment or designation of at least one suitable freedom park or plaza in every city and municipality of the country. After thirty (30) days from the finality of this Decision, subject to the giving of advance notices, no prior permit shall be required to exercise the right to peaceably assemble and petition in the public parks or plazas of a city or municipality that has not yet complied with Section 15 of the law. Furthermore, Calibrated Preemptive Response (CPR), insofar as it would purport to differ from or be in lieu of maximum tolerance, is NULL and VOID and respondents are ENJOINED to REFRAIN from using it and toSTRICTLY OBSERVE the requirements of maximum tolerance. The petitions are DISMISSED in all other respects, and the constitutionality of Batas Pambansa No. 880 is SUSTAINED. No costs. SO ORDERED.

IBP vs Atienza
Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 175241 February 24, 2010

INTEGRATED BAR OF THE PHILIPPINES represented by its National President, Jose Anselmo I. Cadiz, H. HARRY L. ROQUE, and JOEL RUIZ BUTUYAN, Petitioners, vs. HONORABLE MANILA MAYOR JOSE "LITO" ATIENZA, Respondent. DECISION CARPIO MORALES, J.: Petitioners Integrated Bar of the Philippines1 (IBP) and lawyers H. Harry L. Roque and Joel R. Butuyan appeal the June 28, 2006 Decision2 and the October 26, 2006 Resolution3 of the Court of Appeals that found no grave abuse of discretion on the part of respondent Jose "Lito" Atienza, the then mayor of Manila, in granting a permit to rally in a venue other than the one applied for by the IBP. On June 15, 2006, the IBP, through its then National President Jose Anselmo Cadiz (Cadiz), filed with the Office of the City Mayor of Manila a letter application4 for a permit to rally at the foot of Mendiola Bridge on June 22, 2006 from 2:30 p.m. to 5:30 p.m. to be participated in by IBP officers and members, law students and multi-sectoral organizations. Respondent issued a permit5 dated June 16, 2006 allowing the IBP to stage a rally on given date but indicated therein Plaza Miranda as the venue, instead of Mendiola Bridge, which permit the IBP received on June 19, 2006. Aggrieved, petitioners filed on June 21, 2006 before the Court of Appeals a petition for certiorari docketed as CA-G.R. SP No. 94949.6 The petition having been unresolved within 24 hours from its filing, petitioners filed before this Court on June 22, 2006 a petition for certiorari docketed as G.R. No. 172951 which assailed the appellate courts inaction or refusal to resolve the petition within the period provided under the Public Assembly Act of 1985.7 The Court, by Resolutions of July 26, 2006, August 30, 2006 and November 20, 2006, respectively, denied the petition for being moot and academic, denied the relief that the petition be heard on the merits in view of the pendency of CAG.R. SP No. 94949, and denied the motion for reconsideration. The rally pushed through on June 22, 2006 at Mendiola Bridge, after Cadiz discussed with P/Supt. Arturo Paglinawan whose contingent from the Manila Police District (MPD) earlier barred petitioners from proceeding thereto. Petitioners allege that the participants voluntarily dispersed after the peaceful conduct of the program. The MPD thereupon instituted on June 26, 2006 a criminal action,8 docketed as I.S. No. 06I-12501, against Cadiz for violating the Public Assembly Act in staging a rally at a venue not indicated in the permit, to which charge Cadiz filed a Counter-Affidavit of August 3, 2006. In the meantime, the appellate court ruled, in CA-G.R. SP No. 94949, by the first assailed issuance, that the petition became moot and lacked merit. The appellate court also denied petitioners motion for reconsideration by the second assailed issuance. Hence, the filing of the present petition for review on certiorari, to which respondent filed his Comment of November 18, 2008 which merited petitioners Reply of October 2, 2009. The main issue is whether the appellate court erred in holding that the modification of the venue in IBPs rally permit does not constitute grave abuse of discretion.

IBP vs Atienza Petitioners assert that the partial grant of the application runs contrary to the Pubic Assembly Act and violates their constitutional right to freedom of expression and public assembly.
The Court shall first resolve the preliminary issue of mootness. Undoubtedly, the petition filed with the appellate court on June 21, 2006 became moot upon the passing of the date of the rally on June 22, 2006. A moot and academic case is one that ceases to present a justiciable controversy by virtue of supervening events, so that a declaration thereon would be of no practical use or value. Generally, courts decline jurisdiction over such case or dismiss it on ground of mootness. However, even in cases where supervening events had made the cases moot, this Court did not hesitate to resolve the legal or constitutional issues raised to formulate controlling principles to guide the bench, bar and public. Moreover, as an exception to the rule on mootness, courts will decide a question otherwise moot if it is capable of repetition, yet evading review.9 In the present case, the question of the legality of a modification of a permit to rally will arise each time the terms of an intended rally are altered by the concerned official, yet it evades review, owing to the limited time in processing the application where the shortest allowable period is five days prior to the assembly. The susceptibility of recurrence compels the Court to definitively resolve the issue at hand. Respecting petitioners argument that the issues presented in CA-G.R. SP No. 94949 pose a prejudicial question to the criminal case against Cadiz, the Court finds it improper to resolve the same in the present case. Under the Rules,10 the existence of a prejudicial question is a ground in a petition to suspend proceedings in a criminal action. Since suspension of the proceedings in the criminal action may be made only upon petition and not at the instance of the judge or the investigating prosecutor,11 the latter cannot take cognizance of a claim of prejudicial question without a petition to suspend being filed. Since a petition to suspend can be filed only in the criminal action,12 the determination of the pendency of a prejudicial question should be made at the first instance in the criminal action, and not before this Court in an appeal from the civil action. In proceeding to resolve the petition on the merits, the appellate court found no grave abuse of discretion on the part of respondent because the Public Assembly Act does not categorically require respondent to specify in writing the imminent and grave danger of a substantive evil which warrants the denial or modification of the permit and merely mandates that the action taken shall be in writing and shall be served on respondent within 24 hours. The appellate court went on to hold that respondent is authorized to regulate the exercise of the freedom of expression and of public assembly which are not absolute, and that the challenged permit is consistent with Plaza Mirandas designation as a freedom park where protest rallies are allowed without permit. The Court finds for petitioners. Section 6 of the Public Assembly Act reads: Section 6. Action to be taken on the application (a) It shall be the duty of the mayor or any official acting in his behalf to issue or grant a permit unless there is clear and convincing evidence that the public assembly will create a clear and present danger to public order, public safety, public convenience, public morals or public health. (b) The mayor or any official acting in his behalf shall act on the application within two (2) working days from the date the application was filed, failing which, the permit shall be deemed granted. Should for any reason the mayor or any official acting in his behalf refuse to accept the application for a permit, said application shall be posted by the applicant on the premises of the office of the mayor and shall be deemed to have been filed. (c) If the mayor is of the view that there is imminent and grave danger of a substantive evil warranting the denial or modification of the permit, he shall immediately inform the applicant who must be heard on the matter.

IBP vs Atienza (d) The action on the permit shall be in writing and served on the application [sic] within twenty-four hours.
(e) If the mayor or any official acting in his behalf denies the application or modifies the terms thereof in his permit, the applicant may contest the decision in an appropriate court of law. (f) In case suit is brought before the Metropolitan Trial Court, the Municipal Trial Court, the Municipal Circuit Trial Court, the Regional Trial Court, or the Intermediate Appellate Court, its decisions may be appealed to the appropriate court within forty-eight (48) hours after receipt of the same. No appeal bond and record on appeal shall be required. A decision granting such permit or modifying it in terms satisfactory to the applicant shall, be immediately executory. (g) All cases filed in court under this Section shall be decided within twenty-four (24) hours from date of filing. Cases filed hereunder shall be immediately endorsed to the executive judge for disposition or, in his absence, to the next in rank. (h) In all cases, any decision may be appealed to the Supreme Court. (i) Telegraphic appeals to be followed by formal appeals are hereby allowed. (underscoring supplied) In Bayan, Karapatan, Kilusang Magbubukid ng Pilipinas (KMP) v. Ermita,13 the Court reiterated: x x x Freedom of assembly connotes the right of the people to meet peaceably for consultation and discussion of matters of public concern. It is entitled to be accorded the utmost deference and respect. It is not to be limited, much less denied, except on a showing, as is the case with freedom of expression, of a clear and present danger of a substantive evil that the state has a right to prevent. Even prior to the 1935 Constitution, Justice Malcolm had occasion to stress that it is a necessary consequence of our republican institutions and complements the right of free speech. To paraphrase the opinion of Justice Rutledge, speaking for the majority of the American Supreme Court in Thomas v. Collins, it was not by accident or coincidence that the rights to freedom of speech and of the press were coupled in a single guarantee with the rights of the people peaceably to assemble and to petition the government for redress of grievances. All these rights, while not identical, are inseparable. In every case, therefore, where there is a limitation placed on the exercise of this right, the judiciary is called upon to examine the effects of the challenged governmental actuation. The sole justification for a limitation on the exercise of this right, so fundamental to the maintenance of democratic institutions, is the 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.14 (emphasis supplied) The Court in Bayan stated that the provisions of the Public Assembly Act of 1985 practically codified the 1983 ruling in Reyes v. Bagatsing.15 In juxtaposing Sections 4 to 6 of the Public Assembly Act with the pertinent portion of the Reyes case, the Court elucidated as follows: x x x [The public official concerned shall] appraise whether there may be valid objections to the grant of the permit or to its grant but at another public place. It is an indispensable condition to such refusal or modification that the clear and present danger test be the standard for the decision reached. If he is of the view that there is such an imminent and grave danger of a substantive evil, the applicants must be heard on the matter. Thereafter, his decision, whether favorable or adverse, must be transmitted to them at the earliest opportunity. Thus if so minded, they can have recourse to the proper judicial authority.16 (italics and underscoring supplied) In modifying the permit outright, respondent gravely abused his discretion when he did not immediately inform the IBP who should have been heard first on the matter of his perceived imminent and grave danger of a substantive evil that may warrant the changing of the venue. The opportunity to be heard precedes the action on the permit, since the applicant may directly go to court after an unfavorable action on the permit.
1avv phi1

Respondent failed to indicate how he had arrived at modifying the terms of the permit against the standard of a clear and present danger test which, it bears repeating, is an indispensable condition to such modification. Nothing in the issued permit adverts to an imminent and grave danger of a substantive evil, which "blank" denial or modification would, when granted imprimatur as the appellate court would have it, render illusory any judicial scrutiny thereof.

IBP vs Atienza It is true that the licensing official, here respondent Mayor, is not devoid of discretion in determining whether or not a permit would be granted. It is not, however, unfettered discretion. While prudence requires that there be a realistic appraisal not of what may possibly occur but of what may probably occur, given all the relevant circumstances, still the assumption especially so where the assembly is scheduled for a specific public place is that the permit must be for the assembly being held there. The exercise of such a right, in the language of Justice Roberts, speaking for the American Supreme Court, is not to be "abridged on the plea that it may be exercised in some other place."17 (emphasis and underscoring supplied)
Notably, respondent failed to indicate in his Comment any basis or explanation for his action. It smacks of whim and caprice for respondent to just impose a change of venue for an assembly that was slated for a specific public place. It is thus reversible error for the appellate court not to have found such grave abuse of discretion and, under specific statutory provision, not to have modified the permit "in terms satisfactory to the applicant."18 WHEREFORE, the assailed Decision and Resolution of the Court of Appeals in CA-G.R. SP No. 94949 areREVERSED. The Court DECLARES that respondent committed grave abuse of discretion in modifying the rally permit issued on June 16, 2006 insofar as it altered the venue from Mendiola Bridge to Plaza Miranda. SO ORDERED.

Estrada vs Escritor

EN BANC

[A.M. No. P-02-1651. August 4, 2003]

ALEJANDRO ESTRADA, complainant, vs. SOLEDAD S. ESCRITOR, respondent. DECISION

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 states interest and the respondents 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 [3] sovereignty. 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 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 an d prove his allegation in the proper forum.[6] Judge Caoibes set a preliminary conference on October 12, 2000. Escritor moved for the

Estrada vs Escritor

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). Escritors 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 Escritors 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 Jehovahs 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 Gods 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]

Escritors 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 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 congregations 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

Estrada vs Escritor

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 principl es of Gods Word.
xxx xxx xxx

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 Macedas 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 congregations 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 (Escritors) husband. [14] Gregorio Salazar, a member of the Jehovahs 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: 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: What is that document? A: 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: What standard rules and regulations do you have in relation with this document? 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?

Estrada vs Escritor 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 Salazars 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 Quilapios 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 Jehovahs Witnesses congregation and is binding within the congregation all over the world except in countries where divorce is allowed. The Jehovahs 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 couples marital status before giving imp rimatur 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 Escritors and Quilapios declarations were approved are shown by the signatures of three witnesses, the elders in the Atimonan Congregation. Salazar confirmed from the congregations branch off ice 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]

Estrada vs Escritor

Salvador Reyes, a minister at the General de Leon, Valenzuela City Congregation of the Jehovahs 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 Jehovahs 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 Jehovahs Witnesses. Complainant Estrada adds however, that the effect of the relationship to Escritors 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 Jehovahs 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 Jehovahs 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. Jehovahs 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 Caesars 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 Gods Son, can be guided by basic Scrip tural principles that hold true in all cases. Gods view is of first concern. So, first of all the person must consider whether that ones present relationship, or the relationship into which he or she contemplates entering, is one that could meet with Gods approval, or whether in itself, it violates the standards of Gods 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 ones immediate family, or a homosexual relationship or other such situation condemned by Gods 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 Gods eyes.

Estrada vs Escritor

If the relationship is such that it can have Gods approval, then, a second principle to consider is that one should do all one can to establish the honorableness of ones 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 Gods 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 Gods view of the union. Along with this, every effort should be made to set a fine example of faithfulness and devotion to ones mate, thus, keeping the marriage honorable among all. Such course will bring Gods 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 complainants Memorandum came from Judge Caoibes chambers[21] whom she claims was merely using petitioner to malign her. In his Report and Recommendation, investigating judge Maceda found Escritors factual allegatio ns 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 Jehovahs 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. Fernandos 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 inDicdican 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 Escritors defense of freedom of religion unavailing to warrant dismissal of the

Estrada vs Escritor

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 respondents 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 laymans terms, invokes the religious beliefs and practices and moral standards of her religion, the Jehovahs 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

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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 mans 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 upo n him the wrathful vengeance of a superhuman mysterious power.[28] Distinction between the religious and non-religious 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 mans 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 Hammurabis 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 Gods 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

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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. (emphasis supplied)
[37]

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 states 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 toany, but that the mind and will of every individual shall be fr ee 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

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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 emperors 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 states 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 Leos crowning of Charlemagne, became the churchs 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 revolu tion 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.[47] Papist 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 po pe, 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

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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 imp erial 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 theseparatist. The first assumed state superiority in ecclesiastical affairs and the use of religion as an engine of state policy as demonstrated by Luthers 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 Calvins 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 factotoleration 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:

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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 churchstate 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 religions 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.[64]But 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

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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. Englands 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, enco uraging 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 ones religion, which impels persecution for the sake of ones 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

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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 amon g 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 Americas 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 ones 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 magistrates 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. (emphasis supplied)
[84]

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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 Caesars; 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 Paines 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 Crowns 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 states 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. (emphasis supplied)
[92]

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 establishments 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

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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 Religiou s Assessments written by Madison and widely distributed before the reconvening of legislature in the fall of 1785.[96] It stressed natural rights, the governments 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. (emphases supplied)
[97]

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

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

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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. (emphases supplied)
[98]

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 separation [100] 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] Jeffersons 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.[105] However, 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.
VI. Religion Clauses in the United States: Concept, Jurisprudence, Standards

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

Estrada vs Escritor

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.[115]The 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. Beason[120] that the United States Supreme Court first had occasion to define religion, viz:

The term religion has reference to ones 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

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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. Ballard[122] 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 non-theistic beliefs such as Buddhism, Taoism, Ethical Culture, and Secular Humanism. Four years later, the Court faced a definitional problem in United States v. Seeger[126] 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 nontheistic 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 believers 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,[128] although 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

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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 all [138] 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. (emphasis supplied)
[141]

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

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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 Jeffersons 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. (emphasis supplied)
[145]

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 legislatures 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 legislatures 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

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penalties on polygamy such as the Davis case and Church of Latter Day Saints v. United States.[149] However, more than a century sinceReynolds 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 beliefs[151] and proscribes government from questioning a persons 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 persons 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 Jehovahs 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 Jehovahs Witnesses from peaceably and orderly prosely tizing on Sundays merely because other citizens complained. In another case likewise involving the Jehovahs Witnesses, Niemotko v. Maryland,[158] the Court unanimously held unconstitutional a city councils denial of a permit to the Jehovahs Witnesses to use the city park for a public meeting. The city councils refusal was because of the unsatisfactory answers of the Jehovahs Witnesses to questio ns about Catholicism, military service, and other issues. The denial of the public forum was considered blatant

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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 governments non-religious regulatory interest so long as the government is proscribing action and not belief. Thus, the Court abandoned the simplistic beliefaction 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 governments 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 Jehovahs 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 states 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. Barnette[164] 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 Jehovahs 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 ones 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 Gobitissubordinated 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

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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. Brown[169] 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 states 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, appellees 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 appellants 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 appellants religion may be justified by a compelling state interest in the regulation of a su bject within the States constitutional power to regulate. . . NAACP v. Button, 371 US 415, 438 9 L ed 2d 405, 421, 83 S Ct 328. (emphasis supplied)
[173]

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 Sherberts religious liberty. It added that even if the state could show that Sherberts 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 Sherberts benef its 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:

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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 thedeliberate-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 Board[177] and Hobbie v. Unemployment Appeals Division,[178] for 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 governments 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 p ayment of taxes affords no basis for resisting the tax. [180] It reasoned that unlike in Sherbert, an exemption would significantly impair governments 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 governments 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. Yoder[182] where the Court upheld the religious practice of the Old Order Amish faith over the states 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

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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 well-established practice of the Native American Church, a sect outside the Judeo-Christian mainstream of American religion, came in conflict with the states interest in prohibiting the use of illicit drugs. Oregons 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 Oregons 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 governments

Estrada vs Escritor

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 objectors spiritual development. . . .To make an individuals obligation to obey such a law contingent upon the laws coincidence with his religious beliefs except where the States interest is compelling - permitting him, by virtue of his beliefs, to become a law unto himself, . . . - contradicts both constitutional tradition and common sense.
Justice OConnor wrote a concurring opinion pointing out that the majoritys 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 Nations fundamental commitment to religious liberty. This portion of her concurring opinion was supported by Justices Brennan, Marshall and Blackmun who dissented from the Courts decision. Justice OConnor asserted that (t)he compelling state interest test effectuates the First Amendments 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 Oregons 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 Courts 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 minoritys religious freedom. If the regulation had instead restricted the majoritys religious practice, the majoritarian legislative process would in all probability have modified or rejected the regulation. Thus, the imposition of the political majoritys non-religious objectives at the expense of the minoritys religious interests implements the majoritys religious viewpoint at the expense of the minoritys. 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

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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 Smithdecision 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 persons 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 Hialeah[193] 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 Courts 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 Clause [196] and raised establishment questions but were decided on other grounds. [197] It was in the Everson case that the U.S. Supreme Court adopted Jeffersons 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 States[198] quoted Jeffersons 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

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religion or prohibiting the free exercise thereof, thus building a wall of separation between Church and State. (emphasis supplied)
[199]

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 states 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 Courts Establishment Clause jurisprudence that evolved in the 1950s and 1960s and laid down a three-pronged test in Lemon v. Kurtzman[204] 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

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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 int ensely 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. Schempp[208] and Murray v. Curlett[209] where the Court struck down the practice of Bible reading and the recitation of the Lords 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 Courts 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. Jaffree[212] 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 seminalEverson 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

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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 tax-supported 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, in McGowan 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 Nebraskas policy of beginning legislative sessions with prayers offered by a Protestant chaplain retained at th e 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]) (emphasis supplied)
[219]

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

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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 Commissions 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 nonprofit, 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 Courts 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 preRevolutionary 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. (emphasis supplied)
[225]

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, 792-93[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

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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 state-mandated 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 neutralityprotects 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 Jeffersons 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. (emphasis supplied)
[230]

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 Amendments 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

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years than at any other time before or since,[232] accommodationaists claim that American citizens at the time of the Constitutions 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 states 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 Courts tendency to press relentlessly towar ds a more secular society.[241] It finds basis in the Everson case where the Court declared that Jeffersons 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 nonbelievers; 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 inEngel 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

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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 envisionedreligion 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 church -state 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 Howes 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 world [252] 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]

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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. (emphasis supplied)
[259]

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. (emphases supplied)
[261]

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

Estrada vs Escritor

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 Courts 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 stat e 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 factoestablishments.[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 governments 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 persons or institutions 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 free dom 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]

Estrada vs Escritor

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) majoritys favored brand of religion and government action t hat 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 ones 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

Estrada vs Escritor

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 isprohibited. 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 authority[276] 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 states 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.[279] This approach of the Court on burdensome effect wa s 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 nonreligious 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 Marshallowing 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

Estrada vs Escritor

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 claimants beliefs must be sincere, but they need not necessarily be consistent, coherent, clearly articulated, or congruent with those of the claimants 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 inSherbert is followed in weighing the states 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 claimants 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 Wisconsinwhere 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 peoples 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 claimants 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 individuals 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

Estrada vs Escritor

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 states 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?[291] The 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

Estrada vs Escritor

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 McKinleys Instructions to the Second Philippine Commission reasserted this right

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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 preChristian 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 non -theistic 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

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of Aglipay v. Ruiz[310] 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 theAglipay 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 ones 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 non-theistic 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 ones 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 Education[313] is instructive on the matter,viz:

The realm of belief and creed is infinite and limitless bounded only by ones 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 mayors permit and a municipal license as ordinarily required of those engaged in the business of general merchandise under the citys 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, 4 th ed., p. 297) (emphasis supplied)
This was the Courts 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

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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 casefrom 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 Courts 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 Jehovahs 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, petitioners children refused to salute the Philippine flag, sing the national anthem, or recite the pat riotic 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]

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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 petitioners 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 Frankfurters 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 ones religion, ones 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 Victorianos 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

Estrada vs Escritor

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. (emphasis supplied)
[327]

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 ones 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 states 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) (emphasis supplied)
[328]

Quoting Aglipay v. Ruiz,[329] the Court held that government is not precluded from pursuing valid objectives secular in character even if the inciden tal 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

Estrada vs Escritor

Court then abruptly added that (i)n the instant case, We see no compelling state interes t 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 states 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 casefrom which Victoriano borrowed this test, the inevitable conclusion is that the compelling state interest test was not appropriate and could not find application in theVictoriano 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 Sherberts claim of religious freedom. The U.S. Supreme Court, considering Sherberts and the Commissions arguments, found that the state interest was not sufficiently c ompelling to prevail over Sherberts free exercise claim. This situation did not obtain in the Victoriano casewhere it was the government itself, through Congress, which provided the exemption in Republic Act No. 3350 to allow Victorianos 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. CitingCantwell, the Court distinguished between freedom to believe and freedom to act on matters of religion, viz:

Estrada vs Escritor

. . . 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[338] and 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 ones 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). (emphasis supplied)
[339]

The J.B.L. Reyes v. Bagatsing case from which this portion of Justice Teehankees dissent was taken involved the rights to free speech and assembly, and not the exercise of religious freedom. At issue in

Estrada vs Escritor

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 Jehovahs Witnesses participation in the flag ceremony again came before the Court in Ebralinag v. The Division Superintendent of Schools.[341] A unanimous Court overturned the Gerona ruling after three decades. Similar to Gerona, this case involved several Jehovahs 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 Teehankees 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. (emphasis supplied)
[342]

The Court added, viz:

We are not persuaded that by exempting the Jehovahs 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 Jehovahs Witnesses, viz:

Estrada vs Escritor

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 Jehovahs 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 Generals consolidated comment, one of the grounds cited to defend the expulsion orders issued by the public respondents was that (t)he States compelling interests being pursued by the DECs lawful regulations in question do not warrant exemption of the school children of the Jehovahs 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.[348] Although 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 Cristos 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 Boards 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 ones belief, where it affects the public, is subject to the authority of the state. The commentary quoted Justice Frankfurters 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

Estrada vs Escritor

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 petitioners 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 t o 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 ones 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

Estrada vs Escritor

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. 4052 [358] 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

Estrada vs Escritor

fact, certain general concessions are indiscriminately accorded to religious sects and denominations. . .
[359]

xxx xxx

xxx

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 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) (emphases supplied)
[360]

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 saints 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 thebarangay 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 Co nstitution. Citing Torcaso v. Watkins,[363] the ponencia held, viz:

Estrada vs Escritor

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 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 appellants 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 non-establishment 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 Appeals[365] 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, citing Watson 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:

Estrada vs Escritor

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. (emphasis supplied)
[371]

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:

Estrada vs Escritor

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. (emphasis supplied)
[373]

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 citizens 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 employsseparation while the second employs benevolent neutrality in

Estrada vs Escritor

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 abenevolent 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 gua ranteed 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,

Estrada vs Escritor

thebenevolent 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:

(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 such
[382]

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 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. ..

Estrada vs Escritor

The law then applicable was Section 928 of the Administrative Code, viz:

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 Constitutions 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 Constitutions 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

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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-committees 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 nonestablishment 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. (emphasis supplied)
[397]

Estrada vs Escritor

(W)ithin regular class hours was approved. The 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 nonestablishment 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

Estrada vs Escritor

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 long-standing traditions which have acquired a social character - the barrio fiesta is a socio-religious 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 Jehovahs 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 andaccommodation. 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 Americas 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

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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 Germancases 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 conductarising 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 states 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 th e 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 states 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 up holding 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

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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 majoritys 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. Alejo[411] 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 Jehovahs Witnesses, has, after thorough investigation, allowed her conjugal arrangement with Quilapio based on the churchs 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 societys 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

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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. Harts argument propounded in Mr. Justice Vitugs separate opinion that, Devlins 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 Devlins proposit ion 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.[421] Occasionally 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

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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 w hether these laws on private morality are justified or they constitute impingement on ones freedom of belief. Discussion on private morality, however, is not material to the case at bar for whether respondents 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 legislatures 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 Commissions 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.

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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. (emphases supplied)
[433]

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 persons 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 Courts 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 mans 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 lawyers[436], 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]

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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 constitutions 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 Vitugs 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. Theaccommodation 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 respondents 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

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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 respondents 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 states 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 immo ral 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 respondents conduct has offended and cited a string of precedents where a government employee was found guilty of committing a disgraceful and immoral

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conduct for maintaining illicit relations and was thereby penalized. As stated above, there is no dispute that under settled jurisprudence, respondents conduct constitutes disgra ceful 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-Santiagos dissent also cites Cleveland v. United States[446] 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 respondents 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 Jehovahs 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 Ynares-Santiagos dissent nevertheless discussed respondents 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 Carpios 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 necess ary coaccused 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 opportun ity 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

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freedom cannot prevail without so much as employing a test that would balance respondents religious freedom and the states 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 respondents plea of religious freedom without even subjecting it to the compelling state interest test that would balance her freedom with the paramount interests of t he 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. Malik [451] cited in Mr. Justice Carpios 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 respondents 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 respondents claim of religious freedom to the compelling state interest test from a benevolent neutrality stance - i.e. entertaining the possibility that respondents 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 respondents 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 Sherberts 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.

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The second step is to ascertain respondents sincerity in her religious belief. Respondent appears to be sincere in her religious belief and pract ice 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 Jehovahs 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 respondents circumstances honorable before God and men. It is also worthy of notice that the Report and Recommendation of the investigating judge annexed letters[453] 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 OCAs 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 respondents request for exemption from the flag ceremony on the ground of the Jehovahs Witnesses contrary belief and practice. Respondents request for exemption from the flag ceremony shows her sincerity in practicing the Jehovahs Witnesses beliefs and not using them merely to escape punishment. She is a practicing member of the Jehovahs 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 respondents 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 respondents 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 Courts use of the compelling state interest test. We note that the OCA found respondents defense of religious freedom unavailing in t he face of the Courts 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 OCAs 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 OCAs memorandum to the Court that demonstrates h ow this interest is so compelling that it should override respondents plea of religious freedom nor is it shown that the means employed by the government in pursuing its interest is the least restrictive to respondents 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 respondents 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 Courts action would

Estrada vs Escritor

be an unconstitutional encroachment of her right to religious freedom. [454] We cannot therefore simply take a passing look at respondents 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 states compelling interest which can override respondents 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 respondents claimed religious belief and practice; (b) to present evidence on the states compelling interest to override respondents religious belief and practice; and (c) to show that the means the state adopts in pursuing its interest is the least restrictive to respondents religious freedom. The rehearing should be concluded thirty (30) days from the Office of the Court Administrators receipt of this Decision. SO ORDERED.

Gudani vs Senga

EN BANC
B/GEN. (RET.) FRANCISCO V. GUDANI AND LT. COL. ALEXANDER F. BALUTAN Petitioners, Present: G.R. No. 170165

PANGANIBAN, C.J., PUNO, - versus QUISUMBING, YNARES-SANTIAGO, SANDOVAL-GUTIERREZ, CARPIO, AUSTRIA-MARTINEZ, LT./GEN. GENEROSO S. SENGA AS CHIEF OF STAFF OF THE ARMED FORCES OF THE PHILIPPINES, COL. GILBERTO JOSE C. ROA AS THE PRE-TRIAL INVESTIGATING OFFICER, THE PROVOST MARSHALL GENERAL OF THE ARMED FORCES OF THE CORONA, CARPIO-MORALES, CALLEJO, SR., AZCUNA, TINGA, CHICO-NAZARIO, GARCIA, and VELASCO, JR., JJ.

Gudani vs Senga

PHILIPPINES AND THE GENERAL COURT-MARTIAL, Respondents. Promulgated: August 15, 2006 x--------------------------------------------------------------------------- x

DECISION

TINGA, J.:

A most dangerous general proposition is foisted that soldiers who defy orders of their superior officers are exempt

on

the

Court

from the strictures of military law and discipline if such defiance is predicated on an act otherwise valid under civilian law. Obedience and deference to the military chain of command and the President as commander-in-chief are the cornerstones of a professional military in the firm cusp of civilian control. These values of obedience and deference expected of military officers are content-neutral, beyond the sway of the officers own sense of what is prudent or rash, or more elementally, of right or wrong. A self-righteous military invites itself as the scoundrels activist solution to the ills of participatory democracy.

Petitioners seek the annulment of a directive from President Gloria MacapagalArroyo[1] enjoining them and other military officers from testifying before Congress without the Presidents consent. Petitioners also pray for injunctive relief against a pending preliminary

Gudani vs Senga

investigation against them, in preparation for possible court-martial proceedings, initiated within the military justice system in connection with petitioners violation of the aforementioned directive.

The Court is cognizant that petitioners, in their defense, invoke weighty constitutional principles that center on fundamental freedoms enshrined in the Bill of Rights. Although these concerns will not be

Gudani vs Senga

addressed to the satisfaction of petitioners, the Court recognizes these values as of paramount importance to our civil society, even if not determinative of the resolution of this petition. Had the relevant issue before us been the right of the Senate to compel the testimony of petitioners, the constitutional questions raised by them would have come to fore. Such a scenario could have very well been presented to the Court in such manner, without the petitioners having had to violate a direct order from their commanding officer. Instead, the Court has to resolve whether petitioners may be subjected to military discipline on account of their defiance of a direct order of the AFP Chief of Staff.

The solicited writs of certiorari and prohibition do not avail; the petition must be denied.

I.

The petitioners are high-ranking officers of the Armed Forces of the Philippines (AFP). Both petitioners, Brigadier General Francisco Gudani (Gen. Gudani) and Lieutenant Colonel Alexander Balutan (Col. Balutan), belonged to the Philippine Marines. At the time of the subject incidents, both Gen. Gudani and Col. Balutan were assigned to the Philippine Military Academy (PMA) in Baguio City, the former as the PMA Assistant Superintendent, and the latter as the Assistant Commandant of Cadets.[2]

On 22 September 2005, Senator Rodolfo Biazon (Sen. Biazon) invited several senior officers of the AFP to appear at a public hearing before the Senate Committee on National Defense and Security (Senate Committee) scheduled on 28 September 2005. The hearing was scheduled after topics concerning the conduct of the 2004 elections emerged in the public eye, particularly allegations of massive cheating and the surfacing of copies of an audio excerpt purportedly of a phone conversation between President Gloria Macapagal Arroyo and an official of the Commission on Elections (COMELEC) widely reputed as then COMELEC Commissioner Virgilio Garcillano. At the time of the 2004 elections, Gen. Gudani had been designated as commander, and Col. Balutan a member, of Joint Task Force Ranao by the AFP Southern Command. Joint Task Force Ranao was tasked with the maintenance of peace and order during the 2004 elections in the provinces of Lanao del Norte and Lanao del Sur.[3] `

Gudani vs Senga

Gen. Gudani, Col. Balutan, and AFP Chief of Staff Lieutenant General Generoso Senga (Gen. Senga) were among the several AFP officers who received a letter invitation from Sen. Biazon to attend the 28 September 2005 hearing. On 23 September 2005, Gen. Senga replied through a letter to Sen. Biazon that he would be unable to attend the hearing due to a previous commitment in Brunei, but he nonetheless directed other officers from the AFP who were invited to attend the hearing.[4]

On 26 September 2005, the Office of the Chief of Staff of the AFP issued a Memorandum addressed to the Superintendent of the PMA Gen. Cristolito P. Baloing (Gen. Baloing). It was signed by Lt. Col. Hernando DCA Iriberri in behalf of Gen. Senga.[5] Noting that Gen. Gudani and Col. Balutan had been invited to attend the Senate Committee hearing on 28 September 2005, the Memorandum directed the two officers to attend the hearing.[6] Conformably, Gen. Gudani and Col. Balutan filed their respective requests for travel authority addressed to the PMA Superintendent.

On 27 September 2005, Gen. Senga wrote a letter to Sen. Biazon, requesting the postponement of the hearing scheduled for the following day, since the AFP Chief of Staff was himself unable to attend said hearing, and that some of the invited officers also could not attend as they were attending to other urgent operational matters. By this time, both Gen. Gudani and Col. Balutan had already departed Baguio for Manila to attend the hearing.

Then on the evening of 27 September 2005, at around 10:10 p.m., a message was transmitted to the PMA Superintendent from the office of Gen. Senga, stating as follows:

PER INSTRUCTION OF HER EXCELLENCY PGMA, NO AFP PERSONNEL SHALL APPEAR BEFORE ANY CONGRESSIONAL OR SENATE HEARING WITHOUT HER APPROVAL. INFORM BGEN FRANCISCO F GUDANI AFP AND LTC ALEXANDER BALUTAN PA (GSC) ACCORDINGLY.[7]

Gudani vs Senga

The following day, Gen. Senga sent another letter to Sen. Biazon, this time informing the senator that no approval has been granted by the President to any AFP officer to appear before the hearing scheduled on that day. Nonetheless, both Gen. Gudani and Col. Balutan were present as the hearing started, and they both testified as to the conduct of the 2004 elections.

The Office of the Solicitor General (OSG), representing the respondents before this Court, has offered additional information surrounding the testimony of Gen. Gudani and Col. Balutan. The OSG manifests that the couriers of the AFP Command Center had attempted to deliver the radio message to Gen. Gudanis residence in a subdivision in Paraaque City late in the night of 27 September 2005, but they were not permitted entry by the subdivision guards. The next day, 28 September 2005, shortly before the start of the hearing, a copy of Gen. Sengas letter to Sen. Biazon sent earlier that day was handed at the Senate by Commodore Amable B. Tolentino of the AFP Office for Legislative Affairs to Gen. Gudani, who replied that he already had a copy. Further, Gen. Senga called Commodore Tolentino on the latters cell phone and asked to talk to Gen. Gudani, but Gen. Gudani refused. In response, Gen. Senga instructed Commodore Tolentino to inform Gen. Gudani that it was an order, yet Gen. Gudani still refused to take Gen. Sengas call.[8]

A few hours after Gen. Gudani and Col. Balutan had concluded their testimony, the office of Gen. Senga issued a statement which noted that the two had appeared before the Senate Committee in spite of the fact that a guidance has been given that a Presidential approval should be sought prior to such an appearance; that such directive was in keeping with the time[-+honored principle of the Chain of Command; and that the two officers disobeyed a legal order, in violation of A[rticles of] W[ar] 65 (Willfully Disobeying Superior Officer), hence they will be subjected to General Court Martial proceedings x x x Both Gen. Gudani and Col. Balutan were likewise relieved of their assignments then.[9]

On the very day of the hearing, 28 September 2005, President Gloria-Macapagal-Arroyo issued Executive Order No. 464 (E.O. 464). The OSG notes that the E.O. enjoined officials of the executive department including the military establishment from appearing in any legislative inquiry without her approval.[10] This Court subsequently ruled on the constitutionality of the said executive order in Senate v. Ermita.[11] The relevance of E.O. 464 andSenate to the present petition shall be discussed forthwith.

Gudani vs Senga

In the meantime, on 30 September 2005, petitioners were directed by General Senga, through Col. Henry A. Galarpe of the AFP Provost Marshal General, to appear before the Office of the Provost Marshal General (OPMG) on 3 October 2005 for investigation. During their appearance before Col. Galarpe, both petitioners invoked their right to remain silent.[12] The following day, Gen. Gudani was compulsorily retired from military service, having reached the age of 56.[13]

In an Investigation Report dated 6 October 2005, the OPMG recommended that petitioners be charged with violation of Article of War 65, on willfully disobeying a superior officer, in relation to Article of War 97, on conduct prejudicial to the good order and military discipline.[14] As recommended, the case was referred to a Pre-Trial Investigation Officer (PTIO) preparatory to trial by the General Court Martial (GCM).[15] Consequently, on 24 October 2005, petitioners were separately served with Orders respectively addressed to them and signed by respondent Col. Gilbert Jose C. Roa, the Pre-Trial Investigating Officer of the PTIO. The Orders directed petitioners to appear in person before Col. Roa at the Pre-Trial Investigation of the Charges for violation of Articles 65[16] and 97[17] of Commonwealth Act No. 408,[18] and to submit their counter-affidavits and affidavits of witnesses at the Office of the Judge Advocate General.[19] The Orders were accompanied by respective charge sheets against petitioners, accusing them of violating Articles of War 65 and 97.

It was from these premises that the present petition for certiorari and prohibition was filed, particularly seeking that (1) the order of President Arroyo coursed through Gen. Senga preventing petitioners from testifying before Congress without her prior approval be declared unconstitutional; (2) the charges stated in the charge sheets against petitioners be quashed; and (3) Gen. Senga, Col. Galarpe, Col. Roa, and their successors-in-interest or persons acting for and on their behalf or orders, be permanently enjoined from proceeding against petitioners, as a consequence of their having testified before the Senate on 28 September 2005.[20]

Petitioners characterize the directive from President Arroyo requiring her prior approval before any AFP personnel appear before Congress as a gag order, which violates the principle of separation of powers in government as it interferes with the investigation of the Senate Committee conducted in aid of legislation. They also equate the gag order with culpable violation of the Constitution, particularly in relation to the publics constitutional right to information and transparency in matters of public concern. Plaintively, petitioners claim that the Filipino people have every right to hear the *petitioners+ testimonies, and even if the gag

Gudani vs Senga

order were unconstitutional, it still was tantamount to the crime of obstruction of justice. Petitioners further argue that there was no law prohibiting them from testifying before the Senate, and in fact, they were appearing in obeisance to the authority of Congress to conduct inquiries in aid of legislation.

Finally, it is stressed in the petition that Gen. Gudani was no longer subject to military jurisdiction on account of his compulsory retirement on 4 October 2005. It is pointed out that Article 2, Title I of the Articles of War defines persons subject to military law as all officers and soldiers in the active service of the AFP.

II.

We first proceed to define the proper litigable issues. Notably, the guilt or innocence of petitioners in violating Articles 65 and 97 of the Articles of War is not an issue before this Court, especially considering that per records, petitioners have not yet been subjected to court martial proceedings. Owing to the absence of such proceedings, the correct inquiry should be limited to whether respondents could properly initiate such proceedings preparatory to a formal courtmartial, such as the aforementioned preliminary investigation, on the basis of petitioners acts surrounding their testimony before the Senate on 28 September 2005. Yet this Court, consistent with the principle that it is not a trier of facts at first instance,[21] is averse to making any authoritative findings of fact, for that function is first for the court-martial court to fulfill.

Thus, we limit ourselves to those facts that are not controverted before the Court, having been commonly alleged by petitioners and the OSG (for respondents). Petitioners were called by the Senate Committee to testify in its 28 September 2005 hearing. Petitioners attended such hearing and testified before the Committee, despite the fact that the day before, there was an order from Gen. Senga (which in turn was sourced per instruction from President Arroyo) prohibiting them from testifying without the prior approval of the President. Petitioners do not precisely admit before this Court that they had learned of such order prior to their testimony, although the OSG asserts that at the very least, Gen. Gudani already knew of such order before he testified.[22] Yet while this fact may be ultimately material in the court-martial proceedings, it is not determinative of this petition, which as stated earlier, does not proffer as an issue whether petitioners are guilty of violating the Articles of War.

Gudani vs Senga

What the Court has to consider though is whether the violation of the aforementioned order of Gen. Senga, which emanated from the President, could lead to any investigation for court-martial of petitioners. It has to be acknowledged as a general principle[23] that AFP personnel of whatever rank are liable under military law for violating a direct order of an officer superior in rank. Whether petitioners did violate such an order is not for the Court to decide, but it will be necessary to assume, for the purposes of this petition, that petitioners did so.

III.

Preliminarily, we must discuss the effect of E.O. 464 and the Courts ruling in Senate on the present petition. Notably, it is not alleged that petitioners were in any way called to task for violating E.O. 464, but instead, they were charged for violating the direct order of Gen. Senga not to appear before the Senate Committee, an order that stands independent of the executive order. Distinctions are called for, since Section 2(b) of E.O. 464 listed generals and flag officers of the Armed Forces of the Philippines and such other officers who in the judgment of the Chief of Staff are covered by the executive privilege, as among those public officials required in Section 3 of E.O. 464 to secure prior consent of the President prior to appearing before either House of Congress. The Court in Senate declared both Section 2(b) and Section 3 void,[24] and the impression may have been left following Senate that it settled as doctrine, that the President is prohibited from requiring military personnel from attending congressional hearings without having first secured prior presidential consent. That impression is wrong.

Senate turned on the nature of executive privilege, a presidential prerogative which is encumbered by significant limitations. Insofar as E.O. 464 compelled officials of the executive branch to seek prior presidential approval before appearing before Congress, the notion of executive control also comes into consideration.[25] However, the ability of the President to require a military official to secure prior consent before appearing before Congress pertains to a wholly different and independent specie of presidential authoritythe commander-in-chief powers of the President. By tradition and jurisprudence, the commander-in-chief powers of the President are not encumbered by the same degree of restriction as that which may attach to executive privilege or executive control.

Gudani vs Senga

During the deliberations in Senate, the Court was very well aware of the pendency of this petition as well as the issues raised herein. The decision inSenate was rendered with the comfort that the nullification of portions of E.O. 464 would bear no impact on the present petition since petitioners herein were not called to task for violating the executive order. Moreover, the Court was then cognizant that Senate and this case would ultimately hinge on disparate legal issues. Relevantly, Senate purposely did not touch upon or rule on the faculty of the President, under the aegis of the commander-in-chief powers[26] to require military officials from securing prior consent before appearing before Congress. The pertinent factors in considering that question are markedly outside of those which did become relevant in adjudicating the issues raised in Senate. It is in this petition that those factors come into play.

At this point, we wish to dispose of another peripheral issue before we strike at the heart of the matter. General Gudani argues that he can no longer fall within the jurisdiction of the courtmartial, considering his retirement last 4 October 2005. He cites Article 2, Title I of Commonwealth Act No. 408, which defines persons subject to military law as, among others, all officers and soldiers in the active service of the *AFP+, and points out that he is no longer in the active service.

This point was settled against Gen. Gudanis position in Abadilla v. Ramos,[27] where the Court declared that an officer whose name was dropped from the roll of officers cannot be considered to be outside the jurisdiction of military authorities when military justice proceedings were initiated against him before the termination of his service. Once jurisdiction has been acquired over the officer, it continues until his case is terminated. Thus, the Court held:

The military authorities had jurisdiction over the person of Colonel Abadilla at the time of the alleged offenses. This jurisdiction having been vested in the military authorities, it is retained up to the end of the proceedings against Colonel Abadilla. Well-settled is the rule that jurisdiction once acquired is not lost upon the instance of the parties but continues until the case is terminated.[28]

Citing Colonel Winthrops treatise on Military Law, the Court further stated:

Gudani vs Senga We have gone through the treatise of Colonel Winthrop and We find the following passage which goes against the contention of the petitioners, viz

3. Offenders in general Attaching of jurisdiction. It has further been held, and is now settled law, in regard to military offenders in general, that if the military jurisdiction has once duly attached to them previous to the date of the termination of their legal period of service, they may be brought to trial by court-martial after that date, their discharge being meanwhile withheld. This principle has mostly been applied to cases where the offense was committed just prior to the end of the term. In such cases the interests of discipline clearly forbid that the offender should go unpunished. It is held therefore that if before the day on which his service legally terminates and his right to a discharge is complete, proceedings with a view to trial are commenced against him as by arrest or the service of charges, the military jurisdiction will fully attach and once attached may be continued by a trial by court-martial ordered and held after the end of the term of the enlistment of the accused x x x [29]

Thus, military jurisdiction has fully attached to Gen. Gudani inasmuch as both the acts complained of and the initiation of the proceedings against him occurred before he compulsorily retired on 4 October 2005. We see no reason to unsettle the Abadilla doctrine. The OSG also points out that under Section 28 of Presidential Decree No. 1638, as amended, *a+n officer or enlisted man carried in the retired list [of the Armed Forces of the Philippines] shall be subject to the Articles of War x x x[30] To this citation, petitioners do not offer any response, and in fact have excluded the matter of Gen. Gudanis retirement as an issue in their subsequent memorandum.

IV.

We now turn to the central issues.

Petitioners wish to see annulled the gag order that required them to secure presidential consent prior to their appearance before the Senate, claiming that it violates the constitutional right to information and transparency in matters of public concern; or if not, is tantamount at least to the criminal acts of obstruction of justice and grave coercion. However, the proper perspective from which to consider this issue entails the examination of the basis and authority

Gudani vs Senga

of the President to issue such an order in the first place to members of the AFP and the determination of whether such an order is subject to any limitations.

The vitality of the tenet that the President is the commander-in-chief of the Armed Forces is most crucial to the democratic way of life, to civilian supremacy over the military, and to the general stability of our representative system of government. The Constitution reposes final authority, control and supervision of the AFP to the President, a civilian who is not a member of the armed forces, and whose duties as commander-in-chief represent only a part of the organic duties imposed upon the office, the other functions being clearly civil in nature.[31] Civilian supremacy over the military also countermands the notion that the military may bypass civilian authorities, such as civil courts, on matters such as conducting warrantless searches and seizures.[32]

Pursuant to the maintenance of civilian supremacy over the military, the Constitution has allocated specific roles to the legislative and executive branches of government in relation to military affairs. Military appropriations, as with all other appropriations, are determined by Congress, as is the power to declare the existence of a state of war.[33] Congress is also empowered to revoke a proclamation of martial law or the suspension of the writ of habeas corpus.[34] The approval of the Commission on Appointments is also required before the President can promote military officers from the rank of colonel or naval captain.[35] Otherwise, on the particulars of civilian dominance and administration over the military, the Constitution is silent, except for the commander-in-chief clause which is fertile in meaning and implication as to whatever inherent martial authority the President may possess.[36]

The commander-in-chief provision in the Constitution is denominated as Section 18, Article VII, which begins with the simple declaration that *t+he President shall be the Commander-inChief of all armed forces of the Philippines x x x[37] Outside explicit constitutional limitations, such as those found in Section 5, Article XVI, the commander-in-chief clause vests on the President, as commander-in-chief, absolute authority over the persons and actions of the members of the armed forces. Such authority includes the ability of the President to restrict the travel, movement and speech of military officers, activities which may otherwise be sanctioned under civilian law.

Gudani vs Senga

Reference to Kapunan, Jr. v. De Villa[38] is useful in this regard. Lt. Col. Kapunan was ordered confined under house arrest by then Chief of Staff (later President) Gen. Fidel Ramos. Kapunan was also ordered, as a condition for his house arrest, that he may not issue any press statements or give any press conference during his period of detention. The Court unanimously upheld such restrictions, noting:

[T]he Court is of the view that such is justified by the requirements of military discipline. It cannot be gainsaid that certain liberties of persons in the military service, including the freedom of speech, may be circumscribed by rules of military discipline. Thus, to a certain degree, individual rights may be curtailed, because the effectiveness of the military in fulfilling its duties under the law depends to a large extent on the maintenance of discipline within its ranks. Hence, lawful orders must be followed without question and rules must be faithfully complied with, irrespective of a soldier's personal views on the matter. It is from this viewpoint that the restrictions imposed on petitioner Kapunan, an officer in the AFP, have to be considered.[39]

Any good soldier, or indeed any ROTC cadet, can attest to the fact that the military way of life circumscribes several of the cherished freedoms of civilian life. It is part and parcel of the military package. Those who cannot abide by these limitations normally do not pursue a military career and instead find satisfaction in other fields; and in fact many of those discharged from the service are inspired in their later careers precisely by their rebellion against the regimentation of military life. Inability or unwillingness to cope with military discipline is not a stain on character, for the military mode is a highly idiosyncratic path which persons are not generally conscripted into, but volunteer themselves to be part of. But for those who do make the choice to be a soldier, significant concessions to personal freedoms are expected. After all, if need be, the men and women of the armed forces may be commanded upon to die for country, even against their personal inclinations.

It may be so that military culture is a remnant of a less democratic era, yet it has been fully integrated into the democratic system of governance. The constitutional role of the armed forces is as protector of the people and of the State.[40] Towards this end, the military must insist upon a respect for duty and a discipline without counterpart in civilian life.[41] The laws and traditions governing that discipline have a long history; but they are founded on unique military exigencies as powerful now as in the past.[42] In the end, it must be borne in mind that the armed forces has a distinct subculture with unique needs, a specialized society separate from civilian society. [43] In the elegant prose of the eminent British military historian, John Keegan:

Gudani vs Senga

[Warriors who fight wars have] values and skills [which] are not those of politicians and diplomats. They are those of a world apart, a very ancient world, which exists in parallel with the everyday world but does not belong to it. Both worlds change over time, and the warrior world adopts in step to the civilian. It follows it, however, at a distance. The distance can never be closed, for the culture of the warrior can never be that of civilization itself.[44]

Critical to military discipline is obeisance to the military chain of command. Willful disobedience of a superior officer is punishable by court-martial under Article 65 of the Articles of War.[45] An individual soldier is not free to ignore the lawful orders or duties assigned by his immediate superiors. For there would be an end of all discipline if the seaman and marines on board a ship of war [or soldiers deployed in the field], on a distant service, were permitted to act upon their own opinion of their rights [or their opinion of the

Gudani vs Senga

Presidents intent+, and to throw off the authority of the commander whenever they supposed it to be unlawfully exercised.[46]

Further traditional restrictions on members of the armed forces are those imposed on free speech and mobility. Kapunan is ample precedent in justifying that a soldier may be restrained by a superior officer from speaking out on certain matters. As a general rule, the discretion of a military officer to restrain the speech of a soldier under his/her command will be accorded deference, with minimal regard if at all to the reason for such restraint. It is integral to military discipline that the soldiers speech be with the consent and approval of the military commander.

The necessity of upholding the ability to restrain speech becomes even more imperative if the soldier desires to speak freely on political matters. The Constitution requires that *t+he armed forces shall be insulated from partisan politics, and that *n+o member of the military shall engage directly or indirectly in any partisan political activity, except to vote.[47] Certainly, no constitutional provision or military indoctrination will eliminate a soldiers ability to form a personal political opinion, yet it is vital that such opinions be kept out of the public eye. For one, political belief is a potential source of discord among people, and a military torn by political strife is incapable of fulfilling its constitutional function as protectors of the people and of the State. For another, it is ruinous to military discipline to foment an atmosphere that promotes an active dislike of or dissent against the President, the commander-in-chief of the armed forces. Soldiers are constitutionally obliged to obey a President they may dislike or distrust. This fundamental principle averts the country from going the way of banana republics.

Parenthetically, it must be said that the Court is well aware that our countrys recent past is marked by regime changes wherein active military dissent from the chain of command formed a key, though not exclusive, element. The Court is not blind to history, yet it is a judge not of history but of the Constitution. The Constitution, and indeed our modern democratic order, frown in no uncertain terms on a politicized military, informed as they are on the trauma of absolute martial rule. Our history might imply that a political military is part of the natural order, but this view cannot be affirmed by the legal order. The evolutionary path of our young democracy necessitates a reorientation from this view, reliant as our socio-political culture has become on it. At the same time, evolution mandates a similar demand that our system of governance be more responsive to the needs and aspirations of the citizenry, so as to avoid an

Gudani vs Senga

environment vulnerable to a military apparatus able at will to exert an undue influence in our polity.

Of possibly less gravitas, but of equal importance, is the principle that mobility of travel is another necessary restriction on members of the military. A soldier cannot leave his/her post without the consent of the commanding officer. The reasons are self-evident. The commanding officer has to be aware at all times of the location of the troops under command, so as to be able to appropriately respond to any exigencies. For the same reason, commanding officers have to be able to restrict the movement or travel of their soldiers, if in their judgment, their presence at place of call of duty is necessary. At times, this may lead to unsentimental, painful consequences, such as a soldier being denied permission to witness the birth of his first-born, or to attend the funeral of a parent. Yet again, military life calls for considerable personal sacrifices during the period of conscription, wherein the higher duty is not to self but to country.

Indeed, the military practice is to require a soldier to obtain permission from the commanding officer before he/she may leave his destination. A soldier who goes from the properly appointed place of duty or absents from his/her command, guard, quarters, station, or camp without proper leave is subject to punishment by court-martial.[48] It is even clear from the record that petitioners had actually requested for travel authority from the PMA in Baguio City toManila, to attend the Senate Hearing.[49] Even petitioners are well aware that it was necessary for them to obtain permission from their superiors before they could travel to Manila to attend the Senate Hearing.

It is clear that the basic position of petitioners impinges on these fundamental principles we have discussed. They seek to be exempted from military justice for having traveled to the Senate to testify before the Senate Committee against the express orders of Gen. Senga, the AFP Chief of Staff. If petitioners position is affirmed, a considerable exception would be carved from the unimpeachable right of military officers to restrict the speech and movement of their juniors. The ruinous consequences to the chain of command and military discipline simply cannot warrant the Courts imprimatur on petitioners position.

V.

Gudani vs Senga

Still, it would be highly myopic on our part to resolve the issue solely on generalities surrounding military discipline. After all, petitioners seek to impress on us that their acts are justified as they were responding to an invitation from the Philippine Senate, a component of the legislative branch of government. At the same time, the order for them not to testify ultimately came from the President, the head of the executive branch of government and the commanderin-chief of the armed forces.

Thus, we have to consider the question: may the President prevent a member of the armed forces from testifying before a legislative inquiry? We hold that the President has constitutional authority to do so, by virtue of her power as commander-in-chief, and that as a consequence a military officer who defies such injunction is liable under military justice. At the same time, we also hold that any chamber of Congress which seeks the appearance before it of a military officer against the consent of the President has adequate remedies under law to compel such attendance. Any military official whom Congress summons to testify before it may be compelled to do so by the President. If the President is not so inclined, the President may be commanded by judicial order to compel the attendance of the military officer. Final judicial orders have the force of the law of the land which the President has the duty to faithfully execute.[50]

Explication of these principles is in order.

As earlier noted, we ruled in Senate that the President may not issue a blanket requirement of prior consent on executive officials summoned by the legislature to attend a congressional hearing. In doing so, the Court recognized the considerable limitations on executive privilege, and affirmed that the privilege must be formally invoked on specified grounds. However, the ability of the President to prevent military officers from testifying before Congress does not turn on executive privilege, but on the Chief Executives power as commander-in-chief to control the actions and speech of members of the armed forces. The Presidents prerogatives as commander-in-chief are not hampered by the same limitations as in executive privilege.

Our ruling that the President could, as a general rule, require military officers to seek presidential approval before appearing before Congress is based foremost on the notion that a

Gudani vs Senga

contrary rule unduly diminishes the prerogatives of the President as commander-in-chief. Congress holds significant control over the armed forces in matters such as budget appropriations and the approval of higher-rank promotions,[51] yet it is on the President that the Constitution vests the title as commander-in-chief and all the prerogatives and functions appertaining to the position. Again, the exigencies of military discipline and the chain of command mandate that the Presidents ability to control the individual members of the armed forces be accorded the utmost respect. Where a military officer is torn between obeying the President and obeying the Senate, the Court will without hesitation affirm that the officer has to choose the President. After all, the Constitution prescribes that it is the President, and not the Senate, who is the commander-in-chief of the armed forces.[52]

At the same time, the refusal of the President to allow members of the military to appear before Congress is still subject to judicial relief. The Constitution itself recognizes as one of the legislatures functions is the conduct of inquiries in aid of legislation.[53] Inasmuch as it is illadvised for Congress to interfere with the Presidents power as commander-in-chief, it is similarly detrimental for the President to unduly interfere with Congresss right to conduct legislative inquiries. The impasse did not come to pass in this petition, since petitioners testified anyway despite the presidential prohibition. Yet the Court is aware that with its pronouncement today that the President has the right to require prior consent from members of the armed forces, the clash may soon loom or actualize.

We believe and hold that our constitutional and legal order sanctions a modality by which members of the military may be compelled to attend legislative inquiries even if the President desires otherwise, a modality which does not offend the Chief Executives prerogatives as commander-in-chief. The remedy lies with the courts.

The fact that the executive branch is an equal, coordinate branch of government to the legislative creates a wrinkle to any basic rule that persons summoned to testify before Congress must do so. There is considerable interplay between the legislative and executive branches, informed by due deference and respect as to their various constitutional functions. Reciprocal courtesy idealizes this relationship; hence, it is only as a last resort that one branch seeks to compel the other to a particular mode of behavior. The judiciary, the third coordinate branch of government, does not enjoy a similar dynamic with either the legislative or executive branches.

Gudani vs Senga

Whatever weakness inheres on judicial power due to its inability to originate national policies and legislation, such is balanced by the fact that it is the branch empowered by the Constitution to compel obeisance to its rulings by the other branches of government.

As evidenced by Arnault v. Nazareno[54] and Bengzon v. Senate Blue Ribbon Committee,[55] among others, the Court has not shirked from reviewing the exercise by Congress of its power of legislative inquiry.[56] Arnault recognized that the legislative power of inquiry and the process to enforce it, is an essential and appropriate auxiliary to the legislative function.[57] On the other hand, Bengzon acknowledged that the power of both houses of Congress to conduct inquiries in aid of legislation is not absolute or unlimited, and its exercise is circumscribed by Section 21, Article VI of the Constitution.[58] From these premises, the Court enjoined the Senate Blue Ribbon Committee from requiring the petitioners in Bengzon from testifying and producing evidence before the committee, holding that the inquiry in question did not involve any intended legislation.

Senate affirmed both the Arnault and Bengzon rulings. It elucidated on the constitutional scope and limitations on the constitutional power of congressional inquiry. Thus:

As discussed in Arnault, the power of inquiry, with process to enforce it, is grounded on the necessity of information in the legislative process. If the information possessed by executive officials on the operation of their offices is necessary for wise legislation on that subject, by parity of reasoning, Congress has the right to that information and the power to compel the disclosure thereof.

As evidenced by the American experience during the so-called McCarthy era, however, the right of Congress to conduct inquirites 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 Courts certiorari powers under Section 1, Article VIII of the Constitution.

For one, as noted in Bengzon v. Senate Blue Ribbon Committee, the inquiry itself might not properly be in aid of legislation, and thus beyond the constitutional power of Congress. Such inquiry could not usurp judicial functions. Parenthetically, one possible way for Congress to avoid such result as occurred in Bengzon is to indicate in its invitations to the public officials concerned, or to any person for that matter, the possible needed statute which prompted the need for the inquiry. Given such statement in its invitations, along with the usual indication of the subject of inquiry and the questions relative to and in

Gudani vs Senga furtherance thereof, there would be less room for speculation on the part of the person invited on whether the inquiry is in aid of legislation.

Section 21, Article VI likewise establishes critical safeguards that proscribe the legislative power of inquiry. The provision requires that the inquiry be done in accordance with the Senate or Houses duly published rules of procedure, necessarily implying the constitutional infirmity of an inquiry conducted without duly published rules of procedure. Section 21 also mandates that the rights of persons appearing in or affected by such inquiries be respected, an imposition that obligates Congress to adhere to the guarantees in the Bill of Rights.

These abuses are, of course, remediable before the courts, upon the proper suit filed by the persons affected, even if they belong to the executive branch. Nonetheless, there may be exceptional circumstances wherein a clear pattern of abuse of the legislative power of inquiry might be established, resulting in palpable violations of the rights guaranteed to members of the executive department under the Bill of Rights. In such instances, depending on the particulars of each case, attempts by the Executive Branch to forestall these abuses may be accorded judicial sanction[59].

In Senate, the Court ruled that the President could not impose a blanket prohibition barring executive officials from testifying before Congress without the Presidents consent notwithstanding the invocation of executive privilege to justify such prohibition. The Court did not rule that the power to conduct legislative inquiry ipso facto superseded the claim of executive privilege, acknowledging instead that the viability of executive privilege stood on a case to case basis. Should neither branch yield to the other branchs assertion, the constitutional recourse is to the courts, as the final arbiter if the dispute. It is only the courts that can compel, with conclusiveness, attendance or non-attendance in legislative inquiries.

Following these principles, it is clear that if the President or the Chief of Staff refuses to allow a member of the AFP to appear before Congress, the legislative body seeking such testimony may seek judicial relief to compel the attendance. Such judicial action should be directed at the heads of the executive branch or the armed forces, the persons who wield authority and control over the actions of the officers concerned. The legislative purpose of such testimony, as well as any defenses against the same whether grounded on executive privilege, national security or similar concerns would be accorded due judicial evaluation. All the constitutional considerations pertinent to either branch of government may be raised, assessed, and ultimately weighed against each other. And once the courts speak with finality, both

Gudani vs Senga

branches of government have no option but to comply with the decision of the courts, whether the effect of the decision is to their liking or disfavor.

Courts are empowered, under the constitutional principle of judicial review, to arbitrate disputes between the legislative and executive branches of government on the proper constitutional parameters of power.[60] This is the fair and workable solution implicit in the constitutional allocation of powers among the three branches of government. The judicial filter helps assure that the particularities of each case would ultimately govern, rather than any overarching principle unduly inclined towards one branch of government at the expense of the other. The procedure may not move as expeditiously as some may desire, yet it ensures thorough deliberation of all relevant and cognizable issues before one branch is compelled to yield to the other. Moreover, judicial review does not preclude the legislative and executive branches from negotiating a mutually acceptable solution to the impasse. After all, the two branches, exercising as they do functions and responsibilities that are political in nature, are free to smooth over the thorns in their relationship with a salve of their own choosing.

And if emphasis be needed, if the courts so rule, the duty falls on the shoulders of the President, as commander-in-chief, to authorize the appearance of the military officers before Congress. Even if the President has earlier disagreed with the notion of officers appearing before the legislature to testify, the Chief Executive is nonetheless obliged to comply with the final orders of the courts.

Petitioners have presented several issues relating to the tenability or wisdom of the Presidents order on them and other military officers not to testify before Congress without the Presidents consent. Yet these issues ultimately detract from the main point that they testified before the Senate despite an order from their commanding officer and their commander-in-chief for them not to do so,[61] in contravention of the traditions of military discipline which we

Gudani vs Senga

affirm today. The issues raised by petitioners could have very well been raised and properly adjudicated if the proper procedure was observed. Petitioners could have been appropriately allowed to testify before the Senate without having to countermand their Commander-in-chief and superior officer under the setup we have prescribed.

We consider the other issues raised by petitioners unnecessary to the resolution of this petition.

Petitioners may have been of the honest belief that they were defying a direct order of their Commander-in-Chief and Commanding General in obeisance to a paramount idea formed within their consciences, which could not be lightly ignored. Still, the Court, in turn, is guided by the superlative principle that is the Constitution, the embodiment of the national conscience. The Constitution simply does not permit the infraction which petitioners have allegedly committed, and moreover, provides for an orderly manner by which the same result could have been achieved without offending constitutional principles.

WHEREFORE, the petition is DENIED. No pronouncement as to costs.

SO ORDERED.

Benzon vs Drilon
Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. 103524 April 15, 1992 CESAR BENGZON, QUERUBE MAKALINTAL, LINO M. PATAJO, JOSE LEUTERIO, ET AL., petitioners, vs. HON. FRANKLIN N. DRILON, in his capacity as Executive Secretary, HON. GUILLERMO CARAGUE, in his capacity as Secretary of Department of Budget and Management, and HON. ROSALINA CAJUCOM, in her capacity as National Treasurer, respondents. A.M. No. 91-8-225-CA April 15, 1992 REQUEST OF RETIRED JUSTICES MANUEL P. BARCELONA, JUAN P. ENRIQUEZ, JUAN O. REYES, JR. and GUARDSON R. LOOD FOR READJUSTMENT OF THEIR MONTHLY PENSION.

GUTIERREZ, JR., J.: The issue in this petition is the constitutionality of the veto by the President of certain provisions in the General Appropriations Act for the Fiscal Year 1992 relating to the payment of the adjusted pensions of retired Justices of the Supreme Court and the Court of Appeals. The petitioners are retired Justices of the Supreme Court and Court of Appeals who are currently receiving monthly pensions under Republic Act No. 910 as amended by Republic Act No. 1797. They filed the instant petition on their own behalf and in representation of all other retired Justices of the Supreme Court and the Court of Appeals similarly situated. Named respondents are Hon. Franklin Drilon the Executive Secretary, Hon. Guillermo Carague as Secretary of the Department of Budget and Management, and Hon. Rosalinda Cajucom, the Treasurer of the Philippines. The respondents are sued in their official capacities, being officials of the Executive Department involved in the implementation of the release of funds appropriated in the Annual Appropriations Law. We treat the Comments of the Office of the Solicitor General (OSG) as an Answer and decide the petition on its merits. The factual backdrop of this case is as follows: On June 20, 1953, Republic Act No, 910 was enacted to provide the retirement pensions of Justices of the Supreme Court and of the Court of Appeals who have rendered at least twenty (20) years service either in the Judiciary or in any other branch of the Government or in both, having attained the age of seventy (70) years or who resign by reason of incapacity to discharge the duties of the office. The retired Justice shall receive during the residue of his natural life the salary which he was receiving at the time of his retirement or resignation. Republic Act No. 910 was amended by Republic Act No. 1797 (approved on June 21, 1957) which provided that: Sec. 3-A. In case the salary of Justices of the Supreme Court or of the Court of Appeals is increased or decreased, such increased or decreased salary shall, for purposes of this Act, be deemed to be the salary or the retirement pension which a Justice who as of June twelve, nineteen hundred fifty-four had

Benzon vs Drilon ceased to be such to accept another position in the Government or who retired was receiving at the time of his cessation in office. Provided, that any benefits that have already accrued prior to such increase or decrease shall not be affected thereby.
Identical retirement benefits were also given to the members of the Constitutional Commissions under Republic Act No. 1568, as amended by Republic Act No. 3595. On November 12, 1974, on the occasion of the Armed Forces Loyalty Day, President Marcos signed Presidential Decree 578 which extended similar retirement benefits to the members of the Armed Forces giving them also the automatic readjustment features of Republic Act No. 1797 and Republic Act No. 3595. Two months later, however, President Marcos issued Presidential Decree 644 on January 25, 1975 repealing Section 3-A of Republic Act No. 1797 and Republic Act No. 3595 (amending Republic Act No. 1568 and Presidential Decree No. 578) which authorized the adjustment of the pension of the retired Justices of the Supreme Court, Court of Appeals, Chairman and members of the Constitutional Commissions and the officers and enlisted members of the Armed Forces to the prevailing rates of salaries. Significantly, under Presidential Decree 1638 the automatic readjustment of the retirement pension of officers and enlisted men was subsequently restored by President Marcos. A later decree Presidential Decree 1909 was also issued providing for the automatic readjustment of the pensions of members of the Armed Forces who have retired prior to September 10, 1979. While the adjustment of the retirement pensions for members of the Armed Forces who number in the tens of thousands was restored, that of the retired Justices of the Supreme Court and Court of Appeals who are only a handful and fairly advanced in years, was not. Realizing the unfairness of the discrimination against the members of the Judiciary and the Constitutional Commissions, Congress approved in 1990 a bill for the reenactment of the repealed provisions of Republic Act No. 1797 and Republic Act No. 3595. Congress was under the impression that Presidential Decree 644 became law after it was published in the Official Gazette on April 7, 1977. In the explanatory note of House Bill No. 16297 and Senate Bill No. 740, the legislature saw the need to reenact Republic Act Nos. 1797 and 3595 to restore said retirement pensions and privileges of the retired Justices and members of the Constitutional Commissions, in order to assure those serving in the Supreme Court, Court of Appeals and Constitutional Commissions adequate old age pensions even during the time when the purchasing power of the peso has been diminished substantially by worldwide recession or inflation. This is underscored by the fact that the petitioner retired Chief Justice, a retired Associate Justice of the Supreme Court and the retired Presiding Justice are presently receiving monthly pensions of P3,333.33, P2,666.66 and P2,333.33 respectively. President Aquino, however vetoed House Bill No. 16297 on July 11, 1990 on the ground that according to her "it would erode the very foundation of the Government's collective effort to adhere faithfully to and enforce strictly the policy on standardization of compensation as articulated in Republic Act No. 6758 known as Compensation and Position Classification Act of 1989." She further said that "the Government should not grant distinct privileges to select group of officials whose retirement benefits under existing laws already enjoy preferential treatment over those of the vast majority of our civil service servants." Prior to the instant petition, however, Retired Court of Appeals Justices Manuel P. Barcelona, Juan P. Enriquez, Juan O. Reyes, Jr. and Guardson R. Lood filed a letter/petition dated April 22, 1991 which we treated as Administrative Matter No. 91-8-225-CA. The petitioners asked this Court far a readjustment of their monthly pensions in accordance with Republic Act No. 1797. They reasoned out that Presidential Decree 644 repealing Republic Act No. 1797 did not become law as there was no valid publication pursuant to Taada v. Tuvera, (136 SCRA 27 [1985]) and 146 SCRA 446 [1986]). Presidential Decree 644 promulgated on January 24, 1975 appeared for the first time only in the supplemental issue of the Official Gazette, (Vol. 74, No. 14) purportedly dated April 4, 1977 but published only on September 5, 1983. Since Presidential Decree 644 has no binding force and effect of law, it therefore did not repeal Republic Act No. 1797. In a Resolution dated November 28, 1991 the Court acted favorably on the request. The dispositive portion reads as follows:

Benzon vs Drilon WHEREFORE, the requests of retired Justices Manuel P. Barcelona, Juan P. Enriquez, Juan O. Reyes and Guardson Lood are GRANTED. It is hereby AUTHORIZED that their monthly pensions be adjusted and paid on the basis of RA 1797 effective January 1, 1991 without prejudice to the payment on their pension differentials corresponding to the previous years upon the availability of funds for the purpose.
Pursuant to the above resolution, Congress included in the General Appropriations Bill for Fiscal Year 1992 certain appropriations for the Judiciary intended for the payment of the adjusted pension rates due the retired Justices of the Supreme Court and Court of Appeals. The pertinent provisions in House Bill No. 34925 are as follows: XXVIII. THE JUDICIARY A. Supreme Court of the Philippines and the Lower Courts. For general administration, administration of personnel benefits, supervision of courts, adjudication of constitutional questions appealed and other cases, operation and maintenance of the Judicial and Bar Council in the Supreme Court, and the adjudication of regional court cases, metropolitan court cases, municipal trial court cases in Cities, municipal circuit court cases, municipal, court cases, Shari'a district court cases and Shari'a circuit court cases as indicated hereunder P2,095,651,000 xxx xxx xxx Special Provisions. 1. Augmentation of any Item in the Court's Appropriations. Any savings in the appropriation for the Supreme Court and the Lower Courts may be utilized by the Chief Justice of the Supreme Court to augment any item of the Court's appropriations for: (a) printing of decisions and publications of Philippine Reports; b) commutable terminal leaves of Justices and other personnel of the Supreme Court and any payment of adjusted pension rates to retired Justices entitled thereto pursuant to Administrative Matter No. 91-8-225-CA; (c) repair, maintenance, improvement, and other operating expenses of the courts' books and periodicals; (d) purchase, maintenance and improvement of printing equipment; e) necessary expenses for the employment of temporary employees, contractual and casual employees, for judicial administration; f) maintenance and improvement of the Court's Electronic Data Processing; (g) extraordinary expenses of the Chief Justice, attendance in international conferences and conduct of training programs; (h) commutable transportation and representation allowances and fringe benefits for Justices, Clerks of Court, Court Administrator, Chief of Offices and other Court personnel in accordance with the rates prescribed by law; and (i) compensation of attorneys-de-oficio; PROVIDED, that as mandated by LOI No. 489 any increases in salary and allowances shall be subject to the usual procedures and policies as provided for under P.D. No. 985 and other pertinent laws. (page 1071, General Appropriations Act, FY 1992; Emphasis supplied) xxx xxx xxx 4. Payment of Adjusted Pension Rates to Retired Justices. The amount herein appropriated for payment of pensions to retired judges and justices shall include the payment of pensions at the adjusted rates to retired justices of the Supreme Court entitled thereto pursuant to the ruling of the Court in Administrative Matter No. 91-8-225-C.A. (page 1071, General Appropriations Act, FY 1992). xxx xxx xxx Activities and Purposes 1. General Administration and Support Services.

Benzon vs Drilon
a. General administrative Services P 43,515,000 b. Payment of retirement gratuity of national goverment officials and employees P 206,717,000 c. Payment of terminal leave benefits to officials and employees antitled thereto P 55,316,000 d. Payment of pension totired jude and justice entitled thereto P 22,500,000 (page 1071, General Appropriations Act, FY 1992) C. COURT OF APPEALS For general administration, administration of personnel benefit, benefits and the adjudication of appealed and other cases as indicated hereunder P114,615,000 Special Provisions. 1. Authority to Use Savings. Subject to the approval of the Chief Justice of the Supreme Court in accordance with Section 25(5), Article VI of the Constitution of the Republic of the Philippines, the Presiding Justice may be authorized to use any savings in any item of the appropriation for the Court of Appeals for purposes of: (1) improving its compound and facilities; and (2) for augmenting any deficiency in any item of its appropriation including its extraordinary expenses and payment of adjusted pension rates to retired justices entitled thereto pursuant to Administrative Matter No. 91-8-225C.A. (page 1079, General Appropriations Act, FY 1992; Emphasis supplied) 2. Payment of adjustment Pension Rates to Retired Justices. The amount herein appropriated for payment of pensions to retired judges and justices shall include the payment of pensions at the adjusted rates to retired justices of the Court of Appeals entitled thereto pursuant to the Ruling of the Supreme Court in Administrative Matter No. 91-6-225-C.A. (page 1079 General Appropriations Act, FY 1992). XL. GENERAL FUND ADJUSTMENT For general fund adjustment for operational and special requirements as indicated hereunder P500,000,000 xxx xxx xxx Special Provisions 1. Use of the Fund. This fund shall be used for: xxx xxx xxx 1.3. Authorized overdrafts and/or valid unbooked obligations, including the payment of back salaries and related personnel benefits arising from decision of competent authorityincluding the Supreme Court decision in Administrative Matter No. 91-8-225C.A. and COA decision in No. 1704." (page 11649 Gen. Appropriations Act, FY 1992; Emphasis supplied)

Benzon vs Drilon On January 15, 1992, the President vetoed the underlined portions of Section 1 and the entire Section 4 the Special Provisions for the Supreme Court of the Philippines and the Lower Courts (General Appropriations Act, FY 1992, page 1071) and the underlined portions of Section 1 and the entire Section 2, of the Special Provisions for the Court of Appeals (page 1079) and the underlined portions of Section 1.3 of Article XLV of the Special Provisions of the General Fund Adjustments (page 1164, General Appropriations Act, FY 1992).
The reason given for the veto of said provisions is that "the resolution of this Honorable Court in Administrative Matter No. 91-8-225-CA pursuant to which the foregoing appropriations for the payment of the retired Justices of the Supreme Court and the Court of Appeals have been enacted effectively nullified the veto of the President on House Bill No. 16297, the bill which provided for the automatic increase in the retirement pensions of the Justices of the Supreme Court and the Court of Appeals and chairmen of the Constitutional Commissions by re-enacting Republic Act No. 1797 and Republic Act No. 3595. The President's veto of the aforesaid provisions was further justified by reiterating the earlier reasons for vetoing House Bill No. 16297: "they would erode the very foundation of our collective effort to adhere faithfully to and enforce strictly the policy and standardization of compensation. We should not permit the grant of distinct privileges to select group of officials whose retirement pensions under existing laws already enjoy preferential treatment over those of the vast majority of our civil servants." Hence, the instant petition filed by the petitioners with the assertions that: 1) The subject veto is not an item veto; 2) The veto by the Executive is violative of the doctrine of separation of powers; 3) The veto deprives the retired Justices of their rights to the pensions due them; 4) The questioned veto impairs the Fiscal Autonomy guaranteed by the Constitution. Raising similar grounds, the petitioners in AM-91-8-225-CA, brought to the attention of this Court that the veto constitutes no legal obstacle to the continued payment of the adjusted pensions pursuant to the Court's resolution. On February 14, 1992, the Court resolved to consolidate Administrative Matter No. 91-8-225-CA with G.R. No. 103524. The petitioners' contentions are well-taken. I It cannot be overstressed that in a constitutional government such as ours, the rule of law must prevail. The Constitution is the basic and paramount law to which all other laws must conform and to which all persons including the highest official of this land must defer. From this cardinal postulate, it follows that the three branches of government must discharge their respective functions within the limits of authority conferred by the Constitution. Under the principle of separation of powers, neither Congress, the President nor the Judiciary may encroach on fields allocated to the other branches of government. The legislature is generally limited to the enactment of laws, the executive to the enforcement of laws and the judiciary to their interpretation and application to cases and controversies. The Constitution expressly confers or the judiciary the power to maintain inviolate what it decrees. As the guardian of the Constitution we cannot shirk the duty of seeing to it that the officers in each branch of government do not go beyond their constitutionally allocated boundaries and that the entire Government itself or any of its branches does not violate the basic liberties of the people. The essence of this judicial duty was emphatically explained by Justice Laurel in the leading case of Angara v. Electoral Commission, (63 Phil. 139 [1936]) to wit: The Constitution is a definition of the powers of government. Who is to determine the nature, scope and extent of such powers? The Constitution itself has provided for the instrumentality of the judiciary as the rational way. And when the judiciary mediates to allocate constitutional boundaries it does not assert any superiority over the other department, 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

Benzon vs Drilon 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. (Emphasis supplied)
The act of the Executive in vetoing the particular provisions is an exercise of a constitutionally vested power. But even as the Constitution grants the power, it also provides limitations to its exercise. The veto power is not absolute. The pertinent provision of the Constitution reads: The President shall have the power to veto any particular item or items in an appropriation, revenue or tariff bill but the veto shall not affect the item or items to which he does not object. (Section 27(2), Article VI, Constitution) The OSG is correct when it states that the Executive must veto a bill in its entirety or not at all. He or she cannot act like an editor crossing out specific lines, provisions, or paragraphs in a bill that he or she dislikes. In the exercise of the veto power, it is generally all or nothing. However, when it comes to appropriation, revenue or tariff bills, the Administration needs the money to run the machinery of government and it can not veto the entire bill even if it may contain objectionable features. The President is, therefore, compelled to approve into law the entire bill, including its undesirable parts. It is for this reason that the Constitution has wisely provided the "item veto power" to avoid inexpedient riders being attached to an indispensable appropriation or revenue measure. The Constitution provides that only a particular item or items may be vetoed. The power to disapprove any item or items in an appropriate bill does not grant the authority to veto a part of an item and to approve the remaining portion of the same item. (Gonzales v. Macaraig, Jr., 191 SCRA 452, 464 [1990]) We distinguish an item from a provision in the following manner: The terms item and provision in budgetary legislation and practice are concededly different. An itemin a bill refers to the particulars, the details, the distinct and severable parts . . . of the bill (Bengzon,supra, at 916.) It is an indivisible sum of money dedicated to a stated purpose (Commonwealth v. Dodson, 11 S.E. 2d 120, 124, 125, etc., 176 Va. 281) The United States Supreme Court, in the case of Bengzon v. Secretary of Justice (299 U.S. 410, 414, 57 Ct. 252, 81 L. Ed, 312) declared "that an"tem" of an appropriation bill obviously means an item which in itself is a specific appropriation of money, not some general provision of law, which happens to be put into an appropriation bill." (id. at page 465) We regret having to state that misimpressions or unfortunately wrong advice must have been the basis of the disputed veto. The general fund adjustment is an item which appropriates P500,000,000.00 to enable the Government to meet certain unavoidable obligations which may have been inadequately funded by the specific items for the different branches, departments, bureaus, agencies, and offices of the government. The President did not veto this item. What were vetoed were methods or systems placed by Congress to insure that permanent and continuing obligations to certain officials would be paid when they fell due. An examination of the entire sections and the underlined portions of the law which were vetoed will readily show that portions of the item have been chopped up into vetoed and unvetoed parts. Less than all of an item has been vetoed. Moreover, the vetoed portions are not items. They are provisions. Thus, the augmentation of specific appropriations found inadequate to pay retirement payments, by transferring savings from other items of appropriation is a provision and not an item. It gives power to the Chief Justice to transfer funds from one item to another. There is no specific appropriation of money involved.

Benzon vs Drilon In the same manner, the provision which states that in compliance with decisions of the Supreme Court and the Commission on Audit, funds still undetermined in amount may be drawn from the general fund adjustment is not an item. It is the "general fund adjustment" itself which is the item. This was not touched. It was not vetoed.
More ironic is the fact that misinformation led the Executive to believe that the items in the 1992 Appropriations Act were being vetoed when, in fact, the veto struck something else. What were really vetoed are: (1) Republic Act No. 1797 enacted as early as June 21, 1957; and (2) The Resolution of the Supreme Court dated November 28, 1991 in Administrative Matter No. 91-8-225-CA. We need no lengthy justifications or citations of authorities to declare that no President may veto the provisions of a law enacted thirty-five (35) years before his or her term of office. Neither may the President set aside or reverse a final and executory judgment of this Court through the exercise of the veto power. A few background facts may be reiterated to fully explain the unhappy situation. Republic Act No. 1797 provided for the adjustment of pensions of retired Justices which privilege was extended to retired members of Constitutional Commissions by Republic Act No. 3595. On January 25, 1975, President Marcos issued Presidential Decree No. 644 which repealed Republic Acts 1797 and 3595. Subsequently, automatic readjustment of pensions for retired Armed Forces officers and men was surreptitiously restored through Presidential Decree Nos. 1638 and 1909. It was the impression that Presidential Decree No. 644 had reduced the pensions of Justices and Constitutional Commissioners which led Congress to restore the repealed provisions through House Bill No. 16297 in 1990. When her finance and budget advisers gave the wrong information that the questioned provisions in the 1992 General Appropriations Act were simply an attempt to overcome her earlier 1990 veto, she issued the veto now challenged in this petition. It turns out, however, that P.D. No. 644 never became valid law. If P.D. No. 644 was not law, it follows that Rep. Act No. 1797 was not repealed and continues to be effective up to the present. In the same way that it was enforced from 1951 to 1975, so should it be enforced today. House Bill No. 16297 was superfluous as it tried to restore benefits which were never taken away validly. The veto of House Bill No. 16297 in 1991 did not also produce any effect. Both were based on erroneous and non-existent premises. From the foregoing discussion, it can be seen that when the President vetoed certain provisions of the 1992 General Appropriations Act, she was actually vetoing Republic Act No. 1797 which, of course, is beyond her power to accomplish. Presidential Decree No. 644 which purportedly repealed Republic Act No. 1717 never achieved that purpose because it was not properly published. It never became a law. The case of Tada v. Tuvera (134 SCRA 27 [1985]and 146 SCRA 446 [1986]) specifically requires that "all laws shall immediately upon their approval or as soon thereafter as possible, be published in full in the Official Gazette, to become effective only after fifteen days from their publication, or on another date specified by the legislature, in accordance with Article 2 of the Civil Code." This was the Court's answer to the petition of Senator Lorenzo Taada and other opposition leaders who challenged the validity of Marcos' decrees which, while never published, were being enforced. Secret decrees are anathema in a free society.

Benzon vs Drilon In support of their request, the petitioners in Administrative Matter No. 91-9-225-CA secured certification from Director Lucita C. Sanchez of the National Printing Office that the April 4, 1977 Supplement to the Official Gazette was published only on September 5, 1983 and officially released on September 29, 1983.
On the issue of whether or not Presidential Decree 644 became law, the Court has already categorically spoken in a definitive ruling on the matter, to wit: xxx xxx xxx PD 644 was promulgated by President Marcos on January 24, 1975, but was not immediately or soon thereafter published although preceding and subsequent decrees were duly published in the Official Gazette. It now appears that it was intended as a secret decree "NOT FOR PUBLICATION" as the notation on the face of the original copy thereof plainly indicates (Annex B). It is also clear that the decree was published in the back-dated Supplement only after it was challenged in the Taada case as among the presidential decrees that had not become effective for lack of the required publication. The petition was filed on May 7, 1983, four months before the actual publication of the decree. It took more than eight years to publish the decree after its promulgation in 1975. Moreover, the publication was made in bad faith insofar as it purported to show that it was done in 1977 when the now demonstrated fact is that the April 4, 1977 supplement was actually published and released only in September 1983. The belated publication was obviously intended to refute the petitioner's claim in the Taada case and to support the Solicitor General's submission that the petition had become moot and academic. xxx xxx xxx We agree that PD 644 never became a law because it was not validly published and that, consequently, it did not have the effect of repealing RA 1797. The requesting Justices (including Justice Lood, whose request for the upgrading of his pension was denied on January 15, 1991) are therefore entitled to be paid their monthly pensions on the basis of the latter measure, which remains unchanged to date. The Supreme Court has spoken and it has done so with finality, logically and rightly so as to assure stability in legal relations, and avoid confusion. (see Ver v. Quetullo, 163 SCRA 80 [1988]) Like other decisions of this Court, the ruling and principles set out in the Court resolution constitute binding precedent. (Bulig-Bulig Kita Kamaganak Association, et al. v. Sulpicio Lines, Inc., Regional Trial Court, etc., G.R. 847500 16 May 1989, En Banc, Minute Resolution) The challenged veto has far-reaching implications which the Court can not countenance as they undermine the principle of separation of powers. The Executive has no authority to set aside and overrule a decision of the Supreme Court. We must emphasize that the Supreme Court did not enact Rep. Act No. 1797. It is not within its powers to pass laws in the first place. Its duty is confined to interpreting or defining what the law is and whether or not it violates a provision of the Constitution. As early as 1953, Congress passed a law providing for retirement pensions to retired Justices of the Supreme Court and the Court of Appeals. This law was amended by Republic Act 1797 in 1957. Funds necessary to pay the retirement pensions under these statutes are deemed automatically appropriated every year. Thus, Congress included in the General Appropriations Act of 1992, provisions identifying funds and savings which may be used to pay the adjusted pensions pursuant to the Supreme Court Resolution. As long as retirement laws remain in the statute book, there is an existing obligation on the part of the government to pay the adjusted pension rate pursuant to RA 1797 and AM-91-8-225-CA. Neither may the veto power of the President be exercised as a means of repealing RA 1797. This is arrogating unto the Presidency legislative powers which are beyond its authority. The President has no power to enact or amend statutes

Benzon vs Drilon promulgated by her predecessors much less to repeal existing laws. The President's power is merely to execute the laws as passed by Congress.
II There is a matter of greater consequence arising from this petition. The attempt to use the veto power to set aside a Resolution of this Court and to deprive retirees of benefits given them by Rep. Act No. 1797 trenches upon the constitutional grant of fiscal autonomy to the Judiciary. Sec. 3, Art. VIII mandates that: Sec. 3 The Judiciary shall enjoy fiscal autonomy. Appropriations for the Judiciary may not be reduced by the legislature below the amount appropriated for the previous year and, after approval, shall be automatically and regularly released. We can not overstress the importance of and the need for an independent judiciary. The Court has on various past occasions explained the significance of judicial independence. In the case of De la Llana v. Alba (112 SCRA 294 [1982]), it ruled: It is a cardinal rule of faith of our constitutional regime that it is the people who are endowed with rights, to secure which a government is instituted. Acting as it does through public officials, it has to grant them either expressly or implicitly certain powers. These they exercise not for their own benefit but for the body politic. . . . A public office is a public trust. That is more than a moral adjuration. It is a legal imperative. The law may vest in a public official certain rights. It does so to enable them to perform his functions and fulfill his responsibilities more efficiently. . . . It is an added guarantee that justices and judges can administer justice undeterred by any fear of reprisal or untoward consequence. Their judgments then are even more likely to be inspired solely by their knowledge of the law and the dictates of their conscience, free from the corrupting influence of base or unworthy motives. The independence of which they are assured is impressed with a significance transcending that of a purely personal right. (At pp. 338-339) The exercise of the veto power in this case may be traced back to the efforts of the Department of Budget and Management (DBM) to ignore or overlook the plain mandate of the Constitution on fiscal autonomy. The OSG Comment reflects the same truncated view of the provision. We have repeatedly in the past few years called the attention of DBM that not only does it allocate less than one percent (1%) of the national budget annually for the 22,769 Justices, Judges, and court personnel all over the country but it also examines with a fine-toothed come how we spend the funds appropriated by Congress based on DBM recommendations. The gist of our position papers and arguments before Congress is as follows: The DBM requires the Supreme Court, with Constitutional Commissions, and the Ombudsman to submit budget proposals in accordance with parameters it establishes. DBM evaluates the proposals, asks each agency to defend its proposals during DBM budget hearings, submits its own version of the proposals to Congress without informing the agency of major alterations and mutilations inflicted on their proposals, and expects each agency to defend in Congress proposals not of the agency's making. After the general appropriations bill is passed by Congress and signed into law by the President, the tight and officious control by DBM continues. For the release of appropriated funds, the Judiciary, Constitutional Commissions, and Ombudsman are instructed through "guidelines", how to prepare Work and Financial Plans and requests for monthly allotments. The DBM evaluates and approves these plans and requests and on the basis of its approval authorizes the release of allotments with corresponding notices of cash allocation. These notices specify the maximum withdrawals each month which the Supreme Court, the Commissions and the Ombudsman may make from the servicing government bank.

Benzon vs Drilon The above agencies are also required to submit to DBM monthly, quarterly and year-end budget accountability reports to indicate their performance, physical and financial operations and income,
The DBM reserves to itself the power to review the accountability reports and when importuned for needed funds, to release additional allotments to the agency. Since DBM always prunes the budget proposals to below subsistence levels and since emergency situations usually occur during the fiscal year, the Chief Justices, Chairmen of the Commissions, and Ombudsman are compelled to make pilgrimages to DBM for additional funds to tide their respective agencies over the emergency. What is fiscal autonomy? As envisioned in the Constitution, the fiscal autonomy enjoyed by the Judiciary, the Civil Service Commission, the Commission on Audit, the Commission on Elections, and the Office of the Ombudsman contemplates a guarantee on full flexibility to allocate and utilize their resources with the wisdom and dispatch that their needs require. It recognizes the power and authority to levy, assess and collect fees, fix rates of compensation not exceeding the highest rates authorized by law for compensation and pay plans of the government and allocate and disburse such sums as may be provided by law or prescribed by them in the course of the discharge of their functions. Fiscal autonomy means freedom from outside control. If the Supreme Court says it needs 100 typewriters but DBM rules we need only 10 typewriters and sends its recommendations to Congress without even informing us, the autonomy given by the Constitution becomes an empty and illusory platitude. The Judiciary, the Constitutional Commissions, and the Ombudsman must have the independence end flexibility needed in the discharge of their constitutional duties. The imposition of restrictions and constraints on the manner the independent constitutional offices allocate and utilize the funds appropriated for their operations is anathema to fiscal autonomy and violative not only of the express mandate of the Constitution but especially as regards the Supreme Court, of the independence and separation of powers upon which the entire fabric of our constitutional system is based. In the interest of comity and cooperation, the Supreme Court, Constitutional Commissions, and the Ombudsman have so far limited their objections to constant reminders. We now agree with the petitioners that this grant of autonomy should cease to be a meaningless provision. In the case at bar, the veto of these specific provisions in the General Appropriations Act is tantamount to dictating to the Judiciary how its funds should be utilized, which is clearly repugnant to fiscal autonomy. The freedom of the Chief Justice to make adjustments in the utilization of the funds appropriated for the expenditures of the judiciary, including the use of any savings from any particular item to cover deficits or shortages in other items of the Judiciary is withheld. Pursuant to the Constitutional mandate, the Judiciary must enjoy freedom in the disposition of the funds allocated to it in the appropriations law. It knows its priorities just as it is aware of the fiscal restraints. The Chief Justice must be given a free hand on how to augment appropriations where augmentation is needed. Furthermore, in the case of Gonzales v. Macaraig (191 SCRA 452 [1990]), the Court upheld the authority of the President and other key officials to augment any item or any appropriation from savings in the interest of expediency and efficiency. The Court stated that: There should be no question, therefore, that statutory authority has, in fact, been granted. And once given, the heads of the different branches of the Government and those of the Constitutional Commissions are afforded considerable flexibility in the use of public funds and resources (Demetria v. Alba, supra). The doctrine of separation of powers is in no way endangered because the transfer is made within a department (or branch of government) and not from one department (branch) to another. The Constitution, particularly Article VI, Section 25(5) also provides: Sec. 25. (5) No law shall be passed authorizing any transfer of appropriations; however, the President, the President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and the heads of Constitutional Commissions may, by law, be authorized to augment any item in the general appropriations law for their respective offices from savings in other items of their respective appropriations.

Benzon vs Drilon In the instant case, the vetoed provisions which relate to the use of savings for augmenting items for the payment of the pension differentials, among others, are clearly in consonance with the abovestated pronouncements of the Court. The veto impairs the power of the Chief Justice to augment other items in the Judiciary's appropriation, in contravention of the constitutional provision on "fiscal autonomy."
III Finally, it can not be denied that the retired Justices have a vested right to the accrued pensions due them pursuant to RA 1797. The right to a public pension is of statutory origin and statutes dealing with pensions have been enacted by practically all the states in the United States (State ex rel. Murray v, Riley, 44 Del 505, 62 A2d 236), and presumably in most countries of the world. Statutory provisions for the support of Judges or Justices on retirement are founded on services rendered to the state. Where a judge has complied with the statutory prerequisite for retirement with pay, his right to retire and draw salary becomes vested and may not, thereafter, be revoked or impaired. (Gay v. Whitehurst, 44 So ad 430) Thus, in the Philippines, a number of retirement laws have been enacted, the purpose of which is to entice competent men and women to enter the government service and to permit them to retire therefrom with relative security, not only those who have retained their vigor but, more so, those who have been incapacitated by illness or accident. (In re: Amount of the Monthly Pension of Judges and Justices Starting From the Sixth Year of their Retirement and After the Expiration of the Initial Five-year Period of Retirement, (190 SCRA 315 [1990]). As early as 1953, Rep. Act No. 910 was enacted to grant pensions to retired Justices of the Supreme Court and Court of Appeals. This was amended by RA 1797 which provided for an automatic adjustment of the pension rates. Through the years, laws were enacted and jurisprudence expounded to afford retirees better benefits. P.D. No. 1438, for one, was promulgated on June 10, 1978 amending RA 910 providing that the lump sum of 5 years gratuity to which the retired Justices of the Supreme Court and Court of Appeals were entitled was to be computed on the basis of the highest monthly aggregate of transportation, living and representation allowances each Justice was receiving on the date of his resignation. The Supreme Court in a resolution dated October 4, 1990, stated that this law on gratuities covers the monthly pensions of retired Judges and Justices which should include the highest monthly aggregate of transportation, living and representation allowances the retiree was receiving on the date of retirement. (In Re: Amount of the Monthly Pension of Judges and Justices, supra) The rationale behind the veto which implies that Justices and Constitutional officers are unduly favored is, again, a misimpression. Immediately, we can state that retired Armed Forces officers and enlisted men number in the tens of thousands while retired Justices are so few they can be immediately identified. Justices retire at age 70 while military men retire at a much younger age some retired Generals left the military at age 50 or earlier. Yet the benefits in Rep. Act No. 1797 are made to apply equally to both groups. Any ideas arising from an alleged violation of the equal protection clause should first be directed to retirees in the military or civil service where the reason for the retirement provision is not based on indubitable and constitutionally sanctioned grounds, not to a handful of retired Justices whose retirement pensions are founded on constitutional reasons. The provisions regarding retirement pensions of justices arise from the package of protections given by the Constitution to guarantee and preserve the independence of the Judiciary. The Constitution expressly vests the power of judicial review in this Court. Any institution given the power to declare, in proper cases, that act of both the President and Congress are unconstitutional needs a high degree of independence in the exercise of its functions. Our jurisdiction may not be reduced by Congress. Neither may it be increased without our advice and concurrence. Justices may not be removed until they reach age 70 except through impeachment. All courts and court personnel are under the administrative supervision of the Supreme Court. The President may not appoint any

Benzon vs Drilon Judge or Justice unless he or she has been nominated by the Judicial and Bar Council which, in turn, is under the Supreme Court's supervision. Our salaries may not be decreased during our continuance in office. We cannot be designated to any agency performing administrative or quasi-judicial functions. We are specifically given fiscal autonomy. The Judiciary is not only independent of, but also co-equal and coordinate with the Executive and Legislative Departments. (Article VIII and section 30, Article VI, Constitution)
Any argument which seeks to remove special privileges given by law to former Justices of this Court and the ground that there should be no "grant of distinct privileges" or "preferential treatment" to retired Justices ignores these provisions of the Constitution and, in effect, asks that these Constitutional provisions on special protections for the Judiciary be repealed. The integrity of our entire constitutional system is premised to a large extent on the independence of the Judiciary. All these provisions are intended to preserve that independence. So are the laws on retirement benefits of Justices. One last point. The Office of the Solicitor General argues that: . . . Moreover, by granting these benefits to retired Justices implies that public funds, raised from taxes on other citizens, will be paid off to select individuals who are already leading private lives and have ceased performing public service. Said the United States Supreme Court, speaking through Mr. Justice Miller: "To lay with one hand the power of the government on the property of the citizen, and with the other to bestow upon favored individuals . . . is nonetheless a robbery because it is done under the forms of law . . ." (Law Association V. Topeka, 20 Wall. 655) (Comment, p. 16) The above arguments are not only specious, impolite and offensive; they certainly are unbecoming of an office whose top officials are supposed to be, under their charter, learned in the law. Chief Justice Cesar Bengzon and Chief Justice Querube Makalintal, Justices J.B.L. Reyes, Cecilia Muoz Palma, Efren Plana, Vicente Abad Santos, and, in fact, all retired Justices of the Supreme Court and the Court of Appeals may no longer be in the active service. Still, the Solicitor General and all lawyers under him who represent the government before the two courts and whose predecessors themselves appeared before these retirees, should show some continuing esteem and good manners toward these Justices who are now in the evening of their years. All that the retirees ask is to be given the benefits granted by law. To characterize them as engaging in "robbery" is intemperate, abrasive, and disrespectful more so because the argument is unfounded. If the Comment is characteristic of OSG pleadings today, then we are sorry to state that the then quality of research in that institution has severely deteriorated. In the first place, the citation of the case is, wrong. The title is not LAW Association v. Topeka but Citizen's Savings and Loan Association of Cleveland, Ohio v. Topeka City (20 Wall. 655; 87 U.S. 729; 22 Law. Ed. 455 [1874]. Second, the case involved the validity of a statute authorizing cities and counties to issue bonds for the purpose of building bridges, waterpower, and other public works to aid private railroads improve their services. The law was declared void on the ground that the right of a municipality to impose a tax cannot be used for private interests. The case was decided in 1874. The world has turned over more than 40,000 times since that ancient period. Public use is now equated with public interest. Public money may now be used for slum clearance, low-cost housing, squatter resettlement, urban and agrarian reform where only private persons are the immediate beneficiaries. What was "robbery" in 1874 is now called "social justice." There is nothing about retirement benefits in the cited case. Obviously, the OSG lawyers cited from an old textbook or encyclopedia which could not even spell "loan" correctly. Good lawyers are expected to go to primary sources and to use only relevant citations. The Court has been deluged with letters and petitions by former colleagues in the Judiciary requesting adjustments in their pensions just so they would be able to cope with the everyday living expenses not to mention the high cost of medical bills that old age entails. As Justice Cruz aptly stated in Teodoro J. Santiago v. COA, (G.R. No. 92284, July 12, 1991);

Benzon vs Drilon Retirement laws should be interpreted liberally in favor of the retiree because their intention is to provide for his sustenance, and hopefully even comfort, when he no longer has the stamina to continue earning his livelihood. After devoting the best years of his life to the public service, he deserves the appreciation of a grateful government as best concretely expressed in a generous retirement gratuity commensurate with the value and length of his services. That generosity is the least he should expect now that his work is done and his youth is gone. Even as he feels the weariness in his bones and glimpses the approach of the lengthening shadows, he should be able to luxuriate in the thought that he did his task well, and was rewarded for it.
For as long as these retired Justices are entitled under laws which continue to be effective, the government can not deprive them of their vested right to the payment of their pensions. WHEREFORE, the petition is hereby GRANTED. The questioned veto is SET ASIDE as illegal and unconstitutional. The vetoed provisions of the 1992 Appropriations Act are declared valid and subsisting. The respondents are ordered to automatically and regularly release pursuant to the grant of fiscal autonomy the funds appropriated for the subject pensions as well as the other appropriations for the Judiciary. The resolution in Administrative Matter No. 91-8-225-CA dated November 28, 1991 is likewise ordered to be implemented as promulgated. SO ORDERED.

Hilado vs. Reyes

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 163155 July 21, 2006

ALFREDO HILADO, MANUEL LACSON, JOSE MA. TUVILLA, JOAQUIN LIMJAP LOPEZ SUGAR CORPORATION, petitioners, vs. JUDGE AMOR A. REYES, PRESIDING JUDGE, REGIONAL TRIAL COURT OF MANILA, BRANCH 21 and ADMINISTRATRIX JULITA CAMPOS BENEDICTO, respondents. DECISION CARPIO MORALES, J.: The present petition is one for mandamus and prohibition. Julita Campos Benedicto (private respondent), the surviving spouse of the deceased Roberto S. Benedicto, filed on May 25, 2000 a petition for issuance of letters of administration, docketed as Special Proceeding No. 0097505, "Intestate Estate of Roberto S. Benedicto" (the case), before the Regional Trial Court (RTC) of Manila. The case was raffled to Branch 21 presided by Judge Amor A. Reyes (public respondent). Private respondent was, by Order1 of August 2, 2000, appointed Administratrix of the estate of Benedicto (the estate), and letters of administration were thereafter issued in her favor. Herein petitioners, Alfredo Hilado, Manuel Lacson, Jose M. Tuvilla, Joaquin Limjap, Lopez Sugar Corporation and First Farmers Holding Corporation had, during the lifetime of Benedicto, filed before the Bacolod City RTC two complaints for damages or collection of sums of money, docketed as Civil Case No. 95-9137 and Civil Case No. 111718, against Roberto Benedicto et al.2 In the initial inventory of the estate which private respondent submitted on January 18, 20013 in the case before the Manila RTC, she listed, among other liabilities of the estate, the claims of petitioners subject of the above-said Bacolod RTC cases as follows: LIST OF LIABILITIES DESCRIPTION xxxx A claim of several sugar planters which is presently the subject of Civil Case No. 95-9137 entitled Lacson et al. v. R.S. Benedicto et al., pending before Branch 44 of the Regional Trial Court in Bacolod City A claim filed by various sugar planters which is presently the subject of Civil Case No. 11178 entitled Lopez Sugar Corporation et al. v. R.S. Benedicto, et al., pending before Branch 41 of the Regional Trial Court in Bacolod City.4 P136,045,772.50 [at P50.00 per US $1.00] P35,198,697.40 [at P50.00 per US $1.00] AMOUNT

Hilado vs. Reyes (Emphasis and underscoring supplied)

From January 2002 until November 2003, the Branch Clerk of Court of Branch 21 of the Manila RTC allowed petitioners through counsel Sedigo and Associates to regularly and periodically examine the records of the case and to secure certified true copies thereof. By December 2003, however, Atty. Grace Carmel Paredes, an associate of petitioners' counsel, was denied access to the last folder-record of the case which, according to the court's clerical staff, could not be located and was probably inside the chambers of public respondent for safekeeping.5 Petitioners' counsel thus requested public respondent, by letter6 of January 15, 2004, to allow Atty. Paredes topersonally check the records of the case. Acting on the letter, the Officer-In- Charge/Legal Researcher of Branch 21 advised petitioners' counsel in writing that "per instruction of the Hon. Presiding Judge[,] only parties or those with authority from the parties are allowed to inquire or verify the status of the case pending in this Court," and that they may be "allowed to go over the records of the above-entitled case upon presentation of written authority from the [administratrix]."7 On February 2, 2004, petitioners' counsel was served with a notice of hearing of the case on February 13, 2004.8Petitioners' counsel thus attended such scheduled hearing during which he filed a Motion for Inhibition9 of public respondent on the ground of gross ignorance, dereliction of duty, and manifest partiality towards the administratrix. Public respondent, noting that an error was committed in the service to petitioners of the notice of hearing, ignored the motion of petitioners' counsel.10 Intending to compare the list of properties in the estate's inventory all of which properties were appraised at a fair value of P100 million with the list of assets valued at P1 Billion said to have been ceded in 1990 to the decedent under his Compromise Agreement with the Presidential Commission on Good Government,11 petitioners' counsel sent the Branch Clerk of Court of Branch 21 of the Manila RTC a letter12 requesting to be furnished with certified true copies of the "updated inventory." By still another letter,13 petitioners' counsel requested to be furnished with certified true copies of the order issued by the court during the hearing of February 13, 2004, as well as the transcript of stenographic notes taken thereon.14 By Order15 of March 2, 2004, public respondent indicated why petitioners had no standing to file the Motion for Inhibition as well as to request for certified true copies of the above-indicated documents. Read the Order of March 2, 2004: Perusal of the motion shows that the movant is asking this Court to act on their motion despite the denial of their Omnibus Motion to Intervene which to date remains pending resolution with the Court of Appeals. As correctly pointed out by the Administratrix, said motion is filed by persons/entities who have no legal standing in the above-entitled case, hence they cannot ask anything from this Court, much more for this Court to act on pleadings filed or soon to be filed. For the record, the Court received two (2) letters dated February 17 and 27, 2004 addressed to Atty. Maria Luisa Lesle G. Gonzales, the Branch Clerk of Courtasking that he be furnished with certified true copies of the updated inventory and Order issued by this Court on February 13, 2004 hearing as well as the corresponding transcript of stenographic notes within fifteen (15) days from receipt of said letters. Considering that the movants were not allowed to intervene in the proceedings per order of this Court dated January 2, 2002, copies of all pleadings/orders filed/issued relative to this case may only be secured from the [Administratrix] and/or counsel.16 (Underscoring supplied) Petitioners thus filed on April 30, 2004 before this Court the present petition for mandamus and prohibition to compel public respondent to allow them to access, examine, and obtain copies of any and all documents forming part of the records of the case and disqualify public respondent from further presiding thereover.

Hilado vs. Reyes In their petition, petitioners contend that the records of the case are public records to which the public has the right to access, inspect and obtain official copies thereof,17 recognition of which right is enjoined under Section 7, Article III of the Constitution and Section 2, Rule 135 and Section 11, Rule 136 of the Rules of Court.
Petitioners further contend that public respondent manifested her arbitrariness, malice and partiality through her blatant disregard of basic rules in the disposition and safekeeping of court records, and her denial of their right to access the records suffices to bar her from presiding over the case;18 and public respondent's incompetence, malice, bad faith and partiality are underscored by her failure to enforce for more than three years the requirement of the Rules of Court on the prompt submission by the administratrix of her final inventory and the filing of a periodic accounting of her administration.19 By Comment20 filed on September 21, 2004, private respondent submits that the petition is fatally defective since petitioners failed to disclose in their certification of non-forum shopping that they had earlier instituted an administrative complaint against public respondent which prayed for the same reliefs21 for the disqualification of public respondent from presiding over the case and for the court docket to be opened for examination. Private respondent further submits that the petition for prohibition should be dismissed since petitioners are not parties to the case, hence, they have no personality to file a motion for inhibition.22 As to the alleged denial of petitioners' right to examine court records and participate in the proceedings, private respondent submits that this is not unqualifiedly true for petitioners must have secured a copy of the inventory of the assets and liabilities of the estate, they being aware of the declared fair value of the estate and their counsel was present during the February 13, 2004 hearing.23 For consideration then are the following issues: (1) whether the present petition is fatally defective for failure of petitioners to disclose in the certificate of non-forum shopping that they had priorly instituted an administrative complaint against public respondent which prays for the same reliefs; (2) whether a writ of mandamus may issue to compel public respondent to allow petitioners to examine and obtain copies of any or all documents forming part of the records of the case; and (3) whether a writ of prohibition will issue in favor of petitioners, who are not parties to the case, to inhibit public respondent from presiding over the case. As reflected above, petitioners had, before the filing of the present petition, filed an administrative complaint before this Court against public respondent, "Alfredo Hilado, Lopez Sugar Corporation and First Farmers Holding Corporation v. Judge Amor A. Reyes, Regional Trial Court of Manila, Branch 21," docketed as A.M. No. RTJ-05-1910. Petitioners subsequently filed a supplemental24 and a second supplemental administrative complaint25 praying for 1) the imposition of appropriate disciplinary sanctions against public respondent for, among other things, denying them their right to access the docket of the case, and 2) the disqualification of public respondent from presiding over the case, which latter prayer was, however, subsequently withdrawn in a motion26 filed on April 30, 2004, the same day that the present petition was filed. Denying the existence of forum shopping, petitioners argue that it "exists only where the elements of litis pendencia are present, or where a final judgment in one case will amount to res judicata in the other."27 It is well settled that the doctrine of res judicata applies only to judicial or quasi-judicial proceedings, and not to the exercise of administrative powers.28 The non-existence of forum shopping notwithstanding, this Court proscribes the filing of an administrative complaint before the exhaustion of judicial remedies against questioned errors of a judge in the exercise of its jurisdiction. Resort to and exhaustion of judicial remedies are prerequisites for the taking of, among other measures, an administrative complaint against the person of the judge concerned. So Atty. Flores v. Hon. Abesamis29 teaches: x x x [T]he law provides ample judicial remedies against errors or irregularities being committed by a Trial Court in the exercise of its jurisdiction. The ordinary remedies against errors or irregularities which may be regarded as normal in nature (i.e., error in appreciation or admission of evidence, or in construction or application of

Hilado vs. Reyes procedural or substantive law or legal principle) include a motion for reconsideration (or after rendition of a judgment or final order, a motion for new trial), and appeal. The extraordinary remediesagainst error or irregularities which may be deemed extraordinary in character (i.e., whimsical, capricious, despotic exercise of power or neglect of duty, etc.) are inter alia the special civil actions of certiorari,prohibition or mandamus, or a motion for inhibition, a petition for change of venue, as the case may be.
x x x Resort to and exhaustion of these judicial remedies, as well as the entry of judgment in the corresponding action or proceeding, are pre-requisites for the taking of other measures against the persons of the judges concerned, whether of civil, administrative, or criminal nature. It is only after the available judicial remedies have been exhausted and the appellate tribunals have spoken with finality, that the door to an inquiry into his criminal, civil or administrative liability may be said to have opened, or closed. x x x Law and logic decree that "administrative or criminal remedies are neither alternative nor cumulative to judicial review where such review is available, and must wait on the result thereof" Indeed, since judges must be free to judge, without pressure or influence from external forces or factors, they should not be subject to intimidation, the fear of civil, criminal or administrative sanctions for acts they may do and dispositions they may make in the performance of their duties and functions; x x x30 (Emphasis and underscoring supplied; citations omitted) It is thus only after a questioned action of a judge in a pending case has been judicially resolved with finality that the door to an inquiry into his or her administrative liability may be said to have opened. Parenthetically, during the pendency of the present petition or on April 15, 2005, the Second Division of this Court rendered a decision31 on the above-said administrative complaint filed by petitioners against public respondent. On the merits of the petition for mandamus, Section 7 of Article III of the Constitution provides: SECTION 7. 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 affordedthe citizen, subject to such limitations as may be provided by law.(Emphasis and underscoring supplied) The above-quoted constitutional provision guarantees a general right the right to information on matters of "public concern" and, as an accessory thereto, the right of access to "official records" and the like. The right to information on "matters of public concern or of public interest" is both the purpose and the limit of the constitutional right of access to public documents.32 Insofar as the right to information relates to judicial records, an understanding of the term "judicial record" or "court record" is in order. The term "judicial record" or "court record" does not only refer to the orders, judgment or verdict of the courts. It comprises the official collection of all papers, exhibits and pleadings filed by the parties, all processes issued and returns made thereon, appearances, and word-for-word testimony33 which took place during the trial and which are in the possession, custody, or control of the judiciary or of the courts for purposes of rendering court decisions. It has also been described to include any paper, letter, map, book, other document, tape, photograph, film, audio or video recording, court reporter's notes, transcript, data compilation, or other materials, whether in physical or electronic form, made or received pursuant to law or in connection with the transaction of any official business by the court, and includes all evidence it has received in a case.34 In determining whether a particular information is of public concern, there is no right test. In the final analysis, it is for the courts to determine on a case to case basis whether the matter at issue is of interest or importance as it relates to or affect the public.35 It bears emphasis that the interest of the public hinges on its right to transparency in the administration of justice, to the end that it will serve to enhance the basic fairness of the judicial proceedings, safeguard the integrity of the fact-finding

Hilado vs. Reyes process, and foster an informed public discussion of governmental affairs. Thus in Barretto v. Philippine Publishing Co.,36 this Court held:
x x x The foundation of the right of the public to know what is going on in the courts is not the fact that the public, or a portion of it, is curious, or that what is going on in the court is news, or would be interesting, or would furnish topics of conversation; but is simply that it has a right to know whether a public officer is properly performing his duty. In other words, the right of the public to be informed of the proceedings in court is not founded in the desire or necessity of people to know about the doing of others, but in thenecessity of knowing whether its servant, the judge, is properly performing his duty. x x x The case in Cowley vs. Pulsifer (137 Mass. 392) is so pertinent to the questions presented for our decision in the case at bar that we cannot refrain from quoting extensively therefrom. x x x x x x "The general advantage to the country in having these proceedings made public more than counterbalances the inconveniences to the private persons whose conduct may be the subject of such proceedings." x x x "The chief advantage to the country to which we can discern, and that which we understand to be intended by the foregoing passage, is the security which publicity gives for the proper administration of justice. x x x It is desirable that the trial of causes should take place under the public eye, not because the controversies of one citizen with another are of public concern, but because it is of the highest moment that those who administer justice should act under the sense of public responsibility, and that every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed." From this quotation it is obvious that it was not the idea of the supreme court of Massachusetts to lay down the proposition that simply because a pleading happened to be filed in a public office it becomes public property that any individual, whether interested or not, had the right to publish its contents, or that any newspaper was privileged to scatter the allegations contained therein to the four corners of the country. The right of the public to know the contents of the paper is the basis of the privilege, which is, as we have said,the right to determine by its own senses that its servant, the judge, is performing his duties according to law. x x x37 (Emphasis and underscoring supplied; citations omitted) Decisions and opinions of a court are of course matters of public concern or interest for these are the authorized expositions and interpretations of the laws, binding upon all citizens, of which every citizen is charged with knowledge.38 Justice thus requires that all should have free access to the opinions of judges and justices, and it would be against sound public policy to prevent, suppress or keep the earliest knowledge of these from the public.39 Thus, in Lantaco Sr. et al. v. Judge Llamas,40 this Court found a judge to have committed grave abuse of discretion in refusing to furnish Lantaco et al. a copy of his decision in a criminal case of which they were even the therein private complainants, the decision being "already part of the public record which the citizen has a right to scrutinize." Unlike court orders and decisions, however, pleadings and other documents filed by parties to a case need not be matters of public concern or interest. For they are filed for the purpose of establishing the basis upon which the court may issue an order or a judgment affecting their rights and interests. In thus determining which part or all of the records of a case may be accessed to, the purpose for which the parties filed them is to be considered. In intestate proceedings, the heirs file pleadings and documents for the purpose of establishing their right to a share of the estate. As for the creditors, their purpose is to establish their claim to the estate and be paid therefor before the disposition of the estate. Information regarding the financial standing of a person at the time of his death and the manner by which his private estate may ultimately be settled is not a matter of general, public concern or one in which a citizen or the public has an interest by which its legal rights or liabilities maybe affected. Granting unrestricted public access and publicity to

Hilado vs. Reyes personal financial information may constitute an unwarranted invasion of privacy to which an individual may have an interest in limiting its disclosure or dissemination.
If the information sought then is not a matter of public concern or interest, denial of access thereto does not violate a citizen's constitutional right to information. Once a particular information has been determined to be of public concern, the accessory right of access to official records, including judicial records, are open to the public. The accessory right to access public records may, however, be restricted on a showing of good cause. How "good cause" can be determined, the Supreme Judicial Court of Massachusetts in Republican Company v. Appeals Courtteaches:41 The public's right of access to judicial records, including transcripts, evidence, memoranda, and court orders, maybe restricted, but only on a showing of "good cause." "To determine whether good cause is shown, a judge must balance the rights of the parties based on the particular facts of each case."In so doing, the judge "must take into account all relevant factors, 'including, but not limited to, the nature ofthe parties and the controversy, the type of information and the privacy interests involved, the extent of community interest, and the reason for the request.'"42 (Emphasis and underscoring supplied; citations omitted) And even then, the right is subject to inherent supervisory and protective powers of every court over its own records and files.43 The Supreme Court of Canada, expounding on the right of the court to exercise supervisory powers over materials surrendered into its care, held: It follows that the court, as the custodian of the exhibits, is bound to inquire into the use that is to be made of them and, in my view, is fully entitled to regulate that use by securing appropriate undertakings and assurances if those be advisable to protect competing interests. x x x In exercising its supervisory powers over materials surrendered into its care, the court may regulate the use made of it. In an application of this nature, the court must protect the respondent and accommodate public interest in access. x x x In an application of this nature the court must protect the respondent and accommodate the public interest in access. This can only be done in terms of the actual purpose, and in the face of obvious prejudice and the absence of a specific purpose, the order for unrestricted access and reproduction should not have been made.44 (Underscoring supplied) In fine, access to court records may be permitted at the discretion45 and subject to the supervisory and protective powers of the court,46 after considering the actual use or purpose for which the request for access is based and the obvious prejudice to any of the parties. In the exercise of such discretion, the following issues may be relevant: "whether parties have interest in privacy, whether information is being sought for legitimate purpose or for improper purpose, whether there is threat of particularly serious embarrassment to party, whether information is important to public health and safety, whether sharing of information among litigants would promote fairness and efficiency, whether party benefiting from confidentiality order is public entity or official, and whether case involves issues important to the public."47 By the administratrix-private respondent's own information, petitioners are the plaintiffs in two complaints (against Roberto Benedicto et al.) for damages and/or sums of money, Civil Case No. 95-9137 and Civil Case No. 11178, filed before the Bacolod RTC. She contends, however, that "if the motion to dismiss [these RTC Bacolod cases is] granted, . . . petitioners would have absolutely no interest of any kind [over] the [e]state of the [d]eceased Roberto S. Benedicto."48 Petitioners' stated main purpose for accessing the records to monitor prompt compliance with the Rules governing the preservation and proper disposition of the assets of the estate, e.g., the completion and appraisal of the Inventory and the submission by the Administratrix of an annual accounting49 appears legitimate, for, as the plaintiffs in the

Hilado vs. Reyes complaints for sum of money against Roberto Benedicto et al., they have an interest over the outcome of the settlement of his estate. They are in fact "interested persons" under Rule 135, Sec. 2 of the Rules of Court reading:
Rule 135, SEC. 2. Publicity of proceedings and records. x x x x The records of every court of justice shall be public records and shall be available for the inspection of any interested person, at all proper business hours, under the supervision of the clerk having custody of such records, unless the court shall, in any special case, have forbidden their publicity, in the interest of morality or decency. (Underscoring supplied), entitled to be informed of the inventory as well as other records which are relevant to their claims against Benedicto. As long then as any party, counsel or person has a legitimate reason to have a copy of court records and pays court fees,50 a court may not deny access to such records. Of course as this Court held in Beegan v. Borja,51precautionary measures to prevent tampering or alteration must be observed: We are not unaware of the common practice in the courts with respect to the photocopying or xeroxing of portions of case records as long as the same are not confidential or disallowed by the rules to be reproduced. The judge need not be bothered as long as the permission of the Clerk of Court has been sought and as long as a duly authorized representative of the court takes charge of the reproduction within the court premises if warranted or if not, the said court representative must bring along the case records where reproduction takes place and return the same intact to the Clerk of Court.52 In fine, this Court finds the petition for mandamus meritorious, petitioners being "interested persons" who have a legitimate reason or purpose for accessing the records of the case. Respecting the prohibition aspect of the petition, the same fails. Sections 1 and 2 of Rule 137 of the Rules of Court which govern disqualification of judges provide: SECTION 1. Disqualification of judges. No judge or judicial officer shall sit in any case in which he, or his wife or child, is pecuniarily interested as heir, legatee, creditor or otherwise, or in which he is related to either party within the sixth degree of consanguinity or affinity or to counsel within the fourth degree, computed according to the rules of the civil law, or in which he was presided in any inferior court when his ruling or decision is the subject of review, without the written consent of all parties in interest, signed by them and entered upon the record. A judge may, in the exercise of his sound discretion, disqualify himself from sitting in a case, for just and valid reasons other than those mentioned above. SECTION 2. Objection that judge disqualified, how made and effect. - If it be claimed that an official is disqualified from sitting as above provided, the party objecting to his competency may, in writing, file with the official his objection, stating the grounds therefor, and the official shall thereupon proceed with the trial, or withdraw therefrom, in accordance with his determination of the question of his disqualification. His decision shall be forthwith made in writing and filed with the other papers in the case, but no appeal or stay shall be allowed from, or by reason of, his decision in favor of his own competency, until after final judgment in the case. (Emphasis and underscoring supplied) Since petitioners are not parties to the case, they may not seek public respondent's inhibition, whether under the first paragraph of above-quoted Section 1 which constitutes grounds for mandatory disqualification, or under the second paragraph of the same section on voluntary disqualification. WHEREFORE, the petition for mandamus is GRANTED. Public respondent is ORDERED to allow petitioners to access, examine, and obtain copies of any and all documents-part of the records of Special Proceeding No. 00-97505 bearing on

Hilado vs. Reyes the inventory of assets and liabilities of the estate and the hearing conducted by the trial court on February 13, 2004, subject to precautionary measures to prevent tampering or alteration thereof.
The petition for prohibition is DISMISSED. SO ORDERED.

Senate vs Ermita

Antolin vs Domondon
Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 165036 July 5, 2010

HAZEL MA. C. ANTOLIN, Petitioner, vs. ABELARDO T. DOMONDON, JOSE A. GANGAN, and VIOLETA J. JOSEF, Respondents. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 175705 HAZEL MA. C. ANTOLIN Petitioner, vs. ANTONIETA FORTUNA-IBE, Respondent. DECISION DEL CASTILLO, J.: Examinations have a two-fold purpose. First, they are summative; examinations are intended to assess and record what and how much the students have learned. Second, and perhaps more importantly, they are formative; examinations are intended to be part and parcel of the learning process. In a perfect system, they are tools for learning. In view of the pedagogical aspect of national examinations, the need for all parties to fully ventilate their respective positions, and the view that government transactions can only be improved by public scrutiny, we remand these cases to the trial court for further proceedings. Factual Antecedents Petitioner took the accountancy licensure examinations (the Certified Public Accountant [CPA] Board Exams) conducted by the Board of Accountancy (the Board) in October 1997.1 The examination results were released on October 29, 1997; out of 6,481 examinees, only 1,171 passed. Unfortunately, petitioner did not make it. When the results were released, she received failing grades in four out of the seven subjects.2 Subject Theory of Accounts Business Law Management Services Auditing Theory Auditing Problems Practical Accounting I Practical Accounting II Petitioners Grade 65 % 66 % 69 % 82 % 70 % 68 % 77 %

Convinced that she deserved to pass the examinations, she wrote to respondent Abelardo T. Domondon (Domondon), Acting Chairman of the Board of Accountancy, and requested that her answer sheets be re-corrected.3 On November 3, 1997, petitioner was shown her answer sheets, but these consisted merely of shaded marks, so she was unable to

Antolin vs Domondon determine why she failed the exam.4 Thus, on November 10, 1997, she again wrote to the Board to request for copies of (a) the questionnaire in each of the seven subjects (b) her answer sheets; (c) the answer keys to the questionnaires, and (d) an explanation of the grading system used in each subject (collectively, the Examination Papers).5
Acting Chairman Domondon denied petitioners request on two grounds: first, that Section 36, Article III of the Rules and Regulations Governing the Regulation and Practice of Professionals, as amended by Professional Regulation Commission (PRC) Resolution No. 332, series of 1994, only permitted access to the petitioners answer sheet (which she had been shown previously), and that reconsideration of her examination result was only proper under the grounds stated therein: Sec. 36 An examinee shall be allowed to have access or to go over his/her test papers or answer sheets on a date not later than thirty (30) days from the official release of the results of the examination. Within ten (10) days from such date, he/she may file his/her request for reconsideration of ratings. Reconsideration of rating shall be effected only on grounds of mechanical error in the grading of his/her testpapers or answer sheets, or malfeasance.6
lawph!l

Second, Acting Chairman Domondon clarified that the Board was precluded from releasing the Examination Papers (other than petitioners answer sheet) by Section 20, Article IV of PRC Resolution No. 338, series of 1994, which provides: Sec. 20. Illegal, Immoral, Dishonorable, Unprofessional Acts The hereunder acts shall constitute prejudicial, illegal, grossly immoral, dishonorable, or unprofessional conduct: A. Providing, getting, receiving, holding, using or reproducing questions xxxx 3. that have been given in the examination except if the test bank for the subject has on deposit at least two thousand (2,000) questions.7 After a further exchange of correspondence,8 the Board informed petitioner that an investigation was conducted into her exam and there was no mechanical error found in the grading of her test papers.9 Proceedings before the Regional Trial Court Undeterred, on January 12, 1998, petitioner filed a Petition for Mandamus with Damages against the Board of Accountancy and its members10 before the Regional Trial Court (RTC) of Manila. The case was raffled to Branch 33, and docketed as Civil Case No. 98-86881. The Petition included a prayer for the issuance of a preliminary mandatory injunction ordering the Board of Accountancy and its members (the respondents) to furnish petitioner with copies of the Examination Papers. Petitioner also prayed that final judgment be issued ordering respondents to furnish petitioner with all documents and other materials as would enable her to determine whether respondents fairly administered the examinations and correctly graded petitioners performance therein, and, if warranted, to issue to her a certificate of registration as a CPA.11 On February 5, 1998, respondents filed their Opposition to the Application for a Writ of Preliminary Mandatory Injunction, and argued, inter alia, that petitioner was not entitled to the relief sought, that the respondents did not have the duty to furnish petitioner with copies of the Examination Papers, and that petitioner had other plain, speedy, adequate remedy in the ordinary course of law, namely, recourse to the PRC.12 Respondents also filed their Answer with Compulsory Counterclaim in the main case, which asked that the Petition for Mandamus with Damages be dismissed for lack of merit on the following grounds: (1) petitioner failed to exhaust administrative remedies; (2) the petition stated no cause of action because there was no ministerial duty to release the information demanded; and (3) the constitutional right to information on matters of public concern is subject to limitations provided by law, including Section 20, Article IV, of PRC Resolution No. 338, series of 1994.13 On March 3, 1998, petitioner filed an Amended Petition (which was admitted by the RTC), where she included the following allegation in the body of her petition:

Antolin vs Domondon The allegations in this amended petition are meant only to plead a cause of action for access to the documents requested, not for re-correction which petitioner shall assert in the proper forum depending on, among others, whether she finds sufficient error in the documents to warrant such or any other relief. None of the allegations in this amended petition, including those in the following paragraphs, is made to assert a cause of action for re-correction.14
If only to underscore the fact that she was not asking for a re-checking of her exam, the following prayer for relief was deleted from the Amended Petition: "and, if warranted, to issue to her a certificate of registration as a CPA." On June 23, 1998, respondents filed a Manifestation and Motion to Dismiss Application for Writ of Preliminary Mandatory Injunction, on the ground that petitioner had taken and passed the May 1998 CPA Licensure Examination and had taken her oath as a CPA.15 Petitioner filed her Opposition on July 8, 1998.16 Subsequently, on October 29, 1998, respondents filed their Answer with Counterclaim to the amended petition. They reiterated their original allegations and further alleged that there was no cause of action because at the time the Amended Petition was admitted, they had ceased to be members of the Board of Accountancy and they were not in possession of the documents sought by the petitioner.17 Ruling of the Regional Trial Court In an Order dated October 16, 1998, the trial court granted respondents Motion to Dismiss Petitioners Application for a Writ of Preliminary Mandatory Injunction (not the main case), ruling that the matter had become moot since petitioner passed the May CPA Licensure 1998 Examination and had already taken her oath as a CPA.18 Undaunted, petitioner sought and obtained leave to file a Second Amended Petition for Mandamus with Damages19 where she finally impleaded the PRC as respondent and included the following plea in her prayer: WHEREFORE, petitioner respectfully prays that: xxxx 2. Judgment be issued (a) commanding respondents to give petitioner all documents and other materials as would enable her to determine whether respondents fairly administered the same examinations and correctly graded petitioners performance therein and, if warranted, to make the appropriate revisions on the results of her examination.(Emphasis ours) On June 21, 2002, the trial court dismissed the petition on the ground that the petition had already become moot, since petitioner managed to pass the 1998 CPA Board examinations.20 Petitioner sought reconsideration21 which was granted by the trial court in its Omnibus Order22 dated November 11, 2002. The Omnibus Order provides in part: On the motion for reconsideration filed by the petitioner, the Court is inclined to reconsider its Order dismissing the petition. The Court agrees with the petitioner that the passing of the petitioner in the subsequent CPA examination did not render the petition moot and academic because the relief "and if warranted, to issue to her a certificate of registration as Certified Public Accountant" was deleted from the original petition. As regard the issue of whether the petitioner has the constitutional right to have access to the questioned documents, the Court would want first the parties to adduce evidence before it can resolve the issue so that it can make a complete determination of the rights of the parties. The Court would also want the Professional Regulation Commission to give its side of the case the moment it is impleaded as a respondent in the Second Amended Petition for Mandamus filed by the petitioner which this Court is inclined to grant. As to the Motion for Conservatory Measures filed by the petitioner, the Court denies the same. It is clear that the PRC has in custody the documents being requested by the petitioner. It has also an adequate facility to preserve and safeguard the documents. To be sure that the questioned documents are preserved and safeguarded, the Court will

Antolin vs Domondon order the PRC to preserve and safeguard the documents and make them available anytime the Court or petitioner needs them.
WHEREFORE, the Order of this Court dated June 20, 2002 is reconsidered and set aside. The Professional Regulation Commission is ordered to preserve and safeguard the following documents: a) Questionnaire in each of the seven subjects comprising the Accountancy Examination of October, 1997; b) Petitioners Answer Sheets; and c) Answer keys to the questionnaires. SO ORDERED.23 Respondents filed a motion for reconsideration which was denied.24 Proceedings before the Court of Appeals The RTC Decisions led to the filing of three separate petitions for certiorari before the Court of Appeals (CA): (a) CA-GR SP No. 76498, a petition filed by respondents Domondon, Gangan, and Josef on April 11, 2003; (b) CA-GR SP No. 76546, a petition filed by respondent Ibe on April 30, 2003; and (c) CA-GR SP No. 76545, a petition filed by the Board of Accountancy and PRC. It is the first two proceedings that are pending before us. In both cases, the CA set aside the RTC Decisions and ordered the dismissal of Civil Case No. 98-8681. Ruling of the Court of Appeals In its December 11, 2006 Decision25 in CA-GR SP No. 76546, the CA ruled that the petition has become moot in view of petitioners eventual passing of the 1998 CPA Board Exam. In CA-GR SP No. 76498, the CA found, in a Decision dated February 16, 2004,26 that (i) Section 20, Article IV of PRC Resolution No. 338 constituted a valid limitation on petitioners right to information and access to government documents; (ii) the Examination Documents were not of public concern, because petitioner merely sought review of her failing marks; (iii) it was not the ministerial or mandatory function of the respondents to review and reassess the answers to examination questions of a failing examinee; (iv) the case has become moot, since petitioner already passed the May 1998 CPA Board Examinations and took her oath as a CPA; and (v) petitioner failed to exhaust administrative remedies, because, having failed to secure the desired outcome from the respondents, she did not elevate the matter to the PRC before seeking judicial intervention.27 CA-GR SP No. 76498 and CA-GR SP No. 76546 were brought before us by the petitioner and docketed as G.R. Nos. 165036 and 175705, respectively. The cases were then consolidated, in view of the similarity of the factual antecedents and issues, and to avoid the possibility of conflicting decisions by different divisions of this Court.28 Issues Before us, petitioner argues that she has a right to obtain copies of the examination papers so she can determine for herself why and how she failed and to ensure that the Board properly performed its duties. She argues that the Constitution29 as well as the Code of Conduct and Ethical Standards for Public Officials and Employees30 support her right to demand access to the Examination Papers. Furthermore, she claims that there was no need to exhaust administrative remedies, since no recourse to the PRC was available, and only a pure question of law is involved in this case. Finally, she claims that her demand for access to documents was not rendered moot by her passing of the 1998 CPA Board Exams.

Antolin vs Domondon
Our Ruling Propriety of Writ of Mandamus At the very outset let us be clear of our ruling. Any claim for re-correction or revision of her 1997 examination cannot be compelled by mandamus. This much was made evident by our ruling in Agustin-Ramos v. Sandoval,31where we stated: After deliberating on the petition in relation to the other pleadings filed in the proceedings at bar, the Court resolved to DENY said petition for lack of merit. The petition at bar prays for the setting aside of the Order of respondent Judge dismissing petitioners mandamus action to compel the other respondents (Medical Board of Examiners and the Professional Regulation Commission) "to reconsider, recorrect and/or rectify the board ratings of the petitioners from their present failing grades to higher or passing marks." The function of reviewing and re-assessing the petitioners answers to the examination questions, in the light of the facts and arguments presented by them x x x is a discretionary function of the Medical Board, not a ministerial and mandatory one, hence, not within the scope of the writ of mandamus. The obvious remedy of the petitioners from the adverse judgment by the Medical Board of Examiners was an appeal to the Professional Regulation Commission itself, and thence to the Court of Appeals; and since they did not apply for relief to the Commission prior to their institution of the special civil action of mandamus in the Regional Trial Court, the omission was fatal to the action under the familiar doctrine requiring exhaustion of administrative remedies. Apart from the obvious undesirability of a procedure which would allow Courts to substitute their judgment for that of Government boards in the determination of successful examinees in any administered examination an area in which courts have no expertise and the circumstance that the law declares the Court of Appeals to be the appropriate review Court, the Regional Trial Court was quite correct in refusing to take cognizance of an action seeking reversal of the quasi-judicial action taken by the Medical Board of Examiners.32 (Emphasis ours) For a writ of mandamus to issue, the applicant must have a well-defined, clear, and certain legal right to the thing demanded. The corresponding duty of the respondent to perform the required act must be equally clear.33 No such clarity exists here; neither does petitioners right to demand a revision of her examination results. And despite petitioners assertions that she has not made any demand for re-correction, the most cursory perusal of her Second Amended Petition and her prayer that the respondents "make the appropriate revisions on the results of her examination" belies this claim. Like the claimants in Agustin, the remedy of petitioner from the refusal of the Board to release the Examination Papers should have been through an appeal to the PRC. Undoubtedly, petitioner had an adequate remedy from the Boards refusal to provide her with copies of the Examination Papers. Under Section 5(a) of Presidential Decree No. 223,34 the PRC has the power to promulgate rules and regulations to implement policies for the regulation of the accounting profession.35 In fact, it is one such regulation (PRC Resolution No. 338) that is at issue in this case. In addition, under Section 5(c), the PRC has the power to review, coordinate, integrate and approve the policies, resolutions, rules and regulations, orders or decisions promulgated by the various Boards with respect to the profession or occupation under their jurisdictions including the results of their licensure examinations but their decisions on administrative cases shall be final and executory unless appealed to the Commission within thirty (30) days from the date of promulgation thereof. Petitioner posits that no remedy was available because the PRCs power to "review" and "approve" in Section 5(c) only refers to appeals in decisions concerning administrative investigations36 and not to instances where documents are being requested. Not only is this position myopic and self-serving, it is bereft of either statutory or jurisprudential basis. The PRCs quasi-legislative and enforcement powers, encompassing its authority to review and approve "policies, resolutions, rules and regulations, orders, or decisions" cover more than administrative investigations conducted pursuant to its quasi-judicial powers.37 More significantly, since the PRC itself issued the resolution questioned by the petitioner here, it was in the best position to resolve questions addressed to its area of expertise. Indeed, petitioner could have saved herself a great deal of time and effort had she given the PRC the opportunity to rectify any purported errors committed by the Board. One of the reasons for exhaustion of administrative remedies is our well-entrenched doctrine on separation of powers, which enjoins upon the Judiciary a becoming policy of non-interference with matters falling primarily (albeit not exclusively) within the competence of other departments.38 Courts, for reasons of law, comity and convenience, should

Antolin vs Domondon not entertain suits unless the available administrative remedies have first been resorted to and the proper authorities have been given an appropriate opportunity to act and correct their alleged errors, if any, committed in the administrative forum. 39
However, the principle of exhaustion of administrative remedies is subject to exceptions, among which is when only a question of law is involved.40 This is because issues of law such as whether petitioner has a constitutional right to demand access to the Examination Papers - cannot be resolved with finality by the administrative officer.41 Issues of Mootness We now turn to the question of whether the petition has become moot in view of petitioners having passed the 1998 CPA examination. An issue becomes moot and academic when it ceases to present a justiciable controversy, so that a declaration on the issue would be of no practical use or value.42 In this jurisdiction, any citizen may challenge any attempt to obstruct the exercise of his or her right to information and may seek its enforcement by mandamus.43 And since every citizen possesses the inherent right to be informed by the mere fact of citizenship,44 we find that petitioners belated passing of the CPA Board Exams does not automatically mean that her interest in the Examination Papers has become mere superfluity. Undoubtedly, the constitutional question presented, in view of the likelihood that the issues in this case will be repeated, warrants review.45 The crux of this case is whether petitioner may compel access to the Examination Documents through mandamus. As always, our inquiry must begin with the Constitution. Section 7, Article III provides: Sec.7. 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 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. Together with the guarantee of the right to information, Section 28, Article II promotes full disclosure and transparency in government, viz: Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest. Like all the constitutional guarantees, the right to information is not absolute. The people's right to information is limited to "matters of public concern," and is further "subject to such limitations as may be provided by law." Similarly, the State's policy of full disclosure is limited to "transactions involving public interest," and is "subject to reasonable conditions prescribed by law". The Court has always grappled with the meanings of the terms "public interest" and "public concern." As observed in Legaspi v. Civil Service Commission:46 In determining whether x x x a particular information is of public concern there is no rigid test which can be applied. "Public concern" like "public interest" is a term that eludes exact definition. Both terms embrace a broad spectrum of subjects which the public may want to know, either because these directly affect their lives, or simply because such matters naturally arouse the interest of an ordinary citizen. In the final analysis, it is for the courts to determine on a case by case basis whether the matter at issue is of interest or importance, as it relates to or affects the public. We have also recognized the need to preserve a measure of confidentiality on some matters, such as national security, trade secrets and banking transactions, criminal matters, and other confidential matters.47 We are prepared to concede that national board examinations such as the CPA Board Exams are matters of public concern. The populace in general, and the examinees in particular, would understandably be interested in the fair and competent administration of these exams in order to ensure that only those qualified are admitted into the accounting profession. And as with all matters pedagogical, these examinations could be not merely quantitative means of assessment, but also means to further improve the teaching and learning of the art and science of accounting.

Antolin vs Domondon On the other hand, we do realize that there may be valid reasons to limit access to the Examination Papers in order to properly administer the exam. More than the mere convenience of the examiner, it may well be that there exist inherent difficulties in the preparation, generation, encoding, administration, and checking of these multiple choice exams that require that the questions and answers remain confidential for a limited duration. However, the PRC is not a party to these proceedings. They have not been given an opportunity to explain the reasons behind their regulations or articulate the justification for keeping the Examination Documents confidential. In view of the far-reaching implications of this case, which may impact on every board examination administered by the PRC, and in order that all relevant issues may be ventilated, we deem it best to remand these cases to the RTC for further proceedings.
IN VIEW OF THE FOREGOING, the petitions are GRANTED. The December 11, 2006 and February 16, 2004 Decisions of the Court of Appeals in CA-GR SP No. 76546 and CA-GR SP No. 76498, respectively, are hereby SET ASIDE. The November 11, 2002 and January 30, 2003 Orders of the Regional Trial Court of Manila, Branch 33, in Civil Case No. 98-86881 are AFFIRMED. The case is remanded to the Regional Trial Court for further proceedings. SO ORDERED.

Air Philippines vs. Pennswell

THIRD DIVISION

AIR PHILIPPINES CORPORATION, Petitioner,

G.R. No. 172835 Present: YNARES-SANTIAGO, J. Chairperson, AUSTRIA-MARTINEZ, CHICO-NAZARIO,

- versus -

NACHURA, and REYES, JJ.

Promulgated:

December 13, 2007 PENNSWELL, INC. Respondent. x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

CHICO-NAZARIO, J.:

Air Philippines vs. Pennswell

Petitioner Air Philippines Corporation seeks, via the instant Petition for Review under Rule 45 of the Rules of Court, the nullification of the 16 February 2006 Decision[1] and the 25 May 2006 Resolution[2] of the Court of Appeals in CA-G.R. SP No. 86329, which affirmed the Order[3] dated 30 June 2004 of the Regional Trial Court (RTC), Makati City, Branch 64, in Civil Case No. 00-561.

Petitioner Air Philippines Corporation is a domestic corporation engaged in the business of air transportation services. On the other hand, respondent Pennswell, Inc. was organized to engage in the business of manufacturing and selling industrial chemicals, solvents, and special lubricants.

On various dates, respondent delivered and sold to petitioner sundry goods in trade, covered by Sales Invoices No. 8846,[4] 9105,[5] 8962,[6] and 8963,[7] which correspond to Purchase Orders No. 6433, 6684, 6634 and 6633, respectively. Under the contracts, petitioners total outstanding obligation amounted to P449,864.98 with interest at 14% per annum until the amount would be fully paid. For failure of the petitioner to comply with its obligation under said contracts, respondent filed a Complaint[8] for a Sum of Money on 28 April 2000 with the RTC.

In its Answer,[9] petitioner contended that its refusal to pay was not without valid and justifiable reasons. In particular, petitioner alleged that it was defrauded in the amount of P592,000.00 by respondent for its previous sale of four items, covered by Purchase Order No. 6626. Said items were misrepresented by respondent as belonging to a new line, but were in truth and in fact, identical with products petitioner had previously purchased from respondent. Petitioner asserted that it was deceived by respondent which merely altered the names and labels of such goods. Petitioner specifically identified the items in question, as follows:

Label/Description

Item No.

Amount

P.O.

Date

Air Philippines vs. Pennswell 1. a. Anti-Friction Fluid

MPL-800 MPL-008

153,941.40 155,496.00

5714 5888

05/20/99 06/20/99

b. Excellent (fake)

Rust

Corrosion

2. a. Contact Grease b. Connector Grease (fake) 3. a. Trixohtropic Grease b. Di-Electric Strength Protective Coating (fake) 4. a. Dry Lubricant b. Anti-Seize Compound (fake)

COG #2 CG EPC EPC#2

115,236.00 230,519.52 81,876.96 81,876.96

5540 6327 4582 5446

04/26/99 08/05/99 01/29/99 04/21/99

ASC-EP ASC-EP 2000

87,346.52 124,108.10

5712 4763 & 5890

05/20/99 02/16/99 &06/24/99

According to petitioner, respondents products, namely Excellent Rust Corrosion, Connector Grease, Electric Strength Protective Coating, and Anti-Seize Compound, are identical with its AntiFriction Fluid, Contact Grease, Thixohtropic Grease, and Dry Lubricant, respectively. Petitioner asseverated that had respondent been forthright about the identical character of the products, it would not have purchased the items complained of. Moreover, petitioner alleged that when the purported fraud was discovered, a conference was held between petitioner and respondent on 13 January 2000, whereby the parties agreed that respondent would return to petitioner the amount it previously paid. However, petitioner was surprised when it received a letter from the respondent, demanding payment of the amount of P449,864.94, which later became the subject of respondents Complaint for Collection of a Sum of Money against petitioner.

During the pendency of the trial, petitioner filed a Motion to Compel[10] respondent to give a detailed list of the ingredients and chemical components of the following products, to wit: (a) Contact Grease and Connector Grease; (b) Thixohtropic Grease and Di-Electric Strength Protective Coating; and (c) Dry Lubricant and Anti-Seize Compound.[11] It appears that petitioner had earlier requested the Philippine Institute of Pure and Applied Chemistry (PIPAC) for the latter to conduct a comparison of respondents goods.

Air Philippines vs. Pennswell

On 15 March 2004, the RTC rendered an Order granting the petitioners motion. It disposed, thus:

The Court directs [herein respondent] Pennswell, Inc. to give [herein petitioner] Air Philippines Corporation[,] a detailed list of the ingredients or chemical components of the following chemical products:

a.

Contact Grease to be compared with Connector Grease;

b.

Thixohtropic Grease to be compared with Di-Electric Strength Protective Coating; and

c.

Dry Lubricant to be compared with Anti-Seize Compound[.]

[Respondent] Pennswell, Inc. is given fifteen (15) days from receipt of this Order to submit to [petitioner] Air Philippines Corporation the chemical components of all the above-mentioned products for chemical comparison/analysis.[12]

Respondent sought reconsideration of the foregoing Order, contending that it cannot be compelled to disclose the chemical components sought because the matter is confidential. It argued that what petitioner endeavored to inquire upon constituted a trade secret which respondent cannot be forced to divulge. Respondent maintained that its products are specialized lubricants, and if their components were revealed, its business competitors may easily imitate and market the same types of products, in violation of its proprietary rights and to its serious damage and prejudice.

The RTC gave credence to respondents reasoning, and reversed itself. It issued an Order dated 30 June 2004, finding that the chemical components are respondents trade secrets and are privileged in character. A priori, it rationalized:

Air Philippines vs. Pennswell The Supreme Court held in the case of Chavez vs. Presidential Commission on Good Government, 299 SCRA 744, p. 764, that the drafters of the Constitution also unequivocally affirmed that aside from national security matters and intelligence information, trade or industrial secrets (pursuant to the Intellectual Property Code and other related laws) as well as banking transactions (pursuant to the Secrecy of Bank Deposit Act) are also exempted from compulsory disclosure.

Trade secrets may not be the subject of compulsory disclosure. By reason of [their] confidential and privileged character, ingredients or chemical components of the products ordered by this Court to be disclosed constitute trade secrets lest [herein respondent] would eventually be exposed to unwarranted business competition with others who may imitate and market the same kinds of products in violation of *respondents+ proprietary rights. Being privileged, the detailed list of ingredients or chemical components may not be the subject of mode of discovery under Rule 27, Section 1 of the Rules of Court, which expressly makes privileged information an exception from its coverage.[13]

Alleging grave abuse of discretion on the part of the RTC, petitioner filed a Petition for Certiorari under Rule 65 of the Rules of Court with the Court of Appeals, which denied the Petition and affirmed the Order dated 30 June 2004 of the RTC.

The Court of Appeals ruled that to compel respondent to reveal in detail the list of ingredients of its lubricants is to disregard respondents rights over its trade secrets. It was categorical in declaring that the chemical formulation of respondents products and their ingredients are embraced within the meaning of trade secrets. In disallowing the disclosure, the Court of Appeals expounded, thus:

The Supreme Court in Garcia v. Board of Investments (177 SCRA 374 [1989]) held that trade secrets and confidential, commercial and financial information are exempt from public scrutiny. This is reiterated in Chavez v. Presidential Commission on Good Government (299 SCRA 744 [1998]) where the Supreme Court enumerated the kinds of information and transactions that are recognized as restrictions on or privileges against compulsory disclosure. There, the Supreme Court explicitly stated that:

The drafters of the Constitution also unequivocally affirmed that, aside from national security matters and intelligence information, trade or industrial secrets (pursuant to the Intellectual Property Code and other related laws) as well as banking transactions (pursuant to the Secrecy of Bank Deposits Act) re also exempt from compulsory disclosure.

Air Philippines vs. Pennswell

It is thus clear from the foregoing that a party cannot be compelled to produce, release or disclose documents, papers, or any object which are considered trade secrets.

In the instant case, petitioner [Air Philippines Corporation] would have [respondent] Pennswell produce a detailed list of ingredients or composition of the latters lubricant products so that a chemical comparison and analysis thereof can be obtained. On this note, We believe and so hold that the ingredients or composition of *respondent+ Pennswells lubricants are trade secrets which it cannot be compelled to disclose.

[Respondent] Pennswell has a proprietary or economic right over the ingredients or components of its lubricant products. The formulation thereof is not known to the general public and is peculiar only to [respondent] Pennswell. The legitimate and economic interests of business enterprises in protecting their manufacturing and business secrets are well-recognized in our system.

[Respondent] Pennswell has a right to guard its trade secrets, manufacturing formulas, marketing strategies and other confidential programs and information against the public. Otherwise, such information can be illegally and unfairly utilized by business competitors who, through their access to [respondent] Pennswells business secrets, may use the same for their own private gain and to the irreparable prejudice of the latter.

xxxx

In the case before Us, the alleged trade secrets have a factual basis, i.e., it comprises of the ingredients and formulation of *respondent+ Pennswells lubricant products which are unknown to the public and peculiar only to Pennswell.

All told, We find no grave abuse of discretion amounting to lack or excess of jurisdiction on the part of public respondent Judge in finding that the detailed list of ingredients or composition of the subject lubricant products which petitioner [Air Philippines Corporation] seeks to be disclosed are trade secrets of [respondent] Pennswell; hence, privileged against compulsory disclosure.[14]

Petitioners Motion for Reconsideration was denied.

Air Philippines vs. Pennswell

Unyielding, petitioner brought the instant Petition before us, on the sole issue of:

WHETHER THE COURT OF APPEALS RULED IN ACCORDANCE WITH PREVAILING LAWS AND JURISPRUDENCE WHEN IT UPHELD THE RULING OF THE TRIAL COURT THAT THE CHEMICAL COMPONENTS OR INGREDIENTS OF RESPONDENTS PRODUCTS ARE TRADE SECRETS OR INDUSTRIAL SECRETS THAT ARE NOT SUBJECT TO COMPULSORY DISCLOSURE.[15]

Petitioner seeks to convince this Court that it has a right to obtain the chemical composition and ingredients of respondents products to conduct a comparative analysis of its products. Petitioner assails the conclusion reached by the Court of Appeals that the matters are trade secrets which are protected by law and beyond public scrutiny. Relying on Section 1, Rule 27 of the Rules of Court, petitioner argues that the use of modes of discovery operates with desirable flexibility under the discretionary control of the trial court. Furthermore, petitioner posits that its request is not done in bad faith or in any manner as to annoy, embarrass, or oppress respondent.

A trade secret is defined as a plan or process, tool, mechanism or compound known only to its owner and those of his employees to whom it is necessary to confide it.[16] The definition also extends to a secret formula or process not patented, but known only to certain individuals using it in compounding some article of trade having a commercial value.[17] A trade secret may consist of any formula, pattern, device, or compilation of information that: (1) is used in one's business; and (2) gives the employer an opportunity to obtain an advantage over competitors who do not possess the information.[18] Generally, a trade secret is a process or device intended for continuous use in the operation of the business, for example, a machine or formula, but can be a price list or catalogue or specialized customer list.[19] It is indubitable that trade secrets constitute proprietary rights. The inventor, discoverer, or possessor of a trade secret or similar innovation has rights therein which may be treated as property, and ordinarily an injunction will be granted to prevent the disclosure of the trade secret by one who obtained the information "in confidence" or through a "confidential relationship."[20] American jurisprudence has utilized the following factors[21] to determine if an information is a trade secret, to wit:

(1)

the extent to which the information is known outside of the employer's business;

Air Philippines vs. Pennswell

(2)

the extent to which the information is known by employees and others involved in the business;

(3)

the extent of measures taken by the employer to guard the secrecy of the information;

(4)

the value of the information to the employer and to competitors;

(5)

the amount of effort or money expended by the company in developing the information; and

(6)

the extent to which the information could be easily or readily independent source.[22]

obtained through an

In Cocoland Development Corporation v. National Labor Relations Commission,[23] the issue was the legality of an employees termination on the ground of unauthorized disclosure of trade secrets. The Court laid down the rule that any determination by management as to the confidential nature of technologies, processes, formulae or other so-called trade secrets must have a substantial factual basis which can pass judicial scrutiny. The Court rejected the employers naked contention that its own determination as to what constitutes a trade secret should be binding and conclusive upon the NLRC. As a caveat, the Court said that to rule otherwise would be to permit an employer to label almost anything a trade secret, and thereby create a weapon with which he/it may arbitrarily dismiss an employee on the pretext that the latter somehow disclosed a trade secret, even if in fact there be none at all to speak of. [24] Hence, in Cocoland, the parameters in the determination of trade secrets were set to be such substantial factual basis that can withstand judicial scrutiny.

The chemical composition, formulation, and ingredients of respondents special lubricants are trade secrets within the contemplation of the law. Respondent was established to engage in the business of general manufacturing and selling of, and to deal in, distribute, sell or otherwise dispose of goods, wares, merchandise, products, including but not limited to industrial chemicals, solvents, lubricants, acids, alkalies, salts, paints, oils, varnishes, colors, pigments and similar

Air Philippines vs. Pennswell

preparations, among others. It is unmistakable to our minds that the manufacture and production of respondents products proceed from a formulation of a secret list of ingredients. In the creation of its lubricants, respondent expended efforts, skills, research, and resources. What it had achieved by virtue of its investments may not be wrested from respondent on the mere pretext that it is necessary for petitioners defense against a collection for a sum of money. By and large, the value of the information to respondent is crystal clear. The ingredients constitute the very fabric of respondents production and business. No doubt, the information is also valuable to respondents competitors. To compel its disclosure is to cripple respondents business, and to place it at an undue disadvantage. If the chemical composition of respondents lubricants are opened to public scrutiny, it will stand to lose the backbone on which its business is founded. This would result in nothing less than the probable demise of respondents business. Respondents proprietary interest over the ingredients which it had developed and expended money and effort on is incontrovertible. Our conclusion is that the detailed ingredients sought to be revealed have a commercial value to respondent. Not only do we acknowledge the fact that the information grants it a competitive advantage; we also find that there is clearly a glaring intent on the part of respondent to keep the information confidential and not available to the prying public.

We now take a look at Section 1, Rule 27 of the Rules of Court, which permits parties to inspect documents or things upon a showing of good cause before the court in which an action is pending. Its entire provision reads:

SECTION 1. Motion for production or inspection order. Upon motion of any party showing good cause therefore, the court in which an action is pending may (a) order any party to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, not privileged, which constitute or contain evidence material to any matter involved in the action and which are in his possession, custody or control; or (b) order any party to permit entry upon designated land or other property in his possession or control for the purpose of inspecting, measuring, surveying, or photographing the property or any designated relevant object or operation thereon. The order shall specify the time, place and manner of making the inspection and taking copies and photographs, and may prescribe such terms and conditions as are just.

A more than cursory glance at the above text would show that the production or inspection of documents or things as a mode of discovery sanctioned by the Rules of Court may be availed of by any party upon a showing of good cause therefor before the court in which an action is pending. The court may order any party: a) to produce and permit the inspection and copying or photographing of any designated documents, papers, books, accounts, letters,

Air Philippines vs. Pennswell

photographs, objects or tangible things, which are not privileged;[25] which constitute or contain evidence material to any matter involved in the action; and which are in his possession, custody or control; or b) to permit entry upon designated land or other property in his possession or control for the purpose of inspecting, measuring, surveying, or photographing the property or any designated relevant object or operation thereon.

Rule 27 sets an unequivocal proviso that the documents, papers, books, accounts, letters, photographs, objects or tangible things that may be produced and inspected should not be privileged.[26] The documents must not be privileged against disclosure.[27] On the ground of public policy, the rules providing for production and inspection of books and papers do not authorize the production or inspection of privileged matter; that is, books and papers which, because of their confidential and privileged character, could not be received in evidence.[28] Such a condition is in addition to the requisite that the items be specifically described, and must constitute or contain evidence material to any matter involved in the action and which are in the partys possession, custody or control.

Section 24[29] of Rule 130 draws the types of disqualification by reason of privileged communication, to wit: (a) communication between husband and wife; (b) communication between attorney and client; (c) communication between physician and patient; (d) communication between priest and penitent; and (e) public officers and public interest. There are, however, other privileged matters that are not mentioned by Rule 130. Among them are the following: (a) editors may not be compelled to disclose the source of published news; (b) voters may not be compelled to disclose for whom they voted; (c)trade secrets; (d) information contained in tax census returns; and (d) bank deposits. [30]

We, thus, rule against the petitioner. We affirm the ruling of the Court of Appeals which upheld the finding of the RTC that there is substantial basis for respondent to seek protection of the law for its proprietary rights over the detailed chemical composition of its products.

That trade secrets are of a privileged nature is beyond quibble. The protection that this jurisdiction affords to trade secrets is evident in our laws. The Interim Rules of Procedure on Government Rehabilitation, effective 15 December 2000, which applies to: (1) petitions for rehabilitation filed by corporations, partnerships, and associations pursuant to Presidential Decree No. 902-A,[31] as amended; and (2) cases for rehabilitation transferred from the Securities

Air Philippines vs. Pennswell

and Exchange Commission to the RTCs pursuant to Republic Act No. 8799, otherwise known as The Securities Regulation Code, expressly provides that the court may issue an order to protect trade secrets or other confidential research, development, or commercial information belonging to the debtor.[32] Moreover, the Securities Regulation Code is explicit that the Securities and Exchange Commission is not required or authorized to require the revelation of trade secrets or processes in any application, report or document filed with the Commission.[33] This confidentiality is made paramount as a limitation to the right of any member of the general public, upon request, to have access to all information filed with the Commission.[34]

Furthermore, the Revised Penal Code endows a cloak of protection to trade secrets under the following articles:

Art. 291. Revealing secrets with abuse of office. The penalty of arresto mayor and a fine not exceeding 500 pesos shall be imposed upon any manager, employee or servant who, in such capacity, shall learn the secrets of his principal or master and shall reveal such secrets.

Art. 292. Revelation of industrial secrets. The penalty of prision correccional in its minimum and medium periods and a fine not exceeding 500 pesos shall be imposed upon the person in charge, employee or workman of any manufacturing or industrial establishment who, to the prejudice of the owner thereof, shall reveal the secrets of the industry of the latter.

Similarly, Republic Act No. 8424, otherwise known as the National Internal Revenue Code of 1997, has a restrictive provision on trade secrets, penalizing the revelation thereof by internal revenue officers or employees, to wit:

SECTION 278. Procuring Unlawful Divulgence of Trade Secrets. - Any person who causes or procures an officer or employee of the Bureau of Internal Revenue to divulge any confidential information regarding the business, income or inheritance of any taxpayer, knowledge of which was acquired by him in the discharge of his official duties, and which it is unlawful for him to reveal, and any person who publishes or prints in any manner whatever, not provided by law, any income, profit, loss or expenditure appearing in any income tax return, shall be punished by a fine of not more than two thousand pesos (P2,000), or suffer imprisonment of not less than six (6) months nor more than five (5) years, or both.

Air Philippines vs. Pennswell

Republic Act No. 6969, or the Toxic Substances and Hazardous and Nuclear Wastes Control Act of 1990, enacted to implement the policy of the state to regulate, restrict or prohibit the importation, manufacture, processing, sale, distribution, use and disposal of chemical substances and mixtures that present unreasonable risk and/or injury to health or the environment, also contains a provision that limits the right of the public to have access to records, reports or information concerning chemical substances and mixtures including safety data submitted and data on emission or discharge into the environment, if the matter is confidential such that it would divulge trade secrets, production or sales figures; or methods, production or processes unique to such manufacturer, processor or distributor; or would otherwise tend to affect adversely the competitive position of such manufacturer, processor or distributor.[35]

Clearly, in accordance with our statutory laws, this Court has declared that intellectual and industrial property rights cases are not simple property cases.[36] Without limiting such industrial property rights to trademarks and trade names, this Court has ruled that all agreements concerning intellectual property are intimately connected with economic development.[37] The protection of industrial property encourages investments in new ideas and inventions and stimulates creative efforts for the satisfaction of human needs. It speeds up transfer of technology and industrialization, and thereby bring about social and economic progress.[38] Verily, the protection of industrial secrets is inextricably linked to the advancement of our economy and fosters healthy competition in trade.

Jurisprudence has consistently acknowledged the private character of trade secrets. There is a privilege not to disclose ones trade secrets.[39] Foremost, this Court has declared that trade secrets and banking transactions are among the recognized restrictions to the right of the people to information as embodied in the Constitution.[40] We said that the drafters of the Constitution also unequivocally affirmed that, aside from national security matters and intelligence information, trade or industrial secrets (pursuant to the Intellectual Property Code and other related laws) as well as banking transactions (pursuant to the Secrecy of Bank Deposits Act), are also exempted from compulsory disclosure.[41]

Significantly, our cases on labor are replete with examples of a protectionist stance towards the trade secrets of employers. For instance, this Court upheld the validity of the policy

Air Philippines vs. Pennswell

of a pharmaceutical company prohibiting its employees from marrying employees of any competitor company, on the rationalization that the company has a right to guard its trade secrets, manufacturing formulas, marketing strategies and other confidential programs and information from competitors.[42] Notably, it was in a labor-related case that this Court made a stark ruling on the proper determination of trade secrets.

In the case at bar, petitioner cannot rely on Section 77[43] of Republic Act 7394, or the Consumer Act of the Philippines, in order to compel respondent to reveal the chemical components of its products. While it is true that all consumer products domestically sold, whether manufactured locally or imported, shall indicate their general make or active ingredients in their respective labels of packaging, the law does not apply to respondent. Respondents specialized lubricants -- namely, Contact Grease, Connector Grease, Thixohtropic Grease, DiElectric Strength Protective Coating, Dry Lubricant and Anti-Seize Compound -- are not consumer products. Consumer products, as it is defined in Article 4(q),[44] refers to goods, services and credits, debts or obligations which are primarily for personal, family, household or agricultural purposes, which shall include, but not be limited to, food, drugs, cosmetics, and devices. This is not the nature of respondents products. Its products are not intended for personal, family, household or agricultural purposes. Rather, they are for industrial use, specifically for the use of aircraft propellers and engines.

Petitioners argument that Republic Act No. 8203, or the Special Law on Counterfeit Drugs, requires the disclosure of the active ingredients of a drug is also on faulty ground.[45] Respondents products are outside the scope of the cited law. They do not come within the purview of a drug[46] which, as defined therein, refers to any chemical compound or biological substance, other than food, that is intended for use in the treatment, prevention or diagnosis of disease in man or animals. Again, such are not the characteristics of respondents products.

What is clear from the factual findings of the RTC and the Court of Appeals is that the chemical formulation of respondents products is not known to the general public and is unique only to it. Both courts uniformly ruled that these ingredients are not within the knowledge of the public. Since such factual findings are generally not reviewable by this Court, it is not duty-bound to analyze and weigh all over again the evidence already considered in the proceedings below.[47] We need not delve into the factual bases of such findings as questions of fact are

Air Philippines vs. Pennswell

beyond the pale of Rule 45 of the Rules of Court. Factual findings of the trial court when affirmed by the Court of Appeals, are binding and conclusive on the Supreme Court.[48]

We do not find merit or applicability in petitioners invocation of Section 12[49] of the Toxic Substances and Hazardous and Nuclear Wastes Control Act of 1990, which grants the public access to records, reports or information concerning chemical substances and mixtures, including safety data submitted, and data on emission or discharge into the environment. To reiterate, Section 12[50] of said Act deems as confidential matters, which may not be made public, those that would divulge trade secrets, including production or sales figures or methods; production or processes unique to such manufacturer, processor or distributor, or would otherwise tend to affect adversely the competitive position of such manufacturer, processor or distributor. It is true that under the same Act, the Department of Environment and Natural Resources may release information; however, the clear import of the law is that said authority is limited by the right to confidentiality of the manufacturer, processor or distributor, which information may be released only to a medical research or scientific institution where the information is needed for the purpose of medical diagnosis or treatment of a person exposed to the chemical substance or mixture. The right to confidentiality is recognized by said Act as primordial. Petitioner has not made the slightest attempt to show that these circumstances are availing in the case at bar.

Indeed, the privilege is not absolute; the trial court may compel disclosure where it is indispensable for doing justice.[51] We do not, however, find reason to except respondents trade secrets from the application of the rule on privilege. The revelation of respondents trade secrets serves no better purpose to the disposition of the main case pending with the RTC, which is on the collection of a sum of money. As can be gleaned from the facts, petitioner received respondents goods in trade in the normal course of business. To be sure, there are defenses under the laws of contracts and sales available to petitioner. On the other hand, the greater interest of justice ought to favor respondent as the holder of trade secrets. If we were to weigh the conflicting interests between the parties, we rule in favor of the greater interest of respondent. Trade secrets should receive greater protection from discovery, because they derive economic value from being generally unknown and not readily ascertainable by the public.[52] To the mind of this Court, petitioner was not able to show a compelling reason for us to lift the veil of confidentiality which shields respondents trade secrets.

Air Philippines vs. Pennswell

WHEREFORE, the Petition is DENIED. The Decision dated 16 February 2006, and the Resolution dated 25 May 2006, of the Court of Appeals in CA-G.R. SP No. 86329 are AFFIRMED. No costs.

SO ORDERED.

Boy Scouts of America vs. Dale

SUPREME COURT OF THE UNITED STATES

BOY SCOUTS OF AMERICA et al. v. DALE

CERTIORARI TO THE SUPREME COURT OF NEW JERSEY

No. 99699. Argued April 26, 2000Decided June 28, 2000

Petitioners are the Boy Scouts of America and its Monmouth Council (collectively, Boy Scouts). The Boy Scouts is a private, not-for-profit organization engaged in instilling its system of values in young people. It asserts that homosexual conduct is inconsistent with those values. Respondent Dale is an adult whose position as assistant scoutmaster of a New Jersey troop was revoked when the Boy Scouts learned that he is an avowed homosexual and gay rights activist. He filed suit in the New Jersey Superior Court, alleging, inter alia, that the Boy Scouts had violated the state statute prohibiting discrimination on the basis of sexual orientation in places of public accommodation. That courts Chancery Division granted summary judgment for the Boy Scouts, but its Appellate Division reversed in pertinent part and remanded. The State Supreme Court affirmed, holding, inter alia, that the Boy Scouts violated the States public accommodations law by revoking Dales membership based on his avowed homosexuality. Among other rulings, the court held that application of that law did not violate the Boy Scouts First Amendment right of expressive association because Dales inclusion would not significantly affect members ability to carry out their purposes; determined that New Jersey has a compelling interest in eliminating the destructive consequences of discrimination from society, and that its public accommodations law abridges no more speech than is necessary to accomplish its purpose; and distinguished Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, on the ground that Dales reinstatement did not compel the Boy Scouts to express any message. Held: Applying New Jerseys public accommodations law to require the Boy Scouts to admit Dale violates the Boy Scouts First Amendment right of expressive association. Government actions that unconstitutionally burden that right may take many forms, one of which is intrusion into a groups internal affairs by forcing it to accept a member it does not desire. Roberts v. United States Jaycees, 468 U.S. 609, 623. Such forced membership is unconstitutional if the persons presence affects in a significant way the groups ability to advocate public or private viewpoints. New York State Club Assn., Inc. v. City of New York, 487 U.S. 1, 13. However, the freedom of expressive association is not absolute; it can be overridden by regulations adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms. Roberts,468 U.S., at 623. To determine whether a group is protected, this Court must determine whether the group engages in expressive association. The record clearly reveals that the Boy Scouts does so when its adult leaders

Boy Scouts of America vs. Dale inculcate its youth members with its value system. See id., at 636. Thus, the Court must determine whether the forced inclusion of Dale would significantly affect the Boy Scouts ability to advocate public or private viewpoints. The Court first must inquire, to a limited extent, into the nature of the Boy Scouts viewpoints. The Boy Scouts asserts that homosexual conduct is inconsistent with the values embodied in the Scout Oath and Law, particularly those represented by the terms morally straight and clean, and that the organization does not want to promote homosexual conduct as a legitimate form of behavior. The Court gives deference to the Boy Scouts assertions regarding the nature of its expression, see, Democratic Party of United Statesv. Wisconsin ex rel. La Follette, 450 U.S. 107, 123124. The Court then inquires whether Dales presence as an assistant scoutmaster would significantly burden the expression of those viewpoints. Dale, by his own admission, is one of a group of gay Scouts who have become community leaders and are open and honest about their sexual orientation. His presence as an assistant scoutmaster would interfere with the Scouts choice not to propound a point of view contrary to its beliefs. See Hurley, 515 U.S., at 576577. This Court disagrees with the New Jersey Supreme Courts determination that the Boy Scouts ability to disseminate its message would not be significantly affected by the forced inclusion of Dale. First, contrary to the state courts view, an association need not associate for the purpose of disseminating a certain message in order to be protected, but must merely engage in expressive activity that could be impaired. Second, even if the Boy Scouts discourages Scout leaders from disseminating views on sexual issues, its method of expression is protected. Third, the First Amendment does not require that every member of a group agree on every issue in order for the groups policy to be expressive association. Given that the Boy Scouts expression would be burdened, the Court must inquire whether the application of New Jerseys public accommodations law here runs afoul the Scouts freedom of expressive association, and concludes that it does. Such a law is within a States power to enact when the legislature has reason to believe that a given group is the target of discrimination and the law does not violate the First Amendment. See, e.g., id., at 572. The Court rejects Dales contention that the intermediate standard of review enunciated in United States v. OBrien, 391 U.S. 367, should be applied here to evaluate the competing interests of the Boy Scouts and the State. Rather, the Court applies an analysis similar to the traditional First Amendment analysis it applied in Hurley. A state requirement that the Boy Scouts retain Dale would significantly burden the organizations right to oppose or disfavor homosexual conduct. The state interests embodied in New Jerseys public accommodations law do not justify such a severe intrusion on the freedom of expressive association. In so ruling, the Court is not guided by its view of whether the Boy Scouts teachings with respect to homosexual conduct are right or wrong; public or judicial disapproval of an organizations expression does not justify the States effort to compel the organization to accept members in derogation of the organizations expressive message. While the law may promote all sorts of conduct in place of harmful behavior, it may not interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one, however enlightened either purpose may seem. Hurley, supra, at 579. Pp. 517.

Boy Scouts of America vs. Dale 160 N. J. 562, 734 A. 2d 1196, reversed and remanded.

Manotok Realty vs CLT

EN BANC
MANOTOK REALTY, INC. and MANOTOK ESTATE CORPORATION, Petitioners, Present: G.R. No. 123346

PUNO, C.J., QUISUMBING, YNARES-SANTIAGO, - versus CARPIO, AUSTRIA-MARTINEZ, CORONA, CLT REALTY DEVELOPMENT CORPORATION, Respondent. CARPIO MORALES, TINGA, CHICO-NAZARIO, VELASCO, JR., NACHURA, LEONARDO-DE CASTRO BRION, and PERALTA, JJ.

Promulgated:

Manotok Realty vs CLT

March 31, 2009 x--------------------------------------------------------------------------------- x

ARANETA INSTITUTE OF AGRICULTURE, INC., Petitioner,

G.R. No. 134385

- versus -

HEIRS OF JOSE B. DIMSON, REPRESENTED BY HIS COMPULSORY HEIRS: HIS SURVIVING

Manotok Realty vs CLT

SPOUSE, ROQUETA R. DIMSON AND THEIR CHILDREN, NORMA AND CELSA TIRADO, ALSON AND VIRGINIA DIMSON, LINDA AND CARLOS LAGMAN, LERMA AND RENE POLICAR, AND ESPERANZA R. DIMSON; AND THE REGISTER OF DEEDS OF MALABON, Respondents.

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

RESOLUTION

TINGA, J.:

In the Courts Resolution dated 14 December 2007,[1] the Court constituted a Special Division of the Court of Appeals to hear the instant case on remand. The Special Division was composed of three Associate Justices of the Court of Appeals, with Justice Josefina GuevaraSalonga as Chairperson; Justice Lucas Bersamin as Senior Member; and Associate Justice Japar B. Dimaampao as Junior Member. We instructed the Special Division to proceed as follows:

The Special Division is tasked to hear and receive evidence, conclude the proceedings and submit to this Court a report on its findings and recommended conclusions within three (3) months from finality of this Resolution.

Manotok Realty vs CLT In ascertaining which of the conflicting claims of title should prevail, the Special Division is directed to make the following determinations based on the evidence already on record and such other evidence as may be presented at the proceedings before it, to wit:

i. Which of the contending parties are able to trace back their claims of title to OCT No. 994 dated 3 May 1917?

ii. Whether the imputed flaws in the titles of the Manotoks and Araneta, as recounted in the 2005 Decision, are borne by the evidence? Assuming they are, are such flaws sufficient to defeat the claims of title of the Manotoks and Araneta?

iii. Whether the factual and legal bases of 1966 Order of Judge Muoz-Palma and the 1970 Order of Judge Sayo are true and valid. Assuming they are, do these orders establish a superior right to the subject properties in favor of the Dimsons and CLT as opposed to the claims of Araneta and the Manotoks?

iv. Whether any of the subject properties had been the subject of expropriation proceedings at any point since the issuance of OCT No. 994 on 3 May 1917, and if so what are those proceedings, what are the titles acquired by the Government and whether any of the parties is able to trace its title to the title acquired by the Government through expropriation.

v. Such other matters necessary and proper in ascertaining which of the conflicting claims of title should prevail.

Manotok Realty vs CLT WHEREFORE, the instant cases are hereby REMANDED to the Special Division of the Court of Appeals for further proceedings in accordance with Parts VI, VII and VIII of this Resolution.

SO ORDERED.[2]

The Special Division proceeded to conduct hearings in accordance with the Resolution. The parties to these cases, namely CLT Realty Development Corporation (CLT), Manotok Realty Inc. and Manotok Estate Corporation (the Manotoks), the Heirs of Jose B. Dimson (Heirs of Dimson), and Araneta Institute of Agriculture, Inc. (Araneta), were directed by the Special Division to present their respective evidence to the Court of Appeals. Thereafter, the Special Division rendered a 70-page Report[3] (Report) on 26 November 2008. The Special Division submitted the sealed Report to this Court.

Before taking action on the Report itself, we dispose of a preliminary matter. On February 17, 2009, the Manotoks filed a motion beseeching that copies of the report be furnished the parties so that they may submit their comments and objections thereon in accord with the principle contained in Sec. 10, Rule 32 of the Rules of Court. We deny the motion.

It is incorrect to presume that the earlier referral of these cases to the Court of Appeals for reception of evidence was strictly in accordance with Rule 32. Notably, Section 1 of said Rule authorizes the referral of the case to a commissioner by written consent of both parties, whereas in the cases at bar, the Court did not endeavor to secure the consent of the parties before effectuating the remand to the Court of Appeals. Nonetheless, our earlier advertence to Rule 32 remains proper even if the adopted procedure does not hew strictly to that Rule, owing to our power under Section 6, Rule 135 to adopt any suitable process or mode of proceeding which appears conformable to the spirit of the Rules to carry into effect all auxiliary processes and other means necessary to carry our jurisdiction into effect.

Moreover, furnishing the parties with copies of the Sealed Report would not serve any useful purpose. It would only delay the promulgation of the Courts action on the Sealed Report and the adjudication of these cases. In any event, the present Resolution quotes extensively from the sealed Report and discusses its other substantive segments which are not quoted.

Manotok Realty vs CLT

The Report is a commendably exhaustive and pellucid analysis of the issues referred to the Special Division. It is a more than adequate basis for this Court to make the following final dispositions in these cases.

I.

We adopt the succeeding recital of operative antecedents made by the Special Division in its Report.

THE PROCEDURAL ANTECEDENTS

DIMSON v. ARANETA CA-G.R. CV. NO. 41883 & CA-G.R. SP No. 34819 [SC-G.R. No. 134385]

On 18 December 1979, DIMSON filed with the then Court of First Instance *CFI+ of Rizal a complaint for Recovery of Possession and Damages against ARANETA. On 7 May 1980, DIMSON amended his complaint and included Virgilio L. Enriquez *ENRIQUEZ+ as his co-plaintiff.

In said Amended Complaint, DIMSON claimed that he is the absolute owner of a 50-hectare land located in Bo. Potrero, Malabon, Metro Manila covered by TCT No. R-15169, [Lot 25-A-2] of the Caloocan Registry of Deeds. Allegedly, DIMSON had transferred the subject property to ENRIQUEZ by way of an absolute and irrevocable sale on 14 November 1979. Unfortunately though, DIMSON and ENRIQUEZ discovered that the subject property was being occupied by ARANETA wherein an agricultural school house is erected and that despite repeated demands, the latter refused to vacate the parcel of land and remove the improvements thereon.

Manotok Realty vs CLT

ARANETA, for its part, refuted said allegations and countered that it is the absolute owner of the land being claimed by DIMSON and that the real properties in the Araneta Compound are properly documented and validly titled. It maintained that it had been in possession of the subject parcel of land since 1974. For this reason, the claims of DIMSON and ENRIQUEZ were allegedly barred by prescription.

During the trial, counsel for ARANETA marked in evidence, among others, certifications from the Land Registration Commission attesting that TCTs Nos. 13574 and 26538, covering the disputed property, are in the names of ARANETA and Jose Rato, respectively. ARANETA also offered TCT No. 7784 in evidence to prove that it is the registered owner of the land described therein.

On 28 May 1993, the trial court rendered a Decision upholding the title of DIMSON over the disputed property xxx

Undaunted, ARANETA interposed an appeal to the Court of Appeals, docketed as CA-G.R. CV No. 41883, which was later consolidated with CA-GR. SP No. 34819 in view of the inter-related issues of the two cases.

In its 30 May 1997 Decision, the Court of Appeals, in CA-G.R. CV No. 41883, sustained the RTC Decision in favor of DIMSON finding that the title of ARANETA to the disputed land in a nullity. In CAGR. SP No. 34819, the Court of Appeals likewise invalidated the titles of ARANETA, relying on the Supreme Court ruling inMetropolitan Waterworks and Sewerage System v. Court of Appeals, which declared null and void the certificates of title derived from OCT No. 994 registered on 3 may 1917. It was also held that ARANETA failed to sufficiently show that the Order sought to be nullified was obtained through extrinsic fraud that would warrant the annulment thereof.

Dissatisfied still, ARANETA filed a Motion for Reconsideration And/Or New Trial espousing therein as basis for its entreaty the various letters from different government agencies and Department order No. 137 of the Department of Justice, among others.

On 16 July 1998, the various Motions of ARANETA were denied by the Court of Appeals. Nonetheless, the Court ordered DIMSON to maintain status quo until the finality of the aforesaid judgment.

Manotok Realty vs CLT

Consequently, ARANETA filed a petition before the Supreme Court. Refuting the factual finding of the trial court and the Court of Appeals, ARANETA contended that there in only one OCT 994 covering the Maysilo Estate issued on 3 May 1917 pursuant to the Decree No. 36455 issued by the Court of Land Registration on 19 April 1917 and added that there were subsequent certifications issued by the government officials, notably from the LRS, the DOJ Committee Report and the Senate Committees Joint Report which attested that there is only one OCT 994, that which had been issued on 3 May 1917.

CLT v. MANOTOK CA-G.R. CV. No. 45255 [SC-G.R. No. 123346]

On 10 August 1992, CLT filed with the Regional Trial Court *RTC+ A COMPLAINT FOR Annulment of Transfer Certificates of Title, Recovery of Possession and Damages against the MANOTOKS and the Registry of Deeds of Metro Manila District II (Calookan City, Metro Manila) *CALOOCAN RD+.

In its Complaint, CLT alleged that it is the registered owner of Lot 26 of the Maysilo Estate located in Caloocan City and covered by Transfer Certificate of Title No. T- 177013, a derivative title of OCT No. 994. As a basis of its proprietary claim, CLT averred that on 10 December 1988, it had acquired Lot 26 from its former registered owner, Estelita I. Hipolito *HIPOLITO+, by virtue of a Deed of Sale with Real Estate Mortgage. HIPOLITOs title was , in turn, a direct transfer from DIMSON, the registered owner of TCT No. 15166, the latter having acquired the same by virtue of a Court Order dated 13 June 1966 issued by the Court of First Instance of Rizal in Civil Case No. 4557.

On the other hand, the MANOTOKS maintained the validity of their titles, which were all derivatives of OCT No. 994 covering over twenty (20) parcels of land located over a portion of Lot 26 in the Maysilo Estate. In substance, it was contented that the title of CLT was an offspring of an ineffective grant of an alleged undisputed portion of Lot26 by way of attorneys fees to its predecessor-in- interest, Jose B. Dimson. The MANOTOKS, in this connection, further contended that the portion of Lot 26, subject of the present controversy, had long been disposed of in favor of Alejandro Ruiz and Mariano Leuterio

Manotok Realty vs CLT and hence, there was nothing more in said portion of Lot 26 that could have been validly conveyed to Dimson.

Tracing the legitimacy of their certificates of titles, the MANOTOKS alleged that TCT No. 4210, which cancelled OCT No. 994, had been issued in the names of Alejandro Ruiz and Mariano Leuterio on Sept ember 1918 by virtue of an Escritura De Venta executed by Don Tomas Arguelles and Don Enrique Lopes on 21 August 1918. TCT No. 4210 allegedly covered an approximate area of 19,565.43 square meters of Lot 26. On even date, TCT No. 4211 was transferred to Francisco Gonzales on the strength of an Escritura de Venta dated 3 March 1920 for which TCT No. T-5261, covering an area of 871,982 square meters was issued in the name of one Francisco Gonzales, married to Rufina Narciso.

Thereafter, TCT No. T-35485, canceling TCT No. T-5261, was issued to Rufina Narcisa Vda. de Gonzales which was later replaced with the names of Gonzales six (6) children. The property was then subdivided and as a result of which, seven (7) certificates of titles were issued, six (6),under the names of each of the children while the remaining title was held by all of them as co-owners.

Eventually, the properties covered by said seven certificates of title were expropriated by the Republic of the Philippines. These properties were then later subdivided by the National Housing Authority *NHA+, into seventy-seven (77) lots and thereafter sold to qualified vendees. As it turned out, a number of said vendees sold nineteen (19) of these lots to Manotok Realty, Inc. while one (1) lot was purchased by the Manotok Estate Corporation.

During the pre-trial conference, the trial court, upon agreement of the parties, approved the creation of a commission composed of three commissioners tasked to resolve the conflict in their respective titles. Accordingly, the created Commission convened on the matter in dispute.

On 8 October 1993, Ernesto Erive and Avelino San Buenaventura submitted an exhaustive Joint Final Report *THE MAJORITY REPORT+ finding that there were inherent technical infirmities or defects on the face of TCT No. 4211, from which the MANOTOKS derived their titles (also on TCT No. 4210), TCT No. 5261 and TCT No. 35486. Teodoro Victoriano submitted his Individual Final Report *THE MINORITY REPORT+ dated 23 October 1993.

Manotok Realty vs CLT

After the conduct of a hearing on these reports, the parties filed their respective comments/objections thereto. Upon order of the trial court, the parties filed their respective memoranda.

Adopting the findings contained in the Majority Report, the RTC, on 10 May 1994, rendered a Decision, in favor of CLT and ordered, among others, the cancellation of the certificates of title issued in the name of the MANOTOKS.

The MANOTOKS elevated the adverse RTC Decision on appeal before the Court of Appeals. In its Decision dated 28 September 1995, the Court of Appeals affirmed the RTC Decision, except as to the award of damages which was deleted. The MANOTOKS then moved for reconsideration, but said motion was denied by said appellate court in its Resolution dated 8 January 1996. After the denial of their Motion for Reconsideration, the MANOTOKS filed a Petition for Review before the Supreme Court.

PROCEEDINGS BEFORE THE SUPREME COURT

Before the Supreme Court, the Petitioners for Review, separately filed by the MANOTOKS, ARANETA and Sto. Nio Kapitbahayan Association, Inc., *STO. NIO+, were consolidated.

Also submitted for consideration of the Supreme Court were the report of the Fact Finding Committee dated 28 August 1997 and the Senate Committee Report No. 1031 dated 25 May 1998 which concluded that there was only one OCT No. 994 issued, transcribed and registered on 3 May 1917.

THE SUPREME COURT DECISION

Manotok Realty vs CLT

In its Decision dated 29 November 2005 *THE SUPREME COURT 2005 DECISION+, the Supreme Court, through its Third Division, affirmed the RTC Decision and Resolutions of the Court of Appeals, which declared the titles of CLT and DIMSON as valid.

In invalidating the respective titles of the MANOTOKS and ARANETA, the Supreme Court, in turn, relied on the factual and legal findings of the trial courts, which had heavily hinged on the imputed flaws in said titles. Considering that these trial court findings had been affirmed by the Court of Appeals, the Supreme Court highlighted the fact that the same were accorded the highest degree of respect and, generally, should not be disturbed on appeal.

Emphasis was also made on the settled rule that because the Supreme Court was not a trier of facts, it was not within its function to review factual issues and examine, evaluate or weigh the probative value of the evidence presented by the parties.

THE SUPEME COURT RESOLUTION

Expectedly, the MANOTOKS and ARANETA filed their respective Motions for Reconsideration of the Supreme Court 2005 Decision.

Resolving said motions for reconsideration, with the Office of the Solicitor General *OSG+ intervening on behalf of the Republic, the Supreme Court, in its Resolution of 14 December 2007 *THE SUPREME CCOURT 2007 RESOLUTION+ reversed and nullified its 2005 Decision and categorically invalidated OCT No. 994 dated 19 April 1917, which was the basis of the propriety claims of CLT and DIMSON. However, the Supreme Court resolved to remand the cases to this Special Division of the Court of Appeals for reception of evidence.

Manotok Realty vs CLT To guide the proceedings before this Special Division of the Court of Appeals, the Supreme Court made the following binding conclusions:

First, there is only one OCT 994. As it appears on the record, that mother title was received for transcription by the Register of Deeds on 3 May 1917, and that should be the date which should be reckoned as the ate of registration of the title. It may also be acknowledged, as appears on the title, that OCT No. 994 resulted from the issuance of the decree of registration on (19)* April 1917, although such dated cannot be considered as the date of the title or the date when the title took effect.

Second. Any title that traces its source to OCT No. 994 dated (19) April 1917 is void, for such mother title is inexistent. The fact that the Dimson and CLT titles made specific reference to an OCT No. 994 dated (19) April 1917 casts doubt on the

Manotok Realty vs CLT

validity of such titles since they refer to an inexistent OCT. This error alone is, in fact, sufficient to invalidate the Dimson and CLT claims over the subject property if singular reliance is placed by them on the dates appearing on their respective titles.

Third. The decision of this Court in MWSS v. Court of Appeals and Gonzaga v. Court of Appeals cannot apply to the cases at bar, especially in regard to their recognition of an OCT No. 994 dated 19 April 1917, a title which we now acknowledge as inexistent. Neither could the conclusions in MWSS or Gonzaga with respect to an OCT No. 994 dated 19 April 1917 bind any other case operating under the factual setting the same as or similar to that at bar.[4]

II.

The parties were afforded the opportunity to present their evidence before the Special Division. The Report names the evidence submitted to the Special Division for its evaluation:

CLT EVIDENCE

In its Offer of Evidence,[[5]] CLT adopted the documentary exhibits and testimonial evidence of witnesses submitted in the case filed by CLT against STO. NIO in Civil Case No. C-15491, *CLT-STO NIO CASE+. These pieces of evidence include, among others, the Majority and Minority Reports, the Formal Offer of Evidence in the presentation of the evidence-in-chief and rebuttal evidence in the CLT-STO NIO CASE consisting of various certificates of titles, plans by geodetic engineer, tax declarations, chemistry report, specimen signatures and letters of correspondence.

Manotok Realty vs CLT

MANOTOKS EVIDENCE

The MANOTOKS sought admission of the following evidence: Senate and DOJ Committee Reports; certificates of title issued to them and their vendees/assignees, i.e., Republic of the Philippines, the Gonzalezes, Alejandro Ruiz and Mariano Leuterio, Isabel Gil del Sola and Estelita Hipolito; deeds of absolute sale; contracts to sell; tax declarations and real property tax receipts; the Formal Officer of Evidence of Philville Development & Housing Corporation; *PHILVILLE+, in Civil Case No. 15045; this Court of Appeals Decision in CA-G.R. CV. No. 52606 between CLT and PHILVILLE; the Orders of Judge Palma dated 13 June 1966 and 16 August 1966 in Case No. 4557 and the billing statements of SSHG Law Office. They also submitted in evidence the Affidavits and Supplemental Affidavits of Rosa R. Manotok and Luisa T. Padora; Affidavits of Atty. Felix B. Lerio, Atty. Ma. P.G. Ongkiko and Engineer Jose Marie P. Bernabe; a copy of a photograph of BM No. 9; certified true copy of coordinates and reference point of L.M. No. 1 and BM No. 1 to 10 of Piedad Estate and TCT No. 177013 of CLT.[[6]]

DIMSON EVIDENCE

In their Consolidated Formal Offer of Evidence,[[7]] DIMSON submitted the previous decisions and resolutions passed relative to these cases, various certifications of different government agencies, OCT 994, subdivision plan of Lot 25-A-2, observations of Geodetic Engineer Reggie P. Garcia showing the relative positions of properties within Lot 25-A; the Novation of Contract/Deed of Sale and Mortgage dated 15 January 1948 between Rato, Don Salvador Araneta and Araneta Institute of Agriculture; copies of various certificates of titles to dispute some of the titles held by ARANETA; several letter-requests and official receipts.

ARANETA EVIDENCE

ARANETA, in turn, offered in evidence various certificates of title, specifically, OCT No. 994, TCT No. 8692; TCT No. 21857; TCT No. 26538; TCT No. 26539; TCT No. (7784)-738 and TCT no. 13574. It also marked in evidence the certified true copies of Decree No. 36577; the DOJ and Senate Reports; letters of

Manotok Realty vs CLT correspondence to the Land Registration Commission and the Register of Deeds of Malabon City; survey plans of Lot 25-A and TCT r-15169 of Dimson and; the affidavit of Engineer Felino M. Cortez and his curriculum vitae. ARANETA also offered the certified true copy of TCT No. 6196 in the name of Victoneta, Inc.; TCT No. 13574 in the name of ARANETA; certifications issued by Atty. Josephine H. Ponciano, Acting Register of Deeds of Malabon city-Navotas; certified true copy of Judge Palmas Order dated 16 August 1966 in Case No. 4557; Circular No. 17 (which pertains to the rules on reconstitution of titles as of 19 February 1947) and its official receipt and; the owners duplicate copy of OCT No. 994.*[8]][9]

III.

We now turn to the evaluation of the evidence engaged in by the Special Division. To repeat, the Special Division was tasked to determine the following issues based on the evidence:

i.

Which of the contending parties are able to trace back their claims to Original Certificate of Title (OCT) No. 994 dated 3 May 1917:

ii.

Whether the respective imputed flaws in the titles of the Manotoks and Araneta, as recounted in the Supreme Court 2005 Decision, are borne by the evidence. Assuming they are, are such flaws sufficient to defeat said claims?

iii.

Whether the factual and legal bases of the 1966 Order of Judge Muoz-Palma and the 1970 Order of Judge Sayo are true and valid. Assuming they are, do these orders establish a superior right to the subject properties in favor of the Dimsons and CLT as opposed to the claims of the Araneta and the Manotoks?

Manotok Realty vs CLT

iv.

Whether any of the subject properties had been the subject of expropriation proceedings at any point since the issuance of OCT No. 994 on 3 May 1917, and if so, what are those proceedings, what are the titles acquired by the Government, and is any of the parties able to trace its title acquired by the government through expropriation?

v.

Such other matters necessary and proper in ascertaining which of the conflicting claims of title should prevail.

The ultimate purpose of the inquiry undertaken by the Court of Appeals was to ascertain which of the four groups of claimants were entitled to claim ownership over the subject properties to which they claimed title thereto. One set of properties was disputed between CLT and the Manotoks, while the other set was disputed between Araneta and the Heirs of Dimson.

As can be gleaned from the Report, Jose Dimson was able to obtain an order in 1977 issued by Judge Marcelino Sayo of the Court of First Instance (CFI) of Caloocan City on the basis of which he was able to register in his name properties belonging to the Maysilo Estate. Judge Sayos order in turn was sourced from a 1966 Order issued by Judge (later Supreme Court Associate Justice) Cecilia Muoz-Palma of the CFI of Rizal. Dimsons titles reflected, as their mother title, OCT No. 994 dated 19 April 1917.[10] Among these properties was a fifty (50)-hectare property covered by Transfer Certificate of Title (TCT) No. 151169, which apparently overlapped with the property of Araneta covered by TCT No. 13574 and 26538.[11] Araneta was then and still is in possession of the property. The Araneta titles state, as their mother title, OCT No. 994 dated 3 May 1917. Consequently, Dimson filed an action for recovery of possession against Araneta.

Another property in Dimsons name, apparently taken from Lot 26 of the Maysilo Estate, was later sold to Estelita Hipolito, who in turn sold the same to CLT. Said property was registered by CLT under TCT No. T-177013, which also reflected, as its mother title, OCT No. 994 dated 19

Manotok Realty vs CLT

April 1917.[12] Said property claimed by CLT encroached on property covered by titles in the name of the Manotoks. The Manotoks traced their titles to TCT Nos. 4210 and 4211, both issued in 1918 and both reflecting, as their mother title, OCT No. 994 dated 3 May 1917.

It is evident that both the Heirs of Dimson and CLT had primarily relied on the validity of OCT No. 994 dated 19 April 1917 as the basis of their claim of ownership. However, the Court in its 2007 Resolution held that OCT No. 994 dated 19 April 1917 was inexistent. The proceedings before the Special Division afforded the Heirs of Dimson and CLT alike the opportunity to prove the validity of their respective claims to title based on evidence other than claims to title the inexistent 19 April 1917 OCT No. 994. Just as much was observed by the Special Division:

Nonetheless, while the respective certificates of title of DIMSON and CLT refer to OCT 994 issued on 19 April 1917 and that their previous postulations in the present controversies had been anchored on the supposed validity of their titles, that which emanated from OCT 994 of 19 April 1917, and conversely the invalidity of the 3 May 1917 OCT 994, the Supreme Court has yet again allowed them to substantiate their claims on the basis of other evidentiary proofs:

Manotok Realty vs CLT

Otherwise stated, both DIMSON and CLT bear the onus of proving in this special proceedings, by way of the evidence already presented before and such other forms of evidence that are not yet of record, that either there had only been an error in the course of the transcription or registration of their derivative titles, or that other factual and legal bases existed to validate or substantiate their titles aside from the OCT No. 994 issued on 19 April 1917.[13]

Were they able to discharge such burden?

A.

We begin with the Heirs of Dimson. The Special Division made it clear that the Heirs of Dimson were heavily reliant on the OCT No. 994 dated 19 April 1917.

*DIMSON+, on the strength of Judge Sayos Order dated 18 October dated 18 October 1977, was issued separate certificates of title, i.e., TCT Nos. 15166, 15167, 15168 and 15169, covering portions of the Maysilo Estate. Pertinently, with respect to TCT No. 15169 of DIMSON, which covers Lot 25-A-2 of the said estate, the following were inscribed on the face of the instrument.

IT IS FURTHER CERTIFIED that said land was originally registered on the 19th day of April in the year nineteen hundred and seventeen in the Registration Book of the Office of the Register of Deeds of Rizal, Volume NA page NA , as Original Certificate of Title No. 994 pursuant to Decree No. 36455 issued in L.R.C. Case No. 4429 Record No. ______

This Certificate is a transfer from Original Certificate of Title No. 994/NA, which is cancelled by virtue hereof in so far as the above-described land is concerned.[[14]]

Manotok Realty vs CLT

From the above accounts, it is clear that the mother title of TCT no. 15169, the certificate of title of DIMSON covering the now disputed Lot 25-A-2, is OCT No. 994 registered on 19 April 1917. Manifestly, the certificate of title issued to DIMSON, and as a matter of course, the derivative title later issued to CLT, should both be voided inasmuch as the OCT which they emanated had already been declared inexistent.[15]

The Special Division noted that the Heirs of Dimson did not offer any explanation why their titles reflect the erroneous date of 19 April 1917. At the same time, it rejected CLTs explanation that the transcription of the erroneous date was a typographical error.

As can be gleaned from the records, both DIMSON and their successor-in-interest CLT, had failed to present evidence before this Court to prove that there had been a mere typographical error in the transcription of their respective titles with regard to the date of registration of OCT No. 994. CLT specifically harps on this assertion that there had only been a typographical error in the transcription of its title.[[16]] On the other hand, while DIMSON had refused to categorically assert that there had been such a typographical error causing the invalidity of their title, their failure to proffer any reason or argument which would otherwise justify why their title reflects 19 April 1917 and not 3 May 1917 leads this Court to conclude that they simply had no basis to support their proprietary claim.

Thus, without proffering any plausible explanation as to what led to the erroneous entry of the registration dated of OCT 994, DIMSON are left without any recourse but to substantiate their claim on the basis of other evidence not presented during the proceedings below, which would effectively prove that they had a valid proprietary claim over the disputed properties. This is specifically true because DIMSON had previously placed reliance on the MWSS doctrine to prove the validity of their title.[17]

Manotok Realty vs CLT

Absent such explanation, the Heirs of Dimson were particularly constrained to rely on the 1977 Order of Judge Sayo, which was allegedly sourced from the 1966 Order of Judge Muoz Palma. On that issue, the Special Division made the following determinations:

It should be recalled that in their appellees brief in CA-G.R.CV No. 41883, therein appellee Jose Dimson specifically denied the falsity of TCT No. R-15169 alleging that the contention is already moot and can be determined by a controlling decision.*[18]] Jose Dimson expounded on his reliance as follows:

In Metropolitan Waterworks & Sewerage System (for brevity MWSS) case, Jose B. Dimsons (as private respondent) title TCT No. 15167 issued for Lot 28 on June 8, 1978 derived from OCT No. 994 registered on April 19, 1917, is overlapping with MWSS title TCT No. 41028 issued on July 29, 1940 derived from the same OCT 994, registered on May 3, 1917.

(Same facts in the case at bar; Jose B. Dimson (plaintiff-appellee) title TCT No. R15169 issued for Lot 25-A-2, on June 8, 1978, is overlapping with defendant-appellants title TCT Nos. 13574 and 21343, not derived from OCT No. 994.[[19]]

So viewed, sans any proof of a mechanical error in the transcription or annotation on their respective certificates of title, the present inquiry then hinges on whether the Order dated 13 June 1966 issued by then Judge Cecilia Muoz-Palma of the Court of First Instance of Rizal in Civil Case No. 4557 *PALMA ORDER+ and Judge Sayos Order dated 18 October 1977 *SAYOS 18 OCTOBER 1977 ORDER+, can be validated and authenticated. It is so since the brunt of the proprietary claims of both DIMSON and CLT has its roots on said Orders.

Perforce, in consideration of the foregoing, this leads Us to the THIRD ISSUE as presented by the Supreme Court, to wit:

Manotok Realty vs CLT

Whether the factual and legal bases of Palmas 13 June 1966 Order and Sayos 18 October 1977 Order are true and valid. Assuming they are, do these orders establish a superior right to the subject properties in favor of the Dimsons and CLT as opposed to the claims of Araneta and the Manotoks?

As it is, in contending that their certificates of title could be validly traced from the 3 May 1917 OCT No. 994, DIMSON point out that their title was issued pursuant to a court order issued by Judge Palma in Case No. 4557 and entered in the memorandum of Encumbrance of OCT No. 994. DIMSON also insist that TCT Nos. 8692, 21857 and 26538 were mere microfilmed or certified copies and, therefore, inadmissible. Lastly, DIMSON reiterated the flaws and irregularities which voided the titles of the ARANETA in the previous proceedings and focused on the burden of ARANETA to present evidence to defeat their titles.

The foregoing contentions of DIMSON find to factual and legal basis. As we see it, Sayos 18 October 1977 Order, which apparently confirmed Palmas 13 June 1966 Order, raised serious questions as to the validity of the manner by which it was arrived at.

It is worthy to note that as early as 25 August 1981, counsel for the ARANETA applied for a subpoena duces tecum addressed to the Clerk of Court of CFI Pasig for the production of the records of LRC Case No. 4557 for purposes of determining the genuineness and authenticity of the signature of Judge Palma and also of her Order granting the confirmation. A certain Atty. Contreras, Officer-inCharge of the said court, appeared and manifested in open court that the records pertaining to the petition for Substitution of names of Bartolome Rivera, et al. could no longer be located inasmuch as they had passed hands from one court to another.

What is perplexing to this Court is not only the loss of the entire records of Case No. 4557 but the admission of Judge Sayo that he had not seen the original of the Palma Order. Neither was the signature of Judge Palma on the Order duly proven because all that was presented was an unsigned duplicate copy with a stamped notation of original signed. Equally perplexing is that while CFI Pasig had a Case No. 4557 on file, said file pertained not to an LRC case but to a simple civil case.[[20]] Thus:

Atty. Directo:

Manotok Realty vs CLT The purpose of this subpoena duces tecum is to present your Honor the Order Order (sic) of Judge Palma in order to determine the genuineness and authenticity of the signature of Judge Palma in this court order and which order was a basis of a petition in this court to be confirmed. That is the reason why we want to see the genuineness of the signature of Judge Palma.

COURT:

No signature of Judge Palma was presented in this court. it was a duplicate copy not signed. There is a stamp only of original signed.

Atty. Directo:

That is the reason why we want to see the original.

Court:

I did not see the original also. When the records of this case was brought here, I checked the records, there were so many pages missing and the pages were re-numbered but then I saw the duplicate original and there is a certification of a woman clerk of Court, Atty. Molo.

Atty. Directo: That is the reason why we want to see this document, we are surprised why it is missing.

Court:

We are surprised also. You better ask Judge Muoz Palma.

Manotok Realty vs CLT

Atty. Contreras:

May I make of record that in verifying our records, we found in our original vault LRC application no. N-4557 but the applications were certain Feliciano Manuel and Maria Leao involving Navotas property because I was wondering why they have the same number. There should be only one.

Atty. Directo:

Aside from that, are there other cases of the same number?

Atty. Contreras:

No, there should be only number for a particular case; that must be a petition after decree record.

Atty. Ignacio:

This 4557 is not an LRC Case, it is a simple civil case. x x x x x x

Moreover, both the MANOTOKS and ARANETA insist that Palmas 13 June 1966 Order had been recalled by a subsequent Order dated 16 August 1966, *RECALL ORDER+,*[21]] wherein the trial court dismissed the motion filed by DIMSON on the courts findings that x x x whatever portion of the property covered by OCT 994 which has not been disposed of by the previous registered owners have

Manotok Realty vs CLT already been assigned and adjudicated to Bartolome Rivera and his assignees, as a result of which there is no portion that is left to be given to the herein supposed assignee Jose Dimson.

However, We are reluctant to recognize the existence and due execution of the Recall Order considering that its original or even a certified true copy thereof had not been submitted by either of the two parties relying on it despite having been given numerous opportunities to do so.

Be that as it may, even if We are to consider that no Recall Order was ever issued by then Judge Palma, the validity of the DIMSON titles over the properties in the Maysilo Estate becomes doubtful in light of the fact that the supposed share went beyond what was actually due to Jose Dimson under the Compromise Agreement with Rivera. It should be recalled that Palmas 13 June 1966 Order approved only the conveyance to Jose Dimson of 25% of whatever share of Bartolome Rivera has over Lots 25, 26, 27, 28-B and 29 of OCT 994 x x x subject to availability of undisposed portion of the said lots.*[22]]

In relation to this, We find it significant to note the observations contained in the Senate Committee Report No. 1031 that, based on the assumption that the value of the lots were equal, and (C)onsidering that the share of Maria de la Concepcion Vidal was only 1-189/1000 percent of the Maysilo Estate, the Riveras who claimed to be the surviving heirs of Vidal will inherit only 197, 405.26 square meters (16,602,629.53 m2 x 1.1890%) or 19.7 hectares as their share.[[23]] Even if we are to base the 25% of Jose Dimson on the 19.7 hectares allotted to the Riveras, it would appear that Jose Dimson would only be entitled to more or less five (5)hectares of the Maysilo Estate. Obviously, basing only on TCT No. 15169 of Dimson which covered a land area of 50 hectares (500,000 square meters),[ [24]] it is undisputable that the total properties eventually transferred to Jose Dimson went over and beyond his supposed 25% share.

What is more, Palmas 13 June 1966 Order specifically required that x x x whatever title is to be issued herein in favor of Jose Dimson, the same shall be based on a subdivision plan duly certified by the Land Registration Commission as correct and in accordance with previous orders issued in this proceedings, said plan to be submitted to this court for final approval.

Manotok Realty vs CLT

Interestingly however, despite such requirement, DIMSON did not submit Survey Plan LRC (GLRO) Rec. No. 4429 SWO-5268 which allegedly was the basis of the segregation of the lands, if only to prove that the same had been duly approved and certified correct by the Land Registration Commission. What was submitted before the RTC and this Court was only the Subdivision Plan of Lot 25-A-2 which notably does not bear the stamp of approval of the LRC. Even an inspection of the exhibit for CLT does not bear this Survey Plan, which could have, at the very least, proven the authenticity of the DIMSON title.

Indeed, We find the absence of this piece of evidence as crucial in proving the validity of the titles of DIMSON in view of the allegation of contending parties that since the survey plan upon which the land titles were based contained the notation SWO, meaning that the subdivision plan was only a product of a special work order, the same could not have passed the LRC. Neither was it duly certified by the said office.[25]

In addition, the Special Division took note of other irregularities attending Dimsons TCT No. R-15169.

[Firstly], OCT No. 994 showed that Lot 25-A of the Maysilo Estate was originally surveyed on September 8-27, 1911, October 4-21 and November 17-18, 1911. Yet, in said TCT No. R-15169, the date of the original survey is reflected as Sept. 8-27, 1911 and nothing more.*[26]] The variation in date is revealing considering that DIMSONs titles are all direct transfers from OCT No. 994 and, as such, would have faithfully adopted the mother lots data. Unfortunately, no explanation for the variance was ever offered.

Equally worthy of consideration is the fact that TCT No. 15169 indicates that not only was the date of original registration inexistent, but the remarks thereon tend to prove that OCT No. 994 had not been presented prior to the issuance of the said transfer certificate. This manifest from the notations NA on the face of DIMSONs title meaning, not available. It bears emphasizing that the issuance of a transfer certificate of title to the purchaser without the production of the owners duplicate is illegal (Rodriguez v. Llorente, 49 Phil. 826) and does not confer any right to the purchaser (Philippine National Bank vs. Fernandez, 61 Phil. 448 [1935]). The Registrar of Deeds must, therefore, deny registration of any deed or voluntary instrument if the owners duplicate is not presented in connection therewith. (Director of Lands vs. Addison, 40 Phil. 19 [1926]; Hodges vs. Treasurer of the Phil. 50 Phil. 16 [1927].[[27]]

Manotok Realty vs CLT

In has also been held that, in cases where transfer certificates of title emanating from one common original certificate of title were issued on different dates to different persons or entities covering the same land, it would be safe to conclude that the transfer certificate issued at an earlier date along the line should prevail, barring anomaly in the process of registration.[[28]] Thus, (w)here two certificates purport to include the same land, the earlier in date prevails. X x x. In successive registration, where more than one certificate is issued in respect of a particular estate or interest in land, the person is deemed to hold under the prior certificate who is the holder or whose claim is derived directly from the person who was the holder of the earliest certificate issued in respect thereof. x x x[[29]]

xxx Still another indication of irregularity of the DIMSON title over Lot No. 25-A is that the issuance of the Sayo Order allegedly confirming the Palma Order was in itself suspect. Gleaning from the records, DIMSON filed the Motion only on 10 October 1977, or eleven (11) years after obtaining the supposed sanction for the issuance of titles in this name. Besides, what was lodged by Jose Dimson before the sala of then Judge Palma was not a simple land registration case wherein the only purpose of Jose Dimson was to establish his ownership over the subject parcels of land, but, as reflected in the Palma Order, the subject of the case was the confirmation of Jose Dimsons claim over the purported rights of Rivera in the disputed properties. The case did not partake of the nature of a registration proceeding and thus, evidently did not observe the requirements in land registration cases. Unlike in a land registration case, therefore, Jose Dimson needed to file an action before Judge Sayo to seek confirmation of Palmas Order dated 13 June 1966.

So viewed the general rule proscribing the application of laches or the statute of limitations in land registration cases,[[30]] as well as Section 6, Rule 39 of the Rules of Court, in relation to its provisions on revival of judgment applies only to ordinary civil actions and not to other or extraordinary proceedings such as land registration cases, is clearly not applicable in the present case. The legal consequences of laches as committed by DIMSON and their failure to observe the provisions of Rule 39 should, therefore, find application in this case and thus, the confirmation of DIMSONs title, if any, should fail.

Parenthetically, the allegations of DIMSON would further show that they derive the validity of their certificates of title from the decreased Jose Dimsons 25% share in the alleged hereditary rights of Bartolome Rivera *RIVERA+ as an alleged grandson of Maria Concepcion Vidal *VIDAL+. However, the

Manotok Realty vs CLT records of these cases would somehow negate the Vidal. The Verification Report of the Land Registration

rights

of

Rivera

to

claim

from

Commission dated 3 August 1981 showed that Rivera was 65 years old on 17 May 1963 (as gathered from the records of Civil Case Nos. 4429 and 4496).[[31]] It can thus be deduced that, if Rivera was already 65 years old in 1963, then he must have been born around 1898. On the other hand, Vidal was only nine (9) years in 1912; hence, she could have been born only on 1905. This alone creates an unexplained anomalous, if not ridiculous, situation wherein Vidal, Riveras alleged grandmother, was seven (7) years younger than her alleged grandson. Serious doubts existed as to whether Rivera was in fact an heir of Vidal, for him to claim a share in the disputed portions of the Maysilo Estate.[32]

These findings are consonant with the observations raised by Justice Renato Corona in his Concurring and Dissenting Opinion on our 2007 Resolution. To wit:

TCT No. T-177013 covers Lot 26 of the Maysilo Estate with an area of 891,547.43 sq. m. It was a transfer from TCT No. R-17994 issued in the name of Estelita I. Hipolito. On the other hand, TCT No. R17994 was a transfer from TCT No. R-15166 in the name of Jose B. Dimson which, in turn, was supposedly a direct transfer from OCT No. 994 registered on April 19, 1917.

Annotations at the back of Hipolito's title revealed that Hipolito acquired ownership by virtue of a court order dated October 18, 1977 approving the compromise agreement which admitted the sale made by Dimson in her favor on September 2, 1976. Dimson supposedly acquired ownership by virtue of the order dated June 13, 1966 of the CFI of Rizal, Branch 1 in Civil Case No. 4557 awarding him, as his attorney's fees, 25% of whatever remained of Lots 25-A, 26, 27, 28 and 29 that were undisposed of in the intestate estate of the decedent Maria de la Concepcion Vidal, one of the registered owners of the properties covered by OCT No. 994. This order was confirmed by the CFI of Caloocan in a decision dated October 13, 1977 and order dated October 18, 1977 in SP Case No. C-732.

However, an examination of the annotation on OCT No. 994, particularly the following entries, showed:

AP-6665/0-994 Venta: Queda cancelado el presente Certificado en cuanto a una extencion superficial de 3,052.93 metros cuadrados y 16,512.50 metros cuadrados, y descrita en el lote no. 26, vendida a favor de Alejandro Ruiz y Mariano P Leuterio, el primer casado con Deogracias Quinones el Segundo con Josefa Garcia y se ha expedido el certificado de Titulo No; 4210, pagina 163 Libro T-22.

Manotok Realty vs CLT

Fecha del instrumento Agosto 29, 1918

Fecha de la inscripcion September 9, 1918 10.50 AM

AP-6665/0-994 Venta: Queda cancelado el presente Certficado el cuanto a una extencion superficial de 871,982.00 metros cuadrados, descrita en el lote no. 26, vendida a favor de Alejandro Ruiz y Mariano P. Leuterio, el primer casado con Deogracias Quinones el segundo con Josefa Garcia y se ha expedido el certificado de Titulo No 4211, pagina 164, Libro T-22.

Fecha del instrumento Agosto 25, 1918

Fecha de la inscripcion September 9, 1918

10:50- AM

Based on the description of Lot No. 26 in OCT No. 994, it has an area of 891,547.43 sq. m. which corresponds to the total area sold in 1918 pursuant to the above-cited entries. Inasmuch as, at the time the order of the CFI of Rizal was made on June 13, 1966, no portion of Lot No. 26 remained undisposed of, there was nothing for the heirs of Maria de la Concepcion Vidal to convey to Dimson. Consequently, Dimson had nothing to convey to Hipolito who, by logic, could not transmit anything to CLT.

Moreover, subdivision plan Psd-288152 covering Lot No. 26 of the Maysilo Estate described in Hipolito's certificate of title was not approved by the chief of the Registered Land Division as it appeared to be entirely within Pcs-1828, Psd-5079, Psd-5080 and Psd-15345 of TCT Nos. 4210 and 4211. How Hipolito was able to secure TCT No. R-17994 was therefore perplexing, to say the least.

Manotok Realty vs CLT

All these significant facts were conveniently brushed aside by the trial and appellate courts. The circumstances called for the need to preserve and protect the integrity of the Torrens system. However, the trial and appellate courts simply disregarded them.[33]

The Court thus adopts these findings of the Special Division on the validity of Jose Dimsons titles, which he obtained consequent to the 1977 Order of Judge Sayo. Consequently, we cannot give due legal recognition to any and all titles supposedly covering the Maysilo Estate obtained by Dimson upon the authority of either the purported 1966 Order of Judge Muoz-Palma or the 1977 Order of Judge Sayo.

B. Indubitably, as between the titles of ARANETA and the MANOTOKS and their predecessorsin-interest, on one hand, and those of DIMSON, on the other, the titles held by ARANETA and the MANOTOKS must prevail considering that their titles were issued much earlier than the titles of the latter.

Manotok Realty vs CLT

Our findings regarding the titles of Jose Dimson necessarily affect and even invalidate the claims of all persons who seek to derive ownership from the Dimson titles. These include CLT, which acquired the properties they laid claim on from Estelita Hipolito who in turn acquired the same from Jose Dimson. Just as much was concluded by the Special Division as it evaluated CLTs claims.

For its part, CLT contended that even at the trial court level, it maintained that there was only one OCT No. 994 from where its claim emanates. It argued that its case against the MANOTOKS, including that of STO. NIO, was never decided based on the doctrines laid down in Metropolitan Waterworks and Sewerage System v. Court of Appeals[[34]] and Heirs of Gonzaga v. Court of Appeals.[[35]]

Before this Special Division, CLT insists that the MANOTOKS failed to submit new competent evidence and, therefore, dwelling on the alleged flaws of the MANOTOKs titles, the findings and conclusions of the court-appointed commissioners as adopted by the trial court, then upheld by the Honorable Court in its Decision dated 28 September 1995 and finally affirmed in the Supreme Courts Decision dated 29 November 2005, therefore stand, as there is no reason to disturb them.

Furthermore, CLT contends that the Orders of Judge Palma and Judge Sayo are no longer open to attack in view of their finality. Lastly, CLT asserts that the properties covere d by the MANOTOKS titles and those covered by the expropriation proceedings did not property pertain to and were different from Lot 26 owned by CLT. Thus, it maintains that the MANOTOKS cannot use as basis for the validity of their titles the expropriation undertaken by the Government as a means of staking their claims.

Manotok Realty vs CLT To restate, CLT claims the 891,547.43 square meters of land covered by TCT No. T-177013[[36]] located in Malabon, Caloocan City and designated as Lot 26, Maysilo Estate, LRC Swo-5268. TCT No. T177013 shows that its mother titles is OCT No. 994 registered on 19 April 1917. Tracing said claim, Estelita Hipoloto executed a Deed of Sale with Real Estate Mortgage in favor of CLT on 10 December 1988. By virtue of this transfer, Hipolitos TCT No. R-17994[[37]] was cancelled and in lieu thereof, CLTs TCT No. 223677/R-17994 of TCT No. R-17994. Hipolito, on the other hand, was a transferee of the deceased Dimson who was allegedly the registered owner of the subject land on the basis of TCT No. 15166.

In view of the foregoing disquisitions, invalidating the titles of DIMSON, the title of CLT should also be declared a nullity inasmuch as the nullity of the titles of DIMSON necessarily upended CLTs propriety claims. As earlier highlighted, CLT had anchored its claim on the strength of Hipolitos title and that of DIMSONs TCT No. 15166. Remarkably and curiously though, TCT No. 15166 was never presented in evidence for purposes of tracing the validity of titles of CLT. On this basis alone, the present remand proceedings remain damning to CLTs claim of ownership.

Moreover, considering that the land title of CLT carried annotations identical to those of DIMSON and consequently included the defects in DIMSONs title, the fact that whatever typographical errors were not at anytime cured by subsequent compliance with the administrative requirements or subjected to administrative correction bolsters the invalidity of the CLT title due to its complete and sole dependence on the void DIMSON title.[38]

IV.

The task of the Special Division was not limited to assessing the claims of the Heirs of Dimson and CLT. We likewise tasked the Special Division to ascertain as well the validity of the titles held by the Manotoks and Araneta, titles which had been annulled by the courts below. Facially, these titles of the Manotoks and Araneta reflect, as their valid mother title, OCT No. 994 dated 3 May 1917. Nonetheless, particular issues were raised as to the validity of the Manotok and Araneta titles independent of their reliance on the 3 May 1917 OCT No. 994 vis-vis the inexistent 19 April 1917 OCT No. 994.

A.

Manotok Realty vs CLT

We begin by evaluating the Araneta titles. The Special Division quoted the observations of the trial court, which upheld Dimsons claim over that of Araneta, citing the following perceived flaws of TCT Nos. 26538 and 26539, from which Araneta derived its titles, thus:

Let us now examine TCT 26538 and TCT 26539 both in the name of Jose Ma. Rato from where defendant was said to have acquired TCT 13574 and TCT 7784 now TCT 21343 in the name of Araneta and the other documents related thereto:

1) Perusal of TCT 26538 shows that its Decree No. and Record No. are both 4429. In the same vein, TCT 26539 also shows that it has Decree No. 4429 and Record No. 4429.

However, Decree No. 4429 was issued by the Court of First Instance, Province of Isabela (Exhibit I) and Record No. 4429, issued for Ordinary Land Registration Case, was issued on March 31, 1911 in CLR No. 5898, Laguna (Exhibit 8, 8-A Bartolome Rivera et al.)

How then could TCT No. 26538 and TCT No. 26539 both have Decree No. 4429 and Record No. 4429, which were issued in Court of First Instance,Province of Isabela and issued in Laguna, respectively.

2) TCT no. 26538 and TCT No. 26539 in the name of Jose Ma. Rato are not annotated in the Original Certificate of Title 994, where they were said to have originated.

3) The Escritura de Incorporacion de Philippine Land Improvement Company (Exhibit I) executed on April 8, 1925 was only registered and was stamped received by the Office of the Securities and Exchange Commission only April 29, 1953 when the Deed of Sale & Mortgage was executed on August 23, 1947 (Exh. 5 defendant) and the Novation of Contract, Deed of Sale and Mortgage executed on November 13, 1947 (Exh. M0. So, that when Philippine Land Improvement was allegedly given a special power of attorney by Jose Ma. Rato to represent him in the execution of the said two (2) documents, the said Philippine Land Improvement Company has not yet been duly registered.

4) TCT 26538 and 26538 and TCT 26539 both in the name of Jose Ma. Rato, both cancel 21857 which was never presented in Court if only to have a clear tracing back of the titles of defendant Araneta.

Manotok Realty vs CLT

5) If the subject matter of the Deed of Sale & Mortgage (Exhibit 5 defendant) is TCT 26539, why is it that TCT 13574 of defendant Araneta cancels TCT 6196 instead of TCT 26539. That was never explained. TCT 6196 was not even presented in Court.

6) How come TCT 26538 of Jose Ma. Rato with an area of 593,606.90 was cancelled by TCT 7784 with an area of only 390,282 sq.m.

7) How was defendant Araneta able to have TCT 7784 issued in its name, when the registration of the document entitled Novation of Contract, Deed of Sale & Mortgage (Exhibit M) was suspended/denied (Exhibit N) and no title was received by the Register of Deeds of Pasig at the time the said document was filed in the said Office on March 4, 1948 (Exhibit N and N-1).

Under Sec. 55 of Land Registration Act (Act No. 496) now Sec. 53 of Presidential Decree No. 1529, no new certificate of title shall be entered, no memorandum shall be made upon any certificate of title by the register of deeds, in pursuance of any deed or other voluntary instrument, unless the owners duplicate certificate is presented for such endorsement.

8) The sale by Jose Ma. Rato in favor of defendant Araneta is not reflected on the Memorandum of Encumbrances of TCT 26538 (Exhibit 7-defendant) meaning that TCT 26538 still exists and intact except for the encumbrances annotated in the Memorandum of Encumbrances affecting the said title (Exhibits 16, 16-A and 16-N David & Santos)

9) In the encumbrances annotated at the back of TCT 26539 (Exhibit 4-defendant) there appears under entry No. 450 T 6196 Victoneta, Incorporated covering parcel of land canceling said title (TCT 26539) and TCT 6196 was issued ( x x x) which could have referred to the Deed (sic) of Sale and Mortgage of 8-23-47 (Exhibit 5-defendant) entered before Entry 5170 T-8692 Convenio Philippine Land Improvement Company, with Date of Instrument: 1-10-29, and Date of Inscription: 9-21-29.

In TCT 26838 this Entry 5170 T-8692 Convenio Philippine Land Improvement Company (Exhibit 16-J-1) appears, but the document, Novation of Contract, Deed of Sale & Mortgage dated November 13, 1947 (Exhibit M) does not appear.

Manotok Realty vs CLT Entry marked Exhibit 16-J-1 on TCT 26538 shows only the extent of the value of P42,000.00 invested by Jose Ma. Rato in the Philippine Land Improvement Company. Said entry was also entered on TCT 26539.

The Court also wonders why it would seem that all the documents presented by defendant Araneta are not in possession of said defendant, for according to witness Zacarias Quintan, the real estate officer of the said defendant Araneta since 1970, his knowledge of the land now in possession of defendant Araneta was acquired by him from all its documents marked in evidence which were obtained only lately when they needed for presentation before this Court.[[39]][40]

The Special Division then proceeded to analyze these factual contentions, and ultimately concluded that the Araneta claim to title was wholly valid. We adopt in full the following factual findings of the Special Division, thus:

As for the proprietary claim of ARANETA, it maintains that it has established by direct evidence that its titles were validly derived from OCT No. 994 dated 3 May 1917. With regard to the imputed flaws, it asseverates that these were unfounded and thus, labored to refute all of them. ARANETA further expounded on the nullity of the Palma and Sayo Orders which was the basis of DIMSONs titles.

The documentary exhibits it proffered traced its certificates of title to OCT No. 994 registered on 3 May 1917. From the titles submitted, its predecessor-in-interest was Jose Ma. Rato y Tuazon *RATO+, one of the co-heirs named in OCT No. 994, who was allotted the share of nine and five hundred twelve one thousandths (9-512/1000) percent share of the Maysilo Estate.[[41]] For this reason, to ascertain the legitimacy of the derivative title of ARANETA, the origin and authenticity of the title of RATO need to be reassessed.

Verily, attesting to RATOs share on the property, Entry No. 12343/O-994 of the Owners Duplicate Copy of OCT no. 994, records the following:

12343/O-994 Auto: Jose Rato y Tuason - - - Queda cancelado el presente seartificado en cuanto a una estension superficial de 1,405,725.90 metro Cuadrados mas

Manotok Realty vs CLT o menos descrita en el Lote No. 25-A-3, an virtud del auto dictado por el Juzgado de Primera Instancia de Riza, de fecha 28 de Julio de 1924, y que en au lugar se had expedido el Certificados de Titulo No. 8692, folio 492 del Tomo T-35 del Libro de Certicadads de Transferencia.

Date of Instrument Julio 28, 1924.

Date of Inscription Agosto 1, 1024 10:19 a.m.

SGD. GLICERIO OPINION, Register of deeds Agosto 19, 1924[[42]]

In accordance with the decree, RATO was issued on 1 August 1924, TCT No. 8692[[43]] which covers Lote No. 25 A-3 del plano del subdivision, parte del Lote No. 25-A, plano Psu-(not legible), Hacienda de Maysilo, situado en el Munisipio de Caloocan, Provincia del Rizal x x x.[[44]] The parcel of land covers an approximate area of UN MILLION CUATROCIENTOS CINCO MIL SETECIENTOS VEINTICINCO metros cuadrados con NOVENTA decimetros cuadrados (1,405,725.90) mas o menos. As reflected under Entry No. 14517.T-8692,[[45]] the parcel of land covered under this certificate of title was subdivided into five (5) lots under subdivision plan Psd-6599 as per Order of the court of First Instance of Rizal. Consequently, TCT Nos. 21855, 21856, 21857, 21858 and 21859 were issued.

Focusing on TCT No. 21857 issued on 23 May 1932, this certificate of title issued in RATOs name,[ ] cancelled TCT No. 8692[[47]] with respect to the property it covers. On its face, TCT No. 21857,[[48]] was a derivative of OCT No. 994 registered on 3 May 1917. It covers Lot No. 25 A-3-C of subdivision plan Psd-6589, being a portion of Lot No. 25-A-3, G.L.R.O Record No. 4429. Thereafter, TCT No. 21857 was cancelled by TCT No. 26538[[49]] and TCT No. 26539[[50]] which were both issued in the name of Jose Ma. Rato y Tuazon on 17 September 1934.
[46]

With respect to TCT No. 26539, the certificate of title showed that it covered a parcel of land designated as Section No. 2 of the subdivision plan Psd-10114, being a portion of Lot 25-A-3-C having an approximate area of 581,872 square meters.[[51]] Thereafter, TCT No. 26539 was cancelled by TCT No. 6196[[52]] whose registered owner appears to be a certain Victoneta, Inc. This parcel of land has an area of 581,872 square meters designated as section No. 2 of subdivision plan Psd-10114, being a portion of Lot 25-A-3-C.

Manotok Realty vs CLT As shown on its face, TCT No. 6196 issued on 18 October 1947 in the name of Victoneta, Inc. and its mother title were traced from OCT No. 994 registered on 3 May 1917. Later, TCT No. 6196 was cancelled, and in lieu thereof, TCT No. 13574 was issued in favor of Araneta Institute of Agriculture on 20 May 1949.[[53]] It covers a parcel of land designated as section No. 2 of subdivision plan Psd-10114, being a portion of Lot 25-A-3-C. It has an aggregate area of 581,872 square meters.

On the other hand, appearing under Entry No. 16086/T-No. 13574 of TCT No. 6196 is the following:

Entry No. 16086/T-No. 13574 SALE in favor of the ARANETA INSTITUTE OF AGRICULTURE, vendee: Conveying the property described in this certificate of title which is hereby cancelled and issuing in lieu thereof Transfer Certificate of Title No. 13574, page 74, Book T-345 in the name of the vendee. (Doc. No. 149, page 98, Book II, S. of 1949 of Notary Public for Manila, Hospicio B. Bias).

Date of Instrument May 18, 1949 Date of the Inscription May 30, 1949 at 11:00 a.m.[[54]]

TCT No. 26538[[55]] in turn showed on its face that it covers a parcel of land designated as Section 1 of subdivision plan Psd-10114 being a portion of Lot 25-A-3-C having an area of 592,606.90 square meters.[[56]]

On 4 March 1948, TCT No. 26538 was cancelled by TCT No. 7784, which was issued in favor of Araneta Institute of Agriculture. TCT No. 7784 covers four (4) parcels of land with an aggregate area of 390,282 square meters.[[57]] It would appear from the records of CA-G.R. SP No. 34819 consolidated with CA-G.R. CV No. 41883 that TCT No. 7784 was eventually cancelled by TCT No. 21343.[[58]] As per attachment of ARANETA in its Answer dated 6 march 1980 filed in Civil Case No. 8050, a mere copy of TCT No. 21343 showed that it covers a parcel of land designated as Lot 6-B of the subdivision plan Psd-24962 being a portion of Lot 6, described as plan Psd-21943, G.L.R.O. Record No. 4429 with an approximate area of 333,377 square meters.[[59]] However, for reasons unknown, a copy of TCT No. 21343, whether original or certified true copy thereof, was not submitted before this Court.

Manotok Realty vs CLT In summation, ARANETA had shown that RATO, as one of the co-owners of the property covered by OCT NO. 994, was assigned Lot No. 25-A-3. His evidence of ownership is reflected on TCT No. 8692 issued in his name. RATO held title to these parcels of land even after its subdivision in the 1930s. Further subdividing the property, RATO was again issued TCT No. 21857, and later TCT Nos. 26538 and 26539, still covering Lot No. 25 A-3-C. In all his certificates of title, including those that ultimately passed ownership to ARANETA, the designation of the lot as either belonging to or portions of Lot 25-A-3 was retained, thereby proving identity of the land.

More importantly, the documentary trail of land titles showed that all of them were derived from OCT No. 994 registered on 3 May 1917. For purposes of tracing ARANETAs titles to Oct No. 994, it would appear that the evidence presented ultimately shows a direct link of TCT Nos. 7784 and 13574 to said mother title. Suffice it to state, the origin and legitimacy of the proprietary claim of ARANETA had been well substantiated by the evidence on record and on this note, said titles deserve validation.

Under the guidelines set, we shall now proceed to evaluate the imputed flaws which had been the previous bases of the trial court in invalidating ARANETAs titles.

One of the flaws observed on the titles of ARANETAs predecessor-in-interest was that TCT No. 26538 and TCT No. 26539 in Ratos name refer to Decree No. 4429 and Record No. 4429, as basis of their issuance. This is being questioned inasmuch as Decree No. 4429 refers to a decree issued by the CFI of Isabela while Record No. 4429 was issued for ordinary Land Registration Case No. 31 March 1911 in CLR No. 5898 of Laguna.

Explaining this discrepancy, ARANETA insisted that the same was a mere typographical error and did not have any effect on the validity of their title. It further contended that the number 4429 was the case number of Decree No. 36455 and was used interchangeably as the record number.

This Court finds that the incorrect entry with respect to the Decree and Record Number appearing on the title of ARANETAs predecessor-in-interest cannot, by itself, invalidate the titles of ARANETAs

Manotok Realty vs CLT predecessors-in-interest and ultimately, that of ARANETA. To the mind of this Court, the incorrect entries alluded to would not have the effect of rendering the previous titles void sans any strong showing of fraudulent or intentional wrongdoing on the part of the person making such entries. Fraud is never presumed but must be established by clear and convincing evidence.[[60]] The strongest suspicion cannot sway judgment or overcome the presumption of regularity. The sea of suspicion has no shore, and the court that embarks upon it is without rudder or compass.[[61]]

The Supreme Court, in Encinas v. National Bookstore, Inc.[[62]] acknowledged that certain defects on a certificate of title, specifically, the interchanging of numbers, may occur and it is certainly believable that such variance in the copying of entries could be merely a typographical or clerical error. In such cases, citing with approval the decision of the appellate court, the technical description in the title should prevail over the record number.[[63]]

Thus, what is of utmost importance is that the designation and the technical description of the land, as stated on the face of the title, had not been shown to be erroneous or otherwise inconsistent with the source of titles. In ARANETAs case, all the titles pertaining to Lot No. 25 had been verified to be an offshoot of Decree No. 36455 and are all located in Tinajeros, Malabon. At any rate, despite the incorrect entries on the title, the properties, covered by the subject certificates of title can still be determined with sufficient certainty.

It was also opined that TCT No. 26538 and TCT No. 26539 in the name of RATO had not been annotated on OCT No. 994 from which said titles had supposedly originated. It should be stressed that what partially cancelled OCT No. 994 with respect to this subject lot were not TCT Nos. 26538 and 26539 but TCT No. 8692 issued on1 August 1924. In fact, TCT Nos. 26538 and 26539 are not even the immediate predecessors of OCT No. 994 but were mere derivatives of TCT No. 21857. Logically therefore, these two certificates of title could not have been annotated on OCT No. 994, they not being the preceding titles.

In any case, a perusal of OCT No. 994 shows an entry, which pertains to Jose Ma. Rato but, on account of the physical condition of the copy submitted to this Court, the entry remains illegible for us to make a definite conclusion.[[64]] On the other hand, Entry No. 12343/O-994 found on the Owners Duplicate Copy of OCT No. 994 specifically recorded the issuance of TCT No. 8692 over Lot No. 25-A3.[[65]]

The other flaws noted on ARANETAs certificates of title pertained to its failure to present TCT Nos. 21857, 6196 and 21343. As we have discussed, ARANETA offered in evidence a certified microfilm copy of TCT No. 21857 and a certified true copy of TCT No. 6196 marked as Exhibits 5-A1A and 19-A1A, respectively. However, it failed to submit a copy of said TCT No. 21343. Be that as it may, we will not hasten to declare void TCT No. 7784 as a consequence of such omission, especially so since TCT

Manotok Realty vs CLT No. 21343 appears to be a mere derivative of TCT No. 7784. Given that the validity of TCT No. 7784 had been preponderantly proven in these proceedings, the authenticity of said title must be sustained. Besides, ARANETAs failure to submit TCT No. 21343 had never been put into issue in these proceedings.

With respect to the difference in the area of more than 200,0000 square meters between TCT No. 7784 and TCT No. 26538, we find that the trial court failed to consider the several conveyances of portions of TCT No. 26538 before they finally passed on to ARANETA. Thus, on the Memorandum of Encumbrance of TCT No. 26538, it is apparent that portions of this piece of land had been sold to various individuals before the same were transferred to ARANETA on 4 march 1948. Naturally, since the subject land had been partially cancelled with respect to the portion disposed of, it could not be expected that the area of TCT No. 26538 will remain the same at the time of its transfer to ARANETA. Even assuming that the entire area covered by TCT No. 26538 had been disposed of, this fact alone, cannot lend us to conclude that the conveyance was irregular. An anomaly exists if the area covered under the derivative title will be much more than its predecessor-in-interest. Evidently, this is not so in the case before us.

The trial court, relying on Exhibit N, further asserted that ARANETA should not have been issued TCT No. 7784 considering that the registration of the Novation of Contract, deed of Sale & Mortgage was suspended/denied and no title was received by the Register of Deeds of Pasig at the time the said document was filed in the said Office on march 4, 1948. A perusal of Exhibit N submitted before the trial court, shows that the suspension or denial was merely conditional considering that the person seeking registration had give days within which to correct the defects before final denial thereof. As we see it, the Notice merely contained a warning regarding the denial of the registration of the voluntary deed but, in no way, did it affect the vested rights of ARANETA to be land. The fact that the title to the land was subsequently issued free from any notation of the alluded defect creates a reasonable presumption that ARANETA was in fact able to comply with the condition imposed. This is especially true since the notice itself contained a note, Just Completed, written across the face of the letter.

Records also reveal the RTCs observation with regard to Aranetas failure to disprove the result of the plotting made on the subject land (Exhibit K) to the effect that TCT 26538 overlaps portion of TCT 15159 and TCT 26539 also overlaps the other portion of said TCT R-15169. The trial court further noted

Manotok Realty vs CLT that TCT R-15169 (Jose Dimson) and TCT 26539 (Jose Rato) and TCT 21343 (Araneta) are overlapping each other within Lot 25-A. That portion of TCT R-15169 (Jose Dimson) along bearing distance points to 17 to 18 to 19 to 20 to 21 to 1 and 2 shaded in yellow color in the Plan is not covered by TCT 21343 (Araneta).*[66]]

Scrutinizing Exhibit K, it becomes apparent that the said evidence relied upon was only a private survey conducted by Geodetic Engineer Reggie P. Garcia which had not been duly approved by the Bureau of Lands and was based only on photocopies of relevant land titles.[[67]] What is more, said geodetic engineer also failed to adequately explain his observations, approach and manner of plotting the relative positions of the lots.[[68]] From all indications, the conclusions reached by said geodetic engineer were anchored on unfounded generalizations.

Another defect cited on ARANETAs title was the absence of any entry on the Memorandum of Encumbrances of TCT No. 26538 of the alleged sale between RATO and ARANETA. As pointed out by ARANETA, the copy of TCT No. 26538 submitted to the trial court contained entries only up to the year 1947, thus, explaining the (1) lack of entry with regard to the issuance of TCT No. 7784 in favor of ARANETA considering that the same was issued a year later and; (2) entry pertaining to Convenio Philippine Land Improvement Company which was entered way back on 21 August 1929.

Nonetheless, it still cannot be denied that Rato and ARANETA together with Don Salvador Araneta, entered into a voluntary agreement with the intention of transferring the ownership of the subject property. Moreover, no conclusion should have been reached regarding the total cancellation of TCT No. 26538 inasmuch as TCT No. 7784 cancelled the former certificate of title to the extent only of Three Hundred Ninety Thousand Two Hundred Eighty Two (390,282) square meters.

Notably also, with the evident intent to discredit and refute the title of ARANETA, DIMSON submitted TCT Nos. 26538[[69]] and 21857,[[70]] which are both derivatives of OCT No. 994 registered on 3 May 1917 and cover parcels of land located in Malabon, Rizal. However, these certificates of title reflect different registered owners and designation of the land covered.

Pertinently, Exhibit M-Dimson relating to TCT No. 26538, registered on 12 June 1952, points to one Angela Bautista de Alvarez as the registered owner of a 240 square meter of land designated as Lot

Manotok Realty vs CLT No. 19, Block 14 of the subdivision plan Psd-5254 being a portion of Lot No. 7-A-1-A. This certificate of title cancels TCT No. 14112/T-348 and refers to a certain TCT No. 30473 on the inscriptions.

Exhibit N-Dimson, on the other hand, pertaining to TCT No. 21857 was issued on 30 March 1951 to one Angela I. Tuason de Perez married to Antonio Perez. This certificate of Title covers a parcel of land described as Lot No. 21, Block 16 of the consolidation and subdivision plan Pcs-140, G.L.R.O. Record No. 4429. It ahs an area of 436 square meters and cancels TCT No. 21856.

Exhibit Q-Dimson*[71]] consisting of TCT No. 8692 covers two parcels of land designated as Lot Nos. 1 and 2 of Block No. 44 of the consolidation Subdivision Plan Pcs-188 with a total area of 3,372 square meters. It was issued to Gregorio Araneta, Incorporated on 7 May 1948. This certificate of title cancelled TCT No. 46118.

Comparing these titles to those of the ARANETA, it is apparent that no identity of the land could be found. The Supreme Court, in the case of Alonso v. Cebu City Country Club, Inc.[[72]] agreeing with the Court of Appeals dissertation in said case, ruled that there is nothing fraudulent for a certificate of title to bear the same number as another title to another land. On this score, the Supreme Court elucidated as follows:

On the question that TCT No. RT-1310 (T-1151) bears the same number as another title to another land, we agree with the Court of Appeals that there is nothing fraudulent with the fact that Cebu Country Club, Inc.s reconstituted title bears the same number as the title of another parcel of land. This came about because under General Land Registration Office (GLRO) Circular No. 17, dated February 19, 1947, and Republic Act No. 26 and Circular No. 6, RD 3, dated August 5, 1946, which were in force at the time the title was reconstituted on July 26, 1946, the titles issued before the inauguration of the Philippine Republic were numbered consecutively and the titles issued after the inauguration were numbered also consecutively starting with No. 1, so that eventually, the titles issued before the inauguration were duplicated by titles issued after the inauguration of the Philippine Republic x x x.

Manotok Realty vs CLT

Parenthetically, in their Motion for Partial Reconsideration of this Courts Resolution dated 30 October 2008, DIMSON objected to the admissibility of Exhibits 4-A1A to 7-A1A on the ground that ARANETA failed to submit the original copies of these certificates of title and contended that the originals contain different contents from their own Exhibits M, N and Q.*[73]] The fact that the entries contained in ARANETAs pieces of evidence are different from that of DIMSONs do not automatically make ARANETAs exhibits inferior replications or a confirmation of their falsity. Interestingly, the objection regarding the non-submission of the original copy had not been raised by DIMSON in their Comments/Objections to Consolidated Formal Offer of Evidence (Of Araneta Institute of Agriculture, Inc.).[[74]] In any case, we find the objections unwarranted considering that certified true copies or certified microfilm copies of Exhibits 4-A1A to 7-A1A had been submitted by ARANETA in these proceedings.

Lastly, on the alleged non-registration of Philippine Land Improvement Company at the time the special power of attorney was executed by Jose Ma. Rato to represent him in the execution of the deed of conveyances, the same only proves that Philippine Land Improvement Company was not yet registered and this does not go as far as proving the existence or non-existence of the company at which time it was executed. In effect, the company was not precluded to enter into contracts and be bound by them but it will do so at the risk of the adverse effects of non-registration under the law.

Ultimately, the question of whether the aforesaid certificates of title constitute as clouds on ARANETAs titles are not for this Court to rule upon for purposes of the present remand. Needless to state, it is not for the Heirs of Dimson to rely on the weakness of ARANETAs titles and profit from it. Rather, they should have focused on the strength of their own titles since it is not within our office to decide in whose hands the contested lands should go, our task being merely to trace back the parties claims to OCT No. 994 dated 3 May 1917.[75]

There is no question that the Araneta titles were derived from OCT No. 994 dated 3 May 1917, particularly from the share of Jose Ma. Rato y Tuazon, one of the co-heirs named in OCT No. 994. The Special Division correctly assessed, among others, the reference to Decree No. 4429 and Record No. 4429 in some of the antecedent titles of Araneta[76] as mere clerical errors that could not have invalidated said titles, 4429 being the case number of Decree No. 36455, and the designation and the technical description of the land on those titles not having been shown to be erroneous or variant with the source title. The Special Division also correctly considered that the trial court had failed to take into account the several conveyances of TCT No. 26538 before it was ultimately transferred to Araneta in 1948, which explain the difference in area

Manotok Realty vs CLT

between TCT No. 7784 and TCT No. 26538. The imputed overlap of TCT No. 26538 and TCT No. 26539 with the titles held by Dimson was based on a private survey which had not been duly approved by the Bureau of Lands. The alleged absence of any entry on the Memorandum of Encumbrances of TCT No. 26538 of the sale of the property between Rato and Araneta did not, according to the Special Division, discount the fact that Rato and Araneta entered into a voluntary agreement with the intention of transferring the ownership of the subject property. Finally, the Special Division noted that the titles derived from OCT No. 994, which Dimson had submitted as evidence to discredit the Araneta claim, pertain to properties wholly different from those covered by the Araneta titles.

There is no cause to dispute the factual findings and conclusions of the Special Division on the validity of the Araneta titles, and we affirm the same.

B.

It appears that the claim to title of the Manotoks is somewhat more controversial. The Special Division did not discount the fact that there could have been flaws in some of the intervening titles between the 3 May 1917 OCT No. 994 and the present titles of the Manotoks. However, the significant event was the expropriation proceedings undertaken by the Republic of the Philippines sometime in 1947. At least some of the titles in the name of the Manotoks were sourced from the titles issued to and subsequently distributed by the Republic. The Special Division explained the milieu in full:

VALIDITY OF THE MANOTOK TITLES

The notation under Entry No. 6655/O-994, found on page 17 of OCT 994 of the Owners Duplicate Copy, shows that Lot No. 26 had been a subject of sale in favor of Alejandro Ruiz and Mariano P. Leuterio.[[77]] The notations reads:

Manotok Realty vs CLT Ap. 6655/O-994 Venta: Queda Cancelado el presente Certificado en cuanto a una extension superficial de 3,052.93 Metros cuadrados y 16,512.50 metros Cuadrados y descrita en elLote No. 26 vendida a favor de Alejandro Ruis y Mariano P. Leuterio, el primar casado con Diogracias Quinones y el Segundo con Josefa Garcia y se be expedido el Certificado de Titulo No. 4210, Pagina 163, Libro T-22.

Date of the Instrument Aug. 29, 1918 Date of Inscription Sept. 9, 1918 10:50 a.m. (GD) L. GARDUNIO, Register of Deeds

Ap. 6665/O-994-Venta: Queda Cancelado el presente Cerficiado en cuanto a una extension superficial de 871,982.00 metros cuadrados, descrita en el Lote No. 26, vendida a favor de Alejandro Ruiz y Mariano P. Leuterio, el primar casado con Deogracias Quinones y el Segundo con Josefa Garcia y se be expedido el Certificado de Titulo No. 4211, Pagina 164, Libro T-No. 22.

Date of Instrument Aug. 21, 1918 Date of Inscription Sept. 9, 1918 10:50 a.m. (SGD.) L. GARDUNIO, Register of Deeds

Manotok Realty vs CLT

As a result, TCT No. 4211 was cancelled by TCT No. 5261 which was issued in the name of Francisco Gonzales. Inscribed on the Memorandum of the Incumbrances Affecting the Property Described in this Certificate was the sale executed in favor of Francisco Gonzales dated 3 March 1920. Thus, on 6 April 1920, TCT No. 5261 was issued in the name of Francisco Gonzales.[[78]]

On 22 August 1938, TCT No. 5261 was cancelled by TCT No. 35486 in the names of Jose Gonzales y Narciso married to Maria P. Gutierrez, Consuelo Susana Gonzales y Narciso married to Alfonso D. Prescilla; Juana Francisco Gonzales y Narciso married to Fortunato de Leon; Maria Clara Gonzales y Narciso married to Delfin Hilario; Francisco Felipe Gonzales y Narciso married to Pilar Narciso, and Concepcion Andrea Gonzales y Narciso married to Melquiades M. Virata, Jr.

Appearing on the Memorandum of TCT No. 5261 is NOTA: Ap 2111 which reads as follows:[[79]]

A/2111 Adjudicado el torreno descrito en este certificado de titulo, a Rufina Narciso Vda. de Gonzales, a cuenta de la participacion de osia esta en (not legible) los tienes de la eseledad de genanciales. Habida entre la misma y el finado Francisco J. Gonzales, per una orden del Hon. Fernando Jugo, Juez del Juzgado de Primera Instancia de Manila Sala II, dienada el 20 de Septiembre de 19 (not legible), en el Expidiente de intestado del nombrado Francisco J. Gonzales, No. 49034, se cancela el presente certificado de tituto y se expide otre a hombre decha Rufina Narciso, con (not legible) No. 35486, folio 86, Tomo T-168 del libro de transferencias, archivando se la copia de dicha orden da que se ha heche referencia en al Legajo T-No. 35486.

(SGD) TEODORO GONZALES, Registrado de Titulos.

Manotok Realty vs CLT

The property was later subdivided into seven lots in accordance with subdivision plan Psd21154.[ ] Partitioning the lots among the co-owners, TCT No. 35486 was eventually cancelled and in lieu thereof six (6) certificates of titles were individually issued[[81]+ to Francisco Gonzaless six (6) children, specifically, TCT Nos. 1368-1373 while TCT No. 1374 was issued in favor of all the children.[[82]]
[80]

As previously mentioned, the properties covered by TCT Nos. 1368-1374 were expropriated by the Republic of the Philippines and were eventually subdivided and sold to various vendees. Eighteen (18) lots were obtained by MRI from the years 1965 to 1974, while it acquired the lot covered by TCT No. 165119 in 1988. On the other hand, MEC acquired from PhilVille Development Housing Corporation Lot No. 19-B by virtue of Deed of Exchange executed in its favor for which, TCT No. 232568 was issue don 9 May 1991.

The 20 certificates of titles were traced by the MANOTOKS, as follows:

1) TCT No. 7528 registered in the name of MRI covers Lot No. 2 of consolidation-subdivision plan (LRC) Pcs-1828 which has an area of 4,988 square meters. MRI purchased this lot from one Basilio Caina who was issued TCT No. 7526 which cancelled TCT Nos. 36657-62 registered in the name of the Republic of thePhilippines.[[83]]

2) TCT No. 7762, covering Lot 1-C, was obtained by MRI from one Narcisa Buenaventura. The Parcel of land has an approximate area of 2,876 square meters.Buenaventuras ownership was evidenced by TCT No. 7525,[[84]] deriving the same from TCT No. 36657-63.[[85]]

3) TCT No. 8012 in the name of MRI covers Lot No. 12-1 having an area of 20,000 square meters.[[86]] This certificate of title was traced from one Filemon Custodio who held TCT No. 7792. Custodio was in turn a transferee of Guillermo Rivera, the latter having been issued TCT No. 7760 by virtue of sale between him and then Peoples Homesite and Housing Corporation *PHHC+. The latter title eventually cancelled TCT No. 36557-63 of the Republic.[[87]]

Manotok Realty vs CLT 4) TCT No. 9866 issued to MRI covers Lot No. 21 and has an approximate area of 23,979 square meters. MRIs certificate of title was derived from TCT No. 9854 registered in the name of Filemon Custodio, a transferee of Jose Dionisio, who was issued TCT No. 9853. Dionisios title in turn cancelled the Republics TCT No. 36657-63.[[88]]

5) TCT No. 21107 issued to MRI covers Lot 22 with an approximate area of 2,557 square meters. MRI acquired the same by virtue of sale between him and Francisco Custodio, holder of TCT No. 21040. Francisco Custodio was a transferee of Lorenzo Caina, registered owner of TCT No. 21039 as evidenced by a Deed of Sale between Caina and the PHHC, the latters certificate of title canceling TCT No. 36557-63 of the Republic.[[89]]

6) TCT No. 21485 was issued to MRI by virtue of sale between it and Francisco Custodio, registered owner of TCT No. 21484. The certificate of title covers Lot 20 with an approximate area of 25,276 square meters Custodio was in turn a transferee of Lorenzo Caina, the latter being the registered owner of TCT No. 21013 by reason of sale between him and PHHC.[[90]] Under Entry No. 6277/T-21485, it would appear that portions of the property covered under TCT No. 21485 and TCT No. 232568 had been subject of an expropriation proceedings to which the Manotok Estate Corporation, et al. interposed no objections subject to the payment of just compensation.[[91]]

7) TCT Nos. 26405[[92]] and 26406,[[93]] both registered in the name of MRI, cancelled TCT Nos. 9773 and 9774, respectively. TCT Nos. 9773 and 9774 were registered in the names of Romulo, Rosalina, Lucila, Felix and Emilia all surnamed Jacinto, *JACINTOS+, before the same were transferred to MRI by reason of sale in favor of the latter. The JACINTOS certificates of title were in turn derived from TCT Nos. 8014 and 8015 issued in the name of Filemon Custodio[[94]] Both TCT Nos. 8014 and 8015 cancelled TCT 7792/T-39. However, for purposes of tracing TCT No. 7792/T-39 to the Republics certificate of titles, this certificate of title was not submitted in evidence.

8) TCT No. 26407[[95]] issued to MRI was traced back to the title of Lourdes Mercado Cloribel who was the registered owner of TCT No. 8404 by virtue of sale between the two, thereby transferring ownership to MRI. On the fact of TCT No. 8404, it would show that it cancelled TCT No. 8013/T41 but there is no showing in whose name TCT No. 8013 was registered and what certificate of title it cancelled.

Manotok Realty vs CLT 9) TCT No. 33904[[96]] of MRI cancelled TCT No. 8017 of Filemon Custodio by virtue of sale between the latter and MRI.[[97]] We note that TCT No. 8017 cancelled TCT No. 7792/T-39 but there is no showing whether the same could be traced back to the Republics certificates of title.

10) TCT No. 34255, covering Lot No. 11-Bm, Psd-75797 with an area of 11,000 square meters, reflects MRI as the registered owner. This certificate of title cancels TCT No. 36557-63 of the Republic.[[98]]

11) TCT No. 254875[[99]] bears MRI as the registered owner of Lot 55-A with an area of approximately 1,910 square meters. This certificate of title cancelled TCT No. 41956 which covers Lot 55, also registered in the name of MRI. It would appear that MRI acquired the lot covered under TCT No. 41956 from one Joaquin Caina who was the registered owner of TCT No. 25715 being a vendee of PHHC.[[100]]

12) TCT No. 53268 of MRI covered Lot No. 15,[[101]] which was purchased by MRI from one Maria V. Villacorta who held TCT No. 53155. Villacorta in turn acquired the same land from one Eufrocina Mackay whose TCT No. 7827 was eventually cancelled by Villacortas land title.*[102]] It would appear that TCT No. 7827 cancelled TCT No. 7826/T-40 but there is no trace to whom the latter title was registered and what certificate of title it cancelled.

13) TCT No. 55897 shows MRI as the registered owner of Lot 3 of the consolidation-subdivision plan (LRC) Pcs-1828 of the Maysilo Estate covering an area of more or less 20,531 square meters. This certificate of title cancelled TCT No. 53122 in the names of MRI (19,531 square meters) and one Silvestre Domingo (1,000 square meters). TCT No. 53122 in turn cancelled TCT No. 21347 registered in the names of Jesus Hipona (19,531 square meters) and Silvestre Domingo (1,000 square meters). Notably, TCT No. 21347 cancelled TCT No. 21315/T-107 but there is no indication to whom TCT No. 21315 was registered and what certificate of title it cancelled.[[103]]

Manotok Realty vs CLT 14) TCT No. C-17272 reflects MRI as the registered owner of Lot 6-C which has an approximate area of 27,850 square meters. MRIs certificate of title cancelled TCT No. C-17234 registered in the names of MRI (27,750 square meters), Roberto S. David (3,0000 square meters) and Jose Madulid (500 square meters). It would appear that TCT No. C-17234 cancelled TCT No. 53124 registered in the names of MRI, Spouses Priscila and Antonio Sebastian and Jose Madulid.[[104]] MRI also submitted in evidence a Deed of Partition between itself, Roberto David and Madulid thereby subdividing the property into Lots 6-A, 6-B and 6-C as per subdivision plan (LRC) Psd-277091.[[105]] Again, we note that TCT No. 53124 cancelled TCT No. 21350/T-107 but the records are bereft of any indication what certificate of title it cancelled and to whom the same was registered.

15) TCT No. C-35267, covering Lot 56-B of subdivision plan (LRC) Psd-292683 with an approximate area of 9,707 square meters, was a by-product of TCT No. 25146, also registered in the name of MRI, after the same was subdivided into two lots, namely, Lot Nos. 56-A and 56-B. TCT No. 25146 cancelled TCT No. 25145 registered in the name of Quirino Labing-isa by virtue of sale in favor of MRI. In turn, TCT No. 21545 cancelled TCT Nos. (36557) 12836 to (36563) 12842.[[106]]

16) TCT No. T-121428, registered in the name of MRI covers Lot No. 5-C of subdivision plan (LRC) psd-315272 which has an approximate area of 4,650 square meters. It was previously registered in the names of MRI (4,650 square meters), Ricardo Cruz (941 square meters) and Conchita Umali (1,000 square meters) under TCT No. 53123 by order of the Court of First Instance of Rizal, Caloocan City, Branch XII and as per agreement of the parties in Civil Case No. C-424. TCT No. 53123 in turn cancelled TCT No. 21346 whose registered owners were Conchita Umali (1,000 square meters), Ricardo Cruz (941 square meters) and Jesus Hipona (4,650 square meters).[[107]] Like some of the other titles, TCT No. 21346 cancelled TCT No. 21316 but there is no trace of this latter certificate of title.

17) TCT No. 163902, registered in the name of MRI, covers Lot No. 4-B-2 and has an area of more or less 6,354 square meters and a by-product of TCT No. 9022, also in the name of MRI, after the same was subdivided under subdivision plan (LRC) Psd-334454. TCT No. 9022, in turn, cancelled TCT No. 8994/T-45 registered in the name of Filemon S. Custodio whose ownership thereon was transferred to MRI by virtue of a voluntary sale.[[108]] TCT No. 8894 cancelled TCT No. 8846/T-45 but this latter certificate of title was not submitted in evidence for purposes of tracing back to the Republics title.

18) TCT No. 165119[[109]] was issued to MRI by virtue of a Deed of Sale between Spouses Francisca Labing-isa and Juan Ignacio [SPOUSES IGNACIO] and MRI, as a result of which, TCT No. C36960 of the SPOUSES IGNACIO was cancelled.[[110]] It would appear that TCT No. C-39690 cancelled TCT No. 35266/T-173 but TCT No. 35266/T-173 was not submitted in evidence.

Manotok Realty vs CLT 19) TCT No. T-232568 of the Manotok Estate Corporation, covering Lot No. 19-B of subdivision plan Psd-13011152 with an area of 23,206 square meters, was derived from the certificate of title held by PhiVille Development and Housing Corporation under TCT No. 197357. MEC acquired the subject parcel of land by virtue of Deed of Exchange between it and PHILVILLE DATED 9 May 1991.[[111]] TCT No. 197357 cancelled TCT No. 195730/T-974 but there is no trace what certificate of title the latter title cancelled.

By and large, all the certificates of title submitted by the MANOTOKS, including their derivative titles, were all traced to OCT No. 994 registered on 3 May 1917. Likewise, they declared all the lots covered by such titles for taxation purposes. Without doubt, MRI had successfully traced back some of their certificates of title to the valid OCT No. 994, they having acquired the lots from some of the vendees of the PHHC after the same were expropriated by the Republic from the Gonzalezes.

The fact that these lots were subjected to expropriation proceedings sometime in 1947 under Commonwealth Act No. 539 for resale to tenants is beyond question, as also enunciated by the Supreme Court in Republic of the Philippines v. Jose Leon Gonzales, et al. To bolster this fact, paragraph r of the Majority Report noted that the seven properties covered by TCT Nos. 1368 to 1374 were expropriated by the Republic from the Gonzalezes.

The fact that these lots were subjected to expropriation proceedings sometime in 1947 under Commonwealth Act No. 539 for resale to tenants is beyond question, as also enunciated by the Supreme Court in Republic of the Philippines vs. Jose Leon Gonzaels, et al. To bolster this fact, paragraph r of the Majority Report noted that the seven properties covered by TCT Nos. 1368 to 1374 were expropriated by the Peoples Homesite and Housing Corporation which were later consolidated and subdivided into 77 lots for resale to tenants. No sign of protest was ever raised by CLT on this point.[112]

The fact of expropriation is extremely significant, for titles acquired by the State by way of expropriation are deemed cleansed of whatever previous flaws may have attended these titles. As Justice Vitug explained in Republic v. Court of Appeals,[113] and then Associate Justice (now Chief Justice) Puno reiterated in Reyes v. NHA:[114] In an rem proceeding, condemnation acts upon the property. After condemnation, the paramount title is in the public under a new and independent title; thus, by giving notice to all claimants to a disputed title, condemnation proceedings provide a judicial process for securing better title against all the world than may be obtained by voluntary conveyance.[115] This doctrine was derived from the opinion of then Chief Judge (now U.S. Supreme Court Justice) Stephen Breyer in Cadorette v. U.S.,[116] which in turn cited the pronouncement of the U.S. Supreme Court in U.S. v. Carmack[117]that *b+y giving notice

Manotok Realty vs CLT

to all claimants to a disputed title, condemnation proceedings provide a judicial process for securing better title against all the world than may be obtained by voluntary conveyance.[118]

In annulling the Manotok titles, focus was laid on the alleged defects of TCT No. 4211 issued in September of 1918. However, TCT No. 4211 was issued decades before the property was expropriated. Thus, any and all defects that may have attended that particular title would have been purged when the property covered by it was subsequently acquired by the State through eminent domain. The Special Division noted as much:

As it is, the validity of most of MRIs certificates of title should be upheld because they were derived from the Republics valid certificates of title. In fact, some of the MANOTOKS titles can be traced back to the Governments titles as a result of the expropriation in 1947.

Relevantly, the titles of the Republic, as the predecessor-in-interest of the MANOTOKS, are presumed valid by virtue of their acquisition resulting from the exercise of its inherent power of eminent domain that need not be granted even by the fundamental law. Thus, the alleged flaws concerning the certificates of title issued previous to the exercise of the State of its inherent power did not affect or render invalid the subsequent transfers after the forced sale. Indeed, when land has been acquired for public use in fee simple unconditionally, either by the exercise of eminent domain or by purchase, the former owner retains no rights in the land, and the public use may be abandoned, or the land may be devoted to a different use, without any impairment of the estate or title acquired or any reversion to the former owner.[119]

The Special Division also took exception to the majority report of the Commissioners (Majority Report) who had been tasked by the trial court to examine the validity of the Manotok titles. The Majority Report

Manotok Realty vs CLT

had arrived at several conclusions with respect to the TCTs from which the Manotok titles were derived.[120] The Special Division, however, concluded that such report was in fact tainted by the fact that it was determined outside the scope of the issues framed and agreed upon by the parties. To wit:

In meeting the issue, the MANOTOKS disproved the opinion with regard to the alleged defects of their titles inasmuch as the majority report submitted before the trial court was made outside the scope of the tasks which the trial court confined them to perform. The MANOTOKS also argued that before this proceeding on remand, CLT failed to introduce evidence of such flaws neither were the concerned geodetic engineers presented as witnesses. Moreover, the MANOTOKS further maintained that CLT failed to submit any factual or legal bases to prove the authenticity and validity of the Palma and Sayo Orders. They insisted that the Palma Order was a void one for being conditional and having resulted to the issuance of duplicate certificates of land title.

With respect to the imputed flaws on the MANOTOKS titles which were based on the Majority Report, we find that the bases of the alleged defects proceeded from unreliable sources thus, tainting the veracity of the said report.

The records of the case between CLT and the MANOTOKS reveal that the parties approved the creation of a commission to resolve only these two issues, to wit:

x x x

These issues to be resolved by the 3 Commissioners are as follows:

1) Whether or not the property covered by the Transfer Certificates of Title of defendants pertain to or involve Lot No. 26 of the Maysilo Estate presently titled in the name of the plaintiff; and

2) Whether or not the property covered by the title of the plaintiff and the property covered by the titles of the defendants overlap.[[121]]

Manotok Realty vs CLT Scrutinizing the Majority Report upon which the trial courts conclusions were based, it would appear that the findings therein were outside the scope of the issues framed and agreed upon by the parties. Specifically, the deductions with regard to the technical infirmities and defects of TCT Nos. 4211, 4210, 5261 and 35486 do not involve the question of whether or not the subject properties were identified as Lot No. 26 of the Maysilo estate or whether there was overlapping of titles. Records bear out that the MANOTOKS took exception to the procedure taken citing therein the ultra vires acts of the two Commissioners.

In addition, the majority report focused on the alleged flaws and inherent technical defects of TCT Nos. 4211, 5261 and 35486, ranging from the language of the technical descriptions, absence of subdivision plan, lot number and survey plan. Evidently, these defects go only as far as the certificates of title issued prior to those of the Republic. Remarkably, no specific flaw was found on the MANOTOKS titles indicating any irregularity on their issuance. In fact, the Commissioners who signed the majority report even concluded that only TCT Nos. 4211, 4210, 5261, 35486, 1368 thru 1324 (sic)[[122]] were irregularly and questionably issued without any reference to the MANOTOKS certificates of title.[[123]] Otherwise stated, the imputed flaws affect only those certificates of title issued prior to those registered in the name of the Republic. No flaw had been specifically identified or established in the proceedings below, which would taint the titles held by the MANOTOKS in so far as the regularity of their issuance is concerned.[124]

At the same time, the Special Division was not prepared to uphold the validity of all of the Manotok titles. It took issue with the particular titles which could not be retraced to the titles acquired by the Republic of the Philippines by way of expropriation.

Although the MANOTOKS had traced their title from the vendees of PHHC, there are, however, some certificates of title which could not be traced back to the titles previously held by the Republic specifically, MRIs TCT Nos. 26405 and 26406, 26407, 33904, 53268, 55897, C -17272, T-121428, 163903, 165119 and MECs TCT No. T-232568. As to these certificates of title, the MANOTOKS failed to make any specific reference to the preceding certificates of title which they cancelled and to whose names they were subsequently transferred and registered. Thus, we find no sufficient basis to make a conclusion as to their origins.[125]

V.

Manotok Realty vs CLT

The Special Division supplied the following precise and concise summary of its conclusions:

In prcis, the factual milieu of the present controversy and the evidence on record clearly establish the failure of DIMSON and CLT to substantiate their titles and overcome the onus of proving that said titles are derivatives of OCT 994 registered on 3 May 1917, and not 19 April 1917, as what is reflected in their titles. In contrast, the MANOTOKS and ARANETA, both of which had consistently anchored their proprietary claims on OCT No. 994 registered on 3 May 1917, have, in this remand proceeding, been able to support their claims of ownership over the respective portions of the Maysilo Estate. Except in the case of the MANOTOKS which had failed to substantiate the validity of some of their certificates of title, the MANOTOKS and ARANETA presented evidence proving the identity, the extent and the origin of their titles.

Answering the issues assigned by the Supreme Court relative to the tenability of the respective imputed flaws in the titles of the MANOTOKS and ARANETA and whether such flaws are sufficient to defeat said claims, this Court finds that, as discussed above, such flaws are inconsequential and ineffectual in invalidating the MANOTOKS and ARANETA titles.

Significantly, since the respective certificates of title of herein contending parties are contradictory to each other and stand to refute the validity of their opposing titles, it cannot be gainsaid that said certificates of title have correspondingly been subjected to dispute on the basis of separate and distinct imputed flaws. Still, the crucial difference between the imputed flaws allegedly tainting said contending titles, DIMSON and CLT on one hand, and the MANOTOKS and ARANETA, on the other, is that the imputed flaws purportedly beleaguering the respective certificates of title of the MANOTOKS and ARANETA relate to the mechanical and technical aspect of the transcription of their titles and are therefore inconsequential to the import and validity thereof. Said imputed flaws do not depart from the fact that the predecessors-in-interest of the MANOTOKS and ARANETA had been clothed with the right of ownership over the disputed portions of the Maysilo Estate.

On the other hand, the flaws attending the titles of DIMSON and CLT primarily stem from infirmities attending or otherwise affecting the very crux of their claim of ownership. Having derived their titles from RIVERA, whose title is questionable and dubious to the core, DIMSON and CLT cannot rightly insist on the validity of their titles. Such flaws are hard to overcome as they delve into the substance of their proprietary claims. As stated, DIMSON and CLT miserably failed to overcome their onus and instead opted to hap on the supposed flaws of the adverse parties. For these reasons, the titles of DIMSON and CLT should be declared a nullity.

Manotok Realty vs CLT xxx

From the foregoing evaluation and in conformity with the Supreme Court 2007 Resolution, this Court arrived at the following conclusions as to the status of the original title and its subsequent conveyances:

1. As categorically declared by the Supreme Court, there is only one OCT 994, the registration date of which had already been decisively settled as 3 May 1917 and not19 April 1917. OCT 994 which reflects the date of 19 April 1917 as its registration date is null and void.

2. In view thereof and in addition to other grounds we have already discussed, the certificates of title of the deceased Jose Dimson and his successor-in-interest, CLT, having been traced back to OCT 994 dated 19 April 1917, are NULL and VOID and thus vest no legal right or claim in favor of DIMSON and CLT.

3. The 13 June 1966 Palma Order and the 18 October 1977 Sayo Order, on which DIMSON and CLT anchor the validity of their respective titles, do not substantiate their proprietary claims. While the existence of said Orders are admitted, the legal import thereof nonetheless fails to confer a semblance of legality on the titles of DIMSON and consequently, of CLT, more so, a superior right to defeat the titles of the MANOTOKS and ARANETA, respectively.

4. Portions of Lot No. 26 pertinent to this controversy, particularly that being disputed by the MANOTOKs and CLT, were expropriated by the Republic of the Philippines sometime in 1947 under Commonwealth Act No. 539 for resale to tenants. The MANOTOKS, thus as successor-in-interest of the Republic, were able to establish that some of their certificates of title had indeed originated or were derived from said expropriated parcels of land.

5. The evidence on record confirm that the certificates of title covering the land being claimed by ARANETA were derived from OCT NO. 994 registered on 3 May 1917 thereby ultimately showing a direct link of TCT Nos. 7784 and 13574 to said mother title. By reason of which, that is either belonging to or

Manotok Realty vs CLT portions of Lot 25-A-3 as previously owned by RATO, had been well substantiated and proven to be superior to that of DIMSON.

6. For reasons above-stated and in view of the established rights of ownership of both the MANOTOKS and ARANETA over the contested properties, we find that the imputed flaws on their titles cannot defeat the valid claims of the MANOTOKS and ARANETA over the disputed portions of the Maysilo Estate.[126]

Inasmuch as we agree with the factual findings and evaluation of the Special Division, we likewise adopt the above conclusions. As we earlier stated, it was incumbent on the Heirs of Dimson and/or CLT to establish their claim to title for reasons other than the fact that OCT No. 994 dated 19 April 1917 is extant. They failed to do so. It should be noted that the instant cases arose from separate actions filed by Jose Dimson and CLT seeking the recovery of possession and/or annulment of title against Araneta and the Manotok Group. Thus, the burden of evidence was on Dimson and CLT to establish the strength of their respective claims of ownership, and not merely to rely upon whatever weaknesses in the claims of the Manotoks and Araneta for their causes of action to prosper. The well-settled legal principle in actions for annulment or reconveyance of title is that a party seeking it should establish not merely by a preponderance of evidence but by clear and convincing evidence that the land sought to be reconveyed is his. [127] In an action to recover, the property must be identified, and the plaintiff must rely on the strength of his title and not on the weakness of the defendant's claim.[128]

We now proceed to tackle the recommendations submitted by the Special Division. They are as follows:

RECOMMENDATIONS

Apropos to said conclusions, this Court hereby respectfully makes the following recommendations regarding the validity of the conflicting proprietary claims as interposed by the herein contending parties:

Manotok Realty vs CLT 1. To declare with finality that the certificates of title of DIMSON and CLT including other derivative titles issued to their successors-in-interest, if any, are NULL and VOID, thus invalidating their legal claims over the subject parcels of land.

2. To declare LEGAL and VALID the proprietary claims the MANOTOKS over the parcels of land covered by the following certificates of title:

a) TCT No. 7528 registered in the name of MRI covers Lot No. 2 of consolidationsubdivision plan (LRC) Pcs-1828 which has an area of 4,988 square meters.

b)

TCT No. 7762 covering Lot 1-C, with an approximate area of 2,287 square meters.

c)

TCT No. 8012 covering Lot No. 12-1 having an area of 20,000 square meters.

d)

TCT No. 9866 covering Lot No. 21 and has an approximate area of 23,979 square meters.

e)

TCT No. 21107 covering Lot 22 with an approximate area of 2,557 square meters.

f)

TCT No. 21485 covering Lot 20 with an approximate area of 25,276 square meters.

g) meters.

TCT No. 34255 covering Lot No. 11-Bm, Psd-75797 with an area of 11,000 square

h)

TCT No. 254875 covering Lot 55-A with an area of approximately 1,910 square meters.

i) TCT No. C-35267 covering Lot 56-B of subdivision plan (LRC) Psd-292683 with an approximate area of 9,707 square meters.

With regard to the following certificates of title, namely:

Manotok Realty vs CLT 3.A. MANOTOK REALTY INC.

a)

TCT No. 26405 covering Lot No. 12-E with an area of 1,0000 square meters.

b)

TCT No. 26406 covering Lot No. 12-F with an area of 1,000 square meters.

c)

TCT No. 26407 covering Lot No. 12-B with an area of 1,000 square meters.

d)

TCT No. 33904 covering Lot No. 12-H with an area of 1,802 square meters.

e) TCT No. 53268 covering Lot No. 15 purchased by MRI from one Maria V. Villacorta with an approximate area of 3,163 square meters.

f) TCT No. 55897 covering Lot 3 of consolidation-subdivision plan (LRC) Pcs-1828 of the Maysilo Estate covering an area of more or less 20,531 square meters.

g)

TCT No. C-17272 covering Lot 6-C which has an approximate area of 27,850 square meters.

h) TCT No. T-121428 covering Lot No. 5-C of subdivision plan (LRC) psd-315278, which has an approximate area of 4,650 square meters.

i) TCT No. 163902 covering Lot No. 4-B-2 with an area of more or less 6,354 square meters allegedly a by-product of TCT No. 9022, which in turn, cancelled TCT No. 8994/T-45 registered in the name of Filemon S Custodio.

j) TCT No. 165119 which allegedly cancelled TCT No. C-36960 of the SPOUSES IGNACIO by virtue of a Deed of Sale between said Spouses and MRI.

3.B. MANOTOK ESTATE CORPORATION

Manotok Realty vs CLT

a) TCT No. T-232568 covering Lot No. 19-B of subdivision plan Psd-13011152 with an area of 23,206 square meters.

The foregoing certificates of title (3.A and 3.B), failing to make specific references to the particular certificates of title which they cancelled and in whose name they were registered, may be declared NULL and VOID, or in the alternative, subject the same to further technical verification.

4. To declare LEGAL and VALID the title of ARANETA respecting parcels of land covered by the following certificates of title:

a) TCT No. 13574 covering a parcel of land designated as Section No. 2 of subdivision plan Psd10114, being a portion of Lot 25-A-3-C with an aggregate area of 581,872 square meters;

b) TCT No. 7784 covering four (4) parcels of land with an aggregate area of 390,383 square [129] meters.

The first, second and fourth recommendations are well taken as they logically arise from the facts and conclusions, as determined by the Special Division, which this Court adopts.

The third recommendation that eleven (11) of the titles held by the Manotoks be declared null and void or subjected to further technical verification warrants some analysis.

The Court has verified that the titles mentioned in the third recommendation do not, as stated by the Special Division, sufficiently indicate that they could be traced back to the titles acquired by the Republic when it expropriated portions of the Maysilo Estate in the 1940s. On the other hand, the Manotok titles that were affirmed by the Special Division are traceable to the titles of the Republic and thus have benefited, as they should, from the cleansing effect the

Manotok Realty vs CLT

expropriation had on whatever flaws that attached to the previous titles. However, although the Special Division did not concede the same benefit to the other Manotok titles named in the third recommendation, at the same time it did not conclude that such titles were false or fraudulently acquired. Absent such a finding, we are disinclined to take the ultimate step of annulling those titles.

Said titles have as their origin what we have acknowledged to be a valid mother title OCT No. 994 dated 3 May 1917. This is in stark contrast with the titles of CLT, the oppositors to the Manotoks, which all advert to an inexistent mother title. On their face, the Manotok titles do not reflect any error or fraud, and certainly the Special Division do not point to any such flaw in these titles. Nothing on the face of the titles gives cause for the Court to annul the same.

It is worth mentioning that the Special Division refused to adopt the Majority Report earlier rendered in the case between the Manotoks and CLT, said report having exhaustively listed the perceived flaws in the antecedent TCTs from which the Manotoks derived their claim. The Special Division concluded that such findings had been reached by the Commissioners in excess of their original mandate and, thus, ultra vires. Assuming that such flaws were extant, they existed on the titles and anteceded the expropriation of the properties by the Government. As stated earlier, such expropriation would have cleansed the titles of the prior flaws. But even if the Manotok titles enumerated in the third recommendation could not be sourced from the titles acquired by the Republic through expropriation, still the rejection of the Majority Report signifies that the flaws adverted to therein could not form the basis for the annulment of the titles involved. Indeed, the Special Divisions rejection of the Majority Report further diminishes any ground to annul the Manotok titles referred to in the third recommendation.

Yet, the Court is cognizant that the inability to trace the Manotok titles specified in the third recommendation to those titles acquired by the Government through expropriation puts such titles in doubt somehow. In addition, the Court is aware that the ground utilized by the Special Division in rejecting the Majority Report that the determinations were made outside the scope of the issues framed and agreed upon by the parties -- does not categorically refute the technical findings made therein. Those circumstances, while insufficient for now to annul the Manotoks titles listed in the third recommendation, should be sufficiently made public.

Manotok Realty vs CLT

Hence, in lieu of annulling the Manotok titles per the Special Divisions third recommendation, the Court deems it sufficient to require the Registers of Deeds concerned to annotate this Resolution on said titles so as to sufficiently notify the public of their unclear status, more particularly the inability of the Manotoks to trace the titles without any gap back to OCT No. 994 issued on 3 May 1917. If there should be any cause for the annulment of those titles from a proper partys end, then let the proper case be instituted before the appropriate court.

WHEREFORE, the Court hereby adopts the Report of the Special Division and issues the following reliefs:

1) The certificates of title of the DIMSONs and CLT including other derivative titles issued to their successors-in-interest, if any, are declared NULL and VOID, thus invalidating their legal claims over the subject parcels of land;

2. The proprietary claims of the MANOTOKS over the parcels of land covered by the following certificates of title are declared LEGAL and VALID, to wit:

a) TCT No. 7528 registered in the name of MRI covers Lot No. 2 of consolidation-subdivision plan (LRC) Pcs-1828 which has an area of 4,988 square meters.

Manotok Realty vs CLT

b) TCT No. 7762 covering Lot 1-C, with an approximate area of 2,287 square meters.

c) TCT No. 8012 covering Lot No. 12-1 having an area of 20,000 square meters.

d) TCT No. 9866 covering Lot No. 21 and having an approximate area of 23,979 square meters.

e) TCT No. 21107 covering Lot 22 with an approximate area of 2,557 square meters.

f) TCT No. 21485 covering Lot 20 with an approximate area of 25,276 square meters.

g) TCT No. 34255 covering Lot No. 11-Bm, Psd-75797 with an area of 11,000 square meters.

h) TCT No. 254875 covering Lot 55-A with an area of approximately 1,910 square meters.

i) TCT No. C-35267 covering Lot 56-B of subdivision plan (LRC) Psd-292683 with an approximate area of 9,707 square meters.

Manotok Realty vs CLT

3) The following certificates of titles in the name of ARANETA are hereby declared LEGAL and VALID, to wit:

a) TCT No. 13574 covering a parcel of land designated as Section No. 2 of subdivision plan Psd-10114, being a portion of Lot 25-A-3-C with an aggregate area of 581,872 square meters;

b) TCT No. 7784 covering four (4) parcels of land with an aggregate area of 390,383 square meters.

Manotok Realty vs CLT

4) On the following titles in the name of Manotok Realty, Inc. or Manotok Estate Corporation, to wit:

a) TCT No. 26405 covering Lot No. 12-E with an area of 1,0000 square meters;

b) TCT No. 26406 covering Lot No. 12-F with an area of 1,000 square meters;

c) TCT No. 26407 covering Lot No. 12-B with an area of 1,000 square meters;

d) TCT No. 33904 covering Lot No. 12-H with an area of 1,802 square meters;

e) TCT No. 53268 covering Lot No. 15 purchased by MRI from one Maria V. Villacorta with an approximate area of 3,163 square meters;

f) TCT No. 55897 covering Lot 3 of consolidation-subdivision plan (LRC) Pcs1828 of the Maysilo Estate covering an area of more or less 20,531 square meters;

g) TCT No. C-17272 covering Lot 6-C which has an approximate area of 27,850 square meters;

Manotok Realty vs CLT

h) TCT No. T-121428 covering Lot No. 5-C of subdivision plan (LRC) psd315278, which has an approximate area of 4,650 square meters;

i) TCT No. 163902 covering Lot No. 4-B-2 with an area of more or less 6,354 square meters allegedly a by-product of TCT No. 9022, which in turn, cancelled TCT No. 8994/T-45 registered in the name of Filemon S. Custodio;

Manotok Realty vs CLT

j) TCT No. 165119 which allegedly cancelled TCT No. C-36960 of the SPOUSES IGNACIO by virtue of a Deed of Sale between said spouses and MRI;

k) TCT No. T-232568 covering Lot No. 19-B of subdivision plan Psd-13011152 with an area of 23,206 square meters.

the Registers of Deeds concerned are ordered to annotate that as determined in the foregoing Resolution, the registered owners of the said titles failed to make any specific reference to the preceding certificates of title which they cancelled and to whose names they were subsequently transferred and registered, thereby leading the Supreme Court to find no sufficient basis to make a conclusion as to their origins.[130]

Costs against private respondents.

SO ORDERED.

Ortega vs. City of Cebu

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 181562-63 October 2, 2009

SPOUSES CIRIACO and ARMINDA ORTEGA, Petitioners, vs. CITY OF CEBU, Respondent. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 181583-84 CITY OF CEBU, Petitioner, vs. SPOUSES CIRIACO and ARMINDA ORTEGA, Respondents. DECISION NACHURA, J.: These are consolidated petitions for review on certiorari filed by petitioners Ciriaco and Arminda Ortega (Spouses Ortega) in G.R. Nos. 181562-63 and petitioner City of Cebu (Cebu City) in G.R. Nos. 181583-84 assailing the Decision of the Court of Appeals (CA) in the similarly consolidated petitions docketed as CA-G.R. SP No. 80187 and CA-G.R. SP No. 00147, respectively.1 The facts, summarized by the CA, follow. Spouses Ciriaco and Arminda Ortega x x x are the registered owners of a parcel of land known as Lot No. 310-B, situated in Hipodromo, Cebu City, with an area of 5,712 square meters and covered by Transfer Certificate of Title No. 113311, issued by the Register of Deeds of the City of Cebu. One-half of the above described land is occupied by squatters. On September 24, 1990, [the Spouses Ortega] filed an ejectment case against the squatters before the Municipal Trial Court in Cities (MTCC) of Cebu City, which rendered decision in favor of [the spouses Ortega]. The case eventually reached the Supreme Court, which affirmed the decision of the MTCC. The decision of the MTCC became final and executory, and a writ of execution was issued on February 1, 1994. On May 23, 1994, the Sangguniang Panglungsod of [Cebu City] enacted City Ordinance No. 1519, giving authority to the City Mayor to expropriate one-half (1/2) portion (2,856 square meters) of [the spouses Ortegas] land (which is occupied by the squatters), and appropriating for that purpose the amount of P3,284,400.00 or at the price of ONE THOUSAND ONE HUNDRED FIFTY PESOS (P1,150.00) per square meter. The amount will be charged against Account No. 8-93-310, Continuing Appropriation, Account No. 101-8918-334, repurchase of lots for various projects. The value of the land was determined by the Cebu City Appraisal Committee in Resolution No. 19, series of 1994, dated April 15, 1994. Pursuant to said ordinance, [Cebu City] filed a Complaint for Eminent Domain [before the Regional Trial Court (RTC), Branch 23, Cebu City] against [the spouses Ortega], docketed as Civil Case No. CEB-16577. On March 13, 1998, the [RTC] issued an order declaring that [Cebu City] "has the lawful right to take the property subject of the instant case, for public use or purpose described in the complaint upon payment of just compensation."

Ortega vs. City of Cebu Based on the recommendation of the appointed Commissioners (one of whom was the City Assessor of [Cebu City], the [RTC] issued another Order dated May 21, 1999, fixing the value of the land subject to expropriation at ELEVEN THOUSAND PESOS (P11,000.00) per square meter and ordering [Cebu City] to pay [Spouses Ortega] the sum of THIRTY ONE MILLION AND FOUR HUNDRED SIXTEEN THOUSAND PESOS (P31,416,000.00) as just compensation for the expropriated portion of Lot No. 310-B.
The Decision of the [RTC] became final and executory because of [Cebu Citys] failure to perfect an appeal on time, and a Writ of Execution was issued on September 17, 1999 to enforce the courts judgment. Upon motion of [the Spouses Ortega], the [RTC] issued an Order dated March 11, 2002, quoted as follows: "Reading of the aforestated resolution shows that the City Council of Cebu approved Ordinance No. 1519 appropriating the sum of P3,284,400.00 for payment of the subject lot chargeable to Account No. 101-8918-334. "In view thereof, the above-mentioned sum is now subject for execution or garnishment for the same is no longer exempt from execution." [Cebu City] filed an Omnibus Motion to Stay Execution, Modification of Judgment and Withdrawal of the Case, contending that the price set by the [RTC] as just compensation to be paid to [the Spouses Ortega] is way beyond the reach of its intended beneficiaries for its socialized housing program. The motion was denied by the [RTC]. [Cebu Citys] Motion for Reconsideration was likewise denied. By virtue of the Order of the [RTC], dated July 2, 2003, x x x Sheriff Benigno B. Reas[,] Jr. served a Notice of Garnishment to Philippine Postal Bank, P. del Rosario and Junquera Branch Cebu City, garnishing [Cebu Citys] bank deposit therein. Hence, [Cebu City] filed the instant Petition for Certiorari before [the CA] (CA-G.R. SP NO. 80187). During the pendency of x x x CA-G.R. SP NO. 80187, [Cebu City] filed before the [RTC] a Motion to Dissolve, Quash or Recall the Writ of Garnishment, contending that Account No. 101-8918-334 mentioned in Ordinance No. 1519 is not actually an existing bank account and that the garnishment of [Cebu Citys] bank account with Philippine Postal Bank was illegal, because government funds and properties may not be seized under writ of execution or garnishment to satisfy such judgment, on obvious reason of public policy. The [RTC] issued an Order dated March 8, 2004, denying said motion. [Cebu Citys] Motion for Reconsideration was also denied. [The Spouses Ortega] filed an Ex-Parte Motion to Direct the New Manager of Philippine Postal Bank to Release to the Sheriff the Garnished Amount, which was granted by the [RTC]. [Cebu City] filed a Motion for Reconsideration, but the same was denied. Hence, [Cebu City] filed another Petition for Certiorari (CA-G.R. SP NO. 00147) [with the Court of Appeals].2 Ruling on the petitions for certiorari, the CA disposed of the cases, to wit: WHEREFORE, all the foregoing premises considered, the instant Petitions for Certiorari are hereby PARTIALLY GRANTED. The assailed Orders of the [RTC] [Assailed Orders dated March 11, 2002 and July 2, 2003, respectively, in CA-G.R SP NO. 80187] are hereby ANNULLED AND SET ASIDE insofar as they denied [Cebu Citys] Motion to Stay Execution, but they are hereby AFFIRMED insofar as they denied [Cebu Citys] Motion to Modify Judgment and Withdraw from the Expropriation Proceedings. Furthermore, the assailed Orders of the [RTC dated March 8, 2004 in CA-G.R. SP NO. 00147] are hereby ANNULLED AND SET ASIDE. Let the Decision of the [RTC] be executed in a manner prescribed by applicable law and jurisprudence. SO ORDERED.3 Hence, these consolidated appeals by petitioners Cebu City and the Spouses Ortega positing the following issues:

Ortega vs. City of Cebu 1. Whether the CA erred in affirming the RTCs denial of Cebu Citys Omnibus Motion to Modify Judgment and to be Allowed to Withdraw from the Expropriation Proceedings.
2. Whether the deposit of Cebu City with the Philippine Postal Bank, appropriated for a different purpose by its Sangguniang Panglungsod, can be subject to garnishment as payment for the expropriated lot covered by City Ordinance No. 1519. We deny both petitions. On the first issue, the CA did not err in affirming the RTCs Order that the expropriation case had long been final and executory. Consequently, both the Order of expropriation and the Order fixing just compensation by the RTC can no longer be modified. In short, Cebu City cannot withdraw from the expropriation proceedings. Section 4, Rule 67 of the Rules of Court on Expropriation provides: SEC. 4. Order of expropriation. If the objections to and the defenses against the right of the plaintiff to expropriate the property are overruled, or when no party appears to defend as required by this Rule, the court may issue an order of expropriation declaring that the plaintiff has a lawful right to take the property sought to be expropriated, for the public use or purpose described in the complaint, upon the payment of just compensation to be determined as of the date of the taking of the property or the filing of the complaint, whichever came first. A final order sustaining the right to expropriate the property may be appealed by any party aggrieved thereby. Such appeal, however, shall not prevent the court from determining the just compensation to be paid. After the rendition of such an order, the plaintiff shall not be permitted to dismiss or discontinue the proceeding except on such terms as the court deems just and equitable. Plainly, from the aforequoted provision, expropriation proceedings speak of two (2) stages, i.e.: 1. Determination of the authority of the plaintiff to exercise the power of eminent domain and the propriety of its exercise in the context of the facts involved in the suit. This ends with an order, if not of dismissal of the action, of condemnation [or order of expropriation] declaring that the plaintiff has the lawful right to take the property sought to be condemned, for the public use or purpose described in the complaint, upon the payment of just compensation to be determined as of the date of the filing of the complaint; and 2. Determination by the court of the just compensation for the property sought to be taken.4 We held in the recent case of Republic v. Phil-Ville Development and Housing Corporation5 that: [A]n order of expropriation denotes the end of the first stage of expropriation. Its end then paves the way for the second stagethe determination of just compensation, and, ultimately, payment. An order of expropriation puts an end to any ambiguity regarding the right of the petitioner to condemn the respondents properties. Because an order of expropriation merely determines the authority to exercise the power of eminent domain and the propriety of such exercise, its issuance does not hinge on the payment of just compensation. After all, there would be no point in determining just compensation if, in the first place, the plaintiffs right to expropriate the property was not first clearly established.6 Conversely, as is evident from the foregoing, an order by the trial court fixing just compensation does not affect a prior order of expropriation. As applied to the case at bar, Cebu City can no longer ask for modification of the judgment, much less, withdraw its complaint, after it failed to appeal even the first stage of the expropriation proceedings. Cebu City is adamant, however, that it should be allowed to withdraw its complaint as the just compensation fixed by the RTC is too high, and the intended expropriation of the Spouses Ortegas property is dependent on whether Cebu City would have sufficient funds to pay for the same.

Ortega vs. City of Cebu We cannot subscribe to Cebu Citys ridiculous contention.
It is well-settled in jurisprudence that the determination of just compensation is a judicial prerogative.7 In Export Processing Zone Authority v. Dulay,8 we declared: The determination of "just compensation" in eminent domain cases is a judicial function. The executive department or the legislature may make the initial determinations but when a party claims a violation of the guarantee in the Bill of Rights that private property may not be taken for public use without just compensation, no statute, decree, or executive order can mandate that its own determination shall prevail over the courts findings. Much less can the courts be precluded from looking into the "just-ness" of the decreed compensation. We, therefore, hold that P.D. No. 1533, which eliminates the courts discretion to appoint commissioners pursuant to Rule 67 of the Rules of Court, is unconstitutional and void. To hold otherwise would be to undermine the very purpose why this Court exists in the first place. Likewise, in the recent cases of National Power Corporation v. dela Cruz9 and Forfom Development Corporation v. Philippine National Railways,10 we emphasized the primacy of judicial prerogative in the ascertainment of just compensation as aided by the appointed commissioners, to wit: Though the ascertainment of just compensation is a judicial prerogative, the appointment of commissioners to ascertain just compensation for the property sought to be taken is a mandatory requirement in expropriation cases. While it is true that the findings of commissioners may be disregarded and the trial court may substitute its own estimate of the value, it may only do so for valid reasons; that is, where the commissioners have applied illegal principles to the evidence submitted to them, where they have disregarded a clear preponderance of evidence, or where the amount allowed is either grossly inadequate or excessive. Thus, "trial with the aid of the commissioners is a substantial right that may not be done away with capriciously or for no reason at all." As regards the second issue raised by the Spouses Ortega, we quote with favor the CAs disquisition thereon, to wit: While the claim of [the Spouses Ortega] against [Cebu City] is valid, the [RTC] cannot, by itself, order the City Council of [Cebu City] to enact an appropriation ordinance in order to satisfy its judgment. The proper remedy of [the Spouses Ortega] is to file a mandamus case against [Cebu City] in order to compel its Sangguniang Panglungsod to enact an appropriation ordinance for the satisfaction of [the Spouses Ortegas] claim . This remedy is provided in the case of Municipality of Makati v. Court of Appeals, which provides: Nevertheless, this is not to say that private respondent and PSB are left with no legal recourse. Where a municipality fails or refuses, without justifiable reason[s], to effect payment of a final money judgment rendered against it, the claimant may avail of the remedy of mandamus in order to compel the enactment and approval of the necessary appropriation ordinance, and the corresponding disbursement of municipal funds therefor. x x x. xxxx The Sangguniang Panglungsod of [Cebu City] enacted Ordinance No. 1519, appropriating the sum ofP3,284,400.00 for payment of just compensation for the expropriated land, chargeable to Account No. 101-8918-334. Pursuant to such ordinance, the [RTC] issued an order dated March 11, 2002, which was the basis for the issuance of the Writ of Garnishment, garnishing [Cebu Citys] bank account with Philippine Postal Bank. However, Philippine Postal Bank issued a Certification dated February 7, 2005, certifying that Account No. 8-93-310 (Continuing Account) and Account No. 101-8918-334 intended for purchase of lot for various projects are not bank account numbers with Philippine Postal Bank. It is a settled rule that government funds and properties may not be seized under writs of execution or garnishment to satisfy judgments, based on obvious consideration of public policy. Disbursements of public funds must be covered by

Ortega vs. City of Cebu the corresponding appropriation as required by law. The functions and public services rendered by the State cannot be allowed to be paralyzed or disrupted by the diversion of public funds from their legitimate and specific objects, as appropriated by law.
In Municipality of Makati v. Court of Appeals, x x x where the Municipality of Makati enacted an ordinance appropriating certain sum of money as payment for the land the municipality expropriated, chargeable to Account No. S/A 265537154-3 deposited in PNB Buendia Branch, the Supreme Court held that the trial court has no authority to garnish the Municipalitys other bank account (Account No. S/A 263-530850-7) in order to cover the deficiency in Account No. S/A 265-537154-3, even if both accounts are in the same branch of the PNB. In said case, the Supreme Court held: Absent any showing that the municipal council of Makati has passed an ordinance appropriating from its public funds an amount corresponding to the balance due under the RTC decision dated June 4, 1987, less the sum ofP99,743.94 deposited in Account No. S/A 265-537154-3, no levy under execution may be validly effected on the public funds of petitioner deposited in Account No. S/A 263-530850-7. The foregoing rules find application in the case at bar. While the Sangguniang Panglungsod of petitioner enacted Ordinance No. 1519 appropriating the sum of P3,284,400.00 for payment of just compensation for the expropriated land, such ordinance cannot be considered as a source of authority for the [RTC] to garnish [Cebu Citys] bank account with Philippine Postal Bank, which was already appropriated for another purpose. [Cebu Citys] account with Philippine Postal Bank was not specifically opened for the payment of just compensation nor was it specifically appropriated by Ordinance No. 1519 for such purpose. Said account, therefore, is exempt from garnishment.
1av vphi1

Since the [RTC] has no authority to garnish [Cebu Citys] other bank accounts in order to satisfy its judgment, consequently, it has no authority to order the release of [Cebu Citys] other deposits with Philippine Postal Bank x x x.11 Even assuming that Cebu City Ordinance No. 1519 actually appropriated the amount of P3,284,400.00 for payment of just compensation thus, within the reach of a writ of garnishment issued by the trial court12 there remains the inescapable fact that the Philippine Postal Bank account referred to in the ordinance does not actually exist, as certified to by the Bank. Accordingly, no writ of garnishment may be validly issued against such non-existent account with Philippine Postal Bank. This circumstance translates to a situation where there is no valid appropriation ordinance. WHEREFORE, the petitions in G.R. Nos. 181562-63 and 181583-84 are hereby DENIED. The Decision of the Court of Appeals in CA-G.R. SP Nos. 80187 and 00147 is AFFIRMED. No pronouncement as to costs. SO ORDERED.

Tiongson vs. National Housing Authority

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 140377 July 14, 2008

PATRICIA L. TIONGSON, SPS. EDUARDO GO and PACITA GO, ROBERTO LAPERAL III, ELISA MANOTOK, MIGUEL A.B. SISON, ET AL., Petitioners, vs. NATIONAL HOUSING AUTHORITY,* Respondent. DECISION CARPIO MORALES, J.: The present petition for review on certiorari raises the question of from what date should just compensation of the subject properties sought to be expropriated be reckoned whether it is from the taking of the property or on the filing of the complaint. Respondent National Housing Authority (NHA) took possession in 1978 of properties belonging to petitioners Patricia L. Tiongson, et al. pursuant to P.D. No. 1669, "An Act Providing for the Expropriation of the Property Known as the Tambunting Estate Registered Under TCT Nos. 119059, 122450, 122459, 122452 And Lot Nos. 1-A, 1-C, 1-D, 1-E, 1F, 1-G And 1-H Of (LRC) PSD-230517 (Previously Covered By TCT No. 119058) of the Register of Deeds of Manila and for The Sale at Cost of the Lots Therein to the Bona Fide Occupants and Other Squatters Families and to Upgrade the Same, and Authorizing the Appropriation of Funds For The Purpose" (underscoring supplied), and of properties belonging to Patricia Tiongson, et al. pursuant to P.D. No. 1670, "An Act Providing For The Expropriation of the Property Along the Estero De Sunog-Apog Formerly Consisting of Lots Nos. 55-A, 55-B And 55-C, Block 2918 of the Subdivision Plan Psd-11746, Covered by TCT Nos. 49286, 49287 and 49288, Respectively, of the Register of Deeds of Manila and for The Sale at Cost of the Lots Therein to the Bona Fide Occupants and Other Squatter Families and to Upgrade The Same, and Authorizing The Appropriation of Funds For The Purpose" (underscoring supplied). In G.R. Nos. L-55166, "Elisa R. Manotok, et al.v. National Housing Authority et al.," and 55167, "Patricia Tiongson et al. v. National Housing Authority, et al.," this Court, by Decision of May 21, 1987,1 held that "Presidential Decree Numbers 1669 and 1670, which respectively proclaimed the Tambunting Estate and the Estero de Sunog-Apoy area expropriated, are declared unconstitutional and, therefore, null and void," they being violative of the therein petitioners right to due process of law. The decision had become final and executory. Subsequently or on September 14, 1987, NHA filed before the Regional Trial Court of Manila a complaint against petitioners, docketed as Civil Case No. 87-42018, which was later amended, for expropriation of parcels of land part of those involved in G.R. No. L-55166. By Order of April 29, 1997,2 Branch 41 of the Manila RTC3 to which the complaint for expropriation was raffled brushed aside a previous order dated June 15, 1988 of the then Presiding Judge of said branch of the RTC4 and held that the determination of just compensation of the properties should be reckoned from the date of filing of NHAs petition or on September 14, 1987. The NHA moved to reconsider the said April 29, 1997 Order of the trial court, contending that the determination of the just compensation should be reckoned from the time it took possession of the properties in 1978. The trial court, by Order of August 5, 1997,5 denied NHAs motion for reconsideration.

Tiongson vs. National Housing Authority The NHA assailed the above-stated trial courts Orders of April 29, 1997 and August 5, 1997 via petition for certiorari before the Court of Appeals. The appellate court, by the challenged Decision of June 16, 1999,6reversed and set aside the trial courts orders and held that the just compensation should be "based on the actual taking of the property in 1978." Thus it disposed:
WHEREFORE, the lower courts Order dated April 29, 1997 ruling that the amount of just compensation should be based on the date of the filing of the complaint in 1987, as well as the Order dated August 5, 1997 denying the motion for reconsideration are hereby set aside and the appointed commissioners are ordered to re-convene and submit to the court a recommendation on the amount of just compensation of subject property based on the actual taking of the property in 1978. (Underscoring supplied) Petitioners moved for a reconsideration of the appellate courts decision but the same was denied by Resolution of October 7, 1999,7 hence, the present petition for review on certiorari. In its Petition for Expropriation filed before the RTC on September 14, 1987, the NHA alleged, inter alia, that: xxxx 9. Pursuant to Presidential Decree No. 1669 providing for the expropriation of the subject properties and granting the plaintiff the authority to immediately take possession, control and disposition, with power of demolition of the subject properties, plaintiff took and had been in possession of the subject properties, until Presidential Decree No. 1669 was declared unconstitutional by the Supreme Court in the case entitled Patricia Tiongson, et al. vs. National Housing Authority and Republic of the Philippines, G.R. No. 5516[6].8 (Emphasis and underscoring supplied) x x x, and prayed as follows: WHEREFORE, it is respectfully prayed of this Honorable Court that: 1. An order be issued provisionally fixing the value of said properties in the amount equal to the assessed value of the same and authorizing the plaintiff to enter or take possession and/or placing the plaintiff in possession of the parcels of land described above; (Emphasis and underscoring supplied) xxxx In the present petition, petitioners argue that since P.D. No. 1669 pursuant to which NHA took possession of their properties in 1978 was declared unconstitutional, "[n]ecessarily, in thereafter resurrecting the filing of another (sic) complaint for expropriation of the same properties," it would be unlawful . . . to fix the reckoning period for purposes of computing the just compensation . . . based on [NHAs] previous unlawful taking of said properties in 1978." They thus maintain that the trial courts Order of April 29, 1997 holding that the determination of the just compensation of their properties should be reckoned from the date NHA filed the petition before the RTC on September 14, 1987 is in order. The petition is impressed with merit. In declaring, in its challenged Decision, that the determination of just compensation should be reckoned from NHAs taking of the properties in 1978, the appellate court simply relied on Annex "C" of NHAs petition before it, the Order dated June 15, 1988 of the then Presiding Judge of the trial court reading: In this condemnation proceedings, by agreement of the parties, the total value of the properties to be condemned is hereby fixed at P14,264,465.00, provisionally, and considering the admission of the parties that plaintiff has taken possession of the properties in question sometime in 1978, or long before the complaint in this case was filed, plaintiff is hereby authorized to retain possession thereof upon its depositing with the City Treasurer of Manila the aforesaid sum of P14,264,465.00 subject to the Orders of this Court and forthwith submit the Official Receipt of the said deposit to this Court,9 (Emphasis and underscoring supplied),

Tiongson vs. National Housing Authority and thus concluded that "the parties admitted that [NHA] took possession of the subject properties as early as 1978." The appellate court reached that conclusion, despite its recital of the antecedents of the case including herein petitioners sustained moves, even before the trial court, in maintaining that the reckoning of just compensation should be from the date of filing of the petition for expropriation on September 14, 1987.
The earlier-quoted allegations of the body and prayer in NHAs Petition for Expropriation filed before the RTC constitute judicial admissions10 of NHA that it possessed the subject properties until this Courts declaration, in its above-stated Decision in G.R. No. L-55166 promulgated on May 21, 1987, that P.D. No. 1669 pursuant to which NHA took possession of the properties of petitioners in 1978 was unconstitutional and, therefore, null and void. These admissions, the appellate court either unwittingly failed to consider or escaped its notice. Petitioners even brought to the appellate courts attention, in their Motion for Reconsideration11 of its Decision of June 16, 1999, the fact that they had called the trial courts attention to NHAs allegation-admissions in the body and prayer of its petition. But the appellate court, by Resolution of October 7, 1999,12 denied petitioners motion upon the ground that it raised substantially the same issues that were already considered and passed upon in arriving at its decision. The appellate courts June 16, 1999 decision glaringly shows, however, that the matter of judicial admissions of NHA in the body and prayer in its petition were not considered by it. Following then Rule 67, Section 4 of the Rules of Court reading: SEC. 4. Order of expropriation. If the objections to and the defenses against the right of the plaintiff to expropriate the property are overruled, or when no party appears to defend as required by this Rule, the court may issue an order of expropriation declaring that the plaintiff has a lawful right to take the property sought to be expropriated, for the public use or purpose described in the complaint, upon the payment of just compensation to be determined as of the date of the taking of the property or the filing of the complaint, whichever came first. x x x x (Emphasis and underscoring supplied), vis a vis the factual backdrop of the case, the just compensation of petitioners properties must be determined "as of the date of . . . the filing of [NHAs] complaint" on September 14, 1987." WHEREFORE, the challenged June 16, 1999 Decision of the Court of Appeals is REVERSED and SET ASIDE and the April 29, 1997 Order of Branch 41 of the Regional Trial Court of Manila in Civil Case No. 87-42018 is REINSTATED. SO ORDERED.

Republic vs CA

FIRST DIVISION

REPUBLIC OF THE PHILIPPINES THROUGH THE DEPARTMENT OF PUBLIC WORKS AND HIGHWAYS, Petitioner,

G.R. No. 160379

Present: PUNO, C.J., Chairperson, CARPIO, CORONA, LEONARDO-DE CASTRO, and BERSAMIN, JJ. Promulgated:

- versus -

COURT OF APPEALS and ROSARIO RODRIGUEZ REYES, Respondents. August 14, 2009 x-----------------------------------------------------------------------------------------x

DECISION
CARPIO, J.:

The Case This is a petition for review[1] of the Court of Appeals Decision[2] dated 15 November 2002 and Resolution dated 17 September 2003 in CA-G.R. CV No. 50358. The Court of Appeals affirmed with modifications the Amended Decision of the Regional Trial Court of Cagayan de Oro City, Branch 19 (RTC). The Antecedent Facts

Republic vs CA

Private respondent Rosario Rodriguez Reyes is the absolute owner of a parcel of land identified as Lot 849-B and covered by TCT No. T-7194. The 1,043-square meter lot is situated on Claro M. Recto and Osmea Streets, Cagayan de Oro City. On 6 November 1990, private respondent received a letter from petitioner Republic of the Philippines, through the Department of Public Works and Highways (DPWH), requesting permission to enter into a portion of private respondents lot consisting of 663 square meters, and to begin construction of the Osmea Street extension road. On 20 December 1990, petitioner took possession of private respondents property without initiating expropriation proceedings. Consequently, on 4 and 7 January 1991, private respondent sent letters to the DPWH stating her objection to the taking of her property. On 16 May 1991, private respondent sent a letter to the City Appraisal Committee (CAC) rejecting the latters appraisal of the subject property, to wit: [3]
Declared Tax Market Value Recommended Owner Declaration 1981 Schedule Appraised No. Value Rosario Reyes 90066 P400/sq.m. P4,000/sq.m. Description

1 to 20 meters from Claro M. Recto Super Highway 21 to 40 meters from Claro M. Recto Super Highway 41 to 60 meters from Claro M. Recto Super Highway

P3,200/sq.m.

P2,400/sq.m.

In the same letter, private respondent requested the City Assessor for a reappraisal of her property, but said request was denied.[4] On 17 March 1992 , private respondent filed with the Regional Trial Court (RTC) of Cagayan de Oro City a complaint claiming just compensation and damages against petitioner. On 30 June 1993, the RTC appointed three commissioners[5] to determine the subject propertys fair market value, as well as the consequential benefits and damages of its expropriation. On 15 September 1993, one of the three commissioners, Provincial Assessor Corazon Beltran, submitted to the RTC a separate report, the dispositive portion of which reads:
WHEREFORE, the undersigned deems it only to be just, fair and reasonable to adopt the market value of FOUR THOUSAND PESOS (P4,000.00) per square meter as the highest price obtaining and prevailing in 1990, the time of the taking of the property subject of the above entitled case, and fairly reasonable also to impose an additional value equivalent to 5% of the market value as fixed for severance fee.[6]

Republic vs CA

On 13 April 1994, the scheduled hearing was reset to 19 May 1994, to give private respondent (plaintiff) time to consider the offer of petitioner (defendant) to amicably settle the case and to accept the just compensation of P3,200 per square meter, or a total of P2,212,600, for the 663-square meter portion of private respondents lot.[7] On 16 May 1994, private respondent filed with the RTC an Urgent Motion to Deposit The Amount of P2,121,600 in Court, alleging that petitioners counsel previously manifested in open court that the amount of P2,121,600 was ready for release should the amount be acceptable to private respondent, and praying that said amount of P2,121,600 be deposited by petitioner with the trial court.[8] The RTC granted the motion in an Order dated 16 June 1994.[9]However, it was only on 21 October 1994 that petitioner deposited with the RTC Clerk of Court a Landbank check amounting to P2,121,600 as just compensation.[10] On 16 June 1994, the RTC ordered the commissioners to submit their report as soon as possible, but until the scheduled hearing on 15 July 1994, the commissioners still failed to submit their report. Upon motion of private respondent, the RTC issued an order appointing a new set of commissioners.[11] On 11 October 1994, the new commissioners submitted their report, the pertinent portions of which provide, thus:
COMMISSIONERS REPORT xxx The property litigated upon is strategically located along Recto Avenue (National Highway) which is a commercial district. Fronting it across the national highway is the Cagayan Coca Cola Plant and the Shell Gasoline Station. It adjoins an establishment known as the Palana Grocery Store and after it is the Northern Mindanao Development Bank. Three Hundred (300) meters to the west of plaintiffs property is the gigantic structure of the Gaisano City department store along Recto Avenue and Corrales Avenue Extension. Towards the eastern direction of the property are banking institution buildings and the Ororama Superstore along the national highway (Recto Avenue) and the Limketkai Commercial Complex. For purpose of affording a fair assessment of the market value of plaintiffs property, the herein Commissioners have divided the whole parcel of land into three parts, viz: 1. Front portion along Recto Avenue measuring 21.52 meters from south to north ------------- 347.66 SQM 2. Middle portion with a measurement of 21.52 meters --------------------------------------------- 347.66 SQM 3. Rear/back portion with a measurement of 21.52 meters ------------------------------------ 347.66 SQM TOTAL AREA: ------- 1,043 SQM

Republic vs CA

Taking into consideration, among others, the location of the property and a research of the prevailing prices of lots proximate to and/or near the vicinity of plaintiff's property, the undersigned Commissioners respectfully recommend to the Honorable Court the following valuation, to wit: (CURRENT VALUE) 1. Front portion along Recto Avenue with a measurement of 21.52 meters from south to north with an area of 347.66 square meters at P18,000.00 toP20,000.00 per square meter; 2. Middle portion with a measurement of 21.52 meters containing an area of 347.66 square meters at P16,000.00 to P18,000.00 per square meter; 3. Rear/back portion measuring 21.52 meters with an area of 347.66 square meters at P14,000.00 to P16,000.00 per square meter; VALUATION AS OF 1990 1. Front Portion - P10,000.00 to P12,000.00 per square meter; 2. Middle Portion- P8,000.00 to P10,000.00 per square meter; 3. Rear Portion - P6,000.00 to P8,000.00 per square meter; The undersigned Commissioners would however like to bring to the attention of the Honorable Court that in the subdivision plan prepared by the City Engineers Office, the whole of plaintiffs property was subdivided into three (3) lots designated as follows:

Lot 849-B-1 (Road Lot)-83 square meters; Lot 849-B-2 (Road Lot traversed by the RCDP Osmea Extension Lot 849-B-3 remaining portion with an area of 297 square meters; In effect, what has been taken over and used by the defendant is not only 663 square meters but 746 square meters, more or less, which includes Lot No. 849-B-1. On the other hand, the remaining portion left to the plaintiff, Lot No. 849-B-3 will not actually be 297 square meters. If we deduct the setback area from Osmea Extension Street, the usable/buildable area left to the plaintiff would only be a little over 50 square meters. This portion would not command a good price if sold. Neither is it ideal for purposes of any building construction because aside from its being a very small strip of land, the shape is triangular.[12] Street)-663 SQM;

The Trial Courts Ruling On 2 June 1995, the RTC rendered a Decision, the dispositive portion of which reads:

Republic vs CA

WHEREFORE, judgment is hereby rendered in favor of the plaintiff and against the defendants, declaring the former as having the right to retain 590 square meters of the property covered by TCT No. T-7194, and ordering the latter to return 210 square meters of the 663 square meters taken; that defendants are solidarily liable to pay the sum ofP5,526,000.00, the fair market value of 1990 (sic), as just compensation for the 536 square meters taken for the Osmea street extension; to pay P185,000.00 representing damages for 37 months computed at the rate of P5,000.00 per month from the filing of this case; and Attorneys fees of P10,000.00 plus costs of suit. Plaintiff herein is ordered to forthwith defray the expenses to be incurred in undertaking the road construction of the 210 square meters which the defendants will later on provide along the right portion of her property.

SO ORDERED.[13] On 15 June 1995, the RTC rendered an Amended Decision with the following dispositive portion, thus:
WHEREFORE, judgment is hereby rendered in favor of the plaintiff and against the defendants, declaring the former as having the right to retain 590 square meters of the property covered by TCT No. T-7194, and ordering the latter to return 293 square meters of the 746 square meters taken; that defendants are solidarily liable to pay the sum ofP4,696,000.00, the fair market value of 1990 (sic), as just compensation for the 453 square meters taken for the Osmea Street extension; to pay P185,000.00 representing damages for 37 months computed at the rate of P5,000.00 per month from the filing of this case; and Attorneys fees of P10,000.00 plus costs of suit. Plaintiff herein is ordered to forthwith defray the expenses to be incurred in undertaking the road construction of the 293 square meters which the defendants will later on provide along the right portion of her property.

SO ORDERED.[14]

The Court of Appeals Ruling On appeal by petitioner, the Court of Appeals rendered judgment,[15] affirming with modifications the decision of the RTC. The Court of Appeals found that the commissioners recommendations on just compensation were not supported by valid documents. Also, it was unclear in the RTC decision whether the trial court merely adopted the commissioners recommendations or the court made its own independent valuation of the subject property. Thus, the Court of Appeals held that a reconvening of the commissioners or an appointment of new commissioners to determine just compensation was necessary. The appellate court further held that the trial courts order for petitioners return of the 293 -square meter lot had no legal basis and was no longer feasible since the lot was already part of the completed Sergio Osmea extension

Republic vs CA

road. Moreover, consequential damages should be awarded in lieu of actual damages for private respondents alleged loss of income from the remaining 297 -square meter lot. We quote the dispositive portion of the Court of Appeals decision below. WHEREFORE , the appealed judgment is hereby MODIFIED. 1. The case is REMANDED to the trial court which is ordered to reconvene the commissioners or appoint new commissioners to determine, in accordance with this Decision, the amount of just compensation due to plaintiff-appellee Rosario Rodriguez Reyes for the 746 square meters of land taken from her and consequential damages to the 297-square meter portion left. 2. Defendant-appellant DWPH[16] is ordered to pay plaintiff-appellee the following amounts:
a. the balance, if any, of just compensation to be finally determined after deducting the amount of P2,161,600.00[17] DPWH previously advanced and deposited with the trial court; b. 6% legal interest per annum on the amount it provisionally deposited from the time of taking up to the time it is deposited with the trial court on October 21, 1994; and on the balance, if any, from the time of taking on December 20, 1990 until fully paid; c. attorneys fees of P20,000.00. 3. Defendant-appellant City Government of Cagayan de Oro is relieved from any liability; 4. 5. The award of P185,000.00 as actual damages is deleted; No pronouncement as to costs. SO ORDERED.[18]

Petitioner filed a Motion for Reconsideration, but this was denied by the Court of Appeals in its Resolution of 17 September 2003.[19] Hence, this appeal.

The Issues Petitioner raises the following issues:

Republic vs CA

1.

Whether the Court of Appeals erred in ordering the remand of the case to the trial court, to order the reconvening of the commissioners or appointment of new commissioners to determine the consequential damages for the remaining 297- square meter lot; and Whether the Court of Appeals erred in ordering petitioner to pay attorneys fees.

2.

The Courts Ruling We find the appeal unmeritorious. On whether the Court of Appeals erred in ordering the remand of the case to the trial court to order the reconvening of the commissioners or appointment of new commissioners to determine the consequential damages for the remaining 297-square meter lot Eminent domain is the authority and right of the State, as sovereign, to take private property for public use upon observance of due process of law and payment ofjust compensation.[20] The Constitution provides that, [p]rivate property shall not be taken for public use without just compensation.[21] Just compensation is the full and fair equivalent of the property sought to be expropriated.[22] Among the factors to be considered in arriving at the fair market value of the property are the cost of acquisition, the current value of like properties, its actual or potential uses, and in the particular case of lands, their size, shape, location, and the tax declarations thereon.[23] The measure is not the takers gain but the owners loss.[24] To be just, the compensation must be fair not only to the owner but also to the taker.[25] J ust compensation is based on the price or value of the property at the time it was taken from the owner and appropriated by the government.[26] However, if the government takes possession before the institution of expropriation proceedings, the value should be fixed as of the time of the taking of said possession, not of the filing of the complaint. The value at the time of the filing of the complaint should be the basis for the determination of the value when the taking of the property involved coincides with or is subsequent to the commencement of the proceedings.[27] The procedure for determining just compensation is set forth in Rule 67 of the 1997 Rules of Civil Procedure. Section 5 of Rule 67 partly states that [u]pon the rendition of the order of

Republic vs CA

expropriation, the court shall appoint not more than three (3) competent and disinterested persons as commissioners to ascertain and report to the court the just compensation for the property sought to be taken. However, we held in Republic v. Court of Appeals[28] that Rule 67 presupposes a prior filing of complaint for eminent domain with the appropriate court by the expropriator. If no such complaint is filed, the expropriator is considered to have violated procedural requirements, and hence, waived the usual procedure prescribed in Rule 67, including the appointment of commissioners to ascertain just compensation.[29] In National Power Corporation v. Court of Appeals,[30] we clarified that when there is no action for expropriation and the case involves only a complaint for damages or just compensation, the provisions of the Rules of Court on ascertainment of just compensation (i.e., provisions of Rule 67) are no longer applicable, and a trial before commissioners is dispensable, thus:
In this case, NPC appropriated Pobres Property without resort to expropriation proceedings. NPC dismissed its own complaint for the second expropriation. At no point did NPC institute expropriation proceedings for the lots outside the 5,554 square-meter portion subject of the second expropriation. The only issues that the trial court had to settle were the amount of just compensation and damages that NPC had to pay Pobre. This case ceased to be an action for expropriation when NPC dismissed its complaint for expropriation. Since this case has been reduced to a simple case of recovery of damages, the provisions of the Rules of Court on the ascertainment of the just compensation to be paid were no longer applicable. A trial before commissioners, for instance, was dispensable.[31]

In this case, petitioner took possession of the subject property without initiating expropriation proceedings. Consequently, private respondent filed the instant case for just compensation and damages. To determine just compensation, the trial court appointed three commissioners pursuant to Section 5 of Rule 67 of the 1997 Rules of Civil Procedure. None of the parties objected to such appointment. The trial courts appointment of commissioners in this particular case is not improper. The appointment was done mainly to aid the trial court in determining just compensation, and it was not opposed by the parties. Besides, the trial court is not bound by the commissioners recommended valuation of the subject property. The court has the discretion on whether to adopt the commissioners valuation or to substitute its own estimate of the value as gathered from the records.[32] However, we agree with the appellate court that the trial courts decision is not clear as to its basis for ascertaining just compensation. The trial court mentioned in its decision the valuations in the reports of the City Appraisal Committee and of the commissioners appointed pursuant to Rule 67. But whether the trial court considered these valuations in arriving at the just compensation, or the court made its own independent valuation based on the records, was obscure in the decision. The trial court simply gave the total amount of just compensation due to the property owner

Republic vs CA

without laying down its basis. Thus, there is no way to determine whether the adjudged just compensation is based on competent evidence. For this reason alone, a remand of the case to the trial court for proper determination of just compensation is in order. In National Power Corporation v. Bongbong,[33] we held that although the determination of just compensation lies within the trial courts discretion, it should not be done arbitrarily or capriciously. The decision of the trial court must be based on all established rules, correct legal principles, and competent evidence.[34] The court is proscribed from basing its judgment on speculations and surmises.[35] Petitioner questions the appellate courts decision to remand the case to determine the consequential damages for the remaining 297-square meter lot of private respondent. Petitioner contends that no consequential damages may be awarded as the remaining lot was not actually taken by the DPWH, and to award consequential damages for the lot which was retained by the owner is tantamount to unjust enrichment on the part of the latter. Petitioners contention is unmeritorious. No actual taking of the remaining portion of the real property is necessary to grant consequential damages. If as a result of the expropriation made by petitioner, the remaining lot (i.e., the 297-square meter lot) of private respondent suffers from an impairment or decrease in value, consequential damages may be awarded to private respondent. On the other hand, if the expropriation results to benefits to the remaining lot of private respondent, these consequential benefits[36] may be deducted from the awarded consequential damages, if any, or from the market value of the expropriated property. We held in B.H. Berkenkotter & Co. v. Court of Appeals[37] that:
To determine just compensation, the trial court should first ascertain the market value of the property, to which should be added the consequential damages after deducting therefrom the consequential benefits which may arise from the expropriation. If the consequential benefits exceed the consequential damages, these items should be disregarded altogether as the basic value of the property should be paid in every case.

Section 6 of Rule 67 of the Rules of Civil Procedure provides:

x x x The commissioners shall assess the consequential damages to the property not taken and deduct from such consequential damages the consequential benefits to be derived by the owner from the public use or purpose of the property taken, the operation of its franchise by the corporation or the carrying on of the business of the corporation or person taking the property. But in no case shall the consequential benefits assessed exceed the consequential damages assessed, or the owner be deprived of the actual value of his property so taken.

Republic vs CA

An award of consequential damages for property not taken is not tantamount to unjust enrichment of the property owner. There is unjust enrichment when a person unjustly retains a benefit to the loss of another, or when a person retains money or property of another against the fundamental principles of justice, equity and good conscience.[38] Article 22 of the Civil Code provides that [e]very person who through an act of performance by another, or any other means, acquires or comes into possession of something at the expense of the latter without just or legal ground, shall return the same to him. The principle of unjust enrichment under Article 22 requires two conditions: (1) that a person is benefited without a valid basis or justification, and (2) that such benefit is derived at anothers expense or damage.[39] There is no unjust enrichment when the person who will benefit has a valid claim to such benefit.[40] As stated, consequential damages are awarded if as a result of the expropriation, the remaining property of the owner suffers from an impairment or decrease in value. Thus, there is a valid basis for the grant of consequential damages to the property owner, and no unjust enrichment can result therefrom.

On whether the Court of Appeals erred in ordering petitioner to pay attorneys fees.

The Court of Appeals did not err in granting attorneys fees to private respondent. Article 2208(2) of the New Civil Code provides that attorneys fees may be awarded:
xxx (2) When the defendants act or omission has compelled the plaintiff to litigate with third persons or to incur expenses to protect his interest. xxx

Attorneys fees may be awarded by a court if one who claims it is compelled to litigate with third persons or to incur expenses to protect ones interest by reason of an unjustified act or omission on the part of the party from whom it is sought. [41] In this case, petitioner took possession of private respondents real property without initiating expropriation proceedings, and over the latters objection. As a result, private respondent was compelled to litigate and incur expenses to protect her interests over her property. Thus, the appellate courts award of attorneys fees is proper, viz:

Republic vs CA

We find, however, the award of attorneys fees in plaintiff-appellees favor justified. x x x It is admitted that defendant-appellant DPWH neglected to file the appropriate expropriation proceedings before taking over plaintiff-appellees land. That their road contractor no longer has any portion to work on except on plaintiff-appellees property is no justification for the precipitate taking of her lot. It is incumbent upon defendant-appellant DPWH to foresee whether private lands will be affected by their project and to file appropriate expropriation proceedings if necessary. They did not do so. Thus, plaintiff-appellee was constrained to institute the instant suit to protect her rights.[42]

WHEREFORE, we DENY the petition. We AFFIRM the Court of Appeals Decision dated 15 November 2002 and Resolution dated 17 September 2003 in CA-G.R. CV No. 50358. SO ORDERED.

Republic vs Lim

EN BANC

[G.R. No. 161656. June 29, 2005]

REPUBLIC OF THE PHILIPPINES, GENERAL ROMEO ZULUETA, COMMODORE EDGARDO GALEOS, ANTONIO CABALUNA, DOROTEO MANTOS & FLORENCIO BELOTINDOS, petitioners, vs. VICENTE G. LIM, respondent. RESOLUTION
SANDOVAL-GUTIERREZ, J.:

Justice is the first virtue of social institutions.[1] When the state wields its power of eminent domain, there arises a correlative obligation on its part to pay the owner of the expropriated property a just compensation. If it fails, there is a clear case of injustice that must be redressed. In the present case, fifty-seven (57) years have lapsed from the time the Decision in the subject expropriation proceedings became final, but still the Republic of the Philippines, herein petitioner, has not compensated the owner of the property. To tolerate such prolonged inaction on its part is to encourage distrust and resentment among our people the very vices that corrode the ties of civility and tempt men to act in ways they would otherwise shun. A revisit of the pertinent facts in the instant case is imperative. On September 5, 1938, the Republic of the Philippines (Republic) instituted a special civil action for expropriation with the Court of First Instance (CFI) of Cebu, docketed as Civil Case No. 781, involving Lots 932 and 939 of the Banilad Friar Land Estate, Lahug, Cebu City, for the purpose of establishing a military reservation for the Philippine Army. Lot 932 was registered in the name of Gervasia Denzon under Transfer Certificate of Title (TCT) No. 14921 with an area of 25,137 square meters, while Lot 939 was in the name of Eulalia Denzon and covered by TCT No. 12560 consisting of 13,164 square meters. After depositing P9,500.00 with the Philippine National Bank, pursuant to the Order of the CFI dated October 19, 1938, the Republic took possession of the lots. Thereafter, or on May 14, 1940, the CFI rendered its Decision ordering the Republic to pay the Denzons the sum of P4,062.10 as just compensation. The Denzons interposed an appeal to the Court of Appeals but it was dismissed on March 11, 1948. An entry of judgment was made on April 5, 1948. In 1950, Jose Galeos, one of the heirs of the Denzons, filed with the National Airports Corporation a claim for rentals for the two lots, but it denied knowledge of the matter. Another heir, Nestor Belocura, brought the claim to the Office of then President Carlos Garcia who wrote the Civil Aeronautics Administration and the Secretary of National Defense to expedite action on said claim. On September 6, 1961, Lt. Manuel Cabal rejected the claim but expressed willingness to pay the appraised value of the lots within a reasonable time. For failure of the Republic to pay for the lots, on September 20, 1961, the Denzons successors-ininterest, Francisca Galeos-Valdehueza and Josefina Galeos-Panerio,[2] filed with the same CFI an action for recovery of possession with damages against the Republic and officers of the Armed Forces of the Philippines in possession of the property. The case was docketed as Civil Case No. R-7208.

Republic vs Lim

In the interim or on November 9, 1961, TCT Nos. 23934 and 23935 covering Lots 932 and 939 were issued in the names of Francisca Valdehueza and Josefina Panerio, respectively. Annotated thereon was the phrase subject to the priority of the National Airports Corporation to acquire said parcels of land, Lots 932 and 939 upon previous payment of a reasonable marke t value. On July 31, 1962, the CFI promulgated its Decision in favor of Valdehueza and Panerio, holding that they are the owners and have retained their right as such over Lots 932 and 939 because of the Republics failure to pay the amount of P4,062.10, adjudged in the expropriation proceedings. However, in view of the annotation on their land titles, they were ordered to execute a deed of sale in favor of the Republic. In view of the differences in money value from 1940 up to the present, the court a djusted the market value at P16,248.40, to be paid with 6% interest per annum from April 5, 1948, date of entry in the expropriation proceedings, until full payment. After their motion for reconsideration was denied, Valdehueza and Panerio appealed from the CFI Decision, in view of the amount in controversy, directly to this Court. The case was docketed as No. L21032.[3] On May 19, 1966, this Court rendered its Decision affirming the CFI Decision. It held that Valdehueza and Panerio are still the registered owners of Lots 932 and 939, there having been no payment of just compensation by the Republic. Apparently, this Court found nothing in the records to show that the Republic paid the owners or their successors-in-interest according to the CFI decision. While it deposited the amount of P9,500,00, and said deposit was allegedly disbursed, however, the payees could not be ascertained. Notwithstanding the above finding, this Court still ruled that Valdehueza and Panerio are not entitled to recover possession of the lots but may only demand the payment of their fair market value, ratiocinating as follows:

Appellants would contend that: (1) possession of Lots 932 and 939 should be restored to them as owners of the same; (2) the Republic should be ordered to pay rentals for the use of said lots, plus attorneys fees; and (3) the court a quo in the present suit had no power to fix the value of the lots and order the execution of the deed of sale after payment. It is true that plaintiffs are still the registered owners of the land, there not having been a transfer of said lots in favor of the Government. The records do not show that the Government paid the owners or their successors-in-interest according to the 1940 CFI decision although, as stated, P9,500.00 was deposited by it, and said deposit had been disbursed. With the records lost, however, it cannot be known who received the money (Exh. 14 says: It is further certified that the corresponding Vouchers and pertinent Journal and Cash Book were destroyed during the last World War, and therefore the names of the payees concerned cannot be ascertained.) And the Government now admits that there is no available record showing that payment for the value of the lots in question has been made (Stipulation of Facts, par. 9, Rec. on Appeal, p. 28). The points in dispute are whether such payment can still be made and, if so, in what amount. Said lots have been the subject of expropriation proceedings. By final and executory judgment in said proceedings, they were condemned for public use, as part of an airport, and ordered sold to the Government. In fact, the abovementioned title certificates secured by plaintiffs over said lots contained annotations of the right of the National Airports Corporation (now CAA) to pay for and acquire them. It follows that both by virtue of the judgment, long final, in the expropriation suit, as well as the annotations upon their title certificates, plaintiffs are not

Republic vs Lim

entitled to recover possession of their expropriated lots which are still devoted to the public use for which they were expropriated but only to demand the fair market value of the same.
Meanwhile, in 1964, Valdehueza and Panerio mortgaged Lot 932 to Vicente Lim, herein respondent,[4] as security for their loans. For their failure to pay Lim despite demand, he had the mortgage foreclosed in 1976. Thus, TCT No. 23934 was cancelled, and in lieu thereof, TCT No. 63894 was issued in his name. On August 20, 1992, respondent Lim filed a complaint for quieting of title with the Regional Trial Court (RTC), Branch 10, Cebu City, against General Romeo Zulueta, as Commander of the Armed Forces of the Philippines, Commodore Edgardo Galeos, as Commander of Naval District V of the Philippine Navy, Antonio Cabaluna, Doroteo Mantos and Florencio Belotindos, herein petitioners. Subsequently, he amended the complaint to implead the Republic. On May 4, 2001, the RTC rendered a decision in favor of respondent, thus:

WHEREFORE, judgment is hereby rendered in favor of plaintiff Vicente Lim and against all defendants, public and private, declaring plaintiff Vicente Lim the absolute and exclusive owner of Lot No. 932 with all the rights of an absolute owner including the right to possession. The monetary claims in the complaint and in the counter claims contained in the answer of defendants are ordered Dismissed.
Petitioners elevated the case to the Court of Appeals, docketed therein as CA-G.R. CV No. 72915. In its Decision[5] dated September 18, 2003, the Appellate Court sustained the RTC Decision, thus:

Obviously, defendant-appellant Republic evaded its duty of paying what was due to the landowners. The expropriation proceedings had already become final in the late 1940s and yet, up to now, or more than fifty (50) years after, the Republic had not yet paid the compensation fixed by the court while continuously reaping benefits from the expropriated property to the prejudice of the landowner. x x x. This is contrary to the rules of fair play because the concept of just compensation embraces not only the correct determination of the amount to be paid to the owners of the land, but also the payment for the land within a reasonable time from its taking. Without prompt payment, compensation cannot be considered just for the property owner is made to suffer the consequence of being immediately deprived of his land while being made to wait for a decade or more, in this case more than 50 years, before actually receiving the amount necessary to cope with the loss. To allow the taking of the landowners properties, and in the meantime leave them empty-handed by withholding payment of compensation while the government speculates on whether or not it will pursue expropriation, or worse, for government to subsequently decide to abandon the property and return it to the landowners, is undoubtedly an oppressive exercise of eminent domain that must never be sanctioned. (Land Bank of the Philippines vs. Court of Appeals, 258 SCRA 404). x x x x x x

An action to quiet title is a common law remedy for the removal of any cloud or doubt or uncertainty on the title to real property. It is essential for the plaintiff or complainant to have a legal or equitable title or interest in the real property, which is the subject matter of the action. Also the deed, claim, encumbrance or proceeding that is being alleged as cloud on plaintiffs title must be shown to be in

Republic vs Lim

fact invalid or inoperative despite its prima facie appearance of validity or legal efficacy (Robles vs. Court of Appeals, 328 SCRA 97). In view of the foregoing discussion, clearly, the claim of defendant-appellant Republic constitutes a cloud, doubt or uncertainty on the title of plaintiffappellee Vicente Lim that can be removed by an action to quiet title. WHEREFORE, in view of the foregoing, and finding no reversible error in the appealed May 4, 2001 Decision of Branch 9, Regional Trial Court of Cebu City, in Civil Case No. CEB-12701, the said decision is UPHELD AND AFFIRMED. Accordingly, the appeal is DISMISSED for lack of merit.
Undaunted, petitioners, through the Office of the Solicitor General, filed with this Court a petition for review on certiorari alleging that the Republic has remained the owner of Lot 932 as held by this Court in Valdehueza vs. Republic.[6] In our Resolution dated March 1, 2004, we denied the petition outright on the ground that the Court of Appeals did not commit a reversible error. Petitioners filed an urgent motion for reconsideration but we denied the same with finality in our Resolution of May 17, 2004. On May 18, 2004, respondent filed an ex-parte motion for the issuance of an entry of judgment. We only noted the motion in our Resolution of July 12, 2004. On July 7, 2004, petitioners filed an urgent plea/motion for clarification, which is actually a second motion for reconsideration. Thus, in our Resolution of September 6, 2004, we simply noted without action the motion considering that the instant petition was already denied with finality in our Resolution of May 17, 2004. On October 29, 2004, petitioners filed a very urgent motion for leave to file a motion for reconsideration of our Resolution dated September 6, 2004 (with prayer to refer the case to the En Banc). They maintain that the Republics right of ownership has been settled in Valdehueza. The basic issue for our resolution is whether the Republic has retained ownership of Lot 932 despite its failure to pay respondents predecessors-in-interest the just compensation therefor pursuant to the judgment of the CFI rendered as early as May 14, 1940. Initially, we must rule on the procedural obstacle. While we commend the Republic for the zeal with which it pursues the present case, we reiterate that its urgent motion for clarification filed on July 7, 2004 is actually a second motion for reconsideration. This motion is prohibited under Section 2, Rule 52, of the 1997 Rules of Civil Procedure, as amended, which provides:

Sec. 2. Second motion for reconsideration. No second motion for reconsideration of a judgment or final resolution by the same party shall be entertained.
Consequently, as mentioned earlier, we simply noted without action the motion since petitioners petition was already denied with finality. Considering the Republics urgent and serious insisten ce that it is still the owner of Lot 932 and in the interest of justice, we take another hard look at the controversial issue in order to determine the veracity of petitioners stance. One of the basic principles enshrined in our Constitution is that no person shall be deprived of his private property without due process of law; and in expropriation cases, an essential element of due process is that there must be just compensation whenever private property is taken for public

Republic vs Lim

use.[7] Accordingly, Section 9, Article III, of our Constitution mandates: Private property shall not be taken for public use without just compensation. The Republic disregarded the foregoing provision when it failed and refused to pay respondents predecessors-in-interest the just compensation for Lots 932 and 939. The length of time and the manner with which it evaded payment demonstrate its arbitrary high-handedness and confiscatory attitude. The final judgment in the expropriation proceedings (Civil Case No. 781) was entered on April 5, 1948. More than half of a century has passed, yet, to this day, the landowner, now respondent, has remained empty-handed. Undoubtedly, over 50 years of delayed payment cannot, in any way, be viewed as fair. This is more so when such delay is accompanied by bureaucratic hassles. Apparent from Valdehueza is the fact that respondents predecessors-in-interest were given a run around by the Republics officials and agents. In 1950, despite the benefits it derived from the use of the two lots, the National Airports Corporation denied knowledge of the claim of respondents predecessors-in-interest. Even President Garcia, who sent a letter to the Civil Aeronautics Administration and the Secretary of National Defense to expedite the payment, failed in granting relief to them. And, on September 6, 1961, while the Chief of Staff of the Armed Forces expressed willingness to pay the appraised value of the lots, nothing happened. The Court of Appeals is correct in saying that Republics delay is contrary to the rules of fair play, as just compensation embraces not only the correct determination of the amount to be paid to the owners of the land, but also the payment for the land within a reasonable time from its taking. Without prompt payment, compensation cannot be considered just. In jurisdictions similar to ours, where an entry to the expropriated property precedes the payment of compensation, it has been held that if the compensation is not paid in a reasonable time, the party may be treated as a trespasser ab initio.[8] Corollarily, in Provincial Government of Sorsogon vs. Vda. De Villaroya,[9] similar to the present case, this Court expressed its disgust over the governments vexatious delay in the payment of just compensation, thus:

The petitioners have been waiting for more than thirty years to be paid for their land which was taken for use as a public high school. As a matter of fair procedure, it is the duty of the Government, whenever it takes property from private persons against their will, to supply all required documentation and facilitate payment of just compensation. The imposition of unreasonable requirements and vexatious delays before effecting payment is not only galling and arbitrary but a rich source of discontent with government. There should be some kind of swift and effective recourse against unfeeling and uncaring acts of middle or lower level bureaucrats.
We feel the same way in the instant case. More than anything else, however, it is the obstinacy of the Republic that prompted us to dismiss its petition outright. As early as May 19, 1966, in Valdehueza, this Court mandated the Republic to pay respondents predecessors-in-interest the sum of P16,248.40 as reasonable market value of the two lots in question. Unfortunately, it did not comply and allowed several decades to pass without obeying this Courts mandate. Such prolonged obstinacy bespeaks of lack of respect to private rights and to the rule of law, which we cannot countenance. It is tantamount to confiscation of private property. While it is true that all private properties are subject to the need of government, and the government may take them whenever the necessity or the exigency of the occasion demands, however, the Constitution guarantees that when this governmental right of expropriation is exercised, it shall be attended by compensation.[10] From the taking of private property by the government under the power of eminent domain, there arises an implied promise to compensate the owner for his loss.[11]

Republic vs Lim

Significantly, the above-mentioned provision of Section 9, Article III of the Constitution is not a grant but a limitation of power. This limiting function is in keeping with the philosophy of the Bill of Rights against the arbitrary exercise of governmental powers to the detriment of the individuals rights . Given this function, the provision should therefore be strictly interpreted against the expropriator, the government, and liberally in favor of the property owner.[12] Ironically, in opposing respondents claim, the Republic is invoking this Courts Decision in Valdehueza, a Decision it utterly defied. How could the Republic acquire ownership over Lot 932 when it has not paid its owner the just compensation, required by law, for more than 50 years? The recognized rule is that title to the property expropriated shall pass from the owner to the expropriator only upon full payment of the just compensation. Jurisprudence on this settled principle is consistent both here and in other democratic jurisdictions. In Association of Small Landowners in the Philippines, Inc. et al., vs. Secretary of Agrarian Reform,[13] thus:

Title to property which is the subject of condemnation proceedings does not vest the condemnor until the judgment fixing just compensation is entered and paid, but the condemnors title relates back to the date on which the petition under the Eminent Domain Act, or the commissioners report under the Local Improvement Act, is filed. x x x Although the right to appropriate and use land taken for a canal is complete at the time of entry, title to the property taken remains in the owner until payment is actually made. (Emphasis supplied.) In Kennedy v. Indianapolis, the US Supreme Court cited several cases holding that title to property does not pass to the condemnor until just compensation had actually been made. In fact, the decisions appear to be uniform to this effect. As early as 1838, in Rubottom v. McLure, it was held that actual payment to the owner of the condemned property was a condition precedent to the investment of the title to the property in the State albeit not to the appropriation of it to public use. In Rexford v. Knight, the Court of Appeals of New York said that the construction upon the statutes was that the fee did not vest in the State until the payment of the compensation although the authority to enter upon and appropriate the land was complete prior to the payment. Kennedy further said that both on principle and authority the rule is . . . that the right to enter on and use the property is complete, as soon as the property is actually appropriated under the authority of law for a public use, but that the title does not pass from the owner without his consent, until just compensation has been made to him. Our own Supreme Court has held in Visayan Refining Co. v. Camus and Paredes, that: If the laws which we have exhibited or cited in the preceding discussion are attentively examined it will be apparent that the method of expropriation adopted in this jurisdiction is such as to afford absolute reassurance that no piece of land can be finally and irrevocably taken from an unwilling owner until compensation is paid...(Emphasis supplied.)
Clearly, without full payment of just compensation, there can be no transfer of title from the landowner to the expropriator. Otherwise stated, the Republics acquisition of ownership is conditioned upon the full payment of just compensation within a reasonable time.[14]

Republic vs Lim

Significantly, in Municipality of Bian v. Garcia[15] this Court ruled that the expropriation of lands consists of two stages, to wit:

x x x The first is concerned with the determination of the authority of the plaintiff to exercise the power of eminent domain and the propriety of its exercise in the context of the facts involved in the suit. It ends with an order, if not of dismissal of the action, of condemnation declaring that the plaintiff has a lawful right to take the property sought to be condemned, for the public use or purpose described in the complaint, upon the payment of just compensation to be determined as of the date of the filing of the complaint x x x. The second phase of the eminent domain action is concerned with the determination by the court of the just compensation for the property sought to be taken. This is done by the court with the assistance of not more than three (3) commissioners. x x x.
It is only upon the completion of these two stages that expropriation is said to have been completed. In Republic v. Salem Investment Corporation,[16] we ruled that, the process is not completed until payment of just compensation. Thus, here, the failure of the Republic to pay respondent and his predecessors-in-interest for a period of 57 years rendered the expropriation process incomplete. The Republic now argues that under Valdehueza, respondent is not entitled to recover possession of Lot 932 but only to demand payment of its fair market value. Of course, we are aware of the doctrine that non-payment of just compensation (in an expropriation proceedings) does not entitle the private landowners to recover possession of the expropriated lots. This is our ruling in the recent cases of Republic of the Philippines vs. Court of Appeals, et al.,[17] and Reyes vs. National Housing Authority.[18] However, the facts of the present case do not justify its application. It bears stressing that the Republic was ordered to pay just compensation twice, the firstwas in the expropriation proceedings and the second, in Valdehueza. Fifty-seven (57) years have passed since then. We cannot but construe the Republics failure to pay just compensation as a deliberate refusal on its part. Under such circumstance, recovery of possession is in order. In several jurisdictions, the courts held that recovery of possession may be had when property has been wrongfully taken or is wrongfully retained by one claiming to act under the power of eminent domain[19] or where a rightful entry is made and the party condemning refuses to pay the compensation which has been assessed or agreed upon;[20] or fails or refuses to have the compensation assessed and paid.[21] The Republic also contends that where there have been constructions being used by the military, as in this case, public interest demands that the present suit should not be sustained. It must be emphasized that an individual cannot be deprived of his property for the public convenience.[22] In Association of Small Landowners in the Philippines, Inc. vs. Secretary of Agrarian Reform,[23] we ruled:

One of the basic principles of the democratic system is that where the rights of the individual are concerned, the end does not justify the means. It is not enough that there be a valid objective; it is also necessary that the means employed to pursue it be in keeping with the Constitution. Mere expediency will not excuse constitutional shortcuts. There is no question that not even the strongest moral conviction or the most urgent public need, subject only to a few notable exceptions, will excuse the bypassing of an individual's rights. It is no exaggeration to say that a person invoking a right guaranteed under Article III of the Constitution is a majority of one even as against the rest of the nation who would deny him that right.

Republic vs Lim

The right covers the persons life, his liberty and his property under Section 1 of Article III of the Constitution. With regard to his property, the owner enjoys the added protection of Section 9, which reaffirms the familiar rule that private property shall not be taken for public use without just compensation.
The Republics assertion that the defense of the State will be in grave danger if we shall order the reversion of Lot 932 to respondent is an overstatement. First, Lot 932 had ceased to operate as an airport. What remains in the site is just the National Historical Institutes marking stating that Lot 932 is the former location of Lahug Airport. And second, there are only thirteen (13) structures located on Lot 932, eight (8) of which are residence apartments of military personnel. Only two (2) buildings are actually used as training centers. Thus, practically speaking, the reversion of Lot 932 to respondent will only affect a handful of military personnel. It will not result to irreparable damage or damage beyond pecuniary estimation, as what the Republic vehemently claims. We thus rule that the special circumstances prevailing in this case entitle respondent to recover possession of the expropriated lot from the Republic. Unless this form of swift and effective relief is granted to him, the grave injustice committed against his predecessors-in-interest, though no fault or negligence on their part, will be perpetuated. Let this case, therefore, serve as a wake-up call to the Republic that in the exercise of its power of eminent domain, necessarily in derogation of private rights, it must comply with the Constitutional limitations. This Court, as the guardian of the peoples right, will not stand still in the face of the Republics oppressive and confiscatory taking of private property, as in this case. At this point, it may be argued that respondent Vicente Lim acted in bad faith in entering into a contract of mortgage with Valdehueza and Panerio despite the clear annotation in TCT No. 23934 that Lot 932 is subject to the priority of the National Airports Corporation [to acquire said parcels of land] x x x upon previous payment of a reasonable market value. The issue of whether or not respondent acted in bad faith is immaterial considering that the Republic did not complete the expropriation process. In short, it failed to perfect its title over Lot 932 by its failure to pay just compensation. The issue of bad faith would have assumed relevance if the Republic actually acquired title over Lot 932. In such a case, even if respondents title was registered first, it would be the Republics title or right of ownership that shall be upheld. But now, assuming that respondent was in bad faith, can such fact vest upon the Republic a better title over Lot 932? We believe not. This is because in the first place, the Republic has no title to speak of. At any rate, assuming that respondent had indeed knowledge of the annotation, still nothing would have prevented him from entering into a mortgage contract involving Lot 932 while the expropriation proceeding was pending. Any person who deals with a property subject of an expropriation does so at his own risk, taking into account the ultimate possibility of losing the property in favor of the government. Here, the annotation merely served as a caveat that the Republic had a preferential right to acquire Lot 932 upon its payment of a reasonable market value. It did not proscribe Valdehueza and Panerio from exercising their rights of ownership including their right to mortgage or even to dispose of their property. In Republic vs. Salem Investment Corporation,[24] we recognized the owners absolute right over his property pending completion of the expropriation proceeding, thus:

It is only upon the completion of these two stages that expropriation is said to have been completed. Moreover, it is only upon payment of just compensation that title over the property passes to the government. Therefore, until the action for expropriation has been completed and terminated, ownership over the property being expropriated remains with the registered owner.Consequently, the

Republic vs Lim

latter can exercise all rights pertaining to an owner, including the right to dispose of his property subject to the power of the State ultimately to acquire it through expropriation.
It bears emphasis that when Valdehueza and Panerio mortgaged Lot 932 to respondent in 1964, they were still the owners thereof and their title had not yet passed to the petitioner Republic. In fact, it never did. Such title or ownership was rendered conclusive when we categorically ruled in Valdehueza that: It is true that plaintiffs are still the registered owners of the land, there not having been a transfer of said lots in favor of the Government. For respondents part, it is reasonable to conclude that he entered into the contract of mortgage with Valdehueza and Panerio fully aware of the extent of his right as a mortgagee. A mortgage is merely an accessory contract intended to secure the performance of the principal obligation. One of its characteristics is that it is inseparablefrom the property. It adheres to the property regardless of who its owner may subsequently be.[25] Respondent must have known that even if Lot 932 is ultimately expropriated by the Republic, still, his right as a mortgagee is protected. In this regard, Article 2127 of the Civil Code provides:

Art. 2127. The mortgage extends to the natural accessions, to the improvements, growing fruits, and the rents or income not yet received when the obligation becomes due, and to the amount of the indemnity granted or owing to the proprietor from the insurers of the property mortgaged, or in virtue of expropriation for public use, with the declarations, amplifications, and limitations established by law, whether the estate remains in the possession of the mortgagor or it passes in the hands of a third person.
In summation, while the prevailing doctrine is that the non -payment of just compensation does not entitle the private landowner to recover possession of the expropriated lots,[26] however, in cases where the government failed to pay just compensation within five (5)[27] years from the finality of the judgment in the expropriation proceedings, the owners concerned shall have the right to recover possession of their property. This is in consonance with the principle that the government ca nnot keep the property and dishonor the judgment.[28] To be sure, the five-year period limitation will encourage the government to pay just compensation punctually. This is in keeping with justice and equity. After all, it is the duty of the government, whenever it takes property from private persons against their will, to facilitate the payment of just compensation. In Cosculluela v. Court of Appeals,[29] we defined just compensation as not only the correct determination of the amount to be paid to the property owner but also the payment of the property within a reasonable time. Without prompt payment, compensation cannot be considered just. WHEREFORE, the assailed Decision of the Court of Appeals in CA-G.R. CV No. 72915 is AFFIRMED in toto. The Republics motion for reconsideration of our Resolution dated Marc h 1, 2004 is DENIED with FINALITY. No further pleadings will be allowed. Let an entry of judgment be made in this case. SO ORDERED.

Mactan Cebu International Airport Authority vs. Lozada

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 176625 MACTAN-CEBU INTERNATIONAL AIRPORT AUTHORITY and AIR TRANSPORTATION OFFICE, Petitioners, vs. BERNARDO L. LOZADA, SR., and the HEIRS OF ROSARIO MERCADO, namely, VICENTE LOZADA, MARIO M. LOZADA, MARCIA L. GODINEZ, VIRGINIA L. FLORES, BERNARDO LOZADA, JR., DOLORES GACASAN, SOCORRO CAFARO and ROSARIO LOZADA, represented by MARCIA LOZADA GODINEZ, Respondents. DECISION NACHURA, J.: This is a petition for review on certiorari under Rule 45 of the Rules of Court, seeking to reverse, annul, and set aside the Decision1 dated February 28, 2006 and the Resolution2 dated February 7, 2007 of the Court of Appeals (CA) (Cebu City), Twentieth Division, in CA-G.R. CV No. 65796. The antecedent facts and proceedings are as follows: Subject of this case is Lot No. 88-SWO-25042 (Lot No. 88), with an area of 1,017 square meters, more or less, located in Lahug, Cebu City. Its original owner was Anastacio Deiparine when the same was subject to expropriation proceedings, initiated by the Republic of the Philippines (Republic), represented by the then Civil Aeronautics Administration (CAA), for the expansion and improvement of the Lahug Airport. The case was filed with the then Court of First Instance of Cebu, Third Branch, and docketed as Civil Case No. R-1881. As early as 1947, the lots were already occupied by the U.S. Army. They were turned over to the Surplus Property Commission, the Bureau of Aeronautics, the National Airport Corporation and then to the CAA. During the pendency of the expropriation proceedings, respondent Bernardo L. Lozada, Sr. acquired Lot No. 88 from Deiparine. Consequently, Transfer Certificate of Title (TCT) No. 9045 was issued in Lozadas name. On December 29, 1961, the trial court rendered judgment in favor of the Republic and ordered the latter to pay Lozada the fair market value of Lot No. 88, adjudged at P3.00 per square meter, with consequential damages by way of legal interest computed from November 16, 1947the time when the lot was first occupied by the airport. Lozada received the amount of P3,018.00 by way of payment. The affected landowners appealed. Pending appeal, the Air Transportation Office (ATO), formerly CAA, proposed a compromise settlement whereby the owners of the lots affected by the expropriation proceedings would either not appeal or withdraw their respective appeals in consideration of a commitment that the expropriated lots would be resold at the price they were expropriated in the event that the ATO would abandon the Lahug Airport, pursuant to an established policy involving similar cases. Because of this promise, Lozada did not pursue his appeal. Thereafter, Lot No. 88 was transferred and registered in the name of the Republic under TCT No. 25057. The projected improvement and expansion plan of the old Lahug Airport, however, was not pursued. Lozada, with the other landowners, contacted then CAA Director Vicente Rivera, Jr., requesting to repurchase the lots, as per previous agreement. The CAA replied that there might still be a need for the Lahug Airport to be used as an emergency DC-3 airport. It reiterated, however, the assurance that "should this Office dispose and resell the properties which may be found to be no longer necessary as an airport, then the policy of this Office is to give priority to the former owners subject to the approval of the President."

Mactan Cebu International Airport Authority vs. Lozada On November 29, 1989, then President Corazon C. Aquino issued a Memorandum to the Department of Transportation, directing the transfer of general aviation operations of the Lahug Airport to the Mactan International Airport before the end of 1990 and, upon such transfer, the closure of the Lahug Airport.
Sometime in 1990, the Congress of the Philippines passed Republic Act (R.A.) No. 6958, entitled "An Act Creating the Mactan-Cebu International Airport Authority, Transferring Existing Assets of the Mactan International Airport and the Lahug Airport to the Authority, Vesting the Authority with Power to Administer and Operate the Mactan International Airport and the Lahug Airport, and For Other Purposes." From the date of the institution of the expropriation proceedings up to the present, the public purpose of the said expropriation (expansion of the airport) was never actually initiated, realized, or implemented. Instead, the old airport was converted into a commercial complex. Lot No. 88 became the site of a jail known as Bagong Buhay Rehabilitation Complex, while a portion thereof was occupied by squatters.3 The old airport was converted into what is now known as the Ayala I.T. Park, a commercial area.
1avv phi1

Thus, on June 4, 1996, petitioners initiated a complaint for the recovery of possession and reconveyance of ownership of Lot No. 88. The case was docketed as Civil Case No. CEB-18823 and was raffled to the Regional Trial Court (RTC), Branch 57, Cebu City. The complaint substantially alleged as follows: (a) Spouses Bernardo and Rosario Lozada were the registered owners of Lot No. 88 covered by TCT No. 9045; (b) In the early 1960s, the Republic sought to acquire by expropriation Lot No. 88, among others, in connection with its program for the improvement and expansion of the Lahug Airport; (c) A decision was rendered by the Court of First Instance in favor of the Government and against the land owners, among whom was Bernardo Lozada, Sr. appealed therefrom; (d) During the pendency of the appeal, the parties entered into a compromise settlement to the effect that the subject property would be resold to the original owner at the same price when it was expropriated in the event that the Government abandons the Lahug Airport; (e) Title to Lot No. 88 was subsequently transferred to the Republic of the Philippines (TCT No. 25057); (f) The projected expansion and improvement of the Lahug Airport did not materialize; (g) Plaintiffs sought to repurchase their property from then CAA Director Vicente Rivera. The latter replied by giving as assurance that priority would be given to the previous owners, subject to the approval of the President, should CAA decide to dispose of the properties; (h) On November 29, 1989, then President Corazon C. Aquino, through a Memorandum to the Department of Transportation and Communications (DOTC), directed the transfer of general aviation operations at the Lahug Airport to the Mactan-Cebu International Airport Authority; (i) Since the public purpose for the expropriation no longer exists, the property must be returned to the plaintiffs.4 In their Answer, petitioners asked for the immediate dismissal of the complaint. They specifically denied that the Government had made assurances to reconvey Lot No. 88 to respondents in the event that the property would no longer be needed for airport operations. Petitioners instead asserted that the judgment of condemnation was unconditional, and respondents were, therefore, not entitled to recover the expropriated property notwithstanding nonuse or abandonment thereof. After pretrial, but before trial on the merits, the parties stipulated on the following set of facts:

Mactan Cebu International Airport Authority vs. Lozada (1) The lot involved is Lot No. 88-SWO-25042 of the Banilad Estate, situated in the City of Cebu, containing an area of One Thousand Seventeen (1,017) square meters, more or less;
(2) The property was expropriated among several other properties in Lahug in favor of the Republic of the Philippines by virtue of a Decision dated December 29, 1961 of the CFI of Cebu in Civil Case No. R-1881; (3) The public purpose for which the property was expropriated was for the purpose of the Lahug Airport; (4) After the expansion, the property was transferred in the name of MCIAA; [and] (5) On November 29, 1989, then President Corazon C. Aquino directed the Department of Transportation and Communication to transfer general aviation operations of the Lahug Airport to the Mactan-Cebu International Airport Authority and to close the Lahug Airport after such transfer[.]5 During trial, respondents presented Bernardo Lozada, Sr. as their lone witness, while petitioners presented their own witness, Mactan-Cebu International Airport Authority legal assistant Michael Bacarisas. On October 22, 1999, the RTC rendered its Decision, disposing as follows: WHEREFORE, in the light of the foregoing, the Court hereby renders judgment in favor of the plaintiffs, Bernardo L. Lozada, Sr., and the heirs of Rosario Mercado, namely, Vicente M. Lozada, Marcia L. Godinez, Virginia L. Flores, Bernardo M. Lozada, Jr., Dolores L. Gacasan, Socorro L. Cafaro and Rosario M. Lozada, represented by their attorneyin-fact Marcia Lozada Godinez, and against defendants Cebu-Mactan International Airport Authority (MCIAA) and Air Transportation Office (ATO): 1. ordering MCIAA and ATO to restore to plaintiffs the possession and ownership of their land, Lot No. 88 Psd821 (SWO-23803), upon payment of the expropriation price to plaintiffs; and 2. ordering the Register of Deeds to effect the transfer of the Certificate of Title from defendant[s] to plaintiffs on Lot No. [88], cancelling TCT No. 20357 in the name of defendant MCIAA and to issue a new title on the same lot in the name of Bernardo L. Lozada, Sr. and the heirs of Rosario Mercado, namely: Vicente M. Lozada, Mario M. Lozada, Marcia L. Godinez, Virginia L. Flores, Bernardo M. Lozada, Jr., Dolores L. Gacasan, Socorro L. Cafaro and Rosario M. Lozada. No pronouncement as to costs. SO ORDERED.6 Aggrieved, petitioners interposed an appeal to the CA. After the filing of the necessary appellate briefs, the CA rendered its assailed Decision dated February 28, 2006, denying petitioners appeal and affirming in toto the Decision of the RTC, Branch 57, Cebu City. Petitioners motion for reconsideration was, likewise, denied in the questioned CA Resolution dated February 7, 2007. Hence, this petition arguing that: (1) the respondents utterly failed to prove that there was a repurchase agreement or compromise settlement between them and the Government; (2) the judgment in Civil Case No. R-1881 was absolute and unconditional, giving title in fee simple to the Republic; and (3) the respondents claim of verbal assurances from government officials violates the Statute of Frauds. The petition should be denied. Petitioners anchor their claim to the controverted property on the supposition that the Decision in the pertinent expropriation proceedings did not provide for the condition that should the intended use of Lot No. 88 for the expansion of the Lahug Airport be aborted or abandoned, the property would revert to respondents, being its former owners. Petitioners cite, in support of this position, Fery v. Municipality of Cabanatuan,7 which declared that the Government

Mactan Cebu International Airport Authority vs. Lozada acquires only such rights in expropriated parcels of land as may be allowed by the character of its title over the properties
If x x x land is expropriated for a particular purpose, with the condition that when that purpose is ended or abandoned the property shall return to its former owner, then, of course, when the purpose is terminated or abandoned the former owner reacquires the property so expropriated. If x x x land is expropriated for a public street and the expropriation is granted upon condition that the city can only use it for a public street, then, of course, when the city abandons its use as a public street, it returns to the former owner, unless there is some statutory provision to the contrary. x x x. If, upon the contrary, however, the decree of expropriation gives to the entity a fee simple title, then, of course, the land becomes the absolute property of the expropriator, whether it be the State, a province, or municipality, and in that case the non-user does not have the effect of defeating the title acquired by the expropriation proceedings. x x x. When land has been acquired for public use in fee simple, unconditionally, either by the exercise of eminent domain or by purchase, the former owner retains no right in the land, and the public use may be abandoned, or the land may be devoted to a different use, without any impairment of the estate or title acquired, or any reversion to the former owner. x x x.8 Contrary to the stance of petitioners, this Court had ruled otherwise in Heirs of Timoteo Moreno and Maria Rotea v. Mactan-Cebu International Airport Authority,9 thus Moreover, respondent MCIAA has brought to our attention a significant and telling portion in the Decision in Civil Case No. R-1881 validating our discernment that the expropriation by the predecessors of respondent was ordered under the running impression that Lahug Airport would continue in operation As for the public purpose of the expropriation proceeding, it cannot now be doubted. Although Mactan Airport is being constructed, it does not take away the actual usefulness and importance of the Lahug Airport: it is handling the air traffic both civilian and military. From it aircrafts fly to Mindanao and Visayas and pass thru it on their flights to the North and Manila. Then, no evidence was adduced to show how soon is the Mactan Airport to be placed in operation and whether the Lahug Airport will be closed immediately thereafter. It is up to the other departments of the Government to determine said matters. The Court cannot substitute its judgment for those of the said departments or agencies. In the absence of such showing, the Court will presume that the Lahug Airport will continue to be in operation (emphasis supplied). While in the trial in Civil Case No. R-1881 [we] could have simply acknowledged the presence of public purpose for the exercise of eminent domain regardless of the survival of Lahug Airport, the trial court in its Decision chose not to do so but instead prefixed its finding of public purpose upon its understanding that "Lahug Airport will continue to be in operation." Verily, these meaningful statements in the body of the Decision warrant the conclusion that the expropriated properties would remain to be so until it was confirmed that Lahug Airport was no longer "in operation." This inference further implies two (2) things: (a) after the Lahug Airport ceased its undertaking as such and the expropriated lots were not being used for any airport expansion project, the rights vis--vis the expropriated Lots Nos. 916 and 920 as between the State and their former owners, petitioners herein, must be equitably adjusted; and (b) the foregoing unmistakable declarations in the body of the Decision should merge with and become an intrinsic part of the fallo thereof which under the premises is clearly inadequate since the dispositive portion is not in accord with the findings as contained in the body thereof.10 Indeed, the Decision in Civil Case No. R-1881 should be read in its entirety, wherein it is apparent that the acquisition by the Republic of the expropriated lots was subject to the condition that the Lahug Airport would continue its operation. The condition not having materialized because the airport had been abandoned, the former owner should then be allowed to reacquire the expropriated property.11 On this note, we take this opportunity to revisit our ruling in Fery, which involved an expropriation suit commenced upon parcels of land to be used as a site for a public market. Instead of putting up a public market, respondent Cabanatuan constructed residential houses for lease on the area. Claiming that the municipality lost its right to the property taken since it did not pursue its public purpose, petitioner Juan Fery, the former owner of the lots expropriated, sought to recover his properties. However, as he had admitted that, in 1915, respondent Cabanatuan acquired a fee simple title to the lands in question, judgment was rendered in favor of the municipality, following American jurisprudence,

Mactan Cebu International Airport Authority vs. Lozada particularly City of Fort Wayne v. Lake Shore & M.S. RY. Co.,12McConihay v. Theodore Wright,13 and Reichling v. Covington Lumber Co.,14 all uniformly holding that the transfer to a third party of the expropriated real property, which necessarily resulted in the abandonment of the particular public purpose for which the property was taken, is not a ground for the recovery of the same by its previous owner, the title of the expropriating agency being one of fee simple.
Obviously, Fery was not decided pursuant to our now sacredly held constitutional right that private property shall not be taken for public use without just compensation.15 It is well settled that the taking of private property by the Governments power of eminent domain is subject to two mandatory requirements: (1) that it is for a particular public purpose; and (2) that just compensation be paid to the property owner. These requirements partake of the nature of implied conditions that should be complied with to enable the condemnor to keep the property expropriated.16 More particularly, with respect to the element of public use, the expropriator should commit to use the property pursuant to the purpose stated in the petition for expropriation filed, failing which, it should file another petition for the new purpose. If not, it is then incumbent upon the expropriator to return the said property to its private owner, if the latter desires to reacquire the same. Otherwise, the judgment of expropriation suffers an intrinsic flaw, as it would lack one indispensable element for the proper exercise of the power of eminent domain, namely, the particular public purpose for which the property will be devoted. Accordingly, the private property owner would be denied due process of law, and the judgment would violate the property owners right to justice, fairness, and equity. In light of these premises, we now expressly hold that the taking of private property, consequent to the Governments exercise of its power of eminent domain, is always subject to the condition that the property be devoted to the specific public purpose for which it was taken. Corollarily, if this particular purpose or intent is not initiated or not at all pursued, and is peremptorily abandoned, then the former owners, if they so desire, may seek the reversion of the property, subject to the return of the amount of just compensation received. In such a case, the exercise of the power of eminent domain has become improper for lack of the required factual justification.17 Even without the foregoing declaration, in the instant case, on the question of whether respondents were able to establish the existence of an oral compromise agreement that entitled them to repurchase Lot No. 88 should the operations of the Lahug Airport be abandoned, we rule in the affirmative. It bears stressing that both the RTC, Branch 57, Cebu and the CA have passed upon this factual issue and have declared, in no uncertain terms, that a compromise agreement was, in fact, entered into between the Government and respondents, with the former undertaking to resell Lot No. 88 to the latter if the improvement and expansion of the Lahug Airport would not be pursued. In affirming the factual finding of the RTC to this effect, the CA declared Lozadas testimony is cogent. An octogenarian widower-retiree and a resident of Moon Park, California since 1974, he testified that government representatives verbally promised him and his late wife while the expropriation proceedings were on-going that the government shall return the property if the purpose for the expropriation no longer exists. This promise was made at the premises of the airport. As far as he could remember, there were no expropriation proceedings against his property in 1952 because the first notice of expropriation he received was in 1962. Based on the promise, he did not hire a lawyer. Lozada was firm that he was promised that the lot would be reverted to him once the public use of the lot ceases. He made it clear that the verbal promise was made in Lahug with other lot owners before the 1961 decision was handed down, though he could not name the government representatives who made the promise. It was just a verbal promise; nevertheless, it is binding. The fact that he could not supply the necessary details for the establishment of his assertions during cross-examination, but that "When it will not be used as intended, it will be returned back, we just believed in the government," does not dismantle the credibility and truthfulness of his allegation. This Court notes that he was 89 years old when he testified in November 1997 for an incident which happened decades ago. Still, he is a competent witness capable of perceiving and making his perception known. The minor lapses are immaterial. The decision of the competency of a witness rests primarily with the trial judge and must not be disturbed on appeal unless it is clear that it was erroneous. The objection to his competency must be made before he has given any testimony or as soon as the incompetency becomes apparent. Though Lozada is not part of the compromise agreement,18 he nevertheless adduced sufficient evidence to support his claim.19 As correctly found by the CA, unlike in Mactan Cebu International Airport Authority v. Court of Appeals,20 cited by petitioners, where respondent therein offered testimonies which were hearsay in nature, the testimony of Lozada was

Mactan Cebu International Airport Authority vs. Lozada based on personal knowledge as the assurance from the government was personally made to him. His testimony on cross-examination destroyed neither his credibility as a witness nor the truthfulness of his words.
Verily, factual findings of the trial court, especially when affirmed by the CA, are binding and conclusive on this Court and may not be reviewed. A petition for certiorari under Rule 45 of the Rules of Court contemplates only questions of law and not of fact.21 Not one of the exceptions to this rule is present in this case to warrant a reversal of such findings. As regards the position of petitioners that respondents testimonial evidence violates the Statute of Frauds, suffice it to state that the Statute of Frauds operates only with respect to executory contracts, and does not apply to contracts which have been completely or partially performed, the rationale thereof being as follows: In executory contracts there is a wide field for fraud because unless they be in writing there is no palpable evidence of the intention of the contracting parties. The statute has precisely been enacted to prevent fraud. However, if a contract has been totally or partially performed, the exclusion of parol evidence would promote fraud or bad faith, for it would enable the defendant to keep the benefits already delivered by him from the transaction in litigation, and, at the same time, evade the obligations, responsibilities or liabilities assumed or contracted by him thereby.22 In this case, the Statute of Frauds, invoked by petitioners to bar the claim of respondents for the reacquisition of Lot No. 88, cannot apply, the oral compromise settlement having been partially performed. By reason of such assurance made in their favor, respondents relied on the same by not pursuing their appeal before the CA. Moreover, contrary to the claim of petitioners, the fact of Lozadas eventual conformity to the appraisal of Lot No. 88 and his seeking the correction of a clerical error in the judgment as to the true area of Lot No. 88 do not conclusively establish that respondents absolutely parted with their property. To our mind, these acts were simply meant to cooperate with the government, particularly because of the oral promise made to them. The right of respondents to repurchase Lot No. 88 may be enforced based on a constructive trust constituted on the property held by the government in favor of the former. On this note, our ruling in Heirs of Timoteo Moreno is instructive, viz.: Mactan-Cebu International Airport Authority is correct in stating that one would not find an express statement in the Decision in Civil Case No. R-1881 to the effect that "the [condemned] lot would return to [the landowner] or that [the landowner] had a right to repurchase the same if the purpose for which it was expropriated is ended or abandoned or if the property was to be used other than as the Lahug Airport." This omission notwithstanding, and while the inclusion of this pronouncement in the judgment of condemnation would have been ideal, such precision is not absolutely necessary nor is it fatal to the cause of petitioners herein. No doubt, the return or repurchase of the condemned properties of petitioners could be readily justified as the manifest legal effect or consequence of the trial courts underlying presumption that "Lahug Airport will continue to be in operation" when it granted the complaint for eminent domain and the airport discontinued its activities. The predicament of petitioners involves a constructive trust, one that is akin to the implied trust referred to in Art. 1454 of the Civil Code, "If an absolute conveyance of property is made in order to secure the performance of an obligation of the grantor toward the grantee, a trust by virtue of law is established. If the fulfillment of the obligation is offered by the grantor when it becomes due, he may demand the reconveyance of the property to him." In the case at bar, petitioners conveyed Lots No. 916 and 920 to the government with the latter obliging itself to use the realties for the expansion of Lahug Airport; failing to keep its bargain, the government can be compelled by petitioners to reconvey the parcels of land to them, otherwise, petitioners would be denied the use of their properties upon a state of affairs that was not conceived nor contemplated when the expropriation was authorized. Although the symmetry between the instant case and the situation contemplated by Art. 1454 is not perfect, the provision is undoubtedly applicable. For, as explained by an expert on the law of trusts: "The only problem of great importance in the field of constructive trust is to decide whether in the numerous and varying fact situations presented to the courts there is a wrongful holding of property and hence a threatened unjust enrichment of the defendant." Constructive trusts are fictions of equity which are bound by no unyielding formula when they are used by courts as devices to remedy any situation in which the holder of legal title may not in good conscience retain the beneficial interest.

Mactan Cebu International Airport Authority vs. Lozada In constructive trusts, the arrangement is temporary and passive in which the trustees sole duty is to transfer the title and possession over the property to the plaintiff-beneficiary. Of course, the "wronged party seeking the aid of a court of equity in establishing a constructive trust must himself do equity." Accordingly, the court will exercise its discretion in deciding what acts are required of the plaintiff-beneficiary as conditions precedent to obtaining such decree and has the obligation to reimburse the trustee the consideration received from the latter just as the plaintiff-beneficiary would if he proceeded on the theory of rescission. In the good judgment of the court, the trustee may also be paid the necessary expenses he may have incurred in sustaining the property, his fixed costs for improvements thereon, and the monetary value of his services in managing the property to the extent that plaintiff-beneficiary will secure a benefit from his acts.
The rights and obligations between the constructive trustee and the beneficiary, in this case, respondent MCIAA and petitioners over Lots Nos. 916 and 920, are echoed in Art. 1190 of the Civil Code, "When the conditions have for their purpose the extinguishment of an obligation to give, the parties, upon the fulfillment of said conditions, shall return to each other what they have received x x x In case of the loss, deterioration or improvement of the thing, the provisions which, with respect to the debtor, are laid down in the preceding article shall be applied to the party who is bound to return x x x."23 On the matter of the repurchase price, while petitioners are obliged to reconvey Lot No. 88 to respondents, the latter must return to the former what they received as just compensation for the expropriation of the property, plus legal interest to be computed from default, which in this case runs from the time petitioners comply with their obligation to respondents. Respondents must likewise pay petitioners the necessary expenses they may have incurred in maintaining Lot No. 88, as well as the monetary value of their services in managing it to the extent that respondents were benefited thereby. Following Article 118724 of the Civil Code, petitioners may keep whatever income or fruits they may have obtained from Lot No. 88, and respondents need not account for the interests that the amounts they received as just compensation may have earned in the meantime. In accordance with Article 119025 of the Civil Code vis--vis Article 1189, which provides that "(i)f a thing is improved by its nature, or by time, the improvement shall inure to the benefit of the creditor x x x," respondents, as creditors, do not have to pay, as part of the process of restitution, the appreciation in value of Lot No. 88, which is a natural consequence of nature and time.26 WHEREFORE, the petition is DENIED. The February 28, 2006 Decision of the Court of Appeals, affirming the October 22, 1999 Decision of the Regional Trial Court, Branch 87, Cebu City, and its February 7, 2007 Resolution are AFFIRMED with MODIFICATION as follows: 1. Respondents are ORDERED to return to petitioners the just compensation they received for the expropriation of Lot No. 88, plus legal interest, in the case of default, to be computed from the time petitioners comply with their obligation to reconvey Lot No. 88 to them; 2. Respondents are ORDERED to pay petitioners the necessary expenses the latter incurred in maintaining Lot No. 88, plus the monetary value of their services to the extent that respondents were benefited thereby; 3. Petitioners are ENTITLED to keep whatever fruits and income they may have obtained from Lot No. 88; and 4. Respondents are also ENTITLED to keep whatever interests the amounts they received as just compensation may have earned in the meantime, as well as the appreciation in value of Lot No. 88, which is a natural consequence of nature and time; In light of the foregoing modifications, the case is REMANDED to the Regional Trial Court, Branch 57, Cebu City, only for the purpose of receiving evidence on the amounts that respondents will have to pay petitioners in accordance with this Courts decision. No costs. SO ORDERED.

Vda. De Ouano vs. Republic

FIRST DIVISION [G.R. No. 168770, February 09, 2011] ANUNCIACION VDA. DE OUANO, MARIO P. OUANO, LETICIA OUANO ARNAIZ, AND CIELO OUANO MARTINEZ, PETITIONERS, VS. THE REPUBLIC OF THE PHILIPPINES, THE MACTAN-CEBU INTERNATIONAL AIRPORT AUTHORITY, AND THE REGISTER OF DEEDS FOR THE CITY OF CEBU, RESPONDENTS. [G.R. NO. 168812] MACTAN-CEBU INTERNATIONAL AIRPORT AUTHORITY (MCIAA), PETITIONER, VS. RICARDO L. INOCIAN, IN HIS PERSONAL CAPACITY AND AS ATTORNEY-IN-FACT OF OLYMPIA E. ESTEVES, EMILIA E. BACALLA, RESTITUTA E. MONTANA, AND RAUL L. INOCIAN; AND ALETHA SUICO MAGAT, IN HER PERSONAL CAPACITY AND AS ATTORNEY-IN-FACT OF PHILIP M. SUICO, DORIS S. DELA CRUZ, JAMES M. SUICO, EDWARD M. SUICO, ROSELYN SUICO-LAWSIN, REX M. SUICO, KHARLA SUICO-GUTIERREZ, ALBERT CHIONGBIAN, AND JOHNNY CHAN, RESPONDENTS. DECISION
VELASCO JR., J.: At the center of these two (2) Petitions for Review on Certiorari under Rule 45 is the issue of the right of the former owners of lots acquired for the expansion of the Lahug Airport in Cebu City to repurchase or secure reconveyance of their respective properties. In the first petition, docketed as G.R. No. 168770, petitioners Anunciacion vda. de Ouano, Mario Ouano, Leticia Ouano Arnaiz and Cielo Ouano Martinez (the Ouanos) seek to nullify the Decision[1] dated September 3, 2004 of the Court of Appeals (CA) in CA-G.R. CV No. 78027, affirming the Order dated December 9, 2002 of the Regional Trial Court (RTC), Branch 57 in Cebu City, in Civil Case No. CEB-20743, a suit to compel the Republic of the Philippines and/or the Mactan-Cebu International Airport Authority (MCIAA) to reconvey to the Ouanos a parcel of land. The second petition, docketed as G.R. No. 168812, has the MCIAA seeking principally to annul and set aside the Decision[2] and Resolution[3] dated January 14, 2005 and June 29, 2005, respectively, of the CA in CA-G.R. CV No. 64356, sustaining the RTC, Branch 13 in Cebu City in its Decision of October 7, 1988 in Civil Case No. CEB-18370. Per its October 19, 2005 Resolution, the Court ordered the consolidation of both cases. Except for the names of the parties and the specific lot designation involved, the relevant factual antecedents which gave rise to these consolidated petitions are, for the most part, as set forth in the Court's Decision[4] of October 15, 2003, as reiterated in a Resolution[5] dated August 9, 2005, in G.R. No. 156273 entitled Heirs of Timoteo Moreno and Maria Rotea v. Mactan-Cebu International Airport Authority(Heirs of Moreno), and in other earlier related cases.[6] In 1949, the National Airport Corporation (NAC), MCIAA's predecessor agency, pursued a program to expand the Lahug Airport in Cebu City. Through its team of negotiators, NAC met and negotiated with the owners of the properties situated around the airport, which included Lot Nos. 744-A, 745-A, 746, 747, 761-A, 762-A, 763-A, 942, and 947 of the Banilad Estate. As the landowners would later claim, the government negotiating team, as a sweetener, assured them that they could repurchase their respective lands should the Lahug Airport expansion project do not push through or once the Lahug Airport closes or its operations transferred to Mactan-Cebu Airport. Some of the landowners accepted the assurance and executed deeds of sale with a right of repurchase. Others, however, including the owners of the aforementioned lots, refused to sell because the purchase price offered was viewed as way below market, forcing the hand of the Republic, represented by the then Civil Aeronautics Administration (CAA), as successor agency of the NAC, to file a complaint for the expropriation of Lot Nos. 744-A, 745-A, 746, 747, 761-A, 762-A, 763-A, 942, and 947, among others, docketed as Civil Case No. R-1881 entitled Republic v. Damian Ouano, et al. On December 29, 1961, the then Court of First Instance (CFI) of Cebu rendered judgment for the Republic, disposing, in part, as follows:

Vda. De Ouano vs. Republic

IN VIEW OF THE FOREGOING, judgment is hereby rendered: 1. Declaring the expropriation of Lots Nos. 75, 76, 76, 89, 90, 91, 92, 105, 106, 107, 108, 104, 921-A, 88, 93, 913-B, 72, 77, 916, 777-A, 918, 919, 920, 764-A, 988, 744-A, 745-A, 746, 747, 762-A, 763-A, 951, 942, 720-A, x x x and 947, included in the Lahug Airport, Cebu City, justified in and in lawful exercise of the right of eminent domain. xxxx 3. After the payment of the foregoing financial obligation to the landowners, directing the latter to deliver to the plaintiff the corresponding Transfer Certificates of Title to their respective lots; and upon the presentation of the said titles to the Register of Deeds, ordering the latter to cancel the same and to issue, in lieu thereof, new Transfer Certificates of Title in the name of the plaintiff.[7] In view of the adverted buy-back assurance made by the government, the owners of the lots no longer appealed the decision of the trial court.[8] Following the finality of the judgment of condemnation, certificates of title for the covered parcels of land were issued in the name of the Republic which, pursuant to Republic Act No. 6958,[9]were subsequently transferred to MCIAA. At the end of 1991, or soon after the transfer of the aforesaid lots to MCIAA, Lahug Airport completely ceased operations, Mactan Airport having opened to accommodate incoming and outgoing commercial flights. On the ground, the expropriated lots were never utilized for the purpose they were taken as no expansion of Lahug Airport was undertaken. This development prompted the former lot owners to formally demand from the government that they be allowed to exercise their promised right to repurchase. The demands went unheeded. Civil suits followed. G.R. No. 168812 (MCIAA Petition) On February 8, 1996, Ricardo L. Inocian and four others (all children of Isabel Limbaga who originally owned six [6] of the lots expropriated); and Aletha Suico Magat and seven others, successors-in-interest of Santiago Suico, the original owner of two (2) of the condemned lots (collectively, the Inocians), filed before the RTC in Cebu City a complaint for reconveyance of real properties and damages against MCIAA. The complaint, docketed as Civil Case No. CEB-18370, was eventually raffled to Branch 13 of the court. On September 29, 1997, one Albert Chiongbian (Chiongbian), alleging to be the owner of Lot Nos. 761-A and 762-A but which the Inocians were now claiming, moved and was later allowed to intervene. During the pre-trial, MCIAA admitted the following facts: 1. That the properties, which are the subject matter of Civil Case No. CEB-18370, are also the properties involved in Civil Case R-1881; 2. That the purpose of the expropriation was for the expansion of the old Lahug Airport; that the Lahug Airport was not expanded; 3. That the old Lahug Airport was closed sometime in June 1992; 4. That the price paid to the lot owners in the expropriation case is found in the decision of the court; and 5. That some properties were reconveyed by the MCIAA because the previous owners were able to secure express waivers or riders wherein the government agreed to return the properties should the expansion of the Lahug Airport not materialize. During trial, the Inocians adduced evidence which included the testimony of Ricardo Inocian (Inocian) and Asterio Uy (Uy). Uy, an employee of the CAA, testified that he was a member of the team which negotiated for the acquisition of certain lots in Lahug for the proposed expansion of the Lahug Airport. He recalled that he acted as the interpreter/spokesman of the team since he could speak the Cebuano dialect. He stated that the other members of the team of negotiators were Atty. Pedro Ocampo, Atty. Lansang, and Atty. Saligumba. He recounted that, in the course of the negotiation, their team assured the landowners that their landholdings would be reconveyed to them in the event the Lahug Airport would be abandoned or if its operation were transferred to the Mactan Airport. Some landowners opted to sell, while others were of a different bent owing to the inadequacy of the offered price.

Vda. De Ouano vs. Republic

Inocian testified that he and his mother, Isabel Lambaga, attended a meeting called by the NAC team of negotiators sometime in 1947 or 1949 where he and the other landowners were given the assurance that they could repurchase their lands at the same price in the event the Lahug Airport ceases to operate. He further testified that they rejected the NAC's offer. However, he said that they no longer appealed the decree of expropriation due to the repurchase assurance adverted to. The MCIAA presented Michael Bacarizas (Bacarizas), who started working for MCIAA as legal assistant in 1996. He testified that, in the course of doing research work on the lots subject of Civil Case No. CEB-18370, he discovered that the same lots were covered by the decision in Civil Case No. R-1881. He also found out that the said decision did not expressly contain any condition on the matter of repurchase. Ruling of the RTC On October 7, 1998, the RTC rendered a Decision in Civil Case No. CEB-18370, the dispositive portion of which reads as follows: WHEREFORE, in view of the foregoing, judgment is hereby rendered directing defendant Mactan Cebu International Airport Authority (MCIAA) to reconvey (free from liens and encumbrances) to plaintiffs Ricardo Inocian, Olimpia E. Esteves, Emilia E. Bacalla, Restituta E. Montana and Raul Inocian Lots No. 744-A, 745-A, 746, 762-A, 747, 761-A and to plaintiffs Aletha Suico Magat, Philip M. Suico, Doris S. dela Cruz, James M. Suico, Edward M. Suico, Roselyn S. Lawsin, Rex M. Suico and Kharla SuicoGutierrez Lots No. 942 and 947, after plaintiffs shall have paid MCIAA the sums indicated in the decision in Civil Case No. R1881. Defendant MCIAA is likewise directed to pay the aforementioned plaintiffs the sum or P50,000.00 as and for attorney's fees and P10,000.00 for litigation expenses. Albert Chiongbian's intervention should be, as it is hereby DENIED for utter lack of factual basis. With costs against defendant MCIAA.[10] Therefrom, MCIAA went to the CA on appeal, docketed as CA-G.R. CV No. 64356. Ruling of the CA On January 14, 2005, the CA rendered judgment for the Inocians, declaring them entitled to the reconveyance of the questioned lots as the successors-in-interest of the late Isabel Limbaga and Santiago Suico, as the case may be, who were the former registered owners of the said lots. The decretal portion of the CA's Decision reads: WHEREFORE, in view of the foregoing premises, judgment is hereby rendered by us DISMISSING the appeal filed in this case andAFFFIRMING the decision rendered by the court a quo on October 7, 1998 in Civil Case No. CEB-18370. SO ORDERED. The CA, citing and reproducing excerpts from Heirs of Moreno,[11] virtually held that the decision in Civil Case No. R-1881 was conditional, stating "that the expropriation of [plaintiff-appellees'] lots for the proposed expansion of the Lahug Airport was ordered by the CFI of Cebu under the impression that Lahug Airport would continue in operation."[12] The condition, as may be deduced from the CFI's decision, was that should MCIAA, or its precursor agency, discontinue altogether with the operation of Lahug Airport, then the owners of the lots expropriated may, if so minded, demand of MCIAA to make good its verbal assurance to allow the repurchase of the properties. To the CA, this assurance, a demandable agreement of repurchase by itself, has been adequately established. On September 21, 2005, the MCIAA filed with Us a petition for review of the CA's Decision, docketed as G.R. No. 168812. G.R. No. 168770 (Ouano Petition) Soon after the MCIAA jettisoned the Lahug Airport expansion project, informal settlers entered and occupied Lot No. 763-A which, before its expropriation, belonged to the Ouanos. The Ouanos then formally asked to be allowed to exercise their right to repurchase the aforementioned lot, but the MCIAA ignored the demand. On August 18, 1997, the Ouanos instituted a complaint before the Cebu City RTC against the Republic and the MCIAA for reconveyance, docketed as Civil Case No. CEB-20743. Answering, the Republic and MCIAA averred that the Ouanos no longer have enforceable rights whatsoever over the condemned Lot No. 763-A, the decision in Civil Case No. R-1881 not having found any reversionary condition.

Vda. De Ouano vs. Republic

Ruling of the RTC By a Decision dated November 28, 2000, the RTC, Branch 57 in Cebu City ruled in favor of the Ouanos, disposing as follows: WHEREFORE, in the light of the foregoing, the Court hereby renders judgment in favor of the plaintiffs, Anunciacion Vda. De Ouano, Mario P. Ouano, Leticia Ouano Arnaiz and Cielo Ouano Martinez and against the Republic of the Philippines and Mactan Cebu International Airport Authority (MCIAA) to restore to plaintiffs, the possession and ownership of their land, Lot No. 763-A upon payment of the expropriation price to defendants; and 2. Ordering the Register of Deeds to effect the transfer of the Certificate of Title from defendant Republic of the Philippines on Lot 763-A, canceling TCT No. 52004 in the name of defendant Republic of the Philippines and to issue a new title on the same lot in the names of Anunciacion Vda. De Ouano, Mario P. Ouano, Leticia Ouano Arnaiz and Cielo Ouano Martinez. No pronouncement as to costs.[13] Acting on the motion of the Republic and MCIAA for reconsideration, however, the RTC, Branch 57 in Cebu City, presided this time by Judge Enriqueta L. Belarmino, issued, on December 9, 2002, an Order[14] that reversed its earlier decision of November 28, 2000 and dismissed the Ouanos' complaint. Ruling of the CA In time, the Ouanos interposed an appeal to the CA, docketed as CA-G.R. CV No. 78027. Eventually, the appellate court rendered a Decision[15] dated September 3, 2004, denying the appeal, thus: WHEREFORE, premises considered, the Order dated December 9, 2002, of the Regional Trial Court, 7th Judicial Region, Branch 57, Cebu City, in Civil Case No. CEB-20743, is hereby AFFIRMED. No pronouncement as to costs. SO ORDERED. Explaining its case disposition, the CA stated that the decision in Civil Case No. R-1881 did not state any condition that Lot No. 763-A of the Ouanos--and all covered lots for that matter--would be returned to them or that they could repurchase the same property if it were to be used for purposes other than for the Lahug Airport. The appellate court also went on to declare the inapplicability of the Court's pronouncement in MCIAA v. Court of Appeals, RTC, Branch 9, Cebu City, Melba Limbago, et al.,[16] to support the Ouanos' cause, since the affected landowners in that case, unlike the Ouanos, parted with their property not through expropriation but via a sale and purchase transaction. The Ouanos filed a motion for reconsideration of the CA's Decision, but was denied per the CA's May 26, 2005 Resolution.[17] Hence, they filed this petition in G.R. No. 168770. The Issues G.R. No. 168812 GROUNDS FOR ALLOWANCE OF THE PETITION

l. THE ASSAILED ISSUANCES ILLEGALLY STRIPPED THE REPUBLIC OF ITS ABSOLUTE AND UNCONDITIONAL TITLE TO THE SUBJECT EXPROPRIATED PROPERTIES. ll. THE IMPUNGED DISPOSITIONS INVALIDLY OVERTURNED THIS HONORABLE COURT'S FINAL RULINGS IN FERY V. MUNICIPALITY OF CABANATUAN, MCIAA V. COURT OF APPEALS AND REYES V. NATIONAL HOUSING AUTHORITY. lll. THE COURT OF APPEALS GRAVELY ERRED IN APPLYING THIS HONORABLE COURT'S RULING IN MORENO, ALBEIT IT HAS NOT YET ATTAINED FINALITY.[18] G.R. No. 168770

Vda. De Ouano vs. Republic

Questions of law presented in this Petition Whether or not the testimonial evidence of the petitioners proving the promises, assurances and representations by the airport officials and lawyers are inadmissbale under the Statute of Frauds. Whether or not under the ruling of this Honorable Court in the heirs of Moreno Case, and pursuant to the principles enunciated therein, petitioners herein are entitiled to recover their litigated property. Reasons for Allowances of this Petition Respondents did not object during trial to the admissibility of petitioners' testimonial evidence under the Statute of Frauds and have thus waived such objection and are now barred from raising the same. In any event, the Statute of Frauds is not applicable herein. Consequently, petitioners' evidence is admissible and should be duly given weight and credence, as initially held by the trial court in its original Decision.[19] While their respective actions against MCIAA below ended differently, the Ouanos and the Inocians' proffered arguments presented before this Court run along parallel lines, both asserting entitlement to recover the litigated property on the strength of the Court's ruling in Heirs of Moreno. MCIAA has, however, formulated in its Consolidated Memorandum the key interrelated issues in these consolidated cases, as follows: I WHETHER ABANDONMENT OF THE PUBLIC USE FOR WHICH THE SUBJECT PROPERTIES WERE EXPROPRIATED ENTITLES PETITIONERS OUANOS, ET AL. AND RESPONDENTS INOCIAN, ET AL. TO REACQUIRE THEM. II WHETHER PETITIONERS OUANOS, ET AL. AND RESPONDENTS INOCIAN, ET AL. ARE ENTITLED TO RECONVEYANCE OF THE SUBJECT PROPERTIES SIMPLY ON THE BASIS OF AN ALLEGED VERBAL PROMISE OR ASSURANCE OF SOME NAC OFFICIALS THAT THE SUBJECT PROPERTIES WILL BE RETUNRED IF THE AIRPORT PROJECT WOULD BE ABANDONED. The Court's Ruling The Republic and MCIAA's petition in G.R. No. 168812 is bereft of merit, while the Ouano petition in G.R. No. 168770 is meritorious. At the outset, three (3) fairly established factual premises ought to be emphasized: First, the MCIAA and/or its predecessor agency had not actually used the lots subject of the final decree of expropriation in Civil Case No. R-1881 for the purpose they were originally taken by the government, i.e., for the expansion and development of Lahug Airport. Second, the Lahug Airport had been closed and abandoned. A significant portion of it had, in fact, been purchased by a private corporation for development as a commercial complex.[20] Third, it has been preponderantly established by evidence that the NAC, through its team of negotiators, had given assurance to the affected landowners that they would be entitled to repurchase their respective lots in the event they are no longer used for airport purposes.[21] "No less than Asterio Uy," the Court noted in Heirs of Moreno, "one of the members of the CAA Mactan Legal Team, which interceded for the acquisition of the lots for the Lahug Airport's expansion, affirmed that persistent assurances were given to the landowners to the effect that as soon as the Lahug Airport is abandoned or transferred to Mactan, the lot owners would be able to reacquire their properties."[22] In Civil Case No. CEB-20743, Exhibit "G," the transcript of the deposition[23] of Anunciacion vda. de Ouano covering the assurance made had been formally offered in evidence and duly considered in the initial decision of the RTC Cebu City. In Civil Case No. CEB-18370, the trial court, on the basis of testimonial evidence, and later the CA, recognized the reversionary rights of the suing former lot owners or their successors in interest[24] and resolved the case accordingly. In point with respect to the representation and promise of the government to return the lots taken should the planned airport expansion do not materialize is what the Court said in Heirs of Moreno, thus:

Vda. De Ouano vs. Republic

This is a difficult case calling for a difficult but just solution. To begin with there exists an undeniable historical narrative that the predecessors of respondent MCIAA had suggested to the landowners of the properties covered by the Lahug Airport expansion scheme that they could repurchase their properties at the termination of the airport's venue. Some acted on this assurance and sold their properties; other landowners held out and waited for the exercise of eminent domain to take its course until finally coming to terms with respondent's predecessors that they would not appeal nor block further judgment of condemnation if the right of repurchase was extended to them. A handful failed to prove that they acted on such assurance when they parted with ownership of their land.[25] (Emphasis supplied; citations omitted.) For perspective, Heirs of Moreno--later followed by MCIAA v. Tudtud (Tudtud)[26] and the consolidated cases at bar--is cast under the same factual setting and centered on the expropriation of privately-owned lots for the public purpose of expanding the Lahug Airport and the alleged promise of reconveyance given by the negotiating NAC officials to the private lot owners. All the lots being claimed by the former owners or successors-in-interest of the former owners in the Heirs of Moreno, Tudtud, and the present cases were similarly adjudged condemned in favor of the Republic in Civil Case No. R-1881. All the claimants sought was or is to have the condemned lots reconveyed to them upon the payment of the condemnation price since the public purpose of the expropriation was never met. Indeed, the expropriated lots were never used and were, in fact, abandoned by the expropriating government agencies. In all then, the issues and supporting arguments presented by both sets of petitioners in these consolidated cases have already previously been passed upon, discussed at length, and practically peremptorily resolved in Heirs of Moreno and the November 2008 Tudtud ruling. The Ouanos, as petitioners in G.R. No. 168770, and the Inocians, as respondents in G.R. No. 168812, are similarly situated as the heirs of Moreno inHeirs of Moreno and Benjamin Tudtud in Tudtud. Be that as it may, there is no reason why the ratio decidendi in Heirs of Moreno and Tudtud should not be made to apply to petitioners Ouanos and respondents Inocians such that they shall be entitled to recover their or their predecessors' respective properties under the same manner and arrangement as the heirs of Moreno and Tudtud. Stare decisis et non quieta movere(to adhere to precedents, and not to unsettle things which are established).[27] Just like in Tudtud and earlier in Heirs of Moreno, MCIAA would foist the theory that the judgment of condemnation in Civil Case No. R-1881 was without qualification and was unconditional. It would, in fact, draw attention to the fallo of the expropriation court's decision to prove that there is nothing in the decision indicating that the government gave assurance or undertook to reconvey the covered lots in case the Lahug airport expansion project is aborted. Elaborating on this angle, MCIAA argues that the claim of the Ouanos and the Inocians regarding the alleged verbal assurance of the NAC negotiating team that they can reacquire their landholdings is barred by the Statute of Frauds.[28] Under the rule on the Statute of Frauds, as expressed in Article 1403 of the Civil Code, a contract for the sale or acquisition of real property shall be unenforceable unless the same or some note of the contract be in writing and subscribed by the party charged. Subject to defined exceptions, evidence of the agreement cannot be received without the writing, or secondary evidence of its contents. MCIAA's invocation of the Statute of Frauds is misplaced primarily because the statute applies only to executory and not to completed, executed, or partially consummated contracts.[29] Carbonnel v. Poncio, et al., quoting Chief Justice Moran, explains the rationale behind this rule, thusly: x x x "The reason is simple. In executory contracts there is a wide field for fraud because unless they may be in writing there is no palpable evidence of the intention of the contracting parties. The statute has been precisely been enacted to prevent fraud." x x x However, if a contract has been totally or partially performed, the exclusion of parol evidence would promote fraud or bad faith, for it would enable the defendant to keep the benefits already derived by him from the transaction in litigation, and at the same time, evade the obligations, responsibilities or liabilities assumed or contracted by him thereby.[30](Emphasis in the original.) Analyzing the situation of the cases at bar, there can be no serious objection to the proposition that the agreement package between the government and the private lot owners was already partially performed by the government through the acquisition of the lots for the expansion of the Lahug airport. The parties, however, failed to accomplish the more important condition in the CFI decision decreeing the expropriation of the lots litigated upon: the expansion of the Lahug Airport. The project--the public purpose behind the forced property taking--was, in fact, never pursued and, as a consequence, the lots expropriated were abandoned. Be that as it may, the two groups of landowners can, in an action to compel MCIAA to make good its oral undertaking to allow repurchase, adduce parol evidence to prove the transaction. At any rate, the objection on the admissibility of evidence on the basis of the Statute of Frauds may be waived if not timely

Vda. De Ouano vs. Republic

raised. Records tend to support the conclusion that MCIAA did not, as the Ouanos and the Inocians posit, object to the introduction of parol evidence to prove its commitment to allow the former landowners to repurchase their respective properties upon the occurrence of certain events. In a bid to deny the lot owners the right to repurchase, MCIAA, citing cases,[31] points to the dispositive part of the decision in Civil Case R-1881 which, as couched, granted the Republic absolute title to the parcels of land declared expropriated. The MCIAA is correct about the unconditional tone of the dispositive portion of the decision, but that actuality would not carry the day for the agency. Addressing the matter of the otherwise absolute tenor of the CFI's disposition in Civil Case No. R-1881, the Court, in Heirs of Moreno, after taking stock of the ensuing portion of the body of the CFI's decision, said: As for the public purpose of the expropriation proceeding, it cannot now be doubted. Although Mactan Airport is being constructed, it does not take away the actual usefulness and importance of the Lahug Airport: it is handling the air traffic of both civilian and military. From it aircrafts fly to Mindanao and Visayas and pass thru it on their flights to the North and Manila. Then, no evidence was adduced to show how soon is the Mactan Airport to be placed in operation and whether the Lahug Airport will be closed immediately thereafter. It is up to the other departments of the Government to determine said matters. The Court cannot substitute its judgments for those of the said departments or agencies. In the absence of such showing, the court will presume that the Lahug Airport will continue to be in operation .[32] (Emphasis supplied.) We went on to state as follows: While the trial court in Civil Case No. R-1881 could have simply acknowledged the presence of public purpose for the exercise of eminent domain regardless of the survival of the Lahug Airport, the trial court in its Decision chose not to do so but instead prefixed its finding of public purpose upon its understanding that `Lahug Airport will continue to be in operation'. Verily, these meaningful statements in the body of the Decision warrant the conclusion that the expropriated properties would remain to be so until it was confirmed that Lahug Airport was no longer `in operation'. This inference further implies two (2) things: (a) after the Lahug Airport ceased its undertaking as such and the expropriated lots were not being used for any airport expansion project, the rights vis- -vis the expropriated lots x x x as between the State and their former owners, petitioners herein, must be equitably adjusted; and (b) the foregoing unmistakable declarations in the body of theDecision should merge with and become an intrinsic part of the fallothereof which under the premises is clearly inadequate since the dispositive portion is not in accord with the findings as contained in the body thereof.[33] Not to be overlooked of course is what the Court said in its Resolution disposing of MCIAA's motion to reconsider the original ruling in Heirs of Moreno. In that resolution, We stated that the fallo of the decision in Civil Case R-1881 should be viewed and understood in connection with the entire text, which contemplated a return of the property taken if the airport expansion project were abandoned. For ease of reference, following is what the Court wrote: Moreover, we do not subscribe to the [MCIAA's] contention that since the possibility of the Lahug Airport's closure was actually considered by the trial court, a stipulation on reversion or repurchase was so material that it should not have been discounted by the court a quo in its decision in Civil Case No. R-1881, if, in fact, there was one. We find it proper to cite, once more, this Court's ruling that the fallo of the decision in Civil Case No. R-1881 must be read in reference to the other portions of the decision in which it forms a part. A reading of the Court's judgment must not be confined to the dispositive portion alone; rather it should be meaningfully construed in unanimity with the ratio decidendi thereof to grasp the true intent and meaning of a decision.[34] The Court has, to be sure, taken stock of Fery v. Municipality of Cabanatuan,[35] a case MCIAA cites at every possible turn, where the Court made these observations: If, for example, land is expropriated for a particular purpose, with the condition that when that purpose is ended or abandoned the property shall return to its former owner, then of course, when the purpose is terminated or abandoned, the former owner reacquires the property so expropriated. x x x If, upon the contrary, however the decree of expropriation gives to the entity a fee simple title, then, of course, the land becomes the absolute property of the expropriator x x x and in that case the non-user does not have the effect of defeating the title acquired by the expropriation proceedings x x x. Fery notwithstanding, MCIAA cannot really rightfully say that it has absolute title to the lots decreed expropriated in Civil Case No. R-1881. The correct lesson of Fery is captured by what the Court said in that case, thus: "the government acquires only such rights in expropriated parcels of land as may be allowed by the character of its title over the properties." In light of our disposition in Heirs of Moreno and Tudtud, the statement immediately adverted to means that in the event the particular public use for which a parcel of land is expropriated is abandoned, the owner shall not be entitled to recover or repurchase it as a

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matter of right, unless such recovery or repurchase is expressed in or irresistibly deducible from the condemnation judgment. But as has been determined below, the decision in Civil Case No. R-1881 enjoined MCIAA, as a condition of approving expropriation, to allow recovery or repurchase upon abandonment of the Lahug airport project. To borrow from our underlying decision inHeirs of Moreno, "[n]o doubt, the return or repurchase of the condemned properties of petitioners could readily be justified as the manifest legal effect of consequence of the trial court's underlying presumption that `Lahug Airport will continue to be in operation' when it granted the complaint for eminent domain and the airport discontinued its activities."[36] Providing added support to the Ouanos and the Inocians' right to repurchase is what inHeirs of Moreno was referred to as constructive trust, one that is akin to the implied trust expressed in Art. 1454 of the Civil Code,[37] the purpose of which is to prevent unjust enrichment.[38] In the case at bench, the Ouanos and the Inocians parted with their respective lots in favor of the MCIAA, the latter obliging itself to use the realties for the expansion of Lahug Airport; failing to keep its end of the bargain, MCIAA can be compelled by the former landowners to reconvey the parcels of land to them, otherwise, they would be denied the use of their properties upon a state of affairs that was not conceived nor contemplated when the expropriation was authorized. In effect, the government merely held the properties condemned in trust until the proposed public use or purpose for which the lots were condemned was actually consummated by the government. Since the government failed to perform the obligation that is the basis of the transfer of the property, then the lot owners Ouanos and Inocians can demand the reconveyance of their old properties after the payment of the condemnation price. Constructive trusts are fictions of equity that courts use as devices to remedy any situation in which the holder of the legal title, MCIAA in this case, may not, in good conscience, retain the beneficial interest. We add, however, as in Heirs of Moreno, that the party seeking the aid of equity--the landowners in this instance, in establishing the trust--must himself do equity in a manner as the court may deem just and reasonable. The Court, in the recent MCIAA v. Lozada, Sr., revisited and abandoned the Feryruling that the former owner is not entitled to reversion of the property even if the public purpose were not pursued and were abandoned, thus: On this note, we take this opportunity to revisit our ruling inFery, which involved an expropriation suit commenced upon parcels of land to be used as a site for a public market. Instead of putting up a public market, respondent Cabanatuan constructed residential houses for lease on the area. Claiming that the municipality lost its right to the property taken since it did not pursue its public purpose, petitioner Juan Fery, the former owner of the lots expropriated, sought to recover his properties. However, as he had admitted that, in 1915, respondentCabanatuan acquired a fee simple title to the lands in question, judgment was rendered in favor of the municipality, following American jurisprudence, particularlyCity of Fort Wayne v. Lake Shore & M.S. RY. Co., McConihay v. Theodore Wright, andReichling v. Covington Lumber Co., all uniformly holding that the transfer to a third party of the expropriated real property, which necessarily resulted in the abandonment of the particular public purpose for which the property was taken, is not a ground for the recovery of the same by its previous owner, the title of the expropriating agency being one of fee simple. Obviously,Ferywas not decided pursuant to our now sacredly held constitutional right that private property shall not be taken for public use without just compensation. It is well settled that the taking of private property by the Governments power of eminent domain is subject to two mandatory requirements: (1) that it is for a particular public purpose; and (2) that just compensation be paid to the property owner. These requirements partake of the nature of implied conditions that should be complied with to enable the condemnor to keep the property expropriated. More particularly, with respect to the element of public use, the expropriator should commit to use the property pursuant to the purpose stated in the petition for expropriation filed, failing which, it should file another petition for the new purpose. If not, it is then incumbent upon the expropriator to return the said property to its private owner, if the latter desires to reacquire the same. Otherwise, the judgment of expropriation suffers an intrinsic flaw, as it would lack one indispensable element for the proper exercise of the power of eminent domain, namely, the particular public purpose for which the property will be devoted. Accordingly, the private property owner would be denied due process of law, and the judgment would violate the property owners right to justice, fairness, and equity. In light of these premises, we now expressly hold that the taking of private property, consequent to the Governments exercise of its power of eminent domain, is always subject to the condition that the property be devoted to the specific public purpose for which it was taken. Corollarily, if this particular purpose or intent is not initiated or not at all pursued, and is peremptorily abandoned, then the former owners, if they so desire, may seek the reversion of the property, subject to the return of the amount of just compensation received. In such a case, the exercise of the power of eminent domain has become improper for lack of the required factual justification.[39] (Emphasis supplied.)

Vda. De Ouano vs. Republic

Clinging to Fery, specifically the fee simple concept underpinning it, is no longer compelling, considering the ensuing inequity such application entails. Too, the Court resolved Fery not under the cover of any of the Philippine Constitutions, each decreeing that private property shall not be taken for public use without just compensation. The twin elements of just compensation and public purpose are, by themselves, direct limitations to the exercise of eminent domain, arguing, in a way, against the notion of fee simple title. The fee does not vest until payment of just compensation.[40] In esse, expropriation is forced private property taking, the landowner being really without a ghost of a chance to defeat the case of the expropriating agency. In other words, in expropriation, the private owner is deprived of property against his will. Withal, the mandatory requirement of due process ought to be strictly followed, such that the state must show, at the minimum, a genuine need, an exacting public purpose to take private property, the purpose to be specifically alleged or least reasonably deducible from the complaint. Public use, as an eminent domain concept, has now acquired an expansive meaning to include any use that is of "usefulness, utility, or advantage, or what is productive of general benefit [of the public]."[41] If the genuine public necessity--the very reason or condition as it were--allowing, at the first instance, the expropriation of a private land ceases or disappears, then there is no more cogent point for the government's retention of the expropriated land. The same legal situation should hold if the government devotes the property to another public use very much different from the original or deviates from the declared purpose to benefit another private person. It has been said that the direct use by the state of its power to oblige landowners to renounce their productive possession to another citizen, who will use it predominantly for that citizen's own private gain, is offensive to our laws.[42] A condemnor should commit to use the property pursuant to the purpose stated in the petition for expropriation, failing which it should file another petition for the new purpose. If not, then it behooves the condemnor to return the said property to its private owner, if the latter so desires. The government cannot plausibly keep the property it expropriated in any manner it pleases and, in the process, dishonor the judgment of expropriation. This is not in keeping with the idea of fair play, The notion, therefore, that the government, via expropriation proceedings, acquires unrestricted ownership over or a fee simple title to the covered land, is no longer tenable. We suggested as much in Heirs of Moreno and in Tudtud and more recently inLozada, Sr. Expropriated lands should be differentiated from a piece of land, ownership of which was absolutely transferred by way of an unconditional purchase and sale contract freely entered by two parties, one without obligation to buy and the other without the duty to sell. In that case, the fee simple concept really comes into play. There is really no occasion to apply the "fee simple concept" if the transfer is conditional. The taking of a private land in expropriation proceedings is always conditioned on its continued devotion to its public purpose. As a necessary corollary, once the purpose is terminated or peremptorily abandoned, then the former owner, if he so desires, may seek its reversion, subject of course to the return, at the very least, of the just compensation received. To be compelled to renounce dominion over a piece of land is, in itself, an already bitter pill to swallow for the owner. But to be asked to sacrifice for the common good and yield ownership to the government which reneges on its assurance that the private property shall be for a public purpose may be too much. But it would be worse if the power of eminent domain were deliberately used as a subterfuge to benefit another with influence and power in the political process, including development firms. The mischief thus depicted is not at all far-fetched with the continued application of Fery. Even as the Court deliberates on these consolidated cases, there is an uncontroverted allegation that the MCIAA is poised to sell, if it has not yet sold, the areas in question to Cebu Property Ventures, Inc. This provides an added dimension to abandon Fery. Given the foregoing disquisitions, equity and justice demand the reconveyance by MCIAA of the litigated lands in question to the Ouanos and Inocians. In the same token, justice and fair play also dictate that the Ouanos and Inocian return to MCIAA what they received as just compensation for the expropriation of their respective properties plus legal interest to be computed from default, which in this case should run from the time MCIAA complies with the reconveyance obligation.[43] They must likewise pay MCIAA the necessary expenses it might have incurred in sustaining their respective lots and the monetary value of its services in managing the lots in question to the extent that they, as private owners, were benefited thereby. In accordance with Art. 1187 of the Civil Code on mutual compensation, MCIAA may keep whatever income or fruits it may have obtained from the parcels of land expropriated. In turn, the Ouanos and Inocians need not require the accounting of interests earned by the amounts they received as just compensation.[44] Following Art. 1189 of the Civil Code providing that "[i]f the thing is improved by its nature, or by time, the improvement shall inure to the benefit of the creditor x x x," the Ouanos and Inocians do not have to settle the appreciation of the values

Vda. De Ouano vs. Republic

of their respective lots as part of the reconveyance process, since the value increase is merely the natural effect of nature and time. Finally, We delete the award of PhP 50,000 and PhP 10,000, as attorney's fees and litigation expenses, respectively, made in favor of the Inocians by the Cebu City RTC in its judgment in Civil Case No. CEB-18370, as later affirmed by the CA. As a matter of sound policy, no premium should be set on the right to litigate where there is no doubt about the bona fides of the exercise of such right,[45] as here, albeit the decision of MCIAA to resist the former landowners' claim eventually turned out to be untenable. WHEREFORE, the petition in G.R. No. 168770 is GRANTED. Accordingly, the CA Decision dated September 3, 2004 in CA-G.R. CV No. 78027 is REVERSED and SET ASIDE. Mactan-Cebu International Airport Authority is ordered to reconvey subject Lot No. 763-A to petitioners Anunciacion vda. de Ouano, Mario P. Ouano, Leticia Ouano Arnaiz, and Cielo Ouano Martinez. The Register of Deeds of Cebu City is ordered to effect the necessary cancellation of title and transfer it in the name of the petitioners within fifteen (15) days from finality of judgment. The petition of the Mactan-Cebu International Airport Authority in G.R. No. 168812 isDENIED, and the CA's Decision and Resolution dated January 14, 2005 and June 29, 2005, respectively, in CA-G.R. CV No. 64356 are AFFIRMED, except insofar as they awarded attorney's fees and litigation expenses that are hereby DELETED. Accordingly, Mactan-Cebu International Airport Authority is ordered to reconvey to respondents Ricardo L. Inocian, Olympia E. Esteves, Emilia E. Bacalla, Restituta E. Montana, and Raul L. Inocian the litigated Lot Nos. 744-A, 745-A, 746, 762-A, 747, and 761-A; and to respondents Aletha Suico Magat, Philip M. Suico, Dolores S. dela Cruz, James M. Suico, Edward M. Suico, Roselyn S. Lawsin, Rex M. Suico, and Kharla SuicoGutierrez the litigated Lot Nos. 942 and 947. The Register of Deeds of Cebu City is ordered to effect the necessary cancellation of title and transfer it in the name of respondents within a period of fifteen (15) days from finality of judgment. The foregoing dispositions are subject to QUALIFICATIONS, to apply to these consolidated petitions, when appropriate, as follows: (1) Petitioners Ouano, et al. in G.R. No. 168770 and respondents Ricardo L Inocian, et al. in G.R. No. 168812 are ordered to return to the MCIAA the just compensation they or their predecessors-in-interest received for the expropriation of their respective lots as stated in Civil Case No. R-1881, within a period of sixty (60) days from finality of judgment; (2) The MCIAA shall be entitled to RETAIN whatever fruits and income it may have obtained from the subject expropriated lots without any obligation to refund the same to the lot owners; and (3) Petitioners Ouano, et al. in G.R. No. 168770 and respondents Ricardo L. Inocian, et al. in G.R. No. 168812 shall RETAIN whatever interests the amounts they received as just compensation may have earned in the meantime without any obligation to refund the same to MCIAA. SO ORDERED.

Vda. De Ouano vs. Republic

FIRST DIVISION [G.R. No. 168770, February 09, 2011] ANUNCIACION VDA. DE OUANO, MARIO P. OUANO, LETICIA OUANO ARNAIZ, AND CIELO OUANO MARTINEZ, PETITIONERS, VS. THE REPUBLIC OF THE PHILIPPINES, THE MACTAN-CEBU INTERNATIONAL AIRPORT AUTHORITY, AND THE REGISTER OF DEEDS FOR THE CITY OF CEBU, RESPONDENTS. [G.R. NO. 168812] MACTAN-CEBU INTERNATIONAL AIRPORT AUTHORITY (MCIAA), PETITIONER, VS. RICARDO L. INOCIAN, IN HIS PERSONAL CAPACITY AND AS ATTORNEY-IN-FACT OF OLYMPIA E. ESTEVES, EMILIA E. BACALLA, RESTITUTA E. MONTANA, AND RAUL L. INOCIAN; AND ALETHA SUICO MAGAT, IN HER PERSONAL CAPACITY AND AS ATTORNEY-IN-FACT OF PHILIP M. SUICO, DORIS S. DELA CRUZ, JAMES M. SUICO, EDWARD M. SUICO, ROSELYN SUICO-LAWSIN, REX M. SUICO, KHARLA SUICO-GUTIERREZ, ALBERT CHIONGBIAN, AND JOHNNY CHAN, RESPONDENTS. DECISION
VELASCO JR., J.: At the center of these two (2) Petitions for Review on Certiorari under Rule 45 is the issue of the right of the former owners of lots acquired for the expansion of the Lahug Airport in Cebu City to repurchase or secure reconveyance of their respective properties. In the first petition, docketed as G.R. No. 168770, petitioners Anunciacion vda. de Ouano, Mario Ouano, Leticia Ouano Arnaiz and Cielo Ouano Martinez (the Ouanos) seek to nullify the Decision[1] dated September 3, 2004 of the Court of Appeals (CA) in CA-G.R. CV No. 78027, affirming the Order dated December 9, 2002 of the Regional Trial Court (RTC), Branch 57 in Cebu City, in Civil Case No. CEB-20743, a suit to compel the Republic of the Philippines and/or the Mactan-Cebu International Airport Authority (MCIAA) to reconvey to the Ouanos a parcel of land. The second petition, docketed as G.R. No. 168812, has the MCIAA seeking principally to annul and set aside the Decision[2] and Resolution[3] dated January 14, 2005 and June 29, 2005, respectively, of the CA in CA-G.R. CV No. 64356, sustaining the RTC, Branch 13 in Cebu City in its Decision of October 7, 1988 in Civil Case No. CEB-18370. Per its October 19, 2005 Resolution, the Court ordered the consolidation of both cases. Except for the names of the parties and the specific lot designation involved, the relevant factual antecedents which gave rise to these consolidated petitions are, for the most part, as set forth in the Court's Decision[4] of October 15, 2003, as reiterated in a Resolution[5] dated August 9, 2005, in G.R. No. 156273 entitled Heirs of Timoteo Moreno and Maria Rotea v. Mactan-Cebu International Airport Authority(Heirs of Moreno), and in other earlier related cases.[6] In 1949, the National Airport Corporation (NAC), MCIAA's predecessor agency, pursued a program to expand the Lahug Airport in Cebu City. Through its team of negotiators, NAC met and negotiated with the owners of the properties situated around the airport, which included Lot Nos. 744-A, 745-A, 746, 747, 761-A, 762-A, 763-A, 942, and 947 of the Banilad Estate. As the landowners would later claim, the government negotiating team, as a sweetener, assured them that they could repurchase their respective lands should the Lahug Airport expansion project do not push through or once the Lahug Airport closes or its operations transferred to Mactan-Cebu Airport. Some of the landowners accepted the assurance and executed deeds of sale with a right of repurchase. Others, however, including the owners of the aforementioned lots, refused to sell because the purchase

Vda. De Ouano vs. Republic

price offered was viewed as way below market, forcing the hand of the Republic, represented by the then Civil Aeronautics Administration (CAA), as successor agency of the NAC, to file a complaint for the expropriation of Lot Nos. 744-A, 745-A, 746, 747, 761-A, 762-A, 763-A, 942, and 947, among others, docketed as Civil Case No. R-1881 entitled Republic v. Damian Ouano, et al. On December 29, 1961, the then Court of First Instance (CFI) of Cebu rendered judgment for the Republic, disposing, in part, as follows: IN VIEW OF THE FOREGOING, judgment is hereby rendered: 1. Declaring the expropriation of Lots Nos. 75, 76, 76, 89, 90, 91, 92, 105, 106, 107, 108, 104, 921-A, 88, 93, 913-B, 72, 77, 916, 777-A, 918, 919, 920, 764-A, 988, 744-A, 745-A, 746, 747, 762-A, 763-A, 951, 942, 720-A, x x x and 947, included in the Lahug Airport, Cebu City, justified in and in lawful exercise of the right of eminent domain. xxxx 3. After the payment of the foregoing financial obligation to the landowners, directing the latter to deliver to the plaintiff the corresponding Transfer Certificates of Title to their respective lots; and upon the presentation of the said titles to the Register of Deeds, ordering the latter to cancel the same and to issue, in lieu thereof, new Transfer Certificates of Title in the name of the plaintiff.[7] In view of the adverted buy-back assurance made by the government, the owners of the lots no longer appealed the decision of the trial court.[8] Following the finality of the judgment of condemnation, certificates of title for the covered parcels of land were issued in the name of the Republic which, pursuant to Republic Act No. 6958,[9]were subsequently transferred to MCIAA. At the end of 1991, or soon after the transfer of the aforesaid lots to MCIAA, Lahug Airport completely ceased operations, Mactan Airport having opened to accommodate incoming and outgoing commercial flights. On the ground, the expropriated lots were never utilized for the purpose they were taken as no expansion of Lahug Airport was undertaken. This development prompted the former lot owners to formally demand from the government that they be allowed to exercise their promised right to repurchase. The demands went unheeded. Civil suits followed. G.R. No. 168812 (MCIAA Petition) On February 8, 1996, Ricardo L. Inocian and four others (all children of Isabel Limbaga who originally owned six [6] of the lots expropriated); and Aletha Suico Magat and seven others, successors-in-interest of Santiago Suico, the original owner of two (2) of the condemned lots (collectively, the Inocians), filed before the RTC in Cebu City a complaint for reconveyance of real properties and damages against MCIAA. The complaint, docketed as Civil Case No. CEB-18370, was eventually raffled to Branch 13 of the court. On September 29, 1997, one Albert Chiongbian (Chiongbian), alleging to be the owner of Lot Nos. 761-A and 762-A but which the Inocians were now claiming, moved and was later allowed to intervene. During the pre-trial, MCIAA admitted the following facts: 1. That the properties, which are the subject matter of Civil Case No. CEB-18370, are also the properties involved in Civil Case R-1881; 2. That the purpose of the expropriation was for the expansion of the old Lahug Airport; that the Lahug Airport was not expanded; 3. That the old Lahug Airport was closed sometime in June 1992; 4. That the price paid to the lot owners in the expropriation case is found in the decision of the court; and 5. That some properties were reconveyed by the MCIAA because the previous owners were able to secure express waivers or riders wherein the government agreed to return the properties should the expansion of the Lahug Airport not materialize. During trial, the Inocians adduced evidence which included the testimony of Ricardo Inocian (Inocian) and Asterio Uy (Uy). Uy,

Vda. De Ouano vs. Republic

an employee of the CAA, testified that he was a member of the team which negotiated for the acquisition of certain lots in Lahug for the proposed expansion of the Lahug Airport. He recalled that he acted as the interpreter/spokesman of the team since he could speak the Cebuano dialect. He stated that the other members of the team of negotiators were Atty. Pedro Ocampo, Atty. Lansang, and Atty. Saligumba. He recounted that, in the course of the negotiation, their team assured the landowners that their landholdings would be reconveyed to them in the event the Lahug Airport would be abandoned or if its operation were transferred to the Mactan Airport. Some landowners opted to sell, while others were of a different bent owing to the inadequacy of the offered price. Inocian testified that he and his mother, Isabel Lambaga, attended a meeting called by the NAC team of negotiators sometime in 1947 or 1949 where he and the other landowners were given the assurance that they could repurchase their lands at the same price in the event the Lahug Airport ceases to operate. He further testified that they rejected the NAC's offer. However, he said that they no longer appealed the decree of expropriation due to the repurchase assurance adverted to. The MCIAA presented Michael Bacarizas (Bacarizas), who started working for MCIAA as legal assistant in 1996. He testified that, in the course of doing research work on the lots subject of Civil Case No. CEB-18370, he discovered that the same lots were covered by the decision in Civil Case No. R-1881. He also found out that the said decision did not expressly contain any condition on the matter of repurchase. Ruling of the RTC On October 7, 1998, the RTC rendered a Decision in Civil Case No. CEB-18370, the dispositive portion of which reads as follows: WHEREFORE, in view of the foregoing, judgment is hereby rendered directing defendant Mactan Cebu International Airport Authority (MCIAA) to reconvey (free from liens and encumbrances) to plaintiffs Ricardo Inocian, Olimpia E. Esteves, Emilia E. Bacalla, Restituta E. Montana and Raul Inocian Lots No. 744-A, 745-A, 746, 762-A, 747, 761-A and to plaintiffs Aletha Suico Magat, Philip M. Suico, Doris S. dela Cruz, James M. Suico, Edward M. Suico, Roselyn S. Lawsin, Rex M. Suico and Kharla SuicoGutierrez Lots No. 942 and 947, after plaintiffs shall have paid MCIAA the sums indicated in the decision in Civil Case No. R1881. Defendant MCIAA is likewise directed to pay the aforementioned plaintiffs the sum or P50,000.00 as and for attorney's fees and P10,000.00 for litigation expenses. Albert Chiongbian's intervention should be, as it is hereby DENIED for utter lack of factual basis. With costs against defendant MCIAA.[10] Therefrom, MCIAA went to the CA on appeal, docketed as CA-G.R. CV No. 64356. Ruling of the CA On January 14, 2005, the CA rendered judgment for the Inocians, declaring them entitled to the reconveyance of the questioned lots as the successors-in-interest of the late Isabel Limbaga and Santiago Suico, as the case may be, who were the former registered owners of the said lots. The decretal portion of the CA's Decision reads: WHEREFORE, in view of the foregoing premises, judgment is hereby rendered by us DISMISSING the appeal filed in this case andAFFFIRMING the decision rendered by the court a quo on October 7, 1998 in Civil Case No. CEB-18370. SO ORDERED. The CA, citing and reproducing excerpts from Heirs of Moreno,[11] virtually held that the decision in Civil Case No. R-1881 was conditional, stating "that the expropriation of [plaintiff-appellees'] lots for the proposed expansion of the Lahug Airport was ordered by the CFI of Cebu under the impression that Lahug Airport would continue in operation."[12] The condition, as may be deduced from the CFI's decision, was that should MCIAA, or its precursor agency, discontinue altogether with the operation of Lahug Airport, then the owners of the lots expropriated may, if so minded, demand of MCIAA to make good its verbal assurance to allow the repurchase of the properties. To the CA, this assurance, a demandable agreement of repurchase by itself, has been adequately established. On September 21, 2005, the MCIAA filed with Us a petition for review of the CA's Decision, docketed as G.R. No. 168812. G.R. No. 168770 (Ouano Petition)

Vda. De Ouano vs. Republic

Soon after the MCIAA jettisoned the Lahug Airport expansion project, informal settlers entered and occupied Lot No. 763-A which, before its expropriation, belonged to the Ouanos. The Ouanos then formally asked to be allowed to exercise their right to repurchase the aforementioned lot, but the MCIAA ignored the demand. On August 18, 1997, the Ouanos instituted a complaint before the Cebu City RTC against the Republic and the MCIAA for reconveyance, docketed as Civil Case No. CEB-20743. Answering, the Republic and MCIAA averred that the Ouanos no longer have enforceable rights whatsoever over the condemned Lot No. 763-A, the decision in Civil Case No. R-1881 not having found any reversionary condition. Ruling of the RTC By a Decision dated November 28, 2000, the RTC, Branch 57 in Cebu City ruled in favor of the Ouanos, disposing as follows: WHEREFORE, in the light of the foregoing, the Court hereby renders judgment in favor of the plaintiffs, Anunciacion Vda. De Ouano, Mario P. Ouano, Leticia Ouano Arnaiz and Cielo Ouano Martinez and against the Republic of the Philippines and Mactan Cebu International Airport Authority (MCIAA) to restore to plaintiffs, the possession and ownership of their land, Lot No. 763-A upon payment of the expropriation price to defendants; and 2. Ordering the Register of Deeds to effect the transfer of the Certificate of Title from defendant Republic of the Philippines on Lot 763-A, canceling TCT No. 52004 in the name of defendant Republic of the Philippines and to issue a new title on the same lot in the names of Anunciacion Vda. De Ouano, Mario P. Ouano, Leticia Ouano Arnaiz and Cielo Ouano Martinez. No pronouncement as to costs.[13] Acting on the motion of the Republic and MCIAA for reconsideration, however, the RTC, Branch 57 in Cebu City, presided this time by Judge Enriqueta L. Belarmino, issued, on December 9, 2002, an Order[14] that reversed its earlier decision of November 28, 2000 and dismissed the Ouanos' complaint. Ruling of the CA In time, the Ouanos interposed an appeal to the CA, docketed as CA-G.R. CV No. 78027. Eventually, the appellate court rendered a Decision[15] dated September 3, 2004, denying the appeal, thus: WHEREFORE, premises considered, the Order dated December 9, 2002, of the Regional Trial Court, 7th Judicial Region, Branch 57, Cebu City, in Civil Case No. CEB-20743, is hereby AFFIRMED. No pronouncement as to costs. SO ORDERED. Explaining its case disposition, the CA stated that the decision in Civil Case No. R-1881 did not state any condition that Lot No. 763-A of the Ouanos--and all covered lots for that matter--would be returned to them or that they could repurchase the same property if it were to be used for purposes other than for the Lahug Airport. The appellate court also went on to declare the inapplicability of the Court's pronouncement in MCIAA v. Court of Appeals, RTC, Branch 9, Cebu City, Melba Limbago, et al.,[16] to support the Ouanos' cause, since the affected landowners in that case, unlike the Ouanos, parted with their property not through expropriation but via a sale and purchase transaction. The Ouanos filed a motion for reconsideration of the CA's Decision, but was denied per the CA's May 26, 2005 Resolution.[17] Hence, they filed this petition in G.R. No. 168770. The Issues G.R. No. 168812 GROUNDS FOR ALLOWANCE OF THE PETITION

l. THE ASSAILED ISSUANCES ILLEGALLY STRIPPED THE REPUBLIC OF ITS ABSOLUTE AND UNCONDITIONAL TITLE TO THE SUBJECT EXPROPRIATED PROPERTIES.

Vda. De Ouano vs. Republic

ll. THE IMPUNGED DISPOSITIONS INVALIDLY OVERTURNED THIS HONORABLE COURT'S FINAL RULINGS IN FERY V. MUNICIPALITY OF CABANATUAN, MCIAA V. COURT OF APPEALS AND REYES V. NATIONAL HOUSING AUTHORITY. lll. THE COURT OF APPEALS GRAVELY ERRED IN APPLYING THIS HONORABLE COURT'S RULING IN MORENO, ALBEIT IT HAS NOT YET ATTAINED FINALITY.[18] G.R. No. 168770 Questions of law presented in this Petition Whether or not the testimonial evidence of the petitioners proving the promises, assurances and representations by the airport officials and lawyers are inadmissbale under the Statute of Frauds. Whether or not under the ruling of this Honorable Court in the heirs of Moreno Case, and pursuant to the principles enunciated therein, petitioners herein are entitiled to recover their litigated property. Reasons for Allowances of this Petition Respondents did not object during trial to the admissibility of petitioners' testimonial evidence under the Statute of Frauds and have thus waived such objection and are now barred from raising the same. In any event, the Statute of Frauds is not applicable herein. Consequently, petitioners' evidence is admissible and should be duly given weight and credence, as initially held by the trial court in its original Decision.[19] While their respective actions against MCIAA below ended differently, the Ouanos and the Inocians' proffered arguments presented before this Court run along parallel lines, both asserting entitlement to recover the litigated property on the strength of the Court's ruling in Heirs of Moreno. MCIAA has, however, formulated in its Consolidated Memorandum the key interrelated issues in these consolidated cases, as follows: I WHETHER ABANDONMENT OF THE PUBLIC USE FOR WHICH THE SUBJECT PROPERTIES WERE EXPROPRIATED ENTITLES PETITIONERS OUANOS, ET AL. AND RESPONDENTS INOCIAN, ET AL. TO REACQUIRE THEM. II WHETHER PETITIONERS OUANOS, ET AL. AND RESPONDENTS INOCIAN, ET AL. ARE ENTITLED TO RECONVEYANCE OF THE SUBJECT PROPERTIES SIMPLY ON THE BASIS OF AN ALLEGED VERBAL PROMISE OR ASSURANCE OF SOME NAC OFFICIALS THAT THE SUBJECT PROPERTIES WILL BE RETUNRED IF THE AIRPORT PROJECT WOULD BE ABANDONED. The Court's Ruling The Republic and MCIAA's petition in G.R. No. 168812 is bereft of merit, while the Ouano petition in G.R. No. 168770 is meritorious. At the outset, three (3) fairly established factual premises ought to be emphasized: First, the MCIAA and/or its predecessor agency had not actually used the lots subject of the final decree of expropriation in Civil Case No. R-1881 for the purpose they were originally taken by the government, i.e., for the expansion and development of Lahug Airport. Second, the Lahug Airport had been closed and abandoned. A significant portion of it had, in fact, been purchased by a private corporation for development as a commercial complex.[20] Third, it has been preponderantly established by evidence that the NAC, through its team of negotiators, had given assurance to the affected landowners that they would be entitled to repurchase their respective lots in the event they are no longer used for airport purposes.[21] "No less than Asterio Uy," the Court noted in Heirs of Moreno, "one of the members of the CAA Mactan Legal Team, which interceded for the acquisition of the lots for the Lahug Airport's expansion, affirmed that persistent assurances were

Vda. De Ouano vs. Republic

given to the landowners to the effect that as soon as the Lahug Airport is abandoned or transferred to Mactan, the lot owners would be able to reacquire their properties."[22] In Civil Case No. CEB-20743, Exhibit "G," the transcript of the deposition[23] of Anunciacion vda. de Ouano covering the assurance made had been formally offered in evidence and duly considered in the initial decision of the RTC Cebu City. In Civil Case No. CEB-18370, the trial court, on the basis of testimonial evidence, and later the CA, recognized the reversionary rights of the suing former lot owners or their successors in interest[24] and resolved the case accordingly. In point with respect to the representation and promise of the government to return the lots taken should the planned airport expansion do not materialize is what the Court said in Heirs of Moreno, thus: This is a difficult case calling for a difficult but just solution. To begin with there exists an undeniable historical narrative that the predecessors of respondent MCIAA had suggested to the landowners of the properties covered by the Lahug Airport expansion scheme that they could repurchase their properties at the termination of the airport's venue. Some acted on this assurance and sold their properties; other landowners held out and waited for the exercise of eminent domain to take its course until finally coming to terms with respondent's predecessors that they would not appeal nor block further judgment of condemnation if the right of repurchase was extended to them. A handful failed to prove that they acted on such assurance when they parted with ownership of their land.[25] (Emphasis supplied; citations omitted.) For perspective, Heirs of Moreno--later followed by MCIAA v. Tudtud (Tudtud)[26] and the consolidated cases at bar--is cast under the same factual setting and centered on the expropriation of privately-owned lots for the public purpose of expanding the Lahug Airport and the alleged promise of reconveyance given by the negotiating NAC officials to the private lot owners. All the lots being claimed by the former owners or successors-in-interest of the former owners in the Heirs of Moreno, Tudtud, and the present cases were similarly adjudged condemned in favor of the Republic in Civil Case No. R-1881. All the claimants sought was or is to have the condemned lots reconveyed to them upon the payment of the condemnation price since the public purpose of the expropriation was never met. Indeed, the expropriated lots were never used and were, in fact, abandoned by the expropriating government agencies. In all then, the issues and supporting arguments presented by both sets of petitioners in these consolidated cases have already previously been passed upon, discussed at length, and practically peremptorily resolved in Heirs of Moreno and the November 2008 Tudtud ruling. The Ouanos, as petitioners in G.R. No. 168770, and the Inocians, as respondents in G.R. No. 168812, are similarly situated as the heirs of Moreno inHeirs of Moreno and Benjamin Tudtud in Tudtud. Be that as it may, there is no reason why the ratio decidendi in Heirs of Moreno and Tudtud should not be made to apply to petitioners Ouanos and respondents Inocians such that they shall be entitled to recover their or their predecessors' respective properties under the same manner and arrangement as the heirs of Moreno and Tudtud. Stare decisis et non quieta movere(to adhere to precedents, and not to unsettle things which are established).[27] Just like in Tudtud and earlier in Heirs of Moreno, MCIAA would foist the theory that the judgment of condemnation in Civil Case No. R-1881 was without qualification and was unconditional. It would, in fact, draw attention to the fallo of the expropriation court's decision to prove that there is nothing in the decision indicating that the government gave assurance or undertook to reconvey the covered lots in case the Lahug airport expansion project is aborted. Elaborating on this angle, MCIAA argues that the claim of the Ouanos and the Inocians regarding the alleged verbal assurance of the NAC negotiating team that they can reacquire their landholdings is barred by the Statute of Frauds.[28] Under the rule on the Statute of Frauds, as expressed in Article 1403 of the Civil Code, a contract for the sale or acquisition of real property shall be unenforceable unless the same or some note of the contract be in writing and subscribed by the party charged. Subject to defined exceptions, evidence of the agreement cannot be received without the writing, or secondary evidence of its contents. MCIAA's invocation of the Statute of Frauds is misplaced primarily because the statute applies only to executory and not to completed, executed, or partially consummated contracts.[29] Carbonnel v. Poncio, et al., quoting Chief Justice Moran, explains the rationale behind this rule, thusly: x x x "The reason is simple. In executory contracts there is a wide field for fraud because unless they may be in writing there is no palpable evidence of the intention of the contracting parties. The statute has been precisely been enacted to prevent fraud." x x x However, if a contract has been totally or partially performed, the exclusion of parol evidence would promote fraud or bad faith, for it would enable the defendant to keep the benefits already derived by him from the transaction in litigation, and at the same time, evade the obligations, responsibilities or liabilities assumed or contracted by him thereby.[30](Emphasis in the original.) Analyzing the situation of the cases at bar, there can be no serious objection to the proposition that the agreement package

Vda. De Ouano vs. Republic

between the government and the private lot owners was already partially performed by the government through the acquisition of the lots for the expansion of the Lahug airport. The parties, however, failed to accomplish the more important condition in the CFI decision decreeing the expropriation of the lots litigated upon: the expansion of the Lahug Airport. The project--the public purpose behind the forced property taking--was, in fact, never pursued and, as a consequence, the lots expropriated were abandoned. Be that as it may, the two groups of landowners can, in an action to compel MCIAA to make good its oral undertaking to allow repurchase, adduce parol evidence to prove the transaction. At any rate, the objection on the admissibility of evidence on the basis of the Statute of Frauds may be waived if not timely raised. Records tend to support the conclusion that MCIAA did not, as the Ouanos and the Inocians posit, object to the introduction of parol evidence to prove its commitment to allow the former landowners to repurchase their respective properties upon the occurrence of certain events. In a bid to deny the lot owners the right to repurchase, MCIAA, citing cases,[31] points to the dispositive part of the decision in Civil Case R-1881 which, as couched, granted the Republic absolute title to the parcels of land declared expropriated. The MCIAA is correct about the unconditional tone of the dispositive portion of the decision, but that actuality would not carry the day for the agency. Addressing the matter of the otherwise absolute tenor of the CFI's disposition in Civil Case No. R-1881, the Court, in Heirs of Moreno, after taking stock of the ensuing portion of the body of the CFI's decision, said: As for the public purpose of the expropriation proceeding, it cannot now be doubted. Although Mactan Airport is being constructed, it does not take away the actual usefulness and importance of the Lahug Airport: it is handling the air traffic of both civilian and military. From it aircrafts fly to Mindanao and Visayas and pass thru it on their flights to the North and Manila. Then, no evidence was adduced to show how soon is the Mactan Airport to be placed in operation and whether the Lahug Airport will be closed immediately thereafter. It is up to the other departments of the Government to determine said matters. The Court cannot substitute its judgments for those of the said departments or agencies. In the absence of such showing, the court will presume that the Lahug Airport will continue to be in operation .[32] (Emphasis supplied.) We went on to state as follows: While the trial court in Civil Case No. R-1881 could have simply acknowledged the presence of public purpose for the exercise of eminent domain regardless of the survival of the Lahug Airport, the trial court in its Decision chose not to do so but instead prefixed its finding of public purpose upon its understanding that `Lahug Airport will continue to be in operation'. Verily, these meaningful statements in the body of the Decision warrant the conclusion that the expropriated properties would remain to be so until it was confirmed that Lahug Airport was no longer `in operation'. This inference further implies two (2) things: (a) after the Lahug Airport ceased its undertaking as such and the expropriated lots were not being used for any airport expansion project, the rights vis- -vis the expropriated lots x x x as between the State and their former owners, petitioners herein, must be equitably adjusted; and (b) the foregoing unmistakable declarations in the body of theDecision should merge with and become an intrinsic part of the fallothereof which under the premises is clearly inadequate since the dispositive portion is not in accord with the findings as contained in the body thereof.[33] Not to be overlooked of course is what the Court said in its Resolution disposing of MCIAA's motion to reconsider the original ruling in Heirs of Moreno. In that resolution, We stated that the fallo of the decision in Civil Case R-1881 should be viewed and understood in connection with the entire text, which contemplated a return of the property taken if the airport expansion project were abandoned. For ease of reference, following is what the Court wrote: Moreover, we do not subscribe to the [MCIAA's] contention that since the possibility of the Lahug Airport's closure was actually considered by the trial court, a stipulation on reversion or repurchase was so material that it should not have been discounted by the court a quo in its decision in Civil Case No. R-1881, if, in fact, there was one. We find it proper to cite, once more, this Court's ruling that the fallo of the decision in Civil Case No. R-1881 must be read in reference to the other portions of the decision in which it forms a part. A reading of the Court's judgment must not be confined to the dispositive portion alone; rather it should be meaningfully construed in unanimity with the ratio decidendi thereof to grasp the true intent and meaning of a decision.[34] The Court has, to be sure, taken stock of Fery v. Municipality of Cabanatuan,[35] a case MCIAA cites at every possible turn, where the Court made these observations: If, for example, land is expropriated for a particular purpose, with the condition that when that purpose is ended or abandoned the property shall return to its former owner, then of course, when the purpose is terminated or abandoned, the former owner reacquires the property so expropriated. x x x If, upon the contrary, however the decree of expropriation gives to the entity a

Vda. De Ouano vs. Republic

fee simple title, then, of course, the land becomes the absolute property of the expropriator x x x and in that case the non-user does not have the effect of defeating the title acquired by the expropriation proceedings x x x. Fery notwithstanding, MCIAA cannot really rightfully say that it has absolute title to the lots decreed expropriated in Civil Case No. R-1881. The correct lesson of Fery is captured by what the Court said in that case, thus: "the government acquires only such rights in expropriated parcels of land as may be allowed by the character of its title over the properties." In light of our disposition in Heirs of Moreno and Tudtud, the statement immediately adverted to means that in the event the particular public use for which a parcel of land is expropriated is abandoned, the owner shall not be entitled to recover or repurchase it as a matter of right, unless such recovery or repurchase is expressed in or irresistibly deducible from the condemnation judgment. But as has been determined below, the decision in Civil Case No. R-1881 enjoined MCIAA, as a condition of approving expropriation, to allow recovery or repurchase upon abandonment of the Lahug airport project. To borrow from our underlying decision inHeirs of Moreno, "[n]o doubt, the return or repurchase of the condemned properties of petitioners could readily be justified as the manifest legal effect of consequence of the trial court's underlying presumption that `Lahug Airport will continue to be in operation' when it granted the complaint for eminent domain and the airport discontinued its activities."[36] Providing added support to the Ouanos and the Inocians' right to repurchase is what inHeirs of Moreno was referred to as constructive trust, one that is akin to the implied trust expressed in Art. 1454 of the Civil Code,[37] the purpose of which is to prevent unjust enrichment.[38] In the case at bench, the Ouanos and the Inocians parted with their respective lots in favor of the MCIAA, the latter obliging itself to use the realties for the expansion of Lahug Airport; failing to keep its end of the bargain, MCIAA can be compelled by the former landowners to reconvey the parcels of land to them, otherwise, they would be denied the use of their properties upon a state of affairs that was not conceived nor contemplated when the expropriation was authorized. In effect, the government merely held the properties condemned in trust until the proposed public use or purpose for which the lots were condemned was actually consummated by the government. Since the government failed to perform the obligation that is the basis of the transfer of the property, then the lot owners Ouanos and Inocians can demand the reconveyance of their old properties after the payment of the condemnation price. Constructive trusts are fictions of equity that courts use as devices to remedy any situation in which the holder of the legal title, MCIAA in this case, may not, in good conscience, retain the beneficial interest. We add, however, as in Heirs of Moreno, that the party seeking the aid of equity--the landowners in this instance, in establishing the trust--must himself do equity in a manner as the court may deem just and reasonable. The Court, in the recent MCIAA v. Lozada, Sr., revisited and abandoned the Feryruling that the former owner is not entitled to reversion of the property even if the public purpose were not pursued and were abandoned, thus: On this note, we take this opportunity to revisit our ruling inFery, which involved an expropriation suit commenced upon parcels of land to be used as a site for a public market. Instead of putting up a public market, respondent Cabanatuan constructed residential houses for lease on the area. Claiming that the municipality lost its right to the property taken since it did not pursue its public purpose, petitioner Juan Fery, the former owner of the lots expropriated, sought to recover his properties. However, as he had admitted that, in 1915, respondentCabanatuan acquired a fee simple title to the lands in question, judgment was rendered in favor of the municipality, following American jurisprudence, particularlyCity of Fort Wayne v. Lake Shore & M.S. RY. Co., McConihay v. Theodore Wright, andReichling v. Covington Lumber Co., all uniformly holding that the transfer to a third party of the expropriated real property, which necessarily resulted in the abandonment of the particular public purpose for which the property was taken, is not a ground for the recovery of the same by its previous owner, the title of the expropriating agency being one of fee simple. Obviously,Ferywas not decided pursuant to our now sacredly held constitutional right that private property shall not be taken for public use without just compensation. It is well settled that the taking of private property by the Governments power of eminent domain is subject to two mandatory requirements: (1) that it is for a particular public purpose; and (2) that just compensation be paid to the property owner. These requirements partake of the nature of implied conditions that should be complied with to enable the condemnor to keep the property expropriated. More particularly, with respect to the element of public use, the expropriator should commit to use the property pursuant to the purpose stated in the petition for expropriation filed, failing which, it should file another petition for the new purpose. If not, it is then incumbent upon the expropriator to return the said property to its private owner, if the latter desires to reacquire the same. Otherwise, the judgment of expropriation suffers an intrinsic flaw, as it would lack one indispensable element for the proper exercise of the power of eminent domain, namely, the particular public purpose for which the property will be devoted. Accordingly, the private property owner would be denied due process of law, and the judgment would violate the property owners right to justice, fairness, and equity.

Vda. De Ouano vs. Republic

In light of these premises, we now expressly hold that the taking of private property, consequent to the Governments exercise of its power of eminent domain, is always subject to the condition that the property be devoted to the specific public purpose for which it was taken. Corollarily, if this particular purpose or intent is not initiated or not at all pursued, and is peremptorily abandoned, then the former owners, if they so desire, may seek the reversion of the property, subject to the return of the amount of just compensation received. In such a case, the exercise of the power of eminent domain has become improper for lack of the required factual justification.[39] (Emphasis supplied.) Clinging to Fery, specifically the fee simple concept underpinning it, is no longer compelling, considering the ensuing inequity such application entails. Too, the Court resolved Fery not under the cover of any of the Philippine Constitutions, each decreeing that private property shall not be taken for public use without just compensation. The twin elements of just compensation and public purpose are, by themselves, direct limitations to the exercise of eminent domain, arguing, in a way, against the notion of fee simple title. The fee does not vest until payment of just compensation.[40] In esse, expropriation is forced private property taking, the landowner being really without a ghost of a chance to defeat the case of the expropriating agency. In other words, in expropriation, the private owner is deprived of property against his will. Withal, the mandatory requirement of due process ought to be strictly followed, such that the state must show, at the minimum, a genuine need, an exacting public purpose to take private property, the purpose to be specifically alleged or least reasonably deducible from the complaint. Public use, as an eminent domain concept, has now acquired an expansive meaning to include any use that is of "usefulness, utility, or advantage, or what is productive of general benefit [of the public]."[41] If the genuine public necessity--the very reason or condition as it were--allowing, at the first instance, the expropriation of a private land ceases or disappears, then there is no more cogent point for the government's retention of the expropriated land. The same legal situation should hold if the government devotes the property to another public use very much different from the original or deviates from the declared purpose to benefit another private person. It has been said that the direct use by the state of its power to oblige landowners to renounce their productive possession to another citizen, who will use it predominantly for that citizen's own private gain, is offensive to our laws.[42] A condemnor should commit to use the property pursuant to the purpose stated in the petition for expropriation, failing which it should file another petition for the new purpose. If not, then it behooves the condemnor to return the said property to its private owner, if the latter so desires. The government cannot plausibly keep the property it expropriated in any manner it pleases and, in the process, dishonor the judgment of expropriation. This is not in keeping with the idea of fair play, The notion, therefore, that the government, via expropriation proceedings, acquires unrestricted ownership over or a fee simple title to the covered land, is no longer tenable. We suggested as much in Heirs of Moreno and in Tudtud and more recently inLozada, Sr. Expropriated lands should be differentiated from a piece of land, ownership of which was absolutely transferred by way of an unconditional purchase and sale contract freely entered by two parties, one without obligation to buy and the other without the duty to sell. In that case, the fee simple concept really comes into play. There is really no occasion to apply the "fee simple concept" if the transfer is conditional. The taking of a private land in expropriation proceedings is always conditioned on its continued devotion to its public purpose. As a necessary corollary, once the purpose is terminated or peremptorily abandoned, then the former owner, if he so desires, may seek its reversion, subject of course to the return, at the very least, of the just compensation received. To be compelled to renounce dominion over a piece of land is, in itself, an already bitter pill to swallow for the owner. But to be asked to sacrifice for the common good and yield ownership to the government which reneges on its assurance that the private property shall be for a public purpose may be too much. But it would be worse if the power of eminent domain were deliberately used as a subterfuge to benefit another with influence and power in the political process, including development firms. The mischief thus depicted is not at all far-fetched with the continued application of Fery. Even as the Court deliberates on these consolidated cases, there is an uncontroverted allegation that the MCIAA is poised to sell, if it has not yet sold, the areas in question to Cebu Property Ventures, Inc. This provides an added dimension to abandon Fery. Given the foregoing disquisitions, equity and justice demand the reconveyance by MCIAA of the litigated lands in question to the Ouanos and Inocians. In the same token, justice and fair play also dictate that the Ouanos and Inocian return to MCIAA what they received as just compensation for the expropriation of their respective properties plus legal interest to be computed from default, which in this case should run from the time MCIAA complies with the reconveyance obligation.[43] They must likewise pay MCIAA the necessary expenses it might have incurred in sustaining their respective lots and the monetary value of its services in managing the lots in question to the extent that they, as private owners, were benefited thereby.

Vda. De Ouano vs. Republic

In accordance with Art. 1187 of the Civil Code on mutual compensation, MCIAA may keep whatever income or fruits it may have obtained from the parcels of land expropriated. In turn, the Ouanos and Inocians need not require the accounting of interests earned by the amounts they received as just compensation.[44] Following Art. 1189 of the Civil Code providing that "[i]f the thing is improved by its nature, or by time, the improvement shall inure to the benefit of the creditor x x x," the Ouanos and Inocians do not have to settle the appreciation of the values of their respective lots as part of the reconveyance process, since the value increase is merely the natural effect of nature and time. Finally, We delete the award of PhP 50,000 and PhP 10,000, as attorney's fees and litigation expenses, respectively, made in favor of the Inocians by the Cebu City RTC in its judgment in Civil Case No. CEB-18370, as later affirmed by the CA. As a matter of sound policy, no premium should be set on the right to litigate where there is no doubt about the bona fides of the exercise of such right,[45] as here, albeit the decision of MCIAA to resist the former landowners' claim eventually turned out to be untenable. WHEREFORE, the petition in G.R. No. 168770 is GRANTED. Accordingly, the CA Decision dated September 3, 2004 in CA-G.R. CV No. 78027 is REVERSED and SET ASIDE. Mactan-Cebu International Airport Authority is ordered to reconvey subject Lot No. 763-A to petitioners Anunciacion vda. de Ouano, Mario P. Ouano, Leticia Ouano Arnaiz, and Cielo Ouano Martinez. The Register of Deeds of Cebu City is ordered to effect the necessary cancellation of title and transfer it in the name of the petitioners within fifteen (15) days from finality of judgment. The petition of the Mactan-Cebu International Airport Authority in G.R. No. 168812 isDENIED, and the CA's Decision and Resolution dated January 14, 2005 and June 29, 2005, respectively, in CA-G.R. CV No. 64356 are AFFIRMED, except insofar as they awarded attorney's fees and litigation expenses that are hereby DELETED. Accordingly, Mactan-Cebu International Airport Authority is ordered to reconvey to respondents Ricardo L. Inocian, Olympia E. Esteves, Emilia E. Bacalla, Restituta E. Montana, and Raul L. Inocian the litigated Lot Nos. 744-A, 745-A, 746, 762-A, 747, and 761-A; and to respondents Aletha Suico Magat, Philip M. Suico, Dolores S. dela Cruz, James M. Suico, Edward M. Suico, Roselyn S. Lawsin, Rex M. Suico, and Kharla SuicoGutierrez the litigated Lot Nos. 942 and 947. The Register of Deeds of Cebu City is ordered to effect the necessary cancellation of title and transfer it in the name of respondents within a period of fifteen (15) days from finality of judgment. The foregoing dispositions are subject to QUALIFICATIONS, to apply to these consolidated petitions, when appropriate, as follows: (1) Petitioners Ouano, et al. in G.R. No. 168770 and respondents Ricardo L Inocian, et al. in G.R. No. 168812 are ordered to return to the MCIAA the just compensation they or their predecessors-in-interest received for the expropriation of their respective lots as stated in Civil Case No. R-1881, within a period of sixty (60) days from finality of judgment; (2) The MCIAA shall be entitled to RETAIN whatever fruits and income it may have obtained from the subject expropriated lots without any obligation to refund the same to the lot owners; and (3) Petitioners Ouano, et al. in G.R. No. 168770 and respondents Ricardo L. Inocian, et al. in G.R. No. 168812 shall RETAIN whatever interests the amounts they received as just compensation may have earned in the meantime without any obligation to refund the same to MCIAA. SO ORDERED.

NAPOCOR vs Tiangco
Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 170846 February 6, 2007

NATIONAL POWER CORPORATION, Petitioner, vs. AURELLANO S. TIANGCO, LOURDES S. TIANGCO and NESTOR S. TIANGCO, Respondents. DECISION GARCIA, J.: In this petition for review on certiorari under Rule 45 of the Rules of Court, petitioner National Power Corporation (NPC) seeks the annulment and setting aside of the Decision1 dated March 14, 2005 of the Court of Appeals (CA) in CA-G.R. CV No. 53576, as reiterated in its Resolution2 of December 2, 2005 which denied the petitioners motion for reconsideration. The assailed decision modified that of the Regional Trial Court (RTC) of Tanay, Rizal, Branch 80, by increasing the amount of just compensation due the respondents in an expropriation case filed against them by the petitioner. The facts: Herein respondents Aurellano, Lourdes and Nestor, all surnamed Tiangco, are the owners of a parcel of land with an area of 152,187 square meters at Barangay Sampaloc, Tanay, Rizal and registered in their names under TCT No. M17865 of the Registry of Deeds of Rizal. On the other hand, petitioner NPC is a government-owned and controlled corporation created for the purpose of undertaking the development and generation of power from whatever source. NPCs charter (Republic Act No. 6395) authorizes the corporation to acquire private property and exercise the right of eminent domain.
1awphi1.net

NPC requires 19,423 square meters of the respondents aforementioned property, across which its 500Kv KalayaanSan Jose Transmission Line Project will traverse. NPCs Segregation Plan3 for the purpose shows that the desired right-of-way will cut through the respondents land, in such a manner that 33,392 square meters thereof will be left separated from 99,372 square meters of the property. Within the portion sought to be expropriated stand fruit-bearing tress, such as mango, avocado, jackfruit, casuy, santol, calamansi, sintones and coconut trees. On November 20, 1990, after repeated unsuccessful negotiations with the respondents, NPC filed with the RTC of Tanay, Rizal a complaint for expropriation4 against them. In time, the respondents filed their answer. On March 14, 1991, the trial court issued a Condemnation Order, granting NPC the right to take possession of the area sought to be expropriated. In the same Order, the court directed the parties to nominate their respective commissioners, with a third member to be nominated and appointed by the court itself, to determine the proper amount of just compensation to be paid to the respondents. As constituted in the manner thus indicated, the board of commissioners was composed of the following: for NPC, Atty. Restituto Mallo of its Legal Department; for the respondents, Mr. Basilio Afuang, a geodetic engineer and a real estate broker by profession; and for the court, Clerk of Court V Ms. Amelia de Guzman Carbonell. On April 5, 1991, the trial court issued an order directing NPC to pay and deposit with the Rizal Provincial Treasurer the amount of P81,204.00, representing the temporary provisional value of the area subject of the expropriation prior to the taking of possession thereof. On April 22, 1991, with NPC having complied with the deposit requirement, a writ of possession was issued in its favor.

NAPOCOR vs Tiangco Thereafter, an ocular inspection of the premises was conducted and hearings before the board of commissioners were held, during which the Municipal Assessor of Tanay, Rizal was presented. He submitted a record of the Schedule of Values for taxation purposes and a certification to the effect that the unit value of the respondents property is P21,000.00 per hectare.
On August 7, 1993, commissioner Basilio Afuang for the respondents filed his report. He pegged the price of the area sought to be expropriated at P30.00 per square meter or P582,690.005 in the aggregate; and for the improvements thereon, Afuang placed a valuation of P2,093,950.00. The figures are in contrast with the respondents own valuation of P600,600.00, for the area, and P4,935,500.00, for the improvements. On September 14, 1993, NPC filed an amended complaint to acquire only 19,423 square meters of the respondents property. The original area of 20,220 square meters initially sought to be expropriated under the original complaint turned out to be in excess of the area required. For its part, NPC made it clear that it is interested only in acquiring an easement of right-of-way over the respondents property and that ownership of the area over which the right-of-way will be established shall remain with the respondents. For this reason, NPC claims that it should pay, in addition to the agreed or adjudged value of the improvements on the area, only an easement fee in an amount equivalent to ten per cent (10%) of the market value of the property as declared by the respondents or by the Municipal Assessor, whichever is lower, as provided for under Section 3-A of Republic Act No. 6395, as amended by Presidential Decree 938.6 The court-appointed commissioner, Ms. Amelia de Guzman Carbonell, found that the risk and dangerous nature of the transmission line project essentially deprive the respondents of the use of the area. Nonetheless, she recommended that the determination of just compensation should be relegated to "expert appraisers."7 From the evidence before it, the trial court made a determination that the market value of the property is P2.09 per square meter, or P40,594.07 for the entire 19,423 square meters needed by NPC, and not the P30.00 per square meter claimed by the respondents. Neither did the trial court consider NPCs reliance on Section 3-A of Republic Act No. 6395, as amended by Presidential Decree 938, the court placing more weight on the respondents argument that expropriation would result in the substantial impairment of the use of the area needed, even though what is sought is a mere aerial right-of-way. The court found as reasonable the amount of P324,750.00 offered by NPC for the improvements, as the same is based on the official current schedule of values as determined by the Municipal Assessor of Tanay, Rizal. Hence, in its decision8 of February 19, 1996, the trial court rendered judgment as follows: WHEREFORE, in view of the foregoing, judgment is hereby rendered: 1. Expropriating in favor of [NPC] a parcel of land covering a total area of 19,423 sq.m. covered by TCT No. M17860 owned by the [respondents]; 2. Ordering the amount of P40,594.07 as just compensation for the 19,423 square meters of land affected by the expropriations; and the amount of P324,750.00 as reasonable compensation for the improvements on the land expropriated with legal interest from the time of possession by the plaintiff. No pronouncement as to costs. SO ORDERED. (Words in brackets supplied.) The respondents moved for reconsideration, presenting for the first time a document entitled "Bureau of Internal Revenue Circular of Appraisal," which shows that for the year 1985, lands in Barangay Sampaloc were valued atP30.00 per square meter; for the year 1992, at P80.00 per square meter; and for year 1994, at P100.00 per square meter. Respondents maintain that the price of P30.00 per square meter for the needed area of 19,423 square meters is the reasonable amount and should be the basis for fixing the amount of just compensation due them. The trial court denied the motion, stating that the BIR circular in question was belatedly filed and therefore NPC could not have opposed its presentation.

NAPOCOR vs Tiangco From the aforesaid decision of the trial court, both NPC and the respondents went on appeal to the CA whereat the separate appeals were consolidated and docketed as CA-G.R. CV No. 53576. The appellate court found merit in the respondents appeal, and disregarded the P2.09 per square meter valuation of the trial court, which was based on a 1984 tax declaration. Instead, the CA placed reliance upon a 1993 tax declaration, "being only two years removed from the time of taking."9 The appellate court determined the time of taking to be in 1991. Thus, the greater value of P913,122.00 as declared in Tax Declaration No. 011-2667 dated July 23, 1993 should be the basis for determining just compensation. With regard to the value of improvements, the appellate court found NPCs valuation more favorable, being based on the current (1991) schedule of values for trees in the provinces of Rizal and Laguna. Hence, in its decision10 of March 14, 2005, the CA rendered judgment, to wit:
WHEREFORE, the instant Appeal is GRANTED. The decision of the Regional Trial Court of Tanay, Rizal, Branch 80 dated February 19, 1996 is hereby MODIFIED and the compensation awarded for the 19,423 square meters of land affected is increased to P116,538.00, and the reasonable compensation for the improvements thereon is likewise increased to P325,025.00, with legal interest from the time of possession by the plaintiff-appellee NAPOCOR. No pronouncement as to costs. SO ORDERED. NPC moved for reconsideration, but its motion was denied by the appellate court in its resolution11 of December 2, 2005. Hence, NPCs instant petition for review, submitting for our resolution only the following issues with respect to theamount of just compensation that must be paid the respondents for the expropriated portion (19,423 square meters) of their property: 1. Is it to be based on the 1984 or the 1993 valuation? 2. Should NPC pay for the value of the land being taken, or should it be limited to what is provided for under P.D. 938, that is, ten per cent (10%) of its market value as declared by the owner or the assessor (whichever is lower), considering that the purpose for which the property is being taken is merely for the establishment of a safe and free passage for its overhead transmission lines? There is no issue as to the improvements. Since the P325,025.00 valuation therefor is the very price set by the NPC commissioner, to which the corporation did not object but otherwise adopts, the Court fixes the amount ofP325,025.00 as just compensation for the improvements. We now come to the more weighty question of what amount is just by way of compensation for the 19,423 squaremeter portion of the respondents property. In eminent domain cases, the time of taking is the filing of the complaint, if there was no actual taking prior thereto. Hence, in this case, the value of the property at the time of the filing of the complaint on November 20, 1990 should be considered in determining the just compensation due the respondents. So it is that in National Power Corporation v. Court of Appeals, et al.,12 we ruled: Normally, the time of the taking coincides with the filing of the complaint for expropriation. Hence, many rulings of this Court have equated just compensation with the value of the property as of the time of filing of the complaint consistent with the above provision of the Rules. So too, where the institution of the action precedes entry into the property, the just compensation is to be ascertained as of the time of the filing of the complaint. The trial court fixed the value of the property at its 1984 value, while the CA, at its 1993 worth. Neither of the two determinations is correct. For purposes of just compensation, the respondents should be paid the value of the property as of the time of the filing of the complaint which is deemed to be the time of taking the property. It was certainly unfair for the trial court to have considered a property value several years behind its worth at the time the complaint in this case was filed on November 20, 1990. The landowners are necessarily shortchanged, considering that, as a rule, land values enjoy steady upward movement. It was likewise erroneous for the appellate court to have

NAPOCOR vs Tiangco fixed the value of the property on the basis of a 1993 assessment. NPC would be paying too much. Petitioner corporation is correct in arguing that the respondents should not profit from an assessment made years after the taking.
The expropriation proceedings in this case having been initiated by NPC on November 20, 1990, property values on such month and year should lay the basis for the proper determination of just compensation. In Association of Small Landowners in the Philippines, Inc. v. Secretary of Agrarian Reform,13 the Court ruled that the equivalent to be rendered for the property to be taken shall be substantial, full, ample and, as must apply to this case, real. This must be taken to mean, among others, that the value as of the time of taking should be the price to be paid the property owner. Just compensation is defined as the full and fair equivalent of the property taken from its owner by the expropriator. In this case, this simply means the propertys fair market value at the time of the filing of the complaint, or "that sum of money which a person desirous but not compelled to buy, and an owner willing but not compelled to sell, would agree on as a price to be given and received therefor."14 The measure is not the takers gain, but the owners loss. In the determination of such value, the court is not limited to the assessed value of the property or to the schedule of market values determined by the provincial or city appraisal committee; these values consist but one factor in the judicial valuation of the property.15 The nature and character of the land at the time of its taking is the principal criterion for determining how much just compensation should be given to the landowner16 All the facts as to the condition of the property and its surroundings, as well as its improvements and capabilities, should be considered.17 Neither of the two determinations made by the courts below is therefore correct. A new one must be arrived at, taking into consideration the foregoing pronouncements. Now, to the second issue raised by petitioner NPC. In several cases, the Court struck down NPCs consistent reliance on Section 3-A of Republic Act No. 6395, as amended by Presidential Decree 938.18 True, an easement of a right-of-way transmits no rights except the easement itself, and the respondents would retain full ownership of the property taken. Nonetheless, the acquisition of such easement is not gratis. The limitations on the use of the property taken for an indefinite period would deprive its owner of the normal use thereof. For this reason, the latter is entitled to payment of a just compensation, which must be neither more nor less than the monetary equivalent of the land taken.19 While the power of eminent domain results in the taking or appropriation of title to, and possession of, the expropriated property, no cogent reason appears why said power may not be availed of to impose only a burden upon the owner of the condemned property, without loss of title and possession.20 However, if the easement is intended to perpetually or indefinitely deprive the owner of his proprietary rights through the imposition of conditions that affect the ordinary use, free enjoyment and disposal of the property or through restrictions and limitations that are inconsistent with the exercise of the attributes of ownership, or when the introduction of structures or objects which, by their nature, create or increase the probability of injury, death upon or destruction of life and property found on the land is necessary, then the owner should be compensated for the monetary equivalent of the land, in accordance with our ruling in NPC v. Manubay Agro-Industrial: As correctly observed by the CA, considering the nature and the effect of the installation power lines, the limitations on the use of the land for an indefinite period would deprive respondent of normal use of the property. For this reason, the latter is entitled to payment of a just compensation, which must be neither more nor less than the monetary equivalent of the land.21 The evidence suggests that NPCs transmission line project that traverses the respondents property is perpetual, or at least indefinite, in nature. Moreover, not to be discounted is the fact that the high-tension current to be conveyed through said transmission lines evidently poses a danger to life and limb; injury, death or destruction to life and property within the vicinity. As the Court held in NPC v. Chiong,22 it is not improper to assume that NPC will erect structures for its transmission lines within the property. What is sought to be expropriated in this case is, at its longest extent, 326.34 meters, and through it may be built several structures, not simply one. Finally, if NPC were to have its way, respondents will continue to pay the realty taxes due on the affected portion of their property, an imposition that, among others, merits the rejection of NPCs thesis of payment of a mere percentage of the propertys actual value.

NAPOCOR vs Tiangco WHEREFORE, the instant petition is GRANTED in part in that the decision of the Court of Appeals dated March 14, 2005 vis a vis the award of P116,538.00, as and by way of just compensation for the 19,423 square meters of the respondents property, is SET ASIDE, and the case is ordered REMANDED to the court of origin for the proper determination of the amount of just compensation for the portion thus taken, based on our pronouncements hereon. The same decision, however, is AFFIRMED, insofar as it pertains to the award of P325,025.00 for the improvements, with legal interest from the time of actual possession by the petitioner.
No pronouncement as to costs. SO ORDERED.

NAPOCOR vs Ibrahim
Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 183297 December 23, 2009

NATIONAL POWER CORPORATION, Petitioner, vs. OMAR G. MARUHOM, ELIAS G. MARUHOM, BUCAY G. MARUHOM, MAMOD G. MARUHOM, FAROUK G. MARUHOM, HIDJARA G. MARUHOM, ROCANIA G. MARUHOM, POTRISAM G. MARUHOM, LUMBA G. MARUHOM, SINAB G. MARUHOM, ACMAD G. MARUHOM, SOLAYMAN G. MARUHOM, MOHAMAD M. IBRAHIM, CAIRORONESA M. IBRAHIM, and LUCMAN IBRAHIM, represented by his heirs ADORA B. IBRAHIM, NASSER B. IBRAHIM, JAMALODIN B. IBRAHIM, RAJID NABBEL B. IBRAHIM, AMEER B. IBRAHIM and SARAH AIZAH B. IBRAHIM,* Respondents. DECISION NACHURA, J.: Petitioner National Power Corporation (NPC) filed this Petition for Review on Certiorari, seeking to nullify the May 30, 2008 Decision1 of the Court of Appeals (CA) in CA-G.R. SP No. 02065-MIN, affirming the Order dated November 13, 2007 issued by Hon. Amer R. Ibrahim, which granted respondents motion for issuance of a writ of execution. The antecedents. Lucman G. Ibrahim and his co-heirs Omar G. Maruhom, Elias G. Maruhom, Bucay G. Maruhom, Mamod G. Maruhom, Farouk G. Maruhom, Hidjara G. Maruhom, Rocania G. Maruhom, Potrisam G. Maruhom, Lumba G. Maruhom, Sinab G. Maruhom, Acmad G. Maruhom, Solayman G. Maruhom, Mohamad M. Ibrahim and Cairoronesa M. Ibrahim (respondents) are owners of a 70,000-square meter lot in Saduc, Marawi City. Sometime in 1978, NPC, without respondents knowledge and consent, took possession of the subterranean area of the land and constructed therein underground tunnels. The tunnels were used by NPC in siphoning the water of Lake Lanao and in the operation of NPCs Agus II, III, IV, V, VI, and VII projects located in Saguiran, Lanao del Sur; Nangca and Balo-i in Lanao del Norte; and Ditucalan and Fuentes in Iligan City. Respondents only discovered the existence of the tunnels sometime in July 1992. Thus, on October 7, 1992, respondents demanded that NPC pay damages and vacate the subterranean portion of the land, but the demand was not heeded. Hence, on November 23, 1994, respondents instituted an action for recovery of possession of land and damages against NPC with the Regional Trial Court (RTC) of Lanao del Sur, docketed as Civil Case No. 1298-94. After trial, the RTC rendered a decision,2 the decretal portion of which reads: WHEREFORE, judgment is hereby rendered: 1. Denying [respondents] prayer for [NPC] to dismantle the underground tunnels constructed beneath the lands of [respondents] in Lots 1, 2, and 3 of Survey Plan FP (VII-5) 2278; 2. Ordering [NPC] to pay to [respondents] the fair market value of said 70,000 square meters of land covering Lots 1, 2, and 3 as described in Survey Plan FP (VII-5) 2278 less the area of 21,995 square meters at P1,000.00 per square meter or a total of P48,005,000.00 for the remaining unpaid portion of 48,005 square meters; with 6% interest per annum from the filing of this case until paid; 3. Ordering [NPC] to pay [respondents] a reasonable monthly rental of P0.68 per square meter of the total area of 48,005 square meters effective from its occupancy of the foregoing area in 1978 or a total ofP7,050,974.40.

NAPOCOR vs Ibrahim 4. Ordering [NPC] to pay [respondents] the sum of P200,000.00 as moral damages; and
5. Ordering [NPC] to pay the further sum of P200,000.00 as attorneys fees and the costs. SO ORDERED.3 Respondents then filed an Urgent Motion for Execution of Judgment Pending Appeal. On the other hand, NPC filed a Notice of Appeal. Thereafter, it filed a vigorous opposition to the motion for execution of judgment pending appeal with a motion for reconsideration of the RTC decision. On August 26, 1996, NPC withdrew its Notice of Appeal to give way to the hearing of its motion for reconsideration. On August 28, 1996, the RTC issued an Order granting execution pending appeal and denying NPCs motion for reconsideration. The Decision of the RTC was executed pending appeal and the funds of NPC were garnished by respondents. On October 4, 1996, Lucman Ibrahim and respondents Omar G. Maruhom, Elias G. Maruhom, Bucay G. Maruhom, Mamod G. Maruhom, Farouk G. Maruhom, Hidjara G. Maruhom, Potrisam G. Maruhom and Lumba G. Maruhom filed a Petition for Relief from Judgment,4 asserting as follows: 1. They did not file a motion to reconsider or appeal the decision within the reglementary period of fifteen (15) days from receipt of judgment because they believed in good faith that the decision was for damages and rentals and attorneys fees only as prayed for in the complaint; 2. It was only on August 26, 1996 that they learned that the amounts awarded to the respondents represented not only rentals, damages and attorneys fees but the greatest portion of which was payment of just compensation which, in effect, would make the petitioner NPC the owner of the parcels of land involved in the case; 3. When they learned of the nature of the judgment, the period of appeal had already expired; 4. They were prevented by fraud, mistake, accident, or excusable negligence from taking legal steps to protect and preserve their rights over their parcels of land insofar as the part of the decision decreeing just compensation for respondents properties; 5. They would never have agreed to the alienation of their property in favor of anybody, considering the fact that the parcels of land involved in this case were among the valuable properties they inherited from their dear father and they would rather see their land crumble to dust than sell it to anybody.5 After due proceedings, the RTC granted the petition and rendered a modified judgment dated September 8, 1997, thus: WHEREFORE, a modified judgment is hereby rendered: 1. Reducing the judgment award of [respondents] for the fair market value of P48,005,000.00 by [P]9,526,000.00 or for a difference [of] P38,479,000.00 and by the further sum of P33,603,500.00 subject of the execution pending appeal leaving a difference of [P]4,878,500.00 which may be the subject of execution upon the finality of this modified judgment with 6% interest per annum from the filing of the case until paid. 2. Awarding the sum of P1,476,911.00 to herein [respondents] Omar G. Maruhom, Elias G. Maruhom, Bucay G. Maruhom, Mahmod G. Maruhom, Farouk G. Maruhom, Hidjara G. Maruhom, Portrisam G. Maruhom and Lumba G. Maruhom as reasonable rental deductible from the awarded sum of P7,050,974.40 pertaining to [respondents]. 3. Ordering [NPC] embodied in the August 7, 1996 decision to pay [respondents] the sum of P200,000.00 as moral damages; and further sum of P200,000.00 as attorneys fees and costs.

NAPOCOR vs Ibrahim SO ORDERED.6

Lucman Ibrahim and NPC then filed their separate appeals with the CA, docketed as CA-G.R. CV No. 57792. On June 8, 2005, the CA rendered a Decision,7 setting aside the modified judgment and reinstating the original Decision, amending it further by deleting the award of moral damages and reducing the amount of rentals and attorneys fees, thus: WHEREFORE, premises considered, herein Appeals are hereby partially GRANTED, the Modified Judgment is ordered SET ASIDE and rendered of no force and effect and the original Decision of the court a quo dated 7 August 1996 is hereby RESTORED with the MODIFICATION that the award of moral damages is DELETED and the amounts of rentals and attorneys fees are REDUCED to P6,887,757.40 and P50,000.00, respectively. In this connection, the Clerk of Court of RTC Lanao del Sur is hereby directed to reassess and determine the additional filing fee that should be paid by Plaintiff-Appellant IBRAHIM taking into consideration the total amount of damages sought in the complaint vis--vis the actual amount of damages awarded by this Court. Such additional filing fee shall constitute as a lien on the judgment. SO ORDERED8 The above decision was affirmed by this Court on June 29, 2007 in G.R. No. 168732, viz.: WHEREFORE, the petition is DENIED and the Decision of the Court of Appeals in C.A.-G.R. CV No. 57792 dated June 8, 2005 is AFFIRMED. No costs. SO ORDERED.9 NPC moved for reconsideration of the Decision, but this Court denied it on August 29, 2007. To satisfy the judgment, respondents filed with the RTC a motion for execution of its August 7, 1996 decision, as modified by the CA. On November 13, 2007, the RTC granted the motion, and issued the corresponding writ of execution. Subsequently, a notice of garnishment was issued upon NPCs depositary bank. NPC then filed a Petition for Certiorari (with Urgent Prayer for the Immediate Issuance of a Temporary Restraining Order and/or Writ of Preliminary Injunction) with the CA, docketed as CA-G.R. SP No. 02065-MIN. It argued that the RTC gravely abused its discretion when it granted the motion for execution without ordering respondents to transfer their title in favor of NPC. By allowing the payment of just compensation for a parcel of land without the concomitant right of NPC to get title thereto, the RTC clearly varied the terms of the judgment in G.R. No. 168732, justifying the issuance of a writ of certiorari. NPC also prayed for the issuance of a temporary restraining order (TRO) to enjoin the implementation of the writ of execution and notice of garnishment. On November 29, 2007, the CA granted NPCs prayer and issued a TRO, enjoining the implementation of the writ of execution and the notice of garnishment. On May 30, 2008, the CA rendered the now assailed Decision,10 dismissing NPCs petition for certiorari. Rejecting NPCs argument, the CA declared that this Courts Decision in G.R. No. 168732 intended NPC to pay the full value of the property as compensation without ordering the transfer of respondents title to the land. According to the CA, in a plethora of cases involving lands traversed by NPCs transmission lines, it had been consistently ruled that an easement is compensable by the full value of the property despite the fact that NPC was only after a right-of-way easement, if by such easement it perpetually or indefinitely deprives the land owner of his proprietary rights by imposing restrictions on the use of the property. The CA, therefore, ordered NPC to pay its admitted obligation to respondents amounting to P36,219,887.20.11

NAPOCOR vs Ibrahim NPC is now before us faulting the CA for dismissing the formers petition for certiorari. It also prayed for a TRO to enjoin respondents and all persons acting under their authority from implementing the May 30, 2008 Decision of the CA. In its July 9, 2008 Resolution,12 this Court granted NPCs prayer, and issued a TRO enjoining the execution of the assailed CA Decision.
In the main, NPC insists that the payment of just compensation for the land carries with it the correlative right to obtain title or ownership of the land taken. It stresses that this Courts Decision in G.R. No. 168732 is replete with pronouncements that the just compensation awarded to respondents corresponds to compensation for the entire land and not just for an easement or a burden on the property, thereby necessitating a transfer of title and ownership to NPC upon satisfaction of judgment. NPC added that by granting respondents motion for execution, and consequently issuing the writ of execution and notice of garnishment, the RTC and the CA allowed respondents to retain title to the property even after the payment of full compensation. This, according to NPC, was a clear case of unjust enrichment. The petition lacks merit. It is a fundamental legal axiom that a writ of execution must conform strictly to the dispositive portion of the decision sought to be executed. A writ of execution may not vary from, or go beyond, the terms of the judgment it seeks to enforce. When a writ of execution does not conform strictly to a decisions dispositive portion, it is null and void.13 Admittedly, the tenor of the dispositive portion of the August 7, 1996 RTC decision, as modified by the CA and affirmed by this Court, did not order the transfer of ownership upon payment of the adjudged compensation. Neither did such condition appear in the text of the RTC decision, and of this Courts Decision in G.R. No. 168732. As aptly pointed out by the CA in its assailed Decision: [NPC], by its selective quotations from the Decision in G.R. No. 168732, would have Us suppose that the High Court, in decreeing that [NPC] pay the full value of the property as just compensation, implied that [NPC] was entitled to the entire land, including the surface area and not just the subterranean portion. No such inference can be drawn from [the] reading of the entirety of the High Courts Decision. On the contrary, a perusal of the subject Decision yields to this Court the unmistakable sense that the High Court intended [NPC] to pay the full value of the subject property as just compensation without ordering the transfer o[f] respondents title to the land. This is patent from the following language of the High Court as quoted by [NPC] itself: In disregarding this procedure and failing to recognize respondents ownership of the sub-terrain portion, petitioner took a risk and exposed itself to greater liability with the passage of time. It must be emphasized that the acquisition of the easement is not without expense. The underground tunnels impose limitations on respondents use of the property for an indefinite period and deprive them of its ordinary use. Based upon the foregoing, respondents are clearly entitled to the payment of just compensation. Notwithstanding the fact that [NPC] only occupies the sub-terrain portion, it is liable to pay not merely an easement but rather the full compensation for land. This is so because in this case, the nature of the easement practically deprives the owners of its normal beneficial use. Respondents, as the owners of the property thus expropriated, are entitled to a just compensation which should be neither more nor less, whenever it is possible to make the assessment, than the money equivalent of said property.14 Clearly, the writ of execution issued by the RTC and affirmed by the CA does not vary, but is, in fact, consistent with the final decision in this case. The assailed writ is, therefore, valid. Indeed, expropriation is not limited to the acquisition of real property with a corresponding transfer of title or possession. The right-of-way easement resulting in a restriction or limitation on property rights over the land traversed by transmission lines also falls within the ambit of the term expropriation.15 As we explained in Camarines Norte Electric Cooperative, Inc. v. Court of Appeals:16 The acquisition of an easement of a right-of-way falls within the purview of the power of eminent domain. Such conclusion finds support in easements of right-of-way where the Supreme Court sustained the award of just compensation for private property condemned for public use. The Supreme Court, in Republic v. PLDT thus held that:

NAPOCOR vs Ibrahim "Normally, of course, the power of eminent domain results in the taking or appropriation of title to, and possession of, the expropriated property; but no cogent reason appears why said power may not be availed of to impose only a burden upon the owner of condemned property, without loss of title and possession. It is unquestionable that real property may, through expropriation, be subjected to an easement of right-of-way."
However, a simple right-of-way easement transmits no rights, except the easement. Vines Realty retains full ownership and it is not totally deprived of the use of the land. It can continue doing what it wants to do with the land, except those that would result in contact with the wires.
1av vphi1

The acquisition of this easement, nevertheless, is not gratis. Considering the nature and effect of the installation power lines, the limitations on the use of the land for an indefinite period deprives private respondents of its ordinary use. For these reasons, Vines Realty is entitled to payment of just compensation, which must be neither more nor less than the money equivalent of the property.17 It is, therefore, clear that NPCs acquisition of an easement of right-of-way on the lands of respondents amounted to expropriation of the portions of the latters property for which they are entitled to a reasonable and just compensation. The term just compensation had been defined as the full and fair equivalent of the property taken from its owner by the expropriator. The measure is not the taker's gain, but the owner's loss. The word just is used to intensify the meaning of the word compensation and to convey thereby the idea that the equivalent to be rendered for the property to be taken shall be real, substantial, full, and ample.18 In Camarines Norte Electric Cooperative, Inc. v. Court of Appeals19 and National Power Corporation v. Manubay AgroIndustrial Development Corporation,20 this Court sustained the award of just compensation equivalent to the fair and full value of the property even if petitioners only sought the continuation of the exercise of their right-of-way easement and not the ownership over the land. There is simply no basis for NPC to claim that the payment of fair market value without the concomitant transfer of title constitutes an unjust enrichment. In fine, the issuance by the RTC of a writ of execution and the notice of garnishment to satisfy the judgment in favor of respondents could not be considered grave abuse of discretion. The term grave abuse of discretion, in its juridical sense, connotes capricious, despotic, oppressive, or whimsical exercise of judgment as is equivalent to lack of jurisdiction. The abuse must be of such degree as to amount to an evasion of positive duty or a virtual refusal to perform a duty enjoined by law, as where the power is exercised in an arbitrary and capricious manner by reason of passion and hostility. The word capricious, usually used in tandem with the term arbitrary, conveys the notion of willful and unreasoning action. Thus, when seeking the corrective hand of certiorari, a clear showing of caprice and arbitrariness in the exercise of discretion is imperative.21 In this case, NPC utterly failed to demonstrate caprice or arbitrariness on the part of the RTC in granting respondents motion for execution. Accordingly, the CA committed no reversible error in dismissing NPCs petition for certiorari. It is almost trite to say that execution is the fruit and the end of the suit and is the life of the law. A judgment, if left unexecuted, would be nothing but an empty victory for the prevailing party. Litigation must end sometime and somewhere. An effective and efficient administration of justice requires that once a judgment has become final, the winning party be not deprived of the fruits of the verdict. Courts must, therefore, guard against any scheme calculated to bring about that result. Constituted as they are to put an end to controversies, courts should frown upon any attempt to prolong them.22 We, therefore, write finis to this litigation. WHEREFORE, the petition is DENIED. The assailed Decision of the Court of Appeals in CA-G.R. SP No. 02065-MIN is AFFIRMED. The temporary restraining order issued by this Court on July 9, 2008 is LIFTED. SO ORDERED.

NAPOCOR vs Heirs of Macabangkit Sangkay

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 141447 May 4, 2006

HEIRS OF MACABANGKIT SANGKAY, namely, CEBU BATOWA-AN, SAYANA, NASSER, MANTA, EDGAR, PUTRI, MONKOY and AMIR, all surnamed MACABANGKIT, Petitioners, vs. NATIONAL POWER CORPORATION, Respondent. DECISION CALLEJO, SR., J.: Before this Court is a Petition for Review on Certiorari of the Decision1 of the Court of Appeals (CA) in CA-G.R. SP No. 54889 which set aside the Special Order2 dated September 7, 1999 issued by the Regional Trial Court (RTC) of Iligan City, Branch 61 in Civil Case No. 4094, as well as the Resolution dated November 12, 1999 denying the motion for reconsideration thereof. The said Special Order of the RTC granted the Urgent Motion for Execution Pending Appeal filed by plaintiffs therein of its Decision and Supplemental Decision, thus obliging the National Power Corporation (NAPOCOR) to pay plaintiffs P79,472.750.00 as just compensation. The antecedents are as follows: Macabangkit Sangkay was the owner of a 227,065-square-meter parcel of land located in Iligan City. When he died intestate, the property was subdivided into nine parcels and subsequently titled to his heirs, namely: Name 1) Edgar Macabangkit 2) Nasser Macabangkit 3) Sayana Macabangkit 4) Manta Macabangkit 5) Cebu Macabangkit Title No. - OCT No. P-1003 - OCT No. P-1004 - OCT No. P-1005 - OCT No. P-1007 - OCT No. P-1008

6) Batowa-an Macabangkit - OCT No. P-1010 7) Amir Macabangkit 8) Monkoy Macabangkit 9) Putri Macabangkit - OCT No. P-1012 - OCT No. P-1027 - OCT No. P-10283

The said Heirs declared their properties for taxation purposes in their respective names.4 In 1979, NAPOCOR constructed an underground three-kilometer long tunnel traversing the properties of the Heirs, about 100 meters beneath the surface. The tunnel was used to siphon water and divert the flow of the Agus River for the operation of NAPOCORs Hydro-Electric Project in Agus V, VI, and VII, at Ditucalan and Fuentes, Iligan City. A transmission line also traversed the property. The Heirs were not informed that such underground tunnel had been constructed; neither did NAPOCOR compensate them for the use of their property.5

NAPOCOR vs Heirs of Macabangkit Sangkay The Heirs filed a complaint for damages and recovery of possession of the property with alternative prayer for just compensation against NAPOCOR before the RTC of Iligan City, alleging the following in their complaint:
8. In the early part of 1996, plaintiffs entered into a Memorandum of Agreement with Global Asia Management and Resource Corporation for the sale of their property. On July 5, 1996, plaintiffs received a letter from the Global Asia Management and Resource Corporation, refusing the plaintiffs land due to the presence of defendants underground tunnel. Copy of the Memorandum of Agreement and the subsequent withdrawal of Global Asia Management and Resource Corporation, from the agreement are attached herewith as ANNEXES "W" and "X,"forming as part hereof; 9. On October 10, 1996, plaintiffs offered their land as collateral for a loan applied with the Al-Amanah Islamic Investment Bank of the Philippines, Iligan City Branch, and again the said parcels of land were not accepted as collateral due to the presence of defendants underground tunnel, copy of the letter of the said Bank, dated October 10, 1996 is herewith attached and marked as ANNEX "Y," forming as part hereof; 10. That the act of defendant is equivalent to unlawful taking and condemnation of plaintiffs parcels of land, without just compensation and/or reasonable rental since 1979. Written and oral demands were made for defendant to vacate and remove its tunnel, or, in the alternative, to pay just compensation and rental of plaintiffs parcels of land, but defendant refused and continuously refuses, sans any valid ground. Copy of plaintiffs demand letter is attached herewith as ANNEX "Z" forming as part hereof. Also, the answer of defendant to plaintiffs demand letter is also attached herewith and marked as ANNEX "Z-1," forming as part hereof; 11. That, as a consequence of defendants unlawful taking and condemnation of plaintiffs properties and the illegal construction of defendants underground tunnel, the defendant were deprived of the agricultural, commercial, industrial and residential value of their land aforesaid; So also, by the same reason aforestated, the surface of plaintiffs land became unsafe for habitation as the defendants tunnel will someday collapse, and the surface will be carried by the current of the water. Those of plaintiffs and workers with houses on the surface were forced to transfer to a safer site in 1996, as they were continuously disturb day and night, because of fear and the danger, coupled by the sound being produce by the water flow and which sometime shake the surface; 12. That the current aggregate assessed value of plaintiffs, parcels of land as indicated in their respective Tax Declarations is ONE HUNDRED SIX THOUSAND AND SEVEN HUNDRED TEN (P106,710.00) PESOS, more or less; 13. That defendant must be held liable for damages in the form of rental and other damages starting [from] 1979 when the defendants underground tunnel was constructed up to the present, plus additional damages beyond 1997, should defendant continue to illegally stay on plaintiffs land, in such amount as may be determined and deemed just and equitable by the Honorable Court; 14. That it is necessary for defendant to dismantle its underground tunnel illegally constructed beneath the lands of plaintiffs and to deliver possession of the same to plaintiff the subterrain illegally occupied by defendant; 15. The construction of the tunnel by defendant beneath plaintiffs parcels of lands have caused danger to their lives and properties; sleepless nights, serious anxiety, and shock, thereby entitling them to recover moral damages in the amount of TWO HUNDRED THOSUAND (P200,000.00) PESOS. And by way of example to deter persons similarly minded and for public good, defendant may be held liable for exemplary damages, also in the amount of TWO HUNDRED THOUSAND (P200,000.00) PESOS. Or in both cases, in such amount as may be determined by the Honorable Court; 16. That to protect the interest of the plaintiffs and for purposes of filing the instant case, they were compelled to engage the services of counsel, in the amount equivalent to TWO [HUNDRED] THOUSAND (P200,000.00), plus court appearance fee of ONE THOUSAND (P1,000.00), as and by way of attorneys fees.6 They prayed that judgment be rendered in their favor after due proceedings, to wit: WHEREFORE, premises considered, plaintiffs pray that judgment be rendered as follows:

NAPOCOR vs Heirs of Macabangkit Sangkay 1. Directing defendants to remove and dismantle its underground tunnel constructed beneath the land of plaintiffs and to deliver possession of the subterrain area illegally occupied by defendant;
2. To pay plaintiffs a monthly rental from 1979 up to the time the defendant vacates the subterrain of the land of plaintiffs, in such amount as may be considered reasonable by the Honorable Court; 3. In the alternative, if and when the removal of defendants underground tunnel is not legally possible, to pay plaintiffs of the just compensation of their land in the amount as may be deemed reasonable by the Honorable Court. But, in either case, (either by the removal of the tunnel or by paying just compensation) to pay plaintiffs a reasonable rental; 4. To pay moral damages in the amount of TWO HUNDRED THOUSAND (P200,00.00) PESOS and exemplary damages of another TWO HUNDRED THOUSAND (P200,000.00) PESOS, or in such respective amount as may be determined by the Honorable Court; 5. Pay attorneys fees in the amount of TWO HUNDRED THOUSAND (P200,000.00), plus appearance fee of ONE THOUSAND (P1,0000.00) PESOS, as and by way of attorneys fees; 6. Such other relief deemed just and equitable under the circumstance.7 In its answer to the complaint, NAPOCOR interposed the following special and affirmative defenses: 6. That while it is true that under Article 437 of the New Civil Code, the owner of a parcel of land is the owner of its surface and everything under it and can therefore construct thereon any work or make any plantation and excavation which he may deem proper, yet, such exercise of right is without detriment to servitude and is subject to other limitations imposed either by special law or ordinances; 7. That under Section 3, paragraph (f) of Republic Act 6395, as amended, which, by its nature, is a special law, defendant herein is authorized to take water from any public stream, river, creek, lake, spring or waterfall in the Philippines for the purposes specified therein; to intercept and divert the flow of water from lands of riparian owners and from persons owning or interested in water which are or may be necessary to said purposes, upon payment of just compensation therefor; to alter, straighten, obstruct or increase the flow of water in streams or water channels intersecting or connecting therewith or continuous to its works or any part thereof; thus, the construction of tunnel by defendant is legal and sanctioned by law; 8. That assuming arguendo, without admitting, that a tunnel was indeed constructed in 1979 under the land claimed by the plaintiffs, their cause of action against the defendant is barred not only by prescription but also byestoppel and laches. Under our laws and jurisprudence, easement of aqueduct canals and tunnels are apparent and continuous easement and any action arising therefrom prescribes in five (5) years which prescriptive period is to be reckoned from its accrual. In the instant case, the cause of action of the plaintiffs, if any, has accrued in 1979 and yet they only filed the complaint in 1997 or after the lapse of almost eighteen (18) years;8 The Heirs adduced in evidence the Certificate issued by the City Assessors Office stating that the property had an assessed value of P400.00 to P500.00 per square meter. Witnesses testified that the adjacent parcels of land were sold at P700.00 and P750.00 per square meter and that the area where the property is located is classified as industrial, and residential and adjacent to subdivisions with industrial classification.9 On August 13, 1999, the RTC rendered judgment in favor of the Heirs. The fallo of the decision reads: WHEREFORE, premises considered: 1. The prayer for the removal or dismantling of defendants tunnel is denied[.] However, defendant is hereby directed and ordered:

NAPOCOR vs Heirs of Macabangkit Sangkay a) To pay plaintiffs land with a total area of 227,065 square meters, at the rate of FIVE HUNDRED (P500.00) PESOS per square meter, or a total of ONE HUNDRED THIRTEEN MILLION FIVE HUNDRED THIRTY TWO THOUSAND AND FIVE HUNDRED (P113,532,500.00) PESOS, plus interest, as actual damages or just compensation;
b) To pay plaintiffs a monthly rental of their land in the amount of THIRTY THOUSAND (P30,000.00) PESOS from 1979 up to July 1999 with 12% interest per annum; c) To pay plaintiffs the sum of TWO HUNDRED THOUSAND (P200,000.00) PESOS, as moral damages; d) To pay plaintiffs, the sum of TWO HUNDRED THOUSAND (P200,000.00) PESOS, as exemplary damages; e) To pay plaintiffs, the sum equivalent to 15% of the total amount awarded, as attorneys fees, and to pay the cost. SO ORDERED.10 The RTC declared that the construction of the underground tunnel affected the entire area of the Heirs property. Consequently, plaintiffs lost the agricultural, industrial, commercial and residential value of the land. On August 18, 1999, the RTC rendered a Supplemental Decision, the dispositive portion of which reads: Therefore, paragraph 1(a) of the dispositive portion of the original decision should read, as follows: a) To pay plaintiffs land with a total area of 227,065 square meters, at the rate of FIVE HUNDRED (P500.00) PESOS per square meter, or a total of ONE HUNDRED THIRTEEN MILLION FIVE HUNDRED THIRTY TWO THOUSAND AND FIVE HUNDRED (P113,532,500.00) PESOS, plus interest, as actual damages or just compensation; Consequently, plaintiffs land or properties are hereby condemned in favor of defendant National Power Corporation, upon payment of the aforesaid sum; This supplemental decision shall be considered as part of paragraph 1(a) of the dispositive portion of the original decision.11 Before NAPOCOR was served with a copy of said Decision, the Heirs filed an Urgent Motion for Execution of Judgment Pending Appeal, alleging that execution pending appeal was justified, considering the trial courts finding that it (NAPOCOR) had acted in bad faith in constructing the tunnel. They pointed out that it had been illegally occupying their land for a long period of time without any compensation or rental having been paid to them, and that to prolong the execution of the decision would likewise prolong its illegal act. The Heirs pointed out that once they received their share of the money judgment, they would be able to purchase safer lands and build new houses thereon. They insisted that any appeal which may be taken by NAPOCOR would be dilatory and frivolous. The Heirs appended to their motion their Joint Affidavit wherein they alleged that they constantly feared that an earthquake could happen at any time, and that the tunnel could collapse or cave in, which would necessarily cause serious injuries or even death.12 NAPOCOR opposed the motion. It contended that the Heirs failed to prove that it acted in bad faith when it constructed the tunnel; hence, there was no justification to grant their motion. It pointed out that the Heirs were never deprived of the beneficial use of their land; in fact, there was no evidence on record that they ever attempted to use the affected portion of the property. NAPOCOR claimed that the Heirs demand for rentals was without factual and legal basis. NAPOCOR further alleged that the Heirs claim that the tunnel exposed them to danger was belied by the testimony of Nasser Macabangkit. On cross-examination, he testified that only two of his siblings, Sayana and Edgar Macabangkit, starter to reside in the subject property in 1998, after the complaint was filed on November 21, 1987. It further alleged

NAPOCOR vs Heirs of Macabangkit Sangkay that it had already filed an appeal, which, as gleaned from the evidence and the applicable jurisprudence, was not a mere dilatory tactic.13
On September 7, 1997, the trial court issued the Special Order granting the motion for execution pending appeal and awarded 70% of the money judgment, or P79,472,750.00, upon the filing of a P1,000,000.00 bond. The dispositive portion of the Order reads: WHEREFORE, premises considered, the Motion for Execution Pending Appeal is therefore granted, but only for the amount equivalent to SEVENTY PERCENT (70%) of the amount awarded as fair market value of plaintiffs land or for a total of SEVENTY-NINE MILLION FOUR-HUNDRED SEVENTY-TWO THOUSAND AND SEVEN HUNDRED FIFTY (P79,472,750.00) PESOS, Philippine Currency, subject to the condition that plaintiffs shall file an execution bond duly approved by this Court, either in cash, surety or property in the amount of ONE MILLION (P1,000,000.00) PESOS, which bond is in addition to plaintiffs land already condemned in favor of the defendant, to answer for any damage that defendant may suffer as a result of the execution of the decision pending appeal, should it later on be ruled on appeal that plaintiffs be not entitled to it and the decision be reversed. Monthly rentals, moral and exemplary damages, attorneys fee and cost are excluded from the execution pending appeal. Let the corresponding Writ of Execution Pending appeal be issued upon the posting and approval of the aforesaid execution bond. Mr. Montoy Lomondot, Sheriff-IV, RTC, Lanao del Norte is hereby commanded to cause the implementation and execution of the portion of the aforesaid decision in accordance with the Rules of Court, together with his lawful fees for the service of the Writ. He shall be assisted by the other deputy sheriffs assigned to this Court or in another branch after securing the consent of the presiding Judge thereof. He shall likewise be assisted by Atty. Cairoding Maruhom, Ex-officio Provincial/City Sheriff of Lanao del Sur-Marawi City, and Palao Diamla, Sheriff-IV, RTC, Lanao del Sur, subject to the consent of the Presiding Judge concerned. The Clerk of Court is hereby ordered to assess and collect the corresponding additional filing fee from the judgment award. SO ORDERED.14 The trial court declared that among the good reasons to grant the motion for execution pending appeal was the fact that NAPOCOR had occupied the property and had used it in bad faith since 1979 without having paid just compensation therefor. Moreover, the construction of the tunnel rendered the subject property unfit for industrial, residential, or commercial use because of the danger it posed; neither could the Heirs dispose of the property. Thus, they had the right to compel NAPOCOR to pay the price of the land or the proper rent under Article 450 of the New Civil Code. The trial court also declared that the appeal of defendant was dilatory and frivolous, which was resorted to so that it could continue enjoying and using the property for free. It also stated execution of judgment pending appeal would not cause prejudice or irreparable damage to defendant, since the amount of just compensation sought to be executed was equivalent to the fair market value of the Heirs land, while the rentals were for NAPOCORS use of the land. It also ruled that the Heirs could file their motion for execution pending appeal even before NAPOCOR received a copy of the decision.15 The RTC thereafter issued the Writ of Execution16 on September 9, 1999. NAPOCOR assailed the trial courts Special Order and Writ of Execution before the CA via petition for review on certiorari under Rule 65, claiming that respondent Judge acted without or in excess of jurisdiction and gravely abused his discretion in granting the Motion for Execution Pending Appeal and issuing the concomitant writ despite the absence of compelling reasons therefor.17 It cited Aquino v. Santiago18 to support its argument. It claimed that it was not in danger of being insolvent as would justify execution of the decision pending appeal. It further posited that since Republic Act No. 6395, as amended, was a special law which recognized the construction of water pipes to divert the flow of water for purposes of generating electricity as a limitation to ownership of property.

NAPOCOR vs Heirs of Macabangkit Sangkay NAPOCOR further claimed that the assailed Special Order rendered nugatory its right to appeal the decision sought to be executed. It insisted that it should not be obliged to pay the alleged market value of the property since it was not entirely affected by the support tunnel.
For their part, the Heirs averred that execution pending appeal is a matter addressed to the second discretion of the trial court and cannot be nullified by the appellate court unless grave abuse of discretion amounting to excess or lack of jurisdiction is shown. They claimed that NAPOCOR failed to prove that the trial court was guilty of grave abuse of discretion in granting their motion for execution pending appeal. They pointed out that it was justified by good reasons, and that they adduced proof of the fair market value of the property and posted the requiredP1,000,000.00 bond. The Heirs cited the ruling of the CA in National Power Corporation v. Ibrahim19 and Municipality of Bian, Laguna v. Court of Appeals.20 The appellate court heard the parties on oral argument. On November 12, 1999, the CA rendered judgment granting the petition and set aside the assailed orders of the trial court.21 According to the appellate court, even assuming NAPOCORs bad faith in constructing its tunnel beneath the surface of the property, it was not an urgent and compelling reason to grant the motion for execution pending appeal. The matter goes into the merits of the case, which the CA should resolve on appeal. Moreover, it was not for the trial court to rule on whether NAPOCORs appeal was dilatory; the merits of the appeal should be resolved first, considering the other matters involved in the appeal aside from the fact that the total amount of the award was P113,532,500.00. According to the CA, under Section 3(i) of Republic Act No. 6395, the act revising the charter of NAPOCOR, any action by any person claiming compensation and/or damages shall be filed within five (5) years after the right-of-way, transmission lines, substations, plants or other facilities shall have been established; after the said period, no suit can be brought to question the same. It stressed that the effect of this proviso on the decision of the trial court can be better addressed in the appeal. The Heirs filed a Motion for Reconsideration,22 which the trial court denied for lack of merit on January 13, 2000;23 hence, the instant petition. Petitioners allege that the CA erred in granting the writ of certiorari in favor of respondent NAPOCOR on its finding that the trial court committed grave abuse of its discretion in issuing the Special Order. Petitioners maintain that the trial courts finding that respondent NAPOCOR acted in bad faith and that its appeal was dilatory was supported by the evidence on record and the pleadings of the parties. They insisted that the appellate court should not substitute its findings for those of the trial court. Its reliance on Section 3(i) of Republic Act No. 6395 was misplaced because the law does not apply to the construction of a tunnel underneath the surface of their property. Petitioners further aver that the CA should have applied its ruling in National Power Corporation v. Ibrahim.24 By its decision, the CA condoned the unjust enrichment of private respondent at their expense. The issue for resolution is whether the CA erred in finding that the trial court committed grave abuse of its discretion in granting petitioners motion for execution pending appeal of its decision and supplemental decision in the amount of P79,472,750.00. The petition is dismissed for lack of merit. The rule is that execution shall issue as a matter of right, on motion, upon a judgment or order that disposes of the action or proceedings upon the expiration of the period to appeal therefrom if no appeal has been perfected.25However, the trial court may grant execution before the expiration of the period to appeal upon motion of the prevailing party provided that it has jurisdiction over the case and is in possession of either the original record or the record on appeal, as the case may be, and there are good reasons for such execution to be stated in a special order after due hearing. The rule does not proscribe the prevailing party from filing such motion even before the losing party has received his copy of the decision or final order of the trial court. Such motion for execution pending appeal may be filed by the prevailing party at any time before the expiration of the period to appeal. It may happen that, upon service on the prevailing party of a copy of the decision or final order of the trial court, he files a motion for execution pending appeal but the losing party files a motion for reconsideration of the decision or final order within the required 15-day period under Rule 39 of the Revised Rules of Court. In such a case, the motion of the prevailing party for execution pending appeal may be held in abeyance pending final resolution of the losing partys motion for reconsideration of the decision

NAPOCOR vs Heirs of Macabangkit Sangkay or final order. Upon the other hand, if the losing party does not appeal the decision or final order, the execution of the decision becomes a matter of right on the part of the prevailing party. In such case, the motion for execution pending appeal becomes moot and academic, as the prevailing party may file a motion for a writ of execution of the decision or final order.
As provided in Section 2, Rule 39 of the Revised Rules of Court, execution of the judgment or final order pending appeal is discretionary. It is the exception to the rule that only a final judgment may be executed, hence, must be strictly construed. Execution pending appeal should not be granted routinely but only in extraordinary circumstances.26 However, if the trial court grants execution pending appeal in the absence of good reasons therefor, it is incumbent upon the CA to issue a writ of certiorari; failure to do so would constitute grave abuse of discretion on its part.27 The CA ruled correctly when it held that the trial court acted with grave abuse of its discretion amounting to excess or lack of jurisdiction when it granted private respondents motion for execution pending appeal in the absence of good reasons to justify the grant of said motion. The Rules of Court do not enumerate the circumstances which would justify the execution of the judgment or decision pending appeal.28 However, this Court has held that "good reasons" consist of compelling or superior circumstances demanding urgency which will outweigh the injury or damages should the losing party secure a reversal of the judgment or final order. Were the rule otherwise, execution pending appeal may well become a tool of oppression and inequity instead of an instrument of solicitude and justice.29 The existence of good reasons is what confers discretionary power on a court to issue a writ of execution pending appeal. These reasons must be stated in the order granting the same. Unless they are divulged, it would be difficult to determine whether judicial discretion has been properly exercised in the case. The mere posting of a bond will not justify execution pending appeal. Furthermore, a combination of circumstances is the dominant consideration which impels the grant of immediate execution. The requirement of a bond is imposed merely as an additional factor for the protection of the defendants creditor; otherwise, execution pending appeal could be obtained through the mere filing of such bond.30 Petitioners insist that, as gleaned from their Joint Affidavit, when they discovered the existence of respondents tunnel in 1996, they were impelled to transfer their residence; they then lived with one of their brothers-in-law, Camama Ibrahim in Mahayahay, Iligan City. They assert that there is nothing in the testimony of petitioner Nasser Macabangkit which would negate the urgency to buy properties located in a safe area. The relevant portion of the Joint Affidavit reads: 4. That we constantly fear that an earthquake may happen at any time which would could cause the collapse or caving in of the tunnel with the resultant violent destruction of our houses, and would necessarily cause us serious injuries, or even our death or those of the members of our family. The recent incident of erosion and landslide at Cherry Hills, Antipolo City, is not remote possibility, that it may had happen to us. May God forbid. 5. That our fear has been aggravated by the fact that we often feel the vibration of the area beneath our houses whenever the volume of the water that passes through the tunnel increases, especially at midnight. Thus, we have been suffering from sleepless nights or, at least troubled sleep, for countless times ever since the tunnel was illegally constructed by the defendant; 6. That as a result of the very real danger that we have been exposed to, we have long decided to leave our houses and reside at the residence of our brother-in-law, one Camama Ibrahim, at Mahayahay, Iligan City, and suffered a humiliating condition, as well as the congestion. As soon as we have the financial means, we have to liberate our family from the same humiliation and congestion, by purchasing a lot
1avvphil.net

and construct a house. We are entitled to a humane, dignified and decent shelter which commensurate to our social standing in the community. 7. That we, therefore, need money very badly right now and, if we received our share in the damages awarded to us in the decision, we would readily use it for a suitable land far from the area where the tunnel exists, and build our houses

NAPOCOR vs Heirs of Macabangkit Sangkay thereon, so that we may be freed from the ever-present fear of a very real danger to ourselves, our families and our properties, which we have been subjected to for many years due to the illegal acts of the National Power Corporation.31
On the other hand, in their Complaint filed before the RTC on November 11, 1997, petitioners alleged that the construction of the tunnel by the respondent caused danger to their lives and properties, and gave them sleepless nights, serious anxiety and shock. The Court rules, however, that this claim of petitioners was merely an afterthought and is barren of merit. Petitioner Nasser Macabangkit testified before the trial court on December 1, 1998, and declared that only two of the petitioners, Edgar and Sayana Macabangkit, resided in the property starting only in 1998: Q Was there anyone of your brothers and sisters who have actually visited/resided in this land in question? A As of now, there is, Sir. Q Will you tell us the name of your brother or sister who is now residing in this land of yours? A Edgar and Sayana Macabangkit. Q Do you know when was it when they started residing in that land of yours? A This year, Sir. COURT: Q This year 1998? A Yes, Your Honor. (TSN, December 1, 1998, pp. 21-23)32 What the Court cannot fathom is the fact that shortly after filing their complaint on November 11, 1997, petitioners Edgar and Sayana Macabangkit still dared to establish their residence in the property. Indeed, it is incredible that after discovering the existence of the tunnel and finding the area "very dangerous," petitioners would still choose to live therein. If petitioners truly believed that the tunnel posed danger to their property and their very lives, any decision to stay on would be short of suicidal on their part. Thus, the Court holds that the trial court committed grave abuse of discretion when it ordered the execution of its Decision and Supplemental Decision pending appeal, compelling respondent to remit P70,472,750.00 to petitioners simply because petitioners Edgar and Sayana Macabangkit needed their share (P11,353,370.00 each) just so they could buy land and establish their new homes. Petitioners insist, however, that the "good reasons" cited by the trial court for granting their motion for execution pending appeal are based on the trial courts findings of facts, i.e, respondent acted in bad faith in constructing a threekilometer long tunnel underneath petitioners property without their knowledge and consent; respondent had not compensated the petitioners for its use of the property since 1979; respondent profited from its use of their properties; the existence of the tunnel rendered petitioners property unfit for industrial, residential or commercial use due to the danger posed by it, and no one was willing to buy the property; and the fair market value of the property had been amply proved by evidence. For its part, respondent avers that, it acted in good faith based on Section 3(f) and (g) of Republic Act No. 6395,33as amended. Respondent posits that it is incredible that petitioners failed to discover the tunnel when it was constructed in 1979; hence, petitioners slept on their rights for 18 years or so. It further averred that the precise amount due to petitioners for the respondents use of the tunnel, by way of compensation, is another contentious issue on appeal. Even assuming that petitioners are entitled to compensation or reasonable rentals for the portion appropriated by respondent, the appellate court still has to resolve the issue of whether, as claimed by the respondent, petitioners claim is barred by Section 3(i)34 of Republic Act No. 6395.

NAPOCOR vs Heirs of Macabangkit Sangkay The well-established rule is that it is not for the trial court to determine the merits of the decision it rendered and use the same as basis for its order allowing execution pending appeal. The authority to determine the merits of the appeal and the correctness of the findings and conclusions of the trial court is lodged in the appellate court. The trial court cannot preempt the decision of the appellate court and use its own decision as basis for affirming the trial courts order of execution pending appeal.35
Neither is the trial court justified to order execution pending appeal, on its assertion that the appeal of the respondent is a dilatory tactic. As the Court held in Manacop v. Equitable PCI Bank:36 Besides, that the appeal is merely dilatory is not a good reason for granting execution pending appeal. As held in BF Corporation v. Edsa Shangri-la Hotel: it is not for the trial judge to determine the merit of a decision he rendered as this is the role of the appellate court. Hence, it is not within competence of the trial court, in resolving a motion for execution pending appeal, to rule that the appeal is patently dilatory and rely on the same as basis for finding good reasons to grant the motion. Only an appellate court can appreciate the dilatory intent of an appeal as an additional good reason in upholding an order for execution pending appeal Petitioners reliance on the ruling of the CA in National Power Corporation v. Ibrahim,37 is misplaced. We agree with the following ratiocination of the CA in its decision: We note that in support of its case, private respondents cited the case of National Power Corporation v. Hon. Amer Ibrahim, et al. (CA-G.R. SP No. 41897) which was decided by the Special Seventeenth Division of this Court. In the said case, the discretionary execution granted by the public respondent was upheld. While we are not unmindful of the findings in the said case, it is our opinion that based on the circumstances obtaining in this case, it would best serve the ends of justice if the appeal on the merits of the case is first resolved without any execution pending appeal, not only because the total amount involved is quite substantial - ONE HUNDRED THIRTEEN MILLION FIVE HUNDRED THIRTY-TWO THOUSAND AND FIVE HUNDRED PESOS (P113,532,500.00), but also because of the other matters involved in the appeal.(citation omitted)38 IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of merit. Costs against the petitioners. SO ORDERED.

Lepanto vs. WMC Resources

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 162331 November 20, 2006 LEPANTO CONSOLIDATED MINING CO., Petitioner, vs. WMC RESOURCES INTL. PTY. LTD., WMC PHILIPPINES, INC. and SAGITTARIUS MINES, INC., Respondents. DECISION CHICO-NAZARIO, J.: Before Us is a Petition for Review on Certiorari under Rule 45 of the Rules of Civil Procedure, assailing the Decision 1 of the Court of Appeals in CA-G.R. SP No. 74161, dated 21 November 2003, which dismissed herein petitioners Petition for Review of the Decision 2 of the Office of the President dated 23 July 2002 affirming in totothe Order 3 of the Secretary of the Department of Environment and Natural Resources (DENR) dated 18 December 2001 approving the application for and the consequent registration of FTAA No. 02-95-XI from WMC Philippines to Sagittarius Mines, Inc. On 22 March 1995, the Philippine Government and WMC Philippines, the local wholly-owned subsidiary of WMC Resources International Pty. Ltd. (WMC Resources) executed a Financial and Technical Assistance Agreement, denominated as the Columbio FTAA No. 02-95-XI (Columbio FTAA) for the purpose of large scale exploration, development, and commercial exploration of possible mineral resources in an initial contract area of 99,387 hectares located in the provinces of South Cotabato, Sultan Kudarat, Davao del Sur, and North Cotabato in accordance with Executive Order No. 279 and Department Administrative Order No. 63, Series of 1991. The Columbio FTAA is covered in part by 156 mining claims held under various Mineral Production Sharing Agreements (MPSA) by Southcot Mining Corporation, Tampakan Mining Corporation, and Sagittarius Mines, Inc. (collectively called the Tampakan Companies), in accordance with the Tampakan Option Agreement entered into by WMC Philippines and the Tampakan Companies on 25 April 1991, as amended by Amendatory Agreement dated 15 July 1994, for purposes of exploration of the mining claims in Tampakan, South Cotabato. The Option Agreement, among other things, provides for the grant of the right of first refusal to the Tampakan Companies in case WMC Philippines desires to dispose of its rights and interests in the mining claims covering the area subject of the agreement. WMC Resources subsequently divested itself of its rights and interests in the Columbio FTAA, and on 12 July 2000 executed a Sale and Purchase Agreement with petitioner Lepanto over its entire shareholdings in WMC Philippines, subject to the exercise of the Tampakan Companies exercise of their right of first refusal to purchase the subject shares. On 28 August 2000, petitioner sought the approval of the 12 July 2000 Agreement from the DENR Secretary. In an Agreement dated 6 October 2000, however, the Tampakan Companies sought to exercise its right of first refusal. Thus, in a letter dated 13 October 2000, petitioner assailed the Tampakan Companies exercise of its right of first refusal, alleging that the Tampakan Companies failed to match the terms and conditions set forth in the 12 July 2000 Agreement. Thereafter, petitioner filed a case 4 for Injunction, Specific Performance, Annulment of Contracts and Contractual Interference with the Regional Trial Court of Makati, Branch 135, against WMC Resources, WMC Philippines, and the Tampakan Companies. WMC Philippines and the Tampakan Companies moved for the dismissal of said case. Said Motion to Dismiss having been denied, WMC Philippines challenged the order dismissing the Motion on appeal 5 before the Court of Appeals which subsequently ordered the dismissal of the case on the ground of forum shopping in this wise:

Lepanto vs. WMC Resources Nevertheless, the Court finds that private respondent is guilty of forum-shopping. There is forum-shopping whenever, as a result of an adverse opinion in one forum, a party seeks a favorable opinion (other than by appeal or certiorari) in another. The principle applies not only with respect to suits filed in courts but also in connection with litigation commenced in the courts while an administrative processes and in anticipation of an unfavorable administrative ruling and a favorable court ruling.
In this case, petitioners argue that private respondent is guilty of forum shopping for having lodged the complain before respondent Court pending action by the Secretary of the DENR through the Mines and Geo-Sciences Bureau (MGB) on its approval of the Sale and Purchase Agreement dated July 12, 2000. Private respondent on the other hand, opposes the foregoing contention arguing that the MGB will be merely exercising its administrative not quasi-judicial power. The action before respondent court was filed by private respondent to compel petitioner WMC Resources to convey its equity in WMC Phils. and Hillcrest to the former. Meanwhile, in the case before the MGB, private respondent sought the approval of Sale and that the MGBs authority over the case is purely administrative, but further review shows that private respondent raised contentious issues which need resolution by the MGB before it can recommend any approval to the Secretary of the DENR. Particularly, in its letter dated October 13, 2000 to the Secretary of the DENR, private respondent posed its objection to the approval of the Sales and Purchase agreements between WMC Resources and the Tampakan Companies, asserting that the latter failed to validly exercise its right of first refusal. Also, in its letter to the Director of the MGB dated December 8, 2000, private respondent spelled out in detail its reasons for objecting to the agreement between WMC Resources and the Tampakan Companies, and in the same breath, argued for the approval of its own contract. And because of the opposing claims posited by private respondent and petitioners, the MGB was constrained to require the parties to submit their respective comments. At the juncture, the MGBs authority ceased to be administrative. Evidently, the MGB has to review all these opposing contentions and resolve the same. A resolution of the MGB on which contract to recommend or endorse to the Secretary of the DENR for approval will necessarily include a declaration on the validity of the different Sale and Purchase Agreements executed between the disagreeing parties, as well as on the exercise of the Tampakan Companies exercise of its right of first refusal and its qualification as a contractor under the FTAA. Even the MGB is aware that the dispute revolves around these sales and purchase agreements. Hence, it cannot be gainsaid that the MGB will be exercising its quasi-judicial powers in resolving the conflict before it. Whether the MGB can validly exercise such jurisdiction over the controversy is another issue but nonetheless immaterial in determining whether private respondent is guilty of forum-shopping. What is determinative is the filing of two (2) separate actions in different for a based principally on the same cause on the supposition that one or the other court would make a favorable disposition. Thus, it is not highly unlikely that respondent Court and MGB will come up with conflicting pronouncements on the dispute, thereby creating a quandary as to which one will prevail. Private respondents act undisputably constitutes a clear case of forum-shopping, a ground for summary dismissal with prejudice of the action. The respondent court committed grave abuse of discretion in refusing to dismiss Civil Case No. 01-087 on ground of forum-shopping. 6 With the denial of petitioners Motion for Reconsideration, the case 7 was elevated to this Court. In a Decision dated 24 September 2003, the Court affirmed the Decision of the appellate court and dismissed the petition. In said Decision, the Court elucidated that: True, the questioned agreements of sale between petitioner and WMC on one hand and between WMC and the Tampakan Companies on the other pertain to transfer of shares of stock from one entity to another. But said shares of stock represent ownership of mining rights or interest in mining agreements. Hence, the power of the MGB to rule on the validity of the questioned agreements of sale, which was raised by petitioner before the DENR, is inextricably linked to the very nature of such agreements over which the MGB has jurisdiction under the law. Unavoidably, there is identity of reliefs that petitioner seeks from both the MGB and the RTC. Forum shopping exists when both actions involve the same transactions, same essential facts and circumstances and raise identical causes of actions, subject matter, and issues. Such elements are evidently present in both the proceedings before the MGB and before the trial court. The case instituted with the RTC was thus correctly ordered dismissed by the appellate court on the ground of forum shopping. Besides, not only did petitioner commit forum shopping but it also failed to exhaust administrative remedies by opting to go ahead in seeking reliefs from the court even while those same reliefs were appropriately awaiting resolution by the MGB. 8 In the interim, on 10 January 2001, contending that the 12 July Agreement between petitioner and WMC Philippines had expired due to failure to meet the necessary preconditions for its validity, WMC Resources and the Tampakan

Lepanto vs. WMC Resources Companies executed another Sale and Purchase Agreement, where Sagittarius Mines, Inc. was designated assignee and corporate vehicle which would acquire the shareholdings and undertake the Columbio FTAA activities. On 15 January 2001, Sagittarius Mines, Inc. increased its authorized capitalization to P250 million. Subsequently, WMC Resources and Sagittarius Mines, Inc. executed a Deed of Absolute Sale of Shares of Stocks on 23 January 2001.
After due consideration and evaluation of the financial and technical qualifications of Sagittarius Mines, Inc., the DENR Secretary approved the transfer of the Columbio FTAA from WMC Philippines to Sagittarius Mines, Inc. in the assailed Order. According to said Order, pursuant to Section 66 of Department Administrative Order No. 96-40, as amended, Sagittarius Mines, Inc. meets the qualification requirements as Contractor-Transferee of FTAA No. 02-95-XI, and that the application for transfer of said FTAA went thru the procedure and other requirements set forth under the law. Aggrieved by the transfer of the Columbio FTAA in favor of Sagittarius Mines, Inc., petitioner filed a Petition for Review of the Order of the DENR Secretary with the Office of the President. Petitioner assails the validity of the 18 December 2001 Order on the ground that: 1) it violates the constitutional right of Lepanto to due process; 2) it preempts the resolution of very crucial legal issues pending with the regular courts; and 3) it blatantly violates Section 40 of the Mining Act. In a Decision dated 23 July 2002, the Office of the President dismissed the petition in this wise: At the outset, it bears emphasis that quite contrary to the argument of petitioner Lepanto, the above Order of the DENR Secretary is not violative of the Mining Law. Since the subject Columbio FTAA was granted in accordance with the pertinent provisions of Executive Order No. 279 and Department Administrative Order No. 63 on 22 March 1995, or prior to the effectivity of the Philippine Mining Act of 1995, especially as it highlights the non-impairment of existing mining and/or quarrying rights, under Section 14.1 (b) thereof, only the consent of DENR Secretary is required. To hold otherwise would be to unduly impose a burden on transferor WMC and thereby restrict its freedom to dispose of or alienate this property right without due process. Thus, under the Revised Implementing Rules and Regulations of the Philippine Mining Act of 1995, Chapter XXX thereof expressly echoes the guaranty: "Section 272. Non-Impairment of Existing Mining/Quarrying Rights.- All valid and existing mining lease contracts, permits/licenses, leases pending renewal, Mineral Production Sharing Agreements, FTAA granted under Executive Order No. 279, at the date of the Act shall remain valid, shall not be impaired and shall be recognized by the Government x x x. x x x Provided, finally, That this provision is applicable only to all FTAA/MPSA applications filed under Department Administrative Order No. 63 prior to the effectivity of the act and these implementing rules and regulations." As correctly stated by the MGB Director and affirmed by the DENR Secretary, Section 14.1 of the Columbio FTAA provides that the FTAA may be transferred provided that the Secretary consents to the same. Pursuant to Section 112 of the Mining Act and Section 272 of DAO No. 96-40, as amended, on non-impairment of existing mining rights, the subject application for transfer of the Columbio FTAA to Sagittarius requires only the approval of the DENR Secretary. Moreover, there is no merit in petitioner Lepantos argument that the DENR Secretary and consequently, this Office, has no jurisdiction over the subject matter in issue. The assailed Order of the DENR Secretary was pursuant to the latters exercise of the well-entrenched doctrine of primary jurisdiction of administrative agencies. By virtue of the operation of the doctrine of primary jurisdiction, "courts cannot and will not determine a controversy involving a question which is within the jurisdiction of an administrative tribunal, especially where the question demands the exercise of sound administrative discretion requiring the special knowledge, experience and services of the tribunal to determine technical and intricate matters of fact and where a uniformity of ruling is essential to comply with the purposes regulatory statute administered." (Province of Zamboanga del Norte v. Court of Appeals, 342 SCRA 549 [2000]; Factoran v. Court of Appeals, 320 SCRA 530 [1999]; Brett v. Intermediate Appellate Court, 191 SCRA 687 [1990]; Qualitrans Limousine Service, Inc. v. Royal Class Limousine Service, 179 SCRA 569 [1989]). Thus, even though an action may be lodged in court that is ostensibly for annulment or "rescission of what appears to be an ordinary civil contract cognizable by a civil court," the doctrine of primary jurisdiction still applies. (Industrial Enterprises, Inc. v. Court of Appeals, 184 SCRA 426 [1990]).

Lepanto vs. WMC Resources Section 4, Chapter 1, Title XIV, Book IV of the Administrative Code of 1987 specifies the powers and functions of the DENR. Also, the Philippine Mining Act of 1995 provides that the DENR "shall be the primary government agency responsible for the conservation, management, development, and proper use of the States mineral resources including those in reservations, watershed areas, and lands of the public domain. The Secretary shall have the authority to enter into mineral agreements on behalf of the Government upon the recommendation of the Director, promulgate such rules and regulations as may be necessary to implement the intent and provisions of this Act." (Chapter II, Section 8). Since an FTAA is "a contract involving financial or technical assistance for large-scale exploration, development and utilization of mineral resources" (Ibid., Chapter 1, Section 3 [r]), any issue affecting the same is indubitably within the primary jurisdiction of the DENR, as in fact, the government enters into FTAAs through the DENR (Ibid., Chapter VI, Section 33).
There is no dispute that the instant case involves and requires the special technical knowledge and expertise of the DENR. In the determination by the DENR of a "qualified person" pursuant to the Philippine Mining Act of 1995, such person must possess the technical and financial capability to undertake mineral resources development". (Chapter I, Section 3 [aq]) Obviously, this determination peculiarly lies within the expertise of the DENR. The validity of the successive transfers is not a civil issue, contrary to the allegation of petitioner Lepanto, because validity of transfer depends on technical qualifications of the transferee and compliance with the DENR requirements on qualifications, all of which require administrative expertise. Notably, petitioner Lepanto is estopped from assailing the primary jurisdiction of the DENR since petitioner Lepanto itself anchored its Petition (cf. pp. 4-5) on the contention that, allegedly, "the Tampakan Companies failed to match the terms and conditions of the July 12 Agreement with petitioner Lepanto in that they did not possess the financial and technical qualifications under the Mining Act and its Implementing Rules". Petitioner Lepantos objections therefore go into the very qualifications of a transferee which is a technical issue. This contention is a recognition by petitioner Lepanto itself of the fact that the crucial and determinative issue in the instant case is grounded on the financial and technical qualifications of a transferee, which issue, indisputably, is within the exclusive domain and expertise of the DENR and not of the courts. xxxx Moreover, petitioner Lepanto, by its conduct, is again estopped from assailing the DENRs jurisdiction after actively participating in the proceedings therein and seeking affirmative relief. A party who invoked the jurisdiction [of] a tribunal and actively participated in the proceedings therein cannot impugn such jurisdiction when faced with an adverse decision. (cf. Briad Agro Development Corporation v. dela Serna, 174 SCRA 524 [1989]). 9 [Emphasis ours] With the denial of its Motion for Reconsideration, petitioner lodged an appeal before the Court of Appeals which was consequently dismissed by the appellate court in the herein assailed Decision. According to the Court of Appeals: Petitioner forcefully argues that the DENR Secretary had usurped the power of the President of the Philippines to approve the transfer of FTAA, as under the provision of Section 40 of the Philippine Mining Act of 1995, any transfer or assignment of an FTAA has to be approved not by the DENR Secretary but by the President. The argument does not wash. The issue hinges on the applicability of Section 40 of RA 7942 or the Philippine Mining Act of 1995, which took force on 14 April 1995, on the transfer of FTAA from WMC to the Tampakan Companies, particularly the Sagittarius Mines, Inc. The said law provides: "Sec. 40. Assignment/Transfer A financial or technical assistance agreement may be assigned or transferred, in whole or in part, to a qualified person subject to the prior approval of the President: Provided, that the President shall notify Congress of every financial or technical assistance agreement assigned or converted in accordance with this provision within thirty (30) days from the date of approval."

Lepanto vs. WMC Resources However, the above provision does not apply to the Columbio FTAA which was entered into by and between the Philippine Government and WMCP on 22 March 1995, or prior to the effectivity of RA No. 7942. Section 14.1 of the Columbio FTAA, under which the Tampakan Companies claim their rights to first refusal, reads:
"14.1 Assignment "The Contractor may assign, transfer, convey or otherwise dispose of all or any part of its interest in the Agreement provided that such assignment, transfer, conveyance or disposition does not infringe any Philippine law applicable to foreign ownership: (a) to an Affiliate provided that it gives notice of such assignment to the Secretary within 30 days after such assignment; or (b) to any third party provided that the Secretary consents to the same, which consent shall not be unreasonably withheld." Section 10, Article III of the Philippine Constitution enjoins Congress from passing a law impairing the obligation of contracts. It is axiomatic that a law that impairs an obligation of contract also violates the due process clause. The obligation of an existing contract is impaired when its terms and conditions are changed by law, ordinance, or any issuance having the force of law, thereby weakening the position or diminishing the rights of a party to 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 obligations or dispensing with any part of its force. Impairment has also been predicated on laws which, without destroying contracts, derogate from substantial contractual rights. The condition of RA No. 7942 requiring the further approval of the President, if made to apply retroactively to the Columbio FTAA, would impair the obligation of contracts simply because it constitutes a restriction on the right of the contractor to assign or transfer its interest in an FTAA. In other words, it diminished the vested rights of the contractor to assign or transfer its interests on mere approval of the DENR Secretary. The restriction is therefore substantive, and not merely procedural, contrary to the contention of petitioner. xxxx Likewise militating against the petitioners side is the doctrine that statutes are to be construed as having only a prospective operation unless the purpose and intention of the Legislature to give them a retrospective effect is expressly declared or is necessarily implied from the language used. In case of doubt, the doubt must be resolved against the retrospective effect. At any rate, even if RA No. 7942 be accorded a retroactive effect, this does notipso facto permit the application of the requirement of securing a prior presidential consent to the transfer of FTAA, for, to iterate, this would impair the obligation of contract. In such a case, the correct application of RA No. 7942 is for the provisions to [be] made to apply on existing FTAAs only if the same would not result in impairment of obligation of contracts. This is as it should be. To hold otherwise would be to unduly impose a burden on transferor WMC and thereby restrict its freedom to dispose of or alienate its property right without due process. It constitutes impairment of obligation of contracts, which the Fundamental Law enjoins, and contravenes the doctrine of prospective application of laws. 10 Hence, the instant Petition. The pivotal issue to be resolved herein involves the propriety of the application to the Columbio FTAA of Republic Act No. 7942 or the Philippine Mining Act of 1995, particularly Section 40 thereof requiring the approval of the President of the assignment or transfer of financial or technical assistance agreements. Petitioner maintains that respondents failed to comprehend the express language of Section 40 of the Philippine Mining Act of 1995 requiring the approval of the President on the transfer or assignment of a financial or technical assistance agreement. To resolve this matter, it is imperative at this point to stress the fact that the Columbio FTAA was entered into by the Philippine Government and WMC Philippines on 22 March 1995, undoubtedly before the Philippine Mining Act of 1995 took effect on 14 April 1995. Furthermore, it is undisputed that said FTAA was granted in accordance with Executive

Lepanto vs. WMC Resources Order No. 279 and Department Administrative Order No. 63, Series of 1991, which does not contain any similar condition on the transfer or assignment of financial or technical assistance agreements. Thus, it would seem that what petitioner would want this Court to espouse is the retroactive application of the Philippine Mining Act of 1995 to the Columbio FTAA, a valid agreement concluded prior to the naissance of said piece of legislation.
This posture of petitioner would clearly contradict the established legal doctrine that statutes are to be construed as having only a prospective operation unless the contrary is expressly stated or necessarily implied from the language used in the law. As reiterated in the case of Segovia v. Noel, 11 a sound cannon of statutory construction is that a statute operates prospectively only and never retroactively, unless the legislative intent to the contrary is made manifest either by the express terms of the statute or by necessary implication. Article 4 of the Civil Code provides that: "Laws shall not have a retroactive effect unless therein otherwise provided." According to this provision of law, in order that a law may have retroactive effect it is necessary that an express provision to this effect be made in the law, otherwise nothing should be understood which is not embodied in the law. 12 Furthermore, it must be borne in mind that a law is a rule established to guide our actions without no binding effect until it is enacted, wherefore, it has no application to past times but only to future time, and that is why it is said that the law looks to the future only and has no retroactive effect unless the legislator may have formally given that effect to some legal provisions. 13 In the case at bar, there is an absence of either an express declaration or an implication in the Philippine Mining Act of 1995 that the provisions of said law shall be made to apply retroactively, therefore, any section of said law must be made to apply only prospectively, in view of the rule that a statute ought not to receive a construction making it act retroactively, unless the words used are so clear, strong, and imperative that no other meaning can be annexed to them, or unless the intention of the legislature cannot be otherwise satisfied. 14 Be that as it may, assuming for the sake of argument that We are to apply the Philippine Mining Act of 1995 retrospectively to the Columbio FTAA, the lack of presidential approval will not be fatal as to render the transfer illegal, especially since, as in the instant case, the alleged lack of presidential approval has been remedied when petitioner appealed the matter to the Office of the President which approved the Order of the DENR Secretary granting the application for transfer of the Columbio FTAA to Sagittarius Mines, Inc. As expounded by the Court in the Resolution of the Motion for Reconsideration in the La Bugal-BLaan Tribal Association, Inc. v. Ramos [15]case, involving the same FTAA subject of the instant case: x x x Moreover, when the transferee of an FTAA is another foreign corporation, there is a logical application of the requirement of prior approval by the President of the Republic and notification to Congress in the event of assignment or transfer of an FTAA. In this situation, such approval and notification are appropriate safeguards, considering that the new contractor is the subject of a foreign government. On the other hand, when the transferee of the FTAA happens to be a Filipino corporation, the need for such safeguard is not critical; hence, the lack of prior approval and notification may not be deemed fatal as to render the transfer invalid. Besides, it is not as if approval by the President is entirely absent in this instance. x x x That case involved the review of the Decision of the Court of Appeals dated November 21, 2003 in CA G.R. SP No. 74161, which affirmed the DENR Order dated December 31, 2001 and the Decision of the Office of the President dated July 23, 2002, both approving the assignment of the WMCP FTAA to Sagittarius. 16 (Emphasis ours.) Furthermore, if petitioner was indeed of the mind that Section 40 of the Philippine Mining Act of 1995 is applicable to the Columbio FTAA, thus necessitating the approval of the President for the validity of its transfer or assignment, it would seem contradictory that petitioner sought the approval of the DENR Secretary, and not that of the President, of its 12 July 2000 Sale and Purchase Agreement with WMC Resources. Hence, it may be glimpsed from the very act of petitioner that it recognized that the provision of the Columbio FTAA regarding the consent of the DENR Secretary with respect to the transfer of said FTAA must be upheld. It is engrained in jurisprudence that the constitutional prohibition on the impairment of the obligation of contract does not prohibit every change in existing laws, 17 and to fall within the prohibition, the change must not only impair the obligation of the existing contract, but the impairment must be substantial. 18 Substantial impairment as conceived in relation to impairment of contracts has been explained in the case of Clemons v. Nolting, 19 which stated that: a law

Lepanto vs. WMC Resources which changes the terms of a legal contract between parties, either in the time or mode of performance, or imposes new conditions, or dispenses with those expressed, or authorizes for its satisfaction something different from that provided in its terms, is law which impairs the obligation of a contract and is therefore null and void. Section 40 of the Philippine Mining Act of 1995 requiring the approval of the President with respect to assignment or transfer of FTAAs, if made applicable retroactively to the Columbio FTAA, would be tantamount to an impairment of the obligations under said contract as it would effectively restrict the right of the parties thereto to assign or transfer their interests in the said FTAA.
By imposing a new condition apart from those already contained in the agreement, before the parties to the Columbio FTAA may assign or transfer its rights and interest in the said agreement, Section 40 of the Philippine Mining Act of 1995, if made to apply to the Columbio FTAA, will effectively modify the terms of the original contract and thus impair the obligations of the parties thereto and restrict the exercise of their vested rights under the original agreement. Such modification to the Columbio FTAA, particularly in the conditions imposed for its valid transfer is equivalent to an impairment of said contract violative of the Constitution. WHEREFORE, premises considered, the instant petition is hereby DENIED. The Decision of the Court of Appeals in CA G.R. SP No. 74161 dated 21 November 2003 is hereby AFFIRMED. Costs against petitioner. SO ORDERED.

Re: Query of Roger C. Prioreschi Republic of the Philippines

SUPREME COURT
Manila

EN BANC

RE: QUERY OF MR. ROGER C. PRIORESCHI RE EXEMPTION FROM LEGAL AND FILING FEES OF THE GOOD SHEPHERD FOUNDATION, INC.

A. M. No. 09-6-9-SC

Present:

PUNO, CJ, QUISUMBING*, YNARES-SANTIAGO*, CARPIO, CORONA, CARPIO MORALES, CHICO-NAZARIO, VELASCO, JR., NACHURA, LEONARDO-DE CASTRO, BRION, PERALTA,

Re: Query of Roger C. Prioreschi

BERSAMIN, DEL CASTILLO**, and ABAD**, JJ.

Promulgated: August 19, 2009

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

RESOLUTION

BERSAMIN, J.:

In his letter dated May 22, 2009 addressed to the Chief Justice, Mr. Roger C. Prioreschi, administrator of the Good Shepherd Foundation, Inc., wrote:
The Good Shepherd Foundation, Inc. is very grateful for your 1rst. Indorsement to pay a nominal fee of Php 5,000.00 and the balance upon the collection action of 10 million pesos, thus giving us access to the Justice System previously denied by an up-front excessive court fee. The Hon. Court Administrator Jose Perez pointed out to the need of complying with OCA Circular No. 42-2005 and Rule 141 that reserves this privilege to indigent persons. While judges are appointed to interpret the law, this type of law seems to be extremely detailed with requirements that do not leave much room for interpretations. In addition, this law deals mainly with individual indigent and it does not include Foundations or Associations that work with and for the most Indigent persons. As seen in our Article of Incorporation, since 1985 the Good Shepherd Foundation, Inc. reached-out to the poorest among the poor, to the newly born and abandoned babies, to children who never saw the smile of their mother, to old people who cannot afford a few pesos to pay for common prescriptions, to broken families who returned to a normal life. In other words, we have been working hard for the very Filipino people, that the Government and the society cannot reach to, or have rejected or abandoned them.

Re: Query of Roger C. Prioreschi

Can the Courts grant to our Foundation who works for indigent and underprivileged people, the same option granted to indigent people? The two Executive Judges, that we have approached, fear accusations of favoritism or other kind of attack if they approve something which is not clearly and specifically stated in the law or approved by your HONOR. Can your Honor help us once more? Grateful for your understanding, God bless you and your undertakings. We shall be privileged if you find time to visit our orphanage the Home of Love and the Spiritual Retreat Center in Antipolo City.

To answer the query of Mr. Prioreschi, the Courts cannot grant to foundations like the Good Shepherd Foundation, Inc. the same exemption from payment of legal fees granted to indigent litigants even if the foundations are working for indigent and underprivileged people. The basis for the exemption from legal and filing fees is the free access clause, embodied in Sec. 11, Art. III of the 1987 Constitution, thus:
Sec. 11. Free access to the courts and quasi judicial bodies and adequate legal assistance shall not be denied to any person by reason of poverty.

The importance of the right to free access to the courts and quasi judicial bodies and to adequate legal assistance cannot be denied. A move to remove the provision on free access from the Constitution on the ground that it was already covered by the equal protection clause was defeated by the desire to give constitutional stature to such specific protection of the poor.[1] In implementation of the right of free access under the Constitution, the Supreme Court promulgated rules, specifically, Sec. 21, Rule 3, Rules of Court,[2] and Sec. 19, Rule 141, Rules of Court,[3] which respectively state thus:
Sec. 21. Indigent party. A party may be authorized to litigate his action, claim or defense as an indigent if the court, upon an ex parte application and hearing, is satisfied that the party is one who has no money or property sufficient and available for food, shelter and basic necessities for himself and his family.

Such authority shall include an exemption from payment of docket and other lawful fees, and of transcripts of stenographic notes which the court may order to be furnished him. The amount of the docket

Re: Query of Roger C. Prioreschi and other lawful fees which the indigent was exempted from paying shall be a lien on any judgment rendered in the case favorable to the indigent, unless the court otherwise provides.

Any adverse party may contest the grant of such authority at any time before judgment is rendered by the trial court. If the court should determine after hearing that the party declared as an indigent is in fact a person with sufficient income or property, the proper docket and other lawful fees shall be assessed and collected by the clerk of court. If payment is not made within the time fixed by the court, execution shall issue for the payment thereof, without prejudice to such other sanctions as the court may impose. (22a)

Sec. 19. Indigent litigants exempt from payment of legal fees. Indigent litigants (a) whose gross income and that of their immediate family do not exceed an amount double the monthly minimum wage of an employee and (b) who do not own real property with a fair market value as stated in the current tax declaration of more than three hundred thousand (P300,000.00) pesos shall be exempt from payment of legal fees. The legal fees shall be a lien on any judgment rendered in the case favorable to the indigent litigant unless the court otherwise provides. To be entitled to the exemption herein provided, the litigant shall execute an affidavit that he and his immediate family do not earn a gross income abovementioned, and they do not own any real property with the fair value aforementioned, supported by an affidavit of a disinterested person attesting to the truth of the litigants affidavit. The current tax declaration, if any, shall be attached to the litigants affidavit. Any falsity in the affidavit of litigant or disinterested person shall be sufficient cause to dismiss the complaint or action or to strike out the pleading of that party, without prejudice to whatever criminal liability may have been incurred.

The clear intent and precise language of the aforequoted provisions of the Rules of Court indicate that only a natural party litigant may be regarded as an indigent litigant. The Good Shepherd Foundation, Inc., being a corporation invested by the State with a juridical personality separate and distinct from that of its members,[4] is a juridical person. Among others, it has the power to acquire and possess property of all kinds as well as incur obligations and bring civil or criminal actions, in conformity with the laws and regulations of their organization.[5] As a juridical person, therefore, it cannot be accorded the exemption from legal and filing fees granted to indigent litigants.

Re: Query of Roger C. Prioreschi

That the Good Shepherd Foundation, Inc. is working for indigent and underprivileged people is of no moment. Clearly, the Constitution has explicitly premised the free access clause on a persons poverty, a condition that only a natural person can suffer.

There are other reasons that warrant the rejection of the request for exemption in favor of a juridical person. For one, extending the exemption to a juridical person on the ground that it works for indigent and underprivileged people may be prone to abuse (even with the imposition of rigid documentation requirements), particularly by corporations and entities bent on circumventing the rule on payment of the fees. Also, the scrutiny of compliance with the documentation requirements may prove too time-consuming and wasteful for the courts.

IN VIEW OF THE FOREGOING, the Good Shepherd Foundation, Inc. cannot be extended the exemption from legal and filing fees despite its working for indigent and underprivileged people.

SO ORDERED.

Dickerson vs. US

Dickerson v U.S. 530 U.S. 428 [2000] Author: Sam Biers Federal Power to Regulate Private Conduct under the 14th - Interpretive Power Relevant Facts: Petitioner Dickerson was indicted for bank robbery, conspiracy to commit bank robbery, and using a firearm in the course of committing a crime of violence. Before trial, Dickerson moved to suppress a statement he had made at a Federal Bureau of Investigation field office, on the grounds that he had not received "Miranda warnings" before being interrogated. Two years after Miranda was decided, Congress enacted 3501. Legal Issue(s): Whether the Miranda decision, being a constitutional decision of this Court, may be overruled by a legislative Act of Congress? Courts Holding: No Procedure: Defendant was charged with conspiracy to commit bank robbery and other offenses. D. ct. granted suppression of confession. Govt motioned for reconsideration; denied, govt then appealed. Ct. of App reversed and remanded. S. Ct. Reversed Law or Rule(s): The Congress has supervisory authority over the federal cts, and may use that authority to prescribe rules of evidence and procedures that are not required by the Constitution and are therefore binding. Congress may not legislatively supercede out decisions interpreting and applying the Constitution. Court Rationale: In Miranda the ct opined that the Constitution would not preclude legilative solutions that differed from the warning, but which were at least as effective in apprising accused persons of their right of silence. The additional remedies within the Act are insufficient to meet the constitutional minimums. The Act abandons the requirement of pre-interrogation warnings. The Act or the test thereunder to determine voluntariness is more difficult than Miranda for officers to conform to, and for cts. to apply in a consistent manner. Congress may not legislatively supercede judicial decisions that are in line with the Constitution without violating the Constitution itself. Plaintiffs Argument:(resp US) The act complies with the requirement that a legislative alternative to Miranda has to be equally as effective in preventing coerced confessions. Defendants Argument:(pet/df) Act effectively eliminates the strictures of Miranda, and substitutes inadequate alternatives to determine voluntariness.

People vs. Ting Lan Uy

FIRST DIVISION

PEOPLE OF THE PHILIPPINES, Appellee,

G.R. No. 157399 Present: Davide, Jr., C.J. (Chairman), Quisumbing, Ynares-Santiago, Carpio, and Azcuna, JJ.

- versus -

JOSE TING LAN UY, JR. (Acquitted), ERNESTO GAMUS y SOTELO, JAIME OCHOA, all of the National Power Corporation, and RAUL GUTIERREZ alias Raul Nicolas, Alias George Aonuevo, alias Mara Aonuevo (At large), Accused. Promulgated:

JAIME OCHOA, Appellant. November 17, 2005

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

DECISION
YNARES-SANTIAGO, J.:

People vs. Ting Lan Uy

For allegedly diverting and collecting funds of the National Power Corporation (NPC) intended for the purchase of US Dollars from the United Coconut Planters Bank (UCPB), Jose Ting Lan Uy, Jr., Ernesto Gamus,[1] Jaime Ochoa and Raul Gutierrez were indicted before the Sandiganbayan for the complex crime of Malversation through Falsification of Commercial Documents defined and penalized under Articles 217 and 171 (8), in relation to Article 48 of the Revised Penal Code, in an amended Information,[2] docketed as Criminal Case No. 19558, which alleges

That sometime in July 1990, or for sometime prior or subsequent thereto, in Quezon City, Philippines, and within the jurisdiction of this Honorable Court, accused Jose Ting Lan Uy, Jr., a public accountable officer, being the Treasurer of National Power Corporation (NAPOCOR), Ernesto Gamus and Jaime Ochoa, both public officers being the Manager of the Loan Management and Foreign Exchange Division (LOMAFED) and Foreign Trader Analyst, respectively, also of NAPOCOR, and accused Raul Gutierrez, alias Raul Nicolas, alias George Aonuevo, alias Mara Aonuevo, a private individual being a foreign exchange trader, said public officers taking advantage of their official positions, with grave abuse of authority and committing the offense in relation to their office, conspiring, confederating and mutually helping one another, with their private co-accused, did then and there willfully, unlawfully and feloniously falsify or cause to be falsified the NPCs application for managers checks with the Philippine National Bank (PNB), NPC Branch in the total amount of ONE HUNDRED EIGHTY THREE MILLION EIGHT HUNDRED FIVE THOUSAND TWO HUNDRED NINETY ONE PESOS and TWENTY FIVE CENTAVOS (P183,805,291.25), Philippine Currency, intended for the purchase of US dollars from the United Coconut Planters Bank (UCPB), by inserting the account number of Raul Gutierrez SA-111-121204-4, when in truth and in fact as the accused well knew that the Payment Instructions (PI) when signed by the NAPOCOR authorities did not indicate the account number of Raul Gutierrez, thereby making alteration or intercalation in a genuine document which changes its meaning, and with the use of the said falsified commercial documents, accused succeeded in diverting, collecting and receiving the total amount of ONE HUNDRED EIGHTY THREE MILLION EIGHT HUNDRED FIVE THOUSAND TWO HUNDRED NINETY ONE PESOS AND TWENTY FIVE CENTAVOS (P183,805,291.75), Philippine Currency from the National Power Corporation, which they thereafter malverse, embezzle, misappropriate and convert to their own personal use and benefit to the damage and prejudice of the National Power Corporation in the aforementioned sum.

CONTRARY TO LAW.

Upon arraignment, Gamus, Uy and Ochoa pleaded not guilty to the charge, while Gutierrez has remained at large.

People vs. Ting Lan Uy

On pre-trial, the prosecution and the defense stipulated

1.

That accused Uy at the time stated in the information was a Treasurer at the NPC;

2.

That accused Ernesto Gamus was at the time mentioned in the information was (sic) the Manager of Loan Management and Foreign Exchange Division (LOMAFED);

3.

That accused Jaime Ochoa was the Senior Financial Analyst, LOMAFED, at the time mentioned in the information;

4.

That accused Gamus does not have any custody to (sic) public funds;

5.

That accused Ochoas position as Sr. Financial Analyst did not require him to take custody or control of public funds;

6.

That the application forms for cashiers check or Managers check are not accountable forms of the NAPOCOR.[3]

Trial on the merits thereafter ensued. On May 28, 2002, the Sandiganbayan rendered its Decision,[4] the dispositive portion of which reads:

WHEREFORE, premises considered, accused Jaime B. Ochoa is hereby found GUILTY beyond reasonable doubt of the crime of Malversation thru falsification of Commercial Document and is sentenced to suffer the penalty of reclusion perpetua and to pay a fine equal to the amount malversed which is ONE HUNDRED EIGHTY THREE MILLION EIGHT HUNDRED FIVE THOUSAND TWO HUNDRED NINETY ONE PESOS AND TWENTY FIVE CENTAVOS (P183,805,291.25) solidarily with accused Jose Ting Lan Uy, Jr. Accused Ochoa shall also suffer the penalty of perpetual disqualification. Costs against the accused.

On the ground of reasonable doubt, accused JOSE TING LAN UY, Jr. is hereby ACQUITTED of Malversation of Public Funds thru Falsification of Commercial Document. However, because of preponderance of evidence, he is CIVILLY LIABLE for the damages suffered by the NPC in the amount of ONE

People vs. Ting Lan Uy HUNDRED EIGHTY THREE MILLION EIGHT HUNDRED FIVE THOUSAND TWO HUNDRED NINETY ONE PESOS AND TWENTY FIVE CENTAVOS (P183,805,291.25) solidarily with accused Jaime Ochoa. The Hold Departure Order against the accused embodied in this Courts Resolution dated April 18, 2002 is recalled.

Let an alias warrant of arrest be issued against Raul Gutierrez, alias Raul Nicolas, alias George Aonuevo, alias Mara Aonuevo with last known address at 1348 A. Mabini Street, Ermita, Manila or Suite 603 VIP Building, Roxas Boulevard, Manila.

SO ORDERED.[5]

Aggrieved, Ochoa interposed this appeal alleging that the Sandiganbayan erred in

1.

convicting him based on the allegations in the information;

2.

admitting and considering his alleged sworn statements;

3.

considering the alleged transcripts of stenographic notes and the NBI Report.[6]

The factual antecedents of the case, as summed by the Sandiganbayan, are not disputed by the parties:

In July of 1990, the National Power Corporation (NPC) became embroiled in a controversy involving the disappearance of P183,805,291.25 of its funds which were originally on deposit with the Philippine National Bank, NPC Branch (PNB) but were subsequently used to purchase two (2) managers/cashiers checks (the first check was in the amount of P70,000,000.00 while the second was for P113,805,291.25) in order to comply with its loan obligations to the Asian Development Bank (ADB). As NPCs debt in favor of ADB was in yen, NPC was obligated to follow an intricate and circuitous procedure of buying US dollars from a local bank (in this case, United Coconut Planters Bank or UCPB T.M. Kalaw Branch), which local bank was supposed to remit the US dollars to an off-shore bank. This off-shore bank (in this case, the Credit Lyonnais, New York) was then supposed to remit the yen equivalent of the US dollars to a third bank (in this case, the Bank of Japan, Tokyo Branch) which would then credit the funds to the account of the ADB. The contracts of NPC with the concerned banks (embodied in three *3+ Payment Instructions) included a value date

People vs. Ting Lan Uy (which was July 13, 1990), the mere arrival of which would trigger the above-mentioned procedure, culminating in the payment to ADB of the NPC obligation in the foreign currency agreed upon.

On value date, per routing procedure, Credit Lyonnais (the second bank) remitted Japanese Yen 1,143,316,130.00 to the Bank of Japan, Tokyo Branch. Likewise, per routing procedure, UCPB T.M. Kalaw Branch was supposed to have remitted on said value date the amount of US$7,740,799.80. UCPB T.M. Kalaw, however, despite the fact that the PNB had already issued two (2) managers/cashiers checks (Managers check for brevity) for such purpose, did not make the agreed remittance to Credit Lyonnais, so Credit Lyonnais received no payment for the funds it had remitted to the Bank of Japan, Tokyo. Both the State and the accused have offered explanations for the failure of UCPB, T.M. Kalaw Branch to remit the dollar equivalent of P183,805,291.25 to Credit Lyonnais. Both explanations, naturally, were diametrically opposed.[7]

The prosecution theorizes that the accused diverted the funds covered by the two PNB Managers checks by falsifying a commercial document called an Application for Cashiers Check (ACC) by inserting an account number (A/C #111-1212-04) of a private individual after the name of the payee, UCPB, T.M. Kalaw Branch. It claims that NPC did not authorize the insertion considering that the Payment Instruction (PI) issued by NPC instructing PNB to prepare a Managers check to be charged to NPCs savings account did not contain any account number. Through the insertion, the accused allegedly succeeded in diverting the funds from the UCPB, T.M. Kalaw Branch in favor of Raul Gutierrez @ Raul Nicolas @ George Aonuevo @ Mara Aonuevo, who is still at large.

In his defense, appellant asserts that there was no evidence that he committed any of the acts alleged in the information, particularly the intercalation on the ACC; that he deposited the checks subsequently issued or that he received the proceeds thereof; or that he conspired with any of his co-accused. He claims that his conviction was based on the alleged sworn statement and the transcript of stenographic notes of a supposed interview with appellant by the NPC personnel and the report of the National Bureau of Investigation (NBI). Appellant maintains that he signed the sworn statement while confined at the Philippine Heart Center and upon assurance that it would not be used against him. He was not assisted by counsel nor was he apprised of his constitutional rights when he executed the affidavit.

People vs. Ting Lan Uy

To be found guilty of malversation, the prosecution must prove the following essential elements:

a.]

The offender is a public officer;

b.]

He has the custody or control of funds or property by reason of the duties of his office;

c.]

The funds or property involved are public funds or property for which he is accountable; and

d.]

He has appropriated, taken or misappropriated, or has consented to, or through abandonment or negligence, permitted the taking by another person of, such funds or property.[8]

Appellant insists that he could not be convicted under the allegations in the information without violating his constitutional right to due process and to be informed of the accusation against him. He points out that the information alleges willful and intentional commission of the acts complained of while the judgment found him guilty of inexcusable negligence amounting to malice.

Appellants contention lacks merit. Malversation may be committed either through a positive act of misappropriation of public funds or property or passively through negligence by allowing another to commit such misappropriation.[9] To sustain a charge of malversation, there must either be criminal intent or criminal negligence[10] and while the prevailing facts of a case may not show that deceit attended the commission of the offense, it will not preclude the reception of evidence to prove the existence of negligence because both are equally punishable in Article 217 of the Revised Penal Code.

More pointedly, the felony involves breach of public trust, and whether it is committed through deceit or negligence, the law makes it punishable and prescribes a uniform penalty

People vs. Ting Lan Uy

therefor. Even when the information charges willful malversation, conviction for malversation through negligence may still be adjudged if the evidence ultimately proves that mode of commission of the offense.[11] Explicitly stated

Even on the putative assumption that the evidence against petitioner yielded a case of malversation by negligence but the information was for intentional malversation, under the circumstances of this case his conviction under the first mode of misappropriation would still be in order. Malversation is committed either intentionally or by negligence. The dolo or the culpa present in the offense is only a modality in the perpetration of the felony. Even if the mode charged differs from mode proved, the same offense of malversation is involved and conviction thereof is proper.[12]

The question of whether or not an information charging the commission of the crime by means of deceit will preclude a conviction on the basis of negligence is neither novel nor of first impression. In Samson v. Court of Appeals, et al.,[13] we ruled that an accused charged with willful or intentional falsification can validly be convicted of falsification through negligence, thus:

While a criminal negligent act is not a simple modality of a willful crime, as we held in Quizon vs. Justice of the Peace of Bacolor, but a distinct crime in itself, designated as a quasi offense in our Penal Code, it may however be said that a conviction for the former can be had under an information exclusively charging the commission of a willful offense, upon the theory that the greater includes the lesser offense. This is the situation that obtains in the present case. Appellant was charged with willful falsification but from the evidence submitted by the parties, the Court of Appeals found that in effecting the falsification which made possible the cashing of the checks in question, appellant did not act with criminal intent but merely failed to take proper and adequate means to assure himself of the identity of the real claimants as an ordinary prudent man would do. In other words, the information alleges acts which charge willful falsification but which turned out to be not willful but negligent. This is a case covered by the rule when there is a variance between the allegation and proof, and is similar to some of the cases decided by this Tribunal.

....

The fact that the information does not allege that the falsification was committed with imprudence is of no moment for here this deficiency appears supplied by the evidence submitted by appellant himself and the result has proven beneficial to him. Certainly, having alleged that the falsification has been willful, it

People vs. Ting Lan Uy would be incongruous to allege at the same time that it was committed with imprudence for a charge of criminal intent is incompatible with the concept of negligence.

In People v. Consigna, et al.,[14] we ruled that the afore-stated rationale also applies to the felony of malversation, that is, that an accused charged with willful malversation, in an information containing allegations similar to the present case, can be validly convicted of the same offense of malversation through negligence where the evidence sustains the latter mode of perpetrating the offense.

Appellant next claims that he should be acquitted since his conviction was based on his sworn statement, transcript of stenographic notes from which the sworn statement was taken and the NBI Report, which are incompetent evidence. He contends that his sworn statement was taken without the benefit of counsel, in violation of his constitutional right under Section 12, Article III of the 1987 Constitution.

Paragraph 1, Section 12, Article III of the 1987 Constitution states that

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.

The investigation under the above-quoted provision refers to a custodial investigation where a suspect has already been taken into police custody[15] and the investigating officers begin to ask questions to elicit information and confessions or admissions from the suspect.[16] More specifically

Custodial investigation involves any questioning initiated by law enforcement authorities after a person is taken into custody or otherwise deprived of his freedom of action in any significant manner. And, the rule begins to operate at once as soon as the investigation ceases to be a general inquiry into an unsolved crime

People vs. Ting Lan Uy and direction is then aimed upon a particular suspect who has been taken into custody and to whom the police would then direct interrogatory question which tend to elicit incriminating statements.[17]

Succinctly stated, custodial investigation refers to the critical pre-trial stage when the investigation ceases to be a general inquiry into an unsolved crime but has begun to focus on a particular person as a suspect.[18] Such a situation contemplated has been more precisely described thus where

After a person is arrested and his custodial investigation begins a confrontation arises which at best may be termed unequal. The detainee is brought to an army camp or police headquarters and there questioned and cross-examined not only by one but as many investigators as may be necessary to break down his morale. He finds himself in a strange and unfamiliar surrounding, and every person he meets he considers hostile to him. The investigators are well-trained and seasoned in their work. They employ all the methods and means that experience and study has taught them to extract the truth, or what may pass for it, out of the detainee. Most detainees are unlettered and are not aware of their constitutional rights. And even if they were, the intimidating and coercive presence of the officers of the law in such an atmosphere overwhelms them into silence....[19]

Clearly, therefore, the rights enumerated by the constitutional provision invoked by accused-appellant are not available before government investigators enter the picture.[20] Thus we held in one case[21] that admissions made during the course of an administrative investigation by Philippine Airlines do not come within the purview of Section 12. The protective mantle of the constitutional provision also does not extend to admissions or confessions made to a private individual,[22] or to a verbal admission made to a radio announcer who was not part of the investigation,[23] or even to a mayor approached as a personal confidante and not in his official capacity.[24]

Along the same vein, we held that a videotaped interview showing the accused unburdening his guilt willingly, openly and publicly in the presence of newsmen is not covered by the provision although in so ruling, we warned trial courts to take extreme caution in further admitting similar confessions because we recognized the distinct possibility that the police, with the connivance of unscrupulous media practitioners, may attempt to legitimize coerced

People vs. Ting Lan Uy

extrajudicial confessions and place them beyond the exclusionary rule by having an accused admit an offense on television.[25]

Neither does the constitutional provision on custodial investigation extends to a spontaneous statement, not elicited through questioning by the authorities, but given in an ordinary manner whereby the accused orally admits having committed the crime,[26] nor to a person undergoing an audit examination because an audit examiner is not a law enforcement officer.[27]

Thus, the flaw in appellants argument in this regard becomes immediately apparent vis-vis the foregoing legal yardsticks, considering that his statement was taken during the administrative investigation of NPCs audit team[28] and before he was taken into custody. As such, the inquest was still a general inquiry into an unsolved offense at the time and there was, as yet, no specific suspect.

Much less can appellant claim that he was in police custody because he was confined at the time at the Philippine Heart Center and he gave this statement to NPC personnel, not to police authorities.[29] Appellant can hardly claim that, under the prevailing circumstances at the time, whatever degree of compulsion may have existed went beyond the borders of the unobjectionable where impermissible levels of duress would force him into making false and incriminating declarations against his interest. While he may have been persuaded into doing so, he cannot feign that he was intimidated in such a way as to bring his statements within the ambit of the exclusionary constitutional provision.

The fact that an NBI investigation was being contemporaneously conducted at the time the sworn statement was taken will not extricate appellant from his predicament. The essence of the constitutional safeguard is protection from coercion. The interview where the sworn statement is based was conducted by NPC personnel for the NPCs administrative investigation. Any

People vs. Ting Lan Uy

investigation conducted by the NBI is a proceeding separate, distinct and independent from the NPC inquiry and should not be confused or lumped together with the latter.

Appellant invokes Galman v. Pamaran[30] in insisting that the constitutional safeguard should have been applied notwithstanding that he was not yet arrested or under detention at the time. He also invites our attention to the pronouncements of Fr. Joaquin G. Bernas[31] that the right to counsel is available if a person is in custody, even if he is not a suspect; or even if not yet in custody but he is a suspect.

The contention is tenuous. Although we held in Galman that the constitutional protection covers not only confessions but admissions as well, we qualified the ruling with the statement that what is being eschewed is the evil of extorting a confession from the mouth of the person being interrogated. As defined, extortion is an act or practice of taking or obtaining anything from a person by illegal use of fear, whether by force, threats or any undue exercise of power. [32] In the context of obtaining an admission, extorting means compelling or coercing a confession or information by any means serving to overcome his power of resistance, or making the confession or admission involuntary.[33] In this case, we find nothing on record to support appellants claim that his statements were extorted from him.

Furthermore, while indeed Galman taken together with the 1986 deliberations on what was later to become Section 12 (1) of the 1987 Constitution may lead to the conclusion that the rights are available when the person is already in custody as a suspect, or if the person is a suspect even if he is not yet deprived in any significant way of his liberty, Fr. Bernas[34] qualified this statement by saying that *J+urisprudence under the 1987 Constitution, however, hasconsistently held, following Escobedo, the stricter view, that the rights begin to be available only when the person is already in custody.[35]

Appellant next advances the argument that even if his sworn statement were admissible in evidence, the contents thereof may not be sufficient to sustain a conviction. He contends that

People vs. Ting Lan Uy

although his statement was supposedly gathered from the transcript of stenographic notes of the conversation between him and Atty. Bagcal, neither Atty. Bagcal nor the person who actually prepared the sworn statement was presented. Therefore, the sworn statement is hearsay.

The argument is puerile. It bears stressing that the prosecution presented as witness Atty. Lamberto P. Melencio who saw appellant at the hospital to show him the prepared statement and to verify from him the truth of its contents.[36] Atty. Melencio testified that he asked appellant to go over the document before affixing his signature thereto. [37] He also inquired whether or not appellant was coerced or intimidated by anybody when the statement was taken.[38] Appellant denied that he was coerced or intimidated,[39] affirmed the contents of the document as a true reflection of his statements,[40] and signed the same.[41] It need not be overemphasized that the sworn statement is a duly notarized document which has in its favor the presumption of regularity and, thus, it can be contradicted only by clear and convincing evidence. Without that sort of evidence, the presumption of regularity, the evidentiary weight conferred upon such public document with respect to its execution, as well as the statements and the authenticity of the signatures thereon, stand.[42]

In disclaiming the authenticity of his sworn statement, appellant insists that at the time he signed the document, he was confined in the hospital and therefore not physically and mentally fit to assess the significance of his signature. This pretext however collides with the testimony of his own witness, Dr. Teresita Sadava, who stated that appellant was confined for three days and, who, when queried whether ischemic heart disease had any emotional or psychological effect, gave the inconclusive reply that it may or may not. Moreover, as aptly observed by the Sandiganbayan, although supposedly violated and repulsed as he was by the alleged falsity of the affidavit, it is strange that appellant, who is supposedly astute in business matters as he then occupied the position of Foreign Trader Analyst of the NPC, nevertheless felt it unnecessary to execute another affidavit retracting the same after his recovery from illness. Verily, evidence to be believed must not only proceed from the mouth of a credible witness, but must be credible in itself such as the common experience and observation of mankind can approve as probable under the circumstances.[43]

People vs. Ting Lan Uy

Appellant finally contends that both the NBI Investigation Report and the transcript of stenographic notes are hearsay for having been made extra-judicially. The record, however, shows that the prosecution presented the team leader of the NBI investigators who conducted the investigation, although his testimony was dispensed with as the parties stipulated on the existence and due execution of the NBI Investigation report albeit without admitting the truth of its contents. If at all, the admission of the reports existence is an acknowledgment that it is neither spurious nor counterfeit.

All told, given the paucity of substance in the arguments advanced by appellant to prop up his cause, his appeal must fall.

WHEREFORE, the May 28, 2002 Decision of the Sandiganbayan is hereby AFFIRMED in all respects.

SO ORDERED.

People vs. Reyes

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 178300 March 17, 2009

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. DOMINGO REYES y PAJE, ALVIN ARNALDO y AVENA and JOSELITO FLORES y VICTORIO, AccusedAppellants. DECISION CHICO-NAZARIO, J.: For review is the Decision,1 dated 14 August 2006, and Resolution,2 dated 18 October 2006, of the Court of Appeals in CA-G.R. CR-H.C. No. 02301 affirming with modifications the Decision,3 dated 26 February 2002, of the Regional Trial Court (RTC), Branch 12, Malolos, Bulacan, in 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 crime of kidnapping for ransom with homicide and imposing upon each of them the capital punishment of death. The facts culled from the records are as follows: On 11 August 1999, an Information4 was filed before the RTC charging appellants with the special complex crime of kidnapping for ransom with homicide. The accusatory portion of the information reads: 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. During their arraignment,5 appellants, assisted by a counsel de oficio, pleaded "Not guilty" to the charge. Trial on the merits thereafter followed. The prosecution presented as witnesses Jona Abagatnan (Abagatnan), Robert Yao (Robert), Yao San, Police Officer 3 (PO3) Alex Alberto, PO3 Roberto Jabien, Atty. Florimond Rous (Atty. Rous) and Atty. Carlo Uminga (Atty. Uminga). Their testimonies, taken together, attest to the following: The Yao family is composed of Yao San (father), Chua Ong Ping Sim (mother), Robert and Raymond (children), Lenny (daughter-in-law, wife of Robert), Matthew and Charlene (grandchildren), and Jona Abagatnan and Josephine Ortea

People vs. Reyes (housemaids). The Yao family owns and operates a poultry farm in Barangay Santo Cristo, San Jose del Monte, Bulacan.
On 16 July 1999, at about 11:00 p.m., the Yao family, on board a Mazda MVP van, arrived at the their poultry farm in Barangay Sto. Cristo, San Jose del Monte, Bulacan. Yao San alighted from the van to open the gate of the farm. At this juncture, appellant Reyes and a certain Juanito Pataray (Pataray) approached, poked their guns at Yao San, and dragged him inside the van. Appellant Reyes 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 the Yao family inside the vehicle.8 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 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 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 safehouse.11 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 On 18 July 1999, appellants called Yao San through a cellular phone and demanded the ransom 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 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 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 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

People vs. Reyes On 26 July 1999, appellant Arnaldo surrendered to the Presidential Anti-Organized Crime Task Force (PAOCTF) at Camp Crame, 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 Akey as his co-participants in the incident. Appellant Arnaldo also described the physical features of his cohorts and revealed their whereabouts.17
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 On 10 August 1999, agents of the PAOCTF arrested appellant Flores in Balayan, Batangas. Afterwards, appellant Flores, with the assistance of Atty. Rous, executed a written extra-judicial confession detailing his participation in the incident. Appellant Flores identified appellants Reyes and Arnaldo, Pataray and a certain Tata and Akey as his coparticipants in the incident. Appellant Flores was subsequently identified in a police line-up by Yao San, Robert and Abagatnan as one of their kidnappers.19 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 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: 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 to Camp Crame and met therein Colonel Cesar Mancao III (Colonel Mancao) of the 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 himP500,000.00. He accepted Yao Sans offer 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 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 Yao family.33 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

People vs. Reyes 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
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 extrajudicial 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 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);36 (2) calling card of Colonel Mancao (Exhibit 2 for appellant Arnaldo);37 and (3) pictures allegedly showing 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: 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 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. 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 fromP150,000.00 to P100,000.00. Further, it directed appellants to pay jointly and severally the Yao familyP100,000.00 as exemplary damages. The fallo of the Court of Appeals decision states: 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) the award of civil indemnity ex delicto is hereby reduced to P100,000; and 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:

People vs. Reyes

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. 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 Anent the first assigned error, appellants assail the credibility of prosecution witnesses Abagatnan, Robert and Yao San. In resolving issues pertaining to the credibility of the witnesses, this Court is guided by the following well-settled principles: (1) the reviewing court will not disturb the findings of the lower court, unless there is a showing that the latter overlooked, misunderstood or misapplied some fact or circumstance of weight and substance that may affect the result of the case; (2) the findings of the trial court on the credibility of witnesses are entitled to great respect and even finality, as it had the 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 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 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 Robert confirmed that appellants and their cohorts blindfolded them inside the van during the incident. He also recounted that appellants and their cohorts detained him and Chua Ong 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 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 Ping Sim, Robert, Raymond and Abagatnan.47 Abagatnan, Robert and Yao San testified in a clear and candid manner during the trial. Their respective testimonies were consistent with one another. They were steadfast in recounting their ordeal despite the grueling cross examination of the defense. Moreover, their testimonies were in harmony with the documentary evidence adduced by the prosecution. The RTC and the Court of Appeals found their testimonies credible and trustworthy. Both courts also found no ill motive for Abagatnan, Robert and Yao San to testify against appellants.

People vs. Reyes 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.
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 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 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.53Robert 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, 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 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 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: 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

People vs. Reyes 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
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. 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.58Understandably, 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 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 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 As can be gleaned from the credible testimonies and sworn statements of Abagatnan, Robert and Yao, appellant Reyes and Pataray63 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 confessions64 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. Appellants, however, challenge the legality and admissibility of the written extra-judicial confessions. 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.

People vs. Reyes 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.
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 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. 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 observed66: 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.
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(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. 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 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 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 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

People vs. Reyes 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
We have gone over the records and found that the PAOCTF investigators have duly apprised 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. The Pasubali76 of appellants Arnaldo and Floress written extra-judicial confessions clearly shows that before they made their respective confessions, the PAOCTF investigators had informed 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 extra-judicial 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 their fundamental rights after being informed thereof. Records reflect that appellants Arnaldo and Reyes were likewise accorded their right to competent and independent counsel during their respective custodial investigations. 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 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 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 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

People vs. Reyes appellant Flores why he wanted to give such confession. Appellant Flores 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
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. Appellant Flores 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 199483 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 the Philippines, 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 In People v. Fabro,87 we stated: 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. 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.88While 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 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. 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, these confessions are admissible. They are evidence of a high order because of the strong presumption that no person of normal mind would deliberately

People vs. Reyes and knowingly confess to a crime, unless prompted by truth and conscience.90Consequently, the burden of proving that undue pressure or duress was used to procure the confessions rests on appellants Arnaldo and Flores.91
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 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.
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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 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.96 In People v. Alvarez,97 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. Encipido98 we elucidated 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. Appellants Arnaldo and Flores stated in their respective confessions that appellant Reyes participated in their kidnapping of the Yao family. These statements are, therefore, admissible as corroborative and circumstantial evidence to prove appellant Reyes guilt. Nevertheless, even without the extra-judicial confessions of appellants Arnaldo and Flores, 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 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

People vs. Reyes 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 proceeds of a shabu sale to the PAOCTF officers, he was beaten up and included as accused in the kidnapping of the Yao family.
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 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 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 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. of 16 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 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. 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. 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 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. 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 Indeed, the positive and credible testimonies of Abagatnan, Robert and Yao San prevail over the alibis and defense of frame-up of appellants.105

People vs. Reyes 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.
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. 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 exacting ransom;109 and (2) the kidnap victims were killed or died as a consequence of the kidnapping or was raped, or subjected to torture or dehumanizing acts. Both of these qualifying circumstances are alleged in the information and proven during trial. 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 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 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.

People vs. Reyes 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.
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 is P700,000.00; 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 vs Malngan

EN BANC

PEOPLE THEPHILIPPINES , Appellee,

OF

G. R. No. 170470 Present:

PANGANIBAN, C.J ., PUNO, QUISUMBING, - versus YNARES-SANTIAGO, SANDOVAL-GUTIERREZ, CARPIO, AUSTRIA-MARTINEZ, CORONA, EDNA MALNGAN y MAYO, Appellant. CARPIO MORALES, CALLEJO, SR., AZCUNA, TINGA, CHICO-NAZARIO, GARCIA, and VELASCO, JR., JJ .

Promulgated:

People vs Malngan

September 26, 2006 x----------------------------------------x

DECISION

CHICO-NAZARIO, J .:

The Case For review is the Decision [ 1 ] of the Court of Appeals in CA-G.R. CR HC No. 01139 promulgated on 2 September 2005, affirming with modification the Judgment [ 2 ] of the Regional Trial Court (RTC) of Manila, Branch 41, in Criminal Case No. 01-188424 promulgated on 13 October 2003, finding appellant Edna Malngan y M ayo (Edna) guilty beyond reasonable doubt of the crime of Arson with Multiple Homicide or Arson resulting to the death of six (6) people, and sentencing her to suffer the penalty of death.

The Facts As summarized [ 3 ] by the Court of Appeals, follows: the antecedent facts are as

From the personal account of Remigio Bernardo, the Barangay Chairman in the area, as well as the personal acco unt of the pedicab driver named Rolando Gruta, it was at around 4:45 a.m. on January 2, 2001 when Remigio Bernardo and his tanods saw the accused -appellant EDNA, one hired as a housemaid by Roberto Separa, Sr., with her head turning in different directions , hurriedl y leaving the house of her employer at No. 172 Moderna Street, Balut, Tondo, Manila. She was seen to have boarded a pedicab which was driven by a person later identified as

People vs Malngan

Rolando Gruta. She was heard by the pedicab driver to have instructed tha t she be brought to Nipa Street, but upon her arrival there, she changed her mind and asked that she be brought instead to Balasan Street where she finall y alighted, after paying for her fare. Thirt y minutes later, at around 5:15 a.m. Barangay Chairman Bernardos group later discovered that a fire gutted the house of the employer of the housemaid. Barangay Chairman Bernardo and his tanods responded to the fire upon hearing shouts from the residents and thereafter, firemen from the Fire District 1 NCR arrived at the fire scene to contain the fire. When Barangay Chairman Bernardo returned to the Barangay Hall, he received a report from pedicab driver Rolando Gruta, who was also a tanod, that shortl y before the occurrence of the fire, he saw a woman (the h ousemaid) coming out of the house at No. 172 Moderna Street, Balut, Tondo, Manila and he received a call from his wife telling him of a woman (the same housemaid) who was acting strangel y and suspiciousl y on Balasan Street. Barangay Chairman Bernardo, Rolando Gruta and the other tanods proceeded to Balasan Street and found the woman who was later identified as the accused -appellant. After Rolando Gruta positivel y identified the woman as the same person who left No. 172 Moderna Street, Balut, Tondo, Manila, Barangay Chairman Bernardo and his tanods apprehended her and brought her to the Barangay Hall for investigation. At the Barangay Hall, Mercedita Mendoza, neighbor of Roberto Separa, Sr. and whose house was also burned, identified the woman as accused -appellant EDNA who was the housemaid of Roberto Separa, Sr. Upon inspection, a disposable lighter was found inside accused- appellant EDNAs bag. Thereafter, accused -appellant EDNA confessed to Barangay Chairman Bernardo in the presence of multitudes of angry r esidents outside the Barangay Hall that she set her employers house on fire because she had not been paid her salary for about a year and that she wanted to go home to her province but her employer told her to just ride a broomstick in going home. Accused-appellant EDNA was then turned over to arson investigators headed by S[F]O4 Danilo Talusan, who brought her to the San Lazaro Fire Station in Sta. Cruz, Manila where she was further investigated and then detained. When Mercedita Mendoza went to the S an Lazaro Fire Station to give her sworn statement, she had the opportunity to ask accused -appellant EDNA at the latters detention cell why she did the burning of her employers house and accused-appellant EDNA replied that she set the house on fire becau se when she asked permission to go home to her province, the wife of her employer Roberto Separa, Sr., named Virginia Separa (sic) shouted at her: Sige umuwi ka, pagdating mo maputi ka na. Sumakay ka sa walis, pagdating mo maputi ka na (TSN, January 22, 2002, p.6) (Go ahead, when you arrive your color would be fair already. Ride a broomstick, when you arrive your color would be fair already.) And when Mercedita Mendoza asked accused -appellant EDNA how she burned the house, accused-appellant EDNA told he r: Naglukot ako ng maraming diyaryo, sinindihan ko ng disposable lighter at hinagis ko sa ibabaw ng lamesa sa loob ng bahay (TSN, January 22, 2002, p. 7.) (I crumpled newspapers, lighted them with a disposable lighter and threw them on top of the table inside the house.)

People vs Malngan

When interviewed by Carmelita Valdez, a reporter of ABS -CBN Network, accused-appellant EDNA while under detention (sic) was heard by SFO4 (sic) Danilo Talusan as having admitted the crime and even narrated the manner how she accomplished it. SFO4 (sic) Danilo Talusan was able to hear the same confession, this time at his home, while watching the television program True Crime hosted by Gus Abelgas also of ABS -CBN Network. The fire resulted in [the] destruction of the house of Robert o Separa, Sr. and other adjoining houses and the death of Roberto Separa, Sr. and Virginia Separa together with their four (4) children, namel y: Michael, Daphne, Priscilla and Roberto, Jr.

On 9 January 2001, an Information [ 4] was filed before the RTC of Manila, Branch 41, charging accused-appellant with the crime of Arson with Multiple Homicide. The case was docketed as Criminal Case No. 01-188424. The accusatory portion of said Information provides:
That on or about January 2, 2001, in the Cit y of Manila, Philippines, the said accused, with intent to cause damage, did then and there willfull y, unlawfully, feloniousl y and deliberatel y set fire upon the two -storey residential house of ROBERTO SEPARA and famil y mostl y made of wooden materials located at No. 172 Moderna St., Balut, Tondo, this cit y, by lighting crumpled newspaper with the use of disposable lighter in side said house knowing the same to be an inhabited house and situated in a thickl y populated place and as a consequence thereof a conflagration ensued and the said building, together with some seven (7) adjoining residential houses, were razed by fire; th at by reason and on the occasion of the said fire, the following, namel y, 1. 2. 3. 4. 5. 6. Roberto Separa, Sr., 45 years of age Virginia Separa y Mendoza, 40 years of age Michael Separa, 24 years of age Daphne Separa, 18 years of age Priscilla Separa, 14 years of age Roberto Separa, Jr., 11 years of age

sustained burn injuries which were the direct cause of their death immediatel y thereafter. [ 5 ]

When arraigned, accused-appellant with assistance of counsel de oficio, pleaded [ 6] Not Guilty to the crime charged. Thereafter, trial ensued. [ 7]

People vs Malngan

The prosecution presented five (5) witnesses, namely, SPO4 [ 8 ] Danilo Talusan, Rolando Gruta, Remigio Bernardo, Mercedita Mendoza and Rodolfo Movilla to establish its charge that accused -appellant Edna committed the crime of arson with multiple homicide. SPO4 Danilo Talusan, arson investigator, testified that he was one of those who responded to the fire that occurred on 2 January 2001and which started at No. 172 Moderna St., Balut, Tondo, Manila. He stated that the fire killed Roberto Separa, Sr. and all the other members of his family, namely his wife, Virginia, and his children, Michael, Daphne, Priscilla and Roberto, Jr.; the fire also destroyed their abo de as well as six neighboring houses. He likewise testified that he twice heard accused -appellant once while the latter was being interviewed by Carmelita Valdez, a reporter of ABS -CBN, and the other time when it was shown on channel 2 on television dur ing the airing of the television program entitled True Crime hosted by Gus Abelgas confess to having committed the crime charged, to wit:
Pros. Rebagay: Based on your investigation, was there any occasion when the accused Edna Malngan admitted to the burning of the house of the Separa Family?
x x x x Witness: Yes, sir. Pros. Rebagay: When was that? A: On January 2 she was interviewed by the media, sir. The one who took the coverage was Carmelita Valdez of Channel 2, AB S-CBN. They hav e a footage that Edna admitted before them, sir. And where were you when Edna Malngan made that statement or admission to Carmelita Valdez of ABS -CBN? I was at our office, sir. Was there any other occasion wherein the accused made another co nfession relative to the admission of the crime?

Q:

A: Q:

People vs Malngan A: Yes, sir. Q: A: When was that? Last Friday, sir. It was shown in True Crime of Gus Abelgas. She was interviewed at the City Jail and she admitted that she was the one who authored the crime, sir.

Pros. Rebagay: And where were you when that admission to Gus Abelgas was made? A: Q: I was in the ho use and I just saw it on tv, sir. What was that admission that you heard persona lly, when you were present, when the accused made the confession to Carmelita Valdez? Naglukot po siya ng papel, sinidihan niya ng lighter at inilagay niya sa ibabaw ng mesa yung mga diyar yo at sinunog niya. x x x x Q: Aside from that statement, was there any other statement made by the accused Edna Malngan? Yes, sir. Kaya po niya nagawa yon galit po siya sa kanyang amo na si Virginia, hindi siya pinasuweldo at gusto na po niyang umuwi na (sic) ayaw siyang payagan. Nagsalit a pa po sa kanya na, Sumakay ka na lang sa walis. Pagbalik mo dito maputi ka na. (sic) Yon po ang sinabi ng kanyang amo .

A:

A:

Atty. Masweng: That was a statement of an alleged dead person, your Honor. Court: Sabi ni Valdes, ha? Pros. Rebagay: Sabi ni Edna M alngan kay Carmelita Valdez, Your Honor. Court: Double hearsay na yon. Pros. Rebagay: No, Your Honor, the witness was present, Your Honor, when that confession was made by the accused to C armelita Valdez. [ 9 ]

Rolando Gruta, the pedicab driver and one of the barangay tanods in the area, testified:
Pros. Rebagay:

People vs Malngan Mr. Witness, what is your profession?

A:

Sidecar driver, sir.

Q:

On January 2, 2 001 at around 4:45 in the morning, do you recall where were (sic) you?

A:

I was at the corner of Moderna Street, sir.

Pros. Rebagay: And while you were a t the corner of Moderna St., what happened if any, Mr. Witness?

A:

I saw Edna coming out from the door of the house of Roberto Separa, sir.

Q:

Do you know the number of the ho use of the Separa Family?

A:

172 Moderna St., Balut, Tondo, Manila, sir.

x x x x

Q:

And you said you saw Edna coming out from the house of the Separa Family . How far is that house from the place where you were waiting at the corner of Moderna and Paulino Streets?

A:

Abo ut three meters from Moderna and Paulino Streets where my pedicab was placed. My distance was about three meters, sir.

x x x x

People vs Malngan

Q:

And how did yo u know that the house where Edna came out is that of the house o f the Separa Family?

A:

Mismong nakita po ng dalawang mata ko na doon siya galing sa bahay ng Separ a Family.

Q:

How long have y ou known the Separa Family, if you know them?

A:

Abo ut two years, sir.

Q:

How about this Edna, the one you just pointed (to) awhile ago? Do you know her prior to January 2, 20 01?

A:

Yes, sir. I knew(sic) her for two years.

Court: Why?

Witness: Madalas ko po siyang maging pasahero ng aking pedicab.

Pros. Rebagay: How abo ut the Separa family? Why do you know them?

A:

They were the employers of Edna, sir.

Q:

You said you saw Edna coming out from the house of the Separa Family. What happened when you saw Edna coming o ut from the house of the Separa Family?

People vs Malngan

A:

Wala pa pong ano yan naisakay ko na siya sa sidecar.

Q:

And what did y ou observe from Edna when you saw her coming out from the house of the Separa family?

A:

Nagmamadali po siyang lumakad at palinga - linga.

x x x x

Q:

After she boarded your pedicab, what happened, if any?

A:

Nagpahatid po siya sa akin .

Q:

Where?

A:

To Nipa Street, sir.

Q:

Did you bring her to Nipa Street as she requested?

A:

Yes, sir.

x x x x

Q:

You said that y ou brought her to Nipa Street. What happened when you go (sic) there at Nipa Street, if any?

A:

Nagpahinto po siya doon ng saglit, mga tatlong minuto po.

People vs Malngan

Q:

What did she do when she asked (you) to stop there for three minutes?

A:

After three minutes she requested m e to bring her direct ly to Balasan Street, sir.

x x x x

Q:

What happened after that?

A:

When we arrived there, she alighted and pay (sic) P5.00, sir.

And then what transpired after she alighted from your pedicab?

Witness: I went home and I looked for another passenger, sir.

Pros. Rebagay: After that, what happened when you were on you way to your house to look for passengers?

Nakita ko na nga po na pagdating ko sa Moderna, naglalagablab na apoy.

Q:

From what place was that fire coming out?

A:

From the house of Roberto Separa Family, sir.

x x x x

People vs Malngan Pros. Rebagay: After you noticed that there was a fire from the house of Roberto Separa Family, what did you do if any ?

A:

Siyempre po, isang Barangay Tanod po ako, nagresponde na po kami sa sunog. Binuksan na po ng Chairman naming yung tangke, binomba na po naming yung apoy ng tubig.

Q:

After that incident, Mr. Witness, hav e you seen Edna Again (sic).

A:

No, sir.

Pros. Rebagay: And after that incident, did you come to know if Edna was apprehended or not?

x x x x

A:

I was called by our Barangay Chairman in order to identify Edna, sir.

x x x x[10]

Remigio Bernardo, Barangay Chairman of the area where the fire occurred, stated:
Pros. Rebagay:

On January 2, 2001, do you recall if there is a fire that occurred somewhere in your area of jurisdiction, particularly Moderna Street?

People vs Malngan A: Yes, sir.

Q:

Now, where were you when this incident happened?

A:

Kasi ugali ko na po tuwing umagang -umaga po ako na pupunta sa barangay Hall mga siguro 6:00 or 5:00 o clock, me sumigaw ng suno g nirespondehan namin iyong sunog eh me dala kaming fire.

Court: You just answer the question. Where were you when this incident happened?

Witness: I was at the Barangay Hall, Your Hono r.

Pros. Rebagay: And you said that there was a fire that occurred, what did you do?

Witness: Iyon nga nagresponde kami doon sa sunog eh nakita ko iyong sunog mukha talagang arson dahil napakalaki kaagad, meron pong mga tipong Iyong namatay po contractor po iyon eh kaya siguro napakaraming kalat ng mga pintura, mga container, kaya hindi po naminnaapula kaagad iyong apoy, nasunog ultimo iyong fire tank namin sa lakas , sir.

Pros. Rebagay: Now, will you please tell us where this fire occurred?

A:

At the house of the six victims, sir.

Q:

Whose house is that?

People vs Malngan

A:

The house of the victims, sir.

x x x x

Pros. Rebagay: You said that you responded to the place, what transpired after you responded to the place?

A:

Iyon nga po ang nagsabi may lumabas na isang babae po noon sa bahay na nagmamadali habang may sunog, me isang barangay tanod po akong nagsabi may humahangos na isang babae na may dalang bag papunta po r oon palabas ng sasakyan, sir.

Q:

And so what happened?

A:

Siyempre hindi naman ako nagtanong kung sino ngayon may dumating galing na sa bahay naming, may tumawag, tumawag po si Konsehala Alfonso na may isang babae na hindi mapakali doon sa Calle Pedro Alfonso, ke konsehal na baka ito sabi niya iyong ganito ganoon nirespondehan ko po, sir.

Q:

Where did you respond?

A:

At Balasan, sir, but its not the area of my jurisdiction.

x x x x

Q:

What happened when you reached that place?

A:

Siya po ang nahuli ko doon, sir.

People vs Malngan

Court: Witness pointing to accused Edna Malngan.

Pros. Rebagay: And what happened?

A:

I brought her to the barangay hall, sir.

Q:

And what happened at the barangay hall?

A:

Inembestigahan ko, kinuha naming iyong bag niya, me lighter siya eh. Inamin niya po sa amin na kaya niya sinunog hindi siya pinasasahod ng more or less isang taon na eh. Ngayon sabi ko bakit eh gusto ko ng umuwi ng probinsya ang sabi sa akin ng amo ko sumakay na lang daw po ako ng walis tingting par a makauwi, sir .

Atty. Herman: We would like to object, Your Ho nor on the ground that that is hearsay.

Pros. Rebagay: That is not a hearsay statement, Your Honor, straight from the mouth of the accused.

Atty. Herman: Its not under the exemption under the Rules of Court, Your Honor. He is testifying according to what he has heard.

Court: Thats part of the narration. Whether it is true or not, thats ano ther matter. Let it remain.

People vs Malngan

Pros. Rebagay: Now, who were present when the accused are telling you this?

A:

Iyon nga iyong mga tanod ko, mamamayan doon nakapaligid, siyempre may sunog nagkakagulo, gusto nga siyang kunin ng mga mamamayan para saktan hindi ko maibigay papatayin siya gawa ng may namatay eh anim na tao an d namatay, kaya iyong mga tao kinokontrol siya madidisgrasya siya dahil pin pointed po siya, Your Honor, iyong dami na iyon libo iyong nakapaligid doon sa barangay hall napakahir ap awatin. Gustong-gusto siyang kunin ng mga taongbayan, nagalit dahil ang da ming bahay hong nasunog. [ 1 1 ]

For her part, Mercedita Mendoza, one of the neighbors of the Separa Family and whose house was one of those destroyed by the fire, recounted:
Pros. Rebagay: Madam Witness, on January 2, 2001, do you recall where were you residing then?

A:

Yes, sir.

Q:

Where were you residing at?

A:

At No. 170 Moderna St., Balut, Tondo, Manila, sir.

Q:

Why did you transfer your residence? Awhile ago you testified that you are no w residing at 147 Moderna St., Balut, Tondo, Manila?

A:

Because our house was burned, sir.

Q:

More or less, ho w much did the loss incurred on the burning of your house (sic)?

People vs Malngan

A:

More or less, P1 00,000.00, sir

Q:

Do you know the accused in this case Edna Malngan?

A:

Yes, sir.

Q:

Why do you kno w her?

A:

She is the house helper of the family who were (sic) burned, sir.

Q:

What family?

A:

Cifara (sic) family, sir.

Q:

Who in particular do you know among Cifara (sic) family?

A:

The woman, sir.

Q:

What is the name?

A:

Virginia Mendo za Cifara (sic), sir.

Q:

Are you related to Virginia M endo za Cifara (sic)?

A:

My husband, sir.

Q:

What is the relationship of your husband to the late Virginia Mendoza Cifara (sic)?

People vs Malngan

A:

They were first cousins, sir.

Q:

How far is your house from the house of the Cifara (sic) family?

A:

Magkadikit lang po. Pader lang ang pagitan.

Q:

You said that Edna Malngan was working with the Cifara (sic) family. What is the work of Edna Malngan?

A:

Nangangamuhan po . House helper, sir.

Q:

How long do you know Edna Malngan as house helper of the Cifara (sic) family?

A:

I cannot estimate but she stayed there for three to four years, sir.

Q:

Do you know who caused the burning of the house of the Cifara (sic) family?

Witness: Edna Malngan, sir.

Pros. Rebagay: Why do you know that it was Edna Malngan who burned the house of the Cifara (sic) family?

A:

When the fire incident happened, sir, on January 3, we went to San L azaro Fire Station and I saw Edna Malngan detained there, sir.

People vs Malngan Q: And so what is your basis in pointing to Edna Malngan as the culprit or the one who burned the ho use of the Cifara (sic) family?

A:

I talked to her when we went there at that day, sir.

Q:

What transpired then?

A:

I talked to her and I told her, Edna, bakit mo naman ginawa yung ganun?

Q:

And what was the answer of Edna?

A:

She answered, Kasi pag nagpapaalam ako sa kanyang umuwi ng probinsya, nagpapaalam po siyang umuwi ng probinsya ang sinasabi daw po sa kanya ni Baby Cifara (sic) na , (sic) Sige umuwi ka, pagdating mo maputi ka na. S umakay ka sa walis pagdating mo maputi ka na.

Pros. Rebagay: What is the basis there that she was the one who burned the house of the Cifara (sic) family?

A:

I also asked her, Paano mo ginawa yung sunog? She told me, Naglukot ako ng maraming diyaryo, sinindihan ko ng disposable lighter at hinagis niya sa ibabaw ng lamesa sa loob ng bahay. (sic) [ 1 2 ]

Lastly, the prosecution presented Rodolfo Movilla, owner of the house situated beside that of the Separa family. He testified that his house was also gutted by the fire that killed the Separa family and that he tried to help said victims but to no avail.

People vs Malngan

The prosecution presented other documentary evidence [ 1 3 ] and thereafter rested its case.

When it came time for the defense to present exculpatory evidence, instead of doing so, accused-appellant filed a Motion to Admit Demurrer to Evidence [ 1 4 ] and the corresponding Demurrer to Evidence [ 1 5 ] with the former expressly stating that said Demurrer to Evidence was being filed x x x without express leave of court x x x . [ 1 6 ]

In her Demurrer to Evidence , accused- appellant asserts that the prosecutions evidence was insufficient to prove her guilt beyond reasonable doubt for the following reasons: [ 1 7 ] (a) that she is charged with crime not defined and penalized by law; (b) that circumstantial evidence was insufficient to prove her guilt beyond reasonable doubt; and (c) that the testimonies given by t he witnesses of the prosecution were hearsay, thus, inadmissible in evidence against her.

The prosecution filed appellants Demurrer to Evidence .

its Comment/Opposition to

accused-

People vs Malngan

On 13 October 2003, acting on the Demurrer to Evidence, the RTC promulgated its Judgment [ 1 8 ] wherein it proceeded to resolve the subject case based on the evidence of the prosecution. The RTC considered ac cusedappellant to have waived her right to present evidence, having filed the Demurrer to Evidence without leave of court. In finding accused-appellant Edna guilty beyond reasonable doubt of the crime of Arson with Multiple Homicide, the RTC ruled that:
The first argument of the accused that she is charged with an act not defined and penalized by law is without merit. x x x the caption which charges the accused with the crime of Arson with Multiple Homicide is merely descriptive of the charge of Arson that resulted to Multiple Homicide. The fact is that the accused is charged with Arson which resulted to Multiple Homicide (death of victims) and that charge is embodied and stated in the body of the information. What is controlling is the allegation in th e body of the Information and not the title or caption thereof. x x x.
x x x x

The second and third arguments will be discussed jointly as they are interrelated with each other. x x x.

x x x x

[W]hile there is no direct evidence that points to the accused in the act of burning the house or actually starting the subject fire, the following circumstances that show that the accused intentionally caused or was responsible for the subject fire have been duly established:

1. that immediately befor e the burning of the house, the accused hurriedly and with head turning in different directions (palinga -linga) went out of the said house and rode a pedicab apparently not knowing where to go x x x;

People vs Malngan 2. that immediately after the fire, upon a report that there was a woman in Balasan St. who appears confused and apprehensive (balisa), the Barangay Chairman and his tano ds went there, found the accused and apprehended her and brought her to the barangay hall as shown by the testimony of Barangay C hairman Remigio Bernardo; and

3. that when she was apprehended and investigated by the barangay officials and when her bag was opened, the same contained a disposable lighter as likewise shown by the testimo ny of the Barangay Chairman.

[T]he timi ng of her hurried departure and nervous demeanor immediately before the fire when she left the house and rode a pedicab and her same demeanor, physical and mental condition when found and apprehended at the same place where she alighted from the pedicab and the discovery of the lighter in her bag thereafter when investigated indisputably show her guilt as charged.

If there is any doubt of her guilt that remains with the circumstantial evidence against her, the same is removed or obliterated with the confessions/admissions of the commission of the offense and the manner thereof that she made to the prosecution witnesses Barangay Chairman Remigio Bernardo, Mercedita Mendoza and to the media, respectively .

x x x x

[H]er confessions/admissio ns are positive acknowledgment of guilt of the crime and appear to have been voluntarily and intelligently given. These confessions/admissions, especially the one given to her neighbor Mercedita Mendo za and the media, albeit uncounselled and made while she was already under the custo dy of authorities, it is believed, are not violative of her right under the Constitution.

The decretal part of the RTCs Judgment reads:

WHEREFORE, the Demurrer to Evidence is hereby denied and judgment is hereby rendered finding the accused EDNA M ALNGAN Y MAYO guilty beyond reaso nable doubt of the crime of Arson with Multiple Homicide or Arson resulting to the death of six (6 ) people and sentencing her to suffer the m andatory penalty of death, and ordering her to pay the heirs of the victims Ro berto Separa, Sr. and Virginia Separa and childre n

People vs Malngan Michael, Daphne, Priscilla and Roberto, Jr., the amount of Fifty Thousand (P50,000.00) Pesos for each victim and the amount of One Hundred Thousand (P100,000.00) Pesos as temperate damages for their burned house or a total of Fo ur Hundred Thousand (P400,000.00) Pesos and to Rodolfo Movilla the amount of One Hundred [Thousand] (P100,000.00) Pesos.

Due to the death penalty imposed by the RTC, the case was directly elevated to this Court for automatic review. Conformably with our decision in People v. Efren Mateo y Garcia, [ 1 9] however, we referred the case and its records to the CA for appropriate action and disposition. On 2 September 2005, the Court of Appeals affirmed with modification the decision of the RTC, the fallo of which reads:
WHEREFORE, premises considered, the assailed October 13, 2003 Judgment of the Regional Trial Court of Manila, Branch 41, finding accused -appellant Edna Malngan y Mayo guilt y beyond reasonable doubt of Arson with multiple homicide and sentencing her to suffer the DEATH PENALTY is hereby AFFIRMED with MODIFICATION in that she is further ordered to pay P50,000.00 as moral damages and another P50,000.00 as exemplary damages for each of the victims who perished in the fire, to be paid to their heirs. She is ordered to pay Rodolfo Movilla, one whose house was also burned, the sum of P50,000.00 as exemplary damage. Pursuant to Section 13 (a), Rule 124 of the 2000 Rules of Criminal Procedure as amended by A.M. No. 00 -5-03-SC dated September 28, 2004, which became effective on October 15, 2004, the Court of Appeals, after rendering judgment, hereby refrains from making an entry of judgment and forthwith certifies the case and elevates the entire record of this case to the Supreme Court for review. [ 2 0 ]

It is the contention of accused -appellant that the evidence presented by the prosecution is not sufficient to establish her guilt beyond reasonable doubt as the perpetrator of the crime charged. In support of said exculpatory proposition, she assigns the following errors [ 2 1 ] :

I.

People vs Malngan THE HONORABLE COURT ERRED IN RULING THAT THE CIRCUMSTANTIAL EVIDENCE PRESENTED BY THE PROSECUTION IS SUFFICIENT TO CONVICT THE ACCUSED; and

II.

THE HONORABLE COURT ERRED IN ALLOWING AND GIVING CRED ENCE TO THE HEARSAY EVIDENCE AND UNCOUNSELLED ADMISSIONS ALLEGEDLY GIVEN BY THE ACCUSED TO THE WITNESSES BARANGAY CHAIRMAN REMIGIO BERNARDO, MERCEDITA MENDOZA AND THE MEDIA.

THERE IS NO COMPLEX CRIME OF ARSON WITH (MULTIPLE ) HOMICIDE .

The Information in this case erroneously charged accused -appellant with a complex crime , i.e. , Arson with Multiple Homicide . Presently, there are two (2) laws that govern the crime of arson where death results therefrom Article 320 of the Revised Penal Code (RPC), as amended by Republic Act (RA) No. 7659, [ 2 2 ] and Section 5 of Presidential Decree (PD) No. 1613 [ 2 3 ] , quoted hereunder, to wit:

Revised Penal Code:

ART. 320. Destructive Arson. x x x x If as a consequence of the commission of any of the acts penalized under this Article, death results , the mandatory penalty of death shall be imposed. [Emphasis supplied.]

Presidential Decree No. 1613:

People vs Malngan SEC. 5. Where Death Results from Arson. If by reason of or on the occasion of the arson death results , the penalty of reclusion perpetua to death shall be imposed . [Emphasis supplied.]

Art. 320 of the RPC, as amended , with respect to destructive arson, and the provisions of PD No. 1613 respecting other cases of arson provide only one penalty for the commission of arson, whether considered destructive or otherwise, where death results therefrom . The raison d'tre is that arson is itself the end and death is simply the consequence. [ 2 4 ]

Whether the crime of arson will absorb the resultant death or will have to be a separate crime altogether, the joint discussion [ 2 5 ] of the late Mr. Chief Justice Ramon C. Aquino and Mme. Justice Carolina C. Grio-Aquino, on the subject of the crimes of arson and murder/homicide, is highly instructive:

Groizard says that when fire is used with the intent to kill a particular person who may be in a house and that objective is attained by burning the house, the crime is murder o nly. When the Penal Code declares that killing committed by means of fire is murder, it intends that fire sho uld be purpo sely ado pted as a means to that end. There can be no murder without a design to tak e life. [ 2 6 ] In other words, if the main object of the offender is to kill by means of fire, the offense is murder. But if the main objectiv e is the burning of the building, the resulting homicide may be absorbed by the crime of arson. [ 2 7 ]

x x x x

If the house was set on fire af ter the victims therein were killed, fire would not be a qualifying circumstance. The accused would be liable for the separate offenses o f murder or homicide, as the case may be, and arson. [ 2 8 ]

People vs Malngan

Accordingly, in cases where both burning and death occur, in order to determine what crime/crimes was/were perpetrated whether arson, murder or arson and homicide/murder, it is de rigueur to ascertain the main objective of the malefactor: (a) if the main objective is the burning of the building or edifice, but death results by reason or on the occasion of arson, the crime is simply arson, and the resulting homicide is absorbed; (b) if, on the other hand, the main objective is to kill a particular person who may be in a building or edifice, when fire is resorted to as the means to accomplish such goal the crime committed is murder only; lastly, (c) if the objective is, likewise, to kill a partic ular person, and in fact the offender has already done so, but fire is resorted to as a means to cover up the killing, then there are two separate and distinct crimes committed homicide/murder and arson .

Where then does this case fall under?

From a reading of the body of the Information:

That on or about January 2, 2001, in the Cit y of Manila, Philippines, the said accused, with intent to cause damage , did then and there willfull y, unlawfully, feloniousl y and deliberately set fire upon the two -storey residential house of ROBERTO SEPARA and famil y mostl y made of wooden materials located at No. 172 Moderna St., Balut, Tondo, this cit y, by lighting crumpled newspaper with the use of disposable lighter inside said house knowing the same to be an inhabited house and situated in a thickl y populated place and as a consequence thereof a conflagration ensued and the said building, together with some seven (7) adjoining residential houses, were razed by fire; that by reason and on the occasion of the said fire , the following, namel y, 1. 2. 3. 4. 5. 6. Roberto Separa, Sr., 45 years of age Virginia Separa y Mendoza, 40 years of age Michael Separa, 24 years of age Daphne Separa, 18 years of age Priscilla Separa, 14 years of age Roberto Separa, Jr., 11 years of age

sustained burn injuries which were the direct cause of their death immediately thereafter. [ 2 9 ] [Emphasis supplied.]

People vs Malngan

accused-appellant is being charged with the crime of arson. It it is clear from the foregoing that her intent was merely to destroy her employers house through the use of fire.

We now go to the issues raised. Under the first assignment of e rror, in asserting the insufficiency of the prosecutions evidence to establish her guilt beyond reasonable doubt, accused-appellant argues that the prosecution was only able to adduce circumstantial evidence hardly enough to prove her guilt beyond reasonable doubt. She ratiocinates that the following circumstances:

1.

That immediately before the burning of the house , the accused hurriedly and with head turning in different directions (palinga -linga) went out of the said house and rode a pedicab apparently not knowing where to go for she first requested to be brought to Nipa St. but upon reaching there requested again to be bro ught to Balasan St. as shown by the testimony of prosecution witness Rolando Gruta;

2.

That immediately after the fire, upon a report that there was a woman in Balasan St. who appears confused and apprehensive ( balisa ), the Barangay Chairman and his tanods went there, found the accused and apprehended her an d brought her to the barangay hall as s hown by the testimony of Barangay Chairman Remigio Bernardo; and

3.

That when she was apprehended and investigated by the barangay officials and when her bag was opened, the same co ntained a disposable lighter as likewise shown by the testimo ny of the Barangay Chairman. [ 3 0 ]

fall short of proving that she had any involvement in setting her employers house on fire, much less show guilt beyond reasonable doubt, given that it is a fact that housemaids are the first persons in the house to wake up early to perform routine chores for their employers, [ 3 1 ] one of which is preparing and cooking the morning meal for the members of the household; and necessity requires her to go out early to look for open stores or even nearby marketplaces to buy things that will complete the early meal for the day. [ 3 2 ] She then concludes that it was normal for her to have been seen going out of her employers house in a hurry at that time of

People vs Malngan

the day and to look at all directions to insure that the house is secure and that there are no other persons in the vicinity. [ 3 3 ]

We are far from persuaded.

True, by the nature of their jobs, housemaids are required to start the day early; however, contrary to said assertion, the actuations and the demeanor of accused-appellant on that fateful early morning as observed firsthand by Rolando Gruta, one of the witnesses of the prosecution, belie her claim of normalcy, to wit:

Q:

You said you saw Edna coming out from the house of the Separa Family. What happened when you saw Edna coming o ut from the house of the Separ a Family?

A:

Wala pa pong ano yan naisakay ko na siya sa sidecar .

Q:

And what did y ou observe from Edna when you saw her coming out from the house of the Separa family?

A:

Nagmamadali po siyang lumakad at palinga -linga .

x x x x

Q:

After she boarded your pedicab, what happened, if any?

A:

Nagpahatid po siya sa akin .

Q:

Where?

A:

To Nipa Street, sir.

People vs Malngan

Q:

Did you bring her to Nipa Street as she requested?

A:

Yes, sir.

x x x x

Q:

You said that y ou brought her to Nipa Street. What happened when you go (sic) there at Nipa Street, if any?

A:

Nagpahinto po siya doon ng saglit, mga tatlong minuto po .

Q:

What did she do when she asked (you) to stop there for three minutes ?

A:

After three minutes she requested m e to bring her directly to Balasan Street, sir.

x x x x

We quote with approval the pronouncement of the RTC in discrediting accused- appellants aforementioned rationale:

[O]bv iously it is never normal, common or ordinary to leave the house in such a disturbed, nervous and agitated manner, demeanor and condition. The timing of her hurried departure and nervous demeanor immediately before the fire when she left the house and rode a pedicab and her same de meanor, physical and mental condition when found and apprehended at the same place where she alighted from the pedicab and the discovery of the lighter in her bag thereafter when investigated indisputably show her guilt as charged. [ 3 4 ]

People vs Malngan

All the witnesses are in accord that accused - appellants agitated appearance was out of the ordinary. Remarkably, she has never deni ed this observation.

We give great weight to the findings of the RTC and so accord credence to the testimonies of the prosecution witnesses as it had the opportunity to observe them directly. The credibility given by trial courts to prosecution witness es is an important aspect of evidence which appellate courts can rely on because of its unique opportunity to observe them, particularly their demeanor, conduct, and attitude, during the direct and cross -examination by counsels. Here, Remigio Bernardo, Rolando Gruta and Mercedita Mendoza are disinterested witnesses and there is not an iota of evidence in the records to indicate that they are suborned witnesses. The records of the RTC even show that Remigio Bernardo, the Barangay Chairman, kept accused-appellant from being mauled by the angry crowd outside of the barangay hall:
Pros. Rebagay: Now, who were present when the accused are (sic) telling you this?

A:

Iyon nga iyong mga tanod ko, mamamayan doon nakapaligid, siyempre may sunog n agkakagulo, gusto nga siyang kunin ng mga mamamayan para saktan hindi ko maibigay papatayin siya gawa ng may namatay eh anim na tao and namatay, kaya iyong mga tao kinokontrol siya madidisgrasya siya dahil pin pointed po siya, Your Honor, iyong dami na iyo n libo iyong nakapaligid doon sa barangay hall napakahirap awatin. Gusting -gusto siyang kunin ng mga taong bayan, nagalit dahil ang daming bahay hong nasunog . [ 3 5 ]

Accused-appellant has not shown any compelling reason why the witnesses presented would openly, publicly and deliberately lie or concoct a story, to send an innocent person to jail all the while knowing that the real malefactor remains at large. Such proposition defies logic. And where the defense failed to show any

People vs Malngan

evil or improper motive on the part of the prosecution witnesses, the presumption is that their testimonies are true and thus entitled to full faith and credence. [ 3 6 ] While the prosecution witnesses did not see accused -appellant actually starting the fire that burned several houses and killed the Separa family, her guilt may still be established through circumstantial evidence provided that: (1) there is more than one circumstance; (2) the facts from which the inferences are derived are proven; and, (3) the combination of all the circumstances is s uch as to produce conviction beyond reasonable doubt. [ 3 7 ]

Circumstantial evidence is that evidence which proves a fact or series of facts from which the facts in issue may be established by inference. [ 3 8 ] It is founded on experience and observed facts and coincidences establishi ng a connection between the known and proven facts and the facts sought to be proved. [ 3 9 ] In order to bring about a conviction, the circumst antial evidence presented must constitute an unbroken chain, which leads to one fair and reasonable conclusion pointing to the accused, to the exclusion of others, as the guilty person. [ 4 0 ]

In this case, the interlocking testimonies of the prosecution witnesses, taken together, exemplify a case where conviction can be upheld on the basis of circumstantial evidence. First, prosecution witness Rolando Gruta, the driver of the pedicab that accused-appellant rode on, testified that he knew for a fact that she worked as a housemaid of the victims, and that he positively identified her as the person hurriedly leaving the house of the victims on 2 January 2001 at 4:45 a.m., and acting in a nervous manner. That while riding on the pedicab, accusedappellant was unsure of her intended destination. Upon reaching the place where he originally picked up accused-appellant only a few minutes after dropping her off, Rolando Gruta saw the Separas house being gutted by a blazing fire. Second, Remigio Bernardo testified that he and his tanods , including Rolando Gruta, were the ones who picked up accused -appellant Edna at Balasan Street (where Rolando Gruta dropped her off) after receiving a call that there was a woman acting strangely at said street and who appeared to have nowhere to go. Third, SPO4 Danilo Talusan overheard accused-appellant admit to Carmelita Valdez, a reporter of Channel 2 (ABS -CBN) that said accused-appellant started the fire, plus the fact that he was able see the telecast of Gus Abelgas show where accused-appellant, while being interviewed, confessed to the crime as

People vs Malngan

well. The foregoing testimonies juxtaposed with the testimony of Mercedita Mendoza validating the fact that accused-appellant confessed to having started the fire which killed the Separa family as well as burned seven houses including that of the victims, convincingly form an unbroken chain, which leads to the unassailable conclusion pinpointing accused-appellant as the person behind the crime of simple arson.

In her second assigned error, accused -appellant questions the admissibility of her uncounselled extrajudicial confession given to prosecution witnesses, namely Remigio Bernardo, Mercedita Mendoza, and to the media. Accused -appellant Edna contends that being uncounselled extrajudicial confession, her admissions to having committed the crime charged should have been excluded in evidence against her for being violative of Article III, Section 12(1) of the Constitution.

Particularly, she takes exception to the testimony of prosecution witnesses Remigio Bernardo and Mercedita Mendoza for being hearsay and in the nature of an uncounselled admission.

With the above vital pieces of evidence excluded, accused -appellant is of the position that the remaining proof of her alleged guilt, consisting in the main of circumstantial evidence, is inadequate to establish her guilt beyond reasonable doubt.

We partly disagree.

Article III, Section 12 of the Constitution in part provides:

(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.

People vs Malngan

x x x x

(3) Any confession or admission obtained in violation of this Section or Section 17 hereof shall be inadmissible in evidence.

We have held that the abovequoted provision applies to the stage of custodial investigation when the investigation is no longer a general inquiry into an unsolved crime but starts to focus on a particular person as a suspect. [ 4 1 ] Said constitutional guarantee has also been extended to situations in which an individual has not been formally arrested but has merely been invited for questioning. [ 4 2 ]

To be admissible in evidence against an accused, the extraju dicial confessions made must satisfy the following requirements:

(1) (2) (3) (4)

it must be voluntary; it must be made with the assistance of competent and independent counsel; it must be express; and it must be in writing.
[43]

Arguably , the barangay tanods, including the Barangay Chairman, in this particular instance, may be deemed as law enforcement officer for purposes of applying Article III, Section 12(1) and (3), of the Constitution. When accused appellant was brought to the barangay hall in the morning of 2 January 2001, she was already a suspect, actually the only one, in the fire that destroyed several houses as well as killed the whole family of Roberto Separa, Sr. She was, therefore, already under custodial investigation and the rights guaranteed by Article III, Section 12(1), of the Constitution should have already been observed or applied to her. Accused- appellants confession to Barangay Chairman Remigio

People vs Malngan

Bernardo was made in response to the interrogation made by the latter admittedly conducted without first informing accused -appellant of her rights under the Constitution or done in the presence o f counsel. For this reason, the confession of accused-appellant, given to Barangay Chairman Remigio Bernardo, as well as the lighter found by the latter in her bag are inadmissible in evidence against her as such were obtained in violation of her constitu tional rights.

Be that as it may, the inadmissibility of accused - appellants confession to Barangay Chairman Remigio Bernardo and the lighter as evidence do not automatically lead to her acquittal. It should well be recalled that the constitutional safeguards during custodial investigations do not apply to those not elicited through questioning by the police or their agents but given in an ordinary manner whereby the accused verbally admits to having committed the offense as what happened in the case at bar when accused-appellant admitted to Mercedita Mendoza, one of the neighbors of Roberto Separa, Sr., to having started the fire in the Separas house. The testimony of Mercedita Mendoza recounting said admission is, unfortunately for accused -appellant, admissible in evidence against her and is not covered by the aforesaid constitutional guarantee. Article III of the Constitution, or the Bill of Rights, solely governs the relationship between the individual on one hand and the State (and its agents) on t he other; it does not concern itself with the relation between a private individual and another private individual as both accused-appellant and prosecution [44] witness Mercedita Mendoza undoubtedly are. Here, there is no evidence on record to show that said witness was acting under police authority, so appropriately, accused- appellants uncounselledextrajudicial confession to said witness was properly admitted by the RTC.

Accused-appellant likewise assails the admission of the testimony of SPO4 Danilo Talusan. Contending that *w+hen SPO4 DaniloTalusan testified in court, his story is more of events, which are not within his personal knowledge but based from accounts of witnesses who derived information allegedly from the accused or some other persons x x x . In other words, she objects to the testimony for being merely hearsay. With this imputation of inadmissibility, we agree with what the Court of Appeals had to say:

People vs Malngan Although this testimony of SFO4 Danilo Talusan is hearsay because he was not present when Gus Abelgas interv iewed accused -appellant ED NA, it may nevertheless be admitted in ev idence as an independently relevant statement to establish not the truth but the tenor of the statement or the fact that the statement was made [People v. Mallari, G.R. No. 1 03547, July 20, 1999, 310 SCRA 621 citing People v. Cusi, Jr., G.R. No. L-20986, August 1 4, 1965, 14 SCRA 944.]. In People vs. Velasquez , G.R. Nos. 132635 & 143872-75, February 21, 2001, 352 SCRA 455, the Supreme Court ruled that: Under the doctrine of independently relevant statements, regardless of their truth or falsity, the fact that such statements have been made is relevant. The hearsay rule does not apply, and the statements are admissible as evidence. Evidence as to the making of such statement is no t secondary but primary, for the statement itself may constitute a fact in issue or be circumstantially relevant a s to the existence of such a fact. [ 4 5 ]

As regards the confession given by accused -appellant to the media, we need not discuss it further for the reporters were never presented to testify in court.

As a final attempt at exculpation, accused -appellant asserts that since the identities of the burned bodies were never conclusively established, she cannot be responsible for their deaths.

Such assertion is bereft of merit.

In the crime of arson, the identities of the victims are immaterial in that intent to kill them particularly is not one of the elements of the crime. As we have clarified earlier, the killing of a person is absorbed in t he charge of arson, simple or destructive. The prosecution need only prove, that the burning was intentional and that what was intentionally burned is an inhabited house or dwelling. Again, in the case of People v. Soriano, [ 4 6 ] we explained that:

Although intent may be an ingredient of the crime of Arson , it may inferred from the acts of the accused. There is a presumption that one intends natural consequences of his act; and when it is shown that one has deliberatel y fire to a building, the prosecution is not bound to produce further evidence of wrongful intent. [ 4 7 ]

be the set his

People vs Malngan

The ultimate query now is which kind of arson is accused -appellant guilty of? As previously discussed, there are two (2) categories of the crime of arson: 1) destructive arson , under Art. 320 of the Revised Penal Code, as amended by Republic Act No. 7659; and 2) simple arson , under Presidential Decree No. 1613. Said classification is based on the kind, character and location of the property burned, regardless of the value of the damage caused, [ 4 8 ] to wit:
Article 320 of The Revised Penal Code , as amended by RA 7659, contemplates the malicious burning of structures, both public and private, hotels, buildings, edifices, trains, vessels, aircraft, factories and other military, government or commercial establishments by any person or group of persons .[ [ 4 9 ] ] The classification of this t ype of crime is known as Destructive Arson , which is punishable by reclusion perpetua to death. The reason f or the law is self-evident: to effectivel y discourage and deter the commission of this dastardl y crime, to prevent the destruction of properties and protect the lives of innocent people. Exposure to a brewing conflagration leaves onl y destruction and despair in its wake; hence, the State mandates greater retribution to authors of this heinous crime . The exceptionall y severe punishment imposed for this crime takes into consideration the extreme danger to human lives exposed by the malicious burning of these structures; the danger to property resulting from the conflagration; the fact that it is normall y difficult to adopt precautions against its commission, and the difficult y in pinpointing the perpetrators; and, the greater impact on the social, economic, se curit y and political fabric of the nation. [Emphasis supplied.] If as a consequence of the commission of any of the acts penalized under Art. 320, death should result, the mandatory penalt y of death shall be imposed. On the other hand, PD 1613 which repeal ed Arts. 321 to 326 -B of The Revised Penal Code remains the governing law for Simple Arson . This decree contemplates the malicious burning of public and private structures, regardless of size, not included in Art. 320, as amended by RA 7659, and classified as other cases of arson. These include houses, dwellings , government buildings, farms, mills, plantations, railways, bus stations, airports, wharves and other industrial establishments .[ [ 5 0 ] ] Although the purpose of the law on Simple Arson is to prevent the high incidence of fires and other crimes involving destruction, protect the national economy and preserve the social, economic and political stabilit y of the nation, PD 1613 tempers the penalt y to be meted to offenders. This separate classification of Simple Arson recognizes the need to lessen the severit y of punishment commensurate to the act or acts committed, depending on the particular f acts and circumstances of each case. [Emphasis supplied.]

People vs Malngan

To emphasize:
The nature of Destructive Arson is distinguished from Simple Arson by the degree of perversity or viciousness of the criminal offender. The acts co mmitted under Art. 32 0 of the Revised Penal Code (as amended) constituting Destructive Arson are characterized as heinous crimes for being grievous, odious and hateful offenses and which, by reason of their inherent or manifest wickedness, viciousness, atrocity and perversity are repug nant and outrageous to the common standards and norms o f decency and morality in a just, civilized and ordered society. [ 5 1 ] On the other hand , acts committed under PD 1613 constituting Simple Arson are crimes with a lesser degree of perversity and v iciousness that the law punishes with a lesser penalty. In other words, Simple Arson co ntemplates crimes with less significant social, economic, pol itical and national security im plications than Destructive Arson. However, acts falling under Simple Arso n may nev ertheless be co nverted into Destructive Arson depending on the qualifying circumstances present. [Emphasis supplied.] [ 5 2 ]

Prescinding from the above clarification vis--vis the description of the crime as stated in the accusatory portion of the Information, it is quite evident that accused-appellant was charged with the crime of Simple Arson for having deliberately set fire upon the two-storey residential house of ROBERTO SEPARA and family x x x knowing the same to be an inhabited house and situated in a thickly populated place and as a consequence thereof a conflagration ensued and the said building, together with some seven (7) adjoining residential houses, were razed by fire . *Emphasis supplied.+ The facts of the case at bar is somewhat similar to the facts of the case of People v. Soriano . [ 5 3 ] The accused in the latter case caused the burning of a particular house. Unfortunately, the blaze spread and gutted down five (5) neighboring houses. The RTC therein found the accused guilty of destructive arson under paragraph 1 [ 5 4 ] of Art. 320 of the Revised Penal Code, as amended by Republic Act No. 7659. This Court, through Mr. Justice Bellosillo, however, declared that:
x x x [T]he applicable provision of law should be Sec. 3, par. 2, of PD 1613, which imposes a penalty of reclusion temporal to reclusion perpetua for other cases of arso n as the properties burned by accused -appellant are specifically described as ho uses,

People vs Malngan contemplating inhabited houses or dwellings under the aforesaid law. The descriptio ns as alleged in the second Amended Info rmation particularly refer to the structures as houses rather than as buildings or edifices. The applicable law should therefore be Sec. 3, Par. 2, of PD 1613, and not Art. 320, par. 1 of the Penal Code. In case of ambiguity in construction of penal laws, it is well-settled that such laws shall be construed strictly against the government, and liberally in fav or of the accused. The elements of arson under Sec. 3, par. 2, of PD 1613 are: (a) there is intentional burning; and (b) what is intentionally burne d is an inhabited house or dwelling. Incidentally, these elements co ncur in the case at bar. [ 5 5 ]

As stated in the body of the Information , accused-appellant was charged with having intentionally burned the two-storey residential house of Robert Separa. Said conflagration likewise spread and destroyed seven (7) adjoining houses . Consequently, if proved, as it was proved, at the trial, she may be convicted, and sentenced accordingly, of the crime of simple arson . Such is the case notwithstanding the error in the designation of the offense in the information, the information remains effective insofar as it states the facts constituting the crime alleged therein. [ 56 ] What is controlling is not the title of the complaint, nor the designation of the offense charged or the partic ular law or part thereof allegedly violate, x x x, but the description of the crime charged and the particular facts therein recited. [ 5 7] There is, thus, a need to modify the penalty imposed by the RTC as Sec. 5 of PD No. 1613 categorically provides that the penalty to be imposed for simple arson is:
SEC. 5. Where Death Results from Arson. - If by reason of or on the occasion of arson d eath results, the penalty of reclusion perpetua to death shall be imposed. [Emphasis supplied.]

Accordingly, there being no aggravating circumstance alleged in Information, the imposable penalty on accused -appellant is reclusion perpetua .

the

Apropos the civil liabilities of accused -appellant, current [58] jurisprudence dictate that the civil indemnity due from accused -appellant is P50,000.00 for the death of each of the victims. [ 5 9 ] However, the monetary

People vs Malngan

awards for moral and exemplary damages given by the Court of Appea ls, both in the amount of P50,000.00, due the heirs of the victims, have to be deleted for lack of material basis. Similarly, the Court of Appeals award of exemplary damages to Rodolfo Movilla in the amount of P50,000.00 for the destruction of his house, a lso has to be deleted, but in this instance for being improper. Moral damages cannot be award by this Court in the absence of proof of mental or physical suffering on the part of the heirs of the victims. [ 6 0 ] Concerning the award of exemplary damages, the reason for the deletion being that no aggravating circumstance had been alleged and proved by the prosecution in the case at bar. [ 6 1 ] To summarize, accused- appellants alternative plea that she be acquitted of the crime must be rejected. With the evidence on record, we find no cogent reason to disturb the findings of the RTC and the Court of Appeals. It is indubitable that accused-appellant is the author of the crime of simple arson. All the circumstantial evidence presented before the RTC, viewed in its entirety, is as convincing as direct evidence and, as such, negates accused - appellants innocence, and when considered concurrently with her admission given to MerceditaMendoza, the formers guilt beyond reasonable doubt is twice as evident. Hence, her conviction is effectively justified. More so, as it is propitious to note that in stark contrast to the factual circumstances presented by the prosecution, accused appellant neither mustered a denial nor an alibi except for the proposition that her guilt had not been established beyond reasonable doubt. IN VIEW WHEREOF, the Decision of the Court of Appeals dated 2 September 2005, in CA G.R. CR HC No. 01139, is hereby AFFIRMED insofar as the conviction of accused-appellant EDNA MALNGAN Y MAYO is concerned. The sentence to be imposed and the amount of damages to be awarded, however, are MODIFIED. In accordance with Sec. 5 of Presidential Decree No. 1613, accused -appellant is hereby sentenced to RECLUSION PERPETUA . Accused-appellant is hereby ordered to pay the heirs of each of the victims P50,000.00 as civil indemnity.

SO ORDERED.

People vs Lauga
Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 186228 March 15, 2010

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. ANTONIO LAUGA Y PINA ALIAS TERIO, Accused-Appellant. DECISION PEREZ, J.: Before Us for final review is the trial courts conviction of the appellant for the rape of his thirteen-year old daughter. Consistent with the ruling of this Court in People v. Cabalquinto,1 the real name and the personal circumstances of the victim, and any other information tending to establish or compromise her identity, including those of her immediate family or household members, are not disclosed in this decision. The Facts In an Information dated 21 September 2000,2 the appellant was accused of the crime of QUALIFIED RAPE allegedly committed as follows: That on or about the 15th day of March 2000, in the evening, at Barangay xxx, municipality of xxx, province of Bukidnon, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, being the father of AAA with lewd design, with the use of force and intimidation, did then and there, willfully, unlawfully and criminally have carnal knowledge with his own daughter AAA, a 13 year[s]old minor against her will.3 On 12 October 2000, appellant entered a plea of not guilty.4 During the pre-trial conference, the prosecution and the defense stipulated and admitted: (a) the correctness of the findings indicated in the medical certificate of the physician who examined AAA; (b) that AAA was only thirteen (13) years old when the alleged offense was committed; and (c) that AAA is the daughter of the appellant.5 On trial, three (3) witnesses testified for the prosecution, namely: victim AAA;6 her brother BBB;7 and one Moises Boy Banting,8 a "bantay bayan" in the barangay. Their testimonies revealed the following: In the afternoon of 15 March 2000, AAA was left alone at home.9 AAAs father, the appellant, was having a drinking spree at the neighbors place.10 Her mother decided to leave because when appellant gets drunk, he has the habit of mauling AAAs mother.11 Her only brother BBB also went out in the company of some neighbors.12 At around 10:00 oclock in the evening, appellant woke AAA up;13 removed his pants, slid inside the blanket covering AAA and removed her pants and underwear;14 warned her not to shout for help while threatening her with his fist;15 and told her that he had a knife placed above her head.16 He proceeded to mash her breast, kiss her repeatedly, and "inserted his penis inside her vagina."17 Soon after, BBB arrived and found AAA crying.18 Appellant claimed he scolded her for staying out late.19 BBB decided to take AAA with him.20 While on their way to their maternal grandmothers house, AAA recounted her harrowing experience with their father.21 Upon reaching their grandmothers house, they told their grandmother and uncle of the incident,22 after which, they sought the assistance of Moises Boy Banting.23

People vs Lauga Moises Boy Banting found appellant in his house wearing only his underwear.24 He invited appellant to the police station,25 to which appellant obliged. At the police outpost, he admitted to him that he raped AAA because he was unable to control himself.26
The following day, AAA submitted herself to physical examination.27 Dra. Josefa Arlita L. Alsula, Municipal Health Officer of x x x, Bukidnon, issued the Medical Certificate, which reads: hyperemic vulvae with 4 oclock & 6 oclock freshly lacerated hymen; (+) minimal to moderate bloody discharges 2 to an alleged raping incident28 On the other hand, only appellant testified for the defense. He believed that the charge against him was ill-motivated because he sometimes physically abuses his wife in front of their children after engaging in a heated argument,29 and beats the children as a disciplinary measure.30 He went further to narrate how his day was on the date of the alleged rape. He alleged that on 15 March 2000, there was no food prepared for him at lunchtime.31 Shortly after, AAA arrived.32 She answered back when confronted.33 This infuriated him that he kicked her hard on her buttocks.34 Appellant went back to work and went home again around 3 oclock in the afternoon.35 Finding nobody at home,36he prepared his dinner and went to sleep.37 Later in the evening, he was awakened by the members of the "Bantay Bayan" headed by Moises Boy Banting.38They asked him to go with them to discuss some matters.39 He later learned that he was under detention because AAA charged him of rape.40 On 8 July 2006, the Regional Trial Court, Branch 9, Malaybalay City, Bukidnon, rendered its decision41 in Criminal Case No. 10372-0, finding appellant guilty of rape qualified by relationship and minority, and sentenced him to suffer the penalty of reclusion perpetua.42 It also ordered him to indemnify AAA P50,000.00 as moral damages, and P50,000.00 as civil indemnity with exemplary damages of P25,000.00.43 On 30 September 2008, the decision of the trial court was AFFIRMED with MODIFICATIONS44 by the Court of Appeals in CA-G.R. CR HC No. 00456-MIN.45 The appellate court found that appellant is not eligible for parole and it increased both the civil indemnity and moral damages from P50,000.00 to P75,000.00.46 On 24 November 2008, the Court of Appeals gave due course to the appellants notice of appeal.47 This Court required the parties to simultaneously file their respective supplemental briefs,48 but both manifested that they will no longer file supplemental pleadings.49 The lone assignment of error in the appellants brief is that, the trial court gravely erred in finding him guilty as charged despite the failure of the prosecution to establish his guilt beyond reasonable doubt,50 because: (1) there were inconsistencies in the testimonies of AAA and her brother BBB;51 (2) his extrajudicial confession before Moises Boy Banting was without the assistance of a counsel, in violation of his constitutional right;52 and (3) AAAs accusation was ill-motivated.53 Our Ruling Appellant contests the admissibility in evidence of his alleged confession with a "bantay bayan" and the credibility of the witnesses for the prosecution. Admissibility in Evidence of an Extrajudicial Confession before a "Bantay Bayan" Appellant argues that even if he, indeed, confessed to Moises Boy Banting, a "bantay bayan," the confession was inadmissible in evidence because he was not assisted by a lawyer and there was no valid waiver of such requirement.54

People vs Lauga The case of People v. Malngan55 is the authority on the scope of the Miranda doctrine provided for under Article III, Section 12(1)56 and (3)57 of the Constitution. In Malngan, appellant questioned the admissibility of her extrajudicial confessions given to the barangay chairman and a neighbor of the private complainant. This Court distinguished. Thus:
Arguably, the barangay tanods, including the Barangay Chairman, in this particular instance, may be deemed as law enforcement officer for purposes of applying Article III, Section 12(1) and (3), of the Constitution. When accusedappellant was brought to the barangay hall in the morning of 2 January 2001, she was already a suspect, actually the only one, in the fire that destroyed several houses x x x. She was, therefore, already under custodial investigation and the rights guaranteed by x x x [the] Constitution should have already been observed or applied to her. Accusedappellants confession to Barangay Chairman x x x was made in response to the interrogation made by the latter admittedly conducted without first informing accused-appellant of her rights under the Constitution or done in the presence of counsel. For this reason, the confession of accused-appellant, given to Barangay Chairman x x x, as well as the lighter found x x x in her bag are inadmissible in evidence against her x x x.
1avvphi 1

[But such does] not automatically lead to her acquittal. x x x [T]he constitutional safeguards during custodial investigations do not apply to those not elicited through questioning by the police or their agents but given in an ordinary manner whereby the accused verbally admits x x x as x x x in the case at bar when accused-appellant admitted to Mercedita Mendoza, one of the neighbors x x x [of the private complainant].58 (Emphasis supplied) Following the rationale behind the ruling in Malngan, this Court needs to ascertain whether or not a "bantay bayan" may be deemed a law enforcement officer within the contemplation of Article III, Section 12 of the Constitution. In People of the Philippines v. Buendia,59 this Court had the occasion to mention the nature of a "bantay bayan," that is, "a group of male residents living in [the] area organized for the purpose of keeping peace in their community[,which is] an accredited auxiliary of the x x x PNP."60 Also, it may be worthy to consider that pursuant to Section 1(g) of Executive Order No. 309 issued on 11 November 1987, as amended, a Peace and Order Committee in each barangay shall be organized "to serve as implementing arm of the City/Municipal Peace and Order Council at the Barangay level."61 The composition of the Committee includes, among others: (1) the Punong Barangay as Chairman; (2) the Chairman of the Sangguniang Kabataan; (3) a Member of the Lupon Tagapamayapa; (4) a Barangay Tanod; and (5) at least three (3) Members of existing Barangay-Based Anti-Crime or neighborhood Watch Groups or a Non Government Organization Representative well-known in his community.62 This Court is, therefore, convinced that barangay-based volunteer organizations in the nature of watch groups, as in the case of the "bantay bayan," are recognized by the local government unit to perform functions relating to the preservation of peace and order at the barangay level. Thus, without ruling on the legality of the actions taken by Moises Boy Banting, and the specific scope of duties and responsibilities delegated to a "bantay bayan," particularly on the authority to conduct a custodial investigation, any inquiry he makes has the color of a state-related function and objective insofar as the entitlement of a suspect to his constitutional rights provided for under Article III, Section 12 of the Constitution, otherwise known as the Miranda Rights, is concerned. We, therefore, find the extrajudicial confession of appellant, which was taken without a counsel, inadmissible in evidence. Be that as it may, We agree with the Court of Appeals that the conviction of the appellant was not deduced solely from the assailed extrajudicial confession but "from the confluence of evidence showing his guilt beyond reasonable doubt." 63 Credibility of the Witnesses for the Prosecution Appellant assails the inconsistencies in the testimonies of AAA and her brother BBB. AAA testified that BBB accompanied her to the house of their grandmother. Thereafter, they, together with her relatives, proceeded to look for a "bantay bayan." On the other hand, BBB testified that he brought her sister to the house of their "bantay bayan" after he learned of the incident.

People vs Lauga Citing Bartocillo v. Court of Appeals,64 appellant argues that "where the testimonies of two key witnesses cannot stand together, the inevitable conclusion is that one or both must be telling a lie, and their story a mere concoction."65
The principle, however, is not applicable in the case at bar. In Bartocillo, the two testimonies could not simply stand together because: On one hand, if we are to believe Susan, Orlando could not have possibly seen the hacking incident since he had accompanied Vicente home. On the other hand, if we are to accept the testimony of Orlando, then Susan could not have possibly witnessed the hacking incident since she was with Vicente at that time. Here, the testimony of AAA does not run contrary to that of BBB. Both testified that they sought the help of a "bantay bayan." Their respective testimonies differ only as to when the help was sought for, which this Court could well attribute to the nature of the testimony of BBB, a shortcut version of AAAs testimony that dispensed with a detailed account of the incident. At any rate, the Court of Appeals is correct in holding that the assailed inconsistency is too trivial to affect the veracity of the testimonies.66 In fact, inconsistencies which refer to minor, trivial or inconsequential circumstances even strengthen the credibility of the witnesses, as they erase doubts that such testimonies have been coached or rehearsed.67 Appellants contention that AAA charged him of rape only because she bore grudges against him is likewise unmeritorious. This Court is not dissuaded from giving full credence to the testimony of a minor complainant by motives of feuds, resentment or revenge.68 As correctly pointed out by the Court of Appeals: Indeed, mere disciplinary chastisement is not strong enough to make daughters in a Filipino family invent a charge that would not only bring shame and humiliation upon them and their families but also bring their fathers into the gallows of death.69 The Supreme Court has repeatedly held that it is unbelievable for a daughter to charge her own father with rape, exposing herself to the ordeal and embarrassment of a public trial and subjecting her private parts to examination if such heinous crime was not in fact committed.70 No person, much less a woman, could attain such height of cruelty to one who has sired her, and from whom she owes her very existence, and for which she naturally feels loving and lasting gratefulness.71 Even when consumed with revenge, it takes a certain amount of psychological depravity for a young woman to concoct a story which would put her own father to jail for the most of his remaining life and drag the rest of the family including herself to a lifetime of shame.72 It is highly improbable for [AAA] against whom no proof of sexual perversity or loose morality has been shown to fake charges much more against her own father. In fact her testimony is entitled to greater weight since her accusing words were directed against a close relative.73 Elements of Rape Having established the credibility of the witnesses for the prosecution, We now examine the applicability of the AntiRape Law of 199774 to the case at bar. The law provides, in part, that rape is committed, among others, "[b]y a man who shall have carnal knowledge of a woman" "through force, threat or intimidation."75 The death penalty shall be imposed if it is committed with aggravating/qualifying circumstances, which include, "[w]hen the victim is under eighteen (18) years of age and the offender is a parent."76 The consistent and forthright testimony of AAA detailing how she was raped, culminating with the penetration of appellants penis into her vagina, suffices to prove that appellant had carnal knowledge of her. When a woman states that she has been raped, she says in effect all that is necessary to show that rape was committed.77Further, when such testimony corresponds with medical findings, there is sufficient basis to conclude that the essential requisites of carnal knowledge have been established.78 The Court of Appeals pointed out that the element of force or intimidation is not essential when the accused is the father of the victim, inasmuch as his superior moral ascendancy or influence substitutes for violence and intimidation.79 At any rate, AAA was actually threatened by appellant with his fist and a knife allegedly placed above AAAs head.80

People vs Lauga It may be added that the self-serving defense of appellant cannot prevail over the positive and straightforward testimony of AAA. Settled is the rule that, "alibi is an inherently weak defense that is viewed with suspicion because it is easy to fabricate."81 "Alibi and denial must be supported by strong corroborative evidence in order to merit credibility."82 Moreover, for the defense of alibi to prosper, the accused must establish two elements (1) he was not at the locus delicti at the time the offense was committed; and (2) it was physically impossible for him to be at the scene at the time of its commission.83 Appellant failed in this wise.
Aggravating/Qualifying Circumstances The presence of the qualifying circumstances of minority and relationship with the offender in the instant case has likewise been adequately established. Both qualifying circumstances were specifically alleged in the Information, stipulated on and admitted during the pre-trial conference, and testified to by both parties in their respective testimonies. Also, such stipulation and admission, as correctly pointed out by the Court of Appeals, are binding upon this Court because they are judicial admissions within the contemplation of Section 4, Rule 129 of the Revised Rules of Court. It provides: Sec. 4. Judicial admissions. - An admission, verbal or written, made by a party in the course of the proceedings in the same case, does not require proof. The admission may be contradicted only by showing that it was made through palpable mistake or that no such admission was made. Penalty Finally, in increasing the amount of civil indemnity and damages each from P50,000.00 to P75,000.00, the Court of Appeals correctly considered controlling jurisprudence to the effect that where, as here, the rape is committed with any of the qualifying/aggravating circumstances warranting the imposition of the death penalty, the victim is entitled to P75,000.00 as civil indemnity ex delicto84 and P75,000.00 as moral damages.85 However, the award of exemplary damages should have been increased from P25,000.00 to P30,000.00.86 Also, the penalty of reclusion perpetua in lieu of death was correctly imposed considering that the imposition of the death penalty upon appellant would have been appropriate were it not for the enactment of Republic Act No. 9346, or An Act Prohibiting the Imposition of Death Penalty in the Philippines.87 We further affirm the ruling of the Court of Appeals on appellants non-eligibility for parole. Sec. 3 of Republic Act No. 9346 clearly provides that "persons convicted of offenses punished with reclusion perpetua, or whose sentences will be reduced to reclusion perpetua by reason of the law, shall not be eligible for parole." WHEREFORE, the Decision of the Court of Appeals dated 30 September 2008 in CA-G.R. CR HC No. 00456-MIN is hereby AFFIRMED. Appellant Antonio Lauga is GUILTY beyond reasonable doubt of qualified rape, and is hereby sentenced to suffer the penalty of reclusion perpetua without eligibility for parole and to pay AAAP75,000.00 as civil indemnity, P75,000.00 as moral damages, and P30,000.00 as exemplary damages. SO ORDERED.

Hongkong vs. Olalia

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 153675 April 19, 2007

GOVERNMENT OF HONG KONG SPECIAL ADMINISTRATIVE REGION, represented by the Philippine Department of Justice, Petitioner, vs. HON. FELIXBERTO T. OLALIA, JR. and JUAN ANTONIO MUOZ, Respondents. DECISION SANDOVAL-GUTIERREZ, J.: For our resolution is the instant Petition for Certiorari under Rule 65 of the 1997 Rules of Civil Procedure, as amended, seeking to nullify the two Orders of the Regional Trial Court (RTC), Branch 8, Manila (presided by respondent Judge Felixberto T. Olalia, Jr.) issued in Civil Case No. 99-95773. These are: (1) the Order dated December 20, 2001 allowing Juan Antonio Muoz, private respondent, to post bail; and (2) the Order dated April 10, 2002 denying the motion to vacate the said Order of December 20, 2001 filed by the Government of Hong Kong Special Administrative Region, represented by the Philippine Department of Justice (DOJ), petitioner. The petition alleges that both Orders were issued by respondent judge with grave abuse of discretion amounting to lack or excess of jurisdiction as there is no provision in the Constitution granting bail to a potential extraditee. The facts are: On January 30, 1995, the Republic of the Philippines and the then British Crown Colony of Hong Kong signed an "Agreement for the Surrender of Accused and Convicted Persons." It took effect on June 20, 1997. On July 1, 1997, Hong Kong reverted back to the Peoples Republic of China and became the Hong Kong Special Administrative Region. Private respondent Muoz was charged before the Hong Kong Court with three (3) counts of the offense of "accepting an advantage as agent," in violation of Section 9 (1) (a) of the Prevention of Bribery Ordinance, Cap. 201 of Hong Kong. He also faces seven (7) counts of the offense of conspiracy to defraud, penalized by the common law of Hong Kong. On August 23, 1997 and October 25, 1999, warrants of arrest were issued against him. If convicted, he faces a jail term of seven (7) to fourteen (14) years for each charge. On September 13, 1999, the DOJ received from the Hong Kong Department of Justice a request for the provisional arrest of private respondent. The DOJ then forwarded the request to the National Bureau of Investigation (NBI) which, in turn, filed with the RTC of Manila, Branch 19 an application for the provisional arrest of private respondent. On September 23, 1999, the RTC, Branch 19, Manila issued an Order of Arrest against private respondent. That same day, the NBI agents arrested and detained him. On October 14, 1999, private respondent filed with the Court of Appeals a petition for certiorari, prohibition andmandamus with application for preliminary mandatory injunction and/or writ of habeas corpus questioning the validity of the Order of Arrest. On November 9, 1999, the Court of Appeals rendered its Decision declaring the Order of Arrest void. On November 12, 1999, the DOJ filed with this Court a petition for review on certiorari, docketed as G.R. No. 140520, praying that the Decision of the Court of Appeals be reversed.

Hongkong vs. Olalia On December 18, 2000, this Court rendered a Decision granting the petition of the DOJ and sustaining the validity of the Order of Arrest against private respondent. The Decision became final and executory on April 10, 2001.
Meanwhile, as early as November 22, 1999, petitioner Hong Kong Special Administrative Region filed with the RTC of Manila a petition for the extradition of private respondent, docketed as Civil Case No. 99-95733, raffled off to Branch 10, presided by Judge Ricardo Bernardo, Jr. For his part, private respondent filed, in the same case,- a petition for bail which was opposed by petitioner. After hearing, or on October 8, 2001, Judge Bernardo, Jr. issued an Order denying the petition for bail, holding that there is no Philippine law granting bail in extradition cases and that private respondent is a high "flight risk." On October 22, 2001, Judge Bernardo, Jr. inhibited himself from further hearing Civil Case No. 99-95733. It was then raffled off to Branch 8 presided by respondent judge. On October 30, 2001, private respondent filed a motion for reconsideration of the Order denying his application for bail. This was granted by respondent judge in an Order dated December 20, 2001 allowing private respondent to post bail, thus: In conclusion, this Court will not contribute to accuseds further erosion of civil liberties. The petition for bail is granted subject to the following conditions: 1. Bail is set at Php750,000.00 in cash with the condition that accused hereby undertakes that he will appear and answer the issues raised in these proceedings and will at all times hold himself amenable to orders and processes of this Court, will further appear for judgment. If accused fails in this undertaking, the cash bond will be forfeited in favor of the government; 2. Accused must surrender his valid passport to this Court; 3. The Department of Justice is given immediate notice and discretion of filing its own motion for hold departure order before this Court even in extradition proceeding; and 4. Accused is required to report to the government prosecutors handling this case or if they so desire to the nearest office, at any time and day of the week; and if they further desire, manifest before this Court to require that all the assets of accused, real and personal, be filed with this Court soonest, with the condition that if the accused flees from his undertaking, said assets be forfeited in favor of the government and that the corresponding lien/annotation be noted therein accordingly. SO ORDERED. On December 21, 2001, petitioner filed an urgent motion to vacate the above Order, but it was denied by respondent judge in his Order dated April 10, 2002. Hence, the instant petition. Petitioner alleged that the trial court committed grave abuse of discretion amounting to lack or excess of jurisdiction in admitting private respondent to bail; that there is nothing in the Constitution or statutory law providing that a potential extraditee has a right to bail, the right being limited solely to criminal proceedings. In his comment on the petition, private respondent maintained that the right to bail guaranteed under the Bill of Rights extends to a prospective extraditee; and that extradition is a harsh process resulting in a prolonged deprivation of ones liberty. Section 13, Article III of the Constitution provides that the right to bail shall not be impaired, thus: Sec. 13. All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided

Hongkong vs. Olalia by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required.
Jurisprudence on extradition is but in its infancy in this jurisdiction. Nonetheless, this is not the first time that this Court has an occasion to resolve the question of whether a prospective extraditee may be granted bail. In Government of United States of America v. Hon. Guillermo G. Purganan, Presiding Judge, RTC of Manila, Branch 42, and Mark B. Jimenez, a.k.a. Mario Batacan Crespo,1 this Court, speaking through then Associate Justice Artemio V. Panganiban, later Chief Justice, held that the constitutional provision on bail does not apply to extradition proceedings. It is "available only in criminal proceedings," thus: x x x. As suggested by the use of the word "conviction," the constitutional provision on bail quoted above, as well as Section 4, Rule 114 of the Rules of Court, applies only when a person has been arrested and detained for violation of Philippine criminal laws. It does not apply to extradition proceedings because extradition courts do not render judgments of conviction or acquittal. Moreover, the constitutional right to bail "flows from the presumption of innocence in favor of every accused who should not be subjected to the loss of freedom as thereafter he would be entitled to acquittal, unless his guilt be proved beyond reasonable doubt" (De la Camara v. Enage, 41 SCRA 1, 6, September 17, 1971, per Fernando, J., later CJ). It follows that the constitutional provision on bail will not apply to a case like extradition, where the presumption of innocence is not at issue. The provision in the Constitution stating that the "right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended" does not detract from the rule that the constitutional right to bail is available only in criminal proceedings. It must be noted that the suspension of the privilege of the writ of habeas corpusfinds application "only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion" (Sec. 18, Art. VIII, Constitution). Hence, the second sentence in the constitutional provision on bail merely emphasizes the right to bail in criminal proceedings for the aforementioned offenses. It cannot be taken to mean that the right is available even in extradition proceedings that are not criminal in nature. At first glance, the above ruling applies squarely to private respondents case. However, this Court cannot ignore the following trends in international law: (1) the growing importance of the individual person in public international law who, in the 20th century, has gradually attained global recognition; (2) the higher value now being given to human rights in the international sphere; (3) the corresponding duty of countries to observe these universal human rights in fulfilling their treaty obligations; and (4) the duty of this Court to balance the rights of the individual under our fundamental law, on one hand, and the law on extradition, on the other. The modern trend in public international law is the primacy placed on the worth of the individual person and the sanctity of human rights. Slowly, the recognition that the individual person may properly be a subject of international law is now taking root. The vulnerable doctrine that the subjects of international law are limited only to states was dramatically eroded towards the second half of the past century. For one, the Nuremberg and Tokyo trials after World War II resulted in the unprecedented spectacle of individual defendants for acts characterized as violations of the laws of war, crimes against peace, and crimes against humanity. Recently, under the Nuremberg principle, Serbian leaders have been persecuted for war crimes and crimes against humanity committed in the former Yugoslavia. These significant events show that the individual person is now a valid subject of international law. On a more positive note, also after World War II, both international organizations and states gave recognition and importance to human rights. Thus, on December 10, 1948, the United Nations General Assembly adopted the Universal Declaration of Human Rights in which the right to life, liberty and all the other fundamental rights of every person were proclaimed. While not a treaty, the principles contained in the said Declaration are now recognized as customarily binding upon the members of the international community. Thus, in Mejoff v. Director of Prisons,2 this Court, in granting bail to a prospective deportee, held that under the Constitution,3 the principles set forth in that Declaration are part of the law of the land. In 1966, the UN General Assembly also adopted the International Covenant on Civil and Political Rights which the Philippines signed and ratified. Fundamental among the rights enshrined therein are the rights of every person to life, liberty, and due process.

Hongkong vs. Olalia The Philippines, along with the other members of the family of nations, committed to uphold the fundamental human rights as well as value the worth and dignity of every person. This commitment is enshrined in Section II, Article II of our Constitution which provides: "The State values the dignity of every human person and guarantees full respect for human rights." The Philippines, therefore, has the responsibility of protecting and promoting the right of every person to liberty and due process, ensuring that those detained or arrested can participate in the proceedings before a court, to enable it to decide without delay on the legality of the detention and order their release if justified. In other words, the Philippine authorities are under obligation to make available to every person under detention such remedies which safeguard their fundamental right to liberty. These remedies include the right to be admitted to bail. While this Court in Purganan limited the exercise of the right to bail to criminal proceedings, however, in light of the various international treaties giving recognition and protection to human rights, particularly the right to life and liberty, a reexamination of this Courts ruling in Purganan is in order.
First, we note that the exercise of the States power to deprive an individual of his liberty is not necessarily limited to criminal proceedings. Respondents in administrative proceedings, such as deportation and quarantine,4 have likewise been detained. Second, to limit bail to criminal proceedings would be to close our eyes to our jurisprudential history. Philippine jurisprudence has not limited the exercise of the right to bail to criminal proceedings only. This Court has admitted to bail persons who are not involved in criminal proceedings. In fact, bail has been allowed in this jurisdiction to persons in detention during the pendency of administrative proceedings, taking into cognizance the obligation of the Philippines under international conventions to uphold human rights. The 1909 case of US v. Go-Sioco5 is illustrative. In this case, a Chinese facing deportation for failure to secure the necessary certificate of registration was granted bail pending his appeal. After noting that the prospective deportee had committed no crime, the Court opined that "To refuse him bail is to treat him as a person who has committed the most serious crime known to law;" and that while deportation is not a criminal proceeding, some of the machinery used "is the machinery of criminal law." Thus, the provisions relating to bail was applied to deportation proceedings. In Mejoff v. Director of Prisons6 and Chirskoff v. Commission of Immigration,7 this Court ruled that foreign nationals against whom no formal criminal charges have been filed may be released on bail pending the finality of an order of deportation. As previously stated, the Court in Mejoff relied upon the Universal declaration of Human Rights in sustaining the detainees right to bail. If bail can be granted in deportation cases, we see no justification why it should not also be allowed in extradition cases. Likewise, considering that the Universal Declaration of Human Rights applies to deportation cases, there is no reason why it cannot be invoked in extradition cases. After all, both are administrative proceedings where the innocence or guilt of the person detained is not in issue. Clearly, the right of a prospective extraditee to apply for bail in this jurisdiction must be viewed in the light of the various treaty obligations of the Philippines concerning respect for the promotion and protection of human rights. Under these treaties, the presumption lies in favor of human liberty. Thus, the Philippines should see to it that the right to liberty of every individual is not impaired. Section 2(a) of Presidential Decree (P.D.) No. 1069 (The Philippine Extradition Law) defines "extradition" as "the removal of an accused from the Philippines with the object of placing him at the disposal of foreign authorities to enable the requesting state or government to hold him in connection with any criminal investigation directed against him or the execution of a penalty imposed on him under the penal or criminal law of the requesting state or government." Extradition has thus been characterized as the right of a foreign power, created by treaty, to demand the surrender of one accused or convicted of a crime within its territorial jurisdiction, and the correlative duty of the other state to surrender him to the demanding state.8 It is not a criminal proceeding.9 Even if the potential extraditee is a criminal, an extradition proceeding is not by its nature criminal, for it is not punishment for a crime, even though such punishment may follow extradition.10 It is sui generis, tracing its existence wholly to treaty obligations between different nations.11 It is not a trial to determine the guilt or innocence of the potential extraditee.12 Nor is it a full-blown civil action, but one that is merely administrative in character.13 Its object is to prevent the escape of a person accused or convicted of a crime and to secure his return to the state from which he fled, for the purpose of trial or punishment.14

Hongkong vs. Olalia But while extradition is not a criminal proceeding, it is characterized by the following: (a) it entails a deprivation of liberty on the part of the potential extraditee and (b) the means employed to attain the purpose of extradition is also "the machinery of criminal law." This is shown by Section 6 of P.D. No. 1069 (The Philippine Extradition Law) which mandates the "immediate arrest and temporary detention of the accused" if such "will best serve the interest of justice." We further note that Section 20 allows the requesting state "in case of urgency" to ask for the "provisional arrest of the accused, pending receipt of the request for extradition;" and that release from provisional arrest "shall not prejudice re-arrest and extradition of the accused if a request for extradition is received subsequently."
Obviously, an extradition proceeding, while ostensibly administrative, bears all earmarks of a criminal process. A potential extraditee may be subjected to arrest, to a prolonged restraint of liberty, and forced to transfer to the demanding state following the proceedings. "Temporary detention" may be a necessary step in the process of extradition, but the length of time of the detention should be reasonable. Records show that private respondent was arrested on September 23, 1999, and remained incarcerated until December 20, 2001, when the trial court ordered his admission to bail. In other words, he had been detained for over two (2) years without having been convicted of any crime. By any standard, such an extended period of detention is a serious deprivation of his fundamental right to liberty. In fact, it was this prolonged deprivation of liberty which prompted the extradition court to grant him bail. While our extradition law does not provide for the grant of bail to an extraditee, however, there is no provision prohibiting him or her from filing a motion for bail, a right to due process under the Constitution. The applicable standard of due process, however, should not be the same as that in criminal proceedings. In the latter, the standard of due process is premised on the presumption of innocence of the accused. As Purganancorrectly points out, it is from this major premise that the ancillary presumption in favor of admitting to bail arises. Bearing in mind the purpose of extradition proceedings, the premise behind the issuance of the arrest warrant and the "temporary detention" is the possibility of flight of the potential extraditee. This is based on the assumption that such extraditee is a fugitive from justice.15 Given the foregoing, the prospective extraditee thus bears the onus probandi of showing that he or she is not a flight risk and should be granted bail. The time-honored principle of pacta sunt servanda demands that the Philippines honor its obligations under the Extradition Treaty it entered into with the Hong Kong Special Administrative Region. Failure to comply with these obligations is a setback in our foreign relations and defeats the purpose of extradition. However, it does not necessarily mean that in keeping with its treaty obligations, the Philippines should diminish a potential extraditees rights to life, liberty, and due process. More so, where these rights are guaranteed, not only by our Constitution, but also by international conventions, to which the Philippines is a party. We should not, therefore, deprive an extraditee of his right to apply for bail, provided that a certain standard for the grant is satisfactorily met. An extradition proceeding being sui generis, the standard of proof required in granting or denying bail can neither be the proof beyond reasonable doubt in criminal cases nor the standard of proof of preponderance of evidence in civil cases. While administrative in character, the standard of substantial evidence used in administrative cases cannot likewise apply given the object of extradition law which is to prevent the prospective extraditee from fleeing our jurisdiction. In his Separate Opinion in Purganan, then Associate Justice, now Chief Justice Reynato S. Puno, proposed that a new standard which he termed "clear and convincing evidence" should be used in granting bail in extradition cases. According to him, this standard should be lower than proof beyond reasonable doubt but higher than preponderance of evidence. The potential extraditee must prove by "clear and convincing evidence" that he is not a flight risk and will abide with all the orders and processes of the extradition court. In this case, there is no showing that private respondent presented evidence to show that he is not a flight risk. Consequently, this case should be remanded to the trial court to determine whether private respondent may be granted bail on the basis of "clear and convincing evidence." WHEREFORE, we DISMISS the petition. This case is REMANDED to the trial court to determine whether private respondent is entitled to bail on the basis of "clear and convincing evidence." If not, the trial court should order the cancellation of his bail bond and his immediate detention; and thereafter, conduct the extradition proceedings with dispatch.

Hongkong vs. Olalia SO ORDERED.

Alejano vs Cabuay

EN BANC

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF CAPT. GARY ALEJANO, PN (MARINES) CAPT. NICANOR FAELDON, PN (MARINES) CAPT. GERARDO GAMBALA, PA LT. SG JAMES LAYUG, PN CAPT. MILO MAESTRECAMPO, PA LT. SG ANTONIO TRILLANES IV, PN HOMOBONO ADAZA, and ROBERTO RAFAEL (ROEL) PULIDO, Petitioners,

G.R. No. 160792

Present: Davide, Jr., C.J., Puno, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, - versus Carpio, Austria-Martinez, Corona, Carpio Morales,

Alejano vs Cabuay

Callejo, Sr., Azcuna, Tinga, Chico-Nazario, and Garcia, JJ. GEN. PEDRO CABUAY, GEN. NARCISO ABAYA, SEC. ANGELO REYES, and SEC. ROILO GOLEZ, Respondents. August 25, 2005

Promulgated:

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

DECISION

CARPIO, J.:

The Case

Alejano vs Cabuay

This petition for review[1] seeks to nullify the Decision[2] of the Court of Appeals dated 17 September 2003 and Resolution dated 13 November 2003 in CA-G.R. SP No. 78545. The Court of Appeals Decision and Resolution dismissed the petition for habeas corpus filed by lawyers Homobono Adaza and Roberto Rafael Pulido (petitioners) on behalf of their detained clients Capt. Gary Alejano (PN-Marines), Capt. Nicanor Faeldon (PN-Marines), Capt. Gerardo Gambala (PA), Lt. SG James Layug (PN), Capt. Milo Maestrecampo (PA), and Lt. SG Antonio Trillanes IV (PN) (detainees).

Petitioners named as respondent Gen. Pedro Cabuay (Gen. Cabuay), Chief of the Intelligence Service of the Armed Forces of the Philippines (ISAFP), who has custody of the detainees. Petitioners impleaded Gen. Narciso Abaya (Gen. Abaya), Sec. Angelo Reyes and Roilo Golez, who are respectively the Chief of Staff of the Armed Forces of the Philippines (AFP), Secretary of National Defense and National Security Adviser, because they have command responsibility over Gen. Cabuay.

Antecedent Facts

Early morning of 27 July 2003, some 321 armed soldiers, led by the now detained junior officers, entered and took control of the Oakwood Premier Luxury Apartments (Oakwood), an upscale apartment complex, located in the business district of Makati City. The soldiers disarmed the security officers of Oakwood and planted explosive devices in its immediate surroundings. The junior officers publicly renounced their support for the administration and called for the resignation of President Gloria Macapagal-Arroyo and several cabinet members.

Around 7:00 p.m. of the same date, the soldiers voluntarily surrendered to the authorities after several negotiations with government emissaries. The soldiers later defused the explosive devices they had earlier planted. The soldiers then returned to their barracks.

Alejano vs Cabuay

On 31 July 2003, Gen. Abaya, as the Chief of Staff of the AFP, issued a directive to all the Major Service Commanders to turn over custody of ten junior officers to the ISAFP Detention Center. The transfer took place while military and civilian authorities were investigating the soldiers involvement in the Oakwood incident.

On 1 August 2003, government prosecutors filed an Information for coup detat with the Regional Trial Court of Makati City, Branch 61, against the soldiers involved in the 27 July 2003 Oakwood incident. The government prosecutors accused the soldiers of coup detat as defined and penalized under Article 134-A of the Revised Penal Code of the Philippines, as amended. The case was docketed as Criminal Case No. 03-2784. The trial court later issued the Commitment Orders giving custody of junior officers Lt. SG Antonio Trillanes IV (Trillanes) and Capt. Gerardo Gambala to the Commanding Officers of ISAFP.

On 2 August 2003, Gen. Abaya issued a directive to all Major Service Commanders to take into custody the military personnel under their command who took part in the Oakwood incident except the detained junior officers who were to remain under the custody of ISAFP. On 11 August 2003, petitioners filed a petition for habeas corpus with the Supreme Court. On 12 August 2003, the Court issued a Resolution, which resolved to:

(a) ISSUE the WRIT OF HABEAS CORPUS; (b) require respondents to make a RETURN of the writ on Monday, 18 August 2003, at 10:00 a.m. before the Court of Appeals; (c) refer the case to the Court of Appeals for RAFFLE among the Justices thereof for hearing, further proceedings and decision thereon, after which a REPORT shall be made to this Court within ten (10) days from promulgation of the decision.[3]

Thus, the Court issued a Writ of Habeas Corpus dated 12 August 2003 directing respondents to make a return of the writ and to appear and produce the persons of the

Alejano vs Cabuay

detainees before the Court of Appeals on the scheduled date for hearing and further proceedings.

On the same date, the detainees and their other co-accused filed with the Regional Trial Court of Makati City a Motion for Preliminary Investigation, which the trial court granted.

On 18 August 2003, pursuant to the directives of the Court, respondents submitted their Return of the Writ and Answer to the petition and produced the detainees before the Court of Appeals during the scheduled hearing. After the parties filed their memoranda on 28 August 2003, the appellate court considered the petition submitted for decision.

On 17 September 2003, the Court of Appeals rendered its decision dismissing the petition. Nonetheless, the appellate court ordered Gen. Cabuay, who was in charge of implementing the regulations in the ISAFP Detention Center, to uphold faithfully the rights of the detainees in accordance with Standing Operations Procedure No. 0263-04. The appellate court directed Gen. Cabuay to adhere to his commitment made in court regarding visiting hours and the detainees right to exercise for two hours a day.

The Ruling of the Court of Appeals

The Court of Appeals found the petition bereft of merit. The appellate court pointed out that the detainees are already charged of coup detat before the Regional Trial Court of Makati. Habeas corpus is unavailing in this case as the detainees confinement is under a valid indictment, the legality of which the detainees and petitioners do not even question.

The Court of Appeals recognized that habeas corpus may also be the appropriate remedy to assail the legality of detention if there is a deprivation of a constitutional right. However, the

Alejano vs Cabuay

appellate court held that the constitutional rights alleged to have been violated in this case do not directly affect the detainees liberty. The appellate court ruled that the regulation of the detainees right to confer with their counsels is reasonable under the circumstances.

The appellate court declared that while the opening and reading of Trillanes letter is an abhorrent violation of his right to privacy of communication, this does not justify the issuance of a writ of habeas corpus. The violation does not amount to illegal restraint, which is the proper subject of habeas corpusproceedings.

The Court of Appeals thus dismissed the petition and ordered Gen. Cabuay to fulfill the promise he made in open court to uphold the visiting hours and the right of the detainees to exercise for two hours a day. The dispositive portion of the appellate courts decision reads:

WHEREFORE, the foregoing considered, the instant petition is hereby DISMISSED. Respondent Cabuay is hereby ORDERED to faithfully adhere to his commitment to uphold the constitutional rights of the detainees in accordance with the Standing Operations Procedure No. 0263-04 regarding visiting hours and the right of the detainees to exercise for two (2) hours a day.

SO ORDERED.[4]

The Issues

Petitioners raise the following issues for resolution: A. THE COURT OF APPEALS ERRED IN REVIEWING AND REVERSING A DECISION OF THE SUPREME COURT; THE COURT OF APPEALS ERRED IN NOT ACKNOWLEDGING THE APPROPRIATENESS OF THE REMEDY PETITIONERS SEEK; and

B.

Alejano vs Cabuay

C.

THE COURT OF APPEALS ERRED IN ASSERTING THE LEGALITY OF THE CONDITIONS OF THE DETAINED JUNIOR OFFICERS DETENTION.[5]

The Ruling of the Court

The petition lacks merit.

Petitioners claim that the Courts 12 August 2003 Order granted the petition and the Court remanded the case to the Court of Appeals only for a factual hearing. Petitioners thus argue that the Courts Order had already foreclosed any question on the propriety and merits of their petition.

Petitioners claim is baseless. A plain reading of the 12 August 2003 Order shows that the Court referred to the Court of Appeals the duty to inquire into the cause of the junior officers detention. Had the Court ruled for the detainees release, the Court would not have referred the hearing of the petition to the Court of Appeals. The Court would have forthwith released the detainees had the Court upheld petitioners cause.

In a habeas corpus petition, the order to present an individual before the court is a preliminary step in the hearing of the petition.[6] The respondent must produce the person and explain the cause of his detention.[7] However, this order is not a ruling on the propriety of the remedy or on the substantive matters covered by the remedy. Thus, the Courts order to the

Alejano vs Cabuay

Court of Appeals to conduct a factual hearing was not an affirmation of the propriety of the remedy of habeas corpus.

For obvious reasons, the duty to hear the petition for habeas corpus necessarily includes the determination of the propriety of the remedy. If a court finds the alleged cause of the detention unlawful, then it should issue the writ and release the detainees. In the present case, after hearing the case, the Court of Appeals found that habeas corpus is inapplicable. After actively participating in the hearing before the Court of Appeals, petitioners are estopped from claiming that the appellate court had no jurisdiction to inquire into the merits of their petition.

The Court of Appeals correctly ruled that the remedy of habeas corpus is not the proper remedy to address the detainees complaint against the regulations and conditions in the ISAFP Detention Center. The remedy of habeas corpus has one objective: to inquire into the cause of detention of a person.[8] The purpose of the writ is to determine whether a person is being illegally deprived of his liberty.[9] If the inquiry reveals that the detention is illegal, the court orders the release of the person. If, however, the detention is proven lawful, then the habeas corpus proceedings terminate. The use ofhabeas corpus is thus very limited. It is not a writ of error.[10] Neither can it substitute for an appeal.[11]

Nonetheless, case law has expanded the writs application to circumstances where there is deprivation of a persons constitutional rights. The writ is available where a person continues to be unlawfully denied of one or more of his constitutional freedoms, where there is denial of due process, where the restraints are not merely involuntary but are also unnecessary, and where a deprivation of freedom originally valid has later become arbitrary.[12]

However, a mere allegation of a violation of ones constitutional right is not sufficient. The courts will extend the scope of the writ only if any of the following circumstances is present: (a) there is a deprivation of a constitutional right resulting in the unlawful restraint of a person; (b) the court had no jurisdiction to impose the sentence; or (c) an excessive penalty is imposed and such sentence is void as to the excess.[13] Whatever situation the petitioner invokes, the

Alejano vs Cabuay

threshold remains high. The violation of constitutional right must be sufficient to void the entire proceedings.[14]

Petitioners admit that they do not question the legality of the detention of the detainees. Neither do they dispute the lawful indictment of the detainees for criminal and military offenses. What petitioners bewail is the regulation adopted by Gen. Cabuay in the ISAFP Detention Center preventing petitioners as lawyers from seeing the detainees their clients any time of the day or night. The regulation allegedly curtails the detainees right to counsel and violates Republic Act No. 7438 (RA 7438).[15] Petitioners claim that the regulated visits made it difficult for them to prepare for the important hearings before the Senate and the Feliciano Commission.

Petitioners also point out that the officials of the ISAFP Detention Center violated the detainees right to privacy of communication when the ISAFP officials opened and read the personal letters of Trillanes and Capt. Milo Maestrecampo (Maestrecampo). Petitioners further claim that the ISAFP officials violated the detainees right against cruel and unusual punishment when the ISAFP officials prevented the detainees from having contact with their visitors. Moreover, the ISAFP officials boarded up with iron bars and plywood slabs the iron grills of the detention cells, limiting the already poor light and ventilation in the detainees cells.

Pre-trial detainees do not forfeit their constitutional rights upon confinement.[16] However, the fact that the detainees are confined makes their rights more limited than those of the public.[17] RA 7438, which specifies the rights of detainees and the duties of detention officers, expressly recognizes the power of the detention officer to adopt and implement reasonable measures to secure the safety of the detainee and prevent his escape. Section 4(b) of RA 7438 provides:

Section 4. Penalty Clause. a) x x x

b) Any person who obstructs, prevents or prohibits any lawyer, any member of the immediate family of a person arrested, detained or under custodial investigation, or any medical doctor or priest or religious minister or by his counsel, from visiting and conferring privately chosen by him or by any member of his immediate family with him, or from examining and treating him, or from

Alejano vs Cabuay

ministering to his spiritual needs, at any hour of the day or, in urgent cases, of the night shall suffer the penalty of imprisonment of not less than four (4) years nor more than six (6) years, and a fine of four thousand pesos (P4,000.00). The provisions of the above Section notwithstanding, any security officer with custodial responsibility over any detainee or prisoner may undertake such reasonable measures as may be necessary to secure his safety and prevent his escape. (Emphasis supplied)

True, Section 4(b) of RA 7438 makes it an offense to prohibit a lawyer from visiting a detainee client at any hour of the day or, in urgent cases, of the night. However, the last paragraph of the same Section 4(b) makes the express qualification that notwithstanding the provisions of Section 4(b), the detention officer has the power to undertake such reasonable measures as may be necessary to secure the safety of the detainee and prevent his escape. The last paragraph of Section 4(b) of RA 7438 prescribes a clear standard. The regulations governing a detainees confinement must be reasonable measures x x x to secure his safety and prevent his escape. Thus, the regulations must be reasonably connected to the governments objective of securing the safety and preventing the escape of the detainee. The law grants the detention officer the authority to undertake such reasonable measures or regulations.

Petitioners contend that there was an actual prohibition of the detainees right to effective representation when petitioners visits were limited by the schedule of visiting hours. Petitioners assert that the violation of the detainees rights entitle them to be released from detention.

Petitioners contention does not persuade us. The schedule of visiting hours does not render void the detainees indictment for criminal and military offenses to warrant the detainees release from detention. The ISAFP officials did not deny, but merely regulated, the detainees right to counsel. The purpose of the regulation is not to render ineffective the right to counsel, but to secure the safety and security of all detainees. American cases are instructive on the standards to determine whether regulations on pre-trial confinement are permissible.

Alejano vs Cabuay

In Bell v. Wolfish,[18] the United States (U.S.) Supreme Court held that regulations must be reasonably related to maintaining security and must not be excessive in achieving that purpose. Courts will strike down a restriction that is arbitrary and purposeless.[19] However, Bell v. Wolfish expressly discouraged courts from skeptically questioning challenged restrictions in detention and prison facilities.[20] The U.S. Supreme Court commanded the courts to afford administrators wide-ranging deference in implementing policies to maintain institutional security.[21]

In our jurisdiction, the last paragraph of Section 4(b) of RA 7438 provides the standard to make regulations in detention centers allowable: such reasonable measures as may be necessary to secure the detainees safety and prevent his escape. In the present case, the visiting hours accorded to the lawyers of the detainees are reasonably connected to the legitimate purpose of securing the safety and preventing the escape of all detainees.

While petitioners may not visit the detainees any time they want, the fact that the detainees still have face-to-face meetings with their lawyers on a daily basis clearly shows that there is no impairment of detainees right to counsel. Petitioners as counsels could visit their clients between 8:00 a.m. and 5:00 p.m. with a lunch break at 12:00 p.m. The visiting hours are regular business hours, the same hours when lawyers normally entertain clients in their law offices. Clearly, the visiting hours pass the standard of reasonableness. Moreover, in urgent cases, petitioners could always seek permission from the ISAFP officials to confer with their clients beyond the visiting hours.

The scheduled visiting hours provide reasonable access to the detainees, giving petitioners sufficient time to confer with the detainees. The detainees right to counsel is not undermined by the scheduled visits. Even in the hearings before the Senate and the Feliciano Commission,[22] petitioners were given time to confer with the detainees, a fact that petitioners themselves admit.[23] Thus, at no point were the detainees denied their right to counsel.

Alejano vs Cabuay

Petitioners further argue that the bars separating the detainees from their visitors and the boarding of the iron grills in their cells with plywood amount to unusual and excessive punishment. This argument fails to impress us. Bell v. Wolfish pointed out that while a detainee may not be punished prior to an adjudication of guilt in accordance with due process of law, detention inevitably interferes with a detainees desire to live comfortably.[24] The fact that the restrictions inherent in detention intrude into the detainees desire to live comfortably does not convert those restrictions into punishment.[25] It is when the restrictions are arbitrary and purposeless that courts will infer intent to punish.[26] Courts will also infer intent to punish even if the restriction seems to be related rationally to the alternative purpose if the restriction appears excessive in relation to that purpose.[27] Jail officials are thus not required to use the least restrictive security measure.[28] They must only refrain from implementing a restriction that appears excessive to the purpose it serves.[29]

We quote Bell v. Wolfish:

One further point requires discussion. The petitioners assert, and respondents concede, that the essential objective of pretrial confinement is to insure the detainees presence at trial. While this interest undoubtedly justifies the original decision to confine an individual in some manner, we do not accept respondents argument that the Governments interest in ensuring a detainees presence at trial is the only objective that may justify restraints and conditions once the decision is lawfully made to confine a person. If the government could confine or otherwise infringe the liberty of detainees only to the extent necessary to ensure their presence at trial, house arrest would in the end be the only constitutionally justified form of detention. The Government also has legitimate interests that stem from its need to manage the facility in which the individual is detained. These legitimate operational concerns may require administrative measures that go beyond those that are, strictly speaking, necessary to ensure that the detainee shows up at trial. For example, the Government must be able to take steps to maintain security and order at the institution and make certain no weapons or illicit drugs reach detainees. Restraints that are reasonably related to the institutions interest in maintaining jail security do not, without more, constitute unconstitutional punishment, even if they are discomforting and are restrictions that the detainee would not have experienced had he been released while awaiting trial. We need not here attempt to detail the precise extent of the legitimate governmental interests that may justify conditions or restrictions of pretrial detention. It is enough simply to recognize that in addition to ensuring the detainees presence at trial, the effective management of the detention facility once the individual is confined is a valid objective that may justify imposition of conditions and restrictions of pretrial detention and dispel any inference that such restrictions are intended as punishment.[30]

Alejano vs Cabuay

An action constitutes a punishment when (1) that action causes the inmate to suffer some harm or disability, and (2) the purpose of the action is to punish the inmate.[31] Punishment also requires that the harm or disability be significantly greater than, or be independent of, the inherent discomforts of confinement.[32]

Block v. Rutherford,[33] which reiterated Bell v. Wolfish, upheld the blanket restriction on contact visits as this practice was reasonably related to maintaining security. The safety of innocent individuals will be jeopardized if they are exposed to detainees who while not yet convicted are awaiting trial for serious, violent offenses and may have prior criminal conviction.[34] Contact visits make it possible for the detainees to hold visitors and jail staff hostage to effect escapes.[35] Contact visits also leave the jail vulnerable to visitors smuggling in weapons, drugs, and other contraband.[36] The restriction on contact visits was imposed even on low-risk detainees as they could also potentially be enlisted to help obtain contraband and weapons.[37] The security consideration in the imposition of blanket restriction on contact visits was ruled to outweigh the sentiments of the detainees.[38]

Block v. Rutherford held that the prohibition of contact visits bore a rational connection to the legitimate goal of internal security.[39] This case reaffirmed the hands-off doctrine enunciated in Bell v. Wolfish, a form of judicial self-restraint, based on the premise that courts should decline jurisdiction over prison matters in deference to administrative expertise.[40]

In the present case, we cannot infer punishment from the separation of the detainees from their visitors by iron bars, which is merely a limitation on contact visits. The iron bars separating the detainees from their visitors prevent direct physical contact but still allow the detainees to have visual, verbal, non-verbal and limited physical contact with their visitors. The arrangement is not unduly restrictive. In fact, it is not even a strict non-contact visitation regulation like in Block v. Rutherford. The limitation on the detainees physical contacts with visitors is a reasonable, non-punitive response to valid security concerns.

Alejano vs Cabuay

The boarding of the iron grills is for the furtherance of security within the ISAFP Detention Center. This measure intends to fortify the individual cells and to prevent the detainees from passing on contraband and weapons from one cell to another. The boarded grills ensure security and prevent disorder and crime within the facility. The diminished illumination and ventilation are but discomforts inherent in the fact of detention, and do not constitute punishments on the detainees.

We accord respect to the finding of the Court of Appeals that the conditions in the ISAFP Detention Center are not inhuman, degrading and cruel. Each detainee, except for Capt. Nicanor Faeldon and Capt. Gerardo Gambala, is confined in separate cells, unlike ordinary cramped detention cells. The detainees are treated well and given regular meals. The Court of Appeals noted that the cells are relatively clean and livable compared to the conditions now prevailing in the city and provincial jails, which are congested with detainees. The Court of Appeals found the assailed measures to be reasonable considering that the ISAFP Detention Center is a high-risk detention facility. Apart from the soldiers, a suspected New Peoples Army (NPA) member and two suspected Abu Sayyaf members are detained in the ISAFP Detention Center.

We now pass upon petitioners argument that the officials of the ISAFP Detention Center violated the detainees right to privacy when the ISAFP officials opened and read the letters handed by detainees Trillanes and Maestrecampo to one of the petitioners for mailing. Petitioners point out that the letters were not in a sealed envelope but simply folded because there were no envelopes in the ISAFP Detention Center. Petitioners contend that the Constitution prohibits the infringement of a citizens privacy rights unless authorized by law. The Solicitor General does not deny that the ISAFP officials opened the letters. Courts in the U.S. have generally permitted prison officials to open and read all incoming and outgoing mail of convicted prisoners to prevent the smuggling of contraband into the prison facility and to avert coordinated escapes.[41] Even in the absence of statutes specifically allowing prison authorities from opening and inspecting mail, such practice was upheld based on the principle of civil deaths.[42] Inmates were deemed to have no right to correspond confidentially with anyone. The only restriction placed upon prison authorities was that the right of inspection should not be used to delay unreasonably the communications between the inmate and his lawyer.[43]

Alejano vs Cabuay

Eventually, the inmates outgoing mail to licensed attorneys, courts, and court officials received respect.[44] The confidential correspondences could not be censored.[45] The infringement of such privileged communication was held to be a violation of the inmates First Amendment rights.[46] A prisoner has a right to consult with his attorney in absolute privacy, which right is not abrogated by the legitimate interests of prison authorities in the administration of the institution.[47] Moreover, the risk is small that attorneys will conspire in plots that threaten prison security.[48]

American jurisprudence initially made a distinction between the privacy rights enjoyed by convicted inmates and pre-trial detainees. The case ofPalmigiano v. Travisono[49] recognized that pre-trial detainees, unlike convicted prisoners, enjoy a limited right of privacy in communication. Censorship of pre-trial detainees mail addressed to public officials, courts and counsel was held impermissible. While incoming mail may be inspected for contraband and read in certain instances, outgoing mail of pre-trial detainees could not be inspected or read at all.

In the subsequent case of Wolff v. McDonnell,[50] involving convicted prisoners, the U.S. Supreme Court held that prison officials could open in the presence of the inmates incoming mail from attorneys to inmates. However, prison officials could not read such mail from attorneys. Explained the U.S. Supreme Court:

The issue of the extent to which prison authorities can open and inspect incoming mail from attorneys to inmates, has been considerably narrowed in the course of this litigation. The prison regulation under challenge provided that (a)ll incoming and outgoing mail will be read and inspected, and no exception was made for attorney-prisoner mail. x x x

Petitioners now concede that they cannot open and read mail from attorneys to inmates, but contend that they may open all letters from attorneys as long as it is done in the presence of the prisoners. The narrow issue thus presented is whether letters determined or found to be from attorneys may be opened by prison authorities in the presence of the inmate or whether such mail must be delivered unopened if normal detection techniques fail to indicate contraband.

Alejano vs Cabuay xxx

x x x If prison officials had to check in each case whether a communication was from an attorney before opening it for inspection, a near impossible task of administration would be imposed. We think it entirely appropriate that the State require any such communications to be specially marked as originating from an attorney, with his name and address being given, if they are to receive special treatment. It would also certainly be permissible that prison authorities require that a lawyer desiring to correspond with a prisoner, first identify himself and his client to the prison officials, to assure that the letters marked privileged are actually from members of the bar. As to the ability to open the mail in the presence of inmates, this could in no way constitute censorship, since the mail would not be read. Neither could it chill such communications, since the inmates presence insures that prison officials will not read the mail. The possibility that contraband will be enclosed in letters, even those from apparent attorneys, surely warrants prison officials opening the letters. We disagree with the Court of Appeals that this should only be done in appropriate circumstances. Since a flexible test, besides being unworkable, serves no arguable purpose in protecting any of the possible constitutional rights enumerated by respondent, we think that petitioners, by acceding to a rule whereby the inmate is present when mail from attorneys is inspected, have done all, and perhaps even more, than the Constitution requires.[51]

In Hudson v. Palmer,[52] the U.S. Supreme Court ruled that an inmate has no reasonable expectation of privacy inside his cell. The U.S. Supreme Court explained that prisoners necessarily lose many protections of the Constitution, thus:

However, while persons imprisoned for crime enjoy many protections of the Constitution, it is also clear that imprisonment carries with it the circumscription or loss of many significant rights. These constraints on inmates, and in some cases the complete withdrawal of certain rights, are justified by the considerations underlying our penal system. The curtailment of certain rights is necessary, as a practical matter, to accommodate a myriad of institutional needs and objectives of prison facilities, chief among which is internal security. Of course, these restrictions or retractions also serve, incidentally, as reminders that, under our system of justice, deterrence and retribution are factors in addition to correction.[53]

The later case of State v. Dunn,[54] citing Hudson v. Palmer, abandoned Palmigiano v. Travisono and made no distinction as to the detainees limited right to privacy. State v. Dunn noted the considerable jurisprudence in the United States holding that inmate mail may be

Alejano vs Cabuay

censored for the furtherance of a substantial government interest such as security or discipline. State v. Dunn declared that if complete censorship is permissible, then the lesser act of opening the mail and reading it is also permissible. We quote State v. Dunn:

[A] right of privacy in traditional Fourth Amendment terms is fundamentally incompatible with the close and continual surveillance of inmates and their cells required to ensure institutional security and internal order. We are satisfied that society would insist that the prisoners expectation of privacy always yield to what must be considered a paramount interest in institutional security. We believe that it is accepted by our society that *l+oss of freedom of choice and privacy are inherent incidents of confinement.

The distinction between the limited privacy rights of a pre-trial detainee and a convicted inmate has been blurred as courts in the U.S. ruled that pre-trial detainees might occasionally pose an even greater security risk than convicted inmates. Bell v. Wolfish reasoned that those who are detained prior to trial may in many cases be individuals who are charged with serious crimes or who have prior records and may therefore pose a greater risk of escape than convicted inmates.[55] Valencia v. Wiggins[56] further held that it is impractical to draw a line between convicted prisoners and pre-trial detainees for the purpose of maintaining jail security.

American cases recognize that the unmonitored use of pre-trial detainees non-privileged mail poses a genuine threat to jail security.[57] Hence, when a detainee places his letter in an envelope for non-privileged mail, the detainee knowingly exposes his letter to possible inspection by jail officials.[58] A pre-trial detainee has no reasonable expectation of privacy for his incoming mail.[59] However, incoming mail from lawyers of inmates enjoys limited protection such that prison officials can open and inspect the mail for contraband but could not read the contents without violating the inmates right to correspond with his lawyer.[60] The inspection of privileged mail is limited to physical contraband and not to verbal contraband.[61]

Thus, we do not agree with the Court of Appeals that the opening and reading of the detainees letters in the present case violated the detainees right to privacy of communication.

Alejano vs Cabuay

The letters were not in a sealed envelope. The inspection of the folded letters is a valid measure as it serves the same purpose as the opening of sealed letters for the inspection of contraband.

The letters alleged to have been read by the ISAFP authorities were not confidential letters between the detainees and their lawyers. The petitioner who received the letters from detainees Trillanes and Maestrecampo was merely acting as the detainees personal courier and not as their counsel when he received the letters for mailing. In the present case, since the letters were not confidential communication between the detainees and their lawyers, the officials of the ISAFP Detention Center could read the letters. If the letters are marked confidential communication between the detainees and their lawyers, the detention officials should not read the letters but only open the envelopes for inspection in the presence of the detainees.

That a law is required before an executive officer could intrude on a citizens privacy rights is a guarantee that is available only to the public at large but not to persons who are detained or imprisoned. The right to privacy of those detained is subject to Section 4 of RA 7438, as well as to the limitations inherent in lawful detention or imprisonment. By the very fact of their detention, pre-trial detainees and convicted prisoners have a diminished expectation of privacy rights.
[62]

In assessing the regulations imposed in detention and prison facilities that are alleged to infringe on the constitutional rights of the detainees and convicted prisoners, U.S. courts balance the guarantees of the Constitution with the legitimate concerns of prison administrators.[63] The deferential review of such regulations stems from the principle that:

[s]ubjecting the day-to-day judgments of prison officials to an inflexible strict scrutiny analysis would seriously hamper their ability to anticipate security problems and to adopt innovative solutions to the intractable problems of prison administration.[64]

Alejano vs Cabuay

The detainees in the present case are junior officers accused of leading 300 soldiers in committing coup detat, a crime punishable with reclusion perpetua.[65] The junior officers are not ordinary detainees but visible leaders of the Oakwood incident involving an armed takeover of a civilian building in the heart of the financial district of the country. As members of the military armed forces, the detainees are subject to the Articles of War.[66]

Moreover, the junior officers are detained with other high-risk persons from the Abu Sayyaf and the NPA. Thus, we must give the military custodian a wider range of deference in implementing the regulations in the ISAFP Detention Center. The military custodian is in a better position to know the security risks involved in detaining the junior officers, together with the suspected Abu Sayyaf and NPA members. Since the appropriate regulations depend largely on the security risks involved, we should defer to the regulations adopted by the military custodian in the absence of patent arbitrariness.

The ruling in this case, however, does not foreclose the right of detainees and convicted prisoners from petitioning the courts for the redress of grievances. Regulations and conditions in detention and prison facilities that violate the Constitutional rights of the detainees and prisoners will be reviewed by the courts on a case-by-case basis. The courts could afford injunctive relief or damages to the detainees and prisoners subjected to arbitrary and inhumane conditions. However, habeas corpus is not the proper mode to question conditions of confinement.[67] The writ of habeas corpus will only lie if what is challenged is the fact or duration of confinement.[68]

WHEREFORE, we DISMISS the petition. We AFFIRM the Decision of the Court of Appeals in CA-G.R. SP No. 78545.

No pronouncement as to costs.

SO ORDERED.

Re: Conviction of Judge Adoracion

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION A.M. No. 06-9-545-RTC January 31, 2008

Re: CONVICTION OF JUDGE ADORACION G. ANGELES, REGIONAL TRIAL COURT, BRANCH 121, CALOOCAN CITY IN CRIMINAL CASE NOS. Q-97-69655 to 56 FOR CHILD ABUSE DECISION NACHURA, J.: Before this Court is yet another administrative case confronting respondent Adoracion G. Angeles (respondent), Presiding Judge of the Regional Trial Court (RTC), Branch 121, Caloocan City (sala) filed by the Office of the Court Administrator1 (OCA) recommending that she be suspended pending the outcome of this administrative case. The Facts On July 17, 2006, the RTC, Branch 100, Quezon City rendered a Decision2 in Criminal Case Nos. Q-97-69655-56 convicting respondent of violation of Republic Act (RA) No. 7610.3 The criminal cases are now on appeal before the Court of Appeals (CA).4 On July 25, 2006, Senior State Prosecutor Emmanuel Y. Velasco (SSP Velasco) of the Department of Justice (DOJ) wrote a letter5 to then Chief Justice Artemio V. Panganiban inquiring whether it is possible for this Court, in the public interest, motu proprio to order the immediate suspension of the respondent in view of the aforementioned RTC Decision. SSP Velasco opined: 1. Judge Angeles now stands convicted on two counts of a crime, child abuse under Republic Act 7610, which involves moral turpitude. Until she clears her name of such conviction, her current moral qualification to do the work of a judge is under a dark cloud. Litigants seeking justice in our courts are entitled to a hearing by judges whose moral qualifications are not placed in serious doubt. 2. Although her conviction is not yet final, the presumption of innocence that Judge Angeles enjoyed during the pendency of the trial has already been overcome by its result. The presumption today is that she is guilty and must clear her name of the charges. xxxx It simply would not be right to have a person presumably guilty of a crime involving moral turpitude to hear and adjudicate the cases of others. 3. Under section 5 of Rule 114 of the Rules of Criminal Procedure, since the RTC of Quezon City convicted Judge Angeles of an offense not punishable by death, reclusion perpetua or life imprisonment, she no longer has a right to bail and, therefore, should ordinarily be held in prison pending adjudication of her appeal. That the RTC of Quezon City chose to exercise its discretionary power to nonetheless grant her bail does not change the fact that, except for the bail, Judge Angeles' rightful place by reason of conviction is within the confinement of prison. It would seem incongruous for the Supreme Court to allow convicted felons out on bail to hear and adjudicate cases in its courts.

Re: Conviction of Judge Adoracion 4. Finally, as a sitting judge who wields power over all persons appearing before her and has immeasurable influence within the judicial system as one of its members, Judge Angeles could definitely cause pressure to bear, not only on the members of the Court of Appeals and, possibly, the Supreme Court, but also on the Office of the Solicitor General that prosecutes her case on appeal. Only temporary suspension from official function, pending resolution of her case, will neutralize her judicial clout and clear the air of any kind of suspicion that justice is not going well in her case.
On July 27, 2006, the matter was referred to the OCA for comment and recommendation.6 On the basis of SSP Velasco's letter and by virtue of this Court's Resolution7 dated March 31, 1981, the OCA submitted to this Court a Report8 dated August 25, 2006 with an attached Administrative Complaint,9 the dispositive portion of which reads as follows: WHEREFORE, it is respectfully prayed that this administrative complaint be given due course and, respondent be ordered to file her Comment within ten (10) days from receipt. Considering the evidence is prima facie strong, it is respectfully recommended that she be INDEFINITELY SUSPENDED pending the outcome of the instant case or until further orders from this Court. It is further recommended that after the Comment is filed, the administrative proceeding be suspended to await the final outcome of the criminal cases filed against her. In a Resolution10 dated September 18, 2006, this Court's Second Division approved all of these recommendations, thus, suspending respondent from performing her judicial functions while awaiting the final resolution of her criminal cases or until further orders from this Court. On October 6, 2006, respondent filed an Urgent Motion for Reconsideration11 of the aforementioned Resolution. Respondent claimed that the suspension order was wielded against her without affording her the opportunity to be heard since she was not furnished copies of SSP Velasco's letter and OCA's Administrative Complaint. Thus, respondent submitted that her suspension is essentially unjust. Moreover, respondent manifested that the two criminal cases against her are on appeal before the CA and have, therefore, not yet attained finality. As such, respondent still enjoys the constitutional presumption of innocence and her suspension clashes with this presumption and is tantamount to a prejudgment of her guilt. On the other hand, on October 11, 2006, SSP Velasco filed an Urgent Appeal/Manifestation12 to the Court En Banc on the alleged unethical conduct of respondent, seeking the immediate implementation of this Court's Resolution dated September 18, 2006. On October 16, 2007, SSP Velasco filed an Opposition to the said Motion for Reconsideration,13 manifesting that respondent continuously defied this Court's Resolution dated September 18, 2006 as she did not desist from performing her judicial functions despite her receipt of said Resolution on October 6, 2006. SSP Velasco stressed that an order of suspension issued by this Court is immediately executory notwithstanding the filing of a motion for reconsideration. Moreover, SSP Velasco reiterated that due to her conviction on two counts of child abuse, respondent no longer enjoys the constitutional presumption of innocence and should remain suspended in order to erase any suspicion that she is using her influence to obtain a favorable decision and in order to maintain and reaffirm the people's faith in the integrity of the judiciary. Correlatively, the Integrated Bar of the Philippines-Caloocan, Malabon, Navotas Chapter (IBP-CALMANA Chapter), through its Public Relations Officer (PRO) Atty. Emiliano A. Mackay, wrote a letter14 dated October 18, 2006 addressed to the Second Division of this Court inquiring as to the effectivity of the Resolution suspending the respondent so as not to sow confusion among the legal practitioners and party litigants with pending cases before the respondent's sala. Likewise, the IBP-CALMANA Chapter manifested that respondent did not cease to perform her judicial functions as evidenced by a Commitment Order15 issued by respondent on October 16, 2006, and handwritten manifestations16 of some party litigants attesting that on various dates they attended hearings before respondent's sala. In the same vein, in an undated letter17 addressed to Associate Justice Angelina Sandoval-Gutierrez, the Concerned Trial Lawyers in the City of Caloocan raised the same concern before this Court. In her Reply18 to SSP Velasco's Opposition, respondent admitted that she continued discharging her bounden duties in utmost good faith after filing her motion for reconsideration. She averred that she did not have the slightest intention to defy or ignore this Court's Resolution which did not categorically state that the said suspension is immediately executory. Respondent reiterated her arguments against the suspension order on the grounds that she was deprived of

Re: Conviction of Judge Adoracion due process; that her conviction is not yet final; and that the crimes for which she was convicted have nothing to do with the discharge of her official duties. Lastly, respondent claimed that the instant case is but another harassment suit filed against her by SSP Velasco because she earlier filed an administrative complaint against the latter for maliciously indicting respondent with respect to another case of child abuse.
On October 25, 2006, respondent filed a Manifestation of Voluntary Inhibition19 stating that she is voluntarily inhibiting from handling all cases scheduled for hearing before her sala from October 25, 2006 to November 13, 2006. On October 27, 2006, the OCA conducted a judicial audit in respondent's sala. Per Report20 of the judicial audit team, it was established that from October 6, 2006 to October 23, 2006, respondent conducted hearings, issued orders, decided cases and resolved motions, acting as if the order of suspension which the respondent received on October 6, 2006 was only a "mirage." The Report was brought to the attention of Chief Justice Reynato S. Puno by Court Administrator Christopher O. Lock (CA Lock).21 On October 30, 2006, SSP Velasco filed an Administrative Complaint against respondent for violation of the Court's Circulars, the New Code of Judicial Conduct, and the Civil Service Rules and Regulations, and for Gross Misconduct, asseverating, among others, that the suspension order was immediately executory22 and that integrity as mandated by the New Code of Judicial Conduct is essential not only to the proper discharge of the judicial office but also to the personal demeanor of judges. In her Comment,23 respondent, in addition to her previous contentions, argued that the Resolution dated September 18, 2006 ordering her suspension was issued only by a Division of this Court contrary to Section 11, Article VIII of the Constitution, which provides that "the Supreme Court en banc shall have the power to discipline judges of lower courts, or order their dismissal by a vote of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon." On November 9, 2006, SSP Velasco filed a Supplement to the Opposition to Respondent's Urgent Motion for Reconsideration24 of the Resolution dated September 18, 2006. Thereafter, numerous pleadings25 were filed by both parties practically repeating their previous allegations. Subsequently, in a Resolution dated February 19, 2007, this Court lifted the suspension of respondent on the ground that: Upon verification, it appears that the Office of the Clerk of Court, Second Division, indeed failed to attach a copy of the OCA complaint to the copy of our resolution dated September 18, 2006 sent to Judge Angeles. Due process requires that Judge Angeles be accorded the opportunity to answer the complaint. Respondent was then given a fresh period of ten (10) days from the receipt of the OCA Administrative Complaint within which to file her comment. On March 15, 2007, respondent filed her Comment26 with the following material assertions: (1) that CA Lock as Court Administrator and who in behalf of the OCA stands as the complainant in this case, has no personal knowledge of the facts, issues and evidence presented in the criminal cases; (2) that the instant case, filed eleven (11) years after the criminal charges for child abuse were filed by Nancy Gaspar and Proclyn Pacay, smacks of malice and bad faith on the part of CA Lock; (3) that CA Lock is a friend and former subordinate of then National Bureau of Investigation (NBI) Director Epimaco Velasco (Director Velasco), father of herein party SSP Velasco, thus, CA Lock's ill motive against respondent is clear; (4) that CA Lock should not use the OCA to harass a member of the judiciary; (5) that the decision in the aforementioned criminal cases has not yet become final; (6) that the acts for which she was convicted are totally alien to her official functions and have nothing to do with her fitness and competence as a judge; (7) that there is no wisdom in the imposition of the suspension which in this case is preventive in character because respondent cannot do anything through her office that could possibly cause prejudice to the prosecution of the child abuse case; (8) that the lifting of the suspension order retroacts to the date of its issuance; (9) that the instant case should be struck down because the judgment of conviction was contrary to law and jurisprudence; and (10) that under the circumstances, all the charges were merely concocted by respondent's detractors in order to embarrass, humiliate and vex her.

Re: Conviction of Judge Adoracion In his Motion for Reconsideration27 of this Court's Resolution dated February 19, 2007, SSP Velasco argued that respondent's deprivation of her right to due process was cured when she filed her motion for the reconsideration of the suspension order; thus, there is no need to lift such order. He reiterated his previous statement that "as a sitting judge who wields power over all persons appearing before her and thus has immeasurable influence within the judicial system as one of its members, Judge Angeles could definitely cause pressure to bear, not only on the members of the Court of Appeals and, possibly, the Supreme Court, but also on the Office of the Solicitor General (OSG) that prosecutes her case on appeal. Only her suspension from official function, pending resolution of her case, will neutralize her judicial clout and clear the air of any kind of suspicion that justice is not going well in her case."28
In response, respondent filed a Comment/Opposition to the said motion with a Motion to Declare SSP Velasco in contempt of Court29 due to this aforementioned statement. Respondent argued that such statement betrays SSP Velasco's cheap and low perception of the integrity and independence of this Court, of the CA and of the OSG. It also shows his utter lack of respect for the judicial system. Moreover, respondent added that since she was not furnished a copy of the OCA Administrative Complaint, the issuance of the suspension order deprived her of her right to due process and prevented her from fully ventilating her arguments. Respondent, likewise, questioned SSP Velasco's legal personality in this case as it was the OCA which, motu proprio, initiated the filing of the said case. In a Resolution dated July 4, 2007, this Court, among others, directed SSP Velasco to file his comment on respondent's motion to cite him for contempt. On August 21, 2007, SSP Velasco filed his Comment claiming that he has legal personality to file pleadings before this Court because it was he who initiated the filing of this case through his letter to then Chief Justice Artemio V. Panganiban on July 25, 2006. He admitted that the allegedly contemptuous statements were merely lifted from said letter. He argued that the former Chief Justice or the Court for that matter, did not find any contemptuous statement in the letter. Taking the letter in its entire context, SSP Velasco posited that he did not commit any act of disobedience to the orders of this Court; neither did he bring the Court's authority and the administration of law into disrepute nor did he impede the due administration of justice. Nowhere in the letter was it stated that this Court, the CA and the OSG could be pressured; the letter merely stated that respondent could cause pressure. SSP Velasco pointed that the letter to the then Chief Justice, in itself, shows his respect for the judiciary and the promotion of the administration of justice. In her Reply30 to said Comment, respondent argued that it cannot be said that somebody could cause pressure if no one is believed to be susceptible to pressure. Thus, the use of this kind of language tends to degrade the administration of justice and constitutes indirect contempt. She stressed that SSP Velasco's act of misrepresenting himself as the complainant in this case while it is clear from the Resolution of this Court that the OCA motu propriofiled the same, is per se contemptuous. Meanwhile in its Memorandum,31 the OCA reiterated its earlier position that respondent should be suspended pending the outcome of this administrative case. The OCA opined that the Resolution lifting the suspension order was basically premised on the ground that respondent was not accorded her right to due process. By filing her Comment raising arguments against her suspension, respondent has fully availed herself of such right. However, the OCA submitted that respondent's arguments are devoid of merit on the following grounds: (1) the Court Administrator need not personally know about the criminal cases of respondent because the instant case is based on a public document, i.e., the decision of the RTC convicting the respondent of child abuse; (2) the fact that said decision has not attained finality is of no moment for what is being sought is merely preventive suspension. Thus, in the event that respondent is acquitted in the criminal cases of which she stands accused, she will receive the salaries and other benefits which she would not receive during her suspension; (3) even if the acts of child abuse have no connection with respondent's official functions as a judge, it is established that the private conduct of judges cannot be dissociated from their official functions; (4) respondent's preventive suspension shall serve an important purpose: it will protect the image of the judiciary and preserve the faith of the people in the same; and (5) citing the case of Leonida Vistan v. Judge Ruben T. Nicolas,32 the RTC decision convicting respondent of child abuse is prima facie evidence that respondent committed the said crime which indicates the moral depravity of the offender and, as such, warrants the punishment of dismissal from the service. Thus, the OCA recommended that respondent be suspended pending the outcome of this administrative case and that the CA be directed to resolve the criminal cases with dispatch. The Issues

Re: Conviction of Judge Adoracion There are two ultimate issues in this case:
First, whether or not grounds exist to cite SSP Velasco for indirect contempt of Court; and Second, whether or not grounds exist to preventively suspend the respondent pending the resolution of this administrative case. The Court's Ruling We resolve the first issue in the negative. In Pilar Barredo-Fuentes v. Judge Romeo C. Albarracin,33 we held: Contempt of court is a defiance of the authority, justice or dignity of the court, such conduct as tends to bring the authority and administration of the law into disrespect or to interfere with or prejudice parties, litigant or their witnesses during litigation. There are two kinds of contempt punishable by law: direct contempt and indirect contempt. Direct contempt is committed when a person is guilty of misbehavior in the presence of or so near a court as to obstruct or interrupt the proceedings before the same, including disrespect toward the court, offensive personalities toward others, or refusal to be sworn or to answer as a witness, or to subscribe an affidavit or deposition when lawfully required to do so. Indirect contempt or constructive contempt is that which is committed out of the presence of the court. Any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade the administration of justice would constitute indirect contempt. In her Comment/Opposition with Motion to Declare SSP Velasco in contempt of Court, respondent espoused the view that SSP Velasco is guilty of indirect contempt for using language which tends to degrade the administration of justice. But if this were so, respondent should have availed herself of the remedy in accordance with Section 4, Rule 71 of the Rules of Court, viz: SEC. 4. How proceedings commenced. - Proceedings for indirect contempt may be initiated motu proprio by the court against which the contempt was committed by an order or any other formal charge requiring the respondent to show cause why he should not be punished for contempt. In all other cases, charges for indirect contempt shall be commenced by a verified petition with supporting particulars and certified true copies of documents or papers involved therein, and upon full compliance with the requirements for filing initiatory pleadings for civil actions in the court concerned . . . . (Emphasis supplied) A charge of indirect contempt must be filed in the form of a verified petition if it is not initiated directly by the court against which the contemptuous act was committed. On previous occasions, we clarified that such petition is in the nature of a special civil action. Certified true copies of related documents must be submitted with the petition and appropriate docket fees must be paid. The requirement of a verified petition is mandatory. As Justice Florenz D. Regalado has explained: This new provision clarifies with a regulatory norm the proper procedure for commencing contempt proceedings. While such proceeding has been classified as a special civil action under the former Rules, the heterogeneous practice, tolerated by the courts, has been for any party to file a mere motion without paying any docket or lawful fees therefor and without complying with the requirements for initiatory pleadings, which is now required in the second paragraph of [Section 4].34 On the charge of indirect contempt of court, we therefore find that SSP Velasco's statement, while irresponsible, did not necessarily degrade the administration of justice as to be considered contumacious. The salutary rule is that the power to punish for contempt must be exercised on the preservative, not vindictive principle, and on the corrective and not retaliatory idea of punishment. A lawyer's remarks explaining his position in a case under consideration do not

Re: Conviction of Judge Adoracion necessarily assume the level of contempt that justifies the court's exercise of the power of contempt.35 We note that SSP Velasco's statement was made in support of his argument for the imposition of preventive suspension, i.e., to prevent the respondent from using her current position to alter the course of the investigation and the disposition of the appealed criminal cases.
Nevertheless, SSP Velasco must bear in mind that as a lawyer, he must be circumspect in his language. We remind him of our admonition to all lawyers to observe the following Canons of the Code of Professional Responsibility, which read: Canon 8. Rule 8.01 - A lawyer shall not, in his professional dealings, use language which is abusive, offensive or otherwise improper. Canon 11. A lawyer shall observe and maintain the respect due to the courts and to judicial officers and should insist on similar conduct by others. A lawyer is an officer of the Court. It is a lawyer's sworn and moral duty to help build and not unnecessarily destroy the people's high esteem and regard for the courts so essential to the proper administration of justice. A lawyer's language may be forceful but should always be dignified; emphatic but respectful, as befitting an advocate. Arguments, whether written or oral, should be gracious to both court and opposing counsel, and should use such language as may be properly addressed by one person to another.36 We likewise resolve the second issue in the negative. The Court cannot fully agree with the recommendation of the OCA. Pertinent is our ruling in Emmanuel Ymson Velasco v. Judge Adoracion G. Angeles,37 which involved the same parties and where we held: An act unrelated to a judge's discharge of judicial functions may give rise to administrative liability even when such act constitutes a violation of penal law. When the issue is administrative liability, the quantum of proof required is only substantial evidence, or that amount of relevant evidence which a reasonable mind might accept as adequate to support a conclusion. Evidence to support a conviction in a criminal case is not necessary, and the dismissal of the criminal case against the respondent in an administrative case is not a ground for the dismissal of the administrative case. Conversely, conviction in the criminal case will not automatically warrant a finding of guilt in the administrative case. We emphasize the well-settled rule that criminal and civil cases are altogether different from administrative matters, and each must be disposed of according to the facts and the law applicable to it. In Nuez v. Atty. Arturo B. Astorga,38 the Court held that the mere existence of pending criminal charges against the respondent-lawyer cannot be a ground for disbarment or suspension of the latter. To hold otherwise would open the door to harassment of attorneys through the mere filing of numerous criminal cases against them. By parity of reasoning, the fact of respondent's conviction by the RTC does not necessarily warrant her suspension. We agree with respondent's argument that since her conviction of the crime of child abuse is currently on appeal before the CA, the same has not yet attained finality. As such, she still enjoys the constitutional presumption of innocence. It must be remembered that the existence of a presumption indicating the guilt of the accused does not in itself destroy the constitutional presumption of innocence unless the inculpating presumption, together with all the evidence, or the lack of any evidence or explanation, proves the accused's guilt beyond a reasonable doubt. Until the accused's guilt is shown in this manner, the presumption of innocence continues.39 InMangubat v. Sandiganbayan,40 the Court held that respondent Sandiganbayan did not act with grave abuse of discretion, correctible by certiorari, when it ruled that despite her convictions, "Preagido has still in her favor the constitutional presumption of innocence x x x (and until) a promulgation of final conviction is made, this constitutional mandate prevails." The Court therein further held that such ruling is not bereft of legal or logical foundation and cannot, in any sense, be characterized as a whimsical or capricious exercise of judgment. So also must we hold in this case.

Re: Conviction of Judge Adoracion Moreover, it is established that any administrative complaint leveled against a judge must always be examined with a discriminating eye, for its consequential effects are, by their nature, highly penal, such that the respondent judge stands to face the sanction of dismissal or disbarment.41 As aforementioned, the filing of criminal cases against judges may be used as tools to harass them and may in the long run create adverse consequences. The OCA, as well as SSP Velasco, failed to prove that other than the fact that a judgment of conviction for child abuse was rendered against the respondent, which is still on appeal, there are other lawful grounds to support the imposition of preventive suspension. Based on the foregoing disquisition, the Court is of the resolve that, while it is true that preventive suspension pendente lite does not violate the right of the accused to be presumed innocent as the same is not a penalty,42 the rules on preventive suspension of judges, not having been expressly included in the Rules of Court, are amorphous at best.43 Likewise, we consider respondent's argument that there is no urgency in imposing preventive suspension as the criminal cases are now before the CA, and that she cannot, by using her present position as an RTC Judge, do anything to influence the CA to render a decision in her favor. The issue of preventive suspension has also been rendered moot as the Court opted to resolve this administrative case.
However, even as we find that the OCA and SSP Velasco have not clearly and convincingly shown ample grounds to warrant the imposition of preventive suspension, we do note the use of offensive language in respondent's pleadings, not only against SSP Velasco but also against former CA Lock. To reiterate our previous ruling involving the respondent, her use of disrespectful language in her Comment is certainly below the standard expected of an officer of the court. The esteemed position of a magistrate of the law demands temperance, patience and courtesy both in conduct and in language.44 Illustrative are the following statements: "CA Lock's hostile mindset and his superstar complex";45 "In a frenzied display of arrogance and power";46 "(CA Lock's) complaint is merely a pathetic echo of the findings of the trial court";47 and "when (CA Lock) himself loses his objectivity and misuses the full powers of his Office to persecute the object of his fancy, then it is time for him to step down."48 In the attempt to discredit CA Lock, respondent even dragged CA Lock's son into the controversy, to wit: It is noteworthy to mention that CA Lock's hostile attitude was aggravated by his embarrassment when the undersigned mentioned to him that she knew how he used his influence to secure a position for his son at the RTC Library of Pasay City which was then managed by Judge Priscilla Mijares. CA Lock had made sure that his son be assigned to the library to enable the latter to conveniently adjust his schedule in reviewing for the bar examination. Neither was SSP Velasco spared. Of him, the respondent said: "A reading of the motion for reconsideration readily discloses that it is mainly anchored on SSP Velasco's malicious speculations about the guilt of the undersigned.Speculations, especially those that emanate from the poisonous intentions of attention-seeking individuals, are no different from garbage that should be rejected outright";49 and "His malicious insinuation is no less than a revelation of his warped mindset that a person's position could cause pressure to bear among government officials. This brings forth a nagging question. Did SSP Velasco use his position at the DOJ to 'cause pressure to bear' and obtain a favorable disposition of the administrative cases lodged against him by the undersigned? Is he afraid of his own ghost?"50 It must be stressed again that, as a dispenser of justice, respondent should exercise judicial temperament at all times, avoiding vulgar and insulting language. She must maintain composure and equanimity. The judicial office circumscribes the personal conduct of a judge and imposes a number of restrictions. This is the price that judges have to pay for accepting and occupying their exalted positions in the administration of justice.51 One final word. The parties herein have admitted in their various pleadings that they have filed numerous cases against each other. We do not begrudge them the prerogative to initiate charges against those who, in their opinion, may have wronged them. But it is well to remind them that this privilege must be exercised with prudence, when there are clearly lawful grounds, and only in the pursuit of truth and justice. This prerogative does not give them the right to institute shotgun charges with reckless abandon, or allow their disagreement to deteriorate into a puerile quarrel, not unlike that of two irresponsible children. Judge Angeles and SSP Velasco should bear in mind that they are high-ranking public officers whom the people look up to for zealous, conscientious and responsive public service. Name-calling hardly becomes them.

Re: Conviction of Judge Adoracion Cognizant of the adverse impact and unpleasant consequences this continuing conflict will inflict on the public service, we find both officials wanting in the conduct demanded of public servants.
WHEREFORE, the instant administrative complaint is hereby DISMISSED for lack of merit. Nevertheless, respondent Adoracion G. Angeles, Presiding Judge of the Regional Trial Court of Caloocan City, Branch 121, is hereby REPRIMANDED for her use of intemperate language in her pleadings and is STERNLY WARNED that a repetition of the same or similar act shall merit a more severe sanction. Senior State Prosecutor Emmanuel Y. Velasco of the Department of Justice is hereby WARNED that he should be more circumspect in the statements made in his pleadings and that a repetition of the same shall be dealt with more severely. The motion to cite him for contempt is DENIED for lack of merit. The Court of Appeals is DIRECTED to resolve CA-G.R. CR No. 30260 involving respondent Judge Adoracion G. Angeles with dispatch. SO ORDERED.

People vs Abulon

EN BANC
THE PEOPLE OF THE PHILIPPINES, G.R. No. 174473 Appellee, Present: PUNO, C.J., QUISUMBING, YNARES-SANTIAGO, - versus - SANDOVAL-GUTIERREZ, CARPIO, AUSTRIA-MARTINEZ, CORONA, CARPIO-MORALES, AZCUNA, ALVIN ABULON y SALVANIA, TINGA, Appellant. CHICO-NAZARIO, GARCIA, VELASCO, JR., NACHURA, and REYES, JJ. Promulgated: August 17, 2007 x-------------------------------------------------------------------------------- x DECISION

People vs Abulon

Tinga, J.: For automatic review is the decision1 of the Court of Appeals (CA) dated 28 April 2006, affirming with modification the decision2 of the Regional Trial Court (RTC) of Santa Cruz, Laguna, Branch 28,3 dated 27 December 2000, finding him guilty beyond reasonable doubt of two (2) counts of qualified rape and one (1) count of acts of lasciviousness. In three (3) separate Informations4 for Criminal Cases No. SC-7422, SC-7423 and SC-7424 all dated 16 June 1999, appellant was indicted before the RTC for three (3) counts of qualified rape against his minor daughter AAA.5 The accusatory portions in all the Informations are identical, except as regards the date of commission of the crime. The Information in Criminal Case No. SC-7422 reads: At the instance of the private complainant [AAA] with the conformity of her mother [BBB] 6 in a sworn complaint filed with the Municipal Circuit Trial Court of Lumban-Kalayaan (Laguna), the undersigned Assistant Provincial Prosecutor of Laguna hereby accuses ALVIN ABULON Y SALVANIA, of the crime of "RAPE," committed as follows: "That on or about March 14, 1999, in the Municipality of Kalayaan, Province of Laguna, and within the jurisdiction of this Honorable Court, the above-named accused, with lewd designs, with grave abuse of confidence or obvious ungratefulness, and with force and intimidation, did then and there wilfully [sic], unlawfully and feloniously have carnal knowledge of his legitimate minor daughter, [AAA], who at the [sic] time was thirteen (13) years of age, against her will and consent and to her damage and prejudice." CONTRARY TO LAW. After appellant pleaded not guilty, trial ensued with AAA herself, as the first prosecution witness, testifying to the following facts: AAA is the oldest of five (5) legitimate children born to appellant and BBB. On 14, 15, and 16 March 1999, appellant raped AAA. The first rape incident occurred at around 1:30 in the morning of 14 March 1999. AAA was home, fast asleep next to her brother and sister when she suddenly woke up to the noise created by her father who arrived drunk, but who likewise soon thereafter returned to the wedding festivities he was attending. Abiding by their fathers instructions, AAA and her siblings went back to sleep.7 AAA was next awakened by the weight of her father lying naked on top of her. Appellant had removed her underwear while she slept. He poked a knife on AAAs waist and threatened to kill her and her siblings if she reported the incident to anyone. She begged him to stop but he proceeded to kiss her mouth, vagina, and breast, and to have carnal knowledge of her.8 Although they witnessed the ongoing ordeal, AAAs siblings could do nothing but cry as appellant like wise poked the knife on them.9 The following morning, AAA found a whitish substance and blood stains on her panty.10 On 15 March 1999, at around 10:30 in the evening, AAA and her siblings were awakened as appellant came home drunk. He told them to eat first as they had not taken their supper yet. After dining together, appellant left and AAA, her brother, and her sister went back to sleep.11 As in the previous

People vs Abulon

evening, appellant roused AAA in mid-sleep. This time, she woke up with her father holding her hand, covering her mouth and lying on top of her. He undressed AAA, then mounted her. Repeatedly, he inserted his penis into her vagina, and AAA felt pain in her private parts. Appellant also kissed and fondled AAA on different parts of her body.12 Again, AAAs siblings could only cry as they saw appellant rape their sister. AAAs sister, however, took a pen and wrote her a note which read: "Ate, let us tell what father was doing to the police officer." After appellant had raped AAA, the latters sister asked their father why he had done such to AAA. In response, appellant spanked AAAs sister and threatened to kill all of them should they report the incidents to the police.13 The sisters nonetheless related to their relatives AAAs misfortune, but the relatives did not take heed as they regarded appellant to be a kind man.14 The third rape episode happened at around 3:30 in the morning of 16 March 1999. Although appellant did not insert his penis into AAAs vagina on this occasion, he took off her lower undergarments and kissed her vagina.15 On cross-examination, AAA asserted that her father inserted his tongue into the hole of her vagina and she felt pain because of this.16 To corroborate AAAs testimony, the prosecution presented BBB and AAAs 6-year old brother CCC.17 BBB testified that she was a stay-in housemaid working in Las Pias on the dates that her daughter was raped by appellant. On 26 March 1999, she went home and stayed with her family. However, it was only on 4 May 1999 that BBB learned of the rape, when CCC told her that appellant had raped AAA three (3) times and that he had seen his father on top of his sister during those occasions. BBB then verified the matter with AAA herself, and the latter affirmed the incidents. BBB thus took AAA with her to the barangay and police authorities to report the incidents, and later to the provincial hospital for medical examination.18 CCC testified that on three (3) separate occasions, he saw his father lying naked on top of AAA, who was likewise naked.19 The prosecution also presented SPO1 Bayani G. Montesur (SPO1 Montesur) and Dr. Gloria Cabael (Dr. Cabael). SPO1 Montesur identified the Police Blotter of 4 May 1999 which recorded the complaints of rape against appellant and the report of the latters arrest.20 Dr. Cabael, on the other hand, testified that she examined AAA on 4 May 1999 upon the request of Police Officer Gallarosa. She identified the Rape Case Report she prepared thereafter.21 Appellant testified as the sole witness on his behalf, proffering denial and alibi as his defenses. According to appellant, he was hired by his aunt, Raquel Masangkay, to deliver hogs and that at 1:30 in the morning of 14 March 1999, he was in Calamba, Laguna pursuant to such employment. He averred that he went home at 7:00 in the morning of the following day and thus could not have raped his daughter as alleged.22 Likewise denying the second rape charge, appellant testified that on 15 March 1999, he attended a wedding ceremony in Sityo Kalayaan, San Antonio, Kalayaan, Laguna. He went home drunk at 6:00 that evening and promptly went to sleep.23 Similarly, at 3:00 in the morning of 16 March 1999, appellant claimed to have been asleep with his children and could not have thus committed the rape as charged.24

People vs Abulon

Finding that the prosecution had proven beyond reasonable doubt the guilt of appellant of the crime of qualified rape in Criminal Case Nos. SC-7422 and SC-7423 and the crime of acts of lasciviousness in Criminal Case No. SC-7424, the RTC rendered a Consolidated Judgment against appellant and sentenced him accordingly, thus: WHEREFORE: Under Criminal Case No. SC-7422, this Court finds the accused ALVIN ABULON y SALVANIA GUILTY BEYOND REASONABLE DOUBT as PRINCIPAL of CONSUMMATED QUALIFIED RAPE as defined and penalized under Article 335 of the Revised Penal Code, as amended by Rep. Act No. 7639, otherwise known as the DEATH PENALTY LAW, and hereby sentences him to suffer the SUPREME PENALTY of DEATH and to indemnify the offended party [AAA] the following sums: P 75,000.00 - as civil indemnity 50,000.00 - as moral damages; and 50,000.00 - as exemplary damages. Under Criminal Case No. SC-7423, this Court finds the accused ALVIN ABULON y SALVANIA GUILTY BEYOND REASONABLE DOUBT as PRINCIPAL of CONSUMMATED QUALIFIED RAPE as defined and penalized under Article 335 of the Revised Penal Code, as amended by Rep. Act No. 7639, otherwise known as the DEATH PENALTY LAW, and hereby sentences him to suffer the SUPREME PENALTY of DEATH and to indemnify the offended party [AAA] the following sums: P 75,000.00 - as civil indemnity 50,000.00 - as moral damages; and 50,000.00 - as exemplary damages. Under Criminal Case No. SC-7424, this Court finds the accused ALVIN ABULON y SALVANIA GUILTY BEYOND REASONABLE DOUBT as PRINCIPAL of ACTS OF LASCIVIOUSNESS as defined and penalized under Article 336 of the Revised Penal Code and hereby sentences him to suffer the penalty of imprisonment for SIX (6) MONTHS of ARRESTO MAYOR as MINIMUM to SIX (6) YEARS of PRISION CORRECCIONAL as MAXIMUM. The accused is further ordered to pay the costs of the instant three (3) cases. SO ORDERED.25 With the death penalty imposed on appellant, the case was elevated to this Court on automatic review. However, pursuant to this Courts ruling in People v. Mateo,26 the case was transferred to the Court of Appeals. On 28 April 2006, the appellate court rendered its decision affirming appellants conviction, but with modification as to damages awarded to the victim. The dispositive portion of the decision states:

People vs Abulon

WHEREFORE, the decision of the Regional Trial Court of Santa Cruz, Laguna, Branch 28, in Criminal Case Nos. SC-7422 and SC-7423 finding appellant Alvin S. Abulon guilty beyond reasonable doubt of the crimes of qualified rape, and in Criminal Case No. SC-7424, finding appellant guilty beyond reasonable doubt of the crime of acts of lasciviousness, are herebyAFFIRMED. The civil aspect of the case is MODIFIED to read: In Criminal Case Nos. SC-7422-7423, the award of exemplary damages in the amount of [P]50,000.00 is reduced to [P]25,000.00. In Criminal Case No. SC-7424, appellant is ordered to pay the victim the amount of [P]30,000.00 as moral damages. We affirm in all other respects. Pursuant to A.M. 00-5-03-SC (Amendments to the Revised Rule of Criminal Procedure to Govern Death Penalty Cases), which took effect on October 15, 2004, this case is elevated and certified to the Supreme Court for its automatic review. SO ORDERED.27 In his Brief,28 appellant assails his conviction and imputes grave error to the trial court for giving weight and credence to the testimony of AAA. In particular, he makes capital of AAAs delay in reporting the incidents to her mother. He likewise impugns the trial courts alleged bias in propounding inappropriate leading questions to private complainant AAA. Finally, he maintains that the Informations against him are defective as they failed to allege the key element of force and/or intimidation.29 We affirm the decision of the Court of Appeals with modifications. The duty to ascertain the competence and credibility of a witness rests primarily with the trial court,30 because it has the unique position of observing the witnesss deportment on the stand while testifying. Absent any compelling reason to justify the reversal of the evaluations and conclusions of the trial court, the reviewing court is generally bound by the formers findings.31 In rape cases particularly, the conviction or acquittal of the accused most often depends almost entirely on the credibility of the complainants testimony. By the very nature of this crime, it is generally unwitnessed and usually the victim is left to testify for herself.32 Her testimony is most vital and must be received with the utmost caution.33 When a rape victims testimony, however, is straightforward and marked with consistency despite grueling examination, it deserves full faith and confidence and cannot be discarded. Once found credible, her lone testimony is sufficient to sustain a conviction.34 The court a quo found the testimony of AAA in its entirety to be credible, made in a candid, spontaneous, and straightforward manner and never shaken even under rigid cross-examination.35 We agree that AAAs narration of her harrowing experience is worthy of credence, thus: Criminal Case No. SC-7422 Trial Prosecutor:

People vs Abulon

Q : Tell us what happened at around 1:30 in the morning of March 11, [sic] 1999 to you? A : My brother and sister and I were already asleep when my father who was drank [sic] came home. We told him to just sleep. My father told us that he would still return to the wedding celebration (kasalan). xxxx Q : What happened next when you continued sleeping? A : I was awakened when I felt my father already on top of me, sir. Q : Tell us exactly what was [sic] your position then at that time you woke up? A : I was still lying straight down, sir. Q : How about your father in relation to you, where was he at the time you woke up? A : He was on top (nakadagan) of me, sir. Court: Q : Was he naked? A : Already naked, Your Honor. Q : How about you, do [sic] you have your clothes on? A : I have [sic] my lady sando on, Your Honor. Trial Prosecutor: Q : Are [sic] you still wearing your panty when you were awakened? A : No more, sir. xxxx Q : What did your father do aside from placing his body on top of you? A : He poked a knife on [sic] me, sir. Court: Q : Did he say something? A : Yes, Your Honor.

People vs Abulon

Q : What did he say? A : He said that if he [sic] report her [sic] to anybody he would kill us, Your Honor. xxxx Trial Prosecutor: Q : What else did he do aside from telling you "huag kang magsusumbong"? A : He also poked the knife on [sic] my brother and sister, sir. Q : They were already awakened at that time? A : Yes, sir. Q : What else did he do aside from poking a knife on [sic] you and your brother and sister? A : No more, sir. Court: Q : While your father according to you is [sic] on top of you, what did he do if any? A : "Kinayog na po niya ako." Q : What do you mean by telling [sic] "kinayog na po niya ako"? A : He was moving, Your Honor. Q : While your father was moving, what else was happening at that time? A : I felt pain, Your Honor. Trial Prosecutor: Q : From where did you feel that pain? A : From my private part, sir. xxxx Q : Do you know if you know why you felt the pain on the lower portion of your body? A : Yes, sir. Q : Please tell us if you know?

People vs Abulon

A : Something whitish coming out from it, sir. Court: Q : From where did it come from [sic]? That whitish substance? A : From my fathers private part, Your Honor. Q : Why, what happened to the private part of your father? A : I do not know, Your Honor. Q : When you felt pain, what was your father doing then? A : He repeated what he told [sic] previously not to tell to [sic] anybody. Q : At that time, did you see the private part of your father? A : Yes, Your Honor. Q : When you felt pain. Do you know what is [sic] happening to the private part of your father? A : Yes, Your Honor. Q : What was happening? A : His private part stiffened or hardened (tumirik), Your Honor. Q : Where was it placed if any? A : Into my private part, Your Honor. Q : Did the private part of you father actually penetrate your vagina? A : Yes, Your Honor. Q : What did you feel at the time the penis of your father entered your vagina? A : It was painful, Your Honor. Q : At that time was your father making any movement? A : Yes, Your Honor. Q : Will you describe the movement made by your father?

People vs Abulon

A : (Witness demonstrating an upward and downward stroke by placing her right palm over her left hand) Trial Prosecutor: Q : Did he kiss you? A : Yes, sir. Q : In what part of your body? A : On my mouth, sir. Q : Aside from your mouth, what other part or parts of your body did he kiss? A : On my private part, sir. Q : When did he kiss you private part, before inserting his penis or after? A : After he inserted his penis, sir. Q : What other part of your body did he kiss? A : On my breast, sir.36 xxxx Criminal Case No. SC-7423 TP. Arcigal, Jr.: Q : Now, you said that the second incident happened [on] March 15, 1999, am I correct? A : Yes, sir. Q : And where and what time said [sic] second incident happened? A : 10:30 in the evening, sir, also in our house, sir. xxxx Q : And what were you doing when your father returned at around 11:00 oclock in the evening? A : We were all asleep, sir. Q : And how did you come to know that he returned at around 11:00 P.M.?

People vs Abulon

A : My father suddenly held my hand, sir. Q : And because of that, you were awakened? A : Yes, sir. Q : And what happened when you were awakened because your father held your hand? A : He covered my mouth, sir. Q : And after covering your mouth, what else did he do? A : He removed the lower portion of my clothes. "Hinubuan po niya ako." xxxx Q : After removing your lady sando, what else did he do? A : He laid himself on top of me, sir. xxxx Q : Now, what did he do to you when he was already on top of you? A : He was "kinakayog niya po ako." Q : Aside from "kinakayog," what else did he do? A : He kissed my breast, sir. Q : Aside from that, what else? A : He likewise touched my private part, sir. Q : When he was on top of you, do you know where was [sic] his penis at that time? A : Yes, sir. Q : Where? A : Into my vagina, sir. Q : How did you come to know that the penis of your father was inside your vagina? A : I felt pain in my private part, sir. Q : And do you know why you felt pain in your private part?

People vs Abulon

A : Yes, sir. Q : Why? A : His private part . (Thereafter witness is crying while uttering words: "I am afraid I might be killed by my father.") He held his penis into my vagina. Thereafter, inserted it repeatedly into mine, sir. Q : And you were able to actually feel his penis inside your vagina? A : Yes, sir. 37 xxxx Criminal Case No. SC-7424 TP. Arcigal, Jr.: Q : Now, you said also that you were raped on March 16, 1999, am I correct? A : Yes, sir. Q : What time? A : It was 3:30 oclock in the morning, sir. xxxx TP. Arcigal, Jr.: Q Now, how did it happen, that third incident? A I was able to run downstairs but when I was about to open the door, he was able to hold my dress, sir. Q : Was your father drunk at that time? A : Yes, sir. Q : How did you come to know? A : His eyes were red and he was laughing at me while telling me: "It is your end." (Witness crying while answering the question.) Q : Now, what happened when your father was able to hold your dress? A : He carried me upstairs, sir.

People vs Abulon

Q : Was he able to carry you upstairs? A : Yes, sir. Q : What did he do, if any, when you were upstairs? A : He removed my panty and shortpants, sir. Q : After removing your shorts and panty, what else did he do? A : No more but he kissed my vagina. Q : Which part of your vagina did he kiss? A : That part of my vagina with hold [sic]. Court: Q : What about your upper garments at that time? A : He did not remove it, Your Honor. Q : What else did he do, aside from that? A : Nothing more, just that. Q : After kissing your vagina, what else happened, if any? A : He again poked the knife on us, Your Honor. Q : At that time, was your father naked or not? A : Still with his clothes on, Your Honor. xxxx Q : For clarification, what else, if any, did your father do after your father kissed your vagina? A : Nothing more, merely that act, Your Honor. Q : You mean your father did not insert his penis to [sic] your vagina anymore? A : No more, Your Honor. xxxx TP. Arcigal, Jr.:

People vs Abulon

Q : Now, what did he use in kissing your clitoris? A : His tongue, sir. Q : How did you come to know that it was his tongue that he used? A : It is because I saw him put out his tongue, sir.38 Verily, it is inconceivable and contrary to human experience for a daughter, who is attached to her father by the natural bond of love and affection, to accuse him of rape, unless he is the one who raped and defoliated her.39 As we have pronounced in People v. Canoy:40 It is unthinkable for a daughter to accuse her own father, to submit herself for examination of her most intimate parts, put her life to public scrutiny and expose herself, along with her family, to shame, pity or even ridicule not just for a simple offense but for a crime so serious that could mean the death sentence to the very person to whom she owes her life, had she really not have been aggrieved. Nor do we believe that the victim would fabricate a story of rape simply because she wanted to exact revenge against her father, appellant herein, for allegedly scolding and maltreating her.41 In stark contrast with AAAs convincing recital of facts, supported as it was by the testimonies of BBB and CCC, are appellants uncorroborated and shaky defenses of denial and alibi. Nothing is more settled in criminal law jurisprudence than that alibi and denial cannot prevail over the positive and categorical testimony and identification of the complainant.42 Alibi is an inherently weak defense, which is viewed with suspicion because it can easily be fabricated.43 Denial is an intrinsically weak defense which must be buttressed with strong evidence of non-culpability to merit credibility.44 The records disclose that not a shred of evidence was adduced by appellant to corroborate his alibi. Alibi must be supported by credible corroboration from disinterested witnesses, otherwise, it is fatal to the accused.45 Further, for alibi to prosper, it must be demonstrated that it was physically impossible for appellant to be present at the place where the crime was committed at the time of its commission.46 By his own testimony, appellant clearly failed to show that it was physically impossible for him to have been present at the scene of the crime when the rapes were alleged to have occurred. Except for the first incident, appellant was within the vicinity of his home and in fact alleged that he was supposedly even sleeping therein on the occasion of the second and third incidents. Appellants contention that AAAs accusations are clouded by her failure to report the alleged occurrences of rape is unmeritorious. To begin with, AAA categorically testified that she told her fathers niece about the incidents. However, the latter doubted her, believing in stead that appellant was not that kind of man. AAAs subsequent attempt to report the incidents to the barangay turned out to be futile as well as she was only able to speak with the barangay driver, who happened to be appellants brother-in-law. She was likewise disbelieved by the latter. Her disclosure of the rapes to a certain Menoy did not yield any positive result either. Fearing for the lives of her grandparents, AAA decided not to tell them about the incidents.47 A child of thirteen years cannot be expected to know how to go about reporting the crime to the authorities.48 Indeed, We see how AAA must have felt absolutely hopeless since the people around her

People vs Abulon

were relatives of her father and her attempts to solicit help from them were in vain. Thus, AAAs silence in not reporting the incidents to her mother and filing the appropriate case against appellant for over a month is sufficiently explained. The charge of rape is rendered doubtful only if the delay was unreasonable and unexplained.49 It is not beyond ken that the child, living under threat from appellant and having been turned away by trusted relatives, even accused by them of lying, would simply opt to just suffer in silence thereafter. In People v. Gutierrez,50 we held: Complainants failure to immediately report the rape does not diminish her credibility. The silence of a victim of rape or her failure to disclose her misfortune to the authorities without loss of material time does not prove that her charge is baseless and fabricated. It is not uncommon for young girls to conceal for some time the assault on their virtues because of the rapists threat on their lives, more so when the offender is someone whom she knew and who was living with her.51 Appellant brands the trial judge as partial against him for propounding leading questions to AAA. According to him, were it not for the lower courts and the prosecutions biased leading questions, AAA would not have proven the elements of the crimes charged.52 Appellants argument is not well-taken. It is the judges prerogative to ask clarificatory queries to ferret out the truth.53 It cannot be taken against him if the questions he propounds reveal certain truths which, in turn, tend to destroy the theory of one party.54 After all, the judge is the arbiter and ought to be satisfied himself as to the respective merits and claims of both parties in accord with the stringent demands of due process.55 Also, being the arbiter, he may properly intervene in the presentation of evidence to expedite proceedings and prevent unnecessary waste of time.56 Besides, jurisprudence explains that allegations of bias on the part of the trial court should be received with caution, especially when the queries by the judge did not prejudice the accused. The propriety of the judges questions is determined by their quality and not necessarily by their quantity and, in any event, by the test of whether the defendant was prejudiced by such questioning or not. 57 In the instant case, the Court finds that on the whole, the questions propounded by the judge a quo were but clarificatory in nature and that, concomitantly, appellant failed to satisfactorily establish that he was prejudiced by such queries. The matter of the purportedly defective Informations was properly addressed by the Court of Appeals, pointing out that a close scrutiny of the Informations would reveal that the words "force and/or intimidation" are specifically alleged therein.58 Even if these were not so, well-established is the rule that force or intimidation need not be proven in incestuous cases. The overpowering moral influence of a father over his daughter takes the place of violence and offer of resistance ordinarily required in rape cases where the accused is unrelated to the victim.59 Now, we turn to the determination of the crime for which appellant under the third charge is liable and the corresponding penalty therefor. In the Brief for the People, the Office of the Solicitor General (OSG) argues that all three (3) charges of rape, including the rape committed on 16 March 1999 subject of Criminal Case No. SC-7424, were proved beyond reasonable doubt. The court a quo held that it was clear from the evidence that appellant merely kissed the vagina of AAA and made no attempt of penetration, meaning penile penetration, and for that reason found him guilty of acts of

People vs Abulon

lasciviousness only.60 Yet, in affirming the trial court, the Court of Appeals did not find any categorical testimony on AAAs part that appellant had inserted his tongue in her vagina, stressing instead that the mere probability of such insertion cannot take the place of proof required to establish the guilt of appellant beyond reasonable doubt for rape.61 The automatic appeal in criminal cases opens the whole case for review,62 as in this case. Thus, this Court is mandated to re-examine the vital facts established a quo and to properly apply the law thereto. The two courts below were both mistaken, as we note that AAA unqualifiedly testified on cross-examination to appellants insertion of his tongue into her vagina, viz: Court: Q : On the third time you are [sic] allegedly raped, you said it happened at 3:30 in the morning of March 16, 1999. A : Yes, sir. Q : And you said yesterday that he did not insert his pennies [sic] to [sic] your vagina on March 16? A : Yes, sir. Q : What he did is he kissed your vagina? A : Yes, sir. Q : For how long did he kiss your vagina? A : Two minutes, sir. Q : What did he actually do when he kissed your vagina? A : He kissed my vagina, thereafter he laughed and laughed. Q : You mean to tell the court when he kissed your vagina he used his lips? A : His lips and tongue, sir. Q : What did he do? A : He put out his tongue thereafter he "inano" the hole of my vagina. Court: Q : What did your father do with his tongue? A : He placed it in the hole of my vagina.

People vs Abulon

Q : Did you feel pain? A : Yes, sir. Q : By just kissing your vagina you felt pain? A : Yes, Your Honor.63 Notwithstanding the explicit testimony of AAA on the matter, this Court cannot find appellant guilty of rape as proved, but of acts of lasciviousness only. In reaching this conclusion, we take a route different from the ones respectively taken by the courts below. With the enactment of Republic Act No. 8353 (R.A. No. 8353), otherwise known as the Anti-Rape Law of 1997,64 the concept of rape was revolutionized with the new recognition that the crime should include sexual violence on the womans sex-related orifices other than her organ, and be expanded as well to cover gender-free rape.65 The transformation mainly consisted of the reclassification of rape as a crime against persons and the introduction of rape by "sexual assault"66 as differentiated from the traditional "rape through carnal knowledge" or "rape through sexual intercourse." Section 2 of the law provides: Sec. 2. Rape as a Crime Against Persons. The crime of rape shall hereafter be classified as a Crime Against Persons under Title Eight of Act No. 9815, as amended, otherwise known as the Revised Penal Code. Accordingly, there shall be incorporated into Title Eight of the same Code a new chapter to be known as Chapter Three on Rape, to read as follows: Article 266-A. Rape; When And How Committed. Rape Is Committed 1) By a man who shall have carnal knowledge of a woman under any of the following circumstances: (a) Through force, threat, or intimidation; (b) When the offended party is deprived of reason or otherwise is unconscious; (c) By means of fraudulent machination or grave abuse of authority; and (d) When the offended party is under twelve (12) years of age or is demented, even though none of the circumstances mentioned above be present. 2) By any person who, under any of the circumstances mentioned in paragraph 1 hereof, shall commit an act of sexual assault by inserting his penis into another persons mouth or anal orifice, or any instrument or object, into the genital or anal orifice of another person. Paragraph 1 under Section 2 of R.A. No. 8353, which is now Paragraph 1 of the new Article 266-A of the Revised Penal Code, covers rape through sexual intercourse while paragraph 2 refers to rape by sexual assault. Rape through sexual intercourse is also denominated as "organ rape" or "penile rape."

People vs Abulon

On the other hand, rape by sexual assault is otherwise called "instrument or object rape,"67 also "gender-free rape,"68 or the narrower "homosexual rape."69 In People v. Silvano,70 the Court recognized that the fathers insertion of his tongue and finger into his daughters vaginal orifice would have subjected him to liability for "instrument or obje ct rape" had the new law been in effect already at the time he committed the acts. Similarly, in People v. Miranda,71 the Court observed that appellants insertion of his fingers into the complainants organ would have constituted rape by sexual assault had it been committed when the new law was already in effect. The differences between the two modes of committing rape are the following: (1) In the first mode, the offender is always a man, while in the second, the offender may be a man or a woman; (2) In the first mode, the offended party is always a woman, while in the second, the offended party may be a man or a woman; (3) In the first mode, rape is committed through penile penetration of the vagina, while the second is committed by inserting the penis into another persons mouth or anal orifice, or any instrument or object into the genital or anal orifice of another person; and (4) The penalty for rape under the first mode is higher than that under the second. In view of the material differences between the two modes of rape, the first mode is not necessarily included in the second, and vice-versa. Thus, since the charge in the Information in Criminal Case No. SC-7424 is rape through carnal knowledge, appellant cannot be found guilty of rape by sexual assault although it was proven, without violating his constitutional right to be informed of the nature and cause of the accusation against him. However, following the variance doctrine embodied in Section 4, in relation to Section 5, Rule 120, Rules of Criminal Procedure, appellant can be found guilty of the lesser crime of acts of lasciviousness. Said provisions read: Sec. 4. Judgment in case of variance between allegation and proof. When there is a variance between the offense charged in the complaint or information and that proved, and the offense as charged is included in or necessarily includes the offense proved, the accused shall be convicted of the offense proved which is included in the offense charged, or of the offense charged which is included in the offense proved. Sec. 5. When an offense includes or is included in another. An offense charged necessarily includes the offense proved when some of the essential elements or ingredients of the former, as alleged in the complaint or information, constitutes the latter. And an offense charged is necessarily included in the offense proved when the essential ingredients of the former constitute or form part of those constituting the latter.

People vs Abulon

Indeed, acts of lasciviousness or abusos dishonestos are necessarily included in rape.72 In light of the passage of R.A. No. 9346, entitled "An Act Prohibiting the Imposition of Death Penalty in the Philippines,"73 the penalty of death can no longer be imposed. Accordingly, the penalty meted out to appellant for rape through sexual intercourse in Criminal Cases No. SC-7422 and SC-7423 is reduced in each case from death to reclusion perpetua without eligibility for parole.74We affirm the conviction of appellant in Criminal Case No. SC-7424 for acts of lascivousness but modify the penalty imposed by the Court of Appeals instead to an indeterminate sentence of imprisonment of six (6) months of arresto mayor as minimum to four (4) years and two (2) months of prision correccional as maximum as neither mitigating nor aggravating circumstances attended the commission of the crime. With respect to the civil liability of appellant, we modify the award in Criminal Cases No. SC-7422 and SC-7423 in light of prevailing jurisprudence. Therefore, appellant is ordered to indemnify AAA, for each count of qualified rape, in the amount of P75,000.00 as civil indemnity, P75,000.00 as moral damages, and P25,000.00 as exemplary damages.75 The award of damages in Criminal Case No. SC7424 is affirmed. WHEREFORE, the Decision of the Court of Appeals in CA G.R. CR-HC No. 01926 is AFFIRMED WITH MODIFICATIONS. In Criminal Cases No. SC-7422 and SC-7423, appellant is found guilty beyond reasonable doubt of the crime of qualified rape and sentenced to suffer the penalty of reclusion perpetua without eligibility for parole and to pay the victim, AAA, in the amounts of P75,000.00 as civil indemnity, P75,000.00 as moral damages, and P25,000.00 as exemplary damages plus costs. In Criminal Case No. SC-7424, appellant is found guilty of the crime of acts of lasciviousness and sentenced to suffer the indeterminate penalty of imprisonment for six (6) months of arresto mayor as minimum to four (4) years and two (2) months of prision correccional as maximum, and to pay AAA moral damages in the amount of P30,000.00 plus costs. SO ORDERED.

Re: Petition for Television and Radio Coverage of Multiple Murder Cases Against Maguindanao Governor Zaldy Ampatuan

EN BANC
RE: PETITION FOR RADIO AND TELEVISION COVERAGE OF THE MULTIPLE MURDER CASES AGAINST MAGUINDANAO GOVERNOR ZALDY AMPATUAN, ET AL., A.M. No. 10-11-5-SC

x ----------------------------------- x
RE: PETITION FOR THE CONSTITUTION OF THE PRESENT COURT HANDLING THE TRIAL OF THE MASSACRE OF 57 PERSONS, INCLUDING 32 JOURNALISTS, IN AMPATUAN, MAGUINDANAO INTO A SPECIAL COURT HANDLING THIS CASE ALONE FOR THE PURPOSE OF ACHIEVING GENUINE SPEEDY TRIAL and FOR THE SETTING UP OF VIDEOCAM AND MONITOR JUST OUTSIDE THE COURT FOR JOURNALISTS TO COVER AND FOR THE PEOPLE TO WITNESS THE TRIAL OF THE DECADE TO MAKE IT TRULY PUBLIC AND IMPARTIAL AS COMMANDED BY THE CONSTITUTION, A.M. No. 10-11-6-SC

Present: CORONA,* C.J., CARPIO, CARPIO MORALES, VELASCO, JR., LEONARDO-DE CASTRO, BRION, PERALTA, BERSAMIN, DEL CASTILLO, ABAD, VILLARAMA, JR., PEREZ, MENDOZA, and SERENO, JJ.

Promulgated: June 14, 2011

x ---------------------------------x
RE: LETTER OF PRESIDENT BENIGNO S. AQUINO III FOR THE LIVE MEDIA COVERAGE OF THE MAGUINDANAO MASSACRE A.M. No. 10-11-7-SC

Re: Petition for Television and Radio Coverage of Multiple Murder Cases Against Maguindanao Governor Zaldy Ampatuan

TRIAL. x----------------------------------------------------------------------------------------x

RESOLUTION
CARPIO MORALES, J.: On November 23, 2009, 57 people including 32 journalists and media practitioners were killed while on their way to Shariff Aguak in Maguindanao. Touted as the worst election-related violence and the most brutal killing of journalists in recent history, the tragic incident which came to be known as the Maguindanao Massacre spawned charges for 57 counts of murder and an additional charge of rebellion against 197 accused, docketed as Criminal Case Nos. Q-09-16214872, Q-09-162216-31, Q-10-162652-66, and Q-10-163766, commonly entitled People v. Datu Andal Ampatuan, Jr., et al. Following the transfer of venue and the reraffling of the cases, the cases are being tried by Presiding Judge Jocelyn Solis-Reyes of Branch 221 of the Regional Trial Court (RTC) of Quezon City inside Camp Bagong Diwa in Taguig City. Almost a year later or on November 19, 2010, the National Union of Journalists of the Philippines (NUJP), ABS-CBN Broadcasting Corporation, GMA Network, Inc., relatives of the victims,[1] individual journalists[2] from various media entities, and members of the academe[3] filed a petition before this Court praying that live television and radio coverage of the trial in these criminal cases be allowed, recording devices (e.g., still cameras, tape recorders) be permitted inside the courtroom to assist the working journalists, and reasonable guidelines be formulated to govern the broadcast coverage and the use of devices.[4] The Court docketed the petition as A.M. No. 10-11-5-SC. In a related move, the National Press Club of the Philippines[5] (NPC) and Alyansa ng Filipinong Mamamahayag[6] (AFIMA) filed on November 22, 2010 a petition praying that the Court constitute Branch 221 of RTC-Quezon City as a special court to focus only on the Maguindanao Massacre trial to relieve it of all other pending cases and assigned duties, and allow the installation inside the courtroom of a sufficient number of video cameras that shall beam the audio and video signals to the television monitors outside the court. [7] The Court docketed the petition as A.M. No. 10-11-6-SC. President Benigno S. Aquino III, by letter of November 22, 2010[8] addressed to Chief Justice Renato Corona, came out in support of those who have petitioned [this Court] to permit

Re: Petition for Television and Radio Coverage of Multiple Murder Cases Against Maguindanao Governor Zaldy Ampatuan

television and radio broadcast of the trial." The President expressed earnest hope that [this Court] will, within the many considerations that enter into such a historic deliberation,

Re: Petition for Television and Radio Coverage of Multiple Murder Cases Against Maguindanao Governor Zaldy Ampatuan

attend to this petition with the dispatch, dispassion and humaneness, such a petition merits.[9] The Court docketed the matter as A.M. No. 10-11-7-SC. By separate Resolutions of November 23, 2010,[10] the Court consolidated A.M. No. 10-117-SC with A.M. No. 10-11-5-SC. The Court shall treat in a separate Resolution A.M. No. 10-116-SC. Meanwhile, various groups[11] also sent to the Chief Justice their respective resolutions and statements bearing on these matters. The principal accused in the cases, Andal Ampatuan, Jr. (Ampatuan), filed a Consolidated Comment of December 6, 2010 in A.M. No. 10-11-5-SC and A.M. No. 10-11-7-SC. The President, through the Office of the Solicitor General (OSG), and NUJP, et al. filed their respective Reply of January 18, 2011and January 20, 2011. Ampatuan also filed a Rejoinder of March 9, 2011. On Broadcasting the Trial of the Maguindanao Massacre Cases Petitioners seek the lifting of the absolute ban on live television and radio coverage of court proceedings. They principally urge the Court to revisit the1991 ruling in Re: Live TV and Radio Coverage of the Hearing of President Corazon C. Aquinos Libel Case [12] and the 2001 ruling in Re: Request Radio-TV Coverage of the Trial in the Sandiganbayan of the Plunder Cases Against the Former President Joseph E. Estrada[13] which rulings, they contend, violate the doctrine that proposed restrictions on constitutional rights are to be narrowly construed and outright prohibition cannot stand when regulation is a viable alternative. Petitioners state that the trial of the Maguindanao Massacre cases has attracted intense media coverage due to the gruesomeness of the crime, prominence of the accused, and the number of media personnel killed. They inform that reporters are being frisked and searched for cameras, recorders, and cellular devices upon entry, and that under strict orders of the trial court against live broadcast coverage, the number of media practitioners allowed inside the courtroom has been limited to one reporter for each media institution. The record shows that NUJP Vice-Chairperson Jose Jaime Espina, by January 12, 2010 letter to Judge Solis-Reyes, requested a dialogue to discuss concerns over media coverage of the proceedings of the Maguindanao Massacre cases. Judge Solis-Reyes replied, however, that matters concerning media coverage should be brought to the Courts attention through appropriate motion.[15] Hence, the present petitions which assert the exercise of the freedom of the press, right to information, right to a fair and public trial, right to assembly and to petition the
[14]

Re: Petition for Television and Radio Coverage of Multiple Murder Cases Against Maguindanao Governor Zaldy Ampatuan

government for redress of grievances, right of free access to courts, and freedom of association, subject to regulations to be issued by the Court. The Court partially GRANTS pro hac vice petitioners prayer for a live broadcast of the trial court proceedings, subject to the guidelineswhich shall be enumerated shortly. Putts Law[16] states that technology is dominated by two types of people: those who understand what they do not manage, and those who manage what they do not understand. Indeed, members of this Court cannot strip their judicial robe and don the experts gown, so to speak, in a pretense to foresee and fathom all serious prejudices or risks from the use of technology inside the courtroom. A decade after Estrada and a score after Aquino, the Court is once again faced with the same task of striking that delicate balance between seemingly competing yet certainly complementary rights. The indication of serious risks posed by live media coverage to the accuseds right to due process, left unexplained and unexplored in the era obtaining in Aquino and Estrada, has left a blow to the exercise of press freedom and the right to public information. The rationale for an outright total prohibition was shrouded, as it is now, inside the comfortable cocoon of a feared speculation which no scientific study in the Philippine setting confirms, and which fear, if any, may be dealt with by safeguards and safety nets under existing rules and exacting regulations. In this day and age, it is about time to craft a win-win situation that shall not compromise rights in the criminal administration of justice, sacrifice press freedom and allied rights, and interfere with the integrity, dignity and solemnity of judicial proceedings. Compliance with regulations, not curtailment of a right, provides a workable solution to the concerns raised in these administrative matters, while, at the same time, maintaining the same underlying principles upheld in the two previous cases. The basic principle upheld in Aquino is firm [a] trial of any kind or in any court is a matter of serious importance to all concerned and should not be treated as a means of entertainment[, and t]o so treat it deprives the court of the dignity which pertains to it and departs from the orderly and serious quest for truth for which our judicial proceedings are formulated. The observation that [m]assive intrusion of representatives of the news media into

Re: Petition for Television and Radio Coverage of Multiple Murder Cases Against Maguindanao Governor Zaldy Ampatuan

the trial itself can so alter and destroy the constitutionally necessary atmosphere and decorum stands. The Court concluded in Aquino:
Considering the prejudice it poses to the defendant's right to due process as well as to the fair and orderly administration of justice, and considering further that the freedom of the press and the right of the people to information may be served and satisfied by less distracting, degrading and prejudicial means, live radio and television coverage of court proceedings shall not be allowed. Video footages of court hearings for news purposes shall be restricted and limited to shots of the courtroom, the judicial officers, the parties and their counsel taken prior to the commencement of official proceedings. No video shots or photographs shall be permitted during the trial proper. Accordingly, in order to protect the parties' right to due process, to prevent the distraction of the participants in the proceedings and in the last analysis, to avoid miscarriage of justice, the Court resolved to PROHlBIT live radio and television coverage of court proceedings. Video footage of court hearings for news purposes shall be limited and restricted as above indicated.[17]

The Court had another unique opportunity in Estrada to revisit the question of live radio and television coverage of court proceedings in a criminal case. It held that [t]he propriety of granting or denying the instant petition involve[s] the weighing out of the constitutional guarantees of freedom of the press and the right to public information, on the one hand, and the fundamental rights of the accused, on the other hand, along with the constitutional power of a court to control its proceedings in ensuring a fair and impartial trial. The Court disposed:
The Court is not all that unmindful of recent technological and scientific advances but to chance forthwith the life or liberty of any person in a hasty bid to use and apply them, even before ample safety nets are provided and the concerns heretofore expressed are aptly addressed, is a price too high to pay. WHEREFORE, the petition is DENIED. SO ORDERED.[18]

In resolving the motion for reconsideration, the Court in Estrada, by Resolution of September 13, 2001, provided a glimmer of hope when it ordered the audio-visual recording of the trial for documentary purposes, under the following conditions:
x x x (a) the trial shall be recorded in its entirety, excepting such portions thereof as the Sandiganbayan may determine should not be held public under Rule 119, 21 of the Rules of Criminal Procedure; (b) cameras shall be installed inconspicuously inside the courtroom and the movement of TV crews shall be regulated consistent with the dignity and solemnity of the

Re: Petition for Television and Radio Coverage of Multiple Murder Cases Against Maguindanao Governor Zaldy Ampatuan

proceedings; (c) the audio-visual recordings shall be made for documentary purposes only and shall be made without comment except such annotations of scenes depicted therein as may be necessary to explain them; (d) the live broadcast of the recordings before the Sandiganbayan shall have rendered its decision in all the cases against the former President shall be prohibited under pain of contempt of court and other sanctions in case of violations of the prohibition; (e) to ensure that the conditions are observed, the audio-visual recording of the proceedings shall be made under the supervision and control of the Sandiganbayan or its Division concerned and shall be made pursuant to rules promulgated by it; and (f) simultaneously with the release of the audio-visual recordings for public broadcast, the original thereof shall be deposited in the National Museum and the Records Management and Archives Office for preservation and exhibition in accordance with law.[19]

Petitioners note that the 1965 case of Estes v. Texas[20] which Aquino and Estrada heavily cited, was borne out of the dynamics of a jury system, where the considerations for the possible infringement of the impartiality of a jury, whose members are not necessarily schooled in the law, are different from that of a judge who is versed with the rules of evidence. To petitioners, Estes also does not represent the most contemporary position of the United States in the wake of latest jurisprudence[21] and statistical figures revealing that as of 2007 all 50 states, except the District of Columbia, allow television coverage with varying degrees of openness. Other jurisdictions welcome the idea of media coverage. Almost all the proceedings of United Kingdoms Supreme Court are filmed, and sometimes broadcast. [22] The International Criminal Court broadcasts its proceedings via video streaming in the internet. [23] On the media coverages influence on judges, counsels and witnesses, petitioners point out that Aquino and Estrada, like Estes, lack empirical evidence to support the sustained conclusion. They point out errors of generalization where the conclusion has been mostly supported by studies on American attitudes, as there has been no authoritative study on the particular matter dealing with Filipinos. Respecting the possible influence of media coverage on the impartiality of trial court judges, petitioners correctly explain that prejudicial publicity insofar as it undermines the right to a fair trial must pass the totality of circumstances test, applied in People v. Teehankee, Jr.[24] and Estrada v. Desierto,[25] that the right of an accused to a fair trial is not incompatible to a free press, that pervasive publicity is not per se prejudicial to the right of an accused to a fair trial, and that there must be allegation and proof of the impaired capacity of a judge to render a bias-free decision. Mere fear of possible undue influence is not tantamount to actual prejudice resulting in the deprivation of the right to a fair trial. Moreover, an aggrieved party has ample legal remedies. He may challenge the validity of an adverse judgment arising from a proceeding that transgressed a constitutional right. As pointed

Re: Petition for Television and Radio Coverage of Multiple Murder Cases Against Maguindanao Governor Zaldy Ampatuan

out by petitioners, an aggrieved party may early on move for a change of venue, for continuance until the prejudice from publicity is abated, for disqualification of the judge, and for closure of portions of the trial when necessary. The trial court may likewise exercise its power of contempt and issue gag orders. One apparent circumstance that sets the Maguindanao Massacre cases apart from the earlier cases is the impossibility of accommodating even the parties to the cases the private complainants/families of the victims and other witnesses inside the courtroom. On public trial, Estrada basically discusses:
An accused has a right to a public trial but it is a right that belongs to him, more than anyone else, where his life or liberty can be held critically in balance. A public trial aims to ensure that he is fairly dealt with and would not be unjustly condemned and that his rights are not compromised in secrete conclaves of long ago. A public trial is not synonymous with publicized trial; it only implies that the court doors must be open to those who wish to come, sit in the available seats, conduct themselves with decorum and observe the trial process. In the constitutional sense, a courtroom should have enough facilities for a reasonable number of the public to observe the proceedings, not too small as to render the openness negligible and not too large as to distract the trial participants from their proper functions, who shall then be totally free to report what they have observed during the proceedings.[26] (underscoring supplied)

Even before considering what is a reasonable number of the public who may observe the proceedings, the peculiarity of the subject criminal cases is that the proceedings already necessarily entail the presence of hundreds of families. It cannot be gainsaid that the families of the 57 victims and of the 197 accused have as much interest, beyond mere curiosity, to attend or monitor the proceedings as those of the impleaded parties or trial participants. It bears noting at this juncture that the prosecution and the defense have listed more than 200 witnesses each.

The impossibility of holding such judicial proceedings in a courtroom that will accommodate all the interested parties, whether private complainants or accused, is unfortunate enough. What more if the right itself commands that a reasonable number of the general public be allowed to witness the proceeding as it takes place inside the courtroom. Technology tends to provide the only solution to break the inherent limitations of the courtroom, to satisfy the imperative of a transparent, open and public trial. In so allowing pro hac vice the live broadcasting by radio and television of the Maguindanao Massacre cases, the Court lays down the followingguidelines toward addressing the concerns mentioned in Aquino and Estrada:

Re: Petition for Television and Radio Coverage of Multiple Murder Cases Against Maguindanao Governor Zaldy Ampatuan

(a) An audio-visual recording of the Maguindanao massacre cases may be made both for documentary purposes and for transmittal to live radio and television broadcasting. (b) Media entities must file with the trial court a letter of application, manifesting that they intend to broadcast the audio-visual recording of the proceedings and that they have the necessary technological equipment and technical plan to carry out the same, with an undertaking that they will faithfully comply with the guidelines and regulations and cover the entire remaining proceedings until promulgation of judgment. No selective or partial coverage shall be allowed. No media entity shall be allowed to broadcast the proceedings without an application duly approved by the trial court. (c) A single fixed compact camera shall be installed inconspicuously inside the courtroom to provide a single wide-angle full-view of the sala of the trial court. No panning and zooming shall be allowed to avoid unduly highlighting or downplaying incidents in the proceedings. The camera and the necessary equipment shall be operated and controlled only by a duly designated official or employee of the Supreme Court. The camera equipment should not produce or beam any distracting sound or light rays. Signal lights or signs showing the equipment is operating should not be visible. A limited number of microphones and the least installation of wiring, if not wireless technology, must be unobtrusively located in places indicated by the trial court. The Public Information Office and the Office of the Court Administrator shall coordinate and assist the trial court on the physical set-up of the camera and equipment. (d) The transmittal of the audio-visual recording from inside the courtroom to the media entities shall be conducted in such a way that the least physical disturbance shall be ensured in keeping with the dignity and solemnity of the proceedings and the exclusivity of the access to the media entities. The hardware for establishing an interconnection or link with the camera equipment monitoring the proceedings shall be for the account of the media entities, which should employ technology that can (i) avoid the cumbersome snaking cables inside the courtroom, (ii) minimize the unnecessary ingress or egress of technicians, and (iii) preclude undue commotion in case of technical glitches. If the premises outside the courtroom lack space for the set-up of the media entities facilities, the media entities shall access the audio-visual recording either via wireless technology accessible even from outside the court premises or from one

Re: Petition for Television and Radio Coverage of Multiple Murder Cases Against Maguindanao Governor Zaldy Ampatuan

common web broadcasting platform from which streaming can be accessed or derived to feed the images and sounds. At all times, exclusive access by the media entities to the real-time audio-visual recording should be protected or encrypted. (e) The broadcasting of the proceedings for a particular day must be continuous and in its entirety, excepting such portions thereof where Sec. 21 of Rule 119 of the Rules of Court[27] applies, and where the trial court excludes, upon motion, prospective witnesses from the courtroom, in instances where, inter alia, there are unresolved identification issues or there are issues which involve the security of the witnesses and the integrity of their testimony (e.g., the dovetailing of corroborative testimonies is material, minority of the witness). The trial court may, with the consent of the parties, order only the pixelization of the image of the witness or mute the audio output, or both. (f) To provide a faithful and complete broadcast of the proceedings, no commercial break or any other gap shall be allowed until the days proceedings are adjourned, except during the period of recess called by the trial court and during portions of the proceedings wherein the public is ordered excluded. (g) To avoid overriding or superimposing the audio output from the on-going proceedings, the proceedings shall be broadcast without any voice-overs, except brief annotations of scenes depicted therein as may be necessary to explain them at the start or at the end of the scene. Any commentary shall observe the sub judice rule and be subject to the contempt power of the court; (h) No repeat airing of the audio-visual recording shall be allowed until after the finality of judgment, except brief footages and still images derived from or cartographic sketches of scenes based on the recording, only for news purposes, which shall likewise observe the sub judice rule and be subject to the contempt power of the court; (i) The original audio-recording shall be deposited in the National Museum and the Records Management and Archives Office for preservation and exhibition in accordance with law. (j) The audio-visual recording of the proceedings shall be made under the supervision and control of the trial court which may issue supplementary directives, as the exigency requires, including the suspension or revocation of the grant of application by the media entities.

Re: Petition for Television and Radio Coverage of Multiple Murder Cases Against Maguindanao Governor Zaldy Ampatuan

(k) The Court shall create a special committee which shall forthwith study, design and recommend appropriate arrangements, implementing regulations, and administrative matters referred to it by the Court concerning the live broadcast of the proceedings pro hac vice, in accordance with the above-outlined guidelines. The Special Committee shall also report and recommend on the feasibility, availability and affordability of the latest technology that would meet the herein requirements. It may conduct consultations with resource persons and experts in the field of information and communication technology. (l) All other present directives in the conduct of the proceedings of the trial court ( i.e., prohibition on recording devices such as still cameras, tape recorders; and allowable number of media practitioners inside the courtroom) shall be observed in addition to these guidelines.

Indeed, the Court cannot gloss over what advances technology has to offer in distilling the abstract discussion of key constitutional precepts into the workable context. Technology per se has always been neutral. It is the use and regulation thereof that need fine-tuning. Law and technology can work to the advantage and furtherance of the various rights herein involved, within the contours of defined guidelines. WHEREFORE, in light of the foregoing disquisition, the Court PARTIALLY GRANTS PRO HAC VICE the request for live broadcast by television and radio of the trial court proceedings of the Maguindanao Massacre cases, subject to the guidelines herein outlined. SO ORDERED.

Martinez vs. Mendoza

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 153795 August 17, 2006 MA. ESTRELITA D. MARTINEZ, Petitioner, vs. Director General LEANDRO MENDOZA, Chief Superintendent NESTORIO GUALBERTO, SR., Superintendent LEONARDO ESPINA, SR., Superintendent JESUS VERSOZA, and JOHN DOES,Respondents. DECISION PANGANIBAN, CJ.: When respondents deny custody of an allegedly detained person, petitioners have the duty of establishing the fact of detention by competent and convincing evidence; otherwise, the writ of habeas corpus cannot be issued. Nonetheless, when the disappearance of a person is indubitable, the law enforcement authorities are duty-bound to investigate it with due diligence and to locate the missing person. When the wrongdoing is attributable to the police agencies and/or their agents, the aggrieved may secure the assistance of the Peoples Law Enforcement Board or the Commission on Human Rights. The Case Before us is a Petition for Review1 under Rule 45 of the Rules of Court, seeking to reverse the March 22, 2002 Decision2 and the May 30, 2002 Resolution3 of the Court of Appeals (CA) in CA-GR SP No. 68170. The assailed Decision disposed as follows: "WHEREFORE, the decision of the court a quo is REVERSED and the petition for habeas corpus is DISMISSED."4 The assailed Resolution denied reconsideration. The Facts The antecedent facts are narrated by the CA in this wise: "Petitioners are the mother and wife, respectively, of Michael Martinez, a resident of 4570 Cattleya Road, Sun Valley Subdivision, Paraaque City, who was allegedly abducted and taken away by seven (7) persons around 7:30 in the morning of November 19, 2001 while he was walking along Magnolia Street, on his way to his mother's house at 3891 Marigold Street of the same subdivision. The abduction was reported by petitioners to the Barangay, the Paraaque Police and the Anti-Kidnapping Task Force at Camp Crame. "It appears that in the evening of November 19, 2001, the Criminal Investigation and Detection Group (CIDG) of the Philippine National Police (PNP) presented before the media a certain Phillip Medel, Jr., who allegedly executed a statement confessing to his participation in the killing of Dorothy Jones, a.k.a. Nida Blanca, naming Michael Martinez as the person who introduced him to Rod Lauren Strunk, the husband of Nida Blanca and alleged mastermind in her killing. In a televised interview with a media reporter on November 26, 2001, Medel narrated that he saw Michael Martinez at the CIDG at Camp Crame where he was being detained, and which the former allegedly reiterated when he talked to Robert Paul Martinez, a brother of Michael, on November 27, 2001 and he even described the clothes Michael was then wearing, which were the same clothes worn by him when he was abducted. Petitioners then made representations with CIDG for the release of Michael Martinez or that they be allowed to see him, but the same were not granted.

Martinez vs. Mendoza "In view thereof, petitioners filed a petition for habeas corpus with the Regional Trial Court, Branch 78, Quezon City against respondents PNP Director General Leandro Mendoza; Chief Superintendent Nestorio Gualberto, Sr., Chief of the CIDG; Senior Superintendent Leonardo Espina, Sr. and Senior Superintendent Jesus Versoza of the CIDG and members of Task Force Marsha, which is investigating the Nida Blanca murder case, for them to produce before said court the person of Michael Martinez or to justify the continued detention of his liberty.
"In an Order dated November 29, 2001, the court a quo set the petition for hearing on December 3, 2001 and directed respondents to show cause why the writ of habeas corpus should not issue. "At the hearing on December 3, 2001, respondents submitted a RETURN wherein they vehemently and categorically denied any participation or involvement in the alleged abduction or disappearance of Michael Martinez as the latter was never confined and detained by them or in their custody at any given time. Respondents thus prayed for the dismissal of the petition for habeas corpus. "At the hearing conducted by the court a quo, respondents reiterated their claim that Michael Martinez is not and was never in their custody. On the other hand, petitioners presented Phillip Medel, Jr. who insisted that he saw Michael Martinez inside a room at the CIDG where he was brought before midnight of November 19, 2001 or the wee hours of November 20, 2001, that Sr. Supts. Verzosa (sic) and Espina were also in said room and that the latter even boxed Michael in the stomach. "Finding that respondents denial pale beside Medel's positive assertion that Michael Martinez is in their custody, the court a quo, in a Decision dated December 10, 2001 directed respondents to produce the body of Michael Martinez before it on December 11, 2001 at 2:00 o'clock in the afternoon. A copy of said decision was received by respondents on December 10, 2001 "On December 11, 2001, respondents filed a notice of appeal on the ground that the Decision is contrary to law and the evidence."5 Ruling of the Court of Appeals The CA agreed with the Office of the Solicitor General (OSG) that Medels credibility was highly suspect. The appellate court opined that he had contradicted himself as to material facts. Further negating his testimony was Superintendent Espinas positive testimony that he was at home between midnight of November 19, 2001, and early morning of November 20, 2001. The CA relied on the presumption of regularity in the performance of official duties. It held that, "[a]s aptly pointed out by respondents, the CIDG itself is equally concerned with the safety of Michael Martinez relative to the final resolution of the Nida Blanca slay. For he is definitely a vital witness to his case. The PNP-CIDG has no motive whatsoever to abduct him as it never did."6 Hence, this Petition.7 Issue Petitioner has failed to make a categorical statement of the issues for the Courts consideration. She has also failed to state what relief she prays for. Nonetheless, the Court will resolve the case on the issue of whether the CA erred in reversing the trial court and dismissing the Petition for habeas corpus. The Courts Ruling The present Petition for Review has no merit. Sole Issue:

Martinez vs. Mendoza Reversible Error of the Court of Appeals

Petitioner contends that it is the evaluation of the RTC -- not the CA -- that should be upheld, because the trial court had the opportunity to observe the witnesses and to determine whether they were telling the truth when they testified. On the other hand, respondents aver that their candor and the veracity of their denial of the custody or detention of Michael cannot be doubted by the Court. Their argument is even strengthened in the face of the incredible and contradictory testimony of petitioners witness, Phillip Medel Jr. Propriety of Habeas Corpus At the outset, it must be stressed that petitioners anchor for the present case is the disappearance of Michael. The matter of his alleged detention is, at best, merely consequential to his disappearance. Ostensibly, his disappearance has been established. However, the grant of relief in a habeas corpus proceeding is not predicated on the disappearance of a person, but on his illegal detention. Habeas corpus generally applies to "all cases of illegal confinement or detention by which any person is deprived of his liberty or by which the rightful custody of any person is withheld from the person entitled thereto."8 Said this Court in another case: "The ultimate purpose of the writ of habeas corpus is to relieve a person from unlawful restraint. It is devised as a speedy relief from unlawful restraint. It is a remedy intended to determine whether the person under detention is held under lawful authority."9 If the respondents are neither detaining nor restraining the applicant or the person on whose behalf the petition for habeas corpus has been filed, then it should be dismissed. This Court has ruled that this remedy has one objective -- to inquire into the cause of detention of a person: "The purpose of the writ is to determine whether a person is being illegally deprived of his liberty. If the inquiry reveals that the detention is illegal, the court orders the release of the person. If, however, the detention is proven lawful, then the habeas corpus proceedings terminate. The use of habeas corpus is thus very limited."10 Habeas corpus may not be used as a means of obtaining evidence on the whereabouts of a person,11 or as a means of finding out who has specifically abducted or caused the disappearance of a certain person. When respondents making the return of the writ state that they have never had custody over the person who is the subject of the writ, the petition must be dismissed, in the absence of definite evidence to the contrary. "The return of the writ must be taken on its face value considering that, unless it is in some way [convincingly] traversed or denied, the facts stated therein must be taken as true"12 for purposes of the habeas corpus proceedings. Forcible Taking and Disappearance When forcible taking and disappearance -- not arrest and detention -- have been alleged, the proper remedy is not habeas corpus proceedings, but criminal investigation and proceedings. Abduction or kidnapping is a crime punishable by law. Investigations with regard to crimes are first and foremost the duty of the Philippine National Police (PNP) and the National Bureau of Investigation (NBI), not the courts. There are instances when members of the PNP -- the agency tasked with investigating crimes -- are suspected of being responsible for the disappearance of a person, who is the subject of habeas corpus proceedings. This fact will not convert the courts into -- or authorize them through habeas corpus proceedings to be -- forefront investigators, prosecutors, judges and executioners all at the same time. Much as this Court would want to resolve these disappearances speedily -- as in the present case, when it is interested in determining who are responsible for the

Martinez vs. Mendoza disappearance and detention of Michael (if, indeed, he is being detained) -- it would not want to step beyond its reach and encroach on the duties of other duly established agencies. Instead of rendering justice to all,13 it may render injustice if it resorts to shortcuts through habeas corpus proceedings. In fine, this proceeding for habeas corpus cannot be used as a substitute for a thorough criminal investigation.
The Department of Interior and Local Government (DILG), specifically the Peoples Law Enforcement Board (PLEB),14 is tasked to investigate abuses or wrongdoings by members of the PNP. Thus, if they or the NBI abuse or fail to perform their duties, as indicated in this case, people may refer their complaints to the PLEB, which should be part of their arsenal in the battle to resolve cases in which members of the PNP are suspected of having caused the disappearance of anyone. Removing criminals from the ranks of those tasked to promote peace and order and to ensure public safety would be a big axe blow to the mighty oak of lawlessness. Let each citizen contribute a blow, puny though it may be when done alone; but collectively we can, slowly but surely, rid our society of disorder and senseless disappearances. Going back to the present case, petitioner must establish by competent and convincing evidence that the missing person, on whose behalf the Petition was filed, is under the custody of respondents. Unfortunately, her evidence is insufficient to convince the Court that they have Michael in their custody. Moreover, "a writ of habeas corpus should not issue where it is not necessary to afford the petitioner relief or where it would be ineffective."15 Considering that respondents have persistently denied having Michael in their custody, and absent any decisive proof to rebut their denial, the Court is constrained to affirm the CAs dismissal of the Petition for habeas corpus. In view of the established fact of Michaels suspiciously felonious disappearance, we exhort the NBI and the National Anti-Kidnapping Task Force (NAKTAF) to continue their investigation into the matter, so that all persons responsible can be prosecuted for whatever crime they have committed. WHEREFORE, the Petition is DENIED, and the assailed Decision and Resolution of the Court of Appeals are AFFIRMED. No costs in this instance. Let a copy of this Decision be furnished the Commission on Human Rights and the Department of Interior and Local Government for appropriate action. SO ORDERED.

Manalo vs. Calderon

THIRD DIVISION [G.R. No. 178920, October 15, 2007] SPO2 GERONIMO MANALO, SPO2 LEO MORCILLA, PO3 RICO M. LANDICHO, PO2 ROMEO MEDALLA, JR., SPO2 WILLIAM RELOS, JR., P/INSP. ROBERTO N. MARINDA, PETITIONERS, VS. HON. PNP CHIEF OSCAR CALDERON, HON. P/DIR. GEARY BARIAS, DIRECTORATE FOR INVESTIGATION AND DETECTIVE MANAGEMENT, CAMP CRAME, HON. REGIONAL DIRECTOR, POLICE CHIEF SUPT. NICASIO J. RADOVAN, HON. POLICE SR. SUPT. AARON DEOCARES FIDEL, HON. POLICE SR. SUPT. LUISITO DE LEON, RESPONDENTS. DECISION
REYES, R.T., J.: ANG isang petisyon para sa habeas corpus ay bibigyan daan lamang kung ito ay nagpapakita na ang nagpepetisyon ay ipinipiit o pinipigilan ang kalayaan nang labag sa batas. Ang mahigpit na pangangalaga at ang pag-monitor ng galaw o kinaroroonan ng mga pulis na sumasailalim sa imbestigasyon ng kanilang pamunuan ay hindi isang uri ng ipinagbabawal na pagpiit o pagpigil sa kanilang kalayaan. A petition for habeas corpus will be given due course only if it shows that petitioner is being detained or restrained of his liberty unlawfully. A restrictive custody and monitoring of movements or whereabouts of police officers under investigation by their superiors is not a form of illegal detention or restraint of liberty. Filed on August 7, 2007, this petition for the issuance of a writ of habeas corpusassails the restrictive custody and monitored movements of petitioners SPO2 Geronimo Manalo, PO3 Leo Morcilla, PO3 Rico M. Landicho, PO2 Romeo Medalla, Jr., SPO2 William Relos, Jr., PInsp. Roberto D. Marinda, by the Philippine National Police (PNP), Region 4-A, after they were implicated in the burning of an elementary school in Taysan, Batangas at the height of the May 2007 national and local elections. Petitioners were formerly police operatives assigned at the Regional Special Operations Group, PNP Region 4-A, Camp Vicente Lim, Calamba City, Laguna. When their petition was filed, they were detailed at the Regional Headquarters Support Group at the same Camp under a restrictive custody status. Respondents Oscar Calderon, Geary Barias, Nicasio Radovan, Aaron Deocares Fidel, and Luisito De Leon were, at the time of filing of the petition, the Chief of the PNP, the Directorate for Investigation and Detective Management, the Regional Director and Police Sr. Superintendents, respectively. The Facts The facts, as reflected in the petition and its annexes, are as follows: On May 15, 2007, at around 3:00 a.m., five unidentified malefactors bearing high-powered firearms suddenly appeared at the Barangay Pinagbayanan Elementary School in the Municipality of Taysan, Province of Batangas. Earlier, the entire school grounds were converted into a polling area for the 2007 national and local elections. The five armed men forcibly entered Polling Precinct 76-A, and poured gasoline over a ballot box. Then they fired several rounds of ammunitions at the premises, setting it ablaze.[1] The conflagration caused the death of a school teacher, Ritchel (Nellie) Banaag, who was then acting as an election supervisor. A poll watcher in the person of Leticia (Letty) Ramos also perished while nine others were reportedly injured as a result of the fire.[2] In the investigation that ensued, several eye-witnesses identified some of petitioners as the perpetrators of the school burning.[3] The investigation also yielded that all six petitioners, who are all members of the PNP Regional Special Operations Group (PNP-RSOG), failed to timely respond to the incident at the Pinagbayanan Elementary School.[4] Acting on the report, the PNP hierarchy issued three successive memoranda dated May 18, May 22 and June 28, 2007, to wit:
A. MEMORANDUM

Manalo vs. Calderon

FOR: FROM: SUBJECT: DATE: TDPRM TDIDM Order for Restrictive Custody of PCINSP ELPIDIO RAMIREZ, et al. May 18, 2007 -------------------------------------------------------------

1.

Reference: Memo from TDIDM with subject: Special Report re Alleged Arson in Pinagbayanan Elementary School, Taysan, Batangas which was approved by the C, PNP.

2.

This pertains to the investigation being conducted regarding the reported involvement of personnel from PRO 4A-RSOG in the fire incident in Pinagbayanan Elementary School, Taysan, Batangas on May 15, 2007 resulting in the death of two (2) teachers and wounding of several others.

3.

In this connection, request issue orders putting in restrictive custody the following PNP personnel:

PCINSP ELPIDIO A RAMIREZ PINSP RUEL C DELA CRUZ PINSP ROBERTO N MARINDA SPO2 William Relos, Jr. (SGD.) GEARY L. BARIAS Police Director[5]
B. MEMORANDUM To From Subject Date : GD, RHSG : Regional Director : Monitoring of PCOs and PNCOs : May 22, 2007 -------------------------------------------------------------

1.

References:

a.

Verbal instruction of RD, PRO, CALABARZON, dated May 22, 2007; and

b.

S.O. No. 274 dated May 17, 2007, PRO, CALABARZON.

2.

Above references pertains to the relief of PINSP ROBERTO D. MARINDA, SPO2 William D. Relos, SPO2 Leo V. Morcilla, SPO2 Geronimo R. Manalo, PO3 Rico M. Landicho and PO2 Romeo E. Medalla, Jr, from their respective unit assignment and subsequent reassignment to that office.

Manalo vs. Calderon

3.

In connection thereof, subject PCO and PNCOs should be properly accounted from time to time taking into consideration the following:

a.

All their movements within camp should be monitored;

b.

When situation warrants their movement outside camp, they should be properly escorted on one-onone basis; and

c.

A logbook should be maintained to record the accounting of said PCO and PNCOs, their place of destination, name of escort, Estimated Time of Departure (ETD) and Estimated Time of Return to Station (ETRS).

4.

Further inform the Regional Director and the Command Group thru Chief, Regional Directorial Staff of any unusual incident or movement involving subject PCOs and PNCOs.

5.

This Order takes effect immediately.

BY AUTHORITY OF PCSUPT RADOVAN, JR.: (SGD.) AARON DEOCARES FIDEL, CSEE Police Senior Superintendent (DSC) Chief, Regional Directorial Staff[6]
C. MEMORANDUM FOR FROM SUBJECT : GD, RHSG 4A : Chief, RPHRDD : Order for Restrictive Custody of PINSP ROBERTO NAZ MARINDA and SPO2 William Dizon Relos, Jr. : June 28, 2007

DATE

-----------------------------------------------------1. References

a.

Memorandum from TDPRM dated May 23, 2007;

Manalo vs. Calderon

b. Memorandum from Chief, RLS 4A June 19, 2007 noted by RD, PRO 4A

2.

This is in connection with the reported involvement of PRO 4A-RSOG personnel to the fire incident on May 15, 2007 at Pinagbayanan Elementary School, Taysan, Batangas

3.

Please be informed that pursuant to reference 1.a., orders are being issued by this Office placing following named PNP personnel under Restrictive Custody (in view of the investigation being conducted against them) effective this date, namely: PINSP ROBERTO NAZ MARINDA SPO2 William Dizon Relos, Jr.

4.

In this regard, inform concerned personnel and adjust your records accordingly.

5.

For information and be guided accordingly.

(SGD.) IRENEO DIZON BORDAS Police Senior Superintendent DSG Chief, RPHRDD[7] Petitioners contend that the May 22, 2007 Memorandum defines and circumscribes the scope of petitioners restrictive custody status;[8] that although technically speaking, petitioners as PNP officer are not detained or imprisoned, their physical movements are, however, limited only within Camp Vicente Lim, Calamba City, Laguna; they cannot go home to their respective families and if they would leave Camp Vicente Lim they need to be escorted;[9] that petitioners restrictive custody status is illegal and not sanctioned by any existing provision of our constitution and laws;[10] that it is degrading, summarily and arbitrarily imposed on the basis of mere suspicion and it actually makes PNP members enjoy lesser rights than what are actually enjoyed by ordinary citizens.[11] Petitioners further posit that what is only sanctioned is preventive suspension under which they can enjoy liberty and go home to their families pending administrative investigation. Hence, they urge, this practice by the PNP organization should be put to a stop. In support of their petition, petitioners principally rely on the case of Moncupa v. Enrile, et al.,[12] where it was essentially held that the writ of habeas corpus applies to all cases of illegal confinement or detention by which any person is deprived of his liberty. The ruling holds true even if petitioners are released but continue to be denied one or more of his constitutional freedoms, where there is present a denial of due process, where the restraints are not merely involuntary but appear to be unnecessary, and where a deprivation of freedom, originally valid has, in the light of subsequent developments, become arbitrary. They also cite Villavicencio v. Lukban,[13] where certain women were illegally transported against their will from Manila to Davao. There they were forced to change their domicile and some of them returned to Manila. Yet, this Court condemned the involuntary restraints on petitioners, fined the City Mayor of Manila and hoped the decision would serve to bulwark the fortifications of an orderly government of laws and to protect individual liberty from illegal encroachment. Petitioners thus pray that a writ of habeas corpus be issued, commanding the respondents to produce the bodies of petitioners before the Court, to explain the lawful cause of their detention and deprivation of physical liberties and, thereafter, for this Court to adjudge their restrictive custody status as illegal and to set them free. Without necessarily giving due course to the petition, the Court required respondents to comment.

Manalo vs. Calderon

In lieu of a comment, the Office of the Solicitor General (OSG) manifested that by Memorandum Order of August 30, 2007,[14] respondent Radovan, Director of PNP Regional Office 4-A, has recalled, effective immediately, the assailed restrictive custody order embodied in the two Memoranda dated May 22 and June 28, 2007. In view of the recall, it is prayed that the petition be dismissed on ground of mootness. Issues Two critical issues are thus posed for our determination. One, by petitioners, on whether or not they are unlawfully detained or restrained of their liberty under their restrictive custody status. Two, by respondents, on whether the Court should dismiss the petition on the sole ground of mootness, the assailed orders having been recalled, or proceed to decide the petition on the merits. We shall resolve them in the reverse order, dealing with the procedural ahead of the substantive question. Our Ruling
I. This Court, By Way Of Exceptions, Decides Moot Issues

Notwithstanding the mootness of the issues on restrictive custody and monitoring of movements of petitioners, We opt to resolve them given (a) the paramount public interest involved, (b) their susceptibility of recurring yet evading review and (c) the imperative need to educate the police community on the matter. Sa kabila ng pagiging akademiko na lamang ng mga isyu tungkol sa mahigpit na pangangalaga (restrictive custody) at pagmonitor ng galaw (monitoring of movements) ng nagpepetisyon, dedesisyunan namin ito (a) dahil sa nangingibabaw na interes ng madla na nakapaloob dito, (b) dahil sa posibilidad na maaaring maulit ang pangyayari at (c) dahil kailangang maturuan ang kapulisan tungkol dito. The release of petitioners by respondents in a petition for habeas corpus does not automatically abate a decision on the case. Similarly, a recall of the custody order challenged by petitioners will not necessarily call for a dismissal on the ground of mootness alone. Although the general rule is mootness of the issue warrants a dismissal, there are well-defined exceptions. In the habeas corpus case of Aquino, Jr. v. Enrile,[15] twenty-six (26) petitioners were released from custody and one withdrew during the pendency of the petition. The fact that the petition was rendered moot and academic did not prevent this Court in the exercise of its symbolic function from promulgating one of the most voluminous decisions ever. Even petitioners cite Tibo v. The Provincial Commander[16] and Toyoto, et al. v. Ramos, et al.,[17] where respondents filed a motion to dismiss the petition for habeas corpus on the ground that petitioners had been temporarily released and their case had, therefore, become moot and academic. This Court, as in Moncupa, chose to decide the said cases. The Court sustained petitioners plea that their case be considered moot and academic only if their release would be permanent. In Acop, et al. v. Guingona, Jr.,[18] petitioning PNP officers questioned, via petition for injunction, the legality of the admission of SPO2 delos Reyes and SPO2 dela Cruz into the Witness Protection Program. Petitioners contended that under Section 3(d) of R.A. No. 6981, law enforcement officers like the said SPO2 are disqualified from being admitted into the program, though they may be testifying against other law enforcement officers. In its comment, the OSG claimed that the petition lacked merit and that the same was rendered moot and academic because the coverage of SPO2 delos Reyes and SPO2 dela Cruz under the program was already terminated on December 3, 1997 and August 23, 1998, respectively, as evidenced by the letter of the Director of the Program addressed to the OSG, dated February 10, 1999. In their comment, private respondents SPO2 delos Reyes and SPO2 dela Cruz agreed with the OSG. Denying the OSG motion, this Court held: Indeed, prayers a) and b) above had been rendered moot and academic by reason of the release of SPO2 delos Reyes and SPO2 dela Cruz from the coverage of the Program. However, we find it necessary to resolve the merits of the principal issue raised for a proper disposition of prayer c) and for future guidance of both bench and bar as to the application of Sections 3(d) and 4 of R. A. No. 6981. As we have ruled in Alunan III vs. Mirasol, and Viola vs. Alunan III, courts will decide a question otherwise moot and academic if it is capable of repetition, yet evading review. (Emphasis supplied)

Manalo vs. Calderon

This Court then sustained the RTC observation that law enforcement officers may be admitted into the Witness Protection Program in cases where they are witnesses in legislative investigations. In the recent landmark cases of David, et al. v. Arroyo, et al.,[19] involving seven petitions for certiorari and prohibition, the President lifted the declaration of a state of national emergency during the pendency of the suits. In effect, Presidential Proclamation No. 1017 and General Order No. 5 were withdrawn. The OSG thus moved and prayed for the dismissal of the petitions, arguing there is no more justiciable controversy as the issue has been mooted. This Court denied the motion and proceeded to declare the constitutional infirmity of the Presidential issuances. On the issue of mootness, the Court summed up the four exceptions to the rule, thus: The moot and academic principle is not a magical formula that can automatically dissuade the courts in resolving a case. Courts will decide cases, otherwise moot and academic, if: first, there is a grave violation of the Constitution; second, the exceptional character of the situation and the paramount public interest is involved; third, when constitutional issue raised requires formulation of controlling principles to guide the bench, the bar, and the public; and fourth, the case is capable of repetition yet evading review. All the foregoing exceptions are present here and justify this Courts assumption of jurisdiction over the instant petitions. Petitioners alleged that the issuance of PP 1017 and G.O. No. 5 violates the Constitution. There is no question that the issues being raised affect the public interest, involving as they do the peoples basic rights to freedom of expression, of assembly and of the press. Moreover, the Court has the duty to formulate guiding and controlling constitutional precepts, doctrines or rules. It has the symbolic function of educating the bench and the bar, and in the present petitions, the military and the police, on the extent of the protection given by constitutional guarantees. And lastly, respondents contested actions are capable of repetition. Certainly, the petitions are subject to judicial review. (Emphasis supplied). Evidently, the triple reasons We advanced at the start of Our ruling are justified under the foregoing exceptions. Every bad, unusual incident where police officers figure in generates public interest and people watch what will be done or not done to them. Lack of disciplinary steps taken against them erode public confidence in the police institution. As petitioners themselves assert, the restrictive custody of policemen under investigation is an existing practice, hence, the issue is bound to crop up every now and then. The matter is capable of repetition or susceptible of recurrence. It better be resolved now for the education and guidance of all concerned.
II. There Is No Illegal Restraint In The Restrictive Custody and Monitored Movements Of Police Officers Under Investigation

The high prerogative writ of habeas corpus, whose origin is traced to antiquity, was devised and exists as a speedy and effectual remedy to relieve persons from unlawful restraint and as the best and efficient defense of personal freedom.[20] Ang mataas na pinapahalagahang writ of habeas corpus, na ang pinagmulan ay nuon pa mang matandang panahon, ay ginawa at umiiral bilang kagyat at mabisang lunas upang paalpasin ang tao sa labag sa batas na pagkakapigil at bilang pinakamaigi at mahusay na sanggalang ng sariling kalayaan. The main thrust of the special proceeding of habeas corpus is to inquire into the legality of one's detention. More specifically, its vital purpose is to obtain immediate relief from illegal confinement, to liberate those who may be imprisoned without sufficient cause and to deliver them from unlawful custody.[21] Only if the Court is satisfied that a person is unlawfully restrained of his liberty will a petition for habeas corpus be granted and the person detained released from confinement.[22] If respondents are not detaining nor restraining the applicants or the person in whose behalf the petition for habeas corpus is filed, the petition should perforce be dismissed.[23] Ang kahilingan para sa habeas corpus ay maari lamang pagbigyan at ang taong pinipigilan ay pawawalan sa pagkapiit kung masisiyahan ang Hukuman na labag sa batas ang pagkakait sa kanya ng kalayaan. Kung hindi ipinipiit o pinipigilan ang mga taong naghain ng kahilingan para sa habeas corpus o ang mga kinakatawan nila, ang petisyon ay dapat pawalang saysay. Measured by the foregoing yardstick, the petition, on its face, fails to convince us that petitioners are actually and unlawfully detained and restrained of their liberty.Sombong v. Court of Appeals, et al.[24] teaches us that for the writ of habeas corpusto issue, the restraint of liberty must be in the nature of an illegal and involuntary deprivation of freedom of action. More importantly, the prime specification of an application for a writ of habeas corpus is an actual and effective, and not merely

Manalo vs. Calderon

nominal or moral, illegal restraint of liberty.[25] To the mind of the Court, petitioners are not illegally and involuntarily deprived of their freedom of action. Walang illegal na pagpipigil o pagkakait ng kalayaan sa nagpepetisyon. Firstly, the assailed memoranda dated May 22, 2007,[26] June 28, 2007[27] and May 18, 2007,[28] decreeing the monitoring of their movements cannot, by any stretch of the imagination, be considered as a form of curtailment of their freedom guaranteed under our Constitution. Ang ipag-utos na subaybayan ang kanilang mga kilos ay hindi maituturing na pagbabawas ng kanilang kalayaan na ginagarantiyahan sa ilalim ng ating Konstitusyon . Perusing the assailed memoranda, it is evident that petitioners are not actually detained or restrained of their liberties. What was ordered by the PNP is that their movements, inside and outside camp be monitored in the following manner, to wit: a. All their movements within camp should be monitored;

b.

When situation warrants their movement outside camp, they should be properly escorted on one-on-one basis; and

c.

A logbook should be maintained to record the accounting of said PCO and PNCOs, their place of destination, name of escort, Estimated Time of Departure (ETD) and Estimated Time of Return to Station (ETRS).[29]

It is crystal-clear that petitioners are free to go in and out of Camp Vicente Lim as they please. The only limitation imposed upon them is that their movements within the premises of the camp shall be monitored; that they have to be escorted whenever the circumstances warrant that they leave the camp; and that their estimated time of departure and arrival shall be entered in a logbook. Even petitioners themselves admit they are not actually detained or imprisoned .[30] Secondly, the restrictive custody complained of by petitioners is, at best, nominal restraint which is beyond the ambit of habeas corpus. It is neither actual nor effective restraint that would call for the grant of the remedy prayed for. It is a permissible precautionary measure to assure the PNP authorities that the police officers concerned are always accounted for. Ang restrictive custody o mahigpit na pangangalaga, na inirereklamo ng mga nagpetisyon, ay bahagyang paghihigpit lamang na labas sa saklaw ng habeas corpus. Itoy hindi aktuwal o mabisang pagpigil para mangailangan ng remedyong hinihiling. Itoy isang pinapayagang hakbang ng pag -iingat upang makatiyak ang pamunuan ng PNP na ang mga naturang pulis ay maaring iprisinta anumang sandali. If said custodial procedure were not taken, respondent police superiors themselves would have been exposed to charges of conspiracy, negligence or laxity in the enforcement of internal discipline. If petitioners get lost or are able to go abroad or figure in another untoward incident, respondents would have to explain why they did not observe the needed precaution, else they would also be administratively liable. Thirdly, petitioners reliance on Moncupa[31] is misplaced. In said case, petitioner was ordered released by respondent but his release was saddled with restrictions. There, petitioner was required to secure prior approval for: (a) any travel outside Metro Manila; and (b) a change in residence. His freedom of speech was likewise muffled by a prohibition on granting interviews to local or foreign media. He was likewise ordered to report regularly to respondent.[32] In the case at bench, no restrictions in the nature of those imposed in Moncupa exist. To reiterate, petitioners are merely held to account for their movements inside and outside the camps premises. They are not required to secure prior approval before they can move out of the camp, only that each of them be accompanied by an escort and their time of departure and arrival noted. Ang mga nagpepetisyon ay pinipigil lamang upang masubaybayan ang kanilang ikinikilos sa loob at labas ng kampo. Hindi nila kailangan ang permiso bago makalabas ng kampo, kailangan lang na may kasamang bantay at ang kanilang pag-alis at pagbalik ay nakatala. Fourthly, Republic Act (R.A.) No. 6975 (DILG Act of 1990), as amended by R.A. No. 8551 (PNP Reform and Reorganization Act of 1998), clearly provides that members of the police force are subject to the administrative disciplinary machinery of the PNP.

Manalo vs. Calderon

Section 41(b) of the said law enumerates the disciplinary actions, including restrictive custody that may be imposed by duly designated supervisors and equivalent officers of the PNP as a matter of internal discipline, to wit: (b) Internal Discipline. On dealing with minor offenses involving internal discipline found to have been committed by any regular member of their respective commands, the duly designated supervisors and equivalent officers of the PNP shall, after due notice and summary hearing, exercise disciplinary powers as follows: (1) Chiefs of police or equivalent supervisors may summarily impose the administrative punishment of admonition or reprimand; restriction to specified limits; withholding of privileges; forfeiture of salary or suspension; or any of the combination of the foregoing: Provided, That, in all cases, the total period shall not exceed fifteen (15) days; (2) Provincial directors or equivalent supervisors may summarily impose administrative punishment of admonition or reprimand; restrictive custody; withholding of privileges; forfeiture of salary or suspension, or any combination of the foregoing: Provided, That, in all cases, the total period shall not exceed thirty (30) days; (3) Police regional directors or equivalent supervisors shall have the power to impose upon any member the disciplinary punishment of dismissal from the service. He may also impose the administrative punishment of admonition or reprimand; restrictive custody; withholding of privileges; suspension or forfeiture of salary; demotion; or any combination of the foregoing: Provided, That, in all cases, the total period shall not exceed sixty (60) days; (4) The Chief of the PNP shall have the power to impose the disciplinary punishment of dismissal from the service; suspension or forfeiture of salary; or any combination thereof for a period not exceeding one hundred eighty (180) days: Provided, further, That the chief of the PNP shall have the authority to place police personnel under restrictive custody during the pendency of a grave administrative case filed against him or even after the filing of a criminal complaint, grave in nature, against such police personnel.[33] (Emphasis supplied) It can be gleaned from the memoranda issued by the PNP hierarchy that an investigation is being conducted on the reported involvement of police personnel from PRO 4A-RSOG in the fire that gutted the Pinagbayanan Elementary School, Taysan, Batangas during the wee hours of May 15, 2007. The initial investigation report appended to the petition discloses that all petitioners are members of the Region 4 Special Operations Group who failed to timely respond to the incident. Some are even tagged by key eyewitnesses as the primary suspects in the burning of the school. As a result of the blaze, two persons, including a school teacher performing election duties, were killed. The incident sparked a national uproar, and rightly so, considering that it was a direct attack on the countrys already much-maligned electoral process. Evidently, the PNP is well within its authority to relieve petitioners from their former positions and place them under tight watch, at least until the termination of the said investigation. Clearly, placing police officers facing a grave administrative case under restrictive custody is a disciplinary measure authorized under the PNP law. Malinaw na ang paglalagay sa mahigpit na pangangalaga sa mga pulis na nahaharap sa isang grabeng kasong administratibo ay isang pandisiplinang hakbang na pinahihintulutan ng batas ng PNP . Thus, petitioners claim that their restrictive custody is an illegal practice not sanctioned by any existing provision of our constitution and laws is not true. It must necessarily fail. Lastly, petitioners contend that by placing them under restrictive custody, they are made to suffer lesser rights than those enjoyed by private citizens. On this score, the Courts pronouncement in Canson, et al. v. Hidalgo, et al.[34] is categorical. It was held there that although the PNP is civilian in character, its members are subject to the disciplinary authority of the Chief, Philippine National Police, under the National Police Commission. Courts cannot, by injunction, review, overrule or otherwise interfere with valid acts of police officials. The police organization must observe selfdiscipline and obey a chain of command under civilian officials.[35] Elsewise stated, police officers are not similarly situated with ordinary civil service employees. The PNP has its own administrative disciplinary mechanism different from those of other government employees. Sa ibang salita, ang kapulisan ay hindi katulad ng karaniwang kawani ng pamahalaan. Ang PNP ay may sariling mekanismo ng pagdisiplina na kaiba sa ipinatutupad sa ibang empleyado ng gobyerno. In Fianza v. The Peoples Law Enforcement Board, et al., [36] we ruled: x x x although respondent policemen continue to be citizens, as public respondents contend, they are not the private citizens referred to in the laws cited above. Clearly, the term private citizens does not ordinarily include men in uniform, such as the respondent PNP men. This is particularly evident in the PNP law which uses the term members of the PNP as well as private citizens to refer to different groups of persons and not interchangeably. The plain meaning rule or verba legis in statutory construction is applicable in this situation. When the words of a statute are clear,

Manalo vs. Calderon

plain and free from ambiguity, it must be given its interpretation. The term private citizen in the PNP Law and PLEB Rules is used in its common signification and was not meant to refer to the members of the PNP, such as respondent policemen. In sum, petitioners are unable to discharge their burden of showing that they are entitled to the issuance of the writ prayed for. The petition fails to show on its face that they are unlawfully deprived of their liberties guaranteed and enshrined in the Constitution. No unlawful restraint is foisted on them by the PNP authorities under the questioned memoranda. The ultimate purpose of the writ of habeas corpus is to relieve a person fromunlawful restraint. The writ cannot and will not issue absent a showing that petitioners are deprived of their liberty. Neither can it relieve petitioners, who are police officers, from the valid exercise of prescribed discipline over them by the PNP leadership. Ang pangunahing layunin ng writ o utos ng habeas corpus ay ang pagsaklolo sa isang tao mula sa pagkapiit o pagkapigil nang lisya sa batas. Ang writ ay hindi makakamit kung walang pagkakait ng kalayaan. Hindi rin ito mapanghahawakan ng mga nagpepetisyong kapulisan upang makaiwas sa takdang paraan ng pagdisiplina sa kanila ng mga pinuno ng PNP. WHEREFORE, the petition is DENIED DUE COURSE and DISMISSED. SO ORDERED.

Secretary of National Defense vs Manalo

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 180906 October 7, 2008

THE SECRETARY OF NATIONAL DEFENSE, THE CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES,petitioners, vs. RAYMOND MANALO and REYNALDO MANALO, respondents. DECISION PUNO, C.J.: While victims of enforced disappearances are separated from the rest of the world behind secret walls, they are not separated from the constitutional protection of their basic rights. The constitution is an overarching sky that covers all in its protection. The case at bar involves the rights to life, liberty and security in the first petition for a writ of Amparo filed before this Court. This is an appeal via Petition for Review under Rule 45 of the Rules of Court in relation to Section 19 1 of the Rule on the Writ of Amparo, seeking to reverse and set aside on both questions of fact and law, the Decision promulgated by the Court of Appeals in C.A. G.R. AMPARO No. 00001, entitled "Raymond Manalo and Reynaldo Manalo, petitioners, versus The Secretary of National Defense, the Chief of Staff, Armed Forces of the Philippines, respondents." This case was originally a Petition for Prohibition, Injunction, and Temporary Restraining Order (TRO)2 filed before this Court by herein respondents (therein petitioners) on August 23, 2007 to stop herein petitioners (therein respondents) and/or their officers and agents from depriving them of their right to liberty and other basic rights. Therein petitioners also sought ancillary remedies, Protective Custody Orders, Appointment of Commissioner, Inspection and Access Orders, and all other legal and equitable reliefs under Article VIII, Section 5(5)3 of the 1987 Constitution and Rule 135, Section 6 of the Rules of Court. In our Resolution dated August 24, 2007, we (1) ordered the Secretary of the Department of National Defense and the Chief of Staff of the AFP, their agents, representatives, or persons acting in their stead, including but not limited to the Citizens Armed Forces Geographical Unit (CAFGU) to submit their Comment; and (2) enjoined them from causing the arrest of therein petitioners, or otherwise restricting, curtailing, abridging, or depriving them of their right to life, liberty, and other basic rights as guaranteed under Article III, Section 14 of the 1987 Constitution.5 While the August 23, 2007 Petition was pending, the Rule on the Writ of Amparo took effect on October 24, 2007. Forthwith, therein petitioners filed a Manifestation and Omnibus Motion to Treat Existing Petition as AmparoPetition, to Admit Supporting Affidavits, and to Grant Interim and Final Amparo Reliefs. They prayed that: (1) the petition be considered a Petition for the Writ of Amparo under Sec. 266 of the Amparo Rule; (2) the Court issue the writ commanding therein respondents to make a verified return within the period provided by law and containing the specific matter required by law; (3) they be granted the interim reliefs allowed by the Amparo Rule and all other reliefs prayed for in the petition but not covered by the Amparo Rule; (4) the Court, after hearing, render judgment as required in Sec. 187 of the Amparo Rule; and (5) all other just and equitable reliefs.8 On October 25, 2007, the Court resolved to treat the August 23, 2007 Petition as a petition under the AmparoRule and further resolved, viz: WHEREFORE, let a WRIT OF AMPARO be issued to respondents requiring them to file with the CA (Court of Appeals) a verified written return within five (5) working days from service of the writ. We REMAND the petition to the CA and designate the Division of Associate Justice Lucas P. Bersamin to conduct the summary hearing on the petition on November 8, 2007 at 2:00 p.m. and decide the petition in accordance with the Rule on the Writ of Amparo.9

Secretary of National Defense vs Manalo On December 26, 2007, the Court of Appeals rendered a decision in favor of therein petitioners (herein respondents), the dispositive portion of which reads, viz:
ACCORDINGLY, the PRIVILEGE OF THE WRIT OF AMPARO is GRANTED. The respondents SECRETARY OF NATIONAL DEFENSE and AFP CHIEF OF STAFF are hereby REQUIRED: 1. To furnish to the petitioners and to this Court within five days from notice of this decision all official and unofficial reports of the investigation undertaken in connection with their case, except those already on file herein; 2. To confirm in writing the present places of official assignment of M/Sgt Hilario aka Rollie Castillo and Donald Caigas within five days from notice of this decision. 3. To cause to be produced to this Court all medical reports, records and charts, reports of any treatment given or recommended and medicines prescribed, if any, to the petitioners, to include a list of medical and (sic) personnel (military and civilian) who attended to them from February 14, 2006 until August 12, 2007 within five days from notice of this decision. The compliance with this decision shall be made under the signature and oath of respondent AFP Chief of Staff or his duly authorized deputy, the latter's authority to be express and made apparent on the face of the sworn compliance with this directive. SO ORDERED.10 Hence, this appeal. In resolving this appeal, we first unfurl the facts as alleged by herein respondents: Respondent Raymond Manalo recounted that about one or two weeks before February 14, 2006, several uniformed and armed soldiers and members of the CAFGU summoned to a meeting all the residents of theirbarangay in San Idelfonso, Bulacan. Respondents were not able to attend as they were not informed of the gathering, but Raymond saw some of the soldiers when he passed by the barangay hall.11 On February 14, 2006, Raymond was sleeping in their house in Buhol na Mangga, San Ildefonso, Bulacan. At past noon, several armed soldiers wearing white shirts, fatigue pants and army boots, entered their house and roused him. They asked him if he was Bestre, but his mother, Ester Manalo, replied that he was Raymond, not Bestre. The armed soldier slapped him on both cheeks and nudged him in the stomach. He was then handcuffed, brought to the rear of his house, and forced to the ground face down. He was kicked on the hip, ordered to stand and face up to the light, then forcibly brought near the road. He told his mother to follow him, but three soldiers stopped her and told her to stay.12 Among the men who came to take him, Raymond recognized brothers Michael de la Cruz, Madning de la Cruz, "Puti" de la Cruz, and "Pula" de la Cruz, who all acted as lookout. They were all members of the CAFGU and residing in Manuzon, San Ildefonso, Bulacan. He also recognized brothers Randy Mendoza and Rudy Mendoza, also members of the CAFGU. While he was being forcibly taken, he also saw outside of his house two barangaycouncilors, Pablo Cunanan and Bernardo Lingasa, with some soldiers and armed men.13 The men forced Raymond into a white L300 van. Once inside, he was blindfolded. Before being blindfolded, he saw the faces of the soldiers who took him. Later, in his 18 months of captivity, he learned their names. The one who drove the van was Rizal Hilario alias Rollie Castillo, whom he estimated was about 40 years of age or older. The leader of the team who entered his house and abducted him was "Ganata." He was tall, thin, curly-haired and a bit old. Another one of his abductors was "George" who was tall, thin, white-skinned and about 30 years old.14 The van drove off, then came to a stop. A person was brought inside the van and made to sit beside Raymond. Both of them were beaten up. On the road, he recognized the voice of the person beside him as his brother Reynaldo's. The van stopped several times until they finally arrived at a house. Raymond and Reynaldo were each brought to a different

Secretary of National Defense vs Manalo room. With the doors of their rooms left open, Raymond saw several soldiers continuously hitting his brother Reynaldo on the head and other parts of his body with the butt of their guns for about 15 minutes. After which, Reynaldo was brought to his (Raymond's) room and it was his (Raymond's) turn to be beaten up in the other room. The soldiers asked him if he was a member of the New People's Army. Each time he said he was not, he was hit with the butt of their guns. He was questioned where his comrades were, how many soldiers he had killed, and how many NPA members he had helped. Each time he answered none, they hit him.15
In the next days, Raymond's interrogators appeared to be high officials as the soldiers who beat him up would salute them, call them "sir," and treat them with respect. He was in blindfolds when interrogated by the high officials, but he saw their faces when they arrived and before the blindfold was put on. He noticed that the uniform of the high officials was different from those of the other soldiers. One of those officials was tall and thin, wore white pants, tie, and leather shoes, instead of combat boots. He spoke in Tagalog and knew much about his parents and family, and a habeas corpus case filed in connection with the respondents' abduction.16 While these officials interrogated him, Raymond was not manhandled. But once they had left, the soldier guards beat him up. When the guards got drunk, they also manhandled respondents. During this time, Raymond was fed only at night, usually with left-over and rotten food.17 On the third week of respondents' detention, two men arrived while Raymond was sleeping and beat him up. They doused him with urine and hot water, hit his stomach with a piece of wood, slapped his forehead twice with a .45 pistol, punched him on the mouth, and burnt some parts of his body with a burning wood. When he could no longer endure the torture and could hardly breathe, they stopped. They then subjected Reynaldo to the same ordeal in another room. Before their torturers left, they warned Raymond that they would come back the next day and kill him.18 The following night, Raymond attempted to escape. He waited for the guards to get drunk, then made noise with the chains put on him to see if they were still awake. When none of them came to check on him, he managed to free his hand from the chains and jumped through the window. He passed through a helipad and firing range and stopped near a fishpond where he used stones to break his chains. After walking through a forested area, he came near a river and an Iglesia ni Kristo church. He talked to some women who were doing the laundry, asked where he was and the road to Gapan. He was told that he was in Fort Magsaysay.19 He reached the highway, but some soldiers spotted him, forcing him to run away. The soldiers chased him and caught up with him. They brought him to another place near the entrance of what he saw was Fort Magsaysay. He was boxed repeatedly, kicked, and hit with chains until his back bled. They poured gasoline on him. Then a so-called "Mam" or "Madam" suddenly called, saying that she wanted to see Raymond before he was killed. The soldiers ceased the torture and he was returned inside Fort Magsaysay where Reynaldo was detained.20 For some weeks, the respondents had a respite from all the torture. Their wounds were treated. When the wounds were almost healed, the torture resumed, particularly when respondents' guards got drunk.21 Raymond recalled that sometime in April until May 2006, he was detained in a room enclosed by steel bars. He stayed all the time in that small room measuring 1 x 2 meters, and did everything there, including urinating, removing his bowels, bathing, eating and sleeping. He counted that eighteen people22 had been detained in thatbartolina, including his brother Reynaldo and himself.23 For about three and a half months, the respondents were detained in Fort Magsaysay. They were kept in a small house with two rooms and a kitchen. One room was made into the bartolina. The house was near the firing range, helipad and mango trees. At dawn, soldiers marched by their house. They were also sometimes detained in what he only knew as the "DTU."24 At the DTU, a male doctor came to examine respondents. He checked their body and eyes, took their urine samples and marked them. When asked how they were feeling, they replied that they had a hard time urinating, their stomachs were aching, and they felt other pains in their body. The next day, two ladies in white arrived. They also examined respondents and gave them medicines, including orasol, amoxicillin and mefenamic acid. They brought with them the results of respondents' urine test and advised them to drink plenty of water and take their medicine. The two ladies returned a few more times. Thereafter, medicines were sent through the "master" of the DTU, "Master" Del Rosario alias Carinyoso at Puti. Respondents were kept in the DTU for about two weeks. While there, he met a soldier named Efren who said that Gen. Palparan ordered him to monitor and take care of them.25

Secretary of National Defense vs Manalo One day, Rizal Hilario fetched respondents in a Revo vehicle. They, along with Efren and several other armed men wearing fatigue suits, went to a detachment in Pinaud, San Ildefonso, Bulacan. Respondents were detained for one or two weeks in a big two-storey house. Hilario and Efren stayed with them. While there, Raymond was beaten up by Hilario's men.26
From Pinaud, Hilario and Efren brought respondents to Sapang, San Miguel, Bulacan on board the Revo. They were detained in a big unfinished house inside the compound of "Kapitan" for about three months. When they arrived in Sapang, Gen. Palparan talked to them. They were brought out of the house to a basketball court in the center of the compound and made to sit. Gen. Palparan was already waiting, seated. He was about two arms' length away from respondents. He began by asking if respondents felt well already, to which Raymond replied in the affirmative. He asked Raymond if he knew him. Raymond lied that he did not. He then asked Raymond if he would be scared if he were made to face Gen. Palparan. Raymond responded that he would not be because he did not believe that Gen. Palparan was an evil man.27 Raymond narrated his conversation with Gen. Palparan in his affidavit, viz: Tinanong ako ni Gen. Palparan, "Ngayon na kaharap mo na ako, di ka ba natatakot sa akin?" Sumagot akong, "Siyempre po, natatakot din..." Sabi ni Gen. Palparan: "Sige, bibigyan ko kayo ng isang pagkakataon na mabuhay, basta't sundin n'yo ang lahat ng sasabihin ko... sabihin mo sa magulang mo - huwag pumunta sa mga rali, sa hearing, sa Karapatan at sa Human Right dahil niloloko lang kayo. Sabihin sa magulang at lahat sa bahay na huwag paloko doon. Tulungan kami na kausapin si Bestre na sumuko na sa gobyerno."28 Respondents agreed to do as Gen. Palparan told them as they felt they could not do otherwise. At about 3:00 in the morning, Hilario, Efren and the former's men - the same group that abducted them - brought them to their parents' house. Raymond was shown to his parents while Reynaldo stayed in the Revo because he still could not walk. In the presence of Hilario and other soldiers, Raymond relayed to his parents what Gen. Palparan told him. As they were afraid, Raymond's parents acceded. Hilario threatened Raymond's parents that if they continued to join human rights rallies, they would never see their children again. The respondents were then brought back to Sapang.29 When respondents arrived back in Sapang, Gen. Palparan was about to leave. He was talking with the four "masters" who were there: Arman, Ganata, Hilario and Cabalse.30 When Gen. Palparan saw Raymond, he called for him. He was in a big white vehicle. Raymond stood outside the vehicle as Gen. Palparan told him to gain back his strength and be healthy and to take the medicine he left for him and Reynaldo. He said the medicine was expensive at Php35.00 each, and would make them strong. He also said that they should prove that they are on the side of the military and warned that they would not be given another chance.31 During his testimony, Raymond identified Gen. Palparan by his picture.32 One of the soldiers named Arman made Raymond take the medicine left by Gen. Palparan. The medicine, named "Alive," was green and yellow. Raymond and Reynaldo were each given a box of this medicine and instructed to take one capsule a day. Arman checked if they were getting their dose of the medicine. The "Alive" made them sleep each time they took it, and they felt heavy upon waking up.33 After a few days, Hilario arrived again. He took Reynaldo and left Raymond at Sapang. Arman instructed Raymond that while in Sapang, he should introduce himself as "Oscar," a military trainee from Sariaya, Quezon, assigned in Bulacan. While there, he saw again Ganata, one of the men who abducted him from his house, and got acquainted with other military men and civilians.34 After about three months in Sapang, Raymond was brought to Camp Tecson under the 24th Infantry Battalion. He was fetched by three unidentified men in a big white vehicle. Efren went with them. Raymond was then blindfolded. After a 30-minute ride, his blindfold was removed. Chains were put on him and he was kept in the barracks.35 The next day, Raymond's chains were removed and he was ordered to clean outside the barracks. It was then he learned that he was in a detachment of the Rangers. There were many soldiers, hundreds of them were training. He was also ordered to clean inside the barracks. In one of the rooms therein, he met Sherlyn Cadapan from Laguna. She

Secretary of National Defense vs Manalo told him that she was a student of the University of the Philippines and was abducted in Hagonoy, Bulacan. She confided that she had been subjected to severe torture and raped. She was crying and longing to go home and be with her parents. During the day, her chains were removed and she was made to do the laundry.36
After a week, Reynaldo was also brought to Camp Tecson. Two days from his arrival, two other captives, Karen Empeo and Manuel Merino, arrived. Karen and Manuel were put in the room with "Allan" whose name they later came to know as Donald Caigas, called "master" or "commander" by his men in the 24th Infantry Battalion. Raymond and Reynaldo were put in the adjoining room. At times, Raymond and Reynaldo were threatened, and Reynaldo was beaten up. In the daytime, their chains were removed, but were put back on at night. They were threatened that if they escaped, their families would all be killed.37 On or about October 6, 2006, Hilario arrived in Camp Tecson. He told the detainees that they should be thankful they were still alive and should continue along their "renewed life." Before the hearing of November 6 or 8, 2006, respondents were brought to their parents to instruct them not to attend the hearing. However, their parents had already left for Manila. Respondents were brought back to Camp Tecson. They stayed in that camp from September 2006 to November 2006, and Raymond was instructed to continue using the name "Oscar" and holding himself out as a military trainee. He got acquainted with soldiers of the 24th Infantry Battalion whose names and descriptions he stated in his affidavit.38 On November 22, 2006, respondents, along with Sherlyn, Karen, and Manuel, were transferred to a camp of the 24th Infantry Battalion in Limay, Bataan. There were many huts in the camp. They stayed in that camp until May 8, 2007. Some soldiers of the battalion stayed with them. While there, battalion soldiers whom Raymond knew as "Mar" and "Billy" beat him up and hit him in the stomach with their guns. Sherlyn and Karen also suffered enormous torture in the camp. They were all made to clean, cook, and help in raising livestock.39 Raymond recalled that when "Operation Lubog" was launched, Caigas and some other soldiers brought him and Manuel with them to take and kill all sympathizers of the NPA. They were brought to Barangay Bayan-bayanan, Bataan where he witnessed the killing of an old man doing kaingin. The soldiers said he was killed because he had a son who was a member of the NPA and he coddled NPA members in his house.40 Another time, in another "Operation Lubog," Raymond was brought to Barangay Orion in a house where NPA men stayed. When they arrived, only the old man of the house who was sick was there. They spared him and killed only his son right before Raymond's eyes.41 From Limay, Raymond, Reynaldo, Sherlyn, Karen, and Manuel were transferred to Zambales, in a safehouse near the sea. Caigas and some of his men stayed with them. A retired army soldier was in charge of the house. Like in Limay, the five detainees were made to do errands and chores. They stayed in Zambales from May 8 or 9, 2007 until June 2007.42 In June 2007, Caigas brought the five back to the camp in Limay. Raymond, Reynaldo, and Manuel were tasked to bring food to detainees brought to the camp. Raymond narrated what he witnessed and experienced in the camp,viz: Isang gabi, sinabihan kami ni Donald (Caigas) na matulog na kami. Nakita ko si Donald na inaayos ang kanyang baril, at nilagyan ng silenser. Sabi ni Donald na kung mayroon man kaming makita o marinig, walang nangyari. Kinaumagahan, nakita naming ang bangkay ng isa sa mga bihag na dinala sa kampo. Mayroong binuhos sa kanyang katawan at ito'y sinunog. Masansang ang amoy. Makaraan ang isang lingo, dalawang bangkay and ibinaba ng mga unipormadong sundalo mula sa 6 x 6 na trak at dinala sa loob ng kampo. May naiwang mga bakas ng dugo habang hinihila nila ang mga bangkay. Naamoy ko iyon nang nililinis ang bakas. Makalipas ang isa o dalawang lingo, may dinukot sila na dalawang Ita. Itinali sila sa labas ng kubo, piniringan, ikinadena at labis na binugbog. Nakita kong nakatakas ang isa sa kanila at binaril siya ng sundalo ngunit hindi siya tinamaan. Iyong gabi nakita kong pinatay nila iyong isang Ita malapit sa Post 3; sinilaban ang bangkay at ibinaon ito.

Secretary of National Defense vs Manalo Pagkalipas ng halos 1 buwan, 2 pang bangkay ang dinala sa kampo. Ibinaba ang mga bangkay mula sa pick up trak, dinala ang mga bangkay sa labas ng bakod. Kinaumagahan nakita kong mayroong sinilaban, at napakamasangsang ang amoy.
May nakilala rin akong 1 retiradong koronel at 1 kasama niya. Pinakain ko sila. Sabi nila sa akin na dinukot sila sa Bataan. Iyong gabi, inilabas sila at hindi ko na sila nakita. xxx xxx xxx Ikinadena kami ng 3 araw. Sa ikatlong araw, nilabas ni Lat si Manuel dahil kakausapin daw siya ni Gen. Palparan. Nakapiring si Manuel, wala siyang suot pang-itaas, pinosasan. Nilakasan ng mga sundalo ang tunog na galing sa istiryo ng sasakyan. Di nagtagal, narinig ko ang hiyaw o ungol ni Manuel. Sumilip ako sa isang haligi ng kamalig at nakita kong sinisilaban si Manuel. Kinaumagahan, naka-kadena pa kami. Tinanggal ang mga kadena mga 3 o 4 na araw pagkalipas. Sinabi sa amin na kaya kami nakakadena ay dahil pinagdedesisyunan pa ng mga sundalo kung papatayin kami o hindi. Tinanggal ang aming kadena. Kinausap kami ni Donald. Tinanong kami kung ano ang sabi ni Manuel sa amin. Sabi ni Donald huwag na raw naming hanapin ang dalawang babae at si Manuel, dahil magkakasama na yung tatlo. Sabi pa ni Donald na kami ni Reynaldo ay magbagong buhay at ituloy namin ni Reynaldo ang trabaho. Sa gabi, hindi na kami kinakadena.43 On or about June 13, 2007, Raymond and Reynaldo were brought to Pangasinan, ostensibly to raise poultry for Donald (Caigas). Caigas told respondents to also farm his land, in exchange for which, he would take care of the food of their family. They were also told that they could farm a small plot adjoining his land and sell their produce. They were no longer put in chains and were instructed to use the names Rommel (for Raymond) and Rod (for Reynaldo) and represent themselves as cousins from Rizal, Laguna.44 Respondents started to plan their escape. They could see the highway from where they stayed. They helped farm adjoining lands for which they were paid Php200.00 or Php400.00 and they saved their earnings. When they had saved Php1,000.00 each, Raymond asked a neighbor how he could get a cellular phone as he wanted to exchange text messages with a girl who lived nearby. A phone was pawned to him, but he kept it first and did not use it. They earned some more until they had saved Php1,400.00 between them. There were four houses in the compound. Raymond and Reynaldo were housed in one of them while their guards lived in the other three. Caigas entrusted respondents to Nonong, the head of the guards. Respondents' house did not have electricity. They used a lamp. There was no television, but they had a radio. In the evening of August 13, 2007, Nonong and his cohorts had a drinking session. At about 1:00 a.m., Raymond turned up the volume of the radio. When none of the guards awoke and took notice, Raymond and Reynaldo proceeded towards the highway, leaving behind their sleeping guards and barking dogs. They boarded a bus bound for Manila and were thus freed from captivity.45 Reynaldo also executed an affidavit affirming the contents of Raymond's affidavit insofar as they related to matters they witnessed together. Reynaldo added that when they were taken from their house on February 14, 2006, he saw the faces of his abductors before he was blindfolded with his shirt. He also named the soldiers he got acquainted with in the 18 months he was detained. When Raymond attempted to escape from Fort Magsaysay, Reynaldo was severely beaten up and told that they were indeed members of the NPA because Raymond escaped. With a .45 caliber pistol, Reynaldo was hit on the back and punched in the face until he could no longer bear the pain. At one point during their detention, when Raymond and Reynaldo were in Sapang, Reynaldo was separated from Raymond and brought to Pinaud by Rizal Hilario. He was kept in the house of Kapitan, a friend of Hilario, in a mountainous area. He was instructed to use the name "Rodel" and to represent himself as a military trainee from Meycauayan, Bulacan. Sometimes, Hilario brought along Reynaldo in his trips. One time, he was brought to a market in San Jose, del Monte, Bulacan and made to wait in the vehicle while Hilario was buying. He was also brought to Tondo, Manila where Hilario delivered boxes of "Alive" in different houses. In these trips, Hilario drove a black and red vehicle. Reynaldo was blindfolded while still in Bulacan, but allowed to remove the blindfold once outside the province. In one of

Secretary of National Defense vs Manalo their trips, they passed by Fort Magsaysay and Camp Tecson where Reynaldo saw the sign board, "Welcome to Camp Tecson."46
Dr. Benito Molino, M.D., corroborated the accounts of respondents Raymond and Reynaldo Manalo. Dr. Molino specialized in forensic medicine and was connected with the Medical Action Group, an organization handling cases of human rights violations, particularly cases where torture was involved. He was requested by an NGO to conduct medical examinations on the respondents after their escape. He first asked them about their ordeal, then proceeded with the physical examination. His findings showed that the scars borne by respondents were consistent with their account of physical injuries inflicted upon them. The examination was conducted on August 15, 2007, two days after respondents' escape, and the results thereof were reduced into writing. Dr. Molino took photographs of the scars. He testified that he followed the Istanbul Protocol in conducting the examination.47 Petitioners dispute respondents' account of their alleged abduction and torture. In compliance with the October 25, 2007 Resolution of the Court, they filed a Return of the Writ of Amparo admitting the abduction but denying any involvement therein, viz: 13. Petitioners Raymond and Reynaldo Manalo were not at any time arrested, forcibly abducted, detained, held incommunicado, disappeared or under the custody by the military. This is a settled issue laid to rest in the habeas corpus case filed in their behalf by petitioners' parents before the Court of Appeals in C.A.-G.R. SP No. 94431 against M/Sgt. Rizal Hilario aka Rollie Castillo, as head of the 24th Infantry Battalion; Maj. Gen. Jovito Palparan, as Commander of the 7th Infantry Division in Luzon; Lt. Gen. Hermogenes Esperon, in his capacity as the Commanding General of the Philippine Army, and members of the Citizens Armed Forces Geographical Unit (CAFGU), namely: Michael dela Cruz, Puti dela Cruz, Madning dela Cruz, Pula dela Cruz, Randy Mendoza and Rudy Mendoza. The respondents therein submitted a return of the writ... On July 4, 2006, the Court of Appeals dropped as party respondents Lt. Gen. Hermogenes C. Esperon, Jr., then Commanding General of the Philippine Army, and on September 19, 2006, Maj. (sic) Jovito S. Palparan, then Commanding General, 7th Infantry Division, Philippine Army, stationed at Fort Magsaysay, Palayan City, Nueva Ecija, upon a finding that no evidence was introduced to establish their personal involvement in the taking of the Manalo brothers. In a Decision dated June 27, 2007..., it exonerated M/Sgt. Rizal Hilario aka Rollie Castillo for lack of evidence establishing his involvement in any capacity in the disappearance of the Manalo brothers, although it held that the remaining respondents were illegally detaining the Manalo brothers and ordered them to release the latter.48 Attached to the Return of the Writ was the affidavit of therein respondent (herein petitioner) Secretary of National Defense, which attested that he assumed office only on August 8, 2007 and was thus unaware of the Manalo brothers' alleged abduction. He also claimed that: 7. The Secretary of National Defense does not engage in actual military directional operations, neither does he undertake command directions of the AFP units in the field, nor in any way micromanage the AFP operations. The principal responsibility of the Secretary of National Defense is focused in providing strategic policy direction to the Department (bureaus and agencies) including the Armed Forces of the Philippines; 8. In connection with the Writ of Amparo issued by the Honorable Supreme Court in this case, I have directed the Chief of Staff, AFP to institute immediate action in compliance with Section 9(d) of the AmparoRule and to submit report of such compliance... Likewise, in a Memorandum Directive also dated October 31, 2007, I have issued a policy directive addressed to the Chief of Staff, AFP that the AFP should adopt the following rules of action in the event the Writ of Amparo is issued by a competent court against any members of the AFP: (1) to verify the identity of the aggrieved party; (2) to recover and preserve evidence related to the death or disappearance of the person identified in the petition which may aid in the prosecution of the person or persons responsible; (3) to identify witnesses and obtain statements from them concerning the death or disappearance; (4) to determine the cause, manner, location and time of death or disappearance as well as any pattern or practice that may have brought about the death or disappearance;

Secretary of National Defense vs Manalo (5) to identify and apprehend the person or persons involved in the death or disappearance; and
(6) to bring the suspected offenders before a competent court.49 Therein respondent AFP Chief of Staff also submitted his own affidavit, attached to the Return of the Writ, attesting that he received the above directive of therein respondent Secretary of National Defense and that acting on this directive, he did the following: 3.1. As currently designated Chief of Staff, Armed Forces of the Philippines (AFP), I have caused to be issued directive to the units of the AFP for the purpose of establishing the circumstances of the alleged disappearance and the recent reappearance of the petitioners. 3.2. I have caused the immediate investigation and submission of the result thereof to Higher headquarters and/or direct the immediate conduct of the investigation on the matter by the concerned unit/s, dispatching Radio Message on November 05, 2007, addressed to the Commanding General, Philippine Army (Info: COMNOLCOM, CG, 71D PA and CO 24 IB PA). A Copy of the Radio Message is attached as ANNEX "3" of this Affidavit. 3.3. We undertake to provide result of the investigations conducted or to be conducted by the concerned unit relative to the circumstances of the alleged disappearance of the persons in whose favor the Writ ofAmparo has been sought for as soon as the same has been furnished Higher headquarters. 3.4. A parallel investigation has been directed to the same units relative to another Petition for the Writ ofAmparo (G.R. No. 179994) filed at the instance of relatives of a certain Cadapan and Empeo pending before the Supreme Court. 3.5. On the part of the Armed Forces, this respondent will exert earnest efforts to establish the surrounding circumstances of the disappearances of the petitioners and to bring those responsible, including any military personnel if shown to have participated or had complicity in the commission of the complained acts, to the bar of justice, when warranted by the findings and the competent evidence that may be gathered in the process.50 Also attached to the Return of the Writ was the affidavit of Lt. Col. Felipe Anontado, INF (GSC) PA, earlier filed in G.R. No. 179994, another Amparo case in this Court, involving Cadapan, Empeo and Merino, which averred among others, viz: 10) Upon reading the allegations in the Petition implicating the 24th Infantry Batallion detachment as detention area, I immediately went to the 24th IB detachment in Limay, Bataan and found no untoward incidents in the area nor any detainees by the name of Sherlyn Cadapan, Karen Empeo and Manuel Merino being held captive; 11) There was neither any reports of any death of Manuel Merino in the 24th IB in Limay, Bataan; 12) After going to the 24th IB in Limay, Bataan, we made further inquiries with the Philippine National Police, Limay, Bataan regarding the alleged detentions or deaths and were informed that none was reported to their good office; 13) I also directed Company Commander 1st Lt. Romeo Publico to inquire into the alleged beachhouse in Iba, Zambales also alleged to be a detention place where Sherlyn Cadapan, Karen Empeo and Manuel Merino were detained. As per the inquiry, however, no such beachhouse was used as a detention place found to have been used by armed men to detain Cadapan, Empeo and Merino.51 It was explained in the Return of the Writ that for lack of sufficient time, the affidavits of Maj. Gen Jovito S. Palparan (Ret.), M/Sgt. Rizal Hilario aka Rollie Castillo, and other persons implicated by therein petitioners could not be secured in time for the submission of the Return and would be subsequently submitted.52

Secretary of National Defense vs Manalo Herein petitioners presented a lone witness in the summary hearings, Lt. Col. Ruben U. Jimenez, Provost Marshall, 7th Infantry Division, Philippine Army, based in Fort Magsaysay, Palayan City, Nueva Ecija. The territorial jurisdiction of this Division covers Nueva Ecija, Aurora, Bataan, Bulacan, Pampanga, Tarlac and a portion of Pangasinan.53 The 24th Infantry Battalion is part of the 7th Infantry Division.54
On May 26, 2006, Lt. Col. Jimenez was directed by the Commanding General of the 7th Infantry Division, Maj. Gen. Jovito Palaran,55 through his Assistant Chief of Staff,56 to investigate the alleged abduction of the respondents by CAFGU auxiliaries under his unit, namely: CAA Michael de la Cruz; CAA Roman de la Cruz, aka Puti; CAA Maximo de la Cruz, aka Pula; CAA Randy Mendoza; ex-CAA Marcelo de la Cruz aka Madning; and a civilian named Rudy Mendoza. He was directed to determine: (1) the veracity of the abduction of Raymond and Reynaldo Manalo by the alleged elements of the CAFGU auxiliaries; and (2) the administrative liability of said auxiliaries, if any.57Jimenez testified that this particular investigation was initiated not by a complaint as was the usual procedure, but because the Commanding General saw news about the abduction of the Manalo brothers on the television, and he was concerned about what was happening within his territorial jurisdiction.58 Jimenez summoned all six implicated persons for the purpose of having them execute sworn statements and conducting an investigation on May 29, 2006.59 The investigation started at 8:00 in the morning and finished at 10:00 in the evening.60 The investigating officer, Technical Sgt. Eduardo Lingad, took the individual sworn statements of all six persons on that day. There were no other sworn statements taken, not even of the Manalo family, nor were there other witnesses summoned and investigated61 as according to Jimenez, the directive to him was only to investigate the six persons.62 Jimenez was beside Lingad when the latter took the statements.63 The six persons were not known to Jimenez as it was in fact his first time to meet them.64 During the entire time that he was beside Lingad, a subordinate of his in the Office of the Provost Marshall, Jimenez did not propound a single question to the six persons.65 Jimenez testified that all six statements were taken on May 29, 2006, but Marcelo Mendoza and Rudy Mendoza had to come back the next day to sign their statements as the printing of their statements was interrupted by a power failure. Jimenez testified that the two signed on May 30, 2006, but the jurats of their statements indicated that they were signed on May 29, 2006.66 When the Sworn Statements were turned over to Jimenez, he personally wrote his investigation report. He began writing it in the afternoon of May 30, 2006 and finished it on June 1, 2006.67 He then gave his report to the Office of the Chief of Personnel.68 As petitioners largely rely on Jimenez's Investigation Report dated June 1, 2006 for their evidence, the report is herein substantially quoted: III. BACKGROUND OF THE CASE 4. This pertains to the abduction of RAYMOND MANALO and REYNALDO MANALO who were forcibly taken from their respective homes in Brgy. Buhol na Mangga, San Ildefonso, Bulacan on 14 February 2006 by unidentified armed men and thereafter were forcibly disappeared. After the said incident, relatives of the victims filed a case for Abduction in the civil court against the herein suspects: Michael dela Cruz, Madning dela Cruz, Puti Dela Cruz, Pula Dela Cruz, Randy Mendoza and Rudy Mendoza as alleged members of the Citizen Armed Forces Geographical Unit (CAFGU). a) Sworn statement of CAA Maximo F. dela Cruz, aka Pula dated 29 May 2006 in (Exhibit "B") states that he was at Sitio Mozon, Brgy. Bohol na Mangga, San Ildefonso, Bulacan doing the concrete building of a church located nearby his residence, together with some neighbor thereat. He claims that on 15 February 2006, he was being informed by Brgy. Kagawad Pablo Umayan about the abduction of the brothers Raymond and Reynaldo Manalo. As to the allegation that he was one of the suspects, he claims that they only implicated him because he was a CAFGU and that they claimed that those who abducted the Manalo brothers are members of the Military and CAFGU. Subject vehemently denied any participation or involvement on the abduction of said victims. b) Sworn statement of CAA Roman dela Cruz y Faustino Aka Puti dtd 29 May 2006 in (Exhibit "C") states that he is a resident of Sitio Muzon, Brgy. Buhol na Mangga, San Ildefonso, Bulacan and a CAA member based at

Secretary of National Defense vs Manalo Biak na Bato Detachment, San Miguel, Bulacan. He claims that Raymond and Reynaldo Manalo being his neighbors are active members/sympathizers of the CPP/NPA and he also knows their elder Rolando Manalo @ KA BESTRE of being an NPA Leader operating in their province. That at the time of the alleged abduction of the two (2) brothers and for accusing him to be one of the suspects, he claims that on February 14, 2006, he was one of those working at the concrete chapel being constructed nearby his residence. He claims further that he just came only to know about the incident on other day (15 Feb 06) when he was being informed by Kagawad Pablo Kunanan. That subject CAA vehemently denied any participation about the incident and claimed that they only implicated him because he is a member of the CAFGU.
c) Sworn Statement of CAA Randy Mendoza y Lingas dated 29 May 2006 in (Exhibit "O") states that he is a resident of Brgy. Buhol na Mangga, San Ildefonso, Bulacan and a member of CAFGU based at Biak na Bato Detachment. That being a neighbor, he was very much aware about the background of the two (2) brothers Raymond and Reynaldo as active supporters of the CPP NPA in their Brgy. and he also knew their elder brother "KUMANDER BESTRE" TN: Rolando Manalo. Being one of the accused, he claims that on 14 February 2006, he was at Brgy. Magmarate, San Miguel, Bulacan in the house of his aunt and he learned only about the incident when he arrived home in their place. He claims further that the only reason why they implicated him was due to the fact that his mother has filed a criminal charge against their brother Rolando Manalo @ KA BESTRE who is an NPA Commander who killed his father and for that reason they implicated him in support of their brother. Subject CAA vehemently denied any involvement on the abduction of said Manalo brothers. d) Sworn Statement of Rudy Mendoza y Lingasa dated May 29, 2006 in (Exhibit "E") states that he is a resident of Brgy. Marungko, Angat, Bulacan. He claims that Raymond and Reynaldo Manalo are familiar to him being his barriomate when he was still unmarried and he knew them since childhood. Being one of the accused, he claims that on 14 February 2006, he was at his residence in Brgy. Marungko, Angat, Bulacan. He claims that he was being informed only about the incident lately and he was not aware of any reason why the two (2) brothers were being abducted by alleged members of the military and CAFGU. The only reason he knows why they implicated him was because there are those people who are angry with their family particularly victims of summary execution (killing) done by their brother @ KA Bestre Rolando Manalo who is an NPA leader. He claims further that it was their brother @ KA BESTRE who killed his father and he was living witness to that incident. Subject civilian vehemently denied any involvement on the abduction of the Manalo brothers. e) Sworn statement of Ex-CAA Marcelo dala Cruz dated 29 May 2006 in (Exhibit "F") states that he is a resident of Sitio Muzon, Brgy. Buhol na Mangga, San Ildefonso, Bulacan, a farmer and a former CAA based at Biak na Bato, San Miguel, Bulacan. He claims that Raymond and Reynaldo Manalo are familiar to him being their barrio mate. He claims further that they are active supporters of CPP/NPA and that their brother Rolando Manalo @ KA BESTRE is an NPA leader. Being one of the accused, he claims that on 14 February 2006, he was in his residence at Sitio Muzon, Brgy. Buhol na Mangga, San Ildefonso, Bulacan. That he vehemently denied any participation of the alleged abduction of the two (2) brothers and learned only about the incident when rumors reached him by his barrio mates. He claims that his implication is merely fabricated because of his relationship to Roman and Maximo who are his brothers. f) Sworn statement of Michael dela Cruz y Faustino dated 29 May 2006 in (Exhibit "G") states that he is a resident of Sitio Muzon, Brgy. Buhol na Mangga, San Ildefonso, Bulacan, the Chief of Brgy. Tanod and a CAFGU member based at Biak na Bato Detachment, San Miguel, Bulacan. He claims that he knew very well the brothers Raymond and Reynaldo Manalo in their barangay for having been the Tanod Chief for twenty (20) years. He alleged further that they are active supporters or sympathizers of the CPP/NPA and whose elder brother Rolando Manalo @ KA BESTRE is an NPA leader operating within the area. Being one of the accused, he claims that on 14 Feb 2006 he was helping in the construction of their concrete chapel in their place and he learned only about the incident which is the abduction of Raymond and Reynaldo Manalo when one of the Brgy. Kagawad in the person of Pablo Cunanan informed him about the matter. He claims further that he is truly innocent of the allegation against him as being one of the abductors and he considers everything fabricated in order to destroy his name that remains loyal to his service to the government as a CAA member. IV. DISCUSSION 5. Based on the foregoing statements of respondents in this particular case, the proof of linking them to the alleged abduction and disappearance of Raymond and Reynaldo Manalo that transpired on 14 February 2006

Secretary of National Defense vs Manalo at Sitio Muzon, Brgy. Buhol na Mangga, San Ildefonso, Bulacan, is unsubstantiated. Their alleged involvement theretofore to that incident is considered doubtful, hence, no basis to indict them as charged in this investigation.
Though there are previous grudges between each families (sic) in the past to quote: the killing of the father of Randy and Rudy Mendoza by @ KA BESTRE TN: Rolando Manalo, this will not suffice to establish a fact that they were the ones who did the abduction as a form of revenge. As it was also stated in the testimony of other accused claiming that the Manalos are active sympathizers/supporters of the CPP/NPA, this would not also mean, however, that in the first place, they were in connivance with the abductors. Being their neighbors and as members of CAFGU's, they ought to be vigilant in protecting their village from any intervention by the leftist group, hence inside their village, they were fully aware of the activities of Raymond and Reynaldo Manalo in so far as their connection with the CPP/NPA is concerned. V. CONCLUSION 6. Premises considered surrounding this case shows that the alleged charges of abduction committed by the above named respondents has not been established in this investigation. Hence, it lacks merit to indict them for any administrative punishment and/or criminal liability. It is therefore concluded that they are innocent of the charge. VI. RECOMMENDATIONS 7. That CAAs Michael F. dela Cruz, Maximo F. Dela Cruz, Roman dela Cruz, Randy Mendoza, and two (2) civilians Maximo F. Dela Cruz and Rudy L. Mendoza be exonerated from the case. 8. Upon approval, this case can be dropped and closed.69 In this appeal under Rule 45, petitioners question the appellate court's assessment of the foregoing evidence and assail the December 26, 2007 Decision on the following grounds, viz: I. THE COURT OF APPEALS SERIOUSLY AND GRIEVOUSLY ERRED IN BELIEVING AND GIVING FULL FAITH AND CREDIT TO THE INCREDIBLE, UNCORROBORATED, CONTRADICTED, AND OBVIOUSLY SCRIPTED, REHEARSED AND SELF-SERVING AFFIDAVIT/TESTIMONY OF HEREIN RESPONDENT RAYMOND MANALO. II. THE COURT OF APPEALS SERIOUSLY AND GRIEVOUSLY ERRED IN REQUIRING RESPONDENTS (HEREIN PETITIONERS) TO: (A) FURNISH TO THE MANALO BROTHER(S) AND TO THE COURT OF APPEALS ALL OFFICIAL AND UNOFFICIAL REPORTS OF THE INVESTIGATION UNDERTAKEN IN CONNECTION WITH THEIR CASE, EXCEPT THOSE ALREADY IN FILE WITH THE COURT; (B) CONFIRM IN WRITING THE PRESENT PLACES OF OFFICIAL ASSIGNMENT OF M/SGT. HILARIO aka ROLLIE CASTILLO AND DONALD CAIGAS; AND (C) CAUSE TO BE PRODUCED TO THE COURT OF APPEALS ALL MEDICAL REPORTS, RECORDS AND CHARTS, AND REPORTS OF ANY TREATMENT GIVEN OR RECOMMENDED AND MEDICINES PRESCRIBED, IF ANY, TO THE MANALO BROTHERS, TO INCLUDE A LIST OF MEDICAL PERSONNEL (MILITARY AND CIVILIAN) WHO ATTENDED TO THEM FROM FEBRUARY 14, 2006 UNTIL AUGUST 12, 2007.70 The case at bar is the first decision on the application of the Rule on the Writ of Amparo (Amparo Rule). Let us hearken to its beginning. The adoption of the Amparo Rule surfaced as a recurring proposition in the recommendations that resulted from a twoday National Consultative Summit on Extrajudicial Killings and Enforced Disappearances sponsored by the Court on

Secretary of National Defense vs Manalo July 16-17, 2007. The Summit was "envisioned to provide a broad and fact-based perspective on the issue of extrajudicial killings and enforced disappearances,"71 hence "representatives from all sides of the political and social spectrum, as well as all the stakeholders in the justice system"72 participated in mapping out ways to resolve the crisis.
On October 24, 2007, the Court promulgated the Amparo Rule "in light of the prevalence of extralegal killing and enforced disappearances."73 It was an exercise for the first time of the Court's expanded power to promulgate rules to protect our people's constitutional rights, which made its maiden appearance in the 1987 Constitution in response to the Filipino experience of the martial law regime.74 As the Amparo Rule was intended to address the intractable problem of "extralegal killings" and "enforced disappearances," its coverage, in its present form, is confined to these two instances or to threats thereof. "Extralegal killings" are "killings committed without due process of law, i.e., without legal safeguards or judicial proceedings."75 On the other hand, "enforced disappearances" are "attended by the following characteristics: an arrest, detention or abduction of a person by a government official or organized groups or private individuals acting with the direct or indirect acquiescence of the government; the refusal of the State to disclose the fate or whereabouts of the person concerned or a refusal to acknowledge the deprivation of liberty which places such persons outside the protection of law."76 The writ of Amparo originated in Mexico. "Amparo" literally means "protection" in Spanish.77 In 1837, de Tocqueville's Democracy in America became available in Mexico and stirred great interest. Its description of the practice of judicial review in the U.S. appealed to many Mexican jurists.78 One of them, Manuel Crescencio Rejn, drafted a constitutional provision for his native state, Yucatan,79 which granted judges the power to protect all persons in the enjoyment of their constitutional and legal rights. This idea was incorporated into the national constitution in 1847, viz: The federal courts shall protect any inhabitant of the Republic in the exercise and preservation of those rights granted to him by this Constitution and by laws enacted pursuant hereto, against attacks by the Legislative and Executive powers of the federal or state governments, limiting themselves to granting protection in the specific case in litigation, making no general declaration concerning the statute or regulation that motivated the violation.80 Since then, the protection has been an important part of Mexican constitutionalism.81 If, after hearing, the judge determines that a constitutional right of the petitioner is being violated, he orders the official, or the official's superiors, to cease the violation and to take the necessary measures to restore the petitioner to the full enjoyment of the right in question. Amparo thus combines the principles of judicial review derived from the U.S. with the limitations on judicial power characteristic of the civil law tradition which prevails in Mexico. It enables courts to enforce the constitution by protecting individual rights in particular cases, but prevents them from using this power to make law for the entire nation.82 The writ of Amparo then spread throughout the Western Hemisphere, gradually evolving into various forms, in response to the particular needs of each country.83 It became, in the words of a justice of the Mexican Federal Supreme Court, one piece of Mexico's self-attributed "task of conveying to the world's legal heritage that institution which, as a shield of human dignity, her own painful history conceived."84 What began as a protection against acts or omissions of public authorities in violation of constitutional rights later evolved for several purposes: (1) Amparo libertad for the protection of personal freedom, equivalent to the habeas corpus writ; (2) Amparo contra leyes for the judicial review of the constitutionality of statutes; (3) Amparo casacion for the judicial review of the constitutionality and legality of a judicial decision; (4) Amparo administrativo for the judicial review of administrative actions; and (5) Amparo agrario for the protection of peasants' rights derived from the agrarian reform process.85 In Latin American countries, except Cuba, the writ of Amparo has been constitutionally adopted to protect against human rights abuses especially committed in countries under military juntas. In general, these countries adopted an allencompassing writ to protect the whole gamut of constitutional rights, including socio-economic rights.86Other countries like Colombia, Chile, Germany and Spain, however, have chosen to limit the protection of the writ of Amparo only to some constitutional guarantees or fundamental rights.87 In the Philippines, while the 1987 Constitution does not explicitly provide for the writ of Amparo, several of the above Amparo protections are guaranteed by our charter. The second paragraph of Article VIII, Section 1 of the 1987 Constitution, the Grave Abuse Clause, provides for the judicial power "to determine whether or not there has been a

Secretary of National Defense vs Manalo grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government." The Clause accords a similar general protection to human rights extended by the Amparo contra leyes, Amparo casacion, and Amparo administrativo. Amparo libertad is comparable to the remedy of habeas corpus found in several provisions of the 1987 Constitution.88 The Clause is an offspring of the U.S. common law tradition of judicial review, which finds its roots in the 1803 case of Marbury v. Madison.89
While constitutional rights can be protected under the Grave Abuse Clause through remedies of injunction or prohibition under Rule 65 of the Rules of Court and a petition for habeas corpus under Rule 102,90 these remedies may not be adequate to address the pestering problem of extralegal killings and enforced disappearances. However, with the swiftness required to resolve a petition for a writ of Amparo through summary proceedings and the availability of appropriate interim and permanent reliefs under the Amparo Rule, this hybrid writ of the common law and civil law traditions - borne out of the Latin American and Philippine experience of human rights abuses - offers a better remedy to extralegal killings and enforced disappearances and threats thereof. The remedy provides rapid judicial relief as it partakes of a summary proceeding that requires only substantial evidence to make the appropriate reliefs available to the petitioner; it is not an action to determine criminal guilt requiring proof beyond reasonable doubt, or liability for damages requiring preponderance of evidence, or administrative responsibility requiring substantial evidence that will require full and exhaustive proceedings.91 The writ of Amparo serves both preventive and curative roles in addressing the problem of extralegal killings and enforced disappearances. It is preventive in that it breaks the expectation of impunity in the commission of these offenses; it is curative in that it facilitates the subsequent punishment of perpetrators as it will inevitably yield leads to subsequent investigation and action. In the long run, the goal of both the preventive and curative roles is to deter the further commission of extralegal killings and enforced disappearances. In the case at bar, respondents initially filed an action for "Prohibition, Injunction, and Temporary Restraining Order"92 to stop petitioners and/or their officers and agents from depriving the respondents of their right to liberty and other basic rights on August 23, 2007,93 prior to the promulgation of the Amparo Rule. They also sought ancillary remedies including Protective Custody Orders, Appointment of Commissioner, Inspection and Access Orders and other legal and equitable remedies under Article VIII, Section 5(5) of the 1987 Constitution and Rule 135, Section 6 of the Rules of Court. When the Amparo Rule came into effect on October 24, 2007, they moved to have their petition treated as an Amparo petition as it would be more effective and suitable to the circumstances of the Manalo brothers' enforced disappearance. The Court granted their motion. With this backdrop, we now come to the arguments of the petitioner. Petitioners' first argument in disputing the Decision of the Court of Appeals states, viz: The Court of Appeals seriously and grievously erred in believing and giving full faith and credit to the incredible uncorroborated, contradicted, and obviously scripted, rehearsed and self-serving affidavit/testimony of herein respondent Raymond Manalo.94 In delving into the veracity of the evidence, we need to mine and refine the ore of petitioners' cause of action, to determine whether the evidence presented is metal-strong to satisfy the degree of proof required. Section 1 of the Rule on the Writ of Amparo provides for the following causes of action, viz: Section 1. Petition. - The petition for a writ of Amparo is a remedy available to any person whose right to life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity. The writ shall cover extralegal killings and enforced disappearances or threats thereof. (emphasis supplied) Sections 17 and 18, on the other hand, provide for the degree of proof required, viz: Sec. 17. Burden of Proof and Standard of Diligence Required. - The parties shall establish their claims bysubstantial evidence.

Secretary of National Defense vs Manalo xxx xxx xxx

Sec. 18. Judgment. - ... If the allegations in the petition are proven by substantial evidence, the court shall grant the privilege of the writ and such reliefs as may be proper and appropriate; otherwise, the privilege shall be denied. (emphases supplied) Substantial evidence has been defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.95 After careful perusal of the evidence presented, we affirm the findings of the Court of Appeals that respondents were abducted from their houses in Sito Muzon, Brgy. Buhol na Mangga, San Ildefonso, Bulacan on February 14, 2006 and were continuously detained until they escaped on August 13, 2007. The abduction, detention, torture, and escape of the respondents were narrated by respondent Raymond Manalo in a clear and convincing manner. His account is dotted with countless candid details of respondents' harrowing experience and tenacious will to escape, captured through his different senses and etched in his memory. A few examples are the following: "Sumilip ako sa isang haligi ng kamalig at nakita kong sinisilaban si Manuel."96 "(N)ilakasan ng mga sundalo ang tunog na galing sa istiryo ng sasakyan. Di nagtagal, narinig ko ang hiyaw o ungol ni Manuel."97 "May naiwang mga bakas ng dugo habang hinihila nila ang mga bangkay. Naamoy ko iyon nang nililinis ang bakas."98 "Tumigil ako sa may palaisdaan kung saan ginamit ko ang bato para tanggalin ang mga kadena."99 "Tinanong ko sa isang kapit-bahay kung paano ako makakakuha ng cell phone; sabi ko gusto kong i-text ang isang babae na nakatira sa malapit na lugar."100 We affirm the factual findings of the appellate court, largely based on respondent Raymond Manalo's affidavit and testimony, viz: ...the abduction was perpetrated by armed men who were sufficiently identified by the petitioners (herein respondents) to be military personnel and CAFGU auxiliaries. Raymond recalled that the six armed men who barged into his house through the rear door were military men based on their attire of fatigue pants and army boots, and the CAFGU auxiliaries, namely: Michael de la Cruz, Madning de la Cruz, Puti de la Cruz and Pula de la Cruz, all members of the CAFGU and residents of Muzon, San Ildefonso, Bulacan, and the brothers Randy Mendoza and Rudy Mendoza, also CAFGU members, served as lookouts during the abduction. Raymond was sure that three of the six military men were Ganata, who headed the abducting team, Hilario, who drove the van, and George. Subsequent incidents of their long captivity, as narrated by the petitioners, validated their assertion of the participation of the elements of the 7th Infantry Division, Philippine Army, and their CAFGU auxiliaries. We are convinced, too, that the reason for the abduction was the suspicion that the petitioners were either members or sympathizers of the NPA, considering that the abductors were looking for Ka Bestre, who turned out to be Rolando, the brother of petitioners. The efforts exerted by the Military Command to look into the abduction were, at best, merely superficial. The investigation of the Provost Marshall of the 7th Infantry Division focused on the one-sided version of the CAFGU auxiliaries involved. This one-sidedness might be due to the fact that the Provost Marshall could delve only into the participation of military personnel, but even then the Provost Marshall should have refrained from outrightly exculpating the CAFGU auxiliaries he perfunctorily investigated... Gen. Palparan's participation in the abduction was also established. At the very least, he was aware of the petitioners' captivity at the hands of men in uniform assigned to his command. In fact, he or any other officer tendered no controversion to the firm claim of Raymond that he (Gen. Palparan) met them in person in a safehouse in Bulacan and told them what he wanted them and their parents to do or not to be doing. Gen. Palparan's direct and personal role in the abduction might not have been shown but his knowledge of the dire situation of the petitioners during their long captivity at the hands of military personnel under his command bespoke of his indubitable command policy that unavoidably encouraged and not merely tolerated the abduction of civilians without due process of law and without probable cause. In the habeas proceedings, the Court, through the Former Special Sixth Division (Justices Buzon, chairman; Santiago-Lagman, Sr., member; and Romilla-Lontok, Jr., member/ponente.) found no clear and convincing

Secretary of National Defense vs Manalo evidence to establish that M/Sgt. Rizal Hilario had anything to do with the abduction or the detention. Hilario's involvement could not, indeed, be then established after Evangeline Francisco, who allegedly saw Hilario drive the van in which the petitioners were boarded and ferried following the abduction, did not testify. (See the decision of the habeas proceedings at rollo, p. 52)
However, in this case, Raymond attested that Hilario drove the white L-300 van in which the petitioners were brought away from their houses on February 14, 2006. Raymond also attested that Hilario participated in subsequent incidents during the captivity of the petitioners, one of which was when Hilario fetched them from Fort Magsaysay on board a Revo and conveyed them to a detachment in Pinaud, San Ildefonso, Bulacan where they were detained for at least a week in a house of strong materials (Exhibit D, rollo, p. 205) and then Hilario (along with Efren) brought them to Sapang, San Miguel, Bulacan on board the Revo, to an unfinished house inside the compound of Kapitan where they were kept for more or less three months. (Exhibit D, rollo, p. 205) It was there where the petitioners came face to face with Gen. Palparan. Hilario and Efren also brought the petitioners one early morning to the house of the petitioners' parents, where only Raymond was presented to the parents to relay the message from Gen. Palparan not to join anymore rallies. On that occasion, Hilario warned the parents that they would not again see their sons should they join any rallies to denounce human rights violations. (Exhibit D, rollo, pp. 205-206) Hilario was also among four Master Sergeants (the others being Arman, Ganata and Cabalse) with whom Gen. Palparan conversed on the occasion when Gen. Palparan required Raymond to take the medicines for his health. (Exhibit D, rollo, p. 206) There were other occasions when the petitioners saw that Hilario had a direct hand in their torture. It is clear, therefore, that the participation of Hilario in the abduction and forced disappearance of the petitioners was established. The participation of other military personnel like Arman, Ganata, Cabalse and Caigas, among others, was similarly established. xxx xxx xxx As to the CAFGU auxiliaries, the habeas Court found them personally involved in the abduction. We also do, for, indeed, the evidence of their participation is overwhelming.101 We reject the claim of petitioners that respondent Raymond Manalo's statements were not corroborated by other independent and credible pieces of evidence.102 Raymond's affidavit and testimony were corroborated by the affidavit of respondent Reynaldo Manalo. The testimony and medical reports prepared by forensic specialist Dr. Molino, and the pictures of the scars left by the physical injuries inflicted on respondents,103 also corroborate respondents' accounts of the torture they endured while in detention. Respondent Raymond Manalo's familiarity with the facilities in Fort Magsaysay such as the "DTU," as shown in his testimony and confirmed by Lt. Col. Jimenez to be the "Division Training Unit,"104 firms up respondents' story that they were detained for some time in said military facility. In Ortiz v. Guatemala,105 a case decided by the Inter-American Commission on Human Rights, the Commission considered similar evidence, among others, in finding that complainant Sister Diana Ortiz was abducted and tortured by agents of the Guatemalan government. In this case, Sister Ortiz was kidnapped and tortured in early November 1989. The Commission's findings of fact were mostly based on the consistent and credible statements, written and oral, made by Sister Ortiz regarding her ordeal.106 These statements were supported by her recognition of portions of the route they took when she was being driven out of the military installation where she was detained.107 She was also examined by a medical doctor whose findings showed that the 111 circular second degree burns on her back and abrasions on her cheek coincided with her account of cigarette burning and torture she suffered while in detention.108 With the secret nature of an enforced disappearance and the torture perpetrated on the victim during detention, it logically holds that much of the information and evidence of the ordeal will come from the victims themselves, and the veracity of their account will depend on their credibility and candidness in their written and/or oral statements. Their statements can be corroborated by other evidence such as physical evidence left by the torture they suffered or landmarks they can identify in the places where they were detained. Where powerful military officers are implicated, the hesitation of witnesses to surface and testify against them comes as no surprise. We now come to the right of the respondents to the privilege of the writ of Amparo. There is no quarrel that the enforced disappearance of both respondents Raymond and Reynaldo Manalo has now passed as they have escaped

Secretary of National Defense vs Manalo from captivity and surfaced. But while respondents admit that they are no longer in detention and are physically free, they assert that they are not "free in every sense of the word"109 as their "movements continue to be restricted for fear that people they have named in their Judicial Affidavits and testified against (in the case of Raymond) are still at large and have not been held accountable in any way. These people are directly connected to the Armed Forces of the Philippines and are, thus, in a position to threaten respondents' rights to life, liberty and security."110 (emphasis supplied) Respondents claim that they are under threat of being once again abducted, kept captive or even killed, which constitute a direct violation of their right to security of person.111
Elaborating on the "right to security, in general," respondents point out that this right is "often associated with liberty;" it is also seen as an "expansion of rights based on the prohibition against torture and cruel and unusual punishment." Conceding that there is no right to security expressly mentioned in Article III of the 1987 Constitution, they submit that their rights "to be kept free from torture and from incommunicado detention and solitary detention places112 fall under the general coverage of the right to security of person under the writ of Amparo." They submit that the Court ought to give an expansive recognition of the right to security of person in view of the State Policy under Article II of the 1987 Constitution which enunciates that, "The State values the dignity of every human person and guarantees full respect for human rights." Finally, to justify a liberal interpretation of the right to security of person, respondents cite the teaching in Moncupa v. Enrile113 that "the right to liberty may be made more meaningful only if there is no undue restraint by the State on the exercise of that liberty"114 such as a requirement to "report under unreasonable restrictions that amounted to a deprivation of liberty"115 or being put under "monitoring and surveillance."116 In sum, respondents assert that their cause of action consists in the threat to their right to life and liberty, and a violation of their right to security. Let us put this right to security under the lens to determine if it has indeed been violated as respondents assert. The right to security or the right to security of person finds a textual hook in Article III, Section 2 of the 1987 Constitution which provides, viz: Sec. 2. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge... At the core of this guarantee is the immunity of one's person, including the extensions of his/her person - houses, papers, and effects - against government intrusion. Section 2 not only limits the state's power over a person's home and possessions, but more importantly, protects the privacy and sanctity of the person himself.117 The purpose of this provision was enunciated by the Court in People v. CFI of Rizal, Branch IX, Quezon City, viz:118 The purpose of the constitutional guarantee against unreasonable searches and seizures is to prevent violations of private security in person and property and unlawful invasion of the security of the home by officers of the law acting under legislative or judicial sanction and to give remedy against such usurpation when attempted. (Adams v. New York, 192 U.S. 858; Alvero v. Dizon, 76 Phil. 637 [1946]). The right to privacy is an essential condition to the dignity and happiness and to the peace and security of every individual, whether it be of home or of persons and correspondence. (Taada and Carreon, Political Law of the Philippines, Vol. 2, 139 [1962]). The constitutional inviolability of this great fundamental right against unreasonable searches and seizures must be deemed absolute as nothing is closer to a man's soul than the serenity of his privacy and the assurance of his personal security. Any interference allowable can only be for the best causes and reasons.119 (emphases supplied) While the right to life under Article III, Section 1120 guarantees essentially the right to be alive121 - upon which the enjoyment of all other rights is preconditioned - the right to security of person is a guarantee of the secure quality of this life, viz: "The life to which each person has a right is not a life lived in fear that his person and property may be unreasonably violated by a powerful ruler. Rather, it is a life lived with the assurance that the government he established and consented to, will protect the security of his person and property. The ideal of security in life and property... pervades the whole history of man. It touches every aspect of man's existence."122 In a broad sense, the right to security of person "emanates in a person's legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation. It includes the right to exist, and the right to enjoyment of life while existing, and it is invaded

Secretary of National Defense vs Manalo not only by a deprivation of life but also of those things which are necessary to the enjoyment of life according to the nature, temperament, and lawful desires of the individual."123
A closer look at the right to security of person would yield various permutations of the exercise of this right. First, the right to security of person is "freedom from fear." In its "whereas" clauses, the Universal Declaration of Human Rights (UDHR) enunciates that "a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people." (emphasis supplied) Some scholars postulate that "freedom from fear" is not only an aspirational principle, but essentially an individual international human right.124 It is the "right to security of person" as the word "security" itself means "freedom from fear."125 Article 3 of the UDHR provides, viz: Everyone has the right to life, liberty and security of person.126 (emphasis supplied) In furtherance of this right declared in the UDHR, Article 9(1) of the International Covenant on Civil and Political Rights (ICCPR) also provides for the right to security of person, viz: 1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. (emphasis supplied) The Philippines is a signatory to both the UDHR and the ICCPR. In the context of Section 1 of the Amparo Rule, "freedom from fear" is the right and any threat to the rights to life, liberty or security is the actionable wrong. Fear is a state of mind, a reaction; threat is a stimulus, acause of action. Fear caused by the same stimulus can range from being baseless to well-founded as people react differently. The degree of fear can vary from one person to another with the variation of the prolificacy of their imagination, strength of character or past experience with the stimulus. Thus, in the Amparo context, it is more correct to say that the "right to security" is actually the "freedom from threat." Viewed in this light, the "threatened with violation" Clause in the latter part of Section 1 of the Amparo Rule is a form of violation of the right to security mentioned in the earlier part of the provision.127 Second, the right to security of person is a guarantee of bodily and psychological integrity or security. Article III, Section II of the 1987 Constitution guarantees that, as a general rule, one's body cannot be searched or invaded without a search warrant.128 Physical injuries inflicted in the context of extralegal killings and enforced disappearances constitute more than a search or invasion of the body. It may constitute dismemberment, physical disabilities, and painful physical intrusion. As the degree of physical injury increases, the danger to life itself escalates. Notably, in criminal law, physical injuries constitute a crime against persons because they are an affront to the bodily integrity or security of a person.129 Physical torture, force, and violence are a severe invasion of bodily integrity. When employed to vitiate the free will such as to force the victim to admit, reveal or fabricate incriminating information, it constitutes an invasion of both bodily and psychological integrity as the dignity of the human person includes the exercise of free will. Article III, Section 12 of the 1987 Constitution more specifically proscribes bodily and psychological invasion, viz: (2) No torture, force, violence, threat or intimidation, or any other means which vitiate the free will shall be used against him (any person under investigation for the commission of an offense). Secret detention places, solitary, incommunicado or other similar forms of detention are prohibited. Parenthetically, under this provision, threat and intimidation that vitiate the free will - although not involving invasion of bodily integrity - nevertheless constitute a violation of the right to security in the sense of "freedom from threat" as afore-discussed. Article III, Section 12 guarantees freedom from dehumanizing abuses of persons under investigation for the commission of an offense. Victims of enforced disappearances who are not even under such investigation should all the more be protected from these degradations.

Secretary of National Defense vs Manalo An overture to an interpretation of the right to security of person as a right against torture was made by the European Court of Human Rights (ECHR) in the recent case of Popov v. Russia.130 In this case, the claimant, who was lawfully detained, alleged that the state authorities had physically abused him in prison, thereby violating his right to security of person. Article 5(1) of the European Convention on Human Rights provides, viz: "Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law ..." (emphases supplied) Article 3, on the other hand, provides that "(n)o one shall be subjected to torture or to inhuman or degrading treatment or punishment." Although the application failed on the facts as the alleged ill-treatment was found baseless, the ECHR relied heavily on the concept of security in holding, viz:
...the applicant did not bring his allegations to the attention of domestic authorities at the time when they could reasonably have been expected to take measures in order to ensure his security and to investigate the circumstances in question. xxx xxx xxx ... the authorities failed to ensure his security in custody or to comply with the procedural obligation under Art.3 to conduct an effective investigation into his allegations.131 (emphasis supplied) The U.N. Committee on the Elimination of Discrimination against Women has also made a statement that the protection of the bodily integrity of women may also be related to the right to security and liberty, viz: ...gender-based violence which impairs or nullifies the enjoyment by women of human rights and fundamental freedoms under general international law or under specific human rights conventions is discrimination within the meaning of article 1 of the Convention (on the Elimination of All Forms of Discrimination Against Women). These rights and freedoms include . . . the right to liberty and security of person.132 Third, the right to security of person is a guarantee of protection of one's rights by the government. In the context of the writ of Amparo, this right is built into the guarantees of the right to life and liberty under Article III, Section 1 of the 1987 Constitution and the right to security of person (as freedom from threat and guarantee of bodily and psychological integrity) under Article III, Section 2. The right to security of person in this third sense is a corollary of the policy that the State "guarantees full respect for human rights" under Article II, Section 11 of the 1987 Constitution.133 As the government is the chief guarantor of order and security, the Constitutional guarantee of the rights to life, liberty and security of person is rendered ineffective if government does not afford protection to these rights especially when they are under threat. Protection includes conducting effective investigations, organization of the government apparatus to extend protection to victims of extralegal killings or enforced disappearances (or threats thereof) and/or their families, and bringing offenders to the bar of justice. The Inter-American Court of Human Rights stressed the importance of investigation in the Velasquez Rodriguez Case,134 viz: (The duty to investigate) must be undertaken in a serious manner and not as a mere formality preordained to be ineffective. An investigation must have an objective and be assumed by the State as its own legal duty, not as a step taken by private interests that depends upon the initiative of the victim or his family or upon their offer of proof, without an effective search for the truth by the government.135 This third sense of the right to security of person as a guarantee of government protection has been interpreted by the United Nations' Human Rights Committee136 in not a few cases involving Article 9137 of the ICCPR. While the right to security of person appears in conjunction with the right to liberty under Article 9, the Committee has ruled that the right to security of person can exist independently of the right to liberty. In other words, there need not necessarily be a deprivation of liberty for the right to security of person to be invoked. In Delgado Paez v. Colombia,138 a case involving death threats to a religion teacher at a secondary school in Leticia, Colombia, whose social views differed from those of the Apostolic Prefect of Leticia, the Committee held, viz: The first sentence of article 9 does not stand as a separate paragraph. Its location as a part of paragraph one could lead to the view that the right to security arises only in the context of arrest and detention. The travaux prparatoires indicate that the discussions of the first sentence did indeed focus on matters dealt with in the other provisions of article 9. The Universal Declaration of Human Rights, in article 3, refers to the right to life, the right to liberty and the right to security of the person. These elements have been dealt with in

Secretary of National Defense vs Manalo separate clauses in the Covenant. Although in the Covenant the only reference to the right of security of person is to be found in article 9, there is no evidence that it was intended to narrow the concept of the right to security only to situations of formal deprivation of liberty. At the same time, States parties have undertaken to guarantee the rights enshrined in the Covenant. It cannot be the case that, as a matter of law, States can ignore known threats to the life of persons under their jurisdiction, just because that he or she is not arrested or otherwise detained. States parties are under an obligation to take reasonable and appropriate measures to protect them. An interpretation of article 9 which would allow a State party to ignore threats to the personal security of non-detained persons within its jurisdiction would render totally ineffective the guarantees of the Covenant.139 (emphasis supplied)
The Paez ruling was reiterated in Bwalya v. Zambia,140 which involved a political activist and prisoner of conscience who continued to be intimidated, harassed, and restricted in his movements following his release from detention. In a catena of cases, the ruling of the Committee was of a similar import: Bahamonde v. Equatorial Guinea,141 involving discrimination, intimidation and persecution of opponents of the ruling party in that state;Tshishimbi v. Zaire,142 involving the abduction of the complainant's husband who was a supporter of democratic reform in Zaire; Dias v. Angola,143 involving the murder of the complainant's partner and the harassment he (complainant) suffered because of his investigation of the murder; and Chongwe v. Zambia,144involving an assassination attempt on the chairman of an opposition alliance. Similarly, the European Court of Human Rights (ECHR) has interpreted the "right to security" not only as prohibiting the State from arbitrarily depriving liberty, but imposing a positive duty on the State to afford protection of the right to liberty.145 The ECHR interpreted the "right to security of person" under Article 5(1) of the European Convention of Human Rights in the leading case on disappearance of persons, Kurt v. Turkey.146 In this case, the claimant's son had been arrested by state authorities and had not been seen since. The family's requests for information and investigation regarding his whereabouts proved futile. The claimant suggested that this was a violation of her son's right to security of person. The ECHR ruled, viz: ... any deprivation of liberty must not only have been effected in conformity with the substantive and procedural rules of national law but must equally be in keeping with the very purpose of Article 5, namely to protect the individual from arbitrariness... Having assumed control over that individual it is incumbent on the authorities to account for his or her whereabouts. For this reason, Article 5 must be seen as requiring the authorities to take effective measures to safeguard against the risk of disappearance and to conduct a prompt effective investigation into an arguable claim that a person has been taken into custody and has not been seen since.147 (emphasis supplied) Applying the foregoing concept of the right to security of person to the case at bar, we now determine whether there is a continuing violation of respondents' right to security. First, the violation of the right to security as freedom from threat to respondents' life, liberty and security. While respondents were detained, they were threatened that if they escaped, their families, including them, would be killed. In Raymond's narration, he was tortured and poured with gasoline after he was caught the first time he attempted to escape from Fort Magsaysay. A call from a certain "Mam," who wanted to see him before he was killed, spared him. This time, respondents have finally escaped. The condition of the threat to be killed has come to pass. It should be stressed that they are now free from captivity not because they were released by virtue of a lawful order or voluntarily freed by their abductors. It ought to be recalled that towards the end of their ordeal, sometime in June 2007 when respondents were detained in a camp in Limay, Bataan, respondents' captors even told them that they were still deciding whether they should be executed. Respondent Raymond Manalo attested in his affidavit, viz: Kinaumagahan, naka-kadena pa kami. Tinanggal ang mga kadena mga 3 o 4 na araw pagkalipas. Sinabi sa amin na kaya kami nakakadena ay dahil pinagdedesisyunan pa ng mga sundalo kung papatayin kami o hindi.148 The possibility of respondents being executed stared them in the eye while they were in detention. With their escape, this continuing threat to their life is apparent, moreso now that they have surfaced and implicated specific officers in the

Secretary of National Defense vs Manalo military not only in their own abduction and torture, but also in those of other persons known to have disappeared such as Sherlyn Cadapan, Karen Empeo, and Manuel Merino, among others.
Understandably, since their escape, respondents have been under concealment and protection by private citizens because of the threat to their life, liberty and security. The threat vitiates their free will as they are forced to limit their movements or activities.149 Precisely because respondents are being shielded from the perpetrators of their abduction, they cannot be expected to show evidence of overt acts of threat such as face-to-face intimidation or written threats to their life, liberty and security. Nonetheless, the circumstances of respondents' abduction, detention, torture and escape reasonably support a conclusion that there is an apparent threat that they will again be abducted, tortured, and this time, even executed. These constitute threats to their liberty, security, and life, actionable through a petition for a writ of Amparo. Next, the violation of the right to security as protection by the government. Apart from the failure of military elements to provide protection to respondents by themselves perpetrating the abduction, detention, and torture, they also miserably failed in conducting an effective investigation of respondents' abduction as revealed by the testimony and investigation report of petitioners' own witness, Lt. Col. Ruben Jimenez, Provost Marshall of the 7th Infantry Division. The one-day investigation conducted by Jimenez was very limited, superficial, and one-sided. He merely relied on the Sworn Statements of the six implicated members of the CAFGU and civilians whom he met in the investigation for the first time. He was present at the investigation when his subordinate Lingad was taking the sworn statements, but he did not propound a single question to ascertain the veracity of their statements or their credibility. He did not call for other witnesses to test the alibis given by the six implicated persons nor for the family or neighbors of the respondents. In his affidavit, petitioner Secretary of National Defense attested that in a Memorandum Directive dated October 31, 2007, he issued a policy directive addressed to the AFP Chief of Staff, that the AFP should adopt rules of action in the event the writ of Amparo is issued by a competent court against any members of the AFP, which should essentially include verification of the identity of the aggrieved party; recovery and preservation of relevant evidence; identification of witnesses and securing statements from them; determination of the cause, manner, location and time of death or disappearance; identification and apprehension of the person or persons involved in the death or disappearance; and bringing of the suspected offenders before a competent court.150 Petitioner AFP Chief of Staff also submitted his own affidavit attesting that he received the above directive of respondent Secretary of National Defense and that acting on this directive, he immediately caused to be issued a directive to the units of the AFP for the purpose of establishing the circumstances of the alleged disappearance and the recent reappearance of the respondents, and undertook to provide results of the investigations to respondents.151 To this day, however, almost a year after the policy directive was issued by petitioner Secretary of National Defense on October 31, 2007, respondents have not been furnished the results of the investigation which they now seek through the instant petition for a writ of Amparo. Under these circumstances, there is substantial evidence to warrant the conclusion that there is a violation of respondents' right to security as a guarantee of protection by the government. In sum, we conclude that respondents' right to security as "freedom from threat" is violated by the apparent threat to their life, liberty and security of person. Their right to security as a guarantee of protection by the government is likewise violated by the ineffective investigation and protection on the part of the military. Finally, we come to the reliefs granted by the Court of Appeals, which petitioners question. First, that petitioners furnish respondents all official and unofficial reports of the investigation undertaken in connection with their case, except those already in file with the court. Second, that petitioners confirm in writing the present places of official assignment of M/Sgt. Hilario aka Rollie Castillo and Donald Caigas. Third, that petitioners cause to be produced to the Court of Appeals all medical reports, records and charts, and reports of any treatment given or recommended and medicines prescribed, if any, to the Manalo brothers, to

Secretary of National Defense vs Manalo include a list of medical personnel (military and civilian) who attended to them from February 14, 2006 until August 12, 2007.
With respect to the first and second reliefs, petitioners argue that the production order sought by respondents partakes of the characteristics of a search warrant. Thus, they claim that the requisites for the issuance of a search warrant must be complied with prior to the grant of the production order, namely: (1) the application must be under oath or affirmation; (2) the search warrant must particularly describe the place to be searched and the things to be seized; (3) there exists probable cause with one specific offense; and (4) the probable cause must be personally determined by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce.152 In the case at bar, however, petitioners point out that other than the bare, self-serving and vague allegations made by respondent Raymond Manalo in his unverified declaration and affidavit, the documents respondents seek to be produced are only mentioned generally by name, with no other supporting details. They also argue that the relevancy of the documents to be produced must be apparent, but this is not true in the present case as the involvement of petitioners in the abduction has not been shown. Petitioners' arguments do not hold water. The production order under the Amparo Rule should not be confused with a search warrant for law enforcement under Article III, Section 2 of the 1987 Constitution. This Constitutional provision is a protection of the people from the unreasonable intrusion of the government, not a protection of the government from the demand of the people such as respondents. Instead, the Amparo production order may be likened to the production of documents or things under Section 1, Rule 27 of the Rules of Civil Procedure which provides in relevant part, viz: Section 1. Motion for production or inspection order. Upon motion of any party showing good cause therefor, the court in which an action is pending may (a) order any party to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any designated documents, papers, books of accounts, letters, photographs, objects or tangible things, not privileged, which constitute or contain evidence material to any matter involved in the action and which are in his possession, custody or control... In Material Distributors (Phil.) Inc. v. Judge Natividad,153 the respondent judge, under authority of Rule 27, issued a subpoena duces tecum for the production and inspection of among others, the books and papers of Material Distributors (Phil.) Inc. The company questioned the issuance of the subpoena on the ground that it violated the search and seizure clause. The Court struck down the argument and held that the subpoenapertained to a civil procedure that "cannot be identified or confused with unreasonable searches prohibited by the Constitution..." Moreover, in his affidavit, petitioner AFP Chief of Staff himself undertook "to provide results of the investigations conducted or to be conducted by the concerned unit relative to the circumstances of the alleged disappearance of the persons in whose favor the Writ of Amparo has been sought for as soon as the same has been furnished Higher headquarters." With respect to the second and third reliefs, petitioners assert that the disclosure of the present places of assignment of M/Sgt. Hilario aka Rollie Castillo and Donald Caigas, as well as the submission of a list of medical personnel, is irrelevant, improper, immaterial, and unnecessary in the resolution of the petition for a writ ofAmparo. They add that it will unnecessarily compromise and jeopardize the exercise of official functions and duties of military officers and even unwittingly and unnecessarily expose them to threat of personal injury or even death. On the contrary, the disclosure of the present places of assignment of M/Sgt. Hilario aka Rollie Castillo and Donald Caigas, whom respondents both directly implicated as perpetrators behind their abduction and detention, is relevant in ensuring the safety of respondents by avoiding their areas of territorial jurisdiction. Such disclosure would also help ensure that these military officers can be served with notices and court processes in relation to any investigation and action for violation of the respondents' rights. The list of medical personnel is also relevant in securing information to create the medical history of respondents and make appropriate medical interventions, when applicable and necessary.

Secretary of National Defense vs Manalo In blatant violation of our hard-won guarantees to life, liberty and security, these rights are snuffed out from victims of extralegal killings and enforced disappearances. The writ of Amparo is a tool that gives voice to preys of silent guns and prisoners behind secret walls.
WHEREFORE, premises considered, the petition is DISMISSED. The Decision of the Court of Appeals dated December 26, 2007 is affirmed. SO ORDERED.

Razon vs. Tagitis

EN BANC GEN. AVELINO I. RAZON, JR., Chief, Philippine National Police (PNP); Police Chief Superintendent RAUL CASTAEDA, Chief, Criminal Investigation and Detection Group (CIDG); Police Senior Superintendent LEONARDO A. ESPINA, Chief, Police Anti-Crime and Emergency Response (PACER); and GEN. JOEL R. GOLTIAO, Regional Director of ARMM, PNP, Petitioners, - versus -

G.R. No. 182498 Present:

PUNO, C.J., CARPIO, CORONA, CARPIO MORALES, CHICO-NAZARIO, VELASCO, JR., NACHURA, LEONARDO-DE CASTRO, BRION,

MARY JEAN B. TAGITIS, herein represented by ATTY. FELIPE P. ARCILLA, JR., Attorney-inFact, Respondent.

PERALTA, BERSAMIN, DEL CASTILLO, ABAD, and VILLARAMA, JR., JJ.

Promulgated:

Razon vs. Tagitis

December 3, 2009

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

We review in this petition for review on certiorari[1] the decision dated March 7, 2008 of the Court of Appeals (CA) in C.A-G.R. AMPARO No. 00009.[2] This CA decision confirmed the enforced disappearance of Engineer Morced N. Tagitis (Tagitis) and granted the Writ of Amparo at the petition of his wife, Mary Jean B. Tagitis (respondent). The dispositive portion of the CA decision reads:

WHEREFORE, premises considered, petition is hereby GRANTED. The Court hereby FINDS that this is an enforced disappearance within the meaning of the United Nations instruments, as used in the Amparo Rules. The privileges of the writ of amparo are hereby extended to Engr. Morced Tagitis.

Razon vs. Tagitis Consequently: (1) respondent GEN. EDGARDO M. DOROMAL, Chief, Criminal Investigation and Detention Group (CIDG) who should order COL. JOSE VOLPANE PANTE, CIDG-9 Chief, Zamboanga City, to aid him; (2) respondent GEN. AVELINO I. RAZON, Chief, PNP, who should order his men, namely: (a) respondentGEN. JOEL GOLTIAO, Regional Director of ARMM PNP, (b) COL. AHIRON AJIRIM, both head of TASK FORCE TAGITIS, and (c) respondent SR. SUPERINTENDENT LEONARDO A. ESPINA, Chief, Police AntiCrime and Emergency Response, to aid him as their superior- are hereby DIRECTED to exertextraordinary diligence and efforts, not only to protect the life, liberty and security of Engr. Morced Tagitis, but also to extend the privileges of the writ of amparo to Engr. Morced Tagitis and his family, and to submit a monthly report of their actions to this Court, as a way of PERIODIC REVIEW to enable this Court to monitor the action of respondents.

This amparo case is hereby DISMISSED as to respondent LT. GEN. ALEXANDER YANO, Commanding General, Philippine Army, and as to respondent GEN. RUBEN RAFAEL, Chief Anti-Terror Task Force Comet, Zamboanga City, both being with the military, which is a separate and distinct organization from the police and the CIDG, in terms of operations, chain of command and budget.

This Decision reflects the nature of the Writ of Amparo a protective remedy against violations or threats of violation against the rights to life, liberty and security.[3] It embodies, as a remedy, the courts directive to police agencies to undertake specified courses of action to address the disappearance of an individual, in this case, Engr. Morced N. Tagitis. It does not determine guilt nor pinpoint criminal culpability for the disappearance; rather, it determinesresponsibility, or at least accountability, for the enforced disappearance for purposes of imposing the appropriate remedies to address the disappearance. Responsibility refers to the extent the actors have been established by substantial evidence to have participated in whatever way, by action or omission, in an enforced disappearance, as a measure of the remedies this Court shall craft, among them, the directive to file the appropriate criminal and civil cases against the responsible parties in the proper courts. Accountability, on the other hand, refers to the measure of remedies that should be addressed to those who exhibited involvement in the enforced disappearance without bringing the level of their complicity to the level of responsibility defined above; or who are imputed with knowledge relating to the enforced disappearance and who carry the burden of disclosure; or those who carry, but have failed to discharge, the burden of extraordinary diligence in the investigation of the enforced disappearance. In all these cases, the issuance of the Writ of Amparo is justified by our primary goal of addressing the disappearance, so that the life of the victim is preserved and his liberty and security are restored. We highlight this nature of a Writ of Amparo case at the outset to stress that the unique situations that call for the issuance of the writ, as well as the considerations and measures necessary to address these situations, may not at all be the same as the standard measures

Razon vs. Tagitis

and procedures in ordinary court actions and proceedings. In this sense, the Rule on the Writ of Amparo[4] (Amparo Rule) issued by this Court is unique. The Amparo Rule should be read, too, as a work in progress, as its directions and finer points remain to evolve through time and jurisprudence and through the substantive laws that Congress may promulgate. THE FACTUAL ANTECEDENTS The background facts, based on the petition and the records of the case, are summarized below. The established facts show that Tagitis, a consultant for the World Bank and the Senior Honorary Counselor for the Islamic Development Bank (IDB) Scholarship Programme, was last seen in Jolo, Sulu. Together with Arsimin Kunnong (Kunnong), an IDB scholar, Tagitis arrived in Jolo by boat in the early morning of October 31, 2007 from a seminar in Zamboanga City. They immediately checked-in at ASY Pension House. Tagitis asked Kunnong to buy him a boat ticket for his return trip the following day to Zamboanga. When Kunnong returned from this errand, Tagitis was no longer around.[5] The receptionist related that Tagitis went out to buy food at around 12:30 in the afternoon and even left his room key with the desk.[6] Kunnong looked for Tagitis and even sent a text message to the latters Manila-based secretary who did not know of Tagitis whereabouts and activities either; she advised Kunnong to simply wait.[7] On November 4, 2007, Kunnong and Muhammad Abdulnazeir N. Matli, a UP professor of Muslim studies and Tagitis fellow student counselor at the IDB, reported Tagitis disappearance to the Jolo Police Station.[8] On November 7, 2007, Kunnong executed a sworn affidavit attesting to what he knew of the circumstances surrounding Tagitis disappearance.[9] More than a month later (on December 28, 2007), the respondent filed a Petition for the Writ of Amparo (petition) with the CA through her Attorney-in-Fact, Atty. Felipe P. Arcilla.[10] The petition was directed against Lt. Gen. Alexander Yano, Commanding General, Philippine Army; Gen. Avelino I. Razon, Chief, Philippine National Police (PNP); Gen. Edgardo M. Doromal, Chief, Criminal Investigation and Detention Group (CIDG); Sr. Supt. Leonardo A. Espina, Chief, Police Anti-Crime and Emergency Response; Gen. Joel Goltiao, Regional Director, ARMM-PNP; and Gen. Ruben Rafael, Chief, Anti-Terror Task Force Comet [collectively referred to as petitioners+. After reciting Tagitis personal circumstances and the facts outlined above, the petition went on to state:
xxxx

7.

Soon after the student left the room, Engr. Tagitis went out of the pension house to take his early lunch but while out on the street, a couple

of burly men believed to be police intelligence operatives, forcibly took him and boarded the latter on a motor vehicle then sped away without the knowledge of his student, Arsimin Kunnong;

Razon vs. Tagitis

8. As instructed, in the late afternoon of the same day, Kunnong returned to the pension house, and was surprised to find out that subject Engr. Tagitis cannot [sic] be contacted by phone and was not also around and his room was closed and locked; Kunnong requested for the key from the desk of the pension house who [sic] assisted him to open the room of Engr. Tagitis, where they discovered that the personal belongings of Engr. Tagitis, including cell phones, documents and other personal belongings were all intact inside the room; When Kunnong could not locate Engr. Tagitis, the former sought the help of another IDB scholar and reported the matter to the local police agency; Arsimin Kunnong including his friends and companions in Jolo, exerted efforts in trying to locate the whereabouts of Engr. Tagitis and when he reported the matter to the police authorities in Jolo, he was immediately given a ready answer that Engr. Tagitis could have been abducted by the Abu Sayyaf group and other groups known to be fighting against the government; Being scared with [sic] these suggestions and insinuations of the police officers, Kunnong reported the matter to the [respondent, wife of Engr. Tagitis] by phone and other responsible officers and coordinators of the IDB Scholarship Programme in the Philippines, who alerted the office of the Governor of ARMM who was then preparing to attend the OIC meeting in Jeddah, Saudi Arabia; [Respondent], on the other hand, approached some of her co-employees with the Land Bank in Digos branch, Digos City, Davao del Sur who likewise sought help from some of their friends in the military who could help them find/locate the whereabouts of her husband; All of these efforts of the [respondent] did not produce any positive results except the information from persons in the military who do not want to be identified that Engr. Tagitis is in the hands of the uniformed men;

9.

10.

11.

12.

13.

14.

15. According to reliable information received by the [respondent], subject Engr. Tagitis is in the custody of police intelligence operatives, specifically with the CIDG, PNP Zamboanga City, being held against his will in an earnest attempt of the police to involve and connect Engr. Tagitis with the different terrorist groups; xxxx 17. [Respondent] filed her complaint with the PNP Police Station in the ARMM in Cotobato and in Jolo, as suggested by her friends, seeking their help to find her husband, but *respondents+ request and pleadings failed to produce any positive results; Instead of helping the [respondent], she [sic] was told of an intriguing tale by the police that her husband, subject of the petition, was not missing but was with another woman having good time somewhere, which is a clear indication of the *petitioners+ refusal to help and provide police assistance in locating her missing husband; The continued failure and refusal of the [petitioners] to release and/or turn-over subject Engr. Tagitis to his family or even to provide truthful information to [the respondent] of the subjects whereabouts, and/or allow *the respondent+ to visit her husband Engr. Morced Tagitis, caused so much sleepless nights and serious anxieties; Lately, [the respondent] was again advised by one of the [petitioners] to go to the ARMM Police Headquarters again in Cotobato City and also to the different Police Headquarters including [those] in Davao City, in Zamboanga City, in Jolo, and in Camp Crame, Quezon City, and all these places have been visited by the [respondent] in search for her husband, which entailed expenses for her trips to these places thereby resorting her to borrowings and beggings [sic] for financial help from friends and relatives only to try complying [ sic] to the different suggestions of these police officers, despite of which, her efforts produced no positive results up to the present time; In fact at times, some police officers, who [sympathized with] the sufferings undergone by the [respondent], informed her that they are not the proper persons that she should approach, but assured her not to worry because her husband is [sic] in good hands; The unexplained uncooperative behavior of the *petitioners+ to the *respondents+ request for help and failure and refusal of the [petitioners] to extend the needed help, support and assistance in locating the whereabouts of Engr. Tagitis who had been declared missing since October 30, 2007 which is almost two (2) months now, clearly indicates that the [petitioners+ are actually in physical possession and custody of *respondents+ husband, Engr. Tagitis; xxxx 25. [The respondent] has exhausted all administrative avenues and remedies but to no avail, and under the circumstances, [the respondent] has no other plain, speedy and adequate remedy to protect and get the release of subject Engr. Morced Tagitis from the illegal clutches of the [petitioners], their intelligence operatives and the like which are in total violation of the subjects human and constitutional rights, exc ept the issuance of a WRIT OF AMPARO. [Emphasis supplied]

18.

19.

20.

21.

22.

Razon vs. Tagitis

On the same day the petition was filed, the CA immediately issued the Writ of Amparo, set the case for hearing on January 7, 2008, and directed the petitioners to file their verified return within seventy-two (72) hours from service of the writ.[11] In their verified Return filed during the hearing of January 27, 2008, the petitioners denied any involvement in or knowledge of Tagitis alleged abduction. They argued that the allegations of the petition were incomplete and did not constitute a cause of action against them; were baseless, or at best speculative; and were merely based on hearsay evidence. [12] The affidavit of PNP Chief Gen. Avelino I. Razon, attached to the Return, stated that: he did not have any personal knowledge of, or any participation in, the alleged disappearance; that he had been designated by President Gloria Macapagal Arroyo as the head of a special body called TASK FORCE USIG, to address concerns about extralegal killings and enforced disappearances; the Task Force, inter alia, coordinated with the investigators and local police, held case conferences, rendered legal advice in connection to these cases; and gave the following summary:[13]
xxxx 4. a) On November 5, 2007, the Regional Director, Police Regional Office ARMM submitted a report on the alleged disappearance of one Engr. Morced Tagitis. According to the said report, the victim checked-in at ASY Pension House on October 30, 2007 at about 6:00 in the morning and then roamed around Jolo, Sulu with an unidentified companion. It was only after a few days when the said victim did not return that the matter was reported to Jolo MPS. Afterwards, elements of Sulu PPO conducted a thorough investigation to trace and locate the whereabouts of the said missing person, but to no avail. The said PPO is still conducting investigation that will lead to the immediate findings of the whereabouts of the person. b) Likewise, the Regional Chief, 9RCIDU submitted a Progress Report to the Director, CIDG. The said report stated among others that: subject person attended an Education Development Seminar set on October 28, 2007 conducted at Ateneo de Zamboanga, Zamboanga City together with a Prof. Matli. On October 30, 2007, at around 5:00 oclock in the morning, Engr. Tagitis reportedly arrived at Jolo Sulu wharf aboard M/V Bounty Cruise, he was then billeted at ASY Pension House. At about 6:15 oclock in the morning of the same date, he instructed his student to purchase a fast craft ticket bound for Zamboanga City and will depart from Jolo, Sulu on October 31, 2007. That on or about 10:00 oclock in the morning, Engr. Tagitis left the premises of ASY Pension House as stated by the cashier of the said pension house. Later in the afternoon, the student instructed to purchase the ticket arrived at the pension house and waited for Engr. Tagitis, but the latter did not return. On its part, the elements of 9RCIDU is now conducting a continuous case build up and information gathering to locate the whereabouts of Engr. Tagitis. c) That the Director, CIDG directed the conduct of the search in all divisions of the CIDG to find Engr. Tagitis who was allegedly abducted or illegally detained by covert CIDG-PNP Intelligence Operatives since October 30, 2007, but after diligent and thorough search, records show that no such person is being detained in CIDG or any of its department or divisions. 5. On this particular case, the Philippine National Police exhausted all possible efforts, steps and actions available under the circumstances and continuously search and investigate [sic] the instant case. This immense mandate, however, necessitates the indispensable role of the citizenry, as the PNP cannot stand alone without the cooperation of the victims and witnesses to identify the perpetrators to bring them before the bar of justice and secure their conviction in court.

Razon vs. Tagitis

The petitioner PNP-CIDG Chief, Gen. Edgardo M. Doromal, submitted as well his affidavit, also attached to the Return of the Writ, attesting that upon receipt of the Writ of Amparo, he caused the following:[14]
xxxx That immediately upon receipt on December 29, 2007 of the Resolution of the Honorable Special Fourth Division of the Court of Appeals, I immediately directed the Investigation Division of this Group [CIDG] to conduct urgent investigation on the alleged enforced disappearance of Engineer Morced Tagitis. That based on record, Engr. Morced N. Tagitis attended an Education Development Seminar on October 28, 2007 at Ateneo de Zamboanga at Zamboanga City together with Prof. Abdulnasser Matli. On October 30, 2007, at around six oclock in the morning he arrived at Jolo, Sulu. He was assisted by his student identified as Arsimin Kunnong of the Islamic Development Bank who was also one of the participants of the said seminar. He checked in at ASY pension house located [sic] Kakuyagan, Patikul, Sulu on October 30, 2007 with [sic] unidentified companion. At around six oclock in the morning of even date, Engr. Tagitis instructed his student to purchase a fast craft ticket for Zamboanga City. In the afternoon of the same date, Kunnong arrived at the pension house carrying the ticket he purchased for Engr. Tagitis, but the latter was nowhere to be found anymore. Kunnong immediately informed Prof. Abdulnasser Matli who reported the incident to the police. The CIDG is not involved in the disappearance of Engr. Morced Tagitis to make out a case of an enforced disappearance which presupposes a direct or indirect involvement of the government. That herein [petitioner] searched all divisions and departments for a person named Engr. Morced N. Tagitis, who was allegedly abducted or illegally detained by covert CIDG-PNP Intelligence Operatives since October 30, 2007 and after a diligent and thorough research records show that no such person is being detained in CIDG or any of its department or divisions. That nevertheless, in order to determine the circumstances surrounding Engr. Morced Tagitis [ sic] alleged enforced disappearance, the undersigned had undertaken immediate investigation and will pursue investigations up to its full completion in order to aid in the prosecution of the person or persons responsible therefore.

Likewise attached to the Return of the Writ was PNP-PACER[15] Chief PS Supt. Leonardo A. Espinas affidavit which alleged that:[16]
xxxx

That, I and our men and women in PACER vehemently deny any participation in the alleged abduction or illegally [sic] detention of ENGR. MORCED N. TAGITS on October 30, 2007. As a matter of fact, nowhere in the writ was mentioned that the alleged abduction was perpetrated by elements of PACER nor was there any indication that the alleged abduction or illegal detention of ENGR. TAGITIS was undertaken jointly by our men and by the alleged covert CIDG-PNP intelligence operatives alleged to have abducted or illegally detained ENGR. TAGITIS. That I was shocked when I learned that I was implicated in the alleged disappearance of ENGR. MORCED in my capacity as the chief PACER [sic] considering that our office, the Police Anti-Crime and Emergency Response (PACER), a special task force created for the purpose of neutralizing or eradicating kidnap-for-ransom groups which until now continue to be one of the menace of our society is a respondent in kidnapping or illegal detention case. Simply put, our task is to go after kidnappers and charge them in court and to abduct or illegally detain or kidnap anyone is anathema to our mission. That right after I learned of the receipt of the WRIT OF AMPARO, I directed the Chief of PACER Mindanao Oriental (PACER-MOR) to conduct pro-active measures to investigate, locate/search the subject, identify and apprehend the persons responsible, to recover and preserve evidence related to the disappearance of ENGR. MORCED TAGITIS, which may aid in the prosecution of the person or persons responsible, to identify witnesses and obtain statements from them concerning the disappearance and to determine the cause, manner, location and time of disappearance as well as any pattern or practice that may have brought about the disappearance. That I further directed the chief of PACER-MOR, Police Superintendent JOSE ARNALDO BRIONES JR., to submit a written report regarding the disappearance of ENGR. MORCED. That in compliance with my directive, the chief of PACER-MOR sent through fax his written report. That the investigation and measures being undertaken to locate/search the subject in coordination with Police Regional Office, Autonomous Region of Muslim Mindanao (PRO-ARMM) and Jolo Police Provincial Office (PPO) and other AFP and PNP units/agencies in the area are ongoing with

Razon vs. Tagitis

the instruction not to leave any stone unturned so to speak in the investigation until the perpetrators in the instant case are brought to the bar of justice. That I have exercised EXTRAORDINARY DILIGENCE in dealing with the WRIT OF AMPARO just issued.

Finally, the PNP PRO ARMM Regional Director PC Supt. Joel R. Goltiao (Gen. Goltiao), also submitted his affidavit detailing the actions that he had taken upon receipt of the report on Tagitis disappearance, viz:[17]
xxxx 3) For the record: 1. I am the Regional Director of Police Regional Office ARMM now and during the time of the incident; xxxx 4. It is my duty to look into and take appropriate measures on any cases of reported enforced disappearances and when they are being alluded to my office; 5. On November 5, 2007, the Provincial Director of Sulu Police Provincial Office reported to me through Radio Message Cite No. SPNP31105-07-2007 that on November 4, 2007 at around 3:30 p.m., a certain Abdulnasser Matli, an employee of Islamic Development Bank, appeared before the Office of the Chief of Police, Jolo Police Station, and reported the disappearance of Engr. Morced Tagitis, scholarship coordinator of Islamic Development Bank, Manila; 6. There was no report that Engr. Tagibis was last seen in the company of or taken by any member of the Philippine National Police but rather he just disappeared from ASY Pension House situated at Kakuyagan Village, Village, Patikul, Sulu, on October 30, 2007, without any trace of forcible abduction or arrest; 7. The last known instance of communication with him was when Arsimin Kunnong, a student scholar, was requested by him to purchase a vessel ticket at the Office of Weezam Express, however, when the student returned back to ASY Pension House, he no longer found Engr. Tagitis there and when he immediately inquired at the information counter regarding his whereabouts [ sic], the person in charge in the counter informed him that Engr. Tagitis had left the premises on October 30, 2007 around 1 oclock p.m. and never returned back to his room; 8. Immediately after learning the incident, I called and directed the Provincial Director of Sulu Police Provincial Office and other units through phone call and text messages to conduct investigation [sic] to determine the whereabouts of the aggrieved party and the person or persons responsible for the threat, act or omission, to recover and preserve evidence related to the disappearance of Engr. Tagitis, to identify witnesses and obtain statements from them concerning his disappearance, to determine the cause and manner of his disappearance, to identify and apprehend the person or persons involved in the disappearance so that they shall be brought before a competent court; 9. a) Thereafter, through my Chief of the Regional Investigation and Detection Management Division, I have caused the following directives: Radio Message Cite No. RIDMD-1122-07-358 dated November 22, 2007 directing PD Sulu PPO to conduct joint investigation with CIDG and CIDU ARMM on the matter;

b) Radio Message Cite No. RIDMD-1128-07-361 dated November 28, 2007 directing PD Sulu PPO to expedite compliance to my previous directive; c) Memorandum dated December 14, 2007 addressed to PD Sulu PPO reiterating our series of directives for investigation and directing him to undertake exhaustive coordination efforts with the owner of ASY Pension House and student scholars of IDB in order to secure corroborative statements regarding the disappearance and whereabouts of said personality;

d) Memorandum dated December 24, 2007 addressed to PD Sulu PPO directing him to maximize efforts to establish clues on the whereabouts of Engr. Tagitis by seeking the cooperation of Prof. Abdulnasser Matli and Arsimin Kunnong and/or whenever necessary, for them to voluntarily submit for polygraph examination with the NBI so as to expunge all clouds of doubt that they may somehow have knowledge or idea to his disappearance;

Razon vs. Tagitis

e) Memorandum dated December 27, 2007 addressed to the Regional Chief, Criminal Investigation and Detection Group, Police Regional Office 9, Zamboanga City, requesting assistance to investigate the cause and unknown disappearance of Engr. Tagitis considering that it is within their area of operational jurisdiction; Memorandum from Chief, Intelligence Division, PRO ARMM dated December 30, 2007 addressed to PD Sulu PPO requiring them to submit complete investigation report regarding the case of Engr. Tagitis;

f)

10. In compliance to our directives, PD Sulu PPO has exerted his [sic] efforts to conduct investigation [sic] on the matter to determine the whereabouts of Engr. Tagitis and the circumstances related to his disappearance and submitted the following: a) b) c) Progress Report dated November 6, 2007 through Radio Message Cite No. SPNP3-1106-10-2007; Radio Message Cite No. SPIDMS-1205-47-07 informing this office that they are still monitoring the whereabouts of Engr. Tagitis; Investigation Report dated December 31, 2007 from the Chief of Police, Jolo Police Station, Sulu PPO; 11. a) This incident was properly reported to the PNP Higher Headquarters as shown in the following:

Memorandum dated November 6, 2007 addressed to the Chief, PNP informing him of the facts of the disappearance and the action being taken by our office; Memorandum dated November 6, 2007 addressed to the Director, Directorate for Investigation and Detection Management, NHQ PNP; Memorandum dated December 30, 2007 addressed to the Director, DIDM;

b) c)

4) In spite of our exhaustive efforts, the whereabouts of Engr. Tagitis cannot be determined but our office is continuously intensifying the conduct of information gathering, monitoring and coordination for the immediate solution of the case.

Since the disappearance of Tagistis was practically admitted and taking note of favorable actions so far taken on the disappearance, the CA directed Gen. Goltiao as the officer in command of the area of disappearance to form TASK FORCE TAGITIS.[18] Task Force Tagitis On January 11, 2008, Gen. Goltiao designated PS Supt. Ahiron Ajirim (PS Supt. Ajirim) to head TASK FORCE TAGITIS.[19] The CA subsequently set three hearings to monitor whether TASK FORCE TAGITIS was exerting extraordinary efforts in handling the disappearance of Tagitis.[20] As planned, (1) the first hearing would be to mobilize the CIDG, Zamboanga City; (2) the second hearing would be to mobilize intelligence with Abu Sayyaf and ARMM; and (3) the third hearing would be to mobilize the Chief of Police of Jolo, Sulu and the Chief of Police of Zamboanga City and other police operatives.[21] In the hearing on January 17, 2008, TASK FORCE TAGITIS submitted to the CA an intelligence report from PSL Usman S. Pingay, the Chief of Police of the Jolo Police Station, stating a possible motive for Tagitis disappearance.[22] The intelligence report was apparently based on the sworn affidavit dated January 4, 2008 of Muhammad Abdulnazeir N. Matli (Prof. Matli), Professor of Islamic Studies at the University of the Philippines and an Honorary Student Counselor of the IDB Scholarship Program in the Philippines, who told the Provincial Governor of Sulu that:[23]

Razon vs. Tagitis

[Based] on reliable information from the Office of Muslim Affairs in Manila, Tagitis has reportedly taken and carried away more or less Five Million Pesos (P5,000,000.00) deposited and entrusted to his *personal+ bank accounts by the Central Office of IDB, Jeddah, Kingdom of Saudi Arabia, which *was+ intended for the IDB Scholarship Fund.

In the same hearing, PS Supt. Ajirim testified that since the CIDG was alleged to be responsible, he personally went to the CIDG office in Zamboanga City to conduct an ocular inspection/investigation, particularly of their detention cells.[24] PS Supt. Ajirim stated that the CIDG, while helping TASK FORCE TAGITIS investigate the disappearance of Tagitis, persistently denied any knowledge or complicity in any abduction.[25] He further testified that prior to the hearing, he had already mobilized and given specific instructions to their supporting units to perform their respective tasks; that they even talked to, but failed to get any lead from the respondent in Jolo.[26] In his submitted investigation report dated January 16, 2008, PS Supt. Ajirim concluded:[27]
9. Gleaned from the undersigned inspection and observation at the Headquarters 9 RCIDU and the documents at hand, it is my own initial conclusion that the 9RCIDU and other PNP units in the area had no participation neither [ sic] something to do with [sic] mysterious disappearance of Engr. Morced Tagitis last October 30, 2007. Since doubt has been raised regarding the emolument on the Islamic Development Bank Scholar program of IDB that was reportedly deposited in the personal account of Engr. Tagitis by the IDB central office in Jeddah, Kingdom of Saudi Arabia. Secondly, it could might [sic] be done by resentment or sour grape among students who are applying for the scholar [ sic] and were denied which was allegedly conducted/screened by the subject being the coordinator of said program. It is also premature to conclude but it does or it may and [sic] presumed that the motive behind the disappearance of the subject might be due to the funds he maliciously spent for his personal interest and wanted to elude responsibilities from the institution where he belong as well as to the Islamic student scholars should the statement of Prof. Matli be true or there might be a professional jealousy among them. xxxx

20.

It is recommended that the Writ of Amparo filed against the respondents be dropped and dismissed considering on [ sic] the police and military actions in the area particularly the CIDG are exerting their efforts and religiously doing their tasked [sic] in the conduct of its intelligence monitoring and investigation for the early resolution of this instant case. But rest assured, our office, in coordination with other law-enforcement agencies in the area, are continuously and religiously conducting our investigation for the resolution of this case.

On February 4, 2008, the CA issued an ALARM WARNING that TASK FORCE TAGITIS did not appear to be exerting extraordinary efforts in resolving Tagitis disappearance on the following grounds:[28]
(1) This Court FOUND that it was only as late as January 28, 2008, after the hearing, that GEN. JOEL GOLTIAO and COL. AHIRON AJIRIM had requested for clear photographs when it should have been standard operating procedure in kidnappings or disappearances that the first agenda was for the police to secure clear pictures of the missing person, Engr. Morced Tagitis, for dissemination to all parts of the country and to neighboring countries. It had been three (3) months since GEN. JOEL GOLTIAO admitted having been informed on November 5, 2007 of the alleged abduction of Engr. Morced Tagitis by alleged bad elements of the CIDG. It had been more than one (1) month since the Writ of Amparo had been issued on December 28, 2007. It had been three (3) weeks when battle formation was ordered through Task Force Tagitis, on January 17, 2008. It was only on January 28, 2008 when the Task Force Tagitis requested for clear and recent photographs of the missing person, Engr. Morced Tagitis, despite the Task Force Tagitis claim that they already had an all points bulletin, since November 5, 2007, on the missing person, Engr. Morce d Tagitis. How could the police look for someone who disappeared if no clear photograph had been disseminated? (2) Furthermore, Task Force Tagitis COL. AHIROM AJIRIM informed this Court that P/Supt KASIM was designated as Col. Ahirom Ajirims replacement in the latters official designated post. Yet, P/Supt KASIMs subpoena was returned to this Court unserved. Since this Court was made to understand that it was P/Supt KASIM who was the petitioners unofficial source of the military intelligence information that Engr. Morced Tagitis was abducted by bad elements of the CIDG (par. 15 of the Petition), the close contact between P/Supt KASIM and Col. Ahirom Ajirim of TASK FORCE TAGITIS should have ensured the appearance of Col. KASIM in response to this courts subpoena and COL. KASIM could have confirmed the military intelligence information that bad elements of the CIDG had abducted Engr. Morced Tagitis.

Razon vs. Tagitis

Testimonies for the Respondent On January 7, 2008, the respondent, Mary Jean B. Tagitis, testified on direct examination that she went to Jolo and Zamboanga in her efforts to locate her husband. She said that a friend from Zamboanga holding a high position in the military (whom she did not then identify) gave her information that allowed her to specify her allegations, particularly paragraph 15 of the petition.[29] This friend also told her that her husband *was+ in good hands.[30] The respondent also testified that she sought the assistance of her former boss in Davao City, Land Bank Bajada Branch Manager Rudy Salvador, who told her that PNP CIDG is holding *her husband+, Engineer Morced Tagitis.[31] The respondent recounted that she went to Camp Katitipan in Davao City where she met Col. Julasirim Ahadin Kasim (Col. Kasim/Sr. Supt Kasim) who read to her and her friends (who were then with her) a highly confidential report that contained the alleged activities of Engineer Tagitis and informed her that her husband was abducted because he is under custodial investigation for being a liaison for J.I. or Jemaah Islamiah.[32] On January 17, 2008, the respondent on cross-examination testified that she is Tagitis second wife, and they have been married for thirteen years; Tagitis was divorced from his first wife.[33] She last communicated with her husband on October 29, 2007 at around 7:31 p.m. through text messaging; Tagitis was then on his way to Jolo, Sulu, from Zamboanga City.[34] The respondent narrated that she learned of her husbands disappearance on October 30, 2007 when her stepdaughter, Zaynah Tagitis (Zaynah), informed her that she had not heard from her father since the time they arranged to meet in Manila on October 31, 2007.[35] The respondent explained that it took her a few days (or on November 5, 2007) to personally ask Kunnong to report her husbands disappearance to the Jolo Police Station, since she had the impression that her husband could not communicate with her because his cellular phones battery did not have enough power, and that he would call her when he had fully-charged his cellular phones battery.[36] The respondent also identified the high-ranking military friend, who gave her the information found in paragraph 15 of her petition, as Lt. Col. Pedro L. Ancanan, Jr (Col. Ancanan). She met him in Camp Karingal, Zamboanga through her boss.[37] She also testified that she was with three other people, namely, Mrs. Marydel Martin Talbin and her two friends from Mati City, Davao Oriental, when Col. Kasim read to them the contents of the highly confidential report at Camp Katitipan, Davao City. The respondent further narrated that the report indicated that her husband met with people belonging to a terrorist group and that he

Razon vs. Tagitis

was under custodial investigation. She then told Col. Kasim that her husband was a diabetic taking maintenance medication, and asked that the Colonel relay to the persons holding him the need to give him his medication.[38] On February 11, 2008, TASK FORCE TAGITIS submitted two narrative reports,[39] signed by the respondent, detailing her efforts to locate her husband which led to her meetings with Col. Ancanan of the Philippine Army and Col. Kasim of the PNP. In her narrative report concerning her meeting with Col. Ancanan, the respondent recounted, viz:[40]
On November 11, 2007, we went to Zamboanga City with my friend Mrs. Marydel Talbin. Our flight from Davao City is 9:00 oclock in the morning; we arrived at Zamboanga Airport at around 10:00 oclock. We [were] fetched by the two staffs of Col. Ancanan. We immediately proceed [sic] to West Mindanao Command (WESTMINCOM). On that same day, we had private conversation with Col. Ancanan. He interviewed me and got information about the personal background of Engr. Morced N. Tagitis. After he gathered all information, he revealed to us the contents of text messages they got from the cellular phone of the subject Engr. Tagitis. One of the very important text messages of Engr. Tagitis sent to his daughter Zaynah Tagitis was that she was not allowed to answer any telephone calls in his condominium unit. While we were there he did not tell us any information of the whereabouts of Engr. Tagitis. After the said meeting with Col. Ancanan, he treated us as guests to the city. His two staffs accompanied us to the mall to purchase our plane ticket going back to Davao City on November 12, 2007. When we arrived in Davao City on November 12, 2007 at 9:00 in the morning, Col. Ancanan and I were discussing some points through phone calls. He assured me that my husband is alive and hes last looked * sic] in Talipapao, Jolo, Sulu. Yet I did not believe his given statements of the whereabouts of my husband, because I contacted some of my friends who have access to the groups of MILF, MNLF and ASG. I called up Col. Ancanan several times begging to tell me the exact location of my husband and who held him but he refused. While I was in Jolo, Sulu on November 30, 2007, I called him up again because the PNP, Jolo did not give me any information of the whereabouts of my husband. Col. Ancanan told me that Sana ngayon alam mo na kung saan ang kinalalagyan ng asawa mo. When I was in Zamboanga, I was thinking of dropping by the office of Col. Ancanan, but I was hesitant to pay him a visit for the reason that the Chief of Police of Jolo told me not to contact any AFP officials and he promised me that he can solve the case of my husband (Engr. Tagitis) within nine days. I appreciate the effort of Col. Ancanan on trying to solve the case of my husband Engr. Morced Tagitis, yet failed to do so.

The respondent also narrated her encounter with Col. Kasim, as follows:[41]
On November 7, 2007, I went to Land Bank of the Philippines, Bajada Branch, Davao City to meet Mr. Rudy Salvador. I told him that my husband, Engineer Morced Tagitis was presumed to be abducted in Jolo, Sulu on October 30, 2007. I asked him a favor to contact his connections in the military in Jolo, Sulu where the abduction of Engr. Tagitis took place. Mr. Salvador immediately called up Camp Katitipan located in Davao City looking for high-ranking official who can help me gather reliable information behind the abduction of subject Engineer Tagitis. On that same day, Mr. Salvador and my friend, Anna Mendoza, Executive Secretary, accompanied me to Camp Katitipan to meet Col. Kasim. Mr. Salvador introduced me to Col. Kasim and we had a short conversation. And he assured me that hell do the best he can to help me find my husband. After a few weeks, Mr. Salvador called me up informing me up informing me that I am to go to Camp Katitipan to meet Col. Kasim for he has an urgent, confidential information to reveal. On November 24, 2007, we went back to Camp Katitipan with my three friends. That was the time that Col. Kasim read to us the confidential report that Engr. Tagitis was allegedly connected [with] different terrorist [groups], one of which he mentioned in the report was OMAR PATIK and a certain SANTOS - a Balik Islam. It is also said that Engr. Tagitis is carrying boxes of medicines for the injured terrorists as a supplier. These are the two information that I can still remember. It was written in a long bond paper with PNP Letterhead. It was not shown to us, yet Col. Kasim was the one who read it for us.

Razon vs. Tagitis

He asked a favor to me that Please dont quote my Name! Because this is a raw report. He assured me that my husband is alive and he is in the custody of the military for custodial investigation. I told him to please take care of my husband because he has aliments and he recently took insulin for he is a diabetic patient. In my petition for writ of amparo, I emphasized the information that I got from Kasim.

On February 11, 2008, the respondent presented Mrs. Marydel Martin Talbin (Mrs. Talbin) to corroborate her testimony regarding her efforts to locate her husband, in relation particularly with the information she received from Col. Kasim. Mrs. Talbin testified that she was with the respondent when she went to Zamboanga to see Col. Ancanan, and to Davao City at Camp Katitipan to meet Col. Kasim.[42] In Zamboanga, Mrs. Talbin recounted that they met with Col. Ancanan, who told them that there was a report and that he showed them a series of text messages from Tagitis cellular phone, which showed that Tagitis and his daughter would meet in Manila on October 30, 2007.[43] She further narrated that sometime on November 24, 2007, she went with the respondent together with two other companions, namely, Salvacion Serrano and Mini Leong, to Camp Katitipan to talk to Col. Kasim.[44] The respondent asked Col. Kasim if he knew the exact location of Engr. Tagitis. Col. Kasim told them that Tagitis was in good hands, although he was not certain whether he was with the PNP or with the Armed Forces of the Philippines (AFP). She further recounted that based on the report Col. Kasim read in their presence, Tagitis was under custodial investigation because he was being charged with terrorism; Tagitis in fact had been under surveillance since January 2007 up to the time he was abducted when he was seen talking to Omar Patik and a certain Santos of Bulacan, a Balik Islam charged with terrorism. Col. Kasim also told them that he could not give a copy of the report because it was a raw report.[45] She also related that the Col. Kasim did not tell them exactly where Tagitis was being kept, although he mentioned Talipapao, Sulu.Prof.,lalabas din yan.[50] Prof. Matli also emphasized that despite what his January 4, 2008 affidavit indicated,[51] he never told PS Supt. Pingay, or made any accusation, that Tagitis took away money entrusted to him.[52] Prof. Matli confirmed, however, that that he had received an e-mail report[53] from Nuraya Lackian of the Office of Muslim Affairs in Manila that the IDB was seeking assistance of the office in locating the funds of IDB scholars deposited in Tagitis personal account.[54] On cross-examination by the respondents counsel, Prof. Matli testified that his January 4, 2008 affidavit was already prepared when PS Supt. Pingay asked him to sign it.[55] Prof Matli clarified that although he read the affidavit before signing it, he was not so much aware of *its+ contents.[56] On February 11, 2008, the petitioners presented Col. Kasim to rebut material portions of the respondents testimony, particularly the allegation that he had stated that Tagitis was in

Razon vs. Tagitis

the custody of either the military or the PNP.[57] Col. Kasim categorically denied the statements made by the respondent in her narrative report, specifically: (1) that Tagitis was seen carrying boxes of medicines as supplier for the injured terrorists; (2) that Tagitis was under the custody of the military, since he merely said to the respondent that your husband is in good hands and is probably taken cared of by his armed abductors; and (3) that Tagitis was under custodial investigation by the military, the PNP or the CIDG Zamboanga City.[58] Col. Kasim emphasized that the informal letter he received from his informant in Sulu did not indicate that Tagitis was in the custody of the CIDG.[59] He also stressed that the information he provided to the respondent was merely a raw report sourced from barangay intelligence that still needed confirmation and follow-up as to its veracity.[60] On cross-examination, Col. Kasim testified that the information he gave the respondent was given to him by his informant, who was a civilian asset, through a letter which he considered as unofficial.[61] Col. Kasim stressed that the letter was only meant for his consumption and not for reading by others.[62] He testified further that he destroyed the letter right after he read it to the respondent and her companions because it was not important to him and also because the information it contained had no importance in relation with the abduction of Tagitis.[63] He explained that he did not keep the letter because it did not contain any information regarding the whereabouts of Tagitis and the person(s) responsible for his abduction.[64] In the same hearing on February 11, 2008, the petitioners also presented Police Senior Superintendent Jose Volpane Pante (Col. Pante), Chief of the CIDG-9, to disprove the respondents allegation that Tagitis was in the custody of CIDG-Zamboanga City.[65] Col. Pante clarified that the CIDG was the investigative arm of the PNP, and that the CIDG investigates and prosecutes all cases involving violations in the Revised Penal Code particularly those considered as heinous crimes.[66] Col. Pante further testified that the allegation that 9 RCIDU personnel were involved in the disappearance of Tagitis was baseless, since they did not conduct any operation in Jolo, Sulu before or after Tagitis reported disappearance.[67] Col. Pante added that the four (4) personnel assigned to the Sulu CIDT had no capability to conduct any operation, since they were only assigned to investigate matters and to monitor the terrorism situation.[68] He denied that his office conducted any surveillance on Tagitis prior to the latters disappearance.[69] Col. Pante further testified that his investigation of Tagitis disappearance was unsuccessful; the investigation was still facing a blank wall on the whereabouts of Tagitis.[70] THE CA RULING On March 7, 2008, the CA issued its decision[71] confirming that the disappearance of Tagitis was an enforced disappearance under the United Nations (UN) Declaration on the

Razon vs. Tagitis

Protection of All Persons from Enforced Disappearances.[72] The CA ruled that when military intelligence pinpointed the investigative arm of the PNP (CIDG) to be involved in the abduction, the missing-person case qualified as an enforced disappearance. The conclusion that the CIDG was involved was based on the respondents testimony, corroborated by her companion, Mrs. Talbin. The CA noted that the information that the CIDG, as the police intelligence arm, was involved in Tagitis abduction came from no less than the military an independent agency of government. The CA thus greatly relied on the raw report from Col. Kasims asset, pointing to the CIDGs involvement in Tagitis abduction. The CA held that raw reports from an asset carried great weight in the intelligence world. It also labeled as suspect Col. Kasims subsequent and belated retraction of his statement that the military, the police, or the CIDG was involved in the abduction of Tagitis. The CA characterized as too farfetched and unbelievable and a bedlam of speculation police theories painting the disappearance as intentional on the part of Tagitis. He had no previous brushes with the law or any record of overstepping the bounds of any trust regarding money entrusted to him; no student of the IDB scholarship program ever came forward to complain that he or she did not get his or her stipend. The CA also found no basis for the police theory that Tagitis was trying to escape from the clutches of his second wife, on the basis of the respondents testimony that Tagitis was a Muslim who could have many wives under the Muslim faith, and that there was no issue at all when the latter divorced his first wife in order to marry the second. Finally, the CA also ruled out kidnapping for ransom by the Abu Sayyaf or by the ARMM paramilitary as the cause for Tagitis disappearance, since the respondent, the police and the military noted that there was no acknowledgement of Tagitis abduction or demand for payment of ransom the usual modus operandi of these terrorist groups. Based on these considerations, the CA thus extended the privilege of the writ to Tagitis and his family, and directed the CIDG Chief, Col. Jose Volpane Pante, PNP Chief Avelino I. Razon, TASK FORCE TAGITIS heads Gen. Joel Goltiao and Col. Ahiron Ajirim, and PACER Chief Sr. Supt. Leonardo A. Espina to exert extraordinary diligence and efforts to protect the life, liberty and security of Tagitis, with the obligation to provide monthly reports of their actions to the CA. At the same time, the CA dismissed the petition against the then respondents from the military, Lt. Gen Alexander Yano and Gen. Ruben Rafael, based on the finding that it was PNP-CIDG, not the military, that was involved. On March 31, 2008, the petitioners moved to reconsider the CA decision, but the CA denied the motion in its Resolution of April 9, 2008.[73] THE PETITION

Razon vs. Tagitis

In this Rule 45 appeal questioning the CAs March 7, 2008 decision, the petitioners mainly dispute the sufficiency in form and substance of the Amparopetition filed before the CA; the sufficiency of the legal remedies the respondent took before petitioning for the writ; the finding that the rights to life, liberty and security of Tagitis had been violated; the sufficiency of evidence supporting the conclusion that Tagitis was abducted; the conclusion that the CIDG Zamboanga was responsible for the abduction; and, generally, the ruling that the respondent discharged the burden of proving the allegations of the petition by substantial evidence.[74] THE COURTS RULING We do not find the petition meritorious. Sufficiency in Form and Substance In questioning the sufficiency in form and substance of the respondents Amparo petition, the petitioners contend that the petition violated Section 5(c), (d), and (e) of the Amparo Rule. Specifically, the petitioners allege that the respondent failed to: 1) allege any act or omission the petitioners committed in violation of Tagitis rights to life, liberty and security; 2) allege in a complete manner how Tagitis was abducted, the persons responsible for his disappearance, and the respondents source of information; 3) allege that the abduction was committed at the petitioners instructions or with their consent; 4) implead the members of CIDG regional office in Zamboanga alleged to have custody over her husband; 5) attach the affidavits of witnesses to support her accusations; 6) allege any action or inaction attributable to the petitioners in the performance of their duties in the investigation of Tagitis disappearance; and 7) specify what legally available efforts she took to determine the fate or whereabouts of her husband. A petition for the Writ of Amparo shall be signed and verified and shall allege, among others (in terms of the portions the petitioners cite):[75]

Razon vs. Tagitis (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

The framers of the Amparo Rule never intended Section 5(c) to be complete in every detail in stating the threatened or actual violation of a victims rights. As in any other initiatory pleading, the pleader must of course state the ultimate facts constituting the cause of action, omitting the evidentiary details.[76] In an Amparo petition, however, this requirement must be read in light of the nature and purpose of the proceeding, which addresses a situation of uncertainty; the petitioner may not be able to describe with certainty how the victim exactly disappeared, or who actually acted to kidnap, abduct or arrest him or her, or where the victim is detained, because these information may purposely be hidden or covered up by those who caused the disappearance. In this type of situation, to require the level of specificity, detail and precision that the petitioners apparently want to read into the Amparo Rule is to make this Rule atoken gesture of judicial concern for violations of the constitutional rights to life, liberty and security. To read the Rules of Court requirement on pleadings while addressing the unique Amparo situation, the test in reading the petition should be to determine whether it contains the details available to the petitioner under the circumstances, while presenting a cause of action showing a violation of the victims rights to life, liberty and security through State or private party action. The petition should likewise be read in its totality, rather than in terms of its isolated component parts, to determine if the required elements namely, of the disappearance, the State or private action, and the actual or threatened violations of the rights to life, liberty or security are present.

Razon vs. Tagitis

In the present case, the petition amply recites in its paragraphs 4 to 11 the circumstances under which Tagitis suddenly dropped out of sight after engaging in normal activities, and thereafter was nowhere to be found despite efforts to locate him. The petition alleged, too, under its paragraph 7, in relation to paragraphs 15 and 16, that according to reliable information, police operatives were the perpetrators of the abduction. It also clearly alleged how Tagitis rights to life, liberty and security were violated when he was forcibly taken and boa rded on a motor vehicle by a couple of burly men believed to be police intelligence operatives, and then taken into custody by the respondents police intelligence operatives since October 30, 2007, specifically by the CIDG, PNP Zamboanga City, x x x held against his will in an earnest attempt of the police to involve and connect [him] with different terrorist groups.[77] These allegations, in our view, properly pleaded ultimate facts within the pleaders knowledge about Tagitis disappearance, the participation by agents of the State in this disappearance, the failure of the State to release Tagitis or to provide sufficient information about his whereabouts, as well as the actual violation of his right to liberty. Thus, the petition cannot be faulted for any failure in its statement of a cause of action. If a defect can at all be attributed to the petition, this defect is its lack of supporting affidavit, as required by Section 5(c) of the Amparo Rule. Owing to the summary nature of the proceedings for the writ and to facilitate the resolution of the petition, the Amparo Rule incorporated the requirement for supporting affidavits, with the annotation that these can be used as the affiants direct testimony.[78] This requirement, however, should not be read as an absolute one that necessarily leads to the dismissal of the petition if not strictly followed. Where, as in this case, the petitioner has substantially complied with the requirement by submitting a verified petition sufficiently detailing the facts relied upon, the strict need for the sworn statement that an affidavit represents is essentially fulfilled. We note that the failure to attach the required affidavits was fully cured when the respondent and her witness (Mrs. Talbin) personally testified in the CA hearings held on January 7 and 17 and February 18, 2008 to swear to and flesh out the allegations of the petition. Thus, even on this point, the petition cannot be faulted. Section 5(d) of the Amparo Rule requires that prior investigation of an alleged disappearance must have been made, specifying the manner and results of the

Razon vs. Tagitis

investigation. Effectively, this requirement seeks to establish at the earliest opportunity the level of diligence the public authorities undertook in relation with the reported disappearance.[79] We reject the petitioners argument that the respondents petition did not comply with the Section 5(d) requirements of the Amparo Rule, as the petition specifies in its paragraph 11 that Kunnong and his companions immediately reported Tagitis disappearance to the police authorities in Jolo, Sulu as soon as they were relatively certain that he indeed had disappeared. The police, however, gave them the ready answer that Ta gitis could have been abducted by the Abu Sayyaf group or other anti-government groups. The respondent also alleged in paragraphs 17 and 18 of her petition that she filed a complaint with the PNP Police Station in Cotobato and in Jolo, but she was told of an intriguing tale by the police that her husband was having a good time with another woman. The disappearance was alleged to have been reported, too, to no less than the Governor of the ARMM, followed by the respondents personal inquiries that yielded the factual bases for her petition.[80] These allegations, to our mind, sufficiently specify that reports have been made to the police authorities, and that investigations should have followed. That the petition did not state the manner and results of the investigation that the Amparo Rule requires, but rather generally stated the inaction of the police, their failure to perform their duty to investigate, or at the very least, their reported failed efforts, should not be a reflection on the completeness of the petition. To require the respondent to elaborately specify the names, personal circumstances, and addresses of the investigating authority, as well the manner and conduct of the investigation is an overly strict interpretation of Section 5(d), given the respondents frustrations in securing an investigation with meaningful results. Under these circumstances, we are more than satisfied that the allegations of the petition on the investigations undertaken are sufficiently complete for purposes of bringing the petition forward. Section 5(e) is in the Amparo Rule to prevent the use of a petition that otherwise is not supported by sufficient allegations to constitute a proper cause of action as a means to fish for evidence.[81] The petitioners contend that the respondents petition did not specify what legally available efforts were taken by the respondent, and that there was an undue haste in the filing of the petition when, instead of cooperating with authorities, the respondent immediately invoked the Courts intervention.

Razon vs. Tagitis

We do not see the respondents petition as the petitioners view it. Section 5(e) merely requires that the Amparo petitioner (the respondent in the present case) allege the actions and recourses taken to determine the fate or whereabouts of the aggrieved party and the identity of the person responsible for the threat, act or omission. The following allegations of the respondents petition duly outlined the actions she had taken and the frustrations she encountered, thus compelling her to file her petition.
xxxx

7.

Soon after the student left the room, Engr. Tagitis went out of the pension house to take his early lunch but while out on the street, a couple of

burly men believed to be police intelligence operatives, forcibly took him and boarded the latter on a motor vehicle then sped away without the knowledge of his student, Arsimin Kunnong; xxxx 10. When Kunnong could not locate Engr. Tagitis, the former sought the help of another IDB scholar and reported the matter to the local police agency; Arsimin Kunnong, including his friends and companions in Jolo, exerted efforts in trying to locate the whereabouts of Engr. Tagitis and when he reported the matter to the police authorities in Jolo, he was immediately given a ready answer that Engr. Tagitis could [have been] abducted by the Abu Sayyaf group and other groups known to be fighting against the government; Being scared with these suggestions and insinuations of the police officers, Kunnong reported the matter to the [respondent](wife of Engr. Tagitis) by phone and other responsible officers and coordinators of the IDB Scholarship Programme in the Philippines who alerted the office of the Governor of ARMM who was then preparing to attend the OIC meeting in Jeddah, Saudi Arabia; 13. [The respondent], on the other hand, approached some of her co-employees with the Land Bank in Digos branch, Digos City, Davao del Sur, who likewise sought help from some of their friends in the military who could help them find/locate the whereabouts of her husband;

11.

12.

xxxx
15. According to reliable information received by the [respondent], subject Engr. Tagitis is in the custody of police intelligence operatives, specifically with the CIDG, PNP Zamboanga City, being held against his will in an earnest attempt of the police to involve and connect Engr. Tagitis with the different terrorist groups;

xxxx 17. [The respondent] filed her complaint with the PNP Police Station at the ARMM in Cotobato and in Jolo, as suggested by her friends, seeking their help to find her husband, but *the respondents+ request and pleadings failed to produce any positive results xxxx Lately, [respondent] was again advised by one of the [petitioners] to go to the ARMM Police Headquarters again in Cotobato City and also to the different Police Headquarters including the police headquarters in Davao City, in Zamboanga City, in Jolo, and in Camp Crame, Quezon City, and all these places have been visited by the [respondent] in search for her husband, which entailed expenses for her trips to these places thereby resorting her to borrowings and beggings [sic] for financial help from friends and relatives only to try complying to the different suggestions of these police officers, despite of which, her efforts produced no positive results up to the present time;

20.

xxxx 25. [The respondent] has exhausted all administrative avenues and remedies but to no avail, and under the circumstances, [respondent] has no other plain, speedy and adequate remedy to protect

Razon vs. Tagitis

and get the release of subject Engr. Morced Tagitis from the illegal clutches of [the petitioners], their intelligence operatives and the like which are in total violation of the subjects human and constitutional rights, except the issuance of a WRIT OF AMPARO.

Based on these considerations, we rule that the respondents petition for the Writ of Amparo is sufficient in form and substance and that the Court of Appeals had every reason to proceed with its consideration of the case.

The Desaparecidos The present case is one of first impression in the use and application of the Rule on the Writ of Amparo in an enforced disappearance situation. For a deeper appreciation of the application of this Rule to an enforced disappearance situation, a brief look at the historical context of the writ and enforced disappearances would be very helpful. The phenomenon of enforced disappearance arising from State action first attracted notice in Adolf Hitlers Nact und Nebel Erlass or Night and Fog Decree of December 7, 1941.[82] The Third Reichs Night and Fog Program, a State policy, was directed at persons in occupied territories endangering German security; they were transported secretly to Germany where they disappeared without a trace. In order to maximize the desired intimidating effect, the policy prohibited government officials from providing information about the fate of these targeted persons.[83] In the mid-1970s, the phenomenon of enforced disappearances resurfaced, shocking and outraging the world when individuals, numbering anywhere from 6,000 to 24,000, were reported to have disappeared during the military regime in Argentina. Enforced disappearances spread in Latin America, and the issue became an international concern when the world noted its widespread and systematic use by State security forces in that continent under Operation Condor[84] and during the Dirty War[85] in the 1970s and 1980s. The escalation of the practice saw political activists secretly arrested, tortured, and killed as part of governments counter -insurgency campaigns. As this form of political brutality became routine elsewhere in the continent, the Latin American media standardized the term disappearance to describe the phenomenon. The victims of

Razon vs. Tagitis

enforced disappearances were called the desaparecidos,[86] which literally means the disappeared ones.[87] In general, there are three different kinds of disappearance cases:
1) those of people arrested without witnesses or without positive identification of the arresting agents and are never found again; 2) those of prisoners who are usually arrested without an appropriate warrant and held in complete isolation for weeks or months while their families are unable to discover their whereabouts and the military authorities deny having them in custody until they eventually reappear in one detention center or another; and 3) those of victims of salvaging who have disappeared until their lifeless bodies are later discovered.[88]

In the Philippines, enforced disappearances generally fall within the first two categories,[89] and 855 cases were recorded during the period of martial law from 1972 until 1986. Of this number, 595 remained missing, 132 surfaced alive and 127 were found dead. During former President Corazon C. Aquinos term, 820 people were reported to have disappeared and of these, 612 cases were documented. Of this number, 407 remain missing, 108 surfaced alive and 97 were found dead. The number of enforced disappearances dropped during former President Fidel V. Ramos term when only 87 cases were reported, while the three -year term of former President Joseph E. Estrada yielded 58 reported cases. KARAPATAN, a local non-governmental organization, reports that as of March 31, 2008, the records show that there were a total of 193 victims of enforced disappearance under incumbent President Gloria M. Arroyos administration. The Commission on Human Rights records show a total of 636 verified cases of enforced disappearances from 1985 to 1993. Of this number, 406 remained missing, 92 surfaced alive, 62 were found dead, and 76 still have undetermined status. [90] Currently, the United Nations Working Group on Enforced or Involuntary Disappearance[91] reports 619 outstanding cases of enforced or involuntary disappearances covering the period December 1, 2007 to November 30, 2008.[92] Enforced Disappearances Under Philippine Law The Amparo Rule expressly provides that the writ shall cover extralegal killings and enforced disappearances or threats thereof.[93] We note that although the writ specifically covers enforced disappearances, this concept is neither defined nor penalized in this jurisdiction. The

Razon vs. Tagitis

records of the Supreme Court Committee on the Revision of Rules ( Committee) reveal that the drafters of the Amparo Rule initially considered providing an elemental definition of the concept of enforced disappearance:[94]
JUSTICE MARTINEZ: I believe that first and foremost we should come up or formulate a specific definition [for] extrajudicial killings and enforced disappearances. From that definition, then we can proceed to formulate the rules, definite rules concerning the same. CHIEF JUSTICE PUNO: As things stand, there is no law penalizing extrajudicial killings and enforced disappearances so initially also we have to [come up with] the nature of these extrajudicial killings and enforced disappearances [to be covered by the Rule] because our concept of killings and disappearances will define the jurisdiction of the courts . So well have to agree among ourselves about the nature of killings and disappearances for instance, in other jurisdictions, the rules only cover state actors. That is an element incorporated in their concept of extrajudicial killings and enforced disappearances. In other jurisdictions, the concept includes acts and omissions not only of state actors but also of non state actors. Well, more specifically in the case of the Philippines for instance, should these rules include the killings, the disappearances which may be authored by let us say, the NPAs or the leftist organizations and others. So, again we need to define the nature of the extrajudicial killings and enforced disappearances that will be covered by these rules. [Emphasis supplied] [95]

In the end, the Committee took cognizance of several bills filed in the House of Representatives[96] and in the Senate[97] on extrajudicial killings and enforced disappearances, and resolved to do away with a clear textual definition of these terms in the Rule. The Committee instead focused on the nature and scope of the concerns within its power to address and provided the appropriate remedy therefor, mindful that an elemental definition may intrude into the ongoing legislative efforts.[98] As the law now stands, extra-judicial killings and enforced disappearances in this jurisdiction are not crimes penalized separately from the component criminal acts undertaken to carry out these killings and enforced disappearances and are now penalized under the Revised Penal Code and special laws.[99] The simple reason is that the Legislature has not spoken on the matter; the determination of what acts are criminal and what the corresponding penalty these criminal acts should carry are matters of substantive law that only the Legislature has the power to enact under the countrys constitutional scheme and power structure. Even without the benefit of directly applicable substantive laws on extra-judicial killings and enforced disappearances, however, the Supreme Court is not powerless to act under its own constitutional mandate to promulgate rules concerning the protection and enforcement of

Razon vs. Tagitis

constitutional rights, pleading, practice and procedure in all courts, [100] since extrajudicial killings and enforced disappearances, by their nature and purpose, constitute State or private party violation of the constitutional rights of individuals to life, liberty and security. Although the Courts power is strictly procedural and as such does not diminish, increase or modify substantive rights, the legal protection that the Court can provide can be very meaningful through the procedures it sets in addressing extrajudicial killings and enforced disappearances. The Court, through its procedural rules, can set the procedural standards and thereby directly compel the public authorities to act on actual or threatened violations of constitutional rights. To state the obvious, judicial intervention can make a difference even if only procedurally in a situation when the very same investigating public authorities may have had a hand in the threatened or actual violations of constitutional rights. Lest this Court intervention be misunderstood, we clarify once again that we do not rule on any issue of criminal culpability for the extrajudicial killing or enforced disappearance. This is an issue that requires criminal action before our criminal courts based on our existing penal laws. Our intervention is in determining whether an enforced disappearance has taken place and who is responsible or accountable for this disappearance, and to define and impose the appropriate remedies to address it. The burden for the public authorities to discharge in these situations, under the Rule on the Writ of Amparo, is twofold. The first is to ensure that all efforts at disclosure and investigation are undertaken under pain of indirect contempt from this Court when governmental efforts are less than what the individual situations require. The second is to address the disappearance, so that the life of the victim is preserved and his or her liberty and security restored. In these senses, our orders and directives relative to the writ are continuing efforts that are not truly terminated until the extrajudicial killing or enforced disappearance is fully addressed by the complete determination of the fate and the whereabouts of the victim, by the production of the disappeared person and the restoration of his or her liberty and security, and, in the proper case, by the commencement of criminal action against the guilty parties.

Enforced Disappearance Under International Law From the International Law perspective, involuntary or enforced disappearance is considered a flagrant violation of human rights.[101] It does not only violate the right to life, liberty

Razon vs. Tagitis

and security of the desaparecido; it affects their families as well through the denial of their right to information regarding the circumstances of the disappeared family member. Thus, enforced disappearances have been said to be a double form of torture, with doubly paralyzing impact for the victims, as they are kept ignorant of their own fates, while family members are deprived of knowing the whereabouts of their detained loved ones and suffer as well the serious economic hardship and poverty that in most cases follow the disappearance of the household breadwinner.[102] The UN General Assembly first considered the issue of Disappeared Persons in December 1978 under Resolution 33/173. The Resolution expressed the General Assemblys deep concern arising from reports from various parts of the world relating to enforced or involuntary disappearances, and requested the UN Commission on Human Rights to consider the issue of enforced disappearances with a view to making appropriate recommendations.[103] In 1992, in response to the reality that the insidious practice of enforced disappearance had become a global phenomenon, the UN General Assembly adopted the Declaration on the Protection of All Persons from Enforced Disappearance (Declaration).[104] This Declaration, for the first time, provided in its third preambular clause a working description of enforced disappearance, as follows:
Deeply concerned that in many countries, often in a persistent manner, enforced disappearances occur, in the sense that persons are arrested, detained or abducted against their will or otherwise deprived of their liberty by officials of different branches or levels of Government, or by organized groups or private individuals acting on behalf of, or with the support, direct or indirect, consent or acquiescence of the Government, followed by a refusal to disclose the fate or whereabouts of the persons concerned or a refusal to acknowledge the deprivation of their liberty, which places such persons outside the protection of the law. [Emphasis supplied]

Fourteen years after (or on December 20, 2006), the UN General Assembly adopted the International Convention for the Protection of All Persons from Enforced Disappearance (Convention).[105] The Convention was opened for signature in Paris, France on February 6, 2007.[106] Article 2 of the Convention defined enforced disappearance as follows:
For the purposes of this Convention, enforced disappearance is considered to be the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State,

Razon vs. Tagitis

followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law. [Emphasis supplied]

The Convention is the first universal human rights instrument to assert that there is a right not to be subject to enforced disappearance[107] and that this right is non-derogable.[108] It provides that no one shall be subjected to enforced disappearance under any circumstances, be it a state of war, internal political instability, or any other public emergency. It obliges State Parties to codify enforced disappearance as an offense punishable with appropriate penalties under their criminal law.[109] It also recognizes the right of relatives of the disappeared persons and of the society as a whole to know the truth on the fate and whereabouts of the disappeared and on the progress and results of the investigation.[110] Lastly, it classifies enforced disappearance as a continuing offense, such that statutes of limitations shall not apply until the fate and whereabouts of the victim are established.[111]

Binding Effect of UN Action on the Philippines To date, the Philippines has neither signed nor ratified the Convention, so that the country is not yet committed to enact any law penalizing enforced disappearance as a crime. The absence of a specific penal law, however, is not a stumbling block for action from this Court, as heretofore mentioned; underlying every enforced disappearance is a violation of the constitutional rights to life, liberty and security that the Supreme Court is mandated by the Constitution to protect through its rule-making powers. Separately from the Constitution (but still pursuant to its terms), the Court is guided, in acting on Amparo cases, by the reality that the Philippines is a member of the UN, bound by its Charter and by the various conventions we signed and ratified, particularly the conventions touching on humans rights. Under the UN Charter, the Philippines pledged to promote universal respect for, and observance of, human rights and fundamental freedoms for all without distinctions as to race, sex, language or religion.[112] Although no universal agreement has been reached on the precise extent of the human rights and fundamental freedoms guaranteed to all by the Charter,[113] it was the UN itself that issued the Declaration on enforced disappearance, and this Declaration states:[114]
Any act of enforced disappearance is an offence to dignity. It is condemned as a denial of the purposes of the Charter of the United Nations and as a grave and flagrant violation of human

Razon vs. Tagitis

rights and fundamental freedoms proclaimed in the Universal Declaration of Human Rights and reaffirmed and developed in international instruments in this field. [Emphasis supplied]

As a matter of human right and fundamental freedom and as a policy matter made in a UN Declaration, the ban on enforced disappearance cannot but have its effects on the country, given our own adherence to generally accepted principles of international law as part of the law of the land.[115] In the recent case of Pharmaceutical and Health Care Association of the Philippines v. Duque III,[116] we held that:
Under the 1987 Constitution, international law can become part of the sphere of domestic law either by transformation or incorporation. The transformation method requires that an international law be transformed into a domestic law through a constitutional mechanism such as local legislation. The incorporation method applies when, by mere constitutional declaration, international law is deemed to have the force of domestic law. [Emphasis supplied]

We characterized generally accepted principles of international law as norms of general or customary international law that are binding on all states. We held further:[117]
[G]enerally accepted principles of international law, by virtue of the incorporation clause of the Constitution, form part of the laws of the land even if they do not derive from treaty obligations. The classical formulation in international law sees those customary rules accepted as binding result from the combination [of] two elements: the established, widespread, and consistent practice on the part of States; and a psychological element known as the opinion juris sive necessitates (opinion as to law or necessity). Implicit in the latter element is a belief that the practice in question is rendered obligatory by the existence of a rule of law requiring it. [Emphasis in the original]

The most widely accepted statement of sources of international law today is Article 38(1) of the Statute of the International Court of Justice, which provides that the Court shall apply international custom, as evidence of a general practice accepted as law.[118] The material sources of custom include State practice, State legislation, international and national judicial decisions, recitals in treaties and other international instruments, a pattern of treaties in the same form, the practice of international organs, and resolutions relating to legal questions in the UN General Assembly.[119] Sometimes referred to as evidence of international law,[120] these sources identify the substance and content of the obligations of States and are indicative of the State practice and opinio juris requirements of international law.[121] We note the following in these respects:

Razon vs. Tagitis

First, barely two years from the adoption of the Declaration, the Organization of American States (OAS) General Assembly adopted the Inter-American Convention on Enforced Disappearance of Persons in June 1994.[122] State parties undertook under this Convention not to practice, permit, or tolerate the forced disappearance of persons, even in states of emergency or suspension of individual guarantees.[123] One of the key provisions includes the States obligation to enact the crime of forced disappearance in their respective national criminal laws and to establish jurisdiction over such cases when the crime was committed within their jurisdiction, when the victim is a national of that State, and when the alleged criminal is within its territory and it does not proceed to extradite him, which can be interpreted as establishing universal jurisdiction among the parties to the Inter-American Convention.[124] At present, Colombia, Guatemala, Paraguay, Peru and Venezuela have enacted separate laws in accordance with the Inter-American Convention and have defined activities involving enforced disappearance to be criminal.[125] Second, in Europe, the European Convention on Human Rights has no explicit provision dealing with the protection against enforced disappearance. The European Court of Human Rights (ECHR), however, has applied the Convention in a way that provides ample protection for the underlying rights affected by enforced disappearance through the Conventions Article 2 on the right to life; Article 3 on the prohibition of torture; Article 5 on the right to liberty and security; Article 6, paragraph 1 on the right to a fair trial; and Article 13 on the right to an effective remedy. A leading example demonstrating the protection afforded by the European Convention is Kurt v. Turkey,[126] where the ECHR found a violation of the right to liberty and security of the disappeared person when the applicants son disappeared after being taken into custody by Turkis h forces in the Kurdish village of Agilli in November 1993. It further found the applicant (the disappeared persons mother) to be a victim of a violation of Article 3, as a result of the silence of the authorities and the inadequate character of the investigations undertaken. The ECHR also saw the lack of any meaningful investigation by the State as a violation of Article 13.[127]

Third, in the United States, the status of the prohibition on enforced disappearance as part of customary international law is recognized in the most recent edition of Restatement of the Law: The Third,[128] which provides that [a] State violates international law if, as a matter of State policy, it practices, encourages, or condones (3) the murder or causing the disappearance of

Razon vs. Tagitis

individuals.[129] We significantly note that in a related matter that finds close identification with enforced disappearance the matter of torture the United States Court of Appeals for the Second Circuit Court held in Filartiga v. Pena-Irala[130] that the prohibition on torture had attained the status of customary international law. The court further elaborated on the significance of UN declarations, as follows:
These U.N. declarations are significant because they specify with great precision the obligations of member nations under the Charter. Since their adoption, "(m)embers can no longer contend that they do not know what human rights they promised in the Charter to promote. Moreover, a U.N. Declaration is, according to one authoritative definition, "a formal and solemn instrument, suitable for rare occasions when principles of great and lasting importance are being enunciated. Accordingly, it has been observed that the Universal Declaration of Human Rights "no longer fits into the dichotomy of binding treaty against non-binding pronouncement,' but is rather an authoritative statement of the international community." Thus, a Declaration creates an expectation of adherence, and "insofar as the expectation is gradually justified by State practice, a declaration may by custom become recognized as laying down rules binding upon the States." Indeed, several commentators have concluded that the Universal Declaration has become, in toto, a part of binding, customary international law. [Citations omitted]

Fourth, in interpreting Article 2 (right to an effective domestic remedy) of the International Convention on Civil and Political Rights (ICCPR), to which the Philippines is both a signatory and a State Party, the UN Human Rights Committee, under the Office of the High Commissioner for Human Rights, has stated that the act of enforced disappearance violates Articles 6 (right to life), 7 (prohibition on torture, cruel, inhuman or degrading treatment or punishment) and 9 (right to liberty and security of the person) of the ICCPR, and the act may also amount to a crime against humanity.[131] Fifth, Article 7, paragraph 1 of the 1998 Rome Statute establishing the International Criminal Court (ICC) also covers enforced disappearances insofar as they are defined as crimes against humanity,[132] i.e., crimes committed as part of a widespread or systematic attack against any civilian population, with knowledge of the attack. While more than 100 countries have ratified the Rome Statute,[133] the Philippines is still merely a signatory and has not yet ratified it. We note that Article 7(1) of the Rome Statute has been incorporated in the statutes of other international and hybrid tribunals, including Sierra Leone Special Court, the Special Panels for Serious Crimes in Timor-Leste, and the Extraordinary Chambers in the Courts of Cambodia.[134] In addition, the implementing legislation of State Parties to the Rome Statute of the ICC has given rise to a number of national criminal provisions also covering enforced disappearance.[135]

Razon vs. Tagitis

While the Philippines is not yet formally bound by the terms of the Convention on enforced disappearance (or by the specific terms of the Rome Statute) and has not formally declared enforced disappearance as a specific crime, the above recital shows that enforced disappearance as a State practice has been repudiated by the international community, so that the ban on it is now a generally accepted principle of international law, which we should consider a part of the law of the land, and which we should act upon to the extent already allowed under our laws and the international conventions that bind us. The following civil or political rights under the Universal Declaration of Human Rights, the ICCPR and the International Convention on Economic, Social and Cultural Rights (ICESR) may be infringed in the course of a disappearance:[136]

1) the right to recognition as a person before the law; 2) the right to liberty and security of the person; 3) the right not to be subjected to torture and other cruel, inhuman or degrading treatment or punishment; 4) the right to life, when the disappeared person is killed; 5) the right to an identity; 6) the right to a fair trial and to judicial guarantees; 7) the right to an effective remedy, including reparation and compensation; 8) the right to know the truth regarding the circumstances of a disappearance. 9) the right to protection and assistance to the family; 10) the right to an adequate standard of living; 11) the right to health; and 12) the right to education [Emphasis supplied]

Article 2 of the ICCPR, which binds the Philippines as a state party, provides:
Article 2 3. Each State Party to the present Covenant undertakes:

Razon vs. Tagitis (a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; (b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities , or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy; (c) To ensure that the competent authorities shall enforce such remedies when granted. [Emphasis supplied]

In General Comment No. 31, the UN Human Rights Committee opined that the right to an effective remedy under Article 2 of the ICCPR includes the obligation of the State to investigate ICCPR violations promptly, thoroughly, and effectively, viz:[137]

15. Article 2, paragraph 3, requires that in addition to effective protection of Covenant rights, States Parties must ensure that individuals also have accessible and effective remedies to vindicate those rights The Committee attaches importance to States Parties' establishing appropriate judicial and administrative mechanisms for addressing claims of rights violations under domestic law Administrative mechanisms are particularly required to give effect to the general obligation to investigate allegations of violations promptly, thoroughly and effectively through independent and impartial bodies. A failure by a State Party to investigate allegations of violations could in and of itself give rise to a separate breach of the Covenant. Cessation of an ongoing violation is an essential element of the right to an effective remedy. [Emphasis supplied]

The UN Human Rights Committee further stated in the same General Comment No. 31 that failure to investigate as well as failure to bring to justice the perpetrators of ICCPR violations could in and of itself give rise to a separate breach of the Covenant, thus:[138]

18. Where the investigations referred to in paragraph 15 reveal violations of certain Covenant rights, States Parties must ensure that those responsible are brought to justice.As with failure to investigate, failure to bring to justice perpetrators of such violations could in and of itself give rise to a separate breach of the Covenant. These obligations arise notably in respect of those violations recognized as criminal under either domestic or international law, such as torture and similar cruel, inhuman and degrading treatment (article 7), summary and arbitrary killing (article 6) and enforced disappearance (articles 7 and 9 and, frequently, 6). Indeed, the problem of impunity for these violations, a matter of sustained concern by the Committee, may well be an important contributing element in the recurrence of the violations. When committed as part of a widespread or systematic attack on a civilian population, these violations of the

Razon vs. Tagitis Covenant are crimes against humanity (see Rome Statute of the International Criminal Court, article 7). [Emphasis supplied]

In Secretary of National Defense v. Manalo,[139] this Court, in ruling that the right to security of persons is a guarantee of the protection of ones right by the government, held that:

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 . The Inter-American Court of Human Rights stressed the importance of investigation in the Velasquez Rodriguez Case, viz: (The duty to investigate) must be undertaken in a serious manner and not as a mere formality preordained to be ineffective. An investigation must have an objective and be assumed by the State as its own legal duty, not as a step taken by private interests that depends upon the initiative of the victim or his family or upon their offer of proof, without an effective search for the truth by the government. [Emphasis supplied]

Manalo significantly cited Kurt v. Turkey,[140] where the ECHR interpreted the right to security not only as a prohibition on the State against arbitrary deprivation of liberty, but also as the imposition of a positive duty to afford protection to the right to liberty. The Court notably quoted the following ECHR ruling:
[A]ny deprivation of liberty must not only have been effected in conformity with the substantive and procedural rules of national law but must equally be in keeping with the very purpose of Article 5, namely to protect the individual from arbitrariness... Having assumed control over that individual, it is incumbent on the authorities to account for his or her whereabouts. For this reason, Article 5 must be seen as requiring the authorities to take effective measures to safeguard against the risk of disappearance and to conduct a prompt effective investigation into an arguable claim that a person has been taken into custody and has not been seen since. [Emphasis supplied]

These rulings effectively serve as the backdrop for the Rule on the Writ of Amparo, which the Court made effective on October 24, 2007. Although theAmparo Rule still has gaps waiting to be filled through substantive law, as evidenced primarily by the lack of a concrete definition of

Razon vs. Tagitis

enforced disappearance, the materials cited above, among others, provide ample guidance and standards on how, through the medium of the Amparo Rule, the Court can provide remedies and protect the constitutional rights to life, liberty and security that underlie every enforced disappearance. Evidentiary Difficulties Posed by the Unique Nature of an Enforced Disappearance Before going into the issue of whether the respondent has discharged the burden of proving the allegations of the petition for the Writ of Amparo by the degree of proof required by the Amparo Rule, we shall discuss briefly the unique evidentiary difficulties presented by enforced disappearance cases; these difficulties form part of the setting that the implementation of the Amparo Rule shall encounter. These difficulties largely arise because the State itself the party whose involvement is alleged investigates enforced disappearances. Past experiences in other jurisdictions show that the evidentiary difficulties are generally threefold. First, there may be a deliberate concealment of the identities of the direct perpetrators.[141] Experts note that abductors are well organized, armed and usually members of the military or police forces, thus:
The victim is generally arrested by the security forces or by persons acting under some form of governmental authority. In many countries the units that plan, implement and execute the program are generally specialized, highly-secret bodies within the armed or security forces. They are generally directed through a separate, clandestine chain of command, but they have the necessary credentials to avoid or prevent any interference by the "legal" police forces. These authorities take their victims to secret detention centers where they subject them to interrogation and torture without fear of judicial or other controls.[142]

In addition, there are usually no witnesses to the crime; if there are, these witnesses are usually afraid to speak out publicly or to testify on the disappearance out of fear for their own lives.[143] We have had occasion to note this difficulty in Secretary of Defense v. Manalo[144] when

Razon vs. Tagitis

we acknowledged that where powerful military officers are implicated, the hesitation of witnesses to surface and testify against them comes as no surprise. Second, deliberate concealment of pertinent evidence of the disappearance is a distinct possibility; the central piece of evidence in an enforced disappearance i.e., the corpus delicti or the victims body is usually concealed to effectively thwart the start of any investigation or the progress of one that may have begun.[145] The problem for the victims family is the States virtual monopoly of access to pertinent evidence. The Inter-American Court of Human Rights (IACHR) observed in the landmark case of Velasquez Rodriguez[146] that inherent to the practice of enforced disappearance is the deliberate use of the States power to destroy the pertinent evidence. The IACHR described the concealment as a clear attempt by the State to commit the perfect crime.[147]

Third is the element of denial; in many cases, the State authorities deliberately deny that the enforced disappearance ever occurred.[148] Deniability is central to the policy of enforced disappearances, as the absence of any proven disappearance makes it easier to escape the application of legal standards ensuring the victims human rights.[149] Experience shows that government officials typically respond to requests for information about desaparecidos by saying that they are not aware of any disappearance, that the missing people may have fled the country, or that their names have merely been invented.[150] These considerations are alive in our minds, as these are the difficulties we confront, in one form or another, in our consideration of this case. Evidence and Burden of Proof in Enforced Disappearances Cases Sections 13, 17 and 18 of the Amparo Rule define the nature of an Amparo proceeding and the degree and burden of proof the parties to the case carry, as follows:
Section 13. Summary Hearing. The hearing on the petition shall be summary. However, the court, justice or judge may call for a preliminary conference to simplify the issues and determine the possibility of obtaining stipulations and admissions from the parties. xxxx Section 17. Burden of Proof and Standard of Diligence Required. The parties shall establish their claims by substantial evidence.

Razon vs. Tagitis The respondent who is a private individual must prove that ordinary diligence as required by applicable laws, rules and regulations was observed in the performance of duty. The respondent who is a public official or employee must prove that extraordinary diligence as required by applicable laws, rules and regulations was observed in the performance of duty. The respondent public official or employee cannot invoke the presumption that official duty has been regularly performed or evade responsibility or liability. Section 18. Judgment. If the allegations in the petition are proven by substantial evidence, the court shall grant the privilege of the writ and such reliefs as may be proper and appropriate; otherwise, the privilege shall be denied. [Emphasis supplied]

These characteristics namely, of being summary and the use of substantial evidence as the required level of proof (in contrast to the usual preponderance of evidence or proof beyond reasonable doubt in court proceedings) reveal the clear intent of the framers of the Amparo Rule to have the equivalent of an administrative proceeding, albeit judicially conducted, in addressing Amparo situations. The standard of diligence required the duty of public officials and employees to observe extraordinary diligence point, too, to the extraordinary measures expected in the protection of constitutional rights and in the consequent handling and investigation of extrajudicial killings and enforced disappearance cases. Thus, in these proceedings, the Amparo petitioner needs only to properly comply with the substance and form requirements of a Writ of Amparopetition, as discussed above, and prove the allegations by substantial evidence. Once a rebuttable case has been proven, the respondents must then respond and prove their defenses based on the standard of diligence required. The rebuttable case, of course, must show that an enforced disappearance took place under circumstances showing a violation of the victims constitutional rights to life, liberty or security, and the failure on the part of the investigating authorities to appropriately respond. The landmark case of Ang Tibay v. Court of Industrial Relations[151] provided the Court its first opportunity to define the substantial evidence required to arrive at a valid decision in administrative proceedings. To directly quote Ang Tibay:
Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion . [citations omitted] The statute provides that the rules of evidence prevailing in courts of law and equity shall not be controlling. The obvious purpose of this and similar provisions is to free administrative boards

Razon vs. Tagitis

from the compulsion of technical rules so that the mere admission of matter which would be deemed incompetent in judicial proceedings would not invalidate the administrative order. [citations omitted] But this assurance of a desirable flexibility in administrative procedure does not go so far as to justify orders without a basis in evidence having rational probative force. [Emphasis supplied]

In Secretary of Defense v. Manalo,[152] which was the Courts first petition for a Writ of Amparo, we recognized that the full and exhaustive proceedings that the substantial evidence standard regularly requires do not need to apply due to the summary nature of Amparo proceedings. We said:
The remedy [of the writ of amparo] provides rapid judicial relief as it partakes of a summary proceeding that requires only substantial evidence to make the appropriate reliefs available to the petitioner; it is not an action to determine criminal guilt requiring proof beyond reasonable doubt, or liability for damages requiring preponderance of evidence,or administrative responsibility requiring substantial evidence that will require full and exhaustive proceedings. [Emphasis supplied]

Not to be forgotten in considering the evidentiary aspects of Amparo petitions are the unique difficulties presented by the nature of enforced disappearances, heretofore discussed, which difficulties this Court must frontally meet if the Amparo Rule is to be given a chance to achieve its objectives. These evidentiary difficulties compel the Court to adopt standards appropriate and responsive to the circumstances, without transgressing the due process requirements that underlie every proceeding. In the seminal case of Velasquez Rodriguez,[153] the IACHR faced with a lack of direct evidence that the government of Honduras was involved in Velasquez Rodriguez disappearance adopted a relaxed and informal evidentiary standard, and established the rule that presumes governmental responsibility for a disappearance if it can be proven that the government carries out a general practice of enforced disappearances and the specific case can be linked to that practice.[154] The IACHR took note of the realistic fact that enforced disappearances could be proven only through circumstantial or indirect evidence or by logical inference; otherwise, it was impossible to prove that an individual had been made to disappear. It held:
130. The practice of international and domestic courts shows that direct evidence, whether testimonial or documentary, is not the only type of evidence that may be legitimately considered in reaching a decision. Circumstantial evidence, indicia, and presumptions may be considered, so long as they lead to conclusions consistent with the facts.

Razon vs. Tagitis 131. Circumstantial or presumptive evidence is especially important in allegations of disappearances, because this type of repression is characterized by an attempt to suppress all information about the kidnapping or the whereabouts and fate of the victim. [Emphasis supplied]

In concluding that the disappearance of Manfredo Velsquez (Manfredo) was carried out by agents who acted under cover of public authority, the IACHR relied on circumstantial evidence including the hearsay testimony of Zenaida Velsquez, the victims sister, who described Manfredoskidnapping on the basis of conversations she had with witnesses who saw Manfredo kidnapped by men in civilian clothes in broad daylight. She also told the Court that a former Honduran military official had announced that Manfredo was kidnapped by a special military squadron acting under orders of the Chief of the Armed Forces.[155] The IACHR likewise considered the hearsay testimony of a second witness who asserted that he had been told by a Honduran military officer about the disappearance, and a third witness who testified that he had spoken in prison to a man who identified himself as Manfredo.[156]

Velasquez stresses the lesson that flexibility is necessary under the unique circumstances that enforced disappearance cases pose to the courts; to have an effective remedy, the standard of evidence must be responsive to the evidentiary difficulties faced. On the one hand, we cannot be arbitrary in the admission and appreciation of evidence, as arbitrariness entails violation of rights and cannot be used as an effective counter-measure; we only compound the problem if a wrong is addressed by the commission of another wrong. On the other hand, we cannot be very strict in our evidentiary rules and cannot consider evidence the way we do in the usual criminal and civil cases; precisely, the proceedings before us are administrative in nature where, as a rule, technical rules of evidence are not strictly observed. Thus, while we must follow the substantial evidence rule, we must observe flexibility in considering the evidence we shall take into account.

The fair and proper rule, to our mind, is to consider all the pieces of evidence adduced in their totality, and to consider any evidence otherwise inadmissible under our usual rules to be admissible if it is consistent with the admissible evidence adduced. In other words, we reduce our rules to the most basic test of reason i.e., to the relevance of the evidence to the issue at hand and its consistency with all other pieces of adduced evidence. Thus, even hearsay evidence can be admitted if it satisfies this basic minimum test.

Razon vs. Tagitis

We note in this regard that the use of flexibility in the consideration of evidence is not at all novel in the Philippine legal system. In child abuse cases, Section 28 of the Rule on Examination of a Child Witness[157] is expressly recognized as an exception to the hearsay rule. This Rule allows the admission of the hearsay testimony of a child describing any act or attempted act of sexual abuse in any criminal or non-criminal proceeding, subject to certain prerequisites and the right of cross-examination by the adverse party. The admission of the statement is determined by the court in light of specified subjective and objective considerations that provide sufficient indicia of reliability of the child witness.[158] These requisites for admission find their counterpart in the present case under the above-described conditions for the exercise of flexibility in the consideration of evidence, including hearsay evidence, in extrajudicial killings and enforced disappearance cases. Assessment of the Evidence The threshold question for our resolution is: was there an enforced disappearance within the meaning of this term under the UN Declaration we have cited? The Convention defines enforced disappearance as the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law. [159] Under this definition, the elements that constitute enforced disappearance are essentially fourfold:[160]
(a) arrest, detention, abduction or any form of deprivation of liberty; (b) carried out by agents of the State or persons or groups of persons acting with the authorization, support or acquiescence of the State; (c) followed by a refusal to acknowledge the detention, or a concealment of the fate of the disappeared person; and (d) placement of the disappeared person outside the protection of the law. [Emphasis supplied]

We find no direct evidence indicating how the victim actually disappeared. The direct evidence at hand only shows that Tagitis went out of the ASY Pension House after depositing his room key with the hotel desk and was never seen nor heard of again. The undisputed conclusion,

Razon vs. Tagitis

however, from all concerned the petitioner, Tagitis colleagues and even the police authorities is that Tagistis disappeared under mysterious circumstances and was never seen again. The respondent injected the causal element in her petition and testimony, as we shall discuss below. We likewise find no direct evidence showing that operatives of PNP CIDG Zamboanga abducted or arrested Tagitis. If at all, only the respondents allegation that Tagistis was under CIDG Zamboanga custody stands on record, but it is not supported by any other evidence, direct or circumstantial. In her direct testimony, the respondent pointed to two sources of information as her bases for her allegation that Tagistis had been placed under government custody (in contrast with CIDG Zamboanga custody). The first was an unnamed friend in Zamboanga (later identified as Col. Ancanan), who occupied a high position in the military and who allegedly mentioned that Tagitis was in good hands. Nothing came out of this claim, as both the respondent herself and her witness, Mrs. Talbin, failed to establish that Col. Ancanan gave them any information that Tagitis was in government custody. Col. Ancanan, for his part, admitted the meeting with the respondent but denied giving her any information about the disappearance. The more specific and productive source of information was Col. Kasim, whom the respondent, together with her witness Mrs. Talbin, met in Camp Katitipan in Davao City. To quote the relevant portions of the respondents testimony:
Q: Were you able to speak to other military officials regarding the whereabouts of your husband particularly those in charge of any records or investigation?

A:

I went to Camp Katitipan in Davao City. Then one military officer, Col. Casim, told me that my husband is being abducted [sic] because he is under custodial investigation because he is allegedly parang liason ng J.I., sir.

Q:

What is J.I.?

A:

Jemaah Islamiah, sir.

Razon vs. Tagitis

Q:

Was there any information that was read to you during one of those visits of yours in that Camp?

A:

Col. Casim did not furnish me a copy of his report because he said those reports are highly confidential, sir.

Q:

Was it read to you then even though you were not furnished a copy?

A:

Yes, sir. In front of us, my friends.

Q:

And what was the content of that highly confidential report?

A:

Those alleged activities of Engineer Tagitis, sir.[161] [Emphasis supplied]

She confirmed this testimony in her cross-examination:

Q: You also mentioned that you went to Camp Katitipan in Davao City?

A:

Yes, maam.

Q:

And a certain Col. Kasim told you that your husband was abducted and under custodial investigation?

A:

Yes, maam.

Q:

And you mentioned that he showed you a report?

A:

Yes, maam.

Razon vs. Tagitis Q: Were you able to read the contents of that report?

A:

He did not furnish me a copy of those [sic] report because those [sic] were highly confidential. That is a military report, maam.

Q:

But you were able to read the contents?

A:

No. But he read it in front of us, my friends, maam.

Q:

How many were you when you went to see Col. Kasim?

A:

There were three of us, maam.

Q:

Who were your companions?

A:

Mrs. Talbin, tapos yung dalawang friends nya from Mati City, Davao Oriental, maam.[162]

xxxx

Q:

When you were told that your husband is in good hands, what was your reaction and what did you do?

A:

May binasa kasi sya that my husband has a parang meeting with other people na parang mga terorista na mga tao. Tapos at the end of the report is [sic] under custodial investigation. So I told him Colonel, my husband is sick. He is diabetic at nagmemaintain yun ng gamot. Pakisabi lang sa naghohold sa asawa ko na bigyan siya ng gamot, maam.[163]

xxxx

Razon vs. Tagitis Q: You mentioned that you received information that Engineer Tagitis is being held by the CIDG in Zamboanga, did you go to CIDG Zamboanga to verify that information?

A:

I did not go to CIDG Zamboanga. I went to Camp Karingal instead. Enough na yun na effort ko because I know that they would deny it, maam.[164]

On February 11, 2008, the respondent presented Mrs. Talbin to corroborate her testimony that her husband was abducted and held under custodial investigation by the PNP-CIDG Zamboanga City, viz:

Q:

You said that you went to Camp Katitipan in Davao City sometime November 24, 2007, who was with you when you went there?

A:

Mary Jean Tagitis, sir.

Q:

Only the two of you?

A:

No. We have some other companions. We were four at that time, sir.

Q:

Who were they?

A:

Salvacion Serrano, Mini Leong, Mrs. Tagitis and me, sir.

Q: A:

Were you able to talk, see some other officials at Camp Katitipan during that time? Col. Kasim (PS Supt. Julasirim Ahadin Kasim) only, sir.

Q:

Were you able to talk to him?

Razon vs. Tagitis A: Yes, sir.

Q:

The four of you?

A:

Yes, sir.

Q:

What information did you get from Col. Kasim during that time?

A:

The first time we met with [him] I asked him if he knew of the exact location, if he can furnish us the location of Engr. Tagitis. And he was reading this report. He told us that Engr. Tagitis is in good hands. He is with the military, but he is not certain whether he is with the AFP or PNP. He has this serious case. He was charged of terrorism because he was under surveillance from January 2007 up to the time that he was abducted. He told us that he was under custodial investigation. As Ive said earlier, he was seen under surveillance from January. He was seen talking to Omar Patik, a certain Santos of Bulacan who is also a Balik Islam and charged with terrorism. He was seen carrying boxes of medicines. Then we asked him how long will he be in custodial investigation. He said until we can get some information. But he also told us that he cannot give us that report because it was a raw report. It was not official, sir.

Q:

You said that he was reading a report, was that report in document form, in a piece of paper or was it in the computer or what?

A:

As far as I can see it, sir, it is written in white bond paper. I dont know if it was computerized but Im certain that it was typewritten. Im not sure if it used computer, fax or what, sir.

Q:

When he was reading it to you, was he reading it line by line or he was reading in a summary form?

A:

Sometimes he was glancing to the report and talking to us, sir.[165]

xxxx Q: Were you informed as to the place where he was being kept during that time?

Razon vs. Tagitis A: He did not tell us where he [Tagitis] was being kept. But he mentioned this Talipapao, Sulu, sir.

Q:

After that incident, what did you do if any?

A:

We just left and as Ive mentioned, we just waited because that raw information that he was reading to us [sic] after the custodial investigation, Engineer Tagitis will be released. [Emphasis supplied][166]

Col. Kasim never denied that he met with the respondent and her friends, and that he provided them information based on the input of an unnamed asset. He simply claimed in his testimony that the informal letter he received from his informant in Sulu did not indicate that Tagitis was in the custody of the CIDG. He also stressed that the information he provided the respondent was merely a raw report from barangay intelligence that still needed confirmation and follow up as to its veracity.[167] To be sure, the respondents and Mrs. Talbins testimonies were far from perfect, as the petitioners pointed out. The respondent mistakenly characterized Col. Kasim as a military officer who told her that her husband is being abducted because he is under custodial investigation because he is allegedly parang liason ng J.I. The petitioners also noted that Mrs. Talbins testimony imputing certain statements to Sr. Supt. Kasim that Engr. Tagitis is with the military, but he is not certain whether it is the PNP or AFP is not worthy of belief, since Sr. Supt. Kasim is a high ranking police officer who would certainly know that the PNP is not part of the military. Upon deeper consideration of these inconsistencies, however, what appears clear to us is that the petitioners never really steadfastly disputed or presented evidence to refute the credibility of the respondent and her witness, Mrs. Talbin. The inconsistencies the petitioners point out relate, more than anything else, to details that should not affect the credibility of the respondent and Mrs. Talbin; the inconsistencies are not on material points.[168] We note, for example, that these witnesses are lay people in so far as military and police matters are concerned, and confusion between the police and the military is not unusual. As a rule, minor inconsistencies such as these indicate truthfulness rather than prevarication[169]and only tend to strengthen their probative value, in contrast to testimonies from various witnesses dovetailing on every detail; the latter cannot but

Razon vs. Tagitis

generate suspicion that the material circumstances they testified to were integral parts of a well thought of and prefabricated story.[170] Based on these considerations and the unique evidentiary situation in enforced disappearance cases, we hold it duly established that Col. Kasim informed the respondent and her friends, based on the informants letter, that Tagitis, reputedly a liaison for the JI and who had been under surveillance since January 2007, was in good hands and under custodial investigation for complicity with the JI after he was seen talking to one Omar Patik and a certain Santos of Bulacan, a Balik Islam charged with terrorism. The respondents and Mrs. Talbins testimonies cannot simply be defeated by Col. Kasims plain denial and his claim that he had destroyed his informants letter, the critical piece of evidence that supports or negates the parties conflicting claims. Col. Kasims admitted destruction of this letter effectively, a suppression of this evidence raises the presumption that the letter, if produced, would be proof of what the respondent claimed.[171] For brevity, we shall call the evidence of what Col. Kasim reported to the respondent to be the Kasim evidence. Given this evidence, our next step is to decide whether we can accept this evidence, in lieu of direct evidence, as proof that the disappearance of Tagitis was due to action with government participation, knowledge or consent and that he was held for custodial investigation . We note in this regard that Col. Kasim was never quoted to have said that the custodial investigation was by the CIDG Zamboanga. The Kasim evidence only implies government intervention through the use of the term custodial investigation, and does not at all point to CIDG Zamboanga as Tagitis custodian. Strictly speaking, we are faced here with a classic case of hearsay evidence i.e., evidence whose probative value is not based on the personal knowledge of the witnesses (the respondent, Mrs. Talbin and Col. Kasim himself) but on the knowledge of some other person not on the witness stand (the informant).[172] To say that this piece of evidence is incompetent and inadmissible evidence of what it substantively states is to acknowledge as the petitioners effectively suggest that in the absence of any direct evidence, we should simply dismiss the petition. To our mind, an immediate dismissal for this reason is no different from a statement that the Amparo Rule despite its terms

Razon vs. Tagitis

is ineffective, as it cannot allow for the special evidentiary difficulties that are unavoidably present in Amparo situations, particularly in extrajudicial killings and enforced disappearances. The Amparo Rule was not promulgated with this intent or with the intent to make it a token gesture of concern for constitutional rights. It was promulgated to provide effective and timely remedies, using and profiting from local and international experiences in extrajudicial killings and enforced disappearances, as the situation may require. Consequently, we have no choice but to meet the evidentiary difficulties inherent in enforced disappearances with the flexibility that these difficulties demand. To give full meaning to our Constitution and the rights it protects, we hold that, as in Velasquez, we should at least take a close look at the available evidence to determine the correct import of every piece of evidence even of those usually considered inadmissible under the general rules of evidence taking into account the surrounding circumstances and the test of reason that we can use as basic minimum admissibility requirement. In the present case, we should at least determine whether the Kasim evidence before us is relevant and meaningful to the disappearance of Tagistis and reasonably consistent with other evidence in the case. The evidence about Tagitis personal circumstances surrounded him with an air of mystery. He was reputedly a consultant of the World Bank and a Senior Honorary Counselor for the IDB who attended a seminar in Zamboanga and thereafter proceded to Jolo for an overnight stay, indicated by his request to Kunnong for the purchase of a return ticket to Zamboanga the day after he arrived in Jolo. Nothing in the records indicates the purpose of his overnight sojourn in Jolo. A colleague in the IDB, Prof. Matli, early on informed the Jolo police that Tagitis may have taken funds given to him in trust for IDB scholars. Prof Matli later on stated that he never accused Tagitis of taking away money held in trust, although he confirmed that the IDB was seeking assistance in locating funds of IDB scholars deposited in Tagitis personal account. Other than these pieces of evidence, no other information exists in the records relating to the personal circumstances of Tagitis. The actual disappearance of Tagitis is as murky as his personal circumstances. While the Amparo petition recited that he was taken away by burly men believed to be police intelligence operatives, no evidence whatsoever was introduced to support this allegation. Thus,

Razon vs. Tagitis

the available direct evidence is that Tagitis was last seen at 12.30 p.m. of October 30, 2007 the day he arrived in Jolo and was never seen again. The Kasim evidence assumes critical materiality given the dearth of direct evidence on the above aspects of the case, as it supplies the gaps that were never looked into and clarified by police investigation. It is the evidence, too, that colors a simple missing person report into an enforced disappearance case, as it injects the element of participation by agents of the State and thus brings into question how the State reacted to the disappearance. Denials on the part of the police authorities, and frustration on the part of the respondent, characterize the attempts to locate Tagitis. Initially in Jolo, the police informed Kunnong that Tagitis could have been taken by the Abu Sayyaf or other groups fighting the government. No evidence was ever offered on whether there was active Jolo police investigation and how and why the Jolo police arrived at this conclusion. The respondents own inquiry in Jolo yielded the answer that he was not missing but was with another woman somewhere. Again, no evidence exists that this explanation was arrived at based on an investigation. As already related above, the inquiry with Col. Ancanan in Zamboanga yielded ambivalent results not useful for evidentiary purposes. Thus, it was only the inquiry from Col. Kasim that yielded positive results. Col. Kasims story, however, confirmed only the fact of his custodial investigation (and, impliedly, his arrest or abduction), without identifying his abductor/s or the party holding him in custody. The more significant part of Col. Kasims story is that the abduction came after Tagitis was seen talking with Omar Patik and a certain Santos of Bulacan, a Balik Islam charged with terrorism. Mrs. Talbin mentioned, too, that Tagitis was being held at Talipapao, Sulu. None of the police agencies participating in the investigation ever pursued these leads. Notably, TASK FORCE TAGITIS to which this information was relayed did not appear to have lifted a finger to pursue these aspects of the case. More denials were manifested in the Returns on the writ to the CA made by the petitioners. Then PNP Chief Gen. Avelino I. Razon merely reported the directives he sent to the ARMM Regional Director and the Regional Chief of the CIDG on Tagitis, and these reports merely reiterated the open-ended initial report of the disappearance. The CIDG directed a search in all of its divisions with negative results. These, to the PNP Chief, constituted the exhaustion of all possible efforts. PNP-CIDG Chief General Edgardo M. Doromal, for his part, also reported

Razon vs. Tagitis

negative results after searching all divisions and departments [of the CIDG] for a person named Engr. Morced N. Tagitis . . . and after a diligent and thorough research, records show that no such person is being detained in the CIDG or any of its department or divisions. PNP-PACER Chief PS Supt. Leonardo A. Espina and PNP PRO ARMM Regional Director PC Superintendent Joel R. Goltiao did no better in their affidavits-returns, as they essentially reported the results of their directives to their units to search for Tagitis. The extent to which the police authorities acted was fully tested when the CA constituted TASK FORCE TAGITIS, with specific directives on what to do. The negative results reflected in the Returns on the writ were again replicated during the three hearings the CA scheduled. Aside from the previously mentioned retraction that Prof. Matli made to correct his accusation that Tagitis took money held in trust for students, PS Supt. Ajirim reiterated in his testimony that the CIDG consistently denied any knowledge or complicity in any abduction and said that there was no basis to conclude that the CIDG or any police unit had anything to do with the disappearance of Tagitis; he likewise considered it premature to conclude that Tagitis simply ran away with the money in his custody. As already noted above, the TASK FORCE notably did not pursue any investigation about the personal circumstances of Tagitis, his background in relation to the IDB and the background and activities of this Bank itself, and the reported sighting of Tagistis with terrorists and his alleged custody in Talipapao, Sulu. No attempt appears to have ever been made to look into the alleged IDB funds that Tagitis held in trust, or to tap any of the assets who are indispensable in investigations of this nature. These omissio ns and negative results were aggravated by the CA findings that it was only as late as January 28, 2008 or three months after the disappearance that the police authorities requested for clear pictures of Tagitis. Col. Kasim could not attend the trial because his subpoena was not served, despite the fact that he was designated as Ajirims replacement in the latters last post. Thus, Col. Kasim was not then questioned. No investigation even an internal one appeared to have been made to inquire into the identity of Col. Kasims asset and what he indeed wrote. We glean from all these pieces of evidence and developments a consistency in the governments denial of any complicity in the disappearance of Tagitis, disrupted only by the report made by Col. Kasim to the respondent at Camp Katitipan. Even Col. Kasim, however, eventually denied that he ever made the disclosure that Tagitis was under custodial investigation for complicity in terrorism. Another distinctive trait that runs through these developments is

Razon vs. Tagitis

the governments dismissive approach to the disappearance, starting from the initial response by the Jolo police to Kunnongs initial reports of the disappearance, to the responses made to the respondent when she herself reported and inquired about her husbands disappearance, and even at TASK FORCE TAGITIS itself. As the CA found through TASK FORCE TAGITIS, the investigation was at best haphazard since the authorities were looking for a man whose picture they initially did not even secure. The returns and reports made to the CA fared no better, as the CIDG efforts themselves were confined to searching for custodial records of Tagitis in their various departments and divisions. To point out the obvious, if the abduction of Tagitis was a black operation because it was unrecorded or officially unauthorized, no record of custody would ever appear in the CIDG records; Tagitis, too, would not be detained in the usual police or CIDG detention places . In sum, none of the reports on record contains any meaningful results or details on the depth and extent of the investigation made. To be sure, reports of top police officials indicating the personnel and units they directed to investigate can never constitute exhaustive and meaningful investigation, or equal detailed investigative reports of the activities undertaken to search for Tagitis. Indisputably, the police authorities from the very beginning failed to come up to the extraordinary diligence that the Amparo Rule requires.

CONCLUSIONS AND THE AMPARO REMEDY Based on these considerations, we conclude that Col. Kasims disclosure, made in an unguarded moment, unequivocally point to some government complicity in the disappearance. The consistent but unfounded denials and the haphazard investigations cannot but point to this conclusion. For why would the government and its officials engage in their chorus of concealment if the intent had not been to deny what they already knew of the disappearance? Would not an in-depth and thorough investigation that at least credibly determined the fate of Tagitis be a feather in the governments cap under the circumstances of the disappearance? From this perspective, the evidence and developments, particularly the Kasim evidence, already establish a concrete case of enforced disappearance that the Amparo Rule covers. From the prism of the UN Declaration, heretofore cited and quoted,[173] the evidence at hand and the developments in this case confirm the fact of the enforced disappearance and government complicity, under a

Razon vs. Tagitis

background of consistent and unfounded government denials and haphazard handling. The disappearance as well effectively placed Tagitis outside the protection of the law a situation that will subsist unless this Court acts. This kind of fact situation and the conclusion reached are not without precedent in international enforced disappearance rulings. While the facts are not exactly the same, the facts of this case run very close to those of Timurtas v. Turkey,[174] a case decided by ECHR. The European tribunal in that case acted on the basis of the photocopy of a post-operation report in finding that Abdulvahap Timurtas (Abdulvahap) was abducted and later detained by agents (gendarmes) of the government of Turkey. The victim's father in this case brought a claim against Turkey for numerous violations of the European Convention, including the right to life (Article 2) and the rights to liberty and security of a person (Article 5). The applicant contended that on August 14, 1993, gendarmes apprehended his son, Abdulvahap for being a leader of the Kurdish Workers Party (PKK) in the Silopi region. The petition was filed in southeast Turkey nearly six and one half years after the apprehension. According to the father, gendarmes first detained Abdulvahap and then transferred him to another detainment facility. Although there was no eyewitness evidence of the apprehension or subsequent detainment, the applicant presented evidence corroborating his version of events, including a photocopy of a post-operation report signed by the commander of gendarme operations in Silopi, Turkey. The report included a description of Abdulvahap's arrest and the result of a subsequent interrogation during detention where he was accused of being a leader of the PKK in the Silopi region. On this basis, Turkey was held responsible for Abdulvahaps enforced disappearance. Following the lead of this Turkish experience - adjusted to the Philippine legal setting and the Amparo remedy this Court has established, as applied to the unique facts and developments of this case we believe and so hold that the government in general, through the PNP and the PNP-CIDG, and in particular, the Chiefs of these organizations together with Col. Kasim, should be held fully accountable for the enforced disappearance of Tagitis. The PNP and CIDG are accountable because Section 24 of Republic Act No. 6975, otherwise known as the PNP Law,[175] specifies the PNP as the governmental office with the mandate to investigate and prevent crimes, effect the arrest of criminal offenders, bring offenders to justice and assist in their prosecution. The PNP-CIDG, as Col. Jose Volpane Pante (then Chief

Razon vs. Tagitis

of CIDG Region 9) testified, is the investigative arm of the PNP and is mandated to investigate and prosecute all cases involving violations of the Revised Penal Code, particularly those considered as heinous crimes.[176] Under the PNP organizational structure, the PNP-CIDG is tasked to investigate all major crimes involving violations of the Revised Penal Code and operates against organized crime groups, unless the President assigns the case exclusively to the National Bureau of Investigation (NBI).[177] No indication exists in this case showing that the President ever directly intervened by assigning the investigation of Tagitis disappearance exclusively to the NBI. Given their mandates, the PNP and PNP-CIDG officials and members were the ones who were remiss in their duties when the government completely failed to exercise the extral'>To fully enforce the Amparo remedy, we refer this case back to the CA for appropriate proceedings directed at the monitoring of the PNP and the PNP-CIDG investigations and actions, and the validation of their results through hearings the CA may deem appropriate to conduct. For purposes of these investigations, the PNP/PNP-CIDG shall initially present to the CA a plan of action for further investigation, periodically reporting the detailed results of its investigation to the CA for its consideration and action. On behalf of this Court, the CA shall pass upon: the need for the PNP and the PNP-CIDG to make disclosures of matters known to them as indicated in this Decision and as further CA hearings may indicate; the petitioners submissions; the sufficiency of their investigative efforts; and submit to this Court a quarterly report containing its actions and recommendations, copy furnished the petitioners and the respondent, with the first report due at the end of the first quarter counted from the finality of this Decision. The PNP and the PNP-CIDG shall have one (1) full year to undertake their investigation. The CA shall submit its full report for the consideration of this Court at the end of the 4 th quarter counted from the finality of this Decision. WHEREFORE, premises considered, we DENY the petitioners petition for review on certiorari for lack of merit, and AFFIRM the decision of the Court of Appeals dated March 7, 2008 under the following terms: a. b. Recognition that the disappearance of Engineer Morced N. Tagitis is an enforced disappearance covered by the Rule on the Writ of Amparo; Without any specific pronouncement on exact authorship and responsibility, declaring the government (through the PNP and the PNP-CIDG) and Colonel

Razon vs. Tagitis

c. d.

e.

f.

g.

h.

Julasirim Ahadin Kasim accountable for the enforced disappearance of Engineer Morced N. Tagitis; Confirmation of the validity of the Writ of Amparo the Court of Appeals issued; Holding the PNP, through the PNP Chief, and the PNP-CIDG, through its Chief, directly responsible for the disclosure of material facts known to the government and to their offices regarding the disappearance of Engineer Morced N. Tagitis, and for the conduct of proper investigations using extraordinary diligence, with the obligation to show investigation results acceptable to this Court; Ordering Colonel Julasirim Ahadin Kasim impleaded in this case and holding him accountable with the obligation to disclose information known to him and to his assets in relation with the enforced disappearance of Engineer Morced N. Tagitis; Referring this case back to the Court of Appeals for appropriate proceedings directed at the monitoring of the PNP and PNP-CIDG investigations, actions and the validation of their results; the PNP and the PNP-CIDG shall initially present to the Court of Appeals a plan of action for further investigation, periodically reporting their results to the Court of Appeals for consideration and action; Requiring the Court of Appeals to submit to this Court a quarterly report with its recommendations, copy furnished the incumbent PNP and PNP-CIDG Chiefs as petitioners and the respondent, with the first report due at the end of the first quarter counted from the finality of this Decision; The PNP and the PNP-CIDG shall have one (1) full year to undertake their investigations; the Court of Appeals shall submit its full report for the consideration of this Court at the end of the 4th quarter counted from the finality of this Decision;

These directives and those of the Court of Appeals made pursuant to this Decision shall be given to, and shall be directly enforceable against, whoever may be the incumbent Chiefs of the Philippine National Police and its Criminal Investigation and Detection Group, under pain of contempt from this Court when the initiatives and efforts at disclosure and investigation constitute less than the extraordinary diligence that the Rule on the Writ of Amparo and the circumstances of this case demand. Given the unique nature of Amparo cases and their varying attendant circumstances, these directives particularly, the referral back to and monitoring by the CA are specific to this case and are not standard remedies that can be applied to every Amparo situation.

Razon vs. Tagitis

The dismissal of the Amparo petition with respect to General Alexander Yano, Commanding General, Philippine Army, and General Ruben Rafael, Chief, Anti-Terrorism Task Force Comet, Zamboanga City, is hereby AFFIRMED. SO ORDERED.

Razon vs. Tagitis

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 182498 February 16, 2010

GEN. AVELINO I. RAZON, JR., Chief, Philippine National Police (PNP); Police Chief Superintendent RAUL CASTAEDA, Chief, Criminal Investigation and Detection Group (CIDG); Police Senior Superintendent LEONARDO A. ESPINA, Chief, Police Anti-Crime and Emergency Response (PACER); and GEN. JOEL R. GOLTIAO, Regional Director of ARMM, PNP, Petitioners, vs. MARY JEAN B. TAGITIS, herein represented by ATTY. FELIPE P. ARCILLA, JR., Attorney-in-Fact,Respondent. RESOLUTION BRION, J.: We resolve in this Resolution the Motion for Reconsideration filed by the petitioners -- Gen. Avelino I. Razon, former Chief of the Philippine National Police (PNP);1 Gen. Edgardo M. Doromal, former Chief of the Criminal Investigation and Detection Group (CIDG), PNP;2 Police Senior Superintendent Leonardo A. Espina, former Chief of the Police AntiCrime and Emergency Response (PACER), PNP;3 and Gen. Joel Goltiao, former Regional Director of the PNPAutonomous Region of Muslim Mindanao4 (petitioners) -- addressing our Decision of December 3, 2009. This Decision affirmed the Court of Appeals (CA) decision of March 7, 2008 confirming the enforced disappearance of Engineer Morced N. Tagitis (Tagitis) and granting the Writ of Amparo. Our December 3, 2009 Decision was based, among other considerations, on the finding that Col. Julasirim Ahadin Kasim (Col. Kasim) informed the respondent Mary Jean Tagitis (respondent) and her friends that her husband had been under surveillance since January 2007 because an informant notified the authorities, through a letter, that Tagitis was a liaison for the JI;5 that he was "in good hands" and under custodial investigation for complicity with the JI after he was seen talking to one Omar Patik and a certain "Santos" of Bulacan, a "Balik Islam" charged with terrorism (Kasim evidence). We considered Col. Kasims information, together with the consistent denials by government authorities of any complicity in the disappearance of Tagitis, the dismissive approach of the police authorities to the report of the disappearance, as well as the haphazard investigations conducted that did not translate into any meaningful results, to be indicative of government complicity in the disappearance of Tagitis (for purposes of the Rule on the Writ of Amparo). We explained that although the Kasim evidence was patently hearsay (and was thus incompetent and inadmissible under our rules of evidence), the unique evidentiary difficulties posed by enforced disappearance cases compel us to adopt standards that were appropriate and responsive to the evidentiary difficulties faced. We noted that while we must follow the substantial evidence rule, we must also observe flexibility in considering the evidence that we shall take into account. Thus, we introduced a new evidentiary standard for Writ of Amparo cases in this wise: The fair and proper rule, to our mind, is to consider all the pieces of evidence adduced in their totality, and to consider any evidence otherwise inadmissible under our usual rules to be admissible if it is consistent with the admissible evidence adduced. In other words, we reduce our rules to the most basic test of reason i.e., to the relevance of the evidence to the issue at hand and its consistency with all the other pieces of adduced evidence, Thus, even hearsay evidence can be admitted if it satisfies this minimum test. [Emphasis in the original] We held further that the Kasim evidence was crucial to the resolution of the present case for two reasons: first, it supplied the gaps that were never looked into or clarified by police investigation; and second, it qualified a simple missing person report into an enforced disappearance case by injecting the element of participation by agents of the State and thus brought into question how the State reacted to the disappearance.

Razon vs. Tagitis Based on these considerations, we held that the government in general, through the PNP and the PNP-CIDG, and in particular, the Chiefs of these organizations, together with Col. Kasim, were fully accountable6 for the enforced disappearance of Tagitis. Specifically, we held Col. Kasim accountable for his failure to disclose under oath information relating to the enforced disappearance; for the purpose of this accountability, we ordered that Col. Kasim be impleaded as a party to this case. Similarly, we also held the PNP accountable for the suppression of vital information that Col. Kasim could, but did not, provide with the same obligation of disclosure that Col. Kasim carries.
The Motion for Reconsideration The petitioners cited two grounds in support of their Motion for Reconsideration. First, the petitioners argue that there was no sufficient evidence to conclude that Col. Kasims disclosure unequivocally points to some government complicity in the disappearance of Tagitis. Specifically, the petitioners contend that this Court erred in unduly relying on the raw information given to Col. Kasim by a personal intelligence "asset" without any other evidence to support it. The petitioners also point out that the Court misapplied its cited cases (Secretary of Defense v. Manalo,7 Velasquez Rodriguez v. Honduras,8 and Timurtas v. Turkey9) to support its December 3, 2009 decision; in those cases, more than one circumstance pointed to the complicity of the government and its agents. The petitioners emphasize that in the present case, the respondent only presented a "token piece of evidence" that points to Col. Kasim as the source of information that Tagitis was under custodial investigation for having been suspected as a "terrorist supporter." This, according to the petitioners, cannot be equated to the substantial evidence required by the Rule on the Writ of Amparo.10 Second, the petitioners contend that Col. Kasims death renders impossible compliance with the Courts directive in its December 3, 2009 decision that Col. Kasim be impleaded in the present case and held accountable with the obligation to disclose information known to him and to his "assets" on the enforced disappearance of Tagitis. The petitioners alleged that Col. Kasim was killed in an encounter with the Abu Sayaff Group on May 7, 2009. To prove Col. Kasims death, the petitioners attached to their motion a copy of an article entitled "Abus kill Sulu police director" published by the Philippine Daily Inquirer on May 8, 2009.11 This article alleged that "Senior Supt. Julasirim Kasim, his brother Rosalin, a police trainee, and two other police officers were killed in a fire fight with Abu Sayyaf bandits that started at about 1 p.m. on Thursday, May 7, 2009 at the boundaries of Barangays Kulasi and Bulabog in Maimbung town, Sulu." The petitioners also attached an official copy of General Order No. 1089 dated May 15, 2009 issued by the PNP National Headquarters, indicating that "PS SUPT [Police Senior Superintendent] Julasirim Ahadin Kasim 0-05530, PRO ARMM, is posthumously retired from PNP service effective May 8, 2009."12 Additionally, the petitioners point out that the intelligence "assets" who supplied the information that Tagitis was under custodial investigation were personal to Col. Kasim; hence, the movants can no longer comply with this Courts order to disclose any information known to Col. Kasim and his "assets." The Courts Ruling We hold that our directive to implead Col. Kasim as a party to the present case has been rendered moot and academic by his death. Nevertheless, we resolve to deny the petitioners motion for reconsideration for lack of merit. Paragraph (e) of the dispositive portion of our December 3, 2009 decision directs: e. Ordering Colonel Julasirim Ahadin Kasim impleaded in this case and holding him accountable with the obligation to disclose information known to him and to his "assets" in relation with the enforced disappearance of Engineer Morced N. Tagitis; Undisputably, this directive can no longer be enforced, and has been rendered moot and academic, given Col. Kasim's demise. His intervening death, however, does not necessarily signify the loss of the information Col. Kasim may have left behind, particularly the network of "assets" he utilized while he was in the service. Intelligence gathering is not an activity conducted in isolation, and involves an interwoven network of informants existing on the basis of symbiotic relationships with the police and the military. It is not farfetched that a resourceful investigator, utilizing the extraordinary diligence that the Rule on the Writ of Amparo requires,13 can still access or reconstruct the information Col. Kasim received from his "asset" or network of assets during his lifetime.

Razon vs. Tagitis The extinction of Col. Kasims personal accountability and obligation to disclose material information, known to him and his assets, does not also erase the burden of disclosure and investigation that rests with the PNP and the CIDG. Lest this Court be misunderstood, we reiterate that our holding in our December 3, 2009 Decision that the PNP -- through the incumbent PNP Chief; and the PNP-CIDG, through its incumbent Chief -- are directly responsible14 for the disclosure of material facts known to the government and to their offices regarding the disappearance of Tagitis; and that the conduct of proper investigation using extraordinary diligence still subsists. These are continuing obligations that will not truly be terminated until the enforced disappearance of the victim, Engr. Morced N. Tagitis, is fully addressed by the responsible or accountable parties, as we directed in our Decision.
We now turn to the petitioners substantial challenge to the merits of our December 3, 2009 decision. We see no merit in the petitioners submitted position that no sufficient evidence exists to support the conclusion that the Kasim evidence unequivocally points to some government complicity in the disappearance. Contrary to the petitioners claim that our conclusions only relied on Col. Kasims report, our Decision plainly and pointedly considered other evidence supporting our conclusion, particularly the consistent denials by government authorities of any complicity in the disappearance of Tagitis; the dismissive approach of the police authorities to the report of the disappearance; and the conduct of haphazard investigations that did not translate into any meaningful results. We painstakingly ruled: To give full meaning to our Constitution and the rights it protects, we hold that, as in Velasquez, we should at least take a close look at the available evidence to determine the correct import of every piece of evidence even of those usually considered inadmissible under the general rules of evidence taking into account the surrounding circumstances and the test of reason that we can use as basic minimum admissibility requirement. In the present case, we should at least determine whether the Kasim evidence before us is relevant and meaningful to the disappearance of Tagistis and reasonably consistent with other evidence in the case. xxx The Kasim evidence assumes critical materiality given the dearth of direct evidence on the above aspects of the case, as it supplies the gaps that were never looked into and clarified by police investigation. It is the evidence, too, that colors a simple missing person report into an enforced disappearance case, as it injects the element of participation by agents of the State and thus brings into question how the State reacted to the disappearance. xxx We glean from all these pieces of evidence and developments a consistency in the governments denial of any complicity in the disappearance of Tagitis, disrupted only by the report made by Col. Kasim to the respondent at Camp Katitipan. Even Col. Kasim, however, eventually denied that he ever made the disclosure that Tagitis was under custodial investigation for complicity in terrorism. Another distinctive trait that runs through these developments is the governments dismissive approach to the disappearance, starting from the initial response by the Jolo police to Kunnongs initial reports of the disappearance, to the responses made to the respondent when she herself reported and inquired about her husbands disappearance, and even at Task Force Tagitis itself. As the CA found through Task Force Tagitis, the investigation was at best haphazard since the authorities were looking for a man whose picture they initially did not even secure. The returns and reports made to the CA fared no better, as the CIDG efforts themselves were confined to searching for custodial records of Tagitis in their various departments and divisions. To point out the obvious, if the abduction of Tagitis was a "black" operation because it was unrecorded or officially unauthorized, no record of custody would ever appear in the CIDG records; Tagitis, too, would not be detained in the usual police or CIDG detention places. In sum, none of the reports on record contains any meaningful results or details on the depth and extent of the investigation made. To be sure, reports of top police officials indicating the personnel and units they directed to investigate can never constitute exhaustive and meaningful investigation, or equal detailed investigative reports of the activities undertaken to search for Tagitis. Indisputably, the police authorities from the very beginning failed to come up to the extraordinary diligence that the Amparo Rule requires. [Emphasis in the original]

Razon vs. Tagitis Likewise, we see no merit in the petitioners claim that the Kasim evidence does not amount to substantial evidence required by the Rule on the Writ of Amparo. This is not a new issue; we extensively and thoroughly considered and resolved it in our December 3, 2009 Decision. At this point, we need not go into another full discussion of the justifications supporting an evidentiary standard specific to the Writ of Amparo. Suffice it to say that we continue to adhere to the substantial evidence rule that the Rule on the Writ of Amparo requires, with some adjustments for flexibility in considering the evidence presented. When we ruled that hearsay evidence (usually considered inadmissible under the general rules of evidence) may be admitted as the circumstances of the case may require, we did not thereby dispense with the substantial evidence rule; we merely relaxed the evidentiary rule on the admissibility of evidence, maintaining all the time the standards of reason and relevance that underlie every evidentiary situation. This, we did, by considering the totality of the obtaining situation and the consistency of the hearsay evidence with the other available evidence in the case.
We also cannot agree with the petitioners contention that we misapplied Secretary of Defense v. Manalo,15Velasquez Rodriguez v. Honduras,16 and Timurtas v. Turkey17 to support our December 3, 2009 decision. The petitioners make this claim with the view that in these cases, more than one circumstance pointed to the government or its agents as the parties responsible for the disappearance, while we can only point to the Kasim evidence. A close reading of our December 3, 2009 Decision shows that it rests on more than one basis. At the risk of repetition, we stress that other pieces of evidence point the way towards our conclusion, particularly the unfounded and consistent denials by government authorities of any complicity in the disappearance; the dismissive approach of the police to the report of the disappearance; and the haphazard handling of the investigation that did not produce any meaningful results. In cruder but more understandable language, the run-around given to the respondent and the government responses to the request for meaningful investigation, considered in the light of the Kasim evidence, pointed to the conclusion that the Tagitis affair carried a "foul smell" indicative of government complicity or, at the very least, an attempt at cover-up and concealment. This is the situation that the Writ of Amparo specifically seeks to address. Manalo, Velasquez Rodriguez and Timurtas, read in proper perspective, fully support our findings and conclusions in this case. Manalo is different from Tagitis in terms of their factual settings, as enforced disappearance was no longer a problem in that case. The enforced disappearance of the brothers Raymond and Reynaldo Manalo effectively ended when they escaped from captivity and surfaced, while Tagitis is still nowhere to be found and remains missing more than two years after his reported disappearance. An Amparo situation subsisted in Manalo, however, because of the continuing threat to the brothers right to security; the brothers claimed that since the persons responsible for their enforced disappearance were still at large and had not been held accountable, the former were still under the threat of being once again abducted, kept captive or even killed, which threat constituted a direct violation of their right to security of person. In ruling that substantial evidence existed to support the conclusion that the respondents right to security had been violated, the Court not only considered the respondents affidavit and testimony which positively identified the perpetrators, but also noted other evidence showing the ineffective investigation and protection on the part of the military. The Court significantly found that: Next, the violation of the right to security as protection by the government. Apart from the failure of military elements to provide protection to respondents by themselves perpetrating the abduction, detention, and torture, they also miserably failed in conducting an effective investigation of respondents abduction as revealed by the testimony and investigation report of petitioners own witness, Lt. Col. Ruben Jimenez, Provost Marshall of the 7th Infantry Division. The one-day investigation conducted by Jimenez was very limited, superficial, and one-sided. He merely relied on the Sworn Statements of the six implicated members of the CAFGU and civilians whom he met in the investigation for the first time. He was present at the investigation when his subordinate Lingad was taking the sworn statements, but he did not propound a single question to ascertain the veracity of their statements or their credibility. He did not call for other witnesses to test the alibis given by the six implicated persons nor for the family or neighbors of the respondents. In his affidavit, petitioner Secretary of National Defense attested that in a Memorandum Directive dated October 31, 2007, he issued a policy directive addressed to the AFP Chief of Staff, that the AFP should adopt rules of action in the event the writ of amparo is issued by a competent court against any members of the AFP, which should essentially

Razon vs. Tagitis include verification of the identity of the aggrieved party; recovery and preservation of relevant evidence; identification of witnesses and securing statements from them; determination of the cause, manner, location and time of death or disappearance; identification and apprehension of the person or persons involved in the death or disappearance; and bringing of the suspected offenders before a competent court. Petitioner AFP Chief of Staff also submitted his own affidavit attesting that he received the above directive of respondent Secretary of National Defense and that acting on this directive, he immediately caused to be issued a directive to the units of the AFP for the purpose of establishing the circumstances of the alleged disappearance and the recent reappearance of the respondents, and undertook to provide results of the investigations to respondents. To this day, however, almost a year after the policy directive was issued by petitioner Secretary of National Defense on October 31, 2007, respondents have not been furnished the results of the investigation which they now seek through the instant petition for a writ of amparo.
Under these circumstances, there is substantial evidence to warrant the conclusion that there is a violation of respondents right to security as a guarantee of protection by the government. [Emphasis supplied]18 Similarly in Velasquez Rodriguez, the Inter-American Court of Human Rights (IACHR) acknowledged that when the Honduran Government carried out or tolerated enforced disappearances, the police customarily used a distinctive form of kidnapping. Consequently, the IACHR presumed that Velasquez disappeared at the "hands of or with the acquiescence of those officials within the framework of that practice." Moreover, the IACHR found that negative inferences may be drawn from the fact that the government failed to investigate or to inquire into his disappearance, and thwarted the attempts by the victims family to do so; these according to the Court strongly suggested the governments involvement in the disappearance, even if there was no direct evidence indicating that the government kidnapped Velasquez.19 The Court thus held:20
1avvphi1

iii. In the case of Manfredo Velsquez, there were the same type of denials by his captors and the Armed Forces, the same omissions of the latter and of the Government in investigating and revealing his whereabouts, and the same ineffectiveness of the courts where three writs of HABEAS corpus and two criminal complaints were brought ( testimony of Miguel Angel Pavn Salazar, Ramn Custodio Lpez, Zenaida Velsquez, press clippings and documentary evidence ). h. There is no evidence in the record that Manfredo Velsquez had disappeared in order to join subversive groups, other than a letter from the Mayor of Langue, which contained rumors to that effect. The letter itself shows that the Government associated him with activities it considered a threat to national security. However, the Government did not corroborate the view expressed in the letter with any other evidence. Nor is there any evidence that he was kidnapped by common criminals or other persons unrelated to the practice of disappearances existing at that time." 148. Based upon the above, the Court finds that the following facts have been proven in this proceeding: (1) a practice of disappearances carried out or tolerated by Honduran officials existed between 1981 and 1984; ( 2) Manfredo Velsquez disappeared at the hands of or with the acquiescence of those officials within the framework of that practice; and (3) the Government of Honduras failed to guarantee the human rights affected by that practice. Finally, in Timurtas, the European Court of Human Rights (ECHR) altered the prevailing jurisprudence by permitting a lesser evidentiary burden in cases of enforced disappearances. The ECHR dismissed the need for direct evidence previously held necessary in the leading case of Kurt v. Turkey,21 and instead permitted the use of circumstantial evidence to establish a violation of the right to life. It stated that "whether the failure on the part of authorities to provide a plausible explanation as to a detainees fate, in the absence of a body, might raise issues under Article 2 of the Convention (right to life), will depend on the circumstances of the case and, in particular, on the existence of sufficient circumstantial evidence based on concrete elements, from which it may be concluded to the requisite standard of proof that the detainee must be presumed to have died in custody."22 The ECHR found that:23 Noting that more than six and a half years has gone by since Abdulvahap Timurtas apprehension and having regard to all the other circumstances of the case, the Court found that the disappearance of Abdulvahap Timurtas after he had been taken into detention led, in the circumstances of this case, to a presumption that he had died. No explanation having been provided by the Government as to what had happened to him during his detention, the Government was liable for his death and there was a violation of Article 2 of the Convention. [Emphasis supplied]

Razon vs. Tagitis Significantly (in the context of the present case), the ECHR also noted that the inadequacy of the investigation into the disappearance of Timurtas also constituted a violation of his right to life under Article 2 of the European Convention on Human Rights.
Thus viewed, common threads that plainly run in the three cited cases are applicable to the present case. There is the evidence of ineffective investigation in Manalo and Velasquez Rodriguez, while in all three was the recognition that the burden of proof must be lowered or relaxed (either through the use of circumstantial or indirect evidence or even by logical inference); the requirement for direct evidence to establish that an enforced disappearance occurred -- as the petitioners effectively suggest -- would render it extremely difficult, if not impossible, to prove that an individual has been made to disappear. In these lights, we emphasized in our December 3, 2009 Decision that while the need for substantial evidence remains the rule, flexibility must be observed where appropriate (as the Courts in Velasquez Rodriguez and Timurtas did) for the protection of the precious rights to life, liberty and security. This flexibility, we noted, requires that "we should take a close look at the available evidence to determine the correct import of every piece of evidence even of those usually considered inadmissible under the general rules of evidence taking into account the surrounding circumstances and the test of reason that we can use as basic minimum admissibility requirement." From these perspectives, we see no error that we should rectify or reconsider. WHEREFORE, premises considered, we resolve to GRANT the motion to declare the inclusion of PS/Supt. Julasirim Ahadin Kasim moot and academic, but, otherwise, DENY the petitioners motion for reconsideration. Let this case be remanded to the Court of Appeals for further proceedings as directed in our Decision of December 3, 2009. SO ORDERED.

Burgos vs. Macapagal-Arroyo

Republic of the Philippines Supreme Court Manila

EN BANC EDITA T. BURGOS, Petitioner,

G.R. No. 183711

- versus -

PRESIDENT GLORIA MACAPAGALARROYO, GEN. HERMOGENES ESPERON, JR., LT. GEN. ROMEO P. TOLENTINO, MAJ. GEN. JUANITO GOMEZ, MAJ. GEN. DELFIN BANGIT, LT. COL. NOEL CLEMENT, LT. COL. MELQUIADES FELICIANO, DIRECTOR GENERAL OSCAR CALDERON, Respondents. x-----------------------------------------x EDITA T. BURGOS,

Burgos vs. Macapagal-Arroyo

Petitioner,

- versus G.R. No. 183712

PRESIDENT GLORIA MACAPAGAL ARROYO, GEN. HERMOGENES ESPERON, JR., LT. GEN. ROMEO P. TOLENTINO, MAJ. GEN. JUANITO GOMEZ, LT. COL. MELQUIADES FELICIANO, LT. COL. NOEL CLEMENT, Respondents. x-----------------------------------------x EDITA T. BURGOS, Petitioner,

- versus -

CHIEF OF STAFF OF THE ARMED FORCES OF THE PHILIPPINES, GEN. HERMOGENES ESPERON, JR., Commanding General of the Philippine Army, LT. GEN.

G.R. No. 183713

Burgos vs. Macapagal-Arroyo

ALEXANDER YANO; Chief of the Philippine National Police, DIRECTOR GENERAL AVELINO RAZON, JR., Respondents.

Present:

CORONA, C.J., CARPIO, VELASCO, JR., LEONARDO-DE CASTRO, BRION, PERALTA,* BERSAMIN, DEL CASTILLO, ABAD, VILLARAMA, JR., PEREZ, MENDOZA, and SERENO, JJ.

Promulgated:

July 5, 2011

Burgos vs. Macapagal-Arroyo

x-----------------------------------------------------------------------------------------x RESOLUTION

BRION, J.:

We review,[1] in light of the latest developments in this case, the decision[2] dated July 17, 2008 of the Court of Appeals (CA) in the consolidated petitions for Habeas Corpus,[3] Contempt[4] and Writ of Amparo[5] filed by Edita T. Burgos (petitioner). The assailed CA decision dismissed the petition for the issuance of the Writ of Habeas Corpus; denied the petitioners motion to declare the respondents in Contempt; and partially granted the privilege of the Writ of Amparo.[6] On June 22, 2010, we issued a Resolution[7] referring the present case to the Commission on Human Rights (CHR), as the Courts directly commissioned agency tasked with the continuation of the investigation of Jonas Joseph T. Burgos abduction and the gathering of evidence, with the obligation to report its factual findings and
recommendations to this Court. We found the referral necessary as the investigation by the PNP-CIDG, by the AFP Provost Marshal, and even by the CHR had been less than complete; for one, there were very significant lapses in the handling of the investigation. In particular, we highlighted the PNP-CIDGs failure to identify the cartographic sketches of two (one male and one female) of the five abductors of Jonas, based on their interview of eyewitnesses to the abduction.
[8]

We held:

Considering the findings of the CA and our review of the records of the present case, we conclude that the PNP and the AFP have so far failed to conduct an exhaustive and meaningful investigation into the disappearance of Jonas Burgos, and to exercise the extraordinary diligence (in the performance of their duties) that the Rule on the Writ of Amparo requires. Because of these investigative shortcomings, we cannot rule on the case until a more meaningful investigation, using extraordinary diligence, is undertaken.

From the records, we note that there are very significant lapses in the handling of the investigation - among them the PNP-CIDGs failure to identify the cartographic sketches of two (one male and one female) of the five abductors of Jonas based on their interview of eyewitnesses to the abduction. This lapse is based on the information provided to the petitioner by no less than State Prosecutor Emmanuel Velasco of the DOJ who identified the persons who were possibly involved in the

Burgos vs. Macapagal-Arroyo abduction, namely: T/Sgt. Jason Roxas (Philippine Army), Cpl. Maria Joana Francisco (Philippine Air Force), M/Sgt. Aron Arroyo (Philippine Air Force), and an alias T.L., all reportedly assigned with Military Intelligence Group 15 of Intelligence Service of the AFP. No search and certification were ever made on whether these persons were AFP personnel or in other branches of the service, such as the Philippine Air Force. As testified to by the petitioner, no significant follow through was also made by the PNP-CIDG in ascertaining the identities of the cartographic sketches of two of the abductors despite the evidentiary leads provided by State Prosecutor Velasco of the DOJ. Notably, the PNP-CIDG, as the lead investigating agency in the present case, did not appear to have lifted a finger to pursue these aspects of the case.

We note, too, that no independent investigation appeared to have been made by the PNP-CIDG to inquire into the veracity of Lipios and Manuels claims that Jonas was abducted by a certain @KA DANTE and a certain @KA ENSO of the CPP/NPA guerilla unit RYG. The records do not indicate whether the PNPCIDG conducted a follow-up investigation to determine the identities and whereabouts of @KA Dante and @KA ENSO. These omissions were aggravated by the CA finding that the PNP has yet to refer any case for preliminary investigation to the DOJ despite its representation before the CA that it had forwarded all pertinent and relevant documents to the DOJ for the filing of appropriate charges against @KA DANTE and @KA ENSO.

While significant leads have been provided to investigators, the investigations by the PNP-CIDG, the AFP Provost Marshal, and even the Commission on Human Rights (CHR) have been less than complete. The PNP-CIDGs investigation particularly leaves much to be desired in terms of the extraordinary diligence that the Rule on the Writ of Amparo requires.

Following the CHRs legal mandate, we gave the Commission the following specific directives:

[9]

(a) ascertaining the identities of the persons appearing in the cartographic sketches of the two alleged abductors as well as their whereabouts; (b) determining based on records, past and present, the identities and locations of the persons identified by State Prosecutor Velasco alleged to be involved in the abduction of Jonas, namely: T/Sgt. Jason Roxas (Philippine Army); Cpl. Maria Joana Francisco (Philippine Air Force), M/Sgt. Aron Arroyo (Philippine Air Force), and an alias T.L., all reportedly assigned with Military Intelligence Group 15 of Intelligence Service of the AFP; further proceedings and investigations, as may be necessary, should be made to pursue the lead allegedly provided by State Prosecutor Velasco on the identities of the possible abductors; (c) inquiring into the veracity of Lipios and Manuels claims that Jonas was abducted by a certain @KA DANTE and @KA ENSO of the CPP/NPA guerilla unit RYG;

Burgos vs. Macapagal-Arroyo

(d) determining based on records, past and present, as well as further investigation, the identities and whereabouts of @KA DANTE and @KA ENSO; and (e) undertaking all measures, in the investigation of the Burgos abduction, that may be necessary to live up to the extraordinary measures we require in addressing an enforced disappearance under the Rule on the Writ of Amparo.

In this same Resolution, we also affirmed the CAs dismissal of the petitions for Contempt and for the issuance of a Writ of Amparo with respect to President Macapagal-Arroyo, as she is entitled as President to immunity from suit.[10]

On March 15, 2011, the CHR submitted to the Court its Investigation Report on the Enforced Disappearance of Jonas Burgos (CHR Report), in compliance with our June 22, 2010 Resolution.[11] In this Report, the CHR recounted the investigations undertaken, whose pertinent details we quote below:

On June 26, 2010, the CHR issued Resolution CHR IV No. A2010-100 to intensify the investigation of the case of the Burgos enforced disappearance; and for this purpose, created a Special Investigation Teamheaded by Commissioner Jose Manuel S. Mamauag.

xxx

In compliance with the directive mentioned in the above-quoted En Banc Resolution of the Supreme Court, the Team conducted field investigations by: (1) interviewing a) civilian authorities involved in the first investigation of the instant case; b) military men under detention for alleged violations of Articles of War; c) Security Officers of Ever Gotesco Mall, Commonwealth Avenue, Quezon City; d) two (2) of the three (3) CIDG witnesses; e) two (2) eyewitnesses who described to the police sketch artist two (2) faces of a male and female abductors of Jonas Burgos; f) Rebel-Returnees (RRs); g) officers and men in the military and police service; h) local officials and other government functionaries; and i) ordinary citizens; (2) inquiring into the veracity of CIDG witnesses Lipios and Manuels claims that Jonas was abducted by a certain @KA DANTE and @KA ENSO of the CPP/NPA guerilla unit RYG; (3) securing case records from the prosecution service and courts of law; (4) visiting military and police units. Offices, camps, detention centers, and jails and requesting copies of documents and records in their possession that are relevant to

Burgos vs. Macapagal-Arroyo the instant case; (5) searching for and interviewing witnesses and informants; and (6) pursuing leads provided by them.

S. Emails Star-Struck

38. Pursuing the lead mentioned in the anonymous e-mail, which was attached to the Burgos petition as Exhibit J, that the team leader (T.L.) in the Jonas Burgos abduction was a certain Army Captain, (promotable to Major), a good looking guy (tisoy), and a potential showbiz personality known otherwise as Captain Star-struck, the Team requested the CHR Clearance Section, Legal Division for any information leading to T.L. or to all Philippine Army applicants for CHR clearance whose ranks are Captains or Majors promoted during the years 2007 to 2009.

39. Sometime in November 2010, the Team was able to track down one CHR clearance-applicant who most likely possesses and/or matches the information provided in the said lead. But when his photo/picture was presented to the eyewitnesses, they failed to identify him.

40. Undaunted with the negative identification, the Team suspected that the team leader might not have participated in the actual abduction inside Hapag Kainan Restaurant, the scene of the crime, but most probably was in one of the three cars allegedly used during the operation while giving orders or commanding the actual abductors.

41. In relation to the above suspicion, the Team has theorized that officers below the rank of Captain might have perpetrated the actual abduction.

42. The Team explored this possibility and focused its attention on the officers of the 7th ID, PA, namely: Lt. Vicente O. Dagdag, Jr., the S-4 of 65 IB who executed an affidavit relative to the alleged stolen Plate No. TAB-194; 2Lt. Rey B. Dequito of 56th IB, the witness against Edmond Dag-Uamn for the alleged crime of murder; and 1Lt. Usmalik Tayaban, the Team Leader with the 56th IB who issued a Custody Receipt in connection with the Petition for Habeas Corpus filed in Angeles City relative to the 2006 Emerito Lipio abduction case against the police and military personnel.

T. Face-book account

Burgos vs. Macapagal-Arroyo 43. Google search of the names of the above mentioned individuals yielded negative result except for 1Lt. Usmalik Tayaban, whose name was connected to a social networking site, the Face-book account of PMA BATCH SANGHAYA 2000.

44. In the Facebook account Sanghaya, the contents of which is categorized as PUBLIC or open to public viewing, it appears that Malik Tayaban is a graduate of the Philippine Military Academy (PMA) Batch Sanghaya of 2000. Other leads were also discovered, such as the following: vernacular description of tisoy which was mentioned by one of the users in the comment portion of the account which incidentally was also mentioned in the anonymous e-mail as the team leader (T.L.); the picture of a man sporting a back-pack, which was also mentioned by witness Elsa. Per Elsas account, the person in the cartographic sketch was wearing a back-pack.

45. Aware of the intricacies of the above-mentioned leads, the Team caused the reproduction of all pictures in the Facebook account for future reference; and requested the NBI (Burgos) Team for a copy of the PMA Sanghaya Batch 2000 Year Book, also for future reference.

U. The PMA Year Book

46. Through the efforts of the NBI (Burgos) Team, the Team was able to get the PMA Year Book of Sanghaya Batch 2000 and the location of one important eyewitness in the abduction.

V. JEFFREY CABINTOY

47. On December 1, 2010, the Team together with the NBI Team were able to locate Jeffrey Cabintoy (Jeffrey), one of the two (2) eyewitnesses who provided the police cartographic artist with the description of two (2) principal abductors of Jonas Burgos. Jeffrey narrated in details (sic) the circumstances that happened before and during the abduction.

48. On December 7, 2010, the Team and Jeffrey went to the place of incident at Ever Gotesco Mall, Quezon City to refresh his memory and re-enact what transpired. In the afternoon of the same date, the Team invited Jeffrey to the CHR Central Office in Quezon City, where he was shown for identification twenty (20) copies of colored photographs/pictures of men and the almost two hundred forty-four (244) photographs/pictures stored in the computer and lifted from the profiles of the Philippine Military Academy Year Book of Batch Sanghaya 2000.

Burgos vs. Macapagal-Arroyo 49. Jeffrey pointed to a man in the two (2) colored group pictures/photographs, that he identified as among the 8-man group who abducted Jonas Burgos. For record and identification purposes, the Team encircled the face that Jeffrey identified in the two pictures; then he affixed his signature on each picture. Also, while leafing through the pictures of the PMA graduates in the Year Book of Sanghaya 2000 Batch, the witness identified a picture, with a bold and all-capitalized name HARRY AGAGEN BALIAGA JR and the words Agawa, Besao, Mt. Province printed there under the capitalized words PHILIPPINE ARMY written on the upper portion, as the same person he pointed out in the two group pictures just mentioned above. Immediately thereafter, the Team caused the production of the photo identified by Jeffrey and asked him to affix his signature, which he also did.

50. After examining each of these pictures, Jeffrey declared that it dawned on him that based on his recollection of faces involved in the abduction of Jonas Burgos, he now remembers the face of a man, other than the two (2) faces whose description he already provided before to a police sketch artist, who was part of the 8-man group of abductors. And he also confirms it now that the person he is referring to was indeed seen by him as one of those who abducted Jonas Burgos at Hapag Kainan Restaurant of Ever Gotesco Mall, Commonwealth Avenue, Quezon City.

51. When asked how certain he was of the person he identified, considering that the printed copy of the photo lifted from the Face-book Sanghaya Account was taken sometime in the year 2010; while the picture appearing in the computer was lifted from the PMA Sanghaya 2000 Batch Year Book, Jeffrey replied Ang taong ito ay aking natatandaan sa kadahilanan na nuong una siya ay nakaupo na katabi sa bandang kaliwa nang taong dumukot at natapos silang mag usap lumapit sa akin at pilit akong pinipigilan na wag daw makialam at ang sabi nya sa akin ay WAG KA DITONG MAKIALAM KASI ANG TAONG ITO AY MATAGAL NA NAMING SINUSUBAYBAYAN DAHIL SA DROGA kahit pa halos nagmamakaawa na nang tulong ang taong dinukot; at matapos nuon ay sapilitan na nilang binitbit sa labas ang biktima. ( I remember this man for the reason that at first he was seated at the left side of the person abducted; and after they talked, he approached me and was preventing me forcefully saying not to interfere and he said to me: DONT YOU INTERFERE HERE SINCE WE HAVE BEEN DOING SOME SURVEILLANCE ON THIS MAN FOR SOME TIME ALREADY BECAUSE OF DRUGS despite that the man was already pleading for help, and after that, they forcibly dragged the victim outside.)

52. When asked if he could identify the picture of Jonas Burgos, Jeffrey affirmed that the person in the picture is the person referred to by him as the victim of abduction and his name is Jonas Burgos. He further stated that he learned of the victims name when he saw his picture flashed on TV and hear his name. When asked if he is willing to execute an affidavit on the facts that he has just provided, he answered yes and at that juncture the Team assisted him in the preparation of his Sinumpaang Salaysay based on his personal knowledge and in a language known to him. After which, the Team asked Jeffrey to read, examine and determine whether all the information he just provided are reflected in his Sinumpaang Salaysay and Jeffrey answered yes. Thereafter, Jeffrey affixed his signature after being sworn to before a lady CHR lawyer and a duly commissioned Notary Public for and in Quezon City.

Burgos vs. Macapagal-Arroyo

W. Daguman confirmed Tayabans and Baliagas actual affiliation with the military and their assignment at the 56th Infantry Battalion, 7th ID

53. On December 10, 2010, the Team went to the Bulacan Provincial Jail to visit Edmond DagUman and asked him to identify his former Company Commander at the 56th IB, 71 ID, Lt. Usmalik Tayaban and to identify the pictures.

54. Edmond Dag-uman identified the encircled in the picture as LT. HARRY A. BALIAGA, JR., and the man with a receding hair as LT. USMALIK TAYABAN, his former Company Commander.

55. When asked if he was willing to reduce in writing his precious statements and those that just mentioned, he replied BAKA MAPAHAMAK AKO NYAN! (That might endanger me!). Following a lengthy discussion on the pros and cons of executing a sworn statement and the assurance of the Team to exclude his statements that are critical to the military establishment, it dawned on Dag-uman that his statement would be of help to the Commission in bringing his case to the proper authorities for review and appropriate action, that he eventually expressed his willingness to do so.

56. After which the Team immediately went to a Computer Caf nearby to encode the Salaysay, then the printed copy was presented to him for his determination whether he is in full accord with the contents therein. Edmond spent about thirty (30) minutes reading it and changed the word Charlie to Bravo and then affixed his initial on it. He also signed the Sinumpaang Salaysay after being sworn to before a team member authorized to administer oath.

X. Second visit to ELSA AGASANG and her Supplemental Sworn Statement

57. On January 26, 2011, the Team along with witness Jeffrey went to Bicol to meet witness Elsa. The aim was to help Elsa recall the faces of those she saw in the abduction by showing to her recently-acquired pictures of suspects.

58. For the first time they would re-unite, after almost four years since that fateful day of April 28, 2007, when both of them had the experience of witnessing an abduction incident, which rendered them jobless and unsafe.

Burgos vs. Macapagal-Arroyo 59. The Team told Jeffrey to sit in front of Elsa without introducing him to her. After about half an hour into the conversation, she expressed disbelief when she realized that she was facing in person he coworker that she knew very well.

60. On January 29, 2011, Elsa executed her Karagdagang Sinumpaang Salaysay affirming her Salaysay given before PCI Lino DL Banaag at the CIDU, Quezon City Police District Office, Camp Karingal, Quezon City; and corroborating the material allegations contained in the Sinumpaang Salaysay of Jeffrey.

On the basis of the evidence it had gathered, the CHR submitted the following findings:[12]

Based on the facts developed by evidence obtaining in this case, the CHR finds that the enforced disappearance of Jonas Joseph T. Burgos had transpired; and that his constitutional rights to life liberty and security were violated by the Government have been fully determined.

Jeffrey Cabintoy and Elsa Agasang have witnessed on that fateful day of April 28, 2007 the forcible abduction of Jonas Burgos by a group of about seven (7) men and a woman from the extension portion of Hapag Kainan Restaurant, located at the ground floor of Ever Gotesco Mall, Commonwealth Avenue, Quezon City.

xxxx

The eyewitnesses mentioned above were Jeffrey Cabintoy (Jeffrey) and Elsa Agasang (Elsa), who at the time of the abduction were working as busboy and Trainee-Supervisor, respectively, at Hapag Kainan Restaurant.

In his Sinumpaang Salaysay, Jeffrey had a clear recollection of the face of HARRY AGAGEN BALIAGA, JR. as one of the principal abductors, apart from the faces of the two abductors in the cartographic sketches that he described to the police, after he was shown by the Team the pictures in the PMA Year Book of Batch Sanghaya 2000 and group pictures of men taken some years thereafter.

The same group of pictures were shown to detained former 56th IB Army trooper Edmond M. Dag-uman (Dag-uman), who also positively identified Lt. Harry Baliaga, Jr. Dagumans Sinumpaang Salaysay states that he came to know Lt. Baliaga as a Company Commander in the 56 th IB while he was

Burgos vs. Macapagal-Arroyo still in the military service (with Serial No. 800693, from 1997 to 2002) also with the 56 th IB but under 1Lt. Usmalik Tayaban, the Commander of Bravo Company. When he was arrested and brought to the 56th IB Camp in April 2005, he did not see Lt. Baliaga anymore at the said camp. The similar reaction that the pictures elicited from both Jeffrey and Daguman did not pass unnoticed by the Team. Both men always look pensive, probably because of the pathetic plight they are in right now. It came as a surprise therefore to the Team when they could hardly hide their smile upon seeing the face of Baliaga, as if they know the man very well.

Moreover, when the Team asked how Jeffrey how certain was he that it was indeed Baliaga that he saw as among those who actually participated in Jonas abduction, Jeffrey was able to give a graphic description and spontaneously, to boot, the blow by blow account of the incident, including the initial positioning of the actors, specially Baliaga, who even approached, talked to, and prevented him from interfering in their criminal act.

A Rebel-returnee (RR) named Maria Vita Lozada y Villegas @KA MY, has identified the face of the female in the cartographic sketch as a certain Lt. Fernando. While Lozada refuses to include her identification of Lt. Fernando in her Sinumpaang Salaysay for fear of a backlash, she told the Team that she was certain it was Lt. Fernando in the cartographic sketch since both of them were involved in counterinsurgency operations at the 56th IB, while she was under the care of the battalion from March 2006 until she left the 56th IB Headquarters in October 2007. Lozadas involvement in counter-insurgency operations together with Lt. Fernando was among the facts gathered by the CHR Regional Office 3 Investigators, whose investigation into the enforced disappearance of Jonas Joseph Burgos was documented by way of an After Mission Report dated August 13, 2008.

Most if not all the actual abductors would have been identified had it not been for what is otherwise called as evidentiary difficulties shamelessly put up by some police and military elites. The deliberate refusal of TJAG Roa to provide the CHR with the requested documents does not only defy the Supreme Court directive to the AFP but ipso facto created a disputable presumption that AFP personnel were responsible for the abduction and that their superiors would be found accountable, if not responsible, for the crime committed. This observation finds support in the disputable presumption That evidence willfully suppressed would be adverse if produced. (Paragraph (e), Section 3, Rule 131 on Burden of Proof and Presumptions, Revised Rules on Evidence of the Rules of Court of the Philippines).

In saying that the requested document is irrelevant, the Team has deemed that the requested documents and profiles would help ascertain the true identities of the cartographic sketches of two abductors because a certain Virgilio Eustaquio has claimed that one of the intelligence operatives involved in the 2007 ERAP 5 case fits the description of his abductor.

Burgos vs. Macapagal-Arroyo As regards the PNP CIDG, the positive identification of former 56 th IB officer Lt. HARRY A. BALIAGA, JR. as one of the principal abductors has effectively crushed the theory of the CIDG witnesses that the NPAs abducted Jonas. Baliagas true identity and affiliation with the military have been established by overwhelming evidence corroborated by detained former Army trooper Dag-uman.

For lack of material time, the Commission will continue to investigate the enforced disappearance of Jonas Burgos as an independent body and pursuant to its mandate under the 1987 Constitution. Of particular importance are the identities and locations of the persons appearing in the cartographic sketches; the allegations that CIDG Witnesses Emerito G. Lipio and Meliza Concepcion-Reyes are AFP enlisted personnel and the alleged participation of Delfin De Guzman @ Ka Baste in the abduction of Jonas Burgos whose case for Murder and Attempted Murder was dismissed by the court for failure of the lone witness, an army man of the 56th IB to testify against him.

Interview with Virgilio Eustaquio, Chairman of the Union Masses for Democracy and Justice (UMDJ), revealed that the male abductor of Jonas Burgos appearing in the cartographic sketch was among the raiders who abducted him and four others, identified as Jim Cabauatan, Jose Curament, Ruben Dionisio and Dennis Ibona otherwise known as ERAP FIVE. Unfortunately, and as already pointed out above, The Judge Advocate General (TJAG) turned down the request of the Team for a profile of the operatives in the so-called Erap 5 abduction on the ground of relevancy and branded the request as a fishing expedition per its Disposition Form dated September 21, 2010.

Efforts to contact Virgilio Eustaquio to secure his affidavit proved futile, as his present whereabouts cannot be determined. And due to lack of material time, the Commission decided to pursue the same and determine the whereabouts of the other members of the Erap 5 on its own time and authority as an independent body.

Based on the above-cited findings, the CHR submitted the following recommendations for the Courts consideration, viz:[13]

i. To DIRECT the Department of Justice (DOJ), subject to certain requirements, to immediately admit witnesses Jeffrey T. Cabintoy and Elsa B. Agasang to the Witness Protection, Security and Benefit Program under Republic Act No. 6981;

Burgos vs. Macapagal-Arroyo ii. To DIRECT the Department of Justice (DOJ) to commence the filing of Criminal Charges for Kidnapping/Enforced Disappearance and/or Arbitrary Detention against 1LT. HARRY AGAGEN BALIAGA, JR. of the Philippine Army, as Principal by Direct Participation in the abduction of Jonas Joseph T. Burgos on April 28, 2007 from Ever Gotesco Mall, Commonwealth Avenue, Quezon City;

iii. To DIRECT the Department of Justice to cause the filing of Obstruction of Justice against Emerito Lipio y Gonzales; Marlon Manuel y de Leon; and Meliza Concepcion-Reyes for giving false or fabricated information to the CIDG and for their willful refusal to cooperate with the CHR Team in the investigation of the herein enforced disappearance;

iv. To DIRECT Cavite Provincial Prosecutor Emmanuel Velasco to appear before the Supreme Court and to divulge his source/informant as the same does not fall under the privilege communication rule;

v. To DIRECT the PNP-CIDG RC, NCRCIDU, Atty. Joel Napoleon M. Coronel, to explain his Memorandum to the CIDG-CIDD stating that the witnesses were reportedly turned over by the Bulacan PPO and Philippine Army to the CIDG for investigation, considering that said witnesses were not under police or military custody at the time of the supposed turn-over in the evening of August 22, 2007 and to identify the PNP officer who directed the CIDG operatives to fetch Emerito G. Lipio in Bulacan and the two other CIDG witnesses for tactical interrogation;

vi. To REQUIRE General Roa of the Judge Advocate General Office, AFP, and the Deputy Chief of Staff for Personnel, JI, AFP, to explain their failure and/or refusal to provide the CHR with copies of documents relevant to the case of Jonas T. Burgos, particularly the following: (a) Profile and Summary of Information and pictures of T/Sgt.Jason Roxas (Philippine Army) and three (3) other enlisted personnel mentioned in paragraph (1) of the dispositive portion of the Supreme Court En Banc Resolution issued on 22 June 2010 in the instant consolidated cases, including a certain 2Lt. Fernando, a lady officer involved in the counter-insurgency operations of the 56th IB in 2006 to 2007; (b)copies of the records of the 2007 ERAP 5 incident in Kamuning, Quezon City and the complete list of the intelligence operatives involved in that said covert military operation, including their respective Summary of Information and individual pictures; and (c) complete list of the officers, women and men assigned at the 56th and 69th Infantry Battalion and the 7th Infantry Division from January 1, 2004 to June 30, 2007 with their respective profiles, Summary of Information and pictures; including the list of captured rebels and rebels who surrendered to the said camps and their corresponding pictures and copies of their Tactical Interrogation Reports and the cases filed against them, if any;

vii. To DIRECT the PNP-CIDG to comply with its mandate under paragraph (3) of the dispositive portion of the Supreme Court En Banc Resolution promulgated on 22 June 2010 in the instant consolidated cases;

Burgos vs. Macapagal-Arroyo

viii. To DIRECT Harry A. Baliaga, Jr., the Philippine Armys 56th Infantry Battalion in Bulacan and 7th Infantry Division at Fort Magsaysay in Laur, Nueva Ecija to produce the living body of the victim Jonas Joseph T. Burgos before this Court;

ix. To DIRECT the Department of Justice to review and determine the probable liability/accountability of the officers and enlisted personnel concerned of the Philippine Armys 56th IB and the 7th ID, relative to the torture and/or other forms of ill-treatment of Edmond M. Dag-uman, while he was in detention at Fort Magsaysay sometime in October 2005, as part of the collateral discoveries in the conduct of this investigation;

x. To DIRECT the Department of Justice to review the case filed against Edmond Dag-uman alias DELFIN DE GUZMAN with the Regional Trial Court Branch 10 in Malolos City docketed as Criminal Case Nos. 1844-M-2005 and 186-M-2006; and the legal basis, if any, for his continued detention at the Bulacan Provincial Jail in Malolos City; and

xi. To DIRECT the Department of Interior and Local Government (DILG) to study the probable liability of Adelio A. Asuncion, former Jail Warden of Bulacan Provincial Jail for his failure to account the records of the inmates more specifically the records of turn-over Edmond Dag-uman from the 7th ID.

Pursuant to our June 22, 2010, the CHR furnished the petitioner with the copy of its report, which the petitioner apparently relied upon in filing a criminal complaint against Lt. Harry A. Baliaga, Jr. and other members of the military.[14] OUR RULING

A. Amparo

Burgos vs. Macapagal-Arroyo

After reviewing the evidence in the present case, the CA findings and our findings in our June 22, 2010 Resolution heretofore mentioned, including the recent CHR findings that Lt. Harry A. Baliaga, Jr., (Lt. Baliaga) of the 56th Infantry Battalion, 7th Infantry Division, Philippine Army is one of the abductors of Jonas, we resolve to hold in abeyance our ruling on the merits in the Amparo aspect of the present case and refer this case back to the CA in order to allow Lt. Baliaga and the present Amparo respondents to file their respective Comments on the CHR Report within a non-extendible period of fifteen (15) days from receipt of this Resolution. The CA shall continue with the hearing of the Amparo petition in light of the evidence previously submitted, the proceedings it already conducted and the subsequent developments in this case, particularly the CHR Report. Thereafter, the CA shall rule on the merits of the Amparopetition. For this purpose, we order that Lt. Baliaga be impleaded as a party to the Amparo petition (CA-G.R. SP No. 00008-WA). This directive to implead Lt. Baliaga is without prejudice to similar directives we may issue with respect to others whose identities and participation may be disclosed in future investigations.

We also note that Office of the Judge Advocate General (TJAG) failed and/or refused to provide the CHR with copies of documents relevant to the case of Jonas, and thereby disobeyed our June 22, 2010 Resolution. To recall, we issued a Resolution declaring the CHR as the Courts directly commissioned agency tasked with the continuation of the investigation of Jonas abduction and the gathering of evidence, with the obligation to report its factual findings and recommendations to this Court. In this same Resolution, we required the then incumbent Chiefs of the AFP and the PNP to make available and to provide copies to the CHR, of all documents and records in their possession and as the CHR may require, relevant to the case of Jonas, subject to reasonable regulations consistent with the Constitution and existing laws.

In its March 15, 2011 Report, the CHR recommended, for the Courts consideration:[15]

vi.

To REQUIRE General Roa of the Judge Advocate General Office, AFP, and the Deputy Chief of Staff for Personnel, JI, AFP, to explain their failure and/or refusal to provide the CHR with copies of documents relevant to the case of Jonas T. Burgos, particularly the following: (a) Profile and Summary of Information and pictures of T/Sgt. Jason Roxas (Philippine Army) and three (3)

Burgos vs. Macapagal-Arroyo other enlisted personnel mentioned in paragraph (1) of the dispositive portion of the Supreme Court En Banc Resolution issued on 22 June 2010 in the instant consolidated cases, including a certain 2Lt. Fernando, a lady officer involved in the counter-insurgency operations of the 56th IB in 2006 to 2007; (b) copies of the records of the 2007 ERAP 5 incident in Kamuning, Quezon City and the complete list of the intelligence operatives involved in that said covert military operation, including their respective Summary of Information and individual pictures; and (c) complete list of the officers, women and menassigned at the 56th and 69th Infantry Battalion and the 7th Infantry Division from January 1, 2004 to June 30, 2007 with their respective profiles, Summary of Information and pictures; including the list of captured rebels and rebels who surrendered to the said camps and their corresponding pictures and copies of their Tactical Interrogation Reports and the cases filed against them, if any.

Section 16 of the Rule on the Writ of Amparo provides that any person who otherwise disobeys or resists a lawful process or order of the court may be punished for contempt, viz:

SEC. 16. Contempt. The court, justice or judge may order the respondent who refuses to make a return, or who makes a false return, or any person who otherwise disobeys or resists a lawful process or order of the court to be punished for contempt. The contemnor may be imprisoned or imposed a fine

Acting on the CHRs recommendation and based on the above considerations, we resolve to require General Roa of TJAG, AFP, and the Deputy Chief of Staff for Personnel, JI, AFP, at the time of our June 22, 2010 Resolution, and then incumbent Chief of Staff, AFP,[16] to show cause and explain, within a non-extendible period of fifteen (15) days from receipt of this Resolution, why they should not be held in contempt of this Court for defying our June 22, 2010 Resolution.

B. Habeas Corpus

In light of the new evidence obtained by the CHR, particularly the Cabintoy evidence that positively identified Lt. Baliaga as one of the direct perpetrators in the abduction of Jonas and in the interest of justice, we resolve to set aside the CAs dismissal of the habeas corpus petition and issue anew the writ of habeas corpus returnable to the Presiding Justice of the CA who shall immediately refer the writ to the same CA division that decided the habeas corpus petition (CA-GR SP No. 99839).

Burgos vs. Macapagal-Arroyo

For this purpose, we also order that Lt. Baliaga be impleaded as a party to the habeas corpus petition and require him together with the incumbent Chief of Staff, AFP; the incumbent Commanding General, Philippine Army; and the Commanding Officer of the 56th IB at the time of the disappearance of Jonas, Lt. Col. Feliciano to produce the person of Jonas and to show cause why he should not be released from detention.

evidence previously submitted to it, the proceedings already conducted, and the subsequent developments in this case (particularly the CHR report) as proven by evidence properly adduced before it. The Court of Appeals and the parties may require Prosecutor Emmanuel Velasco, Jeffrey Cabintoy, Edmund Dag-uman, Melissa Concepcion Reyes, Emerito Lipio and Marlon Manuel to testify in this case. C. Petition for Contempt

The CA shall rule on the merits of the habeas corpus petition in light of the

In dismissing the petition, the CA held:[17]

Undoubtedly, the accusation against respondents is criminal in nature. In view thereof, the rules in criminal prosecution and corollary recognition of respondents constitutional rights inevitably come into play. As held in People v. Godoy:

In proceedings for criminal contempt, the defendant is presumed innocent and the burden is on the prosecution to prove the charges beyond reasonable doubt.

Hence, assuming that there is circumstantial evidence to support petitioners allegations, said circumstantial evidence falls short of the quantum of evidence that is required to establish the guilt of an accused in a criminal proceeding, which is proof beyond reasonable doubt.

The pertinent provision of the Rules of Court on contempt, in relation to a Habeas Corpus proceeding, is Section 16, Rule 102, which provides:

Burgos vs. Macapagal-Arroyo

Sec. 16. Penalty for refusing to issue writ, or for disobeying the same. - A clerk of a court who refuses to issue the writ after allowance thereof and demand therefor, or a person to whom a writ is directed, who neglects or refuses to obey or make return of the same according to the command thereof, or makes false return thereof, or who, upon demand made by or on behalf of the prisoner, refuses to deliver to the person demanding, within six (6) hours after the demand therefor, a true copy of the warrant or order of commitment, shall forfeit to the party aggrieved the sum of one thousand pesos, to be recovered in a proper action, and may also be punished by the court or judge as for contempt. [emphasis supplied]

In Montenegro v. Montenegro,[18] we explained the types and nature of contempt, as follows:

Contempt of court involves the doing of an act, or the failure to do an act, in such a manner as to create an affront to the court and the sovereign dignity with which it is clothed. It is defined as "disobedience to the court by acting in opposition to its authority, justice and dignity."7 The power to punish contempt is inherent in all courts, because it is essential to the preservation of order in judicial proceedings, and to the enforcement of judgments, orders and mandates of the courts; and, consequently, to the due administration of justice.
xxx Contempt, whether direct or indirect, may be civil or criminal depending on the nature and effect of the contemptuous act. Criminal contempt is "conduct directed against the authority and dignity of the court or a judge acting judicially; it is an act obstructing the administration of justice which tends to bring the court into disrepute or disrespect." On the other hand, civil contempt is the failure to do something ordered to be done by a court or a judge for the benefit of the opposing party therein and is therefore, an offense against the party in whose behalf the violated order was made. If the purpose is to punish, then it is criminal in nature; but if to compensate, then it is civil. [emphasis supplied]

We agree with the CA that indirect contempt is the appropriate characterization of the charge filed by the petitioner against the respondents and that the charge is criminal in nature. Evidently, the charge of filing a false return constitutes improper conduct that serves no other purpose but to mislead, impede and obstruct the administration of justice by the Court. In People v. Godoy,[19] which the CA cited, we specifically held that under paragraph (d) of Section 3, Rule 71 of the Rules of Court, any improper conduct tending, directly or indirectly, to impede, obstruct or degrade the administration of justice constitutes criminal contempt.

Burgos vs. Macapagal-Arroyo

A criminal contempt proceeding has been characterized as sui generis as it partakes some of the elements of both a civil and criminal proceeding, without completely falling under either proceeding. Its identification with a criminal proceeding is in the use of the principles and rules applicable to criminal cases, to the extent that criminal procedure is consistent with the summary nature of a contempt proceeding. We have consistently held and established that the strict rules that govern criminal prosecutions apply to a prosecution for criminal contempt; that the accused is afforded many of the protections provided in regular criminal cases; and that proceedings under statutes governing them are to be strictly construed.[20]

Contempt, too, is not presumed. In proceedings for criminal contempt, the defendant is presumed innocent and the burden is on the prosecution to prove the charges beyond reasonable doubt.[21] The presumption of innocence can be overcome only by proof of guilt beyond reasonable doubt, which means proof to the satisfaction of the court and keeping in mind the presumption of innocence that precludes every reasonable hypothesis except that for which it is given. It is not sufficient for the proof to establish a probability, even though strong, that the fact charged is more likely true than the contrary. It must establish the truth of the fact to a reasonable certainty and moral certainty a certainty that convinces and satisfies the reason and conscience of those who are to act upon it.[22]

For the petitioner to succeed in her petition to declare the respondents in contempt for filing false returns in the habeas corpus proceedings before the CA, she has the burden of proving beyond reasonable doubt that the respondents had custody of Jonas. As the CA did, we find that the pieces of evidence on record as of the time of the CA proceedings were merely circumstantial and did not provide a direct link between the respondents and the abduction of Jonas; the evidence did not prove beyond reasonable doubt that the respondents had a hand in the abduction of Jonas, and consequently, had custody of him at the time they filed their returns to the Writ of habeas corpus denying custody of Jonas.

Burgos vs. Macapagal-Arroyo

However, the subsequent developments in this case, specifically, the investigative findings presented to us by the CHR pointing to Lt. Baliaga as one of the abductors of Jonas, have given a twist to our otherwise clear conclusion. Investigations will continue, consistent with the nature of Amparo proceedings to be alive until a definitive result is achieved, and these investigations may yet yield additional evidence affecting the conclusion the CA made. For this reason, we can only conclude that the CAs dismissal of the contempt charge should be provisional, i.e., without prejudice to the re-filing of the charge in the future should the petitioner find this step warranted by the evidence in the proceedings related to Jonass disappearance, including the criminal prosecutions that may transpire.

To adjust to the extraordinary nature of Amparo and habeas corpus proceedings and to directly identify the parties bound by these proceedings who have the continuing obligation to comply with our directives, the AFP Chief of Staff, the Commanding General of the Philippine Army, the Director General of the PNP, the Chief of the PNP-CIDG and the TJAG shall be named as parties to this case without need of naming their current incumbents, separately from the then incumbent officials that the petitioner named in her original Amparo and habeas corpus petitions, for possible responsibility and accountability.

In light of the dismissal of the petitions against President Gloria Macapagal-Arroyo who is no the longer the President of the Republic of thePhilippines, she should now be dropped as a party-respondent in these petitions.

WHEREFORE, in the interest of justice and for the foregoing reasons, we RESOLVE to: I. IN G.R. NO. 183711 (HABEAS CORPUS PETITION, CA-G.R. SP No. 99839)
a.

ISSUE a Writ of Habeas Corpus anew, returnable to the Presiding Justice of the Court of
Appeals who shall immediately refer the writ to the same Division that decided the habeas corpus petition;

Burgos vs. Macapagal-Arroyo

b.

ORDER Lt. Harry A. Baliaga, Jr. impleaded in CA-G.R. SP No. 99839 and G.R. No. 183711, and REQUIRE him, together with the incumbent Chief of Staff, Armed Forces of the
Philippines; the incumbent Commanding General, Philippine Army; and the Commanding Officer of the 56th IB, 7th Infantry Division, Philippine Army at the time of the disappearance of Jonas Joseph T. Burgos, Lt. Col. Melquiades Feliciano, to produce the person of Jonas Joseph T. Burgos under the terms the Court of Appeals shall prescribe, and to show cause why Jonas Joseph T. Burgos should not be released from detention;

c.

REFER back the petition for habeas corpus to the same Division of the Court of Appeals which shall continue to hear this case after the required Returns shall have been filed and render a new decision within thirty (30) days after the case is submitted for decision; and ORDER the Chief of Staff of the Armed Forces of the Philippines and the Commanding General of the Philippine Army to be impleaded as parties, separate from the original respondents impleaded in the petition, and the dropping or deletion of President Gloria Macapagal-Arroyo as party-respondent.

d.

II. IN G.R. NO. 183712 (CONTEMPT OF COURT CHARGE, CA-G.R. SP No. 100230) e. AFFIRM the dismissal of the petitioners petition for Contempt in CA-G.R. SP No. 100230, without prejudice to the re-filing of the contempt charge as may be warranted by the results of the subsequent CHR investigation this Court has ordered; and ORDER the dropping or deletion of former President Gloria Macapagal-Arroyo as party-respondent, in light of the unconditional dismissal of the contempt charge against her.

f.

III. IN G.R. NO. 183713 (WRIT OF AMPARO PETITION, CA-G.R. SP No. 00008WA)

Burgos vs. Macapagal-Arroyo

g.

ORDER Lt. Harry A. Baliaga, Jr., impleaded in CA-G.R. SP No. 00008-WA and G.R. No. 183713, without prejudice to similar directives we may issue with respect to others whose identities and participation may be disclosed in future investigations and proceedings; DIRECT Lt. Harry A. Baliaga, Jr., and the present Amparo respondents to file their
Comments on the CHR report with the Court of Appeals, within a non-extendible period of fifteen (15) days from receipt of this Resolution.

h.

i.

REQUIRE General Roa of the Office of the Judge Advocate General, AFP; the Deputy Chief of Staff for Personnel, JI, AFP, at the time of our June 22, 2010 Resolution; and then Chief of Staff, AFP, Gen. Ricardo David, (a) to show cause and explain to this Court, within a non-extendible period of fifteen (15) days from receipt of this Resolution, why they should not be held in contempt of this Court for their defiance of our June 22, 2010 Resolution; and (b) to submit to this Court, within a non-extendible period of fifteen (15) days from receipt of this Resolution, a copy of the documents requested by the CHR, particularly: 1) The profile and Summary of Information and pictures of T/Sgt. Jason Roxas (Philippine Army); Cpl. Maria Joana Francisco (Philippine Air Force); M/Sgt. Aron Arroyo (Philippine Air Force); an alias T.L. - all reportedly assigned with Military Intelligence Group 15 of Intelligence Service of the Armed Forces of the Philippines - and 2Lt. Fernando, a lady officer involved in the counterinsurgency operations of the 56th IB in 2006 to 2007; 2) Copies of the records of the 2007 ERAP 5 incident in Kamuning, Quezon City and the complete list of the intelligence operatives involved in that said covert military operation, including their respective Summary of Information and individual pictures; and 3) Complete list of the officers, women and men assigned at the 56th and 69th Infantry Battalion and the 7th Infantry Division from January 1, 2004 to June 30, 2007 with their respective profiles, Summary of Information and pictures; including the list of captured rebels and rebels who surrendered to the said camps and their corresponding pictures and copies of their Tactical Interrogation Reports and the cases filed against them, if any.

Burgos vs. Macapagal-Arroyo

These documents shall be released exclusively to this Court for our examination to determine their relevance to the present case and the advisability of their public disclosure. j. ORDER the Chief of Staff of the Armed Forces of the Philippines and the Commanding General of the Philippine Army to be impleaded as parties, in representation of their respective organizations, separately from the original respondents impleaded in the petition; and the dropping of President Gloria Macapagal-Arroyo as party-respondent; REFER witnesses Jeffrey T. Cabintoy and Elsa B. Agasang to the Department of Justice for
admission to the Witness Protection Security and Benefit Program, subject to the requirements of Republic Act No. 6981; and

k.

l.

NOTE the criminal complaint filed by the petitioner with the DOJ which the latter may investigate and act upon on its own pursuant to Section 21 of the Rule on the Writ of Amparo.

SO ORDERED.

Rubrico vs. Macapagal-Arroyo

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 183871 February 18, 2010

LOURDES D. RUBRICO, JEAN RUBRICO APRUEBO, and MARY JOY RUBRICO CARBONEL, Petitioners, vs. GLORIA MACAPAGAL-ARROYO, GEN. HERMOGENES ESPERON, P/DIR. GEN. AVELINO RAZON, MAJ. DARWIN SY a.k.a. DARWIN REYES, JIMMY SANTANA, RUBEN ALFARO, CAPT. ANGELO CUARESMA, a certain JONATHAN, P/SUPT. EDGAR B. ROQUERO, ARSENIO C. GOMEZ, and OFFICE OF THE OMBUDSMAN, Respondents. DECISION VELASCO, JR., J.: In this petition for review under Rule 45 of the Rules of Court in relation to Section 191 of the Rule on the Writ of Amparo2 (Amparo Rule), Lourdes D. Rubrico, Jean Rubrico Apruebo, and Mary Joy Rubrico Carbonel assail and seek to set aside the Decision3 of the Court of Appeals (CA) dated July 31, 2008 in CA-G.R. SP No. 00003, a petition commenced under the Amparo Rule. The petition for the writ of amparo dated October 25, 2007 was originally filed before this Court. After issuing the desired writ and directing the respondents to file a verified written return, the Court referred the petition to the CA for summary hearing and appropriate action. The petition and its attachments contained, in substance, the following allegations: 1. On April 3, 2007, armed men belonging to the 301st Air Intelligence and Security Squadron (AISS, for short) based in Fernando Air Base in Lipa City abducted Lourdes D. Rubrico (Lourdes), then attending a Lenten pabasa in Bagong Bayan, Dasmarias, Cavite, and brought to, and detained at, the air base without charges. Following a week of relentless interrogation - conducted alternately by hooded individuals - and what amounts to verbal abuse and mental harassment, Lourdes, chair of the Ugnayan ng Maralita para sa Gawa Adhikan, was released at Dasmarias, Cavite, her hometown, but only after being made to sign a statement that she would be a military asset. After Lourdes release, the harassment, coming in the form of being tailed on at least two occasions at different places, i.e., Dasmarias, Cavite and Baclaran in Pasay City, by motorcycle-riding men in bonnets, continued; 2. During the time Lourdes was missing, P/Sr. Insp. Arsenio Gomez (P/Insp. Gomez), then sub-station commander of Bagong Bayan, Dasmarias, Cavite, kept sending text messages to Lourdes daughter, Mary Joy R. Carbonel (Mary Joy), bringing her to beaches and asking her questions about Karapatan, an alliance of human rights organizations. He, however, failed to make an investigation even after Lourdes disappearance had been made known to him; 3. A week after Lourdes release, another daughter, Jean R. Apruebo (Jean), was constrained to leave their house because of the presence of men watching them; 4. Lourdes has filed with the Office of the Ombudsman a criminal complaint for kidnapping and arbitrary detention and administrative complaint for gross abuse of authority and grave misconduct against Capt. Angelo Cuaresma (Cuaresma), Ruben Alfaro (Alfaro), Jimmy Santana (Santana) and a certain Jonathan, c/o Headquarters 301st AISS, Fernando Air Base and Maj. Sy/Reyes with address at No. 09 Amsterdam Ext., Merville Subd., Paraaque City, but nothing has happened; and the threats and harassment incidents have been reported to the Dasmarias municipal and Cavite provincial police stations, but nothing eventful resulted from their respective investigations.

Rubrico vs. Macapagal-Arroyo Two of the four witnesses to Lourdes abduction went into hiding after being visited by government agents in civilian clothes; and
5. Karapatan conducted an investigation on the incidents. The investigation would indicate that men belonging to the Armed Forces of the Philippines (AFP), namely Capt. Cuaresma of the Philippine Air Force (PAF), Alfaro, Santana, Jonathan and Maj. Darwin Sy/Reyes, led the abduction of Lourdes; that unknown to the abductors, Lourdes was able to pilfer a "mission order" which was addressed to CA Ruben Alfaro and signed by Capt. Cuaresma of the PAF. The petition prayed that a writ of amparo issue, ordering the individual respondents to desist from performing any threatening act against the security of the petitioners and for the Office of the Ombudsman (OMB) to immediately file an information for kidnapping qualified with the aggravating circumstance of gender of the offended party. It also prayed for damages and for respondents to produce documents submitted to any of them on the case of Lourdes. Before the CA, respondents President Gloria Macapagal-Arroyo, Gen. Hermogenes Esperon, then Armed Forces of the Philippines (AFP) Chief of Staff, Police Director-General (P/Dir. Gen.) Avelino Razon, then Philippine National Police (PNP) Chief, Police Superintendent (P/Supt.) Roquero of the Cavite Police Provincial Office, Police Inspector (P/Insp.) Gomez, now retired, and the OMB (answering respondents, collectively) filed, through the Office of the Solicitor General (OSG), a joint return on the writ specifically denying the material inculpatory averments against them. The OSG also denied the allegations against the following impleaded persons, namely: Cuaresma, Alfaro, Santana, Jonathan, and Sy/Reyes, for lack of knowledge or information sufficient to form a belief as to the allegations truth. And by way of general affirmative defenses, answering respondents interposed the following defenses: (1) the President may not be sued during her incumbency; and (2) the petition is incomplete, as it fails to indicate the matters required by Sec. 5(d) and (e) of the Amparo Rule.4 Attached to the return were the affidavits of the following, among other public officials, containing their respective affirmative defenses and/or statements of what they had undertaken or committed to undertake regarding the claimed disappearance of Lourdes and the harassments made to bear on her and her daughters: 1. Gen. Esperon attested that, pursuant to a directive of then Secretary of National Defense (SND) Gilberto C. Teodoro, Jr., he ordered the Commanding General of the PAF, with information to all concerned units, to conduct an investigation to establish the circumstances behind the disappearance and the reappearance of Lourdes insofar as the involvement of alleged personnel/unit is concerned. The Provost Marshall General and the Office of the Judge Advocate General (JAGO), AFP, also undertook a parallel action. Gen. Esperon manifested his resolve to provide the CA with material results of the investigation; to continue with the probe on the alleged abduction of Lourdes and to bring those responsible, including military personnel, to the bar of justice when warranted by the findings and the competent evidence that may be gathered in the investigation process by those mandated to look into the matter;5 2. P/Dir. Gen. Razon - stated that an investigation he immediately ordered upon receiving a copy of the petition is on-going vis--vis Lourdes abduction, and that a background verification with the PNP Personnel Accounting and Information System disclosed that the names Santana, Alfaro, Cuaresma and one Jonathan do not appear in the police personnel records, although the PNP files carry the name of Darwin Reyes Y. Muga. Per the initial investigation report of the Dasmarias municipal police station, P/Dir. Gen. Razon disclosed, Lourdes was abducted by six armed men in the afternoon of April 3, 2007 and dragged aboard a Toyota Revo with plate number XRR 428, which plate was issued for a Mitsubishi van to AK Cottage Industry with address at 9 Amsterdam St., Merville Subd., Paraaque City. The person residing in the apartment on that given address is one Darius/Erwin See @ Darius Reyes allegedly working, per the latters house helper, in Camp Aguinaldo. P/Dir. Gen. Razon, however, bemoaned the fact that Mrs. Rubrico never contacted nor coordinated with the local police or other investigating units of the PNP after her release, although she is in the best position to establish the identity of her abductors and/or provide positive description through composite sketching. Nonetheless, he manifested that the PNP is ready to assist and protect the petitioners and the key witnesses

Rubrico vs. Macapagal-Arroyo from threats, harassments and intimidation from whatever source and, at the same time, to assist the Court in the implementation of its orders.6
1avv phi 1

3. P/Supt. Roquero stated conducting, upon receipt of Lourdes complaint, an investigation and submitting the corresponding report to the PNP Calabarzon, observing that neither Lourdes nor her relatives provided the police with relevant information; 4. P/Insp. Gomez alleged that Lourdes, her kin and witnesses refused to cooperate with the investigating Cavite PNP; and 5. Overall Deputy Ombudsman Orlando Casimiro - alleged that cases for violation of Articles 267 and 124, or kidnapping and arbitrary detention, respectively, have been filed with, and are under preliminary investigation by the OMB against those believed to be involved in Lourdes kidnapping; that upon receipt of the petition for a writ of amparo, proper coordination was made with the Office of the Deputy Ombudsman for the Military and other Law Enforcement Offices (MOLEO) where the subject criminal and administrative complaints were filed. Commenting on the return, petitioners pointed out that the return was no more than a general denial of averments in the petition. They, thus, pleaded to be allowed to present evidence ex parte against the President, Santana, Alfaro, Capt. Cuaresma, Darwin Sy, and Jonathan. And with leave of court, they also asked to serve notice of the petition through publication, owing to their failure to secure the current address of the latter five and thus submit, as the CA required, proof of service of the petition on them. The hearing started on November 13, 2007.7 In that setting, petitioners counsel prayed for the issuance of a temporary protection order (TPO) against the answering respondents on the basis of the allegations in the petition. At the hearing of November 20, 2007, the CA granted petitioners motion that the petition and writ be served by the courts process server on Darwin Sy/Reyes, Santana, Alfaro, Capt. Cuaresma, and Jonathan. The legal skirmishes that followed over the propriety of excluding President Arroyo from the petition, petitioners motions for service by publication, and the issuance of a TPO are not of decisive pertinence in this recital. The bottom line is that, by separate resolutions, the CA dropped the President as respondent in the case; denied the motion for a TPO for the courts want of authority to issue it in the tenor sought by petitioners; and effectively denied the motion for notice by publication owing to petitioners failure to submit the affidavit required under Sec. 17, Rule 14 of the Rules of Court.8 After due proceedings, the CA rendered, on July 31, 2008, its partial judgment, subject of this review, disposing of the petition but only insofar as the answering respondents were concerned. The fallo of the CA decision reads as follows: WHEREFORE, premises considered, partial judgment is hereby rendered DISMISSING the instant petition with respect to respondent Gen. Hermogenes Esperon, P/Dir. Gen. Avelino Razon, Supt. Edgar B. Roquero, P/Sr. Insp. Arsenio C. Gomez (ret.) and the Office of the Ombudsman. Nevertheless, in order that petitioners complaint will not end up as another unsolved case, the heads of the Armed Forces of the Philippines and the Philippine National Police are directed to ensure that the investigations already commenced are diligently pursued to bring the perpetrators to justice. The Chief of Staff of the Armed Forces of the Philippines and P/Dir. Gen. Avelino Razon are directed to regularly update petitioners and this Court on the status of their investigation. SO ORDERED. In this recourse, petitioners formulate the issue for resolution in the following wise: WHETHER OR NOT the [CA] committed reversible error in dismissing [their] Petition and dropping President Gloria Macapagal Arroyo as party respondent.

Rubrico vs. Macapagal-Arroyo Petitioners first take issue on the Presidents purported lack of immunity from suit during her term of office. The 1987 Constitution, so they claim, has removed such immunity heretofore enjoyed by the chief executive under the 1935 and 1973 Constitutions.
Petitioners are mistaken. The presidential immunity from suit remains preserved under our system of government, albeit not expressly reserved in the present constitution. Addressing a concern of his co-members in the 1986 Constitutional Commission on the absence of an express provision on the matter, Fr. Joaquin Bernas, S.J. observed that it was already understood in jurisprudence that the President may not be sued during his or her tenure.9 The Court subsequently made it abundantly clear in David v. Macapagal-Arroyo, a case likewise resolved under the umbrella of the 1987 Constitution, that indeed the President enjoys immunity during her incumbency, and why this must be so: Settled is the doctrine that the President, during his tenure of office or actual incumbency, may not be sued in any civil or criminal case, and there is no need to provide for it in the Constitution or law. It will degrade the dignity of the high office of the President, the Head of State, if he can be dragged into court litigations while serving as such. Furthermore, it is important that he be freed from any form of harassment, hindrance or distraction to enable him to fully attend to the performance of his official duties and functions. Unlike the legislative and judicial branch, only one constitutes the executive branch and anything which impairs his usefulness in the discharge of the many great and important duties imposed upon him by the Constitution necessarily impairs the operation of the Government.10 x x x And lest it be overlooked, the petition is simply bereft of any allegation as to what specific presidential act or omission violated or threatened to violate petitioners protected rights. This brings us to the correctness of the assailed dismissal of the petition with respect to Gen. Esperon, P/Dir. Gen. Razon, P/Supt. Roquero, P/Insp. Gomez, and the OMB. None of the four individual respondents immediately referred to above has been implicated as being connected to, let alone as being behind, the alleged abduction and harassment of petitioner Lourdes. Their names were not even mentioned in Lourdes Sinumpaang Salaysay11 of April 2007. The same goes for the respective Sinumpaang Salaysay and/or Karagdagang Sinumpaang Salaysay of Jean12 and Mary Joy.13 As explained by the CA, Gen. Esperon and P/Dir. Gen. Razon were included in the case on the theory that they, as commanders, were responsible for the unlawful acts allegedly committed by their subordinates against petitioners. To the appellate court, "the privilege of the writ of amparo must be denied as against Gen. Esperon and P/Dir. Gen. Razon for the simple reason that petitioners have not presented evidence showing that those who allegedly abducted and illegally detained Lourdes and later threatened her and her family were, in fact, members of the military or the police force." The two generals, the CAs holding broadly hinted, would have been accountable for the abduction and threats if the actual malefactors were members of the AFP or PNP. As regards the three other answering respondents, they were impleaded because they allegedly had not exerted the required extraordinary diligence in investigating and satisfactorily resolving Lourdes disappearance or bringing to justice the actual perpetrators of what amounted to a criminal act, albeit there were allegations against P/Insp. Gomez of acts constituting threats against Mary Joy. While in a qualified sense tenable, the dismissal by the CA of the case as against Gen. Esperon and P/Dir. Gen. Razon is incorrect if viewed against the backdrop of the stated rationale underpinning the assailed decision vis--vis the two generals, i.e., command responsibility. The Court assumes the latter stance owing to the fact that command responsibility, as a concept defined, developed, and applied under international law, has little, if at all, bearing in amparo proceedings. The evolution of the command responsibility doctrine finds its context in the development of laws of war and armed combats. According to Fr. Bernas, "command responsibility," in its simplest terms, means the "responsibility of commanders for crimes committed by subordinate members of the armed forces or other persons subject to their control in international wars or domestic conflict."14 In this sense, command responsibility is properly a form of criminal complicity. The Hague Conventions of 1907 adopted the doctrine of command responsibility,15foreshadowing the present-day precept of holding a superior accountable for the atrocities committed by his subordinates should he be remiss in his duty of control over them. As then formulated, command responsibility is "an omission mode of

Rubrico vs. Macapagal-Arroyo individual criminal liability," whereby the superior is made responsible for crimes committed by his subordinates for failing to prevent or punish the perpetrators16 (as opposed to crimes he ordered).
The doctrine has recently been codified in the Rome Statute17 of the International Criminal Court (ICC) to which the Philippines is signatory. Sec. 28 of the Statute imposes individual responsibility on military commanders for crimes committed by forces under their control. The country is, however, not yet formally bound by the terms and provisions embodied in this treaty-statute, since the Senate has yet to extend concurrence in its ratification.18 While there are several pending bills on command responsibility,19 there is still no Philippine law that provides for criminal liability under that doctrine.20 It may plausibly be contended that command responsibility, as legal basis to hold military/police commanders liable for extra-legal killings, enforced disappearances, or threats, may be made applicable to this jurisdiction on the theory that the command responsibility doctrine now constitutes a principle of international law or customary international law in accordance with the incorporation clause of the Constitution.21 Still, it would be inappropriate to apply to these proceedings the doctrine of command responsibility, as the CA seemed to have done, as a form of criminal complicity through omission, for individual respondents criminal liability, if there be any, is beyond the reach of amparo. In other words, the Court does not rule in such proceedings on any issue of criminal culpability, even if incidentally a crime or an infraction of an administrative rule may have been committed. As the Court stressed in Secretary of National Defense v. Manalo (Manalo),22 the writ of amparo was conceived to provide expeditious and effective procedural relief against violations or threats of violation of the basic rights to life, liberty, and security of persons; the corresponding amparo suit, however, "is not an action to determine criminal guilt requiring proof beyond reasonable doubt x x x or administrative liability requiring substantial evidence that will require full and exhaustive proceedings."23 Of the same tenor, and by way of expounding on the nature and role of amparo, is what the Court said in Razon v. Tagitis: It does not determine guilt nor pinpoint criminal culpability for the disappearance [threats thereof or extra-judicial killings]; it determines responsibility, or at least accountability, for the enforced disappearance [threats thereof or extrajudicial killings] for purposes of imposing the appropriate remedies to address the disappearance [or extra-judicial killings]. xxxx As the law now stands, extra-judicial killings and enforced disappearances in this jurisdiction are not crimes penalized separately from the component criminal acts undertaken to carry out these killings and enforced disappearances and are now penalized under the Revised Penal Code and special laws. The simple reason is that the Legislature has not spoken on the matter; the determination of what acts are criminal x x x are matters of substantive law that only the Legislature has the power to enact.24 x x x If command responsibility were to be invoked and applied to these proceedings, it should, at most, be only to determine the author who, at the first instance, is accountable for, and has the duty to address, the disappearance and harassments complained of, so as to enable the Court to devise remedial measures that may be appropriate under the premises to protect rights covered by the writ of amparo. As intimated earlier, however, the determination should not be pursued to fix criminal liability on respondents preparatory to criminal prosecution, or as a prelude to administrative disciplinary proceedings under existing administrative issuances, if there be any. Petitioners, as the CA has declared, have not adduced substantial evidence pointing to government involvement in the disappearance of Lourdes. To a concrete point, petitioners have not shown that the actual perpetrators of the abduction and the harassments that followed formally or informally formed part of either the military or the police chain of command. A preliminary police investigation report, however, would tend to show a link, however hazy, between the license plate (XRR 428) of the vehicle allegedly used in the abduction of Lourdes and the address of Darwin Reyes/Sy, who was alleged to be working in Camp Aguinaldo.25 Then, too, there were affidavits and testimonies on events that transpired which, if taken together, logically point to military involvement in the alleged disappearance of Lourdes, such as, but not limited to, her abduction in broad daylight, her being forcibly dragged to a vehicle blindfolded and then being brought to a place where the sounds of planes taking off and landing could be heard. Mention may also be made of the fact that Lourdes was asked about her membership in the Communist Party and of being released when she agreed to become an "asset."

Rubrico vs. Macapagal-Arroyo Still and all, the identities and links to the AFP or the PNP of the alleged abductors, namely Cuaresma, Alfaro, Santana, Jonathan, and Sy/Reyes, have yet to be established.
Based on the separate sworn statements of Maj. Paul Ciano26 and Technical Sergeant John N. Romano,27 officer-incharge and a staff of the 301st AISS, respectively, none of the alleged abductors of Lourdes belonged to the 301st AISS based in San Fernando Air Base. Neither were they members of any unit of the Philippine Air Force, per the certification28 of Col. Raul Dimatactac, Air Force Adjutant. And as stated in the challenged CA decision, a verification with the Personnel Accounting and Information System of the PNP yielded the information that, except for a certain Darwin Reyes y Muga, the other alleged abductors, i.e., Cuaresma, Alfaro, Santana and Jonathan, were not members of the PNP. Petitioners, when given the opportunity to identify Police Officer 1 Darwin Reyes y Muga, made no effort to confirm if he was the same Maj. Darwin Reyes a.k.a. Darwin Sy they were implicating in Lourdes abduction. Petitioners, to be sure, have not successfully controverted answering respondents documentary evidence, adduced to debunk the formers allegations directly linking Lourdes abductors and tormentors to the military or the police establishment. We note, in fact, that Lourdes, when queried on cross-examination, expressed the belief that Sy/Reyes was an NBI agent.29 The Court is, of course, aware of what was referred to in Razon30 as the "evidentiary difficulties" presented by the nature of, and encountered by petitioners in, enforced disappearance cases. But it is precisely for this reason that the Court should take care too that no wrong message is sent, lest one conclude that any kind or degree of evidence, even the outlandish, would suffice to secure amparo remedies and protection. Sec. 17, as complemented by Sec. 18 of the Amparo Rule, expressly prescribes the minimum evidentiary substantiation requirement and norm to support a cause of action under the Rule, thus: Sec. 17. Burden of Proof and Standard of Diligence Required.The parties shall establish their claims by substantial evidence. xxxx Sec. 18. Judgment.x x x If the allegations in the petition are proven by substantial evidence, the court shall grant the privilege of the writ and such reliefs as may be proper and appropriate; otherwise, the privilege shall be denied. (Emphasis added.) Substantial evidence is more than a mere imputation of wrongdoing or violation that would warrant a finding of liability against the person charged;31 it is more than a scintilla of evidence. It means such amount of relevant evidence which a reasonable mind might accept as adequate to support a conclusion, even if other equally reasonable minds might opine otherwise.32 Per the CAs evaluation of their evidence, consisting of the testimonies and affidavits of the three Rubrico women and five other individuals, petitioners have not satisfactorily hurdled the evidentiary bar required of and assigned to them under the Amparo Rule. In a very real sense, the burden of evidence never even shifted to answering respondents. The Court finds no compelling reason to disturb the appellate courts determination of the answering respondents role in the alleged enforced disappearance of petitioner Lourdes and the threats to her familys security. Notwithstanding the foregoing findings, the Court notes that both Gen. Esperon and P/Dir. Gen. Razon, per their separate affidavits, lost no time, upon their receipt of the order to make a return on the writ, in issuing directives to the concerned units in their respective commands for a thorough probe of the case and in providing the investigators the necessary support. As of this date, however, the investigations have yet to be concluded with some definite findings and recommendation. As regards P/Supt. Romero and P/Insp. Gomez, the Court is more than satisfied that they have no direct or indirect hand in the alleged enforced disappearance of Lourdes and the threats against her daughters. As police officers, though, theirs was the duty to thoroughly investigate the abduction of Lourdes, a duty that would include looking into the cause, manner, and like details of the disappearance; identifying witnesses and obtaining statements from them; and following evidentiary leads, such as the Toyota Revo vehicle with plate number XRR 428, and securing and preserving evidence related to the abduction and the threats that may aid in the prosecution of the person/s responsible. As we said in Manalo,33 the right to security, as a guarantee of protection by the government, is breached by the superficial and one-sidedhence, ineffectiveinvestigation by the military or the police of reported cases under their jurisdiction. As found by the CA, the local police stations concerned, including P/Supt. Roquero and P/Insp.

Rubrico vs. Macapagal-Arroyo Gomez, did conduct a preliminary fact-finding on petitioners complaint. They could not, however, make any headway, owing to what was perceived to be the refusal of Lourdes, her family, and her witnesses to cooperate. Petitioners counsel, Atty. Rex J.M.A. Fernandez, provided a plausible explanation for his clients and their witnesses attitude, "[They] do not trust the government agencies to protect them."34 The difficulty arising from a situation where the party whose complicity in extra-judicial killing or enforced disappearance, as the case may be, is alleged to be the same party who investigates it is understandable, though.
The seeming reluctance on the part of the Rubricos or their witnesses to cooperate ought not to pose a hindrance to the police in pursuing, on its own initiative, the investigation in question to its natural end. To repeat what the Court said in Manalo, the right to security of persons is a guarantee of the protection of ones right by the government. And this protection includes conducting effective investigations of extra-legal killings, enforced disappearances, or threats of the same kind. The nature and importance of an investigation are captured in theVelasquez Rodriguez case,35 in which the Inter-American Court of Human Rights pronounced: [The duty to investigate] must be undertaken in a serious manner and not as a mere formality preordained to be ineffective. An investigation must have an objective and be assumed by the State as its own legal duty, not a step taken by private interests that depends upon the initiative of the victim or his family or upon offer of proof, without an effective search for the truth by the government. (Emphasis added.) This brings us to Mary Joys charge of having been harassed by respondent P/Insp. Gomez. With the view we take of this incident, there is nothing concrete to support the charge, save for Mary Joys bare allegations of harassment. We cite with approval the following self-explanatory excerpt from the appealed CA decision: In fact, during her cross-examination, when asked what specific act or threat P/Sr. Gomez (ret) committed against her or her mother and sister, Mary Joy replied "None "36 Similarly, there appears to be no basis for petitioners allegations about the OMB failing to act on their complaint against those who allegedly abducted and illegally detained Lourdes. Contrary to petitioners contention, the OMB has taken the necessary appropriate action on said complaint. As culled from the affidavit37 of the Deputy Overall Ombudsman and the joint affidavits38 of the designated investigators, all dated November 7, 2007, the OMB had, on the basis of said complaint, commenced criminal39 and administrative40 proceedings, docketed as OMB-P-C-07-0602-E and OMB-P-A 07-567-E, respectively, against Cuaresma, Alfaro, Santana, Jonathan, and Sy/Reyes. The requisite orders for the submission of counter-affidavits and verified position papers had been sent out. The privilege of the writ of amparo, to reiterate, is a remedy available to victims of extra-judicial killings and enforced disappearances or threats of similar nature, regardless of whether the perpetrator of the unlawful act or omission is a public official or employee or a private individual. At this juncture, it bears to state that petitioners have not provided the CA with the correct addresses of respondents Cuaresma, Alfaro, Santana, Jonathan, and Sy/Reyes. The mailed envelopes containing the petition for a writ of amparo individually addressed to each of them have all been returned unopened. And petitioners motion interposed before the appellate court for notice or service via publication has not been accompanied by supporting affidavits as required by the Rules of Court. Accordingly, the appealed CA partial judgmentdisposing of the underlying petition for a writ of amparo without (1) pronouncement as to the accountability, or lack of it, of the four non-answering respondents or (2) outright dismissal of the same petition as to themhews to the prescription of Sec. 20 of the Amparo Rule on archiving and reviving cases.41 Parenthetically, petitioners have also not furnished this Court with sufficient data as to where the afore-named respondents may be served a copy of their petition for review. Apart from the foregoing considerations, the petition did not allege ultimate facts as would link the OMB in any manner to the violation or threat of violation of the petitioners rights to life, liberty, or personal security. The privilege of the writ of amparo is envisioned basically to protect and guarantee the rights to life, liberty, and security of persons, free from fears and threats that vitiate the quality of this life.42 It is an extraordinary writ conceptualized and adopted in light of and in response to the prevalence of extra-legal killings and enforced disappearances.43 Accordingly, the remedy ought to be resorted to and granted judiciously, lest the ideal sought by the Amparo Rule be diluted and

Rubrico vs. Macapagal-Arroyo undermined by the indiscriminate filing of amparo petitions for purposes less than the desire to secure amparo reliefs and protection and/or on the basis of unsubstantiated allegations.
In their petition for a writ of amparo, petitioners asked, as their main prayer, that the Court order the impleaded respondents "to immediately desist from doing any acts that would threaten or seem to threaten the security of the Petitioners and to desist from approaching Petitioners, x x x their residences and offices where they are working under pain of contempt of [this] Court." Petitioners, however, failed to adduce the threshold substantive evidence to establish the predicate facts to support their cause of action, i.e., the adverted harassments and threats to their life, liberty, or security, against responding respondents, as responsible for the disappearance and harassments complained of. This is not to say, however, that petitioners allegation on the fact of the abduction incident or harassment is necessarily contrived. The reality on the ground, however, is that the military or police connection has not been adequately proved either by identifying the malefactors as components of the AFP or PNP; or in case identification is not possible, by showing that they acted with the direct or indirect acquiescence of the government. For this reason, the Court is unable to ascribe the authorship of and responsibility for the alleged enforced disappearance of Lourdes and the harassment and threats on her daughters to individual respondents. To this extent, the dismissal of the case against them is correct and must, accordingly, be sustained. Prescinding from the above considerations, the Court distinctly notes that the appealed decision veritably extended the privilege of the writ of amparo to petitioners when it granted what to us are amparo reliefs. Consider: the appellate court decreed, and rightly so, that the police and the military take specific measures for the protection of petitioners right or threatened right to liberty or security. The protection came in the form of directives specifically to Gen. Esperon and P/Dir. Gen. Razon, requiring each of them (1) to ensure that the investigations already commenced by the AFP and PNP units, respectively, under them on the complaints of Lourdes and her daughters are being pursued with urgency to bring to justice the perpetrators of the acts complained of; and (2) to submit to the CA, copy furnished the petitioners, a regular report on the progress and status of the investigations. The directives obviously go to Gen. Esperon in his capacity as head of the AFP and, in a sense, chief guarantor of order and security in the country. On the other hand, P/Dir. Gen. Razon is called upon to perform a duty pertaining to the PNP, a crime-preventing, investigatory, and arresting institution. As the CA, however, formulated its directives, no definitive time frame was set in its decision for the completion of the investigation and the reportorial requirements. It also failed to consider Gen. Esperon and P/Dir. Gen. R azons imminent compulsory retirement from the military and police services, respectively. Accordingly, the CA directives, as hereinafter redefined and amplified to fully enforce the amparo remedies, are hereby given to, and shall be directly enforceable against, whoever sits as the commanding general of the AFP and the PNP. At this stage, two postulates and their implications need highlighting for a proper disposition of this case. First, a criminal complaint for kidnapping and, alternatively, for arbitrary detention rooted in the same acts and incidents leading to the filing of the subject amparo petition has been instituted with the OMB, docketed as OMB-P-C-O7-0602-E. The usual initial steps to determine the existence of a prima facie case against the five (5) impleaded individuals suspected to be actually involved in the detention of Lourdes have been set in motion. It must be pointed out, though, that the filing44 of the OMB complaint came before the effectivity of the Amparo Rule on October 24, 2007. Second, Sec. 2245 of the Amparo Rule proscribes the filing of an amparo petition should a criminal action have, in the meanwhile, been commenced. The succeeding Sec. 23,46 on the other hand, provides that when the criminal suit is filed subsequent to a petition for amparo, the petition shall be consolidated with the criminal action where the Amparo Rule shall nonetheless govern the disposition of the relief under the Rule. Under the terms of said Sec. 22, the present petition ought to have been dismissed at the outset. But as things stand, the outright dismissal of the petition by force of that section is no longer technically feasible in light of the interplay of the following factual mix: (1) the Court has, pursuant to Sec. 647 of the Rule, already issued ex parte the writ of amparo; (2) the CA, after a summary hearing, has dismissed the petition, but not on the basis of Sec. 22; and (3) the complaint in OMB-P-C-O7-0602-E named as respondents only those believed to be the actual abductors of Lourdes, while the instant petition impleaded, in addition, those tasked to investigate the kidnapping and detention incidents and their superiors at the top. Yet, the acts and/or omissions subject of the criminal complaint and the amparo petition are so linked as to call for the consolidation of both proceedings to obviate the mischief inherent in a multiplicity-of-suits situation.

Rubrico vs. Macapagal-Arroyo Given the above perspective and to fully apply the beneficial nature of the writ of amparo as an inexpensive and effective tool to protect certain rights violated or threatened to be violated, the Court hereby adjusts to a degree the literal application of Secs. 22 and 23 of the Amparo Rule to fittingly address the situation obtaining under the premises. 48 Towards this end, two things are at once indicated: (1) the consolidation of the probe and fact-finding aspects of the instant petition with the investigation of the criminal complaint before the OMB; and (2) the incorporation in the same criminal complaint of the allegations in this petition bearing on the threats to the right to security. Withal, the OMB should be furnished copies of the investigation reports to aid that body in its own investigation and eventual resolution of OMB-P-C-O7-0602-E. Then, too, the OMB shall be given easy access to all pertinent documents and evidence, if any, adduced before the CA. Necessarily, Lourdes, as complainant in OMB-P-C-O7-0602-E, should be allowed, if so minded, to amend her basic criminal complaint if the consolidation of cases is to be fully effective.
WHEREFORE, the Court PARTIALLY GRANTS this petition for review and makes a decision: (1) Affirming the dropping of President Gloria Macapagal-Arroyo from the petition for a writ of amparo; (2) Affirming the dismissal of the amparo case as against Gen. Hermogenes Esperon, and P/Dir. Gen. Avelino Razon, insofar as it tended, under the command responsibility principle, to attach accountability and responsibility to them, as then AFP Chief of Staff and then PNP Chief, for the alleged enforced disappearance of Lourdes and the ensuing harassments allegedly committed against petitioners. The dismissal of the petition with respect to the OMB is also affirmed for failure of the petition to allege ultimate facts as to make out a case against that body for the enforced disappearance of Lourdes and the threats and harassment that followed; and (3) Directing the incumbent Chief of Staff, AFP, or his successor, and the incumbent Director-General of the PNP, or his successor, to ensure that the investigations already commenced by their respective units on the alleged abduction of Lourdes Rubrico and the alleged harassments and threats she and her daughters were made to endure are pursued with extraordinary diligence as required by Sec. 1749 of the Amparo Rule. They shall order their subordinate officials, in particular, to do the following: (a) Determine based on records, past and present, the identities and locations of respondents Maj. Darwin Sy, a.k.a. Darwin Reyes, Jimmy Santana, Ruben Alfaro, Capt. Angelo Cuaresma, and one Jonathan; and submit certifications of this determination to the OMB with copy furnished to petitioners, the CA, and this Court; (b) Pursue with extraordinary diligence the evidentiary leads relating to Maj. Darwin Sy and the Toyota Revo vehicle with Plate No. XRR 428; and (c) Prepare, with the assistance of petitioners and/or witnesses, cartographic sketches of respondents Maj. Sy/Reyes, Jimmy Santana, Ruben Alfaro, Capt. Angelo Cuaresma, and a certain Jonathan to aid in positively identifying and locating them. The investigations shall be completed not later than six (6) months from receipt of this Decision; and within thirty (30) days after completion of the investigations, the Chief of Staff of the AFP and the Director-General of the PNP shall submit a full report of the results of the investigations to the Court, the CA, the OMB, and petitioners. This case is accordingly referred back to the CA for the purpose of monitoring the investigations and the actions of the AFP and the PNP. Subject to the foregoing modifications, the Court AFFIRMS the partial judgment dated July 31, 2008 of the CA. SO ORDERED.

Rubrico vs. Macapagal-Arroyo

Boac vs. Cadapan

EN BANC

LT. COL. ROGELIO BOAC, LT. COL. G.R. Nos. 184461-62 FELIPE ANOTADO AND LT. FRANCIS MIRABELLE SAMSON, Petitioners,

- versus -

ERLINDA T. CADAPAN CONCEPCION E. EMPEO, Respondents.

AND

x-------------------------------x
ERLINDA T. CADAPAN CONCEPCION E. EMPEO, Petitioners, AND

G.R. No. 184495

- versus -

Boac vs. Cadapan

GEN. HERMOGENES ESPERON, P/DIR.GEN. AVELINO RAZON, (RET.) GEN. ROMEO TOLENTINO, (RET.) GEN. JOVITO PALPARAN, LT. COL. ROGELIO BOAC, LT. COL. FELIPE ANOTADO, ET AL., Respondents.

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

ERLINDA T. CADAPAN CONCEPCION E. EMPEO, Petitioners,

AND

- versus G.R. No. 187109

GLORIA MACAPAGAL-ARROYO, GEN. HERMOGENES ESPERON, P/DIR.GEN. AVELINO RAZON, (RET.) GEN. ROMEO TOLENTINO, (RET.) GEN. JOVITO PALPARAN, LT. COL. ROGELIO BOAC, LT. COL. FELIPE ANOTADO, DONALD CAIGAS, A.K.A. ALAN OR ALVIN, ARNEL ENRIQUEZ AND LT. FRANCIS MIRABELLE SAMSON, Respondents.

Present:

CORONA, C.J., CARPIO, CARPIO MORALES, VELASCO, JR., NACHURA, LEONARDO-DE CASTRO, BRION,

Boac vs. Cadapan

PERALTA, BERSAMIN, DEL CASTILLO,* ABAD,** VILLARAMA, PEREZ, and MENDOZA,** JJ.

Promulgated:

May 31, 2011 x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

DECISION

CARPIO MORALES, J.: At 2:00 a.m. of June 26, 2006, armed men abducted Sherlyn Cadapan (Sherlyn), Karen Empeo (Karen) and Manuel Merino (Merino) from a house in San Miguel, Hagonoy, Bulacan. The three were herded onto a jeep bearing license plate RTF 597 that sped towards an undisclosed location.

Having thereafter heard nothing from Sherlyn, Karen and Merino, their respective families scoured nearby police precincts and military camps in the hope of finding them but the same yielded nothing.

Boac vs. Cadapan

On July 17, 2006, spouses Asher and Erlinda Cadapan and Concepcion Empeo filed a petition for habeas corpus[1] before the Court, docketed asG.R. No. 173228, impleading then Generals Romeo Tolentino and Jovito Palparan (Gen. Palparan), Lt. Col. Rogelio Boac (Lt. Col. Boac), Arnel Enriquez and Lt. Francis Mirabelle Samson (Lt. Mirabelle) as respondents. By Resolution of July 19, 2006,[2] the Court issued a writ of habeas corpus, returnable to the Presiding Justice of the Court of Appeals.

The habeas corpus petition was docketed at the appellate court as CA-G.R. SP No. 95303.

By Return of the Writ dated July 21, 2006,[3] the respondents in the habeas corpus petition denied that Sherlyn, Karen and Merino are in the custody of the military. To the Return were attached affidavits from the respondents, except Enriquez, who all attested that they do not know Sherlyn, Karen and Merino; that they had inquired from their subordinates about the reported abduction and disappearance of the three but their inquiry yielded nothing; and that the military does not own nor possess a stainless steel jeep with plate number RTF 597. Also appended to the Return was a certification from the Land Transportation Office (LTO) that plate number RTF 597 had not yet been manufactured as of July 26, 2006.

Trial thereupon ensued at the appellate court.

Witness Wilfredo Ramos, owner of the house where the three were abducted, recounted that on June 26, 2006, while he was inside his house in Hagonoy, he witnessed armed men wearing bonnets abduct Sherlyn and Karen from his house and also abduct Merino on their way out; and that tied and blindfolded, the three were boarded on a jeep and taken towards Iba in Hagonoy.[4]

Witness Alberto Ramirez (Ramirez) recalled that on June 28, 2006, while he was sleeping in his house, he was awakened by Merino who, in the company of a group of unidentified armed men, repaired to his house; that onboard a stainless jeep bearing plate number RTF 597, he (Ramirez) was taken to a place in Mercado, Hagonoy and was asked by one Enriquez if he knew Sierra, Tanya, Vincent and Lisa; and that Enriquez described the appearance of two

Boac vs. Cadapan

ladies which matched those of Sherlyn and Karen, whom he was familiar with as the two had previously slept in his house.[5]

Another witness, Oscar Leuterio, who was himself previously abducted by armed men and detained for five months, testified that when he was detained in Fort Magsaysay in Nueva Ecija, he saw two women fitting the descriptions of Sherlyn and Karen, and also saw Merino, his kumpare.[6]

Lt. Col. Boac, the then commander of Task Force Malolos, a special operations team tasked to neutralize the intelligence network of communists and other armed groups, declared that he conducted an inquiry on the abduction of Sherlyn, Karen and Merino but his subordinates denied knowledge thereof.[7]

While he denied having received any order from Gen. Palparan to investigate the disappearance of Sherlyn, Karen and Merino, his assistance in locating the missing persons was sought by the mayor of Hagonoy.

Major Dominador Dingle, the then division adjutant of the Philippine Armys 7th Infantry Division in Fort Magsaysay, denied that a certain Arnel Enriquez is a member of his infantry as in fact his name did not appear in the roster of troops.[8]

Roberto Se, a supervisor of the Equipment, Plate Number and Supply Units of the LTO, denied that his office manufactured and issued a plate number bearing number RTF 597.[9]

On rebuttal, Lt. Mirabelle, Lt. Col. Boac and Gen. Palparan took the witness stand as hostile witnesses.

Lt. Mirabelle testified that she did not receive any report on the abduction of Sherlyn, Karen and Merino nor any order to investigate the matter. And she denied knowing anything about the abduction of Ramirez nor who were Ka Tanya or Ka Lisa.[10]

Boac vs. Cadapan

Gen. Palparan testified that during a debate in a televised program, he mentioned the names of Ka Lisa and Ka Tanya as the ones involved in revolutionary tax activities; and that he ordered Lt. Col. Boac to conduct an investigation on the disappearance of Sherlyn, Karen and Merino.[11] When pressed to elaborate, he stated: I said that I got the report that it stated that it was Ka Tanya and Ka Lisa that, I mean, that incident happened in Hagonoy, Bulacan was the abduction of Ka Lisa and Ka Tanya, Your Honor, and another one. That was the report coming from the people in the area.[12]

By Decision of March 29, 2007,[13] the Court of Appeals dismissed the habeas corpus petition in this wise:

As Sherlyn Cadapan, Karen Empeo and Manuel Merino are indeed missing, the present petition for habeas corpus is not the appropriate remedy since the main office or function of the habeas corpus is to inquire into the legality of ones detention which presupposes that respondents have actual custody of the persons subject of the petition. The reason therefor is that the courts have limited powers, means and resources to conduct an investigation. x x x.

It being the situation, the proper remedy is not a habeas corpus proceeding but criminal proceedings by initiating criminal suit for abduction or kidnapping as a crime punishable by law. In the case of Martinez v. Mendoza, supra, the Supreme Court restated the doctrine that habeas corpus may not be used as a means of obtaining evidence on the whereabouts of a person, or as a means of finding out who has specifically abducted or caused the disappearance of a certain person. (emphasis and underscoring supplied)

Thus the appellate court disposed:

WHEREFORE, the petition for habeas corpus is hereby DISMISSED, there being no strong evidence that the missing persons are in the custody of the respondents.

The Court, however, further resolves to refer the case to the Commission on Human Rights, the National Bureau of Investigation and the Philippine National Police for separate investigations and

Boac vs. Cadapan appropriate actions as may be warranted by their findings and to furnish the Court with their separate reports on the outcome of their investigations and the actions taken thereon.

Let copies of this decision be furnished the Commission on Human Rights, the National Bureau of Investigation and the Philippine National Police for their appropriate actions.

SO ORDERED. (emphasis and underscoring supplied)

Petitioners in CA-G.R. SP No. 95303 moved for a reconsideration of the appellate courts decision. They also moved to present newly discovered evidence consisting of the testimonies of Adoracion Paulino, Sherlyns mother-in-law who was allegedly threatened by soldiers; and Raymond Manalo who allegedly met Sherlyn, Karen and Merino in the course of his detention at a military camp.

During the pendency of the motion for reconsideration in CA-G.R. SP No. 95303, Erlinda Cadapan and Concepcion Empeo filed before this Court a Petition for Writ of Amparo[14] With Prayers for Inspection of Place and Production of Documents dated October 24, 2007, docketed as G.R. No. 179994. The petition impleaded the same respondents in the habeas corpus petition, with the addition of then President Gloria Macapagal-Arroyo, then Armed Forces of the Phil. (AFP) Chief of Staff Hermogenes Esperon Jr., then Phil. National Police (PNP) Chief Gen. Avelino Razon (Gen. Razon), Lt. Col. Felipe Anotado (Lt. Col. Anotado) and Donald Caigas.

Then President Arroyo was eventually dropped as respondent in light of her immunity from suit while in office.

Petitioners in G.R. No. 179994 also prayed that they be allowed to inspect the detention areas of the following places:

1.

7th Infantry Division at Fort Magsaysay, Laur, Nueva Ecija

Boac vs. Cadapan 2. 24th Infantry Batallion at Limay, Bataan

3.

Army Detachment inside Valmocina Farm, Pinaod, San Ildefonso, Bulacan

4.

Camp Tecson, San Miguel, Bulacan

5.

The Resthouse of Donald Caigas alias Allan or Alvin of the 24th Infantry Batallion at Barangay Banog, Bolinao, Pangasinan

6.

56th Infantry Batallion Headquarters at Iba, Hagonoy, Bulacan

7.

Army Detachment at Barangay Mercado, Hagonoy, Bulacan

8.

Beach House [at] Iba, Zambales used as a safehouse with a retired military personnel as a caretaker;

By Resolution of October 25, 2007, the Court issued in G.R. No. 179994 a writ of amparo returnable to the Special Former Eleventh Division of the appellate court, and ordered the consolidation of the amparo petition with the pending habeas corpus petition.

Docketed as CA-G.R. SP No. 002, respondents in the amparo case, through the Solicitor General, filed their Return of the Writ on November 6, 2007.[15] In the Return, Gen. Palparan, Lt. Col. Boac and Lt. Mirabelle reiterated their earlier narrations in the habeas corpus case.

Gen. Hermogenes Esperon Jr. stated in the Return that he immediately caused to investigate and verify the identities of the missing persons and was aware of the earlier decision of the appellate court ordering the police, the Commission on Human Rights and the National Bureau of Investigation to take further action on the matter.[16]

Boac vs. Cadapan

Lt. Col. Felipe Anotado, the then battalion commander of the 24th Infantry Battalion based in Balanga City, Bataan, denied any involvement in the abduction. While the 24th Infantry Battalion detachment was reported to be a detention site of the missing persons, Lt. Col. Anotado claimed that he found no untoward incident when he visited said detachment. He also claimed that there was no report of the death of Merino per his inquiry with the local police.[17]

Police Director General Avelino Razon narrated that he ordered the compilation of pertinent records, papers and other documents of the PNP on the abduction of the three, and that the police exhausted all possible actions available under the circumstances.[18]

In addition to the witnesses already presented in the habeas corpus case, petitioners called on Adoracion Paulino and Raymond Manalo to testify during the trial.

Adoracion Paulino recalled that her daughter-in-law Sherlyn showed up at home on April 11, 2007, accompanied by two men and three women whom she believed were soldiers. She averred that she did not report the incident to the police nor inform Sherlyns mother about the visit.[19]

Raymond Manalo (Manalo) claimed that he met the three abducted persons when he was illegally detained by military men in Camp Tecson in San Miguel, Bulacan. His group was later taken to a camp in Limay, Bataan. He recalled that Lt. Col. Anotado was the one who interrogated him while in detention.[20]

In his Sinumpaang Salaysay,[21] Manalo recounted:

xxxx

59.

Saan ka dinala mula sa Sapang?

Pagkalipas ng humigit kumulang 3 buwan sa Sapang, dinala ako sa Camp Tecson sa ilalim ng 24th IB.

Boac vs. Cadapan

xxxx

Sa loob ng barracks ko nakilala si Sherlyn Cadapan, isang estudyante ng UP.

Ipinapalinis din sa akin ang loob ng barracks. Sa isang kwarto sa loob ng barracks, may nakita akong babae na nakakadena[.] Noong una, pinagbawalan akong makipag-usap sa kanya. Sa ikatlo o ikaapat na araw, nakausap ko yung babaeng nagngangalang Sherlyn. Binigyan ko siya ng pagkain. Sinabi niya sa akin na dinukot si[ya] sa Hagonoy, Bulacan at matindi ang tortyur na dinaranas niya. Sabi niya gusto niyang umuwi at makasama ang kanyang magulang. Umiiyak siya. Sabi niya sa akin ang buong pangalan niya ay Sherlyn Cadapan, mula sa Laguna. Sa araw tinatanggal ang kanyang kadena at inuutusan si Sherlyn na maglaba.

x x x x.

61.

Sino ang mga nakilala mo sa Camp Tecson?

Dito sa Camp Tecson naming nakilala si Allan Alvin (maya-maya nalaman naming na siya pala si Donald Caigas), ng 24th IB, na tinatawag na master o commander ng kanyang mga tauhan.

Pagkalipas ng 2 araw matapos dalhin si Reynaldo sa Camp Tecson dumating sina Karen Empeo at Manuel Merino na mga bihag din. Inilagay si Karen at Manuel sa kwarto ni Allan*.+ Kami naman ni Reynaldo ay nasa katabing kwarto, kasama si Sherlyn.

xxxx

62.

xxxx

Kaming mga lalake (ako, si Reynaldo sina Sherlyn at Karen ay ginawang labandera.

at

si Manuel)

ay

ginawang

utusan,

habang

Boac vs. Cadapan Si Sherlyn ang pinahirapan nina Mickey, Donald at Billy. Sabi ni Sherlyn sa akin na siyay ginahasa.

xxxx

63.

xxxx

xxxx

Kaming lima (ako, si Reynaldo, si Sherlyn, si Karen at si [Merino]) ang dinala sa Limay. Sinakay ako, si Reynaldo, si Sherlyn at si [Merino] sa isang stainless na jeep. SiKaren ay isinakay sa itim na sasakyan ni Donald Caigas. x x x x

xxxx

66.

Saan pa kayo dinala mula sa Limay, Bataan?

Mula sa Limay, kaming 5 (ako, si Reynaldo, si Sherlyn, Si Karen at si Manuel) ay dinala sa isang safehouse sa Zambales, tabi ng dagat. x x x x (underscoring supplied; italics and emphasis in the original)

On rebuttal, Lt. Col. Anotado and Col. Eduardo Boyles Davalan were called to the witness stand.

Lt. Col. Anotado denied seeing or meeting Manalo. He posited that Manalo recognized him because he was very active in conducting lectures inBataan and even appeared on television regarding an incident involving the 24th Infantry Batallion. He contended that it was impossible for Manalo, Sherlyn, Karen and Merino to be detained in the Limay detachment which had no detention area.

Boac vs. Cadapan

Col. Eduardo Boyles Davalan, the then chief of staff of the First Scout Ranger Regiment in Camp Tecson, testified that the camp is not a detention facility, nor does it conduct military operations as it only serves as a training facility for scout rangers. He averred that his regiment does not have any command relation with either the 7th Infantry Division or the 24th Infantry Battalion.[22]

By Decision of September 17, 2008,[23] the appellate court granted the Motion for Reconsideration in CA-G.R. SP No. 95303 (the habeas corpuscase) and ordered the immediate release of Sherlyn, Karen and Merino in CA-G.R. SP No. 00002 (the amparo case). Thus it disposed:

WHEREFORE, in CA-G.R. SP NO. 95303 (Habeas Corpus case), the Motion for Reconsideration is GRANTED.

Accordingly, in both CA-G.R. SP NO. 95303 (Habeas Corpus case) and in CA-G.R. SP NO. 00002 (Amparo case), the respondents are thereby ordered to immediately RELEASE, or cause the release, from detention the persons of Sher[lyn] Cadapan, Karen Empeo and Manuel Merino.

Respondent Director General Avelino Razon is hereby ordered to resume *the+ PNPs unfinished investigation so that the truth will be fully ascertained and appropriate charges filed against those truly responsible.

SO ORDERED.

In reconsidering its earlier Decision in the habeas corpus case, the appellate court relied heavily on the testimony of Manalo in this wise:

With the additional testimony of Raymond Manalo, the petitioners have been able to convincingly prove the fact of their detention by some elements in the military. His testimony is a first hand account that military and civilian personnel under the 7th Infantry Division were responsible for the abduction of Sherlyn Cadapan, Karen Empeo and Manuel Merino. He also confirmed the claim of Oscar

Boac vs. Cadapan Leuterio that the latter was detained in Fort Magsaysay. It was there where he (Leuterio) saw Manuel Merino.

His testimony that Leuterio saw Manuel Merino in Fort Magsaysay may be hearsay but not with respect to his meeting with, and talking to, the three desaparecidos. His testimony on those points was no hearsay. Raymond Manalo saw the three with his very own eyes as they were detained and tortured together. In fact, he claimed to be a witness to the burning of Manuel Merino. In the absence of confirmatory proof, however, the Court will presume that he is still alive.

The testimony of Raymond Manalo can no longer be ignored and brushed aside. His narration and those of the earlier witnesses, taken together, constitute more than substantial evidence warranting an order that the three be released from detention if they are not being held for a lawful cause. They may be moved from place to place but still they are considered under detention and custody of the respondents.

His testimony was clear, consistent and convincing. x x x.

xxxx

The additional testimonies of Lt. Col. Felipe Anotado and Col. Eduardo Boyles Davalan were of no help either. Again, their averments were the same negative ones which cannot prevail over those of Raymond Manalo. Indeed, Camp Tecson has been utilized as a training camp for army scout rangers. Even Raymond Manalo noticed it but the camps use for purposes other than training cannot be discounted.

xxxx

In view of the foregoing, there is now a clear and credible evidence that the three missing persons, [Sherlyn, Karen and Merino], are being detained in military camps and bases under the 7th Infantry Division. Being not held for a lawful cause, they should be immediately released from detention. (italic in the original; emphasis and underscoring supplied)

Meanwhile, in the amparo case, the appellate court deemed it a superfluity to issue any inspection order or production order in light of the release order. As it earlier ruled in the habeas

Boac vs. Cadapan

corpus case, it found that the three detainees right to life, liberty and security was being violated, hence, the need to immediately release them, or cause their release. The appellate court went on to direct the PNP to proceed further with its investigation since there were enough leads as indicated in the records to ascertain the truth and file the appropriate charges against those responsible for the abduction and detention of the three.

Lt. Col. Rogelio Boac, et al. challenged before this Court, via petition for review, the September 17, 2008 Decision of the appellate court. This was docketed as G.R. Nos. 184461-62, the first above-captioned case- subject of the present Decision.

Erlinda Cadapan and Concepcion Empeo, on the other hand, filed their own petition for review also challenging the same September 17, 2008 Decision of the appellate court only insofar as the amparo aspect is concerned. Their petition, docketed as G.R. No. 179994, was redocketed as G.R. No. 184495, the second above-captioned case.

By Resolution of June 15, 2010, the Court ordered the consolidation of G.R. No. 184495 with G.R. Nos. 1844461-62.[24]

Meanwhile, Erlinda Cadapan and Concepcion Empeo filed before the appellate court a Motion to Cite Respondents in Contempt of Court for failure of the respondents in the amparo and habeas corpus cases to comply with the directive of the appellate court to immediately release the three missing persons. By Resolution of March 5, 2009,[25] the appellate court denied the motion, ratiocinating thus:

While the Court, in the dispositive portion, ordered the respondents to immediately RELEASE, or cause the release, from detention the persons of Sherlyn Cadapan, Karen Empeo and Manuel Merino, the decision is not ipso facto executory. The use of the term immediately does not mean that that it is automatically executory. There is nothing in the Rule on the Writ of Amparo which states that a decision rendered is immediately executory. x x x.

Neither did the decision become final and executory considering that both parties questioned the Decision/Resolution before the Supreme Court. x x x.

Boac vs. Cadapan Besides, the Court has no basis. The petitioners did not file a motion for execution pending appeal under Section 2 of Rule 39. There being no motion, the Court could not have issued, and did not issue, a writ of execution. x x x. (underscoring supplied)

Via a petition for certiorari filed on March 30, 2009 before this Court, Erlinda Cadapan and Concepcion Empeo challenged the appellate courts March 5, 2009 Resolution denying their motion to cite respondents in contempt. The petition was docketed as G.R. No. 187109, the last above-captioned case subject of the present Decision.

Only Lt. Col. Anotado and Lt. Mirabelle remained of the original respondents in the amparo and habeas corpus cases as the other respondents had retired from government service.[26] The AFP has denied that Arnel Enriquez was a member of the Philippine Army.[27] The whereabouts of Donald Caigas remain unknown.[28] In G.R. Nos. 184461-62, petitioners posit as follows:

THE COURT OF APPEALS GROSSLY MISAPPRECIATED THE VALUE OF THE TESTIMONY OF RAYMOND MANALO.

II

THE PETITION[S] FOR HABEAS CORPUS AND WRIT OF AMPARO SHOULD BE DISMISSED BECAUSE RESPONDENTS FAILED TO PROVE BY THE REQUIRED QUANTUM OF EVIDENCE THAT PETITIONERS HAVE SHERLYN CADAPAN, KAREN EMPEO AND MANUEL MERINO ARE IN THEIR CUSTODY.

III

Boac vs. Cadapan PETITIONERS DENIALS PER SE SHOULD NOT HAVE BEEN TAKEN AGAINST THEM BECAUSE THEY DID NOT REALLY HAVE ANY INVOLVEMENT IN THE ALLEGED ABDUCTION; MOREOVER, THE SUPPOSED INCONSISTENCIES IN THEIR TESTIMONIES ARE ON POINTS IRRELEVANT TO THE PETITION.

IV

THE DISPOSITIVE PORTION OF THE ASSAILED DECISION IS VAGUE AND INCONGRUENT WITH THE FINDINGS OF THE COURT OF APPEALS.

THE COURT OF APPEALS IGNORED AND FAILED TO RULE UPON THE FATAL PROCEDURAL INFIRMITIES IN THE PETITION FOR WRIT OF AMPARO.[29]

In G.R. No. 184495, petitioners posit as follows:

5.

The Court of Appeals erred in not granting the Interim Relief for Inspection of Places;

6.

The Court of Appeals erred in not granting the Interim Relief for Production of Documents;

7.

The Court of Appeals erred in not finding that the Police Director Gen. Avelino Razon did not make extraordinary diligence in investigating the enforced disappearance of the aggrieved parties

8.

The Court of Appeals erred in not finding that this was not the command coming from the highest echelon of powers of the Armed Forces of the Philippines, Philippine Army and the Seventh Infantry Division of the Philippine Army to enforcibly disappear [sic+ the aggrieved parties

9.

The Court of Appeals erred in dropping President Gloria Macapagal Arroyo as party respondent in this case;

Boac vs. Cadapan

10.

The Court of Appeals erred in not finding that President Gloria Macapagal Arroyo had command responsibility in the enforced disappearance and continued detention of the three aggrieved parties

11.

The Court of Appeals erred in not finding that the Armed Forces Chief of Staff then Hermogenes Esperon and the Present Chief of Staff as having command responsibility in the enforced disappearance and continued detention of the three aggrieved parties[30]

In G.R. No. 187109, petitioners raise the following issues:

[1] Whether the decision in the Court of Appeals has become final and executory[.]

[2] Whetherthere is a need to file a motion for execution in a Habeas Corpus decision or in an Amparo decision[.]

[3] Whetheran appeal can stay the decision of a Habeas Corpus *case+ *or+ an Amparo case[.][31]

Essentially, the consolidated petitions present three primary issues, viz: a) whether the testimony of Raymond Manalo is credible; b) whether the chief of the AFP, the commanding general of the Philippine Army, as well as the heads of the concerned units had command responsibility over the abduction and detention of Sherlyn, Karen and Merino; and c) whether there is a need to file a motion for execution to cause the release of the aggrieved parties.

G.R. Nos. 184461-62

Boac vs. Cadapan

Petitioners Lt. Col. Boac, et al. contend that the appellate court erred in giving full credence to the testimony of Manalo who could not even accurately describe the structures of Camp Tecson where he claimed to have been detained along with Sherlyn, Karen and Merino. They underscore that Camp Tecsonis not under the jurisdiction of the 24th Infantry Batallion and that Manalos testimony is incredible and full of inconsistencies.[32]

In Secretary of National Defense v. Manalo,[33] an original petition for Prohibition, Injunction and Temporary Restraining Order which was treated as a petition under the Amparo Rule, said Rule having taken effect during the pendency of the petition, the Court ruled on the truthfulness and veracity of the personal account of Manalo which included his encounter with Sherlyn, Kara and Merino while on detention. Thus it held:

We affirm the factual findings of the appellate court, largely based on respondent Raymond Manalos affidavit and testimony, viz: x x x x. We reject the claim of petitioners that respondent Raymond Manalos statements were not corroborated by other independent and credible pieces of evidence. Raymonds affidavit and testimony were corroborated by the affidavit of respondent Reynaldo Manalo. The testimony and medical reports prepared by forensic specialist Dr. Molino, and the pictures of the scars left by the physical injuries inflicted on respondents, also corroborate respondents accounts of the torture they endured while in detention. Respondent Raymond Manalos familiarity with the facilities in Fort Magsaysay such as the DTU, as shown in his testimony and confirmed by Lt. Col. Jimenez to be the Division Training Unit, firms up respondents story that they were detained for some time in said military facility. (citations omitted; emphasis and underscoring supplied)

On Manalos having allegedly encountered Sherlyn, Karen and Merino while on detention, the Court in the immediately cited case synthesized his tale as follows:

The next day, Raymonds chains were removed and he was ordered to clean outside the barracks. It was then he learned that he was in a detachment of the Rangers. There were many soldiers, hundreds of them were training. He was also ordered to clean inside the barracks. In one of the rooms therein, he met Sherlyn Cadapan from Laguna. She told him that she was a student of the University of the Philippines and was abducted in Hagonoy, Bulacan. She confided that she had been subjected to severe torture and raped. She was crying and longing to go home and be with her parents. During the day, her chains were removed and she was made to do the laundry.

Boac vs. Cadapan

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

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

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

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

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

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

x x x x.[34] (emphasis and underscoring supplied)

The Court takes judicial notice of its Decision in the just cited Secretary of National Defense v. Manalo[35] which assessed the account of Manalo to be a candid and forthright narrative of his and his brother Reynaldos abduction by the military in 2006; and of the corroborative testimonies, in the same case, of Manalos brother Reynaldo and a forensic specialist, as well as Manalos graphic description of the detention area. There is thus no compelling reason for the Court, in the present case, to disturb its appreciation in Manalos testimony. The outright denial of petitioners Lt. Col. Boac, et al. thus crumbles.

Petitioners go on to point out that the assailed Decision of the appellate court is vague and incongruent with *its+ findings for, so they contend, while the appellate court referred to the perpetrators as misguided and self-righteous civilian and military elements of the 7th Infantry Division, it failed to identify who these perpetrators are. Moreover, petitioners assert that Donald Caigas and Arnel Enriquez are not members of the AFP. They furthermore point out that their co-petitioners Generals Esperon, Tolentino and Palparan have already retired from the service and thus have no more control of any military camp or base in the country.[36]

There is nothing vague and/or incongruent about the categorical order of the appellate court for petitioners to release Sherlyn, Karen and Merino. In its discourse, the appellate court merely referred to a few misguided self-righteous people who resort to the extrajudicial process of neutralizing those who disagree with the countrys democratic system of government. Nowhere did it specifically refer to the members of the 7th Infantry Division as the misguided self-righteous ones.

Petitioners finally point out that the parents of Sherlyn and Karen do not have the requisite standing to file the amparo petition on behalf of Merino. They call attention to the fact that in

Boac vs. Cadapan

the amparo petition, the parents of Sherlyn and Karen merely indicated that they were concerned with Manuel Merino as basis for filing the petition on his behalf.[37]

Section 2 of the Rule on the Writ of Amparo[38] provides:

The petition may be filed by the aggrieved party or by any qualified person or entity in the following order:

(a) Any member of the immediate family, namely: the spouse, children and parents of the aggrieved party;

(b) Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree of consanguinity or affinity, in default of those mentioned in the preceding paragraph; or

(c) Any concerned citizen, organization, association or institution, if there is no known member of the immediate family or relative of the aggrieved party.

Indeed, the parents of Sherlyn and Karen failed to allege that there were no known members of the immediate family or relatives of Merino. The exclusive and successive order mandated by the above-quoted provision must be followed. The order of priority is not without reasonto prevent the indiscriminate and groundless filing of petitions for amparo which may even prejudice the right to life, liberty or security of the aggrieved party.[39]

The Court notes that the parents of Sherlyn and Karen also filed the petition for habeas corpus on Merinos behalf. No objection was raised therein for, in a habeas corpus proceeding, any person may apply for the writ on behalf of the aggrieved party.[40]

It is thus only with respect to the amparo petition that the parents of Sherlyn and Karen are precluded from filing the application on Merinos behalf as they are not authorized parties under the Rule.

Boac vs. Cadapan

G.R. No. 184495

Preliminarily, the Court finds the appellate courts dismissal of the petitions against then President Arroyo well-taken, owing to her immunity from suit at the time the habeas corpus and amparo petitions were filed.[41]

Settled is the doctrine that the President, during his tenure of office or actual incumbency, may not be sued in any civil or criminal case, and there is no need to provide for it in the Constitution or law. It will degrade the dignity of the high office of the President, the Head of State, if he can be dragged into court litigations while serving as such. Furthermore, it is important that he be freed from any form of harassment, hindrance or distraction to enable him to fully attend to the performance of his official duties and functions. Unlike the legislative and judicial branch, only one constitutes the executive branch and anything which impairs his usefulness in the discharge of the many great and important duties imposed upon him by the Constitution necessarily impairs the operation of the Government. x x x [42]

Parenthetically, the petitions are bereft of any allegation that then President Arroyo permitted, condoned or performed any wrongdoing against the three missing persons.

On the issue of whether a military commander may be held liable for the acts of his subordinates in an amparo proceeding, a brief discussion of the concept of command responsibility and its application insofar as amparo cases already decided by the Court is in order.

Rubrico v. Macapagal Arroyo[43] expounded on the concept of command responsibility as follows:

The evolution of the command responsibility doctrine finds its context in the development of laws of war and armed combats. According to Fr. Bernas, "command responsibility," in its simplest terms, means the "responsibility of commanders for crimes committed by subordinate members of the armed forces or other persons subject to their control in international wars or domestic conflict." In this sense, command responsibility is properly a form of criminal complicity. The Hague Conventions of 1907 adopted the

Boac vs. Cadapan doctrine of command responsibility, foreshadowing the present-day precept of holding a superior accountable for the atrocities committed by his subordinates should he be remiss in his duty of control over them. As then formulated, command responsibility is "an omission mode of individual criminal liability ," whereby the superior is made responsible forcrimes committed by his subordinates for failing to prevent or punish the perpetrators (as opposed to crimes he ordered). (citations omitted; emphasis in the original; underscoring supplied)[44]

It bears stressing that command responsibility is properly a form of criminal complicity,[45] and thus a substantive rule that points to criminal or administrative liability.

An amparo proceeding is not criminal in nature nor does it ascertain the criminal liability of individuals or entities involved. Neither does it partake of a civil or administrative suit.[46] Rather, it is a remedial measure designed to direct specified courses of action to government agencies to safeguard the constitutional right to life, liberty and security of aggrieved individuals.[47]

Thus Razon Jr. v. Tagitis [48] enlightens:

[An amparo proceeding] does nor determine guilt nor pinpoint criminal culpability for the disappearance [threats thereof or extrajudicial killings]; it determines responsibility, or at least accountability, for the enforced disappearancefor purposes of imposing the appropriate remedies to address the disappearance[49] (emphasis and underscoring supplied)

Further, Tagitis defines what constitutes responsibility and accountability, viz:

x x x. Responsibility refers to the extent the actors have been established by substantial evidence to have participated in whatever way, by action or omission, in an enforced disappearance, as a measure of the remedies this Court shall craft, among them, the directive to file the appropriate criminal and civil cases against the responsible parties in the proper courts. Accountability, on the other hand, refers to the measure of remedies that should be addressed to those who exhibited involvement in the enforced disappearance without bringing the level of their complicity to the level of responsibility defined above; or who are imputed with knowledge relating to the enforced disappearance and who carry the burden of disclosure; or those who carry, but have failed to discharge, the burden of extraordinary diligence in the

Boac vs. Cadapan investigation of the enforced disappearance. In all these cases, the issuance of the Writ of Amparo is justified by our primary goal of addressing the disappearance, so that the life of the victim is preserved and his liberty and security are restored.[50] (emphasis in the original; underscoring supplied)

Rubrico categorically denies the application of command responsibility in amparo cases to determine criminal liability.[51] The Court maintains its adherence to this pronouncement as far as amparo cases are concerned.

Rubrico, however, recognizes a preliminary yet limited application of command responsibility in amparo cases to instances of determining theresponsible or accountable individuals or entities that are duty-bound to abate any transgression on the life, liberty or security of the aggrieved party.

If command responsibility were to be invoked and applied to these proceedings, it should, at most, be only to determine the author who, at the first instance, is accountable for, and has the duty to address, the disappearance and harassments complained of, so as to enable the Court to devise remedial measures that may be appropriate under the premises to protect rights covered by the writ of amparo. As intimated earlier, however, the determination should not be pursued to fix criminal liability on respondents preparatory to criminal prosecution, or as a prelude to administrative disciplinary proceedings under existing administrative issuances, if there be any.[52] (emphasis and underscoring supplied)

In other words, command responsibility may be loosely applied in amparo cases in order to identify those accountable individuals that have the power to effectively implement whatever processes an amparo court would issue.[53] In such application, the amparo court does not impute criminal responsibility but merely pinpoint the superiors it considers to be in the best position to protect the rights of the aggrieved party.

Such identification of the responsible and accountable superiors may well be a preliminary determination of criminal liability which, of course, is still subject to further investigation by the appropriate government agency.

Boac vs. Cadapan

Relatedly, the legislature came up with Republic Act No. 9851[54] (RA 9851) to include command responsibility as a form of criminal complicity in crimes against international humanitarian law, genocide and other crimes.[55] RA 9851 is thus the substantive law that definitively imputes criminal liability to those superiors who, despite their position, still fail to take all necessary and reasonable measures within their power to prevent or repress the commission of illegal acts or to submit these matters to the competent authorities for investigation and prosecution.

The Court finds that the appellate court erred when it did not specifically name the respondents that it found to be responsible for the abduction and continued detention of Sherlyn, Karen and Merino. For, from the records, it appears that the responsible and accountable individuals are Lt. Col. Anotado, Lt. Mirabelle, Gen. Palparan, Lt. Col. Boac, Arnel Enriquez and Donald Caigas. They should thus be made to comply with the September 17, 2008 Decision of the appellate court to IMMEDIATELY RELEASE Sherlyn, Karen and Merino.

The petitions against Generals Esperon, Razon and Tolentino should be dismissed for lack of merit as there is no showing that they were even remotely accountable and responsible for the abduction and continued detention of Sherlyn, Karen and Merino.

G.R. No. 187109.

Contrary to the ruling of the appellate court, there is no need to file a motion for execution for an amparo or habeas corpus decision. Since the right to life, liberty and security of a person is at stake, the proceedings should not be delayed and execution of any decision thereon must be expedited as soon as possible since any form of delay, even for a day, may jeopardize the very rights that these writs seek to immediately protect.

The Solicitor Generals argument that the Rules of Court supplement the Rule on the Writ of Amparo is misplaced. The Rules of Court only find suppletory application in an amparo proceeding if the Rules strengthen, rather than weaken, the procedural efficacy of the writ. As it is, the Rule dispenses with dilatory motions in view of the urgency in securing the life, liberty or security of the aggrieved party. Suffice it to state that a motion for execution is

Boac vs. Cadapan

inconsistent with the an amparo proceeding.

extraordinary

and

expeditious

remedy

being

offered

by

In fine, the appellate court erred in ruling that its directive to immediately release Sherlyn, Karen and Merino was not automatically executory. For that would defeat the very purpose of having summary proceedings[56] in amparo petitions. Summary proceedings, it bears emphasis, are immediately executory without prejudice to further appeals that may be taken therefrom.[57]

WHEREFORE, in light of the foregoing discussions, the Court renders the following judgment:

1. The Petitions in G.R. Nos. 184461-62 and G.R. No. 184495 are DISMISSED. The Decision of the Court of Appeals dated September 17, 2008 is AFFIRMED with modification in that respondents in G.R. No. 184495, namely Lt. Col. Felipe Anotado, Lt. Francis Mirabelle Samson, Gen. Jovito Palparan, Lt. Col. Rogelio Boac, Arnel Enriquez and Donald Caigas are ordered to immediately release Sherlyn Cadapan, Karen Empeo and Manuel Merino from detention.

The petitions against Generals Esperon, Razon and Tolentino are DISMISSED.

2. The petition in G.R. No. 187109 is GRANTED. The named respondents are directed to forthwith comply with the September 17, 2008 Decision of the appellate court. Owing to the retirement and/or reassignment to other places of assignment of some of the respondents herein and in G.R. No. 184495, the incumbent commanding general of the 7th Infantry Division and the incumbent battalion commander of the 24th Infantry Battalion, both of the Philippine Army, are enjoined to fully ensure the release of Sherlyn Cadapan, Karen Empeo and Manuel Merino from detention.

Respondents Lt. Col. Felipe Anotado, Lt. Francis Mirabelle Samson, Gen. Jovito Palparan, Lt. Col. Rogelio Boac, Arnel Enriquez and Donald Caigasshall remain personally impleaded in the petitions to answer for any responsibilities and/or accountabilities they may have incurred during their incumbencies.

Boac vs. Cadapan

Let copies of this Decision and the records of these cases be furnished the Department of Justice (DOJ), the Philippine National Police (PNP) and the Armed Forces of the Philippines (AFP) for further investigation to determine the respective criminal and administrative liabilities of respondents.

All the present petitions are REMANDED to the Court of Appeals for appropriate action, directed at monitoring of the DOJ, PNP and AFP investigations and the validation of their results.

SO ORDERED.

Canlas vs. Napico Homeowners

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 182795 June 5, 2008

ARMANDO Q. CANLAS, MIGUEL D. CAPISTRANO, MARRIETA PIA, petitioners, vs. NAPICO HOMEOWNERS ASSN., I XIII, INC., ET AL., respondents. RESOLUTION REYES, R.T., J.: THE present petition filed on May 26, 2008 seeks the issuance of a Writ of Amparo upon the following premise: Petitioners were deprived of their liberty, freedom and/or rights to shelter enshrined and embodied in our Constitution, as the result of these nefarious activities of both the Private and Public Respondents. This ardent request filed before this Honorable Supreme Court is the only solution to this problem via this newly advocated principles incorporated in the Rules the "RULE ON THE WRIT OF AMPARO."1 It appears that petitioners are settlers in a certain parcel of land situated in Barangay Manggahan, Pasig City. Their dwellings/houses have either been demolished as of the time of filing of the petition, or is about to be demolished pursuant to a court judgment. While they attempted to focus on issuance of what they claimed to be fraudulent and spurious land titles, to wit: Petitioners herein are desirous to help the government, the best way they can, to unearth these so-called "syndicates" clothed with governmental functions, in cahoots with the "squatting syndicates" - - - - the low so defines. If only to give its proper meanings, the Government must be the first one to cleans (sic) its ranks from these unscrupulous political protges. If unabated would certainly ruin and/or destroy the efficacy of the Torrens System of land registration in this Country. It is therefore the ardent initiatives of the herein Petitioners, by way of the said prayer for the issuance of the Writ of Amparo, that these unprincipled Land Officials be summoned to answer their participation in the issuances of these fraudulent and spurious titles, NOW, in the hands of the Private Respondents. The Courts of Justice, including this Honorable Supreme Court, are likewise being made to believe that said titles in the possession of the Private Respondents were issued untainted with frauds.2 what the petition ultimately seeks is the reversal of this Courts dismissal of petitions in G.R. Nos. 177448, 180768, 177701, 177038, thus: That, Petitioners herein knew before hand that: there can be no motion for reconsideration for the second or third time to be filed before this Honorable Supreme Court. As such therefore, Petitioners herein are aware of the opinion that this present petition should not in any way be treated as such motions fore reconsideration. Solely, this petition is only for the possible issuance of the writ of amparo, although it might affect the previous rulings of this Honorable Supreme Court in these cases, G.R. Nos. 177448, 180768, 177701 and 177038. Inherent in the powers of the Supreme Court of the Philippines is to modify, reverse and set aside, even its own previous decision, that can not be thwarted nor influenced by any one, but, only on the basis of merits and evidence. This is the purpose of this petition for the Writ of Amparo.3 We dismiss the petition. The Rule on the Writ of Amparo provides:

Canlas vs. Napico Homeowners Section 1. Petition. The petition for a writ of amparo is a remedy available to any person whose right to life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity.
The writ shall cover extralegal killings and enforced disappearances or threats thereof. (Emphasis supplied.) The threatened demolition of a dwelling by virtue of a final judgment of the court, which in this case was affirmed with finality by this Court in G.R. Nos. 177448, 180768, 177701, 177038, is not included among the enumeration of rights as stated in the above-quoted Section 1 for which the remedy of a writ of amparo is made available. Their claim to their dwelling, assuming they still have any despite the final and executory judgment adverse to them, does not constitute right to life, liberty and security. There is, therefore, no legal basis for the issuance of the writ of amparo. Besides, the factual and legal basis for petitioners claim to the land in question is not alleged in the petition at all. Th e Court can only surmise that these rights and interest had already been threshed out and settled in the four cases cited above. No writ of amparo may be issued unless there is a clear allegation of the supposed factual and legal basis of the right sought to be protected. Under Section 6 of the same rules, the court shall issue the writ upon the filing of the petition, only if on its face, the court ought to issue said writ. Section 6. Issuance of the Writ. Upon the filing of the petition, the court, justice or judge shall immediately order the issuance of the writ if on its face it ought to issue. The clerk of court shall issue the writ under the seal of the court; or in case of urgent necessity, the justice or the judge may issue the writ under his or her own hand, and may deputize any officer or person to serve it. The writ shall also set the date and time for summary hearing of the petition which shall not be later than seven (7) days from the date of its issuance. Considering that there is no legal basis for its issuance, as in this case, the writ will not be issued and the petition will be dismissed outright. 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. WHEREFORE, the petition is DISMISSED. SO ORDERED.

Meralco vs. Lim

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 184769 October 5, 2010

MANILA ELECTRIC COMPANY, ALEXANDER S. DEYTO and RUBEN A. SAPITULA, Petitioners, vs. ROSARIO GOPEZ LIM, Respondent. DECISION CARPIO MORALES, J.: The Court is once again confronted with an opportunity to define the evolving metes and bounds of the writ of habeas data. May an employee invoke the remedies available under such writ where an employer decides to transfer her workplace on the basis of copies of an anonymous letter posted therein imputing to her disloyalty to the company and calling for her to leave, which imputation it investigated but fails to inform her of the details thereof? Rosario G. Lim (respondent), also known as Cherry Lim, is an administrative clerk at the Manila Electric Company (MERALCO). On June 4, 2008, an anonymous letter was posted at the door of the Metering Office of the Administration building of MERALCO Plaridel, Bulacan Sector, at which respondent is assigned, denouncing respondent. The letter reads: Cherry Lim: MATAPOS MONG LAMUNIN LAHAT NG BIYAYA NG MERALCO, NGAYON NAMAN AY GUSTO MONG PALAMON ANG BUONG KUMPANYA SA MGA BUWAYA NG GOBYERNO. KAPAL NG MUKHA MO, LUMAYAS KA RITO, WALANG UTANG NA LOOB.1 Copies of the letter were also inserted in the lockers of MERALCO linesmen. Informed about it, respondent reported the matter on June 5, 2008 to the Plaridel Station of the Philippine National Police.2 By Memorandum3 dated July 4, 2008, petitioner Alexander Deyto, Head of MERALCOs Human Resource Staffing, directed the transfer of respondent to MERALCOs Alabang Sector in Muntinlupa as "A/F OTMS Clerk," effective July 18, 2008 in light of the receipt of " reports that there were accusations and threats directed against [her] from unknown individuals and which could possibly compromise [her] safety and security." Respondent, by letter of July 10, 2008 addressed to petitioner Ruben A. Sapitula, Vice-President and Head of MERALCOs Human Resource Administration, appealed her transfer and requested for a dialogue so she could voice her concerns and misgivings on the matter, claiming that the "punitive" nature of the transfer amounted to a denial of due process. Citing the grueling travel from her residence in Pampanga to Alabang and back entails, and violation of the provisions on job security of their Collective Bargaining Agreement (CBA), respondent expressed her thoughts on the alleged threats to her security in this wise: xxxx I feel that it would have been better . . . if you could have intimated to me the nature of the alleged accusations and threats so that at least I could have found out if these are credible or even serious. But as you stated, these came from unknown individuals and the way they were handled, it appears that the veracity of these accusations and threats to be [sic] highly suspicious, doubtful or are just mere jokes if they existed at all.

Meralco vs. Lim Assuming for the sake of argument only, that the alleged threats exist as the management apparently believe, then my transfer to an unfamiliar place and environment which will make me a "sitting duck" so to speak, seems to betray the real intent of management which is contrary to its expressed concern on my security and safety . . . Thus, it made me think twice on the rationale for managements initiated transfer. Reflecting further, it appears to me that instead of the management supposedly extending favor to me, the net result and effect of management action would be a punitive one.4 (emphasis and underscoring supplied)
Respondent thus requested for the deferment of the implementation of her transfer pending resolution of the issues she raised. No response to her request having been received, respondent filed a petition5 for the issuance of a writ of habeas data against petitioners before the Regional Trial Court (RTC) of Bulacan, docketed as SP. Proc. No. 213-M-2008. By respondents allegation, petitioners unlawful act and omission consisting of their continued failure and refusalto provide her with details or information about the alleged report which MERALCO purportedly receivedconcerning threats to her safety and security amount to a violation of her right to privacy in life, liberty and security, correctible by habeas data. Respondent thus prayed for the issuance of a writ commanding petitioners to file a written return containing the following: a) a full disclosure of the data or information about respondent in relation to the report purportedly received by petitioners on the alleged threat to her safety and security; the nature of such data and the purpose for its collection; b) the measures taken by petitioners to ensure the confidentiality of such data or information; and c) the currency and accuracy of such data or information obtained. Additionally, respondent prayed for the issuance of a Temporary Restraining Order (TRO) enjoining petitioners from effecting her transfer to the MERALCO Alabang Sector. By Order6 of August 29, 2008, Branch 7 of the Bulacan RTC directed petitioners to file their verified written return. And by Order of September 5, 2008, the trial court granted respondents application for a TRO. Petitioners moved for the dismissal of the petition and recall of the TRO on the grounds that, inter alia, resort to a petition for writ of habeas data was not in order; and the RTC lacked jurisdiction over the case which properly belongs to the National Labor Relations Commission (NLRC).7 By Decision8 of September 22, 2008, the trial court granted the prayers of respondent including the issuance of a writ of preliminary injunction directing petitioners to desist from implementing respondents transfer until such time that petitioners comply with the disclosures required. The trial court justified its ruling by declaring that, inter alia, recourse to a writ of habeas data should extend not only to victims of extra-legal killings and political activists but also to ordinary citizens, like respondent whose rights to life and security are jeopardized by petitioners refusal to provide her with information or data on the reported threats to her person. Hence, the present petition for review under Rule 45 of 1997 Rules of Civil Procedure and the Rule on the Writ of Habeas Data9 contending that 1) the RTC lacked jurisdiction over the case and cannot restrain MERALCOs prerogative as employer to transfer the place of work of its employees, and 2) the issuance of the writ is outside the parameters expressly set forth in the Rule on the Writ of Habeas Data.10
1avvphi1

Maintaining that the RTC has no jurisdiction over what they contend is clearly a labor dispute, petitioners argue that "although ingeniously crafted as a petition for habeas data, respondent is essentially questioning the transfer of her place of work by her employer"11 and the terms and conditions of her employment which arise from an employer-

Meralco vs. Lim employee relationship over which the NLRC and the Labor Arbiters under Article 217 of the Labor Code have jurisdiction.
Petitioners thus maintain that the RTC had no authority to restrain the implementation of the Memorandum transferring respondents place of work which is purely a management prerogative, and that OCA-Circular No. 79-200312 expressly prohibits the issuance of TROs or injunctive writs in labor-related cases. Petitioners go on to point out that the Rule on the Writ of Habeas Data directs the issuance of the writ only against public officials or employees, or private individuals or entities engaged in the gathering, collecting or storing of data or information regarding an aggrieved partys person, family or home; and that MERALCO (or its officers) is clearly not engaged in such activities. The petition is impressed with merit. Respondents plea that she be spared from complying with MERALCOs Memorandum directing her reassignment to the Alabang Sector, under the guise of a quest for information or data allegedly in possession of petitioners, does not fall within the province of a writ of habeas data. Section 1 of the Rule on the Writ of Habeas Data provides: Section 1. Habeas Data. The writ of habeas data is a remedy available to any person whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee or of a private individual or entity engaged in the gathering, collecting or storing of data or information regarding the person, family, home and correspondence of the aggrieved party. (emphasis and underscoring supplied) The habeas data rule, in general, is designed to protect by means of judicial complaint the image, privacy, honor, information, and freedom of information of an individual. It is meant to provide a forum to enforce ones right to the truth and to informational privacy, thus safeguarding the constitutional guarantees of a persons right to life, liberty and security against abuse in this age of information technology. It bears reiteration that like the writ of amparo, habeas data was conceived as a response, given the lack of effective and available remedies, to address the extraordinary rise in the number of killings and enforced disappearances. Its intent is to address violations of or threats to the rights to life, liberty or security as a remedy independently from those provided under prevailing Rules.13 Castillo v. Cruz14 underscores the emphasis laid down in Tapuz v. del Rosario15 that the writs of amparo and habeas data will NOT issue to protect purely property or commercial concerns nor when the grounds invoked in support of the petitions therefor are vague or doubtful.16 Employment constitutes a property right under the context of the due process clause of the Constitution.17 It is evident that respondents reservations on the real reasons for her transfer - a legitimate concern respecting the terms and conditions of ones employment - are what prompted her to adopt the extraordinary remedy of habeas data. Jurisdiction over such concerns is inarguably lodged by law with the NLRC and the Labor Arbiters. In another vein, there is no showing from the facts presented that petitioners committed any unjustifiable or unlawful violation of respondents right to privacy vis-a-vis the right to life, liberty or security. To argue that petitioners refusal to disclose the contents of reports allegedly received on the threats to respondents safety amounts to a violation of her right to privacy is at best speculative. Respondent in fact trivializes these threats and accusations from unknown individuals in her earlier-quoted portion of her July 10, 2008 letter as "highly suspicious, doubtful or are just mere jokes if they existed at all."18 And she even suspects that her transfer to another place of work "betray[s] the real intent of management]" and could be a "punitive move." Her posture unwittingly concedes that the issue is labor-related. WHEREFORE, the petition is GRANTED. The assailed September 22, 2008 Decision of the Bulacan RTC, Branch 7 in SP. Proc. No. 213-M-2008 is hereby REVERSED and SET ASIDE. SP. Proc. No. 213-M-2008 is, accordingly, DISMISSED. No costs.

Meralco vs. Lim SO ORDERED.

Procunier vs. Martinez

PROCUNIER V. MARTINEZ, 416 U. S. 396 (1974)

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U.S. Supreme Court

Procunier v. Martinez, 416 U.S. 396 (1974)
Procunier v. Martinez No. 72-1465 Argued December 3, 1973 Decided April 29, 1974 416 U.S. 396 APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA Syllabus Appellees, prison inmates, brought this class action challenging prisoner mail censorship regulations issued by the Director of the California Department of Corrections and the ban against the use of law students and legal paraprofessionals to conduct attorney-client interviews with inmates. The mail censorship regulations, inter alia, proscribed inmate correspondence that "unduly complain[ed]," "magnif[ied] grievances," "express[ed] inflammatory political, racial, religious or other views or beliefs," or contained matter deemed "defamatory" or "otherwise inappropriate." The District Court held these regulations unconstitutional under the First Amendment, void for vagueness, and violative of the Fourteenth Amendment's guarantee of procedural due process, and it enjoined their continued enforcement. The court required that an inmate be notified of the rejection of correspondence, and that the author of the correspondence be allowed to protest the decision and secure review by a prison official other than the original censor. The District Court also held that the ban against the use of law students and legal paraprofessionals to conduct attorney-client interviews with inmates abridged the right of access to the courts and enjoined its continued enforcement. Appellants contend that the District Court should have abstained from deciding the constitutionality of the mail censorship regulations. Held: 1. The District Court did not err in refusing to abstain from deciding the constitutionality of the mail censorship regulations. Pp. 400-404.

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2. The censorship of direct personal correspondence involves incidental restrictions on the right to free speech of both prisoners and their correspondents, and is justified if the following criteria are met: (1) it must further one or more of the important and substantial governmental interests of security, order, and the rehabilitation of inmates, and (2) it must be no greater than is necessary to further the legitimate governmental interest involved. Pp. 416 U. S. 404-414. Page 416 U. S. 397 3. Under this standard, the invalidation of the mail censorship regulations by the District Court was correct. Pp. 416 U. S. 415-416. 4. The decision to censor or withhold delivery of a particular letter must be accompanied by minimum procedural safeguards against arbitrariness or error, and the requirements specified by the District Court were not unduly burdensome. Pp. 416 U. S. 417-419. 5. The ban against attorney-client interviews conducted by law students or legal paraprofessionals, which was not limited to prospective interviewers who posed some colorable threat to security or to those inmates thought to be especially dangerous and which created an arbitrary distinction between law students employed by attorneys and those associated with law school programs (against whom the ban did not operate), constituted an unjustifiable restriction on the inmates' right of access to the courts.Johnson v. Avery, 393 U. S. 483. Pp. 416 U. S. 419-422. 354 F.Supp. 1092, affirmed. POWELL, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, STEWART, WHITE, MARSHALL, BLACKMUN, and REHNQUIST, JJ., joined. MARSHALL, J., filed a concurring opinion, in which BRENNAN, J., joined and in Part II of which DOUGLAS, J., joined, post, p. 416 U. S. 422. DOUGLAS, J., filed an opinion concurring in the judgment, post, p. 416 U. S. 428. Page 416 U. S. 398 MR. JUSTICE POWELL delivered the opinion of the Court. This case concerns the constitutionality of certain regulations promulgated by appellant Procunier in his capacity as Director of the California Department of Corrections. Appellees brought a class action on behalf of themselves and all other inmates of penal institutions under the Department's jurisdiction to challenge the rules relating to censorship of prisoner mail and the ban against the use of law students and legal paraprofessionals to conduct attorney-client interviews with inmates. Pursuant to 28 U.S.C. 2281, a three-judge United States District Court was convened to hear appellees' request for declaratory and injunctive relief. That court entered summary judgment enjoining continued enforcement of the rules in question and ordering appellants to submit new regulations for the court's approval. 354 F.Supp. 1092 (ND Cal.1973). Appellants' first revisions resulted in counter-proposals by appellees and a court order issued May 30, 1973, requiring further modification of the proposed rules. The second set of revised regulations was approved by the District Court on July 20, 1973, over

Procunier vs. Martinez

appellees' objections. While the first proposed revisions of the Department's regulations were pending before the District Court, appellants brought this appeal to contest that court's decision holding the original regulations unconstitutional. We noted probable jurisdiction. 412 U.S. 948 (1973). We affirm.

I
First we consider the constitutionality of the Director's rules restricting the personal correspondence of prison inmates. Under these regulations, correspondence between Page 416 U. S. 399 inmates of California penal institutions and persons other than licensed attorneys and holders of public office was censored for nonconformity to certain standards. Rule 2401 stated the Department's general premise that personal correspondence by prisoners is "a privilege, not a right. . . ." [Footnote 1] More detailed regulations implemented the Department's policy. Rule 1201 directed inmates not to write letters in which they "unduly complain" or "magnify grievances." [Footnote 2] Rule 1205(d) defined as contraband writings "expressing inflammatory political, racial, religious or other views or beliefs. . . ." [Footnote 3] Finally, Rule 2402(8) provided that inmates "may not send or receive letters that pertain to criminal activity; Page 416 U. S. 400 are lewd, obscene, or defamatory; contain foreign matter, or are otherwise inappropriate." [Footnote 4] Prison employees screened both incoming and outgoing personal mail for violations of these regulations. No further criteria were provided to help members of the mail room staff decide whether a particular letter contravened any prison rule or policy. When a prison employee found a letter objectionable, he could take one or more of the following actions: (1) refuse to mail or deliver the letter and return it to the author; (2) submit a disciplinary report, which could lead to suspension of mail privileges or other sanctions; or (3) place a copy of the letter or a summary of its contents in the prisoner's file, where it might be a factor in determining the inmate's work and housing assignments and in setting a date for parole eligibility. The District Court held that the regulations relating to prisoner mail authorized censorship of protected expression without adequate justification in violation of the First Amendment, and that they were void for vagueness. The court also noted that the regulations failed to provide minimum procedural safeguards against error and arbitrariness in the censorship of inmate correspondence. Consequently, it enjoined their continued enforcement. Appellants contended that the District Court should have abstained from deciding these questions. In that court, appellants advanced no reason for abstention other than the assertion that the federal court

Procunier vs. Martinez

should defer to the California courts on the basis of comity. The District Court properly rejected this suggestion, noting that the Page 416 U. S. 401 mere possibility that a state court might declare the prison regulations unconstitutional is no ground for abstention. Wisconsin v. Constantineau, 400 U. S. 433, 400 U. S. 439(1971). Appellants now contend that we should vacate the judgment and remand the case to the District Court with instructions to abstain on the basis of two arguments not presented to it. First, they contend hat any vagueness challenge to an uninterpreted state statute or regulation is a proper case for abstention. According to appellants, "[t]he very statement by the district court that the regulations are vague constitutes a compelling reason for abstention." Brief for Appellants 8-9. As this Court made plain inBaggett v. Bullitt, 377 U. S. 360 (1964), however, not every vagueness challenge to an uninterpreted state statute or regulation constitutes a proper case for abstention. [Footnote 5] But we need not decide whether appellants' contention is controlled by the analysis in Baggett, for the short Page 416 U. S. 402 answer to their argument is that these regulations were neither challenged nor invalidated solely on the ground of vagueness. Appellees also asserted, and the District Court found, that the rules relating to prisoner mail permitted censorship of constitutionally protected expression without adequate justification. In light of the successful First Amendment attack on these regulations, the District Court's conclusion that they were also unconstitutionally vague hardly "constitutes a compelling reason for abstention." As a second ground for abstention, appellants rely on Cal.Penal Code 2600(4), which assures prisoners the right to receive books, magazines, and periodicals. [Footnote 6] Although they did not advance this argument to the District Court, appellants now contend that the interpretation of the statute by the state courts and its application to the regulations governing prisoner mail might avoid or modify the constitutional questions decided below. Thus, appellants seek to establish the essential prerequisite for abstention -- "an uncertain issue of state Page 416 U. S. 403 law," the resolution of which may eliminate or materially alter the federal constitutional question. [Footnote 7] Harman v. Forssenius, 380 U. S. 528, 380 U. S. 534 (1965). We are not persuaded. A state court interpretation of 2600(4) would not avoid or substantially modify the constitutional question presented here. That statute does not contain any provision purporting to regulate censorship of personal correspondence. It only preserves the right of inmates to receive "newspapers, periodicals, and books," and authorizes prison officials to exclude "obscene publications or writings, and mail containing information concerning

Procunier vs. Martinez

Page 416 U. S. 404 where, how, or from whom such matter may be obtained. . . ." (Emphasis added.) And the plain meaning of the language is reinforced by recent legislative history. In 1972, a bill was introduced in the California Legislature to restrict censorship of personal correspondence by adding an entirely new subsection to 2600. The legislature passed the bill, but it was vetoed by Governor Reagan. In light of this history, we think it plain that no reasonable interpretation of 2600(4) would avoid or modify the federal constitutional question decided below. Moreover, we are mindful of the high cost of abstention when the federal constitutional challenge concerns facial repugnance to the First Amendment. Zwickler v. Koota, 389 U. S. 241, 389 U. S. 252(1967); Baggett v. Bullitt, 377 U.S. at 377 U. S. 379. We therefore proceed to the merits. A Traditionally, federal courts have adopted a broad hands-off attitude toward problems of prison administration. In part, this policy is the product of various limitations on the scope of federal review of conditions in state penal institutions. [Footnote 8] More fundamentally, this attitude springs from complementary perceptions about the nature of the problems and the efficacy of judicial intervention. Prison administrators are responsible for maintaining internal order and discipline, for securing their institutions against unauthorized access or escape, and for rehabilitating, to the extent that human nature and inadequate resources allow, the inmates placed in their custody. The Herculean obstacles to effective discharge of these duties are too apparent to warrant explication. Suffice it to say that the problems of prisons Page 416 U. S. 405 in America are complex and intractable, and, more to the point, they are not readily susceptible of resolution by decree. Most require expertise, comprehensive planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government. For all of those reasons, courts are ill-equipped to deal with the increasingly urgent problems of prison administration and reform. [Footnote 9] Judicial recognition of that fact reflects no more than a healthy sense of realism. Moreover, where state penal institutions are involved, federal courts have a further reason for deference to the appropriate prison authorities. But a policy of judicial restraint cannot encompass any failure to take cognizance of valid constitutional claims whether arising in a federal or state institution. When a prison regulation or practice offends a fundamental constitutional guarantee, federal courts will discharge their duty to protect constitutional Page 416 U. S. 406 rights. Johnson v. Avery, 393 U. S. 483, 393 U. S. 486 (1969). This is such a case. Although the District Court found the regulations relating to prisoner mail deficient in several respects, the first and principal

Procunier vs. Martinez

basis for its decision was the constitutional command of the First Amendment, as applied to the States by the Fourteenth Amendment. [Footnote 10] The issue before us is the appropriate standard of review for prison regulations restricting freedom of speech. This Court has not previously addressed this question, and the tension between the traditional policy of judicial restraint regarding prisoner complaints and the need to protect constitutional rights has led the federal courts to adopt a variety of widely inconsistent approaches to the problem. Some have maintained a hands-off posture in the face of constitutional challenges to censorship of prisoner mail. E.g., McCloskey v. Maryland, 337 F.2d 72 (CA4 1964); Lee v. Tahash,352 F.2d 970 (CA8 1965) (except insofar as mail censorship rules are applied to discriminate against a particular racial or religious group); Krupnick v. Crouse, 366 F.2d 851 (CA10 1966); Pope v. Daggett, 350 F.2d 296 (CA10 1965). Another has required only that censorship of personal correspondence not lack support "in any rational and constitutionally acceptable concept of a prison system." Sostre v. McGinnis, 442 F.2d 178, 199 (CA2 1971), cert. denied sub nom. Oswald v. Sostre, 405 U.S. 978 (1972). At the other extreme, some courts have been willing to require demonstration of a "compelling state interest" to justify censorship of prisoner mail. E.g., Jackson v. Godwin, 400 F.2d 529 Page 416 U. S. 407 (CA5 1968) (decided on both equal protection and First Amendment grounds); Morales v. Schmidt, 340 F.Supp. 544 (WD Wis.1972); Fortune Society v. McGinnis, 319 F.Supp. 901 (SDNY 1970). Other courts phrase the standard in similarly demanding terms of "clear and present danger." E.g., Wilkinson v. Skinner, 462 F.2d 670, 672-673 (CA2 1972). And there are various intermediate positions, most notably the view that a "regulation or practice which restricts the right of free expression that a prisoner would have enjoyed if he had not been imprisoned must be related both reasonably and necessarily to the advancement of some justifiable purpose." E.g., Carothers v. Follette, 314 F.Supp. 1014, 1024 (SDNY 1970) (citations omitted).See also Gates v. Collier, 349 F.Supp. 881, 896 (ND Miss.1972); LeMon v. Zelker, 358 F.Supp. 554 (SDNY 1972). This array of disparate approaches and the absence of any generally accepted standard for testing the constitutionality of prisoner mail censorship regulations disserve both the competing interests at stake. On the one hand, the First Amendment interests implicated by censorship of inmate correspondence are given only haphazard and inconsistent protection. On the other, the uncertainty of the constitutional standard makes it impossible for correctional officials to anticipate what is required of them, and invites repetitive, piecemeal litigation on behalf of inmates. The result has been unnecessarily to perpetuate the involvement of the federal courts in affairs of prison administration. Our task is to formulate a standard of review for prisoner mail censorship that will be responsive to these concerns. B

Procunier vs. Martinez

We begin our analysis of the proper standard of review for constitutional challenges to censorship of prisoner mail with a somewhat different premise from that taken Page 416 U. S. 408 by the other federal courts that have considered the question. For the most part, these courts have dealt with challenges to censorship of prisoner mail as involving broad questions of "prisoners' rights." This case is no exception. The District Court stated the issue in general terms as "the applicability of First Amendment rights to prison inmates . . . ," 354 F.Supp. at 1096, and the arguments of the parties reflect the assumption that the resolution of this case requires an assessment of the extent to which prisoners may claim First Amendment freedoms. In our view, this inquiry is unnecessary. In determining the proper standard of review for prison restrictions on inmate correspondence, we have no occasion to consider the extent to which an individual's right to free speech survives incarceration, for a narrower basis of decision is at hand. In the case of direct personal correspondence between inmates and those who have a particularized interest in communicating with them, [Footnote 11] mail censorship implicates more than the right of prisoners. Communication by letter is not accomplished by the act of writing words on paper. Rather, it is effected only when the letter is read by the addressee. Both parties to the correspondence have an interest in securing that result, and censorship of the communication between them necessarily impinges on the interest of each. Whatever the status of a prisoner's claim to uncensored correspondence with an outsider, it is plain that the latter's interest is grounded in the First Amendment's guarantee of freedom of speech. And this does not depend on whether the nonprisoner correspondent is the author or intended recipient of a particular letter, for the addressee as well as the sender of direct personal correspondence Page 416 U. S. 409 derives from the First and Fourteenth Amendments a protection against unjustified governmental interference with the intended communication. Lamont v. Postmaster General, 381 U. S. 301 (1965); accord, Kleindienst v. Mandel, 408 U. S. 753, 408 U. S. 762-765 (1972); Martin v. City of Struthers, 319 U. S. 141, 319 U. S. 143 (1943). We do not deal here with difficult questions of the socalled "right to hear" and third-party standing, but with a particular means of communication in which the interests of both parties are inextricably meshed. The wife of a prison inmate who is not permitted to read all that her husband wanted to say to her has suffered an abridgment of her interest in communicating with him as plain as that which results from censorship of her letter to him. In either event, censorship of prisoner mail works a consequential restriction on the First and Fourteenth Amendments rights of those who are not prisoners. Accordingly, we reject any attempt to justify censorship of inmate correspondence merely by reference to certain assumptions about the legal status of prisoners. Into this category of argument falls appellants' contention that "an inmate's rights with reference to social correspondence are something

Procunier vs. Martinez

fundamentally different than those enjoyed by his free brother." Brief for Appellants 19. This line of argument and the undemanding standard of review it is intended to support fail to recognize that the First Amendment liberties of free citizens are implicated in censorship of prisoner mail. We therefore turn for guidance not to cases involving questions of "prisoners' rights," but to decisions of this Court dealing with the general problem of incidental restrictions on First Amendment liberties imposed in furtherance of legitimate governmental activities. As the Court noted in Tinker v. Des Moines School District, 393 U. S. 503, 393 U. S. 506 (1969), First Amendment Page 416 U. S. 410 guarantees must be "applied in light of the special characteristics of the . . .

environment." Tinker concerned the interplay between the right to freedom of speech of public high school students and "the need for affirming the comprehensive authority of the States and of school officials, consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools." Id. at 393 U. S. 507. In overruling a school regulation prohibiting the wearing of anti-war armbands, the Court undertook a careful analysis of the legitimate requirements of orderly school administration in order to ensure that the students were afforded maximum freedom of speech consistent with those requirements. The same approach was followed in Healy v. James, 408 U. S. 169 (1972), where the Court considered the refusal of a state college to grant official recognition to a group of students who wished to organize a local chapter of the Students for a Democratic Society (SDS), a national student organization noted for political activism and campus disruption. The Court found that neither the identification of the local student group with the national SDS, nor the purportedly dangerous political philosophy of the local group, nor the college administration's fear of future, unspecified disruptive activities by the students could justify the incursion on the right of free association. The Court also found, however, that this right could be limited if necessary to prevent campus disruption, id. at 408 U. S. 189-190, n. 20, and remanded the case for determination of whether the students had, in fact, refused to accept reasonable regulations governing student conduct. In United States v. O'Brien, 391 U. S. 367 (1968), the Court dealt with incidental restrictions on free speech occasioned by the exercise of the governmental power to conscript men for military service. O'Brien had burned his Selective Service registration certificate on the steps Page 416 U. S. 411 of a courthouse in order to dramatize his opposition to the draft and to our country's involvement in Vietnam. He was convicted of violating a provision of the Selective Service law that had recently been amended to prohibit knowing destruction or mutilation of registration certificates. O'Brien argued that the purpose and effect of the amendment were to abridge free expression, and that the statutory

Procunier vs. Martinez

provision was therefore unconstitutional, both as enacted and as applied to him. Although O'Brien's activity involved "conduct", rather than pure "speech," the Court did not define away the First Amendment concern, and neither did it rule that the presence of a communicative intent necessarily rendered O'Brien's actions immune to governmental regulation. Instead, it enunciated the following four-part test: "[A] government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest." Id. at 391 U. S. 377. Of course, none of these precedents directly controls the instant case. In O'Brien, the Court considered a federal statute which, on its face, prohibited certain conduct having no necessary connection with freedom of speech. This led the Court to differentiate between "speech" and "nonspeech" elements of a single course of conduct, a distinction that has little relevance here. Both Tinker and Healy concerned First and Fourteenth Amendment liberties in the context of state educational institutions, a circumstance involving rather different governmental interests than are at stake here. In broader terms, however, these precedents involved incidental Page 416 U. S. 412 restrictions on First Amendment liberties by governmental action in furtherance of legitimate and substantial state interest other than suppression of expression. In this sense, these cases are generally analogous to our present inquiry. The case at hand arises in the context of prisons. One of the primary functions of government is the preservation of societal order through enforcement of the criminal law, and the maintenance of penal institutions is an essential part of that task. The identifiable governmental interests at stake in this task are the preservation of internal order and discipline, [Footnote 12] the maintenance of institutional security against escape or unauthorized entry, and the rehabilitation of the prisoners. While the weight of professional opinion seems to be that inmate freedom to correspond with outsiders advances, rather than retards the goal of rehabilitation, [Footnote 13] the legitimate governmental Page 416 U. S. 413 interest in the order and security of penal institutions justifies the imposition of certain restraints on inmate correspondence. Perhaps the most obvious example of justifiable censorship of prisoner mail would be refusal to send or deliver letters concerning escape plans or containing other information concerning proposed criminal activity, whether within or without the prison. Similarly, prison officials may properly refuse to transmit encoded messages. Other less obvious possibilities come to mind, but it is not our purpose to survey the range of circumstances in which particular restrictions on prisoner mail

Procunier vs. Martinez

might be warranted by the legitimate demands of prison administration as they exist from time to time in the various kinds of penal institutions found in this country. Our task is to determine the proper standard for deciding whether a particular regulation or practice relating to inmate correspondence constitutes an impermissible restraint of First Amendment liberties. Applying the teachings of our prior decisions to the instant context, we hold that censorship of prisoner mail is justified if the following criteria are met. First, the regulation or practice in question must further an important or substantial governmental interest unrelated to the suppression of expression. Prison officials may not censor inmate correspondence simply to eliminate unflattering or unwelcome opinions or factually inaccurate statements. Rather, they must show that a regulation authorizing mail censorship furthers one or more of the substantial governmental interests of security, order, and rehabilitation. Second, the limitation of First Amendment freedoms must be no greater than is necessary or essential to the protection of the particular governmental interest involved. Thus, a restriction on inmate correspondence Page 416 U. S. 414 that further an important or substantial interest of penal administration will nevertheless be invalid if its sweep is unnecessarily broad. This does not mean, of course, that prison administrators may be required to show with certainty that adverse consequences would flow from the failure to censor a particular letter. Some latitude in anticipating the probable consequences of allowing certain speech in a prison environment is essential to the proper discharge of an administrator's duty. But any regulation or practice that restricts inmate correspondence must be generally necessary to protect one or more of the legitimate governmental interests identified above. [Footnote 14] Page 416 U. S. 415 C On the basis of this standard, we affirm the judgment of the District Court. The regulations invalidated by that court authorized, inter alia, censorship of statements that "unduly complain" or "magnify grievances," expression of "inflammatory political, racial, religious or other views," and matter deemed "defamatory" or "otherwise inappropriate." These regulations fairly invited prison officials and employees to apply their own personal prejudices and opinions as standards for prisoner mail censorship. Not surprisingly, some prison officials used the extraordinary latitude for discretion authorized by the regulations to suppress unwelcome criticism. For example, at one institution under the Department's jurisdiction, the checklist used by the mail room staff authorized rejection of letters "criticizing policy, rules or officials," and the mail room sergeant stated in a deposition that he would reject as "defamatory" letters "belittling staff or our judicial system or anything connected with Department of Corrections." Correspondence was also censored for "disrespectful comments," "derogatory remarks," and the like.

Procunier vs. Martinez

Appellants have failed to show that these broad restrictions on prisoner mail were in any way necessary to the furtherance of a governmental interest unrelated to the suppression of expression. Indeed, the heart of appellants' position is not that the regulations are justified by a legitimate governmental interest, but that they do not need to be. This misconception is not only stated affirmatively; it also underlies appellants' discussion of the particular regulations under attack. For example, appellants' sole defense of the prohibition against matter that is "defamatory" or "otherwise inappropriate" is that Page 416 U. S. 416 it is "within the discretion of the prison administrators." Brief for Appellants 21. Appellants contend that statements that "magnify grievances" or "unduly complain" are censored "as a precaution against flash riots and in the furtherance of inmate rehabilitation." Id. at 22. But they do not suggest how the magnification of grievances or undue complaining, which presumably occurs in outgoing letters, could possibly lead to flash riots, nor do they specify what contribution the suppression of complaints makes to the rehabilitation of criminals. And appellants defend the ban against "inflammatory political, racial, religious or other views" on the ground that "[s]uch matter clearly presents a danger to prison security. . . ." Id. at 21. The regulation, however, is not narrowly drawn to reach only material that might be thought to encourage violence, nor is its application limited to incoming letters. In short, the Department's regulations authorized censorship of prisoner mail far broader than any legitimate interest of penal administration demands, and were properly found invalid by the District Court. [Footnote 15] Page 416 U. S. 417 D We also agree with the District Court that the decision to censor or withhold delivery of a particular letter must he accompanied by minimum procedural safeguards. Page 416 U. S. 418 The interest of prisoners and their correspondents in uncensored communication by letter, grounded as it is in the First Amendment, is plainly a "liberty" interest within the meaning of the Fourteenth Amendment even though qualified of necessity by the circumstance of imprisonment. As such, it is protected from arbitrary governmental invasion. See Board of Regents v. Roth, 408 U. S. 564 (1972); Perry v. Sindermann,408 U. S. 593 (1972). The District Court required that an inmate be notified of the rejection of a letter written by or addressed to him, that the author of that letter be given a reasonable opportunity to protest that decision, and that complaints be referred to a prison official other than Page 416 U. S. 419 the person who originally disapproved the correspondence. These requirements do not appear to be unduly burdensome, nor do appellants so contend. Accordingly, we affirm the judgment of the District Court with respect to the Department's regulations relating to prisoner mail.

Procunier vs. Martinez

II
The District Court also enjoined continued enforcement of Administrative Rule MV-IV-02, which provides in pertinent part: "Investigators for an attorney of record will be confined to not more than two. Such investigators must be licensed by the State or must be members of the State Bar. Designation must be made in writing by the Attorney." By restricting access to prisoners to members of the bar and licensed private investigators, this regulation imposed an absolute ban on the use by attorneys of law students and legal paraprofessionals to interview inmate clients. In fact, attorneys could not even delegate to such persons the task of obtaining prisoners' signatures on legal documents. The District Court reasoned that this rule constituted an unjustifiable restriction on the right of access to the courts. We agree. The constitutional guarantee of due process of law has as a corollary the requirement that prisoners be afforded access to the courts in order to challenge unlawful convictions and to seek redress for violations of their constitutional rights. This means that inmates must have a reasonable opportunity to seek and receive the assistance of attorneys. Regulations and practices that unjustifiably obstruct the availability of professional representation or other aspects of the right of access to the courts are invalid. Ex parte Hull, 312 U. S. 546 (1941). Page 416 U. S. 420 The District Court found that the rule restricting attorney-client interviews to members of the bar and licensed private investigators inhibited adequate professional representation of indigent inmates. The remoteness of many California penal institutions makes a personal visit to an inmate client a timeconsuming undertaking. The court reasoned that the ban against the use of law students or other paraprofessionals for attorney-client interviews would deter some lawyers from representing prisoners who could not afford to pay for their traveling time or that of licensed private investigators. And those lawyers who agreed to do so would waste time that might be employed more efficaciously in working on the inmates' legal problems. Allowing law students and paraprofessionals to interview inmates might well reduce the cost of legal representation for prisoners. The District Court therefore concluded that the regulation imposed a substantial burden on the right of access to the courts. As the District Court recognized, this conclusion does not end the inquiry, for prison administrators are not required to adopt every proposal that may be thought to facilitate prisoner access to the courts. The extent to which that right is burdened by a particular regulation or practice must be weighed against the legitimate interests of penal administration and the proper regard that judges should give to the expertise and discretionary authority of correctional officials. In this case, the ban against the use of law students and other paraprofessional personnel was absolute. Its prohibition was not limited to prospective interviewers who posed some colorable threat to security or to those inmates thought to be

Procunier vs. Martinez

especially dangerous. Nor was it shown that a less restrictive regulation would unduly burden the administrative task of screening and monitoring visitors. Page 416 U. S. 421 Appellants' enforcement of the regulation in question also created an arbitrary distinction between law students employed by practicing attorneys and those associated with law school programs providing legal assistance to prisoners. [Footnote 16] While the Department flatly prohibited interviews of any sort by law students working for attorneys, it freely allowed participants of a number of law school programs to enter the prisons and meet with inmates. These largely unsupervised students were admitted without any security check other than verification of their enrollment in a school program. Of course, the fact that appellants have allowed some persons to conduct attorney-client interviews with prisoners does not mean that they are required to admit others, but the arbitrariness of the distinction between the two categories of law students does reveal the absence of any real justification for the sweeping prohibition of Administrative Rule MV-IV-02. We cannot say that the District Court erred in invalidating this regulation. This result is mandated by our decision in Johnson v. Avery, 393 U. S. 483 (1969). There, the Court struck down a prison regulation prohibiting any inmate from advising or assisting another in the preparation of legal documents. Given the inadequacy of alternative sources of legal assistance, the rule had the effect of denying to illiterate or poorly educated inmates any opportunity to vindicate possibly valid constitutional claims. The Court found that the regulation impermissibly burdened the right of access to the courts despite the not insignificant state interest in preventing the establishment of personal power structures by unscrupulous jailhouse lawyers and the attendant problems of prison discipline that Page 416 U. S. 422 follow. The countervailing state interest in Johnson is, if anything, more persuasive than any interest advanced by appellants in the instant case. The judgment is Affirmed.

Disini vs. SB
Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 175730 July 5, 2010

HERMINIO T. DISINI, Petitioner, vs. THE HONORABLE SANDIGANBAYAN, THE REPUBLIC OF THE PHILIPPINES, as represented by the OFFICE OF THE SOLICITOR GENERAL (OSG), and the PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT (PCGG), Respondents. DECISION DEL CASTILLO, J.: The simultaneous availment of judicial remedies from different fora for exactly the same ultimate relief and involving the same issue constitutes forum-shopping. It is a prohibited malpractice, condemned for trifling with the courts and their processes. The Case The instant Petition for Certiorari and Prohibition1 under Rule 65 of the Rules of Court seeks to: 1. Annul the December 18, 2006 Resolution of the Sandiganbayan (respondent court), which denied petitioners Motion to Lift Default Order and to Admit Answer, and consequently allowed respondent Republic to present evidence ex-parte in Civil Case No. 0013 entitled "Republic of the Philippines v. Herminio T. Disini, et al.;" 2. Annul the orders or declarations made by the Sandiganbayan in open court during the hearing of December 8, 2006, which prevented petitioner from commenting ad cautelam on the Republics Urgent Manifestation and Motion (hereinafter the Urgent Manifestation and Motion) to Present Evidence Ex-Parte;2 3. Prohibit the Sandiganbayan from continuing with the ex-parte proceedings and rendering a judgment by default; 4. Secure injunctive relief to enjoin the Sandiganbayan from conducting further proceedings in Civil Case No. 0013 and from rendering judgment on the basis of the ex-parte proceedings; and 5. Declare null and void all the proceedings conducted as against petitioner because of lack of jurisdiction over his person, violation of his Constitutional rights to due process and fair play, and the arbitrary acts of respondent court which effectively ousted it of jurisdiction to hear the case.3 In sum, petitioner assails the Sandiganbayans refusal to set aside its Order of Default against petitioner, as well as its acts which allegedly reveal its inclination to "railroad" the proceedings and render a precipitate judgment by default against petitioner.4 Factual Antecedents On July 23, 1987, the Republic (through the Presidential Commission on Good Government [PCGG]) filed with theSandiganbayan a civil complaint for reconveyance, reversion, accounting, restitution, and damages against petitioner Herminio T. Disini (Disini), spouses Ferdinand and Imelda Marcos (Marcos spouses) and Rodolfo B. Jacob (Jacob).5 The same was docketed as Civil Case No. 0013 and assigned to the First Division of theSandiganbayan (respondent court). Summons for Disini was issued on July 29, 1987.6 Per Sheriffs Return dated

Disini vs. SB September 4, 1987,7 the summons8 was unserved on the ground that petitioner did not live at the given address, which was No. 92 Kennedy St., Greenhills, San Juan, Metro Manila. The occupants of said address were the Roman family.
On August 26, 1987,9 the Complaint was amended10 to include Rafael A. Sison (Sison) as a party-defendant.11 The Amended Complaint alleged that Disini acted in unlawful concert with his co-defendants in acquiring and accumulating ill-gotten wealth through the misappropriation of public funds, plunder of the nations wealth, extortion, embezzlement, and other acts of corruption.12 The Sandiganbayan issued summons on the Amended Complaint on September 3, 1987.13 On September 15, 1987, the Sandiganbayan Deputy Sheriff proceeded to the same address, No. 92 Kennedy Street, Greenhills, San Juan, Metro Manila. Again, the summons was returned unserved for the reason that the Roman family occupied the said residence.14 In the meantime, petitioners co-defendants, Sison15 and Jacob,16 filed their respective answers, while the Marcos spouses were declared in default17 for failure to file their responsive pleadings despite valid service of summons.18 After the lapse of two years without any progress in the case, Jacob filed an Omnibus Motion for theSandiganbayan to either set the case for pre-trial or to dismiss the same with respect to Jacob for failure to prosecute.19 Jacob argued that there was no excuse for the delay in prosecuting the case. He reasoned that, if summons could not be served on his co-defendant Disini within a reasonable time, the prosecution should have moved to exclude Disini from the complaint so that the case could be disposed of one way or another instead of being left pending indefinitely. The Sandiganbayan denied Jacobs motion.20 It held that the Republic had not lacked in efforts to ascertain Disinis whereabouts; hence, there is no basis to rule that it failed to prosecute the case. Nevertheless, it ordered the Republic to furnish the court with the correct address of petitioner or to file a motion to show the reasonability of expecting Disini to be summoned. In response, the Republic filed a Manifestation that it is still in the process of securing alias summonses for the unserved defendants and will take steps to serve summons by publication.21 On October 11, 1990, the Republic moved to drop Jacob as party-defendant considering that he will testify as a witness for the Republic in its ill-gotten wealth cases both here and abroad.22 It also sought several times to suspend the pretrial on various grounds such as the PCGGs vacillation regarding the grant of immunity in favor of Jacob23 and the Republics admission that it still could not ascertain Disinis whereabouts for purposes of service of summons. The Republic explained that it was still trying to exhaust all efforts to make a personal or substituted service of summons through the help of the Philippine consulate office in Austria, where Disini is believed to be residing.24 On August 4, 1994, the Sandiganbayan resolved to grant the dismissal of the complaint against Jacob with prejudice and ordered him dropped as party-defendant.25
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When it appeared that pre-trial could finally continue in 1995, the Republic again moved for several resetting of pre-trial for reasons such as looking at the possibility of granting immunity to petitioners other co-defendant, Sison, and the unavailability of the solicitor assigned to the case.26 After displaying utmost liberality in the past as regards the postponement of the pre-trial, the Sandiganbayanissued a strongly-worded Order on January 17, 1997, on which date the Republic was still not ready to submit Sisons affidavit for the consideration of the court. The Order reads: Over the year, the matter of the affidavit [of Sison] remains unresolved. In the end, this case is sought once more to be reset with no visible product for the effort. Under the circumstances, should no action be taken thereon with finality on or before March 14, 1997, the Court will assume that the government is not disposed to prosecute this matter and will dismiss the case.27

Disini vs. SB Heeding the Sandiganbayans warning, the Office of the Solicitor General filed its Manifestation and Urgent Motion to Drop Rafael Sison as Party-Defendant on March 14, 1997.28
A year later, on April 8, 1998, the Republic filed an Ex Parte Motion for Leave to Serve Summons by Publication.29It stated that resort to service by publication was needed because they could not ascertain Disinis whereabouts despite diligent efforts to do so. While this motion was awaiting resolution five months later, the Republic filed an Urgent Ex Parte Motion for Issuance of Alias Summons.30 It allegedly received information that Disini had returned to the Philippines and could be served with summons at No. 92 Kennedy Street, Greenhills, San Juan, Metro Manila. Alias summons was issued but was returned unserved on the ground that Disini did not occupy the said house, which belonged to the Roman family.31 Receiving information that Disini was often seen at No. 35 Buchanan Street, Greenhills, San Juan, Metro Manila, the sheriff proceeded to the new address only to find that it belonged to petitioners cousin, Jesus Disini.32 Failing to serve summons personally on Disini, the Republic filed an Urgent Motion to Resolve Motion for Leave to Serve Summons by Publication on October 3, 2001.33 While awaiting the resolution of the Urgent Motion, the Republic again received information that petitioner has been regularly seen at the Wack Wack Golf and Country Club in Mandaluyong City and at No. 57 Flamingo Street, Greenmeadows Subdivision, Quezon City. Thus, the Republic sought again the issuance of alias summons, without prejudice to the resolution of its previous Motion for Leave for Issuance of Summons by Publication.34 The Sandiganbayan issued an alias summons for Disini, but it was returned unserved. On February 6, 2002, the Republic filed a Motion to Resolve (Ex Parte Motion for Leave to Serve Summons by Publication).35 The same was granted36 and on April 23, 2002, the summons and the Amended Complaint were published in Peoples Tonight, with a copy sent by registered mail to Disinis last known address, No. 92 Kennedy Street, Greenhills, San Juan, Metro Manila.37 By August 27, 2002, petitioner was declared in default for failure to file his responsive pleading within 60 days from the publication of the summons.38 Since three of the party-defendants (Ferdinand Marcos, Imelda Marcos, and petitioner) had been declared in default, while one was dropped to become state witness (Jacob), Sison remained as the sole defendant who could participate in Civil Case No. 0013. Given that there was a pending motion to drop Sison also as party-defendant, the Republic asked the Sandiganbayan to resolve the said motion so that they could proceed with the ex parte presentation of evidence.39 The said motion was submitted for resolution on September 20, 2002.40 On February 17, 2003, with the motion to drop Sison as party-defendant still pending, the Republic asked theSandiganbayan to hold in abeyance the pre-trial until the said motion had been resolved.41 On February 27, 2003, the Sandiganbayan clerk of court sent notice of the cancellation of the pre-trial set for March 4, 2003.42 The records of the Sandiganbayan became silent from the year 2003 to 2006, revealing an inaction that would only be broken by a foreign court that imposed a deadline on the freeze orders of the Disini Swiss accounts. This development began when petitioner Disinis wife and children filed a petition43 in a Swiss Federal Court to remove a previously issued freeze order on their Swiss accounts. On August 18, 2006, the Swiss Federal Court rendered a partial decision44 ordering the counsel for the Republic of the Philippines to submit a forfeiture order from a Philippine court with regard to the assets of Liliana and Herminio Disini not later than December 30, 2006; otherwise, the Swiss Federal Court would revoke the freeze order on the Disini Swiss accounts.45 This deadline apparently spurred the Republic (through the PCGG) to file an Urgent Manifestation and Motion46with the Sandiganbayan on November 30, 2006. The Republic prayed for the resolution of its Urgent Motion to Resolve (its motion to drop Rafael Sison as party-defendant).47 Should the resolution of this pending motion be favorable to the Republic, it likewise prayed for the setting of the ex parte presentation of evidence at an early date. On December 7, 2006, petitioner Disini filed a Motion to Lift Order of Default and for Leave to File and Admit Attached Answer,48 together with an Answer to Amended Complaint with Compulsory Counterclaims.49 He maintained that he was unaware of the civil case pending against him because he never received summons or other processes from the court, nor any pleadings from the parties of the case. His only fault, he averred, was that he was ignorant of the proceedings in the case because of the absence of a proper notice. Petitioner asked the respondent court to look at his meritorious defenses. He then invoked the liberality of the courts in lifting default orders to give both parties every

Disini vs. SB opportunity to defend their cases, and pointed out that the proceedings, being in their pre-trial stage, would not be delayed by petitioners participation therein.
Petitioners Answer contained affirmative defenses such as the respondent courts failure to acquire jurisdiction over his person through service by publication and the failure of the Amended Complaint to state a cause of action against him. With the two motions pending before it, the Sandiganbayan heard the Republic on its Urgent Manifestation and Motion on December 8, 2006. Petitioner Disinis lawyers were present during the hearing but were not allowed to participate therein because of the prevailing default order against Disini. The Sandiganbayan issued the following Order at the end of the said hearing: This morning, the Court heard the arguments of the counsel for [respondent] regarding the latters "Urgent Manifestation and Motion" dated November 29, 2006. The Court also gave the [respondent] a non-extendible period of three days counted from today within which to file its comment on the Motion to Lift Order of Default filed by [petitioner] Disini, and the latter is given a non-extendible period of three days from December 11, 2006 or until December 14, 2006, within which to file his reply to the comment of the [respondent], after which the incident shall be considered submitted for resolution without need of oral arguments. The Court will act on the [respondent]s "Urgent Manifestation and Motion" dated November 29, 2006 after the Court has resolved the Motion to Lift Order of Default. x x x x50 On December 11, 2006, the Republic filed its Comment/Opposition51 stating that it exhausted all efforts to ascertain the whereabouts of petitioner Disini. Failing to do so, the Republic resorted to service of summons by publication. This mode of service is allowed under Sections 14 and 15 of Rule 14 considering that the forfeiture case is in rem and the defendants address is unknown. The Republic explained that it filed its Ex Parte Motion for Leave to Serve Summons by Publication because it received information that petitioner had already gone to Austria. Clearly then, Disini was no longer a resident of the Philippines. The Republic reiterated that the service of summons by publication is proper considering that what is involved is a forfeiture case, an action in rem, under Republic Act No. 1379, in relation to Executive Order (EO) Nos. 1, 2, 14, and 14-A all issued by President Corazon C. Aquino. As for petitioners allegation that the Republic was aware of Disinis address as shown by the fact that summons were properly served at his correct address52 in two criminal cases pending before the same First Division of theSandiganbayan, the Republic pointed out that these criminal cases were filed on June 30, 2004, while respondents Ex Parte Motion for Leave to Serve Summons by Publication was filed on April 8, 1998. Hence, at the time the Republic asked for service by publication, it was not yet aware of petitioners correct address. Since petitioner failed to file his answer to a validly served Amended Complaint, the motion to lift the order of default is utterly lacking merit. Petitioner Disini filed his Reply on December 14, 200653 basically expounding on the arguments he stated in his Motion to Lift. On December 15, 2006, the Sandiganbayan granted PCGGs motion to drop Sison as party-defendant in Civil Case No. 0013,54 leaving only the defaulted defendants (i.e., the Marcos spouses and petitioner Disini) as parties to the case. Ruling of the Sandiganbayan (Assailed Resolution) On December 18, 2006, the Sandiganbayan resolved to deny55 petitioners Motion to Lift Default Order. The Sandiganbayan held that the Republic exerted diligence in ascertaining petitioners whereabouts as evidenced by the two motions it filed for the issuance of alias summons. The Sandiganbayan looked favorably at the Republics efforts to personally serve the summons on petitioner despite the pendency of its Ex Parte Motion for Leave to Serve Summons by Publication. It held that the Republics determination to serve summons at the places where the petitioner was last heard of to reside belies the petitioners claim that the Republic had intended to mislead the court into service by publication all along. The Sandiganbayan likewise held that the rules for a valid service of summons by publication were observed.

Disini vs. SB The Sandiganbayan did not find any indication that the Republic knew petitioners actual residence when it sought leave to serve summons by publication in 1998 and 2001.
As for the argument that publication is not proper because the action is in personam, the Sandiganbayan ruled that Civil Case No. 0013 is an action in rem for which service by publication is proper. The case is in rem because it involves the forfeiture of ill-gotten wealth based on EO No. 2,56 EO No. 1457 and No. 14-A58 promulgated by former President Corazon Aquino by virtue of her legislative authority. It cited the case of Republic v. Sandiganbayan and Marcos59 where the Court ruled that forfeiture proceedings are civil actions in rem. Given the validity of the service of summons, the respondent court held that petitioners failure to file a responsive pleading within the allotted period resulted in his default. The respondent court refused to lift the order of default on the ground that there was no fraud, accident, mistake or excusable negligence that would justify such an action. Petitioner then filed an Extremely Urgent Motion for Reconsideration60 and an Extremely Urgent Manifestation and Motion61 on December 19, 2006. Aside from asking for reconsideration, petitioner also prayed that the republics ex parte presentation of evidence be held in abeyance until the resolution of his motion for reconsideration. Petitioners motions were set for hearing on December 20, 2006 but the said hearing did not take place. Instead, the Sandiganbayan issued the following orders on December 19 and 20, 2006 respectively: Considering the difficulty in obtaining a quorum for the purpose of hearing the Extremely Urgent Manifestation and Motion dated December 18, 2006 of [petitioner] Herminio T. Disini, the Court resolves to cancel the hearing on the abovesaid motion on December 20, 2006, and instead require the [respondent] to file its written comment on the abovesaid motion on or before December 22, 2006, after which the motion shall be deemed submitted for resolution.62 Considering the difficulty in obtaining a quorum for the purpose of hearing the Extremely Urgent Motion for Reconsideration dated December 19, 2006 of [petitioner] Herminio T. Disini which was filed at the close of office hours on December 19, 2006, the Court resolves to cancel the hearing on the above-said motion on December 20, 2006, and instead require the [respondent] to file its written comment on the above-said motion within a non-extendible period of three (3) days from receipt thereof, after which the motion shall be deemed submitted for resolution, unless the parties or the Court will set the matter for hearing anew after the submission of the above comment.63 The Republics ex parte presentation of evidence held before the Sandiganbayan Executive Clerk of Court began on December 20, 2006 as evidenced by the transcript.64 While petitioner was not allowed to participate in the said proceedings, he was notified thereof and his counsels were present to observe the same. On December 22, 2006, petitioner filed this Petition for Certiorari. On January 2, 2007, he filed a Supplement to the Petition for Certiorari and Prohibition65 protesting the continuation of the ex parte proceedings before theSandiganbayan as a grave abuse of discretion amounting to lack of jurisdiction. He also filed a Second Supplemental Petition on January 5, 2007.66 Proceedings before the Sandiganbayan during the pendency of the instant Petition for Certiorari and Prohibition On August 7, 2007, the Sandiganbayan issued its Resolution67 denying petitioners Extremely Urgent Motion for Reconsideration for lack of merit. The Republic presented 10 witnesses.68 It filed its Formal Offer of Evidence dated October 17, 2008, which offer was admitted in the Resolution dated December 3, 2008.69 On February 11, 2009, the Republic filed its Memorandum.70 On July 7, 2009, despite the pendency of his Petition for Certiorari and Prohibition with the Supreme Court, petitioner filed with the Sandiganbayan a Second Motion to Lift the Order of Default71 dated August 27, 2002 the very same Order which is now at the heart of the present petition.

Disini vs. SB On September 8, 2009, petitioner filed with the Sandiganbayan a Motion to Expunge or Cross-Examine Plaintiffs Witnesses.72 On September 15, 2009, he also filed a Motion to Expunge Evidence Presented Before the Clerk of Court.73
On September 23, 2009, petitioner filed with this Court a Motion for Leave to File Supplemental Memorandum,74which was denied in a Resolution dated September 30, 2009.75 On October 15, 2009, petitioner filed with the Sandiganbayan a Motion to Expunge Rolando Gapuds Deposition taken on October 18-20, 1995.76 On October 19, 2009, he filed a Motion to Expunge or Cross-Examine Plaintiffs witnesses.77 On February 18, 2010, petitioner filed with the Sandiganbayan a Supplement to the Second Motion to Lift the Order of Default dated August 27, 2002 with Motion to Take Judicial Notice.78 On March 4, 2010, he filed a Motion for Leave to Take Deposition.79 Issues Petitioner raised the following issues for our consideration: 1. Whether the Sandiganbayan court gravely abused its discretion in not lifting its default order against petitioner Disini 2. Whether the Sandiganbayan court gravely abused its discretion when it allowed the Republic to present its evidence ex-parte while petitioners Motion for Reconsideration [of the stay of the default order] had not yet been resolved.80 Our Ruling Issue of Validity of Service of Summons Mooted by Voluntary Appearance In his Petition, petitioner originally sought the nullification of the proceedings before the Sandiganbayan on the theory of lack of jurisdiction over his person, premised on the alleged impropriety in the service of summons. However, petitioner subsequently filed several motions with the Sandiganbayan which sought various affirmative reliefs from that court, sans any qualification of the nature of its appearance and without reserving or reiterating its previous objection on the ground of lack of jurisdiction over the person. These motions are: (a) Motion to Expunge Exhibits "A," "B," "C," "D," "E," "XX," "YY," "ZZ," "EE," and their Submarkings or CrossExamine Plaintiffs Witness,81 which sought to expunge various affidavits of the Republics witnesses; (b) Motion to Expunge Evidence Presented Before the Clerk of Court,82 which prayed that all the evidence presented before the clerk of court be stricken off the records for being taken in violation of the Rules; (c) Motion to Expunge Gapuds Deposition taken on 18-20 October 1995,83 which sought to remove from the records the deposition offered by the Republic; (d) Motion to Expunge Exhibits "FFF" and "GGG",84 which sought to strike off the mentioned exhibits of respondents and asked the Sandiganbayan to permit petitioner to cross-examine witness Jesus Disini; (e) Motion for Consolidation,85 which prayed that Civil Case No. 0013 be consolidated with Criminal Case Nos. 28001 and 28001; and (f) Motion for Leave to Take Deposition based on Section 1 of Rule 23 (Depositions Pending Action or De Benne Esse).86

Disini vs. SB In regard to the last mentioned Motion for Leave to Take Deposition87 (which is the last pleading on record), it is important to note that there are two instances when the defendant can take depositions under Section 1 of Rule 23: (1) after the court has acquired jurisdiction over the defendant or the property subject of the action; and (2) after an answer has been served. Both instances presuppose that the court has already acquired jurisdiction over the defendant. By seeking the relief contained in this provision, petitioner is deemed to have voluntarily submitted himself to the jurisdiction of the Sandiganbayan. Thus, petitioner may be held to have waived his objections regarding the lack of jurisdiction over his person by seeking affirmative relief through the said provision.
While petitioner bewailed the mode of service of summons on him and questioned the Sandiganbayans jurisdiction over his person, he has rendered his own arguments moot by his voluntary appearance or submission to the jurisdiction of the Sandiganbayan. Jurisprudence holds that an objection based on lack of jurisdiction over the person is waived when the defendant files a motion or pleading which seeks affirmative relief other than the dismissal of the case.88 Issue of Non-Lifting of Default Order Dismissed for Forum-shopping When petitioner filed this Petition on December 22, 2006 assailing the Sandiganbayans December 18, 2006 Resolution, the latter was still the subject of a pending Extremely Urgent Motion for Reconsideration filed by petitioner with the Sandiganbayan. The filing of the instant petition before this Court while a motion for reconsideration was still pending before the Sandiganbayan constitutes, strictly speaking, forum-shopping,89which could have warranted the outright dismissal of the petition. However, in light of the due process issues raised by petitioner and the very real possibility that he had no other speedy remedy available to him, his Petition was given due course. Inexplicably, and in continuing disregard of the rules on forum-shopping and judicial courtesy, petitioner raised again the same issue (validity of the default order and the propriety of lifting said default order) in a Second Motion to Lift the Order of Default dated August 27, 2002 which he filed with the Sandiganbayan after the latter denied his Extremely Urgent Motion for Reconsideration. This Second Motion to Lift the Order of Default was filed on July 27, 2009, admittedly during the pendency of the instant Petition. Both remedies seek from different fora exactly the same ultimate relief (lifting of the default order issued by the Sandiganbayan) and raise the same issue (validity of the default order and the propriety of lifting said default order). In availing himself of these two remedies, petitioner has engaged in forum-shopping. There is forum shopping when one party repetitively avails of several judicial remedies in different courts, simultaneously or successively, all substantially founded on the same transactions and the same essential facts and circumstances, and all raising substantially the same issues either pending in, or already resolved adversely, by some other court.90 Forum shopping is a prohibited malpractice and condemned as trifling with the courts and their processes.91 It is proscribed because it unnecessarily burdens the courts with heavy caseloads, and unduly taxes the manpower and financial resources of the judiciary.92 It is inimical to the orderly administration of justice as it creates the possibility of conflicting decisions being rendered by two courts,93 and opens the system to the possibility of manipulation.94 In filing a Second Motion to Lift the Order of Default with the Sandiganbayan while the instant Petition is pending with this Court, petitioner has unfairly doubled his chances of securing the lifting of the default order. "This misdeed amounts to a wagering on the result of [petitioners] twin devious strategies, and shows not only [his] lack of faith in this Court in its evenhanded administration of law but also [his] expression of disrespect if not ridicule for our judicial process and orderly procedure."95 The situation here is strikingly similar to that in People v. Sandiganbayan.96 In that case, the petitioner had filed with the Sandiganbayan a motion for consolidation of a bribery case with a plunder case. The Sandiganbayanrefused, leading the petitioner to file a petition for certiorari with this Court. While the said petition was pending with this Court, the petitioner filed another motion for consolidation with the Sandiganbayan, praying anew for the consolidation of the bribery case with a plunder case. The motion raised the same issues and prayed for the same remedy as the pending petition with this Court, namely, the consolidation of the bribery case and the plunder case. The Court held that "such move clearly constitutes forum-shopping."

Disini vs. SB This is almost exactly what happened in the instant case. Petitioner had filed with the Sandiganbayan a motion to lift default order. The Sandiganbayan refused, leading petitioner to file a petition for certiorari with this Court. While the said petition was pending with this Court, petitioner filed another motion to lift default order with theSandiganbayan, praying anew for the lifting of the default order. Thus, following the ruling in People v. Sandiganbayan, we rule that petitioners actuations clearly constitute forum-shopping.
Because of the forum-shopping committed by petitioner, the Court cannot grant the relief he prayed for. Certiorari is an improper remedy Petitioner imputes grave abuse of discretion on the Sandiganbayan for allegedly "railroading" the proceedings in violation of his right to due process and fair trial. More specifically, petitioner points out that when theSandiganbayan denied his Motion to Lift Order of Default (December 18, 2006), he immediately filed an Extremely Urgent Motion for Reconsideration (December 19, 2006). However, before the latter could be resolved, theSandiganbayan allowed the ex-parte presentation of evidence to proceed (December 20, 2006). This prompted petitioner to file the instant Petition with this Court two days later (December 22, 2006). While it may have been more convenient if the Sandiganbayan resolved first the Extremely Urgent Motion for Reconsideration before allowing the ex-parte presentation of evidence, we cannot say that the course taken by the Sandiganbayan constitutes grave abuse of discretion. We cannot infer from the Sandiganbayans deliberate speed that it was done to prejudice petitioner. There was adequate justification for the Sandiganbayans resolve to finish the twenty-year old forfeiture case with dispatch. Aside from the length of time that Civil Case No. 0013 has stagnated in the dockets, the Republics manifestation (that a resolution was necessary by December 30, 2006 in order to maintain the Swiss Federal Courts freeze order on petitioners Swiss accounts) is reason enough not to further delay the case as a matter of public interest. Besides, it should be remembered that when theSandiganbayan received evidence exparte on December 20, 2006, petitioner was still in default and his Motion to Lift Default Order has already been denied. The ex-parte presentation of evidence on December 20, 2006 was simply consistent with petitioners default status as of that time. Grave abuse of discretion refers to such "capricious or whimsical exercise of judgment as is equivalent to lack of jurisdiction." The abuse of discretion must be patent and gross as to amount to an evasion of positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion and hostility. The actions of theSandiganbayan were not thus tainted under the circumstances we described above. Thus, we cannot accept petitioners contention that the proceedings taken below must be nullified because of the alleged "railroading" by the Sandiganbayan. Moreover, Rule 65 petitions for certiorari are extraordinary remedies available only when there is grave abuse of discretion amounting to lack of jurisdiction and the petitioner has no other plain, speedy, and adequate remedy for correcting such abuse.97 By filing a Second Motion to Lift the Order of Default and the various motions seeking the Sandiganbayanscorrection of the perceived errors during the Republics ex parte presentation of evidence, petitioner has revealed his belief that he had adequate remedies before the Sandiganbayan. A resort to a Rule 65 petition is, under the premises, improper. WHEREFORE, the Petition for Certiorari is DISMISSED. Costs against petitioner. SO ORDERED.

US vs Balsys

PROCUNIER V. MARTINEZ, 416 U. S. 396 (1974)

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U.S. Supreme Court

Procunier v. Martinez, 416 U.S. 396 (1974)
Procunier v. Martinez No. 72-1465 Argued December 3, 1973 Decided April 29, 1974 416 U.S. 396 APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA Syllabus Appellees, prison inmates, brought this class action challenging prisoner mail censorship regulations issued by the Director of the California Department of Corrections and the ban against the use of law students and legal paraprofessionals to conduct attorney-client interviews with inmates. The mail censorship regulations, inter alia, proscribed inmate correspondence that "unduly complain[ed]," "magnif[ied] grievances," "express[ed] inflammatory political, racial, religious or other views or beliefs," or contained matter deemed "defamatory" or "otherwise inappropriate." The District Court held these regulations unconstitutional under the First Amendment, void for vagueness, and violative of the Fourteenth Amendment's guarantee of procedural due process, and it enjoined their continued enforcement. The court required that an inmate be notified of the rejection of correspondence, and that the author of the correspondence be allowed to protest the decision and secure review by a prison official other than the original censor. The District Court also held that the ban against the use of law students and legal paraprofessionals to conduct attorney-client interviews with inmates abridged the right of access to the courts and enjoined its continued enforcement. Appellants contend that the District Court should have abstained from deciding the constitutionality of the mail censorship regulations. Held: 1. The District Court did not err in refusing to abstain from deciding the constitutionality of the mail censorship regulations. Pp. 400-404.

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2. The censorship of direct personal correspondence involves incidental restrictions on the right to free speech of both prisoners and their correspondents, and is justified if the following criteria are met: (1) it must further one or more of the important and substantial governmental interests of security, order, and the rehabilitation of inmates, and (2) it must be no greater than is necessary to further the legitimate governmental interest involved. Pp. 416 U. S. 404-414. Page 416 U. S. 397 3. Under this standard, the invalidation of the mail censorship regulations by the District Court was correct. Pp. 416 U. S. 415-416. 4. The decision to censor or withhold delivery of a particular letter must be accompanied by minimum procedural safeguards against arbitrariness or error, and the requirements specified by the District Court were not unduly burdensome. Pp. 416 U. S. 417-419. 5. The ban against attorney-client interviews conducted by law students or legal paraprofessionals, which was not limited to prospective interviewers who posed some colorable threat to security or to those inmates thought to be especially dangerous and which created an arbitrary distinction between law students employed by attorneys and those associated with law school programs (against whom the ban did not operate), constituted an unjustifiable restriction on the inmates' right of access to the courts.Johnson v. Avery, 393 U. S. 483. Pp. 416 U. S. 419-422. 354 F.Supp. 1092, affirmed. POWELL, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, STEWART, WHITE, MARSHALL, BLACKMUN, and REHNQUIST, JJ., joined. MARSHALL, J., filed a concurring opinion, in which BRENNAN, J., joined and in Part II of which DOUGLAS, J., joined, post, p. 416 U. S. 422. DOUGLAS, J., filed an opinion concurring in the judgment, post, p. 416 U. S. 428. Page 416 U. S. 398 MR. JUSTICE POWELL delivered the opinion of the Court. This case concerns the constitutionality of certain regulations promulgated by appellant Procunier in his capacity as Director of the California Department of Corrections. Appellees brought a class action on behalf of themselves and all other inmates of penal institutions under the Department's jurisdiction to challenge the rules relating to censorship of prisoner mail and the ban against the use of law students and legal paraprofessionals to conduct attorney-client interviews with inmates. Pursuant to 28 U.S.C. 2281, a three-judge United States District Court was convened to hear appellees' request for declaratory and injunctive relief. That court entered summary judgment enjoining continued enforcement of the rules in question and ordering appellants to submit new regulations for the court's approval. 354 F.Supp. 1092 (ND Cal.1973). Appellants' first revisions resulted in counter-proposals by appellees and a court order issued May 30, 1973, requiring further modification of the proposed rules. The second set of revised regulations was approved by the District Court on July 20, 1973, over

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appellees' objections. While the first proposed revisions of the Department's regulations were pending before the District Court, appellants brought this appeal to contest that court's decision holding the original regulations unconstitutional. We noted probable jurisdiction. 412 U.S. 948 (1973). We affirm.

I
First we consider the constitutionality of the Director's rules restricting the personal correspondence of prison inmates. Under these regulations, correspondence between Page 416 U. S. 399 inmates of California penal institutions and persons other than licensed attorneys and holders of public office was censored for nonconformity to certain standards. Rule 2401 stated the Department's general premise that personal correspondence by prisoners is "a privilege, not a right. . . ." [Footnote 1] More detailed regulations implemented the Department's policy. Rule 1201 directed inmates not to write letters in which they "unduly complain" or "magnify grievances." [Footnote 2] Rule 1205(d) defined as contraband writings "expressing inflammatory political, racial, religious or other views or beliefs. . . ." [Footnote 3] Finally, Rule 2402(8) provided that inmates "may not send or receive letters that pertain to criminal activity; Page 416 U. S. 400 are lewd, obscene, or defamatory; contain foreign matter, or are otherwise inappropriate." [Footnote 4] Prison employees screened both incoming and outgoing personal mail for violations of these regulations. No further criteria were provided to help members of the mail room staff decide whether a particular letter contravened any prison rule or policy. When a prison employee found a letter objectionable, he could take one or more of the following actions: (1) refuse to mail or deliver the letter and return it to the author; (2) submit a disciplinary report, which could lead to suspension of mail privileges or other sanctions; or (3) place a copy of the letter or a summary of its contents in the prisoner's file, where it might be a factor in determining the inmate's work and housing assignments and in setting a date for parole eligibility. The District Court held that the regulations relating to prisoner mail authorized censorship of protected expression without adequate justification in violation of the First Amendment, and that they were void for vagueness. The court also noted that the regulations failed to provide minimum procedural safeguards against error and arbitrariness in the censorship of inmate correspondence. Consequently, it enjoined their continued enforcement. Appellants contended that the District Court should have abstained from deciding these questions. In that court, appellants advanced no reason for abstention other than the assertion that the federal court

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should defer to the California courts on the basis of comity. The District Court properly rejected this suggestion, noting that the Page 416 U. S. 401 mere possibility that a state court might declare the prison regulations unconstitutional is no ground for abstention. Wisconsin v. Constantineau, 400 U. S. 433, 400 U. S. 439(1971). Appellants now contend that we should vacate the judgment and remand the case to the District Court with instructions to abstain on the basis of two arguments not presented to it. First, they contend hat any vagueness challenge to an uninterpreted state statute or regulation is a proper case for abstention. According to appellants, "[t]he very statement by the district court that the regulations are vague constitutes a compelling reason for abstention." Brief for Appellants 8-9. As this Court made plain inBaggett v. Bullitt, 377 U. S. 360 (1964), however, not every vagueness challenge to an uninterpreted state statute or regulation constitutes a proper case for abstention. [Footnote 5] But we need not decide whether appellants' contention is controlled by the analysis in Baggett, for the short Page 416 U. S. 402 answer to their argument is that these regulations were neither challenged nor invalidated solely on the ground of vagueness. Appellees also asserted, and the District Court found, that the rules relating to prisoner mail permitted censorship of constitutionally protected expression without adequate justification. In light of the successful First Amendment attack on these regulations, the District Court's conclusion that they were also unconstitutionally vague hardly "constitutes a compelling reason for abstention." As a second ground for abstention, appellants rely on Cal.Penal Code 2600(4), which assures prisoners the right to receive books, magazines, and periodicals. [Footnote 6] Although they did not advance this argument to the District Court, appellants now contend that the interpretation of the statute by the state courts and its application to the regulations governing prisoner mail might avoid or modify the constitutional questions decided below. Thus, appellants seek to establish the essential prerequisite for abstention -- "an uncertain issue of state Page 416 U. S. 403 law," the resolution of which may eliminate or materially alter the federal constitutional question. [Footnote 7] Harman v. Forssenius, 380 U. S. 528, 380 U. S. 534 (1965). We are not persuaded. A state court interpretation of 2600(4) would not avoid or substantially modify the constitutional question presented here. That statute does not contain any provision purporting to regulate censorship of personal correspondence. It only preserves the right of inmates to receive "newspapers, periodicals, and books," and authorizes prison officials to exclude "obscene publications or writings, and mail containing information concerning

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Page 416 U. S. 404 where, how, or from whom such matter may be obtained. . . ." (Emphasis added.) And the plain meaning of the language is reinforced by recent legislative history. In 1972, a bill was introduced in the California Legislature to restrict censorship of personal correspondence by adding an entirely new subsection to 2600. The legislature passed the bill, but it was vetoed by Governor Reagan. In light of this history, we think it plain that no reasonable interpretation of 2600(4) would avoid or modify the federal constitutional question decided below. Moreover, we are mindful of the high cost of abstention when the federal constitutional challenge concerns facial repugnance to the First Amendment. Zwickler v. Koota, 389 U. S. 241, 389 U. S. 252(1967); Baggett v. Bullitt, 377 U.S. at 377 U. S. 379. We therefore proceed to the merits. A Traditionally, federal courts have adopted a broad hands-off attitude toward problems of prison administration. In part, this policy is the product of various limitations on the scope of federal review of conditions in state penal institutions. [Footnote 8] More fundamentally, this attitude springs from complementary perceptions about the nature of the problems and the efficacy of judicial intervention. Prison administrators are responsible for maintaining internal order and discipline, for securing their institutions against unauthorized access or escape, and for rehabilitating, to the extent that human nature and inadequate resources allow, the inmates placed in their custody. The Herculean obstacles to effective discharge of these duties are too apparent to warrant explication. Suffice it to say that the problems of prisons Page 416 U. S. 405 in America are complex and intractable, and, more to the point, they are not readily susceptible of resolution by decree. Most require expertise, comprehensive planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government. For all of those reasons, courts are ill-equipped to deal with the increasingly urgent problems of prison administration and reform. [Footnote 9] Judicial recognition of that fact reflects no more than a healthy sense of realism. Moreover, where state penal institutions are involved, federal courts have a further reason for deference to the appropriate prison authorities. But a policy of judicial restraint cannot encompass any failure to take cognizance of valid constitutional claims whether arising in a federal or state institution. When a prison regulation or practice offends a fundamental constitutional guarantee, federal courts will discharge their duty to protect constitutional Page 416 U. S. 406 rights. Johnson v. Avery, 393 U. S. 483, 393 U. S. 486 (1969). This is such a case. Although the District Court found the regulations relating to prisoner mail deficient in several respects, the first and principal

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basis for its decision was the constitutional command of the First Amendment, as applied to the States by the Fourteenth Amendment. [Footnote 10] The issue before us is the appropriate standard of review for prison regulations restricting freedom of speech. This Court has not previously addressed this question, and the tension between the traditional policy of judicial restraint regarding prisoner complaints and the need to protect constitutional rights has led the federal courts to adopt a variety of widely inconsistent approaches to the problem. Some have maintained a hands-off posture in the face of constitutional challenges to censorship of prisoner mail. E.g., McCloskey v. Maryland, 337 F.2d 72 (CA4 1964); Lee v. Tahash,352 F.2d 970 (CA8 1965) (except insofar as mail censorship rules are applied to discriminate against a particular racial or religious group); Krupnick v. Crouse, 366 F.2d 851 (CA10 1966); Pope v. Daggett, 350 F.2d 296 (CA10 1965). Another has required only that censorship of personal correspondence not lack support "in any rational and constitutionally acceptable concept of a prison system." Sostre v. McGinnis, 442 F.2d 178, 199 (CA2 1971), cert. denied sub nom. Oswald v. Sostre, 405 U.S. 978 (1972). At the other extreme, some courts have been willing to require demonstration of a "compelling state interest" to justify censorship of prisoner mail. E.g., Jackson v. Godwin, 400 F.2d 529 Page 416 U. S. 407 (CA5 1968) (decided on both equal protection and First Amendment grounds); Morales v. Schmidt, 340 F.Supp. 544 (WD Wis.1972); Fortune Society v. McGinnis, 319 F.Supp. 901 (SDNY 1970). Other courts phrase the standard in similarly demanding terms of "clear and present danger." E.g., Wilkinson v. Skinner, 462 F.2d 670, 672-673 (CA2 1972). And there are various intermediate positions, most notably the view that a "regulation or practice which restricts the right of free expression that a prisoner would have enjoyed if he had not been imprisoned must be related both reasonably and necessarily to the advancement of some justifiable purpose." E.g., Carothers v. Follette, 314 F.Supp. 1014, 1024 (SDNY 1970) (citations omitted).See also Gates v. Collier, 349 F.Supp. 881, 896 (ND Miss.1972); LeMon v. Zelker, 358 F.Supp. 554 (SDNY 1972). This array of disparate approaches and the absence of any generally accepted standard for testing the constitutionality of prisoner mail censorship regulations disserve both the competing interests at stake. On the one hand, the First Amendment interests implicated by censorship of inmate correspondence are given only haphazard and inconsistent protection. On the other, the uncertainty of the constitutional standard makes it impossible for correctional officials to anticipate what is required of them, and invites repetitive, piecemeal litigation on behalf of inmates. The result has been unnecessarily to perpetuate the involvement of the federal courts in affairs of prison administration. Our task is to formulate a standard of review for prisoner mail censorship that will be responsive to these concerns. B

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We begin our analysis of the proper standard of review for constitutional challenges to censorship of prisoner mail with a somewhat different premise from that taken Page 416 U. S. 408 by the other federal courts that have considered the question. For the most part, these courts have dealt with challenges to censorship of prisoner mail as involving broad questions of "prisoners' rights." This case is no exception. The District Court stated the issue in general terms as "the applicability of First Amendment rights to prison inmates . . . ," 354 F.Supp. at 1096, and the arguments of the parties reflect the assumption that the resolution of this case requires an assessment of the extent to which prisoners may claim First Amendment freedoms. In our view, this inquiry is unnecessary. In determining the proper standard of review for prison restrictions on inmate correspondence, we have no occasion to consider the extent to which an individual's right to free speech survives incarceration, for a narrower basis of decision is at hand. In the case of direct personal correspondence between inmates and those who have a particularized interest in communicating with them, [Footnote 11] mail censorship implicates more than the right of prisoners. Communication by letter is not accomplished by the act of writing words on paper. Rather, it is effected only when the letter is read by the addressee. Both parties to the correspondence have an interest in securing that result, and censorship of the communication between them necessarily impinges on the interest of each. Whatever the status of a prisoner's claim to uncensored correspondence with an outsider, it is plain that the latter's interest is grounded in the First Amendment's guarantee of freedom of speech. And this does not depend on whether the nonprisoner correspondent is the author or intended recipient of a particular letter, for the addressee as well as the sender of direct personal correspondence Page 416 U. S. 409 derives from the First and Fourteenth Amendments a protection against unjustified governmental interference with the intended communication. Lamont v. Postmaster General, 381 U. S. 301 (1965); accord, Kleindienst v. Mandel, 408 U. S. 753, 408 U. S. 762-765 (1972); Martin v. City of Struthers, 319 U. S. 141, 319 U. S. 143 (1943). We do not deal here with difficult questions of the socalled "right to hear" and third-party standing, but with a particular means of communication in which the interests of both parties are inextricably meshed. The wife of a prison inmate who is not permitted to read all that her husband wanted to say to her has suffered an abridgment of her interest in communicating with him as plain as that which results from censorship of her letter to him. In either event, censorship of prisoner mail works a consequential restriction on the First and Fourteenth Amendments rights of those who are not prisoners. Accordingly, we reject any attempt to justify censorship of inmate correspondence merely by reference to certain assumptions about the legal status of prisoners. Into this category of argument falls appellants' contention that "an inmate's rights with reference to social correspondence are something

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fundamentally different than those enjoyed by his free brother." Brief for Appellants 19. This line of argument and the undemanding standard of review it is intended to support fail to recognize that the First Amendment liberties of free citizens are implicated in censorship of prisoner mail. We therefore turn for guidance not to cases involving questions of "prisoners' rights," but to decisions of this Court dealing with the general problem of incidental restrictions on First Amendment liberties imposed in furtherance of legitimate governmental activities. As the Court noted in Tinker v. Des Moines School District, 393 U. S. 503, 393 U. S. 506 (1969), First Amendment Page 416 U. S. 410 guarantees must be "applied in light of the special characteristics of the . . .

environment." Tinker concerned the interplay between the right to freedom of speech of public high school students and "the need for affirming the comprehensive authority of the States and of school officials, consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools." Id. at 393 U. S. 507. In overruling a school regulation prohibiting the wearing of anti-war armbands, the Court undertook a careful analysis of the legitimate requirements of orderly school administration in order to ensure that the students were afforded maximum freedom of speech consistent with those requirements. The same approach was followed in Healy v. James, 408 U. S. 169 (1972), where the Court considered the refusal of a state college to grant official recognition to a group of students who wished to organize a local chapter of the Students for a Democratic Society (SDS), a national student organization noted for political activism and campus disruption. The Court found that neither the identification of the local student group with the national SDS, nor the purportedly dangerous political philosophy of the local group, nor the college administration's fear of future, unspecified disruptive activities by the students could justify the incursion on the right of free association. The Court also found, however, that this right could be limited if necessary to prevent campus disruption, id. at 408 U. S. 189-190, n. 20, and remanded the case for determination of whether the students had, in fact, refused to accept reasonable regulations governing student conduct. In United States v. O'Brien, 391 U. S. 367 (1968), the Court dealt with incidental restrictions on free speech occasioned by the exercise of the governmental power to conscript men for military service. O'Brien had burned his Selective Service registration certificate on the steps Page 416 U. S. 411 of a courthouse in order to dramatize his opposition to the draft and to our country's involvement in Vietnam. He was convicted of violating a provision of the Selective Service law that had recently been amended to prohibit knowing destruction or mutilation of registration certificates. O'Brien argued that the purpose and effect of the amendment were to abridge free expression, and that the statutory

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provision was therefore unconstitutional, both as enacted and as applied to him. Although O'Brien's activity involved "conduct", rather than pure "speech," the Court did not define away the First Amendment concern, and neither did it rule that the presence of a communicative intent necessarily rendered O'Brien's actions immune to governmental regulation. Instead, it enunciated the following four-part test: "[A] government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest." Id. at 391 U. S. 377. Of course, none of these precedents directly controls the instant case. In O'Brien, the Court considered a federal statute which, on its face, prohibited certain conduct having no necessary connection with freedom of speech. This led the Court to differentiate between "speech" and "nonspeech" elements of a single course of conduct, a distinction that has little relevance here. Both Tinker and Healy concerned First and Fourteenth Amendment liberties in the context of state educational institutions, a circumstance involving rather different governmental interests than are at stake here. In broader terms, however, these precedents involved incidental Page 416 U. S. 412 restrictions on First Amendment liberties by governmental action in furtherance of legitimate and substantial state interest other than suppression of expression. In this sense, these cases are generally analogous to our present inquiry. The case at hand arises in the context of prisons. One of the primary functions of government is the preservation of societal order through enforcement of the criminal law, and the maintenance of penal institutions is an essential part of that task. The identifiable governmental interests at stake in this task are the preservation of internal order and discipline, [Footnote 12] the maintenance of institutional security against escape or unauthorized entry, and the rehabilitation of the prisoners. While the weight of professional opinion seems to be that inmate freedom to correspond with outsiders advances, rather than retards the goal of rehabilitation, [Footnote 13] the legitimate governmental Page 416 U. S. 413 interest in the order and security of penal institutions justifies the imposition of certain restraints on inmate correspondence. Perhaps the most obvious example of justifiable censorship of prisoner mail would be refusal to send or deliver letters concerning escape plans or containing other information concerning proposed criminal activity, whether within or without the prison. Similarly, prison officials may properly refuse to transmit encoded messages. Other less obvious possibilities come to mind, but it is not our purpose to survey the range of circumstances in which particular restrictions on prisoner mail

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might be warranted by the legitimate demands of prison administration as they exist from time to time in the various kinds of penal institutions found in this country. Our task is to determine the proper standard for deciding whether a particular regulation or practice relating to inmate correspondence constitutes an impermissible restraint of First Amendment liberties. Applying the teachings of our prior decisions to the instant context, we hold that censorship of prisoner mail is justified if the following criteria are met. First, the regulation or practice in question must further an important or substantial governmental interest unrelated to the suppression of expression. Prison officials may not censor inmate correspondence simply to eliminate unflattering or unwelcome opinions or factually inaccurate statements. Rather, they must show that a regulation authorizing mail censorship furthers one or more of the substantial governmental interests of security, order, and rehabilitation. Second, the limitation of First Amendment freedoms must be no greater than is necessary or essential to the protection of the particular governmental interest involved. Thus, a restriction on inmate correspondence Page 416 U. S. 414 that further an important or substantial interest of penal administration will nevertheless be invalid if its sweep is unnecessarily broad. This does not mean, of course, that prison administrators may be required to show with certainty that adverse consequences would flow from the failure to censor a particular letter. Some latitude in anticipating the probable consequences of allowing certain speech in a prison environment is essential to the proper discharge of an administrator's duty. But any regulation or practice that restricts inmate correspondence must be generally necessary to protect one or more of the legitimate governmental interests identified above. [Footnote 14] Page 416 U. S. 415 C On the basis of this standard, we affirm the judgment of the District Court. The regulations invalidated by that court authorized, inter alia, censorship of statements that "unduly complain" or "magnify grievances," expression of "inflammatory political, racial, religious or other views," and matter deemed "defamatory" or "otherwise inappropriate." These regulations fairly invited prison officials and employees to apply their own personal prejudices and opinions as standards for prisoner mail censorship. Not surprisingly, some prison officials used the extraordinary latitude for discretion authorized by the regulations to suppress unwelcome criticism. For example, at one institution under the Department's jurisdiction, the checklist used by the mail room staff authorized rejection of letters "criticizing policy, rules or officials," and the mail room sergeant stated in a deposition that he would reject as "defamatory" letters "belittling staff or our judicial system or anything connected with Department of Corrections." Correspondence was also censored for "disrespectful comments," "derogatory remarks," and the like.

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Appellants have failed to show that these broad restrictions on prisoner mail were in any way necessary to the furtherance of a governmental interest unrelated to the suppression of expression. Indeed, the heart of appellants' position is not that the regulations are justified by a legitimate governmental interest, but that they do not need to be. This misconception is not only stated affirmatively; it also underlies appellants' discussion of the particular regulations under attack. For example, appellants' sole defense of the prohibition against matter that is "defamatory" or "otherwise inappropriate" is that Page 416 U. S. 416 it is "within the discretion of the prison administrators." Brief for Appellants 21. Appellants contend that statements that "magnify grievances" or "unduly complain" are censored "as a precaution against flash riots and in the furtherance of inmate rehabilitation." Id. at 22. But they do not suggest how the magnification of grievances or undue complaining, which presumably occurs in outgoing letters, could possibly lead to flash riots, nor do they specify what contribution the suppression of complaints makes to the rehabilitation of criminals. And appellants defend the ban against "inflammatory political, racial, religious or other views" on the ground that "[s]uch matter clearly presents a danger to prison security. . . ." Id. at 21. The regulation, however, is not narrowly drawn to reach only material that might be thought to encourage violence, nor is its application limited to incoming letters. In short, the Department's regulations authorized censorship of prisoner mail far broader than any legitimate interest of penal administration demands, and were properly found invalid by the District Court. [Footnote 15] Page 416 U. S. 417 D We also agree with the District Court that the decision to censor or withhold delivery of a particular letter must he accompanied by minimum procedural safeguards. Page 416 U. S. 418 The interest of prisoners and their correspondents in uncensored communication by letter, grounded as it is in the First Amendment, is plainly a "liberty" interest within the meaning of the Fourteenth Amendment even though qualified of necessity by the circumstance of imprisonment. As such, it is protected from arbitrary governmental invasion. See Board of Regents v. Roth, 408 U. S. 564 (1972); Perry v. Sindermann,408 U. S. 593 (1972). The District Court required that an inmate be notified of the rejection of a letter written by or addressed to him, that the author of that letter be given a reasonable opportunity to protest that decision, and that complaints be referred to a prison official other than Page 416 U. S. 419 the person who originally disapproved the correspondence. These requirements do not appear to be unduly burdensome, nor do appellants so contend. Accordingly, we affirm the judgment of the District Court with respect to the Department's regulations relating to prisoner mail.

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II
The District Court also enjoined continued enforcement of Administrative Rule MV-IV-02, which provides in pertinent part: "Investigators for an attorney of record will be confined to not more than two. Such investigators must be licensed by the State or must be members of the State Bar. Designation must be made in writing by the Attorney." By restricting access to prisoners to members of the bar and licensed private investigators, this regulation imposed an absolute ban on the use by attorneys of law students and legal paraprofessionals to interview inmate clients. In fact, attorneys could not even delegate to such persons the task of obtaining prisoners' signatures on legal documents. The District Court reasoned that this rule constituted an unjustifiable restriction on the right of access to the courts. We agree. The constitutional guarantee of due process of law has as a corollary the requirement that prisoners be afforded access to the courts in order to challenge unlawful convictions and to seek redress for violations of their constitutional rights. This means that inmates must have a reasonable opportunity to seek and receive the assistance of attorneys. Regulations and practices that unjustifiably obstruct the availability of professional representation or other aspects of the right of access to the courts are invalid. Ex parte Hull, 312 U. S. 546 (1941). Page 416 U. S. 420 The District Court found that the rule restricting attorney-client interviews to members of the bar and licensed private investigators inhibited adequate professional representation of indigent inmates. The remoteness of many California penal institutions makes a personal visit to an inmate client a timeconsuming undertaking. The court reasoned that the ban against the use of law students or other paraprofessionals for attorney-client interviews would deter some lawyers from representing prisoners who could not afford to pay for their traveling time or that of licensed private investigators. And those lawyers who agreed to do so would waste time that might be employed more efficaciously in working on the inmates' legal problems. Allowing law students and paraprofessionals to interview inmates might well reduce the cost of legal representation for prisoners. The District Court therefore concluded that the regulation imposed a substantial burden on the right of access to the courts. As the District Court recognized, this conclusion does not end the inquiry, for prison administrators are not required to adopt every proposal that may be thought to facilitate prisoner access to the courts. The extent to which that right is burdened by a particular regulation or practice must be weighed against the legitimate interests of penal administration and the proper regard that judges should give to the expertise and discretionary authority of correctional officials. In this case, the ban against the use of law students and other paraprofessional personnel was absolute. Its prohibition was not limited to prospective interviewers who posed some colorable threat to security or to those inmates thought to be

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especially dangerous. Nor was it shown that a less restrictive regulation would unduly burden the administrative task of screening and monitoring visitors. Page 416 U. S. 421 Appellants' enforcement of the regulation in question also created an arbitrary distinction between law students employed by practicing attorneys and those associated with law school programs providing legal assistance to prisoners. [Footnote 16] While the Department flatly prohibited interviews of any sort by law students working for attorneys, it freely allowed participants of a number of law school programs to enter the prisons and meet with inmates. These largely unsupervised students were admitted without any security check other than verification of their enrollment in a school program. Of course, the fact that appellants have allowed some persons to conduct attorney-client interviews with prisoners does not mean that they are required to admit others, but the arbitrariness of the distinction between the two categories of law students does reveal the absence of any real justification for the sweeping prohibition of Administrative Rule MV-IV-02. We cannot say that the District Court erred in invalidating this regulation. This result is mandated by our decision in Johnson v. Avery, 393 U. S. 483 (1969). There, the Court struck down a prison regulation prohibiting any inmate from advising or assisting another in the preparation of legal documents. Given the inadequacy of alternative sources of legal assistance, the rule had the effect of denying to illiterate or poorly educated inmates any opportunity to vindicate possibly valid constitutional claims. The Court found that the regulation impermissibly burdened the right of access to the courts despite the not insignificant state interest in preventing the establishment of personal power structures by unscrupulous jailhouse lawyers and the attendant problems of prison discipline that Page 416 U. S. 422 follow. The countervailing state interest in Johnson is, if anything, more persuasive than any interest advanced by appellants in the instant case. The judgment is Affirmed. [Footnote 1] Director's Rule 2401 provided: "The sending and receiving of mail is a privilege, not a right, and any violation of the rules governing mail privileges either by you or by your correspondents may cause suspension of the mail privileges." [Footnote 2] Director's Rule 1201 provided:

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"INMATE BEHAVIOR: Always conduct yourself in an orderly manner. Do not fight or take part in horseplay or physical encounters except as part of the regular athletic program. Do not agitate, unduly complain, magnify grievances, or behave in any way which might lead to violence." It is undisputed that the phrases "unduly complain" and "magnify grievances" were applied to personal correspondence. [Footnote 3] Director's Rule 1205 provided: "The following is contraband:" "* * * *" "d. Any writings or voice recordings expressing inflammatory political, racial, religious or other views or beliefs when not in the immediate possession of the originator, or when the originator's possession is used to subvert prison discipline by display or circulation." Rule 1205 also provides that writings "not defined as contraband under this rule, but which, if circulated among other inmates, would, in the judgment of the warden or superintendent, tend to subvert prison order or discipline, may be placed in the inmate's property, to which he shall have access under supervision." [Footnote 4] At the time of appellees' amended complaint, Rule 2402(8) included prohibitions against "prison gossip or discussion of other inmates." Before the first opinion of the District Court, these provisions were deleted, and the phrase "contain foreign matter" was substituted in their stead. [Footnote 5] In Baggett, the Court considered the constitutionality of loyalty oaths required of certain state employees as a condition of employment. For the purpose of applying the doctrine of abstention, the Court distinguished between two kinds of vagueness attacks. Where the case turns on the applicability of a state statute or regulation to a particular person or a defined course of conduct, resolution of the unsettled question of state law may eliminate any need for constitutional adjudication. 377 U.S. at 377 U. S. 376-377. Abstention is therefore appropriate. Where, however, as in this case, the statute or regulation is challenged as vague because individuals to whom it plainly applies simply cannot understand what is required of them and do not wish to forswear all activity arguably within the scope of the vague terms, abstention is not required. Id.at 377 U. S. 378. In such a case, no single adjudication by a state court could eliminate the constitutional difficulty. Rather it would require "extensive adjudications, under the impact of a variety of factual situations," to bring the challenged statute or regulation "within the bounds of permissible constitutional certainty." Ibid.

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[Footnote 6] Cal.Penal Code 260 provides that "[a] sentence of imprisonment in a state prison for any term suspends all the civil rights of the person so sentenced . . . ," and it allows for partial restoration of those rights by the California Adult Authority. The statute then declares, in pertinent part: "This section shall be construed so as not to deprive such person of the following civil rights, in accordance with the laws of this state:" "* * * *" "(4) To purchase, receive, and read any and all newspapers periodicals, and books accepted for distribution by the United States Post Office. Pursuant to the provisions of this section, prison authorities shall have the authority to exclude obscene publications or writings, and mail containing information concerning where, how, or from whom such matter may be obtained; and any matter of a character tending to incite murder, arson, riot, violent racism, or any other form of violence; and any matter concerning gambling or a lottery. . . ." [Footnote 7] Appellants argue that the correctness of their abstention argument is demonstrated by the District Court's disposition of Count II of appellees' amended complaint. In Count II, appellees challenged the mail regulations on the ground that their application to correspondence between inmates and attorneys contravened the Sixth and Fourteenth Amendments. Appellees later discovered that a case was then pending before the Supreme Court of California in which the application of the prison rules to attorneyclient mail was being attacked under subsection (2) of 2600, which provides: "This section shall be construed so as not to deprive [an inmate] of the following civil rights, in accordance with the laws of this state:" "* * * *" "(2) To correspond, confidentially, with any member of the State Bar, or holder of public office, provided that the prison authorities may open and inspect such mail to search for contraband." The District Court did stay its hand, and the subsequent decision in In re Jordan, 7 Cal.3d 930, 500 P.2d 873 (1972) (holding that 2600(2) barred censorship of attorney-client correspondence), rendered Count II moot. This disposition of the claim relating to attorney-client mail is, however, quite irrelevant to appellants' contention that the District Court should have abstained from deciding whether the mail regulations are constitutional as they apply to personal mail. Subsection (2) of 2600 speaks directly to the issue of censorship of attorney-client mail, but says nothing at all about personal correspondence, and appellants have not informed us of any challenge to the censorship of personal mail presently pending in the state courts. [Footnote 8]

US vs Balsys
See Note, Decency and Fairness: An Emerging Judicial Role in Prison Reform, 7 Va.L.Rev. 841, 842-844 (1971). [Footnote 9] They are also ill-suited to act as the frontline agencies for the consideration and resolution of the infinite variety of prisoner complaints. Moreover, the capacity of our criminal justice system to deal fairly and fully with legitimate claims will be impaired by a burgeoning increase of frivolous prisoner complaints. As one means of alleviating this problem, THE CHIEF JUSTICE has suggested that federal and state authorities explore the possibility of instituting internal administrative procedures for disposition of inmate grievances. 59 A.B.A.J. 1125, 1128 (1973). At the Third Circuit Judicial Conference meeting of October 15, 1973, at which the problem was addressed, suggestions also included (i) abstention where appropriate to avoid needless consideration of federal constitutional issues; and (ii) the use of federal magistrates who could be sent into penal institutions to conduct hearings and make findings of fact. We emphasize that we express no view as to the merit or validity of any particular proposal, but we do think it appropriate to indicate the necessity of prompt and thoughtful consideration by responsible federal and state authorities of this worsening situation. [Footnote 10] Specifically, the District Court held that the regulations authorized restraint of lawful expression in violation of the First and Fourteenth Amendments, that they were fatally vague, and that they failed to provide minimum procedural safeguards against arbitrary or erroneous censorship of protected speech. [Footnote 11] Different considerations may come into play in the case of mass mailings. No such issue is raised on these facts, and we intimate no view as to its proper resolution. [Footnote 12] We need not and do not address in this case the validity of a temporary prohibition of an inmate's personal correspondence as a disciplinary sanction (usually as part of the regimen of solitary confinement) for violation of prison rules. [Footnote 13] Policy Statement 7300.1A of the Federal Bureau of Prisons sets forth the Bureau's position regarding general correspondence by the prisoners entrusted to its custody. It authorizes all federal institutions to adopt open correspondence regulations, and recognizes that any need for restrictions arises primarily from considerations of order and security, rather than rehabilitation: "Constructive, wholesome contact with the community is a valuable therapeutic tool in the overall correctional process. At the same time, basic controls need to be exercised in order to protect the security of the institution, individuals and/or the community at large."

US vs Balsys
The recommended policy guideline adopted by the Association of State Correctional Administrators on August 23, 1972, echoes the view that personal correspondence by prison inmates is a generally wholesome activity: "Correspondence with members of an inmate's family, close friends, associates and organizations is beneficial to the morale of all confined persons and may form the basis for good adjustment in the institution and the community." [Footnote 14] While not necessarily controlling, the policies followed at other well run institutions would be relevant to a determination of the need for a particular type of restriction. For example, Policy Statement 7300.1A of the Federal Bureau of Prisons specifies that personal correspondence of inmates in federal prisons, whether incoming or outgoing, may be rejected for inclusion of the following kinds of material: "(1) Any material which might violate postal regulations, i.e., threats, blackmail, contraband or which indicate plots of escape." "(2) Discussions of criminal activities." "(3) No inmate may be permitted to direct his business while he is in confinement. This does not go to the point of prohibiting correspondence necessary to enable the inmate to protect the property and funds that were legitimately his at the time he was committed to the institution. Thus, an inmate could correspond about refinancing a mortgage on his home or sign insurance papers, but he could not operate a mortgage or insurance business while in the institution." "(4) Letters containing codes or other obvious attempts to circumvent these regulations will be subject to rejection." "(5) Insofar as possible, all letters should be written in English, but every effort should be made to accommodate those inmates who are unable to write in English or whose correspondents would be unable to understand a letter written in English. The criminal sophistication of the inmate, the relationship of the inmate and the correspondent are factors to be considered in deciding whether correspondence in a foreign language should be permitted." [Footnote 15] After the District Court held the original regulations unconstitutional, revised regulations were developed by appellants and approved by the court. Supp. to App. 194-200, 211. Although these regulations are not before us for review, they are indicative of one solution to the problem. The following provisions govern censorship of prisoner correspondence: "CORRESPONDENCE" "A. Criteria for Disapproval of Inmate Mail"

US vs Balsys
"1. Outgoing Letters" "Outgoing letters from inmates of institutions not requiring approval of inmate correspondents may be disapproved for mailing only if the content falls as a whole or in significant part into any of the following categories:" "a. The letter contains threats of physical harm against any person or threats of criminal activity." "b. The letter threatens blackmail . . . or extortion." "c. The letter concerns sending contraband in or out of the institutions." "d. The letter concerns plans to escape." "e. The letter concerns plans for activities in violation of institutional rules." "f. The letter concerns plans for criminal activity." "g. The letter is in code and its contents are not understood by reader." "h. The letter solicits gifts of goods or money from other than family." "i. The letter is obscene." "j. The letter contains information which, if communicated, would create a clear and present danger of violence and physical harm to a human being. Outgoing letters from inmates of institutions requiring approval of correspondents may be disapproved only for the foregoing reasons, or if the addressee is not an approved correspondent of the inmate and special permission for the letter has not been obtained." "2. Incoming Letters" "Incoming letters to inmates may be disapproved for receipt only for the foregoing reasons, or if the letter contains material which would cause severe psychiatric or emotional disturbance to the inmate, or in an institution requiring approval of inmate correspondents, is from a person who is not an approved correspondent and special permission for the letter has not been obtained." "3. Limitations" "Disapproval of a letter on the basis that it would cause severe psychiatric or emotional disturbance to the inmate may be done only by a member of the institution's psychiatric staff after consultation with the inmate's caseworker. The staff member may disapprove the letter only upon a finding that receipt of the letter would be likely to affect prison discipline or security or the inmate's rehabilitation, and that there is no reasonable alternative means of ameliorating the disturbance of the inmate. Outgoing or incoming letters may not be rejected solely upon the ground that they contain criticism of the institution or its personnel." "4. Notice of Disapproval of Inmate Mail"

US vs Balsys
"a. When an inmate is prohibited from sending a letter, the letter and a written and signed notice stating one of the authorized reasons for disapproval and indicating the portion or portions of the letter causing disapproval will be given the inmate." "b. When an inmate is prohibited from receiving a letter, the letter and a written and signed notice stating one of the authorized reasons for disapproval and indicating the portion or portions of the letter causing disapproval will be given the sender. The inmate will be given notice in writing that a letter has been rejected, indicating one of the authorized reasons and the sender's name." "c. Material from correspondence which violates the provisions of paragraph one may be placed in an inmate's file. Other material from correspondence may not be placed in an inmate's file unless it has been lawfully observed by an employee of the department and is relevant to assessment of the inmate's rehabilitation. However, such material which is not in violation of the provisions of paragraph one may not be the subject of disciplinary proceedings against an inmate. An inmate shall be notified in writing of the placing of any material from correspondence in his file." "d. Administrative review of inmate grievances regarding the application of this rule may be had in accordance with paragraph DP-1003 of these rules." [Footnote 16] Apparently, the Department's policy regarding law school programs providing legal assistance to inmates, though well established, is not embodied in any regulation. MR. JUSTICE MARSHALL, with whom MR. JUSTICE BRENNAN joins, concurring.

I
I concur in the opinion and judgment of the Court. I write separately only to emphasize my view that prison authorities do not have a general right to open and read all incoming and outgoing prisoner mail. Although the issue of the First Amendment rights of inmates is explicitly reserved by the Court, I would reach that issue and hold that prison authorities may not read inmate mail as a matter of course.

II
As Mr. Justice Holmes observed over a half century ago, "the use of the mails is almost as much a part of free speech as the right to use our tongues. . . ." Milwaukee Social Democratic Publishing Co. v. Burleson, 255 U. S. 407, 255 U. S. 437 (1921) (dissenting opinion), quoted with approval in Blount v. Rizzi, 400 U. S. 410, 400 U. S. 416 (1971). See also Lamont v. Postmaster General, 381 U. S. 301, 381 U. S. 305(1965). A prisoner does not shed such basic First Amendment rights at the prison gate. [Footnote 2/1] Rather, he "retains all the rights of an ordinary citizen except those expressly, or by necessary implication, taken from Page 416 U. S. 423

US vs Balsys
him by law." Coffin v. Reichard, 143 F.2d 443, 445 (CA6 1944). [Footnote 2/2] Accordingly, prisoners are, in my view, entitled to use the mails as a medium of free expression not as a privilege, but rather as a constitutionally guaranteed right. [Footnote 2/3] It seems clear that this freedom may be seriously infringed by permitting correctional authorities to read all prisoner correspondence. A prisoner's free and open expression will surely be restrained by the knowledge that his every word may be read by his jailors, and that his message could well find its way into a disciplinary file, be the object of ridicule, or even lead to reprisals. A similar pall may be cast over the free expression of the inmates' correspondents. Cf. Talley v. California, 362 U. S. 60, 362 U. S. 65(1960); NAACP v. Alabama, 357 U. S. 449, 357 U. S. 462 (1958). Such an intrusion on First Amendment freedoms can only be justified by a substantial government interest and a showing that the means chosen to effectuate the State's purpose are not unnecessarily restrictive of personal freedoms. "[E]ven though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more Page 416 U. S. 424 narrowly achieved." Shelton v. Tucker, 364 U. S. 479, 364 U. S. 488 (1960). [Footnote 2/4] The First Amendment must in each context "be applied in light of the special characteristics of the . . . environment,'" Healy v. James, 408 U. S. 169, 408 U. S. 180(1972), and the exigencies of governing persons in prisons are different from and greater than those in governing persons without. Barnett v. Rodgers, 133 U.S.App.D.C. 296, 301-302, 410 F.2d 995, 1000-1001 (1969); Rowland v. Sigler, 327 F.Supp. 821, 827 (Neb.), aff'd, 452 F.2d 1005 (CA8 1971). The State has legitimate and substantial concerns as to security, personal safety, institutional discipline, and prisoner rehabilitation not applicable to the community at large. But these considerations do not eliminate the need for reasons imperatively justifying the particular deprivation of fundamental constitutional rights at issue. Cf. Healy v. James, supra, at 408 U. S. 180;Tinker v. Des Moines School District, 393 U. S. 503, 393 U. S. 506 (1969). The State asserts a number of justifications for a general right to read all prisoner correspondence. The State argues that contraband weapons or narcotics may be smuggled into the prison via the mail, and certainly this is a legitimate concern of prison authorities. But this argument provides no justification for reading outgoing mail. Even as to incoming mail, there is no showing that stemming the traffic in contraband could not be accomplished equally well by means of physical tests Page 416 U. S. 425 such as fluoroscoping letters. [Footnote 2/5] If physical tests were inadequate, merely opening and inspecting -- and not reading -- incoming mail would clearly suffice. [Footnote 2/6]

US vs Balsys
It is also suggested that prison authorities must read all prison mail in order to detect escape plans. The State surely could not justify reading everyone's mail and listening to all phone conversations on the off chance that criminal schemes were being concocted. Similarly, the reading of all prisoner mail is too great an intrusion on First Amendment rights to be justified by such a speculative concern. There has been no showing as to the seriousness of the problem of escapes planned or arranged via the mail. Indeed, the State's claim of concern over this problem is undermined by the general practice of permitting unmonitored personal interviews during which any number of surreptitious plans might be discussed undetected. [Footnote 2/7] When prison authorities have reason to believe that an escape plot is being hatched by a particular inmate through his correspondence, they may well have an adequate basis to seize that inmate's letters; but there is no such justification for a blanket policy of reading all prison mail. It is also occasionally asserted that reading prisoner mail is a useful tool in the rehabilitative process. The therapeutic model of corrections has come under increasing criticism, and, in most penal institutions, rehabilitative programs are more ideal than reality. [Footnote 2/8] Assuming the validity of the rehabilitative model, however, the State does not demonstrate that the reading of inmate Page 416 U. S. 426 mail, with its attendant chilling effect on free expression, serves any valid rehabilitative purpose. Prison walls serve not merely to restrain offenders, but also to isolate them. The mails provide one of the few ties inmates retain to their communities or families -- ties essential to the success of their later return to the outside world. [Footnote 2/9] Judge Kaufman, writing for the Second Circuit, found two observations particularly apropos of similar claims of rehabilitative benefit in Sostre v. McGinnis, 442 F.2d 178, 199 (1971) (en banc): "'Letter writing keeps the inmate in contact with the outside world, helps to hold in check some of the morbidity and hopelessness produced by prison life and isolation, stimulates his more natural and human impulses, and otherwise may make contributions to better mental attitudes and reformation.' [Footnote 2/10]" and: "'The harm censorship does to rehabilitation . . . cannot be gainsaid. Inmates lose contact with the outside world and become wary of placing intimate thoughts or criticisms of the prison in letters. This artificial increase of alienation from society is ill-advised.' [Footnote 2/11]" The Court today agrees that "the weight of professional opinion seems to be that inmate freedom to correspond with outsiders advances, rather than retards, the goal of rehabilitation." Ante at 416 U. S. 412. [Footnote 2/12]

US vs Balsys
Page 416 U. S. 427 Balanced against the State's asserted interests are the values that are generally associated with freedom of speech in a free society -- values which "do not turn to dross in an unfree one." Sostre v. McGnnis, supra, at 199. First Amendment guarantees protect the free and uninterrupted interchange of ideas upon which a democratic society thrives. Perhaps the most obvious victim of the indirect censorship effected by a policy of allowing prison authorities to read inmate mail is criticism of prison administration. The threat of identification and reprisal inherent in allowing correctional authorities to read prisoner mail is not lost on inmates who might otherwise criticize their jailors. The mails are one of the few vehicles prisoners have for informing the community about their existence and, in these days of strife in our correctional institutions, the plight of prisoners is a matter of urgent public concern. To sustain a policy which chills the communication necessary to inform the public on this issue is at odds with the most basic tenets of the guarantee of freedom of speech. [Footnote 2/13] The First Amendment serves not only the needs of the polity, but also those of the human spirit -- a spirit that demands self-expression. Such expression is an integral part of the development of ideas and a sense of identity. To suppress expression is to reject the basic human desire for recognition and affront the individual's worth and dignity. [Footnote 2/14] Cf. 394 U. S. Georgia, 394 U.S. Page 416 U. S. 428 557 (1969). Such restraint may be "the greatest displeasure and indignity to a free and knowing spirit that can be put upon him." J. Milton, Aeropagitica 21 (Everyman's ed.1927). When the prison gates slam behind an inmate, he does not lose his human quality; his mind does not become closed to ideas; his intellect does not cease to feed on a free and open interchange of opinions; his yearning for selfrespect does not end; nor is his quest for self-realization concluded. If anything, the needs for identity and self-respect are more compelling in the dehumanizing prison environment. Whether an O. Henry writing his short stories in a jail cell or a frightened young inmate writing his family, a prisoner needs a medium for self-expression. It is the role of the First Amendment and this Court to protect those precious personal rights by which we satisfy such basic yearnings of the human spirit. MR. JUSTICE DOUGLAS joins in Part II of this opinion. [Footnote 2/1] See, e.g., Cruz v. Beto, 405 U. S. 319 (1972); Cooper v. Pate, 378 U. S. 546 (1964);Brown v. Peyton, 437 F.2d 1228, 1230 (CA4 1971); Rowland v. Sigler, 327 F.Supp. 821, 827 (Neb.), aff'd, 452 F.2d 1005 (CA8 1971); Fortune Society v. McGinnis, 319 F.Supp. 901, 903 (SDNY 1970). [Footnote 2/2] Accord, Moore v. Ciccone, 459 F.2d 574, 576 (CA8 1972); Nolan v. Fitzpatrick, 451 F.2d 545, 547 (CA1 1971); Brenneman v. Madigan, 343 F.Supp. 128, 131 (ND Cal.1972); Burnham v. Oswald, 342 F.Supp. 880, 884 (WDNY 1972); Carothers v. Follette, 314 F.Supp. 1014, 1023 (SDNY 1970).

US vs Balsys
[Footnote 2/3] See, e.g., Sostre v. McGinnis, 442 F.2d 178, 199 (CA2 1971) (en banc); Preston v. Thieszen, 341 F.Supp. 785, 786-787 (WD Wis.1972); cf. Gray v. Creamer, 465 F.2d 179, 186 (CA3 1972); Morales v. Schmidt, 340 F.Supp. 544 (WD Wis.1972);Palmigiano v. Travisono, 317 F.Supp. 776 (RI 1970); Carothers v. Follette, supra. [Footnote 2/4] The test I would apply is thus essentially the same as the test applied by the Court: "[T]he regulation . . . in question must further an important or substantial governmental interest unrelated to the suppression of expression . . . , [and] the limitation of First Amendment freedoms must be no greater than is necessary or essential to the protection of the particular governmental interest involved." Ante at 416 U. S. 413. [Footnote 2/5] See Marsh v. Moore, 325 F.Supp. 392, 395 (Mass.1971). [Footnote 2/6] See Moore v. Ciccone, supra, at 578 (Lay, J., concurring); cf. Jones v. Wittenberg, 330 F.Supp. 707, 719 (ND Ohio 1971), aff'd sub nom. Jones v. Metzger, 456 F.2d 854 (CA6 1972). [Footnote 2/7] Palmigiano v. Travisono, supra. [Footnote 2/8] See generally J. Mitford, Kind and Usual Punishment: The Prison Business (1973). [Footnote 2/9] See, e.g., National Advisory Commission on Criminal Justice Standards and Goals, Corrections 67-68 (1973). [Footnote 2/10] See Palmigiano v. Travisono, supra, at 791. [Footnote 2/11] Singer, Censorship of Prisoners' Mail and the Constitution, 56 A.B.A.J. 1051, 1054 (1970). [Footnote 2/12]

US vs Balsys
Various studies have strongly recommended that correctional authorities have the right to inspect mail for contraband but not to read it. National Advisory Commission on Criminal Justice Standards and Goals, Corrections, Standard 2.17, pp. 66-69 (1973);see California Board of Corrections, California Correctional System Study: Institutions 40 (1971); Center for Criminal Justice, Boston University Law School, Model Rules and Regulations on Prisoners' Rights and Responsibilities, Standards IC-1 and IC-2, pp. 46-47 (1973). [Footnote 2/13] See, e.g., Nolan v. Fitzpatrick, 451 F.2d at 547-548. [Footnote 2/14] Emerson, Toward a General Theory of the First Amendment, 72 Yale L.J. 877, 879-880 (1963). MR. JUSTICE DOUGLAS concurring in the judgment. I have joined Part II of MR. JUSTICE MARSHALL's opinion because I think it makes abundantly clear that foremost among the Bill of Rights of prisoners in this country, whether under state or federal detention, is the First Amendment. Prisoners are still "persons" entitled to all constitutional rights unless their liberty has been constitutionally curtailed by procedures that satisfy all of the requirements of due process. While Mr. Chief Justice Hughes, in Stromberg v. California, 283 U. S. 359, stated that the First Amendment was applicable to the States by reason of the Due Process Clause of the Fourteenth, it has become customary to Page 416 U. S. 429 rest on the broader foundation of the entire Fourteenth Amendment. Free speech and press within the meaning of the First Amendment are, in my judgment, among the preeminent privileges and immunities of all citizens.

People vs. Pineda

Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. 44205 February 16, 1993 PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. GREGORIO G. PINEDA, Branch XXI, Court of First Instance of Rizal, and CONSOLACION NAVAL,respondents. The Solicitor General for petitioner. Salonga. Ordoez, Yap & Associates for private respondent.

MELO, J.: When Consolacion Naval, the herein private respondent, was separately accused of having committed the crime of estafa in Criminal Case No. 15795 before Branch 19, and of falsification in Criminal Case No. 15796 before Branch 21, both of the then Court of First Instance of Rizal of the Seventh Judicial District stationed at Pasig, Rizal, she sought the quashal of the latter charge on the supposition that she is in danger of being convicted for the same felony (p. 16, Record). Her first attempt in this respect did not spell success (p. 34, Record) but the Honorable Gregorio G. Pineda, Presiding Judge of Branch 21 was persuaded to the contrary thereafter on the belief that the alleged falsification was a necessary means of committing estafa (p. 149, Record). It is this perception, along with the denial of the motion for re-evaluation therefrom (p. 66, Record) which the People impugns via the special civil action for certiorari now before Us. The indictment for estafa against Consolacion Naval and her co-accused Anacleto Santos, reads: That on or about March 23, 1973 and soon thereafter, in the municipality of Pasig, province of Rizal, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together and mutually helping and aiding one another, by means of deceit and with intent to defraud, knowing that their parcel of land among others, situated in Malaking Bundok, Barrio Dolores, Taytay, Rizal, and more particularly described as follows, to wit: OJA No. 5851 Isang lagay na lupa (bulubundukin) na nasa lugar ng Malaking Bundok, Bo. Dolores, Taytay, Rizal, na may lawak na 14,615.5 metrong parisukat na may tasang P580.00 at may hanggahang gaya ng sumusunod: Hilagaan-Hermogenes Naval (now part of Rev. Tax Dec. 9284; Silanganan-Nicolas del Rosario (now Jaime del Rosario); TimuganEduvigis, Consolacion, Apolinaria, Naval; Kanluran-Creek (sapang bato) was already sold and encumbered to one Edilberto V. Ilano as can be gleaned from a document entitled "Kasulatan ng Bilihan Ng Lupa Na May Pasubali O Condicion" sometime on August 12, 1969; and the latter having paid the partial amount of P130,850.00 to the herein accused and without informing said Edilberto V. Ilano, the herein accused Consolacion Naval executed and filed an Application for Registration over the same parcel of land among others, which document is designated as LRC Case

People vs. Pineda No. N-7485, "Consolacion, Eduvigis and Apolinaria, all surnamed Naval" of the Court of First Instance of Rizal, Pasig, Rizal, as a result of which the Presiding Judge of Branch XIII to which said case was assigned issued Original Certificate of Title No. 9332 in her name, which area was reduced to 10,075 sq. meters as appearing in item No. 2 in said OCT and subsequently referred to in TCT No. 370870 in favor of said accused Naval through Rodolfo Mendoza, sold more than one-half (1/2) of said parcel of land in her name in favor of Maria, Anacleto, Carmelo, Mariano, Cecilia and Teodorica, all surnamed Santos and Iluminada Tambalo, Pacita Alvarez and Pedro Valesteros which sales were registered and annotated with the Register of Deeds of Rizal at Pasig, Rizal; and likewise a portion of which was partitioned to herein accused Anacleto Santos; that despite repeated demands the accused refused and still refuse to return said amount and/or fulfill their obligations under said "Kasulatan Ng Bilihan Ng Lupa Na May Pasubali O Condicion", to the damage and prejudice of said Edilberto V. Ilano in the aforementioned amount of P130,850.00. (pp. 44-45, Rollo)
while the charge for falsification narrates: That on or about the 17th day August, 1971, in the municipality of Pasig, province of Rizal, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, being then private individual did then and there wilfully, unlawfully and feloniously falsify a public document by making untruthful statements in a narration of facts, committed as follows: the said accused on August 17, 1971, executed a document entitled "Application For Registration" for parcels of land located at Taytay, Rizal, to the effect that "She is the exclusive owner in fee simple of a parcel of land situated in Malaking Bundok, Barrio Dolores, Taytay, Rizal with Psu-248206 and that she "does not know any mortgage or encumbrance of any kind whatsoever affecting said land or that any person has estate or interest therein, legal or equitable, in possession remainder, reversion or expectancy", as a result of which the Court in its Decision of March 22, 1972 declared the herein accused the true and absolute owner of said parcel of land free from all liens and encumbrances of any nature, when in truth and in fact the herein accused has already sold and encumbered to one Edilberto V. Ilano said parcel of land referred to above as can be gleaned from a document entitled "Kasulatan Ng Bilihan Ng Lupa Na May Pasubali O Condicion" dated August 12, 1969 and said Edilberto V. Ilano has already paid partial amount of P130,850.00 to the herein accused. Contrary to law. (p. 2, Rollo) The confluence of the foregoing assertions disclose that Consolacion Naval sold the subject realty on August 12, 1969 to Edilberto Ilano who made a partial payment of P130,850.00. About two years later, or on August 17, 1971, an application for registration under the Land Registration Act was submitted by Consolacion wherein she stated that she owned the same lot and that it was unencumbered. For those reasons, the corresponding title was issued in her name but she allegedly disposed of the half portion of the property to nine other persons. These antecedents spawned the simultaneous institution of the charges on September 17, 1975. On October 28, 1975, private respondent Consolacion Naval moved to quash the information for falsification, premised, among other things, on the apprehension that she is in danger of being condemned for an identical offense. The following day, Naval pleaded not guilty to the charge levelled against her for falsification (p. 22, Record) and on December 22, 1975, the court a quo denied her motion to quash (p. 34, Record). As earlier intimated, the magistrate below thereafter reconsidered his order of denial which gave rise to the corresponding unsuccessful bid by the People for reinstatement of the information for falsification. Hence the instant petition, which practically reiterates the same disqualification put forward in the proceedings below (p. 7, Petition; p. 47, Rollo). The issue of whether the court below correctly quashed the information for falsification must be answered in the negative for the following reasons:

People vs. Pineda 1. Assuming in gratia argumenti that falsification was indeed necessary to commit estafa, which ordinarily constitutes a complex crime under Article 48 of the Revised Penal Code and thus susceptible to challenge via a motion to quash under Section 2 (e), Rule 117 vis-a-vis Section 12, Rule 110 (Moran, Rules of Court, Vol. 4, 1980 Ed., p. 42; 230), still, it was serious error on the part of the magistrate below to have appreciated this discourse in favor of private respondent since this matter was not specifically raised in the motion to quash filed on October 28, 1975 (p. 16, Record). It was only in the motion for reconsideration where private respondent pleaded this additional ground after her motion to quash was denied (p. 39, Record). The legal proscription against entertaining another saving clause to abate the charge for falsification is very explicit under Section 3, Rule 117 of the Revised Rules of Court:
Sec. 3. Motion to quash Form and contents Failure to state objection Entry of record Failure to record. The motion to quash shall be in writing signed by the defendant or his attorney. It shall specify distinctly the ground of objection relied on and the court shall hear no objection other than that stated in the motion. It shall be entered of record but a failure to so enter it shall not affect the validity of any proceeding in the case. It must be observed that the denial of the motion to quash was re-examined not in the light of "res judicata dressed in prison grey" but on the aspect of whether falsification was supposedly perpetrated to commit estafa. The course of action pursued by the trial court in this context may not even be justified under Section 10 of Rule 117 which says that: Sec. 10. Failure to move to quash Effect of Exceptions. If the defendant does not move to quash the complaint or information before he pleads thereto he shall be taken to have waived all objections which are grounds for a motion to quash except when the complaint or information does not charge an offense, or the court is without jurisdiction of the same. If, however, the defendant learns after he has pleaded or has moved to guash on some other ground that the offense for which he is now charged is an offense for which he has been pardoned, or of which he has been convicted or acquitted or been in jeopardy, the court may in its discretion entertain at any time before judgment a motion to quash on the ground of such pardon, conviction, acquittal or jeopardy. for the simple reason that the theory of a single crime advanced by private respondent in her belated, nay, "second" motion to quash couched as motion for reconsideration is not synonymous with "pardon, conviction, acquittal or jeopardy". In effect, therefore, respondent judge accommodated another basis for the quashal of the information albeit the same was not so stated in the motion therefor. This should not have been tolerated because it is anathema to the foregoing proviso (Moran, supra, at p. 283, citing Suy Sui vs. People, 49 O.G. 967). Thiscaveat is now amplified in Section 8 of Rule 117 as amended, thus: Sec. 8. Failure to move to quash or to allege any ground therefor. The failure of the accused to assert any ground of a motion to quash before he pleads to the complaint or information, either because he did not file a motion to quash or failed to allege the same in said motion shall be deemed a waiver of the grounds of a motion to quash, except the grounds of no offense charged, lack of jurisdiction over the offense charged, extinction of the offense or penalty and jeopardy, as provided for in paragraphs (a), (b), (f) and (h) of Section 3 of this Rule. At any rate, it is virtually unacceptable to suppose that private respondent concocted the sinister scheme of falsification in 1971 precisely to facilitate the commission of estafa in 1973 such that both crimes emanated from a single criminal impulse. Otherwise, an unfounded verisimilitude of this nature will run afoul with what this Court already observed in People vs. Penas (68 Phil. 533 [1939]; 1 Aquino, Revised Penal Code, 1976 Ed., p. 574) to the effect that the eleven estafas through falsification which the same accused therein committed between November 24, 1936 and January 3, 1937 including the falsification which he committed on January 8, 1937 were considered distinct offenses, not one complex crime, because they were committed on different dates, not to mention the discrepancy in places where they were accomplished. In the same breath, it necessarily follows that the suspended hiatus, between 1971 and 1973 in the case at bar will not afford the occasion to buttress the unwarranted submission that the first is an integral part of or intimately interwoven with the second felony. A simple perusal of the two informations will disclose, and this cannot be gainsaid, that the recitals thereof radically differ with each other. The indictment for falsification allegedly perpetrated in 1971 was levelled against private respondent because of the pretense in the application for registration of her exclusive dominion over a

People vs. Pineda parcel of land notwithstanding the previous sale of the same lot in 1969 to Edilberto V. Ilano. By contrast, the inculpatory aspersions against private respondent in 1973 for estafa have their roots in the overt act of disposing the same piece of lot in favor of other persons subsequent to the conveyance in favor of Edilberto V. Ilano in 1969. Indeed, the intent to prevaricate on a piece of document for the purpose of securing a favorable action for registration within the context of Article 171 (4) in conjunction with Article 172 of the Revised Penal Code is definitely distinct from the perceived double sale contemplated by the first paragraph under Article 316 of the same code.
2. It was similarly fallacious for the lower court to have shared the notion that private respondent is in danger of being convicted twice for the same criminal act, a circumstance recognized under Section 2(h) Rule 117 of the Old Rules as suggested in the motion to quash, because this plea is understood to presuppose that the other case against private respondent has been dismissed or otherwise terminated without her express consent, by a court of competent jurisdiction, upon a valid complaint or information, and after the defendant had pleaded to the charge (People of the Philippines versus Hon. Maximiano C. Asuncion, et al., G.R. Nos. 83837-42, April 22, 1992; Section 7, Rule 117, 1985 Rules on Criminal Procedure, as amended). In the Asuncion case, Justice Nocon said that: . . . according to a long line of cases, in order that a defendant may successfully allege former jeopardy, it is necessary that he had previously been (1) convicted or (2) acquitted, or (3) in jeopardy of being convicted of the offense charged, that is, that the former case against him for the same offense has been dismissed or otherwise terminated without his express consent, by a court of competent jurisdiction, upon a valid complaint or information, and after the defendant had pleaded to the charge. Withal, the mere filing of two informations charging the same offense is not an appropriate basis for the invocation of double jeopardy since the first jeopardy has not yet set in by a previous conviction, acquittal or termination of the case without the consent of the accused (People vs. Miraflores, 115 SCRA 586 [1982]; Nierras vs. Dacuycuy,181 SCRA 8 [1990]). In People vs. Miraflores (supra), the accused therein, after he had pleaded to the charge of multiple frustrated murder in Criminal Case No. 88173 and subsequent to his arraignment on a separate charge of Murder in Criminal Case No. 88174, invoked the plea of double jeopardy but Justice Barredo who spoke for the Court was far from convinced: But the more untenable aspect of the position of appellant is that when he invoked the defense of double jeopardy, what could have been the first jeopardy had not yet been completed or even began. It is settled jurisprudence in this Court that the mere filing of two informations or complaints charging the same offense does not yet afford the accused in those cases the occasion to complain that he is being placed in jeopardy twice for the same offense, for the simple reason that the primary basis of the defense of double jeopardy is that the accused has already been convicted or acquitted in the first case or that the same has been terminated without his consent. (Bulaong vs. People, L-19344, July 27, 1966, 17 SCRA 746; Silvestre vs. Military Commission No. 21, No. L-46366, March 8, 1978, Buscayno vs. Military Commissions Nos. 1, 2, 6 and 25, No. L-58284, Nov. 19, 1981, 109 SCRA 273). Moreover, it appears that private respondent herein had not yet been arraigned in the previous case for estafa. Thus, there is that other missing link, so to speak, in the case at bar which was precisely the same reason utilized by Justice Davide, Jr. in Lamera vs. Court of Appeals (198 SCRA 186 [1991]) when he brushed aside the claim of double jeopardy of the accused therein who was arraigned in the previous case only after the judgment of conviction was promulgated in the other case. The ponente cited a plethora of cases in support of the proposition that arraignment of the accused in the previous case is a condition sine qua non for double jeopardy to attach (at page 13: People vs. Ylagan, 58 Phil. 851; People vs. Consulta, 70 SCRA 277; Andres v. Cacdac, 113 SCRA 216; People vs. Bocar, et al., 132 SCRA 166; Gaspar vs. Sandiganbayan, 144 SCRA 415) and echoed the requisites of legal jeopardy as announced in People vs. Bocar thus: Legal jeopardy attaches only (a) upon a valid indictment, (b) before a competent court, (c) after arraignment, (d) a valid plea having been entered, and (e) the case was dismissed or otherwise terminated without the express consent of the accused. (at p. 193.) To be sure, Chief Justice Moran said in his treatise on the subject under consideration that:

People vs. Pineda Where there is no former conviction, acquittal, dismissal or termination of a former case for the same offense, no jeopardy attaches. (Comments on the Rules of Court, by Moran, Vol. 4, 1980 Ed., p. 281)
Of course, We are not unmindful of the erudite remarks of Mr. Justice Florenz D. Regalado, in his Remedial Law Compendium that: It would now appear that prior conviction or acquittal in the first case, as long as the accused had entered his plea therein is no longer required in order that the accused may move to quash a second prosecution for the same offense on the ground of double jeopardy. (Volume 2, 1988 Edition, page 323; 339) xxx xxx xxx Jeopardy attaches from the entry of his plea at the arraignment (People vs. City Court of Manila, et al., L-3642, April 27, 1983). (Vide page 327). The sentiments expressed in this regard by Our distinguished colleague which rest on the ruling of this Court inPeople vs. City Court of Manila, Branch XI (121 SCRA 637 [1983], cited by Regalado, Vide, at p. 339 to the effect that jeopardy would already attach when the accused enters his plea due to the obiter dictum of the ponente in that case, based on the following factual backdrop: The question presented in this case is whether a person who has been prosecuted for serious physical injuries thru reckless imprudence and convicted thereof may be prosecuted subsequently for homicide thru reckless imprudence if the offended party dies as a result of the same injuries he had suffered. xxx xxx xxx In the case at bar, the incident occurred on October 17, 1971. The following day, October 18, an information for serious physical injuries thru reckless imprudence was filed against private respondent driver of the truck. On the same day, the victim Diolito de la Cruz died. On October 20, 1972, private respondent was arraigned on the charge of serious physical injuries thru reckless imprudence. He pleaded guilty, was sentenced to one (1) month and one (1) day ofarresto mayor, and commenced serving sentence. On October 24, 1972, an information for homicide thru reckless imprudence was filed against private respondent. On November 17, 1972, the City Court of Manila, upon motion of private respondent, issued an order dismissing the homicide thru reckless imprudence case on the ground of double jeopardy. where it was opined, thus: Well-settled is the rule that one who has been charged [implying that there is no need to show previous conviction, acquittal, or dismissal of a similar or identical charge] with an offense cannot be charged again with the same or identical offense though the latter be lesser or greater than the former. (Emphasis supplied.) From the conclusion thus reached, it would appear that one simply "charged" may claim possible jeopardy in another case. However, a closer study of the case adverted to reveals that the ponente may have overlooked the fact that the accused therein was not only charged, but he actually admitted his guilt to the charge of serious physical injuries through reckless imprudence and more importantly, he was convicted of such crime and commenced serving sentence. Verily, there was no occasion in said case to speak of jeopardy being properly invoked by a person simply charged with an offense if he is again charged for the same or identical offense. It may be observed that in City Court of Manila the accused therein pleaded on the first offense of which he was charged and subsequently convicted, unlike in the

People vs. Pineda scenario at bar where private respondent entered her plea to the second offense. But the variance on this point is of no substantial worth because private respondent's plea to the second offense is, as aforesaid, legally incomplete to sustain her assertion of jeopardy for probable conviction of the same felony, absent as there is the previous conviction, acquittal, or termination without her express consent of the previous case for estafa, and it being plain and obvious that the charges did not arise from the same acts. In short, in order for the first jeopardy to attach, the plea of the accused to the charge must be coupled with either conviction, acquittal, or termination of the previous case without his express consent thereafter. (Tolentino vs. De la Costa, 66 Phil. 97 [1938]). Justice Oscar Herrera, in his book "Remedial Law" enumerates the elements constitutive of first jeopardy, to wit:
1. Court of competent jurisdiction; 2. Valid complaint or information; 3. Arraignment and a 4. Valid plea (People vs. Ylagan, 58 Phil. 851; 853) 5. The defendant was acquitted or convicted or the case was dismissed or otherwise terminated without the express consent of the accused (People vs. Declaro, G.R. No. 64362, February 9, 1989, 170 SCRA 142; See also People vs. Santiago, 174 SCRA 143; People vs. Gines, G.R. No. 83463, May 27, 1991, 197 SCRA 481; Que vs. Cosico, 177 SCRA 410 [1989]; Caes vs. Intermediate Appellate Court, 179 SCRA 54; Lamera vs. Court of Appeals, 198 SCRA 186 [1991]). (Herrera,Remedial Law, 1992 Ed., Volume 4, p. 417). Citing cases, both old and of recent vintage, Justice Herrera continues to submit the idea that: The first jeopardy is said to have validly terminated upon conviction, acquittal or dismissal of the case or otherwise terminated without the express consent of defendant (People vs. Garcia, 30 SCRA 150; People vs. Ledesma, 73 SCRA 77; People vs. Pilpa, 79 SCRA 81; Buscayno vs. Military Commission, 109 SCRA 273; People vs. Cuevo, 104 SCRA 319; Galman, et al. vs. Sandiganbayan, G.R. No. 72670, September 12, 1987.) (Vide, at page 423). In People vs. Ledesma (73 SCRA 77 [1976]), Justice Martin declared in no uncertain terms: . . . In the case before Us, accused-appellee was charged with estafa in Criminal Case No. 439 before a competent court under a valid information and was duly convicted as charged. He was therefore placed in legal jeopardy for the crime of estafa in Criminal Case No. 439 for having failed to turn over the proceeds of the sale of an Avegon radio in the amount of P230.00 to the offended party. . . . (at p. 81) The same observation was made by then Justice, later Chief Justice Aquino in People vs. Pilpa (79 SCRA 81 [1977]): In synthesis, there is former jeopardy when in the first case there was a valid complaint or information filed in a court of competent jurisdiction, and after the defendant had pleaded to the charge, he was acquitted or convicted or the case against him was terminated without his express consent (People vs. Consulta, L-41251, March 31, 1976, 70 SCRA 277; People vs. Ylagan, 58 Phil. 851, 853). (86) At any rate, and inasmuch as this Court has spoken quite recently in People vs. Asuncion, (G.R. Nos. 83837-42, April 22, 1992), the ambiguity stirred by the imprecise observation in People vs. City Court of Manila, a 1983 case, can now be considered modified in that a prior conviction, or acquittal, or termination of the case without the express acquiescence of the accused is still required before the first jeopardy can be pleaded to abate a second prosecution. While We are at a loss as to the status of the progress of the estafa case on account of private respondent's apathy towards Our order for the parties herein to "MOVE IN THE PREMISES" (p. 125, Rollo) which information could substantially affect the results of this case, from all indications it appears that the estafa case has not yet been terminated.

People vs. Pineda WHEREFORE, the petition is GRANTED and the Orders of respondent judge dated January 23, 1976 quashing the information for falsification, and March 23, 1976 denying the People's motion for reconsideration therefrom are hereby REVERSED and SET ASIDE. Let the information for falsification be reinstated and this case be remanded to the lower court for further proceedings and trial. No special pronouncement is made as to costs.
SO ORDERED. Cruz, Padilla, Bidin, Grio-Aquino, Davide, Jr., Romero, Nocon, Bellosillo and Campos, Jr., JJ., concur. Quiason, J., took no part. Gutierrez, Jr., J., on leave.

Separate Opinions

REGALADO, J., concurring and dissenting: I concur in the result reached in the eloquently articulated and well researched ponencia of Mr. Justice Melo in that the assailed order of respondent judge quashing the information for falsification should be reversed and the case be remanded to the lower court for appropriate proceedings. I regret, however, that some of the reasons advanced for that conclusion do not square with my own views as I shall shortly explain. 1. First, on the concessible areas of concurrence. The majority holds that private respondent Consolacion Naval failed to seasonably raise the issue, and respondent judge correspondingly erred in declaring, that she was supposedly being prosecuted for falsification perpetrated to commit estafa. The specific contention of the accused that she was charged with the complex crime of estafa through falsification, in connection with her submission on double jeopardy, was allegedly not raised in a motion to quash but only subsequently in a motion for reconsideration of the denial of the preceding motion, hence under the omnibus motion rule expressed in Section 3, Rule 117 of the 1964 Rules of Court that ground was waived and could not be made the basis for the quashal complained of. To be more accurate, however, the accused did raise in her basic motion to quash filed on October 28, 1975 in Criminal Case No. 15796, not with the desirable explicitness required by the rules on pleadings but acceptable under a liberal application thereof, the issue of double jeopardy in this wise: 3. That accused is in jeopardy of being convicted for a similar offense that is pending in court.
Attached to this motion is a zerox copy of the information in Criminal Case No. 15795, CFI, Rizal, which alleges the identical fact of giving alleged false testimony in the land registration proceedings that is alleged in the information before this Honorable Court. The defense of jeopardy is applicable not only to a situation where the accused has in fact been convicted but also to a situation where he is in danger of being convicted for the same offense. 1

At any rate, I would go a little farther, beyond that mere procedural lapse, especially since the main decision took recourse to that bar under the Rules prefaced by the assumption "in gratia argumenti that falsification was indeed necessary to commit estafa." During the deliberations in this case, I advanced the view that even under substantive law, specifically the provisions of and the jurisprudence on Article 48 of the Revised Penal Code, the offenses of which

People vs. Pineda private respondent stands charged cannot be considered together as component offenses constitutive of a single complex crime. I am gratified that in the revised ponencia, the majority now shares my position.
Private respondent was charged on the same day with estafa in Criminal Case No. 15795 before Branch 19, and with falsification in Criminal Case No. 15796 before Branch 21, both of the then Court of First Instance of Rizal. From the indictments in these two cases which are reproduced in the decision, the majority notes that "(t)he confluence of the foregoing assertions disclose that Consolacion Naval sold the subject realty on August 12, 1969 to Edilberto Ilano who made a partial payment of P130,850.00. About two years later, or on August 17, 1971, an application for registration under the Land Registration Act was submitted by Consolacion wherein she stated that she owned the same lot and that it was unencumbered. . . ." The foregoing allegations constitute the basis for the falsification charge for, as the information therein states, because of her aforesaid representations that "(s)he is the exclusive owner in fee simple" of the land and that she "does not know of any mortgage or encumbrance of any kind whatsoever affecting said land, . . . the Court in its Decision of March 22, 1972 declared the herein accused the true and absolute owner of said parcel of land free from all liens and encumbrances of any nature . . ." On the other hand, the charge for estafa in Criminal Case No. 15795 alleges that on or about March 23, 1973, private respondent and one Anacleto Santos, "without informing said Edilberto V. Ilano, . . . executed and filed an Application for Registration over the same parcel of land among others, as a result of which the Presiding Judge of Branch XIII to which said case was assigned issued Original Certificate of Title No. 9332 in her name, . . ." and "sold more than onehalf (1/2) of said parcel of land" to nine (9) other persons named therein. In his challenged order 2 rendered on January 23, 1976 quashing the information in the falsification case (Criminal Case No. 15796), and with express reference to the "information for estafa . . . previously filed against the accused, docketed as Criminal Case No. 15795 assigned to Branch XIX of this Court," respondent judge arrived at the following conclusion:
This Court, therefore, finds the contention of the accused that the crime of falsification charged in the present case and the estafa case pending in Branch XIX of this Court constitute the so-called complex crime. The falsification charge in the case at bar was the means for committing crime of estafa now pending in Branch XIX. In justice to the accused considering that if this case should not be dismissed she stands in danger of being convicted twice for the same criminal act that she allegedly committed, this court is constrained to grant the motion for reconsideration. 3

I regret that I cannot follow the logic in the aforesaid disposition. The falsification charged in Criminal Case No-15796 was allegedly committed on August 17, 1971 with an application for land registration containing false statements. No private offended parties, other than Edilberto Ilano, were contemplated therein since no other sales of the land or portions thereof were alleged to have been effected. On the other hand, the estafa charged in Criminal Case No. 15795 was supposedly committed almost two (2) years later, on March 23, 1973, allegedly by the filing of another application for registration of parts of the same parcel of land, portions of which were thereafter sold to nine (9) other persons who would be the potential aggrieved parties. It is hard to conceive of how a falsification committed in 1971 which, at that time, had no probable or direct connection with the estafa committed in 1973, could be considered as the necessary means to commit the latter such that both could be considered a single complex crime. In this type of complex crime under Article 48 of the Revised Penal Code known in Spanish law as a delito complejo, there must be a direct connection, both in point of time and intention, that the first felony committed by the offender was deliberately adopted by him as a necessary means to commit the other. That singularity of purpose, or unity of criminal intent, is the basis for penalizing both offenses with a single penalty, albeit in the maximum period of that for the graver offense, since this is the so-called case of formal or ideal plurality of crimes which is generated by a single criminal resolution. 4 Thus, in Regis vs. People, 5 we stressed: . . . The statement in the appealed decision that there was only one intention to commit the falsification and the malversation of April 30 and May 2, 1931 is not supported by the facts of the case. They were

People vs. Pineda committed on different dates sufficiently distant from each other (April 30 and May 2, 1931). It does not appear that when the malversation and the falsification were committed on April 30, it was already the intention of the appellant to commit also the falsification and the malversation of May 2, 1931, the same being necessary to justify the finding that, although they were committed on different dates, a single intention determined the commission of both. The acts being independent from each other and executed by different voluntary actions, each constitutes an independent offense.
While the foregoing discussion may also apply to plurality of complex crimes committed on different dates, the rationale is the same. As already emphasized, there must be an evident nexus between the first and the second felonies, in that the first was resorted to precisely to ensure the commission and in anticipation of the second. Here, it defies sober analysis as to how the falsification in 1971 and the estafa in 1973 could be the component felonies of a single complex crime. On both procedural and substantive legal considerations, therefore, I hold that public respondent erred in quashing the information for falsification on the theory that, together with the estafa, a complex crime is involved, hence to charge private respondent in two separate criminal cases using each offense as the respective subject of each charge would put her in double jeopardy. Private respondent, under the factual milieu of this case, cannot be in double jeopardy. She is being charged with two separate and distinct crimes. On top of that, the thesis of the majority is that she even failed to duly raise the issue of a complex crime vis-a-vis the rule of double jeopardy in the manner which public respondent seized upon for the quashal of Criminal Case No. 15796. We could, therefore, stop here and write finis to the posturings of private respondent in this recourse, leaving the inquiry into the case on the merits to the court a quo. The majority, however, discourses on certain aspects of the doctrine of double jeopardy which, although obiter in light of the foregoing premises, warrants more than just the proverbial second look and on which I would like to make some respectful observations. 2. It is the postulation of the majority that "(t)he mere filing of two informations charging the same offense is not an appropriate basis for the invocation of double jeopardy since the first jeopardy has not yet set in by a previous conviction, acquittal or termination of the case without the consent of the accused." This would be correct if what had transpired was the mere filing of the two informations charging identical offenses, but what about the situation where the accused has already entered a plea to the first charge and is now confronted with a second charge for the same offense? To this, the majority ripostes that "in order for the first jeopardy to attach, the plea of the accused to the charge must be coupled with either conviction, acquittal, or termination of the previous case without his express consent thereafter." In fine, what the majority posits is that the doctrine of double jeopardy can be invoked only if there was a previous conviction, acquittal, or unconsented dismissal in the first case against the accused and he is now charged again with the same offense. Ergo, even if he was already arraigned on the first charge, or even if he was undergoing trial therein when the same offense is made the subject of a second charge, he cannot, for lack of a prior conviction, acquittal or unconsented dismissal in the first charge, move to quash the second identical indictment on the ground of double jeopardy since putatively there is still no first jeopardy to speak of. This will necessitate an inquiry into and require clarification as to stage of or point in time in the criminal proceedings when an accused is considered as already in legal jeopardy or in danger of conviction either for the first or second time. Since our basic rules on double jeopardy are admittedly of American judicial origin, the rulings in that jurisdiction would be instructive. We find these annotations in Corpus Juris Secundum:
The general rule established by the preponderance of judicial opinion and by the best considered cases is that, when a person has been placed on trial on a valid indictment or information before a court of competent jurisdiction, has been arraigned, and has pleaded, and a jury has been impaneled and sworn, he is in jeopardy, but that, until these things have been done, jeopardy does not attach. 6

xxx xxx xxx If jeopardy is considered to attach when the jury are sworn or when the first witness is heard, it is not ordinarily necessary that the prior trial shall have resulted in a valid judgment either of conviction or

People vs. Pineda acquittal: it is sufficient if the prisoner was actually placed in jeopardy in that he was in danger of having a valid judgment pronounced as the result of the trial: it is not the verdict or judgment which places a prisoner in jeopardy.
In those jurisdictions which follow the generally recognized rule, jeopardy attaches at the time the trial commences, and if the trial is to a jury, the trial commences when the jury are impaneled and sworn, and thus it is said that jeopardy attaches when the jury are impaneled and sworn. If the trial is to the court without a jury, it is well settled that, for the purpose of determining when the jeopardy attaches, the trial begins at the time of the commencement of the taking of testimony, that is, when the first witness is duly sworn, and, accordingly, in such a case, jeopardy begins after accused has been indicted, arraigned, and has pleaded,and the court has begun to hear the evidence, or the trial has begun to hear the evidence, or the trial has begun by the reading of the indictment to the court. In the application of these principles it is assumed that there has been a plea of not guilty, and that the court has jurisdiction. 7 (Emphasis supplied)

The doctrine above discussed to the effect that the accused is in legal jeopardy from the moment he enters a valid plea to the indictment is not terra incognita in our jurisdiction. As early as 1933, in applying Section 28 of the then Code of Criminal Procedure which was substantially incorporated in Section 9, Rule 117 of the 1964 Rules of Court (now Section 7, Rule 117 of the 1985 Rules of Criminal Procedure), this Court, with minor allowances for our procedural differences with criminal proceedings in American jurisdiction, substantially reiterated the above-quoted doctrines as a basic proposition of law.
It seems clear that under the foregoing provisions of law, a defendant in a criminal prosecution is in legal jeopardy when placed on trial under the following conditions: (1) In a court of competent jurisdiction; (2) upon a valid complaint or information; (3) after he has been arraigned; and (4) after he has pleaded to the complaint or information. Tested by this standard, we are of the opinion that the appellee has been once in jeopardy for the offense for which she is now prosecuted. . . . All that the law requires is that the accused has been brought to trial "in a court of competent jurisdiction, upon a valid complaint or information or other formal charge sufficient in form and substance to sustain a conviction, after issue properly joined." Under our system of criminal procedure, issue is properly joined after the accused has entered a plea of not guilty . The mere calling of a witness would not add to the danger, annoyance, and vexation suffered by the accused, after going through the process of being arrested, subjected to preliminary investigation, arraigned and required to plead and stand trial. 8 (Emphasis mine.)

This is reiterated and clarified by a recognized authority who explains that legal jeopardy exists from the moment the accused has pleaded to the charge, and that the disposition of his case thereafter is merely the consequence of the former as to constitute a bar to another prosecution, thus:
. . ., legal jeopardy does not exist and a plea to that effect is not accordingly available but under the following conditions: (a) upon a valid complaint or informations: (b) before a court of competent jurisdictions: and (c) after he has been arraigned and has pleaded to the complaint or information . When all of these conditions are shown to exist, the subsequent acquittal or conviction of the accused, or the dismissal or termination of the case without his express consent constitutes res adjudicata and, therefore, a bar to another prosecution for the offense charged, or for any attempt to commit the same or frustration thereof, or for any offense which necessarily includes or is included therein. 9

In other words, the concurrence of the three conditions above enumerated having placed the accused in legal jeopardy, he can invoke the ground in Section 3(h) of the present Rule 117; and after judgment has been rendered therein, the ground for quashal is furnished by Section 7 of the same rule which speaks of previousconviction, acquittal or unconsented dismissal. Parenthetically, the overriding significance of a plea is underscored when we recall that after a plea has been entered, there can be no amendment in substance of the information or complaint, but only in form and this by leave and at the discretion of the court if it can be done without prejudice to the accused. 10 And, of course, it is fundamental that there can be no valid judgment without a valid standing plea to the charge. 11 It is regrettable that the role of a plea entered to an indictment appears to have been denigrated in our decisional rulings on double jeopardy. While in almost all cases decided by the Court double jeopardy was sustained because of a previous conviction, acquittal or dismissal of the case without the consent of the accused, these were so because the facts thereof really made out in each a case of autrefois aquit or autrefois convict. In addition, with the specific provision

People vs. Pineda of then Section 9 (now Section 7) of Rule 117 providing for the requirements, and under the heading of "Former conviction or acquittal or former jeopardy" (now rephrased as such epigraph reading "Former conviction or acquittal; double jeopardy."), the impression created was that the doctrine of double jeopardy can be invoked only if there was prior conviction, acquittal or dismissal of the case involving the same offense of which the accused is charged again. The writer respectfully submits otherwise.
It has long been my position that the issue of double jeopardy arises in three different ways, that is, when: (a) the accused is charged with the same offense in two separate pending cases, in one of which he has validly pleaded; (b) The accused is prosecuted anew for the same offense after he has been previously convicted or acquitted thereof or the charge therefor had been dismissed without his consent; or (c) the prosecution makes a legally unauthorized appeal from a judgment in the same case. The first instance is contemplated in then Section 2 (now Section 3), paragraph (h), Rule 117; the second is covered by Section 7 of the same Rule; and the third is governed by Section 2, Rule 122. That the first and the third instances are rarely involved in cases or found in our jurisprudential annals is to the credit of our prosecutorial agencies which, with respect to the first instance, can seldom be faulted with simultaneously or successively charging the same person twice with the same offense in separate cases and, regarding the third instance, of scrupulously avoiding the proscribed appeals. Evidently, this is not to be construed to mean, however, that only the second instance, or "former jeopardy," can be the basis of a motion to quash. Section 3 of Rule 117 provides the ground for a motion to quash and, just like the provisions of the 1964 Rules of Court, includes therein as paragraph "(h) That the accused has been previously convicted or in jeopardy of beingconvicted or acquitted of the offense charged." Indisputably, the first part of this paragraph regarding previous conviction refers to the "former jeopardy" embraced in the present Section 7 of this Rule. Now, unless we are prepared to treat the second part therein as faulty drafting or linguistic surplusage, that second part referring to the accused as "in jeopardy of being convicted or acquitted of the offense charged" necessarily presupposes that he has not yet been convicted or acquitted of an offense identical to that with which he is again indicted. Since double jeopardy requires, aside from the other requisites, at least two cases involving identity of offenses but wherein the accused is in legal jeopardy in at least one of them, this consequently envisages the situation where the accused, who has already entered a plea to the first charge but wherein no final adjudication has yet been rendered, is again charged with the same offense. It is, to paraphrase from the American expression quoted in the main opinion, a proper case of "litis pendentia in prison grey" and wherein quashal of the second case may accordingly be sought pursuant to said Rule. Spelled out to the point of elemental details, said paragraph (h) actually provides for two modes constitutive of separate grounds for quashal of a second indictment for the same offense. Recasting its provisions for greater clarity, the first mode allows quashal where the accused has been previously convicted or acquitted of the same offense with which he is again presently charged and in danger of a second conviction. This would correspond, in civil procedure, to res judicata as a ground for dismissal. The second mode stated in the same paragraph contemplates the situation where the accused is only in jeopardy or danger of being convicted in the first case, since no judgment or final order has yet been rendered therein, and he is now charged anew with the same offense. This is equivalent, in civil case, to litis pendentia or auter action pendant, likewise a ground for dismissal. Now, in criminal procedure, these two variant grounds are provided for in a single paragraph but definitely not as identical, but alternative and discrete, grounds although embraced in the same concept of double jeopardy. While the censorious would prefer a more felicitous term for the second mode, instead of also referring to it as double jeopardy, this is a matter properly addressed to the framers of the rule or law thereon. I can very well live with that term since, whether or not the liability of the accused has been adjudged or still awaiting adjudication in the first prosecution, what is sought to be avoided is his subjection to another danger or jeopardy or being again convicted and sentenced for an identical offense. Judicial proceedings and determinations should never be the victims of the tyranny of labels. What should control is the legislative intendment and the purpose to be subserved. If we were to be squeamish about terminology, we need merely note that improper venue is not a ground for a motion to quash. Its counterpart in criminal procedure is lack of jurisdiction of the trial court over the offense charged, under Section 3(b) of Rule 117, since in criminal cases venue is

People vs. Pineda jurisdictional as the court has no jurisdiction to try an offense committed outside its territorial jurisdiction. 12 Yet, we still have to hear any strident objection to the practice equating both terms as virtually synonymous objections to the validity of a criminal prosecution.
Coming back to my preceding disquisition on double jeopardy, I humbly submit that a view contrary thereto could be productive of mischievous, if not preposterous, results. While, as earlier observed, it is a little remote for the same authority to charge the same accused with two criminal suits involving the same offense, this is not an absolute improbability, as witness politically-motivated harassment prosecutions. It is also possible that duplicity of suits on identical offenses may be brought about by acts of different authorities in separate local jurisdictions. Thus, to illustrate, 13 if forcible abduction is committed and commenced in Manila and the victim is taken to Tarlac and thence to Cagayan, being a continuing crime the criminal action therefor may be instituted in the proper court of any province in which the offense is continued. If, by error or design, three cases involving the same parties and offense are lodged in Manila, Tarlac and Cagayan, either categorized under the same offense of forcible abduction or with two of them dissembled as different offenses of arbitrary detention or grave coercion through the expedient of variations in the particulars of the indictment, we would have the not improbable scenario of the same accused enmeshed in three different criminal actions which actually involve the same offense. Where, thereafter, the accused upon arraignment pleaded not guilty in Manila, it would be a judicial travesty that for lack of a final disposition in said case he cannot be allowed to move to quash the other two pending cases on the ground of double jeopardy, in the hearing of which motion the identity of the offenses can be proved and the dismissal of the other two actions could accordingly be ordered. Again, since the majority insists that a final judgment in the first case is a sine qua non for a motion to quash the other two cases, if the accused was convicted in the first case and said conviction is brought on appeal where it may remain pending for years, what happens to the other two cases? Shall they instead be consolidated for trial with the inevitable inconvenience and expenses necessitated by transfer of venue and production of witnesses from a different vicinage, not to speak of the awkward and improbable situation of two of the same cases being each consolidated with itself and with the court having to resolve all? Shall they be allowed to proceed on independent trial utilizing the same evidence or shall the proceedings therein be indefinitely suspended to await the ultimate outcome of the first? The absurdity of having to be unnecessarily confronted with the aforesaid options is further underscored by the fact that howsoever the first case is disposed of, the other two cases would be barred by previous jeopardy under Section 7 of Rule 117, hence the independent proceedings that may have been conducted or the suspension thereof in those two cases would be completely pointless and unnecessary. Permitting the accused to move to quash the said two cases after he had pleaded to the first would have obviated the impasse created by requiring a prior final decision and spared him the vexation and expenses for fees and bail in the other two improvident prosecutions. ..........MISSING LINE.......... This is where Section 3(h) of the same rule could have been overlooked, misconstrued, or altogether ignored. One final word. The majority points out that it was obiter for the Court to rule in People vs. City Court of Manila, Branch XI 14 that the accused therein was in double jeopardy because he had already been charged for the same offense, emphasizing that such imprecision of language would give the impression that one simply charged may claim possible jeopardy in another case. This writer is aware that the ponente therein committed an innocent oversight hence in my comment thereon, as quoted in the main decision, it was explained that this would be so as long as the accused had entered his plea therein. Aware that such statement in that case could further be, as it is now, blandly dismissed as obiter, I also made the qualification that my comment was as the doctrine "would now appear" based on the holding in said case. Yet, as a statement of a rule of procedure, I believe that, properly and completely expressed, the view of theponente in that case was in the right direction on that score. Also, we have held that while an obiter dictum is generally not binding as authority or precedent within the stare decisis rule, it may be followed if sufficiently persuasive. 15 I make this observation since it may also be argued that the present discussion regarding the bases of my dissent would be orbiter if we hold that in the present case the issue of double jeopardy is not really involved since the private

People vs. Pineda respondent is not being charged with a complex crime, the component felonies of which have been made subject of separate suits, but of two distinct and independent crimes.
Nonetheless, as ultimate arbiters of the law, we cannot and we should not continue to cleave with obstinate tenacity or persist in citing with rote-like consistency clearly inapposite or inapplicable doctrines catalogued in works notable not for logical analysis but by their reliance on the numerical weight of cases decided on the bases of disparate factual situations, or by reason of a slavish obsession for footnotes. Perpetuating a misconception spawned by the inertia of cavalier reliance on supposed precedents is a disservice to the doctrine of stare decisis. As earlier stated, therefore, since my present dissent is on an issue which I believe this court should soonest clarify, on the considerations hereinbefore expressed. I categorically submit that where an accused has validly pleaded to the appropriate indictment sufficiently charging him with an offense in a court of competent jurisdiction, he can seek and obtain the quashal of a subsequent charge for the same offense on the ground of double jeopardy even before the final disposition of the first case. Narvasa, C.J. and Feliciano, J., concur.

Separate Opinions

REGALADO, J., concurring and dissenting: I concur in the result reached in the eloquently articulated and well researched ponencia of Mr. Justice Melo in that the assailed order of respondent judge quashing the information for falsification should be reversed and the case be remanded to the lower court for appropriate proceedings. I regret, however, that some of the reasons advanced for that conclusion do not square with my own views as I shall shortly explain. 1. First, on the concessible areas of concurrence. The majority holds that private respondent Consolacion Naval failed to seasonably raise the issue, and respondent judge correspondingly erred in declaring, that she was supposedly being prosecuted for falsification perpetrated to commit estafa. The specific contention of the accused that she was charged with the complex crime of estafa through falsification, in connection with her submission on double jeopardy, was allegedly not raised in a motion to quash but only subsequently in a motion for reconsideration of the denial of the preceding motion, hence under the omnibus motion rule expressed in Section 3, Rule 117 of the 1964 Rules of Court that ground was waived and could not be made the basis for the quashal complained of. To be more accurate, however, the accused did raise in her basic motion to quash filed on October 28, 1975 in Criminal Case No. 15796, not with the desirable explicitness required by the rules on pleadings but acceptable under a liberal application thereof, the issue of double jeopardy in this wise: 3. That accused is in jeopardy of being convicted for a similar offense that is pending in court.
Attached to this motion is a zerox copy of the information in Criminal Case No. 15795, CFI, Rizal, which alleges the identical fact of giving alleged false testimony in the land registration proceedings that is alleged in the information before this Honorable Court. The defense of jeopardy is applicable not only to a situation where the accused has in fact been convicted but also to a situation where he is in danger of being convicted for the same offense. 1

At any rate, I would go a little farther, beyond that mere procedural lapse, especially since the main decision took recourse to that bar under the Rules prefaced by the assumption "in gratia argumenti that falsification was indeed necessary to commit estafa." During the deliberations in this case, I advanced the view that even under substantive law, specifically the provisions of and the jurisprudence on Article 48 of the Revised Penal Code, the offenses of which

People vs. Pineda private respondent stands charged cannot be considered together as component offenses constitutive of a single complex crime. I am gratified that in the revised ponencia, the majority now shares my position.
Private respondent was charged on the same day with estafa in Criminal Case No. 15795 before Branch 19, and with falsification in Criminal Case No. 15796 before Branch 21, both of the then Court of First Instance of Rizal. From the indictments in these two cases which are reproduced in the decision, the majority notes that "(t)he confluence of the foregoing assertions disclose that Consolacion Naval sold the subject realty on August 12, 1969 to Edilberto Ilano who made a partial payment of P130,850.00. About two years later, or on August 17, 1971, an application for registration under the Land Registration Act was submitted by Consolacion wherein she stated that she owned the same lot and that it was unencumbered. . . ." The foregoing allegations constitute the basis for the falsification charge for, as the information therein states, because of her aforesaid representations that "(s)he is the exclusive owner in fee simple" of the land and that she "does not know of any mortgage or encumbrance of any kind whatsoever affecting said land, . . . the Court in its Decision of March 22, 1972 declared the herein accused the true and absolute owner of said parcel of land free from all liens and encumbrances of any nature . . ." On the other hand, the charge for estafa in Criminal Case No. 15795 alleges that on or about March 23, 1973, private respondent and one Anacleto Santos, "without informing said Edilberto V. Ilano, . . . executed and filed an Application for Registration over the same parcel of land among others, as a result of which the Presiding Judge of Branch XIII to which said case was assigned issued Original Certificate of Title No. 9332 in her name, . . ." and "sold more than onehalf (1/2) of said parcel of land" to nine (9) other persons named therein. In his challenged order 2 rendered on January 23, 1976 quashing the information in the falsification case (Criminal Case No. 15796), and with express reference to the "information for estafa . . . previously filed against the accused, docketed as Criminal Case No. 15795 assigned to Branch XIX of this Court," respondent judge arrived at the following conclusion:
This Court, therefore, finds the contention of the accused that the crime of falsification charged in the present case and the estafa case pending in Branch XIX of this Court constitute the so-called complex crime. The falsification charge in the case at bar was the means for committing crime of estafa now pending in Branch XIX. In justice to the accused considering that if this case should not be dismissed she stands in danger of being convicted twice for the same criminal act that she allegedly committed, this court is constrained to grant the motion for reconsideration. 3

I regret that I cannot follow the logic in the aforesaid disposition. The falsification charged in Criminal Case No-15796 was allegedly committed on August 17, 1971 with an application for land registration containing false statements. No private offended parties, other than Edilberto Ilano, were contemplated therein since no other sales of the land or portions thereof were alleged to have been effected. On the other hand, the estafa charged in Criminal Case No. 15795 was supposedly committed almost two (2) years later, on March 23, 1973, allegedly by the filing of another application for registration of parts of the same parcel of land, portions of which were thereafter sold to nine (9) other persons who would be the potential aggrieved parties. It is hard to conceive of how a falsification committed in 1971 which, at that time, had no probable or direct connection with the estafa committed in 1973, could be considered as the necessary means to commit the latter such that both could be considered a single complex crime. In this type of complex crime under Article 48 of the Revised Penal Code known in Spanish law as a delito complejo, there must be a direct connection, both in point of time and intention, that the first felony committed by the offender was deliberately adopted by him as a necessary means to commit the other. That singularity of purpose, or unity of criminal intent, is the basis for penalizing both offenses with a single penalty, albeit in the maximum period of that for the graver offense, since this is the so-called case of formal or ideal plurality of crimes which is generated by a single criminal resolution. 4 Thus, in Regis vs. People, 5 we stressed: . . . The statement in the appealed decision that there was only one intention to commit the falsification and the malversation of April 30 and May 2, 1931 is not supported by the facts of the case. They were

People vs. Pineda committed on different dates sufficiently distant from each other (April 30 and May 2, 1931). It does not appear that when the malversation and the falsification were committed on April 30, it was already the intention of the appellant to commit also the falsification and the malversation of May 2, 1931, the same being necessary to justify the finding that, although they were committed on different dates, a single intention determined the commission of both. The acts being independent from each other and executed by different voluntary actions, each constitutes an independent offense.
While the foregoing discussion may also apply to plurality of complex crimes committed on different dates, the rationale is the same. As already emphasized, there must be an evident nexus between the first and the second felonies, in that the first was resorted to precisely to ensure the commission and in anticipation of the second. Here, it defies sober analysis as to how the falsification in 1971 and the estafa in 1973 could be the component felonies of a single complex crime. On both procedural and substantive legal considerations, therefore, I hold that public respondent erred in quashing the information for falsification on the theory that, together with the estafa, a complex crime is involved, hence to charge private respondent in two separate criminal cases using each offense as the respective subject of each charge would put her in double jeopardy. Private respondent, under the factual milieu of this case, cannot be in double jeopardy. She is being charged with two separate and distinct crimes. On top of that, the thesis of the majority is that she even failed to duly raise the issue of a complex crime vis-a-vis the rule of double jeopardy in the manner which public respondent seized upon for the quashal of Criminal Case No. 15796. We could, therefore, stop here and write finis to the posturings of private respondent in this recourse, leaving the inquiry into the case on the merits to the court a quo. The majority, however, discourses on certain aspects of the doctrine of double jeopardy which, although obiter in light of the foregoing premises, warrants more than just the proverbial second look and on which I would like to make some respectful observations. 2. It is the postulation of the majority that "(t)he mere filing of two informations charging the same offense is not an appropriate basis for the invocation of double jeopardy since the first jeopardy has not yet set in by a previous conviction, acquittal or termination of the case without the consent of the accused." This would be correct if what had transpired was the mere filing of the two informations charging identical offenses, but what about the situation where the accused has already entered a plea to the first charge and is now confronted with a second charge for the same offense? To this, the majority ripostes that "in order for the first jeopardy to attach, the plea of the accused to the charge must be coupled with either conviction, acquittal, or termination of the previous case without his express consent thereafter." In fine, what the majority posits is that the doctrine of double jeopardy can be invoked only if there was a previous conviction, acquittal, or unconsented dismissal in the first case against the accused and he is now charged again with the same offense. Ergo, even if he was already arraigned on the first charge, or even if he was undergoing trial therein when the same offense is made the subject of a second charge, he cannot, for lack of a prior conviction, acquittal or unconsented dismissal in the first charge, move to quash the second identical indictment on the ground of double jeopardy since putatively there is still no first jeopardy to speak of. This will necessitate an inquiry into and require clarification as to stage of or point in time in the criminal proceedings when an accused is considered as already in legal jeopardy or in danger of conviction either for the first or second time. Since our basic rules on double jeopardy are admittedly of American judicial origin, the rulings in that jurisdiction would be instructive. We find these annotations in Corpus Juris Secundum:
The general rule established by the preponderance of judicial opinion and by the best considered cases is that, when a person has been placed on trial on a valid indictment or information before a court of competent jurisdiction, has been arraigned, and has pleaded, and a jury has been impaneled and sworn, he is in jeopardy, but that, until these things have been done, jeopardy does not attach. 6

xxx xxx xxx If jeopardy is considered to attach when the jury are sworn or when the first witness is heard, it is not ordinarily necessary that the prior trial shall have resulted in a valid judgment either of conviction or

People vs. Pineda acquittal: it is sufficient if the prisoner was actually placed in jeopardy in that he was in danger of having a valid judgment pronounced as the result of the trial: it is not the verdict or judgment which places a prisoner in jeopardy.
In those jurisdictions which follow the generally recognized rule, jeopardy attaches at the time the trial commences, and if the trial is to a jury, the trial commences when the jury are impaneled and sworn, and thus it is said that jeopardy attaches when the jury are impaneled and sworn. If the trial is to the court without a jury, it is well settled that, for the purpose of determining when the jeopardy attaches, the trial begins at the time of the commencement of the taking of testimony, that is, when the first witness is duly sworn, and, accordingly, in such a case, jeopardy begins after accused has been indicted, arraigned, and has pleaded,and the court has begun to hear the evidence, or the trial has begun to hear the evidence, or the trial has begun by the reading of the indictment to the court. In the application of these principles it is assumed that there has been a plea of not guilty, and that the court has jurisdiction. 7 (Emphasis supplied)

The doctrine above discussed to the effect that the accused is in legal jeopardy from the moment he enters a valid plea to the indictment is not terra incognita in our jurisdiction. As early as 1933, in applying Section 28 of the then Code of Criminal Procedure which was substantially incorporated in Section 9, Rule 117 of the 1964 Rules of Court (now Section 7, Rule 117 of the 1985 Rules of Criminal Procedure), this Court, with minor allowances for our procedural differences with criminal proceedings in American jurisdiction, substantially reiterated the above-quoted doctrines as a basic proposition of law.
It seems clear that under the foregoing provisions of law, a defendant in a criminal prosecution is in legal jeopardy when placed on trial under the following conditions: (1) In a court of competent jurisdiction; (2) upon a valid complaint or information; (3) after he has been arraigned; and (4) after he has pleaded to the complaint or information. Tested by this standard, we are of the opinion that the appellee has been once in jeopardy for the offense for which she is now prosecuted. . . . All that the law requires is that the accused has been brought to trial "in a court of competent jurisdiction, upon a valid complaint or information or other formal charge sufficient in form and substance to sustain a conviction, after issue properly joined." Under our system of criminal procedure, issue is properly joined after the accused has entered a plea of not guilty . The mere calling of a witness would not add to the danger, annoyance, and vexation suffered by the accused, after going through the process of being arrested, subjected to preliminary investigation, arraigned and required to plead and stand trial. 8 (Emphasis mine.)

This is reiterated and clarified by a recognized authority who explains that legal jeopardy exists from the moment the accused has pleaded to the charge, and that the disposition of his case thereafter is merely the consequence of the former as to constitute a bar to another prosecution, thus:
. . ., legal jeopardy does not exist and a plea to that effect is not accordingly available but under the following conditions: (a) upon a valid complaint or informations: (b) before a court of competent jurisdictions: and (c) after he has been arraigned and has pleaded to the complaint or information . When all of these conditions are shown to exist, the subsequent acquittal or conviction of the accused, or the dismissal or termination of the case without his express consent constitutes res adjudicata and, therefore, a bar to another prosecution for the offense charged, or for any attempt to commit the same or frustration thereof, or for any offense which necessarily includes or is included therein. 9

In other words, the concurrence of the three conditions above enumerated having placed the accused in legal jeopardy, he can invoke the ground in Section 3(h) of the present Rule 117; and after judgment has been rendered therein, the ground for quashal is furnished by Section 7 of the same rule which speaks of previousconviction, acquittal or unconsented dismissal. Parenthetically, the overriding significance of a plea is underscored when we recall that after a plea has been entered, there can be no amendment in substance of the information or complaint, but only in form and this by leave and at the discretion of the court if it can be done without prejudice to the accused. 10 And, of course, it is fundamental that there can be no valid judgment without a valid standing plea to the charge. 11 It is regrettable that the role of a plea entered to an indictment appears to have been denigrated in our decisional rulings on double jeopardy. While in almost all cases decided by the Court double jeopardy was sustained because of a previous conviction, acquittal or dismissal of the case without the consent of the accused, these were so because the facts thereof really made out in each a case of autrefois aquit or autrefois convict. In addition, with the specific provision

People vs. Pineda of then Section 9 (now Section 7) of Rule 117 providing for the requirements, and under the heading of "Former conviction or acquittal or former jeopardy" (now rephrased as such epigraph reading "Former conviction or acquittal; double jeopardy."), the impression created was that the doctrine of double jeopardy can be invoked only if there was prior conviction, acquittal or dismissal of the case involving the same offense of which the accused is charged again. The writer respectfully submits otherwise.
It has long been my position that the issue of double jeopardy arises in three different ways, that is, when: (a) the accused is charged with the same offense in two separate pending cases, in one of which he has validly pleaded; (b) The accused is prosecuted anew for the same offense after he has been previously convicted or acquitted thereof or the charge therefor had been dismissed without his consent; or (c) the prosecution makes a legally unauthorized appeal from a judgment in the same case. The first instance is contemplated in then Section 2 (now Section 3), paragraph (h), Rule 117; the second is covered by Section 7 of the same Rule; and the third is governed by Section 2, Rule 122. That the first and the third instances are rarely involved in cases or found in our jurisprudential annals is to the credit of our prosecutorial agencies which, with respect to the first instance, can seldom be faulted with simultaneously or successively charging the same person twice with the same offense in separate cases and, regarding the third instance, of scrupulously avoiding the proscribed appeals. Evidently, this is not to be construed to mean, however, that only the second instance, or "former jeopardy," can be the basis of a motion to quash. Section 3 of Rule 117 provides the ground for a motion to quash and, just like the provisions of the 1964 Rules of Court, includes therein as paragraph "(h) That the accused has been previously convicted or in jeopardy of beingconvicted or acquitted of the offense charged." Indisputably, the first part of this paragraph regarding previous conviction refers to the "former jeopardy" embraced in the present Section 7 of this Rule. Now, unless we are prepared to treat the second part therein as faulty drafting or linguistic surplusage, that second part referring to the accused as "in jeopardy of being convicted or acquitted of the offense charged" necessarily presupposes that he has not yet been convicted or acquitted of an offense identical to that with which he is again indicted. Since double jeopardy requires, aside from the other requisites, at least two cases involving identity of offenses but wherein the accused is in legal jeopardy in at least one of them, this consequently envisages the situation where the accused, who has already entered a plea to the first charge but wherein no final adjudication has yet been rendered, is again charged with the same offense. It is, to paraphrase from the American expression quoted in the main opinion, a proper case of "litis pendentia in prison grey" and wherein quashal of the second case may accordingly be sought pursuant to said Rule. Spelled out to the point of elemental details, said paragraph (h) actually provides for two modes constitutive of separate grounds for quashal of a second indictment for the same offense. Recasting its provisions for greater clarity, the first mode allows quashal where the accused has been previously convicted or acquitted of the same offense with which he is again presently charged and in danger of a second conviction. This would correspond, in civil procedure, to res judicata as a ground for dismissal. The second mode stated in the same paragraph contemplates the situation where the accused is only in jeopardy or danger of being convicted in the first case, since no judgment or final order has yet been rendered therein, and he is now charged anew with the same offense. This is equivalent, in civil case, to litis pendentia or auter action pendant, likewise a ground for dismissal. Now, in criminal procedure, these two variant grounds are provided for in a single paragraph but definitely not as identical, but alternative and discrete, grounds although embraced in the same concept of double jeopardy. While the censorious would prefer a more felicitous term for the second mode, instead of also referring to it as double jeopardy, this is a matter properly addressed to the framers of the rule or law thereon. I can very well live with that term since, whether or not the liability of the accused has been adjudged or still awaiting adjudication in the first prosecution, what is sought to be avoided is his subjection to another danger or jeopardy or being again convicted and sentenced for an identical offense. Judicial proceedings and determinations should never be the victims of the tyranny of labels. What should control is the legislative intendment and the purpose to be subserved. If we were to be squeamish about terminology, we need merely note that improper venue is not a ground for a motion to quash. Its counterpart in criminal procedure is lack of jurisdiction of the trial court over the offense charged, under Section 3(b) of Rule 117, since in criminal cases venue is

People vs. Pineda jurisdictional as the court has no jurisdiction to try an offense committed outside its territorial jurisdiction. 12 Yet, we still have to hear any strident objection to the practice equating both terms as virtually synonymous objections to the validity of a criminal prosecution.
Coming back to my preceding disquisition on double jeopardy, I humbly submit that a view contrary thereto could be productive of mischievous, if not preposterous, results. While, as earlier observed, it is a little remote for the same authority to charge the same accused with two criminal suits involving the same offense, this is not an absolute improbability, as witness politically-motivated harassment prosecutions. It is also possible that duplicity of suits on identical offenses may be brought about by acts of different authorities in separate local jurisdictions. Thus, to illustrate, 13 if forcible abduction is committed and commenced in Manila and the victim is taken to Tarlac and thence to Cagayan, being a continuing crime the criminal action therefor may be instituted in the proper court of any province in which the offense is continued. If, by error or design, three cases involving the same parties and offense are lodged in Manila, Tarlac and Cagayan, either categorized under the same offense of forcible abduction or with two of them dissembled as different offenses of arbitrary detention or grave coercion through the expedient of variations in the particulars of the indictment, we would have the not improbable scenario of the same accused enmeshed in three different criminal actions which actually involve the same offense. Where, thereafter, the accused upon arraignment pleaded not guilty in Manila, it would be a judicial travesty that for lack of a final disposition in said case he cannot be allowed to move to quash the other two pending cases on the ground of double jeopardy, in the hearing of which motion the identity of the offenses can be proved and the dismissal of the other two actions could accordingly be ordered. Again, since the majority insists that a final judgment in the first case is a sine qua non for a motion to quash the other two cases, if the accused was convicted in the first case and said conviction is brought on appeal where it may remain pending for years, what happens to the other two cases? Shall they instead be consolidated for trial with the inevitable inconvenience and expenses necessitated by transfer of venue and production of witnesses from a different vicinage, not to speak of the awkward and improbable situation of two of the same cases being each consolidated with itself and with the court having to resolve all? Shall they be allowed to proceed on independent trial utilizing the same evidence or shall the proceedings therein be indefinitely suspended to await the ultimate outcome of the first? The absurdity of having to be unnecessarily confronted with the aforesaid options is further underscored by the fact that howsoever the first case is disposed of, the other two cases would be barred by previous jeopardy under Section 7 of Rule 117, hence the independent proceedings that may have been conducted or the suspension thereof in those two cases would be completely pointless and unnecessary. Permitting the accused to move to quash the said two cases after he had pleaded to the first would have obviated the impasse created by requiring a prior final decision and spared him the vexation and expenses for fees and bail in the other two improvident prosecutions. ..........MISSING LINE.......... This is where Section 3(h) of the same rule could have been overlooked, misconstrued, or altogether ignored. One final word. The majority points out that it was obiter for the Court to rule in People vs. City Court of Manila, Branch XI 14 that the accused therein was in double jeopardy because he had already been charged for the same offense, emphasizing that such imprecision of language would give the impression that one simply charged may claim possible jeopardy in another case. This writer is aware that the ponente therein committed an innocent oversight hence in my comment thereon, as quoted in the main decision, it was explained that this would be so as long as the accused had entered his plea therein. Aware that such statement in that case could further be, as it is now, blandly dismissed as obiter, I also made the qualification that my comment was as the doctrine "would now appear" based on the holding in said case. Yet, as a statement of a rule of procedure, I believe that, properly and completely expressed, the view of theponente in that case was in the right direction on that score. Also, we have held that while an obiter dictum is generally not binding as authority or precedent within the stare decisis rule, it may be followed if sufficiently persuasive. 15 I make this observation since it may also be argued that the present discussion regarding the bases of my dissent would be orbiter if we hold that in the present case the issue of double jeopardy is not really involved since the private

People vs. Pineda respondent is not being charged with a complex crime, the component felonies of which have been made subject of separate suits, but of two distinct and independent crimes.
Nonetheless, as ultimate arbiters of the law, we cannot and we should not continue to cleave with obstinate tenacity or persist in citing with rote-like consistency clearly inapposite or inapplicable doctrines catalogued in works notable not for logical analysis but by their reliance on the numerical weight of cases decided on the bases of disparate factual situations, or by reason of a slavish obsession for footnotes. Perpetuating a misconception spawned by the inertia of cavalier reliance on supposed precedents is a disservice to the doctrine of stare decisis. As earlier stated, therefore, since my present dissent is on an issue which I believe this court should soonest clarify, on the considerations hereinbefore expressed. I categorically submit that where an accused has validly pleaded to the appropriate indictment sufficiently charging him with an offense in a court of competent jurisdiction, he can seek and obtain the quashal of a subsequent charge for the same offense on the ground of double jeopardy even before the final disposition of the first case.

People vs.Velasco

EN BANC

[G.R. No. 127444. September 13, 2000]

PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. TIRSO D. C. VELASCO in his capacity as the Presiding Judge, RTC-Br. 88, Quezon City, and HONORATO GALVEZ, respondents. DECISION
BELLOSILLO, J.:

This case nudges the Court to revisit the doctrine on double jeopardy, a revered constitutional safeguard against exposing the accused to the risk of answering twice for the same offense. In this case, after trial on the merits, the accused was acquitted for insufficiency of the evidence against him in the cases for murder and frustrated murder (although his co-accused was convicted), and finding in the illegal carrying of firearm that the act charged did not constitute a violation of law. But the State through this petition for certiorari would want his acquittal reversed. We narrate a brief factual backdrop. The idyllic morning calm in San Ildefonso, Bulacan, a small town north of Manila, was shattered by gunshots fired in rapid succession. The shooting claimed the life of young Alex Vinculado and seriously maimed his twin brother Levi who permanently lost his left vision. Their uncle, Miguel Vinculado, Jr. was also shot. A slug tunneled through his right arm, pierced the right side of his body and burrowed in his stomach where it remained until extracted by surgical procedure. As a consequence, three (3) criminal Informations - one (1) for homicide and two (2) for frustrated homicide - were originally filed before the Regional Trial Court of Malolos, Bulacan, against Honorato Galvez, Mayor of San Ildefonso, and Godofredo Diego, a municipal employee and alleged bodyguard of the mayor. On 14 December 1993, however, the charges were withdrawn and a new set filed against the same accused upgrading the crimes to murder (Crim. Case No. 4004-M-93) and frustrated murder (Crim. Cases Nos. 4005-M-93 and 4006-M-93). Mayor Galvez was charged, in addition, with violation of PD 1866 (Crim. Case No. 4007-M-94) for unauthorized carrying of firearm outside his residence; hence, a fourth Information had to be filed. After a series of legal maneuvers by the parties, venue of the cases was transferred to the Regional Trial Court of Quezon City, Metro Manila. There the cases were stamped with new docket numbers (Nos. Q-94-55484, Q-94-55485, Q-94-55486 and Q-94-55487, respectively), and raffled to Branch 103 presided over by Judge Jaime Salazar, Jr. In the course of the proceedings, the judge inhibited himself and the cases were re-raffled to respondent Judge Tirso D.C. Velasco of Branch 89. On 8 October 1996 a consolidated decision on the four (4) cases was promulgated. The trial court found the accused Godofredo Diego guilty beyond reasonable doubt of the crimes of murder and double frustrated murder. However, it acquitted Mayor Honorato Galvez of the same charges due to insufficiency of evidence. It also absolved him from the charge of illegal carrying of firearm upon its finding that the act was not a violation of law.

People vs.Velasco

The acquittal of accused Honorato Galvez is now vigorously challenged by the Government before this Court in a Petition for Certiorari under Rule 65 of the Rules of Court and Sec. 1, Art. VIII, of the Constitution. It is the submission of petitioner that the exculpation of the accused Galvez from all criminal responsibility by respondent Judge Tirso Velasco constitutes grave abuse of discretion amounting to lack of jurisdiction. Allegedly, in holding in favor of Galvez, the judge deliberately and wrongfully disregarded certain facts and evidence on record which, if judiciously considered, would have led to a finding of guilt of the accused beyond reasonable doubt. Petitioner proposes that this patently gross judicial indiscretion and arbitrariness should be rectified by a re-examination of the evidence by the Court upon a determination that a review of the case will not transgress the constitutional guarantee against double jeopardy. It is urged that this is necessary because the judgment of acquittal should be nullified and substituted with a verdict of guilt. The main hypothesis of the Government is that elevating the issue of criminal culpability of private respondent Galvez before this Tribunal despite acquittal by the trial court should not be considered violative of the constitutional right of the accused against double jeopardy, for it is now settled constitutional doctrine in the United States that the Double Jeopardy Clause permits a review of acquittals decreed by US trial magistrates where, as in this case, no retrial is required should judgment be overturned.[1]Since Philippine concepts on double jeopardy have been sourced from American constitutional principles, statutes and jurisprudence, particularly the case of Kepner v. United States,[2] and because similarly in this jurisdiction a retrial does not follow in the event an acquittal on appeal is reversed, double jeopardy should also be allowed to take the same directional course. Petitioner in this regard urges the Court to take a second look at Kepner, it being the "cornerstone of the battlement of the Double Jeopardy Clause" in the Philippines [3] and seriously examine whether the precedents it established almost a century ago are still germane and useful today in view of certain modifications wrought on the doctrine by the succeeding American cases of United States v. Wilson[4] and United States v. Scott.[5] Two (2) threshold issues therefore, interlocked as they are, beg to be addressed. One is the propriety of certiorari as an extraordinary mode of review under Rule 65 of the Rules of Court where the result actually intended is the reversal of the acquittal of private respondent Galvez. The other is the permissibility of a review by the Court of a judgment of acquittal in light of the constitutional interdict against double jeopardy. The recent untimely demise of respondent Galvez at the hands of alleged assassins (not discounting too the earlier dismissal of respondent judge from the service) may arguably have rendered these matters moot and academic, thus calling for a dismissal of the petition on this basis alone. The Court however is not insensitive to nor oblivious of the paramount nature and object of the pleas forcefully presented by the Government considering especially the alleged new directions in American jurisprudence taken by the doctrine of double jeopardy. We are thus impelled to respond to the issues advanced by petitioner for these bear unquestionably far-reaching contextual significance and implications in Philippine juristic philosophy and experience, demanding no less, explicit and definitive rulings. For it may be argued from a historico-analytical perspective that perhaps none of the constitutionally ensconced rights of men has followed a more circuitous and tortuous route in the vast sea of jurisprudence than the right of a person not to be tried or prosecuted a second time for the same offense.[6] This prohibition does not consist merely of one rule but several, each rule applying to a different situation, each rule marooned in a sea of exceptions.[7] It must have been this unique transpiration that prompted even the redoubtable Mr. Justice Rehnquist of the U.S. Supreme Court to remark in Albernaz v. United States[8] that "the decisional law (in the area of double jeopardy) is a veritable Sargasso Sea which could not fail to challenge the most intrepid judicial navigator." It is therefore necessary that, in forming a correct perspective and full understanding of the doctrine on

People vs.Velasco

double jeopardy and the rules so far established relative to the effect thereon of appeals of judgments of acquittal, a compendious review of its historical growth and development be undertaken. This approach is particularly helpful in properly situating and analyzing landmark interpretive applications of the doctrine in light of the varying legal and factual milieu under which it evolved. Jeopardy, itself "a fine poetic word," [9] derives from the Latin "jocus" meaning joke, jest or game,[10] and also from the French term "jeu perdre" which denotes a game that one might lose. Similarly, the Middle English word "iuparti" or "jupartie" means an uncertain game.[11] The genesis of the concept itself however rests deep in the ancient Grecian view of tragedy and suffering and in the old Roman legal concepts of punishment. Greek law bound prosecutor and judge to the original verdict as can be seen in the remark of Demosthenes in 355 B. C. that "the laws forbid the same man to be tried twice on the same issue."[12] The Justinian Digest[13] providing that "(a) governor should not permit the same person to be again accused of crime of which he has been acquitted," [14] suggests certain philosophical underpinnings believed to have been influenced by works of the great Greek tragedians of the 5th century B.C. reflecting mans "tragic vision" or the tragic view of life. For the ancient Greeks believed that man was continuously pitted against a superior force that dictated his own destiny. But this prevailing view was not to be taken in the sense of man passing from one misfortune to another without relief, as this idea was repugnant to Greek sensibilities. Rather, it expressed a universal concept of catharsis or vindication that meant misfortune resolving itself into a final triumph, and persecution, into freedom and liberation. To suffer twice for the same misfortune was anathema to ancient thought. The 18th century B. C. Babylonian king and lawgiver Hammurabi recognized that humans could err in prosecuting and rendering judgment, thus limits were needed on prosecutors and judges. A gruesome but effective way of preventing a second trial by the same prosecutor after an acquittal can be found in the first law of the Hammurabic Code: "If a man has accused a man and has charged him with manslaughter and then has not proved [it against him], his accuser shall be put to death." [15] The repugnance to double trials strongly expressed by the Catholic Church is consistent with the interpretation by St. Jerome in 391 A. D. of the promise by God to his people through the prophet Nahum that "(a)ffliction shall not rise up the second time" [16] and "(t)hough I have afflicted thee, I will afflict thee no more."[17] Taken to mean that God does not punish twice for the same act, the maxim insinuated itself into canon law as early as 847 A. D., succintly phrased as "(n)ot even God judges twice for the same act."[18] The most famous cause clbre on double jeopardy in the Middle Ages was the dispute between the English King Henry II and his good friend, Thomas Becket, Archbishop of Canterbury. Henry wished to continue the observance of certain customs initiated by his predecessors called " avitae consuetudines," one of the known purposes of which was that clerics convicted of crimes before Church courts be delivered to lay tribunals for punishment. He asserted in the Constitutions of Clarendon that the clergy were also subject to the kings punishment. This was met with stinging criticism and stiff opposition by the Archbishop who believed that allowing this practice would expose the clergy to double jeopardy. The issue between the two erstwhile friends was never resolved and remained open-ended, for Thomas was later on mercilessly murdered in his cathedral, allegedly at the instance of his king. [19] It was in England though, a century ago, that double jeopardy was formally institutionalized "as a maxim of common law"[20] based on the universal principles of reason, justice and conscience, about which the Roman Cicero commented: "Nor is it one thing at Rome and another at Athens, one now and another in the future, but among all nations, it is the same." [21] But even as early as the 15th century, the English courts already began to use the term "jeopardy" in connection with the doctrine against multiple trials.[22] Thereafter, the principle appeared in the writings of Hale (17th c.), Lord Coke (17th c.) and Blackstone (18th c.).[23] Lord Coke for instance described the protection afforded by the rule as a function of three (3) related common law pleas: autrefois acquit, autrefois convict and pardon.[24] In Vauxs Case,[25] it was accepted as established that "the life of a man shall not be twice put in jeopardy for one

People vs.Velasco

and the same offense, and that is the reason and cause that autrefois acquitted or convicted ofthe same offense is a good plea x x x x" Blackstone likewise observed that the plea of autrefois acquit or a formal acquittal is grounded on the universal maxim of the common law of England that "(n)o man is to be brought into jeopardy of his life more than once for the same offense. And hence, it is allowed as a consequence that when a man is once fairly found not guilty upon any indictment, or other prosecution before any court having competent jurisdiction of the offense, he may plead such acquittal in bar of any subsequent accusation for the same crime.[26] The English dogma on double jeopardy, recognized as an indispensable requirement of a civilized criminal procedure, became an integral part of the legal system of the English colonies in America. The Massachusetts Body of Liberties of 1641, an early compilation of principles drawn from the statutes and common law of England, grandly proclaimed that " (n)o man shall be twise sentenced by Civill Justice for one and the same crime, offence or Trespasse" and that "(e)verie Action betweene partie and partie, and proceedings against delinquents in Criminall causes shall be briefly and destinctly entered on the Rolles of every Court by the Recorder thereof."[27]Ineluctably, this pronouncement became the springboard for the proposal of the First Congress of the United States that double jeopardy be included in
the Bill of Rights. It acknowledged that the tradition against placing an individual twice in danger of a second prosecution for the same offense followed ancient precedents in English law and legislation derived from colonial experiences and necessities. Providing abundant grist for impassioned debate in the US Congress, the proposal was subsequently ratified as part of the Fifth Amendment to the Constitution.

In 1817 the Supreme Court of Tennessee dismissed an appeal by the State after an acquittal from perjury, declaring that: A writ of error, or appeal in the nature of a writ of error, will not lie for the State in such a case. It is a rule of common law that no one shall be brought twice into jeopardy for one and the same offense. Were it not for this salutary rule, one obnoxious to the government might be harassed and run down by repeated attempts to carry on a prosecution against him. Because of this rule, a new trial cannot be granted in a criminal case where the defendant is acquitted. A writ of error will lie for the defendant, but not against him.[28] Verily, these concepts were founded upon that great fundamental rule of common law, "Nemo debet bis vexari pro una et eadem causa," in substance expressed in the Constitution of the United States as:"Nor shall any person be subject for the same offense, to be twice put into jeopardy of life or limb." It is in the spirit of this benign rule of the common law, embodied in the Federal Constitution - a spirit of liberty and justice, tempered with mercy - that, in several states of the Union, in criminal cases, a writ of error has been denied to the State. [29] The relationship between the prohibition against second jeopardy and the power to order a new trial following conviction or dismissal stirred a no small amount of controversy in United States v. Gibert.[30] There, Mr. Justice Story, on circuit, declared that "the court had no power to grant a new trial when the first trial had been duly had on a valid indictment before a court of competent jurisdiction." The opinion formulated was that the prohibition against double jeopardy applied equally whether the defendant had been acquitted or convicted. But it must be noted that even in those times, the power to grant a new trial in the most serious cases was already being exercised by many American courts, the practice having been observed from an early date, in spite of provisions of law against double jeopardy. [31] For this reason, the rule in Gibert was stoutly resisted.[32] As if to taunt Gibert, the 1839 case of United States v. Keen[33] declared that the constitutional provision did not prohibit a new trial on defendants motion after a conviction. InHopt v. Utah,[34] the defendant was retried three (3) times following reversals of his convictions. Then in 1896 the U.S. Supreme Court in United States v. Ball[35] affirmed that the double jeopardy rule did not prevent a second trial when, on appeal, a conviction had been set aside. It declared that a defendant who procured on appeal a reversal of a judgment against him could be tried anew upon the same indictment or upon another indictment for the same offense of which he had been convicted. This

People vs.Velasco

principle of autrefois convict was expanded nine (9) years later in Trono v. United States[36] where the Court affirmed the judgment of the Supreme Court of the Philippines by holding that "since the plaintiffs in error had appealed their convictions of the lower offense in order to secure a reversal, there was no bar to convicting them of the higher offense in proceedings in the appellate court that were tantamount to a new trial." Mr. Justice Peckham, holding for the Court, concluded that "the better doctrine is that which does not limit the court or the jury upon a new trial, to a consideration of the question of guilt of the lower offense of which the accused was convicted on the first trial, but that the reversal of the judgment of conviction opens up the whole controversy and acts upon the original judgment as if it had never been."[37] It was ratiocinated that the result was justified not only on the theory that the accused had waived their right not to be retried but also on the ground that "the constitutional provision was really never intended to x x x cover the case of a judgment x x x which has been annulled at the request of the accused x x x x" It must be stressed though that Ball also principally ruled that it had long been settled under the Fifth Amendment that a verdict of acquittal is final, ending a defendants jeopardy, and, even when not followed by any judgment, is a bar to a subsequent prosecution for the same offense. It is one of the elemental principles of our criminal law that the Government cannot secure a new trial by means of an appeal, even though an acquittal may appear to be erroneous. In 1891 the United States Judiciary Act was passed providing that appeals or writs of error may be taken from the district court or from the existing circuit courts direct to the Supreme Court in any case that involved the construction of the Constitution. The following year an issue was raised in United States v. Sanges[38] on whether this Act conferred upon the government the right to sue out a writ of error in any criminal case. In that case, existing rules on double jeopardy took a significant turn when the United States Supreme Court observed that while English law was vague on the matter, it had been settled by overwhelming American authority that the State had no right to sue out a writ of error upon a judgment in favor of the defendant in a criminal case, except under and in accordance with express statutes, whether that judgment was rendered upon a verdict of acquittal, or upon the determination by the court of a question of law. The Court noted that in a few states, decisions denying a writ of error to the State after a judgment for the defendant on a verdict of acquittal proceeded upon the ground that to grant it would be to put him twice in jeopardy, in violation of the constitutional provision.[39] Sanges therefore fixed the rule that absent explicit legislative authority, the United States Government had no right of appeal in criminal cases in case of an acquittal as it would expose the defendant twice to jeopardy. Notably, however, in 1892 the Attorneys General of the United States began to recommend the passage of legislation allowing the Government to appeal in criminal cases. Their primary objective was to resist the power of a single district judge (under the law then obtaining) by dismissing an indictment to defeat any criminal prosecution instituted by the Government. No action was taken on the proposal until 1906 when President Theodore Roosevelt in his annual message to the US Congress demanded the enactment of legislation on the matter. Consequently, on 2 March 1907 such legislative authority was provided when the Criminal Appeals Act became a law[40]40 Ch. 2564, 34 Stat. 1246.40 permitting the United States to seek a writ of error from the Supreme Court from any decision dismissing all indictment on the basis of the "invalidity or construction of the statute upon which the indictments is founded."[41] The law narrowed the right to appeal by the Government to cases in wh ich the ground of the District Courts decision was invalidity or construction of the statute upon which the charge was founded, and that a verdict in favor of the defendant based on evidence could not be set aside on appeal no matter how erroneous the legal theory upon which it may be based. For these purposes, it made no difference whether the verdict be the result of the jurys decision or that of the judge. In other words, Government could appeal from a decision dismissing an indictment or arresting judgment on the basis of the statutory invalidity or misconstruction of the pertinent criminal statute and from a decision sustaining a special plea in bar, so long as the defendant would not be put in jeopardy.[42]

People vs.Velasco

On 10 December 1898 the Philippine Islands was ceded by Spain to the United States by virtue of the Treaty of Paris of 1898 which was ratified by the State Parties on 11 April 1899. The Islands was placed under military rule until the establishment of the Philippine Commission in 1902. On 23 April 1900 the military government issued General Order No. 58 which amended the Code of Criminal Procedure then in force by, among others, extending to the Islands the double jeopardy provision under the Fifth Amendment of the US Constitution. This was pursuant to the 7 April 1900 Instructions of President McKinley issued to the Philippine Commission headed by William Howard Taft. The Instructions read in part: x x x the Commission should bear in mind, and the people of the Islands should be made to understand, that there are certain great principles of government which have been made the basis of our governmental system, which we deem essential to the rule of law x x x and maintained in their islands for the sake of their liberty and happiness, however much they may conflict with the customs or laws of procedure with which they are familiar x x x x Upon every division and branch of the Government of the Philippines therefore must be imposed these inviolable rules: x x x that x x x no person shall be put twice in jeopardy for the same offense x x x x"[43] General Order No. 58 was amended by Act No. 194 which permitted an appeal by the government after acquittal. The Philippine Civil Government Act of 1 July 1902 of the U.S. Congress repealed the Act, adopted and restored the same principle in Gen. Order No. 58 as enunciated in the Fifth Amendment and in McKinleys Instructions by providing immunity from second jeopardy for the same criminal offense. It did not take long however for the meaning and significance of the doctrine held forth in McKinleys Instructions to be placed under severe test and scrutiny. In 1901 Mr. Thomas E. Kepner, a practicing lawyer in Manila, Philippines, was charged with embezzlement of funds (estafa). He was tried by a court of first instance, minus a jury, and was acquitted of the crime. The U.S. Government appealed to the Supreme Court of the Philippine Islands and judgment was reversed. Kepner was sentenced with imprisonment and suspended from public office or place of trust. Questioning his conviction before the US Supreme Court, Kepner argued that the appeal by the US government to the Philippine Supreme Court of his judgment of acquittal constituted double jeopardy construed in light of existing US jurisprudence. On the other hand, the Attorney General for the Philippines and the Solicitor General of the United States jointly contended that the Philippine Bill of 1 July 1902 which included the prohibition against double jeopardy should be construed from the perspective of the system of laws prevailing in the Philippines prior to its cession to the United States. Under this system, the Audiencia (Supreme Court) could entertain an appeal of a judgment of acquittal since the proceedings before it were regarded not as a new trial but an extension of preliminary proceedings in the court of first instance. The entire proceedings constituted one continuous trial and the jeopardy that attached in the court of first instance did not terminate until final judgment had been rendered by theAudiencia. Double jeopardy was described not only in the Spanish law Fuero Real[44] as: After a man accused of any crime has been acquitted by the court, no one can afterwards accuse him of the same offense (except in certain specified cases), but also in the Siete Partidas[45] which provided that: If a man is acquitted by a valid judgment of any offense of which he has been accused, no other person can afterwards accuse him of the offense x x x x Under this system of law, a person was not regarded as jeopardized in the legal sense until there had been a final judgment in the court of last resort. The lower courts then were deemed examining courts, exercising preliminary jurisdiction only, and the accused was not finally convicted or acquitted until the case had been passed upon in the Audiencia or Supreme Court, whose judgment was subject to review by the Supreme Court in Madrid (Spain) for errors of law, with power to grant a new trial. The U.S. Supreme Court however threw out the Governments argument and held that the proceedings after acquittal had placed the accused Kepner twice in jeopardy.It declared in no uncertain terms that the appeal of the judgment of conviction was in essence a trial de novo and that, whatever the

People vs.Velasco

Spanish tradition was, the purpose of Congress was to carry some at least of the essential principles of American constitutional jurisprudence to the Islands and to engraft them upon the law of these people newly subject to its jurisdiction. There was little question therefore that Kepner soldered into American jurisprudence the precedent that as to the defendant who had been acquitted by the verdict duly returned and received, the court could take no other action than to order his discharge. x x x (I)t is then the settled law of this court that former jeopardy includes one who has been acquitted by a verdict duly rendered, although no judgment be entered on the verdict, and it was found upon a defective indictment. The protection is not x x x against the peril of second punishment, but against being tried again for the same offense."[46] This doctrine was echoed in United States v. Wills[47] where the Court further clarified that jeopardy implies an exposure to a lawful conviction for an offense of which a person has already been acquitted x x x x It was reiterated in 1957 in Green v. United States[48] in which Mr. Justice Black, writing for the Court, professed that the constitutional prohibition against double jeopardy was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense. Thus, under the Fifth Amendment, a verdict of acquittal was considered final, ending the accuseds jeopardy and that once a person has been acquitted of an offense, he cannot be prosecuted again on the same charge. American jurisprudence on the effect of appealed acquittals on double jeopardy since then sailed on, following the main sea lanes charted by Kepner, but not without encountering perturbance along the way. For it may be mentioned, albeit en passant, that the case of Bartkus v. Illinois[49] did cause some amount of judicial soul-shaking in 1959 when it burst into the scene. Alfonse Bartkus was tried before a federal district court in Illinois and was later acquitted by the jury. Less than a year later, Bartkus was indicted this time by an Illinois grand jury on facts substantially identical to those of the federal charge and was subsequently convicted. His conviction was affirmed by the Illinois Supreme Court. On certiorari, the U.S. Supreme Court, by a close vote of 5 to 4, affirmed the conviction. The Court, speaking through Mr. Justice Frankfurter, declared that the Fifth Amendments double jeopardy provision was inapplicable to states so that an acquittal of a federal indictment was no bar to a prosecution by a state based on the same charge. Since there was no proof offered to show that the participation of the federal authorities in the Illinois state prosecution was of such nature as to render the state proceedings a mere cover for a federal prosecution to render the state indictment essentially a constitutionally prohibited second prosecution, no double jeopardy attached. Mr. Justice Black dissented, joined in by Mr. Chief Justice Warren and Mr. Justice Douglas, with Mr. Justice Brennan writing a separate dissenting opinion. Black rued that the Courts ruling by a majority of one only resulted in "further limiting the already weakened constitutional guarantees against double prosecution," citing the earlier case of United States v. Lanza,[50] where the Court allowed the federal conviction and punishment of a man previously convicted and punished for identical acts by a state court. The dissent called attention to the fact that in Bartkus, for the first time in its history, the Court allowed the state conviction of a defendant already acquitted of the same offense in the federal court. This, Mr. Justice Black asserted, was unacceptable, for as the Court previously found in Palko v. Connecticut,[51] "double prosecutions for the same offense are so contrary to the spirit of our free country that they violate even the prevailing view of the Fourteenth Amendment since some of the privileges and immunities of the Bill of Rights . . . have been taken over and brought within the Fourteenth Amendment by process of absorption x x x x One may infer, from the fewness of the cases, that retrials after acquittal have been considered particularly obnoxious, worse even, in the eyes of many, than retrials after conviction." Whether such forceful pronouncements steered back into course meandering views on double jeopardy is open to question. Nonetheless, the case of Fong Foo v. United States,[52] decided per curiam, reaffirmed the pronouncements in Ball and Kepner that "the verdict of acquittal was final, and could not

People vs.Velasco

be reviewed x x x without putting (the petitioners) twice in jeopardy, and thereby violating the Constitution." In the meantime, from 1907 up to 1970 the Criminal Appeals Act underwent significant alterations. The 1942 amendment of its Section 682 permitted for the first time appeals to the circuit appeals court from orders sustaining demurrer to indictment in cases not directly appealable to the Supreme Court.[53] However, due to the many modifications the law was subjected to, construction and interpretation became more laborious, effectively transforming appeals into highly technical procedures. As such, the Criminal Appeals Act developed into a judicial bete noire, for even the U.S. Supreme Court itself had "to struggle in a number of occasions with the vagaries of the said Act."[54] In one of those unhappy efforts, it concluded that the Act was "a failure x x x a most unruly child that has not improved with age."[55] The U.S. Congress finally got rid of the dismal statute in 1970 and replaced it with a new Criminal Appeals Act intended to broaden the right of Government to appeal whenever the Constitution would permit. It was apparent that the legislative body left to the courts the prerogative to draw the constitutional limits of double jeopardy rather than define them itself. Since then, pronouncements by the courts on the jouble jeopardy guarantee of the Fifth Amendment focused on three (3) related protections: against a second prosecution for the same offense after acquittal; against a second prosecution for the same offense after conviction; and, against multiple punishments for the same offense.[56] In Wilson,[57] the Court expressed that the interests underlying these three (3) protections are quite similar. Thus, when a defendant has been once convicted and punished for a particular crime, principles of fairness and finality require that he be not subjected to the possibility of further punishment by being tried or sentenced for the same offense.[58] And when a defendant has been acquitted of an offense, the Clause guarantees that the State shall not be permitted to make repeated attempts to convict him, "thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty."[59] It can thus be inferred from these cases that the policy of avoiding multiple trials has been considered paramount so that exceptions to the rule have been permitted only in few instances and under rigid conditions. Accordingly, in United States v. Scott[60] the US Supreme Court synthesized two (2) venerable principles of double jeopardy jurisprudence: first, the successful appeal of a judgment of conviction on any ground other than the insufficiency of the evidence to support the verdict poses no bar to further prosecution on the same charge; andsecond, a judgment of acquittal, whether based on a jury verdict of not guilty or on a ruling by the court that the evidence is insufficient to convict, may not be appealed and terminates the prosecution when a second trial would be necessitated by a reversal .[61] It would seem that the conditionality of when a second trial would be necessitated by a reversal was attached thereto because ordinarily, the procedure obtaining was that if on appeal a judgment of acquittal is reversed, i. e., a finding is had against the defendant, a remand of the case for another trial may be allowed if needed. At this juncture, it must be explained that under existing American law and jurisprudence, appeals may be had not only from criminal convictions but also, in some limited instances, from dismissals of criminal charges, sometimes loosely termed "acquittals." But this is so as long as the judgments of dismissals do not involve determination of evidence, such as when the judge: (a) issues a post-verdict acquittal, i.e., acquits the defendant on a matter of law after a verdict of guilty has been entered by a trier of facts (a jury); (b) orders the dismissal on grounds other than insufficiency of evidence, as when the statute upon which the indictment was based is defective; (c) conducts a judicial process that is defective or flawed in some fundamental respect, such as incorrect receipt or rejection of evidence, incorrect instructions, or prosecutorial misconduct; (d) issues an order arresting judgment, i.e., an act of

People vs.Velasco

a trial judge refusing to enter judgment on the verdict because of an error appearing on the face of the record that rendered the judgment;[62] or, (e) pronounces judgment on a special plea in bar (a non obstante plea) - one that does not relate to the guilt or innocence of the defendant, but which is set up as a special defense relating to an outside matter but which may have been connected with the case.[63] Interestingly, the common feature of these instances of dismissal is that they all bear on questions of law or matters unrelated to a factual resolution of the case which consequently, on appeal, will not involve a review of evidence. Its logical effect in American law is to render appeals therefrom non-repugnant to the Double Jeopardy Clause. This contextual situation in which appeals from dismissals of criminal cases are allowed under American rules of procedure does not obtain in the Philippines. To be sure, United States v. Scott positively spelled out that if an acquittal was based on an appreciation of the evidence adduced, no appeal would lie. Mr. Justice Rehnquist explained that what may seem superficially to be a "disparity in the rules governing a defendants liability to be tried again" refers to the underlying purposes of the Double Jeopardy Clause. He elaborated that "(a)s Kepner and Fong Foo illustrate, the law attaches particular significance to an acquittal. To permit a second trial after an acquittal however mistaken x x x would present an unacceptably high risk that the Government, with its vastly superior resources, might wear down the defendant so that even though innocent he may be found guilty. x x x x On the other hand, to require a criminal defendant to stand trial again after he has successfully invoked the statutory right of appeal to upset his first conviction is not an act of governmental oppression of the sort against which the x x x Clause was intended to protect." In proposing a re-evaluation of Philippine jurisprudence on double jeopardy, petitioner insists that Wilson and Scott have unquestionably altered the seascape of double jeopardy previously navigated by Kepner and Ball. Using as its flagship the pronouncement in Wilson that appeals of acquittal are possible provided the accused will not be subjected to a second trial, it argues that this should apply to the case at bar because, anyway, a review of the acquittal of private respondent Honorato Galvez will not result in another trial inasmuch as the Court will only have to examine the evidence adduced below to pass final judgment on the culpability of the accused. Petitioners own hermeneutic sense of the phrase "another trial" is that which solely adverts to a proceeding before a competent trial court that rehears the case and receives evidence anew to establish the facts after the case has been finally disposed of by the Supreme Court. Obviously, it adheres to the Holmesian hypothesis inKepner and, for that matter, the concept under Spanish law then applicable in the Philippines before the American colonization, that a trial consists of one whole continuing process from reception of evidence by a trier of facts up to its final disposition by the Supreme Court. But petitioner conveniently forgets that this theory has been consistently spurned by both American and Philippine jurisprudence that has faithfully adhered to the doctrine that an appeal of a judgment after the defendant had been acquitted by the court in a bench trial is, quintessentially, a new trial. In Kepner, the Court regarded the two (2) events, i. e., trial by the lower court and the appellate proceedings, as equivalent to two (2) separate trials, and the evil that the Court saw in the procedure was plainly that of multiple prosecutions.[64] Although Kepnertechnically involved only one proceeding, the Court deemed the second factfinding, that is, the review by the appellate court, as the equivalent of a second trial. Accordingly, in subsequent cases, the Court has treated the Kepner principle as being addressed to the evil of successive trials.[65] No less than the case of Wilson,[66] petitioners main anchor for its propositions, affirms this rule. There, the Court emphasized that it has, up to the present, rejected the theory espoused by the dissenting Mr. Justice Holmes in Kepner that " a man cannot be said to be more than once in jeopardy in the same cause however often he may be tried. The jeopardy is one continuing jeopardy, from its beginning to the end of the cause." It declared unequivocally that "we continue to be of the view that the policies underlying the Double Jeopardy Clause militate against permitting the Government to appeal

People vs.Velasco

after a verdict of acquittal." Wilson therefore pronounced that if acquittal is declared on the basis of evidence adduced, double jeopardy attaches for that particular cause. To explain further, Wilson involved an appeal by Government of a post-verdict ruling of law issued by the trial judge resulting in the acquittal of the defendant due to pre-indictment delay (a delay between the offense and the indictment prejudiced the defendant) after a verdict of guilty had been entered by the jury. But it was not an acquittal that involved factual resolution. It was one anchored on an extraneous cause. Factual resolution is defined in United States v. Sorenson[67] following the rulings in Ball, Fong Foo and Sisson as the finding that government failed to prove all the elements of the offense . It is clear therefore that the acquittal of Wilson, not being based on evidence, could be appealed. The rule therefore fixed in Wilson is that where a judge holds for the defendant on a ruling of law, and not on the basis of evidence, after a jury entered a verdict of guilty, the prosecution may appeal the acquittal without violating double jeopardy, as this is allowed under the pertinent law. [68] This is so since no second trial will ensue, as a reversal on appeal would merely reinstate the jurys verdict. [69] And if the prosecution is upheld, the case simply goes back to the trial court for disposition of the remaining matters. It bears emphasis that in Wilson, no double jeopardy problem was presented because the appellate court, upon reviewing the asserted legal errors of the trial judge, could simply order the jurys guilty verdict reinstated, no new factfinding would be necessary, and the defendant would not be put twice in jeopardy.[70] The case of Scott, also considerably relied upon by petitioner, involved an accused who, having been indicted for several offenses, himself moved for the dismissal of two (2) counts of the charges on the ground that his defense was prejudiced by pre-indictment delay. The trial judge granted the motion. Government appealed the dismissals but the appellate court rejected the appeal on the basis of double jeopardy. This time the US Supreme Court reversed, holding that "(w)here a defendant himself seeks to avoid his trial prior to its conclusion by a motion for a mistrial, the Double Jeopardy Clause is not offended by a second prosecution. Such a motion by the defendant is deemed to be a deliberate election on his part to forego his valued right to have his guilt or innocence determined by the first trier of facts." The inapplicability of this ruling to the case at bar is at once discernible. The dismissal of the charges against private respondent Galvez was not upon his own instance; neither did he seek to avoid trial, as it was in Scott, to be considered as having waived his right to be adjudged guilty or innocent. Here, trial on the merits was held during which both government and accused had their respective day in court. We are therefore insufficiently persuaded to adopt petitioners concept of "another trial" because, as discussed above, it disregards the contextual interpretation of the term in light of the legal and factual morphology of the double jeopardy principle obtaining in Wilson and Scott. To sum up, in the cause before us, the records show that respondent trial judge based his finding of acquittal, no matter how erroneous it might seem to petitioner, upon the evidence presented by both parties. The judgment here was no less than a factual resolution of the case. Thus, to the extent that the post-verdict acquittal in Wilson was based on a ruling of law and not on a resolution of facts,Wilson is not, to reiterate, pertinent to nor persuasive in the case at bar. The same observation holds true for Scott. That it was the defendant who secured the dismissal of the charges against him without any submission to either judge or jury as to his guilt or innocence, but on a ground totally outside evidentiary considerations, i.e., preindictment delay, definitely forecloses the applicability, if not relevance, of Scott to the instant case. Wilson, Scott and all other pertinent American case law considered, it still behooves us to examine if at this time there is need to rethink our juristic philosophy on double jeopardy vis--vis acquittals. In this respect, it would be instructive to see how Philippine law and jurisprudence have behaved since Kepner. Has the principle since then beneficially evolved, or has it remained an "unruly child that has not improved with age?"

People vs.Velasco

The moorings of double jeopardy in the Philippines, as Mr. Justice Manuel Moran observed in People v. Tarok,[71] are not indigenous but are a matter of constitutional or statutory history. Enunciated in the Constitution of the United States, from there it found its way into this country, first, in the Philippine Bill of 1902, then in the Jones Law of 1916, and finally, in the 1935 Philippine Constitution. Being thus a mere recognition of the maxim of the common law, and adopted from the Constitution of the United States, the principle of double jeopardy followed in this jurisdiction the same line of development - no narrower nor wider - as in the Anglo-Saxon jurisprudence. While some reservations may be had about the contemporary validity of this observation considering the variety of offsprings begotten, at least in the United States, by the mother rule since then, perhaps it is safer to say that not much deviation has occurred from the general rule laid out in Kepner. For Kepner may be said to have been the lighthouse for the floundering issues on the effect of acquittals on jeopardy as they sail safely home. The cases of People v. Bringas,[72] People v. Hernandez,[73] People v. Montemayor,[74] City Fiscal of Cebu v. Kintanar,[75] Republic v. Court of Appeals,[76] and Heirs of Tito Rillorta v. Firme,[77] to name a few, are illustrative. Certainly, the reason behind this has not been due to a stubborn refusal or reluctance to keep up with the Joneses, in a manner of speaking, but to maintain fidelity to the principle carefully nurtured by our Constitution, statutes and jurisprudence. As early as Julia v. Sotto[78] the Court warned that without this safeguard against double jeopardy secured in favor of the accused, his fortune, safety and peace of mind would be entirely at the mercy of the complaining witness who might repeat his accusation as often as dismissed by the court and whenever he might see fit, subject to no other limitation or restriction than his own will and pleasure. The 1935 Philippine Constitution provided in its Sec. 20, Art. III, that "(n)o person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act." The discussions by the members of the Constitutional Convention of 1934 on the effect on double jeopardy of an appeal from a judgment of acquittal are enlightening. Foreclosing appeal on a judgment of acquittal was recognized by the Convention and the proposal to make an appeal from acquittal permissible even only "on questions of law provided that a verdict in favor of the defendant shall not be set aside by reason thereof" was strongly voted down. Thus MR. GULLAS: Dear Colleagues x x x x I wish to summarize our points. The amendment is commendable, but we submit that the reason against far outweighs the reason in favor of it. In the first place, it would tend to multiplicity of suits and thus increase the burden of the Supreme Court. Second, suits will be expensive if we meet fiscals who have an exaggerated opinion of themselves, who have more ego than gray matter or more amor propio. In the third place, as has been stated by a certain Gentleman, the provision would convert the Supreme Court into a sort of academy of consulting body. In the fourth place, as pointed out by Mr. Sevilla, fights in the Supreme Court would be one-sided.In the fifth place, as demonstrated by Delegate Labrador, the matter should be procedural rather than constitutional. And lastly, as explained by Delegate Singson Encarnacion, should the Supreme Court reverse the judgment of the lower court, the defendant would suffer morally for the rest of his life. He would walk around under a veil of humiliation, carrying with him a stigma. For all these reasons, Mr. President, we oppose the amendment. PRESIDENT: We can vote on the amendment. (Various delegates: YES). Those who are in favor of the amendment please say YES. (A minority: YES). Those against the amendment say NO. (A majority: NO). The amendment is rejected x x x x

(1934 Constitutional Convention Record, Journal No. 95, November 24, 1934, p. 361)
The case of People v. Bringas[79] was the first case to be decided under this Constitution pertinent to the matter at hand. There the Supreme Court, guided by Kepner, cited its finding in United States v. Tam

People vs.Velasco

Yung Way[80] against the right of appeal by the government from a judgment discharging the defendant in a criminal case after he has been brought to trial, whether defendant was acquitted on the merits or whether his discharge was based upon the trial courts conclusion of law that the trial had failed for some reason to establish his guilt as charged. The Bill of Rights of the 1973 Constitution, specifically Sec. 22, Art. IV thereof, reproduced verbatim the same double jeopardy provision of the 1935 Constitution. So did the 1987 Freedom Constitution drafted by the 1986 Constitutional Commission. Noteworthy is that during the deliberations by the 1986 Constitutional Commission attempts were made to introduce into the Fundamental Law the right of government to appeal verdicts of acquittal promulgated by trial courts. The proposed text for Sec. 14, Art. VIII, on the Judicial Department read as follows -

Sec. 12. - x x x x An appeal by the State and/or offended party from a judgment of acquittal may be allowed in the discretion of the Supreme Court by a petition for review on certiorari on the ground that it is manifestly against the evidence with grave abuse of discretion amounting to lack of jurisdiction.[81]
This proposal was strongly opposed, the controlling consideration as expressed by Commissioner Rustico de los Reyes being the "inequality of the parties in power, situation and advantage in criminal cases where the government, with its unlimited resources, trained detectives, willing officers and counsel learned in the law, stands arrayed against a defendant unfamiliar with the practice of the courts, unacquainted with their officers or attorneys, often without means and frequently too terrified to make a defense, if he had one, while his character and his life, liberty or property rested upon the result of the trial."[82] Commissioner Joaquin Bernas likewise articulated his fear that we could be subjecting an accused individual to a very serious danger of harassment from a prosecutor x x x x The harm, however, which will follow from waving this flag of possibility of appeal x x x could be much more than letting a guilty person go."[83] Put to a vote, the proposal was defeated.[84] Then again, during the debates on double jeopardy under Sec. 23, Art. III, on the Bill of Rights of the Constitution, Commissioner Ambrosio B. Padilla reopened the matter already settled at the deliberations on the article on the Judiciary. The following exchanges ensued:
MR. PADILLA. x x x On Section 23, on double jeopardy, there was Davide resolution which allowed an appeal in a judgment of acquittal in a criminal case that states: An acquittal by a trial court is, however, appealable provided that in such event, the accused shall not be detained or put up bail. This has been deleted by the Commission x x x x FR. BERNAS. Yes. MR. PADILLA. I recall that when this same idea, but in different phraseology, was presented and approved by the Committee on the Judiciary, the great objection was that it would violate the immunity against double jeopardy. But I recall, the sponsor admitted, after I had explained the day before, that it did not violate double jeopardy but it was unnecessary and harmful. What is the real position, Mr. Presiding Officer? Is it in violation of double jeopardy or is it just because it need not be stated in the Bill of Rights nor in the Article on the Judiciary? FR. BERNAS: I explained my position on that, Mr. Presiding Officer, when we considered the matter in the Article on the Judiciary. The position I took was that it was not a departure from existing jurisprudence. In fact, it was more strict than existing jurisprudence in that it required not just abuse of discretion but it also required that the judgment be clearly against the evidence.

People vs.Velasco MR. PADILLA. That is correct, Mr. Presiding Officer, because we want to make the exercise of that right by the state or offended party restrictive not only through a petition for review on certiorari in the discretion of the Supreme Court which may dismiss it outright, but also on certain grounds that are really covered by "in excess or lack of jurisdiction." But my common impression, Mr. Presiding Officer, is that most lawyers are of the opinion that when a judgment of acquittal is rendered by a trial court, that is final, executory and not appealable. Does not the sponsor think, Mr. Presiding Officer, an appeal from an arbitrary judgment of acquittal rendered by a few corrupt judges of the offended party or the state will improve the administration of justice? FR. BERNAS. Mr. Presiding Officer, I have expressed my position on this when we voted on Third Reading on the Article on the Judiciary. But if the Commissioner wants to raise the matter for reconsideration, he can present a motion on the floor.

Padilla did not ask for a reconsideration.[85] The Rules of Court on Criminal Procedure relative to double jeopardy and the effect thereon of acquittals adhere strictly to constitutional provisions. The pertinent portions of Sec. 7 of Rule 117 thereof provide -

Sec. 7. Former conviction or acquittal; double jeopardy. - When an accused has been convicted or acquitted, or the case against him dismissed or otherwise terminated without his express consent by a court of competent jurisdiction, upon a valid complaint or information or other formal charge sufficient in form and substance to sustain a conviction and after the accused had pleaded to the charge, the conviction or acquittal of the accused or the dismissal of the case shall be a bar to another prosecution for the offense charged, or for any attempt to commit the same or frustration thereof, or for any offense which necessarily includes or is necessarily included in the offense charged in the former complaint or informationx x x x
From this procedural prescription alone, there can be no mistaking the requisites for invoking double jeopardy: (a) a valid complaint or information; (b) before a competent court before which the same is filed; (c) the defendant had pleaded to the charge; and, (d) the defendant was acquitted, or convicted, or the case against him dismissed or otherwise terminated without his express consent.[86] It bears repeating that where acquittal is concerned, the rules do not distinguish whether it occurs at the level of the trial court or on appeal from a judgment of conviction. This firmly establishes the finality-of-acquittal rule in our jurisdiction. Therefore, as mandated by our Constitution, statutes and cognate jurisprudence, an acquittal is final and unappealable on the ground of double jeopardy, whether it happens at the trial court level or before the Court of Appeals. In general, the rule is that a remand to a trial court of a judgment of acquittal brought before the Supreme Court on certiorari cannot be had unless there is a finding of mistrial, as in Galman v. Sandiganbayan.[87] Condemning the trial before the Sandiganbayan of the murder of former Senator Benigno "Ninoy" Aquino, which resulted in the acquittal of all the accused, as a sham, this Court minced no words in declaring that "[i]t is settled doctrine that double jeopardy cannot be invoked against this Court's setting aside of the trial court's judgment of acquittal where the prosecution which represents the sovereign people in criminal cases is denied due process x x x x [T]he sham trial was but a mock trial where the authoritarian president ordered respondents Sandiganbayan and Tanodbayan to rig the trial, and closely monitored the entire proceedings to assure the predetermined final outcome of acquittal and absolution as innocent of all the respondent-accused x x x x Manifestly, the prosecution and the sovereign people were denied due process of law with a partial court and biased Tanodbayan under the constant and pervasive monitoring and pressure exerted by the authoritarian president to assure the carrying out of his instructions. A dictated, coerced and scripted verdict of acquittal, such as that in the

People vs.Velasco

case at bar, is a void judgment. In legal contemplation, it is no judgment at all. It neither binds nor bars anyone. Such a judgment is a lawless thing which can be treated as an outlaw. It is a terrible and unspeakable affront to the society and the people. 'To paraphrase Brandeis: If the authoritarian head of government becomes the lawbreaker, he breeds contempt for the law; he invites every man to become a law unto himself; he invites anarchy. The contention of respondent -accused that the Sandiganbayan judgment of acquittal ended the case and could not be appealed or reopened without being put in double jeopardy was forcefully disposed of by the Court in People v. Court of Appeals:[88]

x x x x That is the general rule and presupposes a valid judgment. As earlier pointed out, however, respondent Court's Resolution of acquittal was a void judgment for having been issued without jurisdiction. No double jeopardy attaches, therefore. A void judgment is, in legal effect, no judgment at all. By it no rights are divested. Through it, no rights can be attained. Being worthless, all proceedings founded upon it are equally worthless. It neither binds nor bars anyone. All acts performed under it and all claims flowing out of it are void x x x x Private respondents invoke 'justice for the innocent.' For justice to prevail the scales must balance. It is not to be dispensed for the accused alone. The interests of the society which they have wronged, must also be equally considered. A judgment of conviction is not necessarily a denial of justice. A verdict of acquittal neither necessarily spells a triumph of justice. To the party wronged, to the society offended, it could also mean injustice. This is where the Courts play a vital role. They render justice where justice is due.
Thus, the doctrine that "double jeopardy may not be invoked after trial" may apply only when the Court finds that the criminal trial was a sham because the prosecution representing the sovereign people in the criminal case was denied due process.[89] The Court in People v. Bocar[90] rationalized that the "remand of the criminal case for further hearing and/or trial before the lower courts amounts merely to a continuation of the first jeopardy, and does not expose the accused to a second jeopardy." [91] The fundamental philosophy highlighting the finality of an acquittal by the trial court cuts deep into "the humanity of the laws and in a jealous watchfulness over the rights of the citizen, when brought in unequal contest with the State x x x x" [92] Thus Green expressed the concern that "(t)he underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent, he may be found guilty."[93] It is axiomatic that on the basis of humanity, fairness and justice, an acquitted defendant is entitled to the right of repose as a direct consequence of the finality of his acquittal. The philosophy underlying this rule establishing the absolute nature of acquittals is "part of the paramount importance criminal justice system attaches to the protection of the innocent against wrongful conviction."[94] The interest in the finality-of-acquittal rule, confined exclusively to verdicts of not guilty, is easy to understand: it is a need for "repose," a desire to know the exact extent of one's liability. [95] With this right of repose, the criminal justice system has built in a protection to insure that the innocent, even those whose innocence rests upon a jurys leniency, will not be found guilty in a subsequent proceeding. [96] Related to his right of repose is the defendants interest in his right to have his trial completed by a particular tribunal.[97] This interest encompasses his right to have his guilt or innocence determined in a single proceeding by the initial jury empanelled to try him, for societys awareness of the heavy personal strain which the criminal trial represents for the individual defendant is manifested in the willingness to limit Government to a single criminal proceeding to vindicate its very vital interest in enforcement of criminal laws.[98] The ultimate goal is prevention of government oppression; the goal finds its voice in the

People vs.Velasco

finality of the initial proceeding.[99] As observed in Lockhart v. Nelson,[100] "(t)he fundamental tenet animating the Double Jeopardy Clause is that the State should not be able to oppress individuals through the abuse of the criminal process. Because the innocence of the accused has been confirmed by a final judgment, the Constitution conclusively presumes that a second trial would be unfair. [101] Petitioner resists the applicability of the finality-of-acquittal doctrine to the Philippine adjudicative process on the ground that the principle is endemic to the American justice system as it has specific application only to jury verdicts of acquittal, and thus finds no valid use in our jurisdiction since the underlying rationale of jury acquittals, a special feature of American constitutional law, has no parallel nor analogy in the Philippine legal system. This is a rather strained if not facile approach to the issue at hand, for it attempts to introduce the theory that insofar as the objective of factfinding is concerned, factfinding forming the core of the philosophy behind double jeopardy, there exists a difference between a jury acquittal and a judge acquittal, Philippine version. To support its contention, petitioner sedulously explains that in the United States there is an emerging consensus to differentiate the constitutional impact of jury verdicts of acquittal vis--vis judgments of acquittal rendered by the bench. While this consensus may have emerged in the United States, it is not difficult to surmise that it must have been so because of countless instances of conflict between jury verdicts and judgments of trial judges in the same case. Resultantly, procedural statutes and jurisprudence have been wont to draw lines of distinction between the two, hopefully to keep each other at bay. Since this phenomenon does not occur in our jurisdiction, as we have no juries to speak of, petitioners hypothesis is inappropriate. Be that as it may, the invalidity of petitioners argument lies in its focus on the instrumentality empowered to rule against the evidence, i.e., the American jury versus the Philippine judge, no matter how emphatic it qualifies its proposition with the phrase "underlying rationale of jury acquittals," rather than on the essential function of factfinding itself which consists of reception, sifting and evaluation of evidence. Where the main task of factfinding is concerned, there exists no difference between the American jury and the Philippine trial judge. Both are triers of facts. This much petitioner has to concede. The attempt therefore to close the door on the applicability of the finality rule to our legal system abjectly fails when one considers that, universally, the principal object of double jeopardy is the protection from being tried for the second time, whether by jury or judge. Thus, "emerging American consensus on jury acquittals" notwithstanding, on solid constitutional bedrock is well engraved our own doctrine that acquittals by judges on evidentiary considerations cannot be appealed by government. The jurisprudential metes and bounds of double jeopardy having been clearly defined by both constitution and statute, the issue of the effect of an appeal of a verdict of acquittal upon a determination of the evidence on the constitutionally guaranteed right of an accused against being twice placed in jeopardy should now be finally put to rest. Petitioner assails the decision rendered by the court a quo as blatantly inconsistent with the material facts and evidence on record, reason enough to charge respondent judge with grave abuse of discretion amounting to lack of jurisdiction resulting in a denial of due process. Citing People v. Pablo,[102] it alleges that "respondent aggravated his indiscretion by not x x x reviewing the evidence already presented for a proper assessment x x x x It is in completely ignoring the evidence already presented x x x that the respondent judge committed a grave abuse of discretion." It adds that "discretion must be exercised regularly, legally and within the confines of procedural due process, i.e., after evaluation of the evidence submitted by the prosecution. Any order issued in the absence thereof is not a product of sound judicial discretion but of whim and caprice and outright arbitrariness." [103] Private respondent remonstrates against the propriety of petitioners certiorari as a mode of impugning the judgment of acquittal not only as a strategy to camouflage the issue of double jeopardy but also for the fact that, contrary to petitioners assertions, evidence in the case at bar was subjected to scrutiny, review, assessment and evaluation by respondent trial judge. By reason thereof, there cannot

People vs.Velasco

be perceived grave abuse of discretion on the part of the judge to warrant issuance of the great writ ofcertiorari. We agree. The office of the common law writ of certiorari is to bring before the court for inspection the record of the proceedings of an inferior tribunal in order that the superior court may determine from the face of the record whether the inferior court has exceeded its jurisdiction, or has not proceeded according to the essential requirements of the law. However, the original function and purpose of the writ have been so modified by statutes and judicial decisions. It is particularly so in the field of criminal law when the state is applying for the writ and problems arise concerning the right of the state to appeal in a criminal case. As a general rule, the prosecution cannot appeal or bring error proceedings from a judgment in favor of the defendant in a criminal case in the absence of a statute clearly conferring that right. The problem comes into sharper focus when the defendant contends, in effect, that the prosecution is attempting to accomplish by the writ what it could not do by appeal, and that his constitutional rights are being thus encroached upon.[104] Generally, under modern constitutions and statutes, provisions are available as guides to the court in determining the standing of the prosecution to secure by certioraria review of a lower court decision in a criminal case which has favored the defendant. In most instances, provisions setting forth the scope and function of certiorari are found together with those relating to the right of the state to appeal or bring error in criminal matters. There is some indication that courts view the writ of certiorari as an appeal in itself where the applicant shows that there is no other adequate remedy available,[105] and it is not uncommon to find language in cases to the effect that the state should not be permitted to accomplish by certiorari what it cannot do by appeal.[106] Thus, if a judgment sought to be reviewed was one entered after an acquittal by a jury or the discharge of the accused on the merits by the trial court, the standing of the prosecution to review it by certiorari is far more likely to be denied than if it were such an order as one sustaining a demurrer to, or quashing the indictment, or granting a motion for arrest of judgment after a verdict of guilty.[107] Philippine jurisprudence has been consistent in its application of the Double Jeopardy Clause such that it has viewed with suspicion, and not without good reason, applications for the extraordinary writ questioning decisions acquitting an accused on ground of grave abuse of discretion. The petition at hand which seeks to nullify the decision of respondent judge acquitting the accused Honorato Galvez goes deeply into the trial court's appreciation and evaluation in esse of the evidence adduced by the parties. A reading of the questioned decision shows that respondent judge considered the evidence received at trial.These consisted among others of the testimonies relative to the positions of the victims vis--vis the accused and the trajectory, location and nature of the gunshot wounds, and the opinion of the expert witness for the prosecution. While the appreciation thereof may have resulted in possible lapses in evidence evaluation, it nevertheless does not detract from the fact that the evidence was considered and passed upon. This consequently exempts the act from the writs limiting requirement of excess or lack of jurisdiction. As such, it becomes an improper object of and therefore non-reviewable by certiorari. To reiterate, errors of judgment are not to be confused with errors in the exercise of jurisdiction. WHEREFORE, the instant petition for certiorari is DISMISSED. SO ORDERED.

People vs. Sandiganbayan

SECOND DIVISION [G.R. No. 164185, July 23, 2008] PEOPLE OF THE PHILIPPINES, PETITIONER, VS. THE SANDIGANBAYAN (FOURTH DIVISION) AND ALEJANDRO A. VILLAPANDO, RESPONDENTS. DECISION
QUISUMBING, J.: This petition for certiorari filed by the Office of the Ombudsman through the Office of the Special Prosecutor assails the May 20, 2004 Decision[1] of the Sandiganbayan, Fourth Division, in Criminal Case No. 27465, granting private respondent Alejandro A. Villapando's Demurrer to Evidence[2] and acquitting him of the crime of unlawful appointment under Article 244[3] of the Revised Penal Code. The facts culled from the records are as follows: During the May 11, 1998 elections, Villapando ran for Municipal Mayor of San Vicente, Palawan. Orlando M. Tiape (now deceased), a relative of Villapando's wife, ran for Municipal Mayor of Kitcharao, Agusan del Norte. Villapando won while Tiape lost. Thereafter, on July 1, 1998, Villapando designated Tiape as Municipal Administrator of the Municipality of San Vicente, Palawan.[4] A Contract of Consultancy[5] dated February 8, 1999 was executed between the Municipality of San Vicente, Palawan and Tiape whereby the former employed the services of Tiape as Municipal Administrative and Development Planning Consultant in the Office of the Municipal Mayor for a period of six months from January 1, 1999 to June 30, 1999 for a monthly salary of P26,953.80. On February 4, 2000, Solomon B. Maagad and Renato M. Fernandez charged Villapando and Tiape for violation of Article 244 of the Revised Penal Code before the Office of the Deputy Ombudsman for Luzon.[6] The complaint was resolved against Villapando and Tiape and the following Information[7] dated March 19, 2002 charging the two with violation of Article 244 of the Revised Penal Code was filed with the Sandiganbayan: xxxx That on or about 01 July 1998 or sometime prior or subsequent thereto, in San Vicente, Palawan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, ALEJANDRO A. VILLAPANDO, a public officer, being then the Municipal Mayor of San Vicente, Palawan, committing the crime herein charged, in relation to and taking advantage of his official functions, conspiring and confederating with accused Orlando M. Tiape, did then and there wilfully, unlawfully and feloniously appoint ORLANDO M. TIAPE as a Municipal Administrator of San Vicente, Palawan, accused Alejandro A. Villapando knowing fully well that Orlando Tiape lacks the qualification as he is a losing mayoralty candidate in the Municipality of Kitcharao, Agusan del Norte during the May 1998 elections, hence is ineligible for appointment to a public office within one year (1) from the date of the elections, to the damage and prejudice of the government and of public interest. CONTRARY TO LAW.[8] The Information was docketed as Criminal Case No. 27465 and raffled to the Fourth Division of the Sandiganbayan. Upon arraignment on September 3, 2002, Villapando pleaded not guilty. Meanwhile, the case against Tiape was dismissed after the prosecution proved his death which occurred on July 26, 2000.[9] After the prosecution rested its case, Villapando moved for leave to file a demurrer to evidence. The Sandiganbayan, Fourth Division denied his motion but gave him five days within which to inform the court in writing whether he will nonetheless submit his Demurrer to Evidence for resolution without leave of court.[10] Villapando then filed a Manifestation of Intent to File Demurrer to Evidence,[11] and was given 15 days from receipt to file his Demurrer to Evidence. He filed his Demurrer to Evidence[12] on October 28, 2003. In a Decision dated May 20, 2004, the Sandiganbayan, Fourth Division found Villapando's Demurrer to Evidence meritorious, as follows: The Court found the "Demurrer to Evidence" impressed with merit. Article 244 of the Revised Penal Code provides:

People vs. Sandiganbayan

Article 244. Unlawful appointments.-Any public officer who shall knowingly nominate or appoint to any public office any person lacking the legal qualifications therefor, shall suffer the penalty of arresto mayor and a fine not exceeding 1,000 pesos. (underscoring supplied) A dissection of the above-cited provision [yields] the following elements, to wit: 1. 2. 3. 4. the offender was a public officer; accused nominated or appointed a person to a public office; such person did not have the legal qualifications [therefor;] and, the offender knew that his nominee or appointee did not have the legal qualifications at the time he made the nomination or appointment.

Afore-cited elements are hereunder discussed. 1. 2. 3. Mayor Villapando was the duly elected Municipal Mayor of San Vicente, Palawan when the alleged crime was committed. Accused appointed Orlando Tiape as Municipal Administrator of the Municipality of San Vicente, Palawan. There appears to be a dispute. This Court is now called upon to determine whether Orlando Tiape, at the time of [his] designation as Municipal Administrator, was lacking in legal qualification. Stated differently, does "legal qualification" contemplate the one (1) year prohibition on appointment as provided for in Sec. 6, Art. IX-B of the Constitution and Sec. 94 (b) of the Local Government Code, mandating that a candidate who lost in any election shall not, within one year after such election, be appointed to any office in the Government? The Court answers in the negative. In ascertaining the legal qualifications of a particular appointee to a public office, "there must be a law providing for the qualifications of a person to be nominated or appointed" therein. To illuminate further, Justice Rodolfo Palattao succinctly discussed in his book that the qualification of a public officer to hold a particular position in the government is provided for by law, which may refer to educational attainment, civil service eligibility or experience: As the title suggests, the offender in this article is a public officer who nominates or appoints a person to a public office. The person nominated or appointed is not qualified and his lack of qualification is known to the party making the nomination or appointment. The qualification of a public officer to hold a particular position in the government is provided by law. The purpose of the law is to ensure that the person appointed is competent to perform the duties of the office, thereby promoting efficiency in rendering public service. The qualification to hold public office may refer to educational attainment, civil service eligibility or experience. For instance, for one to be appointed as judge, he must be a lawyer. So if the Judicial and Bar Council nominates a person for appointment as judge knowing him to be not a member of the Philippine Bar, such act constitutes a violation of the law under consideration. In this case, Orlando Tiape was allegedly appointed to the position of Municipal Administrator. As such, the law that provides for the legal qualification for the position of municipal administrator is Section 480, Article X of the Local Government Code, to wit: "Section 480. Qualifications, Terms, Powers and Duties.-(a) No person shall be appointed administrator unless he is a citizen of the Philippines, a resident of the local government unit concerned, of good moral character, a holder of a college degree preferably in public administration, law, or any other related course from a recognized college or university, and a first grade civil service eligible or its equivalent. He must have acquired experience in management and administration work for at least five (5) years in the case of the provincial or city administrator, and three (3) years in the case of the municipal administrator. xxx xxx xxx."

It is noteworthy to mention that the prosecution did not allege much less prove that Mayor Villapando's appointee, Orlando Tiape, lacked any of the qualifications imposed by law on the position of Municipal Administrator. Prosecution's argument rested on the assertion that since Tiape lost in the May 11, 1998 election, he necessarily lacked the required

People vs. Sandiganbayan

legal qualifications. It bears stressing that temporary prohibition is not synonymous with absence or lack of legal qualification. A person who possessed the required legal qualifications for a position may be temporarily disqualified for appointment to a public position by reason of the one year prohibition imposed on losing candidates. Upon the other hand, one may not be temporarily disqualified for appointment, but could not be appointed as he lacked any or all of the required legal qualifications imposed by law. 4. Anent the last element, this Court deems it unnecessary to discuss the same. WHEREFORE, finding the "Demurrer to Evidence" filed by Mayor Villapando with merit, the same is hereby GRANTED. Mayor Villapando is hereby ACQUITTED of the crime charged. SO ORDERED.[13] Thus, this petition by the Office of the Ombudsman, through the Office of the Special Prosecutor, representing the People of the Philippines. Villapando was required by this Court to file his comment to the petition. Despite several notices, however, he failed to do so and in a Resolution[14] dated June 7, 2006, this Court informed him that he is deemed to have waived the filing of his comment and the case shall be resolved on the basis of the pleadings submitted by the petitioner. Petitioner raises the following issues: I. WHETHER THE RESPONDENT COURT ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF OR EXCESS OF JURISDICTION IN INTERPRETING THAT THE "LEGAL DISQUALIFICATION" IN ARTICLE 244 OF THE REVISED PENAL CODE DOES NOT INCLUDE THE ONE YEAR PROHIBITION IMPOSED ON LOSING CANDIDATES AS ENUNCIATED IN THE CONSTITUTION AND THE LOCAL GOVERNMENT CODE. II. WHETHER THE RESPONDENT COURT ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF OR EXCESS OF JURISDICTION IN GIVING DUE COURSE TO, AND EVENTUALLY GRANTING, THE DEMURRER TO EVIDENCE.[15] Simply, the issue is whether or not the Sandiganbayan, Fourth Division, acted with grave abuse of discretion amounting to lack or excess of jurisdiction. Petitioner argues that the Sandiganbayan, Fourth Division acted with grave abuse of discretion amounting to lack or excess of jurisdiction because its interpretation of Article 244 of the Revised Penal Code does not complement the provision on the oneyear prohibition found in the 1987 Constitution and the Local Government Code, particularly Section 6, Article IX of the 1987 Constitution which states no candidate who has lost in any election shall, within one year after such election, be appointed to any office in the government or any government-owned or controlled corporation or in any of their subsidiaries. Section 94(b) of the Local Government Code of 1991, for its part, states that except for losing candidates in barangay elections, no candidate who lost in any election shall, within one year after such election, be appointed to any office in the government or any government-owned or controlled corporation or in any of their subsidiaries. Petitioner argues that the court erred when it ruled that temporary prohibition is not synonymous with the absence of lack of legal qualification. The Sandiganbayan, Fourth Division held that the qualifications for a position are provided by law and that it may well be that one who possesses the required legal qualification for a position may be temporarily disqualified for appointment to a public position by reason of the one-year prohibition imposed on losing candidates. However, there is no violation of Article 244 of the Revised Penal Code should a person suffering from temporary disqualification be appointed so long as the appointee possesses all the qualifications stated in the law. There is no basis in law or jurisprudence for this interpretation. On the contrary, legal disqualification in Article 244 of the Revised Penal Code simply means disqualification under the law. Clearly, Section 6, Article IX of the 1987 Constitution and Section 94(b) of the Local Government Code of 1991 prohibits losing candidates within one year after such election to be appointed to any office in the government or any government-owned or controlled corporations or in any of their subsidiaries.

People vs. Sandiganbayan

Article 244 of the Revised Penal Code states: Art. 244. Unlawful appointments. Any public officer who shall knowingly nominate or appoint to any public office any person lacking the legal qualifications therefore, shall suffer the penalty of arresto mayor and a fine not exceeding 1,000 pesos. Section 94 of the Local Government Code provides: SECTION 94. Appointment of Elective and Appointive Local Officials; Candidates Who Lost in Election. - (a) No elective or appointive local official shall be eligible for appointment or designation in any capacity to any public office or position during his tenure. Unless otherwise allowed by law or by the primary functions of his position, no elective or appointive local official shall hold any other office or employment in the government or any subdivision, agency or instrumentality thereof, including governmentowned or controlled corporations or their subsidiaries. (b) Except for losing candidates in barangay elections, no candidate who lost in any election shall, within one (1) year after such election, be appointed to any office in the government or any government-owned or controlled corporations or in any of their subsidiaries. Section 6, Article IX-B of the 1987 Constitution states: Section 6. No candidate who has lost in any election shall, within one year after such election, be appointed to any office in the Government or any Government-owned or controlled corporations or in any of their subsidiaries. Villapando's contention and the Sandiganbayan, Fourth Division's interpretation of the term legal disqualification lack cogency. Article 244 of the Revised Penal Code cannot be circumscribed lexically. Legal disqualification cannot be read as excluding temporary disqualification in order to exempt therefrom the legal prohibitions under Section 6, Article IX of the 1987 Constitution and Section 94(b) of the Local Government Code of 1991. Although this Court held in the case of People v. Sandiganbayan[16] that once a court grants the demurrer to evidence, such order amounts to an acquittal and any further prosecution of the accused would violate the constitutional proscription on double jeopardy, this Court held in the same case that such ruling on the matter shall not be disturbed in the absence of a grave abuse of discretion. Grave abuse of discretion defies exact definition, but it generally refers to capricious or whimsical exercise of judgment as is equivalent to lack of jurisdiction. The abuse of discretion must be patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion and hostility.[17] In this case, the Sandiganbayan, Fourth Division, in disregarding basic rules of statutory construction, acted with grave abuse of discretion. Its interpretation of the term legal disqualification in Article 244 of the Revised Penal Code defies legal cogency. Legal disqualification cannot be read as excluding temporary disqualification in order to exempt therefrom the legal prohibitions under the 1987 Constitution and the Local Government Code of 1991. We reiterate the legal maxim ubi lex non distinguit nec nos distinguere debemus. Basic is the rule in statutory construction that where the law does not distinguish, the courts should not distinguish. There should be no distinction in the application of a law where none is indicated. Further, the Sandiganbayan, Fourth Division denied Villapando's Motion for Leave to File Demurrer to Evidence yet accommodated Villapando by giving him five days within which to inform it in writing whether he will submit his demurrer to evidence for resolution without leave of court. Notably, a judgment rendered with grave abuse of discretion or without due process is void, does not exist in legal contemplation and, thus, cannot be the source of an acquittal.[18] The Sandiganbayan, Fourth Division having acted with grave abuse of discretion in disregarding the basic rules of statutory construction resulting in its decision granting Villapando's Demurrer to Evidence and acquitting the latter, we can do no less but declare its decision null and void. WHEREFORE, the petition is GRANTED. The Decision dated May 20, 2004 of the Sandiganbayan, Fourth Division, in Criminal Case No. 27465, granting private respondent Alejandro A. Villapando's Demurrer to Evidence and acquitting him of the crime of unlawful appointment under Article 244 of the Revised Penal Code is hereby declared NULL and VOID. Let the records of this case be remanded to the Sandiganbayan, Fourth Division, for further proceedings. SO ORDERED.

Ivler vs. Modesto-San Pedro

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 172716 November 17, 2010

JASON IVLER y AGUILAR, Petitioner, vs. HON. MARIA ROWENA MODESTO-SAN PEDRO, Judge of the Metropolitan Trial Court, Branch 71, Pasig City, and EVANGELINE PONCE, Respondents. DECISION CARPIO, J.: The Case The petition seeks the review1 of the Orders2 of the Regional Trial Court of Pasig City affirming sub-silencio a lower courts ruling finding inapplicable the Double Jeopardy Clause to bar a second prosecution for Reckless Imprudence Resulting in Homicide and Damage to Property. This, despite the accuseds previous conviction for Reckless Imprudence Resulting in Slight Physical Injuries arising from the same incident grounding the second prosecution. The Facts Following a vehicular collision in August 2004, petitioner Jason Ivler (petitioner) was charged before the Metropolitan Trial Court of Pasig City, Branch 71 (MeTC), with two separate offenses: (1) Reckless Imprudence Resulting in Slight Physical Injuries (Criminal Case No. 82367) for injuries sustained by respondent Evangeline L. Ponce (respondent Ponce); and (2) Reckless Imprudence Resulting in Homicide and Damage to Property (Criminal Case No. 82366) for the death of respondent Ponces husband Nestor C. Ponce and damage to the spouses Ponces vehicle. Petitioner posted bail for his temporary release in both cases. On 7 September 2004, petitioner pleaded guilty to the charge in Criminal Case No. 82367 and was meted out the penalty of public censure. Invoking this conviction, petitioner moved to quash the Information in Criminal Case No. 82366 for placing him in jeopardy of second punishment for the same offense of reckless imprudence. The MeTC refused quashal, finding no identity of offenses in the two cases.3 After unsuccessfully seeking reconsideration, petitioner elevated the matter to the Regional Trial Court of Pasig City, Branch 157 (RTC), in a petition for certiorari (S.C.A. No. 2803). Meanwhile, petitioner sought from the MeTC the suspension of proceedings in Criminal Case No. 82366, including the arraignment on 17 May 2005, invoking S.C.A. No. 2803 as a prejudicial question. Without acting on petitioners motion, the MeTC proceeded with the arraignment and, because of petitioners absence, cancelled his bail and ordered his arrest.4 Seven days later, the MeTC issued a resolution denying petitioners motion to suspend proceedings and postponing his arraignment until after his arrest.5 Petitioner sought reconsideration but as of the filing of this petition, the motion remained unresolved. Relying on the arrest order against petitioner, respondent Ponce sought in the RTC the dismissal of S.C.A. No. 2803 for petitioners loss of standing to maintain the suit. Petitioner contested the motion. The Ruling of the Trial Court In an Order dated 2 February 2006, the RTC dismissed S.C.A. No. 2803, narrowly grounding its ruling on petitioners forfeiture of standing to maintain S.C.A. No. 2803 arising from the MeTCs order to arrest petitioner for his non -

Ivler vs. Modesto-San Pedro appearance at the arraignment in Criminal Case No. 82366. Thus, without reaching the merits of S.C.A. No. 2803, the RTC effectively affirmed the MeTC. Petitioner sought reconsideration but this proved unavailing.6
Hence, this petition. Petitioner denies absconding. He explains that his petition in S.C.A. No. 2803 constrained him to forego participation in the proceedings in Criminal Case No. 82366. Petitioner distinguishes his case from the line of jurisprudence sanctioning dismissal of appeals for absconding appellants because his appeal before the RTC was a special civil action seeking a pre-trial relief, not a post-trial appeal of a judgment of conviction.7 Petitioner laments the RTCs failure to reach the merits of his petition in S.C.A. 2803. Invoking jurisprudence, petitioner argues that his constitutional right not to be placed twice in jeopardy of punishment for the same offense bars his prosecution in Criminal Case No. 82366, having been previously convicted in Criminal Case No. 82367 for the same offense of reckless imprudence charged in Criminal Case No. 82366. Petitioner submits that the multiple consequences of such crime are material only to determine his penalty. Respondent Ponce finds no reason for the Court to disturb the RTCs decision forfeiting petitioners standing to maintain his petition in S.C.A. 2803. On the merits, respondent Ponce calls the Courts attention to jurisprudence holding that light offenses (e.g. slight physical injuries) cannot be complexed under Article 48 of the Revised Penal Code with grave or less grave felonies (e.g. homicide). Hence, the prosecution was obliged to separate the charge in Criminal Case No. 82366 for the slight physical injuries from Criminal Case No. 82367 for the homicide and damage to property. In the Resolution of 6 June 2007, we granted the Office of the Solicitor Generals motion not to file a comment to the petition as the public respondent judge is merely a nominal party and private respondent is represented by counsel. The Issues Two questions are presented for resolution: (1) whether petitioner forfeited his standing to seek relief in S.C.A. 2803 when the MeTC ordered his arrest following his non-appearance at the arraignment in Criminal Case No. 82366; and (2) if in the negative, whether petitioners constitutional right under the Double Jeopardy Clause bars further proceedings in Criminal Case No. 82366. The Ruling of the Court We hold that (1) petitioners non-appearance at the arraignment in Criminal Case No. 82366 did not divest him of personality to maintain the petition in S.C.A. 2803; and (2) the protection afforded by the Constitution shielding petitioner from prosecutions placing him in jeopardy of second punishment for the same offense bars further proceedings in Criminal Case No. 82366. Petitioners Non-appearance at the Arraignment in Criminal Case No. 82366 did not Divest him of Standing to Maintain the Petition in S.C.A. 2803 Dismissals of appeals grounded on the appellants escape from custody or violation of the terms of his bail bond are governed by the second paragraph of Section 8, Rule 124,8 in relation to Section 1, Rule 125, of the Revised Rules on Criminal Procedure authorizing this Court or the Court of Appeals to "also, upon motion of the appellee or motu proprio, dismiss the appeal if the appellant escapes from prison or confinement, jumps bail or flees to a foreign country during the pendency of the appeal." The "appeal" contemplated in Section 8 of Rule 124 is a suit to review judgments of convictions. The RTCs dismissal of petitioners special civil action for certiorari to review a pre-arraignment ancillary question on the applicability of the Due Process Clause to bar proceedings in Criminal Case No. 82366 finds no basis under procedural rules and jurisprudence. The RTCs reliance on People v. Esparas9 undercuts the cogency of its ruling because Esparas stands for a proposition contrary to the RTCs ruling. There, the Court granted review to an appeal by an accused who was sentenced to death for importing prohibited drugs even though she jumped bail pending trial and

Ivler vs. Modesto-San Pedro was thus tried and convicted in absentia. The Court in Esparas treated the mandatory review of death sentences under Republic Act No. 7659 as an exception to Section 8 of Rule 124.10
The mischief in the RTCs treatment of petitioners non-appearance at his arraignment in Criminal Case No. 82366 as proof of his loss of standing becomes more evident when one considers the Rules of Courts treatment of a defendant who absents himself from post-arraignment hearings. Under Section 21, Rule 11411 of the Revised Rules of Criminal Procedure, the defendants absence merely renders his bondsman potentially liable on its bond (subject to cancellation should the bondsman fail to produce the accused within 30 days); the defendant retains his standing and, should he fail to surrender, will be tried in absentia and could be convicted or acquitted. Indeed, the 30-day period granted to the bondsman to produce the accused underscores the fact that mere non-appearance does not ipso facto convert the accuseds status to that of a fugitive without standing. Further, the RTCs observation that petitioner provided "no explanation why he failed to attend the scheduled proceeding"12 at the MeTC is belied by the records. Days before the arraignment, petitioner sought the suspension of the MeTCs proceedings in Criminal Case No. 82366 in light of his petition with the RTC in S.C.A. No. 2803. Followi ng the MeTCs refusal to defer arraignment (the order for which was released days after the MeTC ordered petitioners arrest), petitioner sought reconsideration. His motion remained unresolved as of the filing of this petition. Petitioners Conviction in Criminal Case No. 82367 Bars his Prosecution in Criminal Case No. 82366 The accuseds negative constitutional right not to be "twice put in jeopardy of punishment for the same offense"13protects him from, among others, post-conviction prosecution for the same offense, with the prior verdict rendered by a court of competent jurisdiction upon a valid information.14 It is not disputed that petitioners conviction in Criminal Case No. 82367 was rendered by a court of competent jurisdiction upon a valid charge. Thus, the case turns on the question whether Criminal Case No. 82366 and Criminal Case No. 82367 involve the "same offense." Petitioner adopts the affirmative view, submitting that the two cases concern the same offense of reckless imprudence. The MeTC ruled otherwise, finding that Reckless Imprudence Resulting in Slight Physical Injuries is an entirely separate offense from Reckless Imprudence Resulting in Homicide and Damage to Property "as the [latter] requires proof of an additional fact which the other does not."15 We find for petitioner. Reckless Imprudence is a Single Crime, its Consequences on Persons and Property are Material Only to Determine the Penalty The two charges against petitioner, arising from the same facts, were prosecuted under the same provision of the Revised Penal Code, as amended, namely, Article 365 defining and penalizing quasi-offenses. The text of the provision reads: Imprudence and negligence. Any person who, by reckless imprudence, shall commit any act which, had it been intentional, would constitute a grave felony, shall suffer the penalty of arresto mayor in its maximum period to prision correccional in its medium period; if it would have constituted a less grave felony, the penalty of arresto mayor in its minimum and medium periods shall be imposed; if it would have constituted a light felony, the penalty of arresto menor in its maximum period shall be imposed. Any person who, by simple imprudence or negligence, shall commit an act which would otherwise constitute a grave felony, shall suffer the penalty of arresto mayor in its medium and maximum periods; if it would have constituted a less serious felony, the penalty of arresto mayor in its minimum period shall be imposed. When the execution of the act covered by this article shall have only resulted in damage to the property of another, the offender shall be punished by a fine ranging from an amount equal to the value of said damages to three times such value, but which shall in no case be less than twenty-five pesos.

Ivler vs. Modesto-San Pedro A fine not exceeding two hundred pesos and censure shall be imposed upon any person who, by simple imprudence or negligence, shall cause some wrong which, if done maliciously, would have constituted a light felony.
In the imposition of these penalties, the court shall exercise their sound discretion, without regard to the rules prescribed in Article sixty-four. The provisions contained in this article shall not be applicable: 1. When the penalty provided for the offense is equal to or lower than those provided in the first two paragraphs of this article, in which case the court shall impose the penalty next lower in degree than that which should be imposed in the period which they may deem proper to apply. 2. When, by imprudence or negligence and with violation of the Automobile Law, to death of a person shall be caused, in which case the defendant shall be punished by prision correccional in its medium and maximum periods. Reckless imprudence consists in voluntary, but without malice, doing or failing to do an act from which material damage results by reason of inexcusable lack of precaution on the part of the person performing or failing to perform such act, taking into consideration his employment or occupation, degree of intelligence, physical condition and other circumstances regarding persons, time and place. Simple imprudence consists in the lack of precaution displayed in those cases in which the damage impending to be caused is not immediate nor the danger clearly manifest. The penalty next higher in degree to those provided for in this article shall be imposed upon the offender who fails to lend on the spot to the injured parties such help as may be in this hand to give. Structurally, these nine paragraphs are collapsible into four sub-groupings relating to (1) the penalties attached to the quasi-offenses of "imprudence" and "negligence" (paragraphs 1-2); (2) a modified penalty scheme for either or both quasi-offenses (paragraphs 3-4, 6 and 9); (3) a generic rule for trial courts in imposing penalties (paragraph 5); and (4) the definition of "reckless imprudence" and "simple imprudence" (paragraphs 7-8). Conceptually, quasi-offenses penalize "the mental attitude or condition behind the act, the dangerous recklessness, lack of care or foresight, the imprudencia punible,"16 unlike willful offenses which punish the intentional criminal act. These structural and conceptual features of quasi-offenses set them apart from the mass of intentional crimes under the first 13 Titles of Book II of the Revised Penal Code, as amended. Indeed, the notion that quasi-offenses, whether reckless or simple, are distinct species of crime, separately defined and penalized under the framework of our penal laws, is nothing new. As early as the middle of the last century, we already sought to bring clarity to this field by rejecting in Quizon v. Justice of the Peace of Pampanga the proposition that "reckless imprudence is not a crime in itself but simply a way of committing it x x x"17 on three points of analysis: (1) the object of punishment in quasi-crimes (as opposed to intentional crimes); (2) the legislative intent to treat quasi-crimes as distinct offenses (as opposed to subsuming them under the mitigating circumstance of minimal intent) and; (3) the different penalty structures for quasi-crimes and intentional crimes: The proposition (inferred from Art. 3 of the Revised Penal Code) that "reckless imprudence" is not a crime in itself but simply a way of committing it and merely determines a lower degree of criminal liability is too broad to deserve unqualified assent. There are crimes that by their structure cannot be committed through imprudence: murder, treason, robbery, malicious mischief, etc. In truth, criminal negligence in our Revised Penal Code is treated as a mere quasi offense, and dealt with separately from willful offenses. It is not a mere question of classification or terminology. In intentional crimes, the act itself is punished; in negligence or imprudence, what is principally penalized is the mental attitude or condition behind the act, the dangerous recklessness, lack of care or foresight, the imprudencia punible. x x xx Were criminal negligence but a modality in the commission of felonies, operating only to reduce the penalty therefor, then it would be absorbed in the mitigating circumstances of Art. 13, specially the lack of intent to commit so grave a wrong as the one actually committed. Furthermore, the theory would require that the corresponding penalty should be

Ivler vs. Modesto-San Pedro fixed in proportion to the penalty prescribed for each crime when committed willfully. For each penalty for the willful offense, there would then be a corresponding penalty for the negligent variety. But instead, our Revised Penal Code (Art. 365) fixes the penalty for reckless imprudence at arresto mayor maximum, to prision correccional [medium], if the willful act would constitute a grave felony, notwithstanding that the penalty for the latter could range all the way from prision mayor to death, according to the case. It can be seen that the actual penalty for criminal negligence bears no relation to the individual willful crime, but is set in relation to a whole class, or series, of crimes.18 (Emphasis supplied)
This explains why the technically correct way to allege quasi-crimes is to state that their commission results in damage, either to person or property.19 Accordingly, we found the Justice of the Peace in Quizon without jurisdiction to hear a case for "Damage to Property through Reckless Imprudence," its jurisdiction being limited to trying charges for Malicious Mischief, an intentional crime conceptually incompatible with the element of imprudence obtaining in quasi-crimes. Quizon, rooted in Spanish law20 (the normative ancestry of our present day penal code) and since repeatedly reiterated,21 stands on solid conceptual foundation. The contrary doctrinal pronouncement in People v. Faller22that "[r]eckless impudence is not a crime in itself x x x [but] simply a way of committing it x x x,"23 has long been abandoned when the Court en banc promulgated Quizon in 1955 nearly two decades after the Court decided Faller in 1939. Quizon rejected Fallers conceptualization of quasi-crimes by holding that quasi-crimes under Article 365 are distinct species of crimes and not merely methods of committing crimes. Faller found expression in post-Quizon jurisprudence24 only by dint of lingering doctrinal confusion arising from an indiscriminate fusion of criminal law rules defining Article 365 crimes and the complexing of intentional crimes under Article 48 of the Revised Penal Code which, as will be shown shortly, rests on erroneous conception of quasi-crimes. Indeed, the Quizonian conception of quasi-crimes undergirded a related branch of jurisprudence applying the Double Jeopardy Clause to quasi-offenses, barring second prosecutions for a quasi-offense alleging one resulting act after a prior conviction or acquittal of a quasi-offense alleging another resulting act but arising from the same reckless act or omission upon which the second prosecution was based. Prior Conviction or Acquittal of Reckless Imprudence Bars Subsequent Prosecution for the Same Quasi-Offense The doctrine that reckless imprudence under Article 365 is a single quasi-offense by itself and not merely a means to commit other crimes such that conviction or acquittal of such quasi-offense bars subsequent prosecution for the same quasi-offense, regardless of its various resulting acts, undergirded this Courts unbroken chain of jurisprudence on double jeopardy as applied to Article 365 starting with People v. Diaz,25 decided in 1954. There, a full Court, speaking through Mr. Justice Montemayor, ordered the dismissal of a case for "damage to property thru reckless imprudence" because a prior case against the same accused for "reckless driving," arising from the same act upon which the first prosecution was based, had been dismissed earlier. Since then, whenever the same legal question was brought before the Court, that is, whether prior conviction or acquittal of reckless imprudence bars subsequent prosecution for the same quasi-offense, regardless of the consequences alleged for both charges, the Court unfailingly and consistently answered in the affirmative in People v. Belga26 (promulgated in 1957 by the Court en banc, per Reyes, J.), Yap v. Lutero27 (promulgated in 1959, unreported, per Concepcion, J.), People v. Narvas28 (promulgated in 1960 by the Court en banc, per Bengzon J.), People v. Silva29(promulgated in 1962 by the Court en banc, per Paredes, J.), People v. Macabuhay30 (promulgated in 1966 by the Court en banc, per Makalintal, J.), People v. Buan31 (promulgated in 1968 by the Court en banc, per Reyes, J.B.L., acting C. J.), Buerano v. Court of Appeals32 (promulgated in 1982 by the Court en banc, per Relova, J.), and People v. City Court of Manila33 (promulgated in 1983 by the First Division, per Relova, J.). These cases uniformly barred the second prosecutions as constitutionally impermissible under the Double Jeopardy Clause. The reason for this consistent stance of extending the constitutional protection under the Double Jeopardy Clause to quasi-offenses was best articulated by Mr. Justice J.B.L. Reyes in Buan, where, in barring a subsequent prosecution for "serious physical injuries and damage to property thru reckless imprudence" because of the accuseds prior acquittal of "slight physical injuries thru reckless imprudence," with both charges grounded on the same act, the Court explained:34

Ivler vs. Modesto-San Pedro Reason and precedent both coincide in that once convicted or acquitted of a specific act of reckless imprudence, the accused may not be prosecuted again for that same act. For the essence of the quasi offense of criminal negligence under article 365 of the Revised Penal Code lies in the execution of an imprudent or negligent act that, if intentionally done, would be punishable as a felony. The law penalizes thus the negligent or careless act, not the result thereof. The gravity of the consequence is only taken into account to determine the penalty, it does not qualify the substance of the offense. And, as the careless act is single, whether the injurious result should affect one person or several persons, the offense (criminal negligence) remains one and the same, and can not be split into different crimes and prosecutions.35 x x x (Emphasis supplied)
Evidently, the Diaz line of jurisprudence on double jeopardy merely extended to its logical conclusion the reasoning of Quizon. There is in our jurisprudence only one ruling going against this unbroken line of authority. Preceding Diaz by more than a decade, El Pueblo de Filipinas v. Estipona,36 decided by the pre-war colonial Court in November 1940, allowed the subsequent prosecution of an accused for reckless imprudence resulting in damage to property despite his previous conviction for multiple physical injuries arising from the same reckless operation of a motor vehicle upon which the second prosecution was based. Estiponas inconsistency with the post-war Diaz chain of jurisprudence suffices to impliedly overrule it. At any rate, all doubts on this matter were laid to rest in 1982 in Buerano.37 There, we reviewed the Court of Appeals conviction of an accused for "damage to property for reckless imprudence" despite his prior conviction for "slight and less serious physical injuries thru reckless imprudence," arising from the same act upon which the second charge was based. The Court of Appeals had relied on Estipona. We reversed on the strength of Buan:38 Th[e] view of the Court of Appeals was inspired by the ruling of this Court in the pre-war case of People vs. Estipona decided on November 14, 1940. However, in the case of People vs. Buan, 22 SCRA 1383 (March 29, 1968), this Court, speaking thru Justice J. B. L. Reyes, held that Reason and precedent both coincide in that once convicted or acquitted of a specific act of reckless imprudence, the accused may not be prosecuted again for that same act. For the essence of the quasi offense of criminal negligence under Article 365 of the Revised Penal Code lies in the execution of an imprudent or negligent act that, if intentionally done, would be punishable as a felony. The law penalizes thus the negligent or careless act, not the result thereof. The gravity of the consequence is only taken into account to determine the penalty, it does not qualify the substance of the offense. And, as the careless act is single, whether the injurious result should affect one person or several persons, the offense (criminal negligence) remains one and the same, and can not be split into different crimes and prosecutions. xxxx . . . the exoneration of this appellant, Jose Buan, by the Justice of the Peace (now Municipal) Court of Guiguinto, Bulacan, of the charge of slight physical injuries through reckless imprudence, prevents his being prosecuted for serious physical injuries through reckless imprudence in the Court of First Instance of the province, where both charges are derived from the consequences of one and the same vehicular accident, because the second accusation places the appellant in second jeopardy for the same offense.39 (Emphasis supplied) Thus, for all intents and purposes, Buerano had effectively overruled Estipona. It is noteworthy that the Solicitor General in Buerano, in a reversal of his earlier stance in Silva, joined causes with the accused, a fact which did not escape the Courts attention: Then Solicitor General, now Justice Felix V. Makasiar, in his MANIFESTATION dated December 12, 1969 (page 82 of the Rollo) admits that the Court of Appeals erred in not sustaining petitioners plea of double jeopardy and submits that "its affirmatory decision dated January 28, 1969, in Criminal Case No. 05123-CR finding petitioner guilty of damage to property through reckless imprudence should be set aside, without costs." He stressed that "if double jeopardy exists where the reckless act resulted into homicide and physical injuries. then the same consequence must perforce follow where the same reckless act caused merely damage to property-not death-and physical injuries. Verily, the value of a human life lost as a result of a vehicular collision cannot be equated with any amount of damages caused to a motors vehicle arising from the same mishap."40 (Emphasis supplied)

Ivler vs. Modesto-San Pedro Hence, we find merit in petitioners submission that the lower courts erred in refusing to extend in his favor the mantle of protection afforded by the Double Jeopardy Clause. A more fitting jurisprudence could not be tailored to petitioners case than People v. Silva, 41 a Diaz progeny. There, the accused, who was also involved in a vehicular collision, was charged in two separate Informations with "Slight Physical Injuries thru Reckless Imprudence" and "Homicide with Serious Physical Injuries thru Reckless Imprudence." Following his acquittal of the former, the accused sought the quashal of the latter, invoking the Double Jeopardy Clause. The trial court initially denied relief, but, on reconsideration, found merit in the accuseds claim and dismissed the second case. In affirming the trial court, we quoted with approval its analysis of the issue following Diaz and its progeny People v. Belga:42
On June 26, 1959, the lower court reconsidered its Order of May 2, 1959 and dismissed the case, holding: [T]he Court believes that the case falls squarely within the doctrine of double jeopardy enunciated in People v. Belga, x x x In the case cited, Ciriaco Belga and Jose Belga were charged in the Justice of the Peace Court of Malilipot, Albay, with the crime of physical injuries through reckless imprudence arising from a collision between the two automobiles driven by them (Crim. Case No. 88). Without the aforesaid complaint having been dismissed or otherwise disposed of, two other criminal complaints were filed in the same justice of the peace court, in connection with the same collision one for damage to property through reckless imprudence (Crim. Case No. 95) signed by the owner of one of the vehicles involved in the collision, and another for multiple physical injuries through reckless imprudence (Crim. Case No. 96) signed by the passengers injured in the accident. Both of these two complaints were filed against Jose Belga only. After trial, both defendants were acquitted of the charge against them in Crim. Case No. 88. Following his acquittal, Jose Belga moved to quash the complaint for multiple physical injuries through reckless imprudence filed against him by the injured passengers, contending that the case was just a duplication of the one filed by the Chief of Police wherein he had just been acquitted. The motion to quash was denied and after trial Jose Belga was convicted, whereupon he appealed to the Court of First Instance of Albay. In the meantime, the case for damage to property through reckless imprudence filed by one of the owners of the vehicles involved in the collision had been remanded to the Court of First Instance of Albay after Jose Belga had waived the second stage of the preliminary investigation. After such remand, the Provincial Fiscal filed in the Court of First Instance two informations against Jose Belga, one for physical injuries through reckless imprudence, and another for damage to property through reckless imprudence. Both cases were dismissed by the Court of First Instance, upon motion of the defendant Jose Belga who alleged double jeopardy in a motion to quash. On appeal by the Prov. Fiscal, the order of dismissal was affirmed by the Supreme Court in the following language: . The question for determination is whether the acquittal of Jose Belga in the case filed by the chief of police constitutes a bar to his subsequent prosecution for multiple physical injuries and damage to property through reckless imprudence. In the case of Peo[ple] v. F. Diaz, G. R. No. L-6518, prom. March 30, 1954, the accused was charged in the municipal court of Pasay City with reckless driving under sec. 52 of the Revised Motor Vehicle Law, for having driven an automobile in a fast and reckless manner ... thereby causing an accident. After the accused had pleaded not guilty the case was dismissed in that court for failure of the Government to prosecute. But some time thereafter the city attorney filed an information in the Court of First Instance of Rizal, charging the same accused with damage to property thru reckless imprudence. The amount of the damage was alleged to be P249.50. Pleading double jeopardy, the accused filed a motion, and on appeal by the Government we affirmed the ruling. Among other things we there said through Mr. Justice Montemayor The next question to determine is the relation between the first offense of violation of the Motor Vehicle Law prosecuted before the Pasay City Municipal Court and the offense of damage to property thru reckless imprudence charged in the Rizal Court of First Instance. One of the tests of double jeopardy is whether or not the second offense charged necessarily includes or is necessarily included in the offense charged in the former complaint or information (Rule 113, Sec. 9). Another test is whether the evidence which proves one would prove the other that is to say whether the facts alleged in the first charge if proven, would have been sufficient to support the second charge and vice versa; or whether one crime is an ingredient of the other. x x x xxxx The foregoing language of the Supreme Court also disposes of the contention of the prosecuting attorney that the charge for slight physical injuries through reckless imprudence could not have been joined with the charge for homicide

Ivler vs. Modesto-San Pedro with serious physical injuries through reckless imprudence in this case, in view of the provisions of Art. 48 of the Revised Penal Code, as amended. The prosecutions contention might be true. But neither was the prosecution obliged to first prosecute the accused for slight physical injuries through reckless imprudence before pressing the more serious charge of homicide with serious physical injuries through reckless imprudence. Having first prosecuted the defendant for the lesser offense in the Justice of the Peace Court of Meycauayan, Bulacan, which acquitted the defendant, the prosecuting attorney is not now in a position to press in this case the more serious charge of homicide with serious physical injuries through reckless imprudence which arose out of the same alleged reckless imprudence of which the defendant have been previously cleared by the inferior court.43
Significantly, the Solicitor General had urged us in Silva to reexamine Belga (and hence, Diaz) "for the purpose of delimiting or clarifying its application."44 We declined the invitation, thus: The State in its appeal claims that the lower court erred in dismissing the case, on the ground of double jeopardy, upon the basis of the acquittal of the accused in the JP court for Slight Physical Injuries, thru Reckless Imprudence. In the same breath said State, thru the Solicitor General, admits that the facts of the case at bar, fall squarely on the ruling of the Belga case x x x, upon which the order of dismissal of the lower court was anchored. The Solicitor General, however, urges a re-examination of said ruling, upon certain considerations for the purpose of delimiting or clarifying its application. We find, nevertheless, that further elucidation or disquisition on the ruling in the Belga case, the facts of which are analogous or similar to those in the present case, will yield no practical advantage to the government. On one hand, there is nothing which would warrant a delimitation or clarification of the applicability of the Belga case. It was clear. On the other, this Court has reiterated the views expressed in the Belga case, in the identical case of Yap v. Hon. Lutero, etc., L-12669, April 30, 1959.45 (Emphasis supplied) Article 48 Does not Apply to Acts Penalized Under Article 365 of the Revised Penal Code The confusion bedeviling the question posed in this petition, to which the MeTC succumbed, stems from persistent but awkward attempts to harmonize conceptually incompatible substantive and procedural rules in criminal law, namely, Article 365 defining and penalizing quasi-offenses and Article 48 on complexing of crimes, both under the Revised Penal Code. Article 48 is a procedural device allowing single prosecution of multiple felonies falling under either of two categories: (1) when a single act constitutes two or more grave or less grave felonies (thus excluding from its operation light felonies46); and (2) when an offense is a necessary means for committing the other. The legislature crafted this procedural tool to benefit the accused who, in lieu of serving multiple penalties, will only serve the maximum of the penalty for the most serious crime. In contrast, Article 365 is a substantive rule penalizing not an act defined as a felony but "the mental attitude x x x behind the act, the dangerous recklessness, lack of care or foresight x x x,"47 a single mental attitude regardless of the resulting consequences. Thus, Article 365 was crafted as one quasi-crime resulting in one or more consequences. Ordinarily, these two provisions will operate smoothly. Article 48 works to combine in a single prosecution multiple intentional crimes falling under Titles 1-13, Book II of the Revised Penal Code, when proper; Article 365 governs the prosecution of imprudent acts and their consequences. However, the complexities of human interaction can produce a hybrid quasi-offense not falling under either models that of a single criminal negligence resulting in multiple non-crime damages to persons and property with varying penalties corresponding to light, less grave or grave offenses. The ensuing prosecutorial dilemma is obvious: how should such a quasi-crime be prosecuted? Should Article 48s framework apply to "complex" the single quasi-offense with its multiple (non-criminal) consequences (excluding those amounting to light offenses which will be tried separately)? Or should the prosecution proceed under a single charge, collectively alleging all the consequences of the single quasi-crime, to be penalized separately following the scheme of penalties under Article 365? Jurisprudence adopts both approaches. Thus, one line of rulings (none of which involved the issue of double jeopardy) applied Article 48 by "complexing" one quasi-crime with its multiple consequences48 unless one consequence amounts to a light felony, in which case charges were split by grouping, on the one hand, resulting acts amounting to grave or less grave felonies and filing the charge with the second level courts and, on the other hand, resulting acts amounting to light felonies and filing the charge with the first level courts.49 Expectedly, this is the approach the MeTC impliedly sanctioned (and respondent Ponce invokes), even though under Republic Act No. 7691,50 the MeTC has now exclusive

Ivler vs. Modesto-San Pedro original jurisdiction to impose the most serious penalty under Article 365 which is prision correccional in its medium period.
Under this approach, the issue of double jeopardy will not arise if the "complexing" of acts penalized under Article 365 involves only resulting acts penalized as grave or less grave felonies because there will be a single prosecution of all the resulting acts. The issue of double jeopardy arises if one of the resulting acts is penalized as a light offense and the other acts are penalized as grave or less grave offenses, in which case Article 48 is not deemed to apply and the act penalized as a light offense is tried separately from the resulting acts penalized as grave or less grave offenses. The second jurisprudential path nixes Article 48 and sanctions a single prosecution of all the effects of the quasi-crime collectively alleged in one charge, regardless of their number or severity,51 penalizing each consequence separately. Thus, in Angeles v. Jose,52 we interpreted paragraph three of Article 365, in relation to a charge alleging "reckless imprudence resulting in damage to property and less serious physical injuries," as follows: [T]he third paragraph of said article, x x x reads as follows: When the execution of the act covered by this article shall have only resulted in damage to the property of another, the offender shall be punished by a fine ranging from an amount equal to the value of said damage to three times such value, but which shall in no case be less than 25 pesos. The above-quoted provision simply means that if there is only damage to property the amount fixed therein shall be imposed, but if there are also physical injuries there should be an additional penalty for the latter. The information cannot be split into two; one for the physical injuries, and another for the damage to property, x x x.53(Emphasis supplied) By "additional penalty," the Court meant, logically, the penalty scheme under Article 365. Evidently, these approaches, while parallel, are irreconcilable. Coherence in this field demands choosing one framework over the other. Either (1) we allow the "complexing" of a single quasi-crime by breaking its resulting acts into separate offenses (except for light felonies), thus re-conceptualize a quasi-crime, abandon its present framing under Article 365, discard its conception under the Quizon and Diaz lines of cases, and treat the multiple consequences of a quasi-crime as separate intentional felonies defined under Titles 1-13, Book II under the penal code; or (2) we forbid the application of Article 48 in the prosecution and sentencing of quasi-crimes, require single prosecution of all the resulting acts regardless of their number and severity, separately penalize each as provided in Article 365, and thus maintain the distinct concept of quasi-crimes as crafted under Article 365, articulated in Quizon and applied to double jeopardy adjudication in the Diaz line of cases.
1avvphi 1

A becoming regard of this Courts place in our scheme of government denying it the power to make laws constrains us to keep inviolate the conceptual distinction between quasi-crimes and intentional felonies under our penal code. Article 48 is incongruent to the notion of quasi-crimes under Article 365. It is conceptually impossible for a quasi-offense to stand for (1) a single act constituting two or more grave or less grave felonies; or (2) anoffense which is a necessary means for committing another. This is why, way back in 1968 in Buan, we rejected the Solicitor Generals argument that double jeopardy does not bar a second prosecution for slight physical injuries through reckless imprudence allegedly because the charge for that offense could not be joined with the other charge for serious physical injuries through reckless imprudence following Article 48 of the Revised Penal Code: The Solicitor General stresses in his brief that the charge for slight physical injuries through reckless imprudence could not be joined with the accusation for serious physical injuries through reckless imprudence, because Article 48 of the Revised Penal Code allows only the complexing of grave or less grave felonies. This same argument was considered and rejected by this Court in the case of People vs. [Silva] x x x: [T]he prosecutions contention might be true. But neither was the prosecution obliged to first prosecute the accused for slight physical injuries through reckless imprudence before pressing the more serious charge of homicide with serious physical injuries through reckless imprudence. Having first prosecuted the defendant for the lesser offense in the Justice of the Peace Court of Meycauayan, Bulacan, which acquitted the defendant, the prosecuting attorney is not now in a position to press in this case the more serious charge of homicide with serious physical injuries through reckless

Ivler vs. Modesto-San Pedro imprudence which arose out of the same alleged reckless imprudence of which the defendant has been previously cleared by the inferior court.
[W]e must perforce rule that the exoneration of this appellant x x x by the Justice of the Peace x x x of the charge of slight physical injuries through reckless imprudence, prevents his being prosecuted for serious physical injuries through reckless imprudence in the Court of First Instance of the province, where both charges are derived from the consequences of one and the same vehicular accident, because the second accusation places the appellant in second jeopardy for the same offense.54 (Emphasis supplied) Indeed, this is a constitutionally compelled choice. By prohibiting the splitting of charges under Article 365, irrespective of the number and severity of the resulting acts, rampant occasions of constitutionally impermissible second prosecutions are avoided, not to mention that scarce state resources are conserved and diverted to proper use. Hence, we hold that prosecutions under Article 365 should proceed from a single charge regardless of the number or severity of the consequences. In imposing penalties, the judge will do no more than apply the penalties under Article 365 for each consequence alleged and proven. In short, there shall be no splitting of charges under Article 365, and only one information shall be filed in the same first level court.55 Our ruling today secures for the accused facing an Article 365 charge a stronger and simpler protection of their constitutional right under the Double Jeopardy Clause. True, they are thereby denied the beneficent effect of the favorable sentencing formula under Article 48, but any disadvantage thus caused is more than compensated by the certainty of non-prosecution for quasi-crime effects qualifying as "light offenses" (or, as here, for the more serious consequence prosecuted belatedly). If it is so minded, Congress can re-craft Article 365 by extending to quasi-crimes the sentencing formula of Article 48 so that only the most severe penalty shall be imposed under a single prosecution of all resulting acts, whether penalized as grave, less grave or light offenses. This will still keep intact the distinct concept of quasi-offenses. Meanwhile, the lenient schedule of penalties under Article 365, befitting crimes occupying a lower rung of culpability, should cushion the effect of this ruling. WHEREFORE, we GRANT the petition. We REVERSE the Orders dated 2 February 2006 and 2 May 2006 of the Regional Trial Court of Pasig City, Branch 157. We DISMISS the Information in Criminal Case No. 82366 against petitioner Jason Ivler y Aguilar pending with the Metropolitan Trial Court of Pasig City, Branch 71 on the ground of double jeopardy. Let a copy of this ruling be served on the President of the Senate and the Speaker of the House of Representatives. SO ORDERED.

Salvador vs. Mapa

THIRD DIVISION

ORLANDO L. SALVADOR, for and in behalf of the Presidential Ad Hoc Fact-Finding Committee on Behest Loans, Petitioner,

G.R. No. 135080

- versus Present: PLACIDO L. MAPA, JR., RAFAEL A. SISON, ROLANDO M. ZOSA, CESAR C. ZALAMEA, BENJAMIN BAROT, CASIMIRO TANEDO, J.V. DE OCAMPO, ALICIA L. REYES, BIENVENIDO R. TANTOCO, JR., BIENVENIDO R. TANTOCO, SR., FRANCIS B. BANES, ERNESTO M. CARINGAL, ROMEO V. JACINTO, and MANUEL D. TANGLAO, Respondents. REYES, JJ.

YNARES-SANTIAGO, Acting C.J., Chairperson, AUSTRIA-MARTINEZ, CHICO-NAZARIO, NACHURA, and

Promulgated:

November 28, 2007 x------------------------------------------------------------------------------------x

DECISION

Salvador vs. Mapa

NACHURA, J.:

The Presidential Ad Hoc Fact-Finding Committee on Behest Loans, (the Committee), through Atty. Orlando L. Salvador (Atty. Salvador), filed this Petition for Review on Certiorari seeking to nullify the October 9, 1997 Resolution[1] of the Office of the Ombudsman in OMB-0-96-2428, dismissing the criminal complaint against respondents on ground of prescription, and the July 27, 1998 Order[2] denying petitioners motion for reconsideration.

On October 8, 1992 then President Fidel V. Ramos issued Administrative Order No. 13 creating the Presidential Ad Hoc Fact-Finding Committee on Behest Loans, which reads:

WHEREAS, Sec. 28, Article II of the 1987 Constitution provides that Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest;

WHEREAS, Sec. 15, Article XI of the 1987 Constitution provides that The right of the state to recover properties unlawfully acquired by public officials or employees, from them or from their nominees or transferees, shall not be barred by prescription, laches or estoppel;

WHEREAS, there have been allegations of loans, guarantees, and other forms of financial accommodations granted, directly or indirectly, by government-owned and controlled bank or financial institutions, at the behest, command, or urging by previous government officials to the disadvantage and detriment of the Philippines government and the Filipino people;

ACCORDINGLY, an Ad-Hoc FACT FINDING COMMITTEE ON BEHEST LOANS is hereby created to be composed of the following:

Salvador vs. Mapa

Chairman of the Presidential Commission on Good Government - Chairman

The Solicitor General

- Vice-Chairman

Representative from the Office of the Executive Secretary - Member

Representative from the Department of Finance - Member

Representative from the Department of Justice - Member

Representative from the Development Bank of the Philippines - Member

Representative from the Philippine National Bank - Member

Representative from the Asset Privatization Trust - Member

Government Corporate Counsel

- Member

Representative from the

Salvador vs. Mapa Philippine Export and Foreign Loan Guarantee Corporation - Member

The Ad Hoc Committee shall perform the following functions:

1. Inventory all behest loans; identify the lenders and borrowers, including the principal officers and stockholders of the borrowing firms, as well as the persons responsible for granting the loans or who influenced the grant thereof;

2. Identify the borrowers who were granted friendly waivers, as well as the government officials who granted these waivers; determine the validity of these waivers;

3. Determine the courses of action that the government should take to recover those loans, and to recommend appropriate actions to the Office of the President within sixty (60) days from the date hereof.

The Committee is hereby empowered to call upon any department, bureau, office, agency, instrumentality or corporation of the government, or any officer or employee thereof, for such assistance as it may need in the discharge of its functions.
[3]

By Memorandum Order No. 61 dated November 9, 1992, the functions of the Committee were subsequently expanded, viz.:

WHEREAS, among the underlying purposes for the creation of the Ad Hoc Fact-Finding Committee on Behest Loans is to facilitate the collection and recovery of defaulted loans owing government-owned and controlled banking and/or financing institutions;

WHEREAS, this end may be better served by broadening the scope of the fact-finding mission of the Committee to include all non-performing loans which shall embrace behest and non-behest loans;

Salvador vs. Mapa NOW THEREFORE, I, FIDEL V. RAMOS, President of the Republic of the Philippines, by virtue of the power vested in me by law, do hereby order:

Sec. 1. The Ad Hoc Fact-Finding Committee on Behest Loans shall include in its investigation, inventory, and study, all non-performing loans which shall embrace both behest and non-behest loans:

The following criteria may be utilized as a frame of reference in determining a behest loan:

1. It is under-collateralized;

2. The borrower corporation is undercapitalized;

3. Direct or indirect endorsement by high government officials like presence of marginal notes;

4. Stockholders, officers or agents of the borrower corporation are identified as cronies;

5. Deviation of use of loan proceeds from the purpose intended;

6. Use of corporate layering;

7. Non-feasibility of the project for which financing is being sought; and

8. Extraordinary speed in which the loan release was made.

Moreover, a behest loan may be distinguished from a non-behest loan in that while both may involve civil liability for non-payment or non-recovery, the former may likewise entail criminal liability.
[4]

Salvador vs. Mapa

Several loan accounts were referred to the Committee for investigation, including the loan transactions between Metals Exploration Asia, Inc. (MEA), now Philippine Eagle Mines, Inc. (PEMI) and the Development Bank of the Philippines (DBP).

After examining and studying the documents relative to the loan transactions, the Committee determined that they bore the characteristics of behest loans, as defined under Memorandum Order No. 61 because the stockholders and officers of PEMI were known cronies of then President Ferdinand Marcos; the loan was under-collateralized; and PEMI was undercapitalized at the time the loan was granted.

Specifically, the investigation revealed that in 1978, PEMI applied for a foreign currency loan and bank investment on its preferred shares with DBP. The loan application was approved on April 25, 1979 per Board Resolution (B/R) No. 1297, but the loan was never released because PEMI failed to comply with the conditions imposed by DBP. To accommodate PEMI, DBP subsequently adopted B/R No. 2315 dated June 1980, amending B/R No. 1297, authorizing the release of PEMIs foreign currency loan proceeds, and even increasing the same. Per B/R No. 95 dated October 16, 1980, PEMI was granted a foreign currency loan of $19,680,267.00 or P146,601,979.00, and it was released despite non-compliance with the conditions imposed by DBP. The Committee claimed that the loan had no sufficient collaterals and PEMI had no sufficient capital at that time because its acquired assets were only valued atP72,045,700.00, and its paid up capital was only P46,488,834.00.

Consequently, Atty. Orlando L. Salvador, Consultant of the Fact-Finding Committee, and representing the Presidential Commission on Good Government (PCGG), filed with the Office of the Ombudsman (Ombudsman) a sworn complaint for violation of Sections 3(e) and (g) of Republic Act No. 3019, or the Anti-Graft and Corrupt Practices Act, against the respondents Placido I. Mapa, Jr., Rafael A. Sison; Rolando M. Zosa; Cesar C. Zalamea; Benjamin Barot, Casimiro Tanedo, J.V. de Ocampo, Bienvenido R. Tantoco, Jr., Francis B. Banes, Ernesto M. Caringal, Romeo V. Jacinto, Manuel D. Tanglao and Alicia Ll. Reyes.[5]

After considering the Committees allegation, the Ombudsman handed down the assailed Resolution,[6] dismissing the complaint. The Ombudsman conceded that there was ground to proceed with the conduct of preliminary investigation. Nonetheless, it dismissed the complaint holding that the offenses charged had already prescribed, viz.:

Salvador vs. Mapa

[W]hile apparently, PEMI was undercapitalized at the time the subject loans were entered into; the financial accommodations were undercollateralized at the time they were granted; the stockholders and officers of the borrower corporation are identified cronies of then President Marcos; and the release of the said loans was made despite non-compliance by PEMI of the conditions attached therewith, which consequently give a semblance that the subject Foreign Currency Loans are indeed Behest Loans, the prosecution of the offenses charged cannot, at this point, prosper on grounds of prescription.

It bears to stress that Section 11 of R.A. No. 3019 as originally enacted, provides that the prescriptive period for violations of the said Act (R.A. 3019) is ten (10) years. Subsequently, BP 195, enacted on March 16, 1982, amended the period of prescription from ten (10) years to fifteen (15) years

Moreover as enunciated in [the] case of People vs. Sandiganbayan, 211 SCRA 241, the computation of the prescriptive period of a crime violating a special law like R.A. 3019 is governed by Act No. 3326 which provides, thus:

xxxx

Section 2. Prescription shall begin to run from the day of the commission of the violation of law, and if the same be not known at the time, from the discovery thereof and the institution of the judicial proceedings for its investigation and punishment.

The prescription shall be interrupted when the proceedings are instituted against the guilty person, and shall begin to run again if the proceedings are dismissed for reasons not constituting jeopardy.

Corollary thereto, the Supreme Court in the case of People vs. Dinsay, C.A. 40 O.G. 12th Supp., 50, ruled that when there is nothing which was concealed or needed to be discovered because the entire series of transactions were by public instruments, the period of prescription commenced to run from the date the said instrument were executed.

The aforesaid principle was further elucidated in the cases of People vs. Sandiganbayan, 211 SCRA 241, 1992, and People vs. Villalon, 192 SCRA 521, 1990, where the Supreme Court pronounced that when the transactions are contained in public documents and the execution thereof gave rise to unlawful acts,

Salvador vs. Mapa the violation of the law commences therefrom. Thus, the reckoning period for purposes of prescription shall begin to run from the time the public instruments came into existence.

In the case at bar, the subject financial accommodations were entered into by virtue of public documents (e.g., notarized contracts, board resolutions, approved letter-request) during the period of 1978 to 1981 and for purposes of computing the prescriptive period, the aforementioned principles in the Dinsay, Villalon and Sandiganbayan cases will apply. Records show that the complaint was referred and filed with this Office on October 4, 1996 or after the lapse of more than fifteen (15) years from the violation of the law. [Deductibly] therefore, the offenses charged had already prescribed or forever barred by Statute of Limitations.

It bears mention that the acts complained of were committed before the issuance of BP 195 on March 2, 1982. Hence, the prescriptive period in the instant case is ten (10) years as provided in the (sic) Section 11 of R.A. 3019, as originally enacted.

Equally important to stress is that the subject financial transactions between 1978 and 1981 transpired at the time when there was yet no Presidential Order or Directive naming, classifying or categorizing them as Behest or Non-Behest Loans.

To reiterate, the Presidential Ad Hoc Committee on Behest Loans was created on October 8, 1992 under Administrative Order No. 13. Subsequently, Memorandum Order No. 61, dated November 9, 1992, was issued defining the criteria to be utilized as a frame of reference in determining behest loans. Accordingly, if these Orders are to be considered the bases of charging respondents for alleged offenses committed, they become ex-post facto laws which are proscribed by the Constitution. The Supreme Court in the case of People v. Sandiganbayan, supra, citing Wilensky V. Fields, Fla, 267 So 2dl, 5, held that an ex-post facto law is defined as a law which provides for infliction of punishment upon a person for an act done which when it was committed, was innocent.
[7]

Thus, the Ombudsman disposed:

WHEREFORE, premises considered, it is hereby respectfully recommended that the instant case be DISMISSED.

Salvador vs. Mapa SO RESOLVED.

[8]

The Committee filed a Motion for Reconsideration, but the Ombudsman denied it on July 27, 1998.

Hence, this petition positing these issues:

A.

WHETHER OR NOT THE CRIME DEFINED BY SEC. 3(e) AND (g) OF R.A. 3019 HAS ALREADY PRESCRIBED AT THE TIME THE PETITIONER FILED ITS COMPLAINT.

B.

WHETHER OR NOT ADMINISTRATIVE ORDER NO. 13 AND MEMORANDUM ORDER NO. 61 ARE EXPOST FACTO LAW[S].
[9]

The Court shall deal first with the procedural issue. Commenting on the petition, Tantoco, Reyes, Mapa, Zalamea and Caringal argued that the petition suffers from a procedural infirmity which warrants its dismissal. They claimed that the PCGG availed of the wrong remedy in elevating the case to this Court. Indeed, what was filed before this Court is a petition captioned as Petition for Review on Certiorari. We have ruled, time and again, that a petition for review on certiorari is not the proper mode by which resolutions of the Ombudsman in preliminary investigations of criminal cases are reviewed by this Court. The remedy from the adverse resolution of the Ombudsman is a petition for certiorari under Rule 65,[10] not a petition for review on certiorari under Rule 45. However, though captioned as a Petition for Review on Certiorari, we will treat this petition as one filed under Rule 65 since a reading of its contents reveals that petitioner imputes grave abuse of discretion to the Ombudsman for dismissing the complaint. The averments in the

Salvador vs. Mapa

complaint, not thenomenclature given by the parties, determine the nature of the action. [11] In previous rulings, we have treated differently labeled actions as special civil actions for certiorari under Rule 65 for reasons such as justice, equity, and fair play.[12] Having resolved the procedural issue, we proceed to the merits of the case.

As the Committee puts it, the issues to be resolved are: (i) whether or not the offenses subject of its criminal complaint have prescribed, and (ii) whether Administrative Order No. 13 and Memorandum Order No. 61 are ex post facto laws.

The issue of prescription has long been settled by this Court in Presidential Ad Hoc FactFinding Committee on Behest Loans v. Desierto,[13] thus:

[I]t is well-nigh impossible for the State, the aggrieved party, to have known the violations of R.A. No. 3019 at the time the questioned transactions were made because, as alleged, the public officials concerned connived or conspired with the beneficiaries of the loans. Thus, we agree with the COMMITTEE that the prescriptive period for the offenses with which the respondents in OMB-0-96-0968 were charged should be computed from the discovery of the commission thereof and not from the day of such commission.
[14]

The ruling was reiterated in Presidential Ad Hoc Fact-Finding Committee on Behest Loans v. Ombudsman Desierto,[15] wherein the Court explained:

In cases involving violations of R.A. No. 3019 committed prior to the February 1986 EDSA Revolution that ousted President Ferdinand E. Marcos, we ruled that the government as the aggrieved party could not have known of the violations at the time the questioned transactions were made. Moreover, no person would have dared to question the legality of those transactions. Thus, the counting of the prescriptive period commenced from the date of discovery of the offense in 1992 after an exhaustive investigation by the Presidential Ad Hoc Committee on Behest Loans.
[16]

Salvador vs. Mapa

This is now a well-settled doctrine which the Court has applied in subsequent cases involving the PCGG and the Ombudsman.[17]

Since the prescriptive period commenced to run on the date of the discovery of the offenses, and since discovery could not have been made earlier thanOctober 8, 1992, the date when the Committee was created, the criminal offenses allegedly committed by the respondents had not yet prescribed when the complaint was filed on October 4, 1996.

Even the Ombudsman, in its Manifestation & Motion (In Lieu of Comment),[18] conceded that the prescriptive period commenced from the date the Committee discovered the crime, and not from the date the loan documents were registered with the Register of Deeds. As a matter of fact, it requested that the record of the case be referred back to the Ombudsman for a proper evaluation of its merit.

Likewise, we cannot sustain the Ombudsmans declaration that Administrative Order No. 13 and Memorandum Order No. 61 violate the prohibition against ex post facto laws for ostensibly inflicting punishment upon a person for an act done prior to their issuance and which was innocent when done.

The constitutionality of laws is presumed. To justify nullification of a law, there must be a clear and unequivocal breach of the Constitution, not a doubtful or arguable implication; a law shall not be declared invalid unless the conflict with the Constitution is clear beyond reasonable doubt. The presumption is always in favor of constitutionality. To doubt is to sustain.[19] Even this Court does not decide a question of constitutional dimension, unless that question is properly raised and presented in an appropriate case and is necessary to a determination of the case, i.e., the issue of constitutionality must be the very lis mota presented.[20]

Furthermore, in Estarija v. Ranada,[21] where the petitioner raised the issue of constitutionality of Republic Act No. 6770 in his motion for reconsideration of the Ombudsmans decision, we had occasion to state that the Ombudsman had no jurisdiction to entertain questions on the constitutionality of a law. The Ombudsman, therefore, acted in excess of its jurisdiction in declaring unconstitutional the subject administrative and memorandum orders.

Salvador vs. Mapa

In any event, we hold that Administrative Order No. 13 and Memorandum Order No. 61 are not ex post facto laws.

An ex post facto law has been defined as one (a) which makes an action done before the passing of the law and which was innocent when done criminal, and punishes such action; or (b) which aggravates a crime or makes it greater than it was when committed; or (c) which changes the punishment and inflicts a greater punishment than the law annexed to the crime when it was committed; or (d) which alters the legal rules of evidence and receives less or different testimony than the law required at the time of the commission of the offense in order to convict the defendant.[22] This Court added two (2) more to the list, namely: (e) that which assumes to regulate civil rights and remedies only but in effect imposes a penalty or deprivation of a right which when done was lawful; or (f) that which deprives a person accused of a crime of some lawful protection to which he has become entitled, such as the protection of a former conviction or acquittal, or a proclamation of amnesty.[23]

The constitutional doctrine that outlaws an ex post facto law generally prohibits the retrospectivity of penal laws. Penal laws are those acts of the legislature which prohibit certain acts and establish penalties for their violations; or those that define crimes, treat of their nature, and provide for their punishment.[24] The subject administrative and memorandum orders clearly do not come within the shadow of this definition. Administrative Order No. 13 creates the Presidential Ad Hoc Fact-Finding Committee on Behest Loans, and provides for its composition and functions. It does not mete out penalty for the act of granting behest loans. Memorandum Order No. 61 merely provides a frame of reference for determining behest loans. Not being penal laws, Administrative Order No. 13 and Memorandum Order No. 61 cannot be characterized as ex post facto laws. There is, therefore, no basis for the Ombudsman to rule that the subject administrative and memorandum orders are ex post facto.

One final note. Respondents Mapa and Zalamea, in their respective comments, moved for the dismissal of the case against them. Mapa claims that he was granted transactional immunity from all PCGG-initiated cases,[25] while Zalamea denied participation in the approval of the subject loans.[26] The arguments advanced by Mapa and Zalamea are matters of defense which should be raised in their respective counter-affidavits. Since the Ombudsman erroneously dismissed the complaint on ground of prescription, respondents respective defenses were never

Salvador vs. Mapa

passed upon during the preliminary investigation. Thus, the complaint should be referred back to the Ombudsman for proper evaluation of its merit.

WHEREFORE, the petition is GRANTED. The assailed Resolution and Order of the Office of Ombudsman in OMB-0-96-2428, are SET ASIDE. The Office of the Ombudsman is directed to conduct with dispatch an evaluation of the merits of the complaint against the herein respondents.

Salvador vs. Mapa

SO ORDERED.

Valeroso vs. People

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 164815 February 22, 2008

SR. INSP. JERRY C. VALEROSO, petitioner, vs. THE PEOPLE OF THE PHILIPPINES, respondent. DECISION REYES, R.T., J.: THE law looks forward, never backward. Lex prospicit, non respicit. A new law has a prospective, not retroactive, effect.1 However, penal laws that favor a guilty person, who is not a habitual criminal, shall be given retroactive effect.1a These are the rule, the exception and exception to the exception on effectivity of laws. Ang batas ay tumitingin sa hinaharap, hindi sa nakaraan. Gayunpaman, ang parusa ng bagong batas ay iiral kung ito ay pabor sa taong nagkasala na hindi pusakal na kriminal. We apply the exception rather than the rule in this petition for review on certiorari of the decision of the Court of Appeals (CA), affirming with modification that of the Regional Trial Court (RTC) in Quezon City, finding petitioner liable for illegal possession of a firearm. The Facts On July 10, 1996, at around 9:30 a.m., SPO2 Antonio M. Disuanco of the Criminal Investigation Division, Central Police District Command, received a dispatch order2 from the desk officer.3 The order directed him and three (3) other policemen to serve a warrant of arrest4 issued by Judge Ignacio Salvador against petitioner Sr. Insp. Jerry C. Valeroso in a case for kidnapping with ransom.5 After a briefing, the team conducted the necessary surveillance on petitioner, checking his hideouts in Cavite, Caloocan, and Bulacan.6 Eventually, the team proceeded to the Integrated National Police (INP) Central Station at Culiat, Quezon City, where they saw petitioner as he was about to board a tricycle.7 SPO2 Disuanco and his team approached petitioner.8 They put him under arrest, informed him of his constitutional rights, and bodily searched him.9 Found tucked in his waist10 was a Charter Arms, bearing Serial Number 5231511 with five (5) live ammunition.12 Petitioner was then brought to the police station for questioning.13 A verification of the subject firearm at the Firearms and Explosives Division at Camp Crame revealed that it was not issued to petitioner but to a certain Raul Palencia Salvatierra of Sampaloc, Manila.14 Epifanio Deriquito, the records verifier, presented a certification15 to that effect signed by Edwin C. Roque, chief records officer of the Firearms and Explosive Division.16 Petitioner was then charged with illegal possession of firearm and ammunition under Presidential Decree (P.D.) No. 1866,17 as amended. The Information read: That on or about the 10th day of July, 1996, in Quezon City, Philippines, the said accused without any authority of law, did then and there willfully, unlawfully and knowingly have in his/her possession and under his/her custody and control

Valeroso vs. People One (1) cal. 38 "Charter Arms" revolver bearing Serial No. 52315 with five (5) live ammo. without first having secured the necessary license/permit issued by the proper authorities.
CONTRARY TO LAW. Quezon City, Philippines, July 15, 1996. (Sgd.) GLORIA VICTORIA C. YAP Assistant City Prosecutor18 With the assistance of his counsel de parte, Atty. Oscar Pagulayan, petitioner pleaded not guilty when arraigned on October 9, 1996.19 Trial on the merits ensued. SPO2 Disuanco and Deriquito testified for the prosecution in the manner stated above. Upon the other hand, the defense version was supplied by the combined testimonies of petitioner Sr. Insp. Jerry C. Valeroso, SPO3 Agustin R. Timbol, Jr. and Adrian Yuson. Petitioner recounted that on July 10, 1996, he was fast asleep in the boarding house of his children located at Sagana Homes, Barangay New Era, Quezon City.20 He was roused from his slumber when four (4) heavily armed men in civilian clothes bolted the room.21 They trained their guns at him22 and pulled him out of the room. They then tied his hands and placed him near the faucet.23 The raiding team went back inside and searched and ransacked the room.24 SPO2 Disuanco stood guard outside with him.25 Moments later, an operative came out of the room and exclaimed, "Hoy, may nakuha akong baril sa loob!"26 Petitioner was told by SPO2 Disuanco that "we are authorized to shoot you because theres a shoot to kill order against you, so if you are planning do so something, do it right now."27 He was also told that there was a standing warrant for his arrest.28 However, he was not shown any proof when he asked for it.29 Neither was the raiding group armed with a valid search warrant.30 According to petitioner, the search done in the boarding house was illegal. The gun seized from him was duly licensed and covered by necessary permits. He was, however, unable to present the documentation relative to the firearm because it was confiscated by the police. Petitioner further lamented that when he was incarcerated, he was not allowed to engage the services of a counsel. Neither was he allowed to see or talk to his family.31 Petitioner contended that the police had an axe to grind against him. While still with the Narcotics Command, he turned down a request of Col. Romulo Sales to white-wash a drug-related investigation involving friends of the said police officer. Col. Sales was likewise subject of a complaint filed with the Ombudsman by his wife. Col. Sales was later on appointed as the head of the unit that conducted the search in his boarding house.32 SPO3 Timbol, Jr. of the Narcotics Command testified that he issued to petitioner a Memorandum Receipt dated July 1, 199333 covering the subject firearm and its ammunition. This was upon the verbal instruction of Col. Angelito Moreno. SPO3 Timbol identified his signature34 on the said receipt.35 Adrian Yuson, an occupant of the room adjacent to where petitioner was arrested, testified that on July 10, 1996, two (2) policemen suddenly entered his room as he was preparing for school.36 They grabbed his shoulder and led him out.37 During all those times, a gun was poked at him.38 He was asked where petitioner was staying. Fearing for his life, he pointed to petitioners room.39 Four (4) policemen then entered the room.40 He witnessed how they pointed a gun at petitioner, who was clad only in his underwear.41 He also witnessed how they forcibly brought petitioner out of his room.42 While a policeman remained near the faucet to guard petitioner, three (3) others went back inside the room.43 They began searching the whole place. They forcibly opened his locker,44 which yielded the subject firearm.45

Valeroso vs. People

RTC and CA Dispositions On May 6, 1998, the trial court found petitioner guilty as charged, disposing as follows: WHEREFORE, the Court hereby finds the accused guilty beyond reasonable doubt of Violation of Section 1 of Presidential Decree No. 1866 as amended by Republic Act No. 8294 and hereby sentences him to suffer the penalty of prision correccional in its maximum period or from 4 years, 2 months and 1 day as minimum to 6 years as maximum and to pay the fine in the amount of Fifteen Thousand Pesos (P15,000.00). The gun subject of this case is hereby ordered confiscated in favor of the government. Let the same be put in trust in the hands of the Chief of the PNP. SO ORDERED.46 Petitioner moved to reconsider47 but his motion was denied on August 27, 1998.48 He appealed to the CA. On May 4, 2004, the appellate court affirmed with modification the RTC disposition. The fallo of the CA decision reads: Verily, the penalty imposed by the trial court upon the accused-appellant is modified to 4 years and 2 months as minimum up to 6 years as maximum. WHEREFORE, with the foregoing MODIFICATION as to the penalty, the decision appealed from is herebyAFFIRMED in all other respects. SO ORDERED.49 His motion for reconsideration50 having been denied through a Resolution dated August 3, 2004,51 petitioner resorted to the present petition under Rule 45. Issues Petitioner raises the following issues for Our consideration: I. THE HONORABLE COURT OF APPEALS COMMITTED SERIOUS ERRORS OF LAW IN AFFIRMING THE CONVICTION OF PETITIONER DESPITE THE ABSENCE OF PROOF BEYOND REASONABLE DOUBT. II. THE HONORABLE COURT OF APPEALS COMMITTED SERIOUS ERRORS OF FACT AND LAW IN SUSTAINING THE LEGALITY OF THE SEARCH AND THE VALIDITY AND ADMISSIBILITY OF THE EVIDENCE OBTAINED THEREFROM DESPITE THE OVERWHELMING PROOF THAT THE SAME IS THE FRUIT OF THE POISONOUS TREE. III. THE HONORABLE COURT OF APPEALS COMMITTED SERIOUS ERRORS OF LAW IN NOT UPHOLDING THE REGULARITY AND VALIDITY SURROUNDING THE ISSUANCE OF THE MEMORANDUM RECEIPTS(SIC) IN FAVOR OF PETITIONER WHICH PROVES HIS INNOCENCE OF THE CRIME CHARGE (SIC).52(Underscoring supplied) Our Ruling In illegal possession of firearm and ammunition, the prosecution has the burden of proving the twin elements of (1) the existence of the subject firearm and ammunition, and (2) the fact that the accused who possessed or owned the same does not have the corresponding license for it.53 The prosecution was able to discharge its burden.

Valeroso vs. People The existence of the subject firearm and its ammunition was established through the testimony of SPO2 Disuanco.54 Defense witness Yuson also identified the firearm.55 Its existence was likewise admitted by no less than petitioner himself.56
As for petitioners lack of authority to possess the firearm, Deriquito testified that a verification of the Charter Arms Caliber .38 bearing Serial No. 52315 with the Firearms and Explosives Division at Camp Crame revealed that the seized pistol was not issued to petitioner. It was registered in the name of a certain Raul Palencia Salvatierra of Sampaloc, Manila.57 As proof, Deriquito presented a certification signed by Roque, the chief records officer of the same office.58 The Court on several occasions ruled that either the testimony of a representative of, or a certification from, the Philippine National Police (PNP) Firearms and Explosive Office attesting that a person is not a licensee of any firearm would suffice to prove beyond reasonable doubt the second element of possession of illegal firearms.59The prosecution more than complied when it presented both. The certification is outside the scope of the hearsay rule. The general rule is that a witness can testify only to those facts which he knows of his personal knowledge; that is, which are derived from his own perception.60 Otherwise, the testimony is objectionable for being hearsay.61 On this score, the certification from the Firearms and Explosives Division is an exception to the hearsay rule by virtue of Rule 130, Section 44 of the Rules of Court which provides: Sec. 44. Entries in official records. Entries in official records made in the performance of his official duty by a public officer of the Philippines, or by a person in the performance of a duty specifically enjoined by law, are prima facie evidence of the facts therein stated. It may be true that the contents of said certification are only prima facie evidence of the facts stated there. However, the failure of petitioner to present controverting evidence makes the presumption unrebutted. Thus, the presumption stands. Petitioner, however, raises several points which he says entitles him to no less than an acquittal. The assessment of credibility of witnesses lies with the trial court. First, petitioner says that the seizure of the subject firearm was invalid. The search was conducted after his arrest and after he was taken out of the room he was occupying.62 This contention deserves scant consideration. Petitioners version of the manner and place of his arrest goes into the factual findings made by the trial court and its calibration of the credibility of witnesses. However, as aptly put by Justice Ynares-Santiago in People v. Rivera:63 x x x the manner of assigning values to declarations of witnesses on the witness stand is best and most competently performed by the trial judge who had the unmatched opportunity to observe the witnesses and assess their credibility by the various indicia available but not reflected on record. The demeanor of the person on the stand can draw the line between fact and fancy or evince if the witness is telling the truth or lying through his teeth. We have consistently ruled that when the question arises as to which of the conflicting versions of the prosecution and the defense is worthy of belief, the assessment of the trial courts are generally viewed as correct and entitled to great weight. Furthermore, in an appeal, where the culpability or innocence of the accused depends on the issue of credibility of witnesses and the veracity of their testimonies, findings of the trial court are given the highest degree of respect if not finality.64(Underscoring supplied) The trial court found the prosecution version worthy of credence and belief. We find no compelling reason not to accept its observation on this score.

Valeroso vs. People Worth noting is the fact that petitioner is a ranking police officer who not only claims to be highly decorated,65 but have effected a number of successful arrests66 as well. Common sense would dictate that he must necessarily be authorized to carry a gun. We thus agree with the Office of the Solicitor General that framing up petitioner would have been a very risky proposition. Had the arresting officers really intended to cause the damnation of petitioner by framing him up, they could have easily "planted" a more incriminating evidence rather than a gun. That would have made their nefarious scheme easier, assuming that there indeed was one.
The pieces of evidence show that petitioner is not legally authorized to possess the subject firearm and its five (5) ammunition. Second, petitioner insists that he is legally authorized to possess the subject firearm and its ammunition on the basis of the Memorandum Receipt issued to him by the PNP Narcotics Command.67 Although petitioner is correct in his submission that public officers like policemen are accorded presumption of regularity in the performance of their official duties,68 it is only a presumption; it may be overthrown by evidence to the contrary. The prosecution was able to rebut the presumption when it proved that the issuance to petitioner of the Memorandum Receipt was anything but regular. SPO3 Timbol, Jr. testified that he issued the Memorandum Receipt to petitioner based on the verbal instruction of his immediate superior, Col. Moreno.69 However, a reading of Timbols testimony on cross-examination70 would reveal that there was an unusual facility by which said receipt was issued to petitioner. Its issuance utterly lacked the usual necessary bureaucratic constraints. Clearly, it was issued to petitioner under questionable circumstances. Failure to offer an unlicensed firearm as evidence is not fatal provided there is competent testimony as to its existence. Third, petitioner claims that the subject firearm and ammunition should have been excluded as evidence because they were not formally offered by the prosecution71 in violation of Section 34, Rule 132 of the Rules of Court.72 We note that petitioner contradicted himself when he argued for the validity of the Memorandum Receipt and, at the same time, for the exclusion in evidence of the subject firearm and its ammunition. Petitioners act may result to an absurd situation where the Memorandum Receipt is declared valid, while the subject firearm and its ammunition which are supposedly covered by the Memorandum Receipt are excluded as evidence. That would have made the Memorandum Receipt useless. In any case, petitioners contention has no leg to stand on. Contrary to petitioners claim, the subject firearm73 and its five (5) live ammunition74 were offered in evidence by the prosecution.75 Even assuming arguendo that they were not offered, petitioners stance must still fail. The existence of an unlicensed firearm may be established by testimony, even without its presentation at trial. InPeople v. Orehuela,76 the non-presentation of the pistol did not prevent the conviction of the accused. The doctrine was affirmed in the recent case of People v. Malinao.77 As previously stated, the existence of the subject firearm and its five (5) live ammunition were established through the testimony of SPO2 Disuanco.78 Yuson also identified said firearm.79 Petitioner even admitted its existence.80 We hasten to add that there may also be conviction where an unlicensed firearm is presented during trial but through inadvertence, negligence, or fortuitous event (for example, if it is lost), it is not offered in evidence, as long as there is competent testimony as to its existence. Penal and civil liabilities Petitioner was charged with the crime of illegal possession of firearms and ammunition under the first paragraph of Section 1 of P.D. No. 1866, as amended. It provides that "[t]he penalty of reclusion temporal in its maximum period

Valeroso vs. People to reclusion perpetua shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any firearm, part of firearm, ammunition or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition."
P.D. No. 1866, as amended, was the governing law at the time petitioner committed the offense on July 10, 1996. However, R.A. No. 8294 amended P.D. No. 1866 on July 6, 1997,81 during the pendency of the case with the trial court. The present law now states: SECTION 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms or Ammunition. The penalty of prision correccional in its maximum period and a fine of not less than Fifteen Thousand Pesos (P15,000)shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any lowpowered firearm, such as rimfire handgun, .380 or .32 and other firearm of similar firepower, part of firearm, ammunition, or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition: Provided, That no other crime was committed. (Underscoring supplied) As a general rule, penal laws should not have retroactive application, lest they acquire the character of an ex post facto law.82 An exception to this rule, however, is when the law is advantageous to the accused. According to Mr. Chief Justice Araullo, this is "not as a right" of the offender, "but founded on the very principles on which the right of the State to punish and the commination of the penalty are based, and regards it not as an exception based on political considerations, but as a rule founded on principles of strict justice."83 Although an additional fine of P15,000.00 is imposed by R.A. No. 8294, the same is still advantageous to the accused, considering that the imprisonment is lowered to prision correccional in its maximum period84 fromreclusion temporal in its maximum period to reclusion perpetua85 under P.D. No. 1866. Applying the Indeterminate Sentence Law, prision correccional maximum which ranges from four (4) years, two (2) months and one (1) day to six (6) years, is the prescribed penalty and will form the maximum term of the indeterminate sentence. The minimum term shall be one degree lower, which is prision correccional in its medium period (two [2] years, four [4] months and one [1] day to four [4] years and two [2] months).86 Hence, the penalty imposed by the CA is correct. The penalty of four (4) years and two (2) months of prision correccional medium, as minimum term, to six (6) years of prision correccional maximum, as maximum term, is in consonance with the Courts ruling in Gonzales v. Court of Appeals87 and Barredo v. Vinarao.88 As to the subject firearm and its five (5) live ammunition, their proper disposition should be made under Article 45 of the Revised Penal Code89 which provides, among others, that the proceeds and instruments or tools of the crime shall be confiscated and forfeited in favor of the government. WHEREFORE, the Decision of the Court of Appeals dated May 4, 2004 is AFFIRMED in full. SO ORDERED.