Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-51770 March 20, 1985
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
FRANCISCO GALIT, defendant-appellant.

CONCEPCION, JR., J:
1. The prisoner was arrested for killing the victim oil the occasion of a robbery. He had been detained
and interrogated almost continuously for five days, to no avail. He consistently maintained his
innocence. There was no evidence to link him to the crime. Obviously, something drastic had to be
done. A confession was absolutely necessary. So the investigating officers began to maul him and to
torture him physically. Still the prisoner insisted on his innocence. His will had to be broken. A
confession must be obtained. So they continued to maltreat and beat him. 'They covered his face
with a rag and pushed his face into a toilet bowl full of human waste. The prisoner could not take any
more. His body could no longer endure the pain inflicted on him and the indignities he had to suffer.
His will had been broken. He admitted what the investigating officers wanted him to admit and he
signed the confession they prepared. Later, against his will, he posed for pictures as directed by his
investigators, purporting it to be a reenactment.
2. This incident could have happened in a Russian gulag or in Hitler's Germany. But no it did not. It
happened in the Philippines. In this case before Us.
3. The Revised Penal Code punishes the maltreatment of prisoners as follows:
ART. 235. Maltreatment of prisoners. The penalty of arresto mayor in its medium
period to prision correccional in its minimum period, in addition to his liability for the
physical injuries or damage caused, shall be imposed upon any public officer or
employee who shall over do himself in the correction or handling of a prisoner or
detention prisoner under his charge, by the imposition of punishments in a cruel and
humiliating manner.
If the purpose of the maltreatment is to extort a confession, or to obtain some
information from the prisoner, the offender shall be punished by prision
correccional in its minimum period, temporary special disqualification and a fine not
exceeding 500 pesos, in addition to his liability for the physical injuries or damage
caused.
4. This Court in a long line of decisions over the years, the latest being the case of People vs.
Cabrera, 1 has consistently and strongly condemned the practice of maltreating prisoners to extort
confessions from them as a grave and unforgivable violation of human rights. But the practice persists.
Fortunately, such instances constitute the exception rather than the general rule.

5. Before Us for mandatory review is the death sentence imposed upon the accused Francisco Galit
by the Circuit Criminal Court of Pasig, Rizal, in Crim. Case No. CCC-VII-2589 of said court.
6. The record shows that in the morning of August 23, 1977, Mrs. Natividad Fernando, a widow, was
found dead in the bedroom of her house located at Barrio Geronimo, Montalban, Rizal, as a result of
seven (7) wounds inflicted upon different parts of her body by a blunt instrument. 2 More than two
weeks thereafter, police authorities of Montalban picked up the herein accused, Francisco Galit, an
ordinary construction worker (pion) living in Marikina, Rizal, on suspicion of the murder. On the following
day, however, September 8, 1977, the case was referred to the National Bureau of Investigation (NBI) for
further investigation in view of the alleged limited facilities of the Montalban police station. Accordingly, the
herein accused was brought to the NBI where he was investigated by a team headed by NBI Agent
Carlos Flores. 3 NBI Agent Flores conducted a preliminary interview of the suspect who allegedly gave
evasive answers to his questions. 4 But the following day, September 9, 1977, Francisco Galit voluntarily
executed a Salaysay admitting participation in the commission of the crime. He implicated Juling Dulay
and Pabling Dulay as his companions in the crime.5 As a result, he was charged with the crime of
Robbery with Homicide, in an information filed before the Circuit Criminal Court of Pasig, Rizal, committed
as follows:
That on or about the 23rd day of August 1977 in the municipality of Montalban,
province of Rizal, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, conspiring and confederating together with Juling Doe and
Pabling Doe, whose true Identities and present whereabouts are still unknown and
three of them mutually helping and aiding one another, with intent of gain and by
means of force, intimidation and violence upon the person of one Natividad Fernando
while in her dwelling, did, then and there wilfully, unlawfully, and feloniously take,
steal and carry away from the person of said Natividad Fernando, cash money of an
undetermined amount, belonging to said Natividad Fernando, thereby causing
damage and prejudice to the latter in an undetermined amount; that by reason or on
the occasion of said robbery, and for purpose of enabling them (accused) to take,
steal and carry away the said cash money in pursuance of their conspiracy and for
the purpose of insuring the success of their criminal act, with intent to kill, did, then
and there wilfully, unlawfully, and feloniously attack, assault and stab with a dagger
said Natividad Fernando on the different parts of her body, thereby inflicting multiple
injuries on the head and extremities, which directly caused her death, and the total
amount of the loss is P10,000.00 including valuables and cash.
Trial was held, and on August 11, 1978, immediately after the accused had terminated the
presentation of his evidence, the trial judge dictated his decision on the case in open court, finding
the accused guilty as charged and sentencing him to suffer the death penalty; to indemnify the heirs
of the victim in the sum of P110,000.00, and to pay the costs. Hence, the present recourse.
7. The incriminatory facts of the case, as found by the trial court, are as follows:
From the evidence adduced in this case, it was gathered that in the early morning of
August 23, 1977, a 70-year old woman named Natividad Fernando, widow, in the
twilight of her life, was robbed and then hacked to death by the accused and two
others in her (victim's) own residence at Montalban, Rizal.
Prosecution witness Florentino Valentino testified that he heard accused Francisco
Galit and his wife having an argument in connection with the robbery and killing of
the victim, Natividad Fernando. It appears that on August 18, 1977, accused Galit
and two others, namely, Juling Dulay and a certain "Pabling" accidentally met each
other at Marikina, Rizal, and in their conversation, the three agreed to rob Natividad

Fernando; that it was further agreed among them to enter the premises of the
victim's house at the back yard by climbing over the fence; that once inside the
premises, they will search every room, especially the aparador and filing cabinets,
with the sole aim of looking for cash money and other valuables.
Witness Valentino further testified that on August 22, 1977, at around 6:00 o'clock in
the afternoon, accused Francisco Galit and his two companions, Juling Dulay and
Pabling, as per their previous agreement, met at the place where they formerly saw
each other in Mariquina, Rizal; that the three conspirators took a jeepney for
Montalban and upon passing the Montalban Municipal Building, they stopped and
they waited at the side of the road until the hour of midnight; that at about 12:00
o'clock that night, the three repaired to the premises of the victim, Natividad
Fernando; that they entered the said premises through the back wall of the house;
that while entering the premises of said house, Juling Dulay saw a bolo, lying near
the piggery compound, which he picked up and used it to destroy the back portion of
the wall of the house; that it was Juling Dulay who first entered the house through the
hole that they made, followed by the accused Galit and next to him was "Pabling",
that it was already early dawn of August 23, 1977 when the three were able to gain
entrance into the house of the victim; as the three could not find anything valuable
inside the first room that they entered, Juling Dulay destroyed the screen of the door
of the victim, Natividad Fernando; that upon entering the room of the victim, the three
accused decided to kill first the victim, Natividad Fernando, before searching the
room for valuables; that Juling Dulay, who was then holding the bolo, began hacking
the victim, who was then sleeping, and accused Galit heard a moaning sound from
the victim; that after the victim was killed, the three accused began searching the
room for valuables; that they helped each other in opening the iron cabinet inside the
room of the victim, where they found some money; that when the three accused left
the room of the victim, they brought with them some papers and pictures which they
threw outside; that after killing and robbing the victim, the three accused went out of
the premises of the house, using the same way by which they gained entrance,
which was through the back portion of the wall; that the three accused walked
towards the river bank where they divided the loot that they got from the room of the
victim; that their respective shares amount to P70.00 for each of them; and that after
receiving their shares of the loot, the three accused left and went home.
When witness Florentino Valentino was in his room, which was adjoining that of
accused Francisco Galit, he overheard accused Galit and his wife quarreling about
the intention of accused Galit to leave their residence immediately; that he further
stated that he overheard accused Galit saying that he and his other two companions
robbed and killed Natividad Fernando.
As a result of the killing, the victim, Natividad Fernando, suffered no less than seven
stab wounds. There was massive cerebral hemorrhage and the cause of death was
due to shock and hemorrhage, as evidenced by the Medico-Legal Necropsy Report
(Exhs. 'C' and 'C-2'), and the pictures taken of the deceased victim (Exhs. 'E', 'E-1'
and 'E-2').
8. The accused, upon the other hand, denied participation in the commission of the crime. He
claimed that he was in his house in Marikina, Rizal, when the crime was committed in Montalban,
Rizal. He also assailed the admissibility of the extra-judicial confession extracted from him through
torture, force and intimidation as described earlier, and without the benefit of counsel.

9. After a review of the records, We find that the evidence presented by the prosecution does not
support a conviction. In fact, the findings of the trial court relative to the acts attributed to the
accused are not supported by competent evidence. The principal prosecution witness, Florentino
Valentino merely testified that he and the accused were living together in one house in Marikina,
Rizal, on August 23, 1977, because the mother of his wife is the wife of the accused; that when he
returned home at about 4:00 o'clock in the morning from the police station of Marikina, Rizal, the
accused and his wife were quarreling (nagtatalo); that he heard that the accused was leaving the
house because he and his companions had robbed "Aling Nene", the owner of a poultry farm and
piggery in Montalban, Rizal; that the wife of the accused was imploring him not to leave, but the
latter was insistent; that he saw the accused carrying a bag containing about two handfuls (dakot) of
coins which he had taken from Aling Nene; that upon learning of what the accused had done, he
went to the Montalban police the next day and reported to the police chief about what he had heard;
and that a week later, Montalban policemen went to their house and arrested the accused. 6
10. This Court, in the case of Morales vs. Ponce Enrile, 7 laid down the correct procedure for peace
officers to follow when making an arrest and in conducting a custodial investigation, and which We
reiterate:
7. At the time a person is arrested, it shall be the duty of the arresting officer to inform
him of the reason for the arrest and he must be shown the warrant of arrest, if any.
He shall be informed of his constitutional rights to remain silent and to counsel, and
that any statement he might make could be used against him. The person arrested
shall have the right to communicate with his lawyer, a relative, or anyone he chooses
by the most expedient means by telephone if possible or by letter or
messenger. It shall be the responsibility of the arresting officer to see to it that this is
accomplished. No custodial investigation shall be conducted unless it be in the
presence of counsel engaged by the person arrested, by any person on his behalf, or
appointed by the court upon petition either of the detainee himself or by anyone on
his behalf. The right to counsel may be waived but the waiver shall not be valid
unless made with the assistance of counsel. Any statement obtained in violation of
the procedure herein laid down, whether exculpatory or inculpatory, in whole or in
part, shall be inadmissible in evidence.
11. There were no eyewitnesses, no property recovered from the accused, no state witnesses, and
not even fingerprints of the accused at the scene of the crime. The only evidence against the
accused is his alleged confession. It behooves Us therefore to give it a close scrutiny. The statement
begins as follows:

I. TANONG: Ipinagbibigay-alam ko sa inyo ang inyong mga karapatan sa ilalim ng SaligangBatas ng Pilipinas na kung inyong nanaisin ay maaaring hindi kayo magbigay ng isang
salaysay, na hindi rin kayo maaaring pilitin o saktan at pangakuan upang magbigay ng
naturang salaysay, na anuman ang inyong sasabihin sa pagsisiyasat na ito ay maaaring
laban sa inyo sa anumang usapin na maaaring ilahad sa anumang hukuman o tribunal dito
sa Pilipinas, na sa pagsisiyasat na ito ay maaaring katulungin mo ang isang manananggol at
kung sakaling hindi mo kayang bayaran ang isang manananggol ay maaaring bigyan ka ng
isa ng NBI. Ngayon at alam mo na ang mga ito nakahanda ka bang magbigay ng isang
kusang-loob na salaysay sa pagtatanong na ito?

SAGOT: Opo.
12. Such a long question followed by a monosyllabic answer does not satisfy the requirements of the
law that the accused be informed of his rights under the Constitution and our laws. Instead there

should be several short and clear questions and every right explained in simple words in a dialect or
language known to the person under investigation. Accused is from Samar and there is no showing
that he understands Tagalog. Moreover, at the time of his arrest, accused was not permitted to
communicate with his lawyer, a relative, or a friend. In fact, his sisters and other relatives did not
know that he had been brought to the NBI for investigation and it was only about two weeks after he
had executed the salaysay that his relatives were allowed to visit him. His statement does not even
contain any waiver of right to counsel and yet during the investigation he was not assisted by one. At
the supposed reenactment, again accused was not assisted by counsel of his choice. These
constitute gross violations of his rights.
13. The alleged confession and the pictures of the supposed re-enactment are inadmissible as
evidence because they were obtained in a manner contrary to law.
14. Trial courts are cautioned to look carefully into the circumstances surrounding the taking of any
confession, especially where the prisoner claims having been maltreated into giving one. Where
there is any doubt as to its voluntariness, the same must be rejected in toto.
15. Let a copy of this decision be furnished the Minister of Justice for whatever action he may deem
proper to take against the investigating officers.
16. WHEREFORE, the judgment appealed from should be, as it is hereby, SET ASIDE, and another
one entered ACQUITTING the accused Francisco Galit of the crime charged. Let him be released
from custody immediately unless held on other charges. With costs de oficio.
17. SO ORDERED.
Fernando, C.J., Teehankee, Makasiar, Abad Santos, Melencio-Herrera, Plana, Escolin, Relova,
Gutierrez, Jr., De la Fuente, Cuevas and Alampay, JJ., concur.
Aquino, J., took no part.
Footnotes
1 G.R. No. 51858, promulgated January 31, 1985.
2 Exhs. "C", "D", "E", "E-1", "E-2"; t.s.n. of August 3, 1978, p. 7.
3 T.S.N. of August 3, 1978, p. 10.
4 Id., p. 26.
5 Exh. "F".
6 T.S.N. of August 9, 1978, pp. 3-11.
7 G.R. Nos. 61016 and 61107, April 26, 1983, 121 SCRA 538.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-14078

March 7, 1919

RUBI, ET AL. (manguianes), plaintiffs,

vs.
THE PROVINCIAL BOARD OF MINDORO, defendant.
D. R. Williams & Filemon Sotto for plaintiff.
Office of the Solicitor-General Paredes for defendant.
MALCOLM, J.:
In one of the cases which denote a landmark in American Constitutional History
(Worcester vs. Georgia [1832], 6 Pet., 515), Chief Justice Marshall, the first luminary of American
jurisprudence, began his opinion (relating to the status of an Indian) with words which, with a slight
change in phraseology, can be made to introduce the present opinion This cause, in every point
of view in which it can be placed, is of the deepest interest. The legislative power of state, the
controlling power of the constitution and laws, the rights if they have any, the political existence of a
people, the personal liberty of a citizen, are all involved in the subject now to be considered.
To imitate still further the opinion of the Chief Justice, we adopt his outline and proceed first, to
introduce the facts and the issues, next to give a history of the so called "non-Christians," next to
compare the status of the "non-Christians" with that of the American Indians, and, lastly, to resolve
the constitutional questions presented.
I. INTRODUCTION.
This is an application for habeas corpus in favor of Rubi and other Manguianes of the Province of
Mindoro. It is alleged that the Maguianes are being illegally deprived of their liberty by the provincial
officials of that province. Rubi and his companions are said to be held on the reservation established
at Tigbao, Mindoro, against their will, and one Dabalos is said to be held under the custody of the
provincial sheriff in the prison at Calapan for having run away form the reservation.
The return of the Solicitor-General alleges:
1. That on February 1, 1917, the provincial board of Mindoro adopted resolution No. 25
which is as follows:
The provincial governor, Hon. Juan Morente, Jr., presented the following resolution:
"Whereas several attempts and schemes have been made for the advancement of
the non-Christian people of Mindoro, which were all a failure,

"Whereas it has been found out and proved that unless some other measure is taken
for the Mangyan work of this province, no successful result will be obtained toward
educating these people.
"Whereas it is deemed necessary to obliged them to live in one place in order to
make a permanent settlement,
"Whereas the provincial governor of any province in which non-Christian inhabitants
are found is authorized, when such a course is deemed necessary in the interest of
law and order, to direct such inhabitants to take up their habitation on sites on
unoccupied public lands to be selected by him and approved by the provincial board.
"Whereas the provincial governor is of the opinion that the sitio of Tigbao on Lake
Naujan is a place most convenient for the Mangyanes to live on, Now, therefore be it
"Resolved, that under section 2077 of the Administrative Code, 800 hectares of public land in
the sitio of Tigbao on Naujan Lake be selected as a site for the permanent settlement of
Mangyanes in Mindoro subject to the approval of the Honorable Secretary of the Interior, and
"Resolved further, That Mangyans may only solicit homesteads on this reservation providing
that said homestead applications are previously recommended by the provincial governor."
2. That said resolution No. 25 (series 1917) of the provincial board of Mindoro was approved
by the Secretary of the Interior of February 21, 1917.
3. That on December 4, 1917, the provincial governor of Mindoro issued executive order No.
2 which says:
"Whereas the provincial board, by Resolution No. 25, current series, has selected a
site in the sitio of Tigbao on Naujan Lake for the permanent settlement of Mangyanes
in Mindoro.
"Whereas said resolution has been duly approve by the Honorable, the Secretary of
the Interior, on February 21, 1917.
"Now, therefore, I, Juan Morente, jr., provincial governor of Mindoro, pursuant to the
provisions of section 2145 of the revised Administrative Code, do hereby direct that
all the Mangyans in the townships of Naujan and Pola and the Mangyans east of the
Baco River including those in the districts of Dulangan and Rubi's place in Calapan,
to take up their habitation on the site of Tigbao, Naujan Lake, not later than
December 31, 1917.
"Any Mangyan who shall refuse to comply with this order shall upon conviction be
imprisoned not exceed in sixty days, in accordance with section 2759 of the revised
Administrative Code."
4. That the resolution of the provincial board of Mindoro copied in paragraph 1 and the
executive order of the governor of the same province copied in paragraph 3, were necessary
measures for the protection of the Mangyanes of Mindoro as well as the protection of public
forests in which they roam, and to introduce civilized customs among them.

5. That Rubi and those living in his rancheria have not fixed their dwelling within the
reservation of Tigbao and are liable to be punished in accordance with section 2759 of Act
No. 2711.
6. That the undersigned has not information that Doroteo Dabalos is being detained by the
sheriff of Mindoro but if he is so detained it must be by virtue of the provisions of articles Nos.
2145 and 2759 of Act No. 2711.
It thus appears that the provincial governor of Mindoro and the provincial board thereof directed the
Manguianes in question to take up their habitation in Tigbao, a site on the shore of Lake Naujan,
selected by the provincial governor and approved by the provincial board. The action was taken in
accordance with section 2145 of the Administrative Code of 1917, and was duly approved by the
Secretary of the Interior as required by said action. Petitioners, however, challenge the validity of this
section of the Administrative Code. This, therefore, becomes the paramount question which the court
is called upon the decide.
Section 2145 of the Administrative Code of 1917 reads as follows:
SEC. 2145. Establishment of non-Christina upon sites selected by provincial governor.
With the prior approval of the Department Head, the provincial governor of any province in
which non-Christian inhabitants are found is authorized, when such a course is deemed
necessary in the interest of law and order, to direct such inhabitants to take up their
habitation on sites on unoccupied public lands to be selected by him an approved by the
provincial board.
In connection with the above-quoted provisions, there should be noted section 2759 of the same
Code, which read as follows:
SEC. 2759. Refusal of a non-Christian to take up appointed habitation. Any non-Christian
who shall refuse to comply with the directions lawfully given by a provincial governor,
pursuant to section two thousand one hundred and forty-five of this Code, to take up
habitation upon a site designated by said governor shall upon conviction be imprisonment for
a period not exceeding sixty days.
The substance of what is now found in said section 2145 is not new to Philippine law. The
genealogical tree of this section, if we may be permitted to use such terminology, would read:
Section 2077, Administrative Code of 1916; section 62, Act No. 1397; section 2 of various special
provincial laws, notably of Act No. 547, specifically relating to the Manguianes; section 69, Act No.
387.
Section 2145 and its antecedent laws make use of the term "non-Christians." This word, as will later
be disclosed, is also found in varying forms in other laws of the Philippine Islands. In order to put the
phrase in its proper category, and in order to understand the policy of the Government of the
Philippine Islands with reference to the uncivilized elements of the Islands, it is well first of all to set
down a skeleton history of the attitude assumed by the authorities towards these "non-Christians,"
with particular regard for the legislation on the subject.
II. HISTORY.
A. BEFORE ACQUISITION OF THE PHILIPPINE BY THE UNITED STATES.

The most important of the laws of the Indies having reference to the subject at hand are compiled in
Book VI, Title III, in the following language.
LAW I.
The Emperor Charles and the Prince, the governor, at Cigales, on March 21, 1551. Philip II
at Toledo, on February 19, 1560. In the forest of Segovia on September 13, 1565. In the
Escorial on November 10, 1568. Ordinance 149 of the poblaciones of 1573. In San Lorenzo,
on May 20, 1578,
THAT THE "INDIOS" BE REDUCED INTO "POBLACIONES" COMMUNITIES).
In order that the indios may be instructed in the Sacred Catholic Faith and the evangelical
law, and in order that they may forget the blunders of their ancient rites and ceremonies to
the end that they may live in harmony and in a civilized manner, it has always been
endeavored, with great care and special attention, to use all the means most convenient to
the attainment of these purposes. To carry out this work with success, our Council of the
Indies and other religious persons met at various times; the prelates of new Spain
assembled by order of Emperor Charles V of glorious memory in the year one thousand five
hundred and forty-six all of which meetings were actuated with a desire to serve God an
our Kingdom. At these meetings it was resolved that indios be made to live in communities,
and not to live in places divided and separated from one another by sierras and mountains,
wherein they are deprived of all spiritual and temporal benefits and wherein they cannot
profit from the aid of our ministers and from that which gives rise to those human necessities
which men are obliged to give one another. Having realized that convenience of this
resolution, our kings, our predecessors, by different orders, have entrusted and ordered the
viceroys, presidents, and governors to execute with great care and moderation the
concentration of the indios into reducciones; and to deal with their doctrine with such
forbearance and gentleness, without causing inconveniences, so that those who would not
presently settle and who would see the good treatment and the protection of those already in
settlements would, of their own accord, present themselves, and it is ordained that they be
not required to pay taxes more than what is ordered. Because the above has been executed
in the greater part of our Indies, we hereby order and decree that the same be complied with
in all the remaining parts of the Indies, and the encomederos shall entreat compliance
thereof in the manner and form prescribed by the laws of this title.
xxx

xxx

xxx

LAW VIII.
Philip II at the Pardo, on December 1, 1573. Philip III at Madrid, October 10, 1618.
THE "REDUCCTIONES" BE MADE IN ACCORDANCE WITH THE CONDITIONS OF THIS LAW.
The places wherein the pueblos and reducciones shall be formed should have the facilities
of waters. lands, and mountains, ingress and egress, husbandry and passageway of one
league long, wherein the indioscan have their live stock that they may not be mixed with
those of the Spaniards.
LAW IX.

Philip II at Toledo, on February 19, 1956.

THAT THE "INDIOS" IN "REDUCCIONES" BE NOT DEPRIVED OF THE LANDS PREVIOUSLY
HELD BY THEM.
With more good-will and promptness, the indios shall be concentrated in reducciones.
Provided they shall not be deprived of the lands and granaries which they may have in the
places left by them. We hereby order that no change shall be made in this respect, and that
they be allowed to retain the lands held by them previously so that they may cultivate them
and profit therefrom.
xxx

xxx

xxx

LAW XIII.
THE SAME AS ABOVE.
THAT THE "REDUCCIONES" BE NOT REMOVED WITHOUT ORDER OF THE KING, VICEROY,
OR COURT.
No governor, or magistrate, or alcalde mayor, or any other court, has the right to alter or to
remove thepueblos or the reducciones once constituted and founded, without our express
order or that of the viceroy, president, or the royal district court, provided, however, that
the encomenderos, priests, or indios request such a change or consent to it by offering or
giving information to that en. And, because these claims are often made for private interests
and not for those of the indios, we hereby order that this law be always complied with,
otherwise the change will be considered fraudulently obtained. The penalty of one thousand
pesos shall be imposed upon the judge or encomendero who should violate this law.
LAW XV.
Philip III at Madrid, on October 10, 1618.
THAT THERE BE MAYORS AND ALDERMEN IN THE "REDUCTIONES," WHO SHALL BE
"INDIOS."
We order that in each town and reduccion there be a mayor, who should be an indio of the
samereduccion; if there be more than eighty houses, there should be two mayors and two
aldermen, also indios; and, even if the town be a big one, there should, nevertheless, be
more than two mayors and four aldermen, If there be less than eighty indios but not less than
forty, there should be not more than one mayor and one alderman, who should annually elect
nine others, in the presence of the priests , as is the practice in town inhabited by Spaniards
and indios.
LAW XXI.
Philip II, in Madrid, On May 2, 1563, and on November 25, 1578. At Tomar, on May 8, 1581.
At Madrid, on January 10, 1589. Philip III, at Todesillas, on July 12, 1600. Philip IV, at Madrid,
on October 1 and December 17, 1646. For this law and the one following, see Law I, Tit. 4,
Book 7.

THAT IN THE TOWNS OF THE "INDIOS," THERE SHALL LIVE NO SPANIARDS, NEGROES,
"MESTIZOS," AND MULATTOES.
We hereby prohibit and forbid Spaniards, negroes, mulattores, or mestizos to live to live in
the reduccionesand towns and towns of the indios, because it has been found that some
Spaniards who deal, trade, live, and associate with the indios are men of troublesome
nature, of dirty ways of living; robbers, gamblers, and vicious and useless men; and, to avoid
the wrongs done them, the indios would leave their towns and provinces; and the
negroes, mestizos, and mulattoes, besides maltreating them and utilizing their services,
contaminate them with their bad customs, idleness, and also some of their blunders and
vices which may corrupt and pervert the goal which we desire to reach with regard to their
salvation, increase, and tranquillity. We hereby order the imposition of grave penalties upon
the commission of the acts above-mentioned which should not be tolerated in the towns, and
that the viceroys, presidents, governors, and courts take great care in executing the law
within their powers and avail themselves of the cooperation of the ministers who are truly
honest. As regards the mestizos and Indian and Chinese half-breeds (zambaigos), who are
children of indias and born among them, and who are to inherit their houses andhaciendas,
they all not be affected by this law, it appearing to be a harsh thing to separate them from
their parents. (Law of the Indies, vol. 2, pp. 228, 229, 230, 231.)
A clear exposition of the purposes of the Spanish government, in its efforts to improve the condition
of the less advanced inhabitants of the Islands by concentrating them in "reducciones," is found in
the Decree of the Governor-General of the Philippine Islands of January 14, 1881, reading as
follows:
It is a legal principle as well as a national right that every inhabitant of a territory recognized
as an integral part of a nation should respect and obey the laws in force therein; while, on
other hand, it is the duty to conscience and to humanity for all governments to civilize those
backward races that might exist in the nation, and which living in the obscurity of ignorance,
lack of all the nations which enable them to grasp the moral and material advantages that
may be acquired in those towns under the protection and vigilance afforded them by the
same laws.
It is equally highly depressive to our national honor to tolerate any longer the separation and
isolation of the non-Christian races from the social life of the civilized and Christian towns; to
allow any longer the commission of depredations, precisely in the Island of Luzon wherein is
located the seat of the representative of the Government of the, metropolis.
It is but just to admit the fact that all the governments have occupied themselves with this
most important question, and that much has been heretofore accomplished with the help and
self-denial of the missionary fathers who have even sacrificed their lives to the end that
those degenerate races might be brought to the principles of Christianity, but the means and
the preaching employed to allure them have been insufficient to complete the work
undertaken. Neither have the punishments imposed been sufficient in certain cases and in
those which have not been guarded against, thus giving and customs of isolation.
As it is impossible to consent to the continuation of such a lamentable state of things, taking
into account the prestige which the country demands and the inevitable duty which every
government has in enforcing respect and obedience to the national laws on the part of all
who reside within the territory under its control, I have proceeded in the premises by giving
the most careful study of this serious question which involves important interests for
civilization, from the moral and material as well as the political standpoints. After hearing the

illustrious opinions of all the local authorities, ecclesiastics, and missionaries of the provinces
of Northern Luzon, and also after finding the unanimous conformity of the meeting held with
the Archbishop of Manila, the Bishops of Jaro and Cebu, and the provincial prelates of the
orders of the Dominicans, Agustinians, Recoletos, Franciscans, and Jesuits as also of the
meeting of the Council of Authorities, held for the object so indicated, I have arrived at an
intimate conviction of the inevitable necessity of proceeding in a practical manner for the
submission of the said pagan and isolated races, as well as of the manner and the only form
of accomplishing such a task.
For the reasons above stated and for the purpose of carrying out these objects, I hereby
promulgate the following:
DECREE.
1. All the indian inhabitants (indios) of the Islands of Luzon are, from this date, to be
governed by the common law, save those exceptions prescribed in this decree which are
bases upon the differences of instructions, of the customs, and of the necessities of the
different pagan races which occupy a part of its territory.
2. The diverse rules which should be promulgated for each of these races which may be
divided into three classes; one, which comprises those which live isolated and roaming about
without forming a town nor a home; another, made up of those subdued pagans who have
not as yet entered completely the social life; and the third, of those mountain and rebellious
pagans shall be published in their respective dialects, and the officials, priests, and
missionaries of the provinces wherein they are found are hereby entrusted in the work of
having these races learn these rules. These rules shall have executive character, beginning
with the first day of next April, and, as to their compliance, they must be observed in the
manner prescribed below.
3. The provincial authorities in conjunction with the priests shall proceed, from now on, with
all the means which their zeal may suggest to them, to the taking of the census of the
inhabitants of the towns or settlement already subdued, and shall adopt the necessary
regulations for the appointment of local authorities, if there be none as yet; for the
construction of courts and schools, and for the opening or fixing up of means of
communication, endeavoring, as regards the administrative organization of the said towns or
settlements, that this be finished before the first day of next July, so that at the beginning of
the fiscal year they shall have the same rights and obligations which affect the remaining
towns of the archipelago, with the only exception that in the first two years they shall not be
obliged to render personal services other than those previously indicated.
4. So long as these subdued towns or settlements are located infertile lands appropriate for
cultivation, the inhabitants thereof shall not be obliged to move their dwelling-houses; and
only in case of absolute necessity shall a new residence be fixed for them, choosing for this
purpose the place most convenient for them and which prejudices the least their interest;
and, in either of these cases, an effort must be made to establish their homes with the reach
of the sound of the bell.
5. For the protection and defense of these new towns, there shall be established an armed
force composed precisely of native Christian, the organization and service of which shall be
determined in a regulations based upon that of the abolished Tercios de Policia (division of
the Guardia Civil).

6. The authorities shall see to it that the inhabitants of the new towns understand all the
rights and duties affecting them and the liberty which they have as to where and now they
shall till their lands and sell the products thereof, with the only exception of the tobacco which
shall be bought by the Hacienda at the same price and conditions allowed other producers,
and with the prohibition against these new towns as well as the others from engaging in
commerce of any other transaction with the rebellious indios, the violation of which shall be
punished with deportation.
7. In order to properly carry out this express prohibition, the limits of the territory of the
rebellious indiosshall be fixed; and whoever should go beyond the said limits shall be
detained and assigned governmentally wherever convenient.
8. For the purpose of assisting in the conversion of the pagans into the fraternity of the
Catholic Church, all by this fact along be exempt for eight years from rendering personal
labor.
9. The authorities shall offer in the name of the State to the races not subdued (aetas and
mountains igorrots the following advantages in returns for their voluntary submission: to live
in towns; unity among their families; concession of good lands and the right to cultivate them
in the manner they wish and in the way them deem most productive; support during a year,
and clothes upon effecting submission; respect for their habits and customs in so far as the
same are not opposed to natural law; freedom to decide of their own accord as to whether
they want to be Christians or not; the establishment of missions and families of recognized
honesty who shall teach, direct, protect, and give them security and trust them; the purchase
or facility of the sale of their harvests; the exemption from contributions and tributes for ten
years and from thequintas (a kind of tax) for twenty years; and lastly, that those who are
governed by the local authorities as the ones who elect such officials under the direct charge
of the authorities of the province or district.
10. The races indicated in the preceding article, who voluntarily admit the advantages
offered, shall, in return, have the obligation of constituting their new towns, of constructing
their town hall, schools, and country roads which place them in communication with one
another and with the Christians; provided, the location of these towns be distant from their
actual residences, when the latter do not have the good conditions of location and
cultivations, and provided further the putting of families in a place so selected by them be
authorized in the towns already constituted.
11. The armed force shall proceed to the prosecution and punishment of the tribes, that,
disregarding the peace, protection, and advantages offered them, continue in their rebellious
attitude on the first of next April, committing from now on the crimes and vexations against
the Christian towns; and for the this purposes, the Captain General's Office shall proceed
with the organization of the divisions of the Army which, in conjunction with the rural guards
(cuadrilleros), shall have to enter the territory of such tribes. On the expiration of the term,
they shall destroy their dwelling-houses, labors, and implements, and confiscate their
products and cattle. Such a punishment shall necessarily be repeated twice a year, and for
this purpose the military headquarters shall immediately order a detachment of the military
staff to study the zones where such operations shall take place and everything conducive to
the successful accomplishment of the same.
12. The chiefs of provinces, priests, and missioners, local authorities, and other subordinates
to my authorities, local authorities, and other subordinates to may authority, civil as well as

military authorities, shall give the most effective aid and cooperation to the said forces in all
that is within the attributes and the scope of the authority of each.
13. With respect to the reduccion of the pagan races found in some of the provinces in the
southern part of the Archipelago, which I intend to visit, the preceding provisions shall
conveniently be applied to them.
14. There shall be created, under my presidency as Governor-General, Vice-Royal Patron, a
council or permanent commission which shall attend to and decide all the questions relative
to the application of the foregoing regulations that may be brought to it for consultations by
the chiefs of provinces and priests and missionaries.
15. The secondary provisions which may be necessary, as a complement to the foregoing, in
brining about due compliance with this decree, shall be promulgated by the respective official
centers within their respective jurisdictions. (Gaceta de Manila, No. 15) (Diccionario de la
Administracion, vol. 7, pp. 128-134.)
B. AFTER ACQUISITON OF THE PHILIPPINES BY THE UNITED STATES.
Ever since the acquisition of the Philippine Islands by the United States, the question as to the best
method for dealing with the primitive inhabitants has been a perplexing one.
1. Organic law.
The first order of an organic character after the inauguration of the American Government in the
Philippines was President McKinley's Instructions to the Commission of April 7, 1900, later expressly
approved and ratified by section 1 of the Philippine Bill, the Act of Congress of July 1, 1902. Portions
of these instructions have remained undisturbed by subsequent congressional legislation. One
paragraph of particular interest should here be quoted, namely:
In dealing with the uncivilized tribes of the Islands, the Commission should adopt the same
course followed by Congress in permitting the tribes of our North American Indians to
maintain their tribal organization and government and under which many of these tribes are
now living in peace and contentment, surrounded by civilization to which they are unable or
unwilling to conform. Such tribal governments should, however, be subjected to wise and
firm regulation; and, without undue or petty interference, constant and active effort should be
exercised to prevent barbarous practices and introduce civilized customs.
Next comes the Philippine Bill, the Act of Congress of July 1, 1902, in the nature of an Organic Act
for the Philippines. The purpose of section 7 of the Philippine Bill was to provide for a legislative
body and, with this end in view, to name the prerequisites for the organization of the Philippine
Assembly. The Philippine Legislature, composed of the Philippine Commission and the Philippine
Assembly, was to have jurisdiction over the Christian portion of the Islands. The Philippine
Commission was to retain exclusive jurisdiction of that part of said Islands inhabited by Moros or
other non-Christian tribes.
The latest Act of Congress, nearest to a Constitution for the Philippines, is the Act of Congress of
August 29, 1916, commonly known as the Jones Law. This transferred the exclusive legislative
jurisdiction and authority theretofore exercised by the Philippine Commission, to the Philippine
Legislature (sec. 12). It divided the Philippine Islands into twelve senatorial districts, the twelfth
district to be composed of the Mountain Province, Baguio, Nueva Vizcaya, and the Department of

Mindanao and Sulu. The Governor-General of the Philippine Islands was authorized to appoint
senators and representatives for the territory which, at the time of the passage of the Jones Law,
was not represented in the Philippine Assembly, that is, for the twelfth district (sec. 16). The law
establish a bureau to be known as the "Bureau of non-Christian Tribes" which shall have general
supervision over the public affairs of the inhabitants which are represented in the Legislature by
appointed senators and representatives( sec. 22).
Philippine organic law may, therefore, be said to recognized a dividing line between the territory not
inhabited by Moros or other non-Christian tribes, and the territory which Moros or other non-Christian
tribes, and the territory which is inhabited by Moros or other non-Christian tribes.
2. Statute law.
Local governments in the Philippines have been provided for by various acts of the Philippine
Commission and Legislature. The most notable are Acts Nos. 48 and 49 concerning the Province of
Benguet and the Igorots; Act NO. 82, the Municipal Code; ;Act no. 83, the Provincial Government
Act; Act No. 183, the Character of the city of Manila; Act No. 7887, providing for the organization and
government of the Moro Province; Act No. 1396, the Special Provincial Government Act; Act No.
1397, the Township Government Act; Act No. 1667, relating to the organization of settlements; Act
No. 1963, the Baguio charger; and Act No. 2408, the Organic Act of the Department of Mindanao
and Sulu. The major portion of these laws have been carried forward into the Administrative Codes
of 1916 an d1917.
Of more particular interest are certain special laws concerning the government of the primitive
peoples. Beginning with Act No. 387, sections 68-71, enacted on April 9, 1902, by the United States
Philippine Commission, having reference to the Province of Nueva Vizcaya, Acts Nos. 4111, 422,
445, 500, 547, 548, 549, 550, 579, 753, 855, 1113, 1145, 4568, 1306 were enacted for the provinces
of Abra, Antique, Bataan, Ilocos Norte, Ilocos Sur, Isabela. Lepanto-Bontoc, Mindoro, Misamis,
Nueva Vizcaya, Pangasinan, Paragua (Palawan), Tarlac, Tayabas, and Zambales. As an example of
these laws, because referring to the Manguianes, we insert Act No. 547:
No. 547. AN ACT PROVIDING FOR THE ESTABLISHMENT OF LOCAL CIVIL
GOVERNMENTS FOR THE MANGUIANES IN THE PROVINCE OF MINDORO.
By authority of the United States, be it enacted by the Philippine Commission, that:
SECTION 1. Whereas the Manguianes of the Provinces of Mindoro have not progressed
sufficiently in civilization to make it practicable to bring them under any form of municipal
government, the provincial governor is authorized, subject to the approval of the Secretary of
the Interior, in dealing with these Manguianes to appoint officers from among them, to fix
their designations and badges of office, and to prescribe their powers and duties: Provided,
That the powers and duties thus prescribed shall not be in excess of those conferred upon
township officers by Act Numbered Three hundred and eighty-seven entitled "An Act
providing for the establishment of local civil Governments in the townships and settlements
of Nueva Vizcaya."
SEC. 2. Subject to the approval of the Secretary of the Interior, the provincial governor is
further authorized, when he deems such a course necessary in the interest of law and order,
to direct such Manguianes to take up their habitation on sites on unoccupied public lands to
be selected by him and approved by the provincial board. Manguianes who refuse to comply
with such directions shall upon conviction be imprisonment for a period not exceeding sixty
days.

SEC. 3. The constant aim of the governor shall be to aid the Manguianes of his province to
acquire the knowledge and experience necessary for successful local popular government,
and his supervision and control over them shall be exercised to this end, an to the end that
law and order and individual freedom shall be maintained.
SEC. 4. When in the opinion of the provincial board of Mindoro any settlement of
Manguianes has advanced sufficiently to make such a course practicable, it may be
organized under the provisions of sections one to sixty-seven, inclusive, of Act Numbered
three hundred and eighty-seven, as a township, and the geographical limits of such township
shall be fixed by the provincial board.
SEC. 5. The public good requiring the speedy enactment of this bill, the passage of the same
is hereby expedited in accordance with section two of 'An Act prescribing the order of
procedure by the Commission in the enactment of laws,' passed September twenty-sixth,
nineteen hundred.
SEC. 6. This Act shall take effect on its passage.
Enacted, December 4, 1902.
All of these special laws, with the exception of Act No. 1306, were repealed by Act No. 1396 and
1397. The last named Act incorporated and embodied the provisions in general language. In turn,
Act No. 1397 was repealed by the Administrative Code of 1916. The two Administrative Codes
retained the provisions in questions.
These different laws, if they of the non-Christian inhabitants of the Philippines and a settled and
consistent practice with reference to the methods to be followed for their advancement.
C. TERMINOLOGY.
The terms made use of by these laws, organic and statutory, are found in varying forms.
"Uncivilized tribes" is the denomination in President McKinley's instruction to the Commission.
The most commonly accepted usage has sanctioned the term "non-Christian tribes." These words
are to be found in section 7 of the Philippine Bill and in section 22 of the Jones Law. They are also to
be found in Act No. 253 of the Philippines Commission, establishing a Bureau of non-Christian
Tribes and in Act No. 2674 of the Philippine Legislature, carried forward into sections 701-705 of the
Administrative Code of 1917, reestablishing this Bureau. Among other laws which contain the
phrase, there can be mentioned Acts Nos. 127, 128, 387, 547, 548, 549, 550, 1397, 1639, and 2551.
"Non-Christian people," "non-Christian inhabitants," and "non-Christian Filipinos" have been the
favorite nomenclature, in lieu of the unpopular word "tribes," since the coming into being of a
Filipinized legislature. These terms can be found in sections 2076, 2077, 2390, 2394, Administrative
Code of 1916; sections 701-705, 2145, 2422, 2426, Administrative Code of 1917; and in Acts Nos.
2404, 2435, 2444, 2674 of the Philippine Legislatures, as well as in Act No. 1667 of the Philippine
Commission.
The Administrative Code specifically provides that the term "non-Christian" shall include
Mohammedans and pagans. (Sec. 2576, Administrative Code of 1917; sec. 2561, Administrative
Code of 1916, taken from Act No. 2408, sec. 3.)

D. MEANING OF TERM "NON-CHRISTIAN."

If we were to follow the literal meaning of the word "non-Christian," it would of course result in giving
to it a religious signification. Obviously, Christian would be those who profess the Christian religion,
and non-Christians, would be those who do not profess the Christian religion. In partial corroboration
of this view, there could also be cited section 2576 of the last Administrative Code and certain wellknown authorities, as Zuiga, "Estadismo de las Islas Filipinas," Professor Ferdinand Blumentritt,
"Philippine Tribes and Languages," and Dr. N. M. Saleeby, "The Origin of Malayan Filipinos." (See
Blair & Robertson, "The Philippine Islands," 1493-1898, vol. III, p. 300, note; Craig-Benitez,
"Philippine Progress prior to 1898," vol. I. p. 107.)
Not content with the apparent definition of the word, we shall investigate further to ascertain what is
its true meaning.
In one sense, the word can have a geographical signification. This is plainly to be seen by the
provisions of many laws. Thus, according to the Philippine Bill, the authority of the Philippine
Assembly was recognized in the "territory" of the Islands not inhabited by Moros or other nonChristian tribes. Again, the Jones Law confers similar recognition in the authorization of the twelfth
senatorial district for the "territory not now represented in the Philippine Assembly." The Philippines
Legislature has, time and again, adopted acts making certain other acts applicable to that "part" of
the Philippine Islands inhabited by Moros or other non-Christian tribes.
Section 2145, is found in article XII of the Provincial Law of the Administrative Code. The first section
of this article, preceding section 2145, makes the provisions of the article applicable only in specially
organized provinces. The specially organized provinces are the Mountain Province, Nueva Vizcaya,
Mindoro, Batanes, and Palawan. These are the provinces to which the Philippine Legislature has
never seen fit to give all the powers of local self-government. They do not, however, exactly coincide
with the portion of the Philippines which is not granted popular representation. Nevertheless, it is still
a geographical description.
It is well-known that within the specially organized provinces, there live persons some of who are
Christians and some of whom are not Christians. In fact, the law specifically recognizes this. ( Sec.
2422, Administrative Code of 1917, etc.)
If the religious conception is not satisfactory, so against the geographical conception is likewise
inadquate. The reason it that the motive of the law relates not to a particular people, because of their
religion, or to a particular province because of its location, but the whole intent of the law is
predicated n the civilization or lack of civilization of the inhabitants.
At most, "non-Christian" is an awkward and unsatisfactory word. Apologetic words usually introduce
the term. "The so-called non-Christian" is a favorite expression. The Secretary of the Interior who for
so many years had these people under his jurisdiction, recognizing the difficulty of selecting an exact
designation, speaks of the "backward Philippine peoples, commonly known as the 'non-Christian
tribes."' (See Hearings before the Committee on the Philippines, United States Senate, Sixty-third
Congress, third session on H.R. 18459, An Act to declare the purpose of the People of the United
States as to the future political status of the Philippine Islands and to provide a more autonomous
government for the Islands, pp. 346, 351; letter of the Secretary of the Interior of June 30, 1906,
circulated by the Executive Secretary.)
The idea that the term "non-Christian" is intended to relate to degree of civilization, is substantiated
by reference to legislative, judicial, and executive authority.

The legislative intent is borne out by Acts Nos. 48, 253, 387, 1667, and 2674, and sections 701 et
seq, and sections 2422 et seq, of the Administrative Code of 1917. For instance, Act No. 253
charged the Bureau of non-Christian tribes to conduct "systematic investigations with reference to
non-Christian tribes . . . with special view to determining the most practicable means for bringing
about their advancement in civilization and material property prosperity."
As authority of a judicial nature is the decision of the Supreme Court in the case of United
States vs. Tubban [Kalinga] ([1915], 29, Phil., 434). The question here arose as to the effect of a
tribal marriage in connection with article 423 of the Penal code concerning the husband who
surprises his wife in the act of adultery. In discussing the point, the court makes use of the following
language:
. . . we are not advised of any provision of law which recognizes as legal a tribal marriage
of so-called non-Christians or members of uncivilized tribes, celebrated within that province
without compliance with the requisites prescribed by General Orders no. 68. . . . We hold
also that the fact that the accused is shown to be a member of an uncivilized tribe, of a low
order of intelligence, uncultured and uneducated, should be taken into consideration as a
second marked extenuating circumstance.
Of much more moment is the uniform construction of execution officials who have been called upon
to interpret and enforce the law. The official who, as a member of the Philippine Commission, drafted
much of the legislation relating to the so-called Christians and who had these people under his
authority, was the former Secretary of the Interior. Under date of June 30, 1906, this official
addressed a letter to all governor of provinces, organized under the Special Provincial Government
Act, a letter which later received recognition by the Governor-General and was circulated by the
Executive Secretary, reading as follows:
Sir: Within the past few months, the question has arisen as to whether people who were
originally non-Christian but have recently been baptized or who are children of persons who
have been recently baptized are, for the purposes of Act 1396 and 1397, to be considered
Christian or non-Christians.
It has been extremely difficult, in framing legislation for the tribes in these islands which are
not advanced far in civilization, to hit upon any suitable designation which will fit all cases.
The number of individual tribes is so great that it is almost out of the question to enumerate
all of them in an Act. It was finally decided to adopt the designation 'non-Christians' as the
one most satisfactory, but the real purpose of the Commission was not so much to legislate
for people having any particular religious belief as for those lacking sufficient advancement
so that they could, to their own advantage, be brought under the Provincial Government Act
and the Municipal Code.
The mere act of baptism does not, of course, in itself change the degree of civilization to
which the person baptized has attained at the time the act of baptism is performed. For
practical purposes, therefore, you will give the member of so-called "wild tribes" of your
province the benefit of the doubt even though they may recently have embraced Christianity.
The determining factor in deciding whether they are to be allowed to remain under the
jurisdiction of regularly organized municipalities or what form of government shall be afforded
to them should be the degree of civilization to which they have attained and you are
requested to govern yourself accordingly.

I have discussed this matter with the Honorable, the Governor-General, who concurs in the
opinion above expressed and who will have the necessary instructions given to the
governors of the provinces organized under the Provincial Government Act. (Internal
Revenue Manual, p. 214.)
The present Secretary of the Interior, in a memorandum furnished a member of this court, has the
following to say on the subject:
As far as names are concerned the classification is indeed unfortunate, but while no other
better classification has as yet been made the present classification should be allowed to
stand . . . I believe the term carries the same meaning as the expressed in the letter of the
Secretary of the Interior (of June 30, 1906, herein quoted). It is indicative of the degree of
civilization rather than of religious denomination, for the hold that it is indicative of religious
denomination will make the law invalid as against that Constitutional guaranty of religious
freedom.
Another official who was concerned with the status of the non-Christians, was the Collector of
Internal Revenue. The question arose for ruling relatives to the cedula taxation of the Manobos and
the Aetas. Thereupon, the view of the Secretary of the Interior was requested on the point, who, by
return indorsement, agreed with the interpretation of the Collector of Internal Revenue. This
Construction of the Collector of Internal Revenue can be found in circular letter No. 188 of the
Bureau of Internal Revenue, dated June 11, 1907, reading as follows (Internal Revenue Manual, p.
214):
The internal revenue law exempts "members of non-Christian tribes" from the payment of
cedula taxes. The Collector of Internal Revenue has interpreted this provision of law to mean
not that persons who profess some form of Christian worship are alone subject to the cedula
tax, and that all other person are exempt; he has interpreted it to mean that all persons
preserving tribal relations with the so-called non-Christian tribes are exempt from the cedula
tax, and that all others, including Jews, Mohammedans, Confucians, Buddists, etc., are
subject to said tax so long as they live in cities or towns, or in the country in a civilized
condition. In other words, it is not so much a matter of a man's form of religious worship or
profession that decides whether or not he is subject to the cedula tax; it is more dependent
on whether he is living in a civilized manner or is associated with the mountain tribes, either
as a member thereof or as a recruit. So far, this question has not come up as to whether a
Christian, maintaining his religious belief, but throwing his lot and living with a non-Christian
tribe, would or would not be subject to the cedula tax. On one occasion a prominent Hebrew
of Manila claimed to this office that he was exempt from the cedula tax, inasmuch as he was
not a Christian. This Office, however, continued to collect cedula taxes from all the Jews,
East Indians, Arabs, Chinamen, etc., residing in Manila. Quite a large proportion of the
cedula taxes paid in this city are paid by men belonging to the nationalities mentioned.
Chinamen, Arabs and other s are quite widely scattered throughout the Islands, and a
condition similar to that which exist in Manila also exists in most of the large provincial towns.
Cedula taxes are therefore being collected by this Office in all parts of these Islands on the
broad ground that civilized people are subject to such taxes, and non-civilized people
preserving their tribal relations are not subject thereto.
(Sgd.) JNO. S. HORD,
Collector of Internal Revenue.

On September 17, 1910, the Collector of Internal Revenue addressed circular letter No. 327,
approved by the Secretary of Finance and Justice, to all provincial treasurers. This letter in part
reads:
In view of the many questions that have been raised by provincial treasurers regarding
cedula taxes due from members of non-Christian tribes when they come in from the hills for
the purposes of settling down and becoming members of the body politic of the Philippine
Islands, the following clarification of the laws governing such questions and digest of rulings
thereunder is hereby published for the information of all concerned:
Non-Christian inhabitants of the Philippine Islands are so classed, not by reason of the fact
that they do not profess Christianity, but because of their uncivilized mode of life and low
state of development. All inhabitants of the Philippine Islands classed as members of nonChristian tribes may be divided into three classes in so far as the cedula tax law is concerned
...
Whenever any member of an non-Christian tribe leaves his wild and uncivilized mode of life,
severs whatever tribal relations he may have had and attaches himself civilized community,
belonging a member of the body politic, he thereby makes himself subject to precisely the
same law that governs the other members of that community and from and after the date
when he so attaches himself to the community the same cedula and other taxes are due
from him as from other members thereof. If he comes in after the expiration of the
delinquency period the same rule should apply to him as to persons arriving from foreign
countries or reaching the age of eighteen subsequent to the expiration of such period, and a
regular class A, D, F, or H cedula, as the case may be, should be furnished him without
penalty and without requiring him to pay the tax for former years.
In conclusion, it should be borne in mind that the prime factors in determining whether or not
a man is subject to the regular cedula tax is not the circumstance that he does or does not
profess Christianity, nor even his maintenance of or failure to maintain tribal relations with
some of the well known wild tribes, but his mode of life, degree of advancement in civilization
and connection or lack of connection with some civilized community. For this reason so
called "Remontados" and "Montescos" will be classed by this office as members of nonChristian tribes in so far as the application of the Internal Revenue Law is concerned, since,
even though they belong to no well recognized tribe, their mode of life, degree of
advancement and so forth are practically the same as those of the Igorrots and members of
other recognized non-Christina tribes.
Very respectfully,
(Sgd.) ELLIS CROMWELL,
Collector of Internal Revenue,
Approved:
(Sgd.) GREGORIO ARANETA,
Secretary of Finance and Justice.
The two circular above quoted have since been repealed by Bureau of Internal Revenue Regulations
No. 1, promulgated by Venancio Concepcion, Acting Collector of Internal Revenue, and approved on
April 16, 1915, by Honorable Victorino Mapa, Secretary of Finance and Justice. Section 30 of the
regulations is practically a transcript of Circular Letter No. 327.

The subject has come before the Attorney-General for consideration. The Chief of Constabulary
request the opinion of the Attorney-General as to the status of a non-Christian who has been
baptized by a minister of the Gospel. The precise questions were these: "Does he remain nonChristian or is he entitled to the privileges of a Christian? By purchasing intoxicating liquors, does he
commit an infraction of the law and does the person selling same lay himself liable under the
provision of Act No. 1639?" The opinion of Attorney-General Avancea, after quoting the same
authorities hereinbefore set out, concludes:
In conformity with the above quoted constructions, it is probable that is probable that the
person in question remains a non-Christian, so that, in purchasing intoxicating liquors both
he and the person selling the same make themselves liable to prosecution under the
provisions of Act No. 1639. At least, I advise you that these should be the constructions
place upon the law until a court shall hold otherwise.
Solicitor-General Paredes in his brief in this case says:
With respect to the meaning which the phrase non-Christian inhabitants has in the provisions
of the Administrative code which we are studying, we submit that said phrase does not have
its natural meaning which would include all non-Christian inhabitants of the Islands, whether
Filipino or strangers, civilized or uncivilized, but simply refers to those uncivilized members of
the non-Christian tribes of the Philippines who, living without home or fixed residence, roam
in the mountains, beyond the reach of law and order . . .
The Philippine Commission in denominating in its laws that portion of the inhabitants of the
Philippines which live in tribes as non-Christian tribes, as distinguished from the common
Filipinos which carry on a social and civilized life, did not intended to establish a distinction
based on the religious beliefs of the individual, but, without dwelling on the difficulties which
later would be occasioned by the phrase, adopted the expression which the Spanish
legislation employed to designate the uncivilized portion of the inhabitants of the Philippines.
The phrase 'non-Christian inhabitants' used in the provisions of articles 2077 and 2741 of Act
No. 2657 (articles 2145 and 2759) should be understood as equivalent to members of
uncivilized tribes of the Philippines, not only because this is the evident intention of the law,
but because to give it its lateral meaning would make the law null and unconstitutional as
making distinctions base the religion of the individual.
The Official Census of 1903, in the portion written by no less an authority than De. David P. Barrows,
then "Chief of the Bureau of non-Christian Tribes," divides the population in the Christian or Civilized
Tribes, and non-Christian or Wild Tribes. (Census of the Philippine Islands [1903], vol. 1, pp. 411 et
seq). The present Director of the Census, Hon. Ignacio Villamor, writes that the classification likely to
be used in the Census now being taken is: "Filipinos and Primitive Filipinos." In a Pronouncing
Gazetteer and Geographical Dictionary of the Philippine Islands, prepared in the Bureau of Insular
Affairs, War Department, a sub-division under the title non-Christian tribes is, "Physical and Political
Characteristics of the non-Christian Tribes," which sufficiently shows that the terms refers to culture
and not to religion.
In resume, therefore, the Legislature and the Judiciary, inferentially, and different executive officials,
specifically, join in the proposition that the term "non-Christian" refers, not to religious belief, but, in a
way , to geographical area, and, more directly, to natives of the Philippine Islands of a law grade of
civilization, usually living in tribal relationship apart from settled communities.
E. THE MANGUIANES.

The so-called non-Christians are in various state approaching civilization. The Philippine Census of
1903 divided them into four classes. Of the third class, are the Manguianes (or Mangyans) of
Mindoro.
Of the derivation of the name "Manguian" Dr. T. H. Pardo de Tavera in his Etimilogia de los nombres
de Rozas de Filipinas, says:
In Tagalog, Bicol, and Visaya, Manguian signifies "savage," "mountainer," "pagan," "negro." It
may be that the use of this word is applicable to a great number of Filipinos, but nevertheless
it has been applied only to certain inhabitants of Mindoro. Even in primitive times without
doubt this name was given to those of that island who bear it to-day, but its employed in
three Filipino languages shows that the radical ngian had in all these languages a sense today forgotten. In Pampango this ending still exists and signifies "ancient," from which we can
deduce that the name was applied to men considered to be the ancient inhabitants, and that
these men were pushed back into the interior by the modern invaders, in whose language
they were called the "ancients."
The Manguianes are very low in culture. They have considerable Negrito blood and have not
advanced beyond the Negritos in civilization. They are a peaceful, timid, primitive, semi-nomadic
people. They number approximately 15,000. The manguianes have shown no desire for community
life, and, as indicated in the preamble to Act No. 547, have not progressed sufficiently in civilization
to make it practicable to bring them under any form of municipal government. (See Census of the
Philippine (Islands [1903], vol. I, pp. 22, 23, 460.)
III. COMPARATIVE THE AMERICAN INDIANS.
Reference was made in the Presidents' instructions to the Commission to the policy adopted by the
United States for the Indian Tribes. The methods followed by the Government of the Philippines
Islands in its dealings with the so-called non-Christian people is said, on argument, to be practically
identical with that followed by the United States Government in its dealings with the Indian tribes.
Valuable lessons, it is insisted, can be derived by an investigation of the American-Indian policy.
From the beginning of the United States, and even before, the Indians have been treated as "in a
state of pupilage." The recognized relation between the Government of the United States and the
Indians may be described as that of guardian and ward. It is for the Congress to determine when
and how the guardianship shall be terminated. The Indians are always subject to the plenary
authority of the United States.
Chief Justice Marshall in his opinion in Worcester vs. Georgia, hereinbefore mentioned, tells how the
Congress passed an Act in 1819 "for promoting those humane designs of civilizing the neighboring
Indians." After quoting the Act, the opinion goes on "This act avowedly contemplates the
preservation of the Indian nations as an object sought by the United States, and proposes to effect
this object by civilizing and converting them from hunters into agriculturists."
A leading case which discusses the status of the Indians is that of the United States vs. Kagama
([1886], 118 U.S., 375). Reference is herein made to the clause of the United States Constitution
which gives Congress "power to regulate commerce with foreign nations, and among the several
States, and with the Indian tribes." The court then proceeds to indicate a brief history of the position
of the Indians in the United States (a more extended account of which can be found in Marshall's
opinion in Worcester vs. Georgia, supra), as follows:

The relation of the Indian tribes living within the borders of the United States, both before
and since the Revolution, to the people of the United States, has always been an anomalous
one and of a complex character.
Following the policy of the European Governments in the discovery of American towards the
Indians who were found here, the colonies before the Revolution and the States and the
United States since, have recognized in the Indians a possessory right to the soil over which
they roamed and hunted and established occasional villages. But they asserted an ultimate
title in the land itself, by which the Indian tribes were forbidden to sell or transfer it to other
nations or peoples without the consent of this paramount authority. When a tribe wished to
dispose of its lands, or any part of it, or the State or the United States wished to purchase it,
a treaty with the tribe was the only mode in which this could be done. The United States
recognized no right in private persons, or in other nations, to make such a purchase by treaty
or otherwise. With the Indians themselves these relation are equally difficult to define. They
were, and always have been, regarded as having a semi-independent position when they
preserved their tribal relations; not as States, not as nation not a possessed of the fall
attributes of sovereignty, but as a separate people, with the power of regulating their internal
and social relations, and thus far not brought under the laws of the Union or of the State
within whose limits they resided.
The opinion then continues:
It seems to us that this (effect of the law) is within the competency of Congress. These Indian
tribes are the wards of the nation. The are communities dependent on the United States.
dependent largely for their daily food. Dependent for their political rights. They owe no
allegiance to the States, and receive from the no protection. Because of the local ill feeling,
the people of the States where they are found are often their deadliest enemies. From their
very weakness and helplessness, so largely due to the course of dealing of the Federal
Government with them and the treaties in which it has been promised, there arise the duty of
protection, and with it the power. This has always been recognized by the Executive and by
Congress, and by this court, whenever the question has arisen . . . The power of the General
Government over these remnants of race once powerful, now weak and diminished in
numbers, is necessary to their protection, as well as to the safety of those among whom they
dwell. it must exist in that government, because it never has existed anywhere else, because
the theater of its exercise is within the geographical limits of the United States, because it
has never been denied, and because it alone can enforce its laws on all the tribes.
In the later case of United States vs. Sandoval ([1913], 231 U.S., 28) the question to be considered
was whether the status of the Pueblo Indians and their lands was such that Congress could prohibit
the introduction of intoxicating liquor into those lands notwithstanding the admission of New Mexico
to statehood. The court looked to the reports of the different superintendent charged with guarding
their interests and founds that these Indians are dependent upon the fostering care and protection of
the government "like reservation Indians in general." Continuing, the court said "that during the
Spanish dominion, the Indians of the pueblos were treated as wards requiring special protection,
where subjected to restraints and official supervisions in the alienation of their property." And finally,
we not the following: "Not only does the Constitution expressly authorize Congress to regulate
commerce with the Indians tribes, but long-continued legislative and executive usage and an
unbroken current of judicial decisions have attributed to the United States as a superior and civilized
nation the power and the duty of exercising a fostering care and protection over all dependent Indian
communities within its borders, whether within its original territory or territory subsequently acquired,
and whether within or without the limits of a state."

With reference to laws affecting the Indians, it has been held that it is not within the power of the
courts to overrule the judgment of Congress. For very good reason, the subject has always been
deemed political in nature, not subject to the jurisdiction of the judicial department of the
government. (Matter of Heff [1905], 197 U.S., 488; U.S. vs. Celestine [1909], 215 U.S., 278;
U.S. vs. Sandoval, supra; Worcester vs. Georgia, supra; U.S.vs. Rogers [1846], 4 How., 567; the
Cherokee Tobacco [1871], 11 Wall, 616; Roff vs. Burney [1897], 168 U.S., 218; Thomas vs. Gay
[1898], 169 U.S.., 264; Lone Wolf vs. Hitchcock[1903], 187 U.S., 553; Wallace vs. Adams [1907],
204 U.S., 415; Conley vs. Bollinger [1910], 216 U.S., 84; Tiger vs. Western Invest. Co. [1911], 221
U.S., 286; U.S. vs. Lane [1913], 232 U.S.., 598; Cyr vs. Walker (1911], 29 Okla, 281; 35 L.R.A. [N.
S.], 795.) Whenever, therefore, the United States sets apart any public land as an Indian reservation,
it has full authority to pass such laws and authorize such measures as may be necessary to give to
the Indians thereon full protection in their persons and property. (U.S. vs. Thomas [1894], 151 U.S.,
577.)
All this borne out by long-continued legislative and executive usage, and an unbroken line of judicial
decisions.
The only case which is even remotely in point and which, if followed literally, might result in the
issuance ofhabeas corpus, is that of United States vs. Crook ([1879], Fed. Cas. No. 14891). This
was a hearing upon return to a writ of habeas corpus issued against Brigadier General George
Crook at the relation of Standing Bear and other Indians, formerly belonging to the Ponca Tribe of
Indians. The petition alleged in substance that the relators are Indians who have formerly belonged
to the Ponca tribe of Indians, now located in the Indian Territory; that they had some time previously
withdrawn from the tribe, and completely severed their tribal relations therewith, and had adopted
the general habits of the whites, and were then endeavoring to maintain themselves by their own
exertions, and without aid or assistance from the general government; that whilst they were thus
engaged, and without being guilty of violating any of the laws of the United States, they were
arrested and restrained of their liberty by order of the respondent, George Crook. The substance of
the return to the writ was that the relators are individual members of, and connected with, the Ponca
tribe of Indians; that they had fled or escaped form a reservation situated some place within the
limits of the Indian Territory had departed therefrom without permission from the Government;
and, at the request of the Secretary of the Interior, the General of the Army had issued an order
which required the respondent to arrest and return the relators to their tribe in the Indian Territory,
and that, pursuant to the said order, he had caused the relators to be arrested on the Omaha Indian
Territory.
The first question was whether an Indian can test the validity of an illegal imprisonment by habeas
corpus. The second question, of much greater importance, related to the right of the Government to
arrest and hold the relators for a time, for the purpose of being returned to the Indian Territory from
which it was alleged the Indian escaped. In discussing this question, the court reviewed the policy
the Government had adopted in its dealing with the friendly tribe of Poncase. Then, continuing, the
court said: "Laws passed for the government of the Indian country, and for the purpose of regulating
trade and intercourse with the Indian tribes, confer upon certain officers of the Government almost
unlimited power over the persons who go upon the reservations without lawful authority . . . Whether
such an extensive discretionary power is wisely vested in the commissioner of Indian affairs or not ,
need not be questioned. It is enough to know that the power rightfully exists, and, where existing, the
exercise of the power must be upheld." The decision concluded as follows:
The reasoning advanced in support of my views, leads me to conclude:
1. that an Indian is a 'person' within the meaning of the laws of the United States, and has,
therefore, the right to sue out a writ of habeas corpus in a federal court, or before a federal

judge, in all cases where he may be confined or in custody under color of authority of the
United States or where he is restrained of liberty in violation of the constitution or laws of the
United States.
2. That General George Crook, the respondent, being commander of the military department
of the Platte, has the custody of the relators, under color of authority of the United States,
and in violation of the laws therefore.
3. That n rightful authority exists for removing by force any of the relators to the Indian
Territory, as the respondent has been directed to do.
4. that the Indians possess the inherent right of expatriation, as well as the more fortunate
white race, and have the inalienable right to "life, liberty, and the pursuit of happiness," so
long as they obey the laws and do not trespass on forbidden ground. And,
5. Being restrained of liberty under color of authority of the United States, and in violation of
the laws thereof, the relators must be discharged from custody, and it is so ordered.
As far as the first point is concerned, the decision just quoted could be used as authority to
determine that Rubi, the Manguian petitioner, a Filipino, and a citizen of the Philippine Islands, is a
"person" within the meaning of theHabeas Corpus Act, and as such, entitled to sue out a writ in the
Philippine courts. (See also In re Race Horse [1895], 70 Fed., 598.) We so decide.
As to the second point the facts in the Standing Bear case an the Rubi case are not exactly identical.
But even admitting similarity of facts, yet it is known to all that Indian reservations do exist in the
United States, that Indians have been taken from different parts of the country and placed on these
reservation, without any previous consultation as to their own wishes, and that, when once so
located, they have been made to remain on the reservation for their own good and for the general
good of the country. If any lesson can be drawn form the Indian policy of the United States, it is that
the determination of this policy is for the legislative and executive branches of the government and
that when once so decided upon, the courts should not interfere to upset a carefully planned
governmental system. Perhaps, just as may forceful reasons exists for the segregation as existed for
the segregation of the different Indian tribes in the United States.
IV. CONSTITUTIONAL QUESTIONS.
A. DELEGATION OF LEGISLATIVE POWER.
The first constitutional objection which confronts us is that the Legislature could not delegate this
power to provincial authorities. In so attempting, it is contended, the Philippine Legislature has
abdicated its authority and avoided its full responsibility.
That the maxim of Constitutional Law forbidding the delegation of legislative power should be
zealously protected, we agree. An understanding of the rule will, however, disclose that it has not
bee violated in his instance.
The rule has nowhere been better stated than in the early Ohio case decided by Judge Ranney, and
since followed in a multitude of case, namely: "The true distinction therefore is between the
delegation of power to make the law, which necessarily involves a discretion as to what it shall be,
and conferring an authority or discretion as to its execution, to be exercised under and in pursuance
of the law. The first cannot be done; to the later no valid objection can be made." (Cincinnati, W. & Z.

R. Co. vs. Comm'rs. Clinton County [1852], 1 Ohio S.t, 88.) Discretion, as held by Chief Justice
Marshall in Wayman vs. Southard ([1825], 10 Wheat., 1) may be committed by the Legislature to an
executive department or official. The Legislature may make decisions of executive departments of
subordinate official thereof, to whom t has committed the execution of certain acts, final on questions
of fact. (U.S. vs. Kinkead [1918], 248 Fed., 141.) The growing tendency in the decision is to give
prominence to the "necessity" of the case.
Is not all this exactly what the Legislature has attempted to accomplish by the enactment of section
21454 of the Administrative Code? Has not the Legislature merely conferred upon the provincial
governor, with the approval of the provincial board and the Department Head, discretionary authority
as to the execution of the law? Is not this "necessary"?
The case of West vs. Hitchock, ([1906], 205 U.S., 80) was a petition for mandamus to require the
Secretary of the Interior to approve the selection and taking of one hundred and sixty acres by the
relator out of the lands ceded to the United States by the Wichita and affiliated bands of Indians.
Section 463 of the United States Revised Statutes provided: "The Commissioner of Indian Affairs
shall, under the direction of the Secretary of the Interior, and agreeably to such regulations as the
President may prescribe, have the management of all Indian affairs, and of all matters arising out to
the Indian relations." Justice Holmes said: "We should hesitate a good deal, especially in view of the
long established practice of the Department, before saying that this language was not broad enough
to warrant a regulation obviously made for the welfare of the rather helpless people concerned. The
power of Congress is not doubted. The Indians have been treated as wards of the nation. Some
such supervision was necessary, and has been exercised. In the absence of special provisions
naturally it would be exercised by the Indian Department." (See also as corroborative authority, it any
is needed, Union Bridge Co. vs. U.S. [1907], 204 U.S.., 364, reviewing the previous decisions of the
United States Supreme Court: U.S. vs. Lane [1914], 232 U.S., 598.)
There is another aspect of the question, which once accepted, is decisive. An exception to the
general rule. sanctioned by immemorial practice, permits the central legislative body to delegate
legislative powers to local authorities. The Philippine Legislature has here conferred authority upon
the Province of Mindoro, to be exercised by the provincial governor and the provincial board.
Who but the provincial governor and the provincial board, as the official representatives of the
province, are better qualified to judge "when such as course is deemed necessary in the interest of
law and order?" As officials charged with the administration of the province and the protection of its
inhabitants, who but they are better fitted to select sites which have the conditions most favorable for
improving the people who have the misfortune of being in a backward state?
Section 2145 of the Administrative Code of 1917 is not an unlawful delegation of legislative power by
the Philippine Legislature to provincial official and a department head.
B. RELIGIOUS DISCRIMINATION
The attorney de officio, for petitioners, in a truly remarkable brief, submitted on behalf of his
unknown clients, says that "The statute is perfectly clear and unambiguous. In limpid English, and
in words as plain and unequivocal as language can express, it provides for the segregation of 'nonChristians' and none other." The inevitable result, them, is that the law "constitutes an attempt by the
Legislature to discriminate between individuals because of their religious beliefs, and is,
consequently, unconstitutional."
Counsel's premise once being conceded, his arguments is answerable the Legislature must be
understood to mean what it has plainly expressed; judicial construction is then excluded; religious

equality is demanded by the Organic Law; the statute has violated this constitutional guaranty, and
Q. E. D. is invalid. But, as hereinbefore stated, we do not feel free to discard the long continued
meaning given to a common expression, especially as classification of inhabitants according to
religious belief leads the court to what it should avoid, the nullification of legislative action. We hold
that the term "non-Christian" refers to natives of the Philippines Islands of a low grade of civilization,
and that section 2145 of the Administrative Code of 1917, does not discriminate between individuals
an account of religious differences.
C. LIBERTY; DUE PROCESS OF LAW; EQUAL PROTECTION OF THE LAWS.
The third constitutional argument is grounded on those portions of the President's instructions of to
the Commission, the Philippine Bill, and the Jones Law, providing "That no law shall be enacted in
said Islands which shall deprive any person of life, liberty, or property without due process of law, or
deny to any person therein the equal protection of the laws." This constitutional limitation is derived
from the Fourteenth Amendment to the United States Constitution and these provisions, it has
been said "are universal in their application, to all persons within the territorial jurisdiction, without
regard to any differences of race, of color, or of nationality." (Yick Wo vs. Hopkins [1886], 118 U.S.,
356.) The protection afforded the individual is then as much for the non-Christian as for the Christian.
The conception of civil liberty has been variously expressed thus:
Every man may claim the fullest liberty to exercise his faculties, compatible with the
possession of like liberty by every other. (Spencer, Social Statistics, p. 94.)
Liberty is the creature of law, essentially different from that authorized licentiousness that
trespasses on right. That authorized licentiousness that trespasses on right. It is a legal and
a refined idea, the offspring of high civilization, which the savage never understood, and
never can understand. Liberty exists in proportion to wholesome restraint; the more restraint
on others to keep off from us, the more liberty we have . . . that man is free who is protected
from injury. (II Webster's Works, p. 393.)
Liberty consists in the ability to do what one caught to desire and in not being forced to do
what one ought not do desire. (Montesque, spirit of the Laws.)
Even liberty itself, the greatest of all rights, is no unrestricted license to ac according to one's
own will. It is only freedom from restraint under conditions essential to the equal enjoyment
of the same right by others. (Field, J., in Crowley vs. Christensen [1890], 137 U.S., 86.)
Liberty does not import "an absolute right in each person to be, at all times and in all
circumstances, wholly freed from restraint. There are manifold restraints to which every
person is necessarily subject for the common good. On any other basis, organized society
could not exist with safety to its members. Society based on the rule that each one is a law
unto himself would soon be confronted with disorder and anarchy. Real liberty for all could
not exist under the operation of a principle which recognizes the right of each individual
person to use his own, whether in respect of his person or his property, regardless of the
injury that may be done to others . . . There is, of course, a sphere with which the individual
may asserts the supremacy of his own will, and rightfully dispute the authority of any human
government especially of any free government existing under a written Constitution to
interfere with the exercise of that will. But it is equally true that in very well-ordered society
charged with the duty of conserving the safety of its members, the rights of the individual in
respect of his liberty may at times, under the pressure of great dangers, be subjected to such

restraint to be enforced by reasonable regulations, as the safety of the general public may
demand." (Harlan, J., In Jacobson vs. Massachusetts [1905] 197 U.S., 11.)
Liberty is freedom to do right and never wrong; it is ever guided by reason and the upright
and honorable conscience of the individual. (Apolinario Mabini.)
Civil Liberty may be said to mean that measure of freedom which may be enjoyed in a civilized
community, consistently with the peaceful enjoyment of like freedom in others. The right to Liberty
guaranteed by the Constitution includes the right to exist and the right to be free from arbitrary
personal restraint or servitude. The term cannot be dwarfed into mere freedom from physical
restraint of the person of the citizen, but is deemed to embrace the right of man to enjoy the faculties
with which he has been endowed by this Creator, subject only to such restraints as are necessary for
the common welfare. As enunciated in a long array of authorities including epoch-making decisions
of the United States Supreme Court, Liberty includes the right of the citizens to be free to use his
faculties in all lawful ways; to live an work where he will; to earn his livelihood by an lawful calling; to
pursue any avocations, an for that purpose. to enter into all contracts which may be proper,
necessary, and essential to his carrying out these purposes to a successful conclusion. The chief
elements of the guaranty are the right to contract, the right to choose one's employment, the right to
labor, and the right of locomotion.
In general, it may be said that Liberty means the opportunity to do those things which are ordinarily
done by free men. (There can be noted Cummings vs. Missouri [1866], 4 Wall, 277;
Wilkinson vs. Leland [1829], 2 Pet., 627; Williams vs. Fears [1900], 179 U.S., 274;
Allgeyer vs. Louisiana [1896], 165, U.S., 578; State vs. Kreutzberg [1902], 114 Wis., 530. See 6
R.C.L., 258, 261.)
One thought which runs through all these different conceptions of Liberty is plainly apparent. It is
this: "Liberty" as understood in democracies, is not license; it is "Liberty regulated by law." Implied in
the term is restraint by law for the good of the individual and for the greater good of the peace and
order of society and the general well-being. No man can do exactly as he pleases. Every man must
renounce unbridled license. The right of the individual is necessarily subject to reasonable restraint
by general law for the common good. Whenever and wherever the natural rights of citizen would, if
exercises without restraint, deprive other citizens of rights which are also and equally natural, such
assumed rights must yield to the regulation of law. The Liberty of the citizens may be restrained in
the interest of the public health, or of the public order and safety, or otherwise within the proper
scope of the police power. (See Hall vs. Geiger-Jones [1916], 242 U.S., 539; Hardie-Tynes
Manufacturing Co. vs.Cruz [1914], 189 Al., 66.)
None of the rights of the citizen can be taken away except by due process of law. Daniel Webster, in
the course of the argument in the Dartmouth College Case before the United States Supreme Court,
since a classic in forensic literature, said that the meaning of "due process of law" is, that "every
citizen shall hold his life, liberty, property, an immunities under the protection of the general rules
which govern society." To constitute "due process of law," as has been often held, a judicial
proceeding is not always necessary. In some instances, even a hearing and notice are not requisite
a rule which is especially true where much must be left to the discretion of the administrative officers
in applying a law to particular cases. (See McGehee, Due Process of Law, p. 371.) Neither is due
process a stationary and blind sentinel of liberty. "Any legal proceeding enforced by public authority,
whether sanctioned by age and customs, or newly devised in the discretion of the legislative power,
in furtherance of the public good, which regards and preserves these principles of liberty and justice,
must be held to be due process of law." (Hurtado vs. California [1883], 110, U.S., 516.) "Due process
of law" means simply . . . "first, that there shall be a law prescribed in harmony with the general
powers of the legislative department of the Government; second, that this law shall be reasonable in

its operation; third, that it shall be enforced according to the regular methods of procedure
prescribed; and fourth, that it shall be applicable alike to all the citizens of the state or to all of a
class." (U.S. vs. Ling Su Fan [1908], 10 Phil., 104, affirmed on appeal to the United States Supreme
Court. 1) "What is due process of law depends on circumstances. It varies with the subject-matter
and necessities of the situation." (Moyer vs. Peablody [1909], 212 U. S., 82.)
The pledge that no person shall be denied the equal protection of the laws is not infringed by a
statute which is applicable to all of a class. The classification must have a reasonable basis and
cannot be purely arbitrary in nature.
We break off with the foregoing statement, leaving the logical deductions to be made later on.
D. SLAVERY AND INVOLUNTARY SERVITUDE.
The fourth constitutional contention of petitioner relates to the Thirteen Amendment to the United
States Constitution particularly as found in those portions of Philippine Organic Law providing "That
slavery shall not exist in said Islands; nor shall involuntary servitude exist except as a punishment for
crime whereof the party shall have been duly convicted." It is quite possible that the Thirteenth
Amendment, since reaching to "any place subject to" the "jurisdiction" of the United States, has force
in the Philippine. However this may be, the Philippine Legislature has, by adoption, with necessary
modifications, of sections 268 to 271 inclusive of the United States Criminal Code, prescribed the
punishment for these crimes. Slavery and involuntary servitude, together wit their corollary, peonage,
all denote "a condition of enforced, compulsory service of one to another." (Hodges vs. U.S. [1906],
203 U.S., 1.) The term of broadest scope is possibly involuntary servitude. It has been applied to any
servitude in fact involuntary, no matter under what form such servitude may have been disguised.
(Bailey vs. Alabama [1910], 219 U.S., 219.)
So much for an analysis of those constitutional provisions on which petitioners rely for their freedom.
Next must come a description of the police power under which the State must act if section 2145 is
to be held valid.
E. THE POLICE POWER.
Not attempting to phrase a definition of police power, all that it is necessary to note at this moment is
the farreaching scope of the power, that it has become almost possible to limit its weep, and that
among its purposes is the power to prescribe regulations to promote the health, peace, morals,
education, and good order of the people, and to legislate so as to increase the industries of the
State, develop its resources and add to is wealth and prosperity. (See Barbier vs. Connolly [1884],
113 U.S., 27.) What we are not interested in is the right of the government to restrain liberty by the
exercise of the police power.
"The police power of the State," one court has said, . . . "is a power coextensive with self-protection,
and is not inaptly termed the 'law of overruling necessity.' It may be said to be that inherent and
plenary power in the State which enables it to prohibit all things hurtful to the comfort, safety and
welfare of society." (Lake View vs. Rose Hill Cemetery Co. [1873], 70 Ill., 191.) Carried onward by
the current of legislation, the judiciary rarely attempt to dam the on rushing power of legislative
discretion, provided the purposes of the law do not go beyond the great principles that mean security
for the public welfare or do not arbitrarily interfere with the right of the individual.
The Government of the Philippine Islands has both on reason and authority the right to exercise the
sovereign police power in the promotion of the general welfare and the public interest. "There can be
not doubt that the exercise of the police power of the Philippine Government belongs to the

Legislature and that this power is limited only by the Acts of Congress and those fundamental
principles which lie at the foundation of all republican forms of government." (Churchill and
Tait vs. Rafferty [1915], 32 Phil., 580; U.S. vs. Pompeya [1915], 31 Phil., 245.)
With the foregoing approximation of the applicable basic principles before us, before finally deciding
whether any constitutional provision has indeed been violated by section 2145 of the Administrative
Code, we should endeavor to ascertain the intention of the Legislature in enacting this section. If
legally possible, such legislative intention should be effectuated.
F. LEGISLATIVE INTENT.
The preamble of the resolution of the provincial board of Mindoro which set apart the Tigbao
reservation, it will be remembered, assigned as reasons fort the action, the following: (1) The failure
of former attempts for the advancement of the non-Christian people of the province; and (2) the only
successfully method for educating the Manguianes was to oblige them to live in a permanent
settlement. The Solicitor-General adds the following; (3) The protection of the Manguianes; (4) the
protection of the public forests in which they roam; (5) the necessity of introducing civilized customs
among the Manguianes.
The present Secretary of the Interior says of the Tigbao reservation and of the motives for its
selection, the following:
To inform himself of the conditions of those Manguianes who were taken together to Tigbao,
the Secretary of the Interior on June 10 to 13, 1918, made a trip to the place. There he found
that the site selected is a good one; that creditable progress has been made in the clearing
of forests, construction of buildings, etc., that there appears to be encouraging reaction by
the boys to the work of the school the requirements of which they appear to meet with
enthusiastic interest after the first weeks which are necessarily a somewhat trying period for
children wholly unaccustomed to orderly behaviour and habit of life. He also gathered the
impression that the results obtained during the period of less than one year since the
beginning of the institution definitely justify its continuance and development.
Of course, there were many who were protesting against that segregation. Such was
naturally to be expected. But the Secretary of the Interior, upon his return to Manila, made
the following statement to the press:
"It is not deemed wise to abandon the present policy over those who prefer to live a
nomadic life and evade the influence of civilization. The Government will follow its
policy to organize them into political communities and to educate their children with
the object of making them useful citizens of this country. To permit them to live a
wayfaring life will ultimately result in a burden to the state and on account of their
ignorance, they will commit crimes and make depredation, or if not they will be
subject to involuntary servitude by those who may want to abuse them."
The Secretary of the Interior, who is the official charged with the supervision of all the non-Christian
people, has adopted as the polaris of his administration "the advancement of the non-Christian
elements of our population to equality and unification with the highly civilized Christian inhabitants."
This is carried on by the adoption of the following measures:
(a) Pursuance of the closer settlement policy whereby people of seminomadic race are
induced to leave their wild habitat and settle in organized communities.

(b) The extension of the public school system and the system of public health throughout the
regions inhabited by the non-Christian people.
(c) The extention of public works throughout the Mohammedan regions to facilitate their
development and the extention of government control.
(d) Construction of roads and trials between one place and another among non-Christians, to
promote social and commercial intercourse and maintain amicable relations among them
and with the Christian people.
(e) Pursuance of the development of natural economic resources, especially agriculture.
( f ) The encouragement of immigration into, and of the investment of private capital in, the
fertile regions of Mindanao and Sulu.
The Secretary adds:
To attain the end desired, work of a civilizing influence have been continued among the nonChristian people. These people are being taught and guided to improve their living conditions
in order that they may fully appreciate the benefits of civilization. Those of them who are still
given to nomadic habits are being persuaded to abandon their wild habitat and settle in
organized settlements. They are being made to understand that it is the purpose of the
Government to organize them politically into fixed and per manent communities, thus
bringing them under the control of the Government, to aid them to live and work, protect
them from involuntary servitude and abuse, educate their children, and show them the
advantages of leading a civilized life with their civilized brothers. In short, they are being
impressed with the purposes and objectives of the Government of leading them to economic,
social, and political equality, and unification with the more highly civilized inhabitants of the
country. (See Report of the Department for 1917.)
The fundamental objective of governmental policy is to establish friendly relations with the so-called
non-Christians, and to promote their educational, agricultural, industrial, and economic development
and advancement in civilization. (Note Acts Nos. 2208, 2404, 2444.) Act No. 2674 in reestablishing
the Bureau of non-Christian Tribes, defines the aim of the Government towards the non-Christian
people in the following unequivocal terms:
It shall be the duty of the Bureau of non-Christian Tribes to continue the work for
advancement and liberty in favor of the region inhabited by non-Christian Filipinos and foster
by all adequate means and in a systematical, rapid, and complete manner the moral,
material, economic, social, and political development of those regions, always having in view
the aim of rendering permanent the mutual intelligence between, and complete fusion of, all
the Christian and non-Christian elements populating the provinces of the Archipelago. (Sec.
3.)
May the Manguianes not be considered, as are the Indians in the United States, proper wards of the
Filipino people? By the fostering care of a wise Government, may not these unfortunates advance in
the "habits and arts of civilization?" Would it be advisable for the courts to intrude upon a plan,
carefully formulated, and apparently working out for the ultimate good of these people?
In so far as the Manguianes themselves are concerned, the purpose of the Government is evident.
Here, we have on the Island of Mindoro, the Manguianes, leading a nomadic life, making

depredations on their more fortunate neighbors, uneducated in the ways of civilization, and doing
nothing for the advancement of the Philippine Islands. What the Government wished to do by
bringing than into a reservation was to gather together the children for educational purposes, and to
improve the health and morals was in fine, to begin the process of civilization. this method was
termed in Spanish times, "bringing under the bells." The same idea adapted to the existing situation,
has been followed with reference to the Manguianes and other peoples of the same class, because
it required, if they are to be improved, that they be gathered together. On these few reservations
there live under restraint in some cases, and in other instances voluntarily, a few thousands of the
uncivilized people. Segregation really constitutes protection for the manguianes.
Theoretically, one may assert that all men are created free and equal. Practically, we know that the
axiom is not precisely accurate. The Manguianes, for instance, are not free, as civilized men are
free, and they are not the equals of their more fortunate brothers. True, indeed, they are citizens,
with many but not all the rights which citizenship implies. And true, indeed, they are Filipinos. But just
as surely, the Manguianes are citizens of a low degree of intelligence, and Filipinos who are a drag
upon the progress of the State.
In so far as the relation of the Manguianes to the State is concerned, the purposes of the Legislature
in enacting the law, and of the executive branch in enforcing it, are again plain. Settlers in Mindoro
must have their crops and persons protected from predatory men, or they will leave the country. It is
no argument to say that such crimes are punished by the Penal Code, because these penalties are
imposed after commission of the offense and not before. If immigrants are to be encouraged to
develop the resources of the great Islands of Mindoro, and its, as yet, unproductive regions, the
Government must be in a position to guarantee peace and order.
Waste lands do not produce wealth. Waste people do not advance the interest of the State. Illiteracy
and thriftlessness are not conducive to homogeneity. The State to protect itself from destruction must
prod on the laggard and the sluggard. The great law of overwhelming necessity is all convincing.
To quote again from the instructive memorandum of the Secretary of the Interior:
Living a nomadic and a wayfaring life and evading the influence of civilization, they (the
manguianes) are engaged in the works of destruction burning and destroying the forests
and making illegal caigins thereon. Not bringing any benefit to the State but instead injuring
and damaging its interests, what will ultimately become of these people with the sort of
liberty they wish to preserve and for which they are now fighting in court? They will ultimately
become a heavy burden to the State and on account of their ignorance they will commit
crimes and make depredations, or if not they will be subjected to involuntary servitude by
those who may want to abuse them.
There is no doubt in my mind that this people a right conception of liberty and does not
practice liberty in a rightful way. They understand liberty as the right to do anything they will
going from one place to another in the mountains, burning and destroying forests and
making illegal caigins thereon.
Not knowing what true liberty is and not practising the same rightfully, how can they allege
that they are being deprived thereof without due process of law?
xxx

xxx

xxx

But does the Constitutional guaranty that 'no person shall be deprived of his liberty without
due process of law' apply to a class of persons who do not have a correct idea of what liberty
is and do not practise liberty in a rightful way?
To say that it does will mean to sanction and defend an erroneous idea of such class of
persons as to what liberty is. It will mean, in the case at bar, that the Government should not
adopt any measures looking to the welfare and advancement of the class of persons in
question. It will mean that this people should be let along in the mountains and in a
permanent state of savagery without even the remotest hope of coming to understand liberty
in its true and noble sense.
In dealing with the backward population, like the Manguianes, the Government has been
placed in the alternative of either letting them alone or guiding them in the path of civilization.
The latter measure was adopted as the one more in accord with humanity and with national
conscience.
xxx

xxx

xxx

The national legislation on the subject of non-Christian people has tended more and more
towards the education and civilization of such people and fitting them to be citizens. The
progress of those people under the tutelage of the Government is indeed encouraging and
the signs of the times point to a day which is not far distant when they will become useful
citizens. In the light of what has already been accomplished which has been winning the
gratitude of most of the backward people, shall we give up the noble work simply because a
certain element, believing that their personal interests would be injured by such a measure
has come forward and challenged the authority of the Government to lead this people in the
pat of civilization? Shall we, after expending sweat, treasure, and even blood only to redeem
this people from the claws of ignorance and superstition, now willingly retire because there
has been erroneously invoked in their favor that Constitutional guaranty that no person shall
be deprived of his liberty without due process of law? To allow them to successfully invoke
that Constitutional guaranty at this time will leave the Government without recourse to
pursue the works of civilizing them and making them useful citizens. They will thus left in a
permanent state of savagery and become a vulnerable point to attack by those who doubt,
nay challenge, the ability of the nation to deal with our backward brothers.
The manguianes in question have been directed to live together at Tigbao. There they are
being taught and guided to improve their living conditions. They are being made to
understand that they object of the government is to organize them politically into fixed and
permanent communities. They are being aided to live and work. Their children are being
educated in a school especially established for them. In short, everything is being done from
them in order that their advancement in civilization and material prosperity may be assured.
Certainly their living together in Tigbao does not make them slaves or put them in a condition
compelled to do services for another. They do not work for anybody but for themselves.
There is, therefore, no involuntary servitude.
But they are compelled to live there and prohibited from emigrating to some other places
under penalty of imprisonment. Attention in this connection is invited to the fact that this
people, living a nomadic and wayfaring life, do not have permanent individual property. They
move from one place to another as the conditions of living warrants, and the entire space
where they are roving about is the property of the nation, the greater part being lands of
public domain. Wandering from one place to another on the public lands, why can not the
government adopt a measure to concentrate them in a certain fixed place on the public

lands, instead of permitting them to roam all over the entire territory? This measure is
necessary both in the interest of the public as owner of the lands about which they are roving
and for the proper accomplishment of the purposes and objectives of the government. For as
people accustomed to nomadic habit, they will always long to return to the mountains and
follow a wayfaring life, and unless a penalty is provinced for, you can not make them live
together and the noble intention of the Government of organizing them politically will come to
naught.
G. APPLICATION AND CONCLUSION.
Our exhaustive study should have left us in a position to answer specific objections and to reach a
general conclusion.
In the first place, it is argued that the citizen has the right, generally speaking, to go where he
pleases. Could be not, however, be kept away from certain localities ? To furnish an example from
the Indian legislation. The early Act of Congress of 1802 (2 U.S. Stat. at L., p. 141) Indian
reservation. Those citizens certainly did not possess absolute freedom of locomotion. Again the
same law provided for the apprehension of marauding Indians. Without any doubt, this law and other
similar were accepted and followed time and again without question.
It is said that, if we hold this section to be constitutional, we leave this weak and defenseless people
confined as in a prison at the mercy of unscrupulous official. What, it is asked, would be the remedy
of any oppressed Manguian? The answer would naturally be that the official into whose hands are
given the enforcement of the law would have little or not motive to oppress these people; on the
contrary, the presumption would all be that they would endeavor to carry out the purposes of the law
intelligently and patriotically. If, indeed, they did ill-treat any person thus confined, there always
exists the power of removal in the hands of superior officers, and the courts are always open for a
redress of grievances. When, however, only the validity of the law is generally challenged and no
particular case of oppression is called to the attention of the courts, it would seems that the Judiciary
should not unnecessarily hamper the Government in the accomplishment of its laudable purpose.
The question is above all one of sociology. How far, consistently with freedom, may the right and
liberties of the individual members of society be subordinated to the will of the Government? It is a
question which has assailed the very existence of government from the beginning of time. Now
purely an ethical or philosophical subject, nor now to be decided by force, it has been transferred to
the peaceful forum of the Judiciary. In resolving such an issue, the Judiciary must realize that the
very existence of government renders imperatives a power to restrain the individual to some extent,
dependent, of course, on the necessities of the class attempted to be benefited. As to the particular
degree to which the Legislature and the Executive can go in interfering with the rights of the citizen,
this is, and for a along time to come will be, impossible for the courts to determine.
The doctrines of laissez faire and of unrestricted freedom of the individual, as axioms of economics
and political theory, are of the past. The modern period has shown as widespread belief in the
amplest possible demonstration of governmental activity. The courts unfortunately have sometimes
seemed to trial after the other two branches of the government in this progressive march.
Considered, therefore, purely as an exercise of the police power, the courts cannot fairly say that the
Legislature has exceeded its rightful authority. it is, indeed, an unusual exercise of that power. But a
great malady requires an equally drastic remedy.
Further, one cannot hold that the liberty of the citizen is unduly interfered without when the degree of
civilization of the Manguianes is considered. They are restrained for their own good and the general

good of the Philippines. Nor can one say that due process of law has not been followed. To go back
to our definition of due process of law and equal protection of the law, there exists a law ; the law
seems to be reasonable; it is enforced according to the regular methods of procedure prescribed;
and it applies alike to all of a class.
As a point which has been left for the end of this decision and which, in case of doubt, would lead to
the determination that section 2145 is valid. it the attitude which the courts should assume towards
the settled policy of the Government. In a late decision with which we are in full accord,
Gambles vs. Vanderbilt University (200 Southwestern Reporter, 510) the Chief Justice of the
Supreme Court of Tennessee writes:
We can seen objection to the application of public policy as a ratio decidendi. Every really new
question that comes before the courts is, in the last analysis, determined on that theory, when not
determined by differentiation of the principle of a prior case or line of cases, or by the aid of
analogies furnished by such prior case. In balancing conflicting solutions, that one is perceived to tip
the scales which the court believes will best promote the public welfare in its probable operation as a
general rule or principle. But public policy is not a thing inflexible. No court is wise enough to forecast
its influence in all possible contingencies. Distinctions must be made from time to time as sound
reason and a true sense of justice may dictate."
Our attempt at giving a brief history of the Philippines with reference to the so-called non-Christians
has been in vain, if we fail to realize that a consistent governmental policy has been effective in the
Philippines from early days to the present. The idea to unify the people of the Philippines so that
they may approach the highest conception of nationality. If all are to be equal before the law, all must
be approximately equal in intelligence. If the Philippines is to be a rich and powerful country, Mindoro
must be populated, and its fertile regions must be developed. The public policy of the Government of
the Philippine Islands is shaped with a view to benefit the Filipino people as a whole. The
Manguianes, in order to fulfill this governmental policy, must be confined for a time, as we have said,
for their own good and the good of the country.
Most cautiously should the power of this court to overrule the judgment of the Philippine Legislature,
a coordinate branch, be exercised. The whole tendency of the best considered case is toward noninterference on the part of the courts whenever political ideas are the moving consideration. Justice
Holmes, in one of the aphorisms for which he is justly famous, said that "constitutional law, like other
mortal contrivances, has to take some chances." (Blinn vs. Nelson [1911], 222 U.S., 1.) If in the final
decision of the many grave questions which this case presents, the courts must take "a chance," it
should be with a view to upholding the law, with a view to the effectuation of the general
governmental policy, and with a view to the court's performing its duty in no narrow and bigoted
sense, but with that broad conception which will make the courts as progressive and effective a force
as are the other departments of the Government.
We are of the opinion that action pursuant to section 2145 of the Administrative Code does not
deprive a person of his liberty without due process of law and does not deny to him the equal
protection of the laws, and that confinement in reservations in accordance with said section does not
constitute slavery and involuntary servitude. We are further of the opinion that section 2145 of the
Administrative Code is a legitimate exertion of the police power, somewhat analogous to the Indian
policy of the United States. Section 2145 of the Administrative Code of 1917 is constitutional.
Petitioners are not unlawfully imprisoned or restrained of their liberty. Habeas corpus can, therefore,
not issue. This is the true ruling of the court. Costs shall be taxes against petitioners. So ordered.
Arellano, C.J., Torres and Avancea, JJ., concur.

Separate Opinions
CARSON, J., concurring:
I fully concur in the reasoning and the conclusions of Justice Malcolm as set forth in the prevailing,
opinion.
The words "non-Christian' have a clear, definite and well settled signification when used in the
Philippine statute-book as a descriptive adjective, applied to "tribes," "people," or "inhabitants,"
dwelling in more or less remote districts and provinces throughout the Islands.
Justice Malcolm, as I think, correctly finds that these words, as used in this connection in our statutebook, denote the 'low grace of civilization" of the individuals included in the class to which they are
applied. To this I would add that the tests for the determination of the fact that an individual or tribes
is, or is not of the "non-Christian" are, and throughout the period of American occupation always
have been, "the mode of life, the degree of advancement in civilization, and connection or lack of
connection with some civilized community." (Cf. letter of Collector of Internal Revenue dated
September 17, 1910, and set out in the principal opinion.)
The legislative and administrative history of the Philippine Islands clearly discloses that the standard
of civilization to which a specific tribe must be found to have advanced, to justify its removal from the
class embraces with the descriptive term "non-Christian," as that term is used in the Philippine
statute-book, is that degree of civilization which results in a mode of life within the tribe, such that it
is feasible and practicable to extend to, and enforce upon its membership the general laws and
regulations, administrative, legislative, and judicial, which control the conduct of the admitted
civilized inhabitants of the Islands; a made of life, furthermore, which does not find expression in
tribal customs or practices which tend to brutalize or debauch the members of the tribe indulging in
such customs or practices, or to expose to loss or peril the lives or property of those who may be
brought in contact with members of the tribe.
So the standard of civilization to which any given number or group of inhabitants of particular
province in these Islands, or any individual member of such a group, must be found to have
advanced, in order to remove such group or individual from the class embraced within the statutory
description of "non-Christian," is that degree of civilization which would naturally and normally result
in the withdrawal by such persons of permanent allegiance or adherence to a "non-Christian" tribe,
had they at any time adhered to or maintained allegiance to such a tribe; and which would qualify
them whether they reside within or beyond the habitat of a "non-Christian" tribe, not only to maintain
a mode of life independent of a apart from that maintain by such tribe, but a mode of life as would
not be inimical to the lives or property or general welfare of the civilized inhabitants of the Islands
with whom they are brought in contact.
The contention that, in this particular case, and without challenging the validity of the statute, the writ
should issue because of the failure to give these petitioners, as well as the rest of the fifteen
thousand Manguianes affected by the reconcentration order, an opportunity to be heard before any
attempt was made to enforce it, begs the question and is, of course, tantamount to a contention that
there is no authority in law for the issuance of such an order.
If the fifteen thousand manguianes affected by the order complained of had attained that degree of
civilization which would have made it practicable to serve notice upon, and give an opportunity for a

real hearing, to all the members of the tribe affected by the order, it may well be doubted whether the
provincial board and the Secretary of the Interior would have been justified in its enforcement By
what proceeding known to the law, or to be specially adopted in a particular case, could the offices of
any province provide for a genuine hearing upon a proposal to issue a reconcentration order upon a
head-hunting tribe in the north of the Island of Luzon; or upon one of the nomadic tribes
whose habitat is in the mountain fastnesses of Mindanao, and whose individual members have no
fixed or known place of residence, or upon the fifteen thousand Manguianes roaming in the wilds of
Mindoro.
Of course, friendly headmen or chief might and, as a rule, should be consulted, after the practice in
the United States when tribes or groups of American Indians have been placed upon reservations;
but since non-Christian head men and chiefs in the Philippines have no lawful authority to bind their
acts or their consent, the objection based on lack of a hearing, would have the same force whether
the issuance of a reconcentration order was or was not preceded by a pow-wow of this kind.
The truth of the mater is that the power to provide for the issuance of such orders rests upon
analogous principles to those upon which the liberty and freedom or action of children and persons
of unsound minds is restrained, without consulting their wishes, but for their own good and the
general welfare. The power rests upon necessity, that "great master of all things," and is properly
exercised only where certain individuals or groups of individual are found to be of such a low grade
of civilization that their own wishes cannot be permitted to determine their mode of life or place of
residence.
The status of the non-Christian inhabitants of these Islands, and the special and necessarily paternal
attitude assume toward them by the Insular Government is well illustrated by the following provisions
found in the Administrative Code of 1917:
SEC. 705. Special duties and purposes of Bureau (of non-Christian tribes). It shall be the
duty of the Bureau of non-Christian tribes to continue the work for advancement and liberty
in favor of the regions inhabited by non-Christian Filipinos and to foster by all adequate
means and in a systematic, rapid, and completely manner the moral, material, economic,
social and political development of those regions, always having in view the aim of rendering
permanent the mutual intelligence between and complete fusion of all the Christian and nonChristian elements populating the provinces of the Archipelago.
SEC. 2116. Township and settlement fund. There shall be maintained in the provincial
treasuries of the respective specially organized provinces a special fund to be known as the
township and settlement fund, which shall be available, exclusively, for expenditures for the
benefit of the townships and settlements of the province, and non-Christian inhabitants of the
province, upon approval of the Secretary of the Interior.
As I understand it, the case at bar does not raise any real question as to the jurisdiction of the courts
of these Islands in habeas corpus proceedings, to review the action of the administrative authorities
in the enforcement of reconcentration orders issued, under authority of section 2145 of the
Administrative Code, against a petitioner challenging the alleged fact that he is a "non-Christian" as
that term is used in the statute. I, therefore, express no opinion on that question at this time.

JOHNSON, J., dissenting:

I dissent. The petitioners were deprived of their liberty without a hearing. That fact is not denied. I
cannot give my consent to any act which deprives the humblest citizen of his just liberty without a
hearing, whether he be a Christian or non-Christian. All persons in the Philippine Islands are entitled
to a hearing, at least, before they are deprived of their liberty.

MOIR, J., dissenting:

I dissent.
I realize that a dissenting opinion carries little weight, but may sense of justice will not permit me to
let this decision go on record without expressing may strong dissent from the opinion of Justice
Malcolm, concurred in by a majority of the court. I shall not attempt to analyze the opinion or to go
into the question in detail. I shall simply state, as briefly as may be, the legal and human side of the
case as it presents itself to my mind.
The facts are that one Rubi and various other Manguianes in the Province of Mindoro were ordered
by the Provincial governor of Mindoro to remove their residence from their native habitat and to
establish themselves on a reservation at Tigbao in the Province of Mindoro and to remain there, or
be punished by imprisonment if they escaped. This reservation, as appears from the resolution of
the provincial board, extends over an area of 800 hectares of land, which is approximately 2,000
acres, on which about three hundred manguianes are confined. One of the Manguianes, Dabalos,
escaped from the reservation and was taken in hand by the provincial sheriff and placed in prision at
Calapan, solely because he escaped from the reservation. The Manguianes used out a writ
of habeas corpus in this court, alleging that they are deprived of their liberty in violation of law.
The Solicitor-General of the Philippine Islands makes return to the writ copied in the majority opinion
which states that the provincial governor of Mindoro with the prior approval of his act by the
Department Secretary ordered the placing of the petitioners and others on a reservation.
The manguianes, it is stated on page 694 of the majority opinion, "are very low in culture. They have
considerable Negrito blood and have not advanced beyond the Negritos in civilization. They are
peaceful, timid, primitive, seminomadic people. They number approximately 15,000 (?). The
manguianes have shown no desire for community life, and, as indicated in the preamble to Act No.
547, have no progressed sufficiently in civilization to make it practicable to bring them under any for
of municipal government."
It may be well to add that the last P.I. Census (1903) shows that the Island of Mindoro (not including
smaller islands which together make the Province of Mindoro) has an area of 3,851 square miles
and a populations of 28, 361 of which 7, 369 are wild or uncivilized tribes (Manguianes). This
appears to be the total Mangyan population of the province. The total population was less than
seven to the mile (Vol. 2, P.I. Census, pp. 30 and 407).
The Island is fertile, heavily wooded and well watered.
It has no savage population, but it is sparsely settled by Christian Filipinos along the coast and by
Manguianes.

The Manguianes roamed its mountains and valleys, fishing and hunting at will long before
Magallanes [Magellan] anchored his boats in the water of Cebu. They have made little or no
progress in the ways of civilization. "They are a peaceful, timid, primitive, seminomadic people,"
whom the Government of the Philippines Islands would bring under the beneficient influence of
civilization and progress.
The law provides for it in section 2145 of the Administrative Code, and for those who like Dadalos do
not take kindly to the ways provided for civilizing them section 2759 provides the punishment.
The attorney for the petitioners has raised various constitutional questions, but only the fundamental
one will be considered by me. It is that the sections of the Administrative Code, 2145 and 2759,
quoted in the majority opinion, are in violation of the first paragraph of section 3 of the Act of
Congress of August 29, 1916, which reads as follows:
That no law shall be enacted in said Islands which shall deprive any person of life, liberty or
property without due process of law, or deny to any person therein the equal protection of
the laws.
It is not necessary to argue that a Mangyan is one of the persons protected by that provision.
The Attorney-General argues that the treatment provided for the Manguianes is similar to that
accorded the Indians in the United States, and reference is made all through the court's decision to
the decisions of the United States Supreme Court with reference to the Indians. It is not considered
necessary to go into these cases for the simple reason that all the Indians nations in the United
States were considered as separate nations and all acts taken in regard to them were the result of
separate treaties made by the United States Government with the Indian nations, and, incompliance
with these treaties, reservations were set apart for them on which they lived and were protected form
intrusion and molestation by white men. Some these reservations were larger than the Islands of
Luzon, and they were not measured in hectares but in thousands of square miles.
The Manguianes are not a separate state. They have no treaty with the Government of the
Philippine Islands by which they have agreed to live within a certain district where they are accorded
exclusive rights. They are citizens of the Philippine Islands. Legally they are Filipinos. They are
entitled to all the rights and privileges of any other citizen of this country. And when the provincial
governor of the Province of Mindoro attempted to take them from their native habitat and to hold
them on the little reservation of about 800 hectares, he deprived them of their rights and their liberty
without due process of law, and they were denied the equal protection of the law.
The majority opinion says "they are restrained for their own good and the general good of the
Philippines."
They are to be made to accept the civilization of the more advanced Filipinos whether they want it or
not. They are backward and deficient in culture and must be moved from their homes, however
humble they may be and "bought under the bells" and made to stay on a reservation.
Are these petitioners charged with any crime? There is no mention in the return of the SolicitorGeneral of the Philippine Islands of any crime having been committed by these "peacefully, timid,
primitive, semi-nomadic people."
A memorandum of the Secretary of the Interior of the Philippine Islands is copied in extenso in the
majority opinion, and from it I gather the nature of their offense which is that

Living a nomadic and wayfaring life and evading the influence of civilization, they (the
manguianes) are engaged in the works of destruction burning and destroying the forests
and making illegal caiginsthereon. No bringing any benefit to the State but, instead, injuring
and damaging its interests, what will ultimately become of those people with the sort of
liberty they wish to preserve and for which they are not fighting in court? They will ultimately
become a heavy burden to the State and, on account of their ignorance, they will commit
crimes and make depredations, or if not they will be subjected to involuntary servitude by
those who may want to abuse them.
There is no doubt in my mind that this people has not a right conception of liberty and does
not practice liberty in a rightful way. They understand liberty as the right to do anything they
will going from one place to another in the mountains, burning and destroying forests and
making illegal caigins thereon.
Not knowing what true liberty is and not practising the same rightfully, how can they are
being deprived thereof without due process of law?
xxx

xxx

xxx

But does the constitutional guaranty that "no person shall be deprived of his liberty without
due process of law" apply to a class of persons who do not have a correct idea of what
liberty is and do not practise liberty in a rightful way?
To say that it does will mean to sanction and defend an erroneous idea of such class of
persons as to what liberty is. It will mean, in the case at bar, that the Government should not
adopt any measures looking to the welfare and advancement of the class of persons in
question. It will mean that this people be let alone in the mountains and in a permanent state
of savagery without even the remotest hope of coming to understand liberty in its true and
noble sense.
In dealing with the backward population, like the Manguianes, the Government has been
placed in the alternative of either letting them alone or guiding them in the path of civilization.
The latter measure was adopted as the one more in accord with humanity and with national
conscience.
xxx

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xxx

The national legislation on the subject of non-Christian people has tended more and more
towards the education and civilization of such people and fitting them to be citizens.
There appear to be two intimations or charges in this memorandum; one is that the Manguianes
destroy the forest by making a caigin. What is a "caigin?" Simply this. These people move their
camp or place of abode frequently and when they do move to a new place, it is necessary to clear
the land in order to plant corn and camotes (sweet potatoes) and they cut down the smaller trees
and burn these around the larger ones, killing them, so that they can plant their crops. The fires
never spread in the tropical undergrowth of an island like Mindoro, but the trees within
the caigin are killed and crops are planted and harvested. This land may be abandoned later on
due to superstition, to a lack of game in the neighborhood, to poor crops from exhausted fertility, or
to a natural desire to move on.

Granting that the Manguianes do make caigins or clear lands in spots and then abandon them for
the more fertile lands, which every man knows to be just over the hills, we cannot see that they are
committing such a great abuse as to justify incarcerating them on a small tract of land for
incarceration it is and nothing less.
The second intimation or charge is that "they will become a heavy burden to the state and on
account of their ignorance they will commit crimes and make depredations, or if not they will be
subjected to involuntary servitude by those who want to abuse them." They have never been a
burden to the state and never will be. They have not committed crimes and, when they do, let the
law punish them." The authorities are anticipating too much from these "peaceful, timid, primitive,
semi-nomadic people." Their history does not demonstrate that we must expect them to commit
crimes and jail them to prevent the possibility. But the Secretary says "they will be subjected to
involuntary servitude by those want to abuse them." Are they more liable to be subjected to
involuntary servitude when left free to roam their native hills and gain a livelihood as they have been
accustomed to for hundreds of years, than they will be if closely confined on a narrow reservation
from which they may not escape without facing a term in jail? Is not more likely that they will be glad
to exchange their "freedom" on a small reservation for the great boon of binding themselves and
their children to the more fortunate Christian Filipinos who will feed them and clothe them in return of
their services.?
It think it not only probable but almost a certainty that they will be all be subjected to involuntary
personal servitude if their freedom is limited as it has been. How will they live? There may be
persons who are willing to lend them money with which to buy food on the promise that they will
work for them. And if they accept the loan and do not work for the lender we have another law on the
statute books, Act No. 2098, into whose noose they run their necks, and they may be fined not more
than two hundred pesos or imprisonment for not exceeding six months or both, and when the
sentence expires they must again go into debt or starve, and if they do not work will again go to jail,
and this maybe repeated till they are too old to work and are cast adrift.
The manguianes have committed no offenses and are charged with none. It does not appear they
were ever consulted about their reconcentration. It does not appear that they had any hearing or
were allowed to make any defense. It seems they were gathered here and there whenever found by
the authorities of the law and forcibly placed upon the reservation, because they are "non-Christian,"
and because the provincial governor ordered it. Let it be clear there is no discrimination because
of religion. The term "non-Christian" means one who is not a Christian Filipino, but it also means any
of the so-called "wild" or backward tribes of the Philippines. These non-Christian tribes are Moros,
Igorrotes, Bukidnons, Ifugaos, Manguianes and various others, about one millions souls all together.
Some of them, like the Moros, Tinguianes and Ifugaos, have made great progress in civilization. The
have beautiful fields reclaimed by hard labor they have herds of cattle and horses and some few
of them are well educated. Some of the non-Christians, like the Aetas and the Negritos, are very low
in the scale of civilization, but they are one and all "non-Christians," as the term is used and
understood in law and in fact.
All of them, according to the court's opinion under the present law, may be taken from their homes
and herded on a reservation at the instance of the provincial governor, with the prior approval of the
department head. To state such a monstrous proposition is to show the wickedness and illegality of
the section of the law under which these people are restrained of their liberty. But it is argued that
there is no probability of the department head ever giving his approval to such a crime, but the fact
that he can do it and has done it in the present case in what makes the law unconstitutional. The
arbitrary and unrestricted power to do harm should be the measure by which a law's legality is tested
and not the probability of doing harm.

It has been said that this is a government of laws and not of men; that there is no arbitrary
body of individuals; that the constitutional principles upon which our government and its
institutions rest do not leave room for the play and action of purely personal and arbitrary
power, but that all in authority are guided and limited by these provisions which the people
have, the through the organic law, declared shall be the measure and scope of all control
exercised over them. In particular the fourteenth amendment, and especially the equal
protection clause, thereof, forbids that the individual shall be subjected to any arbitrary
exercise of the powers of government; it was intended to prohibit, and does prohibit, any
arbitrary deprivation of life or liberty, or arbitrary spoliation of property.
As we have seen, a statute which makes a purely arbitrary or unreasonable classification, or
which singles out any particular individuals or class as the subject of hostile and
discriminating legislation, is clearly unconstitutional as being opposed to the fourteenth
amendment and especially to the equal protection clause thereof. This is a plain case, and
requires no further discussion. (Vol. 4, Encyclopedia of U.S. Supreme Court Reports, p. 366.)
When we consider the nature and the theory of our institutions of government, the principles
upon which they are supposed to rest, and review the history of their development, we are
constrained to conclude that they do not mean to leave room for the play and action of purely
personal and arbitrary power. Sovereignty itself is, of course, not subject to law, for its is the
author and source of law; but in our system, while sovereign powers are delegated to the
agencies of government, sovereignty itself remains with the people, by whom and for whom
all government exists and acts. And the law is the definition and limitation of power. It is,
indeed, quite true, that there must always be lodged somewhere, and in some person or
body, the authority of final decision; and, in many cases of mere administration the
responsibility is purely political, no appeal lying except to the ultimate tribunal of the public
judgment, exercised either in the pressure of opinion or by means of the suffrage. But the
fundamental rights to life, liberty, and the pursuit of happiness, considered as individual
possessions, are secured by those maxims of constitutional law which are the monuments
showing the victorious progress of the race in securing to men the blessings of civilization
under the reign of just and equal laws, so that, in the famous language of Massachusetts Bill
of Rights, the Government of Commonwealth "may be a government of law and not of men."
For the very idea that one man may be compelled to hold his life, or the means of living, or
any material right essential to the enjoyment of life, at the mere will of another, seems to be
intolerable in any country where freedom prevails, as being the essence of slavery itself.
(Yick Wo vs. Hopkins, 118 U.S., 374.)
It is said that the present law is an old Act being substance Act No. 547 of the Philippine
Commission. But it has never been brought before this court for determination of its constitutionality.
No matter how beneficient the motives of the lawmakers if the lawmakers if the law tends to deprive
any man of life, liberty, or property without due process law, it is void.
In may opinion the acts complained of which were taken in conformity with section 2145 of the
Administrative Code not only deprive these Manguianes of their liberty, without due process of law,
but will in all probability deprive them of their life, without due process of law. History teaches that to
take a semi-nomadic tribe from their native fastnesses and to transfer them to the narrow confines of
a reservation is to invite disease an suffering and death. From my long experience in the Islands, I
should say that it would be a crime of title less magnitude to take the Ifugaos from their mountain
homes where they have reclaimed a wilderness and made it a land of beauty and fruitfulness and to
transfer them to the more fertile, unoccupied, malaria infested valleys which they look down upon
from their fields than it would be to order their decapitation en masse.

There can be no denial that the Ifugaos are "non-Christians," or "wild tribes" and are in exactly the
same category as the Manguianes. If the Manguianes may be so taken from their native habitat and
reconcentrated on a reservation in effect an open air jail then so may the Ifugaos, so may the
Tinguianes, who have made more progress than the Ifugaos, and so may the Moros.
There are "non-Christian" in nearly every province in the Philippine Islands. All of the thirty-nine
governors upon the prior approval of the head of the department, have the power under this law to
take the non-Christian inhabitants of their different provinces form their homes and put them on a
reservation for "their own good and the general good of the Philippines," and the court will grant
them no relief. These unfortunate citizens of the Philippine Islands would hold their liberty, and their
lives, may be, subject to the unregulated discretion of the provincial governor.
And who would be safe?
After the reservation is once established might not a provincial governor decide that some political
enemy was a non-Christian, and that he would be safer on the reservation. No matter what his
education and culture, he could have no trial, he could make no defense, the judge of the court
might be in a distant province and not within reach, and the provincial governor's fiat is final.
The case of the United States vs. Crook (Federal Cases 14891), cited in the majority opinion, should
be quoted at length. District Judge Dundy said:
During the fifteen years in which I have been engaged in administering the laws of my
country, I have never been called upon to hear or decide a case that appealed so strongly to
my sympathy as the one now under consideration. On the one side, we have a few of the
remnants of a once numerous and powerful, but now weak, insignificant, unlettered, and
generally despised race; and the other, we have the representative of one of the most
powerful, most enlightened, and most christianized nations of modern times. On the one
side, we have the representatives of this wasted race coming into this national tribunal of
ours, asking for justice and liberty to enable them to adopt our boasted civilization, and to
pursue the arts of peace, which have made us great and happy as a nation; on the other
side, we have this magnificent, if not magnanimous, government, resisting this application
with the determination of sending these people back to the country which is to them less
desirable perpetual imprisonment in their own native land. But I think it is creditable to the
heart and mind of the brave and distinguished officer who is made respondent herein to say
that he has no sort of sympathy in the business in which he is forced by his position to bear a
part so conspicuous; and, so far as I am individually concerned, I think it not improper to say
that, if the strongest possible sympathy could give the relators title to freedom, they would
have been restored to liberty the moment the arguments in their behalf were closed. no
examination or further thought would then have been necessary or expedient. But in a
country where liberty is regulated by law, something more satisfactory and enduring than
mere sympathy must furnish and constitute the rule and basis of judicial action. It follows that
this case must be examined and decided on principles of law, and that unless the relators
are entitled to their discharge under the constitution or laws of the United States, or some
treaty, they must be remanded to the custody of the officer who caused their arrest, to be
returned to the Indian Territory which they left without the consent of the government.
On the 8th of April, 1879, the relators Standing Bear and twenty-five others, during the
session of the court held at that time of Lincoln, presented their petition, duly verified, praying
for the allowance of a writ ofhabeas corpus and their final discharged from custody
thereunder.

The petition alleges, in substance, that the relators are Indians who have formerly belonged
to the Ponca tribe of Indians now located in the Indian Territory; that they had some time
previously withdrawn from the tribe, and completely severed their tribal relations therewith,
and had adopted the general habits of the whites, and were then endeavoring to maintain
themselves by their own exertions, and without aid or assistance from the general
government; that whilst they were thus engaged, and without being guilty of violating any of
the laws of the United States, they were arrested and restrained of their liberty by order of
the respondent, George Crook.
The writ was issued and served on the respondent on the 8th day of April, and, the distance
between the place where the writ was made returnable and the place where the relators
were confined being more than twenty miles, ten days were alloted in which to make return.
On the 18th of April the writ was returned, and the authority for the arrest and detention is
therein shown. The substance of the return to the writ, and the additional statement since
filed, is that the relators are individual members of, and connected with, the Ponca Tribe of
Indians; that they had fled or escaped from a reservation situated in some place within the
limits of the indian Territory had departed therefrom without permission from the
government; and, at the request of the secretary of the interior, the general of the army had
issued an order which required the respondent to arrest and return the relators to their tribe
in the Indian Territory, and that, pursuant to the said order, he had caused the relators to be
arrested on the Omaha Indian reservation, and that they were in his custody for the purpose
of being returned to the Indian Territory.
It is claimed upon the one side, and denied upon the other, that the relators had withdrawn
and severed, for all time, their connection with the tribe to which they belonged; and upon
this point alone was there any testimony produced by either party hereto. The other matter
stated in the petition and the return to the writ are conceded to be true; so that the questions
to be determined are purely questions of law.
On the 8th of Mar, 1859, a treaty was made by the United States with the Ponca tribe of
Indians, by which a certain tract of country, north of the Niobrara river and west of the
Missouri, was set apart for the permanent home of the aid Indians, in which the government
agreed to protect them during their good behaviour. But just when or how, or why, or under
what circumstances, the Indians left their reservation in Dakota and went to the Indian
Territory does not appear.
xxx

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xxx

A question of much greater importance remains for consideration, which, when determined,
will be decisive of this whole controversy. This relates to the right of the government to arrest
and hold the relators for a time, for the purpose of being returned to a point in the Indian
Territory from which it is alleged the Indians escaped. I am not vain enough to think that I can
do full justice to a question like the one under consideration. But, as the mater furnishes so
much valuable material for discussion, and so much food for reflection, I shall try to present it
as viewed from my own standpoint, without reference to consequences or criticisms, which,
though not specially invited, will be sure to follow.
xxx

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xxx

On the 15th day of August, 1876, congress passed the general Indian appropriation bill, and
in it we find a provision authorizing the secretary of the interior to use $25,000 for the

removal of the Poncas to the Indian Territory, and providing them a home therein, with
consent of the tribe. (19 Sta., 192.)
xxx

xxx

xxx

The Poncas lived upon their reservation in southern Dakota, and cultivated a portion of the
same, until two or three years ago, when they removed therefrom, but whether by force or
otherwise does not appear. At all event, we find a portion of them, including the relators,
located at some point in the Indian Territory. There, the testimony seems to show, is where
the trouble commenced. Standing Bear, the principal witness, states that out of five hundred
and eighty-one Indians who went from the reservation in Dakota to the Indian Territory, one
hundred and fifty-eight died within a year or so, and a great proportion of the others were
sick and disabled, caused, in a great measure, no doubt, from change of climate; and to
save himself and the survivors of his wasted family, and the feeble remnant of his little band
of followers, he determined to leave the Indian Territory and return to his old home, where, to
use his own language, "he might live and die in peace, and be buried with his fathers." He
also stated that he informed the agent of their final purpose to leave, never to return, and
that he and his followers had finally, fully, and forever severed his and their connection with
the Ponca tribe of Indians, and had resolved to disband as a tribe, or band of Indians, and to
cut loose from the government, go to work, become self-sustaining, and adopt the habits and
customs of a higher civilization. To accomplish what would seem to be a desirable and
laudable purpose, all who were able to do so went to work to earn a living. The Omaha
Indians, who speak the same language, and with whom many of the Poncas have long
continued to intermarry, gave them employment and ground to cultivate, so as to make them
self-sustaining. And it was when at the Omaha reservation, and when thus employed, that
they were arrested by order of the government, for the purpose of being taken back to the
Indian Territory. They claim to be unable to see the justice, or reason, or wisdom, or
necessity, of removing them by force from their own native plains and blood relations to a faroff country, in which they can see little but new-made graves opening for their reception. The
land from which they fled in fear has no attractions for them. The love of home and native
land was strong enough in the minds of these people to induce them to brave every peril to
return and live and die where they had been reared. The bones of the dead son of Standing
Bear were not to repose in the land they hoped to be leaving forever, but were carefully
preserved and protected and formed a part of what was to them melancholy procession
homeward. Such instances of parental affections, and such love home and native land, may
be heathen in origin, but it seems to that they are not unlike Christian in principle.
And the court declared that the Indians were illegally held by authority of the United States and in
violation of their right to life, liberty, and the pursuit of happiness, and ordered their release from
custody.
This case is very similarly to the case of Standing Bear and others.
I think this Court should declare that section 2145 and 2759 of the Administrative Code of 1917 are
unconstitutional, null and void, and that the petitioners are illegally restrained of their liberty, and that
they have been denied the equal protection of the law, and order the respondents immediately to
liberate all of the petitioners.

Footnotes

218 U.S., 302; 54 L. ed., 1049.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-14639

March 25, 1919

ZACARIAS VILLAVICENCIO, ET AL., petitioners,

vs.
JUSTO LUKBAN, ET AL., respondents.
Alfonso Mendoza for petitioners.
City Fiscal Diaz for respondents.
MALCOLM, J.:
The annals of juridical history fail to reveal a case quite as remarkable as the one which this
application forhabeas corpus submits for decision. While hardly to be expected to be met with in this
modern epoch of triumphant democracy, yet, after all, the cause presents no great difficulty if there is
kept in the forefront of our minds the basic principles of popular government, and if we give
expression to the paramount purpose for which the courts, as an independent power of such a
government, were constituted. The primary question is Shall the judiciary permit a government of
the men instead of a government of laws to be set up in the Philippine Islands?
Omitting much extraneous matter, of no moment to these proceedings, but which might prove
profitable reading for other departments of the government, the facts are these: The Mayor of the
city of Manila, Justo Lukban, for the best of all reasons, to exterminate vice, ordered the segregated
district for women of ill repute, which had been permitted for a number of years in the city of Manila,
closed. Between October 16 and October 25, 1918, the women were kept confined to their houses in
the district by the police. Presumably, during this period, the city authorities quietly perfected
arrangements with the Bureau of Labor for sending the women to Davao, Mindanao, as laborers;
with some government office for the use of the coastguard cutters Corregidor and Negros, and with
the Constabulary for a guard of soldiers. At any rate, about midnight of October 25, the police, acting
pursuant to orders from the chief of police, Anton Hohmann and the Mayor of the city of Manila,
Justo Lukban, descended upon the houses, hustled some 170 inmates into patrol wagons, and
placed them aboard the steamers that awaited their arrival. The women were given no opportunity to
collect their belongings, and apparently were under the impression that they were being taken to a
police station for an investigation. They had no knowledge that they were destined for a life in
Mindanao. They had not been asked if they wished to depart from that region and had neither
directly nor indirectly given their consent to the deportation. The involuntary guests were received on
board the steamers by a representative of the Bureau of Labor and a detachment of Constabulary
soldiers. The two steamers with their unwilling passengers sailed for Davao during the night of
October 25.
The vessels reached their destination at Davao on October 29. The women were landed and
receipted for as laborers by Francisco Sales, provincial governor of Davao, and by Feliciano Yigo
and Rafael Castillo. The governor and the hacendero Yigo, who appear as parties in the case, had
no previous notification that the women were prostitutes who had been expelled from the city of
Manila. The further happenings to these women and the serious charges growing out of alleged illtreatment are of public interest, but are not essential to the disposition of this case. Suffice it to say,

generally, that some of the women married, others assumed more or less clandestine relations with
men, others went to work in different capacities, others assumed a life unknown and disappeared,
and a goodly portion found means to return to Manila.
To turn back in our narrative, just about the time the Corregidor and the Negros were putting in to
Davao, the attorney for the relatives and friends of a considerable number of the deportees
presented an application forhabeas corpus to a member of the Supreme Court. Subsequently, the
application, through stipulation of the parties, was made to include all of the women who were sent
away from Manila to Davao and, as the same questions concerned them all, the application will be
considered as including them. The application set forth the salient facts, which need not be
repeated, and alleged that the women were illegally restrained of their liberty by Justo Lukban,
Mayor of the city of Manila, Anton Hohmann, chief of police of the city of Manila, and by certain
unknown parties. The writ was made returnable before the full court. The city fiscal appeared for the
respondents, Lukban and Hohmann, admitted certain facts relative to sequestration and deportation,
and prayed that the writ should not be granted because the petitioners were not proper parties,
because the action should have been begun in the Court of First Instance for Davao, Department of
Mindanao and Sulu, because the respondents did not have any of the women under their custody or
control, and because their jurisdiction did not extend beyond the boundaries of the city of Manila.
According to an exhibit attached to the answer of the fiscal, the 170 women were destined to be
laborers, at good salaries, on the haciendas of Yigo and Governor Sales. In open court, the fiscal
admitted, in answer to question of a member of the court, that these women had been sent out of
Manila without their consent. The court awarded the writ, in an order of November 4, that directed
Justo Lukban, Mayor of the city of Manila, Anton Hohmann, chief of police of the city of Manila,
Francisco Sales, governor of the province of Davao, and Feliciano Yigo, an hacendero of Davao, to
bring before the court the persons therein named, alleged to be deprived of their liberty, on
December 2, 1918.
Before the date mentioned, seven of the women had returned to Manila at their own expense. On
motion of counsel for petitioners, their testimony was taken before the clerk of the Supreme Court
sitting as commissioners. On the day named in the order, December 2nd, 1918, none of the persons
in whose behalf the writ was issued were produced in court by the respondents. It has been shown
that three of those who had been able to come back to Manila through their own efforts, were
notified by the police and the secret service to appear before the court. The fiscal appeared,
repeated the facts more comprehensively, reiterated the stand taken by him when pleading to the
original petition copied a telegram from the Mayor of the city of Manila to the provincial governor of
Davao and the answer thereto, and telegrams that had passed between the Director of Labor and
the attorney for that Bureau then in Davao, and offered certain affidavits showing that the women
were contained with their life in Mindanao and did not wish to return to Manila. Respondents Sales
answered alleging that it was not possible to fulfill the order of the Supreme Court because the
women had never been under his control, because they were at liberty in the Province of Davao, and
because they had married or signed contracts as laborers. Respondent Yigo answered alleging
that he did not have any of the women under his control and that therefore it was impossible for him
to obey the mandate. The court, after due deliberation, on December 10, 1918, promulgated a
second order, which related that the respondents had not complied with the original order to the
satisfaction of the court nor explained their failure to do so, and therefore directed that those of the
women not in Manila be brought before the court by respondents Lukban, Hohmann, Sales, and
Yigo on January 13, 1919, unless the women should, in written statements voluntarily made before
the judge of first instance of Davao or the clerk of that court, renounce the right, or unless the
respondents should demonstrate some other legal motives that made compliance impossible. It was
further stated that the question of whether the respondents were in contempt of court would later be
decided and the reasons for the order announced in the final decision.

Before January 13, 1919, further testimony including that of a number of the women, of certain
detectives and policemen, and of the provincial governor of Davao, was taken before the clerk of the
Supreme Court sitting as commissioner and the clerk of the Court of First Instance of Davao acting
in the same capacity. On January 13, 1919, the respondents technically presented before the Court
the women who had returned to the city through their own efforts and eight others who had been
brought to Manila by the respondents. Attorneys for the respondents, by their returns, once again
recounted the facts and further endeavored to account for all of the persons involved in the habeas
corpus. In substance, it was stated that the respondents, through their representatives and agents,
had succeeded in bringing from Davao with their consent eight women; that eighty-one women were
found in Davao who, on notice that if they desired they could return to Manila, transportation fee,
renounced the right through sworn statements; that fifty-nine had already returned to Manila by other
means, and that despite all efforts to find them twenty-six could not be located. Both counsel for
petitioners and the city fiscal were permitted to submit memoranda. The first formally asked the court
to find Justo Lukban, Mayor of the city of Manila, Anton Hohmann, chief of police of the city of
Manila, Jose Rodriguez and Fernando Ordax, members of the police force of the city of Manila,
Feliciano Yigo, an hacendero of Davao, Modesto Joaquin, the attorney for the Bureau of Labor, and
Anacleto Diaz, fiscal of the city of Manila, in contempt of court. The city fiscal requested that
the replica al memorandum de los recurridos, (reply to respondents' memorandum) dated January
25, 1919, be struck from the record.
In the second order, the court promised to give the reasons for granting the writ of habeas corpus in
the final decision. We will now proceed to do so.
One fact, and one fact only, need be recalled these one hundred and seventy women were
isolated from society, and then at night, without their consent and without any opportunity to consult
with friends or to defend their rights, were forcibly hustled on board steamers for transportation to
regions unknown. Despite the feeble attempt to prove that the women left voluntarily and gladly, that
such was not the case is shown by the mere fact that the presence of the police and the
constabulary was deemed necessary and that these officers of the law chose the shades of night to
cloak their secret and stealthy acts. Indeed, this is a fact impossible to refute and practically admitted
by the respondents.
With this situation, a court would next expect to resolve the question By authority of what law did
the Mayor and the Chief of Police presume to act in deporting by duress these persons from Manila
to another distant locality within the Philippine Islands? We turn to the statutes and we find
Alien prostitutes can be expelled from the Philippine Islands in conformity with an Act of congress.
The Governor-General can order the eviction of undesirable aliens after a hearing from the Islands.
Act No. 519 of the Philippine Commission and section 733 of the Revised Ordinances of the city of
Manila provide for the conviction and punishment by a court of justice of any person who is a
common prostitute. Act No. 899 authorizes the return of any citizen of the United States, who may
have been convicted of vagrancy, to the homeland. New York and other States have statutes
providing for the commitment to the House of Refuge of women convicted of being common
prostitutes. Always a law! Even when the health authorities compel vaccination, or establish a
quarantine, or place a leprous person in the Culion leper colony, it is done pursuant to some law or
order. But one can search in vain for any law, order, or regulation, which even hints at the right of the
Mayor of the city of Manila or the chief of police of that city to force citizens of the Philippine
Islands and these women despite their being in a sense lepers of society are nevertheless not
chattels but Philippine citizens protected by the same constitutional guaranties as are other
citizens to change their domicile from Manila to another locality. On the contrary, Philippine penal
law specifically punishes any public officer who, not being expressly authorized by law or regulation,
compels any person to change his residence.

In other countries, as in Spain and Japan, the privilege of domicile is deemed so important as to be
found in the Bill of Rights of the Constitution. Under the American constitutional system, liberty of
abode is a principle so deeply imbedded in jurisprudence and considered so elementary in nature as
not even to require a constitutional sanction. Even the Governor-General of the Philippine Islands,
even the President of the United States, who has often been said to exercise more power than any
king or potentate, has no such arbitrary prerogative, either inherent or express. Much less, therefore,
has the executive of a municipality, who acts within a sphere of delegated powers. If the mayor and
the chief of police could, at their mere behest or even for the most praiseworthy of motives, render
the liberty of the citizen so insecure, then the presidents and chiefs of police of one thousand other
municipalities of the Philippines have the same privilege. If these officials can take to themselves
such power, then any other official can do the same. And if any official can exercise the power, then
all persons would have just as much right to do so. And if a prostitute could be sent against her
wishes and under no law from one locality to another within the country, then officialdom can hold
the same club over the head of any citizen.
Law defines power. Centuries ago Magna Charta decreed that "No freeman shall be taken, or
imprisoned, or be disseized of his freehold, or liberties, or free customs, or be outlawed, or exiled, or
any other wise destroyed; nor will we pass upon him nor condemn him, but by lawful judgment of his
peers or by the law of the land. We will sell to no man, we will not deny or defer to any man either
justice or right." (Magna Charta, 9 Hen., 111, 1225, Cap. 29; 1 eng. stat. at Large, 7.) No official, no
matter how high, is above the law. The courts are the forum which functionate to safeguard
individual liberty and to punish official transgressors. "The law," said Justice Miller, delivering the
opinion of the Supreme Court of the United States, "is the only supreme power in our system of
government, and every man who by accepting office participates in its functions is only the more
strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon the
exercise of the authority which it gives." (U.S. vs. Lee [1882], 106 U.S., 196, 220.) "The very idea,"
said Justice Matthews of the same high tribunal in another case, "that one man may be compelled to
hold his life, or the means of living, or any material right essential to the enjoyment of life, at the
mere will of another, seems to be intolerable in any country where freedom prevails, as being the
essence of slavery itself." (Yick Wo vs. Hopkins [1886], 118 U.S., 356, 370.) All this explains the
motive in issuing the writ of habeas corpus, and makes clear why we said in the very beginning that
the primary question was whether the courts should permit a government of men or a government of
laws to be established in the Philippine Islands.
What are the remedies of the unhappy victims of official oppression? The remedies of the citizen are
three: (1) Civil action; (2) criminal action, and (3) habeas corpus.
The first is an optional but rather slow process by which the aggrieved party may recoup money
damages. It may still rest with the parties in interest to pursue such an action, but it was never
intended effectively and promptly to meet any such situation as that now before us.
As to criminal responsibility, it is true that the Penal Code in force in these Islands provides:
Any public officer not thereunto authorized by law or by regulations of a general character in
force in the Philippines who shall banish any person to a place more than two hundred
kilometers distant from his domicile, except it be by virtue of the judgment of a court, shall be
punished by a fine of not less than three hundred and twenty-five and not more than three
thousand two hundred and fifty pesetas.
Any public officer not thereunto expressly authorized by law or by regulation of a general
character in force in the Philippines who shall compel any person to change his domicile or

residence shall suffer the penalty of destierro and a fine of not less than six hundred and
twenty-five and not more than six thousand two hundred and fifty pesetas. (Art. 211.)
We entertain no doubt but that, if, after due investigation, the proper prosecuting officers find that
any public officer has violated this provision of law, these prosecutors will institute and press a
criminal prosecution just as vigorously as they have defended the same official in this action.
Nevertheless, that the act may be a crime and that the persons guilty thereof can be proceeded
against, is no bar to the instant proceedings. To quote the words of Judge Cooley in a case which
will later be referred to "It would be a monstrous anomaly in the law if to an application by one
unlawfully confined, ta be restored to his liberty, it could be a sufficient answer that the confinement
was a crime, and therefore might be continued indefinitely until the guilty party was tried and
punished therefor by the slow process of criminal procedure." (In the matter of Jackson [1867], 15
Mich., 416, 434.) The writ of habeas corpus was devised and exists as a speedy and effectual
remedy to relieve persons from unlawful restraint, and as the best and only sufficient defense of
personal freedom. Any further rights of the parties are left untouched by decision on the writ, whose
principal purpose is to set the individual at liberty.
Granted that habeas corpus is the proper remedy, respondents have raised three specific objections
to its issuance in this instance. The fiscal has argued (l) that there is a defect in parties petitioners,
(2) that the Supreme Court should not a assume jurisdiction, and (3) that the person in question are
not restrained of their liberty by respondents. It was finally suggested that the jurisdiction of the
Mayor and the chief of police of the city of Manila only extends to the city limits and that perforce
they could not bring the women from Davao.
The first defense was not presented with any vigor by counsel. The petitioners were relatives and
friends of the deportees. The way the expulsion was conducted by the city officials made it
impossible for the women to sign a petition for habeas corpus. It was consequently proper for the
writ to be submitted by persons in their behalf. (Code of Criminal Procedure, sec. 78; Code of Civil
Procedure, sec. 527.) The law, in its zealous regard for personal liberty, even makes it the duty of a
court or judge to grant a writ of habeas corpus if there is evidence that within the court's jurisdiction a
person is unjustly imprisoned or restrained of his liberty, though no application be made therefor.
(Code of Criminal Procedure, sec. 93.) Petitioners had standing in court.
The fiscal next contended that the writ should have been asked for in the Court of First Instance of
Davao or should have been made returnable before that court. It is a general rule of good practice
that, to avoid unnecessary expense and inconvenience, petitions for habeas corpus should be
presented to the nearest judge of the court of first instance. But this is not a hard and fast rule. The
writ of habeas corpus may be granted by the Supreme Court or any judge thereof enforcible
anywhere in the Philippine Islands. (Code of Criminal Procedure, sec. 79; Code of Civil Procedure,
sec. 526.) Whether the writ shall be made returnable before the Supreme Court or before an inferior
court rests in the discretion of the Supreme Court and is dependent on the particular circumstances.
In this instance it was not shown that the Court of First Instance of Davao was in session, or that the
women had any means by which to advance their plea before that court. On the other hand, it was
shown that the petitioners with their attorneys, and the two original respondents with their attorney,
were in Manila; it was shown that the case involved parties situated in different parts of the Islands; it
was shown that the women might still be imprisoned or restrained of their liberty; and it was shown
that if the writ was to accomplish its purpose, it must be taken cognizance of and decided
immediately by the appellate court. The failure of the superior court to consider the application and
then to grant the writ would have amounted to a denial of the benefits of the writ.
The last argument of the fiscal is more plausible and more difficult to meet. When the writ was
prayed for, says counsel, the parties in whose behalf it was asked were under no restraint; the

women, it is claimed, were free in Davao, and the jurisdiction of the mayor and the chief of police did
not extend beyond the city limits. At first blush, this is a tenable position. On closer examination,
acceptance of such dictum is found to be perversive of the first principles of the writ of habeas
corpus.
A prime specification of an application for a writ of habeas corpus is restraint of liberty. The essential
object and purpose of the writ of habeas corpus is to inquire into all manner of involuntary restraint
as distinguished from voluntary, and to relieve a person therefrom if such restraint is illegal. Any
restraint which will preclude freedom of action is sufficient. The forcible taking of these women from
Manila by officials of that city, who handed them over to other parties, who deposited them in a
distant region, deprived these women of freedom of locomotion just as effectively as if they had been
imprisoned. Placed in Davao without either money or personal belongings, they were prevented from
exercising the liberty of going when and where they pleased. The restraint of liberty which began in
Manila continued until the aggrieved parties were returned to Manila and released or until they freely
and truly waived his right.
Consider for a moment what an agreement with such a defense would mean. The chief executive of
any municipality in the Philippines could forcibly and illegally take a private citizen and place him
beyond the boundaries of the municipality, and then, when called upon to defend his official action,
could calmly fold his hands and claim that the person was under no restraint and that he, the official,
had no jurisdiction over this other municipality. We believe the true principle should be that, if the
respondent is within the jurisdiction of the court and has it in his power to obey the order of the court
and thus to undo the wrong that he has inflicted, he should be compelled to do so. Even if the party
to whom the writ is addressed has illegally parted with the custody of a person before the application
for the writ is no reason why the writ should not issue. If the mayor and the chief of police, acting
under no authority of law, could deport these women from the city of Manila to Davao, the same
officials must necessarily have the same means to return them from Davao to Manila. The
respondents, within the reach of process, may not be permitted to restrain a fellow citizen of her
liberty by forcing her to change her domicile and to avow the act with impunity in the courts, while
the person who has lost her birthright of liberty has no effective recourse. The great writ of liberty
may not thus be easily evaded.
It must be that some such question has heretofore been presented to the courts for decision.
Nevertheless, strange as it may seem, a close examination of the authorities fails to reveal any
analogous case. Certain decisions of respectable courts are however very persuasive in nature.
A question came before the Supreme Court of the State of Michigan at an early date as to whether
or not a writ ofhabeas corpus would issue from the Supreme Court to a person within the jurisdiction
of the State to bring into the State a minor child under guardianship in the State, who has been and
continues to be detained in another State. The membership of the Michigan Supreme Court at this
time was notable. It was composed of Martin, chief justice, and Cooley, Campbell, and Christiancy,
justices. On the question presented the court was equally divided. Campbell, J., with whom
concurred Martin, C. J., held that the writ should be quashed. Cooley, J., one of the most
distinguished American judges and law-writers, with whom concurred Christiancy, J., held that the
writ should issue. Since the opinion of Justice Campbell was predicated to a large extent on his
conception of the English decisions, and since, as will hereafter appear, the English courts have
taken a contrary view, only the following eloquent passages from the opinion of Justice Cooley are
quoted:
I have not yet seen sufficient reason to doubt the power of this court to issue the present writ
on the petition which was laid before us. . . .

It would be strange indeed if, at this late day, after the eulogiums of six centuries and a half
have been expended upon the Magna Charta, and rivers of blood shed for its establishment;
after its many confirmations, until Coke could declare in his speech on the petition of right
that "Magna Charta was such a fellow that he will have no sovereign," and after the
extension of its benefits and securities by the petition of right, bill of rights and habeas
corpus acts, it should now be discovered that evasion of that great clause for the protection
of personal liberty, which is the life and soul of the whole instrument, is so easy as is claimed
here. If it is so, it is important that it be determined without delay, that the legislature may
apply the proper remedy, as I can not doubt they would, on the subject being brought to their
notice. . . .
The second proposition that the statutory provisions are confined to the case of
imprisonment within the state seems to me to be based upon a misconception as to the
source of our jurisdiction. It was never the case in England that the court of king's bench
derived its jurisdiction to issue and enforce this writ from the statute. Statutes were not
passed to give the right, but to compel the observance of rights which existed. . . .
The important fact to be observed in regard to the mode of procedure upon this writ is, that it
is directed to and served upon, not the person confined, but his jailor. It does not reach the
former except through the latter. The officer or person who serves it does not unbar the
prison doors, and set the prisoner free, but the court relieves him by compelling the
oppressor to release his constraint. The whole force of the writ is spent upon the respondent,
and if he fails to obey it, the means to be resorted to for the purposes of compulsion are fine
and imprisonment. This is the ordinary mode of affording relief, and if any other means are
resorted to, they are only auxiliary to those which are usual. The place of confinement is,
therefore, not important to the relief, if the guilty party is within reach of process, so that by
the power of the court he can be compelled to release his grasp. The difficulty of affording
redress is not increased by the confinement being beyond the limits of the state, except as
greater distance may affect it. The important question is, where the power of control
exercised? And I am aware of no other remedy. (In the matter of Jackson [1867], 15 Mich.,
416.)
The opinion of Judge Cooley has since been accepted as authoritative by other courts.
(Rivers vs. Mitchell [1881], 57 Iowa, 193; Breene vs. People [1911], Colo., 117 Pac. Rep., 1000; Ex
parte Young [1892], 50 Fed., 526.)
The English courts have given careful consideration to the subject. Thus, a child had been taken out
of English by the respondent. A writ of habeas corpus was issued by the Queen's Bench Division
upon the application of the mother and her husband directing the defendant to produce the child.
The judge at chambers gave defendant until a certain date to produce the child, but he did not do so.
His return stated that the child before the issuance of the writ had been handed over by him to
another; that it was no longer in his custody or control, and that it was impossible for him to obey the
writ. He was found in contempt of court. On appeal, the court, through Lord Esher, M. R., said:
A writ of habeas corpus was ordered to issue, and was issued on January 22. That writ
commanded the defendant to have the body of the child before a judge in chambers at the
Royal Courts of Justice immediately after the receipt of the writ, together with the cause of
her being taken and detained. That is a command to bring the child before the judge and
must be obeyed, unless some lawful reason can be shown to excuse the nonproduction of
the child. If it could be shown that by reason of his having lawfully parted with the possession
of the child before the issuing of the writ, the defendant had no longer power to produce the
child, that might be an answer; but in the absence of any lawful reason he is bound to

produce the child, and, if he does not, he is in contempt of the Court for not obeying the writ
without lawful excuse. Many efforts have been made in argument to shift the question of
contempt to some anterior period for the purpose of showing that what was done at some
time prior to the writ cannot be a contempt. But the question is not as to what was done
before the issue of the writ. The question is whether there has been a contempt in
disobeying the writ it was issued by not producing the child in obedience to its commands.
(The Queen vs. Bernardo [1889], 23 Q. B. D., 305. See also to the same effect the Irish case
of In re Matthews, 12 Ir. Com. Law Rep. [N. S.], 233; The Queen vs. Barnardo, Gossage's
Case [1890], 24 Q. B. D., 283.)
A decision coming from the Federal Courts is also of interest. A habeas corpus was directed to the
defendant to have before the circuit court of the District of Columbia three colored persons, with the
cause of their detention. Davis, in his return to the writ, stated on oath that he had purchased the
negroes as slaves in the city of Washington; that, as he believed, they were removed beyond the
District of Columbia before the service of the writ of habeas corpus, and that they were then beyond
his control and out of his custody. The evidence tended to show that Davis had removed the negroes
because he suspected they would apply for a writ of habeas corpus. The court held the return to be
evasive and insufficient, and that Davis was bound to produce the negroes, and Davis being present
in court, and refusing to produce them, ordered that he be committed to the custody of the marshall
until he should produce the negroes, or be otherwise discharged in due course of law. The court
afterwards ordered that Davis be released upon the production of two of the negroes, for one of the
negroes had run away and been lodged in jail in Maryland. Davis produced the two negroes on the
last day of the term. (United States vs. Davis [1839], 5 Cranch C.C., 622, Fed. Cas. No. 14926. See
also Robb vs. Connolly [1883], 111 U.S., 624; Church on Habeas, 2nd ed., p. 170.)
We find, therefore, both on reason and authority, that no one of the defense offered by the
respondents constituted a legitimate bar to the granting of the writ of habeas corpus.
There remains to be considered whether the respondent complied with the two orders of the
Supreme Court awarding the writ of habeas corpus, and if it be found that they did not, whether the
contempt should be punished or be taken as purged.
The first order, it will be recalled, directed Justo Lukban, Anton Hohmann, Francisco Sales, and
Feliciano Yigo to present the persons named in the writ before the court on December 2, 1918. The
order was dated November 4, 1918. The respondents were thus given ample time, practically one
month, to comply with the writ. As far as the record discloses, the Mayor of the city of Manila waited
until the 21st of November before sending a telegram to the provincial governor of Davao. According
to the response of the attorney for the Bureau of Labor to the telegram of his chief, there were then
in Davao women who desired to return to Manila, but who should not be permitted to do so because
of having contracted debts. The half-hearted effort naturally resulted in none of the parties in
question being brought before the court on the day named.
For the respondents to have fulfilled the court's order, three optional courses were open: (1) They
could have produced the bodies of the persons according to the command of the writ; or (2) they
could have shown by affidavit that on account of sickness or infirmity those persons could not safely
be brought before the court; or (3) they could have presented affidavits to show that the parties in
question or their attorney waived the right to be present. (Code of Criminal Procedure, sec. 87.)
They did not produce the bodies of the persons in whose behalf the writ was granted; they did not
show impossibility of performance; and they did not present writings that waived the right to be
present by those interested. Instead a few stereotyped affidavits purporting to show that the women
were contended with their life in Davao, some of which have since been repudiated by the signers,
were appended to the return. That through ordinary diligence a considerable number of the women,

at least sixty, could have been brought back to Manila is demonstrated to be found in the
municipality of Davao, and that about this number either returned at their own expense or were
produced at the second hearing by the respondents.
The court, at the time the return to its first order was made, would have been warranted summarily in
finding the respondents guilty of contempt of court, and in sending them to jail until they obeyed the
order. Their excuses for the non-production of the persons were far from sufficient. The, authorities
cited herein pertaining to somewhat similar facts all tend to indicate with what exactitude a habeas
corpus writ must be fulfilled. For example, in Gossage's case, supra, the Magistrate in referring to an
earlier decision of the Court, said: "We thought that, having brought about that state of things by his
own illegal act, he must take the consequences; and we said that he was bound to use every effort
to get the child back; that he must do much more than write letters for the purpose; that he must
advertise in America, and even if necessary himself go after the child, and do everything that mortal
man could do in the matter; and that the court would only accept clear proof of an absolute
impossibility by way of excuse." In other words, the return did not show that every possible effort to
produce the women was made by the respondents. That the court forebore at this time to take
drastic action was because it did not wish to see presented to the public gaze the spectacle of a
clash between executive officials and the judiciary, and because it desired to give the respondents
another chance to demonstrate their good faith and to mitigate their wrong.
In response to the second order of the court, the respondents appear to have become more zealous
and to have shown a better spirit. Agents were dispatched to Mindanao, placards were posted, the
constabulary and the municipal police joined in rounding up the women, and a steamer with free
transportation to Manila was provided. While charges and counter-charges in such a bitterly
contested case are to be expected, and while a critical reading of the record might reveal a failure of
literal fulfillment with our mandate, we come to conclude that there is a substantial compliance with
it. Our finding to this effect may be influenced somewhat by our sincere desire to see this unhappy
incident finally closed. If any wrong is now being perpetrated in Davao, it should receive an
executive investigation. If any particular individual is still restrained of her liberty, it can be made the
object of separate habeas corpus proceedings.
Since the writ has already been granted, and since we find a substantial compliance with it, nothing
further in this connection remains to be done.
The attorney for the petitioners asks that we find in contempt of court Justo Lukban, Mayor of the city
of Manila, Anton Hohmann, chief of police of the city of Manila, Jose Rodriguez, and Fernando
Ordax, members of the police force of the city of Manila, Modesto Joaquin, the attorney for the
Bureau of Labor, Feliciano Yigo, anhacendero of Davao, and Anacleto Diaz, Fiscal of the city of
Manila.
The power to punish for contempt of court should be exercised on the preservative and not on the
vindictive principle. Only occasionally should the court invoke its inherent power in order to retain
that respect without which the administration of justice must falter or fail. Nevertheless when one is
commanded to produce a certain person and does not do so, and does not offer a valid excuse, a
court must, to vindicate its authority, adjudge the respondent to be guilty of contempt, and must
order him either imprisoned or fined. An officer's failure to produce the body of a person in obedience
to a writ of habeas corpus when he has power to do so, is a contempt committed in the face of the
court. (Ex parte Sterns [1888], 77 Cal., 156; In re Patterson [1888], 99 N. C., 407.)
With all the facts and circumstances in mind, and with judicial regard for human imperfections, we
cannot say that any of the respondents, with the possible exception of the first named, has flatly
disobeyed the court by acting in opposition to its authority. Respondents Hohmann, Rodriguez,

Ordax, and Joaquin only followed the orders of their chiefs, and while, under the law of public
officers, this does not exonerate them entirely, it is nevertheless a powerful mitigating circumstance.
The hacendero Yigo appears to have been drawn into the case through a misconstruction by
counsel of telegraphic communications. The city fiscal, Anacleto Diaz, would seem to have done no
more than to fulfill his duty as the legal representative of the city government. Finding him innocent
of any disrespect to the court, his counter-motion to strike from the record the memorandum of
attorney for the petitioners, which brings him into this undesirable position, must be granted. When
all is said and done, as far as this record discloses, the official who was primarily responsible for the
unlawful deportation, who ordered the police to accomplish the same, who made arrangements for
the steamers and the constabulary, who conducted the negotiations with the Bureau of Labor, and
who later, as the head of the city government, had it within his power to facilitate the return of the
unfortunate women to Manila, was Justo Lukban, the Mayor of the city of Manila. His intention to
suppress the social evil was commendable. His methods were unlawful. His regard for the writ
of habeas corpus issued by the court was only tardily and reluctantly acknowledged.
It would be possible to turn to the provisions of section 546 of the Code of Civil Procedure, which
relates to the penalty for disobeying the writ, and in pursuance thereof to require respondent Lukban
to forfeit to the parties aggrieved as much as P400 each, which would reach to many thousands of
pesos, and in addition to deal with him as for a contempt. Some members of the court are inclined to
this stern view. It would also be possible to find that since respondent Lukban did comply
substantially with the second order of the court, he has purged his contempt of the first order. Some
members of the court are inclined to this merciful view. Between the two extremes appears to lie the
correct finding. The failure of respondent Lukban to obey the first mandate of the court tended to
belittle and embarrass the administration of justice to such an extent that his later activity may be
considered only as extenuating his conduct. A nominal fine will at once command such respect
without being unduly oppressive such an amount is P100.
In resume as before stated, no further action on the writ of habeas corpus is necessary. The
respondents Hohmann, Rodriguez, Ordax, Joaquin, Yigo, and Diaz are found not to be in contempt
of court. Respondent Lukban is found in contempt of court and shall pay into the office of the clerk of
the Supreme Court within five days the sum of one hundred pesos (P100). The motion of the fiscal
of the city of Manila to strike from the record the Replica al Memorandum de los Recurridos of
January 25, 1919, is granted. Costs shall be taxed against respondents. So ordered.
In concluding this tedious and disagreeable task, may we not be permitted to express the hope that
this decision may serve to bulwark the fortifications of an orderly government of laws and to protect
individual liberty from illegal encroachment.
Arellano, C.J., Avancea and Moir, JJ., concur.
Johnson, and Street, JJ., concur in the result.

Separate Opinions
TORRES, J., dissenting:
The undersigned does not entirely agree to the opinion of the majority in the decision of the habeas
corpusproceeding against Justo Lukban, the mayor of this city.

There is nothing in the record that shows the motive which impelled Mayor Lukban to oblige a great
number of women of various ages, inmates of the houses of prostitution situated in Gardenia Street,
district of Sampaloc, to change their residence.
We know no express law, regulation, or ordinance which clearly prohibits the opening of public
houses of prostitution, as those in the said Gardenia Street, Sampaloc. For this reason, when more
than one hundred and fifty women were assembled and placed aboard a steamer and transported to
Davao, considering that the existence of the said houses of prostitution has been tolerated for so
long a time, it is undeniable that the mayor of the city, in proceeding in the manner shown, acted
without authority of any legal provision which constitutes an exception to the laws guaranteeing the
liberty and the individual rights of the residents of the city of Manila.
We do not believe in the pomp and obstentation of force displayed by the police in complying with
the order of the mayor of the city; neither do we believe in the necessity of taking them to the distant
district of Davao. The said governmental authority, in carrying out his intention to suppress the
segregated district or the community formed by those women in Gardenia Street, could have obliged
the said women to return to their former residences in this city or in the provinces, without the
necessity of transporting them to Mindanao; hence the said official is obliged to bring back the
women who are still in Davao so that they may return to the places in which they lived prior to their
becoming inmates of certain houses in Gardenia Street.
As regards the manner whereby the mayor complied with the orders of this court, we do not find any
apparent disobedience and marked absence of respect in the steps taken by the mayor of the city
and his subordinates, if we take into account the difficulties encountered in bringing the said women
who were free at Davao and presenting them before this court within the time fixed, inasmuch as it
does not appear that the said women were living together in a given place. It was not because they
were really detained, but because on the first days there were no houses in which they could live
with a relative independent from one another, and as a proof that they were free a number of them
returned to Manila and the others succeeded in living separate from their companions who continued
living together.
To determine whether or not the mayor acted with a good purpose and legal object and whether he
has acted in good or bad faith in proceeding to dissolve the said community of prostitutes and to
oblige them to change their domicile, it is necessary to consider not only the rights and interests of
the said women and especially of the patrons who have been directing and conducting such a
reproachable enterprise and shameful business in one of the suburbs of this city, but also the rights
and interests of the very numerous people of Manila where relatively a few transients accidentally
and for some days reside, the inhabitants thereof being more than three hundred thousand
(300,000) who can not, with indifference and without repugnance, live in the same place with so
many unfortunate women dedicated to prostitution.
If the material and moral interests of the community as well as the demands of social morality are to
be taken into account, it is not possible to sustain that it is legal and permissible to establish a house
of pandering or prostitution in the midst of an enlightened population, for, although there were no
positive laws prohibiting the existence of such houses within a district of Manila, the dictates of
common sense and dictates of conscience of its inhabitants are sufficient to warrant the public
administration, acting correctly, in exercising the inevitable duty of ordering the closing and
abandonment of a house of prostitution ostensibly open to the public, and of obliging the inmates
thereof to leave it, although such a house is inhabited by its true owner who invokes in his behalf the
protection of the constitutional law guaranteeing his liberty, his individual rights, and his right to
property.

A cholera patient, a leper, or any other person affected by a known contagious disease cannot
invoke in his favor the constitutional law which guarantees his liberty and individual rights, should the
administrative authority order his hospitalization, reclusion, or concentration in a certain island or
distant point in order to free from contagious the great majority of the inhabitants of the country who
fortunately do not have such diseases. The same reasons exist or stand good with respect to the
unfortunate women dedicated to prostitution, and such reasons become stronger because the first
persons named have contracted their diseases without their knowledge and even against their will,
whereas the unfortunate prostitutes voluntarily adopted such manner of living and spontaneously
accepted all its consequences, knowing positively that their constant intercourse with men of all
classes, notwithstanding the cleanliness and precaution which they are wont to adopt, gives way to
the spread or multiplication of the disease known as syphilis, a venereal disease, which, although it
constitutes a secret disease among men and women, is still prejudicial to the human species in the
same degree, scope, and seriousness as cholera, tuberculosis, leprosy, pest, typhoid, and other
contagious diseases which produce great mortality and very serious prejudice to poor humanity.
If a young woman, instead of engaging in an occupation or works suitable to her sex, which can give
her sufficient remuneration for her subsistence, prefers to put herself under the will of another
woman who is usually older than she is and who is the manager or owner of a house of prostitution,
or spontaneously dedicates herself to this shameful profession, it is undeniable that she voluntarily
and with her own knowledge renounces her liberty and individual rights guaranteed by the
Constitution, because it is evident that she can not join the society of decent women nor can she
expect to get the same respect that is due to the latter, nor is it possible for her to live within the
community or society with the same liberty and rights enjoyed by every citizen. Considering her
dishonorable conduct and life, she should therefore be comprised within that class which is always
subject to the police and sanitary regulations conducive to the maintenance of public decency and
morality and to the conservation of public health, and for this reason it should not permitted that the
unfortunate women dedicated to prostitution evade the just orders and resolutions adopted by the
administrative authorities.
It is regrettable that unnecessary rigor was employed against the said poor women, but those who
have been worrying so much about the prejudice resulting from a governmental measure, which
being a very drastic remedy may be considered arbitrary, have failed to consider with due reflection
the interests of the inhabitants of this city in general and particularly the duties and responsibilities
weighing upon the authorities which administer and govern it; they have forgotten that many of those
who criticize and censure the mayor are fathers of families and are in duty bound to take care of
their children.
For the foregoing reasons, we reach the conclusion that when the petitioners, because of the
abnormal life they assumed, were obliged to change their residence not by a private citizen but by
the mayor of the city who is directly responsible for the conservation of public health and social
morality, the latter could take the step he had taken, availing himself of the services of the police in
good faith and only with the purpose of protecting the immense majority of the population from the
social evils and diseases which the houses of prostitution situated in Gardenia Street have been
producing, which houses have been constituting for years a true center for the propagation of
general diseases and other evils derived therefrom. Hence, in ordering the dissolution and
abandonment of the said houses of prostitution and the change of the domicile of the inmates
thereof, the mayor did not in bad faith violate the constitutional laws which guarantees the liberty and
the individual rights of every Filipino, inasmuch as the women petitioners do not absolutely enjoy the
said liberty and rights, the exercise of which they have voluntarily renounced in exchange for the free
practice of their shameful profession.

In very highly advanced and civilized countries, there have been adopted by the administrative
authorities similar measures, more or less rigorous, respecting prostitutes, considering them
prejudicial to the people, although it is true that in the execution of such measures more humane and
less drastic procedures, fortiter in re et suaviter in forma, have been adopted, but such procedures
have always had in view the ultimate object of the Government for the sake of the community, that
is, putting an end to the living together in a certain place of women dedicated to prostitution and
changing their domicile, with the problematical hope that they adopt another manner of living which
is better and more useful to themselves and to society.
In view of the foregoing remarks, we should hold, as we hereby hold, that Mayor Justo Lukban is
obliged to take back and restore the said women who are at present found in Davao, and who desire
to return to their former respective residences, not in Gardenia Street, Sampaloc District, with the
exception of the prostitutes who should expressly make known to the clerk of court their preference
to reside in Davao, which manifestation must be made under oath. This resolution must be
transmitted to the mayor within the shortest time possible for its due compliance. The costs shall be
charged de officio.
ARAULLO, J., dissenting in part:
I regret to dissent from the respectable opinion of the majority in the decision rendered in these
proceedings, with respect to the finding as to the importance of the contempt committed, according
to the same decision, by Justo Lukban, Mayor of the city of Manila, and the consequent imposition
upon him of a nominal fine of P100.
In the said decision, it is said:
The first order, it will be recalled, directed Justo Lukban, Anton Hohmann, Francisco Sales,
and Feliciano Yigo to present the persons named in the writ before the court on December
2, 1918. The order was dated November 4, 1918. The respondents were thus given ample
time, practically one month, to comply with the writ. As far as the record disclosed, the mayor
of the city of Manila waited until the 21st of November before sending a telegram to the
provincial governor of Davao. According to the response of the Attorney for the Bureau of
Labor to the telegram of his chief, there were then in Davao women who desired to return to
Manila, but who should not be permitted to do so because of having contracted debts. The
half-hearted effort naturally resulted in none of the parties in question being brought before
the court on the day named.
In accordance with section 87 of General Orders No. 58, as said in the same decision, the
respondents, for the purpose of complying with the order of the court, could have, (1) produced the
bodies of the persons according to the command of the writ; (2) shown by affidavits that on account
of sickness or infirmity the said women could not safely be brought before this court; and (3)
presented affidavits to show that the parties in question or their lawyers waived their right to be
present. According to the same decision, the said respondents ". . . did not produce the bodies of the
persons in whose behalf the writ was granted; did not show impossibility of performance; and did not
present writings, that waived the right to be present by those interested. Instead, a few stereotyped
affidavits purporting to show that the women were contented with their life in Davao, some of which
have since been repudiated by the signers, were appended to the return. That through ordinary
diligence a considerable number of the women, at least sixty, could have been brought back to
Manila is demonstrated by the fact that during this time they were easily to be found in the
municipality of Davao, and that about this number either returned at their own expense or were
produced at the second hearing by the respondents."

The majority opinion also recognized that, "That court, at the time the return to its first order was
made, would have been warranted summarily in finding the respondent guilty of contempt of court,
and in sending them to jail until they obeyed the order. Their excuses for the non production of the
persons were far from sufficient." To corroborate this, the majority decision cites the case of the
Queen vs. Barnardo, Gossage's Case ([1890], 24 Q. B. D., 283) and added "that the return did not
show that every possible effort to produce the women was made by the respondents."
When the said return by the respondents was made to this court in banc and the case discussed, my
opinion was that Mayor Lukban should have been immediately punished for contempt. Nevertheless,
a second order referred to in the decision was issued on December 10, 1918, requiring the
respondents to produce before the court, on January 13, 1919, the women who were not in Manila,
unless they could show that it was impossible to comply with the said order on the two grounds
previously mentioned. With respect to this second order, the same decision has the following to say:
In response to the second order of the court, the respondents appear to have become more
zealous and to have shown a better spirit. Agents were dispatched to Mindanao, placards
were posted, the constabulary and the municipal police joined in rounding up the women,
and a steamer with free transportation to Manila was provided. While charges and
countercharges in such a bitterly contested case are to be expected, and while a critical
reading of the record might reveal a failure of literal fulfillment with our mandate, we come to
conclude that there is a substantial compliance with it.
I do not agree to this conclusion.
The respondent mayor of the city of Manila, Justo Lukban, let 17 days elapse from the date of the
issuance of the first order on November 4th till the 21st of the same month before taking the first
step for compliance with the mandate of the said order; he waited till the 21st of November, as the
decision says, before he sent a telegram to the provincial governor o f Davao and naturally this halfhearted effort, as is so qualified in the decision, resulted in that none of the women appeared before
this court on December 2nd. Thus, the said order was not complied with, and in addition to this
noncompliance there was the circumstances that seven of the said women having returned to Manila
at their own expense before the said second day of December and being in the antechamber of the
court room, which fact was known to Chief of Police Hohmann, who was then present at the trial and
to the attorney for the respondents, were not produced before the court by the respondents nor did
the latter show any effort to present them, in spite of the fact that their attention was called to this
particular by the undersigned.
The result of the said second order was, as is said in the same decision, that the respondents, on
January 13th, the day fixed for the protection of the women before this court, presented technically
the seven (7) women above-mentioned who had returned to the city at their own expense and the
other eight (8) women whom the respondents themselves brought to Manila, alleging moreover that
their agents and subordinates succeeded in bringing them from Davao with their consent; that in
Davao they found eighty-one (81) women who, when asked if they desired to return to Manila with
free transportation, renounced such a right, as is shown in the affidavits presented by the
respondents to this effect; that, through other means, fifty-nine (59) women have already returned to
Manila, but notwithstanding the efforts made to find them it was not possible to locate the
whereabouts of twenty-six (26) of them. Thus, in short, out of the one hundred and eighty-one (181)
women who, as has been previously said, have been illegally detained by Mayor Lukban and Chief
of Police Hohmann and transported to Davao against their will, only eight (8) have been brought to
Manila and presented before this court by the respondents in compliance with the said two orders.
Fifty-nine (59) of them have returned to Manila through other means not furnished by the
respondents, twenty-six of whom were brought by the attorney for the petitioners, Mendoza, on his

return from Davao. The said attorney paid out of his own pocket the transportation of the said
twenty-six women. Adding to these numbers the other seven (7) women who returned to this city at
their own expense before January 13 we have a total of sixty-six (66), which evidently proves, on the
one hand, the falsity of the allegation by the respondents in their first answer at the trial of December
2, 1918, giving as one of the reasons for their inability to present any of the said women that the
latter were content with their life in Mindanao and did not desire to return to Manila; and, on the other
hand, that the respondents, especially the first named, that is Mayor Justo Lukban, who acted as
chief and principal in all that refers to the compliance with the orders issued by this court, could bring
before December 2nd, the date of the first hearing of the case, as well as before January 13th, the
date fixed for the compliance with the second order, if not the seventy-four (74) women already
indicated, at least a great number of them, or at least sixty (60) of them, as is said in the majority
decision, inasmuch as the said respondent could count upon the aid of the Constabulary forces and
the municipal police, and had transportation facilities for the purpose. But the said respondent mayor
brought only eight (8) of the women before this court on January 13th. This fact can not, in my
judgment, with due respect to the majority opinion, justify the conclusion that the said respondent
has substantially complied with the second order of this court, but on the other hand demonstrates
that he had not complied with the mandate of this court in its first and second orders; that neither of
the said orders has been complied with by the respondent Justo Lukban, Mayor of the city of Manila,
who is, according to the majority decision, principally responsible for the contempt, to which
conclusion I agree. The conduct of the said respondent with respect to the second order confirms
the contempt committed by non-compliance with the first order and constitutes a new contempt
because of non-compliance with the second, because of the production of only eight (8) of the one
hundred and eighty-one (181) women who have been illegally detained by virtue of his order and
transported to Davao against their will, committing the twenty-six (26) women who could not be
found in Davao, demonstrates in my opinion that, notwithstanding the nature of the case which deals
with the remedy of habeas corpus, presented by the petitioners and involving the question whether
they should or not be granted their liberty, the respondent has not given due attention to the same
nor has he made any effort to comply with the second order. In other words, he has disobeyed the
said two orders; has despised the authority of this court; has failed to give the respect due to justice;
and lastly, he has created and placed obstacles to the administration of justice in the said habeas
corpus proceeding, thus preventing, because of his notorious disobedience, the resolution of the
said proceeding with the promptness which the nature of the same required.
Contempt of court has been defined as a despising of the authority, justice, or dignity of the
court; and he is guilty of contempt whose conduct is such as tends to bring the authority and
administration of the law into disrespect or disregard. . . ." (Ruling Case Law, vol. 6, p. 488.)
It is a general principle that a disobedience of any valid order of the court constitutes
contempt, unless the defendant is unable to comply therewith. (Ruling Case Law, vol. 6, p.
502.)
It is contempt to employ a subterfuge to evade the judgment of the court, or to obstruct or
attempt to obstruct the service of legal process. If a person hinders or prevents the service of
process by deceiving the officer or circumventing him by any means, the result is the same
as though he had obstructed by some direct means. (Ruling Case Law, vol. 6, p. 503.)
While it may seem somewhat incongruous to speak, as the courts often do, of enforcing
respect for the law and for the means it has provided in civilized communities for establishing
justice, since true respect never comes in that way, it is apparent nevertheless that the power
to enforce decorum in the courts and obedience to their orders and just measures is so
essentially a part of the life of the courts that it would be difficult to conceive of their
usefulness or efficiency as existing without it. Therefore it may be said generally that where

due respect for the courts as ministers of the law is wanting, a necessity arises for the use of
compulsion, not, however, so much to excite individual respect as to compel obedience or to
remove an unlawful or unwarranted interference with the administration of justice. (Ruling
Case Law, vol. 6, p. 487.)
The power to punish for contempt is as old as the law itself, and has been exercised from the
earliest times. In England it has been exerted when the contempt consisted of scandalizing
the sovereign or his ministers, the law-making power, or the courts. In the American states
the power to punish for contempt, so far as the executive department and the ministers of
state are concerned, and in some degree so far as the legislative department is concerned,
is obsolete, but it has been almost universally preserved so far as regards the judicial
department. The power which the courts have of vindicating their own authority is a
necessary incident to every court of justice, whether of record or not; and the authority for
issuing attachments in a proper case for contempts out of court, it has been declared, stands
upon the same immemorial usage as supports the whole fabric of the common law. . . .
(Ruling Case Law, vol. 6, p. 489.)
The undisputed importance of the orders of this court which have been disobeyed; the loss of the
prestige of the authority of the court which issued the said orders, which loss might have been
caused by noncompliance with the same orders on the part of the respondent Justo Lukban; the
damages which might have been suffered by some of the women illegally detained, in view of the
fact that they were not brought to Manila by the respondents to be presented before the court and of
the further fact that some of them were obliged to come to this city at their own expense while still
others were brought to Manila by the attorney for the petitioners, who paid out of his own pocket the
transportation of the said women; and the delay which was necessarily incurred in the resolution of
the petition interposed by the said petitioners and which was due to the fact that the said orders
were not opportunately and duly obeyed and complied with, are circumstances which should be
taken into account in imposing upon the respondent Justo Lukban the penalty corresponding to the
contempt committed by him, a penalty which, according to section 236 of the Code of Civil
Procedure, should consist of a fine not exceeding P1,000 or imprisonment not exceeding months, or
both such fine and imprisonment. In the imposition of the penalty, there should also be taken into
consideration the special circumstance that the contempt was committed by a public authority, the
mayor of the city of Manila, the first executive authority of the city, and consequently, the person
obliged to be the first in giving an example of obedience and respect for the laws and the valid and
just orders of the duly constituted authorities as well as for the orders emanating from the courts of
justice, and in giving help and aid to the said courts in order that justice may be administered with
promptness and rectitude.
I believe, therefore, that instead of the fine of one hundred pesos (P100), there should be imposed
upon the respondent Justo Lukban a fine of five hundred pesos (P500), and all the costs should be
charged against him. Lastly, I believe it to be my duty to state here that the records of this
proceeding should be transmitted to the Attorney-General in order that, after a study of the same and
deduction from the testimony which he may deem necessary, and the proper transmittal of the same
to the fiscal of the city of Manila and to the provincial fiscal of Davao, both the latter shall present the
corresponding informations for the prosecution and punishment of the crimes which have been
committed on the occasion when the illegal detention of the women was carried into effect by Mayor
Justo Lukban of the city of Manila and Chief of Police Anton Hohmann, and also of those crimes
committed by reason of the same detention and while the women were in Davao. This will be one of
the means whereby the just hope expressed in the majority decision will be realized, that is, that in
the Philippine Islands there should exist a government of laws and not a government of men and
that this decision may serve to bulwark the fortifications of an orderly Government of laws and to
protect individual liberty from illegal encroachments.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 83988 September 29, 1989
RICARDO C. VALMONTE AND UNION OF LAWYERS AND ADVOCATES FOR PEOPLE'S
RIGHTS (ULAP),petitioners,
vs.
GEN. RENATO DE VILLA AND NATIONAL CAPITAL REGION DISTRICT
COMMAND, respondents.
Ricardo C. Valmonte for himself and his co-petitioners.

PADILLA, J.:
This is a petition for prohibition with preliminary injunction and/or temporary restraining order,
seeking the declaration of checkpoints in Valenzuela, Metro Manila or elsewhere, as unconstitutional
and the dismantling and banning of the same or, in the alternative, to direct the respondents to
formulate guidelines in the implementation of checkpoints, for the protection of the people.
Petitioner Ricardo C. Valmonte sues in his capacity as citizen of the Republic, taxpayer, member of
the Integrated Bar of the Philippines (IBP), and resident of Valenzuela, Metro Manila; while petitioner
Union of Lawyers and Advocates for People's Rights (ULAP) sues in its capacity as an association
whose members are all members of the IBP.
The factual background of the case is as follows:
On 20 January 1987, the National Capital Region District Command (NCRDC) was activated
pursuant to Letter of Instruction 02/87 of the Philippine General Headquarters, AFP, with the mission
of conducting security operations within its area of responsibility and peripheral areas, for the
purpose of establishing an effective territorial defense, maintaining peace and order, and providing
an atmosphere conducive to the social, economic and political development of the National Capital
Region. 1 As part of its duty to maintain peace and order, the NCRDC installed checkpoints in various
parts of Valenzuela, Metro Manila.
Petitioners aver that, because of the installation of said checkpoints, the residents of Valenzuela are
worried of being harassed and of their safety being placed at the arbitrary, capricious and whimsical
disposition of the military manning the checkpoints, considering that their cars and vehicles are
being subjected to regular searches and check-ups, especially at night or at dawn, without the
benefit of a search warrant and/or court order. Their alleged fear for their safety increased when, at
dawn of 9 July 1988, Benjamin Parpon, a supply officer of the Municipality of Valenzuela, Bulacan,

was gunned down allegedly in cold blood by the members of the NCRDC manning the checkpoint
along McArthur Highway at Malinta, Valenzuela, for ignoring and/or refusing to submit himself to the
checkpoint and for continuing to speed off inspire of warning shots fired in the air. Petitioner
Valmonte also claims that, on several occasions, he had gone thru these checkpoints where he was
stopped and his car subjected to search/check-up without a court order or search warrant.
Petitioners further contend that the said checkpoints give the respondents a blanket authority to
make searches and/or seizures without search warrant or court order in violation of the
Constitution; 2 and, instances have occurred where a citizen, while not killed, had been harassed.
Petitioners' concern for their safety and apprehension at being harassed by the military manning the
checkpoints are not sufficient grounds to declare the checkpoints as per se illegal. No proof has
been presented before the Court to show that, in the course of their routine checks, the military
indeed committed specific violations of petitioners' right against unlawful search and seizure or other
rights.
In a case filed by the same petitioner organization, Union of Lawyers and Advocates for People's
Right (ULAP) vs. Integrated National Police, 3 it was held that individual petitioners who do not allege
that any of their rights were violated are not qualified to bring the action, as real parties in interest.
The constitutional right against unreasonable searches and seizures is a personal right invocable
only by those whose rights have been infringed, 4 or threatened to be infringed. What constitutes a
reasonable or unreasonable search and seizure in any particular case is purely a judicial question,
determinable from a consideration of the circumstances involved. 5
Petitioner Valmonte's general allegation to the effect that he had been stopped and searched without
a search warrant by the military manning the checkpoints, without more, i.e., without stating the
details of the incidents which amount to a violation of his right against unlawful search and seizure,
is not sufficient to enable the Court to determine whether there was a violation of Valmonte's right
against unlawful search and seizure. Not all searches and seizures are prohibited. Those which are
reasonable are not forbidden. A reasonable search is not to be determined by any fixed formula but
is to be resolved according to the facts of each case. 6
Where, for example, the officer merely draws aside the curtain of a vacant vehicle which is parked
on the public fair grounds, 7 or simply looks into a vehicle, 8 or flashes a light therein, 9 these do not
constitute unreasonable search.
The setting up of the questioned checkpoints in Valenzuela (and probably in other areas) may be
considered as a security measure to enable the NCRDC to pursue its mission of establishing
effective territorial defense and maintaining peace and order for the benefit of the public.
Checkpoints may also be regarded as measures to thwart plots to destabilize the government, in the
interest of public security. In this connection, the Court may take judicial notice of the shift to urban
centers and their suburbs of the insurgency movement, so clearly reflected in the increased killings
in cities of police and military men by NPA "sparrow units," not to mention the abundance of
unlicensed firearms and the alarming rise in lawlessness and violence in such urban centers, not all
of which are reported in media, most likely brought about by deteriorating economic conditions

which all sum up to what one can rightly consider, at the very least, as abnormal times. Between the
inherent right of the state to protect its existence and promote public welfare and an individual's right
against a warrantless search which is howeverreasonably conducted, the former should prevail.
True, the manning of checkpoints by the military is susceptible of abuse by the men in uniform, in the
same manner that all governmental power is susceptible of abuse. But, at the cost of occasional
inconvenience, discomfort and even irritation to the citizen, the checkpoints during these abnormal
times, when conducted within reasonable limits, are part of the price we pay for an orderly society
and a peaceful community.
Finally, on 17 July 1988, military and police checkpoints in Metro Manila were temporarily lifted and a
review and refinement of the rules in the conduct of the police and military manning the checkpoints
was ordered by the National Capital Regional Command Chief and the Metropolitan Police
Director. 10
WHEREFORE, the petition is DISMISSED.
SO ORDERED.
Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, Gancayco, Bidin, Cortes,
Grio-Aquino, Medialdea and Regalado, JJ., concur.

Separate Opinions

CRUZ, J., dissenting:

I dissent. The sweeping statements in the majority opinion are as dangerous as the checkpoints it
would sustain and fraught with serious threats to individual liberty. The bland declaration that
individual rights must yield to the demands of national security ignores the fact that the Bill of Rights
was intended precisely to limit the authority of the State even if asserted on the ground of national
security. What is worse is that the searches and seizures are peremptorily pronounced to be
reasonable even without proof of probable cause and much less the required warrant. The
improbable excuse is that they are aimed at 'establishing an effective territorial defense, maintaining
peace and order, and providing an atmosphere conducive to the social, economic and political
development of the National Capital Region." For these purposes, every individual may be stopped
and searched at random and at any time simply because he excites the suspicion, caprice, hostility
or malice of the officers manning the checkpoints, on pain of arrest or worse, even being shot to
death, if he resists.

I have no quarrel with a policeman flashing a light inside a parked vehicle on a dark street as a
routine measure of security and curiosity. But the case at bar is different. Military officers are
systematically stationed at strategic checkpoint to actively ferret out suspected criminals by detaining
and searching any individual who in their opinion might impair "the social, economic and political
development of the National Capital Region." It is incredible that we can sustain such a measure.
And we are not even under martial law.
Unless we are vigilant of our rights, we may find ourselves back to the dark era of the truncheon and
the barbed wire, with the Court itself a captive of its own complaisance and sitting at the death-bed
of liberty.
SARMIENTO, J., dissenting:
I join Justice Isagani Cruz in his dissent, delivered so staightforwardly and eloquently. I am agreed
that the existence alone of checkpoints makes search done therein, unreasonable and hence,
repugnant to the Constitution.
The Charter says that the people enjoy the right of security of person, home, and effects. (CONST.,
art. III, sec. 2.) It is also the bedrock the right of the people to be left alone on which the regime
of law and constitutionalism rest. It is not, as the majority would put it, a matter of "occasional
inconveniences, discomfort and even irritation." (Resolution, 4.) To say that it is, is so I submit
to trivialize the plain command of the Constitution.
Checkpoints, I further submit, are things of martial rule, and things of the past. They first saw the
light of day by virtue of General Order No. 66 (AUTHORIZING THE CHIEF OF CONSTABULARY
TO ESTABLISH CHECKPOINTS, UPDATE LISTS OF WANTED PERSONS AND CONDUCT
DRAGNET OPERATIONS AND FOR OTHER PURPOSES), a martial law issuance, as amended by
General Order No. 67 (AMENDING AND AMPLIFYING PARAGRAPH 7 OF GENERAL ORDER NO.
66 DATED SEPTEMBER 12, 1980), yet another martial law issuance. (See O.G. 4224-4226; 42264227 [Aug., 1983].) They are, so I strongly submit, repressive measures, the same measures
against which we had fought so painstakingly in our quest for liberty, a quest that ended at EDSA
and a quest that terminated a dictatorship. How soon we forget.
While the right against unreasonable searches and seizures, as my brethren advance, is a right
personal to the aggrieved party, the petitioners, precisely, have come to Court because they had
been, or had felt, aggrieved. I submit that in that event, the burden is the State's, to demonstrate the
reasonableness of the search. The petitioners, Ricardo Valmonte in particular, need not, therefore,
have illustrated the "details of the incident" (Resolution, supra, 4) in all their gore and gruesomeness.
In any event, the absence alone of a search warrant, as I have averred, makes checkpoint searches
unreasonable, and by itself, subject to constitutional challenges. (Supra.) As it is, "checkpoints",
have become "search warrants" unto themselves a roving one at that.
That "[n]ot all searches and seizures are prohibited," the majority points out, is fine. And so is "a
reasonable search is not to be determined by any fixed formula but is to be resolved according to the
facts of each case." (Supra) But the question, exactly, is: Is (are) the search(es) in this case

reasonable? I submit that it (they) is (are) not, for one simple reason: No search warrant has been
issued by a judge.
I likewise do not find this case to be a simple matter of an "officer merely draw(ing) aside the curtain
of a vacant vehicle ... or simply look(ing) (supra) there, "or flash(ing) a light therein." (Supra) What
we have here is Orwell's Big Brother watching every step we take and every move we make.
As it also is, "checkpoints" are apparently, State policy. The American cases the majority refers to
involve routine checks compelled by "probable cause". What we have here, however, is not simply a
policeman on the beat but armed men, CAFGU or Alsa Masa, who hold the power of life or death
over the citizenry, who fire with no provocation and without batting an eyelash. They likewise shoot
you simply because they do not like your face. I have witnessed actual incidents.
Washington said that militia can not be made to dictate the terms for the nation. He can not be
anymore correct here.
"Between the inherent right of the state to protect its existence ... and on individual's right against a
warrantless search, which is reasonably conducted, "so my brethren go on, the former shall prevail.
(Supra) First, this is the same lie that the hated despot foisted on the Filipino people. It is a serious
mistake to fall for it a second time around. Second, the checkpoint searches herein are
unreasonable: There was no warrant.
A final word. After twenty years of tyranny, the dawn is upon us. The country is once again the
"showcase of democracy" in Asia. But if in many cases, it has been "paper democracy", let this Court
anyway bring to pass its stand, and make liberty in the land, a living reality.
I vote then, to grant the petition.

Separate Opinions
CRUZ, J., dissenting:
I dissent. The sweeping statements in the majority opinion are as dangerous as the checkpoints it
would sustain and fraught with serious threats to individual liberty. The bland declaration that
individual rights must yield to the demands of national security ignores the fact that the Bill of Rights
was intended precisely to limit the authority of the State even if asserted on the ground of national
security. What is worse is that the searches and seizures are peremptorily pronounced to be
reasonable even without proof of probable cause and much less the required warrant. The
improbable excuse is that they are aimed at 'establishing an effective territorial defense, maintaining
peace and order, and providing an atmosphere conducive to the social, economic and political
development of the National Capital Region." For these purposes, every individual may be stopped
and searched at random and at any time simply because he excites the suspicion, caprice, hostility

or malice of the officers manning the checkpoints, on pain of arrest or worse, even being shot to
death, if he resists.
I have no quarrel with a policeman flashing a light inside a parked vehicle on a dark street as a
routine measure of security and curiosity. But the case at bar is different. Military officers are
systematically stationed at strategic checkpoint to actively ferret out suspected criminals by detaining
and searching any individual who in their opinion might impair "the social, economic and political
development of the National Capital Region." It is incredible that we can sustain such a measure.
And we are not even under martial law.
Unless we are vigilant of our rights, we may find ourselves back to the dark era of the truncheon and
the barbed wire, with the Court itself a captive of its own complaisance and sitting at the death-bed
of liberty.
SARMIENTO, J., dissenting:
I join Justice Isagani Cruz in his dissent, delivered so staightforwardly and eloquently. I am agreed
that the existence alone of checkpoints makes search done therein, unreasonable and hence,
repugnant to the Constitution.
The Charter says that the people enjoy the right of security of person, home, and effects. (CONST.,
art. III, sec. 2.) It is also the bedrock the right of the people to be left alone on which the regime
of law and constitutionalism rest. It is not, as the majority would put it, a matter of "occasional
inconveniences, discomfort and even irritation." (Resolution, 4.) To say that it is, is so I submit
to trivialize the plain command of the Constitution.
Checkpoints, I further submit, are things of martial rule, and things of the past. They first saw the
light of day by virtue of General Order No. 66 (AUTHORIZING THE CHIEF OF CONSTABULARY
TO ESTABLISH CHECKPOINTS, UPDATE LISTS OF WANTED PERSONS AND CONDUCT
DRAGNET OPERATIONS AND FOR OTHER PURPOSES), a martial law issuance, as amended by
General Order No. 67 (AMENDING AND AMPLIFYING PARAGRAPH 7 OF GENERAL ORDER NO.
66 DATED SEPTEMBER 12, 1980), yet another martial law issuance. (See O.G. 4224-4226; 42264227 [Aug., 1983].) They are, so I strongly submit, repressive measures, the same measures
against which we had fought so painstakingly in our quest for liberty, a quest that ended at EDSA
and a quest that terminated a dictatorship. How soon we forget.
While the right against unreasonable searches and seizures, as my brethren advance, is a right
personal to the aggrieved party, the petitioners, precisely, have come to Court because they had
been, or had felt, aggrieved. I submit that in that event, the burden is the State's, to demonstrate the
reasonableness of the search. The petitioners, Ricardo Valmonte in particular, need not, therefore,
have illustrated the "details of the incident" (Resolution, supra, 4) in all their gore and gruesomeness.
In any event, the absence alone of a search warrant, as I have averred, makes checkpoint searches
unreasonable, and by itself, subject to constitutional challenges. (Supra.) As it is, "checkpoints",
have become "search warrants" unto themselves a roving one at that.

That "[n]ot all searches and seizures are prohibited," the majority points out, is fine. And so is "a
reasonable search is not to be determined by any fixed formula but is to be resolved according to the
facts of each case." (Supra) But the question, exactly, is: Is (are) the search(es) in this case
reasonable? I submit that it (they) is (are) not, for one simple reason: No search warrant has been
issued by a judge.
I likewise do not find this case to be a simple matter of an "officer merely draw(ing) aside the curtain
of a vacant vehicle ... or simply look(ing) (supra) there, "or flash(ing) a light therein." (Supra) What
we have here is Orwell's Big Brother watching every step we take and every move we make.
As it also is, "checkpoints" are apparently, State policy. The American cases the majority refers to
involve routine checks compelled by "probable cause". What we have here, however, is not simply a
policeman on the beat but armed men, CAFGU or Alsa Masa, who hold the power of life or death
over the citizenry, who fire with no provocation and without batting an eyelash. They likewise shoot
you simply because they do not like your face. I have witnessed actual incidents.
Washington said that militia can not be made to dictate the terms for the nation. He can not be
anymore correct here.
"Between the inherent right of the state to protect its existence ... and on individual's right against a
warrantless search, which is reasonably conducted, "so my brethren go on, the former shall prevail.
(Supra) First, this is the same lie that the hated despot foisted on the Filipino people. It is a serious
mistake to fall for it a second time around. Second, the checkpoint searches herein are
unreasonable: There was no warrant.
A final word. After twenty years of tyranny, the dawn is upon us. The country is once again the
"showcase of democracy" in Asia. But if in many cases, it has been "paper democracy", let this Court
anyway bring to pass its stand, and make liberty in the land, a living reality.
I vote then, to grant the petition.
Footnotes
1 Comment of Respondents. Rollo, p. 32.
2 Article III, Section 2, 1987 Constitution provides: 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.
3 G.R. No. 80432. Minute Resolution dated 8 March 1988.
4 Section 52, 79 C.J.S. 810-811.

5 Section 8, 79 C.J.S. 786.

6 U.S. v. Robinwitz, N.Y., 70 S. Crt. 430,339 U.S. 56,94 L.Ed. 653; Harries v. U.S.,
Okl., 67 S.Ct. 1098 & 331 U.S. 146, 94 L.Ed. 1871; Martin v. U.S., C.A. Va., 183 F2d
436; 66, 79 C.J.S., 835-8,36.
7 Ibid., citing the case of People v. Case, 190 MW 289, 220 Mich. 379, 27 A.L.R.
686.
8 Ibid., citing the case of State v. Gaina, 97 SE 62, 111 S.C. 1 74, 3 A.L.R. 1500.
9 Ibid., citing the case of Rowland v. Commonwealth, 259 SW 33, 202 Rg 92.
10 Comment. Rollo, pp. 25-26.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 88211 September 15, 1989
FERDINAND E. MARCOS, IMELDA R. MARCOS, FERDINAND R. MARCOS, JR., IRENE M.
ARANETA, IMEE MANOTOC, TOMAS MANOTOC, GREGORIO ARANETA, PACIFICO E.
MARCOS, NICANOR YIGUEZ and PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA),
represented by its President, CONRADO F. ESTRELLA, petitioners,
vs.
HONORABLE RAUL MANGLAPUS, CATALINO MACARAIG, SEDFREY ORDOEZ, MIRIAM
DEFENSOR SANTIAGO, FIDEL RAMOS, RENATO DE VILLA, in their capacity as Secretary of
Foreign Affairs, Executive Secretary, Secretary of Justice, Immigration Commissioner,
Secretary of National Defense and Chief of Staff, respectively, respondents.

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

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

(3) Has there been a hearing?

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

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

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

The right to return to one's country is not among the rights specifically guaranteed in the Bill of
Rights, which treats only of the liberty of abode and the right to travel, but it is our well-considered
view that the right to return may be considered, as a generally accepted principle of international law
and, under our Constitution, is part of the law of the land [Art. II, Sec. 2 of the Constitution.] However,
it is distinct and separate from the right to travel and enjoys a different protection under the
International Covenant of Civil and Political Rights, i.e., against being "arbitrarily deprived" thereof
[Art. 12 (4).]
Thus, the rulings in the cases Kent and Haig which refer to the issuance of passports for the purpose
of effectively exercising the right to travel are not determinative of this case and are only tangentially
material insofar as they relate to a conflict between executive action and the exercise of a protected
right. The issue before the Court is novel and without precedent in Philippine, and even in American
jurisprudence.
Consequently, resolution by the Court of the well-debated issue of whether or not there can be
limitations on the right to travel in the absence of legislation to that effect is rendered unnecessary.
An appropriate case for its resolution will have to be awaited.
Having clarified the substance of the legal issue, we find now a need to explain the methodology for
its resolution. Our resolution of the issue will involve a two-tiered approach. We shall first resolve
whether or not the President has the power under the Constitution, to bar the Marcoses from
returning to the Philippines. Then, we shall determine, pursuant to the express power of the Court
under the Constitution in Article VIII, Section 1, whether or not the President acted arbitrarily or with
grave abuse of discretion amounting to lack or excess of jurisdiction when she determined that the
return of the Marcose's to the Philippines poses a serious threat to national interest and welfare and
decided to bar their return.
Executive Power
The 1987 Constitution has fully restored the separation of powers of the three great branches of
government. To recall the words of Justice Laurel in Angara v. Electoral Commission [63 Phil. 139
(1936)], "the Constitution has blocked but with deft strokes and in bold lines, allotment of power to
the executive, the legislative and the judicial departments of the government." [At 157.1 Thus, the
1987 Constitution explicitly provides that "[the legislative power shall be vested in the Congress of
the Philippines" Art VI, Sec. 11, "[t]he executive power shall bevested in the President of the
Philippines" [Art. VII, Sec. 11, and "[te judicial power shall be vested in one Supreme Court and in
such lower courts as may be established by law" [Art. VIII, Sec. 1.] These provisions not only
establish a separation of powers by actual division [Angara v. Electoral Commission, supra] but also
confer plenary legislative, executive and judicial powers subject only to limitations provided in the
Constitution. For as the Supreme Court in Ocampo v. Cabangis [15 Phil. 626 (1910)] pointed out "a
grant of the legislative power means a grant of all legislative power; and a grant of the judicial power
means a grant of all the judicial power which may be exercised under the government." [At 631632.1 If this can be said of the legislative power which is exercised by two chambers with a
combined membership of more than two hundred members and of the judicial power which is vested
in a hierarchy of courts, it can equally be said of the executive power which is vested in one official
the President.
As stated above, the Constitution provides that "[t]he executive power shall be vested in the
President of the Philippines." [Art. VII, Sec. 1]. However, it does not define what is meant by
executive power" although in the same article it touches on the exercise of certain powers by the
President, i.e., the power of control over all executive departments, bureaus and offices, the power
to execute the laws, the appointing power, the powers under the commander-in-chief clause, the

power to grant reprieves, commutations and pardons, the power to grant amnesty with the
concurrence of Congress, the power to contract or guarantee foreign loans, the power to enter into
treaties or international agreements, the power to submit the budget to Congress, and the power to
address Congress [Art. VII, Sec. 14-23].
The inevitable question then arises: by enumerating certain powers of the President did the framers
of the Constitution intend that the President shall exercise those specific powers and no other? Are
these se enumerated powers the breadth and scope of "executive power"? Petitioners advance the
view that the President's powers are limited to those specifically enumerated in the 1987
Constitution. Thus, they assert: "The President has enumerated powers, and what is not enumerated
is impliedly denied to her. Inclusion unius est exclusio alterius[Memorandum for Petitioners, p. 4Rollo p. 233.1 This argument brings to mind the institution of the U.S. Presidency after which ours is
legally patterned.**
Corwin, in his monumental volume on the President of the United States grappled with the same
problem. He said:
Article II is the most loosely drawn chapter of the Constitution. To those who think
that a constitution ought to settle everything beforehand it should be a nightmare; by
the same token, to those who think that constitution makers ought to leave
considerable leeway for the future play of political forces, it should be a vision
realized.
We encounter this characteristic of Article 11 in its opening words: "The executive
power shall be vested in a President of the United States of America." . . .. [The
President: Office and Powers, 17871957, pp. 3-4.]
Reviewing how the powers of the U.S. President were exercised by the different persons who held
the office from Washington to the early 1900's, and the swing from the presidency by commission to
Lincoln's dictatorship, he concluded that "what the presidency is at any particular moment depends
in important measure on who is President." [At 30.]
This view is shared by Schlesinger who wrote in The Imperial Presidency:
For the American Presidency was a peculiarly personal institution. it remained of
course, an agency of government subject to unvarying demands and duties no
remained, of cas President. But, more than most agencies of government, it changed
shape, intensity and ethos according to the man in charge. Each President's
distinctive temperament and character, his values, standards, style, his habits,
expectations, Idiosyncrasies, compulsions, phobias recast the WhiteHouse and
pervaded the entire government. The executive branch, said Clark Clifford, was a
chameleon, taking its color from the character and personality of the President. The
thrust of the office, its impact on the constitutional order, therefore altered from
President to President. Above all, the way each President understood it as his
personal obligation to inform and involve the Congress, to earn and hold the
confidence of the electorate and to render an accounting to the nation and posterity
determined whether he strengthened or weakened the constitutional order. [At 212213.]
We do not say that the presidency is what Mrs. Aquino says it is or what she does but, rather, that
the consideration of tradition and the development of presidential power under the different
constitutions are essential for a complete understanding of the extent of and limitations to the

President's powers under the 1987 Constitution. The 1935 Constitution created a strong President
with explicitly broader powers than the U.S. President. The 1973 Constitution attempted to modify
the system of government into the parliamentary type, with the President as a mere figurehead, but
through numerous amendments, the President became even more powerful, to the point that he was
also the de facto Legislature. The 1987 Constitution, however, brought back the presidential system
of government and restored the separation of legislative, executive and judicial powers by their
actual distribution among three distinct branches of government with provision for checks and
balances.
It would not be accurate, however, to state that "executive power" is the power to enforce the laws,
for the President is head of state as well as head of government and whatever powers inhere in such
positions pertain to the office unless the Constitution itself withholds it. Furthermore, the Constitution
itself provides that the execution of the laws is only one of the powers of the President. It also grants
the President other powers that do not involve the execution of any provision of law, e.g., his power
over the country's foreign relations.
On these premises, we hold the view that although the 1987 Constitution imposes limitations on the
exercise ofspecific powers of the President, it maintains intact what is traditionally considered as
within the scope of "executive power." Corollarily, the powers of the President cannot be said to be
limited only to the specific powers enumerated in the Constitution. In other words, executive power is
more than the sum of specific powers so enumerated,
It has been advanced that whatever power inherent in the government that is neither legislative nor
judicial has to be executive. Thus, in the landmark decision of Springer v. Government of the
Philippine Islands, 277 U.S. 189 (1928), on the issue of who between the Governor-General of the
Philippines and the Legislature may vote the shares of stock held by the Government to elect
directors in the National Coal Company and the Philippine National Bank, the U.S. Supreme Court,
in upholding the power of the Governor-General to do so, said:
...Here the members of the legislature who constitute a majority of the "board" and
"committee" respectively, are not charged with the performance of any legislative
functions or with the doing of anything which is in aid of performance of any such
functions by the legislature. Putting aside for the moment the question whether the
duties devolved upon these members are vested by the Organic Act in the GovernorGeneral, it is clear that they are not legislative in character, and still more clear that
they are not judicial. The fact that they do not fall within the authority of either of
these two constitutes logical ground for concluding that they do fall within that of the
remaining one among which the powers of government are divided ....[At 202-203;
Emphasis supplied.]
We are not unmindful of Justice Holmes' strong dissent. But in his enduring words of dissent we find
reinforcement for the view that it would indeed be a folly to construe the powers of a branch of
government to embrace only what are specifically mentioned in the Constitution:
The great ordinances of the Constitution do not establish and divide fields of black
and white. Even the more specific of them are found to terminate in a penumbra
shading gradually from one extreme to the other. ....
xxx xxx xxx
It does not seem to need argument to show that however we may disguise it by
veiling words we do not and cannot carry out the distinction between legislative and

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

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

abuse is not established, the Court will not substitute its judgment for that of the official concerned
and decide a matter which by its nature or by law is for the latter alone to decide. In this light, it
would appear clear that the second paragraph of Article VIII, Section 1 of the Constitution, defining
"judicial power," which specifically empowers the courts to determine whether or not there has been
a grave abuse of discretion on the part of any branch or instrumentality of the government,
incorporates in the fundamental law the ruling inLansang v. Garcia [G.R. No. L-33964, December 11,
1971, 42 SCRA 4481 that:]
Article VII of the [1935] Constitution vests in the Executive the power to suspend the
privilege of the writ of habeas corpus under specified conditions. Pursuant to the
principle of separation of powers underlying our system of government, the Executive
is supreme within his own sphere. However, the separation of powers, under the
Constitution, is not absolute. What is more, it goes hand in hand with the system of
checks and balances, under which the Executive is supreme, as regards the
suspension of the privilege, but only if and when he acts within the sphere alloted to
him by the Basic Law, and the authority to determine whether or not he has so acted
is vested in the Judicial Department, which, in this respect, is, in turn, constitutionally
supreme. In the exercise of such authority, the function of the Court is merely to
check not to supplant the Executive, or to ascertain merely whether he has gone
beyond the constitutional limits of his jurisdiction, not to exercise the power vested in
him or to determine the wisdom of his act [At 479-480.]
Accordingly, the question for the Court to determine is whether or not there exist factual bases for
the President to conclude that it was in the national interest to bar the return of the Marcoses to the
Philippines. If such postulates do exist, it cannot be said that she has acted, or acts, arbitrarily or that
she has gravely abused her discretion in deciding to bar their return.
We find that from the pleadings filed by the parties, from their oral arguments, and the facts revealed
during the briefing in chambers by the Chief of Staff of the Armed Forces of the Philippines and the
National Security Adviser, wherein petitioners and respondents were represented, there exist factual
bases for the President's decision..
The Court cannot close its eyes to present realities and pretend that the country is not besieged from
within by a well-organized communist insurgency, a separatist movement in Mindanao, rightist
conspiracies to grab power, urban terrorism, the murder with impunity of military men, police officers
and civilian officials, to mention only a few. The documented history of the efforts of the Marcose's
and their followers to destabilize the country, as earlier narrated in this ponencia bolsters the
conclusion that the return of the Marcoses at this time would only exacerbate and intensify the
violence directed against the State and instigate more chaos.
As divergent and discordant forces, the enemies of the State may be contained. The military
establishment has given assurances that it could handle the threats posed by particular groups. But
it is the catalytic effect of the return of the Marcoses that may prove to be the proverbial final straw
that would break the camel's back. With these before her, the President cannot be said to have
acted arbitrarily and capriciously and whimsically in determining that the return of the Marcoses
poses a serious threat to the national interest and welfare and in prohibiting their return.
It will not do to argue that if the return of the Marcoses to the Philippines will cause the escalation of
violence against the State, that would be the time for the President to step in and exercise the
commander-in-chief powers granted her by the Constitution to suppress or stamp out such violence.
The State, acting through the Government, is not precluded from taking pre- emptive action against
threats to its existence if, though still nascent they are perceived as apt to become serious and

direct. Protection of the people is the essence of the duty of government. The preservation of the
State the fruition of the people's sovereignty is an obligation in the highest order. The President,
sworn to preserve and defend the Constitution and to see the faithful execution the laws, cannot
shirk from that responsibility.
We cannot also lose sight of the fact that the country is only now beginning to recover from the
hardships brought about by the plunder of the economy attributed to the Marcoses and their close
associates and relatives, many of whom are still here in the Philippines in a position to destabilize
the country, while the Government has barely scratched the surface, so to speak, in its efforts to
recover the enormous wealth stashed away by the Marcoses in foreign jurisdictions. Then, We
cannot ignore the continually increasing burden imposed on the economy by the excessive foreign
borrowing during the Marcos regime, which stifles and stagnates development and is one of the root
causes of widespread poverty and all its attendant ills. The resulting precarious state of our economy
is of common knowledge and is easily within the ambit of judicial notice.
The President has determined that the destabilization caused by the return of the Marcoses would
wipe away the gains achieved during the past few years and lead to total economic collapse. Given
what is within our individual and common knowledge of the state of the economy, we cannot argue
with that determination.
WHEREFORE, and it being our well-considered opinion that the President did not act arbitrarily or
with grave abuse of discretion in determining that the return of former President Marcos and his
family at the present time and under present circumstances poses a serious threat to national
interest and welfare and in prohibiting their return to the Philippines, the instant petition is hereby
DISMISSED.
SO ORDERED.

Separate Opinions

FERNAN, C.J., concurring:

"The threats to national security and public order are real the mounting Communist insurgency, a
simmering separatist movement, a restive studentry, widespread labor disputes, militant farmer
groups. . . . Each of these threats is an explosive ingredient in a steaming cauldron which could blow
up if not handled properly." 1
These are not my words. They belong to my distinguished colleague in the Court, Mr. Justice Hugo
E. Gutierrez, Jr. But they express eloquently the basis of my full concurrence to the exhaustive and
well-written ponencia of Mme. Justice Irene R. Cortes.
Presidential powers and prerogatives are not fixed but fluctuate. They are not derived solely from a
particular constitutional clause or article or from an express statutory grant. Their limits are likely to
depend on the imperatives of events and contemporary imponderables rather than on abstract
theories of law. History and time-honored principles of constitutional law have conceded to the
Executive Branch certain powers in times of crisis or grave and imperative national emergency.
Many terms are applied to these powers: "residual," "inherent," 44 moral," "implied," "aggregate,"

"emergency." whatever they may be called, the fact is that these powers exist, as they must if the
governance function of the Executive Branch is to be carried out effectively and efficiently. It is in this
context that the power of the President to allow or disallow the Marcoses to return to the Philippines
should be viewed. By reason of its impact on national peace and order in these admittedly critical
times, said question cannot be withdrawn from the competence of the Executive Branch to decide.
And indeed, the return of the deposed President, his wife and children cannot but pose a clear and
present danger to public order and safety. One needs only to recall the series of destabilizing actions
attempted by the so-called Marcos loyalists as well as the ultra-rightist groups during the EDSA
Revolution's aftermath to realize this. The most publicized of these offensives is the Manila Hotel
incident which occurred barely five (5) months after the People's Power Revolution. Around 10,000
Marcos supporters, backed by 300 loyalist soldiers led by Brigadier General Jose Zumel and Lt. Col.
Reynaldo Cabauatan converged at the Manila Hotel to witness the oath-taking of Arturo Tolentino as
acting president of the Philippines. The public disorder and peril to life and limb of the citizens
engendered by this event subsided only upon the eventual surrender of the loyalist soldiers to the
authorities.
Then followed the Channel 7, Sangley, Villamor, Horseshoe Drive and Camp Aguinaldo incidents.
Military rebels waged simultaneous offensives in different parts of Metro Manila and Sangley Point in
Cavite. A hundred rebel soldiers took over Channel 7 and its radio station DZBB. About 74 soldier
rebels attacked Villamor Air Base, while another group struck at Sangley Point in Cavite and held the
15th Air Force Strike wing commander and his deputy hostage. Troops on board several vehicles
attempted to enter Gate I of Camp Aguinaldo even as another batch of 200 soldiers encamped at
Horseshoe Village.
Another destabilization plot was carried out in April, 1987 by enlisted personnel who forced their way
through Gate 1 of Fort Bonifacio. They stormed into the army stockade but having failed to convince
their incarcerated members to unite in their cause, had to give up nine (9) hours later.
And who can forget the August 28, 1987 coup attempt which almost toppled the Aquino
Government? Launched not by Marcos loyalists, but by another ultra-rightist group in the military led
by Col. Gregorio "Gringo" Honasan who remains at large to date, this most serious attempt to wrest
control of the government resulted in the death of many civilians.
Members of the so-called Black Forest Commando were able to cart away high-powered firearms
and ammunition from the Camp Crame Armory during a raid conducted in June 1988. Most of the
group members were, however, captured in Antipolo, Rizal. The same group was involved in an
unsuccessful plot known as Oplan Balik Saya which sought the return of Marcos to the country.
A more recent threat to public order, peace and safety was the attempt of a group named CEDECOR
to mobilize civilians from nearby provinces to act as blockading forces at different Metro Manila
areas for the projected link-up of Marcos military loyalist troops with the group of Honasan. The
pseudo "people power" movement was neutralized thru checkpoints set up by the authorities along
major road arteries where the members were arrested or forced to turn back.
While not all of these disruptive incidents may be traced directly to the Marcoses, their occurrence
militates heavily against the wisdom of allowing the Marcoses' return. Not only will the Marcoses'
presence embolden their followers toward similar actions, but any such action would be seized upon
as an opportunity by other enemies of the State, such as the Communist Party of the Philippines and
the NPA'S, the Muslim secessionists and extreme rightists of the RAM, to wage an offensive against
the government. Certainly, the state through its executive branch has the power, nay, the
responsibility and obligation, to prevent a grave and serious threat to its safety from arising.

Apparently lost amidst the debate on whether or not to allow the Marcoses to return to the
Philippines is one factor, which albeit, at first blush appears to be extra legal, constitutes a valid
justification for disallowing the requested return. I refer to the public pulse. It must be remembered
that the ouster of the Marcoses from the Philippines came about as an unexpected, but certainly
welcomed, result of the unprecedented peoples power" revolution. Millions of our people braved
military tanks and firepower, kept vigil, prayed, and in countless manner and ways contributed time,
effort and money to put an end to an evidently untenable claim to power of a dictator. The removal of
the Marcoses from the Philippines was a moral victory for the Filipino people; and the installation of
the present administration, a realization of and obedience to the people's Will.
Failing in legal arguments for the allowance of the Marcoses' return, appeal is being made to
sympathy, compassion and even Filipino tradition. The political and economic gains we have
achieved during the past three years are however too valuable and precious to gamble away on
purely compassionate considerations. Neither could public peace, order and safety be sacrificed for
an individual's wish to die in his own country. Verily in the balancing of interests, the scales tilt in
favor of presidential prerogative, which we do not find to have been gravely abused or arbitrarily
exercised, to ban the Marcoses from returning to the Philippines.
GUTIERREZ, JR., J., dissenting
"The Constitution ... is a law for rulers and people, equally in war and in peace, and covers with the
shield of its protection all classes of men, at all times, and under all circumstances. No doctrine
involving more pernicious consequences was ever invented by the wit of man than that any of its
provisions can be suspended during any of the great exigencies of government." (Ex Parte Milligan,
4 Wall. 2; 18 L. Ed. 281 [1866])
Since our days as law students, we have proclaimed the stirring words of Ex Parte Milligan as selfevident truth. But faced with a hard and delicate case, we now hesitate to qive substance to their
meaning. The Court has permitted a basic freedom enshrined in the Bill of Rights to be taken away
by Government.
There is only one Bill of Rights with the same interpretation of liberty and the same guarantee of
freedom for both unloved and despised persons on one hand and the rest who are not so
stigmatized on the other.
I am, therefore, disturbed by the majority ruling which declares that it should not be a precedent. We
are interpreting the Constitution for only one person and constituting him into a class by himself. The
Constitution is a law for all classes of men at all times. To have a person as one class by himself
smacks of unequal protection of the laws.
With all due respect for the majority in the Court, I believe that the issue before us is one of rights
and not of power. Mr. Marcos is insensate and would not live if separated from the machines which
have taken over the functions of his kidneys and other organs. To treat him at this point as one with
full panoply of power against whom the forces of Government should be marshalled is totally
unrealistic. The Government has the power to arrest and punish him. But does it have the power to
deny him his right to come home and die among familiar surroundings?
Hence, this dissent.
The Bill of Rights provides:

Sec. 6. The liberty of abode and of changing the same within the limits prescribed by
law shall not be impaired except upon lawful order of the court. Neither shall the right
to travel be impaired except in the interest of national security, public safety, or public
health, as may be provided by law. (Emphasis supplied, Section 6, Art. 111,
Constitution)
To have the petition dismissed, the Solicitor General repeats a ritual invocation of national security
and public safety which is hauntingly familiar because it was pleaded so often by petitioner
Ferdinand E. Marcos to justify his acts under martial law. There is, however, no showing of the
existence of a law prescribing the limits of the power to impair and the occasions for its exercise.
And except for citing breaches of law and order, the more serious of which were totally unrelated to
Mr. Marcos and which the military was able to readily quell, the respondents have not pointed to any
grave exigency which permits the use of untrammeled Governmental power in this case and the
indefinite suspension of the constitutional right to travel.
The respondents' basic argument is that the issue before us is a political question beyond our
jurisdiction to consider. They contend that the decision to ban former President Marcos, and his
family on grounds of national security and public safety is vested by the Constitution in the President
alone. The determination should not be questioned before this Court. The President's finding of
danger to the nation should be conclusive on the Court.
What is a political question?
In Vera v. Avelino (77 Phil. 192, 223 [1946], the Court stated:
xxx xxx xxx
It is a well-settled doctrine that political questions are not within the province of the
judiciary, except to the extent that power to deal with such questions has been
conferred on the courts by express constitutional or statutory provisions. It is not so
easy, however, to define the phrase political question, nor to determine what matters
fall within its scope. It is frequently used to designate all questions that he outside the
scope of the judicial power. More properly, however, it means those questions which,
under the constitution, are to be decided by the people in their sovereign capacity, or
in regard to which full discretionary authority has been delegated to the legislative or
executive branch of the government.
We defined a political question in Taniada v. Cuenco (103 Phil. 1051, 1066 [1957]), as follows:
In short, the term 'Political question' connotes, in legal parlance, what it means in
ordinary parlance, namely, a question of policy. In other words, in the language
of Corpus Juris Secundum (supra), it refers to 'those questions which, under the
Constitution, are to be decided by the people in their sovereign capacity, or in regard
to which full discretionary authority has been delegated to the Legislature or
executive branch of the Government. It is concerned with issues dependent upon the
wisdom, not legality, of a particular measure.
The most often quoted definition of political question was made by Justice William J. Brennan Jr.,
who penned the decision of the United States Supreme Court in Baker v. Carr (369 US 186,82, S.
Ct. 691, L. Ed. 2d. 663 [1962]). The ingredients of a political question as formulated in Baker v.
Carr are:

It is apparent that several formulations which vary slightly according to the settings in
which the questions arise may describe a political question, which identifies it as
essentially a function of the separation of powers. Prominent on the surface of any
case held to involve a political question is found a textually demonstrable
constitutional commitment of the issue to a coordinate political department; or a lack
of judicially discoverable and manageable standards for resolving it; or the
impossibility of deciding without an initial policy determination of a kind clearly for
non-judicial discretion; or the impossibility of a court's undertaking independent
resolution without expressing lack of the respect due coordinate branches of
government; or an unusual need for unquestioning adherence to a political decision
already made; or potentiality of embarrassment from multifarious pronouncements by
various departments on one question.
For a political question to exist, there must be in the Constitution a power vested exclusively in the
President or Congress, the exercise of which the court should not examine or prohibit. A claim of
plenary or inherent power against a civil right which claim is not found in a specific provision is
dangerous. Neither should we validate a roving commission allowing public officials to strike where
they please and to override everything which to them represents evil. The entire Government is
bound by the rule of law.
The respondents have not pointed to any provision of the Constitution which commits or vests the
determination of the question raised to us solely in the President.
The authority implied in Section 6 of the Bill of Rights itself does not exist because no law has been
enacted specifying the circumstances when the right may be impaired in the interest of national
security or public safety. The power is in Congress, not the Executive.
The closest resort to a textile demonstrable constitutional commitment of power may be found in the
commander-in-chief clause which allows the President to call out the armed forces in case of lawless
violence, invasion or rebellion and to suspend the privilege of the writ of habeas corpus or proclaim
martial law in the event of invasion or rebellion, when the public safety requires it.
There is, however, no showing, not even a claim that the followers of former President Marcos are
engaging in rebellion or that he is in a position to lead them. Neither is it claimed that there is a need
to suspend the privilege of the writ of habeas corpus or proclaim martial law because of the arrival of
Mr. Marcos and his family. To be sure, there may be disturbances but not of a magnitude as would
compel this Court to resort to a doctrine of non- justiceability and to ignore a plea for the
enforcement of an express Bill of Rights guarantee.
The respondents themselves are hard-pressed to state who or what constitutes a Marcos "loyalist."
The constant insinuations that the "loyalist" group is heavily funded by Mr. Marcos and his cronies
and that the "loyalists" engaging in rallies and demonstrations have to be paid individual allowances
to do so constitute the strongest indication that the hard core "loyalists" who would follow Marcos
right or wrong are so few in number that they could not possibly destabilize the government, much
less mount a serious attempt to overthrow it.
Not every person who would allow Mr. Marcos to come home can be tagged a "loyalist." It is in the
best of Filipino customs and traditions to allow a dying person to return to his home and breath his
last in his native surroundings. Out of the 103 Congressmen who passed the House resolution
urging permission for his return, there are those who dislike Mr. Marcos intensely or who suffered
under his regime. There are also many Filipinos who believe that in the spirit of national unity and
reconciliation Mr. Marcos and his family should be permitted to return to the Philippines and that

such a return would deprive his fanatic followers of any further reason to engage in rallies and
demonstrations.
The Court, however, should view the return of Mr. Marcos and his family solely in the light of the
constitutional guarantee of liberty of abode and the citizen's right to travel as against the
respondents' contention that national security and public safety would be endangered by a grant of
the petition.
Apart from the absence of any text in the Constitution committing the issue exclusively to the
President, there is likewise no dearth of decisional data, no unmanageable standards which stand in
the way of a judicial determination.
Section 6 of the Bill of Rights states categorically that the liberty of abode and of changing the same
within the limits prescribed by law may be impaired only upon a lawful order of a court. Not by an
executive officer. Not even by the President. Section 6 further provides that the right to travel, and
this obviously includes the right to travelout of or back into the Philippines, cannot be impaired
except in the interest of national security, public safety, or public health, as may be provided by law.
There is no law setting the limits on a citizen's right to move from one part of the country to another
or from the Philippines to a foreign country or from a foreign country to the Philippines. The laws
cited by the Solicitor General immigration, health, quarantine, passports, motor vehicle, destierro
probation, and parole are all inapplicable insofar as the return of Mr. Marcos and family is
concerned. There is absolutely no showing how any of these statutes and regulations could serve as
a basis to bar their coming home.
There is also no disrespect for a Presidential determination if we grant the petition. We would simply
be applying the Constitution, in the preservation and defense of which all of us in Government, the
President and Congress included, are sworn to participate. Significantly, the President herself has
stated that the Court has the last word when it comes to constitutional liberties and that she would
abide by our decision.
As early as 1983, it was noted that this Court has not been very receptive to the invocation of the
political question doctrine by government lawyers. (See Morales, Jr. .v Ponce Enrile, 121 SCRA 538
[1983]).
Many of those now occupying the highest positions in the executive departments, Congress, and the
judiciary criticized this Court for using what they felt was a doctrine of convenience, expediency,
utility or subservience. Every major challenge to the acts of petitioner Ferdinand E. Marcos under his
authoritarian regime the proclamation of martial law, the ratification of a new constitution, the arrest
and detention of "enemies of the State" without charges being filed against them, the dissolution of
Congress and the exercise by the President of legislative powers, the trial of civilians for civil
offenses by military tribunals, the seizure of some of the country's biggest corporations, the taking
over or closure of newspaper offices, radio and television stations and other forms of media, the
proposals to amend the Constitution, etc. was invariably met by an invocation that the petition
involved a political question. It is indeed poetic justice that the political question doctrine so often
invoked by then President Marcos to justify his acts is now being used against him and his family.
Unfortunately, the Court should not and is not allowed to indulge in such a persiflage. We are bound
by the Constitution.
The dim view of the doctrine's use was such that when the present Constitution was drafted, a broad
definition of judicial power was added to the vesting in the Supreme Court and statutory courts of
said power.

The second paragraph of Section 1, Article VIII of the Constitution provides:

Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the Government.
This new provision was enacted to preclude this Court from using the political question doctrine as a
means to avoid having to make decisions simply because they are too controversial, displeasing to
the President or Congress, inordinately unpopular, or which may be ignored and not enforced.
The framers of the Constitution believed that the free use of the political question doctrine allowed
the Court during the Marcos years to fall back on prudence, institutional difficulties, complexity of
issues, momentousness of consequences or a fear that it was extravagantly extending judicial power
in the cases where it refused to examine and strike down an exercise of authoritarian power.
Parenthetically, at least two of the respondents and their counsel were among the most vigorous
critics of Mr. Marcos (the main petitioner) and his use of the political question doctrine. The
Constitution was accordingly amended. We are now precluded by its mandate from refusing to
invalidate a political use of power through a convenient resort to the question doctrine. We are
compelled to decide what would have been non-justiceable under our decisions interpreting earlier
fundamental charters.
This is not to state that there can be no more political questions which we may refuse to
resolve. There are still some political questions which only the President, Congress, or a plebiscite
may decide. Definitely, the issue before us is not one of them.
The Constitution requires the Court "to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction."
How do we determine a grave abuse of discretion?
The tested procedure is to require the parties to present evidence. Unfortunately, considerations of
national security do not readily lend themselves to the presentation of proof before a court of justice.
The vital information essential to an objective determination is usually highly classified and it cannot
be rebutted by those who seek to overthrow the government. As early as Barcelon v. Baker (5 Phil.
87, 93 [19051), the Court was faced with a similar situation. It posed a rhetorical question. If after
investigating conditions in the Archipelago or any part thereof, the President finds that public safety
requires the suspension of the privilege of the writ of habeas corpus, can the judicial department
investigate the same facts and declare that no such conditions exist?
In the effort to follow the "grave abuse of discretion" formula in the second paragraph of Section 1,
Article VIII of the Constitution, the court granted the Solicitor General's offer that the military give us
a closed door factual briefing with a lawyer for the petitioners and a lawyer for the respondents
present.
The results of the briefing call to mind the concurrence of Justice Vicente Abad Santos in Morales,
Jr. v. Enrile, (121 SCRA 538, 592 [19831):
How can this Court determine the factual basis in order that it can ascertain whether
or not the president acted arbitrarily in suspending the writ when, in the truth words of
Montenegro, with its very limited machinery fit] cannot be in better position [than the

Executive Branch] to ascertain or evaluate the conditions prevailing in the

Archipelago? (At p. 887). The answer is obvious. It must rely on the Executive
Branch which has the appropriate civil and military machinery for the facts. This was
the method which had to be used in Lansang. This Court relied heavily on classified
information supplied by the military. Accordingly, an incongruous situation obtained.
For this Court, relied on the very branch of the government whose act was in
question to obtain the facts. And as should be expected the Executive Branch
supplied information to support its position and this Court was in no situation to
disprove them. It was a case of the defendant judging the suit. After all is said and
done, the attempt by its Court to determine whether or not the President acted
arbitrarily in suspending the writ was a useless and futile exercise.
There is still another reason why this Court should maintain a detached attitude and
refrain from giving the seal of approval to the act of the Executive Branch. For it is
possible that the suspension of the writ lacks popular support because of one reason
or another. But when this Court declares that the suspension is not arbitrary
(because it cannot do otherwise upon the facts given to it by the Executive Branch) it
in effect participates in the decision-making process. It assumes a task which it is not
equipped to handle; it lends its prestige and credibility to an unpopular act.
The other method is to avail of judicial notice. In this particular case, judicial notice would be the only
basis for determining the clear and present danger to national security and public safety. The
majority of the Court has taken judicial notice of the Communist rebellion, the separatist movement,
the rightist conspiracies, and urban terrorism. But is it fair to blame the present day Marcos for these
incidents? All these problems are totally unrelated to the Marcos of today and, in fact, are led by
people who have always opposed him. If we use the problems of Government as excuses for
denying a person's right to come home, we will never run out of justifying reasons. These problems
or others like them will always be with us.
Significantly, we do not have to look into the factual bases of the ban Marcos policy in order to
ascertain whether or not the respondents acted with grave abuse of discretion. Nor are we forced to
fall back upon judicial notice of the implications of a Marcos return to his home to buttress a
conclusion.
In the first place, there has never been a pronouncement by the President that a clear and present
danger to national security and public safety will arise if Mr. Marcos and his family are allowed to
return to the Philippines. It was only after the present petition was filed that the alleged danger to
national security and public safety conveniently surfaced in the respondents' pleadings. Secondly,
President Aquino herself limits the reason for the ban Marcos policy to (1) national welfare and
interest and (2) the continuing need to preserve the gains achieved in terms of recovery and stability.
(See page 7, respondents' Comment at page 73 of Rollo). Neither ground satisfies the criteria of
national security and public safety. The President has been quoted as stating that the vast majority
of Filipinos support her position. (The Journal, front page, January 24,1989) We cannot validate their
stance simply because it is a popular one. Supreme Court decisions do not have to be popular as
long as they follow the Constitution and the law. The President's original position "that it is not in the
interest of the nation that Marcos be allowed to return at this time" has not changed. (Manila Times,
front page, February 7, 1989). On February 11, 1989, the President is reported to have stated that
"considerations of the highest national good dictate that we preserve the substantial economic and
political gains of the past three years" in justifying her firm refusal to allow the return of Mr. Marcos
despite his failing health. (Daily Globe, front page, February 15, 1989). "Interest of the nation
national good," and "preserving economic and political gains," cannot be equated with national
security or public order. They are too generic and sweeping to serve as grounds for the denial of a

constitutional right. The Bill of Rights commands that the right to travel may not be impaired except
on the stated grounds of national security, public safety, or public health and with the added
requirement that such impairment must be "as provided by law." The constitutional command cannot
be negated by mere generalizations.
There is an actual rebellion not by Marcos followers but by the New Peoples' Army. Feeding as it
does on injustice, ignorance, poverty, and other aspects at under-development, the Communist
rebellion is the clearest and most present danger to national security and constitutional freedoms.
Nobody has suggested that one way to quell it would be to catch and exile its leaders, Mr. Marcos
himself was forced to flee the country because of "peoples' power." Yet, there is no move to arrest
and exile the leaders of student groups, teachers' organizations, pea ant and labor federations,
transport workers, and government unions whose threatened mass actions would definitely
endanger national security and the stability of government. We fail to see how Mr. Marcos could be a
greater danger.
The fear that Communist rebels, Bangsa Moro secessionists, the Honasan ex-soldiers, the hard core
loyalists, and other dissatisfied elements would suddenly unite to overthrow the Republic should a
dying Marcos come home is too speculative and unsubstantial a ground for denying a constitutional
right. It is not shown how extremists from the right and the left who loathe each other could find a
rallying point in the coming of Mr. Marcos.
The "confluence theory" of the Solicitor General or what the majority calls "catalytic effect," which
alone sustains the claim of danger to national security is fraught with perilous implications. Any
difficult problem or any troublesome person can be substituted for the Marcos threat as the
catalysing factor. The alleged confluence of NPAs, secessionists, radical elements, renegade
soldiers, etc., would still be present. Challenged by any critic or any serious problem, the
Government can state that the situation threatens a confluence of rebel forces and proceed to ride
roughshod over civil liberties in the name of national security. Today, a passport is denied. Tomorrow,
a newspaper may be closed. Public assemblies may be prohibited. Human rights may be violated.
Yesterday, the right to travel of Senators Benigno Aquino, Jr. and Jovito Salonga was curtailed.
Today, it is the right of Mr. Marcos and family. Who will be tomorrow's pariahs I deeply regret that the
Court's decision to use the political question doctrine in a situation where it does not apply raises all
kinds of disturbing possibilities.
I must emphasize that General Renato de Villa, the Chief of Staff of the Armed Forces, has
personally assured the Court that a rebellion of the above combined groups will not succeed and
that the military is on top of the situation. Where then is the clear danger to national security? The
Court has taken judicial notice of something which even the military denies. There would be severe
strains on military capabilities according to General de Villa. There would be set-backs in the
expected eradication of the Communist threat. There would be other serious problems but all can be
successfully contained by the military. I must stress that no reference was made to a clear and
present danger to national security as would allow an overriding of the Bill of Rights.
The Solicitor General's argument that the failure of Congress to enact a statute defining the
parameters of the right to travel and to freely choose one's abode has constrained the President to
fill in the vacuum, is too reminiscent of Amendment No. 6 of the martial law Constitution to warrant
serious consideration. Amendment No. 6 allowed Marcos to issue decrees whenever the Batasang
Pambansa failed or was unable to act adequately on any matter for any reason that in his judgment
required immediate action. When the Bill of Rights provides that a right may not be impaired except
in the interest of national security, public safety, or public health and further requires that a law must
provide when such specifically defined interests are prejudiced or require protection, the inaction of
Congress does not give reason for the respondents to assume the grounds for its impairment.

The fact that the Marcoses have been indicted before American federal courts does not obstruct us
from ruling against an unconstitutional assertion of power by Philippine officials. Let the United
States apply its laws. We have to be true to our own.
Mr. Marcos may be too ill to withstand the rigors of a transpacific flight. The agony of traveling while
hooked up to machines which have taken over the functions of his heart, lungs, and kidneys may
hasten his death. The physical condition of Mr. Marcos does not justify our ignoring or refusing to act
on his claim to a basic right which is legally demandable and enforceable. For his own good, it might
be preferable to stay where he is. But he invokes a constitutional right. We have no power to deny it
to him.
The issuance of a passport may be discretionary but it should not be withheld if to do so would run
counter to a constitutional guarantee. Besides, the petitioners are not asking for passports and
nothing else. Any travel documents or any formal lifting of the Marcos ban as would allow
international airlines to sell them tickets would suffice.
With all due respect for the majority opinion, I disagree with its dictum on the right to travel. I do not
think we should differentiate the right to return home from the right to go abroad or to move around
in the Philippines. If at all, the right to come home must be more preferred than any other aspect of
the right to travel. It was precisely the banning by Mr. Marcos of the right to travel by Senators
Benigno Aquino, Jr., Jovito Salonga, and scores of other "undesirables" and "threats to national
security" during that unfortunate period which led the framers of our present Constitution not only to
re-enact but to strengthen the declaration of this right. Media often asks, "what else is new?" I submit
that we now have a freedom loving and humane regime. I regret that the Court's decision in this
case sets back the gains that our country has achieved in terms of human rights, especially human
rights for those whom we do not like or those who are against us.
The respondent Secretary of Foreign Affairs, Raul S. Manglapus has disclosed a list of former
dictators who were barred by their successors from returning to their respective countries. There is
no showing that the countries involved have constitutions which guarantee the liberty of abode and
the freedom to travel and that despite such constitutional protections, the courts have validated the
"ban a return" policy. Neither is it shown that the successors of the listed dictators are as deeply
committed to democratic principles and as observant of constitutional protections as President
Aquino.
It is indeed regrettable that some followers of the former President are conducting a campaign to
sow discord and to divide the nation. Opposition to the government no matter how odious or
disgusting is, however, insufficient ground to ignore a constitutional guarantee.
During the protracted deliberations on this case, the question was asked is the Government helpless
to defend itself against a threat to national security? Does the President have to suspend the
privilege of the writ of habeas corpus or proclaim martial law? Can she not take less drastic
measures?
Of course, the Government can act. It can have Mr. Marcos arrested and tried in court. The
Government has more than ample powers under eixisting law to deal with a person who
transgresses the peace and imperils public safety. But the denial of travel papers is not one of those
powers because the Bill of Rights says so. There is no law prescribing exile in a foreign land as the
penalty for hurting the Nation.
Considering all the foregoing, I vote to GRANT the petition.

CRUZ, J., dissenting:

It is my belief that the petitioner, as a citizen of the Philippines, is entitled to return to and live and
die in his own country. I say this with a heavy heart but say it nonetheless. That conviction is not
diminished one whit simply because many believe Marcos to be beneath contempt and undeserving
of the very liberties he flounted when he was the absolute ruler of this land.
The right of the United States government to detain him is not the question before us, nor can we
resolve it. The question we must answer is whether or not, assuming that Marcos is permitted to
leave Hawaii (which may depend on the action we take today), the respondents have acted with
grave abuse of discretion in barring him from his own country.
My reluctant conclusion is that they have, absent the proof they said they were prepared to offer, but
could not, that the petitioner's return would prejudice the security of the State.
I was the one who, in the open hearing held on June 27,1989, asked the Solicitor General if the
government was prepared to prove the justification for opposing the herein petition, i.e. that it had
not acted arbitrarily. He said it was. Accordingly, the Court, appreciating the classified nature of the
information expected, scheduled a closed-door hearing on July 25,1988. The Solicitor General and
three representatives from the military appeared for the respondents, together with former Senator
Arturo M. Tolentino, representing the petitioners.
In about two hours of briefing, the government failed dismally to show that the return of Marcos dead
or alive would pose a threat to the national security as it had alleged. The fears expressed by its
representatives were based on mere conjectures of political and economic destabilization without
any single piece of concrete evidence to back up their apprehensions.
Amazingly, however, the majority has come to the conclusion that there exist "factual bases for the
President's decision" to bar Marcos's return. That is not my recollection of the impressions of the
Court after that hearing.
In holding that the President of the Philippines has residual powers in addition to the specific powers
granted by the Constitution, the Court is taking a great leap backward and reinstating the discredited
doctrine announced in Planas v. Gil (67 Phil. 62). This does not square with the announced policy of
the Constitutional Commission, which was precisely to limit rather than expand presidential powers,
as a reaction to the excesses of the past dictatorship.
I can only repeat Justice Black's wry observation in the Steel Seizure Case (343 U.S. 579) that if it
was true that the President had been granted the totality of executive power, "it is difficult to see why
our forefathers bothered to add several specific items, including some trifling ones, . . . I cannot
accept the view that this clause is a grant in bulk of all conceivable executive power but regard it as
an allocation to the presidential office of the generic powers thereafter stated."
I have no illusion that the stand I am taking will be met with paeans of praise, considering that
Marcos is perhaps the most detested man in the entire history of our country. But we are not
concerned here with popularity and personalities. As a judge, I am not swayed by what Justice
Cardozo called the "hooting throng" that may make us see things through the prisms of prejudice. I
bear in mind that when I sit in judgment as a member of this Court, I must cast all personal feelings
aside.

The issue before us must be resolved with total objectivity, on the basis only of the established facts
and the applicable law and not of wounds that still fester and scars that have not healed. And not
even of fear, for fear is a phantom. That phantom did not rise when the people stood fast at EDSA
against the threat of total massacre in defense at last of their freedom.
I cannot turn back on the lessons of liberty that I taught for more than three decades as a professor
of Constitutional Law. These principles have not changed simply because I am now on the Court or
a new administration is in power and the shoe is on the other foot.
Like the martyred Ninoy Aquino who also wanted to come back to the Philippines against the
prohibitions of the government then, Marcos is entitled to the same right to travel and the liberty of
abode that his adversary invoked. These rights are guaranteed by the Constitution to all individuals,
including the patriot and the homesick and the prodigal son returning, and tyrants and charlatans
and scoundrels of every stripe.
I vote to grant the petition.
PARAS, J., dissenting:
I dissent. Already, some people refer to us as a nation without discipline. Are we ready to be also
called a society without compassion?
The issue as to whether or not former President Ferdinand E. Marcos should be allowed to return to
the Philippines may be resolved by answering two simple questions: Does he have the right to return
to his own country and should national safety and security deny him this right?
There is no dispute that the former President is still a Filipino citizen and both under the Universal
Declaration of Human Rights and the 1987 Constitution of the Philippines, he has the right to return
to his own country exceptonly if prevented by the demands of national safety and national security.
Our Armed Forces have failed to prove this danger. They are bereft of hard evidence, and all they
can rely on is sheer speculation. True, there is some danger but there is no showing as to the extent.
It is incredible that one man alone together with his family, who had been ousted from this country by
popular will, can arouse an entire country to rise in morbid sympathy for the cause he once
espoused.
It is therefore clear to me, all other opinions to the contrary notwithstanding, that the former
President should be allowed to return to our country under the conditions that he and the members
of his family be under house arrest in his hometown in Ilocos Norte, and should President Marcos or
any member of his family die, the body should not be taken out of the municipality of confinement
and should be buried within ten (10) days from date.
If we do this, our country shall have maintained its regard for fundamental human rights, for national
discipline, and for human compassion.

PADILLA, J., dissenting:

I dissent. As I see it, the core issue in this case is, which right will prevail in the conflict between the
right of a Filipino, Ferdinand E. Marcos, to return to the Philippines, and the right of the Philippine
Government to bar such return in the interest of national security and public safety. In this context,
the issue is clearly justiciable involving, as it does, colliding assertions of individual right and
governmental power. Issues of this nature more than explain why the 1986 Constitutional
Commission, led by the illustrious former Chief Justice Roberto Concepcion, incorporated in the
1987 Constitution, the new provision on the power of Judicial Review, viz:
Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the Government.
Article VIII, Section 1, par. 2; (Emphasis supplied)
Mr. Marcos invokes in his favor the specific and precise constitutional right of every Filipino to travel
which, in the language of the Constitution, shall not be impaired "except in the interest of national
security, public safety, or public health, as may be provided by law" (Art. III, Sec. 6). That the right to
travel comprises the right to travel within the country, to travel out of the country and to return to the
country (Philippines), is hardly disputable. Short of all such components, the right to travel is
meaningless. The real question arises in the interpretation of the qualifications attached by the
Constitution to such right to travel.
Petitioners contend that, in the absence of restricting legislation, the right to travel is absolute. I do
not agree. It is my view that, with or without restricting legislation, the interest of national security,
public safety or public health can justify and even require restrictions on the right to travel, and that
the clause "as may be provided by law" contained in Article III, Section 6 of the 1987 Constitution
merely declares a constitutional leave or permission for Congress to enact laws that may restrict the
right to travel in the interest of national security, public safety or public health. I do not, therefore,
accept the petitioners' submission that, in the absence of enabling legislation, the Philippine
Government is powerless to restrict travel even when such restriction is demanded by national
security, public safety or public health, The power of the State, in particular cases, to restrict travel of
its citizens finds abundant support in the police power of the state wich may be exercised to
preserve and maintain government as well as promote the general welfare of the greatest number of
people.
And yet, the power of the State, acting through a government in authority at any given time, to
restrict travel, even if founded on police power, cannot be absolute and unlimited under all
circumstances, much less, can it be arbitrary and irrational.
Mr. Marcos, I repeat, comes before the Court as a Filipino, invoking a specific constitutional
right, i.e., the right to return to the country. 1 Have the respondents presented sufficient evidence to
offset or override the exercise of this right invoked by Mr. Marcos? Stated differently, have the
respondents shown to the Court sufficient factual bases and data which would justify their reliance on
national security and public safety in negating the right to return invoked by Mr. Marcos?
I have given these questions a searching examination. I have carefully weighed and assessed the
"briefing" given the Court by the highest military authorities of the land last 28 July 1989. 1 have
searched, but in vain, for convincing evidence that would defeat and overcome the right of Mr.
Marcos as a Filipino to return to this country. It appears to me that the apprehensions entertained
and expressed by the respondents, including those conveyed through the military, do not, with all
due respect, escalate to proportions of national security or public safety. They appear to be more
speculative than real, obsessive rather than factual. Moreover, such apprehensions even if

translated into realities, would be "under control," as admitted to the Court by said military
authorities, given the resources and facilities at the command of government. But, above all, the
Filipino people themselves, in my opinion, will know how to handle any situation brought about by a
political recognition of Mr. Marcos' right to return, and his actual return, to this country. The Court, in
short, should not accept respondents' general apprehensions, concerns and perceptions at face
value, in the light of a countervailing and even irresistible, specific, clear, demandable, and
enforceable right asserted by a Filipino.
Deteriorating political, social, economic or exceptional conditions, if any, are not to be used as a
pretext to justify derogation of human rights. 2
As a member of the United Nations, the Philippines has obligations under its charter. By adopting the
generally accepted principles of international law as part of the law of the land, (Art. II, Sec. 2 of the
Constitution), the Philippine government cannot just pay lip service to Art. 13, par. 2 of the Universal
Declaration of Human Rights which provides that everyone has the right to leave any country,
including his own, and to return to his country. This guarantee is reiterated in Art. XII, par. 2 of the
International Covenant on Civil and Political Rights which states that "no one shall be arbitrarily
deprived of the right to enter his own country." (Emphasis supplied) "Arbitrary" or "arbitrarily" was
specifically chosen by the drafters of the Covenant 3 hoping to protect an individual against
unexpected, irresponsible or excessive encroachment on his rights by the state based on national
traditions or a particular sense of justice which falls short of international law or standards. 4
The Solicitor General maintains that because the respondents, as alter egos of the President, have
raised the argument of "national security" and "public safety," it is the duty of this Court to
unquestioningly yield thereto, thus casting the controversy to the realm of a political question. I do
not agree. I believe that it is one case where the human and constitutional light invoked by one party
is so specific, substantial and clear that it cannot be overshadowed, much less, nullified by simplistic
generalities; worse, the Court neglects its duty under the Constitution when it allows the theory of
political question to serve as a convenient, and yet, lame excuse for evading what, to me, is its
clearly pressing and demandable duty to the Constitution.
During the oral arguments in this case, I asked the Solicitor General how one could validly
defend the right of former Senator Benigno S. Aquino, Jr., a Filipino, to return to the Philippines in
1983 and, at the same time,credibly deny the right of Mr. Marcos, also a Filipino, to return to the
Philippines in 1989. I still have not found a satisfactory answer to that question. Instead, it has
become clearer by the day that the drama today is the same drama in 1983 with the only difference
that the actors are in opposite roles, which really makes one hope, in the national interest, that the
mistake in 1983 should not be made to persist in 1989.
To one who owes Mr. Marcos, his wife and followers absolutely nothing, personal, political or
otherwise, the following are the cogent and decisive propositions in this case
1. Mr. Marcos is a Filipino and, as such, entitled to return to die and be buried in this
country;
2. respondents have not shown any "hard evidence" or convincing proof why his
right as a Filipino to return should be denied him. All we have are general
conclusions of "national security" and "public safety" in avoidance of a specific
demandable and enforceable constitutional and basic human right to return;
3. the issue of Marcos' return to the Philippines, perhaps more than any issue today,
requires of all members of the Court, in what appears to be an extended political

contest, the "cold neutrality of an impartial judge." It is only thus that we fortify the
independence of this Court, with fidelity, not to any person, party or group but to the
Constitution and only to the Constitution.
ACCORDINGLY, I vote to GRANT the petition.
SARMIENTO, J., dissenting:
I vote to grant the petition.
The only issue that saddles the Court is simply: "whether or not, in the exercise of the powers
granted by the Constitution, the President may prohibit the Marcoses from returning to the
Philippines." 1 I therefore take exception to allusions 2 anent "the capacity of the Marcoses to stir trouble
even from afar." 3 I have legitimate reason to fear that my brethren, in passing judgment on the Marcoses
(insofar as their "capacity to stir trouble" is concerned), have overstepped the bounds of judicial restraint,
or even worse, convicted them without trial.
I also find quite strained what the majority would have as the "real issues" facing the Court: "The
right to return to one's country," pitted against "the right of travel and freedom of abode", and their
supposed distinctions under international law, as if such distinctions, under international law in truth
and in fact exist. There is only one right involved here, whether under municipal or international law:
the light of travel, whether within one's own country, or to another, and the right to return thereto. The
Constitution itself makes no distinctions; let then, no one make a distinction. Ubi lex non distinguish
nec nos distinguere debemus.
As the majority would indeed have it, the issue is one of power: Does the Executive have the power
to deny a citizen his right to travel (back to the country or to another)? It is a question that, in
essence, involves the application, and no more, of the provisions of the 1987 Constitution:
Sec. 6. The liberty of abode and of changing the same within the limits prescribed by
law shall not be impaired except upon lawful order of the court. Neither shall the right
to travel be impaired except in the interest of national security, public safety, or public
health, as may be provided by law. 4
The majority says, with ample help from American precedents, that the President is possessed of the
power, thus:
On these premises, we hold the view that although the 1987 Constitution imposes
limitations on the exercise of specific powers of the President, it maintains intact what
is traditionally considered as within the scope of "executive power." Corollarily, the
powers of the President cannot be said to be limited only to the specific powers
enumerated in the Constitution. In other words, executive power is more than the
sum of specific powers so enumerated. 5
So also:
Faced with the problem of whether or not the time is right to allow the Marcoses to
return to the Philippines, the President is, under the Constitution, constrained to
consider these basic principles in arriving at a decision. More than that, having sworn
to defend and uphold the Constitution, the President has the obligation under the
Constitution to protect the people, promote their welfare and advance the national

interest. It must be borne in mind that the Constitution, aside from being an allocation
of power is also a social contract whereby the people have surrendered their
sovereign powers to the State for the common good. Hence, lest the officers of the
Government exercising the powers delegated by the people forget and the servants
of the people become rulers, the Constitution reminds everyone that "sovereignty
resides in the people and all government authority emanates from them." [Art. II,
Sec. 1 . ] 6
And finally:
To the President, the problem is one of balancing the general welfare and the
common good against the exercise of rights of certain individuals. The power
involved is the President's residual power to protect the general welfare of the
people. It is founded on the duty of the President, as steward of the people. To
paraphrase Theodore Roosevelt, it is not only the power of the President but also his
duty to do anything not forbidden by the Constitution or the laws that the needs of the
nation demanded [See Corwin, supra, at 153]. It is a power borne by the President's
duty to preserve and defend the Constitution. It also may be viewed as a power
implicit in the President's duty to take care that the laws are faithfully executed [See
Hyman, The American President, where the author advances the view that an
allowance of discretionary power is unavoidable in any government and is best
lodged in the President]. 7
I am not persuaded.
I
First: While the Chief Executive exercises powers not found expressly in the Charter, but has them
by constitutional implication* the latter must yield to the paramountcy of the Bill of Rights. According
to Fernando: "A regime of constitutionalism is thus unthinkable without an assurance of the primacy
of a big of rights. Precisely a constitution exists to assure that in the discharge of the governmental
functions, the dignity that is the birthright of every human being is duly safeguarded. To be true to its
primordial aim a constitution must lay down the boundaries beyond which he's forbidden territory for
state action" 8
My brethren have not demonstrated, to my satisfaction, how the President may override the direct
mandate of the fundamental law. It will not suffice, so I submit, to say that the President's plenitude
of powers, as provided in the Constitution, or by sheer constitutional implication, prevail over express
constitutional commands. "Clearly," so I borrow J.B.L. Reyes, in his own right, a titan in the field of
public law, "this argument ... rests ... not upon the text of the (Constitution] ... but upon a mere
inference therefrom." 9 For if it were, indeed, the intent of the Charter to create an exception, that is, by
Presidential action, to the right of travel or liberty of abode and of changing the same other than what it
explicitly says already ("limits prescribed by law" 10 or "upon lawful order of the court" 11 the Charter could
have specifically declared so. As it is, the lone deterrents to the right in question are: (1) decree of statute,
or (2) lawful judicial mandate. Had the Constitution intended a third exception, that is, by Presidential
initiative, it could have so averred. It would also have made the Constitution, as far as limits to the said
right are concerned, come full circle: Limits by legislative, judicial, and executive processes.
Obviously, none of the twin legal bars exist. There is no law banning the Marcoses from the country;
neither is there any court decree banishing him from Philippine territory.
It is to be noted that under the 1973 Constitution, the right to travel is worded as follows:

Sec. 5. The liberty of abode and of travel shall not be impaired except upon lawful
order of the court, or when necessary in the interest of national security, public safety,
or public health. 12
Under this provision, the right may be abated: (1) upon a lawful court order, or (2) "when necessary
in the interest of national security, public safety, or public health. 13 Arguably, the provision enabled the
Chief Executive (Marcos) to moderate movement of citizens, which, Bernas says, justified such practices
as "hamletting", forced relocations, or the establishment of free-fire zones. 14
The new Constitution, however, so it clearly appears, has divested the Executive's implied power.
And, as it so appears, the right may be impaired only "within the limits provided by law . 15 The
President is out of the picture.
Admittedly, the Chief Executive is the "sole" judge of all matters affecting national security 16 and
foreign affairs; 17the Bill of Rights precisely, a form of check against excesses of officialdom is, in this
case, a formidable barrier against Presidential action. (Even on matters of State security, this Constitution
prescribes limits to Executive's powers as Commander-in-Chief.)
Second: Assuming, ex hypothesis that the President may legally act, the question that emerges is:
Has it been proved that Marcos, or his return, will, in fact, interpose a threat to the national security ,
public safety, or public health?" What appears in the records are vehement insistences that Marcos
does pose a threat to the national good and yet, at the same time, we have persistent claims, made
by the military top brass during the lengthy closed-door hearing on July 25, 1989, that "this
Government will not fall" should the former first family in exile step on Philippine soil. which is which?
At any rate, it is my opinion that we can not leave that determination solely to the Chief Executive.
The Court itself must be content that the threat is not only clear, but more so, present. 18
That the President "has the obligation under the Constitution to protect the people ... " 19 is an
obligation open to no doubt. But the question, and so I ask again and again, is: From whom? If we say
"from Marcos," we unravel chinks in our political armor. It also flies in the face of claims, so confidently
asserted, that "this Government will not fall" even if we allowed Marcos to return.
It flies, finally, in the face of the fact that a good number of the henchmen trusted allies,
implementors of martial law, and pathetic parasites of the ex-first couple are, in fact, in the
Government, in the comfort of its offices, and or at the helm of its key agencies. Let us not, therefore,
joke ourselves of moral factors warranting the continued banishment of Marcos. Morality is the last
refuge of the self-righteous.
Third: The problem is not of balancing the general welfare against the exercise of individual
liberties. 20 As I indicated, not one shred of evidence, let alone solid evidence, other than surmises of
possibilities, has been shown to justify the 'balancing act" referred to. Worse, these conjectures contradict
contentions that as far as Philippine society is concerned, Marcos is "history".
The power of the President, so my brethren declaim, "calls for the exercise of the President's power
as protector of peace. 21
This is the self-same falsehood Marcos foisted on the Filipino people to justify the authoritarian rule.
It also means that we are no better than he has.
That "[t]he power of the President to keep the peace is not limited merely to exercising the
commander-in-chief powers in times of emergency or to leading the State against external and

internal threats to its existence" 22 is a bigger fantasy: It not only summons the martial law decisions of
pre-"EDSA" (especially with respect to the detestable Amendment No. 6), it is inconsistent with the
express provisions of the commander-in-chief clause of the 1987 Charter, a Charter that has perceptibly
reduced the Executive's powers vis-a-vis its 1973 counterpart. 23
II.
The undersigned would be lacking in candor to conceal his dislike, to say the least, for Marcos.
Because of Marcos, the writer of it's dissent lost a son His son's only "offense" was that he openly
and unabatedly criticized the dictator, his associates, and his military machinery. He would pay
dearly for it; he was arrested and detained, without judicial warrant or decision, for seven months
and seven days. He was held incommunicado a greater part of the time, in the military stockade of
Camp Crame. In his last week in detention, he was, grudgingly, hospitalized (prison hospital) and
confined for chronic asthma. The deplorable conditions of his imprisonment exacerbated his delicate
health beyond cure. He died, on November 11, 1977, a martyr on the altar of the martial law
apparatus.
The undersigned also counts himself as one of the victims of Marcos' ruthless apparatchiki. On
August 14, 1979, he was, along with former President Diosdado Macapagal, and Congressmen
Rogaciano Mercado and Manuel Concordia, charged, "ASSOed"and placed under house arrest, for
"inciting to sedition" and "rumor mongering " 24in the midst of the distribution of Ang Demokrasya Sa
Pilipinas (Democracy In the Philippines), a book extremely critical of martial rule, published by him and
former Congressman Concordia, authored by President Macapagal and translated into Tagalog by
Congressman Rogaciano Mercado. In addition, they were also all accused of libel in more than two
dozens of criminal complaints filed by the several military officers named in the "condemned" book as
having violated the human rights of dissenters, and for other crimes, in the office of the Provincial Fiscal
of Rizal. It had to take the events at "EDSA" to set them free from house arrest and these political
offenses. I am for Marcos' return not because I have a score to settle with him. Ditto's death or my arrest
are scores that can not be settled.
I feel the ex-President's death abroad (presented in the dailies as 'imminent") would leave him
'unpunished for his crimes to country and countrymen. If punishment is due, let this leadership inflict
it. But let him stand trial and accord him due process.
Modesty aside, I have staunchly and consistently advocated the human right of travel and movement
and the liberty of abode. 25 We would have betrayed our own Ideals if we denied Marcos his rights.
It is his constitutional right, a right that can not be abridged by personal hatred, fear, founded or
unfounded, and by speculations of the "man's "capacity" "to stir trouble" Now that the shoe is on the
other foot, let no more of human rights violations be repeated against any one, friend or foe. In a
democratic framework, there is no this as getting even.
The majority started this inquiry on the question of power. I hold that the President, under the
present Constitution and existing laws, does not have it. Mandamus, I submit, lies.
Narvasa, Melencio-Herrera, Gancayco, Grio- Aquino, Medialdea and Regalado, JJ., concur.
Feliciano, J., is on leave.

Separate Opinions
FERNAN, C.J., concurring:
"The threats to national security and public order are real the mounting Communist insurgency, a
simmering separatist movement, a restive studentry, widespread labor disputes, militant farmer
groups. . . . Each of these threats is an explosive ingredient in a steaming cauldron which could blow
up if not handled properly." 1
These are not my words. They belong to my distinguished colleague in the Court, Mr. Justice Hugo
E. Gutierrez, Jr. But they express eloquently the basis of my full concurrence to the exhaustive and
well-written ponencia of Mme. Justice Irene R. Cortes.
Presidential powers and prerogatives are not fixed but fluctuate. They are not derived solely from a
particular constitutional clause or article or from an express statutory grant. Their limits are likely to
depend on the imperatives of events and contemporary imponderables rather than on abstract
theories of law. History and time-honored principles of constitutional law have conceded to the
Executive Branch certain powers in times of crisis or grave and imperative national emergency.
Many terms are applied to these powers: "residual," "inherent," 44 moral," "implied," "aggregate,"
'emergency." whatever they may be called, the fact is that these powers exist, as they must if the
governance function of the Executive Branch is to be carried out effectively and efficiently. It is in this
context that the power of the President to allow or disallow the Marcoses to return to the Philippines
should be viewed. By reason of its impact on national peace and order in these admittedly critical
times, said question cannot be withdrawn from the competence of the Executive Branch to decide.
And indeed, the return of the deposed President, his wife and children cannot but pose a clear and
present danger to public order and safety. One needs only to recall the series of destabilizing actions
attempted by the so-called Marcos loyalists as well as the ultra-rightist groups during the EDSA
Revolution's aftermath to realize this. The most publicized of these offensives is the Manila Hotel
incident which occurred barely five (5) months after the People's Power Revolution. Around 10,000
Marcos supporters, backed by 300 loyalist soldiers led by Brigadier General Jose Zumel and Lt. Col.
Reynaldo Cabauatan converged at the Manila Hotel to witness the oath-taking of Arturo Tolentino as
acting president of the Philippines. The public disorder and peril to life and limb of the citizens
engendered by this event subsided only upon the eventual surrender of the loyalist soldiers to the
authorities.
Then followed the Channel 7, Sangley, Villamor, Horseshoe Drive and Camp Aguinaldo incidents.
Military rebels waged simultaneous offensives in different parts of Metro Manila and Sangley Point in
Cavite. A hundred rebel soldiers took over Channel 7 and its radio station DZBB. About 74 soldier
rebels attacked Villamor Air Base, while another group struck at Sangley Point in Cavite and held the
15th Air Force Strike wing commander and his deputy hostage. Troops on board several vehicles
attempted to enter Gate I of Camp Aguinaldo even as another batch of 200 soldiers encamped at
Horseshoe Village.
Another destabilization plot was carried out in April, 1987 by enlisted personnel who forced their way
through Gate 1 of Fort Bonifacio. They stormed into the army stockade but having failed to convince
their incarcerated members to unite in their cause, had to give up nine (9) hours later.
And who can forget the August 28, 1987 coup attempt which almost toppled the Aquino
Government? Launched not by Marcos loyalists, but by another ultra-rightist group in the military led
by Col. Gregorio "Gringo" Honasan who remains at large to date, this most serious attempt to wrest
control of the government resulted in the death of many civilians.

Members of the so-called Black Forest Commando were able to cart away high-powered firearms
and ammunition from the Camp Crame Armory during a raid conducted in June 1988. Most of the
group members were, however, captured in Antipolo, Rizal. The same group was involved in an
unsuccessful plot known as Oplan Balik Saya which sought the return of Marcos to the country.
A more recent threat to public order, peace and safety was the attempt of a group named CEDECOR
to mobilize civilians from nearby provinces to act as blockading forces at different Metro Manila
areas for the projected link-up of Marcos military loyalist troops with the group of Honasan. The
pseudo "people power" movement was neutralized thru checkpoints set up by the authorities along
major road arteries where the members were arrested or forced to turn back.
While not all of these disruptive incidents may be traced directly to the Marcoses, their occurrence
militates heavily against the wisdom of allowing the Marcoses' return. Not only will the Marcoses'
presence embolden their followers toward similar actions, but any such action would be seized upon
as an opportunity by other enemies of the State, such as the Communist Party of the Philippines and
the NPA'S, the Muslim secessionists and extreme rightists of the RAM, to wage an offensive against
the government. Certainly, the state through its executive branch has the power, nay, the
responsibility and obligation, to prevent a grave and serious threat to its safety from arising.
Apparently lost amidst the debate on whether or not to allow the Marcoses to return to the
Philippines is one factor, which albeit, at first blush appears to be extra legal, constitutes a valid
justification for disallowing the requested return. I refer to the public pulse. It must be remembered
that the ouster of the Marcoses from the Philippines came about as an unexpected, but certainly
welcomed, result of the unprecedented peoples power" revolution. Millions of our people braved
military tanks and firepower, kept vigil, prayed, and in countless manner and ways contributed time,
effort and money to put an end to an evidently untenable claim to power of a dictator. The removal of
the Marcoses from the Philippines was a moral victory for the Filipino people; and the installation of
the present administration, a realization of and obedience to the people's Will.
Failing in legal arguments for the allowance of the Marcoses' return, appeal is being made to
sympathy, compassion and even Filipino tradition. The political and economic gains we have
achieved during the past three years are however too valuable and precious to gamble away on
purely compassionate considerations. Neither could public peace, order and safety be sacrificed for
an individual's wish to die in his own country. Verily in the balancing of interests, the scales tilt in
favor of presidential prerogative, which we do not find to have been gravely abused or arbitrarily
exercised, to ban the Marcoses from returning to the Philippines.
GUTIERREZ, JR., J., dissenting
"The Constitution ... is a law for rulers and people, equally in war and in peace, and covers with the
shield of its protection all classes of men, at all times, and under all circumstances. No doctrine
involving more pernicious consequences was ever invented by the wit of man than that any of its
provisions can be suspended during any of the great exigencies of government." (Ex Parte Milligan,
4 Wall. 2; 18 L. Ed. 281 [1866])
Since our days as law students, we have proclaimed the stirring words of Ex Parte Milligan as selfevident truth. But faced with a hard and delicate case, we now hesitate to qive substance to their
meaning. The Court has permitted a basic freedom enshrined in the Bill of Rights to be taken away
by Government.

There is only one Bill of Rights with the same interpretation of liberty and the same guarantee of
freedom for both unloved and despised persons on one hand and the rest who are not so
stigmatized on the other.
I am, therefore, disturbed by the majority ruling which declares that it should not be a precedent. We
are interpreting the Constitution for only one person and constituting him into a class by himself. The
Constitution is a law for all classes of men at all times. To have a person as one class by himself
smacks of unequal protection of the laws.
With all due respect for the majority in the Court, I believe that the issue before us is one of rights
and not of power. Mr. Marcos is insensate and would not live if separated from the machines which
have taken over the functions of his kidneys and other organs. To treat him at this point as one with
full panoply of power against whom the forces of Government should be marshalled is totally
unrealistic. The Government has the power to arrest and punish him. But does it have the power to
deny him his right to come home and die among familiar surroundings?
Hence, this dissent.
The Bill of Rights provides:
Sec. 6. The liberty of abode and of changing the same within the limits prescribed by
law shall not be impaired except upon lawful order of the court. Neither shall the right
to travel be impaired except in the interest of national security, public safety, or public
health, as may be provided by law. (Emphasis supplied, Section 6, Art. 111,
Constitution)
To have the petition dismissed, the Solicitor General repeats a ritual invocation of national security
and public safety which is hauntingly familiar because it was pleaded so often by petitioner
Ferdinand E. Marcos to justify his acts under martial law. There is, however, no showing of the
existence of a law prescribing the limits of the power to impair and the occasions for its exercise.
And except for citing breaches of law and order, the more serious of which were totally unrelated to
Mr. Marcos and which the military was able to readily quell, the respondents have not pointed to any
grave exigency which permits the use of untrammeled Governmental power in this case and the
indefinite suspension of the constitutional right to travel.
The respondents' basic argument is that the issue before us is a political question beyond our
jurisdiction to consider. They contend that the decision to ban former President Marcos, and his
family on grounds of national security and public safety is vested by the Constitution in the President
alone. The determination should not be questioned before this Court. The President's finding of
danger to the nation should be conclusive on the Court.
What is a political question?
In Vera v. Avelino (77 Phil. 192, 223 [1946], the Court stated:
xxxxxxxxx
It is a well-settled doctrine that political questions are not within the province of the
judiciary, except to the extent that power to deal with such questions has been
conferred on the courts by express constitutional or statutory provisions. It is not so
easy, however, to define the phrase political question, nor to determine what matters

fall within its scope. It is frequently used to designate all questions that he outside the
scope of the judicial power. More properly, however, it means those questions which,
under the constitution, are to be decided by the people in their sovereign capacity, or
in regard to which full discretionary authority has been delegated to the legislative or
executive branch of the government.
We defined a political question in Taniada v. Cuenco (103 Phil. 1051, 1066 [1957]), as follows:
In short, the term 'Political question' connotes, in legal parlance, what it means in
ordinary parlance, namely, a question of policy. In other words, in the language of
Corpus Juris Secundum (supra), it refers to 'those questions which, under the
Constitution, are to be decided by the people in their sovereign capacity, or in regard
to which full discretionary authority has been delegated to the Legislature or
executive branch of the Government. It is concerned with issues dependent upon the
wisdom, not legality, of a particular measure.
The most often quoted definition of political question was made by Justice Wilham J. Brennan Jr.,
who penned the decision of the United States Supreme Court in Baker v. Carr (369 US 186,82, S.
Ct. 691, L. Ed. 2d. 663 [1962]). The ingredients of a political question as formulated in Baker v.
Carr are:
It is apparent that several formulations which vary slightly according to the settings in
which the questions arise may describe a political question, which Identifies it as
essentially a function of the separation of powers. Prominent on the surface of any
case held to involve a political question is found a textually demonstrable
constitutional commitment of the issue to a coordinate political department; or a lack
of judicially discoverable and manageable standards for resolving it; or the
impossibility of deciding without an initial policy determination of a kind clearly for
non-judicial discretion; or the impossibility of a court's undertaking independent
resolution without expressing lack of the respect due coordinate branches of
government; or an unusual need for unquestioning adherence to a political decision
already made; or potentiality of embarrassment from multifarious pronouncements by
various departments on one question.
For a political question to exist, there must be in the Constitution a power vested exclusively in the
President or Congress, the exercise of which the court should not examine or prohibit. A claim of
plenary or inherent power against a civil right which claim is not found in a specific provision is
dangerous. Neither should we validate a roving commission allowing public officials to strike where
they please and to override everything which to them represents evil. The entire Govern ment is
bound by the rule of law.
The respondents have not pointed to any provision of the Constitution which commits or vests the
determination of the question raised to us solely in the President.
The authority implied in Section 6 of the Bill of Rights itself does not exist because no law has been
enacted specifying the circumstances when the right may be impaired in the interest of national
security or public safety. The power is in Congress, not the Executive.
The closest resort to a textile demonstrable constitutional commitment of power may be found in the
commander-in-chief clause which allows the President to call out the armed forces in case of lawless
violence, invasion or rebellion and to suspend the privilege of the writ of habeas corpus or proclaim
martial law in the event of invasion or rebellion, when the public safety requires it.

There is, however, no showing, not even a claim that the followers of former President Marcos are
engaging in rebellion or that he is in a position to lead them. Neither is it claimed that there is a need
to suspend the privilege of the writ of habeas corpus or proclaim martial law because of the arrival of
Mr. Marcos and his family. To be sure, there may be disturbances but not of a magnitude as would
compel this Court to resort to a doctrine of non- justiceability and to ignore a plea for the
enforcement of an express Bill of Rights guarantee.
The respondents themselves are hard-pressed to state who or what constitutes a Marcos "loyalist."
The constant insinuations that the "loyalist" group is heavily funded by Mr. Marcos and his cronies
and that the "loyalists" engaging in rallies and demonstrations have to be paid individual allowances
to do so constitute the strongest indication that the hard core "loyalists" who would follow Marcos
right or wrong are so few in number that they could not possibly destabilize the government, much
less mount a serious attempt to overthrow it.
Not every person who would allow Mr. Marcos to come home can be tagged a "loyalist." It is in the
best of Filipino customs and traditions to allow a dying person to return to his home and breath his
last in his native surroundings. Out of the 103 Congressmen who passed the House resolution
urging permission for his return, there are those who dislike Mr. Marcos intensely or who suffered
under his regime. There are also many Filipinos who believe that in the spirit of national unity and
reconciliation Mr. Marcos and his family should be permitted to return to the Philippines and that
such a return would deprive his fanatic followers of any further reason to engage in rallies and
demonstrations.
The Court, however, should view the return of Mr. Marcos and his family solely in the light of the
constitutional guarantee of liberty of abode and the citizen's right to travel as against the
respondents' contention that national security and public safety would be endangered by a grant of
the petition.
Apart from the absence of any text in the Constitution committing the issue exclusively to the
President, there is likewise no dearth of decisional data, no unmanageable standards which stand in
the way of a judicial determination.
Section 6 of the Bill of Rights states categorically that the liberty of abode and of changing the same
within the limits prescribed by law may be impaired only upon a lawful order of a court. Not by an
executive officer. Not even by the President. Section 6 further provides that the right to travel, and
this obviously includes the right to travelout of or back into the Philippines, cannot be impaired
except in the interest of national security, public safety, or public health, as may be provided by law.
There is no law setting the limits on a citizen's right to move from one part of the country to another
or from the Philippines to a foreign country or from a foreign country to the Philippines. The laws
cited by the Solicitor General immigration, health, quarantine, passports, motor vehicle, destierro
probation, and parole are all inapplicable insofar as the return of Mr. Marcos and family is
concerned. There is absolutely no showing how any of these statutes and regulations could serve as
a basis to bar their coming home.
There is also no disrespect for a Presidential determination if we grant the petition. We would simply
be applying the Constitution, in the preservation and defense of which all of us in Government, the
President and Congress included, are sworn to participate. Significantly, the President herself has
stated that the Court has the last word when it comes to constitutional liberties and that she would
abide by our decision.

As early as 1983, it was noted that this Court has not been very receptive to the invocation of the
political question doctrine by government lawyers. (See Morales, Jr. .v Ponce Enrile, 121 SCRA 538
[1983]).
Many of those now occupying the highest positions in the executive departments, Congress, and the
judiciary criticized this Court for using what they felt was a doctrine of convenience, expediency,
utility or subservience. Every major challenge to the acts of petitioner Ferdinand E. Marcos under his
authoritarian regime the proclamation of martial law, the ratification of a new constitution, the arrest
and detention of "enemies of the State" without charges being filed against them, the dissolution of
Congress and the exercise by the President of legislative powers, the trial of civilians for civil
offenses by military tribunals, the seizure of some of the country's biggest corporations, the taking
over or closure of newspaper offices, radio and television stations and other forms of media, the
proposals to amend the Constitution, etc. was invariably met by an invocation that the petition
involved a political question. It is indeed poetic justice that the political question doctrine so often
invoked by then President Marcos to justify his acts is now being used against him and his family.
Unfortunately, the Court should not and is not allowed to indulge in such a persiflage. We are bound
by the Constitution.
The dim view of the doctrine's use was such that when the present Constitution was drafted, a broad
definition of judicial power was added to the vesting in the Supreme Court and statutory courts of
said power.
The second paragraph of Section 1, Article VIII of the Constitution provides:
Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the Government.
This new provision was enacted to preclude this Court from using the political question doctrine as a
means to avoid having to make decisions simply because they are too controversial, displeasing to
the President or Congress, inordinately unpopular, or which may be ignored and not enforced.
The framers of the Constitution believed that the free use of the political question doctrine allowed
the Court during the Marcos years to fall back on prudence, institutional difficulties, complexity of
issues, momentousness of consequences or a fear that it was extravagantly extending judicial power
in the cases where it refused to examine and strike down an exercise of authoritarian power.
Parenthetically, at least two of the respondents and their counsel were among the most vigorous
critics of Mr. Marcos (the main petitioner) and his use of the political question doctrine. The
Constitution was accordingly amended. We are now precluded by its mandate from refusing to
invalidate a political use of power through a convenient resort to the question doctrine. We are
compelled to decide what would have been non-justiceable under our decisions interpreting earlier
fundamental charters.
This is not to state that there can be no more political questions which we may refuse to
resolve. There are still some political questions which only the President, Congress, or a plebiscite
may decide. Definitely, the issue before us is not one of them.
The Constitution requires the Court "to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction."
How do we determine a grave abuse of discretion?

The tested procedure is to require the parties to present evidence. Unfortunately, considerations of
national security do not readily lend themselves to the presentation of proof before a court of justice.
The vital information essential to an objective determination is usually highly classified and it cannot
be rebutted by those who seek to overthrow the government. As early as Barcelon v. Baker (5 Phil.
87, 93 [19051), the Court was faced with a similar situation. It posed a rhetorical question. If after
investigating conditions in the Archipelago or any part thereof, the President finds that public safety
requires the suspension of the privilege of the writ of habeas corpus, can the judicial department
investigate the same facts and declare that no such conditions exist?
In the effort to follow the "grave abuse of discretion" formula in the second paragraph of Section 1,
Article VIII of the Constitution, the court granted the Solicitor General's offer that the military give us
a closed door factual briefing with a lawyer for the petitioners and a lawyer for the respondents
present.
The results of the briefing call to mind the concurrence of Justice Vicente Abad Santos in Morales,
Jr. v. Enrile, (121 SCRA 538, 592 [19831):
How can this Court determine the factual basis in order that it can ascertain whether
or not the president acted arbitrarily in suspending the writ when, in the truth words of
Montenegro, with its very limited machinery fit] cannot be in better position [than the
Executive Branch] to ascertain or evaluate the conditions prevailing in the
Archipelago? (At p. 887). The answer is obvious. It must rely on the Executive
Branch which has the appropriate civil and military machinery for the facts. This was
the method which had to be used in Lansang. This Court relied heavily on classified
information supplied by the military. Accordingly, an incongruous situation obtained.
For this Court, relied on the very branch of the government whose act was in
question to obtain the facts. And as should be expected the Executive Branch
supplied information to support its position and this Court was in no situation to
disprove them. It was a case of the defendant judging the suit. After all is said and
done, the attempt by its Court to determine whether or not the President acted
arbitrarily in suspending the writ was a useless and futile exercise.
There is still another reason why this Court should maintain a detached attitude and
refrain from giving the seal of approval to the act of the Executive Branch. For it is
possible that the suspension of the writ lacks popular support because of one reason
or another. But when this Court declares that the suspension is not arbitrary
(because it cannot do otherwise upon the facts given to it by the Executive Branch) it
in effect participates in the decision-making process. It assumes a task which it is not
equipped to handle; it lends its prestige and credibility to an unpopular act.
The other method is to avail of judicial notice. In this particular case, judicial notice would be the only
basis for determining the clear and present danger to national security and public safety. The
majority of the Court has taken judicial notice of the Communist rebellion, the separatist movement,
the rightist conspiracies, and urban terrorism. But is it fair to blame the present day Marcos for these
incidents? All these problems are totally unrelated to the Marcos of today and, in fact, are led by
people who have always opposed him. If we use the problems of Government as excuses for
denying a person's right to come home, we will never run out of justifying reasons. These problems
or others like them will always be with us.
Significantly, we do not have to look into the factual bases of the ban Marcos policy in order to
ascertain whether or not the respondents acted with grave abuse of discretion. Nor are we forced to

fall back upon judicial notice of the implications of a Marcos return to his home to buttress a
conclusion.
In the first place, there has never been a pronouncement by the President that a clear and present
danger to national security and public safety will arise if Mr. Marcos and his family are allowed to
return to the Philippines. It was only after the present petition was filed that the alleged danger to
national security and public safety conveniently surfaced in the respondents' pleadings. Secondly,
President Aquino herself limits the reason for the ban Marcos policy to-41) national welfare and
interest and (2) the continuing need to preserve the gains achieved in terms of recovery and stability.
(See page 7, respondents' Comment at page 73 of Rollo). Neither ground satisfies the criteria of
national security and public safety. The President has been quoted as stating that the vast majority
of Filipinos support her position. (The Journal, front page, January 24,1989) We cannot validate their
stance simply because it is a popular one. Supreme Court decisions do not have to be popular as
long as they follow the Constitution and the law. The President's original position "that it is not in the
interest of the nation that Marcos be allowed to return at this time" has not changed. (Manila Times,
front page, February 7, 1989). On February 11, 1989, the President is reported to have stated that
"considerations of the highest national good dictate that we preserve the substantial economic and
political gains of the past three years" in justifying her firm refusal to allow the return of Mr. Marcos
despite his failing health. (Daily Globe, front page, February 15, 1989). "Interest of the nation
national good," and "preserving economic and political gains," cannot be equated with national
security or public order. They are too generic and sweeping to serve as grounds for the denial of a
constitutional right. The Bill of Rights commands that the right to travel may not be impaired except
on the stated grounds of national security, public safety, or public health and with the added
requirement that such impairment must be "as provided by law." The constitutional command cannot
be negated by mere generalizations.
There is an actual rebellion not by Marcos followers but by the New Peoples' Army. Feeding as it
does on injustice, ignorance, poverty, and other aspects at under-development, the Communist
rebellion is the clearest and most present danger to national security and constitutional freedoms.
Nobody has suggested that one way to quell it would be to catch and exile its leaders, Mr. Marcos
himself was forced to flee the country because of "peoples' power." Yet, there is no move to arrest
and exile the leaders of student groups, teachers' organizations, pea ant and labor federations,
transport workers, and government unions whose threatened mass actions would definitely
endanger national security and the stability of government. We fail to see how Mr. Marcos could be a
greater danger.
The fear that Communist rebels, Bangsa Moro secessionists, the Honasan ex-soldiers, the hard core
loyalists, and other dissatisfied elements would suddenly unite to overthrow the Republic should a
dying Marcos come home is too speculative and unsubstantial a ground for denying a constitutional
right. It is not shown how extremists from the right and the left who loathe each other could find a
rallying point in the coming of Mr. Marcos.
The "confluence theory" of the Solicitor General or what the majority calls "catalytic effect," which
alone sustains the claim of danger to national security is fraught with perilous implications. Any
difficult problem or any troublesome person can be substituted for the Marcos threat as the
catalysing factor. The alleged confluence of NPAS, secessionists, radical elements, renegade
soldiers, etc., would still be present. Challenged by any critic or any serious problem, the
Government can state that the situation threatens a confluence of rebel forces and proceed to ride
roughshod over civil liberties in the name of national security. Today, a passport is denied. Tomorrow,
a newspaper may be closed. Public assemblies may be prohibited. Human rights may be violated.
Yesterday, the right to travel of Senators Benigno Aquino, Jr. and Jovito Salonga was curtailed.
Today, it is the right of Mr. Marcos and family. Who will be tomorrow's pariahs I deeply regret that the

Court's decision to use the political question doctrine in a situation where it does not apply raises all
kinds of disturbing possibilities.
I must emphasize that General Renato de Villa, the Chief of Staff of the Armed Forces, has
personally assured the Court that a rebellion of the above combined groups will not succeed and
that the military is on top of the situation. Where then is the clear danger to national security? The
Court has taken judicial notice of something which even the military denies. There would be severe
strains on military capabilities according to General de Villa. There would be set-backs in the
expected eradication of the Communist threat. There would be other serious problems but all can be
successfully contained by the military. I must stress that no reference was made to a clear and
present danger to national security as would allow an overriding of the Bill of Rights.
The Solicitor General's argument that the failure of Congress to enact a statute defining the
parameters of the right to travel and to freely choose one's abode has constrained the President to
fill in the vacuum, is too reminiscent of Amendment No. 6 of the martial law Constitution to warrant
serious consideration. Amendment No. 6 allowed Marcos to issue decrees whenever the Batasang
Pambansa failed or was unable to act adequately on any matter for any reason that in his judgment
required immediate action. When the Bill of Rights provides that a right may not be impaired except
in the interest of national security, public safety, or public health and further requires that a law must
provide when such specifically defined interests are prejudiced or require protection, the inaction of
Congress does not give reason for the respondents to assume the grounds for its impairment.
The fact that the Marcoses have been indicted before American federal courts does not obstruct us
from ruling against an unconstitutional assertion of power by Philippine officials. Let the United
States apply its laws. We have to be true to our own.
Mr. Marcos may be too ill to withstand the rigors of a transpacific flight. The agony of traveling while
hooked up to machines which have taken over the functions of his heart, lungs, and kidneys may
hasten his death. The physical condition of Mr. Marcos does not justify our ignoring or refusing to act
on his claim to a basic right which is legally demandable and enforceable. For his own good, it might
be preferable to stay where he is. But he invokes a constitutional right. We have no power to deny it
to him.
The issuance of a passport may be discretionary but it should not be withheld if to do so would run
counter to a constitutional guarantee. Besides, the petitioners are not asking for passports and
nothing else. Any travel documents or any formal lifting of the Marcos ban as would allow
international airlines to sell them tickets would suffice.
With all due respect for the majority opinion, I disagree with its dictum on the right to travel. I do not
think we should differentiate the right to return home from the right to go abroad or to move around
in the Philippines. If at all, the right to come home must be more preferred than any other aspect of
the right to travel. It was precisely the banning by Mr. Marcos of the right to travel by Senators
Benigno Aquino, Jr., Jovito Salonga, and scores of other "undesirables" and "threats to national
security" during that unfortunate period which led the framers of our present Constitution not only to
re-enact but to strengthen the declaration of this right. Media often asks, "what else is new?" I submit
that we now have a freedom loving and humane regime. I regret that the Court's decision in this
case sets back the gains that our country has achieved in terms of human rights, especially human
rights for those whom we do not like or those who are against us.
The respondent Secretary of Foreign Affairs, Raul S. Manglapus has disclosed a list of former
dictators who were barred by their successors from returning to their respective countries. There is
no showing that the countries involved have constitutions which guarantee the liberty of abode and

the freedom to travel and that despite such constitutional protections, the courts have validated the
"ban a return" policy. Neither is it shown that the successors of the listed dictators are as deeply
committed to democratic principles and as observant of constitutional protections as President
Aquino.
It is indeed regrettable that some followers of the former President are conducting a campaign to
sow discord and to divide the nation. Opposition to the government no matter how odious or
disgusting is, however, insufficient ground to ignore a constitutional guarantee.
During the protracted deliberations on this case, the question was asked is the Government helpless
to defend itself against a threat to national security? Does the President have to suspend the
privilege of the writ of habeas corpus or proclaim martial law? Can she not take less drastic
measures?
Of course, the Government can act. It can have Mr. Marcos arrested and tried in court. The
Government has more than ample powers under eixisting law to deal with a person who
transgresses the peace and imperils public safety. But the denial of travel papers is not one of those
powers because the Bill of Rights says so. There is no law prescribing exile in a foreign land as the
penalty for hurting the Nation.
Considering all the foregoing, I vote to GRANT the petition.
CRUZ, J., dissenting:
It is my belief that the petitioner, as a citizen of the Philippines, is entitled to return to and live-and
die-in his own country. I say this with a heavy heart but say it nonetheless. That conviction is not
diminished one whit simply because many believe Marcos to be beneath contempt and undeserving
of the very liberties he flounted when he was the absolute ruler of this land.
The right of the United States government to detain him is not the question before us, nor can we
resolve it. The question we must answer is whether or not, assuming that Marcos is permitted to
leave Hawaii (which may depend on the action we take today), the respondents have acted with
grave abuse of discretion in barring him from his own country.
My reluctant conclusion is that they have, absent the proof they said they were prepared to offer, but
could not, that the petitioner's return would prejudice the security of the State.
I was the one who, in the open hearing held on June 27,1989, asked the Solicitor General if the
government was prepared to prove the justification for opposing the herein petition, i. that it had not
acted arbitrarily. He said it was. Accordingly, the Court, appreciating the classified nature of the
information expected, scheduled a closed-door hearing on July 25,1988. The Solicitor General and
three representatives from the military appeared for the respondents, together with former Senator
Arturo M. Tolentino, representing the petitioners.
In about two hours of briefing, the government failed dismally to show that the return of Marcos dead
or alive would pose a threat to the national security as it had alleged. The fears expressed by its
representatives were based on mere conjectures of political and economic destabilization without
any single piece of concrete evidence to back up their apprehensions.

Amazingly, however, the majority has come to the conclusion that there exist "factual bases for the
President's decision" to bar Marcos's return. That is not my recollection of the impressions of the
Court after that hearing.
In holding that the President of the Philippines has residual powers in addition to the specific powers
granted by the Constitution, the Court is taking a great leap backward and reinstating the discredited
doctrine announced in Planas v. Gil (67 Phil. 62). This does not square with the announced policy of
the Constitutional Commission, which was precisely to limit rather than expand presidential powers,
as a reaction to the excesses of the past dictatorship.
I can only repeat Justice Black's wry observation in the Steel Seizure Case (343 U.S. 579) that if it
was true that the President had been granted the totality of executive power, "it is difficult to see why
our forefathers bothered to add several specific items, including some trifling ones, . . . I cannot
accept the view that this clause is a grant in bulk of all conceivable executive power but regard it as
an allocation to the presidential office of the generic powers thereafter stated."
I have no illusion that the stand I am taking will be met with paeans of praise, considering that
Marcos is perhaps the most detested man in the entire history of our country. But we are not
concerned here with popularity and personalities. As a judge, I am not swayed by what Justice
Cardozo called the "hooting throng" that may make us see things through the prisms of prejudice. I
bear in mind that when I sit in judgment as a member of this Court, I must cast all personal feelings
aside.
The issue before us must be resolved with total objectivity, on the basis only of the established facts
and the applicable law and not of wounds that still fester and scars that have not healed. And not
even of fear, for fear is a phantom. That phantom did not rise when the people stood fast at EDSA
against the threat of total massacre in defense at last of their freedom.
I cannot turn back on the lessons of liberty that I taught for more than three decades as a professor
of Constitutional Law. These principles have not changed simply because I am now on the Court or
a new administration is in power and the shoe is on the other foot.
Like the martyred Ninoy Aquino who also wanted to come back to the Philippines against the
prohibitions of the government then, Marcos is entitled to the same right to travel and the liberty of
abode that his adversary invoked. These rights are guaranteed by the Constitution to all individuals,
including the patriot and the homesick and the prodigal son returning, and tyrants and charlatans
and scoundrels of every stripe.
I vote to grant the petition.
PARAS, J., dissenting:
I dissent. Already, some people refer to us as a nation without discipline. Are we ready to be also
called a society without compassion?
The issue as to whether or not former President Ferdinand E. Marcos should be allowed to return to
the Philippines may be resolved by answering two simple questions: Does he have the right to return
to his own country and should national safety and security deny him this right?

There is no dispute that the former President is still a Filipino citizen and both under the Universal
Declaration of Human Rights and the 1987 Constitution of the Philippines, he has the right to return
to his own country exceptonly if prevented by the demands of national safety and national security.
Our Armed Forces have failed to prove this danger. They are bereft of hard evidence, and all they
can rely on is sheer speculation. True, there is some danger but there is no showing as to the extent.
It is incredible that one man alone together with his family, who had been ousted from this country by
popular will, can arouse an entire country to rise in morbid sympathy for the cause he once
espoused.
It is therefore clear to me, all other opinions to the contrary notwithstanding, that the former
President should be allowed to return to our country under the conditions that he and the members
of his family be under house arrest in his hometown in Ilocos Norte, and should President Marcos or
any member of his family die, the body should not be taken out of the municipality of confinement
and should be buried within ten (10) days from date.
If we do this, our country shall have maintained its regard for fundamental human rights, for national
discipline, and for human compassion.
PADILLA, J., dissenting:
I dissent. As I see it, the core issue in this case is, which right will prevail in the conflict between the
right of a Filipino, Ferdinand E. Marcos, to return to the Philippines, and the right of the Philippine
Government to bar such return in the interest of national security and public safety. In this context,
the issue is clearly justiciable involving, as it does, colliding assertions of individual right and
governmental power. Issues of this nature more than explain why the 1986 Constitutional
Commission, led by the illustrious former Chief Justice Roberto Concepcion, incorporated in the
1987 Constitution, the new provision on the power of Judicial Review, viz:
Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the Government.
Article VIII, Section 1, par. 2; (Emphasis supplied)
Mr. Marcos invokes in his favor the specific and precise constitutional right of every Filipino to travel
which, in the language of the Constitution, shall not be impaired "except in the interest of national
security, public safety, or public health, as may be provided by law" (Art. III, Sec. 6). That the right to
travel comprises the right to travel within the country, to travel out of the country and to return to the
country (Philippines), is hardly disputable. Short of all such components, the right to travel is
meaningless. The real question arises in the interpretation of the qualifications attached by the
Constitution to such right to travel.
Petitioners contend that, in the absence of restricting legislation, the right to travel is absolute. I do
not agree. It is my view that, with or without restricting legislation, the interest of national security,
public safety or public health can justify and even require restrictions on the right to travel, and that
the clause "as may be provided by law" contained in Article III, Section 6 of the 1987 Constitution
merely declares a constitutional leave or permission for Congress to enact laws that may restrict the
right to travel in the interest of national security, public safety or public health. I do not, therefore,
accept the petitioners' submission that, in the absence of enabling legislation, the Philippine
Government is powerless to restrict travel even when such restriction is demanded by national

security, public safety or public health, The power of the State, in particular cases, to restrict travel of
its citizens finds abundant support in the police power of the state wich may be exercised to
preserve and maintain government as well as promote the general welfare of the greatest number of
people.
And yet, the power of the State, acting through a government in authority at any given time, to
restrict travel, even if founded on police power, cannot be absolute and unlimited under all
circumstances, much less, can it be arbitrary and irrational.
Mr. Marcos, I repeat, comes before the Court as a Filipino, invoking a specific constitutional
right, i.e., the right to return to the country. 1 Have the respondents presented sufficient evidence to
offset or override the exercise of this right invoked by Mr. Marcos? Stated differently, have the
respondents shown to the Court sufficient factual bases and data which would justify their reliance on
national security and public safety in negating the right to return invoked by Mr. Marcos?
I have given these questions a searching examination. I have carefully weighed and assessed the
"briefing" given the Court by the highest military authorities of the land last 28 July 1989. 1 have
searched, but in vain, for convincing evidence that would defeat and overcome the right of Mr.
Marcos as a Filipino to return to this country. It appears to me that the apprehensions entertained
and expressed by the respondents, including those conveyed through the military, do not, with all
due respect, escalate to proportions of national security or public safety. They appear to be more
speculative than real, obsessive rather than factual. Moreover, such apprehensions even if
translated into realities, would be "under control," as admitted to the Court by said military
authorities, given the resources and facilities at the command of government. But, above all, the
Filipino people themselves, in my opinion, will know how to handle any situation brought about by a
political recognition of Mr. Marcos' right to return, and his actual return, to this country. The Court, in
short, should not accept respondents' general apprehensions, concerns and perceptions at face
value, in the light of a countervailing and even irresistible, specific, clear, demandable, and
enforceable right asserted by a Filipino.
Deteriorating political, social, economic or exceptional conditions, if any, are not to be used as a
pretext to justify derogation of human rights. 2
As a member of the United Nations, the Philippines has obligations under its charter. By adopting the
generally accepted principles of international law as part of the law of the land, (Art. II, Sec. 2 of the
Constitution), the Philippine government cannot just pay lip service to Art. 13, par. 2 of the Universal
Declaration of Human Rights which provides that everyone has the right to leave any country,
including his own, and to return to his country. This guarantee is reiterated in Art. XII, par. 2 of the
International Covenant on Civil and Political Rights which states that "no one shall be arbitrarily
deprived of the right to enter his own country." (Emphasis supplied) "Arbitrary" or "arbitrarily" was
specifically chosen by the drafters of the Covenant 3 hoping to protect an individual against
unexpected, irresponsible or excessive encroachment on his rights by the state based on national
traditions or a particular sense of justice which falls short of international law or standards. 4
The Solicitor General maintains that because the respondents, as alter egos of the President, have
raised the argument of "national security" and "public safety," it is the duty of this Court to
unquestioningly yield thereto, thus casting the controversy to the realm of a political question. I do
not agree. I believe that it is one case where the human and constitutional light invoked by one party
is so specific, substantial and clear that it cannot be overshadowed, much less, nullified by simplistic
generalities; worse, the Court neglects its duty under the Constitution when it allows the theory of
political question to serve as a convenient, and yet, lame excuse for evading what, to me, is its
clearly pressing and demandable duty to the Constitution.

During the oral arguments in this case, I asked the Solicitor General how one could validly
defend the right of former Senator Benigno S. Aquino, Jr., a Filipino, to return to the Philippines in
1983 and, at the same time,credibly deny the right of Mr. Marcos, also a Filipino, to return to the
Philippines in 1989. I still have not found a satisfactory answer to that question. Instead, it has
become clearer by the day that the drama today is the same drama in 1983 with the only difference
that the actors are in opposite roles, which really makes one hope, in the national interest, that the
mistake in 1983 should not be made to persist in 1989.
To one who owes Mr. Marcos, his wife and followers absolutely nothing, personal, political or
otherwise, the following are the cogent and decisive propositions in this case1. Mr. Marcos is a Filipino and, as such, entitled to return to die and be buried in this
country;
2. respondents have not shown any "hard evidence" or con- vincing proof why his
right as a Filipinoto return should be denied him. All we have are general conclusions
of "national security" and "public safety" in avoidance of a specific demandable and
enforceable constitutional and basic human right to return;
3. the issue of Marcos' return to the Philippines, perhaps more than any issue today,
requires of all members of the Court, in what appears to be an extended political
contest, the "cold neutrality of an impartial judge." It is only thus that we fortify the
independence of this Court, with fidelity, not to any person, party or group but to the
Constitution and only to the Constitution.
ACCORDINGLY, I vote to GRANT the petition.
SARMIENTO, J., dissenting:
I vote to grant the petition.
The only issue that saddles the Court is simply: "whether or not, in the exercise of the powers
granted by the Constitution, the President may prohibit the Marcoses from returning to the
Philippines." 1 I therefore take exception to allusions 2 anent "the capacity of the Marcoses to stir trouble
even from afar." 3 I have legitimate reason to fear that my brethren, in passing judgment on the Marcoses
(insofar as their "capacity to stir trouble" is concerned), have overstepped the bounds of judicial restraint,
or even worse, convicted them without trial.
I also find quite strained what the majority would have as the "real issues" facing the Court: "The
right to return to one's country," pitted against "the right of travel and freedom of abode", and their
supposed distinctions under international law, as if such distinctions, under international law in truth
and in fact exist. There is only one right involved here, whether under municipal or international law:
the light of travel, whether within one's own country, or to another, and the right to return thereto. The
Constitution itself makes no distinctions; let then, no one make a distinction. Ubi lex non distinguish
nec nos distinguere debemus.
As the majority would indeed have it, the issue is one of power: Does the Executive have the power
to deny a citizen his right to travel (back to the country or to another)? It is a question that, in
essence, involves the application, and no more, of the provisions of the 1987 Constitution:

Sec. 6. The liberty of abode and of changing the same within the limits prescribed by
law shall not be impaired except upon lawful order of the court. Neither shall the right
to travel be impaired except in the interest of national security, public safety, or public
health, as may be provided by law. 4
The majority says, with ample help from American precedents, that the President is possessed of the
power, thus:
On these premises, we hold the view that although the 1987 Constitution imposes
limitations on the exercise of specific powers of the President, it maintains intact what
is traditionally considered as within the scope of "executive power." Corollarily, the
powers of the President cannot be said to be limited only to the specific powers
enumerated in the Constitution. In other words, executive power is more than the
sum of specific powers so enumerated. 5
So also:
Faced with the problem of whether or not the time is right to allow the Marcoses to
return to the Philippines, the President is, under the Constitution, constrained to
consider these basic principles in arriving at a decision. More than that, having sworn
to defend and uphold the Constitution, the President has the obligation under the
Constitution to protect the people, promote their welfare and advance the national
interest. It must be borne in mind that the Constitution, aside from being an allocation
of power is also a social contract whereby the people have surrendered their
sovereign powers to the State for the common good. Hence, lest the officers of the
Government exercising the powers delegated by the people forget and the servants
of the people become rulers, the Constitution reminds everyone that "sovereignty
resides in the people and all government authority emanates from them." [Art. II,
Sec. 1 . ] 6
And finally:
To the President, the problem is one of balancing the general welfare and the
common good against the exercise of rights of certain individuals. The power
involved is the President's residual power to protect the general welfare of the
people. It is founded on the duty of the President, as steward of the people. To
paraphrase Theodore Roosevelt, it is not only the power of the President but also his
duty to do anything not forbidden by the Constitution or the laws that the needs of the
nation demanded [See Corwin, supra, at 153]. It is a power borne by the President's
duty to preserve and defend the Constitution. It also may be viewed as a power
implicit in the President's duty to take care that the laws are faithfully executed [See
Hyman, The American President, where the author advances the view that an
allowance of discretionary power is unavoidable in any government and is best
lodged in the President]. 7
I am not persuaded.
I
First: While the Chief Executive exercises powers not found expressly in the Charter, but has them
by constitutional implication* the latter must yield to the paramountcy of the Bill of Rights. According
to Fernando: "A regime of constitutionalism is thus unthinkable without an assurance of the primacy

of a big of rights. Precisely a constitution exists to assure that in the discharge of the governmental
functions, the dignity that is the birthright of every human being is duly safeguarded. To be true to its
primordial aim a constitution must lay down the boundaries beyond which he's forbidden territory for
state action" 8
My brethren have not demonstrated, to my satisfaction, how the President may override the direct
mandate of the fundamental law. It will not suffice, so I submit, to say that the President's plenitude
of powers, as provided in the Constitution, or by sheer constitutional implication, prevail over express
constitutional commands. "Clearly," so I borrow J.B.L. Reyes, in Ms own right, a titan in the field of
public law, "this argument ... rests ... not upon the text of the (Constitution] ... but upon a mere
inference therefrom." 9 For if it were, indeed, the intent of the Charter to create an exception, that is, by
Presidential action, to the right of travel or liberty of abode and of changing the same other than what it
explicitly says already ("limits prescribed by law" 10 or "upon lawful order of the court" 11 the Charter could
have specifically declared so. As it is, the lone deterrents to the right in question are: (1) decree of statute,
or (2) lawful judicial mandate. Had the Constitution intended a third exception, that is, by Presidential
initiative, it could have so averred. It would also have made the Constitution, as far as limits to the said
right are concerned, come full circle: Limits by legislative, judicial, and executive processes.
Obviously, none of the twin legal bars exist. There is no law banning the Marcoses from the country;
neither is there any court decree banishing him from Philippine territory.
It is to be noted that under the 1973 Constitution, the right to travel is worded as follows:
Sec. 5. The liberty of abode and of travel shall not be impaired except upon lawful
order of the court, or when necessary in the interest of national security, public safety,
or public health. 12
Under this provision, the right may be abated: (1) upon a lawful court order, or (2) "when necessary
in the interest of national security, public safety, or public health. 13 Arguably, the provision enabled the
Chief Executive (Marcos) to moderate movement of citizens, which, Bernas says, justified such practices
as "hamletting", forced relocations, or the establishment of free-fire zones. 14
The new Constitution, however, so it clearly appears, has divested the Executive's implied power.
And, as it so appears, the right may be impaired only "within the limits provided by law . 15 The
President is out of the picture.
Admittedly, the Chief Executive is the "sole" judge of all matters affecting national security 16 and
foreign affairs; 17the Bill of Rights precisely, a form of check against excesses of officialdom is, in this
case, a formidable barrier against Presidential action. (Even on matters of State security, this Constitution
prescribes limits to Executive's powers as Commander-in-Chief.)
Second: Assuming, ex hypothesis that the President may legally act, the question that emerges is:
Has it been proved that Marcos, or his return, will, in fact, interpose a threat to the national security ,
public safety, or public health?" What appears in the records are vehement insistences that Marcos
does pose a threat to the national good and yet, at the same time, we have persistent claims, made
by the military top brass during the lengthy closed-door hearing on July 25, 1989, that "this
Government will not fall" should the former first family in exile step on Philippine soil. which is which?
At any rate, it is my opinion that we can not leave that determination solely to the Chief Executive.
The Court itself must be content that the threat is not only clear, but more so, present. 18

That the President "has the obligation under the Constitution to protect the people ... " 19 is an
obligation open to no doubt. But the question, and so I ask again and again, is: From whom? If we say
"from Marcos," we unravel chinks in our political armor. It also flies in the face of claims, so confidently
asserted, that "this Government will not fall" even if we allowed Marcos to return.
It flies, finally, in the face of the fact that a good number of the henchmen trusted allies,
implementors of martial law, and pathetic parasites of the ex-first couple are, in fact, in the
Government, in the comfort of its offices, and or at the helm of its key agencies. Let us not, therefore,
joke ourselves of moral factors warranting the continued banishment of Marcos. Morality is the last
refuge of the self-righteous.
Third: The problem is not of balancing the general welfare against the exercise of individual
liberties. 20 As I indicated, not one shred of evidence, let alone solid evidence, other than surmises of
possibilities, has been shown to justify the 'balancing act" referred to. Worse, these conjectures contradict
contentions that as far as Philippine society is concerned, Marcos is "history".
The power of the President, so my brethren declaim, "calls for the exercise of the President's power
as protector of peace. 21
This is the self-same falsehood Marcos foisted on the Filipino people to justify the authoritarian rule.
It also means that we are no better than he has.
That "[t]he power of the President to keep the peace is not limited merely to exercising the
commander-in-chief powers in times of emergency or to leading the State against external and
internal threats to its existence" 22 is a bigger fantasy: It not only summons the martial law decisions of
pre-"EDSA" (especially with respect to the detestable Amendment No. 6), it is inconsistent with the
express provisions of the commander-in-chief clause of the 1987 Charter, a Charter that has perceptibly
reduced the Executive's powers vis-a-vis its 1973 counterpart. 23
II.
The undersigned would be lacking in candor to conceal his dislike, to say the least, for Marcos.
Because of Marcos, the writer of it's dissent lost a son His son's only "offense" was that he openly
and unabatedly criticized the dictator, his associates, and his military machinery. He would pay
dearly for it; he was arrested and detained, without judicial warrant or decision, for seven months
and seven days. He was held incommunicado a greater part of the time, in the military stockade of
Camp Crame. In his last week in detention, he was, grudgingly, hospitalized (prison hospital) and
confined for chronic asthma. The deplorable conditions of his imprisonment exacerbated his delicate
health beyond cure. He died, on November 11, 1977, a martyr on the altar of the martial law
apparatus.
The undersigned also counts himself as one of the victims of Marcos' ruthless apparatchiki. On
August 14, 1979, he was, along with former President Diosdado Macapagal, and Congressmen
Rogaciano Mercado and Manuel Concordia, charged, "ASSOed"and placed under house arrest, for
"inciting to sedition" and "rumor mongering " 24in the midst of the distribution of Ang Demokrasya Sa
Pilipinas (Democracy In the Philippines), a book extremely critical of martial rule, published by him and
former Congressman Concordia, authored by President Macapagal and translated into Tagalog by
Congressman Rogaciano Mercado. In addition, they were also all accused of libel in more than two
dozens of criminal complaints filed by the several military officers named in the "condemned" book as
having violated the human rights of dissenters, and for other crimes, in the office of the Provincial Fiscal
of Rizal. It had to take the events at "EDSA" to set them free from house arrest and these political
offenses. I am for Marcos' return not because I have a score to settle with him. Ditto's death or my arrest
are scores that can not be settled.

I feel the ex-President's death abroad (presented in the dailies as 'imminent") would leave him
'unpunished for Ms crimes to country and countrymen. If punishment is due, let this leadership inflict
it. But let him stand trial and accord him due process.
Modesty aside, I have staunchly and consistently advocated the human right of travel and movement
and the liberty of abode. 25 We would have betrayed our own Ideals if we denied Marcos his rights.
It is his constitutional right, a right that can not be abridged by personal hatred, fear, founded or
unfounded, and by speculations of the "man's "capacity" "to stir trouble" Now that the shoe is on the
other foot, let no more of human rights violations be repeated against any one, friend or foe. In a
democratic framwork, there is no this as getting even.
The majority started this inquiry on the question of power. I hold that the President, under the
present Constitution and existing laws, does not have it. Mandamus, I submit, lies.
Narvasa, Melencio-Herrera, Gancayco, Grio- Aquino, Medialdea and Regalado, JJ., concur.
Feliciano, J., is on leave.
Footnotes
** The Philippine presidency under the 1935 Constitution was patterned in large
measure after the American presidency. But at the outset, it must be pointed out that
the Philippine government established under the constitutions of 1935, 1973 and
1987 is a unitary government with general powers unlike that of the United States
which is a federal government with limited and enumerated powers. Even so, the
powers of the president of the United States have through the years grown,
developed and taken shape as students of that presidency have demonstrated.
FERNAN, C. J.:
1 From the speech "Restrictions on Human Rights-States of Emergency, National
Security, Public Safety and Public Order" delivered at the Lawasia Seminar on
Human Rights, Today and Tomorrow: The Role of Human Rights Commissions and
Other Organs, at the Manila Hotel on August 27, 1988.
CRUZ, J.
1 In addition, he invokes the right as a basic human right recognized by the Universal
Declaration ration of Human Rights. ni
2 S.P. Marks, Principles and Norms of Human Rights Applicable in Emergency
Situations: Under development, Catastrophies and Armed Conflicts, The International
Dimensions of Human Rights, Vol. 1 Unesco, 1982, pp. 175-204.
3 P. Hassan, The Word "Arbitrary" as used in the Universal Declaration of Human
Rights: "Illegal or Unjust", 10 Harv Int. L.J., p. 225 (1969). 4 FC Newman and IC
Vasak Civil and Political Rights, The International Dimensions of Human Rights, pp.
135-166.
4 F.C. Newman and K.Vasak and Poitical Rights, The International Dimensions of
Human Rights, pp. 135-166.5as to whether the U.S. Federal Government will allow

Mr. Marcos to leave the United States, is beyond the issues in this case; similarly, as
to how the Philippine government should deal with Mr. Marcos upon his return is also
outside of the issues in this case.
5 As to whether the U.S. Federal Government will allow Mr. Marcos to leave the
United States, is beyond the issues in this case; similarly, as to how the Philippine
Government should deal with Mr. Marcos upon his return is also outside of the issues
in this case.
SARMIENTO, J.:
1 Decision, 4.
2 See supra, 1-4.
3 Supra, 2.
4 CONST., art. Ill, see. 6.
5 Decision, supra, 18; emphasis in the original.
6 Supra, 20-21.
7 Supra, 21-22.
* But see Cruz, J., Dissenting.
8 FERNANDO, THE BILL OF RIGHTS, 4 (1972 ed.).
9 Republic v. Quasha, No L-30299, Aug. 17, 1972, 46 SCRA 160,169.
10 CONST., supra.
11 Supra.
12 CONST. (1973), art. IV, sec. 5.
13 Supra.
14 See BERNAS, THE CONSTITUTION OF THE REPUBLIC OF THE
PHILIPPINES, 263 (1987 ED.)
15 CONST. (1987), art III, sec. 6, supra.
16 See Supra ,Aart VII, sec 18.
17 See Go Tek v. Deportation Board , No. L-23846, September 9, 1977, 79 scra 17.
18 See Lansang v. Garcia, Nos. L-33964, 33965, 33973, 33982, 34004, 34013,
34039, 34265, and 34339, December 11, 1971, 42 SCRA 448, 480.

19 Decision, supra, 21.

20 Supra.
21 Supra.
22 Supra, 22.
23 Abraham ("Ditto") Sarmiento, Jr., then Editor-in-Chief, Philippine Collegian (19751976), official student organ of the University of the philippines. He was detained in
the military stockade for commoncriminals from Jan. to Aug, 1976.
24 SPI No. 79-347 ("For: Violation of Presidential Decree No. 90 and Article 142 of
the Revised Penal Code, as amended the JG.R. No. 54180, Diosdado Macapagal,
Rogaciano M. Mercado, Manuel A. Concordia, and Abraham F. Sarmiento,
Petitioners, vs- The Preliminary Investigating Panel in SPI No. 79-347 [Hamilton B.
Dimaya Brigadier General, AFP, The Judge Advocate General, Chairman; Leon 0.
Ridao Colonel, JAGS GSC Deputy Judge Advocate General, Member; and Amor B.
Felipe, Colonel, JAGS (GSC) Executive Officer, Member], and the Minister of
National Defense, Respondent Supreme Court.
25 See Santos v. The Special Commottee on Travel, et al., G.R. No. L-45748, June
28, 1977, of which the undersigned was the counsel of the petitioner.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-342

May 4, 1946

AURELIO S. ALVERO, petitioner,

vs.
ARSENIO P. DIZON, ET AL., respondent.
Albert and Albert for petitioner.
First Assistant Solicitor General Reyes and Assistant Solicitor General Alvendia for respondents.
DE JOYA, J.:
This is a petition for certiorari with injunction originally filed in this court.
In the petition it is alleged that petitioner Aurelio S. Alvero has been accused of treason, in criminal
case No. 3 of the People's Court; that at the hearing on his petition for bail, the prosecution
presented, as part of its evidence, certain documents which had been allegedly seized by soldiers of
the United States Army, accompanied by Filipino guerrillas, in the petitioner's house; that petitioner
immediately objected to the presentation of said documents, and called the attention of the
respondent judges to the fact that he had filed a petition, in which he protested against the
procedure of the government in the seizure of said documents, and asked for their return to the
petitioner; that the respondents permitted the prosecution to present said documents as evidence,
which were considered, upon the termination of the presentation of the evidence for both parties, in
denying said petition for bail; that the petition filed on December 1, 1945, for the return of the
documents allegedly seized illegally in petitioner's house, was not considered by the respondents,
before the commencement of the trial of petitioner's case, on the merits, due perhaps to an
involuntary oversight; that at the commencement of the trial of said criminal case No. 3, and during
its course, the prosecution again presented, as evidence, against the petitioner said documents
which had been taken from his house, and petitioner renewed his objection thereto, and asked for
their return to him, alleging that their seizure was illegal and that their presentation would be
tantamount to compelling him to testify against himself, in violation of his constitutional rights; that in
deciding the question so raised, the respondent judges, in open court, stated that the prosecution
might in the meanwhile continue presenting said documents, without prejudice to the final resolution
of said petition, when the prosecution should finish presenting its evidence; that in concluding the
presentation of its evidence and resting the case, after offering said documents as part of its
evidence, the petitioner again raised the question of the admissibility of said documents, and the
respondent judges then ordered the substantiation of said allegations of petitioner, and set for
hearing his petition for the return of said documents; that said petition was heard on February 16,
1946, and at said hearing, the petitioner and his wife testified, without any contradiction that, on
February 12, 1945, on the occasion of the arrest of the petitioner by soldiers of the United States
Army, the latter searched the house of the petitioner and seized, among other things, the documents
which he had in his house; that when said petition for the return of said documents was submitted for
the consideration and decision of the respondent judges, the latter, on February 26, 1946, issued an
order denying said petition, and admitted as competent evidence the documents presented by the
prosecution, marked as Exhibits A, C, G, H, K, L, P, R, R-1, R-2, U, Z, CC, DD, FF, HH; that on the

same date that said order was issued, denying the petition for the return of said documents,
petitioner asked for the reconsideration of said order, which was also denied. (Petition, pars. 1-12.)
And herein petitioner now claims that the respondent judges, in denying the petition for the return of
said documents, acted without jurisdiction and committed a grave abuse in the exercise of their
discretion, alleging that even the seizure of documents by means of a search warrant legally issued,
constitutes a violation of the rights guaranteed in paragraphs 3 and 18 of section 1 of Article III of the
Constitution, and, consequently, when their seizure cannot be justified by the corresponding search
warrant, the court should order their immediate return; that the petitioner has no other speedy and
adequate remedy for the protection of his rights guaranteed by the Constitution, other than this
petition for certiorari, as the right of appeal granted by law to a person accused of a crime, is costly
and highly prejudicial to the petitioner, as it presupposes that the prosecution has established the
guilt of the accused by means of legal and competent evidence, as alleged in the last three (3)
paragraphs of the petition.
Consequently, herein petitioner asks for the annulment of the order issued by the respondent judges,
on February 26, 1946, in said criminal case No. 3, entitled People of the Philippines vs. Aurelio S.
Alvero, the return to him of the documents presented by the prosecution, mentioned above, and
the issuance of a writ of preliminary injunction. .In their answer filed on March 21, 1946, herein
respondents have substantially admitted the allegations made and contained in the first twelve (12)
paragraphs of the petition, except the portions alleging that the documents in question had been
obtained by means of force and intimidation or through coercion; and that certain soldiers of the
American Army took certain personal properties of herein petitioner, at the time the search was
made; and that the acquisition of said documents was manifestly a violation of petitioner's
constitutional rights and that their admission, as evidence for the prosecution, would be tantamount
to compelling petitioner, as accused, to testify against himself all of which portions have been
expressly denied by the respondents.
Respondents have also expressly denied the allegations contained in the remaining three (3)
paragraphs of the petition.
And as defenses, respondents allege (1) that petitioner himself has admitted the legality of the
seizure of the documents in question in his motion for reconsideration, dated February 26, 1946; (2)
that petitioner has not proven that said documents had been illegally seized for him; (3) that the
seizure of the documents in question took place, on February 12, 1945, in Pasay, Rizal, which was
then still a combat zone, and that the seizure of certain papers in the house of the petitioner was
made by soldiers of the United States Army of Liberation or its instrumentalities; (4) that said seizure
was effected lawfully under the terms of the proclamation of the Commander in Chief of the United
States Liberation Forces, dated December 29, 1944, in which he declared his purpose to remove
alleged collaborators, when apprehended, from any position of political and economic influence in
the Philippines and to hold them in restraint for the duration of the war; (5) that the documents in
question had been properly admitted as evidence for the prosecution in criminal case No. 3, as
herein petitioner, as accused in said case, had expressly waived his right to object to their
admissibility, particularly Exhibits A, FF, HH and P; (6) that petitioner's evidence of alleged
ownership, relative to Exhibits C, G, H, K, I, P, R, R-1 and R-2, is altogether insufficient, and
petitioner himself has expressly admitted that said documents are not his personal papers but part of
the files of the New Leaders' Association, which was proven to be an organization created, for the
purpose of collaborating with the enemy; (7) and that none of the exhibits referred to in the petition
has been satisfactorily identified by the petitioner as included among the papers allegedly wrongfully
seized from his house and belonging to him.

Considering the allegations made by the parties in their respective pleadings, and their supporting
papers, as well as the admissions made therein, the following facts appear to have been sufficiently
established:
(1) That on February 12, 1945, while the battle for Manila was raging, soldiers of the United States
Army, accompanied by men of Filipino Guerrilla Forces, placed herein petitioner under arrest, having
been suspected of collaboration with the enemy, and seized and took certain papers from his house
in Pasay, Rizal;
(2) That on or about October 4, 1945, petitioner was accused of treason, in criminal case No. 3 of
the People's Court; after which, on December 1, 1945, he filed a petition, demanding the return of
the papers allegedly seized and taken from his house;
(3) That petitioner also filed a petition for bail, at the hearing of which the prosecution presented
certain papers and documents, which were admitted as part of its evidence, and said petition was
denied;
(4) That at the trial of the case on the merits, the prosecution again presented said papers and
documents, which were admitted as part of its evidence, and were marked as exhibits, as described
in the petition for certiorari, filed in this court;
(5) That herein petitioner had failed to object properly to the admission of said papers and
documents at the hearing on said petition for bail, and at the trial of the case on the merits, in not
having insisted that the question of the legality of the search and seizure of the papers and
documents taken from his house should have been litigated and finally decided first, and thus
practically waived his objection to their admissibility, as evidence for the prosecution;
(6) That at the hearing on his petition for the return of the papers taken from his house, held after
they had been admitted as part of the evidence for the prosecution, at the hearing on the petition for
bail and at the trial of the case on the merits, herein petitioner had failed to identify satisfactorily the
documents now in question, and his ownership thereof; and
(7) That petitioner himself in his petition for reconsideration, dated February 26, 1946, admitted the
legality the legality of the seizure of the documents taken from his house, and at the hearing on his
petition for bail, he himself called for some of the documents in question.
The right of officers and men of the United States Army to arrest herein petitioner, as a
collaborationist suspect, and to seize his personal papers, without any search warrant, in the zone of
military operations, is unquestionable, under the provisions of article 4, Chapter II, Section I, of the
Regulations relative to the Laws and Customs of War on Land of the Hague Conventions of 1907,
authorizing the seizure of military papers in the possession of prisoners of war (Wilson, International
Law, 3d ed., 1939, p.524); and also under the proclamation, dated December 29, 1944, issued by
Gen. Douglas MacArthur, as Commander in Chief of the United States of Army, declaring his
purpose to remove certain citizens of the Philippines, who had voluntarily given aid and comfort to
the enemy, in violation of the allegiance due the Governments of the United States and the
Commonwealth of the Philippines, when apprehended, from any position of political and economic
influence in the Philippines and to hold them in restraint for the duration of the war. (41 Off. Gaz., No.
2, pp. 148, 149.) As a matter of fact, petitioner himself, in his motion for reconsideration, dated
February 26, 1946, expressly admitted the legality of the seizure of his personal papers and
documents at the time of his arrest.

The most important exception to the necessity for a search warrant is the right of search and seizure
as an incident to a lawful arrest. A lawful arrest may be made either while a crime is being committed
or after its commission. The right to search includes in both instances that of searching the person of
him who is arrested, in order to find and seize things connected with the crime as its fruits or as the
means by which it was committed. (Agnello vs. United States, 269 U. S., 20.)
When one is legally arrested for an offense, whatever is found in his possession or in his control may
be seized and used in evidence against him; and an officer has the right to make an arrest without a
warrant of a person believed by the officer upon reasonable grounds to have committed a felony.
(Carroll vs. United States, 267 U. S., 132.).
The majority of the states have held that the privilege against compulsory self-incrimination, which is
also guaranteed by state constitutional provisions is not violated by the use in evidence of articles
obtained by an unconstitutional search and seizure. (People vs. Defore, 242 N. Y., 13; 150 N. E.,
585.)
It is true that on December 1, 1945, herein petitioner filed a petition, demanding the return of certain
papers and documents allegedly seized and taken from his house at the time of his arrest; but when
he consented to their presentation, as part of the evidence for the prosecution, at the hearing on his
petition for bail and at the trial of the case on the merits, without having insisted that the question of
the alleged illegality of the search and seizure of said papers and documents should first have been
directly litigated and established by a motion, made before the trial, for their return, he was and
should be deemed to have waived his objection to their admissibility as part of the evidence for the
prosecution; since the privilege against compulsory self-incrimination may be waived. (Weeks vs.
United States, 232 U. S., 383; Silverthorne Lumber Co. vs. United States, 251 U. S., 385; Gouled vs.
United States, 255 U. S., 298; People vs. Carlos, 47 Phil., 626, 630, 631.)
At the hearing on his petition for bail, petitioner himself requested the production of the document
marked as Exhibit A, which was a letter sent by him to Dr. Jose P. Laurel; the document marked as
Exhibit HH, which was a memorandum to Col. Suzuki, dated December 30, 1944; and the document
marked as Exhibit P, which was a memorandum on Nippongo classes. And he is now, therefore,
estopped from questioning their admission.
Furthermore, petitioner could not properly identify many of said documents, such as Exhibit FF, nor
satisfactorily establish his ownership thereof; while the prosecution has sufficiently established the
fact that some of the papers now in question, such as Exhibit C, had been received at the Office of
the CIC of the United States Army in the City of Manila, since February 11, 1945, that is, one day
prior to the seizure of certain papers and documents in the house of the petitioner. And with
reference to Exhibits C, G, H, K, L, P, R, R-1 and R-2, petitioner himself admitted that they are not
his personal papers but part of the files of the New Leader's Association. And it is well established
rule in this jurisdiction that in a petition for the production of papers and documents, they must be
sufficiently described and identified, otherwise the petition cannot prosper. (Liebenow vs. Philippine
Vegetable Oil Co., 39 Phil., 60, 67, 69; Rule 21, section 1, Rules of Court.)
The purpose of the constitutional provisions against unlawful searches and seizures is to prevent
violations of private security in person and property, and unlawful invasions of the sanctity of the
home, by officers of the law acting under legislative or judicial sanction, and to give remedy against
such usurpations when attempted. (Adams vs. New York, 192 U. S., 585.) But it does not prohibit the
Federal Government from taking advantage of unlawful searches made by a private person or under
authority of state law. (Weeks vs. United States, 232 U. S., 383; Burdeau vs. McDowell, 256 U. S.,
465.)

As the soldiers of the United States Army, that took and seized certain papers and documents from
the residence of herein petitioner, on February 12, 1945, were not acting as agents or on behalf of
the Government of the Commonwealth of the Philippines; and that those papers and documents
came in the possession of the authorities of the Commonwealth Government, through the Office of
the CIC of the United States Army in Manila, the use and presentation of said papers and
documents, as evidence for the prosecution against herein petitioner, at the trial of his case for
treason, before the People's Court, cannot now be legally attacked, on the ground of unlawful or
unreasonable searches and seizures, or on any other constitutional ground, as declared by the
Supreme Court of the United States in similar cases. (Burdeau vs. McDowell, 256 U. S., 465;
Gambino vs. United States, 275 U. S., 310.)
In view of the foregoing, it is evident that the petition for certiorari with injunction, filed in this case, is
absolutely without merit, and it is, therefore, hereby denied and dismissed with costs. So ordered.
Jaranilla, Feria, Pablo, and Hilado, JJ., and Buenaventura, Santos, Santiago and T. Santos, JJ.,
concur.

Separate Opinions
PERFECTO, J., concurring:
We concur in the decision, but we wish to make of record our express disagreement with the
doctrine as stated in the following paragraphs of said decision:
The majority of the states have held that the privilege against compulsory self-incrimination,
which is also guaranteed by state constitutional provisions is not violated by the use in
evidence of articles obtained by an unconstitutional search and seizure. (People vs. Defore,
242 N. Y., 13; 150 N. E., 585.).
But it does not prohibit the Federal Government from taking advantage of unlawful searches
made by a private person or under authority of state law. (Weeks vs. United States, 232 U.
S., 383; Burdeau vs. McDowell, 256 U. S., 465.)
We also disagree with the following pronouncement in the other concurring opinion:.
La traicion implica renuncia y privacion de la garantia contra irrazonables registros y
secuestros, diligencias previas a la conviccion o absolucion, actuaciones estas finales del
proceso.
The theory is erroneous and retrogressive. It violates the spirit and the letter of the Constitution.
There is no reason, either legal or moral, for depriving an accused of treason of the benefits of
constitutional guarantees. Even those convicted of the most heinous crimes remain under the pale of
the Constitution, and cannot be punished, including those sentenced to death, except in accordance
with the due process clause of our fundamental law.

DE LA ROSA, J., concurrente:

Voto con la mayoria por la denegacion del recurso.
El recurrente alega que los documentos relacionados en su peticion, que el Fiscal ha presentado en
el proceso por traicion que se sigue contra el ante el Tribunal del Pueblo, fueron secuestrados de su
casa el 12 de Febrero de 1945 sin mandamiento de registro, y pide su devolucion.
El delito de traicion tiende a derrocar al gobierno constituido y la autoridad de los Estados Unidos en
Filipinas. La ley basica del Commonwealth contiene una declaracion de derechos individuales, e
incluye el privilegio contra registros y secuestros irrazonables, que se invoca en este recurso. Pero
esta es una garantia constitucional condicionada por la lealtad. Repudia las instituciones de su
Gobierno el subdito que le hace la guerra o se adhiere a sus enemigos. En el exilio del
Commonwealth, ensenoreose el regimen japones, con sus ideologias, normas y principios, y la ley
basica de aquel fue sustituida por las instrucciones militares a la Comision Ejecutiva y la
constitucion de la llamada Philippine Republic. La deslealtad, por lo tanto, inherente a la traicion,
supone renuncia a los beneficios de la garantia, que ha sido repudiada.
La estabilidad y preservacion, necesarias en todo Gobierno, requieren medidas drasticas, el uso de
la fuerza armada, inclusive, de mayor trascendencia que la retirada de una garantia constitucional,
para reprimir, frustrar la traicion.
El Gobierno otorga derechos y libertades individuales, pero se previene contra la traicion,
castigando severamente hasta la conspiracion y la proposicion para cometer este delito, actos
preparatorios, ordinariamente no punibles. Mas aun, la abstencion de denunciar la conspiracion,
ante las autoridades locales, que es, a lo sumo, una delincuencia por intencion, tambien lo castiga.
Estas disposiciones represivas son mas trascendentales que la privacion temporal de un privilegio.
De hecho estaban suspendidas las garantias constitucionales, con motivo de la guerra, cuando
fueron secuestrados los documentos en cuestion.
La culpabilidad del recurrente, antes de que pronuncie su fallo el Tribunal del Pueblo, no se
prejuzga revisando y apreciando la naturaleza de los documentos cuya devolucion solicita. Prima
facie, son pruebas o actos de traicion, de modo que el apoderamiento de dichos documentos, de
una manera expedita, sin red tape, antes de que fuesen ocultados o destruidos, esta justificado.
Mas, los mismos no excluyen la inocencia del actor, de la misma manera que no la repelen las
pruebas de cargo antes de ser rebatidas por la defensa, ni suponen culpabilidad, necesariamente,
las pruebas aportadas en una investigacion previa para ordenar el arresto de un acusado,
privandole de libertad o restringiendola, antes de su conviccion.
La traicion implica renuncia y privacion de la garantia contra irrazonables registros y secuestros,
diligencias previas a la conviccion o absolucion, actuaciones estas finales del proceso.

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 81561

January 18, 1991

PEOPLE OF THE PHILIPPINES, plaintiff-appellee

vs.
ANDRE MARTI, accused-appellant.
The Solicitor General for plaintiff-appellee.
Reynaldo B. Tatoy and Abelardo E. Rogacion for accused-appellant.

BIDIN, J.:
This is an appeal from a decision * rendered by the Special Criminal Court of Manila (Regional Trial
Court, Branch XLIX) convicting accused-appellant of violation of Section 21 (b), Article IV in relation
to Section 4, Article 11 and Section 2 (e) (i), Article 1 of Republic Act 6425, as amended, otherwise
known as the Dangerous Drugs Act.
The facts as summarized in the brief of the prosecution are as follows:
On August 14, 1987, between 10:00 and 11:00 a.m., the appellant and his common-law wife,
Shirley Reyes, went to the booth of the "Manila Packing and Export Forwarders" in the
Pistang Pilipino Complex, Ermita, Manila, carrying with them four (4) gift wrapped packages.
Anita Reyes (the proprietress and no relation to Shirley Reyes) attended to them. The
appellant informed Anita Reyes that he was sending the packages to a friend in Zurich,
Switzerland. Appellant filled up the contract necessary for the transaction, writing therein his
name, passport number, the date of shipment and the name and address of the consignee,
namely, "WALTER FIERZ, Mattacketr II, 8052 Zurich, Switzerland" (Decision, p. 6)
Anita Reyes then asked the appellant if she could examine and inspect the packages.
Appellant, however, refused, assuring her that the packages simply contained books, cigars,
and gloves and were gifts to his friend in Zurich. In view of appellant's representation, Anita
Reyes no longer insisted on inspecting the packages. The four (4) packages were then
placed inside a brown corrugated box one by two feet in size (1' x 2'). Styro-foam was placed
at the bottom and on top of the packages before the box was sealed with masking tape, thus
making the box ready for shipment (Decision, p. 8).
Before delivery of appellant's box to the Bureau of Customs and/or Bureau of Posts, Mr. Job
Reyes (proprietor) and husband of Anita (Reyes), following standard operating procedure,
opened the boxes for final inspection. When he opened appellant's box, a peculiar odor

emitted therefrom. His curiousity aroused, he squeezed one of the bundles allegedly
containing gloves and felt dried leaves inside. Opening one of the bundles, he pulled out a
cellophane wrapper protruding from the opening of one of the gloves. He made an opening
on one of the cellophane wrappers and took several grams of the contents thereof(tsn, pp.
29-30, October 6, 1987; Emphasis supplied).
Job Reyes forthwith prepared a letter reporting the shipment to the NBI and requesting a
laboratory examination of the samples he extracted from the cellophane wrapper (tsn, pp. 56, October 6, 1987).
He brought the letter and a sample of appellant's shipment to the Narcotics Section of the
National Bureau of Investigation (NBI), at about 1:30 o'clock in the afternoon of that
date, i.e., August 14, 1987. He was interviewed by the Chief of Narcotics Section. Job Reyes
informed the NBI that the rest of the shipment was still in his office. Therefore, Job Reyes
and three (3) NBI agents, and a photographer, went to the Reyes' office at Ermita, Manila
(tsn, p. 30, October 6, 1987).
Job Reyes brought out the box in which appellant's packages were placed and, in the
presence of the NBI agents, opened the top flaps, removed the styro-foam and took out the
cellophane wrappers from inside the gloves. Dried marijuana leaves were found to have
been contained inside the cellophane wrappers (tsn, p. 38, October 6, 1987; Emphasis
supplied).
The package which allegedly contained books was likewise opened by Job Reyes. He
discovered that the package contained bricks or cake-like dried marijuana leaves. The
package which allegedly contained tabacalera cigars was also opened. It turned out that
dried marijuana leaves were neatly stocked underneath the cigars (tsn, p. 39, October 6,
1987).
The NBI agents made an inventory and took charge of the box and of the contents thereof,
after signing a "Receipt" acknowledging custody of the said effects (tsn, pp. 2-3, October 7,
1987).
Thereupon, the NBI agents tried to locate appellant but to no avail. Appellant's stated address in his
passport being the Manila Central Post Office, the agents requested assistance from the latter's
Chief Security. On August 27, 1987, appellant, while claiming his mail at the Central Post Office, was
invited by the NBI to shed light on the attempted shipment of the seized dried leaves. On the same
day the Narcotics Section of the NBI submitted the dried leaves to the Forensic Chemistry Section
for laboratory examination. It turned out that the dried leaves were marijuana flowering tops as
certified by the forensic chemist. (Appellee's Brief, pp. 9-11, Rollo, pp. 132-134).
Thereafter, an Information was filed against appellant for violation of RA 6425, otherwise known as
the Dangerous Drugs Act.
After trial, the court a quo rendered the assailed decision.
In this appeal, accused/appellant assigns the following errors, to wit:
THE LOWER COURT ERRED IN ADMITTING IN EVIDENCE THE ILLEGALLY SEARCHED
AND SEIZED OBJECTS CONTAINED IN THE FOUR PARCELS.

THE LOWER COURT ERRED IN CONVICTING APPELLANT DESPITE THE UNDISPUTED

FACT THAT HIS RIGHTS UNDER THE CONSTITUTION WHILE UNDER CUSTODIAL
PROCEEDINGS WERE NOT OBSERVED.
THE LOWER COURT ERRED IN NOT GIVING CREDENCE TO THE EXPLANATION OF
THE APPELLANT ON HOW THE FOUR PARCELS CAME INTO HIS POSSESSION
(Appellant's Brief, p. 1; Rollo, p. 55)
1. Appellant contends that the evidence subject of the imputed offense had been obtained in
violation of his constitutional rights against unreasonable search and seizure and privacy of
communication (Sec. 2 and 3, Art. III, Constitution) and therefore argues that the same should be
held inadmissible in evidence (Sec. 3 (2), Art. III).
Sections 2 and 3, Article III of the Constitution provide:
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.
Sec. 3. (1) The privacy of communication and correspondence shall be inviolable except
upon lawful order of the court, or when public safety or order requires otherwise as
prescribed by law.
(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible
for any purpose in any proceeding.
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.
Thus, following the exclusionary rule laid down in Mapp v. Ohio by the US Federal Supreme
Court (367 US 643, 81 S.Ct. 1684, 6 L.Ed. 1081 [1961]), this Court, in Stonehill v. Diokno (20 SCRA
383 [1967]), declared as inadmissible any evidence obtained by virtue of a defective search and
seizure warrant, abandoning in the process the ruling earlier adopted in Moncado v. People's
Court (80 Phil. 1 [1948]) wherein the admissibility of evidence was not affected by the illegality of its
seizure. The 1973 Charter (Sec. 4 [2], Art. IV) constitutionalized the Stonehill ruling and is carried
over up to the present with the advent of the 1987 Constitution.

In a number of cases, the Court strictly adhered to the exclusionary rule and has struck down the
admissibility of evidence obtained in violation of the constitutional safeguard against unreasonable
searches and seizures. (Bache & Co., (Phil.), Inc., v. Ruiz, 37 SCRA 823 [1971]; Lim v. Ponce de
Leon, 66 SCRA 299 [1975]; People v. Burgos, 144 SCRA 1 [1986]; Roan v. Gonzales, 145 SCRA
687 [1987]; See also Salazar v. Hon. Achacoso, et al., GR No. 81510, March 14, 1990).
It must be noted, however, that in all those cases adverted to, the evidence so obtained were
invariably procured by the State acting through the medium of its law enforcers or other authorized
government agencies.
On the other hand, the case at bar assumes a peculiar character since the evidence sought to be
excluded was primarily discovered and obtained by a private person, acting in a private capacity and
without the intervention and participation of State authorities. Under the circumstances, can
accused/appellant validly claim that his constitutional right against unreasonable searches and
seizure has been violated? Stated otherwise, may an act of a private individual, allegedly in violation
of appellant's constitutional rights, be invoked against the State?
We hold in the negative. In the absence of governmental interference, the liberties guaranteed by
the Constitution cannot be invoked against the State.
As this Court held in Villanueva v. Querubin (48 SCRA 345 [1972]:
1. This constitutional right (against unreasonable search and seizure) refers to the immunity
of one's person, whether citizen or alien, from interference by government, included in which
is his residence, his papers, and other possessions. . . .
. . . There the state, however powerful, does not as such have the access except under the
circumstances above noted, for in the traditional formulation, his house, however humble, is
his castle. Thus is outlawed any unwarranted intrusion by government, which is called upon
to refrain from any invasion of his dwelling and to respect the privacies of his life. . . . (Cf.
Schermerber v. California, 384 US 757 [1966] and Boyd v. United States, 116 US 616 [1886];
Emphasis supplied).
In Burdeau v. McDowell (256 US 465 (1921), 41 S Ct. 547; 65 L.Ed. 1048), the Court there in
construing the right against unreasonable searches and seizures declared that:
(t)he Fourth Amendment gives protection against unlawful searches and seizures, and as
shown in previous cases, its protection applies to governmental action. Its origin and history
clearly show that it was intended as a restraint upon the activities of sovereign authority, and
was not intended to be a limitation upon other than governmental agencies; as against such
authority it was the purpose of the Fourth Amendment to secure the citizen in the right of
unmolested occupation of his dwelling and the possession of his property, subject to the right
of seizure by process duly served.
The above ruling was reiterated in State v. Bryan (457 P.2d 661 [1968]) where a parking attendant
who searched the automobile to ascertain the owner thereof found marijuana instead, without the
knowledge and participation of police authorities, was declared admissible in prosecution for illegal
possession of narcotics.
And again in the 1969 case of Walker v. State (429 S.W.2d 121), it was held that the search and
seizure clauses are restraints upon the government and its agents, not upon private individuals

(citing People v. Potter, 240 Cal. App.2d 621, 49 Cap. Rptr, 892 (1966); State v. Brown, Mo., 391
S.W.2d 903 (1965); State v. Olsen, Or., 317 P.2d 938 (1957).
Likewise appropos is the case of Bernas v. US (373 F.2d 517 (1967). The Court there said:
The search of which appellant complains, however, was made by a private citizen the
owner of a motel in which appellant stayed overnight and in which he left behind a travel
case containing the evidence***complained of. The search was made on the motel owner's
own initiative. Because of it, he became suspicious, called the local police, informed them of
the bag's contents, and made it available to the authorities.
The fourth amendment and the case law applying it do not require exclusion of evidence
obtained through a search by a private citizen. Rather, the amendment only proscribes
governmental action."
The contraband in the case at bar having come into possession of the Government without the latter
transgressing appellant's rights against unreasonable search and seizure, the Court sees no cogent
reason why the same should not be admitted against him in the prosecution of the offense charged.
Appellant, however, would like this court to believe that NBI agents made an illegal search and
seizure of the evidence later on used in prosecuting the case which resulted in his conviction.
The postulate advanced by accused/appellant needs to be clarified in two days. In both instances,
the argument stands to fall on its own weight, or the lack of it.
First, the factual considerations of the case at bar readily foreclose the proposition that NBI agents
conducted an illegal search and seizure of the prohibited merchandise. Records of the case clearly
indicate that it was Mr. Job Reyes, the proprietor of the forwarding agency, who made
search/inspection of the packages. Said inspection was reasonable and a standard operating
procedure on the part of Mr. Reyes as a precautionary measure before delivery of packages to the
Bureau of Customs or the Bureau of Posts (TSN, October 6 & 7, 1987, pp. 15-18; pp. 7-8; Original
Records, pp. 119-122; 167-168).
It will be recalled that after Reyes opened the box containing the illicit cargo, he took samples of the
same to the NBI and later summoned the agents to his place of business. Thereafter, he opened the
parcel containing the rest of the shipment and entrusted the care and custody thereof to the NBI
agents. Clearly, the NBI agents made no search and seizure, much less an illegal one, contrary to
the postulate of accused/appellant.
Second, the mere presence of the NBI agents did not convert the reasonable search effected by
Reyes into a warrantless search and seizure proscribed by the Constitution. Merely to observe and
look at that which is in plain sight is not a search. Having observed that which is open, where no
trespass has been committed in aid thereof, is not search (Chadwick v. State, 429 SW2d 135).
Where the contraband articles are identified without a trespass on the part of the arresting officer,
there is not the search that is prohibited by the constitution (US v. Lee 274 US 559, 71 L.Ed. 1202
[1927]; Ker v. State of California 374 US 23, 10 L.Ed.2d. 726 [1963]; Moore v. State, 429 SW2d 122
[1968]).
In Gandy v. Watkins (237 F. Supp. 266 [1964]), it was likewise held that where the property was
taken into custody of the police at the specific request of the manager and where the search was

initially made by the owner there is no unreasonable search and seizure within the constitutional
meaning of the term.
That the Bill of Rights embodied in the Constitution is not meant to be invoked against acts of private
individuals finds support in the deliberations of the Constitutional Commission. True, the liberties
guaranteed by the fundamental law of the land must always be subject to protection. But protection
against whom? Commissioner Bernas in his sponsorship speech in the Bill of Rights answers the
query which he himself posed, as follows:
First, the general reflections. The protection of fundamental liberties in the essence of
constitutional democracy. Protection against whom? Protection against the state. The Bill of
Rights governs the relationship between the individual and the state. Its concern is not the
relation between individuals, between a private individual and other individuals. What the Bill
of Rights does is to declare some forbidden zones in the private sphere inaccessible to any
power holder. (Sponsorship Speech of Commissioner Bernas , Record of the Constitutional
Commission, Vol. 1, p. 674; July 17, 1986; Emphasis supplied)
The constitutional proscription against unlawful searches and seizures therefore applies as a
restraint directed only against the government and its agencies tasked with the enforcement of the
law. Thus, it could only be invoked against the State to whom the restraint against arbitrary and
unreasonable exercise of power is imposed.
If the search is made upon the request of law enforcers, a warrant must generally be first secured if
it is to pass the test of constitutionality. However, if the search is made at the behest or initiative of
the proprietor of a private establishment for its own and private purposes, as in the case at bar, and
without the intervention of police authorities, the right against unreasonable search and seizure
cannot be invoked for only the act of private individual, not the law enforcers, is involved. In sum, the
protection against unreasonable searches and seizures cannot be extended to acts committed by
private individuals so as to bring it within the ambit of alleged unlawful intrusion by the government.
Appellant argues, however, that since the provisions of the 1935 Constitution has been modified by
the present phraseology found in the 1987 Charter, expressly declaring as inadmissible any
evidence obtained in violation of the constitutional prohibition against illegal search and seizure, it
matters not whether the evidence was procured by police authorities or private individuals
(Appellant's Brief, p. 8, Rollo, p. 62).
The argument is untenable. For one thing, the constitution, in laying down the principles of the
government and fundamental liberties of the people, does not govern relationships between
individuals. Moreover, it must be emphasized that the modifications introduced in the 1987
Constitution (re: Sec. 2, Art. III) relate to the issuance of either a search warrant or warrant of
arrest vis-a-vis the responsibility of the judge in the issuance thereof (SeeSoliven v. Makasiar, 167
SCRA 393 [1988]; Circular No. 13 [October 1, 1985] and Circular No. 12 [June 30, 1987]. The
modifications introduced deviate in no manner as to whom the restriction or inhibition against
unreasonable search and seizure is directed against. The restraint stayed with the State and did not
shift to anyone else.
Corolarilly, alleged violations against unreasonable search and seizure may only be invoked against
the State by an individual unjustly traduced by the exercise of sovereign authority. To agree with
appellant that an act of a private individual in violation of the Bill of Rights should also be construed
as an act of the State would result in serious legal complications and an absurd interpretation of the
constitution.

Similarly, the admissibility of the evidence procured by an individual effected through private seizure
equally applies, in pari passu, to the alleged violation, non-governmental as it is, of appellant's
constitutional rights to privacy and communication.
2. In his second assignment of error, appellant contends that the lower court erred in convicting him
despite the undisputed fact that his rights under the constitution while under custodial investigation
were not observed.
Again, the contention is without merit, We have carefully examined the records of the case and
found nothing to indicate, as an "undisputed fact", that appellant was not informed of his
constitutional rights or that he gave statements without the assistance of counsel. The law enforcers
testified that accused/appellant was informed of his constitutional rights. It is presumed that they
have regularly performed their duties (See. 5(m), Rule 131) and their testimonies should be given full
faith and credence, there being no evidence to the contrary. What is clear from the records, on the
other hand, is that appellant refused to give any written statement while under investigation as
testified by Atty. Lastimoso of the NBI, Thus:
Fiscal Formoso:
You said that you investigated Mr. and Mrs. Job Reyes. What about the accused here, did
you investigate the accused together with the girl?
WITNESS:
Yes, we have interviewed the accused together with the girl but the accused availed of his
constitutional right not to give any written statement, sir. (TSN, October 8, 1987, p. 62;
Original Records, p. 240)
The above testimony of the witness for the prosecution was not contradicted by the defense on
cross-examination. As borne out by the records, neither was there any proof by the defense that
appellant gave uncounselled confession while being investigated. What is more, we have examined
the assailed judgment of the trial court and nowhere is there any reference made to the testimony of
appellant while under custodial investigation which was utilized in the finding of conviction.
Appellant's second assignment of error is therefore misplaced.
3. Coming now to appellant's third assignment of error, appellant would like us to believe that he was
not the owner of the packages which contained prohibited drugs but rather a certain Michael, a
German national, whom appellant met in a pub along Ermita, Manila: that in the course of their 30minute conversation, Michael requested him to ship the packages and gave him P2,000.00 for the
cost of the shipment since the German national was about to leave the country the next day
(October 15, 1987, TSN, pp. 2-10).
Rather than give the appearance of veracity, we find appellant's disclaimer as incredulous, selfserving and contrary to human experience. It can easily be fabricated. An acquaintance with a
complete stranger struck in half an hour could not have pushed a man to entrust the shipment of four
(4) parcels and shell out P2,000.00 for the purpose and for appellant to readily accede to comply
with the undertaking without first ascertaining its contents. As stated by the trial court, "(a) person
would not simply entrust contraband and of considerable value at that as the marijuana flowering
tops, and the cash amount of P2,000.00 to a complete stranger like the Accused. The Accused, on
the other hand, would not simply accept such undertaking to take custody of the packages and ship
the same from a complete stranger on his mere say-so" (Decision, p. 19, Rollo, p. 91). As to why he
readily agreed to do the errand, appellant failed to explain. Denials, if unsubstantiated by clear and

convincing evidence, are negative self-serving evidence which deserve no weight in law and cannot
be given greater evidentiary weight than the testimony of credible witnesses who testify on
affirmative matters (People v. Esquillo, 171 SCRA 571 [1989]; People vs. Sariol, 174 SCRA 237
[1989]).
Appellant's bare denial is even made more suspect considering that, as per records of the Interpol,
he was previously convicted of possession of hashish by the Kleve Court in the Federal Republic of
Germany on January 1, 1982 and that the consignee of the frustrated shipment, Walter Fierz, also a
Swiss national, was likewise convicted for drug abuse and is just about an hour's drive from
appellant's residence in Zurich, Switzerland (TSN, October 8, 1987, p. 66; Original Records, p. 244;
Decision, p. 21; Rollo, p. 93).
Evidence to be believed, must not only proceed from the mouth of a credible witness, but it must be
credible in itself such as the common experience and observation of mankind can approve as
probable under the circumstances (People v. Alto, 26 SCRA 342 [1968], citing Daggers v. Van Dyke,
37 N.J. Eg. 130; see also People v. Sarda, 172 SCRA 651 [1989]; People v. Sunga, 123 SCRA 327
[1983]); Castaares v. CA, 92 SCRA 567 [1979]). As records further show, appellant did not even
bother to ask Michael's full name, his complete address or passport number. Furthermore, if indeed,
the German national was the owner of the merchandise, appellant should have so indicated in the
contract of shipment (Exh. "B", Original Records, p. 40). On the contrary, appellant signed the
contract as the owner and shipper thereof giving more weight to the presumption that things which a
person possesses, or exercises acts of ownership over, are owned by him (Sec. 5 [j], Rule 131). At
this point, appellant is therefore estopped to claim otherwise.
Premises considered, we see no error committed by the trial court in rendering the assailed
judgment.
WHEREFORE, the judgment of conviction finding appellant guilty beyond reasonable doubt of the
crime charged is hereby AFFIRMED. No costs.
SO ORDERED.
Fernan, C.J., Gutierrez, Jr. and Feliciano, JJ., concur.

Footnotes
* Penned by Judge Romeo J. Callejo.
** It reads: "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."
*** Forged checks.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 107383

February 20, 1996

CECILIA ZULUETA, petitioner,

vs.
COURT OF APPEALS and ALFREDO MARTIN, respondents.
DECISION
MENDOZA, J.:
This is a petition to review the decision of the Court of Appeals, affirming the decision of the Regional
Trial Court of Manila (Branch X) which ordered petitioner to return documents and papers taken by
her from private respondent's clinic without the latter's knowledge and consent.
The facts are as follows:
Petitioner Cecilia Zulueta is the wife of private respondent Alfredo Martin. On March 26, 1982,
petitioner entered the clinic of her husband, a doctor of medicine, and in the presence of her mother,
a driver and private respondent's secretary, forcibly opened the drawers and cabinet in her
husband's clinic and took 157 documents consisting of private correspondence between Dr. Martin
and his alleged paramours, greetings cards, cancelled checks, diaries, Dr. Martin's passport, and
photographs. The documents and papers were seized for use in evidence in a case for legal
separation and for disqualification from the practice of medicine which petitioner had filed against her
husband.
Dr. Martin brought this action below for recovery of the documents and papers and for damages
against petitioner. The case was filed with the Regional Trial Court of Manila, Branch X, which, after
trial, rendered judgment for private respondent, Dr. Alfredo Martin, declaring him "the
capital/exclusive owner of the properties described in paragraph 3 of plaintiff's Complaint or those
further described in the Motion to Return and Suppress" and ordering Cecilia Zulueta and any
person acting in her behalf to a immediately return the properties to Dr. Martin and to pay him
P5,000.00, as nominal damages; P5,000.00, as moral damages and attorney's fees; and to pay the
costs of the suit. The writ of preliminary injunction earlier issued was made final and petitioner
Cecilia Zulueta and her attorneys and representatives were enjoined from "using or
submitting/admitting as evidence" the documents and papers in question. On appeal, the Court of
Appeals affirmed the decision of the Regional Trial Court. Hence this petition.
There is no question that the documents and papers in question belong to private respondent, Dr.
Alfredo Martin, and that they were taken by his wife, the herein petitioner, without his knowledge and
consent. For that reason, the trial court declared the documents and papers to be properties of
private respondent, ordered petitioner to return them to private respondent and enjoined her from
using them in evidence. In appealing from the decision of the Court of Appeals affirming the trial
court's decision, petitioner's only ground is that in Alfredo Martin v. Alfonso Felix, Jr., 1 this Court ruled
that the documents and papers (marked as Annexes A-1 to J-7 of respondent's comment in that

case) were admissible in evidence and, therefore, their use by petitioner's attorney, Alfonso Felix did
not constitute malpractice or gross misconduct, For this reason it is contended that the Court of
Appeals erred in affirming the decision of the trial court instead of dismissing private respondent's
complaint.
Petitioner's contention has no merit. The case against Atty. Felix, Jr. was for disbarment. Among
other things, private respondent, Dr. Alfredo Martin, as complainant in that case, charged that in
using the documents in evidence, Atty. Felix, Jr. committed malpractice or gross misconduct because
of the injunctive order of the trial court. In dismissing the complaint against Atty. Felix, Jr., this Court
took note of the following defense of Atty. Felix; Jr. which it found to be "impressed with merit:" 2

On the alleged malpractice or gross misconduct of respondent [Alfonso Felix, Jr.], he

maintains that:
....
4. When respondent refiled Cecilia's case for legal separation before the Pasig Regional Trial
Court, there was admittedly an order of the Manila Regional Trial Court prohibiting Cecilia
from using the documents Annex "A-1 to J-7." On September 6, 1983, however having
appealed the said order to this Court on a petition for certiorari, this Court issued a
restraining order on aforesaid date which order temporarily set aside the order of the trial
court. Hence, during the enforceability of this Court's order, respondent's request for
petitioner to admit the genuineness and authenticity of the subject annexes cannot be looked
upon as malpractice. Notably, petitioner Dr. Martin finally admitted the truth and authenticity
of the questioned annexes, At that point in time, would it have been malpractice for
respondent to use petitioner's admission as evidence against him in the legal separation
case pending in the Regional Trial Court of Makati? Respondent submits it is not
malpractice.
Significantly, petitioner's admission was done not thru his counsel but by Dr. Martin himself
under oath, Such verified admission constitutes an affidavit, and, therefore, receivable in
evidence against him. Petitioner became bound by his admission. For Cecilia to avail herself
of her husband's admission and use the same in her action for legal separation cannot be
treated as malpractice.
Thus, the acquittal of Atty. Felix, Jr. in the administrative case amounts to no more than a declaration
that his use of the documents and papers for the purpose of securing Dr. Martin's admission as to
their genuiness and authenticity did not constitute a violation of the injunctive order of the trial court.
By no means does the decision in that case establish the admissibility of the documents and papers
in question.
It cannot be overemphasized that if Atty. Felix, Jr. was acquitted of the charge of violating the writ of
preliminary injunction issued by the trial court, it was only because, at the time he used the
documents and papers, enforcement of the order of the trial court was temporarily restrained by this
Court. The TRO issued by this Court was eventually lifted as the petition for certiorari filed by
petitioner against the trial court's order was dismissed and, therefore, the prohibition against the
further use of the documents and papers became effective again.

Indeed the documents and papers in question are inadmissible in evidence. The constitutional
injunction declaring "the privacy of communication and correspondence [to be] inviolable" 3 is no less
applicable simply because it is the wife (who thinks herself aggrieved by her husband's infidelity)
who is the party against whom the constitutional provision is to be enforced. The only exception to
the prohibition in the Constitution is if there is a "lawful order [from a] court or when public safety or
order requires otherwise, as prescribed by law."4 Any violation of this provision renders the evidence
obtained inadmissible "for any purpose in any proceeding." 5
The intimacies between husband and wife do not justify any one of them in breaking the drawers
and cabinets of the other and in ransacking them for any telltale evidence of marital infidelity. A
person, by contracting marriage, does not shed his/her integrity or his right to privacy as an
individual and the constitutional protection is ever available to him or to her.
The law insures absolute freedom of communication between the spouses by making it privileged.
Neither husband nor wife may testify for or against the other without the consent of the affected
spouse while the marriage subsists.6 Neither may be examined without the consent of the other as to
any communication received in confidence by one from the other during the marriage, save for
specified exceptions.7 But one thing is freedom of communication; quite another is a compulsion for
each one to share what one knows with the other. And this has nothing to do with the duty of fidelity
that each owes to the other.
WHEREFORE, the petition for review is DENIED for lack of merit.
SO ORDERED.
Regalado, Romero and Puno, JJ., concur.

Footnotes
1

163 SCRA 111 (1988).

Id. at 120-121, 126.

1973 CONST., Art. IV, 4(1); 1987 CONST., Art. III, 3(1).

Id.

1973 CONST., ART. IV, 4(2); 1987 CONST., Art. III, 3(2).

Rule 130, 22.

Rule 130, 24.

EN BANC
[G.R. No. L-32409. February 27, 1971.]
BACHE & CO. (PHIL.), INC. and FREDERICK E. SEGGERMAN, Petitioners, v. HON. JUDGE VIVENCIO
M. RUIZ, MISAEL P. VERA, in his capacity as Commissioner of Internal Revenue, ARTURO
LOGRONIO, RODOLFO DE LEON, GAVINO VELASQUEZ, MIMIR DELLOSA, NICANOR ALCORDO,
JOHN DOE, JOHN DOE, JOHN DOE, and JOHN DOE, Respondents.
San Juan, Africa, Gonzales & San Agustin, for Petitioners.
Solicitor General Felix Q. Antonio, Assistant Solicitor General Crispin V . Bautista, Solicitor Pedro
A. Ramirez and Special Attorney Jaime M. Maza for Respondents.

DECISION

VILLAMOR, J.:
This is an original action of certiorari, prohibition and mandamus, with prayer for a writ of preliminary
mandatory and prohibitory injunction. In their petition Bache & Co. (Phil.), Inc., a corporation duly organized
and existing under the laws of the Philippines, and its President, Frederick E. Seggerman, pray this Court to
declare null and void Search Warrant No. 2-M-70 issued by respondent Judge on February 25, 1970; to
order respondents to desist from enforcing the same and/or keeping the documents, papers and effects
seized by virtue thereof, as well as from enforcing the tax assessments on petitioner corporation alleged by
petitioners to have been made on the basis of the said documents, papers and effects, and to order the
return of the latter to petitioners. We gave due course to the petition but did not issue the writ of
preliminary injunction prayed for therein.
The pertinent facts of this case, as gathered from record, are as follows:

chanrob1es virtual 1aw library

On February 24, 1970, respondent Misael P. Vera, Commissioner of Internal Revenue, wrote a letter
addressed to respondent Judge Vivencio M. Ruiz requesting the issuance of a search warrant against
petitioners for violation of Section 46(a) of the National Internal Revenue Code, in relation to all other
pertinent provisions thereof, particularly Sections 53, 72, 73, 208 and 209, and authorizing Revenue
Examiner Rodolfo de Leon, one of herein respondents, to make and file the application for search warrant
which was attached to the letter.
In the afternoon of the following day, February 25, 1970, respondent De Leon and his witness, respondent
Arturo Logronio, went to the Court of First Instance of Rizal. They brought with them the following papers:
respondent Veras aforesaid letter-request; an application for search warrant already filled up but still
unsigned by respondent De Leon; an affidavit of respondent Logronio subscribed before respondent De
Leon; a deposition in printed form of respondent Logronio already accomplished and signed by him but not
yet subscribed; and a search warrant already accomplished but still unsigned by respondent Judge.
At that time respondent Judge was hearing a certain case; so, by means of a note, he instructed his Deputy
Clerk of Court to take the depositions of respondents De Leon and Logronio. After the session had
adjourned, respondent Judge was informed that the depositions had already been taken. The stenographer,
upon request of respondent Judge, read to him her stenographic notes; and thereafter, respondent Judge
asked respondent Logronio to take the oath and warned him that if his deposition was found to be false and
without legal basis, he could be charged for perjury. Respondent Judge signed respondent de Leons
application for search warrant and respondent Logronios deposition, Search Warrant No. 2-M-70 was then
sign by respondent Judge and accordingly issued.
Three days later, or on February 28, 1970, which was a Saturday, the BIR agents served the search warrant
petitioners at the offices of petitioner corporation on Ayala Avenue, Makati, Rizal. Petitioners lawyers
protested the search on the ground that no formal complaint or transcript of testimony was attached to the
warrant. The agents nevertheless proceeded with their search which yielded six boxes of documents.
On March 3, 1970, petitioners filed a petition with the Court of First Instance of Rizal praying that the search
warrant be quashed, dissolved or recalled, that preliminary prohibitory and mandatory writs of injunction be

issued, that the search warrant be declared null and void, and that the respondents be ordered to pay
petitioners, jointly and severally, damages and attorneys fees. On March 18, 1970, the respondents, thru
the Solicitor General, filed an answer to the petition. After hearing, the court, presided over by respondent
Judge, issued on July 29, 1970, an order dismissing the petition for dissolution of the search warrant. In the
meantime, or on April 16, 1970, the Bureau of Internal Revenue made tax assessments on petitioner
corporation in the total sum of P2,594,729.97, partly, if not entirely, based on the documents thus seized.
Petitioners came to this Court.
The petition should be granted for the following reasons:

chanrob1es virtual 1aw library

1. Respondent Judge failed to personally examine the complainant and his witness.
The pertinent provisions of the Constitution of the Philippines and of the Revised Rules of Court are:

jgc:chanrobles.com .ph

"(3) 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." (Art. III, Sec. 1, Constitution.)
"SEC. 3. Requisites for issuing search warrant. A search warrant shall not issue but upon probable cause
in connection with one specific offense to be determined by the judge or justice of the peace 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.
"No search warrant shall issue for more than one specific offense.
"SEC. 4. Examination of the applicant. The judge or justice of the peace must, before issuing the warrant,
personally examine on oath or affirmation the complainant and any witnesses he may produce and take
their depositions in writing, and attach them to the record, in addition to any affidavits presented to him."
(Rule 126, Revised Rules of Court.)
The examination of the complainant and the witnesses he may produce, required by Art. III, Sec. 1, par. 3,
of the Constitution, and by Secs. 3 and 4, Rule 126 of the Revised Rules of Court, should be conducted by
the judge himself and not by others. The phrase "which shall be determined by the judge after examination
under oath or affirmation of the complainant and the witnesses he may produce," appearing in the said
constitutional provision, was introduced by Delegate Francisco as an amendment to the draft submitted by
the Sub-Committee of Seven. The following discussion in the Constitutional Convention (Laurel, Proceedings
of the Philippine Constitutional Convention, Vol. III, pp. 755-757) is enlightening:
jgc:chanroble s.com.ph

"SR. ORENSE. Vamos a dejar compaero los piropos y vamos al grano.

En los casos de una necesidad de actuar inmediatamente para que no se frusten los fines de la justicia
mediante el registro inmediato y la incautacion del cuerpo del delito, no cree Su Seoria que causaria cierta
demora el procedimiento apuntado en su enmienda en tal forma que podria frustrar los fines de la justicia o
si Su Seoria encuentra un remedio para esto casos con el fin de compaginar los fines de la justicia con los
derechos del individuo en su persona, bienes etcetera, etcetera.
"SR. FRANCISCO. No puedo ver en la practica el caso hipottico que Su Seoria pregunta por la siguiente
razon: el que solicita un mandamiento de registro tiene que hacerlo por escrito y ese escrito no aparecer en
la Mesa del Juez sin que alguien vaya el juez a presentar ese escrito o peticion de sucuestro. Esa persona
que presenta el registro puede ser el mismo denunciante o alguna persona que solicita dicho mandamiento
de registro. Ahora toda la enmienda en esos casos consiste en que haya peticion de registro y el juez no se
atendra solamente a sea peticion sino que el juez examiner a ese denunciante y si tiene testigos tambin
examiner a los testigos.
"SR. ORENSE. No cree Su Seoria que el tomar le declaracion de ese denunciante por escrito siempre
requeriria algun tiempo?.
"SR. FRANCISCO. Seria cuestio de un par de horas, pero por otro lado minimizamos en todo lo posible las
vejaciones injustas con la expedicion arbitraria de los mandamientos de registro. Creo que entre dos males
debemos escoger. el menor.

"MR. LAUREL. . . . The reason why we are in favor of this amendment is because we are incorporating in our
constitution something of a fundamental character. Now, before a judge could issue a search warrant, he
must be under the obligation to examine personally under oath the complainant and if he has any witness,
the witnesses that he may produce . . ."
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The implementing rule in the Revised Rules of Court, Sec. 4, Rule 126, is more emphatic and candid, for it
requires the judge, before issuing a search warrant, to "personally examine on oath or affirmation the
complainant and any witnesses he may produce . . ."
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Personal examination by the judge of the complainant and his witnesses is necessary to enable him to
determine the existence or non-existence of a probable cause, pursuant to Art. III, Sec. 1, par. 3, of the
Constitution, and Sec. 3, Rule 126 of the Revised Rules of Court, both of which prohibit the issuance of
warrants except "upon probable cause." The determination of whether or not a probable cause exists calls
for the exercise of judgment after a judicial appraisal of facts and should not be allowed to be delegated in
the absence of any rule to the contrary.
In the case at bar, no personal examination at all was conducted by respondent Judge of the complainant
(respondent De Leon) and his witness (respondent Logronio). While it is true that the complainants
application for search warrant and the witness printed-form deposition were subscribed and sworn to before
respondent Judge, the latter did not ask either of the two any question the answer to which could possibly
be the basis for determining whether or not there was probable cause against herein petitioners. Indeed, the
participants seem to have attached so little significance to the matter that notes of the proceedings before
respondent Judge were not even taken. At this juncture it may be well to recall the salient facts. The
transcript of stenographic notes (pp. 61-76, April 1, 1970, Annex J-2 of the Petition) taken at the hearing of
this case in the court below shows that per instruction of respondent Judge, Mr. Eleodoro V. Gonzales,
Special Deputy Clerk of Court, took the depositions of the complainant and his witness, and that
stenographic notes thereof were taken by Mrs. Gaspar. At that time respondent Judge was at the sala
hearing a case. After respondent Judge was through with the hearing, Deputy Clerk Gonzales, stenographer
Gaspar, complainant De Leon and witness Logronio went to respondent Judges chamber and informed the
Judge that they had finished the depositions. Respondent Judge then requested the stenographer to read to
him her stenographic notes. Special Deputy Clerk Gonzales testified as follows:
jgc:chanrobles.com .ph

"A And after finishing reading the stenographic notes, the Honorable Judge requested or instructed them,
requested Mr. Logronio to raise his hand and warned him if his deposition will be found to be false and
without legal basis, he can be charged criminally for perjury. The Honorable Court told Mr. Logronio whether
he affirms the facts contained in his deposition and the affidavit executed before Mr. Rodolfo de Leon.
"Q And thereafter?
"A And thereafter, he signed the deposition of Mr. Logronio.
"Q Who is this he?
"A The Honorable Judge.
"Q The deposition or the affidavit?
"A The affidavit, Your Honor."

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Thereafter, respondent Judge signed the search warrant.

The participation of respondent Judge in the proceedings which led to the issuance of Search Warrant No. 2M-70 was thus limited to listening to the stenographers readings of her notes, to a few words of warning
against the commission of perjury, and to administering the oath to the complainant and his witness. This
cannot be consider a personal examination. If there was an examination at all of the complainant and his
witness, it was the one conducted by the Deputy Clerk of Court. But, as stated, the Constitution and the
rules require a personal examination by the judge. It was precisely on account of the intention of the
delegates to the Constitutional Convention to make it a duty of the issuing judge to personally examine the
complainant and his witnesses that the question of how much time would be consumed by the judge in

examining them came up before the Convention, as can be seen from the record of the proceedings quoted
above. The reading of the stenographic notes to respondent Judge did not constitute sufficient compliance
with the constitutional mandate and the rule; for by that manner respondent Judge did not have the
opportunity to observe the demeanor of the complainant and his witness, and to propound initial and followup questions which the judicial mind, on account of its training, was in the best position to conceive. These
were important in arriving at a sound inference on the all-important question of whether or not there was
probable cause.
2. The search warrant was issued for more than one specific offense.
Search Warrant No. 2-M-70 was issued for" [v]iolation of Sec. 46(a) of the National Internal Revenue Code
in relation to all other pertinent provisions thereof particularly Secs. 53, 72, 73, 208 and 209." The question
is: Was the said search warrant issued "in connection with one specific offense," as required by Sec. 3, Rule
126?
To arrive at the correct answer it is essential to examine closely the provisions of the Tax Code referred to
above. Thus we find the following:
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Sec. 46(a) requires the filing of income tax returns by corporations.

Sec. 53 requires the withholding of income taxes at source.
Sec. 72 imposes surcharges for failure to render income tax returns and for rendering false and fraudulent
returns.
Sec. 73 provides the penalty for failure to pay the income tax, to make a return or to supply the information
required under the Tax Code.
Sec. 208 penalizes" [a]ny person who distills, rectifies, repacks, compounds, or manufactures any article
subject to a specific tax, without having paid the privilege tax therefore, or who aids or abets in the conduct
of illicit distilling, rectifying, compounding, or illicit manufacture of any article subject to specific tax . . .,"
and provides that in the case of a corporation, partnership, or association, the official and/or employee who
caused the violation shall be responsible.
Sec. 209 penalizes the failure to make a return of receipts, sales, business, or gross value of output
removed, or to pay the tax due thereon.
The search warrant in question was issued for at least four distinct offenses under the Tax Code. The first is
the violation of Sec. 46(a), Sec. 72 and Sec. 73 (the filing of income tax returns), which are interrelated.
The second is the violation of Sec. 53 (withholding of income taxes at source). The third is the violation of
Sec. 208 (unlawful pursuit of business or occupation); and the fourth is the violation of Sec. 209 (failure to
make a return of receipts, sales, business or gross value of output actually removed or to pay the tax due
thereon). Even in their classification the six above-mentioned provisions are embraced in two different titles:
Secs. 46(a), 53, 72 and 73 are under Title II (Income Tax); while Secs. 208 and 209 are under Title V
(Privilege Tax on Business and Occupation).
Respondents argue that Stonehill, Et. Al. v. Diokno, Et Al., L-19550, June 19, 1967 (20 SCRA 383), is not
applicable, because there the search warrants were issued for "violation of Central Bank Laws, Internal
Revenue (Code) and Revised Penal Code;" whereas, here Search Warrant No 2-M-70 was issued for violation
of only one code, i.e., the National Internal Revenue Code. The distinction more apparent than real, because
it was precisely on account of the Stonehill incident, which occurred sometime before the present Rules of
Court took effect on January 1, 1964, that this Court amended the former rule by inserting therein the
phrase "in connection with one specific offense," and adding the sentence "No search warrant shall issue for
more than one specific offense," in what is now Sec. 3, Rule 126. Thus we said in Stonehill:
jgc:chanroble s.com.ph

"Such is the seriousness of the irregularities committed in connection with the disputed search warrants,
that this Court deemed it fit to amend Section 3 of Rule 122 of the former Rules of Court that a search
warrant shall not issue but upon probable cause in connection with one specific offense. Not satisfied with
this qualification, the Court added thereto a paragraph, directing that no search warrant shall issue for more
than one specific offense."
3. The search warrant does not particularly describe the things to be seized.

The documents, papers and effects sought to be seized are described in Search Warrant No. 2-M-70 in this
manner:
jgc:chanroble s.com.ph

"Unregistered and private books of accounts (ledgers, journals, columnars, receipts and disbursements
books, customers ledgers); receipts for payments received; certificates of stocks and securities; contracts,
promissory notes and deeds of sale; telex and coded messages; business communications, accounting and
business records; checks and check stubs; records of bank deposits and withdrawals; and records of foreign
remittances, covering the years 1966 to 1970."
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The description does not meet the requirement in Art III, Sec. 1, of the Constitution, and of Sec. 3, Rule 126
of the Revised Rules of Court, that the warrant should particularly describe the things to be seized.
In Stonehill, this Court, speaking thru Mr. Chief Justice Roberto Concepcion, said:

jgc:chanrobles.com .ph

"The grave violation of the Constitution made in the application for the contested search warrants was
compounded by the description therein made of the effects to be searched for and seized, to wit:
chanrob1es virtual 1aw library

Books of accounts, financial records, vouchers, journals, correspondence, receipts, ledgers, portfolios, credit
journals, typewriters, and other documents and/or paper showing all business transactions including
disbursement receipts, balance sheets and related profit and loss statements.
"Thus, the warrants authorized the search for and seizure of records pertaining to all business transactions
of petitioners herein, regardless of whether the transactions were legal or illegal. The warrants sanctioned
the seizure of all records of the petitioners and the aforementioned corporations, whatever their nature, thus
openly contravening the explicit command of our Bill of Rights that the things to be seized be particularly
described as well as tending to defeat its major objective: the elimination of general warrants."
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While the term "all business transactions" does not appear in Search Warrant No. 2-M-70, the said warrant
nevertheless tends to defeat the major objective of the Bill of Rights, i.e., the elimination of general
warrants, for the language used therein is so all-embracing as to include all conceivable records of petitioner
corporation, which, if seized, could possibly render its business inoperative.
In Uy Kheytin, Et. Al. v. Villareal, etc., Et Al., 42 Phil. 886, 896, this Court had occasion to explain the
purpose of the requirement that the warrant should particularly describe the place to be searched and the
things to be seized, to wit:
jgc:chanrobles.com .ph

". . . Both the Jones Law (sec. 3) and General Orders No. 58 (sec. 97) specifically require that a search
warrant should particularly describe the place to be searched and the things to be seized. The evident
purpose and intent of this requirement is to limit the things to be seized to those, and only those,
particularly described in the search warrant to leave the officers of the law with no discretion regarding
what articles they shall seize, to the end that unreasonable searches and seizures may not be made,
that abuses may not be committed. That this is the correct interpretation of this constitutional provision is
borne out by American authorities."
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The purpose as thus explained could, surely and effectively, be defeated under the search warrant issued in
this case.
A search warrant may be said to particularly describe the things to be seized when the description therein is
as specific as the circumstances will ordinarily allow (People v. Rubio; 57 Phil. 384); or when the description
expresses a conclusion of fact not of law by which the warrant officer may be guided in making the
search and seizure (idem., dissent of Abad Santos, J.,); or when the things described are limited to those
which bear direct relation to the offense for which the warrant is being issued (Sec. 2, Rule 126, Revised
Rules of Court). The herein search warrant does not conform to any of the foregoing tests. If the articles
desired to be seized have any direct relation to an offense committed, the applicant must necessarily have
some evidence, other than those articles, to prove the said offense; and the articles subject of search and
seizure should come in handy merely to strengthen such evidence. In this event, the description contained
in the herein disputed warrant should have mentioned, at least, the dates, amounts, persons, and other
pertinent data regarding the receipts of payments, certificates of stocks and securities, contracts,
promissory notes, deeds of sale, messages and communications, checks, bank deposits and withdrawals,
records of foreign remittances, among others, enumerated in the warrant.

Respondents contend that certiorari does not lie because petitioners failed to file a motion for
reconsideration of respondent Judges order of July 29, 1970. The contention is without merit. In the first
place, when the questions raised before this Court are the same as those which were squarely raised in and
passed upon by the court below, the filing of a motion for reconsideration in said court before certiorari can
be instituted in this Court is no longer a prerequisite. (Pajo, etc., Et. Al. v. Ago, Et Al., 108 Phil., 905). In the
second place, the rule requiring the filing of a motion for reconsideration before an application for a writ
of certiorari can be entertained was never intended to be applied without considering the circumstances.
(Matutina v. Buslon, Et Al., 109 Phil., 140.) In the case at bar time is of the essence in view of the tax
assessments sought to be enforced by respondent officers of the Bureau of Internal Revenue against
petitioner corporation, On account of which immediate and more direct action becomes necessary. (Matute
v. Court of Appeals, Et Al., 26 SCRA 768.) Lastly, the rule does not apply where, as in this case, the
deprivation of petitioners fundamental right to due process taints the proceeding against them in the court
below not only with irregularity but also with nullity. (Matute v. Court of Appeals, Et Al., supra.)
It is next contended by respondents that a corporation is not entitled to protection against unreasonable
search and seizures. Again, we find no merit in the contention.
"Although, for the reasons above stated, we are of the opinion that an officer of a corporation which is
charged with a violation of a statute of the state of its creation, or of an act of Congress passed in the
exercise of its constitutional powers, cannot refuse to produce the books and papers of such corporation, we
do not wish to be understood as holding that a corporation is not entitled to immunity, under the 4th
Amendment, against unreasonable searches and seizures. A corporation is, after all, but an association of
individuals under an assumed name and with a distinct legal entity. In organizing itself as a collective body it
waives no constitutional immunities appropriate to such body. Its property cannot be taken without
compensation. It can only be proceeded against by due process of law, and is protected, under the 14th
Amendment, against unlawful discrimination . . ." (Hale v. Henkel, 201 U.S. 43, 50 L. ed. 652.)
"In Linn v. United States, 163 C.C.A. 470, 251 Fed. 476, 480, it was thought that a different rule applied to
a corporation, the ground that it was not privileged from producing its books and papers. But the rights of a
corporation against unlawful search and seizure are to be protected even if the same result might have been
achieved in a lawful way." (Silverthorne Lumber Company, Et. Al. v. United States of America, 251 U.S. 385,
64 L. ed. 319.)
In Stonehill, Et. Al. v. Diokno, Et Al., supra, this Court impliedly recognized the right of a corporation to
object against unreasonable searches and seizures, thus:
jgc:chanroble s.com.ph

"As regards the first group, we hold that petitioners herein have no cause of action to assail the legality of
the contested warrants and of the seizures made in pursuance thereof, for the simple reason that said
corporations have their respective personalities, separate and distinct from the personality of herein
petitioners, regardless of the amount of shares of stock or the interest of each of them in said corporations,
whatever, the offices they hold therein may be. Indeed, it is well settled that the legality of a seizure can be
contested only by the party whose rights have been impaired thereby, and that the objection to an unlawful
search and seizure is purely personal and cannot be availed of by third parties. Consequently, petitioners
herein may not validly object to the use in evidence against them of the documents, papers and things
seized from the offices and premises of the corporations adverted to above, since the right to object to the
admission of said papers in evidence belongs exclusively to the corporations, to whom the seized effects
belong, and may not be invoked by the corporate officers in proceedings against them in their individual
capacity . . ."
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In the Stonehill case only the officers of the various corporations in whose offices documents, papers and
effects were searched and seized were the petitioners. In the case at bar, the corporation to whom the
seized documents belong, and whose rights have thereby been impaired, is itself a petitioner. On that score,
petitioner corporation here stands on a different footing from the corporations in Stonehill.
The tax assessments referred to earlier in this opinion were, if not entirely as claimed by petitioners at
least partly as in effect admitted by respondents based on the documents seized by virtue of Search
Warrant No. 2-M-70. Furthermore, the fact that the assessments were made some one and one-half months
after the search and seizure on February 25, 1970, is a strong indication that the documents thus seized
served as basis for the assessments. Those assessments should therefore not be enforced.
PREMISES CONSIDERED, the petition is granted. Accordingly, Search Warrant No. 2-M-70 issued by
respondent Judge is declared null and void; respondents are permanently enjoined from enforcing the said

search warrant; the documents, papers and effects seized thereunder are ordered to be returned to
petitioners; and respondent officials the Bureau of Internal Revenue and their representatives are
permanently enjoined from enforcing the assessments mentioned in Annex "G" of the present petition, as
well as other assessments based on the documents, papers and effects seized under the search warrant
herein nullified, and from using the same against petitioners in any criminal or other proceeding. No
pronouncement as to costs.
Concepcion, C.J., Dizon, Makalintal, Zaldivar, Fernando, Teehankee and Makasiar, JJ., concur.
Reyes, J.B.L., J., concurs with Mr. Justice Barredo.
Castro, J., concurs in the result.
Separate Opinions
BARREDO, J., concurring:

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I concur.
I agree with the ruling that the search warrants in question violates the specific injunction of Section 3, Rule
126 that "No search warrant shall issue for more than one specific offense." There is no question in my mind
that, as very clearly pointed out by Mr. Justice Villamor, the phrase "for violation of Section 46 (a) of the
National Internal Revenue Code in relation to all other pertinent provisions thereof, particularly Sections 53,
72, 73, 208 and 209" refers to more than one specific offense, considering that the violation of Section 53
which refers to withholding of income taxes at the sources, Section 208 which punishes pursuit of business
or occupation without payment of the corresponding specific or privilege taxes, and Section 209 which
penalizes failure to make a return of receipts sales, business or gross value output actually removed or to
pay the taxes thereon in connection with Title V on Privilege Taxes on Business and Occupation can hardly
be absorbed in a charge of alleged violation of Section 46(a), which merely requires the filing of income tax
returns by corporations, so as to constitute with it a single offense. I perceive here the danger that the
result of the search applied for may be used as basis not only for a charge of violating Section 46(a) but also
and separately of Section 53, 208 and 209. Of course, it is to be admitted that Sections 72 and 73, also
mentioned in the application, are really directly related to Section 46(a) because Section 72 provides for
surcharges for failure to render, returns and for rendering false and fraudulent returns and Section 73 refers
to the penalty for failure to file returns or to pay the corresponding tax. Taken together, they constitute one
single offense penalized under Section 73. I am not and cannot be in favor of any scheme which amounts to
an indirect means of achieving that which not allowed to be done directly. By merely saying that a party is
being charged with violation of one section of the code in relation to a number of other sections thereof
which in truth have no clear or direct bearing with the first is to me condemnable because it is no less than a
shotgun device which trenches on the basic liberties intended to be protected by the unequivocal limitations
imposed by the Constitution and the Rules of Court on the privilege to secure a search warrant with the
aggravating circumstance of being coupled with an attempt to mislead the judge before whom the
application for its issuance is presented.
I cannot close this brief concurrence without expressing my vehement disapproval of the action taken by
respondent internal revenue authorities in using the documents and papers secured during the search, the
legality of which was pending resolution by the court, as basis of an assessment, no matter how highly
motivated such action might have been. This smacks of lack of respect, if not contempt for the court and is
certainly intolerable. At the very least, it appears as an attempt to render the court proceedings moot and
academic, and dealing as this case does with constitutionally protected rights which are part and parcel of
the basic concepts of individual liberty and democracy, the government agents should have been the first
ones to refrain from trying to make a farce of these court proceedings. Indeed, it is to be regretted that the
government agents and the court have acted irregularly, for it is highly doubtful if it would be consistent with
the sacredness of the rights herein found to have been violated to permit the filing of another application
which complies with the constitutional requirements above discussed and the making of another search upon
the return of the papers and documents now in their illegal possession. This could be an instance wherein
taxes properly due the State will probably remain unassessed and unpaid only because the ones in charge of
the execution of the laws did not know how to respect basic constitutional rights and liberties.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-19550

June 19, 1967

HARRY S. STONEHILL, ROBERT P. BROOKS, JOHN J. BROOKS and KARL BECK, petitioners,
vs.
HON. JOSE W. DIOKNO, in his capacity as SECRETARY OF JUSTICE; JOSE LUKBAN, in his
capacity as Acting Director, National Bureau of Investigation; SPECIAL PROSECUTORS
PEDRO D. CENZON, EFREN I. PLANA and MANUEL VILLAREAL, JR. and ASST. FISCAL
MANASES G. REYES; JUDGE AMADO ROAN, Municipal Court of Manila; JUDGE ROMAN
CANSINO, Municipal Court of Manila; JUDGE HERMOGENES CALUAG, Court of First
Instance of Rizal-Quezon City Branch, and JUDGE DAMIAN JIMENEZ, Municipal Court of
Quezon City, respondents.
Paredes, Poblador, Cruz and Nazareno and Meer, Meer and Meer and Juan T. David for petitioners.
Office of the Solicitor General Arturo A. Alafriz, Assistant Solicitor General Pacifico P. de Castro,
Assistant Solicitor General Frine C. Zaballero, Solicitor Camilo D. Quiason and Solicitor C. Padua for
respondents.
CONCEPCION, C.J.:
Upon application of the officers of the government named on the margin1 hereinafter referred to
as Respondents-Prosecutors several judges2 hereinafter referred to as Respondents-Judges
issued, on different dates,3 a total of 42 search warrants against petitioners herein4 and/or the
corporations of which they were officers,5 directed to the any peace officer, to search the persons
above-named and/or the premises of their offices, warehouses and/or residences, and to seize and
take possession of the following personal property to wit:
Books of accounts, financial records, vouchers, correspondence, receipts, ledgers, journals,
portfolios, credit journals, typewriters, and other documents and/or papers showing all
business transactions including disbursements receipts, balance sheets and profit and loss
statements and Bobbins (cigarette wrappers).
as "the subject of the offense; stolen or embezzled and proceeds or fruits of the offense," or "used or
intended to be used as the means of committing the offense," which is described in the applications
adverted to above as "violation of Central Bank Laws, Tariff and Customs Laws, Internal Revenue
(Code) and the Revised Penal Code."
Alleging that the aforementioned search warrants are null and void, as contravening the Constitution
and the Rules of Court because, inter alia: (1) they do not describe with particularity the
documents, books and things to be seized; (2) cash money, not mentioned in the warrants, were
actually seized; (3) the warrants were issued to fish evidence against the aforementioned petitioners

in deportation cases filed against them; (4) the searches and seizures were made in an illegal
manner; and (5) the documents, papers and cash money seized were not delivered to the courts that
issued the warrants, to be disposed of in accordance with law on March 20, 1962, said petitioners
filed with the Supreme Court this original action for certiorari, prohibition, mandamus and injunction,
and prayed that, pending final disposition of the present case, a writ of preliminary injunction be
issued restraining Respondents-Prosecutors, their agents and /or representatives from using the
effects seized as aforementioned or any copies thereof, in the deportation cases already adverted
to, and that, in due course, thereafter, decision be rendered quashing the contested search warrants
and declaring the same null and void, and commanding the respondents, their agents or
representatives to return to petitioners herein, in accordance with Section 3, Rule 67, of the Rules of
Court, the documents, papers, things and cash moneys seized or confiscated under the search
warrants in question.
In their answer, respondents-prosecutors alleged, 6 (1) that the contested search warrants are valid
and have been issued in accordance with law; (2) that the defects of said warrants, if any, were
cured by petitioners' consent; and (3) that, in any event, the effects seized are admissible in
evidence against herein petitioners, regardless of the alleged illegality of the aforementioned
searches and seizures.
On March 22, 1962, this Court issued the writ of preliminary injunction prayed for in the petition.
However, by resolution dated June 29, 1962, the writ was partially lifted or dissolved, insofar as the
papers, documents and things seized from the offices of the corporations above mentioned are
concerned; but, the injunction was maintained as regards the papers, documents and things found
and seized in the residences of petitioners herein.7
Thus, the documents, papers, and things seized under the alleged authority of the warrants in
question may be split into two (2) major groups, namely: (a) those found and seized in the offices of
the aforementioned corporations, and (b) those found and seized in the residences of petitioners
herein.
As regards the first group, we hold that petitioners herein have no cause of action to assail the
legality of the contested warrants and of the seizures made in pursuance thereof, for the simple
reason that said corporations have their respective personalities, separate and distinct from the
personality of herein petitioners, regardless of the amount of shares of stock or of the interest of
each of them in said corporations, and whatever the offices they hold therein may be. 8 Indeed, it is
well settled that the legality of a seizure can be contested only by the party whose rights have been
impaired thereby,9 and that the objection to an unlawful search and seizure is purely personal and
cannot be availed of by third parties. 10 Consequently, petitioners herein may not validly object to the
use in evidence against them of the documents, papers and things seized from the offices and
premises of the corporations adverted to above, since the right to object to the admission of said
papers in evidence belongsexclusively to the corporations, to whom the seized effects belong, and
may not be invoked by the corporate officers in proceedings against them in their individual
capacity. 11 Indeed, it has been held:
. . . that the Government's action in gaining possession of papers belonging to
the corporation did not relate to nor did it affect the personal defendants. If these papers

were unlawfully seized and thereby the constitutional rights of or any one were invaded, they
were the rights of the corporation and not the rights of the other defendants. Next, it is clear
that a question of the lawfulness of a seizure can be raised only by one whose rights have
been invaded. Certainly, such a seizure, if unlawful, could not affect the constitutional rights
of defendants whose property had not been seized or the privacy of whose homes had not
been disturbed; nor could they claim for themselves the benefits of the Fourth Amendment,
when its violation, if any, was with reference to the rights of another. Remus vs. United
States (C.C.A.)291 F. 501, 511. It follows, therefore, that the question of the admissibility of
the evidence based on an alleged unlawful search and seizure does not extend to the
personal defendants but embraces only the corporation whose property was taken. . . . (A
Guckenheimer & Bros. Co. vs. United States, [1925] 3 F. 2d. 786, 789, Emphasis supplied.)
With respect to the documents, papers and things seized in the residences of petitioners herein, the
aforementioned resolution of June 29, 1962, lifted the writ of preliminary injunction previously issued
by this Court,12 thereby, in effect, restraining herein Respondents-Prosecutors from using them in
evidence against petitioners herein.
In connection with said documents, papers and things, two (2) important questions need be settled,
namely: (1) whether the search warrants in question, and the searches and seizures made under the
authority thereof, are valid or not, and (2) if the answer to the preceding question is in the negative,
whether said documents, papers and things may be used in evidence against petitioners herein.
1wph1.t

Petitioners maintain that the aforementioned search warrants are in the nature of general warrants
and that accordingly, the seizures effected upon the authority there of are null and void. In this
connection, the Constitution13 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, 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.
Two points must be stressed in connection with this constitutional mandate, namely: (1) that no
warrant shall issue but upon probable cause, to be determined by the judge in the manner set forth
in said provision; and (2) that the warrant shall particularly describe the things to be seized.
None of these requirements has been complied with in the contested warrants. Indeed, the same
were issued upon applications stating that the natural and juridical person therein named had
committed a "violation of Central Ban Laws, Tariff and Customs Laws, Internal Revenue (Code) and
Revised Penal Code." In other words, nospecific offense had been alleged in said applications. The
averments thereof with respect to the offense committed were abstract. As a consequence, it
was impossible for the judges who issued the warrants to have found the existence of probable
cause, for the same presupposes the introduction of competent proof that the party against whom it
is sought has performed particular acts, or committed specific omissions, violating a given provision
of our criminal laws. As a matter of fact, the applications involved in this case do not allege any
specific acts performed by herein petitioners. It would be the legal heresy, of the highest order, to

convict anybody of a "violation of Central Bank Laws, Tariff and Customs Laws, Internal Revenue
(Code) and Revised Penal Code," as alleged in the aforementioned applications without
reference to any determinate provision of said laws or
To uphold the validity of the warrants in question would be to wipe out completely one of the most
fundamental rights guaranteed in our Constitution, for it would place the sanctity of the domicile and
the privacy of communication and correspondence at the mercy of the whims caprice or passion of
peace officers. This is precisely the evil sought to be remedied by the constitutional provision above
quoted to outlaw the so-called general warrants. It is not difficult to imagine what would happen,
in times of keen political strife, when the party in power feels that the minority is likely to wrest it,
even though by legal means.
Such is the seriousness of the irregularities committed in connection with the disputed search
warrants, that this Court deemed it fit to amend Section 3 of Rule 122 of the former Rules of
Court 14 by providing in its counterpart, under the Revised Rules of Court 15 that "a search warrant
shall not issue but upon probable cause in connection with one specific offense." Not satisfied with
this qualification, the Court added thereto a paragraph, directing that "no search warrant shall issue
for more than one specific offense."
The grave violation of the Constitution made in the application for the contested search warrants was
compounded by the description therein made of the effects to be searched for and seized, to wit:
Books of accounts, financial records, vouchers, journals, correspondence, receipts, ledgers,
portfolios, credit journals, typewriters, and other documents and/or papers showing all
business transactions including disbursement receipts, balance sheets and related profit and
loss statements.
Thus, the warrants authorized the search for and seizure of records pertaining to all business
transactions of petitioners herein, regardless of whether the transactions were legal or illegal. The
warrants sanctioned the seizure of all records of the petitioners and the aforementioned
corporations, whatever their nature, thus openly contravening the explicit command of our Bill of
Rights that the things to be seized be particularly described as well as tending to defeat its
major objective: the elimination of general warrants.
Relying upon Moncado vs. People's Court (80 Phil. 1), Respondents-Prosecutors maintain that, even
if the searches and seizures under consideration were unconstitutional, the documents, papers and
things thus seized are admissible in evidence against petitioners herein. Upon mature deliberation,
however, we are unanimously of the opinion that the position taken in the Moncado case must be
abandoned. Said position was in line with the American common law rule, that the criminal should
not be allowed to go free merely "because the constable has blundered," 16 upon the theory that the
constitutional prohibition against unreasonable searches and seizures is protected by means other
than the exclusion of evidence unlawfully obtained, 17 such as the common-law action for damages
against the searching officer, against the party who procured the issuance of the search warrant and
against those assisting in the execution of an illegal search, their criminal punishment, resistance,
without liability to an unlawful seizure, and such other legal remedies as may be provided by other
laws.

However, most common law jurisdictions have already given up this approach and eventually
adopted the exclusionary rule, realizing that this is the only practical means of enforcing the
constitutional injunction against unreasonable searches and seizures. In the language of Judge
Learned Hand:
As we understand it, the reason for the exclusion of evidence competent as such, which has
been unlawfully acquired, is that exclusion is the only practical way of enforcing the
constitutional privilege. In earlier times the action of trespass against the offending official
may have been protection enough; but that is true no longer. Only in case the prosecution
which itself controls the seizing officials, knows that it cannot profit by their wrong will that
wrong be repressed.18
In fact, over thirty (30) years before, the Federal Supreme Court had already declared:
If letters and private documents can thus be seized and held and used in evidence against a
citizen accused of an offense, the protection of the 4th Amendment, declaring his rights to be
secure against such searches and seizures, is of no value, and, so far as those thus placed
are concerned, might as well be stricken from the Constitution. The efforts of the courts and
their officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided
by the sacrifice of those great principles established by years of endeavor and suffering
which have resulted in their embodiment in the fundamental law of the land.19
This view was, not only reiterated, but, also, broadened in subsequent decisions on the same
Federal Court. 20After reviewing previous decisions thereon, said Court held, in Mapp vs.
Ohio (supra.):
. . . Today we once again examine the Wolf's constitutional documentation of the right of
privacy free from unreasonable state intrusion, and after its dozen years on our books, are
led by it to close the only courtroom door remaining open to evidence secured by official
lawlessness in flagrant abuse of that basic right, reserved to all persons as a specific
guarantee against that very same unlawful conduct. We hold that all evidence obtained by
searches and seizures in violation of the Constitution is, by that same authority, inadmissible
in a State.
Since the Fourth Amendment's right of privacy has been declared enforceable against the
States through the Due Process Clause of the Fourteenth, it is enforceable against them by
the same sanction of exclusion as it used against the Federal Government. Were it
otherwise, then just as without the Weeks rule the assurance against unreasonable federal
searches and seizures would be "a form of words," valueless and underserving of mention in
a perpetual charter of inestimable human liberties, so too, without that rule the freedom from
state invasions of privacy would be so ephemeral and so neatly severed from its conceptual
nexus with the freedom from all brutish means of coercing evidence as not to permit this
Court's high regard as a freedom "implicit in the concept of ordered liberty." At the time that
the Court held in Wolf that the amendment was applicable to the States through the Due
Process Clause, the cases of this Court as we have seen, had steadfastly held that as to
federal officers the Fourth Amendment included the exclusion of the evidence seized in

violation of its provisions. Even Wolf "stoutly adhered" to that proposition. The right to when
conceded operatively enforceable against the States, was not susceptible of destruction by
avulsion of the sanction upon which its protection and enjoyment had always been deemed
dependent under the Boyd, Weeks and Silverthorne Cases. Therefore, in extending the
substantive protections of due process to all constitutionally unreasonable searches state
or federal it was logically and constitutionally necessarily that the exclusion doctrine an
essential part of the right to privacy be also insisted upon as an essential ingredient of the
right newly recognized by the Wolf Case. In short, the admission of the new constitutional
Right by Wolf could not tolerate denial of its most important constitutional privilege, namely,
the exclusion of the evidence which an accused had been forced to give by reason of the
unlawful seizure. To hold otherwise is to grant the right but in reality to withhold its privilege
and enjoyment. Only last year the Court itself recognized that the purpose of the
exclusionary rule to "is to deter to compel respect for the constitutional guaranty in the
only effectively available way by removing the incentive to disregard it" . . . .
The ignoble shortcut to conviction left open to the State tends to destroy the entire system of
constitutional restraints on which the liberties of the people rest. Having once recognized that
the right to privacy embodied in the Fourth Amendment is enforceable against the States,
and that the right to be secure against rude invasions of privacy by state officers is, therefore
constitutional in origin, we can no longer permit that right to remain an empty promise.
Because it is enforceable in the same manner and to like effect as other basic rights secured
by its Due Process Clause, we can no longer permit it to be revocable at the whim of any
police officer who, in the name of law enforcement itself, chooses to suspend its enjoyment.
Our decision, founded on reason and truth, gives to the individual no more than that which
the Constitution guarantees him to the police officer no less than that to which honest law
enforcement is entitled, and, to the courts, that judicial integrity so necessary in the true
administration of justice. (emphasis ours.)
Indeed, the non-exclusionary rule is contrary, not only to the letter, but also, to the spirit of the
constitutional injunction against unreasonable searches and seizures. To be sure, if the applicant for
a search warrant has competent evidence to establish probable cause of the commission of a given
crime by the party against whom the warrant is intended, then there is no reason why the applicant
should not comply with the requirements of the fundamental law. Upon the other hand, if he has no
such competent evidence, then it is not possible for the Judge to find that there is probable cause,
and, hence, no justification for the issuance of the warrant. The only possible explanation (not
justification) for its issuance is the necessity of fishing evidence of the commission of a crime. But,
then, this fishing expedition is indicative of the absence of evidence to establish a probable cause.
Moreover, the theory that the criminal prosecution of those who secure an illegal search warrant
and/or make unreasonable searches or seizures would suffice to protect the constitutional guarantee
under consideration, overlooks the fact that violations thereof are, in general, committed By agents
of the party in power, for, certainly, those belonging to the minority could not possibly abuse a power
they do not have. Regardless of the handicap under which the minority usually but,
understandably finds itself in prosecuting agents of the majority, one must not lose sight of the
fact that the psychological and moral effect of the possibility 21 of securing their conviction, is watered
down by the pardoning power of the party for whose benefit the illegality had been committed.

In their Motion for Reconsideration and Amendment of the Resolution of this Court dated June 29,
1962, petitioners allege that Rooms Nos. 81 and 91 of Carmen Apartments, House No. 2008, Dewey
Boulevard, House No. 1436, Colorado Street, and Room No. 304 of the Army-Navy Club, should be
included among the premises considered in said Resolution as residences of herein petitioners,
Harry S. Stonehill, Robert P. Brook, John J. Brooks and Karl Beck, respectively, and that,
furthermore, the records, papers and other effects seized in the offices of the corporations above
referred to include personal belongings of said petitioners and other effects under their exclusive
possession and control, for the exclusion of which they have a standing under the latest rulings of
the federal courts of federal courts of the United States. 22
We note, however, that petitioners' theory, regarding their alleged possession of and control over the
aforementioned records, papers and effects, and the alleged "personal" nature thereof, has Been
Advanced, notin their petition or amended petition herein, but in the Motion for Reconsideration and
Amendment of the Resolution of June 29, 1962. In other words, said theory would appear to be
readjustment of that followed in said petitions, to suit the approach intimated in the Resolution
sought to be reconsidered and amended. Then, too, some of the affidavits or copies of alleged
affidavits attached to said motion for reconsideration, or submitted in support thereof, contain either
inconsistent allegations, or allegations inconsistent with the theory now advanced by petitioners
herein.
Upon the other hand, we are not satisfied that the allegations of said petitions said motion for
reconsideration, and the contents of the aforementioned affidavits and other papers submitted in
support of said motion, have sufficiently established the facts or conditions contemplated in the
cases relied upon by the petitioners; to warrant application of the views therein expressed, should
we agree thereto. At any rate, we do not deem it necessary to express our opinion thereon, it being
best to leave the matter open for determination in appropriate cases in the future.
We hold, therefore, that the doctrine adopted in the Moncado case must be, as it is hereby,
abandoned; that the warrants for the search of three (3) residences of herein petitioners, as
specified in the Resolution of June 29, 1962, are null and void; that the searches and seizures
therein made are illegal; that the writ of preliminary injunction heretofore issued, in connection with
the documents, papers and other effects thus seized in said residences of herein petitioners is
hereby made permanent; that the writs prayed for are granted, insofar as the documents, papers
and other effects so seized in the aforementioned residences are concerned; that the
aforementioned motion for Reconsideration and Amendment should be, as it is hereby, denied; and
that the petition herein is dismissed and the writs prayed for denied, as regards the documents,
papers and other effects seized in the twenty-nine (29) places, offices and other premises
enumerated in the same Resolution, without special pronouncement as to costs.
It is so ordered.
Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar and Sanchez, JJ., concur.
CASTRO, J., concurring and dissenting:

From my analysis of the opinion written by Chief Justice Roberto Concepcion and from the import of
the deliberations of the Court on this case, I gather the following distinct conclusions:
1. All the search warrants served by the National Bureau of Investigation in this case are
general warrants and are therefore proscribed by, and in violation of, paragraph 3 of section
1 of Article III (Bill of Rights) of the Constitution;
2. All the searches and seizures conducted under the authority of the said search warrants
were consequently illegal;
3. The non-exclusionary rule enunciated in Moncado vs. People, 80 Phil. 1, should be, and is
declared, abandoned;
4. The search warrants served at the three residences of the petitioners
are expressly declared null and void the searches and seizures therein made
are expressly declared illegal; and the writ of preliminary injunction heretofore issued against
the use of the documents, papers and effect seized in the said residences is made
permanent; and
5. Reasoning that the petitioners have not in their pleadings satisfactorily demonstrated that
they have legal standing to move for the suppression of the documents, papers and effects
seized in the places other than the three residences adverted to above, the opinion written
by the Chief Justice refrains from expresslydeclaring as null and void the such warrants
served at such other places and as illegal the searches and seizures made therein, and
leaves "the matter open for determination in appropriate cases in the future."
It is precisely the position taken by the Chief Justice summarized in the immediately preceding
paragraph (numbered 5) with which I am not in accord.
I do not share his reluctance or unwillingness to expressly declare, at this time, the nullity of the
search warrants served at places other than the three residences, and the illegibility of the searches
and seizures conducted under the authority thereof. In my view even the exacerbating passions and
prejudices inordinately generated by the environmental political and moral developments of this case
should not deter this Court from forthrightly laying down the law not only for this case but as well for
future cases and future generations. All the search warrants, without exception, in this case are
admittedly general, blanket and roving warrants and are therefore admittedly and indisputably
outlawed by the Constitution; and the searches and seizures made were therefore unlawful. That the
petitioners, let us assume in gratia argumente, have no legal standing to ask for the suppression of
the papers, things and effects seized from places other than their residences, to my mind, cannot in
any manner affect, alter or otherwise modify the intrinsic nullity of the search warrants and the
intrinsic illegality of the searches and seizures made thereunder. Whether or not the petitioners
possess legal standing the said warrants are void and remain void, and the searches and seizures
were illegal and remain illegal. No inference can be drawn from the words of the Constitution that
"legal standing" or the lack of it is a determinant of the nullity or validity of a search warrant or of the
lawfulness or illegality of a search or seizure.

On the question of legal standing, I am of the conviction that, upon the pleadings submitted to this
Court the petitioners have the requisite legal standing to move for the suppression and return of the
documents, papers and effects that were seized from places other than their family residences.
Our constitutional provision on searches and seizures was derived almost verbatim from the Fourth
Amendment to the United States Constitution. In the many years of judicial construction and
interpretation of the said constitutional provision, our courts have invariably regarded as doctrinal the
pronouncement made on the Fourth Amendment by federal courts, especially the Federal Supreme
Court and the Federal Circuit Courts of Appeals.
The U.S. doctrines and pertinent cases on standing to move for the suppression or return of
documents, papers and effects which are the fruits of an unlawful search and seizure, may be
summarized as follows; (a) ownership of documents, papers and effects gives "standing;" (b)
ownership and/or control or possession actual or constructive of premises searched gives
"standing"; and (c) the "aggrieved person" doctrine where the search warrant and the sworn
application for search warrant are "primarily" directed solely and exclusively against the "aggrieved
person," gives "standing."
An examination of the search warrants in this case will readily show that, excepting three, all were
directed against the petitioners personally. In some of them, the petitioners were named personally,
followed by the designation, "the President and/or General Manager" of the particular corporation.
The three warrants excepted named three corporate defendants. But the
"office/house/warehouse/premises" mentioned in the said three warrants were also the same
"office/house/warehouse/premises" declared to be owned by or under the control of the petitioners in
all the other search warrants directed against the petitioners and/or "the President and/or General
Manager" of the particular corporation. (see pages 5-24 of Petitioners' Reply of April 2, 1962). The
searches and seizures were to be made, and were actually made, in the
"office/house/warehouse/premises" owned by or under the control of the petitioners.
Ownership of matters seized gives "standing."
Ownership of the properties seized alone entitles the petitioners to bring a motion to return and
suppress, and gives them standing as persons aggrieved by an unlawful search and seizure
regardless of their location at the time of seizure. Jones vs. United States, 362 U.S. 257, 261 (1960)
(narcotics stored in the apartment of a friend of the defendant); Henzel vs. United States, 296 F. 2d.
650, 652-53 (5th Cir. 1961), (personal and corporate papers of corporation of which the defendant
was president), United States vs. Jeffers, 342 U.S. 48 (1951) (narcotics seized in an apartment not
belonging to the defendant); Pielow vs. United States, 8 F. 2d 492, 493 (9th Cir. 1925) (books seized
from the defendant's sister but belonging to the defendant); Cf. Villano vs. United States, 310 F. 2d
680, 683 (10th Cir. 1962) (papers seized in desk neither owned by nor in exclusive possession of the
defendant).
In a very recent case (decided by the U.S. Supreme Court on December 12, 1966), it was held that
under the constitutional provision against unlawful searches and seizures, a person places himself
or his property within a constitutionally protected area, be it his home or his office, his hotel room or
his automobile:

Where the argument falls is in its misapprehension of the fundamental nature and scope of
Fourth Amendment protection. What the Fourth Amendment protects is the security a man
relies upon when heplaces himself or his property within a constitutionally protected area, be
it his home or his office, his hotel room or his automobile. There he is protected from
unwarranted governmental intrusion. And when he puts some thing in his filing cabinet, in his
desk drawer, or in his pocket, he has the right to know it will be secure from an unreasonable
search or an unreasonable seizure. So it was that the Fourth Amendment could not tolerate
the warrantless search of the hotel room in Jeffers, the purloining of the petitioner's private
papers in Gouled, or the surreptitious electronic surveilance in Silverman. Countless other
cases which have come to this Court over the years have involved a myriad of differing
factual contexts in which the protections of the Fourth Amendment have been appropriately
invoked. No doubt, the future will bring countless others. By nothing we say here do we
either foresee or foreclose factual situations to which the Fourth Amendment may be
applicable. (Hoffa vs. U.S., 87 S. Ct. 408 (December 12, 1966). See also U.S. vs. Jeffers,
342 U.S. 48, 72 S. Ct. 93 (November 13, 1951). (Emphasis supplied).
Control of premises searched gives "standing."
Independent of ownership or other personal interest in the records and documents seized, the
petitioners have standing to move for return and suppression by virtue of their proprietary or
leasehold interest in many of the premises searched. These proprietary and leasehold interests have
been sufficiently set forth in their motion for reconsideration and need not be recounted here, except
to emphasize that the petitioners paid rent, directly or indirectly, for practically all the premises
searched (Room 91, 84 Carmen Apts; Room 304, Army & Navy Club; Premises 2008, Dewey
Boulevard; 1436 Colorado Street); maintained personal offices within the corporate offices (IBMC,
USTC); had made improvements or furnished such offices; or had paid for the filing cabinets in
which the papers were stored (Room 204, Army & Navy Club); and individually, or through their
respective spouses, owned the controlling stock of the corporations involved. The petitioners'
proprietary interest in most, if not all, of the premises searched therefore independently gives them
standing to move for the return and suppression of the books, papers and affects seized therefrom.
In Jones vs. United States, supra, the U.S. Supreme Court delineated the nature and extent of the
interest in the searched premises necessary to maintain a motion to suppress. After reviewing what
it considered to be the unduly technical standard of the then prevailing circuit court decisions, the
Supreme Court said (362 U.S. 266):
We do not lightly depart from this course of decisions by the lower courts. We are
persuaded, however, that it is unnecessarily and ill-advised to import into the law
surrounding the constitutional right to be free from unreasonable searches and seizures
subtle distinctions, developed and refined by the common law in evolving the body of private
property law which, more than almost any other branch of law, has been shaped by
distinctions whose validity is largely historical. Even in the area from which they derive, due
consideration has led to the discarding of those distinctions in the homeland of the common
law. See Occupiers' Liability Act, 1957, 5 and 6 Eliz. 2, c. 31, carrying out Law Reform
Committee, Third Report, Cmd. 9305. Distinctions such as those between "lessee",
"licensee," "invitee," "guest," often only of gossamer strength, ought not be determinative in

fashioning procedures ultimately referable to constitutional safeguards. See also Chapman

vs. United States, 354 U.S. 610, 616-17 (1961).
It has never been held that a person with requisite interest in the premises searched must own the
property seized in order to have standing in a motion to return and suppress. In Alioto vs. United
States, 216 F. Supp. 48 (1963), a Bookkeeper for several corporations from whose apartment the
corporate records were seized successfully moved for their return. In United States vs. Antonelli,
Fireworks Co., 53 F. Supp. 870, 873 (W D. N. Y. 1943), the corporation's president successfully
moved for the return and suppression is to him of both personal and corporate documents seized
from his home during the course of an illegal search:
The lawful possession by Antonelli of documents and property, "either his own or the
corporation's was entitled to protection against unreasonable search and seizure. Under the
circumstances in the case at bar, the search and seizure were unreasonable and unlawful.
The motion for the return of seized article and the suppression of the evidence so obtained
should be granted. (Emphasis supplied).
Time was when only a person who had property in interest in either the place searched or the
articles seize had the necessary standing to invoke the protection of the exclusionary rule. But
in MacDonald vs. Unite States, 335 U.S. 461 (1948), Justice Robert Jackson joined by Justice Felix
Frankfurter, advanced the view that "even a guest may expect the shelter of the rooftree he is under
against criminal intrusion." This view finally became the official view of the U.S. Supreme Court and
was articulated in United States vs. Jeffers, 432 U.S 48 (1951). Nine years later, in 1960, in Jones
vs. Unite States, 362 U.S. 257, 267, the U.S. Supreme Court went a step further. Jones was a mere
guest in the apartment unlawfully searched but the Court nonetheless declared that the exclusionary
rule protected him as well. The concept of "person aggrieved by an unlawful search and seizure"
was enlarged to include "anyone legitimately on premise where the search occurs."
Shortly after the U.S. Supreme Court's Jones decision the U.S. Court of Appeals for the Fifth Circuit
held that the defendant organizer, sole stockholder and president of a corporation had standing in a
mail fraud prosecution against him to demand the return and suppression of corporate
property. Henzel vs. United States, 296 F 2d 650, 652 (5th Cir. 1961), supra. The court conclude that
the defendant had standing on two independent grounds:First he had a sufficient interest in the
property seized, and second he had an adequate interest in the premises searched (just like in
the case at bar). A postal inspector had unlawfully searched the corporation' premises and had
seized most of the corporation's book and records. Looking to Jones, the court observed:
Jones clearly tells us, therefore, what is not required qualify one as a "person aggrieved by
an unlawful search and seizure." It tells us that appellant should not have been precluded
from objecting to the Postal Inspector's search and seizure of the corporation's books and
records merely because the appellant did not show ownership or possession of the books
and records or a substantial possessory interest in the invade premises . . . (Henzel vs.
United States, 296 F. 2d at 651). .
Henzel was soon followed by Villano vs. United States, 310 F. 2d 680, 683, (10th Cir. 1962).
In Villano, police officers seized two notebooks from a desk in the defendant's place of employment;

the defendant did not claim ownership of either; he asserted that several employees (including
himself) used the notebooks. The Court held that the employee had a protected interest and that
there also was an invasion of privacy. Both Henzel andVillano considered also the fact that the
search and seizure were "directed at" the moving defendant. Henzel vs. United States, 296 F. 2d at
682; Villano vs. United States, 310 F. 2d at 683.
In a case in which an attorney closed his law office, placed his files in storage and went to Puerto
Rico, the Court of Appeals for the Eighth Circuit recognized his standing to move to quash as
unreasonable search and seizure under the Fourth Amendment of the U.S. Constitution a grand jury
subpoena duces tecum directed to the custodian of his files. The Government contended that the
petitioner had no standing because the books and papers were physically in the possession of the
custodian, and because the subpoena was directed against the custodian. The court rejected the
contention, holding that
Schwimmer legally had such possession, control and unrelinquished personal rights in the
books and papers as not to enable the question of unreasonable search and seizure to be
escaped through the mere procedural device of compelling a third-party naked possessor to
produce and deliver them. Schwimmer vs. United States, 232 F. 2d 855, 861 (8th Cir. 1956).
Aggrieved person doctrine where the search warrant s primarily directed against said person
gives "standing."
The latest United States decision squarely in point is United States vs. Birrell, 242 F. Supp. 191
(1965, U.S.D.C. S.D.N.Y.). The defendant had stored with an attorney certain files and papers, which
attorney, by the name of Dunn, was not, at the time of the seizing of the records, Birrell's attorney. *
Dunn, in turn, had stored most of the records at his home in the country and on a farm which,
according to Dunn's affidavit, was under his (Dunn's) "control and management." The papers turned
out to be private, personal and business papers together with corporate books and records of certain
unnamed corporations in which Birrell did not even claim ownership. (All of these type records were
seized in the case at bar). Nevertheless, the search in Birrell was held invalid by the court which held
that even though Birrell did not own the premises where the records were stored, he had "standing"
to move for the return of all the papers and properties seized. The court, relying on Jones vs.
U.S.,supra; U.S. vs. Antonelli Fireworks Co., 53 F. Supp. 870, Aff'd 155 F. 2d 631: Henzel vs. U.S.,
supra; andSchwimmer vs. U.S., supra, pointed out that
It is overwhelmingly established that the searches here in question were directed solely and
exclusively against Birrell. The only person suggested in the papers as having violated the
law was Birrell. The first search warrant described the records as having been used "in
committing a violation of Title 18, United States Code, Section 1341, by the use of the mails
by one Lowell M. Birrell, . . ." The second search warrant was captioned: "United States of
America vs. Lowell M. Birrell. (p. 198)
Possession (actual or constructive), no less than ownership, gives standing to move to
suppress. Such was the rule even before Jones. (p. 199)

If, as thus indicated Birrell had at least constructive possession of the records stored with
Dunn, it matters not whether he had any interest in the premises searched. See also Jeffers
v. United States, 88 U.S. Appl. D.C. 58, 187 F. 2d 498 (1950), affirmed 432 U.S. 48, 72 S. Ct.
93, 96 L. Ed. 459 (1951).
The ruling in the Birrell case was reaffirmed on motion for reargument; the United States did not
appeal from this decision. The factual situation in Birrell is strikingly similar to the case of the present
petitioners; as in Birrell, many personal and corporate papers were seized from premises not
petitioners' family residences; as in Birrell, the searches were "PRIMARILY DIRECTED SOLETY
AND EXCLUSIVELY" against the petitioners. Still both types of documents were suppressed
in Birrell because of the illegal search. In the case at bar, the petitioners connection with the
premises raided is much closer than in Birrell.
Thus, the petitioners have full standing to move for the quashing of all the warrants regardless
whether these were directed against residences in the narrow sense of the word, as long as the
documents were personal papers of the petitioners or (to the extent that they were corporate papers)
were held by them in a personal capacity or under their personal control.
Prescinding a from the foregoing, this Court, at all events, should order the return to the petitioners
all personaland private papers and effects seized, no matter where these were seized, whether from
their residences or corporate offices or any other place or places. The uncontradicted sworn
statements of the petitioners in their, various pleadings submitted to this Court indisputably show that
amongst the things seized from the corporate offices and other places
were personal and private papers and effects belonging to the petitioners.
If there should be any categorization of the documents, papers and things which where the objects
of the unlawful searches and seizures, I submit that the grouping should be:
(a) personal or private papers of the petitioners were they were unlawfully seized, be it their family
residences offices, warehouses and/or premises owned and/or possessed (actually or
constructively) by them as shown in all the search and in the sworn applications filed in securing the
void search warrants and (b) purely corporate papers belonging to corporations. Under such
categorization or grouping, the determination of which unlawfully seized papers, documents and
things arepersonal/private of the petitioners or purely corporate papers will have to be left to the
lower courts which issued the void search warrants in ultimately effecting the suppression and/or
return of the said documents.
And as unequivocally indicated by the authorities above cited, the petitioners likewise have clear
legal standing to move for the suppression of purely corporate papers as "President and/or General
Manager" of the corporations involved as specifically mentioned in the void search warrants.
Finally, I must articulate my persuasion that although the cases cited in my disquisition were criminal
prosecutions, the great clauses of the constitutional proscription on illegal searches and seizures do
not withhold the mantle of their protection from cases not criminal in origin or nature.
Footnotes

Hon. Jose W. Diokno, in his capacity as Secretary of Justice, Jose Lukban, in his capacity
as Acting Director, National Bureau of Investigation, Special Prosecutors Pedro D. Cenzon,
Efren I. Plana and Manuel Villareal, Jr. and Assistant Fiscal Maneses G. Reyes, City of
Manila.
1

Hon. Amado Roan, Judge of the Municipal (now City) Court of Manila, Hon. Roman
Cansino, Judge of the Municipal (now City) Court of Manila, Hon. Hermogenes Caluag,
Judge of the Court of First Instance of Rizal, Quezon City Branch, Hon. Eulogio Mencias,
Judge of the Court of First Instance of Rizal, Pasig Branch, and Hon. Damian Jimenez,
Judge of the Municipal (now City) Court of Quezon City.
2

Covering the period from March 3 to March 9, 1962.

Harry S. Stonehill, Robert P. Brooks, John J. Brooks and Karl Beck.

U.S. Tobacco Corporation, Atlas Cement Corporation, Atlas Development Corporation, Far
East Publishing Corporation (Evening News), Investment Inc., Industrial Business
Management Corporation, General Agricultural Corporation, American Asiatic Oil
Corporation, Investment Management Corporation, Holiday Hills, Inc., Republic Glass
Corporation, Industrial and Business Management Corporation, United Housing Corporation,
The Philippine Tobacco-Flue-Curing and Redrying Corporation, Republic Real Estate
Corporation and Merconsel Corporation.
5

Inter alia.

"Without prejudice to explaining the reasons for this order in the decision to be rendered in
the case, the writ of preliminary injunction issued by us in this case against the use of the
papers, documents and things from the following premises: (1) The office of the U.S.
Tobacco Corp. at the Ledesma Bldg., Arzobispo St., Manila; (2) 932 Gonzales, Ermita,
Manila; (3) office at Atlanta St. bounded by Chicago, 15th & 14th Sts., Port Area, Manila; (4)
527 Rosario St., Mla.; (5) Atlas Cement Corp. and/or Atlas Development Corp., Magsaysay
Bldg., San Luis, Ermita, Mla.; (6) 205 13th St., Port Area, Mla.; (7) No. 224 San Vicente St.,
Mla.; (8) Warehouse No. 2 at Chicago & 23rd Sts., Mla.; (9) Warehouse at 23rd St., between
Muelle de San Francisco & Boston, Port Area, Mla.; (10) Investment Inc., 24th St. & Boston;
(11) IBMC, Magsaysay Bldg., San Luis, Mla.; (12) General Agricultural Corp., Magsaysay
Bldg., San Luis, Manila; (13) American Asiatic Oil Corp., Magsaysay Bldg., San Luis, Manila;
(14) Room 91, Carmen Apts.; Dewey Blvd., Manila; (15) Warehouse Railroad St. between 17
& 12 Sts., Port Area, Manila; (16) Rm. 304, Army & Navy Club, Manila, South Blvd.; (17)
Warehouse Annex Bldg., 18th St., Port Area, Manila; (18) Rm. 81 Carmen Apts.; Dewey
Blvd., Manila; (19) Holiday Hills, Inc., Trinity Bldg., San Luis, Manila; (20) No. 2008 Dewey
Blvd.; (21) Premises of 24th St. & Boston, Port Area, Manila; (22) Republic Glass Corp.,
Trinity Bldg., San Luis, Manila; (23) IBMC, 2nd Floor, Trinity Bldg., San Luis, Manila; (24)
IBMC, 2nd Flr., Gochangco Blg., 610 San Luis, Manila; (25) United Housing Corp., Trinity
Bldg., San Luis, Manila; (26) Republic Real Estate Corp., Trinity Bldg., San Luis, Manila; (27)
1437 Colorado St., Malate, Manila; (28) Phil. Tobacco Flue-Curing, Magsaysay Bldg., San
Luis, Manila and (29) 14 Baldwin St., Sta. Cruz, Manila, in the hearing of Deportation Cases
7

Nos. R-953 and 955 against petitioners, before the Deportation Board, is hereby lifted. The
preliminary injunction shall continue as to the papers, documents and things found in the
other premises namely: in those of the residences of petitioners, as follows: (1) 13 Narra
Road, Forbes Park, Makati, Rizal; (2) 15 Narra Road, Forbes Park, Makati, Rizal; and (3) 8
Urdaneta Avenue, Urdaneta Village, Makati, Rizal."
8

Newingham, et al. vs. United States, 4 F. 2d. 490.

Lesis vs. U.S., 6 F. 2d. 22.

In re Dooley (1931) 48 F 2d. 121; Rouda vs. U.S., 10 F. 60 2d 916; Lusco vs. U.S. 287 F.
69; Ganci vs. U.S., 287 F. Moris vs. U.S., 26 F. 2d 444.
10

U.S. vs. Gass 17 F. 2d. 997; People vs. Rubio, 57 Phil. 384, 394.

11

12

On March 22, 1962.

13

Section 1, paragraph 3, of Article III thereof.

Reading: . . . A search warrant shall not issue but upon probable cause to be determined by
the judge or justice of the peace 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.
14

. . . A search warrant shall not issue but upon probable cause in connection with one
specific offense to be determined by the judge or justice of the peace after examination
under oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and persons or things to be seized.
15

No search warrant shall issue for more than one specific offense. (Sec. 3, Rule 126.)
16

People vs. Defore, 140 NE 585.

17

Wolf vs. Colorado, 93 L. ed. 1782.

18

Pugliese (1945) 133 F. 2d. 497.

Weeks vs. United States (1914) 232 U.S. 383, 58 L. ed. 652, 34 S. Ct. 341; emphasis
supplied.
19

Gouled vs. United States (1921) 255 US 298, 65 L. ed, 647, 41 S. Ct. 261; Olmstead vs.
United States (1928) 277 US 438, 72 L. ed. 944, 48 S. Ct. 564, Wolf vs. Colorado, 338 US
25, 93 L. ed. 1782, 69 S. Ct. 1359; Elkins vs. United States, 364 US 206, 4 L. ed. 2d. 1669,
80 S. Ct. 1437 (1960); Mapp vs. Ohio (1961), 367 US 643, 6 L. ed. 2d. 1081, 81 S. Ct. 1684.
20

21

Even if remote.

Particularly, Jones vs. U.S. 362 U.S. 257; Alioto vs. U.S., 216 Fed. Supp. 49: U.S. vs.
Jeffries, 72 S. Ct. 93: Villano vs, U.S., 300 Fed. 2d 680; and Henzel vs. U.S., 296 Fed. 2d
650.
22

CASTRO, J., CONCURRING AND DISSENTING:

*

Attorney-client relationship played no part in the decision of the case.

THIRD DIVISION
[G.R. No. 99050. September 2, 1992.]
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. CONWAY B. OMAWENG, Accused-Appellant.
The Solicitor General for Plaintiff-Appellee.
Joel C. Obar for Accused-Appellant.

SYLLABUS

1. CRIMINAL LAW; DANGEROUS DRUG ACT; ILLEGAL POSSESSION OF PROHIBITED DRUGS; PROOF OF
OWNERSHIP THEREOF BY THE ACCUSED NOT REQUIRED. The accused contends that the prosecution
failed to prove that he is the owner of the marijuana found inside the travelling bag which he had in his
vehicle, a Ford Fiera Proof of ownership is immaterial. Accused was prosecuted for the dispatching in transit
or transporting of prohibited drugs pursuant to Section 4, Article II of R.A. No. 6425, as amended. This
section does not require that for one to be liable for participating in any of the proscribed transactions
enumerated therein, he must be the owner of the prohibited drug. This section penalizes the pusher, who
need not be the owner of the prohibited drug. The law defines pusher as "any person who sells, administers,
delivers, or gives away to another, on any terms whatsoever, or distributes, dispatches in transit or
transports any dangerous drug or who acts as a broker in any of such transactions, in violation of this Act.
[Section 2 (m), R.A. No. 6425, as amended.] In People v. Alfonso, [186 SCRA (1990)] where the accused
was charged with the unlawful transportation of marijuana under the aforesaid Section 4, this Court ruled
that ownership is not a basic issue.
2. REMEDIAL LAW; EVIDENCE; CIRCUMSTANTIAL EVIDENCE COMBINATION THEREOF; WARRANTS A
CONVICTION BEYOND REASONABLE DOUBT. The facts, as proven by the prosecution, establish beyond
cavil that the accused was caught in the act of transporting the prohibited drug or, in other words, in
flagrante delicto. That he knew fully well what he was doing is shown beyond moral certainty by the
following circumstances: (a) the prohibited drug was found in a travelling bag, (b) he is the owner of the
said bag, (c) he concealed the bag behind a spare tire, (d) he was travelling alone, and (e) the Ford Fiera in
which he loaded the bag was under his absolute control, pursuant to Section 4, Rule 133 of the Rules of
Court (on circumstantial evidence), the combination of all these circumstances is such as to produce a
conviction beyond reasonable doubt. Such circumstances, unrebutted by strong and convincing evidence by
the accused, even gave rise to the presumption that he is the owner of the prohibited drug. [Section 3(j),
Rule 131, Rules of Court.]
3. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT AGAINST UNREASONABLE SEARCH & SEIZURE; WHEN
DEEMED WAIVED. Accused was not subjected to any search which may be stigmatized as a violation of
his Constitutional right against unreasonable searches and seizures. [Section 2, Article III, 1987
Constitution.] If one had been made, this Court would be the first to condemn it "as the protection of the
citizen and the maintenance of his constitutional rights is one of the highest duties and privileges of the
Court." [Rodriguez v. Villamiel, 65 Phil. 230 (1937).] He willingly gave prior consent to the search and
voluntarily agreed to have it conducted on his vehicle and travelling bag. Thus, the accused waived his right
against unreasonable searches and seizures As this Court stated in People v. Malasugui: (63 Phil. 221, 226
[1936]. See also Vda. de Garcia v. Locsin, 65 Phil. 689 [1938]; People v. Donato, 198 SCRA 130 [1991];
People v. Rodrigueza, 205 SCRA 791 [1992].)." . . When one voluntarily submits to a search or consents to
have it made of (sic) his person or premises, he is precluded from later complaining thereof (Cooley,
Constitutional Limitations, 8th ed., vol. I, page 631.) The right to be secure from unreasonable search may,
like every right, be waived and such waiver may be made either expressly or impliedly." Since in the course
of the valid search forty-one (41) packages of drugs were found, it behooved the officers to seize the same;
no warrant was necessary for such seizure. Besides, when said packages were identified by the prosecution
witnesses and later on formally offered in evidence, the accused did not raise any objection whatsoever.

DECISION

DAVIDE, JR., J.:

Accused Conway B. Omaweng was originally indicted for the violation of Section 4, Article II of Republic Act
No. 6425, otherwise known as the Dangerous Drugs Act of 1972, as amended, in a criminal complaint filed
with the Municipal Trial Court of Bontoc, Mountain Province on 12 September 1988. 1 Upon his failure to
submit counter-affidavits despite the granting of an extension of time to do so, the court declared that he
had waived his right to a preliminary investigation and, finding probable cause against the accused, ordered
the elevation of the case to the proper court. 2
On 14 November 1988, the Office of the Provincial Fiscal of Mountain Province filed an Information charging
the accused with the violation of Section 47 Article II of the Dangerous Drugs Act of 1972, as amended. The
accusatory portion thereof reads:
chanrobles virtual lawlibrary

"That on or about September 12, 1988, at Dantay, Bontoc, Mountain Province, and within the jurisdiction of
this Honorable Court, the above-named accused, without being authorized by law, did then and there
willfully, unlawfully and feloniously dispatch in transit or transport in a Ford Fiera, owned and driven by him,
10 1/4 kilos of processed marijuana in powder form contained in al plastic bags of different sizes which were
placed in a travelling bag destained (sic) and intended for delivery, disposition and sale in Sagada, Mountain
Province, with full knowledge that said processed marijuana is (sic) prohibited drug or from which (sic)
prohibited drug maybe manufactured.
CONTRARY TO LAW." 3
The case was docketed as Criminal Case No. 713.
After his motion for reinvestigation was denied by the Provincial Fiscal, 4 the accused entered a plea of not
guilty during his arraignment on 20 June 1989.
During the trial on the merits, the prosecution presented four (4) witnesses. The accused did not present
any evidence other than portions of the Joint Clarificatory Sworn Statement, dated 23 December 1988, of
prosecution witnesses Joseph Layong and David Fomocod.
On 21 March 1991, the trial court promulgated its Judgment 5 convicting the accused of the crime of
transporting prohibited drugs penalized under Section 4, Article II of R.A. No. 6425, as amended. The
dispositive portion of the decision reads:
jgc:chanroble s.com.ph

"WHEREFORE, judgment is hereby rendered imposing upon the accused herein the penalty of life
imprisonment and a fine of Twenty Five Thousand Pesos.
Pursuant to Sec. 20, Art. IV of the aforecited special law, the drugs subject of the crime are ordered
confiscated and forfeited in favor of the Government. Accordingly, it is further directed that such drugs so
confiscated and forfeited be destroyed without delay per existing rules and regulations on the matter.
chanroble s lawlibrary : rednad

Costs against the accused.

SO ORDERED." 6
Hence, this appeal.
In the Appellants Brief, Accused imputes upon the trial court the commission of the following errors.
"I
. . . IN CONVICTING THE ACCUSED DESPITE INSUFFICIENCY OF EVIDENCE TO PROVE HIS GUILT BEYOND
REASONABLE DOUBT.
II

. . . IN NOT CONSIDERING THE JOINT CLARIFICATORY STATEMENT OF THE ARRESTING OFFICERS TO THE
EFFECT THAT THE ACCUSED IS NOT THE OWNER OF THE PROHIBITED DRUG SUBJECT OF THIS CASE.
III
. . . IN NOT RULING THAT THE CONTRABAND SUBJECT OF THE INSTANT CASE IS INADMISSIBLE IN
EVIDENCE FOR HAVING BEEN OBTAINED IN VIOLATION OF THE CONSTITUTIONAL RIGHT OF THE ACCUSED
AGAINST UNREASONABLE SEARCH (sic) AND SEIZURE." 7
The appeal is without merit. The decision appealed from must be upheld.
After a careful review and evaluation of the evidence, We find to have been fully proven the following facts
as summarized by the Solicitor General in the Brief for the Appellee. 8
"In the morning of September 12, 1988, Joseph Layong, a PC constable with the Mt. Province PC Command
at Bontoc, Mt. Province proceeded with other PC soldiers to Barrio Dantay, Bontoc and, per instruction of
their officer, Capt. Eugene Martin, put up a checkpoint at the junction of the roads, one going to Sagada and
the other to Bontoc (TSN, November 9, 1989, pp. 3-4). They stopped and checked all vehicles that went
through the checkpoint (TSN, April 5, 1990, p. 12).
At about 9:15 A.M., Layong and his teammate, Constable David Osborne Famocod (sic), saw and flagged
down a cream-colored Ford Fiera bearing Plate No. ABT-634 coming from the Bontoc Poblacion and headed
towards Baguio (TSN, November 9, 1989, pp. 4-5, 8). The vehicle was driven by appellant and had no
passengers (TSN, November 9, 1989, pp. 4-5).
Layong and his companions asked permission to inspect the vehicle and appellant acceded to the request.
(TSN, November 9, 1989, pp. 4-5). When they peered into the rear of the vehicle, they saw a travelling bag
which was partially covered by the rim of a spare tire under the passenger seat on the right side of the
vehicle (TSN, November 9, 1989, pp. 6, 10, 11).
chanrobles.com :cralaw:re d

Layong and his companions asked permission to see the contents of the bag (TSN, November 9, 1989, p. 6).
Appellant consented to the request but told them that it only contained some clothes (TSN, November 9,
1989, p. 6). When Layong opened the bag, he found that it contained forty-one (41) plastic packets of
different sizes containing pulverized substances (TSN, November 9, 1989, pp. 7, 9).
Layong gave a packet to his team leader, constable David Osborne Fomocod, who, after sniffing the stuff
concluded that it was marijuana (TSN, November 9, 1989, p. 16).
The PC constables, together with appellant, boarded the latters Ford Fiera and proceeded to the Bontoc
poblacion to report the incident to the PC Headquarters (TSN, November 9, 1989, pp. 7-8) The prohibited
drugs were surrendered to the evidence custodian, Sgt. Angel Pokling (TSN, November 9, 1989, pp. 7-8).
Major Carlos Figueroa, a PC Forensic Chemist at Camp Dangwa, La Trinidad, Benguet, who has conducted
more than 2500 professional examinations of marijuana, shabu and cocaine samples, conducted two
chemistry examinations of the substance contained in the plastic packets taken from appellant and found
them to be positive for hashish or marijuana (TSN, October 24, 1990, pp. 3, 5-81)." 9
Anent the first assigned error, the accused contends that the prosecution failed to prove that he is the owner
of the marijuana found inside the travelling bag which he had in his vehicle, a Ford Fiera Proof of ownership
is immaterial. Accused was prosecuted for the dispatching in transit or transporting of prohibited drugs
pursuant to Section 4, Article II of R.A. No. 6425, as amended. This section does not require that for one to
be liable for participating in any of the proscribed transactions enumerated therein, he must be the owner of
the prohibited drug. It simply reads:
jgc:chanroble s.com.ph

"SEC. 4. Sale, Administration, Delivery, Distribution and Transportation of Prohibited Drugs. The penalty
of life imprisonment to death and a fine ranging from twenty thousand to thirty thousand pesos shall be
imposed upon any person who, unless authorized by law, shall sell, administer, deliver, give away to another,
distribute, dispatch in transit or transport any prohibited drug, or shall act as a broker in any of such
transactions. If the victim of the offense is a minor, or should a prohibited drug involved in any offense
under this Section be the proximate cause of the death of a victim thereof, the maximum penalty herein
provided shall be imposed."
cralaw virtua1aw library

This section penalizes the pusher, who need not be the owner of the prohibited drug. The law defines pusher
as "any person who sells, administers, delivers, or gives away to another, on any terms whatsoever, or
distributes, dispatches in transit or transports any dangerous drug or who acts as a broker in any of such
transactions, in violation of this Act. 10
In People v. Alfonso, 11 where the accused was charged with the unlawful transportation of marijuana under
the aforesaid Section 4, this Court ruled that ownership is not a basic issue.
cralawnad

The facts, as proven by the prosecution, establish beyond cavil that the accused was caught in the act of
transporting the prohibited drug or, in other words, in flagrante delicto. That he knew fully well what he was
doing is shown beyond moral certainty by the following circumstances: (a) the prohibited drug was found in
a travelling bag, (b) he is the owner of the said bag, (c) he concealed the bag behind a spare tire, (d) he
was travelling alone, and (e) the Ford Fiera in which he loaded the bag was under his absolute control,
pursuant to Section 4, Rule 133 of the Rules of Court (on circumstantial evidence), the combination of all
these circumstances is such as to produce a conviction beyond reasonable doubt. Such circumstances,
unrebutted by strong and convincing evidence by the accused, even gave rise to the presumption that he is
the owner of the prohibited drug. 12
The second assigned error is devoid of merit. The declaration in the joint clarificatory sworn statement
executed by the apprehending officers, that the marijuana subject of the case was surreptitiously placed by
an unknown person in the bag of the accused, is not supported by evidence. Said sworn statement cannot
be used as a basis for exoneration because the very same officers who signed the same reiterated on the
witness stand their statements in their original affidavit implicating the accused, both the criminal complaint
before the Municipal Trial Court of Lontoc and the information in this case were based on this original
affidavit. No probative value could be assigned to it not only because it was procured by the defense under
questionable circumstances, but also because the affiants therein merely expressed their personal opinion.
The trial courts correct exposition on this point, to which nothing more may be added, deserves to be
quoted, thus:
jgc:chanroble s.com.ph

"From the portions of the Joint Clarificatory Sworn Statement- of prosecution witnesses Layong and
Fomocod cited (Exhs. "I" to "I-C" ; p 155, Record), the defense would want this Court to draw the inference
that the accused Conway Omaweng is innocent as confirmed by no less than the persons who apprehended
the suspect in flagranti (sic). In other words, that the said accused is not the owner of the contraband
confiscated but someone else; that to (sic) mysterious individual placed the prohibited articles inside the
travelling bag of the accused without the knowledge and consent of the latter; and that the identity of this
shadowy third person is known by the PC/INP investigators. The isolated declarations, albeit under oath are
much too asinine to be true and do not affect the credibilities of the witnesses affiants and the truth of
their affirmations on the stand. As gleaned from parts of the record of the reinvestigation of this case
conducted by the Provincial Fiscal (Exhs "G" and "D" ; pp. 158 and 161, Record), it appears that Layong and
Fomocod were prevailed upon to affix their signatures to (sic) the document styled as Joint Clarificatory
Sworn Statement by interested persons in a vain ploy to extricate the accused from the morass he got
himself into. Testifying in open court, the same witnesses maintained the tenor of their original affidavit
supporting the filing of the criminal complaint in the lower court (Exh. "C" ; p. 2, Record) No additional
information was elicited from said witnesses during their examination from which it can reasonably be
deduced that a third person instead of the accused is the culprit and that the suspect is being framed-up for
a crime he did not commit. Nonetheless, granting arguendo that the declarations of Layong and Fomocod
now the bone of contention, are on the level, the same are but mere opinions and conclusions without
bases. Any which way, to believe that any person in his right mind owning several kilos of hot hashish worth
tens of thousands of pesos would simply stash it away in the travelling bag of someone he has no previous
agreement with is a mockery of common sense. And to think further that the PC/INP agents know of such
fact yet they kept the vital information under confidential Status (whatever that means in police parlance)
while an innocent person is being prosecuted and practically in the shadow of the gallows for the offense
would be stretching human credulity to the snapping point. By and large, the fact remains as the
circumstances logically indicate that the accused Conway Omaweng has knowledge of the existence of the
contraband inside his vehicle and he was caught red-handed transporting the hot stuff." 13
The third assignment of error hardly deserves any consideration Accused was not subjected to any search
which may be stigmatized as a violation of his Constitutional right against unreasonable searches and
seizures. 14 If one had been made, this Court would be the first to condemn it "as the protection of the
citizen and the maintenance of his constitutional rights is one of the highest duties and privileges of the
Court." 15 He willingly gave prior consent to the search and voluntarily agreed to have it conducted on his

vehicle and travelling bag. Prosecution witness Joseph Layong testified thus:
"PROSECUTOR AYOCHOK:

chanroble s lawlibrary : rednad

chanrob1es virtual 1aw library

Q When you and David Fomocod saw the travelling bag, what did you do?
A When we saw that travelling bag, we asked the driver if we could see the contents.
Q And what did or what was the reply of the driver, if there was any?
A He said you can see the contents but those are only clothings (sic).
Q When he said that, what did you do?
A We asked him if we could open and see it.
Q When you said that, what did he tell you?
A He said you can see it.
Q And when he said you can see and open it, what did you do?
A When I went inside and opened the bag, I saw that it was not clothings (sic) that was contained in the
bag.
Q And when you saw that it was not clothings (sic), what did you do?
A When I saw that the contents were not clothes, I took some of the contents and showed it to my
companion Fomocod and when Fomocod smelled it, he said it was marijuana." 16
This testimony was not dented on cross-examination or rebutted by the accused for he chose not to testify
on his own behalf.
Thus, the accused waived his right against unreasonable searches and seizures As this Court stated in
People v. Malasugui: 17
". . . When one voluntarily submits to a search or consents to have it made of (sic) his person or premises,
he is precluded from later complaining thereof (Cooley, Constitutional Limitations, 8th ed., vol. I, page 631.)
The right to be secure from unreasonable search may, like every right, be waived and such waiver may be
made either expressly or impliedly."
cralaw virtua1aw library

Since in the course of the valid search forty-one (41) packages of drugs were found, it behooved the officers
to seize the same; no warrant was necessary for such seizure. Besides, when said packages were identified
by the prosecution witnesses and later on formally offered in evidence, the accused did not raise any
objection whatsoever. Thus, in the accuseds Comments And/Or Objections To Offer of Evidence, 18 We
merely find the following:
chanrobles law library

"EXHIBIT COMMENTS AND/OR OBJECTIONS

"A" The bag was not positively identified to be
the same bag allegedly found inside the
vehicle driven by the accused. The
arresting officers failed to show any
identifying marks; thug, said bag is an
irrelevant evidence not admissible in court;
"A-1" to "A-40" Objected to also as irrelevant as the 40

bags now being offered are not the same

bags alleged in the information which is 41
bags. The prosecution failed to proved (sic)
beyond reasonable doubt that Exhibit "A-1"
to "A-40" are the same bags allegedly taken
from inside Exhibit "A" because what is
supposed to be inside the bag are 41 bags
and not 40 bags."

cralaw virtua1aw library

WHEREFORE, the decision of Branch 36 of the Regional Trial t of Bontoc, Mountain Province of 21 March
1991 in Criminal Case No. 713 finding the accused CONWAY B. OMAWENG guilty beyond reasonable doubt of
the crime charged, is hereby AFFIRMED.
Costs against the accused.
SO ORDERED.
Gutierrez, Jr., Bidin and Romero, JJ., concur.
Feliciano, J., is on leave.
Endnotes:

1. Original Records, 1.
2. Id., 28-29.
3. Original Records, 30.
4. Id., 163.
5. Id., 355-361.
6. Original Records, 361.
7. Rollo, 149.
8. Rollo, 183, et seq.
9. Brief for the Appellee, 4-6.
10. Section 2 (m), R.A. No. 6425, as amended.
11. 186 SCRA 576 [1990].
12. Section 3 (j), Rule 131, Rules of Court.
13. Original Records, 359-360; Rollo, 116-117.

14. Section 2, Article III, 1987 Constitution.

15. Rodriguez v. Villamiel, 65 Phil. 230 [1937].
16. TSN, 9 November 1989, 6-7.
17. 63 Phil. 221, 226 [1936]. See also Vda. de Garcia v. Locsin, 65 Phil. 689 [1938]; People v. Donato, 198
SCRA 130 [1991]; People v. Rodriguez, 205 SCRA 791 [1992].
18. Original Records, 344.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION

G.R. No. L-27968 December 3, 1975

JOSE G. LOPEZ and TOMAS VELASCO, petitioners,
vs.
COMMISSIONER OF CUSTOMS, COLLECTOR OF CUSTOMS OF DAVAO, CHAIRMAN OF THE
ASAC, ACTING DIRECTOR, NATIONAL BUREAU OF INVESTIGATION, CITY FISCAL OF
DAVAO, SENIOR NBI AGENT OF DAVAO, EARL REYNOLDS, AND/OR ANY OF THEIR
AUTHORIZED REPRESENTATIVES,respondents.
A. Romero for petitioners.
Office of the Solicitor General Antonio P. Barredo, Assistant Solicitor General Pacifico P. de Castro
and Solicitor Augusto M. Amores for respondents.

FERNANDO, J.:
This Court, understandably and appropriately in the decision of cases coming before it, is called
upon to act with due care to avoid putting obstacles to the governmental policy "to minimize, if not to
do away entirely, with the evil and corruption that smuggling brings in its wake ..." 1 Nonetheless, the
steps taken by administrative authorities to implement such a laudable objective must not be repugnant to
nor in conflict with constitutional rights. To be more specific, when the guarantee against unreasonable
search and seizure is invoked, there is a need to scrutinize the facts rigorously to preclude any
infringement thereof. In this special civil action for certiorari, prohibition and mandamus which arose from
the seizures made by the Collector of Customs of Davao of 1,480 sacks of copra and 86 sacks of coffee
from the M/V motor vessel Jolo Lema, our decision of November 29, 1974 in Nasiad v. Court of Tax
Appeals 2 made clear that there was no failure to comply with the requirements of the law in effecting the
same. The seizure was therefore declared lawful by the Court of Tax Appeals, and its decision was
affirmed by us. 3 The only question left then is whether the search conducted by a party headed by
respondent Earl Reynolds, Senior NBI Agent of Davao, 4 without the search warrant for the hotel room of
petitioner Tomas Velasco, who entered into a contract with the other petitioner, Jose G. Lopez, the
awardee of such Philippine Reparations Commission vessel, for its operation and use ostensibly for
fishing, 5 is violative of such constitutional provision. 6 The defense interposed by respondents is that there
was consent. A careful scrutiny of the pleadings reveals that such indeed was the case. We find for
respondents and dismiss the action.
The relevant facts as found in the aforesaid Nasiad decision read as follows: "As noted in the
appealed decision, the issue submitted "for resolution is the legality of the seizure made by the

Collector of Customs of Davao of the 1,408 sacks of copra and 86 sacks of coffee allegedly owned
by the petitioners." Then came this portion: "Petitioners claim that the 1,408 sacks of copra and 86
sacks of coffee in question were purchased in Kiamba, Lumatin, and Lumasal, all in the province of
Cotabato, from a certain Osmea Juanday. Petitioners contend that, inasmuch as the said goods
were not imported and of foreign origin, they are not legally subject to seizure and forfeiture. They
likewise contend that the forfeiture made by the Collector of Customs of Davao was invalid because
the said forfeiture was based on documents and papers which were illegally seized by agents of the
Government through violence and intimidation. Respondent denies petitioners' claim. He contends
that the evidence is sufficient to hold that the goods in question came from Indonesia and
subsequently brought to the Philippines in violation of our laws and, therefore, subject to forfeiture;
and that the Indonesian documents and papers allegedly secured illegally by the combined team of
NBI, PC and RASAC agents stationed in Davao, were in fact lawfully and validly secured by them.
Consequently, said documents and papers are admissible in evidence in the forfeiture proceedings
instituted administratively by the Collector of Customs of Davao." It was then set forth: "The
voluminous [evidence] of record clearly show that M/V [Jolo Lema] had been under strict
surveillance by the combined team of agents of the NBI, PC, RASAC, and City Police of Davao prior
to its apprehension at a private wharf in Batjak, Sasa, Davao City; that the said M/V [Jolo Lema] was
skippered (sic) by Capt. Aquilino Pantinople and chartered by Mr. Tomas Velasco; during the period
from the latter part of August to September 18, 1966, the said vessel was in Indonesian waters
where it loaded copra and coffee beans from Taruna, Pitta and Mangenito, all of Indonesia ... ; that in
its trip to Indonesia it brought various merchandise from the Philippines which were exchanged
and/or bartered for copra and coffee beans and subsequently taken to Davao City ...; and that said
vessel passed Marore, Indonesia on September 18, 1966 on its way to Tahuna, Indonesia ... before
proceeding to Davao City where it was apprehended on September 19, 1966." Then came the
reference to the evidence and the testimonies of the witnesses of both parties, being appraised by
respondent Court, which did not find any ground to discredit the finding of respondent Collector of
Customs. As therein pointed out: "The evidence does not show any plausible motive for
respondent's witnesses to falsify the truth because they represent different agencies of the
government. From all appearances, they have no personal interest whatsoever over the goods
subject of the forfeiture proceedings. Besides, petitioners have not adduced any evidence showing
that they were enemies of the witnesses for the government. In short, no iota of evidence was ever
presented by the petitioners to destroy the integrity of the government witnesses and to cast a cloud
of doubt on their testimonies." Also: "The decision of the Collector of Customs of Davao shows that a
petitioner herein and at the same time one of the claimants of the confiscated copra and coffee
beans, Mr. Ernesto Lozada, is the Officer-in-Charge of the vessel M/V Jolo Lema. It is not surprising,
therefore, that the members of his crew repudiated their sworn statements given to government
agents." Then, lastly: "Moreover, petitioners failed to explain satisfactorily, much less refute the vital
testimony of Fiscal Mariano Umali of the Department of Justice, Manila that the various Indonesian
documents ... duly authenticated by the Indonesian Consulate in Manila, show in clear detail that the
vessel M/V Jolo Lema was in Indonesia during the period from the latter part of August to September
18, 1966, and that it loaded copra and coffee beans therein before the said vessel returned to Davao
City on September 19, 1966. Petitioners' failure to successfully dispute or destroy said testimony by
competent and reliable evidence strongly indicates that the copra and coffee beans in question were
imported from Indonesia." " 7

On the question of the search of the hotel room, the petition alleged that at about 3:00 o'clock in the
afternoon of September 19, 1966, when the vessel was searched, a combined team of Constabulary
and Regional Anti-Smuggling Center operatives headed by NBI agent Earl Reynolds raided the hotel
room then being rented by petitioner Tomas Velasco without any search warrant and in the absence
at the time of such petitioner Tomas Velasco or the presence of any other person, except one Teofila
Ibaez, a mere manicurist of Davao City by occupation and "forcibly opened luggages and boxes
from which only several documents and papers were found, then seized, confiscated and took away
the same." 8 There was this refutation of such allegation in the answer presented by respondents,
represented by the then Solicitor General, 9 now Associate Justice, Antonio P. Barredo: "(a) After Captain Pantinople informed
the team that petitioner Tomas Velasco, the charterer of the vessel, had other documents showing that vessel came from Indonesia carrying
smuggled copra and coffee, some members of the team proceeded to the room of petitioner Velasco at the Skyroom Hotel in Davao City, to
ask for said documents; (b) Although petitioner Velasco was not inside the hotel room, respondent Reynolds, after identifying himself as a
police officer and after explaining his purpose, was allowed to enter the room by Mrs. Tomas Velasco who subsequently volunteered to open
the suitcases and baggages of petitioner Velasco and delivered the documents and things contained therein to respondent Reynolds; ... (c)
The said police team did not search the room; neither did the members thereof forcibly open the luggages and boxes nor seized and
confiscated the documents and things contained therein, since that was not necessary because ... Mrs. Tomas Velasco voluntarily opened
the baggages and suitcases and gave their contents of documents and things to respondent Reynolds. Such fact is also established by the
joint affidavit of PC Lt. Romeo Arceo, Angel Huertas, Gregorio Esperancilla, Wilfredo G. Agcaoili, Patricio Barnes and Lucero Cordero, a
joint sworn statement of Antonio Bonotan, Vicente Dubria, Alberto Morgady and Virgilio Humol; and another affidavit of Pio Raganit and
Winifredo Calamba, ... "

10

Thus, as noted at the outset, petitioners are not entitled to the remedies prayed for.
1. There has been marked receptivity on the part of this Court to claims based on the protection of
the search and seizure clause of the Constitution, whenever properly invoked. So it was made clear
from the leading case ofAlvarez v. Court of First
Instance. 11 It has been thus since then. 12 Such was the case likewise under previous organic
acts. 13 There is this succinct restatement of what is embraced in the guarantee in the latest case of Lim v.
Ponce de Leon, 14 with Justice Martin as ponente: "There can be no question that without the proper
search warrant, no public official has the right to enter the premises of another without his consent for the
purpose of search and seizure." 15 It does not admit of doubt therefore that a search or seizure cannot be
stigmatized as unreasonable and thus offensive to the Constitution if consent be shown. Such a view is
implicit in People v. Malasugui. 16 For this immunity from unwarranted intrusion is a personal right which
may be waived either expressly or impliedly. 17
The crucial question then is whether in this instance there was consent on the part of the person
who was the occupant of the hotel room then rented by petitioner Velasco. It cannot be contended
that such premises would be outside the constitutional protection of a guarantee intended to protect
one's privacy. It stands to reason that in such a place, the insistence on being free from any
unwelcome intrusion is likely to be more marked. 18 Was there, however, consent sufficient in law to
dispense with the warrant? Respondents, as previously noted, contend that there was such consent.
They so alleged in their answer. Their memorandum would stress it further in these words: "Here the wife
of petitioner Tomas Velasco, upon being informed of the purpose of the search by the officers, invited
them to enter and search the hotel room and even voluntarily gave the documents and things requested
by said officers. This fact could be gleaned from the following records of the two seizure cases involving
the vessel M/V Jolo Lema and its cargo of Indonesian copra and coffee: (a) On September 19, 1966,
Teofila Ibaez, wife of petitioner Tomas Velasco, issued a written statement which states that "... I have
voluntarily and freely allowed my husband's and my personal belongings to be searched and freely gave
the following items." ... (b) On the same date, she issued another certification which reads in part, viz.: "...
That I have voluntarily turned over for safekeeping and verification the following."... (c) Also on the same

date, she issued still another certification which reads partially, thus:"... that I have freely and voluntarily
allowed the search of my and my husband's personal belongings and turn-over to the NBI of the following
items."... (d) On October 13, 1966 the Davao City Police Department issued a certification to the effect
that the petitioner Tomas Velasco never filed any "report for robbery or other offenses ... against any
member of the NBI or the PC during the period from September 19, 1966 to the present,"... ." 19 Their
memorandum likewise included as an annex an affidavit from Benjamin Doronal Y. Yaez, the assistant
manager of the Skyroom Hotel. It was worded thus: "That on September 19, 1966 at around 3:00 to 4:00
o'clock in the afternoon, a joint NBI, PC and Davao City Police Commando Team conducted a search on
Room 220 of the Skyroom Hotel occupied by Mr. and Mrs. Tomas Velasco; That before said search was
conducted, [Teofila Ibaez], the actual occupant of the room at the time, voluntarily consented to the
request of Atty. [Earl Reynolds] and Lt.[Romeo Arceo], to search their room (Rm. 220) after the latter
introduced themselves by showing their respective identifications cards; That during said search, upon
the request of Atty. [Reynolds] and Lt.[Arceo], [Teofila Ibaez] voluntarily opened her handbag which was
found to contain a .45 caliber pistol and likewise voluntarily opened the maletas which were found to
contain several papers and documents; That receipts were duly issued to [Teofila Ibaez] which
accounted for everything taken from their room (Rm. No. 220) during the search, including said .45 caliber
pistol, papers and documents and that nothing was lost; That [Teofila Ibaez] signed the receipts and
received copies thereof; That [Teofila Ibaez] and I were present when the said search was being
conducted; That said search was conducted in a peaceful and orderly
manner ... ." 20

There was an attempt on the part of petitioners to counteract the force of the above recital by an
affidavit of one Corazon Y. Velasco, 21 who stated that she is the legal wife of petitioner Tomas Velasco,
and another by such petitioner himself 22 reiterating such a fact and that the person who was present at
his hotel room was one Teofila Ibaez, "a manicurist by occupation ." 23 Their effort appurtenant thereto is
doomed to failure. If such indeed were the case, then it is much more easily understandable why that
person, Teofila Ibaez, who could be aptly described as the wrong person at the wrong place and at the
wrong time, would have signified her consent readily and immediately. Under the circumstances, that was
the most prudent course of action. It would save her and even petitioner Velasco himself from any gossip
or innuendo. Nor could the officers of the law be blamed if they would act on the appearances. There was
a person inside who from all indications was ready to accede to their request. Even common courtesy
alone would have precluded them from inquiring too closely as to why she was there. Under all the
circumstances, therefore, it can readily be concluded that there was consent sufficient in law to dispense
with the need for a search warrant. The petition cannot, therefore, prevail.
2. It was set forth at the outset that the state policy of minimizing, if not doing away entirely with the
festering sore of smuggling must be carried out with due respect for constitutional rights. It is a
truism in law that a desirable end cannot be attained by illegal means. Whenever there is a showing
therefore that the safeguards of the fundamental law are disregarded, more specifically the
guarantee against unreasonable search and seizure, then judicial redress is appropriate. To repeat,
such is not the case here. Moreover, it may likewise be added that as previously mentioned
in Nasiad v. Court of Tax Appeals, 24 involving the very same occurrence, the only difference being that
the petitioners there were the importers of the smuggled goods, this Court had affirmed the validity of the
seizure proceeding. No injustice can therefore be claimed by petitioners.
WHEREFORE, the petition for certiorari, prohibition and mandamus is dismissed. Costs against
petitioners.

Antonio, Muoz Palma, Aquino and Concepcion, Jr., JJ., concur.

Barredo, J., took no part.

Footnotes
1 Asaali v. Commissioner of Customs, L-24170, December 16, 1968, 26 SCRA 382,
385.
2 L-29318, November 29, 1974, 61 SCRA 238.
3 The dispositive portion of Nasiad v. Court of Tax Appeals reads as follows:
"[Wherefore], the decision of respondent Court of Tax Appeals dated April 26, 1968 is
affirmed. Costs against petitioners." Ibid, 245.
4 The other respondents are the Commissioner of Customs, the Collector of
Customs of Davao, the Chairman of the ASAC, the Acting Director of the National
Bureau of Investigation, and the City Fiscal of Davao.
5 Petition, par. V.
6 At the time of the search, the provision on search and seizure reads 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." Art. III Sec. 1, par. (3). There is a slight change in the present Constitution,
as may be seen in Art. IV, Sec. 3: "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 not be violated, and no search warrant or
warrant of arrest shall issue except upon probable cause to be determined by the
judge, or such other responsible officer as may be authorized by law, 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."
7 Nasiad v. Court of Tax Appeals, L-29318, November 29, 1974, 61 SCRA 238, 240242.
8 Petition, par. VII.

9 He was assisted by the then Assistant Solicitor General, now Justice of the Court of
Appeals, Pacifico P. de Castro, and the then Solicitor, now Judge, Augusto M.
Amores.
10 Answer, par. 4.
11 64 Phil. 33 (1937). There was the earlier case of People v. Malasugui, 63 Phil. 331
(1936).
12 Cf. People v. Sy Juco, 64 Phil. 667 (1937); Rodriguez, v. Villamiel, 65 Phil. 230
(1937); Pasion Vda. De Garcia v. Locsin, 65 Phil, 689 (1938); Yee Sue Koy v.
Almeda, 70 Phil. 141 (1940); Alvero v. Dizon, 76 Phil. 637 (1946); Moncado v.
Peoples Court, 80 Phil. 1 (1948); Amarga v. Abbas, 98 Phil. 739 (1956); Oca v.
Maiquez, L-20749, July 30, 1965, 14 SCRA 735; Stonehill v. Diokno, L-19550, June
19, 1967, 20 SCRA 383; Bache & Co. (Phil.), Inc. v. Ruiz, L-32409, Feb. 27, 1971, 37
SCRA 823; Villanueva v. Querubin, L-26177, Dec. 27, 1972, 48 SCRA 345; Asian
Surety & insurance Co., Inc. v. Herrera, L-25232, Dec. 20, 1973, 54 SCRA 312;
Nasiad v. Court of Tax Appeals, L-29318, Nov. 29, 1974, 61 SCRA 238; Roldan, Jr. v.
Arca, L-25434, July 25, 1975; Lim v. Ponce de Leon, L-22554, Aug. 29, 1975.
13 Cf. Section 5 of the Philippine Bill of 1902 and Section 3 of the Philippine
Autonomy Act. U.S. v. Macaspac, 9 Phil. 207 (1907); U.S. v. Reyes and Esguerra, 20
Phil, 467 (1911); U.S. v. Addison, 28 Phil. 566 (1914); Uy Kheytin v. Villareal, 42 Phil.
886 (1920); People v. Carlos, 47 Phil 626 (1925); People v. Veloso, 48 Phil. 169
(1925); People v. Rubio, 51 Phil. 384 (1932); Molo v. Yatco, 63 Phil. 644 (1936).
14 L-22554, August 29, 1975.
15 Ibid.
16 63 Phil. 221 (1936).
17 Cf. Pasion Vda. de Garcia v. Locsin, 65 Phil. 689 (1938).
18 Cf. Schmerber v. California, 384 US 75 (1966).
19 Memorandum of Respondents, 4-5.
20 Ibid, 5-6.
21 Annex B, Memorandum of Petitioners.
22 Annex C, Ibid.
21 Ibid.

24 L-29318, November 29, 1974, 61 SCRA 238.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC

G.R. No. L-95630 June 18, 1992

SPOUSES LEOPOLDO and MA. LUISA VEROY, petitioners,
vs.
THE HON. WILLIAM L. LAYAGUE, Presiding Judge, Branch XIV, Regional Trial Court at Davao
City; and BRIG. GEN. PANTALEON DUMLAO, Commanding General, PC-Criminal
Investigation Service, respondents.

PARAS, J.:
This was originally a petition for certiorari, mandamus and prohibition under Rule 65 of the Rules of
Court:certiorari, to review the Order of the respondent Judge dated October 2, 1990 denying herein
petitioner's Motion for Hospital Confinement; mandamus, to compel respondent Judge to resolve
petitioners' long pending motion for bail; and prohibition, to enjoin further proceedings on the ground
that the legal basis therefore is unconstitutional for being violative of the due process and equal
protection clauses of the Constitution.
The facts of this case are as follows:
Petitioners are husband and wife who owned and formerly resided at No. 13 Isidro St., Skyline
Village. Catalunan Grande, Davao City. When petitioner Leopoldo Veroy was promoted to the
position of Assistant Administrator of the Social Security System sometime in June, 1988, he and his
family transferred to 130 K-8th St., East Kamias, Quezon City, where they are presently residing.
The care and upkeep of their residence in Davao City was left to two (2) houseboys, Jimmy Favia
and Eric Burgos, who had their assigned quarters at a portion of the premises. The Veroys would
occasionally send money to Edna Soguilon for the salary of the said houseboys and other expenses
for the upkeep of their house. While the Veroys had the keys to the interior of the house, only the key
to the kitchen, where the circuit breakers were located, was entrusted to Edna Soguilon to give her
access in case of an emergency. Hence, since 1988, the key to the master's bedroom as well as the
keys to the children's rooms were retained by herein Petitioners so that neither Edna Soguilon nor
the caretakers could enter the house.
On April 12, 1990, Capt. Reynaldo Obrero of the Talomo Patrol Station, PC/INP, acting upon a
directive issued by Metrodiscom Commander Col. Franco Calida, raided the house of herein
petitioners in Davao City on information that the said residence was being used as a safehouse of
rebel soldiers. They were able to enter the yard with the help of the caretakers but did not enter the

house since the owner was not present and they did not have a search warrant. Petitioner Ma. Luisa
was contacted by telephone in her Quezon City residence by Capt. Obrero to ask permission to
search the house in Davao City as it was reportedly being used as a hideout and recruitment center
of rebel soldiers. Petitioner Ma. Luisa Veroy responded that she is flying to Davao City to witness the
search but relented if the search would not be conducted in the presence of Major Ernesto
Macasaet, an officer of the PC/INP, Davao City and a long time family friend of the Veroys. The
authority given by Ma. Luisa Veroy was relayed by Capt. Obrero to Major Macasaet who answered
that Ma. Luisa Veroy has called him twice by telephone on the matter and that the permission was
given on the condition that the search be conducted in his presence.
The following day, Capt. Obrero and Major Macasaet met at the house of herein petitioners in
Skyline Village to conduct the search pursuant to the authority granted by petitioner Ma. Luisa Veroy.
The caretakers facilitated their entry into the yard, and using the key entrusted to Edna Soguilon,
they were able to gain entrance into the kitchen. However, a locksmith by the name of George
Badiang had to be employed to open the padlock of the door leading to the children's room. Capt.
Obrero and Major Macasaet then entered the children's room and conducted the search. Capt.
Obrero recovered a .45 cal. handgun with a magazine containing seven (7) live bullets in a black
clutch bag inside an unlocked drawer. Three (3) half-full jute sacks containing printed materials of
RAM-SFP (samples of which were attached as Annexes "H" and "H-1" of the petition) (Rollo, pp. 4955) were also found in the children's room. A search of the children's recreation and study area
revealed a big travelling bag containing assorted polo shirts, men's brief, two (2) pieces polo barong
and short sleeve striped gray polo. sweat shirt, two (2) pairs men's socks, a towel made in U.S.A.,
one blanket, a small black bag, Gandhi brand, containing a book entitled "Islamic Revolution Future
Path of the Nation", a road map of the Philippines, a telescope, a plastic bag containing assorted
medicines and religious pamphlets was found in the master's bedroom. Sgt. Leo Justalero was
instructed by Capt. Obrero to make an inventory and receipt of the articles seized, in the house
(Annex "F" of the Petition, Rollo, p. 48). Said receipt was signed by Eric Burgos, one of the
caretakers, and George Badiang, the locksmith, as witnesses. Sgt. Justalero turned over the articles
to Sgt. Rodolfo Urbano at the police station.
The case was referred for preliminary investigation to Quezon City Assistant Prosecutor Rodolfo
Ponferrada who was designated Acting Provincial Prosecutor for Davao City by the Department of
Justice through Department Order No. 88 dated May 16, 1990. In a resolution dated August 6, 1990,
Fiscal Ponferrada recommended the filing of an information against herein petitioners for Violation of
Presidential Decree No. 1866 (Illegal Possession of Firearms and Ammunitions in Furtherance of
Rebellion) (Annex "L" of the Petition, Rollo, p. 71). Hence, on August 8, 1990. an Information for the
said offense was filed by the Office of the City Prosecutor of Davao City before the Regional Trial
Court, 11th Judicial Region, Davao City, docketed as Criminal Case No. 20595-90 and
entitled "People of the Philippines v. Atty. Leopoldo Veroy and Mrs. Maria Luisa Veroy" (Annex "K" of
the Petition,Rollo, p. 70). No bail was recommended by the prosecution.
The aforementioned resolution dated August 6, 1990 of Fiscal Ponferrada was received by the
petitioners on August 13, 1990. On the same day, the latter filed a Motion for Bail before herein
respondent Judge Layague which was denied on August 17, 1990 for being premature since at that
time, petitioners had not yet been arrested. Despite the fact that the warrants for their arrest have
not yet been served on them, herein petitioners voluntarily surrendered themselves to Brig. Gen.

Pantaleon Dumlao, PC-CIS Chief, since it was the CIS that initiated the complaint. However, the
latter refused to receive them on the ground that his office has not yet received copies of their
warrants of arrest.
In the meantime, on August 15, 1990, herein petitioners were admitted to the St. Luke's Hospital for
various ailments brought about or aggravated by the stress and anxiety caused by the filing of the
criminal complaint. On August 17, 1990, Brig. Gen. Dumlao granted their request that they be
allowed to be confined at the hospital and placed under guard thereat.
In an Indorsement dated August 20, 1990, the CIS through Capt. Benjamin de los Santos, made its
return to the trial court informing the latter of the voluntary surrender of herein petitioners and the
fact that they were under hospital confinement. Herein Petitioner reiterated their Motion for Bail. In
an Order dated August 24, 1990 (Annex "M" of the Petition, Rollo, p. 74), the hearing for the Motion
for Ball was set for August 31, 1990 to enable the prosecution to present evidence it opposition to
said motion. The prosecution filed its written opposition (Annex "N" of the Petition, Rollo, p. 75) on
August 28, 1990, arguing that the evidence of petitioners' guilt was strong and thereafter presented
its evidence.
On September 21, 1990, respondent Judge required the CIS to produce the bodies of herein
petitioners on October 1, 1990 for arraignment (Annex "O" of the Petition, Rollo, p. 76). Upon their
arraignment, herein Petitioners entered a plea of not guilty and filed an "Urgent Motion for Hospital
Confinement" (Annex "OO" of the Petition Rollo, p. 77) which was denied by the court in its Order
dated October 2, 1990 (Annex "P" of the Petition,Rollo, p. 80). It likewise ordered their commitment
at the Davao City Rehabilitation Center, Ma-a, Davao City pending trial on the merits. Herein
petitioners argued orally a motion for reconsideration which was opposed by the prosecution. At the
conclusion thereof, the court a quo issued a second order annex "Q" of the Petition, Rollo, p. 83)
denying then motion for reconsideration and as to the alternative prayer to reopen the motion for
hospital confinement, set the continuance thereof to October 17, 1990. It was further ordered that
the petitioners shall remain under the custody of the PC-CIS pending resolution of the case.
Meanwhile, petitioners were returned to the St. Luke's Hospital where their physical condition
remained erratic. On or about October 18, 1990, herein petitioners were informed that Brig. Gen.
Dumlao had issued a directive for their transfer from the St. Luke's Hospital to Camp Crame on the
basis of the October 2, 1990 Order (Annex "Q" of the Petition, Rollo, p. 83). Petitioners made
representations that the tenor of the court order warranted maintenance of the status quo, i.e., they
were to continue their hospital confinement. However, Brig, Gen. Dumlao informed them that unless
otherwise restrained by the court, they would proceed with their transfer pursuant to the order of the
trial court.
Hence, this petition on October 25, 1990 this Court issued a Temporary Restraining Order, effective
immediately and continuing until further orders from this Court, ordering: (a) respondent Hon. William
L. Layague to refrain from further proceeding with petitioners' "Motion for Hospital Confinement" in
Criminal Case No. 20595-90 entitled "People of the Philippines v. Leopoldo Veroy and Ma. Luisa
Veroy"; and (b) respondent Brig. Gen. Pantaleon Dumlao to refrain from transferring petitioners from
the St. Luke's Hospital (Rollo, pp. 84-A to 84-C).

On November 2, 1990, respondent Judge issued an order denying petitioners' Motion for Bail (Annex
"A" of the Second Supplemental Petition, Rollo, p. 133). Petitioners filed a Supplemental Petition on
November 7, 1990 (Rollo, P. 105) and a Second Supplemental Petition on November 16, 1990
(Rollo, p. 120) which sought to review the order of the trial court dated November 2, 1990 denying
their petition for bail.
Acting on the Supplemental Petition filed by Petitioners and taking into consideration several factors
such as: a) that the possibility that they will flee or evade the processes of the court is fairly remote;
b) their poor medical condition; and c) the matters in their Second Supplemental Petition especially
since the prosecution's evidence refers to constructive possession of the disputed firearms in Davao
City through the two (2) caretakers while petitioners lived in Manila since 1988, this Court, on
November 20, 1990, granted petitioners' provisional liberty and set the bail bond at P20,000.00 each
(Rollo, p. 141). Petitioners posted a cash bond in the said amount on November 23, 1990 (Rollo, pp.
143-145).
The petition was given due course on July 16, 1991 (Rollo, p. 211). Respondents adopted their
Comment dated December 28, 1990 (Rollo, pp. 182-191) as their Memorandum while, petitioners
filed their Memorandum on September 9, 1991 (Rollo, pp. 218-269).
As submitted by the respondents, and accepted by petitioners, the petition for mandamus to compel
respondent Judge to resolve petitioners' Motion for Bail, and the petition for certiorari to review the
order of respondent judge initially denying their Motion for Hospital Confinement, were rendered
moot and academic by the resolutions of this Court dated November 20, 1990 and October 25,
1990, respectively. What remains to be resolved is the petition for prohibition where petitioners
raised the following issues:
1. Presidential Decree No. 1866, or at least the third paragraph of Section 1 thereof,
is unconstitutional for being violative of the due process and equal protection clauses
of the Constitution;
2. Presidential Decree No. 1866 has been repealed by Republic Act No. 6968;
3. Assuming the validity of Presidential Decree No. 1866 the respondent judge
gravely abused his discretion in admitting in evidence certain articles which were
clearly inadmissible for being violative of the prohibition against unreasonable
searches and seizures.
The issue of constitutionality of Presidential Decree No. 1866 has been laid to rest in the case
of Misolas v. Panga, G.R. No. 83341, January 30, 1990 (181 SCRA 648), where this Court held that
the declaration of unconstitutionality of the third paragraph of Section 1 of Presidential Decree No.
1866 is wanting in legal basis since it is neither a bill of attainder nor does it provide a possibility of a
double jeopardy.
Likewise, petitioners' contention that Republic Act 6968 has repealed Presidential Decree No. 1866
is bereft of merit. It is a cardinal rule of statutory construction that where the words and phrases of a
statute are not obscure or ambiguous. its meaning and the intention of the legislature must be

determined from the language employed, and where there is no ambiguity in the words, there is no
room for construction (Provincial Board of Cebu v. Presiding Judge of Cebu, CFI, Br. IV, G.R. No.
34695, March 7, 1989 [171 SCRA 1]). A perusal of the aforementioned laws would reveal that the
legislature provided for two (2) distinct offenses: (1) illegal possession of firearms under Presidential
Decree No. 1866; and (2) rebellion, coup d' etat, sedition and disloyalty under Republic Act 6968;
evidently involving different subjects which were not clearly shown to have eliminated the others.
But petitioners contend that Section 1 of Presidential Decree No. 1866 is couched in general or
vague terms. The terms "deal in", "acquire", "dispose" or "possess" are capable of various
interpretations such that there is no definiteness as to whether or not the definition includes
"constructive possession" or how the concept of constructive possession should be applied.
Petitioners were not found in actual possession of the firearm and ammunitions. They were in
Quezon City while the prohibited articles were found in Davao City. Yet they were being charged
under Presidential Decree No. 1866 upon the sole circumstance that the house wherein the items
were found belongs to them (Memorandum for Petitioners, Rollo, pp. 242-244).
Otherwise stated, other than their ownership of the house in Skyline Village, there was no other
evidence whatsoever that herein petitioners possessed or had in their control the items seized (Ibid.,
pp. 248-250). Neither was it shown that they had the intention to possess the Firearms or to further
rebellion (Ibid., P. 252).
In a similar case, the revolver in question was found in appellant's store and the question arouse
whether he had possession or custody of it within the meaning of the law.
This Court held that:
The animus possidendi must be proved in opium cases where the prohibited drug
was found on the premises of the accused and the same rule is applicable to the
possession of firearms. The appellant denied all knowledge of the existence of the
revolver, and the Government's principal witness stated that there were a number of
employees in the store. The only testimony which tends to show that the appellant
had the possession or custody of this revolver is the inference drawn from the fact
that it was found in his store, but we think that this inference is overcome by the
positive testimony of the appellant, when considered with the fact that there were a
number of employees in the store, who, of course, could have placed the revolver in
the secret place where it was found without the knowledge of the appellant. At least
there is a very serious doubt whether he knew of the existence of this revolver. In
such case the doubt must be resolved in favor of the appellant. (U.S. v. Jose and Tan
Bo., 34 Phil. 724 [1916])
But more importantly, petitioners question the admissibility in evidence of the articles seized in
violation of their constitutional right against unreasonable search and seizure.
Petitioners aver that while they concede that Capt. Obrero had permission from Ma. Luisa Veroy to
break open the door of their residence, it was merely for the purpose of ascertaining thereat the
presence of the alleged "rebel" soldiers. The permission did not include any authority to conduct a

room to room search once inside the house. The items taken were, therefore, products of an illegal
search, violative of their constitutional rights As such, they are inadmissible in evidence against
them.
The Constitution guarantees the right of the people to be secure in their persons, houses, papers
and effects against unreasonable searches and seizures (Article III, Section 2 of the 1987
Constitution). However, the rule that searches and seizures must be supported by a valid warrant is
not an absolute one. Among the recognized exceptions thereto are: (1) a search incidental to an
arrest; (2) a search of a moving vehicle; and (3) seizure of evidence in plain view (People v. Lo Ho
Wing, G.R. No. 88017, January 21, 1991 [193 SCRA 122]).
None of these exceptions pertains to the case at bar. The reason for searching the house of herein
petitioners is that it was reportedly being used as a hideout and recruitment center for rebel soldiers.
While Capt. Obrero was able to enter the compound, he did not enter the house because he did not
have a search warrant and the owners were not present. This shows that he himself recognized the
need for a search warrant, hence, he did not persist in entering the house but rather contacted the
Veroys to seek permission to enter the same. Permission was indeed granted by Ma. Luisa Veroy to
enter the house but only to ascertain the presence of rebel soldiers. Under the circumstances it is
undeniable that the police officers had ample time to procure a search warrant but did not.
In a number of cases decided by this Court, (Guazon v. De Villa, supra.; People v. Aminnudin, G.R.
No. L-74869, July 6, 1988 [163 SCRA 402]; Alih v. Castro, G.R. No. L-69401, June 23, 1987 [151
SCRA 279]), warrantless searches were declared illegal because the officials conducting the search
had every opportunity to secure a search Warrant. The objects seized, being products of illegal
searches, were inadmissible in evidence in the criminal actions subsequently instituted against the
accused-appellants (People v. Cendana, G.R. No. 84715, October 17, 1990 [190 SCRA 538]).
Undeniably, the offense of illegal possession of firearms is malum prohibitum but it does not follow
that the subject thereof is necessarily illegal per se. Motive is immaterial in mala prohibita but the
subjects of this kind of offense may not be summarily seized simply because they are prohibited. A
search warrant is still necessary. Hence, the rule having been violated and no exception being
applicable, the articles seized were confiscated illegally and are therefore protected by the
exclusionary principle. They cannot be used as evidence against the petitioners in the criminal action
against them for illegal possession of firearms. (Roan v. Gonzales, 145 SCRA 689-690 [1986]).
Besides, assuming that there was indeed a search warrant, still in mala prohibita, while there is no
need of criminal intent, there must be knowledge that the same existed. Without the knowledge or
voluntariness there isno crime.
PREMISES CONSIDERED, the petition as granted and the criminal case against the petitioners for
illegal possession of firearms is DISMISSED.
SO ORDERED.
Narvasa, C.J., Gutierrez, Jr., Cruz, Feliciano, Padilla, Bidin, Grio-Aquino, Medialdea, Regalado,
Davide, Jr., Romero and Bellosillo, JJ., concur.

Nocon, J., is on leave.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 91107

June 19, 1991

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
MIKAEL MALMSTEDT, *defendant-appellant.
The Solicitor General for plaintiff-appellee.
Romulo, Mabanta, Buenaventura, Sayoc & De los Angeles for defendant-appellant.

PADILLA, J.:
In an information dated 15 June 1989, accused-appellant Mikael Malmstedt (hereinafter referred to
as the accused) was charged before the Regional Trial Court (RTC) of La Trinidad, Benguet, Branch
10, in Criminal Case No. 89-CR-0663, for violation of Section 4, Art. II of Republic Act 6425, as
amended, otherwise known as the Dangerous Drugs Act of 1972, as amended. The factual
background of the case is as follows:
Accused Mikael Malmstedt, a Swedish national, entered the Philippines for the third time in
December 1988 as a tourist. He had visited the country sometime in 1982 and 1985.
In the evening of 7 May 1989, accused left for Baguio City. Upon his arrival thereat in the morning of
the following day, he took a bus to Sagada and stayed in that place for two (2) days.
At around 7:00 o'clock in the morning of 11 May 1989, accused went to the Nangonogan bus stop in
Sagada to catch the first available trip to Baguio City. From Baguio City, accused planned to take a
late afternoon trip to Angeles City, then proceed to Manila to catch his flight out of the country,
scheduled on 13 May 1989. From Sagada, accused took a Skyline bus with body number 8005 and
Plate number AVC 902.
1

At about 8: 00 o'clock in the morning of that same day (11 May 1989), Captain Alen Vasco, the
Commanding Officer of the First Regional Command (NARCOM) stationed at Camp Dangwa,
ordered his men to set up a temporary checkpoint at Kilometer 14, Acop, Tublay, Mountain Province,
for the purpose of checking all vehicles coming from the Cordillera Region. The order to establish a
checkpoint in the said area was prompted by persistent reports that vehicles coming from Sagada
were transporting marijuana and other prohibited drugs. Moreover, information was received by the
Commanding Officer of NARCOM, that same morning, that a Caucasian coming from Sagada had in
his possession prohibited drugs.
2

The group composed of seven (7) NARCOM officers, in coordination with Tublay Police Station, set
up a checkpoint at the designated area at about 10:00 o'clock in the morning and inspected all
vehicles coming from the Cordillera Region.

At about 1:30 o'clock in the afternoon, the bus where accused was riding was stopped. Sgt. Fider
and CIC Galutan boarded the bus and announced that they were members of the NARCOM and that
they would conduct an inspection. The two (2) NARCOM officers started their inspection from the
front going towards the rear of the bus. Accused who was the sole foreigner riding the bus was
seated at the rear thereof.
During the inspection, CIC Galutan noticed a bulge on accused's waist. Suspecting the bulge on
accused's waist to be a gun, the officer asked for accused's passport and other identification papers.
When accused failed to comply, the officer required him to bring out whatever it was that was bulging
on his waist. The bulging object turned out to be a pouch bag and when accused opened the same
bag, as ordered, the officer noticed four (4) suspicious-looking objects wrapped in brown packing
tape, prompting the officer to open one of the wrapped objects. The wrapped objects turned out to
contain hashish, a derivative of marijuana.
Thereafter, accused was invited outside the bus for questioning. But before he alighted from the bus,
accused stopped to get two (2) travelling bags from the luggage carrier.
Upon stepping out of the bus, the officers got the bags and opened them. A teddy bear was found in
each bag. Feeling the teddy bears, the officer noticed that there were bulges inside the same which
did not feel like foam stuffing. It was only after the officers had opened the bags that accused finally
presented his passport.
Accused was then brought to the headquarters of the NARCOM at Camp Dangwa, La Trinidad,
Benguet for further investigation. At the investigation room, the officers opened the teddy bears and
they were found to also contain hashish. Representative samples were taken from the hashish found
among the personal effects of accused and the same were brought to the PC Crime Laboratory for
chemical analysis.
In the chemistry report, it was established that the objects examined were hashish. a prohibited drug
which is a derivative of marijuana. Thus, an information was filed against accused for violation of the
Dangerous Drugs Act.
During the arraignment, accused entered a plea of "not guilty." For his defense, he raised the issue
of illegal search of his personal effects. He also claimed that the hashish was planted by the
NARCOM officers in his pouch bag and that the two (2) travelling bags were not owned by him, but
were merely entrusted to him by an Australian couple whom he met in Sagada. He further claimed
that the Australian couple intended to take the same bus with him but because there were no more
seats available in said bus, they decided to take the next ride and asked accused to take charge of
the bags, and that they would meet each other at the Dangwa Station.
Likewise, accused alleged that when the NARCOM officers demanded for his passport and other
Identification papers, he handed to one of the officers his pouch bag which was hanging on his neck
containing, among others, his passport, return ticket to Sweden and other papers. The officer in turn
handed it to his companion who brought the bag outside the bus. When said officer came back, he
charged the accused that there was hashish in the bag. He was told to get off the bus and his picture
was taken with the pouch bag placed around his neck. The trial court did not give credence to
accused's defense.
The claim of the accused that the hashish was planted by the NARCOM officers, was belied by his
failure to raise such defense at the earliest opportunity. When accused was investigated at the
Provincial Fiscal's Office, he did not inform the Fiscal or his lawyer that the hashish was planted by
the NARCOM officers in his bag. It was only two (2) months after said investigation when he told his

lawyer about said claim, denying ownership of the two (2) travelling bags as well as having hashish
in his pouch bag.
In a decision dated 12 October 1989, the trial court found accused guilty beyond reasonable doubt
for violation of the Dangerous Drugs Act, specifically Section 4, Art. II of RA 6425, as amended. The
dispositive portion of the decision reads as follows:
3

WHEREFORE, finding the guilt of the accused Mikael Malmstedt established beyond
reasonable doubt, this Court finds him GUILTY of violation of Section 4, Article 11 of Republic
Act 6425, as amended, and hereby sentences him to suffer the penalty of life imprisonment
and to pay a fine of Twenty Thousand Pesos (P20,000.00), with subsidiary imprisonment in
case of insolvency and to pay the costs.
Let the hashish subject of this case be turned over to the First Narcotics Regional Unit at
Camp Bado; Dangwa, La Trinidad Benguet for proper disposition under Section 20, Article IV
of Republic Act 6425, as amended.
SO ORDERED.

Seeking the reversal of the decision of the trial court finding him guilty of the crime charged, accused
argues that the search of his personal effects was illegal because it was made without a search
warrant and, therefore, the prohibited drugs which were discovered during the illegal search are not
admissible as evidence against him.
The Constitution guarantees the right of the people to be secure in their persons, houses, papers
and effects against unreasonable searches and seizures. However, where the search is made
pursuant to a lawful arrest, there is no need to obtain a search warrant. A lawful arrest without a
warrant may be made by a peace officer or a private person under the following circumstances.
5

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
(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.
In cases falling under paragraphs (a) and (b) hereof, the person arrested without a warrant
shall be forthwith delivered to the nearest police station or jail, and he shall be proceeded
against in accordance with Rule 112, Section 7. (6a 17a).
Accused was searched and arrested while transporting prohibited drugs (hashish). A crime was
actually being committed by the accused and he was caught in flagrante delicto. Thus, the search
made upon his personal effects falls squarely under paragraph (1) of the foregoing provisions of law,
which allow a warrantless search incident to a lawful arrest.
7

While it is true that the NARCOM officers were not armed with a search warrant when the search
was made over the personal effects of accused, however, under the circumstances of the case,
there was sufficient probable cause for said officers to believe that accused was then and there
committing a crime.
Probable cause has been defined as such facts and circumstances which could lead a reasonable,
discreet and prudent man to believe that an offense has been committed, and that the objects
sought in connection with the offense are in the place sought to be searched. The required probable
cause that will justify a warrantless search and seizure is not determined by any fixed formula but is
resolved according to the facts of each case.
8

Warrantless search of the personal effects of an accused has been declared by this Court as valid,
because of existence of probable cause, where the smell of marijuana emanated from a plastic bag
owned by the accused, or where the accused was acting suspiciously, and attempted to flee.
10

11

12

Aside from the persistent reports received by the NARCOM that vehicles coming from Sagada were
transporting marijuana and other prohibited drugs, their Commanding Officer also received
information that a Caucasian coming from Sagada on that particular day had prohibited drugs in his
possession. Said information was received by the Commanding Officer of NARCOM the very same
morning that accused came down by bus from Sagada on his way to Baguio City.
When NARCOM received the information, a few hours before the apprehension of herein accused,
that a Caucasian travelling from Sagada to Baguio City was carrying with him prohibited drugs, there
was no time to obtain a search warrant. In the Tangliben case, the police authorities conducted a
surveillance at the Victory Liner Terminal located at Bgy. San Nicolas, San Fernando Pampanga,
against persons engaged in the traffic of dangerous drugs, based on information supplied by some
informers. Accused Tangliben who was acting suspiciously and pointed out by an informer was
apprehended and searched by the police authorities. It was held that when faced with on-the-spot
information, the police officers had to act quickly and there was no time to secure a search warrant.
13

It must be observed that, at first, the NARCOM officers merely conducted a routine check of the bus
(where accused was riding) and the passengers therein, and no extensive search was initially made.
It was only when one of the officers noticed a bulge on the waist of accused, during the course of the
inspection, that accused was required to present his passport. The failure of accused to present his
identification papers, when ordered to do so, only managed to arouse the suspicion of the officer that
accused was trying to hide his identity. For is it not a regular norm for an innocent man, who has
nothing to hide from the authorities, to readily present his identification papers when required to do
so?
The receipt of information by NARCOM that a Caucasian coming from Sagada had prohibited drugs
in his possession, plus the suspicious failure of the accused to produce his passport, taken together
as a whole, led the NARCOM officers to reasonably believe that the accused was trying to hide
something illegal from the authorities. From these circumstances arose a probable cause which
justified the warrantless search that was made on the personal effects of the accused. In other
words, the acts of the NARCOM officers in requiring the accused to open his pouch bag and in
opening one of the wrapped objects found inside said bag (which was discovered to contain
hashish) as well as the two (2) travelling bags containing two (2) teddy bears with hashish stuffed
inside them, were prompted by accused's own attempt to hide his identity by refusing to present his
passport, and by the information received by the NARCOM that a Caucasian coming from Sagada
had prohibited drugs in his possession. To deprive the NARCOM agents of the ability and facility to
act accordingly, including, to search even without warrant, in the light of such circumstances, would
be to sanction impotence and ineffectiveness in law enforcement, to the detriment of society.

WHEREFORE, premises considered, the appealed judgment of conviction by the trial court is
hereby AFFIRMED. Costs against the accused-appellant.
SO ORDERED.
Melencio-Herrera, Paras, Feliciano, Bidin, Grio-Aquino, Medialdea, Regalado and Davide, Jr., JJ.,
concur.
Sarmiento, J., is on leave.

Separate Opinions
NARVASA, J., concurring and dissenting:
The ancient tradition that a man's home is his castle, safe from intrusion even by the king, has not
only found its niche in all our charters, from 1935 to the present; it has also received unvarying
recognition and acceptance in our case law. The present Constitution declares that
1

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.
It further ordains that any evidence obtained in violation of said right, among others, "shall be
inadmissible for any purpose in any proceeding."
3

The rule is that no person may be subjected by the police or other government authority to a search
of his body, or his personal effects or belongings, or his residence except by virtue of a search
warrant or on the occasion of a legitimate arrest.
4

An arrest is legitimate, of course, if effected by virtue of a warrant of arrest. Even without a warrant,
an arrest may also be lawfully made by a peace officer or a private person:
5

(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
(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.
In cases falling under paragraphs (a) and (b) hereof, the person arrested without a warrant
shall be forthwith delivered to the nearest police station or jail, and he shall be proceeded
against in accordance with Rule 112, Section 7.

In any of these instances of a lawful arrest, the person arrested "may be searched for dangerous
weapons or anything which may be used as proof of the commission of an offense, without a search
warrant." And it has been held that the search may extend to the area "within his immediate
control," i.e., the area from which said person arrested might gain possession of a weapon or
destructible evidence.
6

Apart from "search incidental to an arrest," a warrantless search has also been held to be proper in
cases of "search of a moving vehicle, and "seizure of evidence in plain view." This was the
pronouncement in Manipon, Jr. v. Sandiganbayan, 143 SCRA 267, 276, which drew attention
to Moreno v. Ago Chi; Alvero v. Dizon, Papa v. Mago, and an American precedent, Harris v. U.S.
8

10

11

12

13

If, on the other, a person is searched without a warrant, or under circumstances other than those
justifying an arrest without warrant in accordance with law, supra, merely on suspicion that he is
engaged in some felonious enterprise, and in order to discover if he has indeed committed a crime, it
is not only the arrest which is illegal but also, the search on the occasion thereof, as being "the fruit
of the poisonous tree. In that event, any evidence taken, even if confirmatory of the initial suspicion,
is inadmissible "for any purpose in any proceeding." But the right against an unreasonable search
and seizure may be waived by the person arrested, provided he knew of such right and knowingly
decided not to invoke it.
14

15

16

There is unanimity among the members of the Court upon the continuing validity of these
established principles. However, the Court is divided as regards the ultimate conclusions which may
properly be derived from the proven facts and consequently, the manner in which the principles just
cited should apply thereto.
The proofs of the prosecution and those of the defense are diametrically at odds. What is certain,
however, is that the soldiers had no warrant of arrest when they conducted a search of Malmstedt's
person and the things in his possession at the time. Indeed, the Court a quo acknowledged that the
soldiers could "not be expected to be armed with a warrant or arrest nor a search warrant everytime
they establish a temporary checkpoint . . . (and) no judge would issue them one considering that
searching questions have to be asked before a warrant could be issued." Equally plain is that prior to
the search, a warrantless arrest of Malmstedt could not validly have been in accordance with the
norms of the law. For Malmstedt had not committed, nor was he actually committing or attempting to
commit a crime, in the soldiers' presence, nor did said soldiers have personal and competent
knowledge that Malmstedt had in fact just committed a crime. All they had was a suspicion that
Malmstedt might have some prohibited drug on him or in his bags; all they had was, in the words of
the Trial Court, "the hope of intercepting any dangerous drug being transported," or, as the Office of
the Solicitor General asserts, "information that most of the buses coming . . . (from the Cordillera)
were transporting marijuana and other prohibited drugs."
This case, is remarkably similar to Peo. v. Aminnudin, decided on July 6, 1988 also by the First
Division. There, Aminnudin was arrested without a warrant by PC officers as he was disembarking
from an inter-island vessel. The officers were waiting for him because he was, according to an
informer's report, then transporting marijuana. The search of Aminnudin's bag confirmed the
informer's report; the bag indeed contained marijuana. The Court nevertheless held that since the
PC officers had failed to procure a search warrant although they had sufficient time (two days) to do
so and therefore, the case presented no such urgency as to justify a warrantless search, the search
of Aminnudin's person and bag, the seizure of the marijuana and his subsequent arrest were illegal;
and the marijuana was inadmissible in evidence in the criminal action subsequently instituted against
Aminnudin for violating the Dangerous Drugs Act.
17

There are, on the other hand, other cases adjudicated by this Court in which apparently different
conclusions were reached. It is needful to devote a few words to them so that the relevant
constitutional and legal propositions are not misunderstood.
In People v. Claudio (decision promulgated on April 15, 1988), the accused boarded a "Victory
Liner" passenger bus going to Olongapo from Baguio City. She placed the plastic bag she was
carrying at the back of the seat then occupied by Obia, an INP member "on Detached Service with
the Anti-Narcotics Unit." This avowedly aroused Obia's suspicion, and at the first opportunity, and
without Claudio's knowledge, he surreptitiously looked into the plastic bag and noted that it
contained camote tops as well as a package, and that there emanated from the package the smell of
marijuana with which he had become familiar on account of his work. So when the bus stopped at
Sta. Rita, and Claudio alighted, Obia accosted her, showed her his ID, identified himself as a
policeman, and announced his intention to search her bag which he said contained marijuana
because of the distinctive odor detected by him. Ignoring her plea "Please go with me, let us
settle this at home" he brought her to the police headquarters., where examination of the package
in Claudio's bag confirmed his suspicion that it indeed contained marijuana. The Court held the
warrantless arrest under the circumstances to be lawful, the search justified, and the evidence thus
discovered admissible in evidence against the accused.
18

In People v. Tangliben (decision promulgated on April 6, 1990), two police officers and a barangay
tanod were conducting a "surveillance mission" at the Victory Liner Terminal at San Nicolas, San
Fernando, Pampanga, "aimed not only against persons who may commit misdemeanors . . . (there)
but also on persons who may be engaging in the traffic of dangerous drugs based on information
supplied by informers; . . . they noticed a person carrying a red travelling bag . . who was acting
suspiciously;" they asked him to open the bag; the person did so only after they identified
themselves as peace officers; found in the bag were marijuana leaves wrapped in plastic weighing
one kilogram, more or less; the person was then taken to the police headquarters at San Fernando,
Pampanga, where he was investigated; and an information was thereafter filed against that person,
Tangliben, charging him with a violation of the Dangerous Drugs Act of 1972 (RA 6425), as
amended. Upon these facts it was ruled, citing Claudio, supra, that there was a valid warrantless
arrest and a proper warrantless search incident thereto.
19

The facts in Tangliben were pronounced to be different from those in People v. Aminnudin, supra. "In
contrast" toAminnudin where the Court perceived no urgency as to preclude the application for and
obtention of a search warrant, it was declared that the Tangliben case
. . . presented urgency. . . (The evidence revealed) that there was an informer who pointed to
the accused-appellant as carrying marijuana . . . Faced with such on-the-spot information,
the police officers had to act quickly. There was not enough time to secure a search warrant .
. . To require search warrants during on-the-spot apprehensions of drug pushers, illegal
possessors of firearms, jueteng collectors, smugglers of contraband goods, robber, etc.
would make it extremely difficult, if not impossible to contain the crimes with which these
persons are associated.
In Tangliben, therefore, there was in the Court's view sufficient evidence on hand to enable the PC
officers to secure a search warrant, had there been time. But because there was actually no time to
get the warrant, and there were "on-the-spot" indications that Tangliben was then actually committing
a crime, the search of his person and his effects was considered valid.
Two other decisions presented substantially similar circumstance instances: Posadas v. C.A., et al.,
decided on August 2, 1990, and People v. Moises Maspil, Jr., et al., decided on August 20, 1990.
20

21

In the first case, Posadas was seen to be acting suspiciously by two members of the INP, Davao
Metrodiscom, and when he was accosted by the two, who identified themselves as police officers, he
suddenly fled. He was pursued, overtaken and, notwithstanding his resistance, placed in custody.
The buri bag Posadas was then carrying was found to contain a revolver, for which he could produce
no license or authority to possess, four rounds of live ammunition, and a tear gas grenade. He was
prosecuted for illegal possession of firearms and ammunition and convicted after trial. This Court
affirmed Posadas' conviction, holding that there was, in the premises, probable cause for a search
without warrant, i.e., the appellant was acting suspiciously and attempted to flee with the buri bag he
had with him at the time. The Court cited with approval the ruling of the U.S. Federal Supreme Court
in John W. Terry v. State of Ohio, a 1968 case, which the Solicitor General had invoked to justify the
search.
22

In the case of Maspil, et al., a checkpoint was set up by elements of the First Narcotics Regional Unit
of the Narcotics Command at Sayangan, Atok, Benguet, to monitor, inspect and scrutinize vehicles
on the highway going towards Baguio City. This was done because of a confidential report by
informers that Maspil and another person, Bagking, would be transporting a large quantity of
marijuana to Baguio City. In fact, the informers were with the policemen manning the checkpoint. As
expected, at about 2 o'clock in the early morning of November 1, 1986, a jeepney approached the
checkpoint, driven by Maspil, with Bagking as passenger. The officers stopped the vehicle and saw
that on it were loaded 2 plastic sacks, a jute sack, and 3 big round tin cans. When opened, the sacks
and cans were seen to contain what appeared to be marijuana leaves. The policemen thereupon
placed Maspil and Bagking under arrest, and confiscated the leaves which, upon scientific
examination, were verified to be marijuana leaves. The Court upheld the validity of the search thus
conducted, as being incidental to a lawful warrantless arrest, and declared that, as in Tangliben,
supra, Maspil and Bagking had been caught in flagrante delicto transporting prohibited drugs at the
time of their arrest. Again, the Court took occasion to distinguish the case from Aminnudin in which,
as aforestated, it appeared that the police officers were aware of Aminnudin's identity, his projected
criminal enterprise and the vessel on which he would be arriving, and, equally as importantly, had
sufficient time and opportunity to obtain a search warrant. In the case of Maspil and Bagking, the
Court found that the officers concerned had no exact description of the vehicle the former would be
using to transport marijuana, and no inkling of the definite time of the suspects' arrival, and pointed
out that a jeepney on the road is not the same as a passenger boat on the high seas whose route
and time of arrival are more or less certain, and which ordinarily cannot deviate from or otherwise
alter its course, or select another destination.
23

24

25

The most recent decision treating of warrantless search and seizure appears to be People v. Lo Ho
Wing; et al., G.R. No. 88017, decided on January 21, 1991 (per Gancayco, J.). In that case, an
undercover or "deep penetration" agent, Tia, managed somehow to gain acceptance into a group of
suspected drug smugglers, which included Peter Lo and Lim Ching Huat. Tia accompanied Peter Lo
to Guangzhou, China, where he saw him and other person empty the contents of six (6) tins of tea
and replace them with white powder. On their return to Manila with the cans of substituted "tea," they
were met at the airport by Lim. As they were leaving the airport in separate vehicles, they were
intercepted by officers and operatives of the Narcotics Command (NARCOM), who had earlier been
tipped off by Tia, and placed under arrest. As search of the luggage brought in by Tia and Peter Lo,
loaded on the group's vehicles, quickly disclosed the six (6) tin cans containing fifty-six (56) bags of
white crystalline powder which, upon analysis, was identified as metamphetamine. Tia, Lo and Lim
were indicted for violation of the Dangerous Drugs Act of 1972. Tia was discharged as state witness.
Lo and Lim were subsequently convicted and sentenced to life imprisonment. One of the questions
raised by them in this Court on appeal was whether the warrantless search of their vehicles and
personal effects was legal. The Court, citingManipon, Jr. v. Sandiganbayan, 143 SCRA 267
(1986), held legal the search of the appellants' moving vehicles and the seizure therefrom of the
dangerous drug, considering that there was intelligence information, including clandestine reports by
a planted spy actually participating in the activity, that the appellants were bringing prohibited drugs
26

into the country; that the requirement of obtaining a search warrant "borders on the impossible in the
case of smuggling effected by the use of a moving vehicle that can transport contraband from one
place to another with impunity," and "it is not practicable to secure a warrant because the vehicle can
be quickly moved out of the locality or jurisdiction in which the warrant must be sought.
27

In all five cases, Claudio, Tangliben, Posadas, Maspil, and Lo Ho Wing, facts existed which were
found by the Court as justifying warantless arrests. In Claudio, the arresting officer had secretly
ascertained that the woman he was arresting was in fact in possession of marijuana; he had
personally seen that her bag contained not only vegetables but also a package emitting the odor of
marijuana. In Tangliben, the person arrested and searched was acting suspiciously, and had been
positively pointed to as carrying marijuana. And in both cases, the accused were about to board
passenger buses, making it urgent for the police officers concerned to take quick and decisive
action. In Posadas, the person arrested and searched was acting suspiciously, too, and when
accosted had attempted to flee from the police officers. And in Maspil and Lo Ho Wing, there was
definite information of the precise identity of the persons engaged in transporting prohibited drugs at
a particular time and place.
Now, as regards the precise issue at hand, whether or not the facts in the case at bar make out a
legitimate instance of a warrantless search and seizure, there is, as earlier pointed out, a regrettable
divergence of views among the members of the Court.
Contrary to the conclusion reached by the majority, I believe that the appellant should be absolved
on reasonable doubt. There was in this case no confidential report from, or positive identification by
an informer; no attempt to flee; no bag or package emitting tell-tale odors; no other reasonably
persuasive indications that Malmstedt was at the time in process of perpetrating the offense for
which he was subsequently prosecuted. Hence, when the soldiers searched Malmstedt's pouch and
the bags in his possession, they were simply "fishing" for evidence. It matters not that the search
disclosed that the bags contained prohibited substances, confirming their initial information and
suspicion. The search was not made by virtue of a warrant or as an incident of a lawful warrantless
arrest, i.e., under circumstances sufficient to engender a reasonable belief that some crime was
being or about to be committed, or adjust been committed. There was no intelligent and intentional
waiver of the right against unreasonable searches and seizure. The search was therefore illegal,
since the law requires that there first be a lawful arrest of an individual before a search of his body
and his belongings may licitly be made. The process cannot be reversed, i.e., a search be first
undertaken, and then an arrest effected, on the strength of the evidence yielded by the search. An
arrest made in that case would be unlawful, and the search undertaken as an incident of such an
unlawful arrest, also unlawful.
The fact that when investigated at the headquarters of the Narcotic Command at Camp Dangwa, La
Trinidad, Malmstedt had, it is said, willingly admitted that there were was hashish inside the "teddy
bears" in the luggage found in his possession an admission subsequently confirmed by laboratory
examination does not help the cause of the prosecution one bit. Nothing in the record even
remotely suggests that Malmstedt was accorded the rights guaranteed by the Constitution to all
persons under custodial investigation. He was not informed, prior to being interrogated, that he had
the "right to remain silent and to have competent and independent counsel preferably of his own
choice," and that if he could not afford the services of counsel, he would be provided with one; not
does it appear at all that he waived those rights "in writing and in the presence of counsel." The
soldiers and the police officers simply went ahead with the investigation of Malmstedt, without
counsel. The admissions elicited from Malmstedt under these circumstances, as the Constitution
clearly states, are "inadmissible in evidence against him.
28

29

The prohibited drugs supposedly discovered in Malmstedt's bags, having been taken in violation of
the constitutional right against unreasonable searches and seizures, are inadmissible against him
"for any purpose in any proceeding." Also pronounced as incompetent evidence against him are the
admissions supposedly made by him without his first being accorded the constitutional rights of
persons under custodial investigation. Without such object evidence and admissions, nothing
remains of the case against Malmstedt.
It may be conceded that, as the Trial Court points out, the evidence presented by Malmstedt in his
defense is feeble, unworthy of credence. This is beside the point; for conformably to the familiar
axiom, the State must rely on the strength of its evidence and not on the weakness of the defense.
The unfortunate fact is that although the existence of the hashish is an objective physical reality that
cannot but be conceded, there is in law no evidence to demonstrate with any degree of persuasion,
much less beyond reasonable doubt, that Malmstedt was engaged in a criminal activity. This is the
paradox created by the disregard of the applicable constitutional safeguards. The tangible benefit is
that the hashish in question has been correctly confiscated and thus effectively withdrawn from
private use.
What is here said should not by any means be taken as a disapproval or a disparagement of the
efforts of the police and military authorities to deter and detect offenses, whether they be possession
of and traffic in prohibited drugs, or some other. Those efforts obviously merit the support and
commendation of the Courts and indeed of every responsible citizen. But those efforts must take
account of the basic rights granted by the Constitution and the law to persons who may fall under
suspicion of engaging in criminal acts. Disregard of those rights may not be justified by the objective
of ferreting out and punishing crime, no matter how eminently desirable attainment of that objective
might be. Disregard of those rights, as this Court has earlier stressed, may result in the escape of
the guilty, and all because the "constable has blundered," rendering the evidence inadmissible even
if truthful or otherwise credible.
30

I therefore vote to reverse the Trial Court's judgment of October 12, 1989 and to acquit the appellant
on reasonable doubt.

CRUZ, J., dissenting:

I join Mr. Justice Andres R. Narvasa in his dissent, which I believe represents the correct application
to the facts of this case of the provisions of the Bill of Rights and the Rules of Court on searches and
seizures. It is consistent with my ponencia in People v. Aminnudin, 163 SCRA 402, and also with Alih
v. Castro, 151 SCRA 279, the latter being a unanimous decision of the Court en banc, and my
dissents in Umil v. Ramos (on warrantless arrests, 187 SCRA 311, Valmonte v. De Villa (on
checkpoints), 178, SCRA 211, 185 SCRA 665, and Guazon v. De Villa (on "zonas"), 181 SCRA 623.
I write this separate opinion merely to remark on an observation made during the deliberation on this
case that some members of the Court seem to be coddling criminals instead of extending its
protection to society, which deserves our higher concern. The inference is that because of our wrong
priorities, criminals are being imprudently let free, to violate our laws again; and it is all our fault.
Believing myself to be among those alluded to, I will say without apology that I do not consider a
person a criminal, until he is convicted by final judgment after a fair trial by a competent and impartial
court. Until then, the Constitution bids us to presume him innocent. He may seem boorish or speak

crudely or sport tattoos or dress weirdly or otherwise fall short of our own standards of propriety and
decorum. None of these makes him a criminal although he may look like a criminal.
It is so easy to condemn a person on the basis of his appearance but it is also so wrong.
On the question before us, it seems to be the inclination of some judges to wink at an illegal search
and seizure as long as the suspect has been actually found in possession of a prohibited article That
fact will retroactively validate the violation of the Bill of Rights for after all, as they would rationalize,
the suspect is a criminal. What matters to them is the fact of illegal possession, not the fact of illegal
search and seizure.
This kind of thinking takes us back to the intolerant days of Moncado v. People's Court, 80 Phil. 1,
which was discredited in Stonehill v. Diokno, 20 SCRA 383, even before it was definitely rejected by
an express provision in the 1973 Constitution. That provision, which has been retained in the present
Constitution, again explicitly declares that any evidence illegally obtained "shall be inadmissible for
any purpose in any proceeding."
The fruit of the poisonous tree should not be allowed to poison our system of criminal justice. In the
case at bar, the search was made at a checkpoint established for the preposterous reason that the
route was being used by marijuana dealers and on an individual who had something bulging at his
waist that excited the soldier's suspicion. Was that probable cause? The ponencia notes that the
military had advance information that a Caucasian was coming from the Sagada with prohibited
drugs in his possession. This is what the military says now, after the fact, to justify the warrantless
search. It is so easy to make such a claim, and I am surprised that the majority should readily accept
it.
1wphi1

The conclusion that there was probable cause may have been influenced by the subsequent
discovery that the accused was carrying a prohibited drug. This is supposed to justify the soldier's
suspicion. In other words, it was the fact of illegal possession that retroactively established the
probable cause that validated the illegal search and seizure. It was the fruit of the poisonous tree
that washed clean the tree itself.
In Olmstead v. U.S., 277 U.S. 438, Justice Holmes said sixty-four years ago:
. . . It is desirable that criminals should be detected, and to that end that all available
evidence should be used. It is also desirable that the government should not itself foster and
pay for other crimes, when they are the means by which the evidence is to be obtained. If it
pays its officers for having got evidence by crime, I do not see why it may not as well pay
them for getting it in the same way, and I can attach no importance to protestations of
disapproval if it knowingly accepts and pays and announces that in the future it will pay for
the fruits. We have to choose, and for my part I think it a less evil that some criminals should
escape than that the government should play an ignoble part.
1avvphi1

If by deterring the government from playing "an ignoble part," I am "coddling criminals," I welcome
the accusation and take pride in it. I would rather err in favor of the accused who is impaled with
outlawed evidence than exalt order at the price of liberty.

Footnotes

* The case was referred to the Court En Banc by the First Division (to which it had originally
been assigned). Thereafter the Court En Banc resolved to accept and itself decide the case.
1

Brief for Defendant-appellant, Rollo, pp. 43-44.

Brief for Plaintiff-appellee, Rollo, p. 89.

Decision of the RTC of La Trinidad, Branch 10, dated 12 October 1989, Rollo, pp. 14-20.

Rollo, pp. 16-17.

Art. III, Sec. 2, 1987 Constitution.

Sec. 5, Rule 1 13 of the Rules on Criminal Procedure.

People vs. Maspil, G.R. No. 885177, 20 August 1990; People vs. Tangliben, G.R. No.
63630, 6 April 1990, 184 SCRA 220; People vs. Claudio G.R. No. 72564, 15 April 1988,160
SCRA 646.
7

Quintero vs. NBI, G.R. No. 35149, 23 June 1988, 162 SCRA 467.

Valmonte vs. De Villa, G.R. No. 83988, 29 September 1989, 178 SCRA 211.

10

People vs. Claudio, supra.

11

People vs. Tangliben, supra.

12

Posadas vs. Court of Appeals, G.R. No. 83139, 2 August 1990.

13

Supra.

NARVASA, J., CONCURRING AND DISSENTING:

SEE People v. Burgos, 144 SCRA 1 (1986); Roan v. Gonzales, 145 SCRA 687 (1986); Alih
v. Castro, 151 SCRA 279 (1987); Guazon v. de Villa, G.R. No. 80508, Jan. 30, 1990.
1

Art. III, Sec. 2, 1987 Constitution; to the same effect: ART. IV, Sec. 3, 1973 Constitution, and
ART. IV, Sec. 3, 1935 Constitution.
2

ART. III, Sec. 3 (2).

Peo. v. de la Cruz, G.R. No. 83260, April 18, 1990.

Sec. 5, Rule 113, Rules of Court; SEE Cruz, I.A., Constitutional Law, 1987 ed., pp. 141142, citing Adams v. Williams, 47 U.S. 143 and Terry v. Ohio, 392 U.S. 1.
5

Sec. 12, Rule 126, Rules of Court.

SEE Chimel v. California, 395 U.S. 752 (1969), cited in the monograph of Mr. Justice
Mendoza, V.V. entitled Reflections on the Constitutional Law of Arrest, Search and Seizure,
Philippine Law Journal, Vol. LXIII, Third Quarter, September, 1988, p. 241.
7

As pointed out in Cruz, op. cit. p. 142, in the U.S., "searches without warrant may also be
made of automobiles for the purpose of preventing violations of smuggling or immigration
laws, provided such searches are made at borders or "constructive borders" like checkpoints
near the boundary lines of the State," but "the mere mobility of these vehicles does not justify
their indiscriminate searches without warrants if made within the interior of the territory and in
the absence of probable cause (Almeida-Sanchez v. U.S., 37 L. ed. 2d 596; Carrol v. U.S.
267 U.SS. 132).
8

SEE footnote 13, infra.

12 Phil. 439, to the effect that, "An officer making an arrest may take from the person
arrested any money or property found upon his persons which was used in the commission
of the crime or was the fruit of the crime of which might furnish the prisoner with the means
of committing violence of escaping, or which may be used in evidence in the trial of the
case."
10

76 Phil. 637 to the effect that, "The most important exception to the necessity for a search
warrant is the right of search and seizure as an incident to a lawful arrest. A lawful arrest may
be made either while a crime is being committed or after its commission. The right to search
includes in both instances that of searching the person of him who is arrested, in order to
find and seize things connected with the crime as its fruits or as the means by which it was
committed (Agnello vs. United States, 269 U.S., 20).
11

22 SCRA 857 that the "Tariff and Customs Code does not require any search warrant
issued by a competent court before police authorities can effect the seizure. But the Code
requires it in the search of a dwelling house."
12

390 U.S. 243, holding that "prohibited articles within plain view "open to eye and" hand of
the law-enforcement officer who comes upon them "inadvertently," may also be seized by
him even without warrant (SEE Cruz, op. cit. p. 143).
13

SEE U.S. v. Hachaw, 21 Phil. 514 (1912); U.S. v. Santos, 36 Phil. 853 (1917), Integrated
Bar of the Philippines v. Enrile, Oct. 21, 1985, cited in Gupit, Rules of Criminal Procedure,
1986 ed., pp. 179182; Peo. v. Aminnudin, 163 SCRA 402 (1988); Guazon v. de Villa, G.R.
No. 80508, Jan. 30, 1990; cf., Peo. v. Cruz, 165 SCRA 135 (1988).
14

Nolasco v. Ernani Cruz-Pao, 147 SCRA 509 (1987); SEE, also, People v. Burgos, 144
SCRA 1 (1986) where the petitioner, while plowing his field, was arrested and his premises
searched on the basis of information that he was in possession of unlicensed firearms, and
thereafter, on discovery by the authorities of a gun and subversive documents, had admitted
ownership thereof upon which facts, this Court ruled the gun and documents to be
inadmissible in evidence because their seizure was not an incident of a lawful arrest, and his
acknowledgment of ownership thereof equally incompetent because obtained in violation of
the Miranda doctrine.
15

SEE Cruz, op. cit. p. 142, citing Terry v. Ohio, supra, and Magoncia v. Palacio, 80 Phil. 770,
and pointing out, on the authority of Callanta vs. Villanueva, 77 SCRA 377 and Bagcal v.
16

Villaraza, 120 SCRA 525, that the posting by the accused of a bail bond constitutes waiver of
any irregularity attending his arrest and estops him from questioning its validity.
17

163 SCRA 402, per Cruz, J., Grio-Aquino, J., dissenting; SEE footnote 6 at page 2 supra.

18

160 SCRA 646, Third Division, per Gutierrez, Jr., J.

19

184 SCRA 22, Third Division, per Gutierrez, Jr., J.

20

G.R. No. 83139, First Division, per Gancayco, J.

21

G.R. No. 85177, Third Division, per Gutierrez, Jr., J:

22

392 US 1, 20 L Ed 2d 889, 88 S Ct 1868.

23

Sec. 12, Rule 126 in relation to Sec. 5, Rule 113 of the 1985 Rules of Criminal Procedure.

24

SEE footnote 20, supra.

Attention may be drawn, in this connection, to the Resolution of May 24, 1990 in G.R. No.
83988 (Valmonte v. de Villa, [Sept. 29, 1989], 178 SCRA 211) where the Court cited with
approval a ruling of the U.S. Supreme Court that "Automobiles, because of their mobility,
may be searched without a warrant upon facts not justifying a warrantless search of a
residence or office. Brinegar v. United States, 338 US 160, 93 L Ed 1879, 69 S Ct 1302
(1949); Carroll v. United States, 267 US 132, 69 L Ed 543, 45 S Ct 280, 39 ALR 790 (1952).
The cases so holding have, however, always insisted that the officers conducting the search
have "reasonale or probable cause" to believe that they will find the instrumentality of a crime
or evidence pertaining to a crime before they begin their warrantless search. . . . (Dyke v.
Taylor, 391 US 216, 20 L Ed 538, 88 S Ct 1472)."
25

26

SEEFootnotes 9 and 13, supra.

27

Citing Carroll v. U.S., 267 U.S. 132, 153 (1925).

28

ART. III, Sec. 12 (1).

Id., Sec. 12 (3); Peo. v. Buenaflor, G.R. No. 62805, Jan. 22, 1990; Peo. v. Camalog, G.R.
No. 77116, Jan. 31, 1989; Peo. v. Lagahan, G.R. No. 78692, Dec. 8, 1988; Peo. v. Newman,
G.R. No. 45354, July 26, 1988.
29

30

Peo. v. Hizon, G.R. No. 71273, July 29, 1988, per Cruz, J.

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 136860

January 20, 2003

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
AGPANGA LIBNAO y KITTEN and ROSITA NUNGA y VALENCIA, accused.
AGPANGA LIBNAO y KITTEN, accused-appellant.
PUNO, J.:
Before us is an appeal from the Decision dated November 19, 1998 of the Regional Trial Court,
Branch 65, Tarlac City, finding appellant Agpanga Libnao and her co-accused Rosita Nunga guilty of
violating Article II, Section 4 of R.A. No. 6425, otherwise known as the Dangerous Drugs Act of
1972.1 For their conviction, each was sentenced to suffer an imprisonment of reclusion perpetua and
to pay a fine of two million pesos.
Appellant and her co-accused were charged under the following Information:
"That on or about October 20, 1996 at around 1:00 oclock dawn, in the Municipality of
Tarlac, Province of Tarlac, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused conspiring, confederating and helping with one another, without being
lawfully authorized, did then and there willfully, unlawfully and feloniously make
delivery/transport with intent to sell marijuana leaves wrapped in a transparent plastic
weighing approximately eight (8) kilos, which is in violation of Section 4, Article II of RA 6425,
otherwise known as the Dangerous Drugs Act of 1972, as amended.
CONTRARY TO LAW."2
During their arraignment, both entered a plea of Not Guilty. Trial on the merits ensued.
It appears from the evidence adduced by the prosecution that in August of 1996, intelligence
operatives of the Philippine National Police (PNP) stationed in Tarlac, Tarlac began conducting
surveillance operation on suspected drug dealers in the area. They learned from their asset that a
certain woman from Tajiri, Tarlac and a companion from Baguio City were transporting illegal drugs
once a month in big bulks.
On October 19, 1996, at about 10 oclock in the evening, Chief Inspector Benjamin Arceo, Tarlac
Police Chief, held a briefing in connection with a tip which his office received that the two drug
pushers, riding in a tricycle, would be making a delivery that night. An hour later, the Police Alert
Team installed a checkpoint in Barangay Salapungan to apprehend the suspects. Witness SPO1
Marlon Gamotea, PO3 Florante Ferrer and SPO3 Roberto Aquino were assigned to man the
checkpoint.
At about 1:00 oclock in the morning of the following day, SPO1 Gamotea and PO3 Ferrer flagged
down a passing tricycle. It had two female passengers seated inside, who were later identified as the

appellant Agpanga Libnao and her co-accused Rosita Nunga.3 In front of them was a black bag.
Suspicious of the black bag and the twos uneasy behavior when asked about its ownership and
content, the officers invited them to Kabayan Center No.2 located at the same barangay. They
brought with them the black bag.
Upon reaching the center, PO3 Ferrer fetched Barangay Captain Roy Pascual to witness the
opening of the black bag. In the meantime, the two women and the bag were turned over to the
investigator on duty, SPO3 Arthur Antonio. As soon as the barangay captain arrived, the black bag
was opened in the presence of the appellant, her co-accused and personnel of the center. Found
inside it were eight bricks of leaves sealed in plastic bags and covered with newspaper. The leaves
were suspected to be marijuana.
To determine who owns the bag and its contents, SPO3 Antonio interrogated the two. Rosita Nunga
stated that it was owned by the appellant. The latter, in turn, disputed this allegation. Thereafter, they
were made to sign a confiscation receipt without the assistance of any counsel, as they were not
informed of their right to have one. During the course of the investigation, not even close relatives of
theirs were present.
The seized articles were later brought to the PNP Crime Laboratory in San Fernando, Pampanga on
October 23, 1996. Forensic Chemist Daisy P. Babu conducted a laboratory examination on them.
She concluded that the articles were marijuana leaves weighing eight kilos. 4
For their part, both accused denied the accusation against them. Rosita Nunga testified that in the
evening of October 19,1996, she went to buy medicine for her ailing child at a pharmacy near the
Tarlac Provincial Hospital. The child was suffering from diarrhea, occasioned by abdominal pain. To
return to their house, she boarded a tricycle bound for Barangay Tariji, where she resides. Along the
way, the tricycle she was riding was flagged down by a policeman at a checkpoint in Barangay
Salapungan. She was taken aback when the officer invited her to the Kabayan Center. It was there
that she was confronted with the black bag allegedly containing eight bricks of marijuana leaves.
She disputed owning the bag and knowing its contents. She also denied sitting beside the appellant
in the passengers seat inside the tricycle, although she admitted noticing a male passenger behind
the driver.
Remarkably, appellant did not appear in court and was only represented by her lawyer. The latter
marked and submitted in evidence an affidavit executed by one Efren Gannod, a security guard of
Philippine Rabbit Bus Lines in Tarlac, Tarlac. The sworn statement declared that at about 0220H on
October 20, 1996, SPO2 Antonio arrived at their terminal and arrested a certain woman who
boarded their Bus No. 983. The incident was recorded in the companys logbook. Gannod, however,
was not presented in court to attest that the woman referred in his affidavit was the appellant.
After trial, the court convicted appellant and her co-accused Rosita Nunga, thus:
"WHEREFORE, finding both accused guilty beyond reasonable doubt of the offense of
violation of Article II, Section 4 of RA 6425 in relation to RA 7659, they are hereby sentenced
to suffer an imprisonment of reclusion perpetua and to pay a fine of two million pesos.
SO ORDERED."5
Aggrieved by the verdict, appellant interposed the present appeal. In her brief, she assigned the
following errors:

"1. The Honorable Regional Trial Court failed to appreciate the contention of the defense that
the right of accused against illegal and unwarranted arrest and search was violated by the
police officers who arrested both accused.
2. The Honorable Court failed to appreciate the contention of the defense that the right of the
accused to custodial investigation was deliberately violated by the peace officers who
apprehended and investigated the accused.
3. The Honorable Court miserably failed to evaluate the material inconsistencies in the
testimonies of the prosecutions witnesses which inconsistencies cast doubt and make
incredible the contention and version of the prosecution.
4. The Honorable Court gravely abused its discretion when it appreciated and considered the
documentary and object evidence of the prosecution not formally offered amounting to
ignorance of the law."6
We are not persuaded by these contentions; hence, the appeal must be dismissed.
In arguing that her arrest was unlawful, appellant capitalizes on the absence of a warrant for her
arrest. She contends that at the time she was apprehended by the police officers, she was not
committing any offense but was merely riding a tricycle. In the same manner, she impugns the
search made on her belongings as illegal as it was done without a valid warrant or under
circumstances when warrantless search is permissible. Consequently, any evidence obtained
therein is inadmissible against her.
These arguments fail to impress. The general rule is that a search may be conducted by law
enforcers only on the strength of a search warrant validly issued by a judge as provided in Article III,
Section 2 of the 1987 Constitution, thus:
"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 and 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."7
The constitutional guarantee is not a blanket prohibition against all searches and seizures as it
operates only against "unreasonable" searches and seizures. Searches and seizures are as a rule
unreasonable unless authorized by a validly issued search warrant or warrant of arrest. Thus, the
fundamental protection accorded by the search and seizure clause is that between persons and
police must stand the protective authority of a magistrate clothed with power to issue or refuse to
issue search warrants and warrants of arrest.8
Be that as it may, the requirement that a judicial warrant must be obtained prior to the carrying out of
a search and seizure is not absolute. There are certain familiar exceptions to the rule, one of which
relates to search of moving vehicles.9 Warrantless search and seizure of moving vehicles are
allowed in recognition of the impracticability of securing a warrant under said circumstances as the
vehicle can be quickly moved out of the locality or jurisdiction in which the warrant may be
sought.10 Peace officers in such cases, however, are limited to routine checks where the examination
of the vehicle is limited to visual inspection.11 When a vehicle is stopped and subjected to an
extensive search, such would be constitutionally permissible only if the officers made it upon
probable cause, i.e., upon a belief, reasonably arising out of circumstances known to the seizing

officer, that an automobile or other vehicle contains as item, article or object which by law is subject
to seizure and destruction.12
In earlier decisions, we held that there was probable cause in the following instances: (a) where the
distinctive odor of marijuana emanated from the plastic bag carried by the accused; 13 (b) where an
informer positively identified the accused who was observed to be acting suspiciously; 14 (c) where
the accused who were riding a jeepney were stopped and searched by policemen who had earlier
received confidential reports that said accused would transport a quantity of marijuana; 15 (d) where
Narcom agents had received information that a Caucasian coming from Sagada, Mountain Province
had in his possession prohibited drugs and when the Narcom agents confronted the accused
Caucasian because of a conspicuous bulge in his waistline, he failed to present his passport and
other identification papers when requested to do so; 16 (f) where the moving vehicle was stopped and
searched on the basis of intelligence information and clandestine reports by a deep penetration
agent or spy -- one who participated in the drug smuggling activities of the syndicate to which the
accused belong -- that said accused were bringing prohibited drugs into the country; 17 (g) where the
arresting officers had received a confidential information that the accused, whose identity as a drug
distributor was established in a previous test-buy operation, would be boarding MV Dona Virginia
and probably carrying shabu with him;18 (h) where police officers received an information that the
accused, who was carrying a suspicious-looking gray luggage bag, would transport marijuana in a
bag to Manila;19 and (i) where the appearance of the accused and the color of the bag he was
carrying fitted the description given by a civilian asset. 20
The warrantless search in the case at bench is not bereft of a probable cause. The Tarlac Police
Intelligence Division had been conducting surveillance operation for three months in the area. The
surveillance yielded the information that once a month, appellant and her co-accused Rosita Nunga
transport drugs in big bulks. At 10:00 pm of October 19, 1996, the police received a tip that the two
will be transporting drugs that night riding a tricycle. Surely, the two were intercepted three hours
later, riding a tricycle and carrying a suspicious-looking black bag, which possibly contained the
drugs in bulk. When they were asked who owned it and what its content was, both became uneasy.
Under these circumstances, the warrantless search and seizure of appellants bag was not illegal.
It is also clear that at the time she was apprehended, she was committing a criminal offense. She
was making a delivery or transporting prohibited drugs in violation of Article II, Section 4 of R.A. No.
6425. Under the Rules of Court, one of the instances a police officer is permitted to carry out a
warrantless arrest is when the person to be arrested is caught committing a crime in flagrante
delicto, thus:
"Section 5. Arrest without Warrant; when lawful. - A peace officer or a private person may,
without 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 probable cause to believe
based on personal knowledge of facts or circumstances that the person to be arrested has
committed it; and
(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.
x x x."21 (emphasis supplied)

Appellant also takes issue of the fact that she was not assisted by a lawyer when police officers
interrogated her. She claimed that she was not duly informed of her right to remain silent and to have
competent counsel of her choice. Hence, she argues that the confession or admission obtained
therein should be considered inadmissible in evidence against her.
These contentions deserve scant attention. Appellant did not make any confession during her
custodial investigation. In determining the guilt of the appellant and her co-accused, the trial court
based its decision on the testimonies of prosecution witnesses and on the existence of the
confiscated marijuana. We quote the relevant portion of its decision:
"Earlier in the course of the proceedings, the court then presided by Judge Angel Parazo,
granted bail to accused Agpanga Libnao, ruling that the confiscation receipt signed by both
accused (Exhibit "C") is inadmissible because they were not assisted by a counsel.
Confronted with this same issue, this court finds the postulate to rest on good authority and
will therefore reiterate its inadmissibility.
Since the prosecution had not presented any extrajudicial confession extracted from both
accused as evidence of their guilt, the court finds it needless to discuss any answer given by
both accused as a result of the police interrogation while in their custody. By force of
necessity, therefore, the only issue to be resolved by the court is whether or not,
based on the prosecutions evidence, both accused can be convicted."22 (emphasis
supplied)
Appellant then faults the trial court for appreciating and taking into account the object and
documentary evidence of the prosecution despite the latters failure to formally offer them. Absent
any formal offer, she argues that they again must be deemed inadmissible.
The contention is untenable. Evidence not formally offered can be considered by the court as long
as they have been properly identified by testimony duly recorded and they have themselves been
incorporated in the records of the case.23 All the documentary and object evidence in this case were
properly identified, presented and marked as exhibits in court, including the bricks of
marijuana.24 Even without their formal offer, therefore, the prosecution can still establish the case
because witnesses properly identified those exhibits, and their testimonies are
recorded.25 Furthermore, appellants counsel had cross-examined the prosecution witnesses who
testified on the exhibits.26
Appellant also assails the credibility of the testimonies of the prosecution witnesses. She first cites
the inconsistency between the testimony of SPO1 Marlon Gamotea, who said that it was SPO2
Antonio who opened the black bag containing the marijuana; and that of SPO2 Antonio, who
declared that the bag was already open when he arrived at the Kabayan Center. She then focuses
on the police officers failure to remember the family name of the driver of the tricycle where she
allegedly rode, claiming that this is improbable and contrary to human experience.
Again, appellants arguments lack merit. The alleged inconsistencies she mentions refer only to
minor details and not to material points regarding the basic elements of the crime. They are
inconsequential that they do not affect the credibility of the witnesses nor detract from the
established fact that appellant and her co-accused were transporting marijuana. Testimonies of
witnesses need only corroborate each other on important and relevant details concerning the
principal occurrence.27 The identity of the person who opened the bag is clearly immaterial to the
guilt of the appellant. Besides, it is to be expected that the testimony of witnesses regarding the
same incident may be inconsistent in some aspects because different persons may have different
recollections of the same incident.28

Likewise, we find nothing improbable in the failure of the police officers to note and remember the
name of the tricycle driver for the reason that it was unnecessary for them to do so. It was not shown
that the driver was in complicity with the appellant and her co-accused in the commission of the
crime.
To be sure, credence was properly accorded to the testimonies of prosecution witnesses, who are
law enforcers. When police officers have no motive to testify falsely against the accused, courts are
inclined to uphold this presumption.29 In this case, no evidence has been presented to suggest any
improper motive on the part of the police enforcers in arresting the appellant.
Against the credible positive testimonies of the prosecution witnesses, appellants defense of denial
and alibi cannot stand. The defense of denial and alibi has been invariably viewed by the courts with
disfavor for it can just as easily be concocted and is a common and standard defense ploy in most
cases involving violation of the Dangerous Drugs Act. 30 It has to be substantiated by clear and
convincing evidence.31 The sole proof presented in the lower court by the appellant to support her
claim of denial and alibi was a sworn statement, which was not even affirmed on the witness stand
by the affiant. Hence, we reject her defense.
IN VIEW WHEREOF, the instant appeal is DENIED. The decision of the trial court finding appellant
guilty beyond reasonable doubt of the offense of violation of Article II, Section 4 of R.A. No. 6425 in
relation to R.A. No. 7659, and sentencing her to an imprisonment of reclusion perpetua and to pay a
fine of two million pesos is hereby AFFIRMED.
SO ORDERED.
Panganiban, Sandoval-Gutierrez, Corona, and Carpio Morales, JJ., concur.

Footnotes
1

Criminal Case No. 9384.

Information, Original Records, p. 1; Rollo, p. 4.

A male passenger was seated at the back of the tricycle driver.

Exhibit E.

Decision, Criminal Case No. 9484, pp. 5-6; Rollo, pp. 21-22.

Appellants Brief, p. 5; Rollo, p. 44.

Art. III, Sec. 2, 1987 Constitution.

People v. Aruta, 288 SCRA 626 (1998).

The following cases are recognized in our juriprudence: warrantless search incidental to a
lawful arrest; seizure of evidence in "plain view;" consented warrantless search; customs
search; stop and frisk; and exigent and emergency circumstances.
9

10

People v. Barros, 231 SCRA 557 (1994).

11

Ibid.

12

People v. Lacerna, 278 SCRA 561 (1997).

13

People v. Claudio, 160 SCRA 646 (1988).

14

People v. Tangliben, 184 SCRA 220 (1990).

15

People v. Maspil, Jr., 188 SCRA 751 (1990).

16

People v. Malmsteadt, 198 SCRA 401 (1991).

17

People v. Lo Ho Wing, 193 SCRA 122 (1991).

18

People v. Saycon, 236 SCRA 325 (1994).

19

People v. Balingan, 241 SCRA 277 (1995).

20

People v. Valdez, 304 SCRA 140 (1999).

21

Rule 113, Section 5, Revised Rules of Criminal Procedure.

22

Decision, p.3; Rollo, p. 19.

23

Tabuena v. Court of Appeals, 196 SCRA 650 (1991).

24

Exhibits "D-1" and series, TSN, August 15, 1997; TSN, October 22, 1997, pp. 2-6.

25

People v. Mate, 103 SCRA 484 (1981).

26

People v. Napat-a, 179 SCRA 403 (1989).

27

People v. Inocencio, 229 SCRA 517 (1994).

28

People v. Sy Bing Yok, 309 SCRA 28 (1999).

29

People v. Johnson, 348 SCRA 526 (2000).

30

Ibid.

31

People v. Balmoria, 287 SCRA 687 (1998).

THIRD DIVISION

[G.R. No. 121917. March 12, 1997]

ROBIN
CARIO
PADILLA
@
ROBINHOOD
PADILLA,
petitioner, vs. COURT OF APPEALS and PEOPLE of the
PHILIPPINES, respondents.
DECISION
FRANCISCO, J.:

On October 26, 1992, high-powered firearms with live ammunitions were found in
the possession of petitioner Robin Padilla @ Robinhood Padilla, i.e.:

"(1) One .357 Caliber revolver, Smith and Wesson, SN-32919 with six (6) live
ammunitions;
"(2) One M-16 Baby Armalite rifle, SN-RP 131120 with four (4) long and
one (1) short magazine with ammunitions;
"(3) One .380 Pietro Beretta, SN-A 35723 Y with clip and eight (8)
ammunitions; and
"(4) Six additional live double action ammunitions of .38 caliber revolver."

[1]

Petitioner was correspondingly charged on December 3, 1992, before the Regional

Trial Court (RTC) of Angeles City with illegal possession of firearms and ammunitions
under P.D. 1866 thru the following Information:
[2]

[3]

"That on or about the 26th day of October, 1992, in the City of Angeles,
Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, did then and there willfully, unlawfully and feloniously have
in his possession and under his custody and control one (1) M-16 Baby
Armalite rifle, SN-RP 131120 with four (4) long and one (1) short magazines
with ammunitions, one (1) .357 caliber revolver Smith and Wesson, SN-32919
with six (6) live ammunitions and one (1) .380 Pietro Beretta, SN-A35723Y
with clip and eight (8) ammunitions, without having the necessary authority
and permit to carry and possess the same.
ALL CONTRARY TO LAW."

[4]

The lower court then ordered the arrest of petitioner, but granted his application for
bail. During the arraignment on January 20, 1993, a plea of not guilty was entered for
[5]

[6]

petitioner after he refused, upon advice of counsel, to make any plea. Petitioner
waived in writing his right to be present in any and all stages of the case.
[7]

[8]

[9]

[10]

After trial, Angeles City RTC Judge David Rosete rendered judgment dated April 25,
1994 convicting petitioner of the crime charged and sentenced him to an "indeterminate
penalty from 17 years, 4 months and 1 day of reclusion temporal as minimum, to 21
years ofreclusion perpetua, as maximum". Petitioner filed his notice of appeal on April
28, 1994. Pending the appeal in the respondent Court of Appeals, the SolicitorGeneral, convinced that the conviction shows strong evidence of guilt, filed on
December 2, 1994 a motion to cancel petitioner's bail bond. The resolution of this
motion was incorporated in the now assailed respondent court's decision sustaining
petitioner's conviction, the dispositive portion of which reads:
[11]

[12]

[13]

[14]

"WHEREFORE, the foregoing circumstances considered, the appealed

decision is hereby AFFIRMED, and furthermore, the P200,000.00 bailbond
posted by accused-appellant for his provisional liberty, FGU Insurance
Corporation Bond No. JCR (2) 6523, is hereby cancelled. The Regional Trial
Court, Branch 61, Angeles City, is directed to issue the Order of Arrest of
accused-appellant and thereafter his transmittal to the National Bureau of
Prisons thru the Philippine National Police where the said accused-appellant
shall remain under confinement pending resolution of his appeal, should he
appeal to the Supreme Court. This shall be immediately executory. The
Regional Trial Court is further directed to submit a report of compliance
herewith.
SO ORDERED."

[15]

Petitioner received a copy of this decision on July 26, 1995. On August 9, 1995 he filed
a "motion for reconsideration (and to recall the warrant of arrest)" but the same was
denied by respondent court in its September 20, 1995 Resolution, copy of which was
received by petitioner on September 27, 1995. The next day, September 28, petitioner
filed the instant petition for review on certiorari with application for bail followed by two
"supplemental petitions" filed by different counsels, a "second supplemental
petition" and an urgent motion for the separate resolution of his application for
bail. Again, the Solicitor-General sought the denial of the application for bail, to which
the Court agreed in a Resolution promulgated on July 31, 1996. The Court also
granted the Solicitor-General's motion to file a consolidated comment on the petitions
and thereafter required the petitioner to file his reply. However, after his vigorous
resistance and success on the intramural of bail (both in the respondent court and this
Court) and thorough exposition of petitioner's guilt in his 55-page Brief in the respondent
court, the Solicitor-General now makes a complete turnabout by filing a "Manifestation
In Lieu Of Comment" praying for petitioner's acquittal.
[16]

[17]

[18]

[19]

[20]

[21]

[22]

[23]

[24]

[25]

The People's detailed narration of facts, well-supported by evidence on record and

given credence by respondent court, is as follows:
[26]

"At about 8:00 o'clock in the evening of October 26, 1992, Enrique Manarang
and his compadre Danny Perez were inside the Manukan sa Highway
Restaurant in Sto. Kristo, Angeles City where they took shelter from the heavy
downpour (pp. 5-6, TSN, February 15, 1993) that had interrupted their ride on
motorcycles (pp. 5-6, ibid.) along McArthur Highway (ibid). While inside the
restaurant, Manarang noticed a vehicle, a Mitsubishi Pajero, running fast
down the highway prompting him to remark that the vehicle might get into an
accident considering the inclement weather. (p. 7, Ibid) In the local vernacular,
he said thus: 'Ka bilis na, mumuran pa naman pota makaaksidente ya.' (p.
7, ibid). True enough, immediately after the vehicle had passed the restaurant,
Manarang and Perez heard a screeching sound produced by the sudden and
hard braking of a vehicle running very fast (pp. 7-8, ibid) followed by a
sickening sound of the vehicle hitting something (p. 8, ibid). Danny Cruz,
quite sure of what had happened, remarked 'oy ta na' signifying that Manarang
had been right in his observation (pp. 8-9, ibid).
"Manarang and Cruz went out to investigate and immediately saw the vehicle
occupying the edge or shoulder of the highway giving it a slight tilt to its side
(pp. 9-10, ibid). Manarang, being a member of both the Spectrum, a civic
group and the Barangay Disaster Coordinating Council, decided to report the
incident to the Philippine National Police of Angeles City (p. 10, ibid). He
took out his radio and called the Viper, the radio controller of the Philippine
National Police of Angeles City (p. 10, ibid). By the time Manarang
completed the call, the vehicle had started to leave the place of the accident
taking the general direction to the north (p. 11, ibid).
"Manarang went to the location of the accident and found out that the vehicle
had hit somebody (p. 11, ibid).
"He asked Cruz to look after the victim while he went back to the restaurant,
rode on his motorcycle and chased the vehicle (p. 11 ibid). During the chase
he was able to make out the plate number of the vehicle as PMA 777 (p. 33,
TSN, February 15, 1993). He called the Viper through the radio once again (p.
34, ibid) reporting that a vehicle heading north with plate number PMA 777
was involved in a hit and run accident (p. 20, TSN, June 8, 1993). The Viper,
in the person of SPO2 Ruby Buan, upon receipt of the second radio call
flashed the message to all units of PNP Angeles City with the order to
apprehend the vehicle (p. 20, ibid). One of the units of the PNP Angeles City
reached by the alarm was its Patrol Division at Jake Gonzales Street near the
Traffic Division (pp. 5-7, TSN, February 23, 1993). SPO2 Juan C. Borja III
and SPO2 Emerlito Miranda immediately borded a mobile patrol vehicle
(Mobile No. 3) and positioned themselves near the south approach of Abacan
bridge since it was the only passable way going to the north (pp. 8-9, ibid). It

took them about ten (10) seconds to cover the distance between their office
and the Abacan bridge (p. 9, ibid).
"Another PNP mobile patrol vehicle that responded to the flash message from
SPO2 Buan was Mobile No. 7 of the Pulongmaragal Detachment which was
then conducting patrol along Don Juico Avenue (pp. 8-9, TSN, March 8,
1993). On board were SPO Ruben Mercado and SPO3 Tan and SPO2 Odejar
(p. 8, ibid). SPO Ruben Mercado immediately told SPO3 Tan to proceed to
the MacArthur Highway to intercept the vehicle with plate number PMA 777
(p. 10, ibid).
"In the meantime, Manarang continued to chase the vehicle which figured in
the hit and run incident, even passing through a flooded portion of the
MacArthur Highway two (2) feet deep in front of the Iglesia ni Kristo church
but he could not catch up with the same vehicle (pp. 11-12, February 15,
1993). When he saw that the car he was chasing went towards Magalang, he
proceeded to Abacan bridge because he knew Pulongmaragal was not passable
(pp. 12-14, ibid). When he reached the Abacan bridge, he found Mobile No. 3
and SPO2 Borja and SPO2 Miranda watching all vehicles coming their way
(p. 10, TSN, February 23, 1993). He approached them and informed them that
there was a hit and run incident (p. 10, ibid). Upon learning that the two police
officers already knew about the incident, Manarang went back to where he
came from (pp. 10-11; ibid). When Manarang was in front of Tina's
Restaurant, he saw the vehicle that had figured in the hit and run incident
emerging from the corner adjoining Tina's Restaurant (p. 15, TSN, February
15, 1993). He saw that the license plate hanging in front of the vehicle bore
the identifying number PMA 777 and he followed it (p. 15, ibid) towards the
Abacan bridge.
"Soon the vehicle was within sight of SPO2 Borja and SPO2 Miranda of
Mobile No. 3 (p. 10, TSN, February 23, 1993). When the vehicle was about
twelve (12) meters away from their position, the two police officers boarded
their Mobile car, switched on the engine, operated the siren and strobe light
and drove out to intercept the vehicle (p. 11, ibid). They cut into the path of
the vehicle forcing it to stop (p. 11, ibid).
"SPO2 Borja and SPO2 Miranda alighted from Mobile No. 3 (P. 12, TSN,
February 23, 1993). SPO2 Miranda went to the vehicle with plate number
PMA 777 and instructed its driver to alight (p. 12, ibid). The driver rolled
down the window and put his head out while raising both his hands. They
recognized the driver as Robin C. Padilla, appellant in this case (p.
13, ibid). There was no one else with him inside the vehicle (p. 24). At that
moment, Borja noticed that Manarang arrived and stopped his motorcycle

behind the vehicle of appellant (p. 14, ibid). SPO2 Miranda told appellant to
alight to which appellant complied. Appellant was wearing a short leather
jacket (p. 16, TSN, March 8, 1993) such that when he alighted with both his
hands raised, a gun (Exhibit 'C') tucked on the left side of his waist was
revealed (p. 15, TSN, February 23, 1993), its butt protruding (p.
15, ibid). SPO2 Borja made the move to confiscate the gun but appellant held
the former's hand alleging that the gun was covered by legal papers (p.
16, ibid). SPO2 Borja, however, insisted that if the gun really was covered by
legal papers, it would have to be shown in the office (p. 16, ibid). After
disarming appellant, SPO2 Borja told him about the hit and run incident
which was angrily denied by appellant (p. 17, ibid). By that time, a crowd had
formed at the place (p. 19, ibid). SPO2 Borja checked the cylinder of the gun
and find six (6) live bullets inside (p. 20, ibid).
"While SPO2 Borja and appellant were arguing, Mobile No. 7 with SPO
Ruben Mercado, SPO3 Tan and SPO2 Odejar on board arrived (pp. 11-12,
TSN, March 8, 1993). As the most senior police officer in the group, SPO
Mercado took over the matter and informed appellant that he was being
arrested for the hit and run incident (p. 13, ibid). He pointed out to appellant
the fact that the plate number of his vehicle was dangling and the railing and
the hood were dented (p. 12, ibid). Appellant, however, arrogantly denied his
misdeed and, instead, played with the crowd by holding their hands with one
hand and pointing to SPO3 Borja with his right hand saying 'iyan, kinuha ang
baril ko' (pp. 13-15, ibid). Because appellant's jacket was short, his gesture
exposed a long magazine of an armalite rifle tucked in appellant's back right
pocket (p. 16, ibid). SPOMercado saw this and so when appellant turned
around as he was talking and proceeding to his vehicle, Mercado confiscated
the magazine from appellant (pp. 16-17, ibid). Suspecting that appellant could
also be carrying a rifle inside the vehicle since he had a magazine, SPO2
Mercado prevented appellant from going back to his vehicle by opening
himself the door of appellant's vehicle (16-17, ibid). He saw a baby armalite
rifle(Exhibit D) lying horizontally at the front by the driver's seat. It had a
long magazine filled with live bullets in a semi-automatic mode (pp. 1721,ibid). He asked appellant for the papers covering the rifle and appellant
answered angrily that they were at his home (pp. 26-27, ibid). SPO Mercado
modified the arrest of appellant by including as its ground illegal possession
of firearms (p. 28, ibid). SPO Mercado then read to appellant his
constitutional rights (pp. 28-29, ibid).
"The police officers brought appellant to the Traffic Division at Jake Gonzales
Boulevard (pp. 31-32, ibid) where appellant voluntarily surrendered a third
firearm, a pietro berreta pistol (Exhibit 'L') with a single round in its chamber

and a magazine (pp. 33-35, ibid) loaded with seven (7) other live
bullets. Appellant also voluntarily surrendered a black bag containing two
additional long magazines and one short magazine (Exhibits M, N, and O, pp.
36-37, ibid). After appellant had been interrogated by the Chief of the Traffic
Division, he was transferred to the Police Investigation Division at Sto.
Rosario Street beside the City Hall Building where he and the firearms and
ammunitions were turned over to SPO2 Rene Jesus Gregorio (pp. 5-10, TSN,
July 13, 1993). During the investigation, appellant admitted possession of the
firearms stating that he used them for shooting (p. 14, ibid). He was not able
to produce any permit to carry or memorandum receipt to cover the three
firearms (pp. 16-18, TSN, January 25, 1994).
"On November 28, 1992, a certification (Exhibit 'F') was issued by Captain,
Senior Inspector Mario Espino, PNP, Chief, Record Branch of the Firearms
and Explosives Office (pp. 7-8, TSN, March 4, 1993). The Certification stated
that the three firearms confiscated from appellant, an M-16 Baby armalite rifle
SN-RP 131280, a .357 caliber revolver Smith and Wesson SN 32919 and a .
380 Pietro Beretta SN-A35720, were not registered in the name of Robin C.
Padilla (p. 6, ibid). A second Certification dated December 11, 1992 issued by
Captain Espino stated that the three firearms were not also registered in the
name of Robinhood C. Padilla (p. 10, ibid)."
Petitioner's defenses are as follows: (1) that his arrest was illegal and consequently,
the firearms and ammunitions taken in the course thereof are inadmissible in evidence
under the exclusionary rule; (2) that he is a confidential agent authorized, under a
Mission Order and Memorandum Receipt, to carry the subject firearms; and (3) that the
penalty for simple illegal possession constitutes excessive and cruel punishment
proscribed by the 1987 Constitution.
After a careful review of the records of this case, the Court is convinced that
petitioner's guilt of the crime charged stands on terra firma, notwithstanding the
Solicitor-General's change of heart.
[27]

Anent the first defense, petitioner questions the legality of his arrest. There is no
dispute that no warrant was issued for the arrest of petitioner, but that per se did not
make his apprehension at the Abacan bridge illegal.
Warrantless arrests are sanctioned in the following instances:

[28]

"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.
(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.
Paragraph (a) requires that the person be arrested (i) after he has committed or while
he is actually committing or is at least attempting to commit an offense, (ii) in the
presence of the arresting officer or private person. Both elements concurred here, as it
has been established that petitioner's vehicle figured in a hit and run - an offense
committed in the "presence" of Manarang, a private person, who then sought to arrest
petitioner. It must be stressed at this point that "presence" does not only require that the
arresting person sees the offense, but also when he "hears the disturbance created
thereby AND proceeds at once to the scene." As testified to by Manarang, he heard
the screeching of tires followed by a thud, saw the sideswiped victim (balut vendor),
reported the incident to the police and thereafter gave chase to the erring Pajero vehicle
using his motorcycle in order to apprehend its driver. After having sent a radio report to
the PNP for assistance, Manarang proceeded to the Abacan bridge where he found
responding policemen SPO2 Borja and SPO2 Miranda already positioned near the
bridge who effected the actual arrest of petitioner.
[29]

[30]

[31]

Petitioner would nonetheless insist on the illegality of his arrest by arguing that the
policemen who actually arrested him were not at the scene of the hit and run. We beg
to disagree. That Manarang decided to seek the aid of the policemen (who admittedly
were nowhere in the vicinity of the hit and run) in effecting petitioner's arrest, did not in
any way affect the propriety of the apprehension. It was in fact the most prudent action
Manarang could have taken rather than collaring petitioner by himself, inasmuch as
policemen are unquestionably better trained and well-equipped in effecting an arrest of
a suspect (like herein petitioner) who , in all probability, could have put up a degree of
resistance which an untrained civilian may not be able to contain without endangering
his own life. Moreover, it is a reality that curbing lawlessness gains more success when
law enforcers function in collaboration with private citizens. It is precisely through this
cooperation, that the offense herein involved fortunately did not become an additional
entry to the long list of unreported and unsolved crimes.
[32]

It is appropriate to state at this juncture that a suspect, like petitioner herein, cannot
defeat the arrest which has been set in motion in a public place for want of a warrant as
the police was confronted by an urgent need to render aid or take action. The exigent
circumstances of - hot pursuit, a fleeing suspect, a moving vehicle, the public place
and the raining nighttime - all created a situation in which speed is essential and delay
improvident. The Court acknowledges police authority to make the forcible stop since
they had more than mere "reasonable and articulable" suspicion that the occupant of
the vehicle has been engaged in criminal activity. Moreover, when caught inflagrante
delicto with possession of an unlicensed firearm (Smith & Wesson) and ammunition (M16 magazine), petitioner's warrantless arrest was proper as he was again actually
[33]

[34]

[35]

[36]

committing another offense (illegal possession of firearm and ammunitions) and this
time in the presence of a peace officer.
[37]

Besides, the policemen's warrantless arrest of petitioner could likewise be justified

under paragraph (b) as he had in fact just committed an offense. There was no
supervening event or a considerable lapse of time between the hit and run and the
actual apprehension.Moreover, after having stationed themselves at the Abacan bridge
in response to Manarang's report, the policemen saw for themselves the fast
approaching Pajero of petitioner, its dangling plate number (PMA 777 as reported by
Manarang), and the dented hood and railings thereof. These formed part of the
arresting police officer's personal knowledge of the facts indicating that petitioner's
Pajero was indeed the vehicle involved in the hit and run incident. Verily then, the
arresting police officers acted upon verified personal knowledge and not on unreliable
hearsay information.
[38]

[39]

[40]

Furthermore, in accordance with settled jurisprudence, any objection, defect or

irregularity attending an arrest must be made before the accused enters his plea.
Petitioner's belated challenge thereto aside from his failure to quash the information,
his participation in the trial and by presenting his evidence, placed him in estoppel to
assail the legality of his arrest. Likewise, by applying for bail, petitioner patently waived
such irregularities and defects.
[41]

[42]

[43]

We now go to the firearms and ammunitions seized from petitioner without a search
warrant, the admissibility in evidence of which, we uphold.
The five (5) well-settled instances when a warrantless search and seizure of
property is valid, are as follows:
[44]

1. warrantless search incidental to a lawful arrest recognized under

Section 12, Rule 126 of the Rules of Court and by prevailing
jurisprudence ,
[45]

[46]

2. Seizure of evidence in "plain view", the elements of which are:

[47]

(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
had 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.
[48]

3. search of a moving vehicle. Highly regulated by the government, the

vehicle's inherent mobility reduces expectation of privacy especially when
its transit in public thoroughfares furnishes a highly reasonable suspicion
[49]

amounting to probable cause that the occupant committed a criminal

activity.
[50]

4. consented warrantless search, and

5. customs search.
In conformity with respondent court's observation, it indeed appears that the
authorities stumbled upon petitioner's firearms and ammunitions without even
undertaking any active search which, as it is commonly understood, is a prying into
hidden places for that which is concealed. The seizure of the Smith & Wesson revolver
and an M-16 rifle magazine was justified for they came within "plain view" of the
policemen who inadvertently discovered the revolver and magazine tucked in
petitioner's waist and back pocket respectively, when he raised his hands after alighting
from his Pajero. The same justification applies to the confiscation of the M-16 armalite
rifle which wasimmediately apparent to the policemen as they took a casual glance at
the Pajero and saw said rifle lying horizontally near the driver's seat. Thus it has been
held that:
[51]

[52]

"(W)hen in pursuing an illegal action or in the commission of a criminal

offense, the . . . police officers should happen to discover a criminal offense
being committed by any person, they are not precluded from performing their
duties as police officers for the apprehension of the guilty person and the
taking of the corpus delicti."
[53]

"Objects whose possession are prohibited by law inadvertently found in plain

view are subject to seizure even without a warrant."
[54]

With respect to the Berreta pistol and a black bag containing assorted magazines,
petitioner voluntarily surrendered them to the police. This latter gesture of petitioner
indicated a waiver of his right against the alleged search and seizure , and that his
failure to quash the information estopped him from assailing any purported defect.
[55]

[56]

[57]

Even assuming that the firearms and ammunitions were products of an active
search done by the authorities on the person and vehicle of petitioner, their seizure
without a search warrant nonetheless can still be justified under a search incidental to a
lawful arrest (first instance). Once the lawful arrest was effected, the police may
undertake a protective search of the passenger compartment and containers in the
vehicle which are within petitioner's grabbing distance regardless of the nature of the
offense. This satisfied the two-tiered test of an incidental search: (i) the item to be
searched (vehicle) was within the arrestee's custody or area of immediate control and
(ii) the search was contemporaneous with the arrest. The products of that search are
admissible evidence not excluded by the exclusionary rule. Another justification is a
search of a moving vehicle (third instance). In connection therewith, a warrantless
search is constitutionally permissible when, as in this case, the officers conducting the
search have reasonable or probable cause to believe, before the search, that either the
motorist is a law-offender (like herein petitioner with respect to the hit and run) or the
[58]

[59]

[60]

[61]

[62]

contents or cargo of the vehicle are or have been instruments or the subject matter or
the proceeds of some criminal offense.
[63]

Anent his second defense, petitioner contends that he could not be convicted of
violating P.D. 1866 because he is an appointed civilian agent authorized to possess and
carry the subject firearms and ammunition as evidenced by a Mission Order and
Memorandum Receipt duly issued by PNP Supt. Rodialo Gumtang, the deputy
commander of Task Force Aguila, Lianga, Surigao del Sur. The contention lacks merit.
[64]

In crimes involving illegal possession of firearm, two requisites must be

established, viz.: (1) the existence of the subject firearm and, (2) the fact that the
accused who owned or possessed the firearm does not have the corresponding license
or permit to possess. The first element is beyond dispute as the subject firearms and
ammunitions were seized from petitioner's possession via a valid warrantless search,
identified and offered in evidence during trial. As to the second element, the same was
convincingly proven by the prosecution.Indeed, petitioner's purported Mission Order and
Memorandum Receipt are inferior in the face of the more formidable evidence for the
prosecution as our meticulous review of the records reveals that the Mission Order and
Memorandum Receipt were mere afterthoughts contrived and issued under suspicious
circumstances. On this score, we lift from respondent court's incisive observation. Thus:
[65]

[66]

"Appellant's contention is predicated on the assumption that the Memorandum

Receipts and Mission Order were issued before the subject firearms were
seized and confiscated from him by the police officers in Angeles City. That is
not so. The evidence adduced indicate that the Memorandum Receipts and
Mission Order were prepared and executed long after appellant had been
apprehended on October 26, 1992.
"Appellant, when apprehended, could not show any document as proof of his
authority to possess and carry the subject firearms. During the preliminary
investigation of the charge against him for illegal possession of firearms and
ammunitions he could not, despite the ample time given him, present any
proper document showing his authority. If he had, in actuality, the
Memorandum Receipts and Missions Order, he could have produced those
documents easily, if not at the time of apprehension, at least during the
preliminary investigation. But neither appellant nor his counsel inform the
prosecutor that appellant is authorized to possess and carry the subject
firearms under Memorandum Receipt and Mission Order. At the initial
presentation of his evidence in court, appellant could have produced these
documents to belie the charged against him.Appellant did not. He did not even
take the witness stand to explain his possession of the subject firearms.
"Even in appellant's Demurrer to Evidence filed after the prosecution rested
contain no allegation of a Memorandum Receipts and Mission Order
authorizing appellant to possess and carry the subject firearms.

"At the initial presentation of appellant's evidence, the witness cited was one
James Neneng to whom a subpoena was issued. Superintendent Gumtang was
not even mentioned. James Neneng appeared in court but was not presented
by the defense. Subsequent hearings were reset until the defense found
Superintendent Gumtang who appeared in court without subpoena on January
13, 1994."
[67]

The Court is baffled why petitioner failed to produce and present the Mission Order
and Memorandum Receipt if they were really issued and existing before his
apprehension. Petitioner's alternative excuses that the subject firearms were intended
for theatrical purposes, or that they were owned by the Presidential Security Group, or
that his Mission Order and Memorandum Receipt were left at home, further compound
their irregularity. As to be reasonably expected, an accused claiming innocence, like
herein petitioner, would grab the earliest opportunity to present the Mission Order and
Memorandum Receipt in question and save himself from the long and agonizing public
trial and spare him from proffering inconsistent excuses. In fact, the Mission Order itself,
as well as the Letter-Directive of the AFP Chief of Staff, is explicit in providing that:

"VIII. c. When a Mission Order is requested for verification by

enforcement units/personnels such as PNP, Military Brigade and other
Military Police Units of AFP, the Mission Order should be shown without
resentment to avoid embarrassment and/or misunderstanding.
"IX. d. Implicit to this Mission Order is the injunction that the confidential
instruction will be carried out through all legal means and do not cover
an actuation in violation of laws. In the latter event, this Mission Order is
rendered inoperative in respect to such violation."
[68]

which directive petitioner failed to heed without cogent explanation.

The authenticity and validity of the Mission Order and Memorandum Receipt,
moreover, were ably controverted. Witness for the prosecution Police Supt. Durendes
denied under oath his signature on the dorsal side of the Mission Order and declared
further that he did not authorize anyone to sign in his behalf. His surname thereon, we
note, was glaringly misspelled as "Durembes." In addition, only Unit Commanders and
Chief of Offices have the authority to issue Mission Orders and Memorandum Receipts
under the Guidelines on the Issuance of MOs, MRs, & PCFORs. PNP Supt. Rodialo
Gumtang who issued petitioner's Mission Order and Memorandum Receipt is neither a
Unit Commander nor the Chief of Office, but a mere deputy commander. Having
emanated from an unauthorized source, petitioner's Mission Order and Memorandum
Receipt are infirm and lacking in force and effect. Besides, the Mission Order covers
"Recom 1-12-Baguio City," areas outside Supt. Gumtang's area of responsibility
thereby needing prior approval "by next higher Headquarters" which is absent in this
case. The Memorandum Receipt is also unsupported by a certification as required by
the March 5, 1988 Memorandum of the Secretary of Defense which pertinently provides
that:
[69]

[70]

[71]

[72]

[73]

"No memorandum receipt shall be issued for a CCS firearms without

corresponding certification from the corresponding Responsible Supply
Officer of the appropriate AFP unit that such firearm has been officially
taken up in that units property book, and that report of such action has
been reported to higher AFP authority."
Had petitioner's Memorandum Receipt been authentic, we see no reason why he
cannot present the corresponding certification as well.
What is even more peculiar is that petitioner's name, as certified to by the Director
for Personnel of the PNP, does not even appear in the Plantilla of Non-Uniform
Personnel or in the list of Civilian Agents or Employees of the PNP which could justify
the issuance of a Mission Order, a fact admitted by petitioner's counsel. The
implementing rules of P.D. 1866 issued by the then PC-INP Chief and Director-General
Lt. Gen. Fidel V. Ramos are clear and unambiguous, thus:
[74]

"No Mission Order shall be issued to any civilian agent authorizing the
same to carry firearms outside residence unless he/she is included in the
regular plantilla of the government agency involved in law enforcement
and is receiving regular compensation for the services he/she is rendering
in the agency. Further, the civilian agent must be included in a specific law
enforcement/police/intelligence project proposal or special project which
specifically required the use of firearms(s) to insure its accomplishment and
that the project is duly approved at the PC Regional Command level or its
equivalent level in other major services of the AFP, INP and NBI, or at higher
levels of command."
[75]

Circular No. 1, dated January 6, 1986, of the then Ministry of Justice likewise provides
as follows:

"If mission orders are issued to civilians (not members of the uniformed
service), they must be civilian agents included in the regular plantilla of the
government agency involved in law enforcement and are receiving regular
compensation for the service they are rendering."
That petitioner's Mission Order and Memorandum Receipt were fabricated pieces of
evidence is accentuated all the more by the testimony and certification of the Chief of
the Records Branch of the firearms and Explosives Office of the PNP declaring that
petitioner's confiscated firearms are not licensed or registered in the name of the
petitioner. Thus:
[76]

"Q. In all these files that you have just mentioned Mr. Witness, what did you find, if
any?
"A. I found that a certain Robin C. Padilla is a licensed registered owner of one 9 mm
pistol, Smith and Wesson with Serial No. TCT 8214 and the following firearms
being asked whether it is registered or not, I did not find any records, the M16 and the caliber .357 and the caliber .380 but there is a firearm with the

same serial number which is the same as that licensed and/or registered in
the name of one Albert Villanueva Fallorina.
"Q. So in short, the only licensed firearms in the name of accused Robin C. Padilla
is a pistol, Smith and Wesson, caliber 9 mm with Serial No. TCT 8214?
"A. Yes, sir.
"Q. And the firearms that were the subject of this case are not listed in the names
of the accused in this case?
"A. Yes, sir.[77]

xxx xxx xxx

And the certification which provides as follows:

Republic of the Philippines

Department of the Interior and Local Government
GENERAL HEADQUARTERS PHILIPPINE NATIONAL POLICE
FIREARMS AND EXPLOSIVES OFFICE
Camp Crame, Quezon City
"PNPFEO5 28 November 1992
"C E R T I F I C A T I O N
"TO WHOM IT MAY CONCERN:
"THIS IS TO CERTIFY that Robin C. Padilla of 59 Labo St., Quezon City is a
licensed/registered holder of Pistol Smith and Wesson Cal 9mm with serial number
TCT8214 covered by License No. RL M76C4476687.
"Further certify that the following firearms are not registered with this Office
per verification from available records on file this Office as of this date:
M16 Baby Armalite SN-RP131120
Revolver Cal 357 SN-3219
Pistol Cal 380 Pietro Beretta SN-35723
"However, we have on file one Pistol Cal 380, Beretta with serial number 35723Y,
licensed/registered to one Albert Villanueva Fallorina of 29 San Juan St., Capitol
Pasig, MM under Re-Registered License.
"This certification is issued pursuant to Subpoena from City of Angeles.
"FOR THE CHIEF, FEO:

(Sgd.)
JOSE MARIO M. ESPINO
Sr. Inspector, PNP
Chief, Records Branch"
[78]

In several occasions, the Court has ruled that either the testimony of a
representative of, or a certification from, the PNP Firearms and Explosives Office (FEO)
attesting that a person is not a licensee of any firearm would suffice to prove beyond
reasonable doubt the second element of illegal possession of firearm. In People vs.
Tobias, we reiterated that such certification is sufficient to show that a person has in
fact no license. From the foregoing discussion, the fact that petitioner does not have the
license or permit to possess was overwhelmingly proven by the prosecution. The
certification may even be dispensed with in the light of the evidence that an M-16 rifle
and any short firearm higher than a .38 caliber pistol, akin to the confiscated firearms,
cannot be licensed to a civilian, as in the case of petitioner. The Court, therefore,
entertains no doubt in affirming petitioner's conviction especially as we find no plausible
reason, and none was presented, to depart from the factual findings of both the trial
court and respondent court which, as a rule, are accorded by the Court with respect and
finality.
[79]

[80]

[81]

[82]

[83]

Anent his third defense, petitioner faults respondent court "in applying P.D. 1866 in
a democratic ambience (sic) and a non-subversive context" and adds that respondent
court should have applied instead the previous laws on illegal possession of firearms
since the reason for the penalty imposed under P.D. 1866 no longer exists. He
stresses that the penalty of 17 years and 4 months to 21 years for simple illegal
possession of firearm is cruel and excessive in contravention of the Constitution.
[84]

[85]

The contentions do not merit serious consideration. The trial court and the
respondent court are bound to apply the governing law at the time of appellant's
commission of the offense for it is a rule that laws are repealed only by subsequent
ones. Indeed, it is the duty of judicial officers to respect and apply the law as it stands.
And until its repeal, respondent court can not be faulted for applying P.D. 1866 which
abrogated the previous statutes adverted to by petitioner.
[86]

[87]

Equally lacking in merit is appellant's allegation that the penalty for simple illegal
possession is unconstitutional. The penalty for simple possession of firearm, it should
be stressed, ranges from reclusion temporal maximum to reclusion perpetua contrary to
appellant's erroneous averment. The severity of a penalty does not ipso facto make the
same cruel and excessive.

"It takes more than merely being harsh, excessive, out of proportion, or severe for a
penalty to be obnoxious to the Constitution. 'The fact that the punishment authorized
by the statute is severe does not make it cruel and unusual.' (24 C.J.S., 11871188). Expressed in other terms, it has been held that to come under the ban, the
punishment must be 'flagrantly and plainly oppressive', 'wholly disproportionate to the
nature of the offense as to shock the moral sense of the community' "
[88]

It is well-settled that as far as the constitutional prohibition goes, it is not so much the
extent as the nature of the punishment that determines whether it is, or is not, cruel and
unusual and that sentences of imprisonment, though perceived to be harsh, are not
cruel or unusual if within statutory limits.
[89]

Moreover, every law has in its favor the presumption of constitutionality. The burden
of proving the invalidity of the statute in question lies with the appellant which burden,
we note, was not convincingly discharged. To justify nullification of the law, there must
be a clear and unequivocal breach of the Constitution, not a doubtful and argumentative
implication, as in this case. In fact, the constitutionality of P.D. 1866 has been upheld
twice by this Court. Just recently, the Court declared that "the pertinent laws on
illegal possession of firearms [are not] contrary to any provision of the
Constitution. . ." Appellant's grievance on the wisdom of the prescribed penalty should
not be addressed to us. Courts are not concerned with the wisdom, efficacy or morality
of laws. That question falls exclusively within the province of Congress which enacts
them and the Chief Executive who approves or vetoes them. The only function of the
courts, we reiterate, is to interpret and apply the laws.
[90]

[91]

[92]

With respect to the penalty imposed by the trial court as affirmed by respondent
court (17 years 4 months and 1 day of reclusion temporal, as minimum, to 21 years
of reclusion perpetua, as maximum), we reduce the same in line with the fairly recent
case of People v. Lian where the Court en banc provided that the indeterminate
penalty imposable for simple illegal possession of firearm, without any mitigating or
aggravating circumstance, should be within the range of ten (10) years and one (1) day
to twelve years (12) of prision mayor, as minimum, to eighteen (18) years, eight (8)
months and one (1) day to twenty (20) of reclusion temporal, as maximum. This is
discernible from the following explanation by the Court:
[93]

"In the case at bar, no mitigating or aggravating circumstances have been alleged or
proved, In accordance with the doctrine regarding special laws explained in People v.
Simon, although Presidential Decree No. 1866 is a special law, the penalties therein
were taken from the Revised Penal Code, hence the rules in said Code for graduating
by degrees or determining the proper period should be applied. Consequently, the
penalty for the offense of simple illegal possession of firearm is the medium period of
the complex penalty in said Section 1, that is, 18 years, 8 months and 1 day to 20
years.
[94]

"This penalty, being that which is to be actually imposed in accordance with the rules
therefor and not merely imposable as a general prescription under the law, shall be the
maximum of the range of the indeterminate sentence. The minimum thereof shall be
taken, as aforesaid, from any period of the penalty next lower in degree, which
is, prision mayor in its maximum period to reclusion temporal in its medium period.
[95]

WHEREFORE, premises considered, the decision of the Court of Appeals

sustaining petitioner's conviction by the lower court of the crime of simple illegal
possession of firearms and ammunitions is AFFIRMED EXCEPT that petitioner's

indeterminate penalty is MODIFIED to ten (10) years and one (1) day, as minimum, to
eighteen (18) years, eight (8) months and one (1) day, as maximum.
SO ORDERED
Narvasa, C.J. (Chairman), Davide, Jr., Melo, and Panganiban, concur.

[1]

Investigation Report dated October 26, 1992 of SPO1 Rene Jesus T. Gregorio of the Angeles City,
Philippine National Police (PNP), (RTC Records, Vol. 1, p. 9).

[2]

CODIFYING THE LAWS ON ILLEGAL/UNLAWFUL POSSESSION, MANUFACTURE, DEALING IN,

ACQUIISITION OR DISPOSITION, OF FIREARMS, AMMUNITION OR EXPLOSIVES OR
INSTRUMENTS USED IN THE MANUFACTURE OF FIREARMS, AMMUNITION OR
EXPLOSIVES; AND IMPOSING STIFFER PENALTIES FOR CERTAIN VIOLATIONS THEREOF
AND FOR RELEVANT PURPOSES.

[3]

The information was filed by Special Counsel Irin Zenaida S. Buan and was docketed as Criminal Case
No. 92-1083 of Branch 61 of the Angeles City R.T.C. presided by Judge David R. Rosete.

[4]

RTC Records, Vol. I, p. 1.

[5]

The warrant of arrest dated December 8, 1992 was issued by Judge Rosete. Later, an order recalling all
warrant of arrest against petitioner was issued by Judge Maximiano Asuncion of RTC Quezon
City. (RTC Records, Vol. I, p. 34).

[6]

Petitioner posted a personal bail bond of P200,000.00 furnished by FGU Insurance Coporation (RTC
Records, Vol. I, p. 37).

[7]

Rule 116, Section 1(c) "If the accused refuses to plead, or makes a conditional plea of guilty, a plea of
not guilty shall be entered for him."

[8]

Petitioner was assisted by his then lead counsel Dean Antonio Coronel (appearance withdrawn April,
1993 to serve his suspension by the Supreme Court, RTC Records, Vol. I, p. 260) and Atty. Philip
Jurado. The prosecution was represented by Angeles City Prosecutor Antonio G.P. Fausto and
his Assistant, Rufino Antonio.

[9]

Order dated January 20, 1993, RTC Records, Vol. I, pp. 59 and 75.

[10]

RTC Records, Vol. I, p. 57.

[11]

RTC Decision, p. 6; Rollo, p. 48.

[12]

RTC Records, vol. II, p. 828.

[13]

The appeal was docketed as CA-G.R. No. CR-16040. Atty Jurado withdrew his appearance as
petitioner's counsel on October, 1994 when the appeal was pending for the CA. His signature,
however still appeared on some pleadings for petitioner (CA Rollo, p. 429). Rene A.V. Saguisag
and Associates entered their appearance as new counsel (CA Rollo, p. 58). Appellant's brief,
however, was also signed by his brother Robert A. Padilla and Gina C. Garcia (CA Rollo, p. 146).

[14]

The 23-page CA (Special Tenth Division) decision promulgated on July 21, 1995 was penned by
Justice Antonio P. Solano with Justices Ricardo P. Galvez and Conchita Carpio-Morales,
concurring. (Rollo, pp. 50-72).

[15]

CA Decision, p. 23; Rollo, p. 50.

[16]

Registry Return Receipt, attached to p. 343 of the CA Rollo.

[17]

Registry Receipt stamped August 9, 1995. See CA Rollo, pp. 403-430.

[18]

CA Rollo, pp. 463-464.

[19]

The petition was signed by the Raval Suplico and Lokin Law Office.

[20]

One supplemental petition was filed on October 9, 1995 signed by Padilla, Jurado and Saguisag. The
other supplemental petition was filed on October 11, 1995 and signed by the Raval Suplico and
Lokin Office.

[21]

Signed by Padilla, Jurado and Saguisag.

[22]

Solicitor-General's Comment on the application for bail.

[23]

Padilla vs. CA and People, (Resolution), G.R. No.121917, July 31, 1996.

[24]

Rollo, pp. 258, 282.

[25]

Rollo, pp 312-339.

[26]

Counterstatement of Facts, Appellee's Brief filed with the CA by the Solicitor-General (CA Rollo, pp.
230-240).

[27]

Consisting of about 4,000 pages.

[28]

Section 5, Rule 113 of the Revised Rules of Criminal Procedure.

[29]

People v. Cuison, G.R. No. 109287, April 18, 1996.

[30]

US v. Samonte, 16 Phil. 516, 519, citing 3 Cyc., 886; Ramsey v. State, 17 S. E., 613; Dilger v. Com., 11
S. W., 651; State v. McAfee, 12 S. E., 435; State v. Williams, 15 S. E., 554; and Hawkins v.
Lutton, 70 N. W., 483.

[31]

TSN, February 13, 1993, Enrique Manarang, pp. 5-11.

[32]

This hit and run incident was the subject of a different complaint against petitioner.

[33]

United States v. Gordils, 982 F2d 64, 69 (1992).

[34]

See People v. de Lara, 55 SCAD 190, 196, 236 SCRA 291, 297 (1994).

[35]

United States v. Lopez, 989 F2d 24, 26 (1993); United States v. Ross, 456 U.S. 798, 806-807 (1982);
Warden v. Hayden, 387 U.S. 294, 298-9 (1967).

[36]

United States v. King, 990 F2d 1552, 1557 (1993); United States v. Place, 456 U.S. 696, 702 (1983);
Reid v. Georgia, 448 U.S. 438, 440 (1980).

[37]

See People v. Fernandez, 57 SCAD 481 (1994); Higbee v. City of San Diego, 911 F2d 377, 379 (1990).

[38]

Eighty km/hr or higher. (TSN, Ibid., p.3).

[39]

Exh. "B and its sub-markings - Picture of the vehicle driven by petitioner which showed the dangling
plate number and the damaged hood and railings.

[40]

See People v. Woolcock, 314 Phil. 81 (1995).

[41]

People v. Rivera, 315 Phil. 454; People v. de Guzman, 231 SCRA 737; People v. De Guia, 227 SCRA
614; People v. Codilla, 224 SCRA 104 (1993); People v. de Guzman, 224 SCRA 93 (1993);
People v. Rabang, 187 SCRA 682 (1990).

[42]

People vs. Lopez, 315 Phil. 59 citing de Asis v. Romero, 41 SCRA 235 (1971); See also People v.
Nitcha, 310 Phil. 287 (1995) citing People v. Hubilo, 220 SCRA 389 (1993); People v. Samson,
244 SCRA 146; Zacarias v. Cruz,141 Phil. 417 (1969), citing U.S. v. Grant, 18, Phil. 122, 147;
Doce v. Branch II of the CFI of Quezon, 22 SCRA 1028, 1031, citing Carington v. Peterson, 4
Phil. 134 and US v. Grant, Supra.

[43]

In Re Letter of Freddie Manuel, 54 SCAD 97, 99, 235 SCRA 5 (1994); People v. Dural, 42 SCAD 213,
223 SCRA 201 (1993); Palanca v. Querubin, 141 Phil. 432 (1969).

[44]

Mustang Lumber, Inc. v. CA, et al., G.R. No. 104988, June 18, 1996. The fifth being customs search.

[45]

Search incident to lawful arrest. - A person lawfully arrested may be searched for dangerous weapons
or anything which may be used as proof of the commission of the offense, without a search
warrant.

[46]

People v. Salazar, G.R. No. 98060, January 27, 1997; People v. Figueroa, 248 SCRA 679 (1995);
People v. Gerente, 219 SCRA 756; People v. Malmstedt, 198 SCRA 401; People v. Sucro, 195
SCRA 388; People v. Tangliben, 184 SCRA 220; People v. Lo Ho Wing, 193 SCRA 122;
People v. Paco, 170 SCRA 681; Manipon v. Sandiganbayan, 143 SCRA 267.

[47]

Mapp v. Warden, 531 F2d 1167; United States v. Griffin, 530 F2d 739; United States v. Hilstrom, 533
F2d 209, 429 U.S. 982, 97 S Ct 498; US v. Pacelli, 470 F2d 67, 415 U.S. 983, 93 S Ct 1501;
Coolidge v. New Hampshire, 403 U.S. 443, 91 S Ct 2022; Ker v. California, 374 U.S. 443, 465, 91
S Ct 2022, 2037-38;

[48]

Harris v. US, 390 US 234; People v. Evaristo, 216 SCRA 431.

[49]

People vs. Balingan, 241 SCRA 277 (1995); People v. Fernandez, supra. citing People v. CFI of Rizal,
101 SCRA 86 (1980); People v. Lo Ho wing, 193 SCRA 122; Roldan v. Arca, 65 SCRA 336.

[50]

United v. Rem, 984 F2d 806, 812 (1993); United States v. Diaz-Lizaraza, supra. at p. 1220; United
States v. McCoy, 977 F2d 706, 710 (1992); United States v. Rusher, 966 F2d 868, 874 (1992);
United States v. Parker, 928 F2d 365-69 (1991).

[51]

Black's Law Dictionary, Revised Fourth Edition, citing People v. Exum, 382 I11. 204, 47 N.E. 2d 56, 59.

[52]

TSN, SPO Mercado, July 1, 1993, p. 5.

[53]

Concurring opinion of Justice Perfecto in Magoncia v. Palacio, 80 Phil. 770, 776 cited in People v.
Cruz, ibid. at 141 and People v. Acol, ibid.

[54]

People v. Evaristo, supra.

[55]

TSN, March 8, 1993, SPO Ruben Mercado, pp. 32-35.

[56]

In People v. Doro, 223 SCRA 19 the Court said that the accused therein waived his right against the
warrantless search when he voluntarily opened the package containing illegal drugs. See also
People v. Kagui Malasugui, 63 Phil. 221.

[57]

People v. Compil, 244 SCRA 135 (1944).

[58]

United States v. Saffeels, 982 F2d 1199, 1206 (1992); Michigan v. Long, 463 U.S. 1032, 1034-5 (1983).

[59]

United States v. Diaz-Lizaraza, 981 F2d 1216, 1222 (1993); United States v. Franco, 981 F2d 470, 473
(1992); New York v. Belton, 453 U.S. 454, 460-1 (1981).

[60]

United States v. $639,558.00 in United States Currency, 955 F2d 712, 715-16 (1992); United Staes v.
Holifield, 956 F2d 665, 669 (1992); United States v. Arango, 879 F2d 1501, 1505 (1989).

[61]

United States v. Tarazon, 989 F2d 1045, 1051 (1993).

[62]

Shipley v. California, 395 U.S. 818, 819 (1969).

[63]

People v. Barros, 231 SCRA 557, 566.

[64]

Exhibit "1" - Alleged Mission Order of Petitioner contains the following:

Republic of the Philippines
Department of Interior and Local Government

Headquarters Philippine National Police

Lianga, Surigao del Sur
29 Sept. 1992
Mission Order
Number 29-9-92-B
To: PSUPT GREGORIO DUREMBES
SO ROBIN PADILLA
-POSTI. PROCEED TO: Camp Crame, NCR, Recom 1-12-Baguio City
II. PURPOSE: To intensify Int'l coverage and to negotiate the imdte. surrender of Father Frank Navarro
(rebel priest), believed attending conference in Baguio City.(CPP/NPA).
III.DURATION: FROM: 29 Sept to 31 Oct 1992.
IV. AUTHORIZE TO WEAR THE FOLLOWING UNIFORM/ATTIRE:
(x) KHAKI ( ) HBT (x) CIVILIAN
V. AUTHORIZED TO CARRY THE FOLLOWING FIREARMS:
LIC OR MR MAKE KIND CAL SER. NO. AMMO
-----------------------------------------------------------------------------------------------LIC or MR issued Firearms & Ammos
-x-x-x-x-x-x Nothing Follows x-x-x-x-x-x-x-x
------------------------------------------------------------------------------------------------RECOMMENDED BY: APPROVED BY:
Sgd. RODALIO A. GUMTANG
SUPT (CSP) PNP
Deputy & S-4
[65]

People vs. Solayao, G.R. No. 119220, September 20, 1996; People vs. Lualhati, 234 SCRA 325
(1994); People vs. Damaso, 212 SCRA 547 (1992).

[66]

Exh. "C" - 357 Smith and Wesson with bullets; Exh. "D" - M-16 armalite with magazine; Exh."K" - M-16
magazine; Exh. "L" - Peitro Berreta; Exh. "N" - 2 long magazines; Exh. "O" - 1 short magazine.

[67]

Decision of the Court of Appeals, pp. 18-19; Rollo, pp. 67-68.

[68]

Exhibit "1"; Exhibit "Y".

[69]

TSN, Supt. Gregorio Durendes, February 10, 1994, p. 11.

[70]

Exhibit "1" for the Defense; Exhibit "U" (Rebuttal) for the Prosecution.

Issued by PNP Director-General Cesar Nazareno, March 21, 1991. Its pertinent provision states as
follows:
[71]

"3.a. Only unit Commanders/Chiefs of Offices are authorized to issue Mission Orders to their
respective personnel while in the official performance of duties. Such Mos shall be valid only
within the area of responsibility (AOR) of the Unit Commander / Chief of Office concerned.

"c. MOs of PNP personnel performing mission outside AOR must be approved by next higher
Headquarters."
[72]

Exhibit "1".

[73]

See Note 71, supra.

[74]

Ether Ignacio, Chief of the Non-Uniform Personnel Section of the PNP, testified that petitioner's name is
not in the Plantilla of Personnel. Counsel for petitioner admitted that the latter is "not in the
plantilla." (Rollo, p. 357; CA Decision, p. 14; TSN, Ethel Ignacio, July 25, 1994, pp. 4-6).

[75]

April 28, 1984 Amendments to the Rules and Regulations Implementing P. D. 1866 issued by the PCINP Chief and Director-General.

[76]

Sr. Inspector Jose Mario Espino, of the PNP Headquarters in Camp Crame, Quezon City issued the
certification dated November 28, 1992 and December 11, 1992. (Exhibits "F" and "G"; TSN March
4, 1993, Jose Mario Espino, pp. 7, 9, 14-17).

[77]

TSN, Sr. Inspector Jose Mario Espino, March 4, 1993, p. 14.

[78]

Exhibit "F". In exhibit "G", petitioner's alias, "Robinhood C. Padilla," was checked and yielded the same
information found in Exhibit "F" quoted above.

[79]

Mallari vs. CA and People of the Philippines, G.R. No. 110569, December 9, 1996 citing People vs.
Solayao, G.R. No. 119220, September 20, 1996. Such and similar certifications were declared
adequate by the Court in Rosales vs. Ca, 255 SCRA 123 (1996), People vs. Orehuela, 232 SCRA
82, 97 (1994).

[80]

G.R. No. 114185, January 30, 1997.

[81]

People vs. Mesal, 313 Phil. 888.

[82]

TSN, Jose Mario Espino, March 4, 1993, p. 20.

[83]

People vs. Cahindo, G.R. No. 121178, January 27, 1997; People vs. Bracamonte, G.R. No. 95939,
June 17, 1996; People vs. Angeles, 315 Phil. 23; People vs. Remoto, 314 Phil. 432.

[84]

Supplemental petition, pp. 1-3; Rollo, pp. 84-86.

[85]

Article III, Section 19(1), 1987 Constitution.

[86]

Article 7, Civil Code.

[87]

See: People v. Limaco, 88 Phil. 36; People v. Venaracion, 249 SCRA 244.

[88]

People v. Estoista, 93 Phil. 647.

[89]

Baylosis v. Chavez, Jr., 202 SCRA 405, 417.

[90]

Peralta v. COMELEC, 82 SCRA 30, 55.

[91]

Misolas v. Panga, 181 SCRA 648; Baylosis v. Chavez, Jr. 202 SCRA 405.

[92]

People v. Morato, 224 SCRA 361, 367-368.

[93]

255 SCRA 532 (1996).

[94]

234 SCRA 555.

[95]

People v. Jian , 255 SCRA 532, 542.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC

G.R. No. L-21325 October 29, 1971

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
PABLEO DRAMAYO, PATERNO ECUBIN, PRIOLO BILLONA, FRANCISCO BILLONA,
MODESTO RONQUILLA, CRESCENCIO SAVANDAL and SEVERO SAVANDAL,
defendants; PABLEO DRAMAYO and PATERNO ECUBIN, defendants-appellant.
Office of the Solicitor General Felix V. Makasiar, Assistant Solicitor General Arturo G. Ibarra
and Solicitor Conrado T. Limcaoco for plaintiff-appellee.
Arturo E. Balbastro for defendants-appellants.

FERNANDO, J.:
There is an element of ingenuity as well as of novel in the plea made by counsel de oficio in
this appeal of the accused Pableo Dramayo and Paterno Ecubin, who were sentenced to
life imprisonment for the murder of Estelito Nogaliza. The claim is vigorously pressed that
because the information alleged conspiracy on the part of seven defendants, with only the
two appellants being convicted, two having been utilized as state witnesses and the other
three having been acquitted on the ground of insufficiency of evidence as to their culpability,
the judgment of conviction against the appellants cannot stand, there being a reasonable
doubt as to their guilt. To bolster such a contention, certain alleged deficiencies in the proof
offered by the prosecution were noted. A careful study of the evidence of record would leave
no other rational conclusion but that the deceased met his death at the hands of the
appellants in the manner as found by the lower court. Hence the appeal cannot prosper. We
affirm.
The gory incident which was attended by a fatality started on the morning of January 9,
1964. The two accused, now appellants, Pableo Dramayo and Paterno Ecubin, in the
company of the deceased Estelito Nogaliza, all of Barrio Magsaysay, of the Municipality of
Sapao, Surigao del Norte, saw its chief of police. Their purpose was to shed light on a
robbery committed in the house of the deceased five days before by being available as

witnesses. The response was decidedly in the negative as they themselves were prime
suspects, having been implicated by at least two individuals who had confessed. At about
7:00 o'clock of the same day, while they were in the house of their co-accused Priolo
Billona, the accused Dramayo invited all those present including the other accused
Francisco Billons, Modesto Ronquilla. Crescencio and Severo Savandal, for a drinking
session at a place at the back of the school house. It was on that occasion that Dramayo
brought up the idea of killing Estelito Nogaliza so that he could not testify in the robbery
case. The idea was for Dramayo and Ecubin to ambush Estelito, who was returning from
Sapao. The others were to station themselves nearby. 1
Soon the unfortunate victim was sighted. He was accosted by Dramayo with a request for a
cigarette. It was then that Ecubin hit him with a piece of wood on the side of the head near
the right ear. Dramayo's participation consisted of repeated stabs with a short pointed bolo
as he lay prostrate from the blow of Ecubin. It was the former also, who warned the rest of
the group to keep their mouths sealed as to what had just happened. His equanimity
appeared undisturbed for early the next morning, he went to the house of the deceased and
informed the, latter's widow Corazon that he had just seen the cadaver of Estelito. The
barrio lieutenant and the chief of police were duly notified. The latter, upon noticing blood
stains on the trousers of Dramayo, asked him to explain. The answer was that a skin
ailment of his daughter was the cause thereof. 2 The death was due to the wounds inflicted, two in
the epigastric region, one in the right lumbar region, and another in the left breast.

It was on the basis of the above testimony offered by the prosecution that the lower court
reached its decision. Its dispositive portion found the accused, now appellant Pableo
Dramayo and Paterno Ecubin, guilty beyond reasonable doubt, of the crime of [murder],
defined and penalized under Art. 248 of the Revised Penal Code, qualified by the
circumstance of evident premeditation aggravated by night time, and imposes upon each of
the said accused, Pableo Dramayo and Paterno Ecubin, the penalty of [reclusion
perpetual]." 3 Reference was likewise made in such decision as to why the other co-accused were not
convicted, two of them, Crescencio Savandal and Severo Savandal being utilized as state witnesses, and
the others three, Priolo Billona, Francisco Billona and Modesto Roquilla acquitted.

Why they should not be found guilty was explained in the appealed decision thus: "From the
beginning the accused Modesto Ronquilla maintained that he was not with the group but
that he was fishing in the sea during the night in question. These facts that is, that none of
the prosecution witnesses has testified that any of these three accused actually helped in
the killing of the deceased, Estelito Nogaliza; that these three accused were included in the
case only much later after the filing of this case against Pableo Dramayo and Paterno
Ecubin; the consistent contention of the accused Modesto Ronquilla that he was out in the
sea fishing during the night in question; and the testimonies of the accused Priolo Billona
[and] Francisco [and their witnesses,] Juan Billona, Esperanza Oposa Billona, Guillerma
Ponce, and Anselmo Lisondra, given in a straight-forward manner, without hesitation,
revealing a clear conscience, and the fact that the testimonies of these witnesses have not

been refuted by the PC soldiers (whom they accused of maltreatment] when they were
available to the prosecution, cause the Court to entertain a very serious doubt as to the guilt
of the said accused." 4
The lower court was hardly impressed with the defense of alibi interposed by now
appellants Dramayo and Ecubin, and it must have been their lack of persuasive character
that must have led to the able brief of counsel de oficio, Atty. Arturo E. Balbastro, stressing
the absence of evidence sufficient to convict, there still being a reasonable doubt to be
implied from the fact that while conspiracy was alleged, only two of the seven accused were
held culpable. To repeat, a meticulous appraisal of the evidence justifies a finding of the
guilt of the appellants for the offense charged, thus calling for the affirmance of the decision.
1. It is to be admitted that the starting point is the Presumption of innocence. So it must be,
according to the Constitution. 5 That is a right safeguarded both appellants. Accusation is not,
according to the fundamental law, synonymous with guilt. It is incumbent on the prosecution demonstrate
that culpability lies. Appellants were not even called upon then to offer evidence on their behalf. Their
freedom is forfeit only if the requisite quantum of proof necessary for conviction be in existence. Their guilt
be shown beyond reasonable doubt. To such a standard this Court has always been committed. There is
need, therefore, for the most careful scrutiny of the testimony of the state, both oral and documentary,
independently whatever defense is offered by the accused. Only if judge below and the appellate tribunal
could arrive at a conclusion that the crime had been committed precisely by the person on trial under
such an exacting test should sentence be one of conviction. It is thus required that circumstance favoring
his innocence be duly taken into count. The proof against him must survive the reason; the strongest
suspicion must not be permitted to sway away judgment. The conscience must be satisfied that on the
defendant could be laid the responsibility for the offense charged; that not only did he perpetrate the act
but that it amounted to a crime. What is required then is moral certainty.

So it has been held from the 1903 decision of United States v. Reyes. 6 United States v.
Lasada, 7 decided in 1910, yields this excerpt: "By reasonable doubt is meant that which of possibility may
arise, but it is doubt engendered by an investigation of the whole proof and an inability, after such
investigation, to let the mind rest easy upon the certainty of guilt. Absolute certain of guilt is not demanded
by the law to convict of any carnal charge but moral certainty is required, and this certainty is required as
to every proposition of proof regular to constitute the offense." 8 To the same effect is an excerpt from the
opinion of the late Justice Tuason in People v. Esquivel. 9 Thus: "In this connection it may not be out of
place to bring to the attention of prosecuting attorneys the absolute necessity of laying before the court
the pertinent facts as their disposal with methodical and meticulous attention, clarifying contradictions and
filling up gaps and loopholes in their evidence, to the end that the court's mind may not be tortured by
doubts, that the innocent may not suffer and the guilty not escape unpunished. Obvious to all, this is the
prosecution's prime duty to the court, to the accused, and to the state." 10

It is understandable why the stress should be on the absence of sufficient evidence to

establish the guilt of appellants beyond reasonable doubt, the defense of alibi interposed
hardly meriting any further discussion. It cannot be denied though that the credible and
competent evidence of record resulted in moral certainty being entertained not only by the
trial judge but by us as to the culpability of appellants. The force of the controlling doctrines,
on the other hand, required that the other three accused be acquitted precisely because,

unlike in the case of appellants, the requisite quantum of proof to show guilt beyond
reasonable doubt was not present. There is no question as to the other two who testified for
the state being likewise no long subject to any criminal liability. The reference then to
opinion of the late Justice Laurel, stressing the need for adhering to the fundamental
postulate that a finding of guilt is allowable only when no reasonable doubt could be
entertained, is unavailing. This is evident from the very citation in the brief of appellants of
the opinion of Justice Laurel in People v. Manoji.11 Thus: "Upon the other hand there are certain
facts which if taken together are sufficient to raise in the mind of the court a grave doubt as to the guilt of
the defendant-appellant, 'that doubt engendered by an investigation of the whole proof and an inability
after such investigation, to let the mind rest easy upon the certainty of guilt.' (U.S. v. Lasada [1910], 18
Phil. 90, 96.) The finding of the two gold teeth of the deceased the suitcase of Maradani, and the
testimony of Erajio Ello that he gave the hat ... to Maradani not only engender serious doubt in our minds
as to the guilt of the appellant but also seems to sustain the theory of the defense and strengthen the
suspicion of the trial court, that Maradani and Salupudin are not foreign to, or entirely ignorant of, the
killing of Seijin Ige. In the light of the facts and circumstances of record, we feel that it is better to acquit a
man upon the ground of reasonable doubt, even though he may in reality be guilty, than to confine in the
penitentiary for the rest of his natural life a person who may be innocent. ..." 12 The facts of the present
case certainly do not fit within the above mold. Reliance on the part of appellants on the above decision is
therefore futile.

The judgment of conviction should not have occasioned any surprise on the part of the two
appellants, as from the evidence deserving of the fullest credence, their guilt had been more
than amply demonstrated. The presumption of innocence could not come to their rescue as
it was more than sufficiently overcome by the proof that was offered by the prosecution.
What would have been a blot on the law is that if, on the facts as established, no
reasonable doubt being entertained, the two appellants would have been acquitted likewise
just because the other five defendants, for the reasons above stated, were not similarly
sentenced. The principal contention raised is thus clearly untenable. It must be stated
likewise that while squarely advanced for the first time, there had been cases where this
Court, notwithstanding a majority of the defendants being acquitted, the element of
conspiracy likewise being allegedly present, did hold the party or parties, responsible for the
offense guilty of the crime charged, a moral certainty having arisen as to their capability. 13
2. The brief for appellants did seek to fortify the allegation as to their guilt not having been
sufficiently demonstrated with the contention that the lower court overlooked or did not
properly consider material and significant facts of record that ought to have substantially
affected or altered the judgment. Even the most careful reading of such brief, however, with
due recognition of the vigor in which this particular point is pressed, would not destroy the
credibility of the facts as testified to concerning the manner in which the deceased was
killed and the motive that prompted appellants to put an end to his life. That such a version
could not have been concocted is shown by the undeniable fact that the two appellants
were duly convicted of robbery, with the deceased as the offended party. It was
understandable then why they would want to do away with the principal witness against
them. There was thus a strong inducement for the appellants to have committed this crime

of murder. With the testimony of record pointing to no other conclusion except the
perpetration of the killing by them, the effort of their counsel, while to be expected from an
advocate zealous in defense of his clients' rights, certainly should not be attended with
success. It suffices to reiterate the well-settled principle that this Court has invariably
respected the findings of facts of a trial judge who was in a position to weigh and appraise
the testimony before him except when, as was not shown in this case, circumstances
weight or influence were ignored or disregarded by him. 14
WHEREFORE, the judgment of September 8, 1965 affirmed with the modification that the
indemnification to the heirs of Estelito Nogaliza should be in the sum P12,000.00. With
costs.
Concepcion, C.J., Reyes, J.B.L., Makalintal, Zaldivar, Castro, Teehankee, Villamor and
Makasiar, JJ., concur.
Barredo, J., took no part.

Footnotes
1 Transcript of stenographic notes, pp. 21-22, 24-27, 44-47, 155-157, 207209.
2 Ibid, pp. 24-27, 45-46.
3 Decision, Appendix to Brief for Accused-Appellants, p. 19. It was further
adjudged that the accused-appellants which in the meanwhile, had already
been convicted for robbery with the deceased as the offended party, should
serve the sentences imposed on them of from four years and two
monthsprision correccional was minimum to not more than ten years
of prision mayor as maximum before commencing to serve the sentence
imposed upon them for murder. The indemnity imposed was in the sum of
P10,000.00.
4 Ibid, pp. 18-19.
5 According to Section 1, paragraph 17 of Article III of the Constitution: "In all
criminal prosecutions the accused shall be presumed to be innocent until the
contrary is proved, ..."

6 3 Phil. 3 (1903). Later cases that speak to the effect are: United States v.
Lasada, 18 Phil. 90 (1910); People v. Lanas, 93 Phil. 147 (1953); People v.
Lavarias, 12 June 29, 1963, 23 SCRA 1301.
7 18 Phil. 90.
8 Ibid, pp. 96-97.
9 92 Phil. 453 (1948). Cf. United States v. Garces, 31 Phil. 637 (1915);
People v. Gallego, 44 Phil. 192 (1922); People v. Tayag, 59 Phil. 606 (1934);
People v. Abana, 76 Phil. 1 (1946); People v. Tanchoco, 76 Phil. 463 (1946);
People v. Somera, 83 Phil. 548 (1949); People v. Lanas, 93 Phil. 147 (1953);
People v. Sy Pio, 94 Phil. 885 (1954); People v. Palo, 101 Phil. 963 (1957);
People v. Del Rosario Murray, 105 Phil. 591 (1959); People v. Delimios 105
Phil. 845 (1959); People v. Saik 106 Phil. 957 (1960); People v. Corpuz, 107
Phil. 44 (1960); People v. Macatangay, 107 Phil. 188 (1960); People v. Fraga,
109 Phil. 241 (1960); People v. Magborang, L-16937, Sept. 30, 1963, 3 SCRA
108; People v. Argana, L-19448, Feb. 28, 1964, 10 SCRA 311; People v.
Contante, L-14639, Dec. 28, 1964, 12 SCRA 653; People v. Alipis L-17214,
June 21, 1965, 14 SCRA 297; People v. Cunanan, L-17599, April 24, 1967,
19 SCRA 769; People v. Baquiran, L-20153, June 29, 1967, 20 SCRA 451;
Ramos v. People, L-22348, Aug. 23, 1967, 20 SCRA 1109; People v.
Parayno, L-24804, July 5, 1968, 24 SCRA 3; People v. Pagaduan, L-26948,
Aug. 25, 1969, 29 SCRA 54; People v. Gallora L-21740, Oct. 30, 1969, 29
SCRA 780; People v. Madarang, L-22295, Jan. 30, 1970, 31 SCRA 148;
People v. Gallema, L-33588-89. June 10, 1970, 33 SCRA 440.
10 Ibid, p. 459.
11 68 Phil. 471 (1939).
12 Ibid, p. 475.
13 Cf. People v. Bernal, 91 Phil. 619 (1952); People v. Hufana 103 Phil. 304
(1958); People v. Amajul, L-14626-27, Feb. 28, 1961, 1 SCRA 682; People v.
Dueas L-15307, May 30, 1961, 2 SCRA 221, People v. Hernandez, L-6025,
May 30, 1964, 11 SCRA 223; People v. Sagario L-18659, June 29, 1965, 14
SCRA 468; People v. Chaw Yaw Shun, L-19590, April 25, 1968, 23 SCRA
127; People v. Wong, L-22130-32, April 25, 1968, 23 SCRA 146; People v.
Provo, L-28347, Jan. 20, 1971, 37 SCRA 19.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-101

December 20, 1945

HAYDEE HERRAS TEEHANKEE, petitioner,

vs.
LEOPOLDO ROVIRA, ANTONIO QUIRINO, and POMPEYO DIAZ, respondents.
Vicente J. Francisco for petitioner.
Respondent Judges in their own behalf.

HILADO, J.:
Petitioner Haydee Herras Teehankee is a political detainee delivered by the Counter
Intelligence Corps, United States Army, to the Commonwealth Government, pursuant to the
Proclamation of General of the Army Douglas MacArthur, dated December 29, 1944. She
was one of the petitioners in case No. L-44, "Raquiza vs. Bradford," of this court (p.
50, ante). She is now confined in the Correctional Institution for Women under the custody
of the Commonwealth Government since October, 1945, when she was thus delivered to
the said government.
Under the date of October 2, 1945, petitioner, through her husband, Alberto Teehankee,
filed with the People's Court a petition wherein, invoking the provisions of Executive Order
No. 65, promulgated by His Excellency, the President of the Philippines, dated September
3, 1945, she prayed that her immediate release be ordered on the ground that no evidence
exists upon which she could be charged with any act punishable by law, or, alternatively,
that the People's Court fix the bail for her provisional liberty, in conformity with the aforesaid
executive order, and upon approval of such bail, that an order be forthwith issued directing
then officer having official custody of her person to immediately release her.
On October 4, 1945, the Hon. Antonio Quirino, one of the Associate Judges of the People's
Court, upon considering the said petition, required the Solicitor General "to file his comment
and recommendation as soon as possible."
On October 5, 1945, the Solicitor General filed recommendation in compliance with said
order, stating: "that on the strength of the evidence at hand, the reasonable basil

recommended for the provisional release of the petitioner be fixed at Fifty Thousand Pesos
(50,000)."
On October 9, 1945, the Hon. Leopoldo Rovira, Presiding Judge of the People's Court,
entered an order referring the petition for provisional release above mentioned for
consideration by the Fifth Division of said Court, but adding the following statement: "in my
opinion, it should be denied notwithstanding the recommendation of the Solicitor General for
her provisional release under a bond of Fifty Thousand Pesos (50,000)."
On the same date, October 9, 1945, the Hon. Pompeyo Diaz, Associate Judge of said
Court, entered an order disposing of said petition and denying the same "in view of the
gravity of the offense as can be deduced from the fact that the office of the Special
Prosecutors recommends as high as Fifty Thousand Pesos (50,000) for her provisional
release."
A motion having been filed by petitioner with the People's Court praying said court to
reconsider its order of October 9, 1945, denying her petition for provisional release the
Court, through Associate Judge Pompeyo Diaz, denied said motion.
In her present petition for the writs of certiorari and mandamus originally filed with this Court
on October 19, 1945, petitioner avers that the above-mentioned Judges of the People's
Court, in denying her petition for provisional liberty under bail, as well as her motion for
reconsideration, acted in excess of jurisdiction and with grave abuse of discretion.
Paragraph VII of this petition contains her allegations in support of this charge.
Under the date of October 21, 1945, respondent Judge Pompeyo Diaz filed his answer
stating that the order denying bail "was issued under express mandate of the law", citing
section 19 of Commonwealth Act No. 682.
Article III, section 1 (16) of the Commonwealth Constitution provides that:
All persons shall before conviction be bailable by sufficient sureties, except those
charged with capital offenses when evidence of guilt is strong. Excessive bail shall
not be required.
Rule 110 of the Rules of Court provides in the following sections:
SEC. 3. Offenses less than capital before conviction by the Court of First
Instance. After judgement by a justice of the peace and before conviction by the
court of First Instance, the defendant shall be admitted to bail as of right.

SEC. 4. Noncapital offenses after conviction by the Court of First

Instance. After conviction by the Court of First Instance, defendant may, upon
application, be bailed at the discretion of the court.
SEC. 5. Capital offenses defined. A capital offense, as the term the time of its
commission, and at the time of the application to be admitted to bail, may be
punished by death.
SEC. 6. Capital offense not bailable. No person in custody for the commission of
a capital offense shall be admitted to bail if the evidence of his guilt is strong.
SEC. 7. Capital offenses burden of proof. On the hearing of an application for
admission to bail made by any person who is in custody for the commission of a
capital offense, the burden of showing that evidence of guilt is strong is on the
prosecution.
lawphi1.net

SEC. 8. Notice of application to fiscal. When admission to bail is a matter of

discretion, the court must require that reasonable notice of the hearing of the
application for bail be given to the fiscal.
Section 66 of General Orders, No. 58 stipulates:
When admission to bail is a matter of discretion, the court must require that
reasonable notice of the hearing of the application for bail be given to the promotor
fiscal.
Section 19 of Commonwealth Act No. 682 contains the following proviso:
SEC. 19. . . . Provided, however, That existing provisions of law to the contrary
notwithstanding, the aforesaid political prisoners may, in the discretion of the
People's Court, after due notice to the office of Special Prosecutors and hearing, be
released on bail, even prior to the presentation of the corresponding information,
unless the Court finds that there is strong evidence of the commission of a capital
offense. . . . .
Section 22 of Commonwealth Act No. 682 ordains:
SEC. 22. The prosecution, trial and disposal of cases before the People's Court shall
be governed by existing laws and rules of court, unless otherwise expressly provided
herein . . . .
Against the petitioner herein no information had yet been presented when she filed her
petition dated October 2, 1945, containing the alternative prayer for the fixing of bail for her

provisional liberty. She there invokes Executive Order No. 65 of the President of the
Philippines, date September 3, 1945. The proviso above quoted from section 19 of the
People's Court Act (Commonwealth At No. 682) also existed in the statute books at the
time.
The able arguments adduced on both sides have received the most careful consideration of
the Court as befits the importance of the questions involved. However, in the view we take
of the case, a majority of the Court are of opinion that the only question calling for decision
at this time are: (1) whether Article III, section 1 (16) of the Commonwealth Constitution is
applicable to the instant case; (2) whether a hearing should be held of the application for
bail with attendance of the petitioner and the Solicitor General or the latter's representative;
and (3) if so, what kind of hearing it should be.
1. As to the first question, we hold that Article III, section 1 (16) of the Commonwealth
Constitution is applicable to the instant case. This Constitutional mandate refers to all
persons, not only to persons against whom a complaint or information has already been
formally filed. It lays down the rule that all persons shall before conviction be bailable except
those charged with capital offenses when evidence of guilt is strong. According to this
provision, the general rule is that any person, before being convicted of any criminal
offense, shall be bailable, except when he is charged with a capital offense and the
evidence of his guilt is strong. Of course, only those persons who have been either
arrested, detained or otherwise deprived of their liberty will ever have occasion to seek the
benefits of said provision. But in order that a person can invoke this constitutional precept, it
is not necessary that he should wait until a formal complaint or information is filed against
him. From the moment he is placed under arrest, detention or restraint by the officers of the
law, he can claim this guarantee of the Bill of Rights, and this right he retains unless and
until he is charged with a capital offense and evidence of his guilt is strong. Indeed if, as
admitted on all sides, the precept protects those already charged under a formal complaint
or information, there seems to be no legal or just reason for denying its benefits to one as
against whom the proper authorities may even yet conclude that there exists no sufficient
evidence of guilt. To place the former in a more favored position than the latter would be, to
say the least, anomalous and absurd. If there is a presumption of innocence in favor of one
already formally charged with criminal offense (Constitution, Article III, section 1[17], a
fortiori, this presumption should be indulged in favor of one not yet so charged, although
already arrested or detained.
In Cooleys Constitutional Limitations, 7th edition, pages 436-438, we read the following:
Perhaps the most important of the protections to personal liberty consists in the
mode of trial which is secured to every person accused of crime. At the common law,
accusations of felony were made in the form of an indictment by a grand jury; and
this process is still retained in many of the States, while others have substituted in its
stead an information filed by the prosecuting officer of the State or county. The mode

of investigating the facts, however, is the same in all; and this is through a trial by
jury, surrounded by certain safeguards which are a well-understood part of the
system, and which the government cannot dispense with.
First, we may mention that the humanity of our law always presumes an accused
party innocent until he is proved to be guilty. This is a presumption which attends all
the proceedings against him, from their initiation until they result in a verdict, which
either finds the party guilty or converts the presumption of innocence into an
adjudged fact.
If there were any mode short of confinement which would, with reasonable certainty,
insure the attendance of the accused to answer the accusation, it would not be
justifiable to inflict upon him that indignity, when the effect is to subject him, in a
greater or less degree, to the punishment of a guilty person, while as yet it is not
determined that he has committed any crime. If the punishment on conviction cannot
exceed in severity the forfeiture of a large sum of money, then it is reasonable to
suppose that such a sum of money, or an agreement by responsible parties to pay it
to the government in case the accused should fail to appear, would be sufficient
security for his attendance; and therefore, at the common law, it was customary to
take security of this character in all cases of misdemeanor; one or more friends of
the accused undertaking for his appearance for trial, and agreeing that a certain sum
of money should be levied of their goods and chattels, lands and tenements, if he
made default. But in the case of felonies, the privilege of giving bail before trial was
not a matter of right; and in this country, although the criminal code is much more
merciful than it formerly was in England, and in some cases the allowance of bail is
almost a matter of course, there are others in which it is discretionary with the
magistrate to allow it or not, and where it will sometimes be refused if the evidence of
guilty is strong or the presumption great. Capital offenses are not generally regarded
as bailable; at least, after indictment, or when the party is charged by the finding of a
coroner's jury; . . . ."
All the Justice Cooley says in the foregoing quotations regarding the humanity of the law in
his jurisdiction and its presumption that an accused party is innocent until he is proved to be
guilty, is distinctly true also in ours where the constitutional, statutory, and reglementary
provisions on the point have been borrowed from America. The same should be said of
what he says regarding the granting of bail for provisional liberty before conviction, and
even after, in exceptional cases, of course, always subject to the limitation established by
our own Constitutional, laws and rules of court. From the last part of said quotation it
follows, firstly, that before indictment or charge by the corner's jury, in the jurisdiction to
which the author refers, there may be cases in which even a capital offense is bailable, and,
secondly, that even after indictment or the finding of a corner's jury in these jurisdictions,
there may be exceptional cases where a capital offense is still bailable. Under our
Constitution, as we have seen, all offenses are bailable before conviction except capital

offenses when evidence of guilt is strong. In consonance with this constitutional provision,
section 3 of Rule 110 of the Rules of Court stipulates that non-capital offenses before
conviction by the Court of First Instance shall be bailable as of right; section 4 of the same
Rule provides that after conviction by the Court of First Instance such offense may, upon
application, be bailable at the discretion of the court; and section 6 of the said Rule provides
that "no person in custody for the commission of a capital offense shall be admitted to bail if
the evidence of his guilt is strong."
By the common law, all offenses including treason, murder, and other felonies, were
bailable before indictment found, although the granting or refusing of such bail in
case of capital offenses was a matter within the discretion of the court. (6 C. J.,
953; emphasis supplied.)
2. As to the second question, we hold that upon application by a political prisoner or
detainee to the People's Court for provisional release under bail, a hearing, summary or
otherwise, should be held with due notice to the Office of Special Prosecutors, as well as to
the prisoner or detainee. It will be remembered that section 22 of the People's Court Act
subjects the prosecution, trial, and disposal of cases before the People's Court to existing
laws and rules of court," unless otherwise expressly provide in said act. Consequently, the
hearing and disposal of application for bail for provisional release before the People's Court
should be governed by existing laws and rules of court, the hearing and disposal of such
applications being a mere part of the "prosecution, trial, and disposal" of the corresponding
cases before said court. If attention should be directed to the clause "unless otherwise
expressly provided herein " in said section 22, in connection with the first proviso of section
19 of the same act, it should be borne in mind that the provisions of said act should be
construed in harmony with those of the Constitution, under the well-settled rule of the
statutory construction that legislative enactments should be construed, wherever possible,
in manner that would avoid their conflicting with the fundamental law.
3. As to the third question. While it is true that the Solicitor General on October 3, 1945,
recommended Fifty Thousand Pesos (P50,000) as a reasonable bail "on the strength of the
evidence at hand," it may happen that thereafter his office may have secured additional
evidence which in addition to or in connection with the already possessed, in his opinion is
sufficiently strong to prove petitioner's guilt for a capital offense, in which case, he may yet
decide to oppose the application for bail heretofore filed by petitioner at the hearing thereof
hereinafter ordered. It will be remembered that petitioner, while under the custody of the
Counter Intelligence Corps, United States Army, was charged with (a) "Active Collaboration
with the Japanese" and (b) "Previous Association with the enemy" (Raquiza vs. Bradford, p.
50, ante). Under the definition of the treason in the Revised Penal Code, active
collaboration with the Japanese and association with them during the war in the Philippines
may constitute treason, a capital offense.

ART. 114. Any person who, owing allegiance to the United States or the Government
of the Philippine Islands, not being a foreigner, . . . adheres to their enemies, giving
them aid or comfort within the Philippine Islands or elsewhere, shall be punished
by reclusion temporal to death and shall pay a fine not to exceed 20,000 pesos.
(Revised Penal Code.)
Of course, it may also happen that either because no such further evidence has come into
his possession or because, in his judgement, the public interest would be better served by
him withholding the evidence that he has until the trial in the merits, he would prefer not to
oppose the application for bail. At the hearing of the application the Solicitor General will be
free to adopt one course or the other. If he opposes, the burden of proof will be on him to
show the petitioner is not entitled to bail. Petitioner will have the right to offer evidence to
prove her right thereto. In fine, the hearing is for the purpose of enabling the People's Court
to exercise its sound discretion as to whether or not under the Constitution and laws in force
petitioner is entitled to provisional release under bail.
WHEREFORE, it is the judgement of this Court that: (a) the order of the People's Court,
dated October 9, 1945, denying petitioner's petition for provisional release under bail, and
the order of said Court, dated October 13, 1945, denying petitioner's motion for
reconsideration of said order of October 9, 1945, which we declare to have been entered
with grave abuse of discretion, be set aside; and (b) that for the proper application of the
pertinent constitutional, statutory, and reglementary provisions alluded to in the body of this
decision, a hearing of the petitioner's application for bail be held before the People's Court
with due notice to the Solicitor General, as well as to the petitioner, as hereinabove outlined,
said hearing, whether summary or otherwise, to be such as would enable the People's
Court to exercise its sound discretion in the disposal of the aforesaid petition. Without costs.
So ordered.
Moran, C. J., and Briones, J., concur.
Jaranilla, Feria, Pablo, and Bengzon, JJ., concur only in the result.

Separate Opinions

OZAETA, PARAS, and PERFECTO, JJ., concurring and dissenting:

We concur in the opinion prepared by Mr. Justice Hilado in so far as it holds that
subsections (16) and (17), section 1 Article III of the Constitution a are applicable to the
instant case; and that the Rules of Court, particularly sections 3 to 8 of Rule 110, govern the
procedure in the People's Court as to applications for bail under the first proviso of section
19 of Commonwealth Act No. 682.
But we are constrained to dissent from said opinion and its dispositive part in so far as the
Court fails to enforce and give practical effect to the said constitutional provisions in the
present case, with the lamentable result that the herein petitioner, who has been confined in
prison for about ten months without any formal charge having been filed against her, but
who under said constitutional provisions and the Rules of court cited is clearly entitled to be
forthwith released on bail, will have to undergo further unnecessary delay to secure her
provisional liberty.
We shall briefly express our conception of the force and effect of the mandatory provision of
the Constitution on the admission to bail of all persons before conviction as applied to the
undisputed facts of the is case:
The main question involved herein is the interpretation of the second proviso of section 19
of Commonwealth Act No. 682, which reads as follows:
Provided, however, That existing provisions of law to the contrary notwithstanding,
the aforesaid political prisoners may, in the discretion of the People's Court, after due
notice to the Office of Special Prosecutors and hearing, be released on bail, even
prior to the presentation of the corresponding information, unless the Court finds
there is strong evidence of the commission of a capital offense.
This statutory provision must be construed congruently with the provision of the Constitution
and in harmony with the existing laws on the subject, particularly sections 3 to 8 Rule 110 of
the Rules of Court. b
Subsection (16), section 1 of Article III of the Constitution provides as follows:
(16) All persons shall before conviction be bailable by sufficient sureties, except
those charged with capital offense when evidence of guilt is strong. Excessive bail
shall not be required.
Rule 110 of the Rules of the Court contains the following provisions:
SEC. 3. Offense less than capital before conviction of the Court of First Instance.
After judgement by a justice of the peace and before conviction by the Court of First
Instance, the defendant shall be admitted to bail as of right.

SEC. 4. Noncapital offenses after conviction by the Court of First

Instance. After conviction by the Court of First Instance, defendant may upon
application, be bailed at the discretion of the court.
SEC. 5. Capital offenses defined. A capital offense, as the term is used in this
rule, is an offense which, under the law existing at the time of its commission, and at
the time of the application to be admitted to bail, may be punished by death.
SEC. 6. Capital offense not bailable. No person in custody for the commission of
a capital offense shall be admitted to bail if the evidence of his guilt is strong.
SEC. 7. Capital offense burden of proof. On the hearing of an application for
admission to bail made by any person who is in custody for the commission of a
capital offense, the burden of showing that evidence of guilt is strong is on the
prosecution.
SEC. 8. Notice of application to fiscal. When admission to bail is a matter of
discretion, the court must require that the reasonable notice of the hearing of the
application for bail be given to the fiscal.
In accordance with section 2 of said Commonwealth Act No. 682, the political prisoners
subject to the jurisdiction of the People's Court may be accused of any of the crime against
national security, to wit, (1) treason, (2) conspiracy and proposal to commit treason, (3)
misprision of treason, (4) espionage, (5) inciting to war or giving motives for reprisals, (6)
violation of neutrality, (7) correspondence with hostile country, and (8) flight to enemy's
country. (See Title One, Book Two, Revised Penal Code, entitled "Crimes Against National
Security." under which are found articles 114-121, penalizing the specific crimes just
mentioned.) Of these eight crimes only the first treason is a capital offense; none of
the seven others is punishable with death.
Under the constitutional provision and the rules of Court above quoted, admission to bail
before conviction of all persons not charged with capital offenses is mandatory and not
discretionary with the court; they "shall be admitted to bail as of right." No statute can in any
manner impair that constitutional right. Therefore, the proviso in question to the effect that
the political prisoners may, in the discretion of the People's Court, after due notice to the
Office of Special Prosecutors and hearing, be released on bail, even prior to the
presentation of the corresponding information, unless the court finds that there is strong
evidence of the commission of a capital offense, can only be construed to refer to such
political prisoners as may be actually or prospectively charged with a capital offense;
because if that statutory provision be construed to include political prisoners not charged or
chargeable with a capital offense, it would be unconstitutional, since under the Constitution
such political prisoners before conviction are entitled to bail as of right and not in the
discretion of the court. c

Let us cite a concrete example. A political prisoner is charged or chargeable only with the
simple crime of espionage, which is punishable with prision correccional. He or she applies
to the People's Court for release on bail. The Solicitor General, upon being notified of the
application, does not oppose it but recommends a specific amount for the bail. Can it be
successfully contended that such a case is governed by the proviso in question and that the
application for the bail has to be set for hearing, after which the People's Court has the
direction to deny it? No, because such a person under the Constitution "shall before
conviction be bailable by sufficient sureties." In such a case there is no need for any hearing
because there is no discretion to be exercised by the court on the matter. The hearing
mentioned in the proviso in question can only have for its purpose the determination of
whether or not "there is strong evidence of the commission of a capital offense." Therefore,
when there is no claim on the part of the Solicitor General that the applicant for bail is
charged or chargeable with a capital offense, there is no necessity for any hearing.
Under the provision of law then it may be asked may the People's Court admit such
an applicant to bail? Under section 3 Rule 110 of the Rules of Court, which provides that
before conviction by the Court of First Instance (the People's Court in such a case takes the
place of the Court of First Instance), "the defendant shall be admitted to bail as of right ."
Section 22 of the People's Court Law provides that "the prosecution, trial and disposal of
cases before the People's Court shall be governed by existing laws and rules of court,
unless otherwise expressly provided herein." The "otherwise" does not apply to the
hypothetical case at hand because, as we have shown, the proviso in question cannot be
applied to noncapital offenses without violating the Constitution.
What then is disposing procedure to be followed by the People's Court in disposing of
applications for bail? In accordance with the constitutional and statutory provisions above
quoted, all of which must be harmonized and applied, the procedure should be as follows:
As soon as the application is led the People's Court shall notify the Solicitor General
thereof. If according to the proofs in the possession of the Solicitor General the applicant
has been or may be charged with a capital offense, he shall immediately either oppose the
application or agree to it and recommend the amount of the bail bond, depending upon
whether or not his proofs against the applicant are strong. If he opposes the application, the
People's Court shall immediately set it for a summary hearing with the presence of both
parties for the sole purpose of determining whether or not there is strong evidence of the
commission of a capital offense. If there is, the court must deny the application; if there is
not, it must grant it. Therein lies the court's discretion to grant or deny the bail in the
appreciation of the evidence. If the Solicitor General does not oppose the application, either
because the applicant is not chargeable with a capital offense or because he is not yet in a
position to determine whether or not the applicant is chargeable with a capital offense or
because even if the applicant has been or may be charged with a capital offense the
evidence he has at hand is not strong, there is no necessity for a hearing because there is
no issue to be litigated and determined. In that case the only discretion to be exercised by

the court lies in the fixing of the amount of the bail bond, taking into consideration the
recommendation of the Solicitor General and the constitutional mandate that "excessive bail
shall not be required."
In the instant case the Solicitor General, upon being notified of the petitioner's application
for bail, did not oppose said application but recommended that the bail bond be fixed at
P50,000. The Solicitor General is a responsible high officer of the Government having the
same rank as Under Secretary of Justice. Under the People's Court Law he is the head of
the Office of Special Prosecutors, charged with the heavy and delicate responsibility of
prosecuting the political prisoners mentioned in sections 2 and 19 of the People's Court
Law. We see no reason or justification whatsoever to distrust and disregarded his
recommendation. We have every reason to believe that he knows his duty in the premises
under the Constitution and the existing laws, and that he has acted in accordance therewith.
It is therefore to be presumed that when he did not oppose the petitioner's application for
bail but on the contrary agreed thereto by recommending the amount of the bail bond, it was
either because the petitioner was not chargeable with a capital offense or because the
Solicitor General was not yet in a position to determine whether or not she was chargeable
with a capital offense or because even if she were so chargeable the evidence he had at
hand was not strong. Moreover, in failing to oppose the application and recommending that
it be granted, the Solicitor General was undoubtedly, and properly, guided by the
consideration that after all, even if the applicant should be provisionally released on bail, he
would have a perfect right to move for its cancellation and for her rearrest if he should find
later that there is strong evidence against her of the commission of a capital offense and he
should decide to charge her therewith. We find therefore that the Solicitor General has
acted strictly in accordance with law, equity, and justice. It is unfair to him to compel him to
disclose whatever evidence he may have in his possession at this stage of the case by
ordering a hearing on the application for bail in spite of his nonopposition thereto and his
recommendation that it be granted; and it is unjust to the petitioner, who has been confined
in prison for about ten months without any formal charge having filed against her, to further
withhold from her the provisional liberty on bail to which she is of right entitled under the
Constitution and the existing laws.
Instead of firmly, fearlessly, and instantly applying the constitutional and statutory
provisions, which it admits are applicable, to the facts of the case as presented to us, the
Court seems to waver, speculating on possibilities, and would have the People's Court toy
and dally with the detainer's liberty. The Court says:
. . . While it is true that the Solicitor General on October 5, 1945, recommended Fifty
Thousand Pesos (50,000) as a reasonable bail "on the strength of the evidence at
hand," it may happen that thereafter his office may have secured additional evidence
which, in addition to or in connection with that he already possessed, in his opinion is
sufficiently strong to prove petitioner's guilt for a capital offense, in which case, he
may yet decide to oppose the application for a bail heretofore filed by the petitioner

at the hearing thereof hereinafter ordered. . . . Of course, it may also happen that,
either because no such further evidence has come into his possession or because,
in his judgement, the public interest would be better served by his withholding the
evidence that he has until the trial on the merits, he would prefer not to oppose the
application for bail. At the hearing of the application to the Solicitor General will be
free to adopt one course or the other. . . . .
Thus the only reason why the Court does not grant the petition outright is that it may
happen that after the Solicitor General had recommended the bail to the People's Court he
might have secured additional evidence which in his opinion is sufficiently strong to prove
petitioner's guilt of a capital offense, and he may yet decide to oppose the application for
bail; that is to say, in such event he should be given a chance to oppose the application for
bail if he cared to reveal his evidence before the trial on the merits. But why waver in
deciding the case as presented and speculate on unforeseen and unproven happenings
when, after all, the release on bail before conviction is necessarily provisional and not final?
At any time that the Solicitor General can convince the court that he has strong evidence of
the commission of a capital offense by the petitioner, he may have her rearrested and her
bond cancelled.
The Court says that at the hearing of the application which it orders the People's Court to
hold, the Solicitor General will be free to adopt one course or the other meaning to oppose
or not to oppose the bail. It directs what the Solicitor General should do if he should oppose,
but does not indicate what People's Court should do if the Solicitor General should not
oppose. In the dispositive part the Court directs "that for the proper application of the
pertinent constitutional, statutory and reglementary provisions alluded to in the body of this
decision, a hearing of petitioner's application for bail be held before the People's Court with
due notice to the Solicitor General, as well as to the petitioner, as hereinabove outlined, said
hearing, whether summary or otherwise, to be such as would enable the People's Court to
exercise its sound discretion in the disposal of the aforesaid petition." This seems to
indicate that whether or not the Solicitor General opposes the application a hearing should
be held for what purpose if there is no opposition, we do not know. In the body of the
decision, from which we have quoted above, it is stated that the Solicitor General may refer
not to oppose the application for bail ether because no further evidence has come into his
possession or because in his judgement the public interest would be better served by
withholding the evidence he has until the trial on the merits. Why order a hearing when the
Solicitor General desires without his evidence and prefers no to oppose the bail?
We fear that such apparent inconsistency and ambiguity will be productive of unnecessary
disputes and delays in the final disposition of the application for bail, which will probably
necessitate another recourse to this Court. In the meantime the detainee, whose
constitutional right has been disregarded, must continue to languish in jail.

On the threshold of our existence as an independent nation this Court ought to define its
attitude unequivocally and set a definite line of conduct to be followed in deciding such
question of vital importance as this, involving personal liberties. Our decision in this and
similar cases will form a weather-vane by which the people can see whether we are
traveling on the path of freedom and democracy or are wobbling in the direction of the
opposite way of life. If we condone, tolerate, or gloss over unlawful restraints or violations of
personal liberties and other rights guaranteed and protected by the Constitution, our
profession of adherence to freedom and democracy would be taunted as sheer mockery
and undiluted hypocrisy, and we would not only disappoint the great nation that initiated us
in the democratic way of life but would also lose the respect of all liberty-loving peoples.
We think that the decision of the Court in this case is another step in the wrong direction d.
Like a woman's first lapse of virtue, the first wrong step of the Court will easily be followed
by another, and the rights of the citizens enumerated in the Bill of Rights will gradually be
whittled away until they exist only in theory.
This dissent is intended as a warning against such a calamity. We deem it pertinent to quote
in this connection the noble words of Justice Jackson as United States Prosecutor of war
crimes in Germany:
We must never forget that the record on which we judge these defendants today is
the record on which history will judge us tomorrow.
To pass these defendants a poisoned chalice is to put it to our own lips as well. We
must summon such detachment and intellectual integrity to our task that this trial will
commend itself to posterity as fulfilling humanity's aspiration to do justice.
Our conclusion is that upon the record of the case before us the petitioner is entitled to be
released on bail as of right under subsection (16), section 1, Article III of the Constitution
and section 3 of Rule 110 of the Rules of Court, and that, therefore, there is no necessity to
remand the case for further proceedings.
DE JOYA, J., concurring:
I fully concur in the opinion prepared by Mr. Justice Hilado. The observance of the
procedure outlined in the decision which is nothing new (Payao vs. Lesaca, 63 Phil., 210,
214; Marcos vs. Judge of the Court of First Instance of Ilocos Norte, G.R. No. 46490), will
prevent any possible criticism of the fairness and impartially of the court, which are
absolutely essential to secure public confidence, which may be undermine by a
misapprehension of the true spirit of the law, due perhaps to impetuosity or inexperience on
the part of a particular judge. The political prisoners now under custody are entitled to the
same rights under the Constitution as those, actually accused of crimes.

Footnotes
a Subsection (16). "All persons shall before conviction be bailable by sufficient
sureties . . . ."
Subsection (17). "In all criminal prosecutions the accused shall be presumed
innocent until the contrary is provoked . . . ."
b "In construing statutes with relation to the constitutional provisions, the courts take
into consideration the principle that every statute is to be read in the light of the
Constitution and that the Constitution and a statute involving constitutional rights will
be construed together as one law. . . . ." (11 Am. Jur. Const. Law, sec. 96.)
All statutes are presumed to be enacted by the Legislature with full knowledge of the
existing condition of the law and with reference to it. They are therefore to be
construed in connection and in harmony with the existing law, and as a part of a
general and uniform system of jurisprudence, and their meaning and effect is to be
determined in connection, not only with the common law and the constitution, but
also with reference to their statutes and the decisions of the courts. (59 C. J., 1038.)
No single statute should be interpreted solely by its own words. Upon enactment it
becomes a part of, and is to be read in connection with, the whole body of the law.
Its interpretation is to be in the light of the general policy of provisions legislation and
of the long established principles of law and equity. Every statute which is properly
the subject of judicial construction should receive such a construction as will not
conflict with general principles and will make it harmonize with the pre-existing body
of law. . . . Statutes are to be construed with reference to the common law in
existence at the time of enactment, and in connection with other statutes which
relates to the same subject matter. (24 R. C. L., 1052.)
c It is an elementary principle that where the validity of a statute is assailed and there
are two possible interpretations, by one of which the statute would be
unconstitutional and by the other it would be valid, the court should adopt the
construction which would uphold it. It is the duty of courts to adopt a construction of a
statute that will bring it into harmony with the Constitution, if its language will permit.
(11 Am. Jur., Const. Law, sec. 97.)

d The first wrong step, in our humble conception, was decision in the case
of Raquiza vs. Bradford(September 13, 1945, p. 50 ante), wherein this Court failed to
enforce the due process clause of the Constitution.

EN BANC
PEOPLE OF THE PHILIPPINES,
Petitioner,

- versus -

SANDIGANBAYAN (Special Division)

and JOSE JINGGOY ESTRADA,
Respondents.
Present:
PUNO, C.J.,
QUISUMBING,
YNARES-SANTIAGO,
SANDOVAL-GUTIERREZ,
CARPIO,
AUSTRIA-MARTINEZ,
CORONA,
CARPIO MORALES,
AZCUNA,
TINGA,
*
CHICO-NAZARIO,
GARCIA,
VELASCO, JR.,

G.R. No. 158754

NACHURA, and
REYES, JJ.
Promulgated:
August 10, 2007
x--------------------------------------------------x

DECISION
GARCIA, J.:
The instant petition for certiorari under Rule 65 of the Rules of Court seeks to
reverse and set aside the Resolution[1] of herein respondent Sandiganbayan (Special
Division) issued on March 6, 2003 in Criminal Case No. 26558, granting bail
to private respondent Senator Jose Jinggoy Estrada (hereafter Jinggoy for brevity),
as effectively reiterated in its Resolution[2] of May 30, 2003, denying the
petitioners motion for reconsideration.
The factual antecedents which gave rise to this proceeding are set forth in
the Courts Decision[3] of February 26, 2002, inG.R. No. 148965, to wit:
In November 2000, as an offshoot of the impeachment proceedings against Joseph
Ejercito Estrada, then President of the Republic of the Philippines, five criminal
complaints against the former President and members of his family, his associates,
friends and conspirators were filed with the Office of the Ombudsman.
On April 4, 2001, the Ombudsman issued a Joint Resolution finding probable
cause warranting the filing with the Sandiganbayan of several criminal
Informations against the former President and the other respondents therein. One
of the Informations was for the crime ofplunder under Republic Act [RA] No.
7080 and among the respondents was herein petitioner Jose Jinggoy
Estrada, then mayor ofSan Juan, Metro Manila.
The Information was amended and filed on April 18, 2001. Docketed as Criminal
Case No. 26558, the case was assigned to [the] respondent Third Division of the
Sandiganbayan. xxx. (Emphasis added.)

The amended information referred to, like the original, charged respondent
Jinggoy, together with the former President and several others, with plunder,
defined and penalized under RA No. 7080, as amended by Section 12 of RA No.
7659, allegedly committed as follows:

That during the period from June, 1998 to January, 2001, in the Philippines, and
within the jurisdiction of this Honorable Court, accused Joseph Ejercito
Estrada, THEN
A
PUBLIC
OFFICER, ,
by
himself AND/OR in CONNIVANCE/CONSPIRACY with his co-accused,WHO
ARE MEMBERS OF HIS FAMILY, RELATIVES BY AFFINITY OR
CONSANGUINITY, BUSINESS ASSOCIATES,SUBORDINATES AND/OR
OTHER PERSONS, BY TAKING UNDUE ADVANTAGE OF HIS OFFICIAL
POSITION, AUTHORITY,RELATIONSHIP, CONNECTION, OR
INFLUENCE, did then and there wilfully (sic), unlawfully and criminally amass,
accumulate and acquire BY HIMSELF, DIRECTLY OR INDIRECTLY, ill-gotten
wealth in the aggregate amount OR TOTAL VALUE of FOUR BILLION
NINETY SEVEN MILLION EIGHT HUNDRED FOUR THOUSAND ONE
HUNDRED
SEVENTY
THREE
PESOS
AND
SEVENTEEN
CENTAVOS [P4,097,804,173.17], more or less, THEREBY UNJUSTLY
ENRICHING HIMSELF OR THEMSELVES AT THE EXPENSE AND TO THE
DAMAGE OF THE FILIPINO PEOPLE AND THE REPUBLIC OF THE
PHILIPPINES,
through ANY
OR
A combination OR
A series
of
overt OR criminal acts, OR SIMILAR SCHEMES OR MEANS, described as
follows:
(a) by
receiving OR collecting,
directly
or
indirectly,
on SEVERAL INSTANCES, MONEY IN THE AGGREGATE
AMOUNT OF (P545,000,000.00), MORE OR LESS, FROM
ILLEGAL
GAMBLING
IN
THE
FORM
OF
GIFT, SHARE,PERCENTAGE, KICKBACK OR ANY FORM OF
PECUNIARY BENEFIT, BY HIMSELF AND/OR in connivance
with co-accused Jose Jinggoy Estrada, , [and] JOHN DOES AND
JANE DOES, in consideration OF TOLERATION OR
PROTECTION OF ILLEGAL GAMBLING;
(b) by DIVERTING, RECEIVING,
misappropriating,
converting OR misusing DIRECTLY OR INDIRECTLY, for HIS
OR THEIR PERSONAL gain and benefit, public funds
[P130,000,000.00], more or less, representing a portion of the
[P200,000,000] tobacco excise tax share allocated for the Province
of Ilocos Sur under R.A. No. 7171, BY HIMSELF
AND/OR in CONNIVANCE with co-accused Charlie Atong Ang,
Alma Alfaro, JOHN DOE a.k.a. Eleuterio Tan OREleuterio Ramos
Tan or Mr. Uy, and Jane Doe a.k.a. Delia Rajas, AND OTHER
JOHN DOES AND JANE DOES;
(c) by directing, ordering and compelling, FOR HIS PERSONAL
GAIN AND BENEFIT, the Government Service Insurance System
(GSIS) TO PURCHASE 351,878,000 SHARES OF STOCK
MORE OR LESS, and the Social Security System
(SSS), 329,855,000 SHARES OF STOCK MORE OR LESS, OF
THE BELLE CORPORATION IN THE AMOUNT OF MORE OR
LESS [P744,612,450.00], RESPECTIVELY, OR A TOTAL OF

MORE OR LESS[P1,847,578,057.50]; AND BY COLLECTING

OR RECEIVING, DIRECTLY OR INDIRECTLY, BY HIMSELF
AND/OR IN CONNIVANCE WITH JOHN DOES AND JANE
DOES, COMMISSIONS OR PERCENTAGES BY REASON OF
SAID PURCHASES OF SHARES OF STOCK IN THE
AMOUNT [P189,700,000.00], MORE OR LESS,FROM THE
BELLE CORPORATION WHICH BECAME PART OF THE
DEPOSIT IN THE EQUITABLE-PCI BANK UNDER THE
ACCOUNT NAME JOSE VELARDE;
(d) by
unjustly
enriching
himself FROM
COMMISSIONS, GIFTS, SHARES, PERCENTAGES, KICKBA
CKS, OR ANY FORM OF PECUNIARY BENEFITS, IN
CONNIVANCE WITH JOHN DOES AND JANE DOES, in the
amount
ofMORE
OR
LESS [P3,233,104,173.17] AND
DEPOSITING THE SAME UNDER HIS ACCOUNT NAME
JOSE VELARDE AT THE EQUITABLE-PCI BANK.[4]

What transpired next are narrated in the same February 26, 2002 Decision
in G.R. No. 148965, thus:
On April 25, 2001, the respondent court issued a warrant of arrest for [Jinggoy]
and his co-accused. On its basis, [Jinggoy] and his co-accused were placed in
custody of the law.
On April 30, 2001, [Jinggoy] filed a Very Urgent Omnibus Motion alleging that:
(1) no probable cause exists to put him on trial and hold him liable for plunder, it
appearing that he was only allegedly involved in illegal gambling and not in a
series or combination of overt or criminal acts as required in R.A. No. 7080; and
(2) he is entitled to bail as a matter of right. [He] prayed that he be excluded from
the Amended Information . In the alternative, [he] also prayed that he be allowed
to post bail ..
On June 28, 2001, [he] filed a Motion to Resolve Mayor Jose Jinggoy Estradas
Motion To Fix Bail On Grounds That An Outgoing Mayor Loses Clout An
Incumbent Has And That On Its Face, the Facts Charged In The Information Do
Not Make Out A Non-Bailable Offense As To Him.
xxx xxx xxx
On July 9, 2001, respondent Sandiganbayan issued a Resolution denying
[Jinggoys] Motion to Quash and Suspend and Very Urgent Omnibus
Motion. [His] alternative prayer to post bail was set for hearing after arraignment
of all accused. xxx
xxx xxx xxx
The following day, July 10, 2001, [Jinggoy] moved for reconsideration of the
Resolution. Respondent court denied the motion and proceeded to arraign
[him]. [He] refused to make his plea prompting respondent court to enter a plea of
not guilty for him.[5] (Emphasis and words in brackets added)

From the denial action of the Sandiganbayan immediately adverted to, Jinggoy
interposed a petition for certiorari before this Court claiming that the respondent
Sandiganbayan committed grave abuse of discretion in, inter alia, (a) sustaining
the charge against him for alleged offenses and with alleged conspirators with
whom he is not even connected, and (b) in not fixing bail for him. Pending
resolution of this petition, docketed as G.R. No. 148965, Jinggoy filed with the
Sandiganbayan an Urgent Second Motion for Bail for Medical Reasons. The
Ombudsman opposed the motion. For three (3) days in September 2001, the
Sandiganbayan conducted hearings on the motion for bail, with one Dr. Roberto
Anastacio of the Makati Medical Center appearing as sole witness for Jinggoy.[6]
On December 18, 2001, Jinggoy filed with the Court an Urgent Motion praying for
early resolution of his Petition for Bail on Medical/Humanitarian
Considerations. He reiterated his earlier plea for bail filed with the Sandiganbayan.
On the same day, the Court referred the motion to the Sandiganbayan for resolution
and directed said court to make a report, not later than 8:30 in the morning
of December 21, 2001.[7]
The report was submitted as directed. Attached to the Report was a copy of the
Sandiganbayans Resolution dated December 20, 2001 denying Jinggoys motion for
bail for lack of factual basis. According to the graft court, basing its findings on the
earlier testimony of Dr. Anastacio, Jinggoy failed to submit sufficient evidence to
convince the court that the medical condition of the accused requires that he be
confined at home and for that purpose that he be allowed to post bail. [8]
On February 26, 2002, the Court dismissed Jinggoys petition in G.R. No.
148965, on the following rationale:
The constitutional mandate makes the grant or denial of bail in capital offenses
hinge on the issue of whether or not the evidence of guilt of the accused is
strong. This requires that the trial court conduct bail hearings xxx. The burden of
proof lies with the prosecution to show strong evidence of guilt.
This Court is not in a position to grant bail to [Jinggoy] as the matter requires
evidentiary hearing that should be conducted by the Sandiganbayan. The hearings
on which respondent court based its Resolution of December 20, 2001 involved
the reception of medicalevidence only and which evidence was given in
September 2001, five months ago. The records do not show that evidence on
petitioners guilt was presented before the lower court.
Upon proper motion of [Jinggoy], respondent Sandiganbayan should conduct
hearings to determine if the evidence of [Jinggoys] guilt is strong as to warrant the
granting of bail to [him].[9] (Underscoring and words in brackets added).

On April 17, 2002, Jinggoy filed before the Sandiganbayan an Omnibus

Application for Bail [10] against which the prosecution filed its comment and
opposition. Bail hearings were then conducted, followed by the submission by the
parties of their respective memoranda.
In the herein assailed Resolution[11] of March 6, 2003, respondent Sandiganbayan
(Special Division) granted the omnibus application for bail, disposing as follows:
WHEREFORE, in light of all the facts and applicable law and jurisprudence,
JOSE JINGGOY ESTRADAs OMNIBUS APPLICATION FOR BAIL
dated April 16, 2002 is GRANTED. Bail for accused-movant is fixed at Five
Hundred Thousand Pesos (Php500,000.00) to be paid in cash and his release is
ordered upon the posting thereof and its approval, unless movant is being held for
some other legal cause.
This resolution is immediately executory.
SO ORDERED.

Petitioner filed a motion for reconsideration thereto which the respondent court
denied via the herein equally assailed May 30, 2003Resolution,[12] the dispositive
part of which reads:
WHEREFORE, for lack of merit, the prosecutions MOTION FOR
RECONSIDERATION [RE: GRANT OF JOSE JINGGOY ESTRADAS
PETITION FOR BAIL] dated 13 March 2003 is DENIED.
SO ORDERED.

Hence, the present petition on the submission[13] that respondent Special Division
of the Sandiganbayan acted with grave abuse of discretion amounting to lack or
excess of jurisdiction I.
IN GRANTING BAIL TO RESPONDENT JINGGOY ESTRADA,
[CONSIDERING] THE WELL-ESTABLISHED THEORY OF OVERLAPPING
CONSPIRACIES AND, THUS, GRIEVOUSLY DISREGARDED THE
APPLICATION OF ACCEPTED CRIMINAL LAW PRECEPTS AND
THEREBY SET A DANGEROUS PRECEDENT.
II.
xxx WHEN IT GRANTED BAIL TO RESPONDENT JINGGOY ESTRADA
WHEN IT FAILED TO RECOGNIZE THAT THE CONDUCT OF
RESPONDENT JINGGOY ESTRADA POINTED TO A CONCURRENCE OF

SENTIMENT OR CRIMINAL DESIGN INDICATING THE EXISTENCE OF A

CONSPIRACY BETWEEN ACCUSED JOSEPH ESTRADA AND JINGGOY
ESTRADA.
III.
xxx WHEN IT GRANTED BAIL TO RESPONDENT JINGGOY ESTRADA
CONSIDERING THAT THE UNDISPUTED FACT CLEARLY EVIDENCES
THAT RESPONDENT JINGGOY ESTRADA, EVEN WITHOUT A FINDING
OF CONSPIRACY, IS EQUALLY GUILTY AND LIABLE AS ACCUSED
JOSEPH ESTRADA HIMSELF BY HIS INDISPENSABLE COOPERATION
AND/OR DIRECT PARTICIPATION IN THE COMMISSION OF THE CRIME
OF PLUNDER.

IV.
xxx WHEN IT LIMITED THE CONSIDERATION OF THE EVIDENCE, AS
WELL AS THE POTENTIAL [LIABILITY] OF RESPONDENT JINGGOY
ESTRADA, TO SUBPARAGRAPH A OF THE AMENDED INFORMATION.

The imputation of grave abuse of discretion to the public respondent is untenable.

To begin with, Section 13 of Article III (Bill of Rights) of the Constitution
mandates:
Section 13. All persons, except those charged with offenses punishable
by reclusion perpetua when evidence of guilt is strong, shall, before conviction,
be bailable by sufficient sureties, or be released on recognizance as may be
provided by law. xxx.

Even if the capital offense charged is bailable owing to the weakness of the
evidence of guilt, the right to bail may justifiably still be denied if the probability
of escape is great.[14] Here, ever since the promulgation of the assailed Resolutions
a little more than four (4) years ago, Jinggoy does not, as determined by
Sandiganbayan, seem to be a flight risk. We quote with approval what the graft
court wrote in this regard:
It is not open to serious doubt that the movant [Jinggoy] has, in general, been
consistently respectful of the Court and its processes. He has not ominously
shown, by word or by deed, that he is of such a flight risk that would necessitate
his continued incarceration. Bearing in mind his conduct, social standing and his
other personal circumstances, the possibility of his escape in this case seems
remote if not nil.[15]

The likelihood of escape on the part individual respondent is now almost nil, given
his election on May 10, 2004, as Senator of the Republic of the Philippines. The
Court takes stock of the fact that those who usually jump bail are shadowy
characters mindless of their reputation in the eyes of the people for as long as they
can flee from the retribution of justice. On the other hand, those with a reputation
and a respectable name to protect and preserve are very unlikely to jump bail. The
Court, to be sure, cannot accept any suggestion that someone who has a popular
mandate to serve as Senator is harboring any plan to give up his Senate seat in
exchange for becoming a fugitive from justice.
Petitioners first argument denigrates as grave abuse of discretion the public
respondents rejection of the theory of overlapping conspiracies, which, in the
abstract, depicts a picture of a conspirator in the first level of conspiracy
performing acts which implement, or in furtherance of, another conspiracy in the
next level of which the actor is not an active party. As the petitioners logic goes
following this theory, respondent Jinggoy is not only liable for conspiring with
former President Estrada in the acquisition of ill-gotten wealth from jueteng under
par. (a) of the amended information. He has also a culpable connection with the
conspiracy, under par. (b), in the diversion of the tobacco excise tax and in
receiving commissions and kickbacks from the purchase by the SSS and GSIS of
Belle Corporation shares and other illegal sources under par. (c) and (d), albeit, he
is not so named in the last three paragraphs. And since the central figure in the
overlapping conspiracies, i.e., President Estrada, is charged with a capital offense,
all those within the conspiracy loop would be considered charged with the same
kind of non-bailable offense.
Explaining its point, petitioner cites People v. Castelo[16] which, as here, also
involves multiple levels of conspiracies. Just like in the present case where the lead
accused is a former President no less, the prime suspect in Castelo was also a
powerful high-ranking government official a former Judge who later rose to hold,
in a concurrent capacity, the positions of Secretary of Justice and Secretary of
National Defense, to be precise. In Castelo, charges and countercharges were
initially hurled by and between Castelo and Senator Claro Recto, who was then
planning to present Manuel Monroy as star witness against Castelo in a scandal
case.Castelo left the Philippines for Korea. While away, someone shot Monroy
dead. Evidence pointed to a conspiracy led by a certain Ben Ulo (who appears to
be the mastermind) and a group of confidential agents of the Department of
National Defense, one of whom was the triggerman. Coincidentally, Ben Ulo was a

close bodyguard of Castelo. In the end, the Solicitor General tagged Ben Ulo (not
Castelo) as the central figure in the conspiracy. This notwithstanding, the Court
held Castelo guilty beyond reasonable doubt for murder, because only he had a
motive for desiring Monroys demise. The conspiracy between Castelo and Ben Ulo
was then determined to be overlapping with the conspiracy between Ben Ulo and
the confidential agents, one of whom was the triggerman.
Further explaining the theory of overlapping conspiracies, petitioner cites the
ruling in People v. Ty Sui Wong,[17] featuring a love triangle involving a certain
Victor and Mariano, each out to win the heart of Ruby. Victor left Manila for
Mindanao. While Victor was away, the dead body of Mariano was found with
multiple stab wounds in a dark alley in Pasay. Evidence pointed to a conspiracy
among Sampaloc hoodlums who had no direct link with Victor. However, one of
the neighbors of the Sampaloc hoodlums was a classmate of Victor. In the end, on
the basis of interlocking confessions, the Court found Victor and his classmate
together with all the Sampaloc hoodlums guilty of murder.
Positing the applicability of Castelo and Ty Sui Wong under the premises, petitioner
presently argues:
It should be noted that this is the same scenario of accused Joseph Estrada
conspiring with former Gov. Singson for the collection and receipt of bribes
(jueteng protection money); and of former Gov. Singson involving respondent
Jinggoy Estrada in yet another level of conspiracy in pursuit of the first, i.e., the
regular collection of jueteng protection money for accused Joseph Estrada; and,
respondent Jinggoy Estrada, aware of the details of the conspiracy between
accused Joseph Estrada and Gov. Singson, agreeing to remit the greater part of his
collection of bribes to accused Joseph Estrada as its ultimate beneficiary. Thus,
respondent Jinggoy Estrada reached an agreement with former Gov. Singson,
executed the plan and participated in furtherance of the conspiracy for the receipt
and collection ofjueteng protection money, i.e., collecting P3 Million
in jueteng protection money every month; remitting P2 Million thereof to former
Gov. Singson for delivery to accused Joseph Estrada and retaining P1 Million
thereof for himself.
Similarly, therefore, respondent Jinggoy Estrada should have been denied bail
since he is as guilty and liable as accused Joseph Estrada for the non-bailable
offense of Plunder.[18]

As we see it, the rulings in Castelo and Ty Sui Wong are not on all-fours applicable
to and of governing sway to the issue of the propriety of revoking Jinggoys release
on bail.
As it were, the petitioner erroneously equates the provisional grant of bail to
respondent Jinggoy to his virtual acquittal in Criminal Case No. 26558. Petitioner

is wrong. Castelo and Ty Sui Wong contextually dealt with the guilt of culprits
therein for the crimes of murder after all the evidence had been adduced. Unlike in
this proceeding, the propriety of a grant of bail, given the evidence for or against
the bail application, was not an issue in Castelo and Ty Sui Wong. And in the
present case, respondent Sandiganbayan is still in the process of determining the
facts and merits of the main case. In the words of the public respondent:
As a cautionary parting word, it must be categorically stated herein that in making
the above pronouncements, this Court [Sandiganbayan] is not making any
judgment as to the final outcome of this case either with respect to movant
[Jinggoy] or with respect to accused Estrada. This Court [Sandiganbayan] is
simply called to determine whether, at this stage, the evidence of movant's guilt is
strong as to warrant his temporary release on bail. xxx.[19]

Revoking the bail thus granted to respondent Jinggoy, as the petitioner urges,
which necessarily implies that the evidence of his guilt is strong, would be
tantamount to pre-empting the Sandiganbayans ongoing determination of the facts
and merits of the main case.
Petitioners second and third arguments focus on the possible degrees of
participation of Jinggoy in the crime of Plunder. Noticeably, both arguments, if
pursued to their respective logical conclusions, tend to cancel each other out, one
leading as it were to a direction quite the opposite of the other. For while the
second argument attempts to establish an implied conspiracy between Jinggoy
and his father - hence, the guilt of one is the guilt of the other - the third argument
eschews the idea of conspiracy, but respondent Jinggoy is nonetheless equally
guilty as President Estrada because of his indispensable cooperation and/or direct
participation in the crime of Plunder.
By statutory definition, conspiracy exists when two or more persons come to an
agreement concerning the commission of a felony and decide to commit it.
[20]
Venturing into the gray areas of the concept of conspiracy, petitioner cites the
following obiter defining implied conspiracy, thus:
When by their acts, two or more persons proceed toward the accomplishment of
the same felonious object, with each doing his act, so that their acts though
seemingly independent were in fact connected, showing a closeness of formal
association and concurrence of sentiment, conspiracy may be inferred.[21]
Admittedly, direct proof is not essential to establish conspiracy. Since by its
nature conspiracy is planned in utmost secrecy, it can rarely be proved by direct
evidence. Consequently, the presence of the concurrence of minds which is
involved in conspiracy may be inferred from proof of facts and circumstances
which, taken together, apparently indicate that they are merely parts of some

complete whole. If it is proved that two or more persons aimed by their acts
towards the accomplishment of the same unlawful object, each doing a part so
that their combined acts, though apparently independent, were in fact connected
and cooperative, indicating a closeness of personal association and a concurrence
of sentiment, a conspiracy may be inferred though no actual meeting among them
to concert is proved. That would be termed an implied conspiracy.[22]

From the above pronouncements, petitioner then proceeds to present voluminous

documents and transcripts of stenographic notes purporting to prove that Jinggoy
had been deep inside the web of implied conspiracy under the second argument of
this petition. From the implied conspiracy theory, it then shifts gears to embrace
the equally guilty hypothesis under the fall-back third argument.
Regardless, however, of whatever legal strategy petitioner may have in mind, the
fundamental principle that the Court is not a trier of facts remains. Petitioners
second and third arguments are to be sure relevant to the proceedings for the grant
or denial of bail that were pending before in the Sandiganbayan. They are of little
moment here where the only issue now is whether or not there was grave abuse of
discretion on the part of the Sandiganbayan in granting bail to the private
respondent.
With the view we take of this case, the respondent court did not commit grave
abuse of discretion in issuing its assailed resolutions,because the grant of bail
therein is predicated only on its preliminary appreciation of the evidence adduced
in the bail hearing to determine whether or not deprivation of the right to bail is
warranted. Needless to stress, a grant of bail does not prevent the trier of facts, the
same Anti-Graft Court, from making a final assessment of the evidence after full
trial on the merits. As jurisprudence teaches:
xxx Such appreciation [of evidence] is at best preliminary and should not prevent
the trial judge from making a final assessment of the evidence before him after
full trial. It is not an uncommon occurrence that an accused person granted bail is
convicted in due course. [23]

Petitioners last argument is, at bottom, an attempt to have the Court reverse in this
case its earlier holding in another case - G.R. No. 148965 - where we stated:
The Amended Information, in its first two paragraphs, charges petitioner
[Jinggoy] and his other co-accused with the crime of plunder. The first paragraph
names all the accused, while the second paragraph describes in general how
plunder was committed and lays down most of the elements of the crime
itself. Sub-paragraphs (a) to (d) describe in detail the predicate acts that
constitute the crime and name in particular the co-conspirators of former
President Estrada in each predicate act. The predicate acts alleged in the said

four sub-paragraphs correspond to the items enumerated in Section 1 (d) of R.A.

No. 7080. Sub-paragraph (a) alleged the predicate act of receiving, on several
instances, money from illegal gambling, in consideration of toleration or
protection of illegal gambling, and expressly names petitioner [Jinggoy] as
one of those who conspired with former President Estrada in committing the
offense. This predicate act corresponds with the offense described in item [2] of
the enumeration in Section 1 (d) of R.A. No. 7080. Sub-paragraph (b) alleged the
predicate act of diverting, receiving or misappropriating a portion of the tobacco
excise tax share allocated for the province ofIlocos Sur, which act is the offense
described in item [1] in the enumeration in Section 1 (d) of the law. This subparagraph does not mention petitioner but instead names other conspirators of the
former President. Sub-paragraph (c) alleged two predicate acts that of ordering the
(GSIS) and the (SSS) to purchase shares of stock of Belle Corporation, and
collecting or receiving commissions from such purchase from the Belle
Corporation which became part of the deposit in the Jose Velarde account at the
Equitable-PCI Bank. These two predicate acts fall under items [2] and [3] in the
enumeration of R.A. No. 7080, and was allegedly committed by the former
President in connivance with John Does and Jane Does. Finally, sub-paragraph (d)
alleged the predicate act that the former President unjustly enriched himself from
commissions, gifts, kickbacks, in connivance with John Does and Jane Does, and
deposited the same under his account name Jose Velarde at the Equitable-PCI
Bank. This act corresponds to the offense under item [6] in the enumeration of
Section 1 (d) of R.A. No. 7080.
From the foregoing allegations of the Amended Information, it is clear that all the
accused named in sub-paragraphs (a) to (d), thru their individual acts, conspired
with former President Estrada to enable the latter to amass, accumulate or acquire
ill-gotten wealth . As the Amended Information is worded, however, it is not
certain whether the accused in sub-paragraphs (a) to (d) conspired with each
other to enable the former President to amass the subject ill-gotten wealth. In
light of this lack of clarity, petitioner cannot be penalized for the conspiracy
entered into by the other accused with the former President as related in the
second paragraph of the Amended Information in relation to its sub-paragraphs
(b) to (d). We hold that petitioner can be held accountable only for the
predicate acts [illegal gambling] he allegedly committed as related in subparagraph (a) of the Amended Information which were allegedly done in
conspiracy with the former President whose design was to amass ill-gotten
wealth amounting to more than P4 billion.[24](Emphasis added.)

Obviously hoping to maneuver around the above ruling so as to implicate

individual respondent for predicate acts described in sub-paragraphs (b), (c)
and (d) of the Amended Information, petitioner now argues:
It should be emphasized that in the course of the proceedings in the instant case,
respondent Jinggoy Estrada waived the benefit of the said ruling and opted,
instead, to participate, as he did participate and later proceeded to cross-examine
witnesses whose testimonies were clearly offered to prove the other constitutive

acts of Plunder alleged in the Amended Information under sub-paragraphs b, c

and d.[25]

We disagree.
At bottom, the petitioner assumes that the ruling accorded benefits to respondent
Jinggoy that were inexistent at the start of that case. But no such benefits were
extended, as the Court did not read into the Amended Information, as couched,
something not there in the first place. Respondent Jinggoys participation, if that be
the case, in the proceedings involving sub-paragraphs b, c and d, did not change
the legal situation set forth in the aforequoted portion of the Courts ruling in G.R.
No. 148965. For when it passed, in G.R. No. 148965, upon the inculpatory acts
envisaged and ascribed in the Amended Information against Jinggoy, the Court
merely defined what he was indicted and can be penalized for. In legal jargon, the
Court informed him of the nature and cause of the accusation against him, a right
guaranteed an accused under the Constitution.[26] In fine, all that the Court
contextually did in G.R. No. 148965 was no more than to implement his right to be
informed of the nature of the accusation in the light of the filing of the Amended
Information as worded. If at all, the Courts holding in G.R. No. 148965 freed
individual respondent from the ill effects of a wrong interpretation that might be
given to the Amended Information.
In all, the Court rules that public respondent Sandiganbayan (Special Division) did
not commit grave abuse of discretion when, afterconducting numerous bail
hearings and evaluating the weight of the prosecutions evidence, it determined that
the evidence against individual respondent was not strong and, on the basis of that
determination, resolved to grant him bail.
As a final consideration, the Court notes a statement made by the respondent court
which adds an appropriate dimension to its resolve to grant bail subject of this
recourse. Wrote that court in its assailed resolution of March 6, 2003:
xxx Corollarily, it is not amiss to state that, at this time, there looms the possibility
that, in case of conviction, [respondent Jinggoys] criminal liability would
probably not warrant the death penalty or reclusion perpetua. (Underscoring in
the original; Words in bracket added).

WHEREFORE, the instant petition is DISMISSED.

No pronouncement as to costs.
SO ORDERED.

CANCIO C. GARCIA
Associate Justice

WE CONCUR:
REYNATO S. PUNO
Chief Justice

LEONARDO A. QUISUMBING
Associate Justice

CONSUELO YNARES-SANTIAGO
Associate Justice

ANGELINA SANDOVAL-GUTIERREZ
Associate Justice

ANTONIO T. CARPIO
Associate Justice

MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice

RENATO C. CORONA
Associate Justice

CONCHITA CARPIO MORALES

Associate Justice

ADOLFO S. AZCUNA
Associate Justice

DANTE O. TINGA
Associate Justice

(No part)
MINITA V. CHICO-NAZARIO
Associate Justice

PRESBITERO J. VELASCO, JR.

Associate Justice

ANTONIO EDUARDO B. NACHURA

Associate Justice

RUBEN T. REYES
Associate Justice
C E R T I F I C AT I O N
Pursuant to Section 13, Article VIII of the Constitution, I certify that the
conclusions in the above decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court.

REYNATO S. PUNO
Chief Justice

No part.
Penned by Sandiganbayan Presiding Justice (now Supreme Court Associate Justice) Minita V. ChicoNazario with Associate Justices Edilberto G. Sandoval and Teresita J. Leonardo De Castro concurring;
rollo, Volume 1, pp. 199-230.
[2]
Penned by the same ponente with a separate opinion by Sandiganbayan Associate Justice Edilberto G. Sandoval;
id. at 231-241.
[3]
Estrada v. Sandiganbayan, 377 SCRA 538, 543-44.
[4]
Id. at 546-548.
[5]
Id. at 545.
[6]
Id. at 566.
[7]
Id. at 566.
[8]
Id. at 566.
[9]
Id. at 567-568.
[10]
Rollo, Volume 1, pp. 283-291.
[11]
Supra note 1.
[1]

[12]

Supra note 2.

[13]

Petition, pp. 103-104; rollo, pp. 104-105.

People v. Baldoz, G.R No. 140032, November 20, 2001, 369 SCRA 690, 708.
Assailed Resolution dated March 5, 2003, p. 30, rollo, Volume 1, p. 229.
People v. Castelo, G.R. No. L-10774, May 30, 1964, 11 SCRA 193.

[14]
[15]
[16]

[17]
[18]
[19]
[20]
[21]
[22]
[23]
[24]
[25]
[26]

People v. Ty Sui Wong, G.R. No. L-32529, May 12, 1978, 83 SCRA 125.
Petitioners Memorandum, pp. 127-128, rollo, pp. 5195-5196.
Assailed Resolution dated March 5, 2003, p. 30; rollo, Volume 1, p. 229.
Revised Penal Code, Article 8, 2nd paragraph.
People v. Ponce, G.R. No. 126254, September 29, 2000, 341 SCRA 352, 361.
People v. Del Rosario, G.R. No. 127755, April 14, 1999, 305 SCRA 740, 755.
People v. Baldoz, supra.
Supra note 3 at 553-554.
Petitioners Memorandum, pp. 209-218, rollo, pp. 5277-5288.
Constitution, Article III (Bill of Rights), Section 14(2).

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 7081

September 7, 1912

THE UNITED STATES, plaintiff-appellee,

vs.
TAN TENG, defendant-appellant.
Chas A. McDonough, for appellant.
Office of the Solicitor General Harvey, for appellee.
JOHNSON, J.:
This defendant was charged with the crime of rape. The complaint alleged:
That on or about September 15, 1910, and before the filing of this complaint, in the
city of Manila, Philippine Islands, the said Tan Teng did willfully, unlawfully and
criminally, and employing force, lie and have carnal intercourse with a certain Oliva
Pacomio, a girl 7 years of age.
After hearing the evidence, the Honorable Charles S. Lobingier, judge, found the defendant
guilty of the offense of abusos deshonestos, as defined and punished under article 439 of
the Penal Code, and sentenced him to be imprisoned for a period of 4 years 6 months and
11 days of prision correccional, and to pay the costs.
From that sentence the defendant appealed and made the following assignments of error in
this court:
I. The lower court erred in admitting the testimony of the physicians about having
taken a certain substance from the body of the accused while he was confined in jail
and regarding the chemical analysis made of the substance to demonstrate the
physical condition of the accused with reference to a venereal disease.
II. The lower court erred in holding that the complainant was suffering from a
venereal disease produced by contact with a sick man.
III. The court erred in holding that the accused was suffering from a venereal
disease.

IV. The court erred in finding the accused guilty from the evidence.
From an examination of the record it appears that the offended party, Oliva Pacomio, a girl
seven years of age, was, on the 15th day of September , 1910, staying in the house of her
sister, located on Ilang-Ilang Street, in the city of Manila; that on said day a number of
Chinamen were gambling had been in the habit of visiting the house of the sister of the
offended party; that Oliva Pacomio, on the day in question, after having taken a bath,
returned to her room; that the defendant followed her into her room and asked her for some
face powder, which she gave him; that after using some of the face powder upon his private
parts he threw the said Oliva upon the floor, placing his private parts upon hers, and
remained in that position for some little time. Several days later, perhaps a week or two, the
sister of Oliva Pacomio discovered that the latter was suffering from a venereal disease
known as gonorrhea. It was at the time of this discovery that Oliva related to her sister what
happened upon the morning of the 15th of September. The sister at once put on foot an
investigation to find the Chinaman. A number of Chinamen were collected together. Oliva
was called upon to identify the one who had abused her. The defendant was not present at
first. later he arrived and Oliva identified him at once as the one who had attempted to
violate her.
Upon this information the defendant was arrested and taken to the police station and
stripped of his clothing and examined. The policeman who examined the defendant swore
from the venereal disease known as gonorrhea. The policeman took a portion of the
substance emitting from the body of the defendant and turned it over to the Bureau of
Science for the purpose of having a scientific analysis made of the same. The result of the
examination showed that the defendant was suffering from gonorrhea.
During the trial the defendant objected strongly to the admissibility of the testimony of Oliva,
on the ground that because of her tender years her testimony should not be given credit.
The lower court, after carefully examining her with reference to her ability to understand the
nature of an oath, held that she had sufficient intelligence and discernment to justify the
court in accepting her testimony with full faith and credit. With the conclusion of the lower
court, after reading her declaration, we fully concur. The defense in the lower court
attempted to show that the venereal disease of gonorrhea might be communicated in ways
other than by contact such as is described in the present case, and called medical
witnesses for the purpose of supporting the contention. Judge Lobingier, in discussing that
question said:
We shall not pursue the refinement of speculation as to whether or not this disease
might, in exceptional cases, arise from other carnal contact. The medical experts, as
well as the books, agree that in ordinary cases it arises from that cause, and if this
was an exceptional one, we think it was incumbent upon the defense to bring it
within the exception.

The offended party testified that the defendant had rested his private parts upon hers for
some moments. The defendant was found to be suffering from gonorrhea. The medical
experts who testified agreed that this disease could have been communicated from him to
her by the contact described. Believing as we do the story told by Oliva, we are forced to
the conclusion that the disease with which Oliva was suffering was the result of the illegal
and brutal conduct of the defendant. Proof, however, that Oliva constructed said obnoxious
disease from the defendant is not necessary to show that he is guilty of the crime. It is only
corroborative of the truth of Oliva's declaration.
The defendant attempted to prove in the lower court that the prosecution was brought for
the purpose of compelling him to pay to the sister of Oliva a certain sum of money.
The defendant testifed and brought other Chinamen to support his declaration, that the
sister of Oliva threatened to have him prosecuted if he did not pay her the sum of P60. It
seems impossible to believe that the sister, after having become convinced that Oliva had
been outraged in the manner described above, would consider for a moment a settlement
for the paltry sum of P60. Honest women do not consent to the violation of their bodies nor
those of their near relatives, for the filthy consideration of mere money.
In the court below the defendant contended that the result of the scientific examination
made by the Bureau of Science of the substance taken from his body, at or about the time
he was arrested, was not admissible in evidence as proof of the fact that he was suffering
from gonorrhea. That to admit such evidence was to compel the defendant to testify against
himself. Judge Lobingier, in discussing that question in his sentence, said:
The accused was not compelled to make any admissions or answer any questions,
and the mere fact that an object found on his person was examined: seems no more
to infringe the rule invoked, than would the introduction in evidence of stolen property
taken from the person of a thief.
The substance was taken from the body of the defendant without his objection, the
examination was made by competent medical authority and the result showed that the
defendant was suffering from said disease. As was suggested by Judge Lobingier, had the
defendant been found with stolen property upon his person, there certainly could have been
no question had the stolen property been taken for the purpose of using the same as
evidence against him. So also if the clothing which he wore, by reason of blood stains or
otherwise, had furnished evidence of the commission of a crime, there certainly could have
been no objection to taking such for the purpose of using the same as proof. No one would
think of even suggesting that stolen property and the clothing in the case indicated, taken
from the defendant, could not be used against him as evidence, without violating the rule
that a person shall not be required to give testimony against himself.

The question presented by the defendant below and repeated in his first assignment of error
is not a new question, either to the courts or authors. In the case of Holt vs. U.S. (218 U.S.,
245), Mr. Justice Holmes, speaking for the court upon this question, said:
But the prohibition of compelling a man in a criminal court to be a witness against
himself, is a prohibition of the use of physical or moral compulsion, to extort
communications from him, not an exclusion of his body as evidence, when it may be
material. The objection, in principle, would forbid a jury (court) to look at a person
and compare his features with a photograph in proof. Moreover we are not
considering how far a court would go in compelling a man to exhibit himself, for when
he is exhibited, whether voluntarily or by order, even if the order goes too far, the
evidence if material, is competent.
The question which we are discussing was also discussed by the supreme court of the
State of New Jersey, in the case of State vs. Miller (71 N.J. law Reports, 527). In that case
the court said, speaking through its chancellor:
It was not erroneous to permit the physician of the jail in which the accused was
confined, to testify to wounds observed by him on the back of the hands of the
accused, although he also testified that he had the accused removed to a room in
another part of the jail and divested of his clothing. The observation made by the
witness of the wounds on the hands and testified to by him, was in no sense a
compelling of the accused to be a witness against himself. If the removal of the
clothes had been forcible and the wounds had been thus exposed, it seems that the
evidence of their character and appearance would not have been objectionable.
In that case also (State vs. Miller) the defendant was required to place his hand upon the
wall of the house where the crime was committed, for the purpose of ascertaining whether
or not his hand would have produced the bloody print. The court said, in discussing that
question:
It was not erroneous to permit evidence of the coincidence between the hand of the
accused and the bloody prints of a hand upon the wall of the house where the crime
was committed, the hand of the accused having been placed thereon at the request
of persons who were with him in the house.
It may be added that a section of the wall containing the blood prints was produced before
the jury and the testimony of such comparison was like that held to be proper in another
case decided by the supreme court of New Jersey in the case of Johnson vs. State (30
Vroom, N.J. Law Reports, 271). The defendant caused the prints of the shoes to be made in
the sand before the jury, and the witnesses who had observed shoe prints in the sand at the
place of the commission of the crime were permitted to compare them with what the had
observed at that place.

In that case also the clothing of the defendant was used as evidence against him.
To admit the doctrine contended for by the appellant might exclude the testimony of a
physician or a medical expert who had been appointed to make observations of a person
who plead insanity as a defense, where such medical testimony was against necessarily
use the person of the defendant for the purpose of making such examination. (People vs.
Agustin, 199 N.Y., 446.) The doctrine contended for by the appellants would also prevent
the courts from making an examination of the body of the defendant where serious personal
injuries were alleged to have been received by him. The right of the courts in such cases to
require an exhibit of the injured parts of the body has been established by a long line of
decisions.
The prohibition contained in section 5 of the Philippine Bill that a person shall not be
compelled to be a witness against himself, is simply a prohibition against legal process to
extract from the defendant's own lips, against his will, an admission of his guilt.
Mr. Wigmore, in his valuable work on evidence, in discussing the question before us, said:
If, in other words, it (the rule) created inviolability not only for his [physical control] in
whatever form exercised, then it would be possible for a guilty person to shut himself
up in his house, with all the tools and indicia of his crime, and defy the authority of
the law to employ in evidence anything that might be obtained by forcibly
overthrowing his possession and compelling the surrender of the evidential articles
a clearreductio ad absurdum. In other words, it is not merely compulsion that is
the kernel of the privilege, . . . buttestimonial compulsion. (4 Wigmore, sec. 2263.)
The main purpose of the provision of the Philippine Bill is to prohibit compulsory oral
examination of prisonersbefore trial. or upon trial, for the purpose of extorting unwilling
confessions or declarations implicating them in the commission of a crime. (People vs.
Gardner, 144 N. Y., 119.)
The doctrine contended for by appellant would prohibit courts from looking at the fact of a
defendant even, for the purpose of disclosing his identity. Such an application of the
prohibition under discussion certainly could not be permitted. Such an inspection of the
bodily features by the court or by witnesses, can not violate the privilege granted under the
Philippine Bill, because it does not call upon the accused as a witness it does not call
upon the defendant for his testimonial responsibility. Mr. Wigmore says that evidence
obtained in this way from the accused, is not testimony but his body his body itself.
As was said by Judge Lobingier:
The accused was not compelled to make any admission or answer any questions,
and the mere fact that an object found upon his body was examined seems no more

to infringe the rule invoked than would the introduction of stolen property taken from
the person of a thief.
The doctrine contended for by the appellant would also prohibit the sanitary department of
the Government from examining the body of persons who are supposed to have some
contagious disease.
We believe that the evidence clearly shows that the defendant was suffering from the
venereal disease, as above stated, and that through his brutal conduct said disease was
communicated to Oliva Pacomio. In a case like the present it is always difficult to secure
positive and direct proof. Such crimes as the present are generally proved by circumstantial
evidence. In cases of rape the courts of law require corroborative proof, for the reason that
such crimes are generally committed in secret. In the present case, taking into account the
number and credibility of the witnesses, their interest and attitude on the witness stand, their
manner of testifying and the general circumstances surrounding the witnesses, including the
fact that both parties were found to be suffering from a common disease, we are of the
opinion that the defendant did, on or about the 15th of September, 1910, have such
relations as above described with the said Oliva Pacomio, which under the provisions of
article 439 of the Penal Code makes him guilty of the crime of "abusos deshonestos," and
taking into consideration the fact that the crime which the defendant committed was done in
the house where Oliva Pacomio was living, we are of the opinion that the maximum penalty
of the law should be imposed. The maximum penalty provided for by law is six years
of prision correccional. Therefore let a judgment be entered modifying the sentence of the
lower court and sentencing the defendant to be imprisoned for a period of six years
of prision correccional, and to pay the costs. So ordered.
Arellano, C.J., Torres, Mapa, Carson and Trent, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-25018

May 26, 1969

ARSENIO PASCUAL, JR., petitioner-appellee,

vs.
BOARD OF MEDICAL EXAMINERS, respondent-appellant, SALVADOR GATBONTON and
ENRIQUETA GATBONTON, intervenors-appellants.
Conrado B. Enriquez for petitioner-appellee.
Office of the Solicitor General Arturo A. Alafriz, Assistant Solicitor General Antonio A. Torres and
Solicitor Pedro A. Ramirez for respondent-appellant.
Bausa, Ampil and Suarez for intervenors-appellants.
FERNANDO, J.:
The broad, all-embracing sweep of the self-incrimination clause, 1 whenever appropriately invoked,
has been accorded due recognition by this Court ever since the adoption of the
Constitution.2 Bermudez v. Castillo,3decided in 1937, was quite categorical. As we there stated: "This
Court is of the opinion that in order that the constitutional provision under consideration may prove to
be a real protection and not a dead letter, it must be given a liberal and broad interpretation
favorable to the person invoking it." As phrased by Justice Laurel in his concurring opinion: "The
provision, as doubtless it was designed, would be construed with the utmost liberality in favor of the
right of the individual intended to be served." 4
Even more relevant, considering the precise point at issue, is the recent case of Cabal v.
Kapunan,5where it was held that a respondent in an administrative proceeding under the Anti-Graft
Law 6 cannot be required to take the witness stand at the instance of the complainant. So it must be
in this case, where petitioner was sustained by the lower court in his plea that he could not be
compelled to be the first witness of the complainants, he being the party proceeded against in an
administrative charge for malpractice. That was a correct decision; we affirm it on appeal.
Arsenio Pascual, Jr., petitioner-appellee, filed on February 1, 1965 with the Court of First Instance of
Manila an action for prohibition with prayer for preliminary injunction against the Board of Medical
Examiners, now respondent-appellant. It was alleged therein that at the initial hearing of an
administrative case7 for alleged immorality, counsel for complainants announced that he would
present as his first witness herein petitioner-appellee, who was the respondent in such malpractice
charge. Thereupon, petitioner-appellee, through counsel, made of record his objection, relying on
the constitutional right to be exempt from being a witness against himself. Respondent-appellant, the
Board of Examiners, took note of such a plea, at the same time stating that at the next scheduled
hearing, on February 12, 1965, petitioner-appellee would be called upon to testify as such witness,
unless in the meantime he could secure a restraining order from a competent authority.

Petitioner-appellee then alleged that in thus ruling to compel him to take the witness stand, the
Board of Examiners was guilty, at the very least, of grave abuse of discretion for failure to respect
the constitutional right against self-incrimination, the administrative proceeding against him, which
could result in forfeiture or loss of a privilege, being quasi-criminal in character. With his assertion
that he was entitled to the relief demanded consisting of perpetually restraining the respondent
Board from compelling him to testify as witness for his adversary and his readiness or his willingness
to put a bond, he prayed for a writ of preliminary injunction and after a hearing or trial, for a writ of
prohibition.
On February 9, 1965, the lower court ordered that a writ of preliminary injunction issue against the
respondent Board commanding it to refrain from hearing or further proceeding with such an
administrative case, to await the judicial disposition of the matter upon petitioner-appellee posting a
bond in the amount of P500.00.
The answer of respondent Board, while admitting the facts stressed that it could call petitionerappellee to the witness stand and interrogate him, the right against self-incrimination being available
only when a question calling for an incriminating answer is asked of a witness. It further elaborated
the matter in the affirmative defenses interposed, stating that petitioner-appellee's remedy is to
object once he is in the witness stand, for respondent "a plain, speedy and adequate remedy in the
ordinary course of law," precluding the issuance of the relief sought. Respondent Board, therefore,
denied that it acted with grave abuse of discretion.
There was a motion for intervention by Salvador Gatbonton and Enriqueta Gatbonton, the
complainants in the administrative case for malpractice against petitioner-appellee, asking that they
be allowed to file an answer as intervenors. Such a motion was granted and an answer in
intervention was duly filed by them on March 23, 1965 sustaining the power of respondent Board,
which for them is limited to compelling the witness to take the stand, to be distinguished, in their
opinion, from the power to compel a witness to incriminate himself. They likewise alleged that the
right against self-incrimination cannot be availed of in an administrative hearing.
A decision was rendered by the lower court on August 2, 1965, finding the claim of petitionerappellee to be well-founded and prohibiting respondent Board "from compelling the petitioner to act
and testify as a witness for the complainant in said investigation without his consent and against
himself." Hence this appeal both by respondent Board and intervenors, the Gatbontons. As noted at
the outset, we find for the petitioner-appellee.
1. We affirm the lower court decision on appeal as it does manifest fealty to the principle announced
by us inCabal v. Kapunan. 8 In that proceeding for certiorari and prohibition to annul an order of Judge
Kapunan, it appeared that an administrative charge for unexplained wealth having been filed against
petitioner under the Anti-Graft Act,9the complainant requested the investigating committee that
petitioner be ordered to take the witness stand, which request was granted. Upon petitioner's refusal
to be sworn as such witness, a charge for contempt was filed against him in the sala of respondent
Judge. He filed a motion to quash and upon its denial, he initiated this proceeding. We found for the
petitioner in accordance with the well-settled principle that "the accused in a criminal case may
refuse, not only to answer incriminatory questions, but, also, to take the witness stand."

It was noted in the opinion penned by the present Chief Justice that while the matter referred to an a
administrative charge of unexplained wealth, with the Anti-Graft Act authorizing the forfeiture of
whatever property a public officer or employee may acquire, manifestly out proportion to his salary
and his other lawful income, there is clearly the imposition of a penalty. The proceeding for forfeiture
while administrative in character thus possesses a criminal or penal aspect. The case before us is
not dissimilar; petitioner would be similarly disadvantaged. He could suffer not the forfeiture of
property but the revocation of his license as a medical practitioner, for some an even greater
deprivation.
To the argument that Cabal v. Kapunan could thus distinguished, it suffices to refer to an American
Supreme Court opinion highly persuasive in character. 10 In the language of Justice Douglas: "We
conclude ... that the Self-Incrimination Clause of the Fifth Amendment has been absorbed in the
Fourteenth, that it extends its protection to lawyers as well as to other individuals, and that it should
not be watered down by imposing the dishonor of disbarment and the deprivation of a livelihood as a
price for asserting it." We reiterate that such a principle is equally applicable to a proceeding that
could possibly result in the loss of the privilege to practice the medical profession.
2. The appeal apparently proceeds on the mistaken assumption by respondent Board and
intervenors-appellants that the constitutional guarantee against self-incrimination should be limited to
allowing a witness to object to questions the answers to which could lead to a penal liability being
subsequently incurred. It is true that one aspect of such a right, to follow the language of another
American decision, 11 is the protection against "any disclosures which the witness may reasonably
apprehend could be used in a criminal prosecution or which could lead to other evidence that might
be so used." If that were all there is then it becomes diluted.
lawphi1.et

The constitutional guarantee protects as well the right to silence. As far back as 1905, we had
occasion to declare: "The accused has a perfect right to remain silent and his silence cannot be
used as a presumption of his guilt." 12 Only last year, in Chavez v. Court of Appeals, 13 speaking
through Justice Sanchez, we reaffirmed the doctrine anew that it is the right of a defendant "to
forego testimony, to remain silent, unless he chooses to take the witness stand with undiluted,
unfettered exercise of his own free genuine will."
Why it should be thus is not difficult to discern. The constitutional guarantee, along with other rights
granted an accused, stands for a belief that while crime should not go unpunished and that the truth
must be revealed, such desirable objectives should not be accomplished according to means or
methods offensive to the high sense of respect accorded the human personality. More and more in
line with the democratic creed, the deference accorded an individual even those suspected of the
most heinous crimes is given due weight. To quote from Chief Justice Warren, "the constitutional
foundation underlying the privilege is the respect a government ... must accord to the dignity and
integrity of its citizens." 14
It is likewise of interest to note that while earlier decisions stressed the principle of humanity on
which this right is predicated, precluding as it does all resort to force or compulsion, whether physical
or mental, current judicial opinion places equal emphasis on its identification with the right to privacy.
Thus according to Justice Douglas: "The Fifth Amendment in its Self-Incrimination clause enables
the citizen to create a zone of privacy which government may not force to surrender to his

detriment." 15 So also with the observation of the late Judge Frank who spoke of "a right to a private
enclave where he may lead a private life. That right is the hallmark of our democracy." 16 In the light
of the above, it could thus clearly appear that no possible objection could be legitimately raised
against the correctness of the decision now on appeal. We hold that in an administrative hearing
against a medical practitioner for alleged malpractice, respondent Board of Medical Examiners
cannot, consistently with the self-incrimination clause, compel the person proceeded against to take
the witness stand without his consent.
WHEREFORE, the decision of the lower court of August 2, 1965 is affirmed. Without pronouncement
as to costs.
Reyes, Dizon, Makalintal, Zaldivar, Sanchez and Capistrano, JJ., concur.
Teehankee and Barredo, JJ., took no part.
Concepcion, C.J., and Castro, J., are on leave.
Footnotes
1

Section 1, Clause 18, Art. III, Constitution.

It was so even under previous organic acts. Cf. United States v. Navarro, 3 Phil. 143 (1904);
Beltran v. Samson, 53 Phil. 570 (1929).
2

64 Phil. 483.

Ibid., p. 492. This constitutional command, according to Justice Fortas, "has [been] broadly
applied and generously implemented in accordance with the teaching of the history of the
privilege and its great office in mankind's battle for freedom." Re GauIt, 387 US 1 (1967).
4

6 SCRA 1059 (1962).

Republic Act No. 1379 (1955).

No. 639 of Respondent Board entitled Salvador Gatbonton v. Arsenio Pascual.

6 SCRA 1059 (1962).

Republic Act No. 1379.

10

Spevack v. Klein, 385 US 511 (1967).

Murphy v. Waterfront Commission of New York, 378 US 52 (1964).

11

United States v. Luzon, 4 Phil. 343 (1905). Cf. United States v. Junio, 1 Phil. 50, decided
three years earlier: "It appears from the record that a copy of the complaint was served upon
the accused and he was required to plead "guilty" or "not guilty" in accordance with section
18 of General Orders, No. 58. He pleaded "not guilty." In response to this request the
12

defendant made a statement. We are of the opinion that this procedure is illegal. The judge
had no right to compel the accused to make any statement whatever."
13

24 SCRA 663.

14

Miranda v. Arizona, 284 US 436 (1966).

15

Criswold v. Connecticut, 381 US 479 (1965).

United States v. Grunewold, 233 F 2d 556 quoted in Miranda v. Arizona, 384 US 476
(1966).
16

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. Nos. 71208-09 August 30, 1985
SATURNINA GALMAN AND REYNALDO GALMAN, petitioners,
vs.
THE HONORABLE PRESIDING JUSTICE MANUEL PAMARAN AND ASSOCIATE
JUSTICES AUGUSTO AMORES AND BIENVENIDO VERA CRUZ OF THE
SANDIGANBAYAN, THE HONORABLE BERNARDO FERNANDEZ, TANODBAYAN,
GENERAL FABIAN C. VER, MAJOR GENERAL PROSPERO OLIVAS, SGT. PABLO
MARTINEZ, SGT. TOMAS FERNANDEZ, SGT. LEONARDO MOJICA SGT. PEPITO
TORIO, SGT. PROSPERO BONA AND AlC ANICETO ACUPIDO, respondents.
G.R. Nos. 71212-13 August 30, 1985
PEOPLE OF THE PHILIPPINES, represented by the TANODBAYAN
(OMBUDSMAN), petitioner,
vs.
THE SANDIGANBAYAN, GENERAL FABIAN C. VER, MAJOR GEN. PROSPERO
OLIVAS, SGT. PABLO MARTINEZ, SGT. TOMAS FERNANDEZ, SGT. LEONARDO
MOJICA, SGT. PEPITO TORIO, SGT. PROSPERO BONA AND AIC ANICETO
ACUPIDO, respondents.

CUEVAS, JR., J.:

On August 21, 1983, a crime unparalleled in repercussions and ramifications was
committed inside the premises of the Manila International Airport (MIA) in Pasay City.
Former Senator Benigno S. Aquino, Jr., an opposition stalwart who was returning to the
country after a long-sojourn abroad, was gunned down to death. The assassination rippled
shock-waves throughout the entire country which reverberated beyond the territorial
confines of this Republic. The after-shocks stunned the nation even more as this ramified to
all aspects of Philippine political, economic and social life.
To determine the facts and circumstances surrounding the killing and to allow a free,
unlimited and exhaustive investigation of all aspects of the tragedy, 1 P.D. 1886 was
promulgated creating an ad hoc Fact Finding Board which later became more popularly known as the
Agrava Board. 2 Pursuant to the powers vested in it by P.D. 1886, the Board conducted public hearings
wherein various witnesses appeared and testified and/or produced documentary and other evidence
either in obedience to a subpoena or in response to an invitation issued by the Board Among the
witnesses who appeared, testified and produced evidence before the Board were the herein private
respondents General Fabian C. Ver, Major General Prospero Olivas, 3 Sgt. Pablo Martinez, Sgt. Tomas
Fernandez, Sgt. Leonardo Mojica, Sgt. Pepito Torio, Sgt. Prospero Bona and AIC Aniceto Acupido. 4

UPON termination of the investigation, two (2) reports were submitted to His Excellency,
President Ferdinand E. Marcos. One, by its Chairman, the Hon. Justice Corazon Juliano
Agrava; and another one, jointly authored by the other members of the Board namely:
Hon. Luciano Salazar, Hon. Amado Dizon, Hon. Dante Santos and Hon. Ernesto Herrera.
'the reports were thereafter referred and turned over to the TANODBAYAN for appropriate
action. After conducting the necessary preliminary investigation, the TANODBAYAN 5 filed
with the SANDIGANBAYAN two (2) Informations for MURDER-one for the killing of Sen. Benigno S.
Aquino which was docketed as Criminal Case No. 10010 and another, criminal Case No. 10011, for the
killing of Rolando Galman, who was found dead on the airport tarmac not far from the prostrate body of
Sen. Aquino on that same fateful day. In both criminal cases, private respondents were charged as
accessories, along with several principals, and one accomplice.

Upon arraignment, all the accused, including the herein private ate Respondents pleaded
NOT GUILTY.
In the course of the joint trial of the two (2) aforementioned cases, the Prosecution
represented by the Office of the petition TANODBAYAN, marked and thereafter offered as
part of its evidence, the individual testimonies of private respondents before the Agrava
Board. 6 Private respondents, through their respective counsel objected to the admission of said exhibits.
Private respondent Gen. Ver filed a formal "Motion to Exclude Testimonies of Gen. Fabian C. Ver before
the Fact Finding Board as Evidence against him in the above-entitled cases" 7 contending that its
admission will be in derogation of his constitutional right against self-incrimination and violative of the
immunity granted by P.D. 1886. He prayed that his aforesaid testimony be rejected as evidence for the
prosecution. Major Gen. Olivas and the rest of the other private respondents likewise filed separate
motions to exclude their respective individual testimonies invoking the same ground. 8 Petitioner
TANODBAYAN opposed said motions contending that the immunity relied upon by the private
respondents in support of their motions to exclude their respective testimonies, was not available to them
because of their failure to invoke their right against self-incrimination before the ad hoc Fact Finding
Board. 9 Respondent SANDIGANBAYAN ordered the TANODBAYAN and the private respondents to
submit their respective memorandum on the issue after which said motions will be considered submitted
for resolution. 10

On May 30, 1985, petitioner having no further witnesses to present and having been
required to make its offer of evidence in writing, respondent SANDIGANBAYAN, without the
pending motions for exclusion being resolved, issued a Resolution directing that by
agreement of the parties, the pending motions for exclusion and the opposition thereto,
together with the memorandum in support thereof, as well as the legal issues and
arguments, raised therein are to be considered jointly in the Court's Resolution on the
prosecution's formal offer of exhibits and other documentary evidences. 11 On June 3, 1985, the
prosecution made a written "Formal Offer of Evidence" which includes, among others, the testimonies of
private respondents and other evidences produced by them before the Board, all of which have been
previously marked in the course of the trial. 12

All the private respondents objected to the prosecution's formal offer of evidence on the
same ground relied upon by them in their respective motion for exclusion.
On June 13, 1985, respondent SANDIGANBAYAN issued a Resolution, now assailed in
these two (2) petitions, admitting all the evidences offered by the prosecution except the
testimonies and/or other evidence produced by the private respondents in view of the
immunity granted by P.D. 1886. 13

Petitioners' motion for the reconsideration of the said Resolution having been DENIED, they
now come before Us by way of certiorari 14 praying for the amendment and/or setting aside of the
challenged Resolution on the ground that it was issued without jurisdiction and/or with grave abuse of
discretion amounting to lack of jurisdiction. Private prosecutor below, as counsel for the mother of
deceased Rolando Galman, also filed a separate petition for certiorari 15 on the same ground. Having
arisen from the same factual beginnings and raising practically Identical issues, the two (2) petitioners
were consolidated and will therefore be jointly dealt with and resolved in this Decision.

The crux of the instant controversy is the admissibility in evidence of the testimonies given
by the eight (8) private respondents who did not invoke their rights against self-incrimination
before the Agrava Board.
It is the submission of the prosecution, now represented by the petitioner TANODBAYAN,
that said testimonies are admissible against the private respondents, respectively, because
of the latter's failure to invoke before the Agrava Board the immunity granted by P.D. 1886.
Since private respondents did not invoke said privilege, the immunity did not attach.
Petitioners went further by contending that such failure to claim said constitutional privilege
amounts to a waiver thereof. 16 The private respondents, on the other hand, claim that
notwithstanding failure to set up the privilege against self- incrimination before the Agrava Board, said
evidences cannot be used against them as mandated by Section 5 of the said P.D. 1886. They contend
that without the immunity provided for by the second clause of Section 5, P.D. 1886, the legal compulsion
imposed by the first clause of the same Section would suffer from constitutional infirmity for being violative
of the witness' right against self- incrimination. 17 Thus, the protagonists are locked in horns on the effect
and legal significance of failure to set up the privilege against self-incrimination.

The question presented before Us is a novel one. Heretofore, this Court has not been
previously called upon to rule on issues involving immunity statutes. The relative novelty of
the question coupled with the extraordinary circumstance that had precipitated the same did
nothing to ease the burden of laying down the criteria upon which this Court will henceforth
build future jurisprudence on a heretofore unexplored area of judicial inquiry. In carrying out
this monumental task, however, We shall be guided, as always, by the constitution and
existing laws.
The Agrava Board, 18 came into existence in response to a popular public clamor that an impartial and
independent body, instead of any ordinary police agency, be charged with the task of conducting the
investigation. The then early distortions and exaggerations, both in foreign and local media, relative to the
probable motive behind the assassination and the person or persons responsible for or involved in the
assassination hastened its creation and heavily contributed to its early formation. 19

Although referred to and designated as a mere Fact Finding Board, the Board is in truth and
in fact, and to all legal intents and purposes, an entity charged, not only with the function of
determining the facts and circumstances surrounding the killing, but more importantly, the
determination of the person or persons criminally responsible therefor so that they may be
brought before the bar of justice. For indeed, what good will it be to the entire nation and the
more than 50 million Filipinos to know the facts and circumstances of the killing if the culprit
or culprits will nevertheless not be dealt with criminally? This purpose is implicit from
Section 12 of the said Presidential Decree, the pertinent portion of which provides
SECTION 12. The findings of the Board shall be made public. Should the
findings warrant the prosecution of any person, the Board may initiate the

filing of proper complaint with the appropriate got government agency. ...
(Emphasis supplied)
The investigation therefor is also geared, as any other similar investigation of its sort, to the
ascertainment and/or determination of the culprit or culprits, their consequent prosecution
and ultimately, their conviction. And as safeguard, the P.D. guarantees "any person called to
testify before the Board the right to counsel at any stage of the proceedings." 20 Considering
the foregoing environmental settings, it cannot be denied that in the course of receiving evidence,
persons summoned to testify will include not merely plain witnesses but also those suspected as authors
and co-participants in the tragic killing. And when suspects are summoned and called to testify and/or
produce evidence, the situation is one where the person testifying or producing evidence is undergoing
investigation for the commission of an offense and not merely in order to shed light on the facts and
surrounding circumstances of the assassination, but more importantly, to determine the character and
extent of his participation therein.

Among this class of witnesses were the herein private respondents, suspects in the said
assassination, all of whom except Generals Ver and Olivas, were detained (under technical
arrest) at the time they were summoned and gave their testimonies before the Agrava
Board. This notwithstanding, Presidential Decree No. 1886 denied them the right to remain
silent. They were compelled to testify or be witnesses against themselves. Section 5 of P.D.
1886 leave them no choice. They have to take the witness stand, testify or produce
evidence, under pain of contempt if they failed or refused to do so. 21 The jeopardy of being
placed behind prison bars even before conviction dangled before their very eyes. Similarly, they cannot
invoke the right not to be a witness against themselves, both of which are sacrosantly enshrined and
protected by our fundamental law. 21-a Both these constitutional rights (to remain silent and not to be
compelled to be a witness against himself) were right away totally foreclosed by P.D. 1886. And yet when
they so testified and produced evidence as ordered, they were not immune from prosecution by reason of
the testimony given by them.

Of course, it may be argued is not the right to remain silent available only to a person
undergoing custodial interrogation? We find no categorical statement in the constitutional
provision on the matter which reads:
... Any person under investigation for the commission of an offense shall have
the right to remain and to counsel, and to be informed of such
right. ... 22 (Emphasis supplied)
Since the effectivity of the 1973 Constitution, we now have a mass of jurisprudence

23

on this
specific portion of the subject provision. In all these cases, it has been categorically declared that a
person detained for the commission of an offense undergoing investigation has a right to be informed of
his right to remain silent, to counsel, and to an admonition that any and all statements to be given by him
may be used against him. Significantly however, there has been no pronouncement in any of these cases
nor in any other that a person similarly undergoing investigation for the commission of an offense, if not
detained, is not entitled to the constitutional admonition mandated by said Section 20, Art. IV of the Bill of
Rights.

The fact that the framers of our Constitution did not choose to use the term "custodial" by
having it inserted between the words "under" and investigation", as in fact the sentence
opens with the phrase "any person " goes to prove that they did not adopt in toto the entire
fabric of the Miranda doctrine. 24 Neither are we impressed by petitioners' contention that the use of
the word "confession" in the last sentence of said Section 20, Article 4 connotes the Idea that it applies

only to police investigation, for although the word "confession" is used, the protection covers not only
"confessions" but also "admissions" made in violation of this section. They are inadmissible against the
source of the confession or admission and against third person. 25

It is true a person in custody undergoing investigation labors under a more formidable

ordeal and graver trying conditions than one who is at liberty while being investigated. But
the common denominator in both which is sought to be avoided is the evil of extorting from
the very mouth of the person undergoing interrogation for the commission of an offense, the
very evidence with which to prosecute and thereafter convict him. This is the lamentable
situation we have at hand.
All the private respondents, except Generals Ver and Olivas, are members of the military
contingent that escorted Sen. Aquino while disembarking from the plane that brought him
home to Manila on that fateful day. Being at the scene of the crime as such, they were
among the first line of suspects in the subject assassination. General Ver on the other hand,
being the highest military authority of his co-petitioners labored under the same suspicion
and so with General Olivas, the first designated investigator of the tragedy, but whom others
suspected, felt and believed to have bungled the case. The papers, especially the foreign
media, and rumors from uglywagging tongues, all point to them as having, in one way or
another participated or have something to do, in the alleged conspiracy that brought about
the assassination. Could there still be any doubt then that their being asked to testify, was to
determine whether they were really conspirators and if so, the extent of their participation in
the said conspiracy? It is too taxing upon one's credulity to believe that private respondents'
being called to the witness stand was merely to elicit from them facts and circumstances
surrounding the tragedy, which was already so abundantly supplied by other ordinary
witnesses who had testified earlier. In fact, the records show that Generals Ver and Olivas
were among the last witnesses called by the Agrava Board. The subject matter dealt with
and the line of questioning as shown by the transcript of their testimonies before the Agrava
Board, indubitably evinced purposes other than merely eliciting and determining the socalled surrounding facts and circumstances of the assassination. In the light of the
examination reflected by the record, it is not far-fetched to conclude that they were called to
the stand to determine their probable involvement in the crime being investigated. Yet they
have not been informed or at the very least even warned while so testifying, even at that
particular stage of their testimonies, of their right to remain silent and that any statement
given by them may be used against them. If the investigation was conducted, say by the
PC, NBI or by other police agency, all the herein private respondents could not have been
compelled to give any statement whether incriminatory or exculpatory. Not only that. They
are also entitled to be admonished of their constitutional right to remain silent, to counsel,
and be informed that any and all statements given by them may be used against them. Did
they lose their aforesaid constitutional rights simply because the investigation was by the
Agrava Board and not by any police investigator, officer or agency? True, they continued
testifying. May that be construed as a waiver of their rights to remain silent and not to be
compelled to be a witness against themselves? The answer is yes, if they have the option to
do so. But in the light of the first portion of Section 5 of P.D. 1886 and the awesome
contempt power of the Board to punish any refusal to testify or produce evidence, We are
not persuaded that when they testified, they voluntarily waived their constitutional rights not
to be compelled to be a witness against themselves much less their right to remain silent.

Compulsion as it is understood here does not necessarily connote the use of

violence; it may be the product of unintentional statements. Pressure which
operates to overbear his will, disable him from making a free and rational
choice, or impair his capacity for rational judgment would in our opinion be
sufficient. So is moral coercion 'tending to force testimony from the unwilling
lips of the defendant. 26
Similarly, in the case of Louis J. Lefkowitz v. Russel 27 Turley" citing Garrity vs. New Jersey" where
certain police officers summoned to an inquiry being conducted by the Attorney General involving the
fixing of traffic tickets were asked questions following a warning that if they did not answer they would be
removed from office and that anything they said might be used against them in any criminal proceeding,
and the questions were answered, the answers given cannot over their objection be later used in their
prosecutions for conspiracy. The United States Supreme Court went further in holding that:

the protection of the individuals under the Fourteenth Amendment against

coerced statements prohibits use in subsequent proceedings of statements
obtained under threat or removal from office, and that it extends to all,
whether they are policemen or other members of the body politic. 385 US at
500, 17 L Ed. 562. The Court also held that in the context of threats of
removal from office the act of responding to interrogation was not voluntary
and was not an effective waiver of the privilege against self- incrimination.
To buttress their precarious stand and breathe life into a seemingly hopeless cause,
petitioners and amicus curiae (Ex-Senator Ambrosio Padilla) assert that the "right not to be
compelled to be a witness against himself" applies only in favor of an accused in a criminal
case. Hence, it may not be invoked by any of the herein private respondents before the
Agrava Board. The Cabal vs. Kapunan 28 doctrine militates very heavily against this theory. Said
case is not a criminal case as its title very clearly indicates. It is not People vs. Cabal nor a prosecution for
a criminal offense. And yet, when Cabal refused to take the stand, to be sworn and to testify upon being
called as a witness for complainant Col. Maristela in a forfeiture of illegally acquired assets, this Court
sustained Cabal's plea that for him to be compelled to testify will be in violation of his right against selfincrimination. We did not therein state that since he is not an accused and the case is not a criminal case,
Cabal cannot refuse to take the witness stand and testify, and that he can invoke his right against selfincrimination only when a question which tends to elicit an answer that will incriminate him is profounded
to him. Clearly then, it is not the character of the suit involved but the nature of the proceedings that
controls. The privilege has consistently been held to extend to all proceedings sanctioned by law and to
all cases in which punishment is sought to be visited upon a witness, whether a party or not. 29 If in a
mere forfeiture case where only property rights were involved, "the right not to be compelled to be a
witness against himself" is secured in favor of the defendant, then with more reason it cannot be denied
to a person facing investigation before a Fact Finding Board where his life and liberty, by reason of the
statements to be given by him, hang on the balance. Further enlightenment on the subject can be found
in the historical background of this constitutional provision against self- incrimination. The privilege
against self- incrimination is guaranteed in the Fifth Amendment to the Federal Constitution. In the
Philippines, the same principle obtains as a direct result of American influence. At first, the provision in our
organic laws were similar to the Constitution of the United States and was as follows:

That no person shall be ... compelled in a criminal case to be a witness

against himself. 30
As now worded, Section 20 of Article IV reads:

No person shall be compelled to be a witness against himself.

The deletion of the phrase "in a criminal case" connotes no other import except to make
said provision also applicable to cases other than criminal. Decidedly then, the right "not to
be compelled to testify against himself" applies to the herein private respondents
notwithstanding that the proceedings before the Agrava Board is not, in its strictest sense, a
criminal case
No doubt, the private respondents were not merely denied the afore-discussed sacred
constitutional rights, but also the right to "due process" which is fundamental
fairness. 31 Quoting the highly-respected eminent constitutionalist that once graced this Court, the former
Chief Justice Enrique M. Fernando, due process

... is responsiveness to the supremacy of reason, obedience to the dictates of

justice. Negatively put, arbitrariness is ruled out and unfairness avoided. To
satisfy the due process requirement, official action, to paraphrase Cardozo,
must not outrun the bounds of reason and result in sheer oppression. Due
process is thus hostile to any official action marred by lack of reasonableness.
Correctly, it has been Identified as freedom from arbitrariness. It is the
embodiment of the sporting Idea of fair play(Frankfurter, Mr. Justice Holmes
and the Supreme Court, 1983, pp. 32-33). It exacts fealty "to those strivings
for justice and judges the act of officialdom of whatever branch "in the light of
reason drawn from considerations of fairness that reflect (democratic)
traditions of legal and political thought."(Frankfurter, Hannah v. Larche 1960,
363 US 20, at 487). It is not a narrow or '"echnical conception with fixed
content unrelated to time, place and circumstances."(Cafeteria Workers v.
McElroy 1961, 367 US 1230) Decisions based on such a clause requiring a
'close and perceptive inquiry into fundamental principles of our society.
(Bartkus vs. Illinois, 1959, 359 US 121). Questions of due process are not to
be treated narrowly or pedantically in slavery to form or phrases. (Pearson v.
McGraw, 1939, 308 US 313).
Our review of the pleadings and their annexes, together with the oral arguments,
manifestations and admissions of both counsel, failed to reveal adherence to and
compliance with due process. The manner in which the testimonies were taken from private
respondents fall short of the constitutional standards both under the DUE PROCESS
CLAUSE and under the EXCLUSIONARY RULE in Section 20, Article IV. In the face of such
grave constitutional infirmities, the individual testimonies of private respondents cannot be
admitted against them in ally criminal proceeding. This is true regardless of absence of
claim of constitutional privilege or of the presence of a grant of immunity by law.
Nevertheless, We shall rule on the effect of such absence of claim to the availability to
private respondents of the immunity provided for in Section 5, P.D. 1886 which issue was
squarely raised and extensively discussed in the pleadings and oral arguments of the
parties.
Immunity statutes may be generally classified into two: one, which grants "use immunity";
and the other, which grants what is known as "transactional immunity." The distinction
between the two is as follows: "Use immunity" prohibits use of witness' compelled testimony

and its fruits in any manner in connection with the criminal prosecution of the witness. On
the other hand, "transactional immunity" grants immunity to the witness from prosecution for
an offense to which his compelled testimony relates." 32 Examining Presidential Decree 1886,
more specifically Section 5 thereof, which reads:

SEC. 5. No person shall be excused from attending and testifying or from

producing books, records, correspondence, documents, or other evidence in
obedience to a subpoena issued by the Board on the ground that his
testimony or the evidence required of him may tend to incriminate him or
subject him to penalty or forfeiture; but his testimony or any evidence
produced by him shall not be used against him in connection with any
transaction, matter or thing concerning which he is compelled, after having
invoked his privilege against self-incrimination, to testify or produce evidence,
except that such individual so testifying shall not be exempt from prosecution
and punishment for perjury committed in so testifying, nor shall he be exempt
from demotion or removal from office. (Emphasis supplied)
it is beyond dispute that said law belongs to the first type of immunity statutes. It grants
merely immunity from use of any statement given before the Board, but not immunity from
prosecution by reason or on the basis thereof. Merely testifying and/or producing evidence
do not render the witness immuned from prosecution notwithstanding his invocation of the
right against self- incrimination. He is merely saved from the use against him of such
statement and nothing more. Stated otherwise ... he still runs the risk of being prosecuted
even if he sets up his right against self- incrimination. The dictates of fair play, which is the
hallmark of due process, demands that private respondents should have been informed of
their rights to remain silent and warned that any and all statements to be given by them may
be used against them. This, they were denied, under the pretense that they are not entitled
to it and that the Board has no obligation to so inform them.
It is for this reason that we cannot subscribe to the view adopted and urged upon Us by the
petitioners that the right against self-incrimination must be invoked before the Board in order
to prevent use of any given statement against the testifying witness in a subsequent
criminal prosecution. A literal interpretation fashioned upon Us is repugnant to Article IV,
Section 20 of the Constitution, which is the first test of admissibility. It reads:
No person shall be compelled to be a witness against himself. Any person
under investigation for the commission of an offense shall have the right to
remain silent and to counsel, and to be informed of such right. No force,
violence, threat, intimidation, or any other means which vitiates the free will
shall be used against him. Any confession obtained in violation of this section
shall be inadmissible in evidence. (Emphasis supplied)
The aforequoted provision renders inadmissible any confession obtained in violation
thereof. As herein earlier discussed, this exclusionary rule applies not only to confessions
but also to admissions, 33 whether made by a witness in any proceeding or by an accused in a criminal
proceeding or any person under investigation for the commission of an offense. Any interpretation of a
statute which will give it a meaning in conflict with the Constitution must be avoided. So much so that if
two or more constructions or interpretations could possibly be resorted to, then that one which will avoid
unconstitutionality must be adopted even though it may be necessary for this purpose to disregard the

more usual and apparent import of the language used. 34 To save the statute from a declaration of
unconstitutionality it must be given a reasonable construction that will bring it within the fundamental
law. 35 Apparent conflict between two clauses should be harmonized. 36

But a literal application of a requirement of a claim of the privilege against self- incrimination
as a condition sine qua non to the grant of immunity presupposes that from a layman's point
of view, he has the option to refuse to answer questions and therefore, to make such claim.
P.D. 1886, however, forecloses such option of refusal by imposing sanctions upon its
exercise, thus:
SEC. 4. The Board may hold any person in direct or indirect contempt, and
impose appropriate penalties therefor. A person guilty of .... including ...
refusal to be sworn or to answer as a witness or to subscribe to an affidavit or
deposition when lawfully required to do so may be summarily adjudged in
direct contempt by the Board. ...
Such threat of punishment for making a claim of the privilege leaves the witness no choice
but to answer and thereby forfeit the immunity purportedly granted by Sec. 5. The absurdity
of such application is apparent Sec. 5 requires a claim which it, however, forecloses under
threat of contempt proceedings against anyone who makes such claim. But the strong
testimonial compulsion imposed by Section 5 of P.D. 1886 viewed in the light of the
sanctions provided in Section 4,infringes upon the witness' right against self-incrimination.
As a rule, such infringement of the constitutional right renders inoperative the testimonial
compulsion, meaning, the witness cannot be compelled to answer UNLESS a co-extensive
protection in the form of IMMUNITY is offered. 37 Hence, under the oppressive compulsion of P.D.
1886, immunity must in fact be offered to the witness before he can be required to answer, so as to
safeguard his sacred constitutional right. But in this case, the compulsion has already produced its
desired results the private respondents had all testified without offer of immunity. Their constitutional
rights are therefore, in jeopardy. The only way to cure the law of its unconstitutional effects is to construe
it in the manner as if IMMUNITY had in fact been offered. We hold, therefore, that in view of the potent
sanctions imposed on the refusal to testify or to answer questions under Sec. 4 of P.D. 1886, the
testimonies compelled thereby are deemed immunized under Section 5 of the same law. The applicability
of the immunity granted by P.D. 1886 cannot be made to depend on a claim of the privilege against selfincrimination which the same law practically strips away from the witness.

With the stand we take on the issue before Us, and considering the temper of the times, we
run the risk of being consigned to unpopularity. Conscious as we are of, but undaunted by,
the frightening consequences that hover before Us, we have strictly adhered to the
Constitution in upholding the rule of law finding solace in the view very aptly articulated by
that well-known civil libertarian and admired defender of human rights of this Court, Mr.
Justice Claudio Teehankee, in the case of People vs. Manalang 38 and we quote:
I am completely conscious of the need for a balancing of the interests of
society with the rights and freedoms of the individuals. I have advocated the
balancing-of-interests rule in an situations which call for an appraisal of the
interplay of conflicting interests of consequential dimensions. But I reject any
proposition that would blindly uphold the interests of society at the sacrifice of
the dignity of any human being. (Emphasis supplied)

Lest we be misunderstood, let it be known that we are not by this disposition passing upon
the guilt or innocence of the herein private respondents an issue which is before the
Sandiganbayan. We are merely resolving a question of law and the pronouncement herein
made applies to all similarly situated, irrespective of one's rank and status in society.
IN VIEW OF THE FOREGOING CONSIDERATIONS and finding the instant petitions
without merit, same are DISMISSED. No pronouncement as to costs.
SO ORDERED.
Aquino, J., concurs (as certified by Makasiar, C.J.).
Abad Santos, J., is on leave.

Separate Opinions

MAKASIAR, C.J., concurring:

To admit private respondents' testimonies and evidence before the Fact-Finding Board
(FFB) against them in the criminal prosecution pending before the Sandiganbayan, would
violate their constitutional or human rights the right to procedural due process, the right to
remain silent, and the right against self- incrimination.
That their testimonies and other evidence they submitted before the FFB in these criminal
cases are incriminatory, is confirmed by the very fact that such testimonies and evidence
were the very bases of the majority report of the FFB recommending the prosecution of
private respondents as accessories.
It should be stressed that the basic purposes of the right against self- incrimination are (1)
humanity or humanitarian reasons to prevent a witness or accused from being coerced,
whether physically, morally, and/or psychologically, into incriminating himself, and (2) to
protect the witness or accused from committing perjury, because the first law of nature is
self- preservation.
The utilization in the prosecution against them before the Sandiganbayan of the testimonies
and other evidence of private respondents before the FFB collides with Section 1, Section
17 and Section 20 of the Bill of Rights of the 1973 Constitution:
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 of the laws.
xxx xxx xxx

Section 17, No person shall be held to answer for a criminal offense without
due process of law.
xxx xxx xxx
Section 20. No person shall be compelled to be a witness against himself.
Any person under investigation for the commission of an offense shall have
the right to remain silent and to counsel, and to be informed of such right. No
force, violence, threat, intimidation, or any other means which vitiates the free
will shall be used against him. Any confession obtained in violation of this
Section shall be inadmissible in evidence.
The Bill of Rights constitutes the reservation of the sovereign people against, as well as the
limitation on, the delegated powers of government. These rights thus enshrined need no
express assertion. On the contrary, the police and prosecution officers of the country should
respect these constitutional liberties as directed in the recent decision in the Hildawa and
Valmonte cases (G.R. Nos. 67766 and 70881, August 14, 1985). The established
jurisprudence is that waiver by the citizen of his constitutional rights should be clear,
categorical, knowing, and intelligent (Johnson vs. Zerbst, 304 US 458, 464, cited in Abriol
vs. Homeres, 84 Phil. 525 [1949] and in Chavez vs. CA, 24 SCRA 663, 682-683).
The use of testimonies and other evidence of private respondents before the FFB against
them in the criminal cases subsequently filed before the Sandiganbayan would trench upon
the constitutional guarantees that "no person shall be deprived of life, liberty, or property
without due process of law ... that "no person shall be held to answer for a criminal offense
without due process of law" and that (Section 17, Article IV, 1973 Constitution), that "no
person shall be compelled to be a witness against himself. ..." and that " a person has the
right to remain silent ..." (Section 20, Article IV, 1973 Constitution).
There can be no implied waiver of a citizen's right against self-incrimination or of his right to
remain silent.
Any such renunciation cannot be predicated on such a slender or tenuous reed as a
dubious implication. Otherwise, it would be easier to lose the human rights guaranteed by
the Bill of Rights than to protect or preserve them; it would be easier to enslave the citizen
than for him to remain free. Such a result was never intended by the Founding Fathers.
The first sentence of Section 20 of the Bill of Rights stating that "no person shall be
compelled to be a witness against himself," applies to both the ordinary witness and the
suspect under custodial investigation.
In support of the rule that there can be no implied waiver of the right against selfincrimination and all other constitutional rights by the witness or by the accused, is the fact
that the right against double jeopardy can only be renounced by the accused if the criminal
case against him is dismissed or otherwise terminated with his express consent. Without
such express consent to the dismissal or termination of the case, the accused can always
invoke his constitutional right against double jeopardy.

If Section 5 of P.D. 1886 were interpreted otherwise, said section would become a booby
trap for the unsuspecting or unwary witness, A witness summoned either by subpoena or by
Invitation to testify before the FFB under Section 5, cannot refuse, under pain of contempt,
to testify or produce evidence required of him on the ground that his testimony or evidence
may tend to incriminate or subject him to a penalty or forfeiture; because the same Section
5 prohibits the use of such testimony or evidence which may tend to incriminate him in any
criminal prosecution that may be filed against him. The law or decree cannot diminish the
scope and extent of the guarantee against self-incrimination or the right to remain silent or
the right against being held to answer for a criminal offense without due process of law, or
against deprivation of his life, liberty or property without due process of law.
As a matter of fact, numerous decisions culled by American jurisprudence are partial to the
rule that immunity statutes which compel a citizen to testify, should provide an immunity
from prosecution that is as co-extensive, as total and as absolute as the guarantees
themselves (Jones Law on Evidence, Chapter XVIII, Section 863, pp. 1621-1623; Kastigar
vs. US 1972, 406 US 441).
Even if the witness testified pursuant to an invitation, the invitation does not remove the
veiled threat of compulsion, because as stated in the Chavez case, supra.
Compulsion as it is understood here does not necessarily connote the use of
violence; it may be the product of unintentional statements. Pressures which
operate to overbear his will, disable him from making a free and rational
choice, or impair his capacity for rational judgment would in our opinion be
sufficient. So is moral coercion attending to force testimony from the unwilling
lips of the defendant (Chavez vs. Court of Appeals, 24 SCRA 663, 679).
The summons issued to private respondents has been euphemistically called as an
invitation, instead of a subpoena or subpoena duces tecum, as a sign of respect for the
important and high positions occupied by private respondents. But the effect of such an
invitation thus worded is the same as a subpoena or subpoena duces tecum. Precisely, the
phraseology of Section 5 of P.D. 1886 entices the unsuspecting private respondents to
testify before the FFB, by dangling in the same Section 5 the assurance that their testimony
or the evidence given by them will not be used against them in a criminal prosecution that
may be instituted against them.
At the very least, their consent to testify was under such misapprehension. Hence, there
can be no clear, categorical, knowing and intelligent waiver of the right to remain silent,
against self-incrimination, against being held to answer for a criminal offense without due
process of law, and against being deprived of life, liberty or property without due process of
law under such misapprehension.
In any event, Section 5 of P.D. 1886 creates a doubt, which doubt is accentuated by the
difference of opinion thereon among the counsels in these cases and among members of
this Court. And it is basic in criminal law that doubts should be resolved liberally in favor of
the accused and strictly against the government.

The procedural due process both under Sections 1 and 17 of the Bill of Rights, Article IV of
the 1973 Constitution, simply means, in the language of Justice Frankfurter, the sporting
Idea of fair play. The FFB and its counsel did not inform the private respondents herein of
their right to remain silent and their right against self-incrimination, and that their testimonies
may be utilized against them in a court of law, before they testified. This is not fair to them,
and hence, they were denied procedural due process.
It should be stressed that the FFB was merely a fact-finding agency for the purpose of
gathering all the possible facts that may lead to the Identity of the culprit. Such testimonies
may provide leads for the FFB, its counsels and agents to follow up. The FFB and its
counsels cannot rely solely on such testimonies to be used against the private respondents
in these criminal cases. It should be recalled that the FFB had ample funds for the purpose
of accomplishing its object. As a matter of fact. it refunded several million pesos to the
government after it concluded its investigation. The Board and its counsel could have
utilized the said amount to appoint additional agents to look for witnesses to the
assassination. In this respect, the FFB counsel could be faulted in not utilizing the funds
appropriated for them to ferret out all evidence that will Identify the culprit or culprits. The
failure of the FFB's counsel to use said funds reflects on the initiative and resourcefulness
of its counsel. He could prosecute private respondents on evidence other than their
testimony and the evidence they gave before the FFB.
As heretofore stated, the private respondents were compelled to testify before the FFB
whether by subpoena or by invitation which has the effect of a subpoena as provided for in
Section 5 of P.D. 1886; because private respondents then believed, by reading the entire
Section 5, that the testimony they gave before the FFB could not be used against them in
the criminal cases subsequently filed before the Sandiganbayan. Because the Board was
merely a fact-finding board and that it was riot conducting a criminal prosecution the private
respondents were under the impression that there was no need for them to invoke their
rights to remain silent, against self-incrimination and against being held for a criminal
offense without due process of law.
It should be recalled that the counsel of the FFB after submitting the majority report, refused
to cooperate with the Tanodbayan in these cases with the pompous declaration that, after
submitting their majority report, he automatically became functus oficio. Was his refusal to
cooperate with, and assist, the Tanodbayan in the prosecution of these cases, born of the
realization that the FFB majority report is as weak as it was precipitate? And when the
Tanodbayan has now his back to the wall, as it were, by the ruling of the respondent
Sandiganbayan excluding the testimonies and other evidence of private respondents herein
on the ground that the use of their testimonies and other evidence will incriminate them, the
FFB counsel, without being requested by the Tanodbayan, now files a memorandum in
support of the position of the Tanodbayan. what is the reason for this turn-about to save his
report from the fire which they started with such enthusiasm?
As above emphasized, it is the duty of the police and the prosecuting authorities to respect
their rights under the Constitution as we stated in the recent Hildawa and Valmonte
cases, supra.

The grant of immunity under Section 5 of P.D. 1886 would be meaningless if we follow the
posture of petitioners herein. Such a posture would be correct if the phrase "after having
invoked his privilege against self- incrimination" were transposed as the opening clause of
Section 5 to read a follows "After having invoked his privilege against self-incrimination, no
person shall be excused from attending and testifying ... etc."
Said Section 5 has two clauses and contemplates two proceedings. The first clause from
"No person shall be excused ... etc." up to "penalty or forfeiture refers to the proceeding
before the FFB. The second clause after the semi-colon following the word "forfeiture which
begins with but his testimony or any evidence produced by him shall not be used against
him in connection with any transaction, matter, or thing concerning which he is compelled,
after having invoked his privilege against self-incrimination to testify . refers to a subsequent
criminal proceeding against him which second clause guarantees him against the use of his
testimony in such criminal prosecution, but does not immunize him from such prosecution
based on other evidence.
The private respondents herein, if the contention of the prosecution were sustained, would
be fried in their own fat. Consequently, the petition should be dismissed.

CONCEPCION, JR., J., concurring:

1. Let me preface my opinion by quoting from my dissent in Pimentel.

1. We are committed to the mandate of the Rule of Law. We resolve

controversies before Us without considering what is or what might be the
popular decision. No. We never do. We only consider the facts and the law.
Always the facts and the law.
2. The issue before Us is not I repeat not the guilt or innocence of Gen.
Fabian C. Ver, Major Gen. Prospero Olivas, and others for their alleged
participation in the assassination of former Senator Benigno S. Aquino, Jr.
3. The issue is: Are the testimonies given by them before the Agrava Board
admissible in evidence against them in their trial before the Sandiganbayan?
4. The issue therefore is purely a question of law. It involves the interpretation
of Sec. 5, P.D. No. 1886 and calls for the application of the Rule of Law.
5. Sec. 5, P.D. No. 1886 reads:
No person shall be excused from attending and testifying or from producing
books, records, correspondence, documents, or other evidence in obedience
to a subpoena issued by the Board on the ground that his testimony or the
evidence required of him may tend to incriminate him or subject him to
penalty or forfeiture; but his testimony or any evidence produced by him shall
not be used against him in connection with any transaction, matter or thing

concerning which he is compelled. after having invoked his privilege against

self-incrimination, to testify or produce evidence, except that such individual
so testifying shall not be exempt from prosecution and punishment for perjury
committed in so testifying, nor shall he be exempt from demotion or removal
from office.
6. This section means that any person who is invited or summoned to appear must obey
and testify as to what he knows. Even if the testimony tends to incriminate him he must
testify. Even if he claims his constitutional right against self-incrimination, he still must
testify. However, his testimony cannot be used against him in any subsequent proceeding,
provided that at the time it is being presented, he invokes his privilege against selfincrimination. His testimony, no matter what it may be, cannot in any way cause him harm.
The only exception is if the testimony he gave is false, in which case he can be prosecuted
and punished for perjury. He may also be demoted or removed from office.
7. The testimonies given by private respondents before the Agrava Board are therefore not
admissible against them in their trial before the Sandiganbayan, having invoked their
privilege against self-incrimination.

PLANA, J., concurring:

I would like to underscore some considerations underlying my concurrence:
1. According to the Constitution, no person shall be compelled to be a witness against
himself. But the law (PD 1886) which created the Agrava Board decrees that no person
shall be excused from testifying on the ground of self- incrimination. If the law had stopped
after this command, it would have been plainly at variance with the Constitution and void. lt
was to ward off such a Constitutional infirmity that the law provided for immunity against the
use of coerced testimony or other evidence, an immunity which, to be constitutionally
adequate, must give at least the same measure of protection as the fundamental guarantee
against self-incrimination.
2. Presidential Decree 1886 was not intended either to restrict or expand the constitutional
guarantee against self-incrimination. On the one hand, a law cannot restrict a constitutional
provision. On the other hand, PD 1886 was adopted precisely to coerce the production of
evidence that hopefully would unmask the killers of Senator Aquino, although the
compulsory process is accompanied by "use" immunity.
3. It is argued that the right against self- incrimination must have been invoked before the
Agrava Board if the use of evidence given therein against the witness in a subsequent
criminal prosecution is to be barred. I did not agree.
I fail to see why to preserve pursuant to law (PD 1886) one's constitutional right against selfincrimination, one has to offer resistance to giving testimony a resistance which the said law

itself says is futile and cannot prevail, as no witness by its specific injunction can refuse to
testify.
4. The constitutional right against self-incrimination may be waived expressly. It may also be
waived impliedly by speaking when one has the option to hold his tongue. Waiver by
implication presupposes the existence of the right to keep silent. Thus, when one speaks
because the law orders him to do so, his action is not really voluntary and therefore his
testimony should not be deemed an implied waiver of his constitutional right against selfincrimination.
5. Presidential Decree 1886 does not give private respondents absolute immunity from
prosecution, It only bars the use against them of the evidence that was elicited from them
by the Agrava Board. If there are other evidence available, private respondents are subject
to indictment and conviction.
6. Moreover, the evidence given to the Agrava Board is not, in my view, completedly
immunized. What PD 1886 bars from use is only the testimony of the witness who testified
before the Agrava Board and whatever was presented as part of his testimony, as such. PD
1886 could not have intended to convert non-confidential official documents into shielded
public records that cannot be used as evidence against private respondents, by the mere
fact that they were admitted in evidence as part of private respondents' testimony before the
Agrava Board. In other words, evidence otherwise available to the prosecution, such as
official documents, do not become barred just because they have been referred to in the
course of the testimony of private respondents and admitted in evidence as part of their
testimony They may still be subpoenaed and offered in evidence. Conceivably, some
objections might be raised; but the evidence will be unfettered by the exclusionary rule in
PD 1886.

ESCOLIN, J., concurring:

I concur in the dismissal of the petitions. The admission in evidence of the testimonies of
private respondents given before the Agrava Board would constitute a violation of their right
against self- incrimination guaranteed under Section 20, Article IV of the Constitution. I
subscribe to the majority view that Section 5 of P.D. 1886 cannot be constitutionally tenable,
unless a grant of immunity is read into it vis-a-vis the compulsion it imposes upon a witness
to testify. Otherwise stated, Section 5 of P.D. 1886 should be interpreted as an immunity
statute, which, while depriving one of the right to remain silent, provides an immunity from
prosecution that is as co-extensive, as total and as absolute as the guarantees themselves.
(Jones Law on Evidence, Chapter XVIII, Section 863, pp. 1621-1623, Kastigar v. U.S.,
1972, 406 US 441).
Clearly, this is how the private respondents understood the legal provision under
consideration. For ably assisted as they were by counsel, they would not have allowed
themselves to be deliberately dragged into what the Chief Justice would call a "booby trap".
Viewed from another angle, therefore, it could not be truly said that private respondents had
waived their right against self- incrimination in a manner that is clear, categorical, knowing

and intelligent. (Johnson v. Zerbst, 304 US 458, 464, cited in Abriol v. Homeres, 84 Phil. 525
and Chavez v. CA, 24 SCRA 663).

GUTIERREZ, JR., J., concurring:

I concur in the majority opinion penned by Justice Serafin R. Cuevas and in the pithy
separate opinion of Justice Nestor B. Alampay but would like to add some personal
observations.
This case furnishes an opportunity to appreciate the workings of our criminal justice system.
The prosecutions which led to this petition serve as a timely reminder that all of us-civilian
or military, layman or judge, powerful or helpless- need the Bill of Rights. And should the
time ever come when like the respondents we may have to invoke the Constitution's
protection, the guarantees of basic rights must be readily available, in their full strength and
pristine glory, unaffected by what is currently popular or decreed and heedless of whoever
may be involved
In many petitions filed with this Court and lower courts, the military has often been charged
with riding roughshod over the basic rights of citizens. Officers and enlisted men in the
frontlines of the fight against subversion or rebellion may, in the heat of combat, see no
need to be concerned over such ,niceties" as due process, unreasonable searches and
seizures, freedom of expression, and right to counsel. They are best reminded that these
rights are not luxuries to be discarded in times of crisis. These rights are the bedrock of a
free and civilized society. They are the reason why we fight so hard to preserve our system
of government. And as earlier stated, there may come times when we may have to
personally invoke these basic freedoms for ourselves. When we deny a right to an accused,
we deny it to ourselves.
The decision of the Court underscores the importance of keeping inviolate the protections
given by the Bill of Rights. Acts which erode or sacrifice constitutional rights under seductive
claims of preserving or enhancing political and economic stability must be resisted. Any
lessening of freedom will not at all increase stability. The liberties of individuals cannot be
preserved by denying them.
The dividing line between legitimate dissent or opposition on one hand and subversion or
rebellion on the other may be difficult to pinpoint during troubled times. The lesson of this
petition is that those charged with suppressing the rebellion and those who sit in courts of
justice should ever be vigilant in not lumping legitimate dissenters and rebels together in
one indiscriminate classification.
An abiding concern for principles of liberty and justice is especially imperative in periods of
crisis and in times of transition. And all persons from the mighty to the lowy must be given
the fullest measure of protection under the Bill of Rights if our constitutional guarantees are
to have any meaning.

In addition to the right against self- incrimination, of not being compelled to be a witness
against one's self, so ably discussed by Justice Cuevas in the Court's opinion, I am
constrained by considerations of basic fairness to vote against granting the petition.
The private respondents were called to testify before the Agrava Commission. The decree
creating the commission stated that no person may refuse to attend and testify or to
produce evidence before it on the ground that what he says or produces may incriminate
him. But since the witness is compelled to give all he knows or possesses in effect shorn by
law of his right not to incriminate himself the decree states that the evidence wrung from
that witness may not be used against him later. This is, simply speaking, what the petition is
all about.
The respondents may be prosecuted as indeed they have been prosecuted. They may
eventually be convicted if the evidence warrants conviction. however, they may not be
convicted solely on the evidence which came from their own mouths or was produced by
their own hands. The evidence must come from other sources. It would be the height of
unfairness and contrary to due process if a man is required to state what he knows even if it
would incriminate him, is promised immunity if he talks freely, and is later convicted solely
on the testimony he gave under such a promise of immunity.
I believe that P.D. 1886 is the first Immunity Act to be enacted in the Philippines. It may be
relevant, therefore, to refer to American decisions expounding on immunity statutes, more
so when a comparison of P.D. 1886 with such statutes as the U.S. Immunity Act of 1954, 68
Stat. 745, 18 U.S.C.A. Section 3486, shows a similarity in the protection given by the
statutes.
The U.S. Immunity Act of 1954 was enacted to assist federal grand juries in their
investigatins of attempts to endanger the national security or defense of the United States
by treason, sabotage, espionage, sedition, seditious conspiracy, and violations of various
laws on internal security, atomic or nuclear energy, and immigration and nationality. The law
stated that a witness shall not be excused from testifying or from producing books, papers,
or other evidence on the ground that it may tend to incriminate him or subject him to a
penalty or forfeiture. The statute then provides:
But no such witness shall be prosecuted or subjected to any penalty or
forfeiture for or on account of any transaction, matter, or thing concerning
which he is compelled, after having claimed his privilege against selfincrimination, to testify or produce evidence nor shall testimony so compelled
be used as evidence in any criminal proceeding ... against him in any court.
The American statute provides immunity against prosecution, penalties, and use of the
testimony. P.D. 1886 is of more limited scope. Only the use of the compelled testimony is
proscribed. The witness may still be prosecuted but the prosecution will have to look for
evidence other than the words of the accused given before the Agrava Commission.
In Brown v. Walker (161 U.S. 591) the U.S. Supreme Court was confronted with the validity
of the 1893 Immunity Act. Brown was subpoenaed to testify before a grand jury
investigating railroad anomalies. lie refused to testify on grounds of self- incrimination,

arguing that the Immunity Act compelling him to testify was unconstitutional. The Court ruled
that "(W)hile the constitutional provision in question is justly regarded as one of the most
valuable prerogatives of the citizen, its object is fully accomplished by the statutory
immunity and we are therefore of opinion that the witness was compellable to answer." In
other words, the statutory immunity takes the place of the invocation of the constitutional
guarantee. There is no need at the time of taking testimony to invoke the Fifth Amendment
because it would be denied any way and the witness would be compelled to testify. It would
be absurd to invoke a protection which cannot be availed of when compelled to testify. The
time to invoke the immunity is when the testimony is being used contrary to the granted
immunity. Protected by the statutory immunity, a witness cannot even insist on his right to
remain silent when testifying.
In Ullmann v. United States (350 U.S. 422), the court interpreted the Immunity Act of 1954
and stated.
xxx xxx xxx
... Since that time the Court's holding in Brown v. Walker has never been
challenged; the case and the doctrine it announced have consistently and
without question been treated as definitive by this Court, in opinions written,
among others, by Holmes and Brandeis, Justices. See, e.g., McCarthy v.
Arndstein 226 U.S. 34, 42; Heike v. United States, 227 U.S. 131, 142. The
1893 statute has become part of our constitutional fabric and has been
included in substantially the same terms, in virtually all of the major regulatory
enactments of the Federal Government.' Shapiro v. United States, 335 U.S. 1,
6. For a partial list of these statutes, see, Id., 335 U.S. at pages 6-7, note 4.
Moreover, the States, with one exception a case decided prior to Brown v.
Walker have, under their own constitutions, enunciated the same doctrine, 8
Wigmore, Evidence (3d ed.), 2281, and have passed numerous statutes
compelling testimony in exchange for immunity in the form either of complete
amnesty or of prohibition of the use of the compelled testimony. For a list of
such statutes, see 8 Wigmore, Evidence (3d ed.), 2281, n. 11 (pp. 478-501)
and Pocket Supplement thereto, 2281, n. 11 (pp. 147-157). (Emphasis
supplied)
xxx xxx xxx
It is interesting to note how the American Supreme Court in Ullmann treated the immunity
not only against the use of the testimony (as under P.D. 1886) but even against prosecution.
xxx xxx xxx
Petitioner, however, attempts to distinguish Brown v. Walker. He argues that
this case is different from Brown v. Walker because the impact of the
disabilities imposed by federal and state authorities and the public in general
such as loss of job, expulsion from labor unions, state registration and
investigation statutes, passport eligibility and general public opprobrium-is so
oppressive that the statute does not give him true immunity. This, he alleges,

is significantly different from the impact of testifying on the auditor in Brown v.

Walker, who could the next day resume his job with reputation unaffected.
But, as this Court has often held, the immunity granted need only remove
those sanctions which generate the fear justifying the invocation of the
privilege 'The interdiction of the other Amendment operates only here a
witness may possibly expose him to a criminal charge. But if the criminality
has already been taken away, the amendment ceased to apply.' Hale v.
Henkel 201 U.S. 43, 67. Here, since the Immunity Act protects a witness who
is compelled to answer to the extent of his constitutional immunity, he has of
course, when a particular sanction is sought to be imposed against him, the
right to claim that it is criminal in nature. (Emphasis supplied).
In United States v. Murdock (284 U.S. 141), the court ruled that "the principle established is
that full and complete immunity against prosecution by the government compelling the
witness to answer is equivalent to the protection furnished by the rule against compulsory
self-incrimination.
P.D. 1886, being an immunity statute should not be given a strained or absurd interpretation
in order to achieve a certain result. If the immunity given by the decree is equivalent to the
protection furnished by the right against self- incrimination, then, paraphrasing Justice
Frankfurter in Ullmann, the same protection given by one of the great landmarks in man's
struggle to make himself civilized must not be interpreted in a hostile or niggardly spirit,
xxx xxx xxx
... Too many, even those who should be better advised, view this privilege as
a shelter for wrongdoers. They too readily assume that those who invoke it
are either guilty of crime or commit perjury in claiming the privilege. Such a
view does scant honor to the patriots who sponsored the Bill of Rights as a
condition to acceptance of the Constitution by the ratifying States. The
Founders of the Nation were not naive or disregard ful of the interest of
justice ...
I, therefore, join the majority in dismissing the petition.

DE LA FUENTE, J., concurring:

No person shall be compelled to be a witness against himself." 1 This basic right
against self- incrimination, which supplanted the inquisitorial methods of interrogating the
accused as practiced during the Spanish regime, has become an indispensable part of
our laws since 1900. Pursuant thereto, an accused in a criminal case has the right not
only to refuse to answer incriminating questions but also to refuse to take the witness
stand. He cannot be compelled even to utter a word in his defense. 2 As stressed
in Chavez vs. Court of Appeals, 3 the rule may otherwise be stated as the constitutional
right of the accused to remain silent. " The accused can forego testimony 4 without any
adverse implication drawn from his decision to do so, The burden is on the State to
establish the guilt of the accused beyond reasonable doubt; the prosecution must look

elsewhere for other "evidence independently and freely secured," The rule forbids what
has been considered as "the certainly inhuman procedure of compelling a person 'to
furnish the missing evidence necessary for his conviction'." According to Justice Harlan, it
was intended "to shield the guilty and imprudent as well as the innocent and
foresighted." 5 Transplanted in this country with the advent of American sovereignty 6 and
firmly imbedded in our fundamental law, 7 the said privilege against compulsory selfincrimination, which is predicated on grounds of public policy and humanity, 8 "is
fundamental to our scheme of justice" 9 and is one of the procedural guarantees of our
accusatorial system.

1. As I see it, what the prosecution proposed to do in these cases was to present, as
evidence of the alleged accessorial acts of private respondents, the transcripts of their
respective testimonies before the Agrava Board. Confronted by the apparent unwillingness
of said respondents to be called to the witness stand in subsequent criminal proceedings,
the prosecution sought to put into the record of these criminal cases (in lieu of private
respondents' testimonies) the said transcripts and other evidence given by them in the
course of their testimony before the Agrava Board. If allowed over and despite private
respondents' objection, this would be a clear infringement of the constitutional guarantee
that they can invoke in said criminal proceedings, as all of them did. Since the prosecution
cannot require said respondents to testify in the criminal cases before the Sandiganbayan, it
stands to reason that it is equally disabled from indirectly compelling respondents to give
evidence against themselves by using their Agrava Board testimonies. The prosecution
must present evidence "derived from a legitimate source wholly independent of the
compelled testimony." 10
2. It is contended, however, that these self- incriminatory testimonies were given voluntarily
because they did not claim the constitutional guarantee before or while giving testimony to
the Agrava Board. Voluntariness, I think. cannot be inferred simply from such failure to
invoke the privilege. There was no fair warning or notice to the declarant that his testimony
would be used against him if incriminatory, unless the privilege is invoked beforehand or
during his testimony. If they were properly warned and still gave testimony without t invoking
the privilege, then it would be clear that they knowingly waived the privilege. Otherwise, it
meant at the most a willingness on their part to help the Agrava Board in its fact-finding
investigation without waiving (a) the immunity granted by law, and (b) the constitutional
guarantee against self- incrimination in case of subsequent prosecution based on their selfincriminatory testimony. For waiver, it is wellsettled, to be effective. "must be certain,
unequivocal and intelligently, understandably and willingly made. " 11 Mere submission to an
illegal search or seizure "is not consent or waiver of objection. 12 The prosecution has the burden to prove
otherwise. The same standard should be observed in self-incrimination cases.

PD No. 1886 (as amended), which created that "independent ad hoc fact-finding Board,"
vested it with "plenary powers to determine the facts and circumstances surrounding the
killing [of former Senator Aquino] and to allow for a free, unlimited and exhaustive
investigation into all aspects of said tragedy." In consonance with these objectives, the law
declared that the privilege was unavailable to an Agrava Board "witness", as follows: "No
person shall be excused from attending and testifying or from producing other evidence on
the ground that his testimony or any evidence requested of him may tend to incriminate him,
" 13 etc. At the same time, the Board was empowered to summarily hold and punish any person in direct
contempt for "refusal to be sworn or to answer as a witness," its judgment being "final and unappealable."

Quite plainly, the constitutional right against compulsory self-incrimination could not be
invoked by Agrava Board witnesses, The privilege was suspended or temporarily taken
away for purposes of the investigation, in order that the Board would have access to all
relevant evidence and all sources of information, not excluding compelled incriminatory
statements of probable and possible or potential defendants. An Agrava Board witness was,
under the terms of the quoted provision, placed in a dilemma: (1) to answer truthfully all
questions including those tending to be self-incriminatory, since he cannot invoke the
privilege; (2) to lie and become liable criminally for perjury; and (3) to insist on his right to
remain silent and be summarily punished by the Board for direct contempt. It is plain that
such a witness was under compulsion to give self-incriminatory testimony. It was not
voluntary. Precisely because of its coerced nature (an infringement of his constitutional right
against self- incrimination), PD No. 1886 promised. in exchange or as a substitute for the
privilege, limited immunity (as provided in the next succeeding clause, same section), to wit:
... but his testimony or any evidence produced by him shall not be used
against him in connection with any transaction, matter or thing concerning
which he was compelled, after having invoked his privilege against selfincrimination, to testify or produce evidence. 14
Such immunity 15 would bar the prosecution's use against the witness of his said testimony in
subsequent criminal proceedings (wherein he is charged with offenses related to his testimony).
Nevertheless, this would not operate to change the involuntary nature of his self- incriminatory testimony.
As far as the witness is concerned, it was "coerced", not freely given, because he was not fully accorded
the "liberty of choice." The law withheld his basic freedom to choose between testifying and remaining
silent without the risk of being punished for direct contempt to forego testimony which could possibly be to
his detriment.

3. I cannot agree with the proposition that the privilege should be invoked by the witness
before or while giving testimony to the Agrava Board. Section 5 should be reasonably
construed and fairly applied to the cases at bar, in the light of the accused's constitutional
right against compulsory self- incrimination. The formula of limited-immunity in-lieu-of-theprivilege contained in said section rendered unnecessary or superfluous, the invocation of
the privilege before the Board. Under said formula, the witness was deprived of the privilege
to protect himself against inquisitorial interrogation into matters that a targeted defendant or
virtual respondent can keep to himself in ordinary investigations or proceedings.
Even if the provision is susceptible of an interpretation in support of the petitioner's stand, it
appears that the time for invoking the privilege is not clear enough or certain from the
language of the law. Equally plausible and logical is the contrary view that it may be invoked
later on when it became apparent that the prosecution intended to use the testimony given
before the Board to secure conviction of the declarant in the subsequent criminal
proceedings. The privilege cannot be deemed waived by implication merely as a
consequence of failure to claim it before the Board. It bears emphasis that the right of an
accused "witnesses" against compulsory self-incrimination is predicated on the
constitutional guarantee, not on the special law in question.
3. In the United States, the generally accepted approach in Fifth Amendment Cases
(involving the constitutional guarantee under consideration) was stated as follows
in Johnson vs Zerbst:" 16 It has been pointed out that 'courts indulge in every reasonable presumption

against a waiver of the fundamental rights and that we do not presume acquiescence in the loss of such
fundamental rights.'" Because, as Dean Griswold of Harvard Law School (later, Solicitor General of the
United States) eloquently puts it:

[T]he privilege against self-incrimination is one of the great landmark,s in

man's struggles to make himself civilized ... [W]e do not make even the most
hardened criminal sign his own death warrant, or dig his own grave ... We
have through the course of history developed a considerable feeling of the
dignity and intrinsic importance of the individual man. Even the evil man is a
human being. 17
In this jurisdiction, more than four decades ago, the late Justice Jose P. Laurela nationalist,
constitutionalist and eminent jurist, whose incisive and authoritative opinions on
constitutional questions are often cited by the bench and the bar- voted to sustain a claim of
the constitutional guarantee in Bermudez vs. Castillo. 18 In his concurrence, he said inter alia:
(1) As between two possible and equally rational constructions, that should
prevail which is more in consonance with the purpose intended to be carried
out by the Constitution. The provision ... should be construed with the utmost
liberality in favor of the right of the individual intended to be secured. ...
(2) I am averse to the enlargement of the rule allegedly calculated to gauge
more fully the credibility of a witness if the witness would thereby be forced to
furnish the means for his own destruction. Unless the evidence is voluntarily
given, the policy of the constitution is one of protection on humanitarian
considerations and grounds of public policy...
(3) The privilege should not be disregarded merely because it often affords a
shelter to the guilty and may prevent the disclosure of wrongdoing. Courts
can not, under the guise of protecting the public interest and furthering the
ends of justice, treat a sacred privilege as if it were mere excrescence in the
Constitution. (Emphasis supplied; at page 493.)
In sum, considering the pertinent legal provisions and judicial pronouncements as well as
the climate prevailing when the private respondents testified before the Agrava Board, I find
it unavoidable to reach the conclusion that they did so under legal, moral and psychological
compulsion. Their compelled testimonies before the Agrava Board cannot thereafter be
used against them in the cases at bar in view of the immunity granted by P.D. No. 1886.
They were not obliged to invoke then and there the constitutional guarantee. If they did, that
would have sufficed to afford them adequate protection. If they did not, they could do so
later on when the Government prosecutors (in spite of the statutory grant of immunity)
decided in the subsequent criminal proceedings, to use against them their Agrava Board
testimonies. For, as earlier stated, there was no intelligent and knowing waiver on their part
of their constitutional right against self-incrimination.
Accordingly, and for other reasons well stated in the main separate concurring opinions, I
vote to dismiss the petitions.

ALAMPAY, J., concurring:

I vote for the dismissal of the petition in these consolidated cases.
What appears to be the basic and principal issue to which the consideration of the Court is
addressed to is the singular question of whether testimonies adduced by the private
respondents before the Ad Hoc Agrava Fact Finding Board and sought to be introduced
against them in the Sandiganbayan wherein they have been accused were rightfully
excluded as evidence against them.
I find untenable the insistence of the petitioner Tanodbayan that the private respondents
should have claimed the right against self-incrimination before the said Fact Finding Board
and that having omitted doing so, the said privilege afforded to them by law can no longer
be invoked by them before the Sandiganbayan.
The right claimed by private respondents rests on the fundamental principle that no person
shall be compelled to be a witness against himself as so stated in our Constitution and from
the fact that Section 5 of P.D. 1886 disallows the use against him of such testimony or any
evidence produced by him before the said Fact Finding Board, except for perjury. Petitioner
argues however, that there was a waiver of this right to self-incrimination when respondents
proceeded to give their testimonies on various dates before the Agrava Fact Finding Board
without formally invoking on said occasions their right against self-incrimination.
As private respondents could not have excused themselves from testifying before said
Board as clearly emphasized in the very first clause of Section 5 of P.D. 1886, and as at that
point of time, there was no reason for the declarant to anticipate or speculate that there
would be any criminal charge or any proceeding instituted against them, it would therefore,
be unnatural and illogical to expect that private respondents would even contemplate the
need of prefacing their declarations with an invocation before the Fact Finding Board of their
privilege against self-incrimination.
In fact for a declarant to announce his claim of the aforestated privilege prior to or while
testifying before said Fact Finding Board, would irresistibly create an inference and convey
an impression that said witness is burdened with his own awareness that he stands already
incriminated in some wrong. To insist therefore, even in the absence yet of any proceeding
against him, that the witness invoke the said privilege before the Agrava Fact Finding
Board, would be obviously self-demeaning. Such an effect could not have been intended by
Section 5 of P.D. 1886, which was even meant to grant to the witness a benefit rather than a
burden. It is more reasonable therefore, to conclude that the privilege against selfincrimination would be accorded to said witness after he has invoked the same in a
subsequent proceeding wherein he has been charged of a wrong doing, except in a case
for perjury. It is only at such time when the necessity of invoking the mantle of the privilege
or the immunity afforded to him by law would arise.
It cannot also be rightfully concluded that private respondents had intentionally relinquished
or abandoned the said right which they claimed before the Sandiganbayan. The fact that the

issue of when and before what forum should such claim to the right against selfincrimination be necessarily presented has provoked much discussion and debate because
of divergent views. This has even prompted the submissions to the Court of opinions of
amicus curiae or friends of the court as to how Section 5 of Presidential Decree 1886
should be construed and applied which are however different from and contrary to the views
expressed by the Justices of the Sandiganbayan and other legal luminaries. These
conflicting views negate the proposition that there was an effective waiver made by the
private respondents of their rights.
It has earlier been stated by this Court that to be effective, such waiver must be certain and
unequivocal and intelligently, understandably and willingly made. (Chavez vs. Court of
Appeals, et al., 24 SCRA 663). In the same cited case, it has been stated that courts
indulge in every reasonable presumption against waiver of fundamental constitutional rights
and that we do not presume acquiescence in the loss of fundamental rights (Citing Johnson
vs. Zerbst 304 U.S. 458, 464, 82 L. ed. 1461, 1466). Furthermore, whether the alleged
waiver is express or implied, it must be intentional. (Davison vs. Klaess 20 N.E. 2d. 744,
748, 280 N.Y. 252; 92 CJS, 1058).
I find it difficult to accept that private respondents had at any time, ever intended to
relinquish or abandon their right against self-incrimination.

PATAJO, J., concurring:

I vote for the dismissal of the petition in these consolidated cases. Said petitions do not
merit being given due course and should be dismissed outright.
I hold the view that the testimonies and evidence given before the Agrava Board are
inadmissible as evidence against those who testified or gave said evidence irrespective of
whether said persons were subpoenaed or invited. I believe it is not a condition sine
quo non to the non-admissibility of said evidence that at the time they testified or gave
evidence before the Agrava Board that they had invoked their privilege against selfincrimination.
The Agrava Board was created as an independent ad hoc fact finding board to determine all
the facts and circumstances surrounding the assassination of former Senator Benigno S.
Aquino, Jr. on August 21, 1983. It was given plenary powers to allow for a free, unlimited
and exhaustive investigation into all the aspects of said tragedy. It was given the power to
issue subpoena or subpoena duces tecum and "other compulsory processes" requiring the
attendance and testimony of witnesses and the production of any evidence relative to any
matter under investigation by said Board.
Those who have been subpoenaed to appear and testify or produce any documentary
evidence before the Board shall not be excused from testifying or presenting evidence
before said Board on the ground that their testimony or evidence may tend to incriminate
them or subject them to penalty or forfeiture. I believe an invitation from the Board is as
much a compulsory process 1 to appear and testify before the Board as a subpoena and one

receiving said invitation cannot also excuse himself from appearing and testifying before the Board.
Petitioners appear to share this view when they said in subparagraph (c), paragraph 7 of their petition in
G.R. No. L-71208-09.

(c) People were either invited or issued subpoenas, depending upon their
rank and office, to give testimony before the Board and among those invited
were respondents General Fabian C. Ver and Major General Olivas while the
rest of the military respondents were issued subpoenas.
Unquestionably, it was the intention of the decree creating the Board to investigate the
Aquino assassination to encourage all who have some information on any "aspect of said
tragedy" to furnish the Board said information whether they are subpoenaed or issued other
forms of compulsory process such as an invitation and to do so without fear that what they
will say may be used against them. It is in this context that Section 5 of PD No. 1886 should
be viewed. When they testified before the Board, they were given full assurance that
whatever they say before the Board will not be used against them. Only if they testify falsely
that they may be prosecuted for perjury. This is to prevent people from preventing the Board
from finding out the truth about the Aquino assassination by giving false leads or information
for ulterior reasons.
Actually Section 5 of PD No. 1886 falls under that category of statutes which do not
pronounce an entire immunity by forbidding punishment or prosecution for any testimony or
evidence given in connection with the investigation of certain offenses more widely known
as immunity statutes, but merely prohibit in any criminal prosecution the use of the
testimony of the witness. Immunity statutes as well as statutes prohibiting the use of
testimony in any subsequent criminal prosecution have been the expedients resorted for the
investigation of many offenses, chiefly those whose proof or punishment were otherwise
impracticable because of the implication in the offense itself of all who could bear useful
testimony.
The expediency and practical utility of this mode of obtaining evidence may
as a measure of legislation, be open to argument. But the tradition of it as a
lawful method of annulling the privilege against self-incrimination is
unquestioned in English history." ignore on Evidence, Vol. III, p. 469.
Speaking of this kind of privilege of non-admission of testimony given by the witness in
subsequent prosecutions as allowed by the common law and modified by subsequent
statutes, State vs. Quarles 13 Ark 307, 311, said:
The privilege in question, in its greatest scope, as allowed by the common
law and no one, be he witness or accused, can pretend to claim it beyond its
scope at the common law never did contemplate that the witness might not
be proved guilty of the very crime about which he may be called to testify; but
only that the witness should not be compelled to produce the evidence to
prove himself guilty of that crime. His privilege, therefore, was not an
exemption from the consequences of a crime that he might have committed;
but only an exemption from the necessity of himself producing the evidence
to establish his own crime ... So long as it might be lawful to produce in
evidence against an accused party whatever he might before have voluntarily

said as a witness on a prosecution against another, there were no means by

which the privilege could be made available short of a claim by the witness to
be silent; and as that was the rule of the common law, this was the commonlaw mode of making the privilege available. And that silence was but a mode
of making the privilege available, and was not of the essence of the privilege
itself, is conclusively proven by all that current of enlightened authority, to
which we yield our fullest assent, which holds that the privilege has ceased
when the crime has been pardoned, when the witness has been tried and
acquitted, or is adjudged guilty, or when the prosecution, to which he was
exposed, has been barred by lapse of time ... But the Legislature has so
changed the common-law rule, by the enactment in question in the
substitution of a rule that the testimony required to be given by the act, shall
never be used against the witness for the purpose of procuring his conviction
for the crime or misdemeanor to which it relates, that it is no longer necessary
for him to claim his privilege as to such testimony, in order to prevent its being
afterwards used against him. And the only question that can possibly arise
under the present state of the law, as applicable to the case now before us, is
as to whether our statutory regulations afford sufficient protection to the
witness, responsive to this new rule and to his constitutional guarantee
against compulsory self-accusation ...
Considering the objectives sought to be achieved by PD No. 1886 the provision thereof
making testimony and evidence given before the Board inadmissible in evidence against the
ones giving the same, provides protection beyond that granted by the Constitutional
provision against self- incrimination, otherwise it will be constitutionally
suspect. Counselman vs. Hitchcock, 142 US 547, 35 L Ed 1110.
Of relevance are the observations of the District Court, N.D. Illinois, in United States vs.
Armour & Co., 112 Fed 808, 821, 822:
All of these immunity acts are relied upon by the individual defendants, and,
while expressed in, slightly varying language, they all mean the same thing,
and each of them is a substitute for the privilege contained in that clause of
the fifth amendment to the Constitution, reading:
'Nor shall any person be compelled in any criminal case to be a witness against himself.'
This fifth amendment deals with one of the most cherished rights of the
American citizen, and has been construed by the courts to mean that the
witness shall have the right to remain silent when questioned upon any
subject where the answer would tend to incriminate him. Congress by the
immunity laws in question, and by each of them, has taken away the privilege
contained in the amended it is conceded in argument that this cannot be done
without giving to the citizen by way of immunity something as broad and
valuable as the privilege thus destroyed We are not without authority on this
question. By a previous act, Congress undertook to take away the
constitutional privilege by giving the citizen an equivalent, and the Supreme
Court held in the case of Counselman v. Hitchcock 142 U.S. 547, 12 Sup. Ct.

195, 35 I Ed., 1110, that the substitution so given was not an equivalent.
Then, at various times, the immunity acts in question were passed by
Congress with full knowledge that in furnishing a substitute for this great right
of the citizen, it must give something as broad as the privilege taken away. It
might be broader, but it could not be narrower.
Now, in my judgment, the immunity law is broader than the privilege given by
the fifth amendment, which the act was intended to substitute. The privilege of
the amendment permits a refusal to answer. The act wipes out the offense
about which the witness might have refused to answer. The privilege permits
a refusal only as to incriminating evidence. The act gives immunity for
evidence of or concerning the matter covered by the incident and the
evidence need not be self-incriminating. The privilege must be personally
claimed by the witness at the time. The immunity flows to the witness by
action of law and without any claim on his part. Brown v. Walker, 161 U.S.
591, 16 Sup. Ct. 644, 40 L. Ed. 819; Hale vs. Henkel (recently decided) 26
Sup. Ct. 370, 50 L. Ed. -; State v. Quarles 13 Ark. 307, quoted in 142 U.S.
567, 12 Sup. Ct. 199 (35 L. Ed. 1110); People Sharp, 107 N.Y. 427, 14 N.E.
319, 1 Am. St. Rep. 851; Brown v. Walker approved in Lamson v. Boyden,
160 I11. 613, 620, 621, 43 N.E. 781: People v. Butler, St. Foundry, 201 I11.
236, 248, 66 N.E. 349.
I am further of opinion that the immunity given by the act must be as broad as
the liabilities imposed by the act. The act calls upon the citizen to answer any
'lawful requirement' of the Commissioner. 'Require' means to ask of right and
by authority. Webster's Dictionary. Tenn. Coal Co. v. Saller (C.C.) 37 Fed.
545, 547. Anything is a requirement by a public officer which brings home to
the person called upon that the officer is there officially and desires
compliance. 'Demand' and' require' are synonymous. Miller v. Davis, 88 Me.
454, 34 Atl. 265. The citizen may be punished for refusal to answer such
lawful requirement. I am of opinion that when the Commissioner of
Corporations, who has power to compel, makes his demand, it is the duty of
the witness to obey.
The contention has been made that in order to get immunity the citizen shall
wait until the compulsion becomes irresistible. That is the effect of the
government contention. I am not able to bring my mind to accept that
doctrine. If I am right in saying that immunity flows from the law l, without any
claim on the part of the defendant and at different times that has been
conceded here in argument then no act of any kind on his part which amounts
to a claim of immunity, which amounts to setting up a claim of immunity is
demanded by the law. The law never puts a premium on contumacy. A person
does not become a favored citizen by resistance to a lawful requirement. On
the contrary, the policy of the law favors the willing giving of evidence
whenever an officer entitled to make a demand makes it upon a citizen who
has no right to refuse. And it would be absurd and un-American to favor the
citizen who resists and places obstacles in the way of the government as
against the citizen who, with a full knowledge of the law, obeys without

resistance the demand of an officer who has the legal right to make the
demand for something which the citizen has no legal right to refuse. This,
then, is the proposition to which we are led. When an officer, who has a legal
right to make a demand, makes such demand upon a citizen who has no
legal light to refuse, and that citizen answers under such conditions, he
answers under compulsion of the law.
There is no merit then to the contention that private respondents should be invoked the
privilege against self-incrimination before the Agrava Board for precisely PD No. 1886 had
explicitly provided that the testimony of those who testified before the Board can not be
used against them. It will be a meaningless act of supererogation to require that said
witnesses before answering any question addressed to them must invoke their privilege
against self-incrimination. The phrase "after having invoked his privilege against selfincrimination" in Section 5 of PD No. 1886 to be consistent with the intention of said decree,
should refer to the time that the testimony of the witness will be used against him in another
proceeding, such as the cases now pending before the Sandiganbayan. It could not refer to
the proceedings before the Agrava Board because no one is being accused before said
Board and no matter how self-incriminating the testimony of said witness is, he runs no risk
of being prejudiced, much less convicted by the Agrava Board. It is in the prosecution of
cases based on the report of said Board that the witness should invoke his right against
self-incrimination. These private respondents did just that when they moved for the
exclusion in evidence of their statement before the Agrava Board. Any other interpretation
would defeat the very purpose of PD No. 1886.

TEEHANKEE, J., dissenting:

The majority decision is based on erroneous premises, viz. what the case at bar presents a
"novel question;" that "this Court has not been previously called upon to rule on issues
involving immunity statute" and is burdened with the monumental task" of "laying the criteria
... (to) build future jurisprudence on a heretofore unexplored area of judicial inquiry." 1 The
fact is that we have a wealth of settled jurisprudence and precedents, Philippine and foreign, that control
the determination of the simple issue at bar and call for the setting aside of the exclusion order issued by
respondent court (Sandiganbayan) which wrongly rules as totally and absolutely inadmissible the
testimonies given by private respondents General Ver and Olivas and their six co- respondents (all
charged as accessories) as well as all the documents, records and other evidence produced by them
before the Fact-Finding Board, notwithstanding that all were represented by counsel 2 and none of them
invoked the privilege or right against self- incrimination or made any claim or objection at the time of his
testimony before the Board that any question propounded to him and which he willingly answered called
for an incriminating answer against himself.

The following vital considerations based on settled jurisprudence and precedents show that
respondent court acted with gross error and misconception of the applicable principles of
the right against self-incrimination:
1. Respondent court grossly disregarded the settled guidelines laid down for trial courts by
this Court of Appeal vs. Paylo 3 thru Mr. Justice J.B.L. Reyes, speaking for a unanimous Court, Chat

By so doing [ordering the exclusion of the proferred confessions of the two

accused upon a ground not raised by counsel but motu proprio by the trial
court, i.e. lack of independent proof of conspiracy] the [trial] court overlooked
that the right to objection is a mere privilege which the parties may waive; and
if the ground for objection is known and not seasonably made, the objection is
deemed waived and the [trial] court has no power, on its own motion, to
disregard the evidence (Marella vs. Reyes, 12 Phil. 1) ... Suffice it to say that
the lower court should have allowed such confessions to be given in evidence
at least as against the parties who made them, and admit the same
conditionally to establish conspiracy, in order to give the prosecution a chance
to get into the record all the relevant evidence at its disposal to probe the
charges. At any rate, in the final determination and consideration of the case,
the trial court should be able to distinguish the admissible from the
inadmissible, and reject what, under the rules of evidence, should be
excluded.
Trial courts should be liberal in the matter of admission of proof and avoid the premature
and precipitate exclusion of evidence on doubtful objections to its admissibility, citing the
Court's long-standing basic ruling and policy in Prats & Co. vs. Phoenix Ins. Co. 4 that
reception and admission of evidence objected to on doubtful or technical grounds is ultimately the less
harmful course to either litigant, since the Supreme Court upon appeal would then have all the materials
before it necessary to make a correct judgment (instead of returning the case for a new trial which only
prolongs the determination of the case); and

There is greater reason to adhere to such policy in criminal cases where

questions arise as to admissibility of evidence for the prosecution, for the
unjustified exclusion of evidence may lead to the erroneous acquittal of the
accused or the dismissal of the charges, from which the People can no longer
appeal 5
2. The right against self-incrimination is found in the first sentence of section 20 of the Bill of
Rights of the 1973 Constitution stating that "No person shall be compelled to be a witness
against himself." This single sentence constituted the whole text of section 18 of the Bill of
Rights of the 19,7,5 Constitution. This right against self-incrimination has a settled meaning
in jurisprudence which is fully applicable here since the right against self-incrimination was
first enforced here as an inviolable rule" in U.S. President McKinley's instructions under
date of April 7, 1900 to the Taft Commission. 6 As recounted by the late Mr. Justice Conrado
Sanchez as ponente for a unanimous Court in the leading 1968 case of Chavez vs. Court of Appeals 7,
"Mr. Justice Malcolm, in expressive language, tells us that this maxim was recognized in England in the
early days 'in a revolt against the thumbscrew and the rack.' An old Philippine case [1904] speaks of this
constitutional injunction as 'older than the Government of the United States;' as having 'its origin in a
protest against the inquisitorial methods of interrogating the accused person;' and as having been
adopted in the Philippines 'to wipe out such practices as formerly prevailed in these Islands of requiring
accused persons to submit to judicial examinations, and to give testimony regarding the offenses will
which they were charged.' " But Mr. Justice Sanchez equally stressed that "(an) accused occupies a
different tier of protection from an ordinary witness. Whereas an ordinary witness may be compelled to
take the witness stand and claim the privilege as each question requiring an incriminating answer is shot
at him, 8 an accused may altogether refuse to take the witness stand and refuse to answer any and all
questions." 9

As restated by Mr. Justice J.B.L. Reyes for a unanimous Court in Suarez vs. Tengco, 10 "No
legal impediment exists against a litigant calling any of the adverse parties to be his witness. ... True, an
accused in a criminal case may not be compelled to testify, or to so much as utter a word, even for his
own defense (U.S. vs, Junio, 1 Phil. 50; U.S. vs. Luzon, 4 Phil. 344: U.S. vs. Binayoh 35 Phil. 23; Sec.
l(c), Rule 111, Rules of Court). But while the constitutional guaranty against self-incrimination protects a
person in all types of cases, be they criminal, civil, or administrative (Art. 111, Sec. 1, No. 18, Phil.
constitution: Bermudez vs. Castillo, 64 Phil, 483), said privilege in, proceedings other than a criminal case
against him who invokes it, is considered an option of refusal to answer incriminating question, and not a
prohibition of inquiry.

Except in criminal cases, there is no rule prohibiting a party litigant from

utilizing his adversary as witness. As a matter of fact, section 83 of Rule 123,
Rules of Court expressly authorizes a party to call an adverse party to the
witness stand and interrogate him. This rule is, of course, subject to the
constitutional injunction not to compel any person to testify against himself.
But it is established that the privilege against self-incrimination must be
invoked at the proper time, and the proper time to invoke it is when a question
calling for a incriminating answer is propounded. This has to be so, because
before a question is asked there would be no way of telling whether the
information to be elicited from the witness is self-incriminating or not. As
stated in Jones on Evidence (Vol. 6, pp. 4926-4927), a person who has been
summoned to testify 'cannot decline to appear, nor can he decline to be
sworn as a witness' and 'no claim of privilege can be made until a question
calling for a incriminating answer is asked, at that time, and, generally
speaking, at that time only, the claim of privilege may properly be interposed.'
(Gonzales vs. Sec. of Labor, L-6409, February 5, 1954, 11 cit. in Navarro,
Criminal Procedure, p. 302.)'

Suarez was cited with favor and reaffirmed in Bagadiong vs. Gonzales, 12 wherein once again
the Court, with the concurrence in the result of the now Chief Justice, under similar facts held that the
petitioner (provincial treasurer) could not refuse to take the stand as an adverse party in a civil case since
the privilege against self-incrimination "in proceedings other than a criminal case against him who invokes
it, is considered an option to refuse to answer incriminating questions, and not a prohibition of inquiry"
and "must be invoked when a question calling for an incriminating answer is propounded, because before
a question is asked, there would be no way of telling whether the information to be elicited from the
witness is self-incriminating or not." The Court therein denied "the petition to prohibit respondent judge
from directing petitioner to take the witness stand and testify ... without prejudice to petitioner's properly
invoking the guaranty against self-incrimination when questions are propounded to him on the stand.
Costs against the petitioner."

3. All the respondents at bar were in this category of ordinary witnesses in the hearings of
the Fact-Finding Board. They were not accused in any criminal case nor were they persons
under custodial interrogation who under the second part of section 20 of the Bill of Rights
(consisting of three additional sentences 13) were given additional rights to silence and counsel and
to be informed of such rights and to the out-lawing of any confession obtained in violation of the rights
guaranteed in the cited section, by virtue of the incorporation into the Bill of Rights of the rights granted in
the rulings of the U.S. Supreme Court in the Miranda-Escobedo cases. As noted by former Chief Justice
Enrique M. Fernando, "(I)t amounts to an acceptance of the applicability in this jurisdiction of the epochal
American Supreme Court decision inMiranda vs. Arizona, the opinion being rendered by Chief Justice
Warren. It is thus now a part of our fundamental law. Such doctrine was promulgated in response to the
question of the admissibility of statements obtained from an individual interrogated under police custody,
considering that such a time and under the stress of such conditions, his right against self-incrimination

could be rendered futile." 14 The Miranda pronouncements thus became necessarily a part and parcel of
the additional rights granted in the cited section 20, as made by the late U.S. Chief Justice Warren in the
Miranda case thus: "The prosecution may not use statements, whether exculpatory or inculpatory,
stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural
safeguards effective to secure the privilege against self-incrimination. By custodial interrogation we mean
questioning initiated by law enforcement officers after a person has been taken into custody or otherwise
deprived of his freedom of action in any significant way. " 15 These additional Miranda rights could not be
invoked by respondents, as the members of the Fact-Finding Board were not law enforcement officers nor
were respondents under custodial interrogation.

As ordinary witnesses before the Fact-Finding Board and under the settled jurisprudence
above-cited, they could not invoke the right to silence and refuse to take the witness stand.
Their right and privilege (which is not self-executory or automatic ipso jure) was, while
testifying, whether voluntarily or by subpoena, to invoke the privilege and refuse to answer
as and when a question calling for an incriminating answer is propounded. Failure to invoke
the privilege which is personal does automatically result in its loss ipso facto. The law,
usage and settled jurisprudence uniformly require that the privilege must be asserted or
else is lost. The court or board upon its invocation still has to pass upon and rule upon the
proper application of the privilege. As restated by Francisco, the rule and exceptions are:
"Certainly, where the witness, on oath declares his belief that the answer to the question
would criminate or tend to criminate him, the court cannot compel him to answer, unless it is
clear perfectly, from a careful consideration of all the circumstances of the case, that the
witness is mistaken, or is acting in bad faith, and that the answer cannot possibly have any
such tendency. " 16
4. The view that withal, it is best, although not required, that a warning to the witness of his
option to refuse an answer to incriminating questions as advanced even by the Tanodbayan
at the hearing dates back to a century ago and has been long discarded as "witnesses are
usually well enough advised beforehand by counsel as to their rights when such issues
impend" and "as general knowledge spread among the masses and the preparation for
testimony became more thorough." Thus, "ignore, the bible on the law of evidence so
remarks and adds that "there is no reason for letting a wholesome custom degenerate into a
technical rule."
It is plausible to argue that the witness should be warned and notified, when a
incriminating fact is inquired about, that he has an option to refuse an answer;
and this view was often insisted upon, a century ago, by leaders at the Bar,
xxx xxx xxx
But there are opposing considerations. In the first place, such a warning
would be an anomaly; it is not given for any other privilege; witnesses are in
other respects supposed to know their rights; and why not here? In the next
place, it is not called for by principle, since, until the witness refuses, it can
hardly be said that he is compelled to answer; nor is it material that he
believes himself compelled; for the Court's action, and not the witness' state
of mind, must be the test of compulsion. Again, the question can at any rate
only be one of judicial propriety of conduct, for no one supposes that an
answer given under such an erroneous belief should be struck out for lack of

the warning. Finally, in practical convenience, there is no demand for such

rule; witnesses are usually well enough advised beforehand by counsel as to
their rights when such issues impend, and judges are too much concerned
with other responsibilities to be burdened with the provision of individual
witnesses' knowledge; the risk of their being in ignorance should fall rather
upon the party summoning than the party opposing.
Nevertheless, it is plain that the old practice was to give such a warning,
when it appeared to be needed. But, as general knowledge spread among
the masses, and the preparation for testimony became more thorough, this
practice seems to have disappeared in England, so far at least as any
general rule was concerned.
In the United States, both the rule and the trial custom vary in the different
jurisdictions. No doubt a capable and painstaking judge will give the warning,
where need appears, but there is no reason for letting a wholesome custom
degenerate into a technical rule. 17
But from the environmental facts and circumstances of the Fact-Finding Board hearings, to
require such a warning to the witness of his option of refusal to answer incriminatory
questions would have been an exercise in absurdity and futility, As is a matter of public
knowledge, respondents had concluded in their investigation that Galman was the assassin
of the late Senator Aquino. As observed by former Senator Ambrosio Padilla as amicus
curiae at the hearing on the merits of August 15, 1985, they were all too eager to testify and
make a strong effort to gain support from the Fact-Finding Board and the public for the
military version and report that the assassin was Galman who was forthwith gunned down
by the military escorts and guards at the tarmac. It would have been ridiculous, if not
bordering on officiousness and impropriety, to warn them as the highest ranking military
officers of their option of refusal to answer incriminatory questions and also as the majority
holds, 18 of their right to remain silent. When respondents generals appeared before the Board,
respondent Ver precisely made the opening statement that

GENERAL VER:
I welcome this opportunity, Madame Justice, members of this
Honorable Board, Dean, Gentlemen this opportunity to assist ...
this Honorable Board in the quest for truth and justice, We all
deplore this tragic incident which is now the subject of inquiry,
This Board, this Honorable Board is mandated to conduct a
free, full and exhaustive investigation into the matter under
investigation We all hope that my testimony, madame, will
somehow dispel any misconception, or any misinformation
surrounding this tragic incident. I am now ready to answer your
questions.
JUSTICE AGRAVA:

Now, General, at the outset, we give the right and the privilege
for every witness to be assisted by counsel Do you have your
counsel with you this morning?
GENERAL VER:
I did not bring any counsel, madame, but ... if I need a counsel,
madame, I could probably look for... probably ...
JUSTICE AGRAVA:
Yes?
GENERAL VER:
I may call Fiscal Parena or the Public Coordinator. I was talking
to Atty. Tan to assist me, in the protection of my constitutional
rights ...
JUSTICE AGRAVA:
Yes.
GENERAL VER:
... if it is necessary:
ATTY. TAN:
Your Honor, please, it is part of the function of this office to help
the witness if he doesn't have counsel, and so, if the General is
willing to have me, I will happily serve as counsel, Your Honor.
JUSTICE AGRAVA:
All right.
GENERAL VER:
Thank you. 19
Respondent Olivas likewise testified before the Board in response to its invitation to assist it
in determining the true facts and circumstances surrounding the double killing.
6. The majority decision would go around this by asserting without basis in the record that
"(A)ll the private respondents, except Generals Ver and Olivas, are members of the military
contingent that escorted Sen. Aquino while embarking from the plane that brought him
home to Manila on that fateful day. Being at the scene of the crime as such, they were

among the first line of suspects in the subject assassination. General Ver on the other hand,
being the highest military authority of his co-petitioners labored under the same suspicion
and so with General Olivas, the first designated investigator of the tragedy, but whom others
suspected, felt and believed to have bungled the case. The papers, especially the foreign
media, and rumors from ugly wagging tongues, all point to them as having, in one way or
another participated or have something to do, in the alleged conspiracy that brought about
the assassination. Could there still be any doubt then that their being asked to testify, was to
determine whether they were really conspirators and if so, the extent of their participation in
the said conspiracy?" In fact, the respondent court's decision and separate opinions as well
as the majority decision at bar and the separate concurring opinions all fail to specify the
particular portions of the testimonies of respondents or any specific question and answer
that can be in any way deemed to be self-incriminating. Indeed, even if we assumed
arguendo that they were warned of their right against self-incrimination and tried absurdly to
invoke the same, there is no specific question and answer by way of testimony that could be
pointed to them as having been made under compulsion for the simple reason that their
testimony was in full support of their own military report that Galman was Aquino's killer and
for which they were trying to gain the Board's acceptance. In the all too brief and inadequate
deliberations held on August 20 and 21, 1985 after the hearing on the merits of August 15,
1985, without reaching a definite conclusion, the ponente reported and I share this view
from a cursory examination, for want of material time, of the excluded testimonies only since
the excluded documents, records and other evidence produced by them were not before the
Court that there is nothing in the excluded testimonies that could in any way be deemed
self-incriminatory perse. So there would be no legal basis whatever for their exclusion. But
the ponente circulated only last August 26th at noon his draft for dismissal of the petitions
which were filed only last month. And its release has been set for August 30th.
7. There has not been enough time to weigh and ponder on the far-reaching consequences
of the decision at bar. The decision orders the total and unqualified exclusion of the
testimonies and evidence produced before the Fact-Finding Board by the eight respondents
charged as accessories "even though (they) failed to claim (their) privilege before giving the
incriminating testimony" (citing 21 Am. Jur. 2d. 218). But the cited compilation of American
State and Federal Law expressly cautions that "The question whether a witness must claim
exemption . on from self-incrimination to be entitled to immunity from subsequent
prosecution must in each case be determined in the light of constitutional and statutory
provisions in the jurisdiction where the question arises" (21 Am. Jur. 2d. 151). It recites on
the same cited page that "Under a statute granting immunity to persons who have been
compelled to testify, one who has appeared voluntarily and testified without claiming his
privilege against self-incrimination or one who has appeared and testified pursuant to a void
subpoena or one addressed to another person, without claiming the privilege, cannot say he
has been compelled to testify, and therefore, he is not entitled to immunity." And the
necessity of claiming the privilege against self-incrimination before an administrative officer
or board such as the Fact Finding Board is recognized to be essential, thus:
This is not only equally true as for the case of testimony in a judicial trial, but
the explicitness is here even more essential, and particularly where the
administrative officer makes a general demand for documents or testimony
upon a broad class of topics. The reason is clear. The officer has testimonial
powers to extract a general mass of facts, or which some, many, or most will

certainly be innocent and unprivileged, some may be privileged

communications (e.g., between attorney and client) whose privilege remains
unaffected by the statute defining his powers, and some may be privileged as
self-incriminating but liable to become demandable by overriding this privilege
with a grant of immunity. Among these mass of facts, then, the officer will
seek those which are relevant to his administrative inquiry; he cannot know
which of them fall within one or another privilege in particular, which of them
tend to criminate at all, or to criminate a particular person; if such facts are
there, he may not desire or be authorized to exercised the option of granting
immunity so as to obtain them; his primary function and power is to obtain the
relevant facts at large, and his power to obtain a special and limited class of
facts by grant of immunity is only a secondary one, and one which he will not
exercise till a cause arises, if even then.
For these reasons of practical sense, then, as well as for the inherent
requirements of principle already noticed for judicial officers, it is particularly
true for an inquiry by an administrative officer that the witness must explicitly
claim his privilege, and specifically the privilege against self- incrimination,
and must then be overridden in that claim, before immunity can take effect.
(VII Wigmore on Evidence, 2282, pp. 517-518)
The concurrence of Justice Vera Cruz sounds even more ominous thus:
I believe that where evidence is produced by a witness in accordance with the
conditions of the statute granting immunity such as P.D. No. 1886, as
amended, its immunity provisions attach instantly and it is entirely immaterial
what use the investigation authority makes of it (People ex rel. Massarsky v.
Adams, 47 N.Y.S. 2d 375, 62 N.E. 2d 244).
Consequently, the evidence, given before the Agrava Board by the accused in
the instant cases namely, Generals Fabian Ver and Prospero Olivas, and
Sergeants Pablo Martinez, Tomas Fernandez, Leonardo Mojica, Pepito Torio,
Prospero Bona and Aniceto Acupido cannot be used against them and this
proscription did attach instantly when they testified before the same Board.
Verily, the prohibition stands, irrespective of the purpose for which the
prosecution would like to use this evidence.
The total and unqualified exclusion of the testimony and evidence granted by respondent
court and sustained by the majority decision herein refers expressly to the eight
respondents charged as accessories. Would not this unprecedented grant of immunity and
exclusion of testimony be now claimed by the rest of the twenty-two accused charged as
principals except for the lone civilian? As reported by the press, respondent court has
suspended its trial and placed the pressure on the Court to rush its decision, as "(T)he socalled 'trial of the century' has been delayed since last week on motion of the defense panel
which had argued that the high court's decision on the admissibility of Ver's testimonies was
a vital prerequisite to the presentation of witnesses for the defense. " 20 Would this not result in
the People holding an empty bag of excluded testimonies and evidence, since to all intents and purposes
all respondents-accused testified before the Fact-Finding Board? Would their testimonies be inadmissible
for purposes even of impeaching such testimony as they may now give before respondent court? These

ponderous questions need not confront us had we but required respondent court to hew to the settled
procedure and doctrine of Yatco (supra, par. I hereof) of giving the prosecution a chance to get into the
record its relevant evidence until the final determination and consideration of the case, for the unjustified
exclusion of evidence of the prosecution may lead to the erroneous acquittal of the accused or dismissal
of the charges, from which the People can no longer appeal.

8. The alleged "ambiguous phraseology" of section 5 of P.D. 1886 cited in respondent

court's questioned order and bolstered by the majority decision's "novel" conclusion and
ruling that the cited section quoted therein 21requires a claim from the witness of the privilege
against self-incrimination but "forecloses under threat of contempt proceedings [under section 4] against
anyone who makes such a claim. But the strong testimonial compulsion imposed by section 5 of P.D.
1886 viewed in the light, of the actions provided in section 4, infringes upon the witness' right against selfincrimination. As a rule, such infringement of the constitutional right renders inoperative the testimonial
compulsion, meaning, the witness cannot be compelled to answer UNLESS a co-extensive protection in
the form of IMMUNITY is offered. Hence, under the oppressive compulsion of P.D. 1886, immunity must in
fact be offered to the witness before he can be required to answer, so as to safeguard his sacred
constitutional right. But in this case, the compulsion has already produced its desired results the private
respondents had all testified without offer of immunity. Their constitutional rights are, therefore, in
jeopardy. The only way to cure the law of its unconstitutional effects is to construe it in the manner as if
IMMUNITY had in fact been offered. We hold, therefore, that in view of the potent sanctions imposed on
the refusal to testify or to answer questions under Sec. 4 of P.D. 1886, the testimonies compelled thereby
are deemed immunized under Section 5 of the same law. The applicability of the immunity granted by
P.D. 1886 cannot be made to depend on a claim of the privilege against self-incrimination which the same
law practically strips away from the witness. " Emphasis supplied).

It bears emphasis that none of respondents made any such claim against self-incrimination.
The "oppressive compulsion" if it may be so-called, consists of a maximum penalty of P200.
fine and/or 30 days imprisonment for direct contempt. As indicated, it would be ridiculous for
any respondent to 1 make such claim when his testimony was but in full support of their
own military theory and report that Galman killed Aquino.
The language of the cited section

22

is plain and simple. It excuses no one from testifying and

producing books and records but grants him immunity from prosecution (except for perjury) after having
invoked his privilege against self-incrimination " There is nothing oppressive about such compulsion in
exchange for immunity provided the witness invokes his and aims his privilege a against selfincrimination.

In the Court's Resolution of July 9, 1985, Mr. Justice Aquino, voting to dismiss outright the
petitions. opined that The clause 'concerning which lie is compelled to testify after having
invoked his privilege against self-incrimination' is surplusage. It is in conflict with the first
clause which, as already stated, gives immunity to the witness except in case of perjury. So,
section 5 should be read as if that clause were not there.This is contrary to the rules of
statutory construction that there is no room for construction when tile text is plain and
simple, i.e. requires invocation and that the provisions must be taken in context and all the
words taken into account and given their full meaning. The Anti-Gambling Law, Act No.
1757, enacted on October 9, 1907 by the Philippine Commission (probably the first
Philippine immunity statute) granted such absolute immunity and does not contain the
conditional clause requiring that the witness invoke his privilege against self-incrimination.
Section 10 of the cited Act reads:

Sec. 10. Upon any investigation or proceeding for violation of this Act no
person shall be excused from giving testimony upon the ground that such
testimony would tend to convict him of a crime, but such testimony cannot be
received against him upon any criminal investigation or proceeding; Provided,
however, That no person so testifying shall be exempt from prosecution or
punishment for perjury committed in the course of any proceeding or
investigation had by virtue of [his Act. (1 CPS [Rev. Ed.], 190)
But when the statute grants conditional immunity (and not absolute as in the above-quoted
section 10 of the Anti-Gambling Act.), then it explicitly contains the cited conditional clause
in section 5 of P.D. 1886 granting immunity only when "he is compelled to testify after
having invoked his privilege against self-incrimination. "
This is but in accord with long-settled Philippine jurisprudence cited above (supra.
paragraph 2 hereof), that the witness has an option of refusal to answer incriminatory
questions, which he loses ipso facto if he does not invoke the privilege and nevertheless
answers the questions. Here, in review of the national and international importance of the
case with the country's very prestige at stake, the P.D. added the incentive of offering
immunity: "The purpose of immunity provisions is to aid prosecuting officers by inducing
criminals or their confederates to turn state's evidence and tell on each other, to enable
prosecuting officers to procure evidence which would otherwise be denied to them because
of the constitutional right against self-incrimination, and at the same time to protect every
person from gluing testimony which directly or indirectly would be helpful to the prosecution
in securing an indictment or a conviction. The provisions for immunity are or should be as
broad as or co-extensive with the constitutional provisions granting the privilege against
self-incrimination." (21 Am. Jur. 2d. Criminal Law, sec. 148). It is bad enough that no state's
evidence turned up to tell on his confederates in exchange of immunity. But to call the cited
section " a booby trap for the unsuspecting or unwary witness" unless it was construed as
granting absolute and unconditional immunity from the very fact of merely testifying as a
witness before the Board without claiming immunity nor giving any incriminatory information
that would aid the state to determine the true facts about Aquino's assassination would be a
sell-out. It would make a shambles of the letter and spirit as well as the salutary intent and
objective of the Decree to ferret out the truth and obtain state witnesses.
9. The truncated and distorted reading of the cited section 5 which consists of a single
integrated paragraph and splitting it into two isolated parts so as to allow the privilege
against self-incrimination (which was already lost for failure to claim it in the Board hearings)
to be resurrected and raised in a much later time frame and "subsequent criminal
proceeding" is against all usage and rules of statutory construction, not to mention the long
line of above-cited jurisprudence to the contrary. And if there still be doubt, we need only
reproduce hereunder the similar wording of Senate Joint Resolution 137 (Public Law 88202) after which section 5 of P.D. 1886 was patterned. Said law was enacted by the U.S.
Congress in December 1963 to empower the Warren Commission to issue subpoenas
requiring the testimony of witness and the production of evidence relating to any matter
under its investigation. The Report of the President's Commission on the Assassination of
President John F. Kennedy in its foreword on page X stated that "In addition, the resolution
authorized the Commission to compel testimony from witnesses claiming the privilege
against self-incrimination under the fifth amendment to the U.S. Constitution by providing for

the grant of immunity to persons testifying under such compulsion." (Emphasis supplied).
The cited Public Law reads:
(e) No person shall be excused from attending and testifying or from
producing books, records, correspondence, documents, or other evidence in
obedience to a subpoena, on the ground that the testimony or evidence
required of him may tend to incriminate him or subject him to a penalty or
forfeiture but no individual shall be prosecuted or subjected to any penalty or
forfeiture (except demotion or removal from office) for or on account of any
transaction matter, or thing concerning which he is compelled, after having
claimed his privilege against self-incrimination to testify or produce evidence,
except that such individual so testifying shall not be exempt from prosecution
and punishment for perjury committed in so testifying. (Emphasis supplied).
10. As already indicated above, none of the respondents, public and private, has indicated
the specific portions of their testimony that they have been "oppressively compelled" to
glue, in alleged violation of their privilege against self-incrimination. The reason for this is
that they all testified voluntarily and eagerly to support the military report and version that
Galman killed Senator Aquino. The Board unanimously rejected the military report and
found that the killings were the product of criminal conspiracy. A brief flashback is herein
appropriate: Within 60 seconds from his being led away by soldiers from his plane that had
just landed at the Manila International Airport on Sunday, August 21, 1983 at past one p.m.,
former Senator Benigno S. Aquino, Jr. who was coming home after three years of self-exile
in the U.S. laid dead face down on the tarmac, with his brain smashed by a bullet fired point
blank into the back of his head by a murderous assassin. 23 Also lying dead on the tarmac, face
up, near the senator was another man, to be Identified much later as Rolando Galman, whom the soldiers
admittedly gunned down. The military pointed to him as Aquino's assassin, who had somehow allegedly
penetrated the air-tight security of close to 2000 men ringing the airport. The military version met with
great public disbelief and skepticism. The first fact-finding commission created under Administrative Order
No. 469 dated August 24, 1983 and P.D. 1879 dated August 27, 1983 was the object of several suits
charging bias and that the President "had already prejudged the case, by rejecting the version of foreign
media that it is one of the soldiers, supposed to guard Aquino, who fatally shot him." 24 The said
commission was dissolved per P.D. 1886, dated October 14, 1983 (later amended by P.D. 1903 dated
February 8, 1984) which created the ad hoc Fact-Finding Board with plenary powers to investigate "the
treacherous and vicious assassination (which) has to all Filipinos become a national tragedy and national
shame ... (and) to determine the facts and circumstances surrounding the killing and to allow for a free,
unlimited and exhaustive investigation into all the aspects of said tragedy." The Board after extensive
hearings, submitted to the President their majority report on October 24, 1984, while the chairman former
Court of Appeals Justice Corazon Agrava submitted her minority report one day earlier on October 23,
1984. All five members of the Board unanimously rejected the official military version that Galman was the
assassin and instead found that there was criminal conspiracy. Their main difference of opinion is that the
four-member majority found twenty-five military men (headed by respondents Generals Ver, Olivas and
Luther Custodia) and one civilian "indictable for the premeditated killing of Senator Benigno S. Aquino, Jr.
and Rolando Galman at the MIA on August 21, 1983." The chairman's report confined the conspiracy to
seven men headed by General Custodia. The Tanodbayan, after conducting the preliminary investigation,
adopted the Board's majority report recommending the indictment of the accused as "involved in this
conspiracy, either as principals, upon the theory that the act of one is the act of all, or as accessories, for
attempting to hide the corpus of the offense." The eight accessories so indicted are the private
respondents herein named headed by respondents Ver and Olivas. (The chairman in her minority report
had found that "(T)he indications are that the plotters had agreed that only one would be the assassin;
that the others can either point to Galman as the killer; or they can state that they did not see the
shooting; and that they will give false testimony to mislead and confuse.

11. Only the former lawyers of the Fact-Finding Board created under P.D. No. 1886,
consisting of Messrs. Andres R. Narvasa, Bienvenido A. Tan, Jr., Mario E. Ongkiko and
Francisco A. Villa have given us the answer that there is nothing incriminatory per se in the
testimonies of the respondents, in the Memorandum submitted by them, to wit:
I. The so-called 'Galman Theory that it was Rolando Galman who killed
Senator Aquino is either true or untrue, a matter the SANDIGANBAYAN will
have to resolve.
II. If the 'Galman Theory' be true as advocated by the military officers
concerned then the testimony of Ver, et al. is true. It is not self-incriminatory.
There would then be no reason to exclude it.
If, on the other hand, the theory be untrue as the prosecution in turn
advocates then the testimony of Ver, et al. is untrue. It is incriminatory of
them, because by giving it and thereby seeking to hide the crime, they
incriminated themselves. Withal there would also be no reason to exclude it.
Surely, after their plot to deceive the Board had been exposed, they should
not now be allowed to use the law to bring about exclusion of the very proof
of their deception.
In short, the testimonies of respondents could only be deemed incriminating if it be found
that they sought thereby to hide or cover up the crime and thus incriminate themselves, as
accessories to the murder of Senator Aquino. The former Fact-Finding Board lawyers
amplify their theory, as follows:
5. The plain language of Section 5, PD 1886 precludes its interpretation as extending
immunity to all testimony or evidence produced before the Board in obedience to subpoena
regardless of whether the witness giving such evidence invokes the privilege against selfincrimination or not.
6. The fact is, the invocation by Ver, et al. of such right would have been self-defeating first,
it would have prevented them from presenting evidence in substantiation of the 'Galman
Theory,' which they wished the Board to accept; and second, it might have exposed to some
extent their real objective, which was to deceive the Board.
7. It would have been incongruous for Ver, et al. to have claimed that their testimony would
incriminate them as accessories to the murder of Aquino when they were, by testifying,
actually in process of committing that precise crime, becoming accessories.
8. Neither PD 1886 nor the Constitution should be used as a shield for crime, fraud or
trickery.
9. The foregoing propositions were ignored by the SANDIGANBAYAN. Instead, with all due
respect, it has
a. given Section 5, PD 1886 a strained construction not justified by and
contrary to its plain language;

b. given Section 20, Article IV, Constitution, a meaning at odds with its plain
terms and contrary to relevant decisions of this Honorable Supreme Court;
and
c. sanctioned the use of legal provisions to shield persons from criminal
liability arising from their perfidious testimony before the Fact-Finding Board.
There is no legal ground nor justification for the exclusion order. It is for respondent court,
upon consideration of the evidence for the People, without any exclusion, and of the
evidence for the defense in due course, to render its verdict of guilty or not guilty.
With a word of commendation for the former Fact-Finding Board lawyers and former
Senator Ambrosio Padilla and Atty. Ramon Gonzales, whose memoranda as amid curiae,
have been of great assistance, I vote, accordingly, to grant the petitions at bar and to set
aside the questioned exclusion order.

MELENCIO-HERRERA, J., dissenting:

I vote to grant the Petitions and to reverse the ruling of the Sandiganbayan.
The resolution of the issue revolves around the interpretation to be given to Sec. 5 of PD
No. 1886, reading as follows:
SEC. 5. No person shall be excused from attending and testifying or from
producing books, records, correspondence, documents, or other evidence in
obedience to a subpoena issued by the Board on the grounds that his
testimony or the evidence required of him may tend to incriminate him or
subject him to penalty or forfeiture; but his testimony or any evidence
produced by him shall not be used against him in connection with any
transaction, matter, or thing concerning which he is compelled, after having
invoked his privilege against self-incrimination, to testify or produce evidence,
except that such an individual so testifying shall not be exempt from
prosecution and punishment for perjury committed in so testifying, nor shall
he be exempt from demotion or removal from office. (Emphasis supplied)
As I read the law, Section 5 does not require that the person testifying before the Agrava
Fact Finding Board (the Board, for short) shall first invoke the privilege against selfincrimination. Under said statute it is obvious that he has no such privilege.
But what is the effect of the second part providing that his testimony or any evidence
produced by him shall not be used against him in connection with any transaction, matter or
thing concerning which he is compelled, after having invoked his privilege against selfincrimination, to testify or produce evidence, except in case of perjury?
To my mind, the above portion does not grant to a person who has testified before the
Board absolute or total immunity. It should not operate as a shield against criminal liability

specially since, under Section 12 of the same Decree, the Board may initiate the filing of the
proper complaint if its finding so warrant. Thus,
SEC. 12. The findings of the Board shall be made public. Should the findings
warrant the prosecution of any person the Board may initiate the filing of the
proper complaint with the appropriate government agency. ... (Emphasis
supplied)
The inquiry before the Board was a general one. It was not directed against any particular
individual or individuals. Private respondents did not testify therein as suspects or as
accused persons. There should therefore be no hindrance to a criminal prosecution.
It has been held that where an inquiry by a grand jury is a general one and is
not directed against a particular individual the fact that on the basis of the
information elicited, grounds for a criminal prosecution may evolve against a
witness, may not serve as a bar to such prosecution (U.S. v. Okin D.C.N.J.,
154 F. Supp. 553; Benson v. Goldstein, 124 N.Y.S. 2d 452) even though he
testified before the grand jury without being warned of his constitutional
privileges against self- incrimination. (U.S. v. Okin supra) (Emphasis supplied)
The right against self incrimination is not a prohibition of inquiry but an option of refusal to
answer incriminating questions Cabal vs. Kapunan, 6 SCRA 1059 [1962]). The kernel of the
privilege is testimonial compulsion. Whether or not any specific portion of the testimonies of
private respondents is incriminating should be determined by the Sandiganbayan itself. The
claim against self-incrimination should be invoked when a specific question, which is
incriminating in character, is put to a witness in the subsequent proceeding. There should
be no automatic "immunity bath" of the entire testimony before the Board for immunity does
not extend to such of the evidence as is not privileged.
... But it is established that the privilege against self-incrimination must be
invoked at the proper time, and the proper time to invoke it is when a question
calling for an incriminating answer is propounded. This has to be so, because
before a question is asked there would be no way of telling whether the
information to be elicited from the witness is self-incriminating or not. As
stated in Jones on Evidence (Vol. 6, pp. 4926-4927), a person who has been
summoned to testify 'cannot decline to appear, nor can be decline to be
sworn as a witness' and 'no claim or privilege can be made until a question
calling for a incriminating answer is asked; at that time, and generally
speaking, at that time only, the claim of privilege may be interposed.
(Gonzales vs. Sec. of Labor, et al., 94 Phil. 325, 326 [19541).
Moreover, the issue actually addresses itself to a question of admissibility or competency of
evidence and not to its credibility. Whether the evidence so admitted is to be given any
probative weight or credence is best addressed to the Sandiganbayan. It should be recalled
that the Board was not unanimous in its assessment of the testimonies given.
There are additional considerations. While the right against self-incrimination is indubitably
one of the most fundamental of human rights, Section 5 of PD No. 1886 should be

construed so as to effect a practical and beneficent purpose and not in such a manner as to
hinder or obstruct the administration of criminal justice.
... Any statute which, while it compels him to testify, protects the witness if he
does disclose the circumstances of his offense and the sources from which or
the means by which evidence of its commission or of his connection with it
may be obtained or made effectual for his subsequent prosecution and
conviction is sufficient to comply with the constitutional requirements. Such a
statute, however should be construed to effect a practical and beneficent
purpose, namely, at the same time to secure the witness in his constitutional
rights and to permit the prosecuting officer to secure evidence of a crime. It
should not be construed so as to unduly impede, hinder, or obstruct the
administration of criminal justice." Brown v. Walker 161 US 591, 16 Sup. Ct.
644, 40 L. Ed. 819. (People ex rel. Hunt vs. Lane, 116 N.Y.S. 990, 132 App.
Div. 406)
The objective in all this exercise is to arrive at the truth. "Though the constitutional
provisions for the protection of one who appears ... must be liberally and fairly applied, the
interests of the people are also entitled to consideration" (Wharton's Criminal Evidence,
11th Ed., Vol. 1, p. 609; People vs. Coyle 15 N.Y.S. 2d 441, 172 Mis 593). Specially so
since, in the language of PD No. 1886 itself, the "treacherous and vicious assassination of
former Senator Benigno S. Aquino, Jr. on August 21, 1983, has to all Filipinos become a
national tragedy and national shame. "
In the interest of eliciting the truth, the excluded testimonies should be admitted, leaving it to
the Sandiganbayan to determine which specific questions and answers are to be excluded
because they are incriminatory, and which should be given credibility, in found to be
competent and admissible.

RELOVA, J., dissenting:

The issue raised in these two petitions is whether the testimonies and other evidence
produced by the private respondents before the Agrava Board may be used as evidence
against them before the Sandiganbayan
Respondent Sandiganbayan rejected their testimonies on the ground that "under statutes
providing in substance that no person shall be excused from testifying or furnishing
evidence on the ground that the testimony or evidence may tend to incriminate him, but that
no person shall be subject to indictment or prosecution for anything concerning which he
may testify or furnish evidence, it has been held that one who testifies concerning criminal
offenses when required to do so is entitled to immunity from prosecution even though he
fails to claim his privilege before giving the incriminating testimony (21 Am Jur 2d 218). He
could not be required, in order to gain the immunity which the law afforded, to go though the
formality of an objection or protest which, however made, would be useless (VIII Wigmore
516)." (p. 4, Resolution of Sandiganbayan)

Section 5 of Presidential Decree No. 1886 provides that:

SEC. 5. No person shall be excused from attending and testifying or from
producing books, records, correspondence, documents, or other evidence in
obedience to a subpoena issued by the Board on the ground that his
testimony or the evidence required of him may tend to incriminate him or
subject him to penalty or forfeiture; but his testimony or any evidence
produced by him shall not be used against him in connection with any
transaction, matter or thing concerning which he is compelled, after having
invoked his privilege against self- incrimination to testify or produce
evidence ... (Emphasis supplied.)
Pursuant to the above Presidential Decree no one can refuse to testify or furnish evidence
before the Fact Finding Board. However, his testimony or any evidence produced shall not
be used against him after he invoked the privilege against self-incrimination. Stated
differently, the privilege against self-incrimination must be invoked when the question at the
hearing before the Board, calling for an incriminating answer is propounded; otherwise,
before any question is asked of the witness, he would not know whether the information to
be elicited from him is incriminating or not.
In the case of Gonzales vs. Secretary of Labor, et al., 94 Phil. 325, this Court held that "the
privilege against self-incrimination must be invoked at the proper time, and the proper time
to invoke it is when question calling for a incriminating answer is propounded. This has to
be so, because before a question is asked there would be no way of telling whether the
information to be elicited from the witness is self-incriminating or not. As stated in Jones on
Evidence (Vol. 6, pp. 4926-4927), a person who has been summoned to testify 'cannot
decline to appear, nor can he decline to be sworn as a witness' and 'no claim of privilege
can be made until a question calling for a incriminating answer is asked; at that time, and
generally speaking, at that time only, the claim of privilege may properly be interposed.'"
And, since it is a personal right to be exercised only by the witness, this privilege against
self-incrimination may be waived by him and, when so waived, cannot thereafter be
asserted. The privilege is waived by his voluntary offer to testify by, answering questions
without objecting and/or claiming the privilege.
When private respondents gave testimonies before the Board they were not defendants but
witnesses invited and/or subpoenaed "to ventilate the truth thorougly free, independent and
dispassionate investigation." They could not refuse or withhold answers to questions
propounded to them unless the inquiry calls for an incriminating answer and a timely
objection is raised.
In the case at bar, since the private respondents answered questions from the Fact Finding
Board without claiming the privilege against self-incrimination they cannot now be allowed
to invoke the immunity clause provided in Section 5 of Presidential Decree No. 1886.
I vote to grant the petitions.

Separate Opinions
MAKASIAR, C.J., concurring:
To admit private respondents' testimonies and evidence before the Fact-Finding Board
(FFB) against them in the criminal prosecution pending before the Sandiganbayan, would
violate their constitutional or human rights the right to procedural due process, the right to
remain silent, and the right against self- incrimination.
That their testimonies and other evidence they submitted before the FFB in these criminal
cases are incriminatory, is confirmed by the very fact that such testimonies and evidence
were the very bases of the majority report of the FFB recommending the prosecution of
private respondents as accessories.
It should be stressed that the basic purposes of the right against self- incrimination are (1)
humanity or humanitarian reasons to prevent a witness or accused from being coerced,
whether physically, morally, and/or psychologically, into incriminating himself, and (2) to
protect the witness or accused from committing perjury, because the first law of nature is
self- preservation.
The utilization in the prosecution against them before the Sandiganbayan of the testimonies
and other evidence of private respondents before the FFB collides with Section 1, Section
17 and Section 20 of the Bill of Rights of the 1973 Constitution:
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 of the laws.
xxx xxx xxx
Section 17, No person shall be held to answer for a criminal offense without
due process of law.
xxx xxx xxx
Section 20. No person shall be compelled to be a witness against himself.
Any person under investigation for the commission of an offense shall have
the right to remain silent and to counsel, and to be informed of such right. No
force, violence, threat, intimidation, or any other means which vitiates the free
will shall be used against him. Any confession obtained in violation of this
Section shall be inadmissible in evidence.
The Bill of Rights constitutes the reservation of the sovereign people against, as well as the
limitation on, the delegated powers of government. These rights thus enshrined need no
express assertion. On the contrary, the police and prosecution officers of the country should
respect these constitutional liberties as directed in the recent decision in the Hildawa and
Valmonte cases (G.R. Nos. 67766 and 70881, August 14, 1985). The established

jurisprudence is that waiver by the citizen of his constitutional rights should be clear,
categorical, knowing, and intelligent (Johnson vs. Zerbst, 304 US 458, 464, cited in Abriol
vs. Homeres, 84 Phil. 525 [1949] and in Chavez vs. CA, 24 SCRA 663, 682-683).
The use of testimonies and other evidence of private respondents before the FFB against
them in the criminal cases subsequently filed before the Sandiganbayan would trench upon
the constitutional guarantees that "no person shall be deprived of life, liberty, or property
without due process of law ... that "no person shall be held to answer for a criminal offense
without due process of law" and that (Section 17, Article IV, 1973 Constitution), that "no
person shall be compelled to be a witness against himself. ..." and that " a person has the
right to remain silent ..." (Section 20, Article IV, 1973 Constitution).
There can be no implied waiver of a citizen's right against self-incrimination or of his right to
remain silent.
Any such renunciation cannot be predicated on such a slender or tenuous reed as a
dubious implication. Otherwise, it would be easier to lose the human rights guaranteed by
the Bill of Rights than to protect or preserve them; it would be easier to enslave the citizen
than for him to remain free. Such a result was never intended by the Founding Fathers.
The first sentence of Section 20 of the Bill of Rights stating that "no person shall be
compelled to be a witness against himself," applies to both the ordinary witness and the
suspect under custodial investigation.
In support of the rule that there can be no implied waiver of the right against
self-incrimination and all other constitutional rights by the witness or by the accused, is the
fact that the right against double jeopardy can only be renounced by the accused if the
criminal case against him is dismissed or otherwise terminated with his express consent.
Without such express consent to the dismissal or termination of the case, the accused can
always invoke his constitutional right against double jeopardy.
If Section 5 of P.D. 1886 were interpreted otherwise, said section would become a booby
trap for the unsuspecting or unwary witness, A witness summoned either by subpoena or by
Invitation to testify before the FFB under Section 5, cannot refuse, under pain of contempt,
to testify or produce evidence required of him on the ground that his testimony or evidence
may tend to incriminate or subject him to a penalty or forfeiture; because the same Section
5 prohibits the use of such testimony or evidence which may tend to incriminate him in any
criminal prosecution that may be filed against him. The law or decree cannot diminish the
scope and extent of the guarantee against self-incrimination or the right to remain silent or
the right against being held to answer for a criminal offense without due process of law, or
against deprivation of his life, liberty or property without due process of law.
As a matter of fact, numerous decisions culled by American jurisprudence are partial to the
rule that immunity statutes which compel a citizen to testify, should provide an immunity
from prosecution that is as co-extensive, as total and as absolute as the guarantees
themselves (Jones Law on Evidence, Chapter XVIII, Section 863, pp. 1621-1623; Kastigar
vs. US 1972, 406 US 441).

Even if the witness testified pursuant to an invitation, the invitation does not remove the
veiled threat of compulsion, because as stated in the Chavez case, supra.
Compulsion as it is understood here does not necessarily connote the use of
violence; it may be the product of unintentional statements. Pressures which
operate to overbear his will, disable him from making a free and rational
choice, or impair his capacity for rational judgment would in our opinion be
sufficient. So is moral coercion attending to force testimony from the unwilling
lips of the defendant (Chavez vs. Court of Appeals, 24 SCRA 663, 679).
The summons issued to private respondents has been euphemistically called as an
invitation, instead of a subpoena or subpoena duces tecum, as a sign of respect for the
important and high positions occupied by private respondents. But the effect of such an
invitation thus worded is the same as a subpoena or subpoena duces tecum. Precisely, the
phraseology of Section 5 of P.D. 1886 entices the unsuspecting private respondents to
testify before the FFB, by dangling in the same Section 5 the assurance that their testimony
or the evidence given by them will not be used against them in a criminal prosecution that
may be instituted against them.
At the very least, their consent to testify was under such misapprehension. Hence, there
can be no clear, categorical, knowing and intelligent waiver of the right to remain silent,
against self-incrimination, against being held to answer for a criminal offense without due
process of law, and against being deprived of life, liberty or property without due process of
law under such misapprehension.
In any event, Section 5 of P.D. 1886 creates a doubt, which doubt is accentuated by the
difference of opinion thereon among the counsels in these cases and among members of
this Court. And it is basic in criminal law that doubts should be resolved liberally in favor of
the accused and strictly against the government.
The procedural due process both under Sections 1 and 17 of the Bill of Rights, Article IV of
the 1973 Constitution, simply means, in the language of Justice Frankfurter, the sporting
Idea of fair play. The FFB and its counsel did not inform the private respondents herein of
their right to remain silent and their right against self-incrimination, and that their testimonies
may be utilized against them in a court of law, before they testified. This is not fair to them,
and hence, they were denied procedural due process.
It should be stressed that the FFB was merely a fact-finding agency for the purpose of
gathering all the possible facts that may lead to the Identity of the culprit. Such testimonies
may provide leads for the FFB, its counsels and agents to follow up. The FFB and its
counsels cannot rely solely on such testimonies to be used against the private respondents
in these criminal cases. It should be recalled that the FFB had ample funds for the purpose
of accomplishing its object. As a matter of fact. it refunded several million pesos to the
government after it concluded its investigation. The Board and its counsel could have
utilized the said amount to appoint additional agents to look for witnesses to the
assassination. In this respect, the FFB counsel could be faulted in not utilizing the funds
appropriated for them to ferret out all evidence that will Identify the culprit or culprits. The
failure of the FFB's counsel to use said funds reflects on the initiative and resourcefulness

of its counsel. He could prosecute private respondents on evidence other than their
testimony and the evidence they gave before the FFB.
As heretofore stated, the private respondents were compelled to testify before the FFB
whether by subpoena or by invitation which has the effect of a subpoena as provided for in
Section 5 of P.D. 1886; because private respondents then believed, by reading the entire
Section 5, that the testimony they gave before the FFB could not be used against them in
the criminal cases subsequently filed before the Sandiganbayan. Because the Board was
merely a fact-finding board and that it was riot conducting a criminal prosecution the private
respondents were under the impression that there was no need for them to invoke their
rights to remain silent, against self-incrimination and against being held for a criminal
offense without due process of law.
It should be recalled that the counsel of the FFB after submitting the majority report, refused
to cooperate with the Tanodbayan in these cases with the pompous declaration that, after
submitting their majority report, he automatically became functus oficio. Was his refusal to
cooperate with, and assist, the Tanodbayan in the prosecution of these cases, born of the
realization that the FFB majority report is as weak as it was precipitate? And when the
Tanodbayan has now his back to the wall, as it were, by the ruling of the respondent
Sandiganbayan excluding the testimonies and other evidence of private respondents herein
on the ground that the use of their testimonies and other evidence will incriminate them, the
FFB counsel, without being requested by the Tanodbayan, now files a memorandum in
support of the position of the Tanodbayan. what is the reason for this turn-about to save his
report from the fire which they started with such enthusiasm?
As above emphasized, it is the duty of the police and the prosecuting authorities to respect
their rights under the Constitution as we stated in the recent Hildawa and Valmonte
cases, supra.
The grant of immunity under Section 5 of P.D. 1886 would be meaningless if we follow the
posture of petitioners herein. Such a posture would be correct if the phrase "after having
invoked his privilege against self- incrimination" were transposed as the opening clause of
Section 5 to read a follows "After having invoked his privilege against self-incrimination, no
person shall be excused from attending and testifying ... etc."
Said Section 5 has two clauses and contemplates two proceedings. The first clause from
"No person shall be excused ... etc." up to "penalty or forfeiture refers to the proceeding
before the FFB. The second clause after the semi-colon following the word "forfeiture which
begins with but his testimony or any evidence produced by him shall not be used against
him in connection with any transaction, matter, or thing concerning which he is compelled,
after having invoked his privilege against self-incrimination to testify . refers to a subsequent
criminal proceeding against him which second clause guarantees him against the use of his
testimony in such criminal prosecution, but does not immunize him from such prosecution
based on other evidence.
The private respondents herein, if the contention of the prosecution were sustained, would
be fried in their own fat. Consequently, the petition should be dismissed.

CONCEPCION, JR., J., concurring:

1. Let me preface my opinion by quoting from my dissent in Pimentel.

1. We are committed to the mandate of the Rule of Law. We resolve

controversies before Us without considering what is or what might be the
popular decision. No. We never do. We only consider the facts and the law.
Always the facts and the law.
2. The issue before Us is not I repeat not the guilt or innocence of Gen.
Fabian C. Ver, Major Gen. Prospero Olivas, and others for their alleged
participation in the assassination of former Senator Benigno S. Aquino, Jr.
3. The issue is: Are the testimonies given by them before the Agrava Board
admissible in evidence against them in their trial before the Sandiganbayan?
4. The issue therefore is purely a question of law. It involves the interpretation
of Sec. 5, P.D. No. 1886 and calls for the application of the Rule of Law.
5. Sec. 5, P.D. No. 1886 reads:
No person shall be excused from attending and testifying or from producing
books, records, correspondence, documents, or other evidence in obedience
to a subpoena issued by the Board on the ground that his testimony or the
evidence required of him may tend to incriminate him or subject him to
penalty or forfeiture; but his testimony or any evidence produced by him shall
not be used against him in connection with any transaction, matter or thing
concerning which he is compelled. after having invoked his privilege against
self-incrimination, to testify or produce evidence, except that such individual
so testifying shall not be exempt from prosecution and punishment for perjury
committed in so testifying, nor shall he be exempt from demotion or removal
from office.
6. This section means that any person who is invited or summoned to appear must obey
and testify as to what he knows. Even if the testimony tends to incriminate him he must
testify. Even if he claims his constitutional right against self-incrimination, he still must
testify. However, his testimony cannot be used against him in any subsequent proceeding,
provided that at the time it is being presented, he invokes his privilege against selfincrimination. His testimony, no matter what it may be, cannot in any way cause him harm.
The only exception is if the testimony he gave is false, in which case he can be prosecuted
and punished for perjury. He may also be demoted or removed from office.
7. The testimonies given by private respondents before the Agrava Board are therefore not
admissible against them in their trial before the Sandiganbayan, having invoked their
privilege against self-incrimination.

PLANA, J., concurring:

I would like to underscore some considerations underlying my concurrence:
1. According to the Constitution, no person shall be compelled to be a witness against
himself. But the law (PD 1886) which created the Agrava Board decrees that no person
shall be excused from testifying on the ground of self- incrimination. If the law had stopped
after this command, it would have been plainly at variance with the Constitution and void. lt
was to ward off such a Constitutional infirmity that the law provided for immunity against the
use of coerced testimony or other evidence, an immunity which, to be constitutionally
adequate, must give at least the same measure of protection as the fundamental guarantee
against self-incrimination.
2. Presidential Decree 1886 was not intended either to restrict or expand the constitutional
guarantee against self-incrimination. On the one hand, a law cannot restrict a constitutional
provision. On the other hand, PD 1886 was adopted precisely to coerce the production of
evidence that hopefully would unmask the killers of Senator Aquino, although the
compulsory process is accompanied by "use" immunity.
3. It is argued that the right against self- incrimination must have been invoked before the
Agrava Board if the use of evidence given therein against the witness in a subsequent
criminal prosecution is to be barred. I did not agree.
I fail to see why to preserve pursuant to law (PD 1886) one's constitutional right against selfincrimination, one has to offer resistance to giving testimony a resistance which the said law
itself says is futile and cannot prevail, as no witness by its specific injunction can refuse to
testify.
4. The constitutional right against self-incrimination may be waived expressly. It may also be
waived impliedly by speaking when one has the option to hold his tongue. Waiver by
implication presupposes the existence of the right to keep silent. Thus, when one speaks
because the law orders him to do so, his action is not really voluntary and therefore his
testimony should not be deemed an implied waiver of his constitutional right against selfincrimination.
5. Presidential Decree 1886 does not give private respondents absolute immunity from
prosecution, It only bars the use against them of the evidence that was elicited from them
by the Agrava Board. If there are other evidence available, private respondents are subject
to indictment and conviction.
6. Moreover, the evidence given to the Agrava Board is not, in my view, completedly
immunized. What PD 1886 bars from use is only the testimony of the witness who testified
before the Agrava Board and whatever was presented as part of his testimony, as such. PD
1886 could not have intended to convert non-confidential official documents into shielded
public records that cannot be used as evidence against private respondents, by the mere
fact that they were admitted in evidence as part of private respondents' testimony before the

Agrava Board. In other words, evidence otherwise available to the prosecution, such as
official documents, do not become barred just because they have been referred to in the
course of the testimony of private respondents and admitted in evidence as part of their
testimony They may still be subpoenaed and offered in evidence. Conceivably, some
objections might be raised; but the evidence will be unfettered by the exclusionary rule in
PD 1886.

ESCOLIN, J., concurring:

I concur in the dismissal of the petitions. The admission in evidence of the testimonies of
private respondents given before the Agrava Board would constitute a violation of their right
against self- incrimination guaranteed under Section 20, Article IV of the Constitution. I
subscribe to the majority view that Section 5 of P.D. 1886 cannot be constitutionally tenable,
unless a grant of immunity is read into it vis-a-vis the compulsion it imposes upon a witness
to testify. Otherwise stated, Section 5 of P.D. 1886 should be interpreted as an immunity
statute, which, while depriving one of the right to remain silent, provides an immunity from
prosecution that is as co-extensive, as total and as absolute as the guarantees themselves.
(Jones Law on Evidence, Chapter XVIII, Section 863, pp. 1621-1623, Kastigar v. U.S.,
1972, 406 US 441).
Clearly, this is how the private respondents understood the legal provision under
consideration. For ably assisted as they were by counsel, they would not have allowed
themselves to be deliberately dragged into what the Chief Justice would call a "booby trap".
Viewed from another angle, therefore, it could not be truly said that private respondents had
waived their right against self- incrimination in a manner that is clear, categorical, knowing
and intelligent. (Johnson v. Zerbst, 304 US 458, 464, cited in Abriol v. Homeres, 84 Phil. 525
and Chavez v. CA, 24 SCRA 663).

GUTIERREZ, JR., J., concurring:

I concur in the majority opinion penned by Justice Serafin R. Cuevas and in the pithy
separate opinion of Justice Nestor B. Alampay but would like to add some personal
observations.
This case furnishes an opportunity to appreciate the workings of our criminal justice system.
The prosecutions which led to this petition serve as a timely reminder that all of us-civilian
or military, layman or judge, powerful or helpless- need the Bill of Rights. And should the
time ever come when like the respondents we may have to invoke the Constitution's
protection, the guarantees of basic rights must be readily available, in their full strength and
pristine glory, unaffected by what is currently popular or decreed and heedless of whoever
may be involved

In many petitions filed with this Court and lower courts, the military has often been charged
with riding roughshod over the basic rights of citizens. Officers and enlisted men in the
frontlines of the fight against subversion or rebellion may, in the heat of combat, see no
need to be concerned over such ,niceties" as due process, unreasonable searches and
seizures, freedom of expression, and right to counsel. They are best reminded that these
rights are not luxuries to be discarded in times of crisis. These rights are the bedrock of a
free and civilized society. They are the reason why we fight so hard to preserve our system
of government. And as earlier stated, there may come times when we may have to
personally invoke these basic freedoms for ourselves. When we deny a right to an accused,
we deny it to ourselves.
The decision of the Court underscores the importance of keeping inviolate the protections
given by the Bill of Rights. Acts which erode or sacrifice constitutional rights under seductive
claims of preserving or enhancing political and economic stability must be resisted. Any
lessening of freedom will not at all increase stability. The liberties of individuals cannot be
preserved by denying them.
The dividing line between legitimate dissent or opposition on one hand and subversion or
rebellion on the other may be difficult to pinpoint during troubled times. The lesson of this
petition is that those charged with suppressing the rebellion and those who sit in courts of
justice should ever be vigilant in not lumping legitimate dissenters and rebels together in
one indiscriminate classification.
An abiding concern for principles of liberty and justice is especially imperative in periods of
crisis and in times of transition. And all persons from the mighty to the lowy must be given
the fullest measure of protection under the Bill of Rights if our constitutional guarantees are
to have any meaning.
In addition to the right against self- incrimination, of not being compelled to be a witness
against one's self, so ably discussed by Justice Cuevas in the Court's opinion, I am
constrained by considerations of basic fairness to vote against granting the petition.
The private respondents were called to testify before the Agrava Commission. The decree
creating the commission stated that no person may refuse to attend and testify or to
produce evidence before it on the ground that what he says or produces may incriminate
him. But since the witness is compelled to give all he knows or possesses in effect shorn by
law of his right not to incriminate himself the decree states that the evidence wrung from
that witness may not be used against him later. This is, simply speaking, what the petition is
all about.
The respondents may be prosecuted as indeed they have been prosecuted. They may
eventually be convicted if the evidence warrants conviction. however, they may not be
convicted solely on the evidence which came from their own mouths or was produced by
their own hands. The evidence must come from other sources. It would be the height of
unfairness and contrary to due process if a man is required to state what he knows even if it
would incriminate him, is promised immunity if he talks freely, and is later convicted solely
on the testimony he gave under such a promise of immunity.

I believe that P.D. 1886 is the first Immunity Act to be enacted in the Philippines. It may be
relevant, therefore, to refer to American decisions expounding on immunity statutes, more
so when a comparison of P.D. 1886 with such statutes as the U.S. Immunity Act of 1954, 68
Stat. 745, 18 U.S.C.A. Section 3486, shows a similarity in the protection given by the
statutes.
The U.S. Immunity Act of 1954 was enacted to assist federal grand juries in their
investigations of attempts to endanger the national security or defense of the United States
by treason, sabotage, espionage, sedition, seditious conspiracy, and violations of various
laws on internal security, atomic or nuclear energy, and immigration and nationality. The law
stated that a witness shall not be excused from testifying or from producing books, papers,
or other evidence on the ground that it may tend to incriminate him or subject him to a
penalty or forfeiture. The statute then provides:
But no such witness shall be prosecuted or subjected to any penalty or
forfeiture for or on account of any transaction, matter, or thing concerning
which he is compelled, after having claimed his privilege against selfincrimination, to testify or produce evidence nor shall testimony so compelled
be used as evidence in any criminal proceeding ... against him in any court.
The American statute provides immunity against prosecution, penalties, and use of the
testimony. P.D. 1886 is of more limited scope. Only the use of the compelled testimony is
proscribed. The witness may still be prosecuted but the prosecution will have to look for
evidence other than the words of the accused given before the Agrava Commission.
In Brown v. Walker (161 U.S. 591) the U.S. Supreme Court was confronted with the validity
of the 1893 Immunity Act. Brown was subpoenaed to testify before a grand jury
investigating railroad anomalies. lie refused to testify on grounds of self- incrimination,
arguing that the Immunity Act compelling him to testify was unconstitutional. The Court ruled
that "(W)hile the constitutional provision in question is justly regarded as one of the most
valuable prerogatives of the citizen, its object is fully accomplished by the statutory
immunity and we are therefore of opinion that the witness was compellable to answer." In
other words, the statutory immunity takes the place of the invocation of the constitutional
guarantee. There is no need at the time of taking testimony to invoke the Fifth Amendment
because it would be denied any way and the witness would be compelled to testify. It would
be absurd to invoke a protection which cannot be availed of when compelled to testify. The
time to invoke the immunity is when the testimony is being used contrary to the granted
immunity. Protected by the statutory immunity, a witness cannot even insist on his right to
remain silent when testifying.
In Ullmann v. United States (350 U.S. 422), the court interpreted the Immunity Act of 1954
and stated.
xxx xxx xxx
... Since that time the Court's holding in Brown v. Walker has never been
challenged; the case and the doctrine it announced have consistently and
without question been treated as definitive by this Court, in opinions written,

among others, by Holmes and Brandeis, Justices. See, e.g., McCarthy v.

Arndstein 226 U.S. 34, 42; Heike v. United States, 227 U.S. 131, 142. The
1893 statute has become part of our constitutional fabric and has been
included in substantially the same terms, in virtually all of the major regulatory
enactments of the Federal Government.' Shapiro v. United States, 335 U.S. 1,
6. For a partial list of these statutes, see, Id., 335 U.S. at pages 6-7, note 4.
Moreover, the States, with one exception a case decided prior to Brown v.
Walker have, under their own constitutions, enunciated the same doctrine, 8
Wigmore, Evidence (3d ed.), 2281, and have passed numerous statutes
compelling testimony in exchange for immunity in the form either of complete
amnesty or of prohibition of the use of the compelled testimony. For a list of
such statutes, see 8 Wigmore, Evidence (3d ed.), 2281, n. 11 (pp. 478-501)
and Pocket Supplement thereto, 2281, n. 11 (pp. 147-157). (Emphasis
supplied)
xxx xxx xxx
It is interesting to note how the American Supreme Court in Ullmann treated the immunity
not only against the use of the testimony (as under P.D. 1886) but even against prosecution.
xxx xxx xxx
Petitioner, however, attempts to distinguish Brown v. Walker. He argues that
this case is different from Brown v. Walker because the impact of the
disabilities imposed by federal and state authorities and the public in general
such as loss of job, expulsion from labor unions, state registration and
investigation statutes, passport eligibility and general public opprobrium-is so
oppressive that the statute does not give him true immunity. This, he alleges,
is significantly different from the impact of testifying on the auditor in Brown v.
Walker, who could the next day resume his job with reputation unaffected.
But, as this Court has often held, the immunity granted need only remove
those sanctions which generate the fear justifying the invocation of the
privilege 'The interdiction of the other Amendment operates only here a
witness may possibly expose him to a criminal charge. But if the criminality
has already been taken away, the amendment ceased to apply.' Hale v.
Henkel 201 U.S. 43, 67. Here, since the Immunity Act protects a witness who
is compelled to answer to the extent of his constitutional immunity, he has of
course, when a particular sanction is sought to be imposed against him, the
right to claim that it is criminal in nature. (Emphasis supplied).
In United States v. Murdock (284 U.S. 141), the court ruled that "the principle established is
that full and complete immunity against prosecution by the government compelling the
witness to answer is equivalent to the protection furnished by the rule against compulsory
self-incrimination.
P.D. 1886, being an immunity statute should not be given a strained or absurd interpretation
in order to achieve a certain result. If the immunity given by the decree is equivalent to the
protection furnished by the right against self- incrimination, then, paraphrasing Justice

Frankfurter in Ullmann, the same protection given by one of the great landmarks in man's
struggle to make himself civilized must not be interpreted in a hostile or niggardly spirit,
xxx xxx xxx
... Too many, even those who should be better advised, view this privilege as
a shelter for wrongdoers. They too readily assume that those who invoke it
are either guilty of crime or commit perjury in claiming the privilege. Such a
view does scant honor to the patriots who sponsored the Bill of Rights as a
condition to acceptance of the Constitution by the ratifying States. The
Founders of the Nation were not naive or disregard ful of the interest of
justice ...
I, therefore, join the majority in dismissing the petition.

DE LA FUENTE, J., concurring:

No person shall be compelled to be a witness against himself." 1 This basic right
against self- incrimination, which supplanted the inquisitorial methods of interrogating the
accused as practiced during the Spanish regime, has become an indispensable part of
our laws since 1900. Pursuant thereto, an accused in a criminal case has the right not
only to refuse to answer incriminating questions but also to refuse to take the witness
stand. He cannot be compelled even to utter a word in his defense. 2 As stressed
in Chavez vs. Court of Appeals, 3 the rule may otherwise be stated as the constitutional
right of the accused to remain silent. " The accused can forego testimony 4 without any
adverse implication drawn from his decision to do so, The burden is on the State to
establish the guilt of the accused beyond reasonable doubt; the prosecution must look
elsewhere for other "evidence independently and freely secured," The rule forbids what
has been considered as "the certainly inhuman procedure of compelling a person 'to
furnish the missing evidence necessary for his conviction'." According to Justice Harlan, it
was intended "to shield the guilty and imprudent as well as the innocent and
foresighted." 5 Transplanted in this country with the advent of American sovereignty 6 and
firmly imbedded in our fundamental law, 7 the said privilege against compulsory selfincrimination, which is predicated on grounds of public policy and humanity, 8 "is
fundamental to our scheme of justice" 9 and is one of the procedural guarantees of our
accusatorial system.

1. As I see it, what the prosecution proposed to do in these cases was to present, as
evidence of the alleged accessorial acts of private respondents, the transcripts of their
respective testimonies before the Agrava Board. Confronted by the apparent unwillingness
of said respondents to be called to the witness stand in subsequent criminal proceedings,
the prosecution sought to put into the record of these criminal cases (in lieu of private
respondents' testimonies) the said transcripts and other evidence given by them in the
course of their testimony before the Agrava Board. If allowed over and despite private
respondents' objection, this would be a clear infringement of the constitutional guarantee
that they can invoke in said criminal proceedings, as all of them did. Since the prosecution
cannot require said respondents to testify in the criminal cases before the Sandiganbayan, it
stands to reason that it is equally disabled from indirectly compelling respondents to give

evidence against themselves by using their Agrava Board testimonies. The prosecution
must present evidence "derived from a legitimate source wholly independent of the
compelled testimony." 10
2. It is contended, however, that these self- incriminatory testimonies were given voluntarily
because they did not claim the constitutional guarantee before or while giving testimony to
the Agrava Board. Voluntariness, I think. cannot be inferred simply from such failure to
invoke the privilege. There was no fair warning or notice to the declarant that his testimony
would be used against him if incriminatory, unless the privilege is invoked beforehand or
during his testimony. If they were properly warned and still gave testimony without t invoking
the privilege, then it would be clear that they knowingly waived the privilege. Otherwise, it
meant at the most a willingness on their part to help the Agrava Board in its fact-finding
investigation without waiving (a) the immunity granted by law, and (b) the constitutional
guarantee against self- incrimination in case of subsequent prosecution based on their selfincriminatory testimony. For waiver, it is wellsettled, to be effective. "must be certain,
unequivocal and intelligently, understandably and willingly made. " 11 Mere submission to an
illegal search or seizure "is not consent or waiver of objection. 12 The prosecution has the burden to prove
otherwise. The same standard should be observed in self-incrimination cases.

PD No. 1886 (as amended), which created that "independent ad hoc fact-finding Board,"
vested it with "plenary powers to determine the facts and circumstances surrounding the
killing [of former Senator Aquino] and to allow for a free, unlimited and exhaustive
investigation into all aspects of said tragedy." In consonance with these objectives, the law
declared that the privilege was unavailable to an Agrava Board "witness", as follows: "No
person shall be excused from attending and testifying or from producing other evidence on
the ground that his testimony or any evidence requested of him may tend to incriminate him,
" 13 etc. At the same time, the Board was empowered to summarily hold and punish any person in direct
contempt for "refusal to be sworn or to answer as a witness," its judgment being "final and unappealable."

Quite plainly, the constitutional right against compulsory self-incrimination could not be
invoked by Agrava Board witnesses, The privilege was suspended or temporarily taken
away for purposes of the investigation, in order that the Board would have access to all
relevant evidence and all sources of information, not excluding compelled incriminatory
statements of probable and possible or potential defendants. An Agrava Board witness was,
under the terms of the quoted provision, placed in a dilemma: (1) to answer truthfully all
questions including those tending to be self-incriminatory, since he cannot invoke the
privilege; (2) to lie and become liable criminally for perjury; and (3) to insist on his right to
remain silent and be summarily punished by the Board for direct contempt. It is plain that
such a witness was under compulsion to give self-incriminatory testimony. It was not
voluntary. Precisely because of its coerced nature (an infringement of his constitutional right
against self- incrimination), PD No. 1886 promised. in exchange or as a substitute for the
privilege, limited immunity (as provided in the next succeeding clause, same section), to wit:
... but his testimony or any evidence produced by him shall not be used
against him in connection with any transaction, matter or thing concerning
which he was compelled, after having invoked his privilege against selfincrimination, to testify or produce evidence. 14

Such immunity 15 would bar the prosecution's use against the witness of his said testimony in
subsequent criminal proceedings (wherein he is charged with offenses related to his testimony).
Nevertheless, this would not operate to change the involuntary nature of his self- incriminatory testimony.
As far as the witness is concerned, it was "coerced", not freely given, because he was not fully accorded
the "liberty of choice." The law withheld his basic freedom to choose between testifying and remaining
silent without the risk of being punished for direct contempt to forego testimony which could possibly be to
his detriment.

3. I cannot agree with the proposition that the privilege should be invoked by the witness
before or while giving testimony to the Agrava Board. Section 5 should be reasonably
construed and fairly applied to the cases at bar, in the light of the accused's constitutional
right against compulsory self- incrimination. The formula of limited-immunity in-lieu-of-theprivilege contained in said section rendered unnecessary or superfluous, the invocation of
the privilege before the Board. Under said formula, the witness was deprived of the privilege
to protect himself against inquisitorial interrogation into matters that a targeted defendant or
virtual respondent can keep to himself in ordinary investigations or proceedings.
Even if the provision is susceptible of an interpretation in support of the petitioner's stand, it
appears that the time for invoking the privilege is not clear enough or certain from the
language of the law. Equally plausible and logical is the contrary view that it may be invoked
later on when it became apparent that the prosecution intended to use the testimony given
before the Board to secure conviction of the declarant in the subsequent criminal
proceedings. The privilege cannot be deemed waived by implication merely as a
consequence of failure to claim it before the Board. It bears emphasis that the right of an
accused "witnesses" against compulsory self-incrimination is predicated on the
constitutional guarantee, not on the special law in question.
3. In the United States, the generally accepted approach in Fifth Amendment Cases
(involving the constitutional guarantee under consideration) was stated as follows
in Johnson vs Zerbst:" 16 It has been pointed out that 'courts indulge in every reasonable presumption
against a waiver of the fundamental rights and that we do not presume acquiescence in the loss of such
fundamental rights.'" Because, as Dean Griswold of Harvard Law School (later, Solicitor General of the
United States) eloquently puts it:

[T]he privilege against self-incrimination is one of the great landmark,s in

man's struggles to make himself civilized ... [W]e do not make even the most
hardened criminal sign his own death warrant, or dig his own grave ... We
have through the course of history developed a considerable feeling of the
dignity and intrinsic importance of the individual man. Even the evil man is a
human being. 17
In this jurisdiction, more than four decades ago, the late Justice Jose P. Laurela nationalist,
constitutionalist and eminent jurist, whose incisive and authoritative opinions on
constitutional questions are often cited by the bench and the bar- voted to sustain a claim of
the constitutional guarantee in Bermudez vs. Castillo. 18 In his concurrence, he said inter alia:
(1) As between two possible and equally rational constructions, that should
prevail which is more in consonance with the purpose intended to be carried

out by the Constitution. The provision ... should be construed with the utmost
liberality in favor of the right of the individual intended to be secured. ...
(2) I am averse to the enlargement of the rule allegedly calculated to gauge
more fully the credibility of a witness if the witness would thereby be forced to
furnish the means for his own destruction. Unless the evidence is voluntarily
given, the policy of the constitution is one of protection on humanitarian
considerations and grounds of public policy...
(3) The privilege should not be disregarded merely because it often affords a
shelter to the guilty and may prevent the disclosure of wrongdoing. Courts
can not, under the guise of protecting the public interest and furthering the
ends of justice, treat a sacred privilege as if it were mere excrescence in the
Constitution. (Emphasis supplied; at page 493.)
In sum, considering the pertinent legal provisions and judicial pronouncements as well as
the climate prevailing when the private respondents testified before the Agrava Board, I find
it unavoidable to reach the conclusion that they did so under legal, moral and psychological
compulsion. Their compelled testimonies before the Agrava Board cannot thereafter be
used against them in the cases at bar in view of the immunity granted by P.D. No. 1886.
They were not obliged to invoke then and there the constitutional guarantee. If they did, that
would have sufficed to afford them adequate protection. If they did not, they could do so
later on when the Government prosecutors (in spite of the statutory grant of immunity)
decided in the subsequent criminal proceedings, to use against them their Agrava Board
testimonies. For, as earlier stated, there was no intelligent and knowing waiver on their part
of their constitutional right against self-incrimination.
Accordingly, and for other reasons well stated in the main separate concurring opinions, I
vote to dismiss the petitions.

ALAMPAY, J., concurring:

I vote for the dismissal of the petition in these consolidated cases.
What appears to be the basic and principal issue to which the consideration of the Court is
addressed to is the singular question of whether testimonies adduced by the private
respondents before the Ad Hoc Agrava Fact Finding Board and sought to be introduced
against them in the Sandiganbayan wherein they have been accused were rightfully
excluded as evidence against them.
I find untenable the insistence of the petitioner Tanodbayan that the private respondents
should have claimed the right against self-incrimination before the said Fact Finding Board
and that having omitted doing so, the said privilege afforded to them by law can no longer
be invoked by them before the Sandiganbayan.

The right claimed by private respondents rests on the fundamental principle that no person
shall be compelled to be a witness against himself as so stated in our Constitution and from
the fact that Section 5 of P.D. 1886 disallows the use against him of such testimony or any
evidence produced by him before the said Fact Finding Board, except for perjury. Petitioner
argues however, that there was a waiver of this right to self-incrimination when respondents
proceeded to give their testimonies on various dates before the Agrava Fact Finding Board
without formally invoking on said occasions their right against self-incrimination.
As private respondents could not have excused themselves from testifying before said
Board as clearly emphasized in the very first clause of Section 5 of P.D. 1886, and as at that
point of time, there was no reason for the declarant to anticipate or speculate that there
would be any criminal charge or any proceeding instituted against them, it would therefore,
be unnatural and illogical to expect that private respondents would even contemplate the
need of prefacing their declarations with an invocation before the Fact Finding Board of their
privilege against self-incrimination.
In fact for a declarant to announce his claim of the aforestated privilege prior to or while
testifying before said Fact Finding Board, would irresistibly create an inference and convey
an impression that said witness is burdened with his own awareness that he stands already
incriminated in some wrong. To insist therefore, even in the absence yet of any proceeding
against him, that the witness invoke the said privilege before the Agrava Fact Finding
Board, would be obviously self-demeaning. Such an effect could not have been intended by
Section 5 of P.D. 1886, which was even meant to grant to the witness a benefit rather than a
burden. It is more reasonable therefore, to conclude that the privilege against selfincrimination would be accorded to said witness after he has invoked the same in a
subsequent proceeding wherein he has been charged of a wrong doing, except in a case
for perjury. It is only at such time when the necessity of invoking the mantle of the privilege
or the immunity afforded to him by law would arise.
It cannot also be rightfully concluded that private respondents had intentionally relinquished
or abandoned the said right which they claimed before the Sandiganbayan. The fact that the
issue of when and before what forum should such claim to the right against selfincrimination be necessarily presented has provoked much discussion and debate because
of divergent views. This has even prompted the submissions to the Court of opinions of
amicus curiae or friends of the court as to how Section 5 of Presidential Decree 1886
should be construed and applied which are however different from and contrary to the views
expressed by the Justices of the Sandiganbayan and other legal luminaries. These
conflicting views negate the proposition that there was an effective waiver made by the
private respondents of their rights.
It has earlier been stated by this Court that to be effective, such waiver must be certain and
unequivocal and intelligently, understandably and willingly made. (Chavez vs. Court of
Appeals, et al., 24 SCRA 663). In the same cited case, it has been stated that courts
indulge in every reasonable presumption against waiver of fundamental constitutional rights
and that we do not presume acquiescence in the loss of fundamental rights (Citing Johnson
vs. Zerbst 304 U.S. 458, 464, 82 L. ed. 1461, 1466). Furthermore, whether the alleged
waiver is express or implied, it must be intentional. (Davison vs. Klaess 20 N.E. 2d. 744,
748, 280 N.Y. 252; 92 CJS, 1058).

I find it difficult to accept that private respondents had at any time, ever intended to
relinquish or abandon their right against self-incrimination.

PATAJO, J., concurring:

I vote for the dismissal of the petition in these consolidated cases. Said petitions do not
merit being given due course and should be dismissed outright.
I hold the view that the testimonies and evidence given before the Agrava Board are
inadmissible as evidence against those who testified or gave said evidence irrespective of
whether said persons were subpoenaed or invited. I believe it is not a condition sine
quo non to the non-admissibility of said evidence that at the time they testified or gave
evidence before the Agrava Board that they had invoked their privilege against selfincrimination.
The Agrava Board was created as an independent ad hoc fact finding board to determine all
the facts and circumstances surrounding the assassination of former Senator Benigno S.
Aquino, Jr. on August 21, 1983. It was given plenary powers to allow for a free, unlimited
and exhaustive investigation into all the aspects of said tragedy. It was given the power to
issue subpoena or subpoena duces tecum and "other compulsory processes" requiring the
attendance and testimony of witnesses and the production of any evidence relative to any
matter under investigation by said Board.
Those who have been subpoenaed to appear and testify or produce any documentary
evidence before the Board shall not be excused from testifying or presenting evidence
before said Board on the ground that their testimony or evidence may tend to incriminate
them or subject them to penalty or forfeiture. I believe an invitation from the Board is as
much a compulsory process 1 to appear and testify before the Board as a subpoena and one
receiving said invitation cannot also excuse himself from appearing and testifying before the Board.
Petitioners appear to share this view when they said in subparagraph (c), paragraph 7 of their petition in
G.R. No. L-71208-09.

(c) People were either invited or issued subpoenas, depending upon their
rank and office, to give testimony before the Board and among those invited
were respondents General Fabian C. Ver and Major General Olivas while the
rest of the military respondents were issued subpoenas.
Unquestionably, it was the intention of the decree creating the Board to investigate the
Aquino assassination to encourage all who have some information on any "aspect of said
tragedy" to furnish the Board said information whether they are subpoenaed or issued other
forms of compulsory process such as an invitation and to do so without fear that what they
will say may be used against them. It is in this context that Section 5 of PD No. 1886 should
be viewed. When they testified before the Board, they were given full assurance that
whatever they say before the Board will not be used against them. Only if they testify falsely
that they may be prosecuted for perjury. This is to prevent people from preventing the Board

from finding out the truth about the Aquino assassination by giving false leads or information
for ulterior reasons.
Actually Section 5 of PD No. 1886 falls under that category of statutes which do not
pronounce an entire immunity by forbidding punishment or prosecution for any testimony or
evidence given in connection with the investigation of certain offenses more widely known
as immunity statutes, but merely prohibit in any criminal prosecution the use of the
testimony of the witness. Immunity statutes as well as statutes prohibiting the use of
testimony in any subsequent criminal prosecution have been the expedients resorted for the
investigation of many offenses, chiefly those whose proof or punishment were otherwise
impracticable because of the implication in the offense itself of all who could bear useful
testimony.
The expediency and practical utility of this mode of obtaining evidence may
as a measure of legislation, be open to argument. But the tradition of it as a
lawful method of annulling the privilege against self-incrimination is
unquestioned in English history." ignore on Evidence, Vol. III, p. 469.
Speaking of this kind of privilege of non-admission of testimony given by the witness in
subsequent prosecutions as allowed by the common law and modified by subsequent
statutes, State vs. Quarles 13 Ark 307, 311, said:
The privilege in question, in its greatest scope, as allowed by the common
law and no one, be he witness or accused, can pretend to claim it beyond its
scope at the common law never did contemplate that the witness might not
be proved guilty of the very crime about which he may be called to testify; but
only that the witness should not be compelled to produce the evidence to
prove himself guilty of that crime. His privilege, therefore, was not an
exemption from the consequences of a crime that he might have committed;
but only an exemption from the necessity of himself producing the evidence
to establish his own crime ... So long as it might be lawful to produce in
evidence against an accused party whatever he might before have voluntarily
said as a witness on a prosecution against another, there were no means by
which the privilege could be made available short of a claim by the witness to
be silent; and as that was the rule of the common law, this was the commonlaw mode of making the privilege available. And that silence was but a mode
of making the privilege available, and was not of the essence of the privilege
itself, is conclusively proven by all that current of enlightened authority, to
which we yield our fullest assent, which holds that the privilege has ceased
when the crime has been pardoned, when the witness has been tried and
acquitted, or is adjudged guilty, or when the prosecution, to which he was
exposed, has been barred by lapse of time ... But the Legislature has so
changed the common-law rule, by the enactment in question in the
substitution of a rule that the testimony required to be given by the act, shall
never be used against the witness for the purpose of procuring his conviction
for the crime or misdemeanor to which it relates, that it is no longer necessary
for him to claim his privilege as to such testimony, in order to prevent its being
afterwards used against him. And the only question that can possibly arise

under the present state of the law, as applicable to the case now before us, is
as to whether our statutory regulations afford sufficient protection to the
witness, responsive to this new rule and to his constitutional guarantee
against compulsory self-accusation ...
Considering the objectives sought to be achieved by PD No. 1886 the provision thereof
making testimony and evidence given before the Board inadmissible in evidence against the
ones giving the same, provides protection beyond that granted by the Constitutional
provision against self- incrimination, otherwise it will be constitutionally
suspect. Counselman vs. Hitchcock, 142 US 547, 35 L Ed 1110.
Of relevance are the observations of the District Court, N.D. Illinois, in United States vs.
Armour & Co., 112 Fed 808, 821, 822:
All of these immunity acts are relied upon by the individual defendants, and,
while expressed in, slightly varying language, they all mean the same thing,
and each of them is a substitute for the privilege contained in that clause of
the fifth amendment to the Constitution, reading:
'Nor shall any person be compelled in any criminal case to be a witness against himself.'
This fifth amendment deals with one of the most cherished rights of the
American citizen, and has been construed by the courts to mean that the
witness shall have the right to remain silent when questioned upon any
subject where the answer would tend to incriminate him. Congress by the
immunity laws in question, and by each of them, has taken away the privilege
contained in the amended it is conceded in argument that this cannot be done
without giving to the citizen by way of immunity something as broad and
valuable as the privilege thus destroyed We are not without authority on this
question. By a previous act, Congress undertook to take away the
constitutional privilege by giving the citizen an equivalent, and the Supreme
Court held in the case of Counselman v. Hitchcock 142 U.S. 547, 12 Sup. Ct.
195, 35 I Ed., 1110, that the substitution so given was not an equivalent.
Then, at various times, the immunity acts in question were passed by
Congress with full knowledge that in furnishing a substitute for this great right
of the citizen, it must give something as broad as the privilege taken away. It
might be broader, but it could not be narrower.
Now, in my judgment, the immunity law is broader than the privilege given by
the fifth amendment, which the act was intended to substitute. The privilege of
the amendment permits a refusal to answer. The act wipes out the offense
about which the witness might have refused to answer. The privilege permits
a refusal only as to incriminating evidence. The act gives immunity for
evidence of or concerning the matter covered by the incident and the
evidence need not be self-incriminating. The privilege must be personally
claimed by the witness at the time. The immunity flows to the witness by
action of law and without any claim on his part. Brown v. Walker, 161 U.S.
591, 16 Sup. Ct. 644, 40 L. Ed. 819; Hale vs. Henkel (recently decided) 26

Sup. Ct. 370, 50 L. Ed. -; State v. Quarles 13 Ark. 307, quoted in 142 U.S.
567, 12 Sup. Ct. 199 (35 L. Ed. 1110); People Sharp, 107 N.Y. 427, 14 N.E.
319, 1 Am. St. Rep. 851; Brown v. Walker approved in Lamson v. Boyden,
160 I11. 613, 620, 621, 43 N.E. 781: People v. Butler, St. Foundry, 201 I11.
236, 248, 66 N.E. 349.
I am further of opinion that the immunity given by the act must be as broad as
the liabilities imposed by the act. The act calls upon the citizen to answer any
'lawful requirement' of the Commissioner. 'Require' means to ask of right and
by authority. Webster's Dictionary. Tenn. Coal Co. v. Saller (C.C.) 37 Fed.
545, 547. Anything is a requirement by a public officer which brings home to
the person called upon that the officer is there officially and desires
compliance. 'Demand' and' require' are synonymous. Miller v. Davis, 88 Me.
454, 34 Atl. 265. The citizen may be punished for refusal to answer such
lawful requirement. I am of opinion that when the Commissioner of
Corporations, who has power to compel, makes his demand, it is the duty of
the witness to obey.
The contention has been made that in order to get immunity the citizen shall
wait until the compulsion becomes irresistible. That is the effect of the
government contention. I am not able to bring my mind to accept that
doctrine. If I am right in saying that immunity flows from the law l, without any
claim on the part of the defendant and at different times that has been
conceded here in argument then no act of any kind on his part which amounts
to a claim of immunity, which amounts to setting up a claim of immunity is
demanded by the law. The law never puts a premium on contumacy. A person
does not become a favored citizen by resistance to a lawful requirement. On
the contrary, the policy of the law favors the willing giving of evidence
whenever an officer entitled to make a demand makes it upon a citizen who
has no right to refuse. And it would be absurd and un-American to favor the
citizen who resists and places obstacles in the way of the government as
against the citizen who, with a full knowledge of the law, obeys without
resistance the demand of an officer who has the legal right to make the
demand for something which the citizen has no legal right to refuse. This,
then, is the proposition to which we are led. When an officer, who has a legal
right to make a demand, makes such demand upon a citizen who has no
legal light to refuse, and that citizen answers under such conditions, he
answers under compulsion of the law.
There is no merit then to the contention that private respondents should be invoked the
privilege against self-incrimination before the Agrava Board for precisely PD No. 1886 had
explicitly provided that the testimony of those who testified before the Board can not be
used against them. It will be a meaningless act of supererogation to require that said
witnesses before answering any question addressed to them must invoke their privilege
against self-incrimination. The phrase "after having invoked his privilege against selfincrimination" in Section 5 of PD No. 1886 to be consistent with the intention of said decree,
should refer to the time that the testimony of the witness will be used against him in another
proceeding, such as the cases now pending before the Sandiganbayan. It could not refer to

the proceedings before the Agrava Board because no one is being accused before said
Board and no matter how self-incriminating the testimony of said witness is, he runs no risk
of being prejudiced, much less convicted by the Agrava Board. It is in the prosecution of
cases based on the report of said Board that the witness should invoke his right against
self-incrimination. These private respondents did just that when they moved for the
exclusion in evidence of their statement before the Agrava Board. Any other interpretation
would defeat the very purpose of PD No. 1886.

TEEHANKEE, J., dissenting:

The majority decision is based on erroneous premises, viz. what the case at bar presents a
"novel question;" that "this Court has not been previously called upon to rule on issues
involving immunity statute" and is burdened with the monumental task" of "laying the criteria
... (to) build future jurisprudence on a heretofore unexplored area of judicial inquiry." 1 The
fact is that we have a wealth of settled jurisprudence and precedents, Philippine and foreign, that control
the determination of the simple issue at bar and call for the setting aside of the exclusion order issued by
respondent court (Sandiganbayan) which wrongly rules as totally and absolutely inadmissible the
testimonies given by private respondents General Ver and Olivas and their six co- respondents (all
charged as accessories) as well as all the documents, records and other evidence produced by them
before the Fact-Finding Board, notwithstanding that all were represented by counsel 2 and none of them
invoked the privilege or right against self- incrimination or made any claim or objection at the time of his
testimony before the Board that any question propounded to him and which he willingly answered called
for an incriminating answer against himself.

The following vital considerations based on settled jurisprudence and precedents show that
respondent court acted with gross error and misconception of the applicable principles of
the right against self-incrimination:
1. Respondent court grossly disregarded the settled guidelines laid down for trial courts by
this Court of Appeal vs. Paylo 3 thru Mr. Justice J.B.L. Reyes, speaking for a unanimous Court, Chat
By so doing [ordering the exclusion of the proferred confessions of the two
accused upon a ground not raised by counsel but motu proprio by the trial
court, i.e. lack of independent proof of conspiracy] the [trial] court overlooked
that the right to objection is a mere privilege which the parties may waive; and
if the ground for objection is known and not seasonably made, the objection is
deemed waived and the [trial] court has no power, on its own motion, to
disregard the evidence (Marella vs. Reyes, 12 Phil. 1) ... Suffice it to say that
the lower court should have allowed such confessions to be given in evidence
at least as against the parties who made them, and admit the same
conditionally to establish conspiracy, in order to give the prosecution a chance
to get into the record all the relevant evidence at its disposal to probe the
charges. At any rate, in the final determination and consideration of the case,
the trial court should be able to distinguish the admissible from the
inadmissible, and reject what, under the rules of evidence, should be
excluded.

Trial courts should be liberal in the matter of admission of proof and avoid the premature
and precipitate exclusion of evidence on doubtful objections to its admissibility, citing the
Court's long-standing basic ruling and policy in Prats & Co. vs. Phoenix Ins. Co. 4 that
reception and admission of evidence objected to on doubtful or technical grounds is ultimately the less
harmful course to either litigant, since the Supreme Court upon appeal would then have all the materials
before it necessary to make a correct judgment (instead of returning the case for a new trial which only
prolongs the determination of the case); and

There is greater reason to adhere to such policy in criminal cases where

questions arise as to admissibility of evidence for the prosecution, for the
unjustified exclusion of evidence may lead to the erroneous acquittal of the
accused or the dismissal of the charges, from which the People can no longer
appeal 5
2. The right against self-incrimination is found in the first sentence of section 20 of the Bill of
Rights of the 1973 Constitution stating that "No person shall be compelled to be a witness
against himself." This single sentence constituted the whole text of section 18 of the Bill of
Rights of the 19,7,5 Constitution. This right against self-incrimination has a settled meaning
in jurisprudence which is fully applicable here since the right against self-incrimination was
first enforced here as an inviolable rule" in U.S. President McKinley's instructions under
date of April 7, 1900 to the Taft Commission. 6 As recounted by the late Mr. Justice Conrado
Sanchez as ponente for a unanimous Court in the leading 1968 case of Chavez vs. Court of Appeals 7,
"Mr. Justice Malcolm, in expressive language, tells us that this maxim was recognized in England in the
early days 'in a revolt against the thumbscrew and the rack.' An old Philippine case [1904] speaks of this
constitutional injunction as 'older than the Government of the United States;' as having 'its origin in a
protest against the inquisitorial methods of interrogating the accused person;' and as having been
adopted in the Philippines 'to wipe out such practices as formerly prevailed in these Islands of requiring
accused persons to submit to judicial examinations, and to give testimony regarding the offenses will
which they were charged.' " But Mr. Justice Sanchez equally stressed that "(an) accused occupies a
different tier of protection from an ordinary witness. Whereas an ordinary witness may be compelled to
take the witness stand and claim the privilege as each question requiring an incriminating answer is shot
at him, 8 an accused may altogether refuse to take the witness stand and refuse to answer any and all
questions." 9

As restated by Mr. Justice J.B.L. Reyes for a unanimous Court in Suarez vs. Tengco, 10 "No
legal impediment exists against a litigant calling any of the adverse parties to be his witness. ... True, an
accused in a criminal case may not be compelled to testify, or to so much as utter a word, even for his
own defense (U.S. vs, Junio, 1 Phil. 50; U.S. vs. Luzon, 4 Phil. 344: U.S. vs. Binayoh 35 Phil. 23; Sec.
l(c), Rule 111, Rules of Court). But while the constitutional guaranty against self-incrimination protects a
person in all types of cases, be they criminal, civil, or administrative (Art. 111, Sec. 1, No. 18, Phil.
constitution: Bermudez vs. Castillo, 64 Phil, 483), said privilege in, proceedings other than a criminal case
against him who invokes it, is considered an option of refusal to answer incriminating question, and not a
prohibition of inquiry.

Except in criminal cases, there is no rule prohibiting a party litigant from

utilizing his adversary as witness. As a matter of fact, section 83 of Rule 123,
Rules of Court expressly authorizes a party to call an adverse party to the
witness stand and interrogate him. This rule is, of course, subject to the
constitutional injunction not to compel any person to testify against himself.
But it is established that the privilege against self-incrimination must be
invoked at the proper time, and the proper time to invoke it is when a question

calling for a incriminating answer is propounded. This has to be so, because

before a question is asked there would be no way of telling whether the
information to be elicited from the witness is self-incriminating or not. As
stated in Jones on Evidence (Vol. 6, pp. 4926-4927), a person who has been
summoned to testify 'cannot decline to appear, nor can he decline to be
sworn as a witness' and 'no claim of privilege can be made until a question
calling for a incriminating answer is asked, at that time, and, generally
speaking, at that time only, the claim of privilege may properly be interposed.'
(Gonzales vs. Sec. of Labor, L-6409, February 5, 1954, 11 cit. in Navarro,
Criminal Procedure, p. 302.)'

Suarez was cited with favor and reaffirmed in Bagadiong vs. Gonzales, 12 wherein once again
the Court, with the concurrence in the result of the now Chief Justice, under similar facts held that the
petitioner (provincial treasurer) could not refuse to take the stand as an adverse party in a civil case since
the privilege against self-incrimination "in proceedings other than a criminal case against him who invokes
it, is considered an option to refuse to answer incriminating questions, and not a prohibition of inquiry"
and "must be invoked when a question calling for an incriminating answer is propounded, because before
a question is asked, there would be no way of telling whether the information to be elicited from the
witness is self-incriminating or not." The Court therein denied "the petition to prohibit respondent judge
from directing petitioner to take the witness stand and testify ... without prejudice to petitioner's properly
invoking the guaranty against self-incrimination when questions are propounded to him on the stand.
Costs against the petitioner."

3. All the respondents at bar were in this category of ordinary witnesses in the hearings of
the Fact-Finding Board. They were not accused in any criminal case nor were they persons
under custodial interrogation who under the second part of section 20 of the Bill of Rights
(consisting of three additional sentences 13) were given additional rights to silence and counsel and
to be informed of such rights and to the out-lawing of any confession obtained in violation of the rights
guaranteed in the cited section, by virtue of the incorporation into the Bill of Rights of the rights granted in
the rulings of the U.S. Supreme Court in the Miranda-Escobedo cases. As noted by former Chief Justice
Enrique M. Fernando, "(I)t amounts to an acceptance of the applicability in this jurisdiction of the epochal
American Supreme Court decision inMiranda vs. Arizona, the opinion being rendered by Chief Justice
Warren. It is thus now a part of our fundamental law. Such doctrine was promulgated in response to the
question of the admissibility of statements obtained from an individual interrogated under police custody,
considering that such a time and under the stress of such conditions, his right against self-incrimination
could be rendered futile." 14 The Miranda pronouncements thus became necessarily a part and parcel of
the additional rights granted in the cited section 20, as made by the late U.S. Chief Justice Warren in the
Miranda case thus: "The prosecution may not use statements, whether exculpatory or inculpatory,
stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural
safeguards effective to secure the privilege against self-incrimination. By custodial interrogation we mean
questioning initiated by law enforcement officers after a person has been taken into custody or otherwise
deprived of his freedom of action in any significant way. " 15 These additional Miranda rights could not be
invoked by respondents, as the members of the Fact-Finding Board were not law enforcement officers nor
were respondents under custodial interrogation.

As ordinary witnesses before the Fact-Finding Board and under the settled jurisprudence
above-cited, they could not invoke the right to silence and refuse to take the witness stand.
Their right and privilege (which is not self-executory or automatic ipso jure) was, while
testifying, whether voluntarily or by subpoena, to invoke the privilege and refuse to answer
as and when a question calling for an incriminating answer is propounded. Failure to invoke
the privilege which is personal does automatically result in its loss ipso facto. The law,
usage and settled jurisprudence uniformly require that the privilege must be asserted or

else is lost. The court or board upon its invocation still has to pass upon and rule upon the
proper application of the privilege. As restated by Francisco, the rule and exceptions are:
"Certainly, where the witness, on oath declares his belief that the answer to the question
would criminate or tend to criminate him, the court cannot compel him to answer, unless it is
clear perfectly, from a careful consideration of all the circumstances of the case, that the
witness is mistaken, or is acting in bad faith, and that the answer cannot possibly have any
such tendency. " 16
4. The view that withal, it is best, although not required, that a warning to the witness of his
option to refuse an answer to incriminating questions as advanced even by the Tanodbayan
at the hearing dates back to a century ago and has been long discarded as "witnesses are
usually well enough advised beforehand by counsel as to their rights when such issues
impend" and "as general knowledge spread among the masses and the preparation for
testimony became more thorough." Thus, "ignore, the bible on the law of evidence so
remarks and adds that "there is no reason for letting a wholesome custom degenerate into a
technical rule."
It is plausible to argue that the witness should be warned and notified, when a
incriminating fact is inquired about, that he has an option to refuse an answer;
and this view was often insisted upon, a century ago, by leaders at the Bar,
xxx xxx xxx
But there are opposing considerations. In the first place, such a warning
would be an anomaly; it is not given for any other privilege; witnesses are in
other respects supposed to know their rights; and why not here? In the next
place, it is not called for by principle, since, until the witness refuses, it can
hardly be said that he is compelled to answer; nor is it material that he
believes himself compelled; for the Court's action, and not the witness' state
of mind, must be the test of compulsion. Again, the question can at any rate
only be one of judicial propriety of conduct, for no one supposes that an
answer given under such an erroneous belief should be struck out for lack of
the warning. Finally, in practical convenience, there is no demand for such
rule; witnesses are usually well enough advised beforehand by counsel as to
their rights when such issues impend, and judges are too much concerned
with other responsibilities to be burdened with the provision of individual
witnesses' knowledge; the risk of their being in ignorance should fall rather
upon the party summoning than the party opposing.
Nevertheless, it is plain that the old practice was to give such a warning,
when it appeared to be needed. But, as general knowledge spread among
the masses, and the preparation for testimony became more thorough, this
practice seems to have disappeared in England, so far at least as any
general rule was concerned.
In the United States, both the rule and the trial custom vary in the different
jurisdictions. No doubt a capable and painstaking judge will give the warning,

where need appears, but there is no reason for letting a wholesome custom
degenerate into a technical rule. 17
But from the environmental facts and circumstances of the Fact-Finding Board hearings, to
require such a warning to the witness of his option of refusal to answer incriminatory
questions would have been an exercise in absurdity and futility, As is a matter of public
knowledge, respondents had concluded in their investigation that Galman was the assassin
of the late Senator Aquino. As observed by former Senator Ambrosio Padilla as amicus
curiae at the hearing on the merits of August 15, 1985, they were all too eager to testify and
make a strong effort to gain support from the Fact-Finding Board and the public for the
military version and report that the assassin was Galman who was forthwith gunned down
by the military escorts and guards at the tarmac. It would have been ridiculous, if not
bordering on officiousness and impropriety, to warn them as the highest ranking military
officers of their option of refusal to answer incriminatory questions and also as the majority
holds, 18 of their right to remain silent. When respondents generals appeared before the Board,
respondent Ver precisely made the opening statement that

GENERAL VER:
I welcome this opportunity, Madame Justice, members of this
Honorable Board, Dean, Gentlemen this opportunity to assist ...
this Honorable Board in the quest for truth and justice, We all
deplore this tragic incident which is now the subject of inquiry,
This Board, this Honorable Board is mandated to conduct a
free, full and exhaustive investigation into the matter under
investigation We all hope that my testimony, madame, will
somehow dispel any misconception, or any misinformation
surrounding this tragic incident. I am now ready to answer your
questions.
JUSTICE AGRAVA:
Now, General, at the outset, we give the right and the privilege
for every witness to be assisted by counsel Do you have your
counsel with you this morning?
GENERAL VER:
I did not bring any counsel, madame, but ... if I need a counsel,
madame, I could probably look for... probably ...
JUSTICE AGRAVA:
Yes?
GENERAL VER:

I may call Fiscal Parena or the Public Coordinator. I was talking

to Atty. Tan to assist me, in the protection of my constitutional
rights ...
JUSTICE AGRAVA:
Yes.
GENERAL VER:
... if it is necessary:
ATTY. TAN:
Your Honor, please, it is part of the function of this office to help
the witness if he doesn't have counsel, and so, if the General is
willing to have me, I will happily serve as counsel, Your Honor.
JUSTICE AGRAVA:
All right.
GENERAL VER:
Thank you. 19
Respondent Olivas likewise testified before the Board in response to its invitation to assist it
in determining the true facts and circumstances surrounding the double killing.
6. The majority decision would go around this by asserting without basis in the record that
"(A)ll the private respondents, except Generals Ver and Olivas, are members of the military
contingent that escorted Sen. Aquino while embarking from the plane that brought him
home to Manila on that fateful day. Being at the scene of the crime as such, they were
among the first line of suspects in the subject assassination. General Ver on the other hand,
being the highest military authority of his co-petitioners labored under the same suspicion
and so with General Olivas, the first designated investigator of the tragedy, but whom others
suspected, felt and believed to have bungled the case. The papers, especially the foreign
media, and rumors from ugly wagging tongues, all point to them as having, in one way or
another participated or have something to do, in the alleged conspiracy that brought about
the assassination. Could there still be any doubt then that their being asked to testify, was to
determine whether they were really conspirators and if so, the extent of their participation in
the said conspiracy?" In fact, the respondent court's decision and separate opinions as well
as the majority decision at bar and the separate concurring opinions all fail to specify the
particular portions of the testimonies of respondents or any specific question and answer
that can be in any way deemed to be self-incriminating. Indeed, even if we assumed
arguendo that they were warned of their right against self-incrimination and tried absurdly to
invoke the same, there is no specific question and answer by way of testimony that could be
pointed to them as having been made under compulsion for the simple reason that their

testimony was in full support of their own military report that Galman was Aquino's killer and
for which they were trying to gain the Board's acceptance. In the all too brief and inadequate
deliberations held on August 20 and 21, 1985 after the hearing on the merits of August 15,
1985, without reaching a definite conclusion, the ponente reported and I share this view
from a cursory examination, for want of material time, of the excluded testimonies only since
the excluded documents, records and other evidence produced by them were not before the
Court that there is nothing in the excluded testimonies that could in any way be deemed
self-incriminatory perse. So there would be no legal basis whatever for their exclusion. But
the ponente circulated only last August 26th at noon his draft for dismissal of the petitions
which were filed only last month. And its release has been set for August 30th.
7. There has not been enough time to weigh and ponder on the far-reaching consequences
of the decision at bar. The decision orders the total and unqualified exclusion of the
testimonies and evidence produced before the Fact-Finding Board by the eight respondents
charged as accessories "even though (they) failed to claim (their) privilege before giving the
incriminating testimony" (citing 21 Am. Jur. 2d. 218). But the cited compilation of American
State and Federal Law expressly cautions that "The question whether a witness must claim
exemption . on from self-incrimination to be entitled to immunity from subsequent
prosecution must in each case be determined in the light of constitutional and statutory
provisions in the jurisdiction where the question arises" (21 Am. Jur. 2d. 151). It recites on
the same cited page that "Under a statute granting immunity to persons who have been
compelled to testify, one who has appeared voluntarily and testified without claiming his
privilege against self-incrimination or one who has appeared and testified pursuant to a void
subpoena or one addressed to another person, without claiming the privilege, cannot say he
has been compelled to testify, and therefore, he is not entitled to immunity." And the
necessity of claiming the privilege against self-incrimination before an administrative officer
or board such as the Fact Finding Board is recognized to be essential, thus:
This is not only equally true as for the case of testimony in a judicial trial, but
the explicitness is here even more essential, and particularly where the
administrative officer makes a general demand for documents or testimony
upon a broad class of topics. The reason is clear. The officer has testimonial
powers to extract a general mass of facts, or which some, many, or most will
certainly be innocent and unprivileged, some may be privileged
communications (e.g., between attorney and client) whose privilege remains
unaffected by the statute defining his powers, and some may be privileged as
self-incriminating but liable to become demandable by overriding this privilege
with a grant of immunity. Among these mass of facts, then, the officer will
seek those which are relevant to his administrative inquiry; he cannot know
which of them fall within one or another privilege in particular, which of them
tend to criminate at all, or to criminate a particular person; if such facts are
there, he may not desire or be authorized to exercised the option of granting
immunity so as to obtain them; his primary function and power is to obtain the
relevant facts at large, and his power to obtain a special and limited class of
facts by grant of immunity is only a secondary one, and one which he will not
exercise till a cause arises, if even then.

For these reasons of practical sense, then, as well as for the inherent
requirements of principle already noticed for judicial officers, it is particularly
true for an inquiry by an administrative officer that the witness must explicitly
claim his privilege, and specifically the privilege against self- incrimination,
and must then be overridden in that claim, before immunity can take effect.
(VII Wigmore on Evidence, 2282, pp. 517-518)
The concurrence of Justice Vera Cruz sounds even more ominous thus:
I believe that where evidence is produced by a witness in accordance with the
conditions of the statute granting immunity such as P.D. No. 1886, as
amended, its immunity provisions attach instantly and it is entirely immaterial
what use the investigation authority makes of it (People ex rel. Massarsky v.
Adams, 47 N.Y.S. 2d 375, 62 N.E. 2d 244).
Consequently, the evidence, given before the Agrava Board by the accused in
the instant cases namely, Generals Fabian Ver and Prospero Olivas, and
Sergeants Pablo Martinez, Tomas Fernandez, Leonardo Mojica, Pepito Torio,
Prospero Bona and Aniceto Acupido cannot be used against them and this
proscription did attach instantly when they testified before the same Board.
Verily, the prohibition stands, irrespective of the purpose for which the
prosecution would like to use this evidence.
The total and unqualified exclusion of the testimony and evidence granted by respondent
court and sustained by the majority decision herein refers expressly to the eight
respondents charged as accessories. Would not this unprecedented grant of immunity and
exclusion of testimony be now claimed by the rest of the twenty-two accused charged as
principals except for the lone civilian? As reported by the press, respondent court has
suspended its trial and placed the pressure on the Court to rush its decision, as "(T)he socalled 'trial of the century' has been delayed since last week on motion of the defense panel
which had argued that the high court's decision on the admissibility of Ver's testimonies was
a vital prerequisite to the presentation of witnesses for the defense. " 20 Would this not result in
the People holding an empty bag of excluded testimonies and evidence, since to all intents and purposes
all respondents-accused testified before the Fact-Finding Board? Would their testimonies be inadmissible
for purposes even of impeaching such testimony as they may now give before respondent court? These
ponderous questions need not confront us had we but required respondent court to hew to the settled
procedure and doctrine of Yatco (supra, par. I hereof) of giving the prosecution a chance to get into the
record its relevant evidence until the final determination and consideration of the case, for the unjustified
exclusion of evidence of the prosecution may lead to the erroneous acquittal of the accused or dismissal
of the charges, from which the People can no longer appeal.

8. The alleged "ambiguous phraseology" of section 5 of P.D. 1886 cited in respondent

court's questioned order and bolstered by the majority decision's "novel" conclusion and
ruling that the cited section quoted therein 21requires a claim from the witness of the privilege
against self-incrimination but "forecloses under threat of contempt proceedings [under section 4] against
anyone who makes such a claim. But the strong testimonial compulsion imposed by section 5 of P.D.
1886 viewed in the light, of the actions provided in section 4, infringes upon the witness' right against selfincrimination. As a rule, such infringement of the constitutional right renders inoperative the testimonial
compulsion, meaning, the witness cannot be compelled to answer UNLESS a co-extensive protection in
the form of IMMUNITY is offered. Hence, under the oppressive compulsion of P.D. 1886, immunity must in

fact be offered to the witness before he can be required to answer, so as to safeguard his sacred
constitutional right. But in this case, the compulsion has already produced its desired results the private
respondents had all testified without offer of immunity. Their constitutional rights are, therefore, in
jeopardy. The only way to cure the law of its unconstitutional effects is to construe it in the manner as if
IMMUNITY had in fact been offered. We hold, therefore, that in view of the potent sanctions imposed on
the refusal to testify or to answer questions under Sec. 4 of P.D. 1886, the testimonies compelled thereby
are deemed immunized under Section 5 of the same law. The applicability of the immunity granted by
P.D. 1886 cannot be made to depend on a claim of the privilege against self-incrimination which the same
law practically strips away from the witness. " Emphasis supplied).

It bears emphasis that none of respondents made any such claim against self-incrimination.
The "oppressive compulsion" if it may be so-called, consists of a maximum penalty of P200.
fine and/or 30 days imprisonment for direct contempt. As indicated, it would be ridiculous for
any respondent to 1 make such claim when his testimony was but in full support of their
own military theory and report that Galman killed Aquino.
The language of the cited section

22

is plain and simple. It excuses no one from testifying and

producing books and records but grants him immunity from prosecution (except for perjury) after having
invoked his privilege against self-incrimination " There is nothing oppressive about such compulsion in
exchange for immunity provided the witness invokes his and aims his privilege a against selfincrimination.

In the Court's Resolution of July 9, 1985, Mr. Justice Aquino, voting to dismiss outright the
petitions. opined that The clause 'concerning which lie is compelled to testify after having
invoked his privilege against self-incrimination' is surplusage. It is in conflict with the first
clause which, as already stated, gives immunity to the witness except in case of perjury. So,
section 5 should be read as if that clause were not there.This is contrary to the rules of
statutory construction that there is no room for construction when tile text is plain and
simple, i.e. requires invocation and that the provisions must be taken in context and all the
words taken into account and given their full meaning. The Anti-Gambling Law, Act No.
1757, enacted on October 9, 1907 by the Philippine Commission (probably the first
Philippine immunity statute) granted such absolute immunity and does not contain the
conditional clause requiring that the witness invoke his privilege against self-incrimination.
Section 10 of the cited Act reads:
Sec. 10. Upon any investigation or proceeding for violation of this Act no
person shall be excused from giving testimony upon the ground that such
testimony would tend to convict him of a crime, but such testimony cannot be
received against him upon any criminal investigation or proceeding; Provided,
however, That no person so testifying shall be exempt from prosecution or
punishment for perjury committed in the course of any proceeding or
investigation had by virtue of [his Act. (1 CPS [Rev. Ed.], 190)
But when the statute grants conditional immunity (and not absolute as in the above-quoted
section 10 of the Anti-Gambling Act.), then it explicitly contains the cited conditional clause
in section 5 of P.D. 1886 granting immunity only when "he is compelled to testify after
having invoked his privilege against self-incrimination. "
This is but in accord with long-settled Philippine jurisprudence cited above (supra.
paragraph 2 hereof), that the witness has an option of refusal to answer incriminatory

questions, which he loses ipso facto if he does not invoke the privilege and nevertheless
answers the questions. Here, in review of the national and international importance of the
case with the country's very prestige at stake, the P.D. added the incentive of offering
immunity: "The purpose of immunity provisions is to aid prosecuting officers by inducing
criminals or their confederates to turn state's evidence and tell on each other, to enable
prosecuting officers to procure evidence which would otherwise be denied to them because
of the constitutional right against self-incrimination, and at the same time to protect every
person from gluing testimony which directly or indirectly would be helpful to the prosecution
in securing an indictment or a conviction. The provisions for immunity are or should be as
broad as or co-extensive with the constitutional provisions granting the privilege against
self-incrimination." (21 Am. Jur. 2d. Criminal Law, sec. 148). It is bad enough that no state's
evidence turned up to tell on his confederates in exchange of immunity. But to call the cited
section " a booby trap for the unsuspecting or unwary witness" unless it was construed as
granting absolute and unconditional immunity from the very fact of merely testifying as a
witness before the Board without claiming immunity nor giving any incriminatory information
that would aid the state to determine the true facts about Aquino's assassination would be a
sell-out. It would make a shambles of the letter and spirit as well as the salutary intent and
objective of the Decree to ferret out the truth and obtain state witnesses.
9. The truncated and distorted reading of the cited section 5 which consists of a single
integrated paragraph and splitting it into two isolated parts so as to allow the privilege
against self-incrimination (which was already lost for failure to claim it in the Board hearings)
to be resurrected and raised in a much later time frame and "subsequent criminal
proceeding" is against all usage and rules of statutory construction, not to mention the long
line of above-cited jurisprudence to the contrary. And if there still be doubt, we need only
reproduce hereunder the similar wording of Senate Joint Resolution 137 (Public Law 88202) after which section 5 of P.D. 1886 was patterned. Said law was enacted by the U.S.
Congress in December 1963 to empower the Warren Commission to issue subpoenas
requiring the testimony of witness and the production of evidence relating to any matter
under its investigation. The Report of the President's Commission on the Assassination of
President John F. Kennedy in its foreword on page X stated that "In addition, the resolution
authorized the Commission to compel testimony from witnesses claiming the privilege
against self-incrimination under the fifth amendment to the U.S. Constitution by providing for
the grant of immunity to persons testifying under such compulsion." (Emphasis supplied).
The cited Public Law reads:
(e) No person shall be excused from attending and testifying or from
producing books, records, correspondence, documents, or other evidence in
obedience to a subpoena, on the ground that the testimony or evidence
required of him may tend to incriminate him or subject him to a penalty or
forfeiture but no individual shall be prosecuted or subjected to any penalty or
forfeiture (except demotion or removal from office) for or on account of any
transaction matter, or thing concerning which he is compelled, after having
claimed his privilege against self-incrimination to testify or produce evidence,
except that such individual so testifying shall not be exempt from prosecution
and punishment for perjury committed in so testifying. (Emphasis supplied).

10. As already indicated above, none of the respondents, public and private, has indicated
the specific portions of their testimony that they have been "oppressively compelled" to
glue, in alleged violation of their privilege against self-incrimination. The reason for this is
that they all testified voluntarily and eagerly to support the military report and version that
Galman killed Senator Aquino. The Board unanimously rejected the military report and
found that the killings were the product of criminal conspiracy. A brief flashback is herein
appropriate: Within 60 seconds from his being led away by soldiers from his plane that had
just landed at the Manila International Airport on Sunday, August 21, 1983 at past one p.m.,
former Senator Benigno S. Aquino, Jr. who was coming home after three years of self-exile
in the U.S. laid dead face down on the tarmac, with his brain smashed by a bullet fired point
blank into the back of his head by a murderous assassin. 23 Also lying dead on the tarmac, face
up, near the senator was another man, to be Identified much later as Rolando Galman, whom the soldiers
admittedly gunned down. The military pointed to him as Aquino's assassin, who had somehow allegedly
penetrated the air-tight security of close to 2000 men ringing the airport. The military version met with
great public disbelief and skepticism. The first fact-finding commission created under Administrative Order
No. 469 dated August 24, 1983 and P.D. 1879 dated August 27, 1983 was the object of several suits
charging bias and that the President "had already prejudged the case, by rejecting the version of foreign
media that it is one of the soldiers, supposed to guard Aquino, who fatally shot him." 24 The said
commission was dissolved per P.D. 1886, dated October 14, 1983 (later amended by P.D. 1903 dated
February 8, 1984) which created the ad hoc Fact-Finding Board with plenary powers to investigate "the
treacherous and vicious assassination (which) has to all Filipinos become a national tragedy and national
shame ... (and) to determine the facts and circumstances surrounding the killing and to allow for a free,
unlimited and exhaustive investigation into all the aspects of said tragedy." The Board after extensive
hearings, submitted to the President their majority report on October 24, 1984, while the chairman former
Court of Appeals Justice Corazon Agrava submitted her minority report one day earlier on October 23,
1984. All five members of the Board unanimously rejected the official military version that Galman was the
assassin and instead found that there was criminal conspiracy. Their main difference of opinion is that the
four-member majority found twenty-five military men (headed by respondents Generals Ver, Olivas and
Luther Custodia) and one civilian "indictable for the premeditated killing of Senator Benigno S. Aquino, Jr.
and Rolando Galman at the MIA on August 21, 1983." The chairman's report confined the conspiracy to
seven men headed by General Custodia. The Tanodbayan, after conducting the preliminary investigation,
adopted the Board's majority report recommending the indictment of the accused as "involved in this
conspiracy, either as principals, upon the theory that the act of one is the act of all, or as accessories, for
attempting to hide the corpus of the offense." The eight accessories so indicted are the private
respondents herein named headed by respondents Ver and Olivas. (The chairman in her minority report
had found that "(T)he indications are that the plotters had agreed that only one would be the assassin;
that the others can either point to Galman as the killer; or they can state that they did not see the
shooting; and that they will give false testimony to mislead and confuse.

11. Only the former lawyers of the Fact-Finding Board created under P.D. No. 1886,
consisting of Messrs. Andres R. Narvasa, Bienvenido A. Tan, Jr., Mario E. Ongkiko and
Francisco A. Villa have given us the answer that there is nothing incriminatory per se in the
testimonies of the respondents, in the Memorandum submitted by them, to wit:
I. The so-called 'Galman Theory that it was Rolando Galman who killed
Senator Aquino is either true or untrue, a matter the SANDIGANBAYAN will
have to resolve.
II. If the 'Galman Theory' be true as advocated by the military officers
concerned then the testimony of Ver, et al. is true. It is not self-incriminatory.
There would then be no reason to exclude it.

If, on the other hand, the theory be untrue as the prosecution in turn
advocates then the testimony of Ver, et al. is untrue. It is incriminatory of
them, because by giving it and thereby seeking to hide the crime, they
incriminated themselves. Withal there would also be no reason to exclude it.
Surely, after their plot to deceive the Board had been exposed, they should
not now be allowed to use the law to bring about exclusion of the very proof
of their deception.
In short, the testimonies of respondents could only be deemed incriminating if it be found
that they sought thereby to hide or cover up the crime and thus incriminate themselves, as
accessories to the murder of Senator Aquino. The former Fact-Finding Board lawyers
amplify their theory, as follows:
5. The plain language of Section 5, PD 1886 precludes its interpretation as extending
immunity to all testimony or evidence produced before the Board in obedience to subpoena
regardless of whether the witness giving such evidence invokes the privilege against selfincrimination or not.
6. The fact is, the invocation by Ver, et al. of such right would have been self-defeating first,
it would have prevented them from presenting evidence in substantiation of the 'Galman
Theory,' which they wished the Board to accept; and second, it might have exposed to some
extent their real objective, which was to deceive the Board.
7. It would have been incongruous for Ver, et al. to have claimed that their testimony would
incriminate them as accessories to the murder of Aquino when they were, by testifying,
actually in process of committing that precise crime, becoming accessories.
8. Neither PD 1886 nor the Constitution should be used as a shield for crime, fraud or
trickery.
9. The foregoing propositions were ignored by the SANDIGANBAYAN. Instead, with all due
respect, it has
a. given Section 5, PD 1886 a strained construction not justified by and
contrary to its plain language;
b. given Section 20, Article IV, Constitution, a meaning at odds with its plain
terms and contrary to relevant decisions of this Honorable Supreme Court;
and
c. sanctioned the use of legal provisions to shield persons from criminal
liability arising from their perfidious testimony before the Fact-Finding Board.
There is no legal ground nor justification for the exclusion order. It is for respondent court,
upon consideration of the evidence for the People, without any exclusion, and of the
evidence for the defense in due course, to render its verdict of guilty or not guilty.

With a word of commendation for the former Fact-Finding Board lawyers and former
Senator Ambrosio Padilla and Atty. Ramon Gonzales, whose memoranda as amid curiae,
have been of great assistance, I vote, accordingly, to grant the petitions at bar and to set
aside the questioned exclusion order.

MELENCIO-HERRERA, J., dissenting:

I vote to grant the Petitions and to reverse the ruling of the Sandiganbayan.
The resolution of the issue revolves around the interpretation to be given to Sec. 5 of PD
No. 1886, reading as follows:
SEC. 5. No person shall be excused from attending and testifying or from
producing books, records, correspondence, documents, or other evidence in
obedience to a subpoena issued by the Board on the grounds that his
testimony or the evidence required of him may tend to incriminate him or
subject him to penalty or forfeiture; but his testimony or any evidence
produced by him shall not be used against him in connection with any
transaction, matter, or thing concerning which he is compelled, after having
invoked his privilege against self-incrimination, to testify or produce evidence,
except that such an individual so testifying shall not be exempt from
prosecution and punishment for perjury committed in so testifying, nor shall
he be exempt from demotion or removal from office. (Emphasis supplied)
As I read the law, Section 5 does not require that the person testifying before the Agrava
Fact Finding Board (the Board, for short) shall first invoke the privilege against selfincrimination. Under said statute it is obvious that he has no such privilege.
But what is the effect of the second part providing that his testimony or any evidence
produced by him shall not be used against him in connection with any transaction, matter or
thing concerning which he is compelled, after having invoked his privilege against selfincrimination, to testify or produce evidence, except in case of perjury?
To my mind, the above portion does not grant to a person who has testified before the
Board absolute or total immunity. It should not operate as a shield against criminal liability
specially since, under Section 12 of the same Decree, the Board may initiate the filing of the
proper complaint if its finding so warrant. Thus,
SEC. 12. The findings of the Board shall be made public. Should the findings
warrant the prosecution of any person the Board may initiate the filing of the
proper complaint with the appropriate government agency. ... (Emphasis
supplied)
The inquiry before the Board was a general one. It was not directed against any particular
individual or individuals. Private respondents did not testify therein as suspects or as
accused persons. There should therefore be no hindrance to a criminal prosecution.

It has been held that where an inquiry by a grand jury is a general one and is
not directed against a particular individual the fact that on the basis of the
information elicited, grounds for a criminal prosecution may evolve against a
witness, may not serve as a bar to such prosecution (U.S. v. Okin D.C.N.J.,
154 F. Supp. 553; Benson v. Goldstein, 124 N.Y.S. 2d 452) even though he
testified before the grand jury without being warned of his constitutional
privileges against self- incrimination. (U.S. v. Okin supra) (Emphasis supplied)
The right against self incrimination is not a prohibition of inquiry but an option of refusal to
answer incriminating questions Cabal vs. Kapunan, 6 SCRA 1059 [1962]). The kernel of the
privilege is testimonial compulsion. Whether or not any specific portion of the testimonies of
private respondents is incriminating should be determined by the Sandiganbayan itself. The
claim against self-incrimination should be invoked when a specific question, which is
incriminating in character, is put to a witness in the subsequent proceeding. There should
be no automatic "immunity bath" of the entire testimony before the Board for immunity does
not extend to such of the evidence as is not privileged.
... But it is established that the privilege against self-incrimination must be
invoked at the proper time, and the proper time to invoke it is when a question
calling for an incriminating answer is propounded. This has to be so, because
before a question is asked there would be no way of telling whether the
information to be elicited from the witness is self-incriminating or not. As
stated in Jones on Evidence (Vol. 6, pp. 4926-4927), a person who has been
summoned to testify 'cannot decline to appear, nor can be decline to be
sworn as a witness' and 'no claim or privilege can be made until a question
calling for a incriminating answer is asked; at that time, and generally
speaking, at that time only, the claim of privilege may be interposed.
(Gonzales vs. Sec. of Labor, et al., 94 Phil. 325, 326 [19541).
Moreover, the issue actually addresses itself to a question of admissibility or competency of
evidence and not to its credibility. Whether the evidence so admitted is to be given any
probative weight or credence is best addressed to the Sandiganbayan. It should be recalled
that the Board was not unanimous in its assessment of the testimonies given.
There are additional considerations. While the right against self-incrimination is indubitably
one of the most fundamental of human rights, Section 5 of PD No. 1886 should be
construed so as to effect a practical and beneficent purpose and not in such a manner as to
hinder or obstruct the administration of criminal justice.
... Any statute which, while it compels him to testify, protects the witness if he
does disclose the circumstances of his offense and the sources from which or
the means by which evidence of its commission or of his connection with it
may be obtained or made effectual for his subsequent prosecution and
conviction is sufficient to comply with the constitutional requirements. Such a
statute, however should be construed to effect a practical and beneficent
purpose, namely, at the same time to secure the witness in his constitutional
rights and to permit the prosecuting officer to secure evidence of a crime. It
should not be construed so as to unduly impede, hinder, or obstruct the

administration of criminal justice." Brown v. Walker 161 US 591, 16 Sup. Ct.

644, 40 L. Ed. 819. (People ex rel. Hunt vs. Lane, 116 N.Y.S. 990, 132 App.
Div. 406)
The objective in all this exercise is to arrive at the truth. "Though the constitutional
provisions for the protection of one who appears ... must be liberally and fairly applied, the
interests of the people are also entitled to consideration" (Wharton's Criminal Evidence,
11th Ed., Vol. 1, p. 609; People vs. Coyle 15 N.Y.S. 2d 441, 172 Mis 593). Specially so
since, in the language of PD No. 1886 itself, the "treacherous and vicious assassination of
former Senator Benigno S. Aquino, Jr. on August 21, 1983, has to all Filipinos become a
national tragedy and national shame. "
In the interest of eliciting the truth, the excluded testimonies should be admitted, leaving it to
the Sandiganbayan to determine which specific questions and answers are to be excluded
because they are incriminatory, and which should be given credibility, in found to be
competent and admissible.

RELOVA, J., dissenting:

The issue raised in these two petitions is whether the testimonies and other evidence
produced by the private respondents before the Agrava Board may be used as evidence
against them before the Sandiganbayan
Respondent Sandiganbayan rejected their testimonies on the ground that "under statutes
providing in substance that no person shall be excused from testifying or furnishing
evidence on the ground that the testimony or evidence may tend to incriminate him, but that
no person shall be subject to indictment or prosecution for anything concerning which he
may testify or furnish evidence, it has been held that one who testifies concerning criminal
offenses when required to do so is entitled to immunity from prosecution even though he
fails to claim his privilege before giving the incriminating testimony (21 Am Jur 2d 218). He
could not be required, in order to gain the immunity which the law afforded, to go though the
formality of an objection or protest which, however made, would be useless (VIII Wigmore
516)." (p. 4, Resolution of Sandiganbayan)
Section 5 of Presidential Decree No. 1886 provides that:
SEC. 5. No person shall be excused from attending and testifying or from
producing books, records, correspondence, documents, or other evidence in
obedience to a subpoena issued by the Board on the ground that his
testimony or the evidence required of him may tend to incriminate him or
subject him to penalty or forfeiture; but his testimony or any evidence
produced by him shall not be used against him in connection with any
transaction, matter or thing concerning which he is compelled, after having
invoked his privilege against self- incrimination to testify or produce
evidence ... (Emphasis supplied.)

Pursuant to the above Presidential Decree no one can refuse to testify or furnish evidence
before the Fact Finding Board. However, his testimony or any evidence produced shall not
be used against him after he invoked the privilege against self-incrimination. Stated
differently, the privilege against self-incrimination must be invoked when the question at the
hearing before the Board, calling for an incriminating answer is propounded; otherwise,
before any question is asked of the witness, he would not know whether the information to
be elicited from him is incriminating or not.
In the case of Gonzales vs. Secretary of Labor, et al., 94 Phil. 325, this Court held that "the
privilege against self-incrimination must be invoked at the proper time, and the proper time
to invoke it is when question calling for a incriminating answer is propounded. This has to
be so, because before a question is asked there would be no way of telling whether the
information to be elicited from the witness is self-incriminating or not. As stated in Jones on
Evidence (Vol. 6, pp. 4926-4927), a person who has been summoned to testify 'cannot
decline to appear, nor can he decline to be sworn as a witness' and 'no claim of privilege
can be made until a question calling for a incriminating answer is asked; at that time, and
generally speaking, at that time only, the claim of privilege may properly be interposed.'"
And, since it is a personal right to be exercised only by the witness, this privilege against
self-incrimination may be waived by him and, when so waived, cannot thereafter be
asserted. The privilege is waived by his voluntary offer to testify by, answering questions
without objecting and/or claiming the privilege.
When private respondents gave testimonies before the Board they were not defendants but
witnesses invited and/or subpoenaed "to ventilate the truth thorougly free, independent and
dispassionate investigation." They could not refuse or withhold answers to questions
propounded to them unless the inquiry calls for an incriminating answer and a timely
objection is raised.
In the case at bar, since the private respondents answered questions from the Fact Finding
Board without claiming the privilege against self-incrimination they cannot now be allowed
to invoke the immunity clause provided in Section 5 of Presidential Decree No. 1886.
I vote to grant the petitions.

Footnotes
1 SECOND WHEREAS.
2 Justice Corazon Juliano Agrava being the appointed Chairman of this ad
hoc Fact Finding Board.
3 Gen. Fabian C, Ver & Major Gen. Prospero Olivas both appeared and
testified in response to an invitation-p. 6, COMMENT.
4 The other private respondents appeared and testified pursuant to
subpoenas.

5 Petitioner in G. R. Nos. -71212-13.

6 Exh. VVV, tsn, April 6, 1984-Gen. Ver (1-97); Exh. VVV-1, tsn, April 6, 1984Gen. Ver (1-54); Exh. VVV-2, tsn, April 10, 1984-Gen. Ver (1- 150); Exh. VVV3, tsn, April 23, 1984- Gen. Ver (1-135): Exh. VVV-4, tsn, April 23, 1984 -Gen.
Ver (1-43, 90); Exh. WWW, tsn, June 27, 1984-Gen. Olivas (1-87); Exh.
WWW-1, tsn, June 27, 1984-Gen. Olivas (1-81, 93); Exh. XXX, tsn, Dec. 22,
1983-Martinez (1-93); Exh. XXX-1, Dec. 22, 1983- Martinez (1-82); Exh. XXX2, tsn, Jan. 12, 1984-Martinez (1-20, 91); Exh. YYY, tsn, Dec. 28, 1983Fernandez (1-60); Exh. YYY-1, tsn, April 25, 1984-Fernandez (18-86, 104
with page 48); Exh. YYY-2, tsn, April 30, 1984- Fernandez (1-27, 80); Exh.
ZZZ, tsn, Jan. 17, 1984-Mojica (1- 83); Exh. ZZZ-1, tsn, Jan. 17, 1984-Mojica
Exh. ZZZ-2, no date-Mojica (57-106); Exh. ZZZ-3, tsn, March 23, 1984Kavinta and Mojica (1-7); Exh. ZZZ-4, tsn, April 2, 1984- Mojica and Kavinta
(1-43, 112); Exh. AAAA, tsn, Dec. 27, 1983-Torio (1-79); Exh. AAAA-1, tsn,
Dec. 27, 1983-Torio (1-25, 62): Exh. AAAA-2, tsn, no date-Torio (36- 54); Exh.
AAAA-3, tsn, June 21, 1984-Torio (43153); Exh. BBBB, tsn, no date-Bona
(80-93): Exh. BBBB-1, tsn, June 28, 1984-Bona (1- 36, 83 without page 15);
Exh. BBBB-2 no date-Bona (84-110); Exh. CCCC, tsn, April 25, 1984-Acupido
(87104); Exh. CCCC-1, tsn, April 30,1984- Acupido (1-46).
7 Annex "B", Petition.
8 Annexes "B" & "C", Petition.
9 Annex "E", Petition.
10 Annex "F", Petition.
11 Annex "J", Petition.
12 Petition. page 9.
13 Annex "N", Petition.
14 G.R. Nos. 71212-13.
15 G.R. Nos. 71208-09.
16 Petition, pages 14-18. 17
17 Comment, pages 8-11.
18 Ad Hoc Board,
19 Whereas-P.D. 1886.
20 Sec. 10, 3rd par., P.D. 1886.

21 Section 4, P.D. 1886.

21-A Art. IV, Sec. 20, 1973 Constitution.
22 Art. IV, Sec. 20, 1973 Constitution.
23 Magtoto vs. Manguera, 63 SCRA 4 (1975); People vs. Jimenez, 71 SCRA
186 (1976); People vs. Buscato, 74 SCRA 30 (1976); People vs. Pena, 80
SCRA 589 (1977); People vs. Page, 77 SCRA 348 (1977); Draculan vs.
Donato, 85 SCRA 266 (1978); People vs. Molleda 86 SCRA 667 (1978);
People vs. Saldua 87 SCRA 169 (1978); People vs. Beralde, 91 SCRA 125
(1979); People vs. Tampus 96 SCRA 624 (1980); People vs. Comendador,
100 SCRA 155 (1980); People vs. Hipolito, 106 SCRA 610 (1981); People vs.
Matilla, 105 SCRA 768 (1981); People vs. Umali, 116 SCRA 23 (1982);
Morales, Jr. vs. Enrile, 121 SCRA 538 (1983); People vs. Ramos, 122 SCRA
312(1983); People vs. Jose, 124 SCRA 89 (1983); People vs. Colana, 126
SCRA 23 (1983); People vs. Tuvera, 130 SCRA 168 (1984); People vs.
Pizarro, 131 SCRA 624 (1984); People vs, Lachica, 132 SCRA 230 1984);
People vs. Pizarro, 131 SCRA 624 (1984).
24 Miranda vs. Arizona, 384 US 436.
25 Bernas, the 1973 Philippine Constitution, Cases & Materials, Part II, 1974
Ed., p. 745 citing Session of November 25, 1972; Session of November 27,
1972 of the 1971 Constitutional Convention.
26 Chavez vs. CA, 24 SCRA 663, citing State vs. Wolfe, 266 N.W. 11 6,125;
104 ALR 464.
27 414 U.S. 70,38 L. Ed. 2d 274 (1973).
28 6 SCRA 1059.
29 70 C.J. Sec. 875, page 722; Wigmore on Evidence, Volume 8, Section
2252, pages 834- 835.
30 President's Instructions to the Philippine Commission; Philippines Bill of
July 1, 1902, Section 5, par. 3-cited in Francisco's Revised Rules of Court in
Criminal Procedure, pages 390-391.
31 Pinkerton v. Farr W., Va., 220 S.E. 2d 682,687.
32 Black Law Dictionary, 5th Edition, 1979.
33 Proceedings of the Convention, Session of November 29, 1972, cited in
BERNAS The 1973 Philippine Constitution Notes and Cases, Part 11, 1974
ed., page 745.

34 In Re Guarina 24 Phil. 375; Paredes v. Executive Secretary, 128 SCRA 6

(1984).
35 Yu Cong vs. Trinidad, 47 Phil. 385; Automotive Parts & Equipment, 30
SCRA 248 (1969).
36 Araneta vs. Concepcion, 52 O.G. 151.
37 Lefkowitz vs. Turley, 414 US 70, at 85.
38 123 SCRA 583, 603 (1983).
Concepcion, J.
1 G.R. No. 68113, Aquilino Q. Pimentel , Jr., versus Commission on Elections,
et al., promulgated December 19, 1984.
Dela Fuente, J.
1 Section 20, Art. IV, 1973 Constitution.
2 Bagadiong vs. Gonzales, 94 SCRA 906.
3 24 SCRA 663.
4 Pascual vs. Board of Medical Examiner, 28 SCRA 344, at 350, citing
Chavez.
5 Marchetti vs. United States, mentioned also in Chavez at page 678.
6 President McKinley's Instructions, under date of April 7, 1900.
7 Section 1(18), Art, III. 1935 Constitution: Section 20, Art. IV, 1 973
Constitution.
8 "... of policy because it would place the witnesses against the strongest
temptation to commit perjury, and of humanity because it would be to extort a
confession of truth by a kind of duress species and degree of which the law
abhors." (Chavez at page 679)
9 Ibid, at page 678.
10 Kastigar vs. US, 406 US 441, 32 L. Ed. 2d 212.
11 Chavez, at page 682.
12 Passion Vda. de Garcia vs. Locson, 65 Phil. 689. 695.

13 Section 5, PD No. 1886.

14 "except that such individual so testifying shall not be exempt from
prosecution and punishment for perjury committed in so testifying, nor shall
he be exempt from demotion or removal from office."
15 which is not an immunity against prosecution as that found in RA No.
1379.
16 304 U.S. 458, 464, cited in Chavez at p. 683.
17 E. Griswold, the Fifth Amendment Today, 1955, cited by Justice Fred Ruiz
Castro in his separate opinion in Chavez, at page 689, emphasis supplied.
18 64 Phil. 483.
Patajo, J.
1 Section 3, PD No. 1886 empowers the Board to issue subpoena and "other
compulsory processes." An invitation is such a compulsory process. The use
of the word invitation is a mere euphemism used instead of subpoenas in
deference to the exalted position of those "invited." As this Court had
occasion to say in Babst vs. National Intelligence Board, 132 SCRA 316,
under certain circumstances and invitation to appear for interview are in fact
"thinly veiled commands," in short summons or subpoena to appear.
In States vs. Sacks, 116 Kan. 148, 225 Pac. 738, the Supreme Court of
Kansas said:
"The State contends that appellant cannot take advantage of this statute for
the reason that no subpoena was issued for him. No subpoena was
necessary. 4 Wigmore on Evidence 960; U.S. vs. Armour (DC) 142 Fed 808;
Atkinson vs. State, 190 Ind. 1, 128 N.E. 433. The purpose of issuing a
subpoena is to get a witness into court. If he appears by request of attorney
for either side, it is no longer material whether a subpoena has been issued
for him. His testimony is subject to the same objections and should be given
the same weight and he is entitled to immunity to the same extent as though
he had been served with a subpoena." See also Atkinson vs. State, 190 Ind.
1, 128 N.E. 433.
We may assume that if the one invited will not appear in response to said
invitation, he would be issued a subpoena. The Board will be remiss of its
duty if it does not do so. Those invited certainly know this to be so and,
therefore, regard the invitation to be as much a compulsory process as an
invitation.
Teehankee, J.

1 At page 6.
2 Except respondent General Olivas. who as a member of the bar,
represented himself.
3 97 Phil. 940 (1955); emphasis supplied.
4 52 Phil. 807, 816-817 (1929).
5 Emphasis supplied.
6 Vol- 1, Public Laws of the Phil., p, 1 XIII
7 24 SCRA 663 (1968).
8 Gonzales vs. Secretary of Labor, 94 Phil. 325, 326.
9 Cabal vs. Kapunan, L-19052, December 29, 1962; 21 Am. Jur. 2d p. 383;
98 C.J.S., p. 265; 8 Wigmore, Evidence 1961 ed., p. 406: 3 Wharton's
Criminal Evidence, 11th ed., pp. 1959- 1960.
10 2 SCRA 71 (1961); emphasis supplied.
11 94 Phil. 325.
12 94 SCRA 906 (Dec. 28, 1979), First Division, per Pacifico de Castro, J.
13 "... Any person under investigation for the commission of an offense shall
have the right to remain silent and to counsel, and to be informed of such
right. No force, violence, threat, intimidation, or any other means which
vitiates the free will shall be used against him. Any confession obtained in
violation of this section shall be inadmissible in evidence."
14 Fernando, The Constitution of the Philippines, 2nd Ed., p. 710.
15 Miranda vs. Arizona, 384 U.S. 436 (1966).
16 VIII Francisco's Revised Rules of Court, Evidence, Part II, p. 226.
17 VIII Wigmore on Evidence, 2268, sec. 398-400.
18 Separate opinion of the Chief Justice at page 4.
19 Petition in G.R. No. 71208-09, p. 9.
20 Metro Manila Times issue of Aug. 28, 1985.

21 Quoted in full at page 14, majority decision.

22 At page 14, majority decision.
23 Par. 1.0.0., Board members' Majority Report, composed of Messrs.
Luciano S. Salazar, Amado C. Dizon, Dante G. Santos and Ernesto F.
Herrera.
24 Petition in G.R. No. 64969, Ramon A. Gonzales vs. Fernando
Commission, page 5; G.R. No. 64983, LABAN vs, Chief Justice Enrique M.
Fernando, and G.R. No. v4993, Demetrio G. Demetria vs. Hon. E. M.
Fernando, etc., et al. The three cases were eventually dismissed as moot and
academic by joint Resolution of the Court dated October 20, 1983
"considering that the respondent Chairman and Our members of the
respondent Commission created by Administrative Order No. 469 had already
tendered their resignations, which the President of the Philippines accepted
with deep regret; and that the respondent Commission had been dissolved
and superseded by the Commission created by P.D. No. 1886.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC

G.R. No. L-28025 December 16, 1970

DAVID ACEBEDO Y DALMAN, petitioner,
vs.
HON. MALCOLM G. SARMIENTO, as Judge of the Court of First Instance of
Pampanga and THE PROV. FISCAL OF PAMPANGA, respondents.
Filemon Cajator for petitioner.
Judge Malcolm G. Sarmiento in his own behalf.
Provincial Fiscal Regidor Y. Aglipay for and in his own behalf as respondent.

FERNANDO, J.:
This Court not so long ago reaffirmed the doctrine that where a dismissal of a criminal
prosecution amounts to an acquittal, even if arising from a motion presented by the
accused, the ban on being twice put in jeopardy may be invoked, especially where such
dismissal was predicated on the right to a speedy trial. 1 The specific question then that this
certiorari and prohibition proceeding presents is whether on the undisputed facts, an order of dismissal
given in open court by respondent Judge falls within the operation of the above principle, precluding its
reconsideration later as the defense of double jeopardy would be available. Here respondent Judge did
reconsider, and his actuation is now assailed as a grave abuse of discretion. As will be made apparent,
petitioner has the law on his side. The writs should be granted.

It was shown that on August 3, 1959, respondent Provincial Fiscal filed in the Court of First
Instance of Pampanga a criminal information for damage to property through reckless
imprudence against petitioner and a certain Chi Chan Tan. As there were no further
proceedings in the meantime, petitioner on May 19, 1965 moved to dismiss the criminal
charge. Respondent Judge was not in agreement as shown by his order of denial of July
10, 1965. Then, after two more years, came the trial with the complainant having testified on
direct examination but not having as yet been fully cross-examined. At the continuation of
the trial set for June 7, 1967 such witness did not show up. The provincial fiscal moved for
postponement. Counsel for petitioner, however, not only objected but sought the dismissal

of the case based on the right of the accused to speedy trial. Respondent Judge this time
acceded, but would likewise base his order of dismissal, orally given, on the crossexamination of complainant not having started as yet. Later that same day, respondent
Judge did reconsider the order and reinstated the case, his action being due to its being
shown that the cross-examination of the complainant had already started.
On the above facts, there can be no dispute as to the applicable law. It is not to be lost sight
of that the petition on its face had more than its fair share of plausibility, thus eliciting an
affirmative response to the plea for a writ of preliminary injunction, duly issued by this Court.
For it was all too evident that petitioner could rely on his constitutional right to a speedy trial.
For more than six years the threat of his being subjected to a penal liability did hang over
his head, with the prosecution failing to take any step to have the matter heard. He did ask
that the case be dismissed, but respondent Judge turned him down. When the trial did at
long last take place after two more years and again postponement was sought as the
complainant was not available for cross- examination, petitioner, as could have been
expected, did again seek to put an end to his travail with a motion for dismissal grounded
once more on the undeniable fact that he was not accorded the speedy trial that was his
due. This time respondent Judge was quite receptive and about time too. The order of
dismissal given in open court had then the effect of an acquittal. For the respondent Judge
to give vent to a change of heart with his reconsideration was to subject petitioner to the risk
of being put in jeopardy once more. Nor could respondent Judge's allegation that he could
do so as he acted under a misapprehension be impressed with the quality of
persuasiveness. The decisive fact was the absence of that speedy trial guaranteed by the
Constitution. This petition then, to repeat, possesses merit.
1. The right to a speedy trial means one free from vexatious, capricious and oppressive
delays, its salutary objective being to assure that an innocent person may be free from the
anxiety and expense of a court litigation or, if otherwise, of having his guilt determined within
the shortest possible time compatible with the presentation and consideration of whatever
legitimate defense he may interpose. 2 The remedy in the event of a non-observance of this right is
by habeas corpus if the accused were restrained of his liberty, or by certiorari, prohibition, or mandamus
for the final dismissal of the case. 3

In the first Supreme Court decision after the Constitution took effect, an appeal from a
judgment of conviction, it was shown that the criminal case had been dragging on for almost
five years. When the trial did finally take place, it was tainted by irregularities. While
ordinarily the remedy would have been to remand the case again for a new trial, the
appealed decision of conviction was set aside and the accused acquitted. Such a judgment
was called for according to the opinion penned by Justice Laurel, if this constitutional right
were to be accorded respect and deference. Thus: "The Government should be the last to
set an example of delay and oppression in the administration of justice and it is the moral
and legal obligation of this court to see that the criminal proceedings against the accused
came to an end and that they be immediately discharged from the custody of the law." 4

Conformably to the above ruling as well as the earlier case of Conde v. Rivera, 5the dismissal
of a second information for frustrated homicide was ordered by the Supreme Court on a showing that the
first information had been dismissed after a lapse of one year and seven months from the time the original
complaint was filed during which time on the three occasions the case was set for trial, the private
prosecutor twice asked for postponements and once the trial court itself cancelled the entire calendar for
the month it was supposed to have been heard. As pointed out in such decision: "The right of the accused
to have a speedy trial is violated not only when unjustified postponements of the trial are asked for and
secured, but also when, without good cause or justifiable motive, a long period of time is allowed to
elapse without having his case tried." 6 It did not matter that in this case the postponements were sought and obtained by the
private prosecution, although with the consent and approval of the fiscal. Nor was there a waiver and abandonment of the right to a speedy
trial when there was a failure on the part of the accused to urge that the case be heard. "Such a waiver or abandonment may be presumed
only when the postponement of the trial has been sought and obtained [by him]". 7 A finding that there was an infringement of this right was
predicated on an accused having been criminally prosecuted for an alleged abuse of chastity in a justice of the peace court as a result of
which he was arrested three times, each time having to post a bond for his provisional liberty. Mandamus to compel the trial judge to dismiss
the case was under the circumstances the appropriate remedy. 8

In Mercado v. Santos, 9 the second occasion Justice Laurel had to write the opinion for the Supreme Court in a case of this
nature, the transgression of this constitutional mandate came about with petitioner having in a space of twenty months been arrested four
times on the charge of falsifying his deceased wife's will, the first two complaints having been subsequently withdrawn only to be refiled a
third time and thereafter dismissed after due investigation by the justice of the peace. Undeterred the provincial fiscal filed a motion for
reinvestigation favorably acted on by the Court of First Instance which finally ordered that the case be heard on the merits. At this stage the
accused moved to dismiss but was rebuffed. He sought the aid of the Court of Appeals in a petition for certiorari but did not prevail. It was
then that the matter was elevated to the Supreme Court which reversed the Court of Appeals, the accused "being entitled to have the
criminal proceedings against him quashed." It was stressed in Justice Laurel's opinion: "An accused person is entitled to a trial at the earliest
opportunity. ... He cannot be oppressed by delaying the commencement of trial for an unreasonable length of time. If the proceedings
pending trial are deferred, the trial itself is necessarily delayed. It is not to be supposed, of course, that the Constitution intends to remove
from the prosecution every reasonable opportunity to prepare for trial. Impossibilities cannot be expected or extraordinary efforts required on
10

The opinion likewise considered as not decisive the fact that the provincial
fiscal did not intervene until an information was filed charging the accused with the crime of falsification
the third time. Thus: "The Constitution does not say that the right to a speedy trial may be availed of only
where the prosecution for crime is commenced and undertaken by the fiscal. It does not exclude from its
operation cases commenced by private individuals. Where once a person is prosecuted criminally, he is
entitled to a speedy trial, irrespective of the nature of the offense or the manner in which it is authorized to
be commenced." 11
the part of the prosecutor or the court."

2. More specifically, this Court has consistently adhered to the view that a dismissal based
on the denial of the right to a speedy trial amounts to an acquittal. Necessarily, any further
attempt at continuing the prosecution or starting a new one would fall within the prohibition
against an accused being twice put in jeopardy. The extensive opinion of Justice Castro
in People v. Obsania noted earlier made reference to four Philippine decisions, People v.
Diaz, 12 People v. Abano, 13 People v. Robles, 14 and People v. Cloribel. 15 In all of the above cases, this
Court left no doubt that a dismissal of the case, though at the instance of the defendant grounded on the
disregard of his right to a speedy trial was tantamount to an acquittal. In People v. Diaz, it was shown that
the case was set for hearing twice and the prosecution without asking for postponement or giving any
explanation failed to appear. In People v. Abano, the facts disclosed that there were three postponements.
Thereafter, at the time the resumption of the trial was scheduled, the complaining witness as in this case
was absent; this Court held that respondent Judge was justified in dismissing the case upon motion of the
defense and that the annulment or setting aside of the order of dismissal would place the accused twice
in jeopardy of punishment for the same offense. People v. Robles likewise presented a picture of
witnesses for the prosecution not being available, with the lower court after having transferred the
hearings on several occasions denying the last plea for postponement and dismissing the case. Such
order of dismissal, according to this Court "is not provisional in character but one which is tantamount to

acquittal that would bar further prosecution of the accused for the same offense." 16 This is a summary of
the Cloribel case as set forth in the above opinion of Justice Castro: "In Cloribel, the case dragged for
three years and eleven months, that is, from September 27, 1958 when the information was filed to
August 15, 1962 when it was called for trial, after numerous postponements, mostly at the instance of the
prosecution. On the latter date, the prosecution failed to appear for trial, and upon motion of defendants,
the case was dismissed. This Court held 'that the dismissal here complained of was not truly a 'dismissal'
but an acquittal. For it was entered upon the defendants' insistense on their constitutional right to speedy
trial and by reason of the prosecution's failure to appear on the date of trial.' (Emphasis
supplied.)" 17 There is no escaping the conclusion then that petitioner here has clearly made out a case of
an acquittal arising from the order of dismissal given in open court.

3. Respondent Judge would rely on Cabarroguis v. San Diego 18 to lend support to the
reconsideration of his order of dismissal. The case is not applicable; the factual setting is different. The
order of dismissal set aside in that case arose from the belief of the court that the crime of estafa was not
committed as the liability was civil in character. At no stage then was there a plea that the accused was
denied his right to a speedy trial. The reconsideration was granted as there was documentary evidence to
show that the intention to defraud on the part of the accused could be shown. Under such circumstances,
this Court saw no grave abuse of discretion in the actuation of the trial judge. To repeat, the proceeding
now before this Court is anything but that. Petitioner not once but twice did seek to have the prosecution
for damage to property against him terminated as the matter was pending for at least six years, the first
time he sought to put an end to it. When at last, the trial stage was reached, the complaining witness
testified on direct examination but made no appearance when his cross-examination was to be continued.
A clear case of a denial of the right to a speedy trial was thus made out. There was an order of dismissal
that amounted to an acquittal. No reconsideration could therefore be had without offending the provision
on double jeopardy.

WHEREFORE, the writ of certiorari is granted annulling the order of respondent Judge of
June 7, 1967 reconsidering his order of dismissal and reinstating the criminal case against
petitioner. The writ of prohibition is likewise granted, respondent Judge and respondent
Provincial Fiscal of Pampanga being restrained and precluded from continuing with this
case against petitioner, now adjudged definitely dismissed. The writ of preliminary injunction
issued is made permanent.
Reyes, J.B.L., Makalintal, Zaldivar, Castro, Teehankee, Barredo and Villamor, JJ., concur.
Concepcion C.J., Dizon and Makasiar, JJ., are on leave.

Footnotes
1 People v. Obsania, L-24447, June 29, 1968, 23 SCRA 1249. In the
exhaustive opinion penned by Justice Castro, People v. Diaz, 94 Phil. 714
(1954); People v. Abano, 97 Phil. 28 (1955); People v. Robles, 105 Phil. 1016
(1959) and People v. Cloribel, L-20314, Aug. 31, 1964, 11 SCRA 805 were
cited in support of such a view.

2 Cf. Justice Malcolm's words in a pre-Commonwealth leading case: "Aurelia

Conde, like all other accused persons, has a right to a speedy trial in order
that if innocent she may go free, and she has been deprived of that right in
defiance of law. ... By the use of reasonable diligence, the prosecution could
have settled upon the appropriate information, could have attended to the
formal preliminary examination, and could have prepared the case for a trial
free from vexatious, capricious, and oppressive delays." Conde v. Rivera, 45
Phil. 650 at p. 651 (1924).
3 Kalaw v. Apostol, 64 Phil. 852 (1937) citing the Conde v. Rivera decision.
4 People v. Castaeda, 63 Phil. 480, at p. 486 (1936).
5 45 Phil. 650 (1924).
6 Kalaw v. Apostol, 64 Phil. 852 at pp. 858-859 (1937).
7 Ibid., at p. 859.
8 Esguerra v. De la Costa, 66 Phil. 134 (1938).
9 66 Phil. 215 (1938).
10 Ibid., at pp. 234-235.
11 Ibid., at p. 324.
12 94 Phil. 714 (1954).
13 97 Phil. 28 (1955).
14 105 Phil. 1016 (1959).
15 L-20314, August 31, 1964, 11 SCRA 805.
16 105 Phil. 1016, 1021 (1959).
17 People v. Obsania, L-24447, June 29, 1968, 23 SCRA 1249, 1273.
18 L-19517, November 30, 1962, 6 SCRA 866.

FEDERICO MIGUEL OLBES,

Petitioner,

G.R. No. 173319

Present:

- versus HON. DANILO A. BUEMIO, in his

capacity as pairing presiding judge of
Branch 22 of the Metropolitan Trial
Court of Manila, PEOPLE OF THE
PHILIPPINES, SAMIR MUHSEN and
ROWENA MUHSEN,
Respondents.

PUNO, C.J., Chairperson,

CARPIO MORALES,
LEONARDO-DE CASTRO,
BERSAMIN, and
VILLARAMA, JR., JJ.
Promulgated:
December 4, 2009

x--------------------------------------------------x
DECISION
CARPIO MORALES, J.:
On complaint of Samir and Rowena Muhsen, Federico Miguel Olbes
(petitioner) was indicted for Grave Coercion before the Metropolitan Trial Court
(MeTC) of Manila by Information[1] dated June 28, 2002 which was raffled to
Branch 22 thereof. On October 28, 2002, petitioner posted bail and was released.
Denying petitioners motion to defer or suspend his arraignment in light of
his pending petition for review before the Department of Justice from the City
Fiscals Resolution finding probable cause to hale him into court, Judge Hipolito
dela Vega proceeded with petitioners arraignment on February 12, 2003 in which
he pleaded not guilty to the charge.[2] Pre-trial was thereupon set to May 28,
2003 which was, however, declared a non-working day due to the occurrence of
typhoon Chedeng. The pre-trial was thus reset to October 23, 2003.[3]
At the scheduled pre-trial on October 23, 2003, petitioner failed to appear,
prompting the trial court to issue a warrant for his arrest, which warrant was,
however, later recalled on discovery that neither petitioner nor his counsel was
notified of said schedule.Pre-trial was again reset to January 21, 2004.[4]

Before the scheduled pre-trial on January 21, 2004 or on November 3, 2003,

petitioner filed a Motion to Dismiss[5] the Information on the ground of violation of
his right to a speedy trial under Republic Act No. 8493 [6] or the Speedy Trial Act of
1998and Supreme Court Circular (SCC) No. 38-98. [7] He argued that considering
that [he] was not without any fault on his part brought to trial within 80 days
from the date he was arraigned, this case should be dismissed pursuant to Rule 119,
Section 9[8] in relation to Rule 119, Section 6 of the Rules.[9]
The trial court, through pairing Judge Danilo A. Buemio (respondent judge),
denied petitioners Motion to Dismiss by Order[10] of December 5, 2003, holding
that petitioner played a big part in the delay of the case, and that technical rules of
procedure were meant to secure, not override, substantial justice.
Petitioners Motion for Reconsideration of the December 5, 2003 Order was
denied by Order[11] of March 3, 2004 after respondent judge noted that during
petitioners arraignment on February 12, 2003, he interposed no objection to the
setting of the pre-trial to May 28, 2003. Besides, respondent judge held, strict
compliance with the Speedy Trial Act was improbable, given the volume of cases
being filed with the MeTC. Additionally respondent judge held that the term
speedy trial as applied in criminal cases is a relative term such that the trial and
disposition of cases depended on several factors including the availability of
counsel, witnesses and prosecutor, and weather conditions.
Petitioner challenged respondent judges orders via certiorari and prohibition
before the Regional Trial Court (RTC) of Manila, alleging that not only was he
(petitioner) not brought to trial within 80 days from the date of his arraignment as
required under Section 6, Rule 119, but the prosecution had failed to establish the
existence of any of the time exclusions provided under Section 3 [12] of the same
Rule to excuse its failure to bring him to trial within the 80-day period.
By Decision[13] of January 31, 2006, the RTC denied the petition, holding
that Section 9 of Rule 119 of the Rules of Court does not call for the automatic
dismissal of a case just because trial has not commenced within 80 days from
arraignment; that the proceedings before the MeTC were not attended by
vexatious, capricious and oppressive delays; and that the concept of a speedy trial
is not a mere question of numbers that could be computed in terms of years,

months or days but is understood according to the peculiar circumstances of each

case, citing SPO1 Sumbang, Jr. v. Gen. Court Martial PRO-Region 6.[14]
The RTC further held that in determining whether petitioners right to speedy
trial was violated,[15] the circumstances that respondent judge was the pairing judge
of Br. 22 of the MeTC who may be assumed also [to] preside over his own regular
court and devotes limited time to his pairing court and that first level courts in
Manila have an excessive load of cases should also be taken into consideration.
His motion for reconsideration having been denied by the RTC, [16] petitioner
lodged the present petition for review which, in the main, faults the RTC

I
. . . IN AFFIRMING THE MTC-MANILA JUDGES RULING THAT
COMPLIANCE WITH RULE 119, SECTION 9 OF THE RULES IS NOT
MANDATORY. THE RIGHT OF AN ACCUSED TO A SPEEDY TRIAL IS A
SUBSTANTIVE RIGHT THAT CANNOT BE DISREGARDED.
II
. . . IN AFFIRMING THE MTC-MANILA JUDGES RULING THAT THE
ENUMERATION OF ALLOWABLE TIME EXCLUSIONS UNDER RULE 119,
SECTION 3 IS NOT EXCLUSIVE, AND THAT THE FAILURE TO BRING
PETITIONER TO TRIAL WITHIN THE PERIOD PROVIDED UNDER RULE
119, SECTION 6 WAS JUSTIFIED.
x x x x,[17]

errors which raise a question of law.

Petitioner argues that his right to speedy trial is a substantive right and that,
contrary to the RTC ruling, Section 9 of Rule 119 is mandatory in character, having
been taken from SCC No. 38-98, strict compliance with which is urged to remove
any attempt on the part of judges to exercise discretion with respect to the time
frame for conducting the trial of an accused; that the last paragraph of said Section
9 clearly indicates that it is the right of an accused to move for dismissal of the
Information should the prosecution fail to prove the existence of the time

exclusions under Section 3 of Rule 119; and that the enumeration of the allowable
time exclusions under Section 3 is exclusive, hence, the RTC erred in considering
the excessive caseload of respondent judge, as a mere pairing judge, to be an
allowable time exclusion under the Rules.
In its Comment,[18] the People, through the Office of the Solicitor General
(OSG), counters that speed alone is not the chief objective of a trial such that mere
assertion of a violation of the right to speedy trial does not necessarily result in the
automatic dismissal of an Information; that the time exclusions referred to in
paragraphs (a) to (f) of Section 3, Rule 119 are not exclusive and admit of other
exceptions; that petitioner himself contributed to the delay in the proceedings when
he filed a frivolous motion to suspend proceedings and failed to appear during the
scheduled pre-trial; and that the RTC statement about respondent judge being a
mere pairing judge was not an apology for the courts congested dockets but a mere
statement of fact as to the impossibility of setting the case for pre-trial at an earlier
date.
Furthermore, the OSG asserts that respondent judges denial of petitioners
motion to dismiss was in order as he correctly applied the principles of relativity
and flexibility in determining whether petitioners right to speedy trial had been
violated.[19]
Respondents-private complainants, on the other hand, maintain in their
Comment[20] that several Supreme Court decisions[21] dealing with the issue of the
constitutional guaranty of a speedy trial, the Speedy Trial Act of 1998, and SCC
No. 38-98 have held that the right is deemed violated only when the proceedings
are attended by vexatious, capricious and oppressive delays, which did not obtain
in the present case, petitioner himself having been instrumental in the delay in the
prosecution of the case.
The petition does not impress.
Petitioner draws attention to the time gap of 105 days from his arraignment
on February 12, 2003 up to the first pre-trial setting on May 28, 2003, and another
gap of 148 days from the latter date up to the second pre-trial setting on October

23, 2003 or for a total of 253 days a clear contravention, according to petitioner,
of the 80-day time limit from arraignment to trial.
It bears noting, however, that on his arraignment on February 12, 2003,
petitioner interposed no objection to the setting of the pre-trial to May 28, 2003
which was, as earlier stated, later declared a non-working day. Inarguably, the
cancellation of the scheduled pre-trial on that date was beyond the control of the
trial court.
Petitioner argues, however, that the lapse of 253 days (from arraignment to
October 23, 2003) was not justified by any of the excusable delays as embodied in
the time exclusions[22] specified under Section 3 of Rule 119. The argument is
unavailing.
In Solar Team Entertainment, Inc. v. Judge How,[23] the Court stressed that
the exceptions consisting of the time exclusions provided in the Speedy Trial Act of
1998 reflect the fundamentally recognized principle that speedy trial is a relative
term and necessarily involves a degree of flexibility. This was reiterated in People
v. Hernandez,[24] viz:
The right of the accused to a speedy trial is guaranteed under Sections
14(2) and 16, Article III of the 1987 Constitution. In 1998, Congress
enacted R.A. No. 8493, otherwise known as the "Speedy Trial Act of 1998." The
law provided for time limits in order "to ensure a speedy trial of all criminal cases
before the Sandiganbayan, [RTC], Metropolitan Trial Court, Municipal Trial
Court, and Municipal Circuit Trial Court." On August 11, 1998, the Supreme
Court issued Circular No. 38-98, the Rules Implementing R.A. No. 8493. The
provisions of said circular were adopted in the 2000 Revised Rules of Criminal
Procedure. As to the time limit within which trial must commence after
arraignment, the 2000 Revised Rules of Criminal Procedure states:
Sec. 6, Rule 119. Extended time limit.-- Notwithstanding the provisions of
section 1(g), Rule 116 and the preceding section 1, for the first twelve-calendar-month
period following its effectivity on September 15, 1998, the time limit with respect to
the period from arraignment to trial imposed by said provision shall be one hundred
eighty (180) days. For the second twelve-month period, the time limit shall be one
hundred twenty (120) days, and for the third twelve-month period, the time limit shall
be eighty (80) days.

R.A. No. 8493 and its implementing rules and the Revised Rules of
Criminal Procedure enumerate certain reasonable delays as exclusions in the

computation of the prescribed time limits. They also provide that "no provision of
law on speedy trial and no rule implementing the same shall be interpreted as a
bar to any charge of denial of speedy trial as provided by Article III, Section
14(2), of the 1987 Constitution." Thus, in spite of the prescribed time
limits, jurisprudence continues to adopt the view that the concept of "speedy
trial" is a relative term and must necessarily be a flexible concept. In Corpuz
v. Sandiganbayan, we held:
The right of the accused to a speedy trial and to a speedy disposition of the case
against him was designed to prevent the oppression of the citizen by holding criminal
prosecution suspended over him for an indefinite time, and to prevent delays in the
administration of justice by mandating the courts to proceed with reasonable dispatch in
the trial of criminal cases. Such right to a speedy trial and a speedy disposition of a case
is violated only when the proceeding is attended by vexatious, capricious and oppressive
delays. x x x
While justice is administered with dispatch, the essential ingredient is orderly,
expeditious and not mere speed. It cannot be definitely said how long is too long in a
system where justice is supposed to be swift, but deliberate. It is consistent with delays
and depends upon circumstances. It secures rights to the accused, but it does not
preclude the rights of public justice. Also, it must be borne in mind that the rights given
to the accused by the Constitution and the Rules of Court are shields, not weapons;
hence, courts are to give meaning to that intent.

A balancing test of applying societal interests and the rights of the

accused necessarily compels the court to approach speedy trial cases on
an ad hoc basis.
In determining whether the accused has been deprived of his right to
a speedy disposition of the case and to a speedy trial, four factors must be
considered: (a) length of delay; (b) the reason for the delay; (c) the
defendants assertion of his right; and (d) prejudice to the
defendant. (citations omitted) (underscoring supplied)

The time limits set by the Speedy Trial Act of 1998 do not thus preclude
justifiable postponements and delays when so warranted by the situation. [25] To the
Court, the reasons for the postponements and delays attendant to the present case
reflected above are not unreasonable. While the records indicate that neither
petitioner nor his counsel was notified of the resetting of the pre-trial to October
23, 2003, the same appears to have been occasioned by oversight or simple
negligence which, standing alone, does not prove fatal to the prosecutions
case. The faux pas was acknowledged and corrected when the MeTC recalled the

arrest warrant it had issued against petitioner under the mistaken belief that
petitioner had been duly notified of the October 23, 2003 pre-trial setting.[26]
Reiterating the Courts pronouncement in Solar Team Entertainment, Inc.
that speedy trial is a relative and flexible term,Lumanlaw v. Peralta, Jr.
[28]
summons the courts to maintain a delicate balance between the demands of due
process and the strictures of speedy trial on the one hand, and the right of the State
to prosecute crimes and rid society of criminals on the other.
[27]

Applying the balancing test for determining whether an accused has been
denied his constitutional right to a speedy trial, or a speedy disposition of his case,
taking into account several factors such as the length and reason of the delay, the
accuseds assertion or non-assertion of his right, and the prejudice to the accused
resulting from the delay,[29] the Court does not find petitioner to have been unduly
and excessively prejudiced by the delay in the proceedings, especially given that he
had posted bail.
WHEREFORE, the petition is DENIED.
Costs against Petitioner.
SO ORDERED.
CONCHITA CARPIO MORALES
Associate Justice

WE CONCUR:

REYNATO S. PUNO
Chief Justice

Chairperson

TERESITA J. LEONARDO-DE CASTRO

Associate Justice

LUCAS P. BERSAMIN
Associate Justice

MARTIN S. VILLARAMA, JR.

Associate Justice
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, I certify that the
conclusions in the above decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Courts Division.
REYNATO S. PUNO
Chief Justice

[1]

Rollo, p. 42.
Records, p. 217.
[3]
Rollo, p. 43.
[4]
Id. at 56.
[5]
Id. at 44-46.
[6]
AN ACT TO ENSURE A SPEEDY TRIAL OF ALL CRIMINAL CASES BEFORE THE SANDIGANBAYAN,
REGIONAL TRIAL COURT, METROPOLITAN TRIAL COURT, MUNICIPAL TRIAL COURT, AND
MUNICIPAL CIRCUIT TRIAL COURT, APPROPRIATING FUNDS THEREFOR, AND FOR OTHER
PURPOSES.
[2]

[7]

IMPLEMENTING THE PROVISIONS OF REPUBLIC ACT NO. 8493 (effective September 15, 1998).
Sec. 9. Remedy where accused is not brought to trial within the time limit. If the accused is not brought to trial
within the time limit required by section 1 (g), Rule 116 and section 1, as extended by section 6 of this Rule, the
information may be dismissed on motion of the accused on the ground of denial of his right to speedy trial. The
accused shall have the burden of proving the motion but the prosecution shall have the burden of going forward
with the evidence to establish the exclusion of time under section 3 of this Rule. The dismissal shall be subject
to the rules on double jeopardy.
Failure of the accused to move for dismissal prior to trial shall constitute a waiver of the right to dismiss under this
section. (sec. 14, cir. 38-98).
[9]
Vide Motion to Dismiss, rollo, pp. 44-46.
[10]
Id. at 55-56.
[11]
Id. at 71-73.
[12]
SEC. 3. Exclusions. The following periods of delay shall be excluded in computing the time within which trial
must commence:
(a) Any period of delay resulting from other proceedings concerning the accused, including but not
limited to the following:
(1) Delay resulting from an examination of the physical and mental condition of the accused;
(2) Delay resulting from proceedings with respect to other criminal charges against the accused;
(3) Delay resulting from extraordinary remedies against interlocutory orders;
(4) Delay resulting from pre-trial proceedings; provided, that the delay does not exceed thirty (30)
days;
(5) Delay resulting from orders of inhibition, or proceedings relating to change of venue of cases
or transfer from other courts;
(6) Delay resulting from a finding of the existence of a prejudicial question; and
(7) Delay reasonably attributable to any period, not to exceed thirty (30) days, during which any
proceeding concerning the accused is actually under advisement.
(b) Any period of delay resulting from the absence or unavailability of an essential witness.
For purposes of this subparagraph, an essential witness shall be considered absent when his whereabouts are
unknown or his whereabouts cannot be determined by due diligence.He shall be considered unavailable
whenever his whereabouts are known but his presence for trial cannot be obtained by due diligence.
(c) Any period of delay resulting from the mental incompetence or physical inability of the accused to
stand trial.
(d) If the information is dismissed upon motion of the prosecution and thereafter a charge is filed
against the accused for the same offense, any period of delay from the date the charge was dismissed to the
date the time limitation would commence to run as to the subsequent charge had there been no previous
charge.
(e) A reasonable period of delay when the accused is joined for trial with a co-accused over whom the
court has not acquired jurisdiction, or, as to whom the time for trial has not run and no motion for separate
trial has been granted.
(f) Any period of delay resulting from a continuance granted by any court motu proprio, or on motion
of either the accused or his counsel, or the prosecution, if the court granted the continuance on the basis of
its findings set forth in the order that the ends of justice served by taking such action outweigh the best
interest of the public and the accused in a speedy trial.
[13]
Rendered by Assisting RTC Judge Manuel M. Barrios; rollo, pp. 34-39.
[14]
391 Phil. 929.
[15]
Vide note 13 at 38.
[16]
Rollo, pp. 40-41.
[17]
Id. at 13.
[18]
Id. at 229-241.
[19]
Id. at 239-240.
[20]
Id. at 205- 208.
[21]
People v. Tee, 443 Phil. 521 (2003); Gonzales v. Sandiganbayan, G.R. No. 94750, July 16, 1991, 199 SCRA 298.
[22]
Vide at note 12.
[23]
393 Phil. 172, 182 (2000).
[24]
G.R. Nos. 154218 & 154372, August 28, 2006, 499 SCRA 688, 708-710; Caballes v. Court of Appeals, 492 Phil.
410, 429 (2005).
[8]

[25]

Domondon v. Sandiganbayan, G.R. No. 166606, November 29, 2005, 476 SCRA 496, 504.
Vide Petition for Certiorari and Prohibition before the RTC Manila; rollo, p. 79.
[27]
Supra at note 23.
[28]
G.R. No. 164953, February 13, 2006, 482 SCRA 396, 409.
[29]
Domondon v. Sandiganbayan, supra at note 25 citing Gonzales v. Sandiganbayan, supra note 21 at 307.
[26]

Republic of the Philippines

SUPREME COURT
Manila
EN BANC

G.R. No. L-30104 July 25, 1973

HON. GREGORIO. N. GARCIA, Judge of the City Court of Manila, and FRANCISCO
LORENZANA,petitioners,
vs.
HON. FELIX DOMINGO, Judge of the Court of First Instance of Manila, EDGARDO CALO and
SIMEON CARBONNEL, respondents.
Andres R. Narvasa, Manuel V. Chico and Felipe B. Pagkanlungan for petitioners.
Rafael S. Consengco for respondent Calo, et al.
Respondent Judge in his own behalf.

FERNANDO, J.:
The pivotal question in this petition for certiorari and prohibition, one which thus far has remained
unresolved, is the meaning to be accorded the constitutional right to public trial. 1 More specifically, did
respondent Judge commit a grave abuse of discretion in stigmatizing as violative of such a guarantee the
holding of the trial of the other respondents 2inside the chambers of city court Judge Gregorio Garcia
named as the petitioner. 3 That was done in the order now impugned in this suit, although such a
procedure had been agreed to beforehand by the other respondents as defendants, the hearings have
been thus conducted on fourteen separate occasions without objection on their part, and without an iota
of evidence to substantiate any claim as to any other person so minded being excluded from the
premises. It is thus evident that what took place in the chambers of the city court judge was devoid of
haste or intentional secrecy. For reasons to be more fully explained in the light of the facts ascertained
the unique aspect of this case having arisen from what turned out to be an unseemly altercation, force
likewise being employed, due to the mode in which the arrest of private petitioner for a traffic violation was
sought to be effected by the two respondent policemen thus resulting in charges and counter-charges
with eight criminal cases being tried jointly by city court Judge in the above manner we rule that there
was no transgression of the right to a public trial, and grant the petition.
It was alleged and admitted in the petition: "In Branch I the City Court of Manila presided over by
petitioner Judge, there were commenced, by appropriate informations all dated January 16, 1968,
eight (8) criminal actions against respondent Edgardo Calo, and Simeon Carbonnel and Petitioner
Francisco Lorenzana, as follows: a. Against Edgardo Calo (on complaint of Francisco Lorenzana) (1)
Criminal Case No. F-109192, also for slight physical injuries; (2) Criminal Case No. F-109192,

alsofor slight physical injuries; and (3) Criminal Case No. F-109193, for maltreatment; b. Against
Simeon Carbonnel (id.) (1)Criminal Case No. F-109197, for maltreatment; (2) Criminal Case No. F109196, for slight physical injuries; and (3) Criminal Case No. F-109198, for light threats; (c) Against
Francisco Lorenzana (on complaint of Calo and Carbonnel) (1) Criminal Case No. F-109201, for
violation of Sec. 887 of the Revised Ordinances of Manila (resisting an officer); and (2) Criminal
Case No. F-109200, for slander."4 The above was followed by this recital: "The trial of the
aforementioned cases was jointly held on March 4, 1968, March 18, 1968, March 23, 1968, March 30,
1968, April 17, 1968, April 20, 1968, May 4,1968, May 11, 1968, June 1, 1968, June 15, 1968, June 22,
1968, June 29, 1968, August 3, 1968 and August 10, 1968. All the fourteen (14) trial dates except
March 4 and 18, and April 17, 1968 fell on a Saturday. This was arranged by the parties and the Court
upon the insistence of respondents Calo and Carbonnel who, as police officers under suspension
because of the cases, desired the same to be terminated as soon as possible and as there were many
cases scheduled for trial on the usual criminal trial days (Monday, Wednesday and Friday), Saturday was
agreed upon as the invariable trial day for said eight (8) criminal cases." 5Also this: "The trial of the cases
in question was held, with the conformity of the accused and their counsel, in the chambers of Judge
Garcia." 6 Then came these allegations in the petition: "During all the fourteen (14) days of trial, spanning
a period of several months (from March to August, 1968), the accused were at all times represented by
their respective counsel, who acted not only in defense of their clients, but as prosecutors of the
accusations filed at their clients' instance. There was only one (1) day when Atty. Consengco,
representing respondent Calo and Carbonnel, was absent. This was on April 20, 1968. But at the
insistence of Pat. Carbonnel, the trial proceeded, and said respondent cross-examined one of the
witnesses presented by the adverse party. In any case, no pretense has been made by the respondents
that this constituted an irregularity correctible on certiorari. At the conclusion of the hearings the accused,
thru counsel, asked for and were granted time to submit memoranda. Respondents Calo and Carbonnel,
thru counsel, Atty. Rafael Consengco, submitted a 14-page memorandum with not less than 35 citations
of relevant portions of the transcript of stenographic notes in support of their prayer for exoneration, and
conviction of petitioner Lorenzana in respect of their countercharges against the latter. It is worthy of note
that up to this late date, said respondents Calo and Carbonnel had not objected to or pointed out
any supposed irregularity in the proceedings thus far; the memorandum submitted in their behalf is
confined to a discussion of the evidence adduced in, and the merits of the cases." 7 It was stated in the
next petition:
"The promulgation of judgment was first scheduled on September 23, 1968. This was postponed to
September 28, 1968 at the instance of Atty. Rafael Consengco, as counsel respondents Calo and
Carbonnel, and again to October 1, 1968 at 11 o'clock in the morning, this time at the instance of
Atty. Consengco and Atty. Francisco Koh who had, in the meantime, also entered his appearance as
counsel for respondents Calo and Carbonnel. The applications for postponement were not grounded
upon any supposed defect or irregularity of the proceedings." 8
Mention was then made of when a petition for certiorari was filed with respondent Judge: "Early in
the morning of October 1, 1968, Edgardo Calo and Simeon Carbonnel, thru their counsel, Atty.
Rafael S. Consengco, filed with the Court of First Instance a petition for certiorari and prohibition,
with application for preliminary prohibitory and mandatory injunction ... [alleging jurisdictional
defects]." 9 Respondent Judge acting on such petition forthwith issued a restraining order thus causing
the deferment of the promulgation of the judgment. After proceedings duly had, there was an order from
him "declaring that 'the constitutional and statutory rights of the accused' had been violated, adversely
affecting their 'right to a free and impartial trial' [noting] 'that the trial of these cases lasting several weeks
held exclusively in chambers and not in the court room open the public';" and ordering the city court

Judge, now petitioner, "to desist from reading or causing to be read or promulgated the decisions he may
have rendered already in the criminal cases (in question) ... pending in his Court, until further orders of
this Court.'" 10

A motion for reconsideration proving unavailing, petition on January 28, 1969, elevated the matter to
this Tribunal by means of the present suit for certiorari and prohibition. In its resolution of February 3,
1969, respondents were required to answer, with a preliminary injunction likewise being issued. As
was to be expected the answer filed by respondent Judge on March 11, 1969 and that by the other
respondents on March 19, 1969 did attempt to justify the validity of the finding that there was a
failure to respect the right to a public trial of accused persons. Neither in such pleadings nor in the
memorandum filed, although the diligence displayed by counsel was quite evident, was there any
persuasive showing of a violation of constitutional guarantee of a public trial, the basic issue to be
resolved. Rather it was the mode of approach followed by counsel Andres R. Narvasa for petitioners
that did manifest a deeper understanding of its implications and ramifications. Accordingly, as
previously stated, it is for us to grant the merits prayed for.
1. The 1935 Constitution which was in force at the time of the antecedents of this petition, as set
forth at the outset, explicitly enumerated the right to a public trial to which an accused was entitled.
So it is, as likewise made clear, under present dispensation. As a matter of fact, that was one
constitutional provision that needed only a single, terse summation from the Chairman of the
Committee on the Bill of Rights, Delegate, later Justice, Jose P. Laurel, to gain acceptance. As was
stressed by him: "Trial should also be public in order to offset any danger of conducting it in an illegal
and unjust manner." 11 It would have been surprising if its proposed inclusion in the Bill of Rights had
provoked any discussion, much less a debate. It was merely a reiteration what appeared in the Philippine
Autonomy Act of 1916, popularly known as the Jones Law. 12 Earlier, such a right found expression in the
Philippine Bill of 1902, likewise an organic act of the then government of this country as an
unincorporated territory of the United States. 13Historically as was pointed out by Justice Black, speaking
for the United States Supreme Court in the leading case of In re Oliver: 14 "This nation's accepted practice
of guaranteeing a public trial to an accused has its roots in [the] English common law heritage. 15 He then
observed that the exact date of its origin is obscure, "but it likely evolved long before the settlement of the
[United States] as an accompaniment of the ancient institution of jury trial." 16 It was then noted by him
that there, "the guarantee to an accused of the right to a public trial appeared in a state constitution in
1776." 17 Later it was embodied in the Sixth Amendment of the Federal Constitution ratified in 1791. 18 He
could conclude his historical survey "Today almost without exception every state by constitution, statute,
or judicial decision, requires that all criminal trials be open to the public." 19 Such is the venerable,
historical lineage of the right to a public trial.
2. The crucial question of the meaning to be attached this provision remains. The Constitution
guarantees an accused the right to a public trial. What does it signify? Offhand it does seem fairly
obvious that here is an instance where language is to be given a literal application. There is no
ambiguity in the words employed. The trial must be public. It possesses that character when anyone
interested in observing the manner a judge conducts the proceedings in his courtroom may do so.
There is to be no ban on such attendance. His being a stranger to the litigants is of no moment. No
relationship to the parties need be shown. The thought that lies behind this safeguard is the belief
that thereby the accused is afforded further protection, that his trial is likely to be conducted with
regularity and not tainted with any impropriety. It is not amiss to recall that Delegate Laurel in his
terse summation the importance of this right singled out its being a deterrence to arbitrariness. It is

thus understandable why such a right is deemed embraced in procedural due process. 20 Where a
trial takes place, as is quite usual, in the courtroom and a calendar of what cases are to be heard is
posted, no problem arises. It the usual course of events that individuals desirous of being present are free
to do so. There is the well recognized exception though that warrants the exclusion of the public where
the evidence may be characterized as "offensive to decency or public morals." 21
What did occasion difficulty in this suit was that for the convenience of the parties, and of the city
court Judge, it was in the latter's air-conditioned chambers that the trial was held. Did that suffice to
investigate the proceedings as violative of this right? The answer must be in the negative. There is
no showing that the public was thereby excluded. It is to be admitted that the size of the room
allotted the Judge would reduce the number of those who could be our present. Such a fact though
is not indicative of any transgression of this right. Courtrooms are not of uniform dimensions. Some
are smaller than others. Moreover, as admitted by Justice Black in his masterly In re Oliver opinion, it
suffices to satisfy the requirement of a trial being public if the accused could "have his friends,
relatives and counsel present, no matter with what offense he may be charged." 22
Then, too, reference may also be made to the undisputed fact at least fourteen hearings had been
held in chambers of the city court Judge, without objection on the part of respondent policemen.
What was said by former Chief Justice Moran should erase any doubt as to the weight to be
accorded, more appropriately the lack of weight, to any such objection raised. Thus: "In one case,
the trial of the accused was held in Bilibid prison. The accused, invoking his right to a public trial,
assigned the procedure thus taken as error. The Supreme Court held that as it affirmatively appears
on the record that the accused offered no objection to the trial of his case in the place where it was
held, his right is deemed waived." 23 The decision referred to, United States v. Mercado, 24 was handed
down sixty-eight years ago in 1905.
It does seem that the challenged order of respondent is far from being invulnerable.
3. That is all that need be said as to the obvious merit of this petition. One other objection to the
conduct of the proceedings by the city court Judge may be briefly disposed of. Respondent Judge
would seek to lend support to an order at war with obvious meaning of a constitutional provision by
harping on the alleged abdication by an assistant fiscal of his control over the prosecution. Again
here there was a failure to abide by settled law. If any party could complain at all, it is the People of
the Philippines for whom the fiscal speaks and acts. The accused cannot in law be termed an
offended party for such an alleged failure to comply with official duty. Moreover, even assuming that
respondent policemen could be heard to raise such a grievance, respondent Judge ought to have
been aware that thereby no jurisdictional defect was incurred by the city court Judge. As was so
emphatically declared by Justice J.B.L. Reyes in Cariaga v. Justo-Guerrero: 25 "The case below was
commenced and prosecuted without the intervention, mediation or participation of the fiscal or any of his
deputies. This, notwithstanding, the jurisdiction of the court was not affected ... but the court should have
cited the public prosecutor to intervene ... ." 26
4. There is much to be said of course for the concern displayed by respondent Judge to assure the
reality as against the mere possibility of a trial being truly public. If it were otherwise, such a right
could be reduced to a barren form of words. To the extent then that the conclusion reached by him
was motivated by an apprehension that there was an evasion of a constitutional command, he
certainly lived up to what is expected of a man of the robe. Further reflection ought to have

convinced him though that such a fear was unjustified. An objective appraisal of conditions in
municipal or city courts would have gone far in dispelling such misgivings. The crowded daily
calendar, the nature of the cases handled, civil as well as criminal, the relaxed attitude on procedural
rules not being strictly adhered to all make for a less tense atmosphere. As a result the attendance
of the general public is much more in evidence; nor is its presence unwelcome. When it is
remembered further that the occupants of such courts are not chosen primarily for their legal
acumen, but taken from that portion of the bar more considerably attuned to the pulse of public life, it
is not to be rationally expected that an accused would be denied whatever solace and comfort may
come from the knowledge that a judge, with the eyes of the alert court alert to his demeanor and his
rulings, would run the risk of being unjust, unfair, or arbitrary. Nor does it change matters, just
because, as did happen here, it was in the air-conditioned chambers of a city court judge rather than
in the usual place that the trial took place.
WHEREFORE, the writ of certiorari prayed for is granted nullifying, setting aside, and declaring
bereft of any legal force or effect the order of respondent Judge Felix Domingo November 29, 1968
for being issued with grave abuse of discretion. The writ of prohibition sought by petitioner is likewise
granted, commanding respondent Judge or any one acting in his place to desist from any further
action in Criminal Case No. 74830 of the Court of First Instance of Manila other than that of
dismissing the same. The preliminary writ of injunction issued by this Court in its resolution of
February 3, 1969 against the actuation of respondent Judge is made permanent. With costs against
respondent policemen Edgardo Calo and Simeon Carbonnel.
Makalintal, Actg. C.J., Teehankee, Makasiar, Antonio, Esguerra, JJ., concur.
Castro, J., did not take part.
Zaldivar and Barredo, JJ., are on leave.

Footnotes
1 According to the 1925 Constitution: "In all criminal prosecutions, the accused shall
be presumed to be innocent until the contrary is proved, and shall enjoy, the right ...
to have a speedy and public trial. ... ." Art. III, Sec. 1, par. 17. The present
Constitution, in its Art. IV, speaks of an accused in all criminal prosecutions enjoying
the right "to have a speedy, impartial and public trial ... ." Sec 19.
2 The other respondents are Edgardo Calo and Simeon Carbonnel of the City of
Manila police force.
3 The real petitioner is Francisco Lorenzana.
4 Petition, paragraph 3.
5 Ibid, paragraph 5.

6 Ibid, paragraph 7.
7 Ibid, paragraphs 8-9.
8 Ibid.
9 Ibid, paragraph 11.
10 Id, paragraph 20.
11 III S. Laurel, ed., Proceedings of the Philippine Constitutional Convention [of 1934
- 1935] 665 - 666 (1966).
12 Section 3.
13 Section 5. There was an express mention thereof in President McKinley's
Instructions to the Second Philippine Commission of April 7, 1900.
14 333 US 257 (1948). Cf. Singer v. United States, 380 United States 532(1965) and
Estes v. Texas, 381 US 532 (1966).
15 Ibid, 266.
16 Ibid.
17 Ibid, 266-267. The State referred to is Pennsylvania.
18 Ibid, 267.
19 Ibid, 267-268.
20 Cf. Duncan v. Louisiana, 391 US 145 (1968).
21 According to Rule 119, Sec. 14 of the Rules of Court: "The court may upon own its
own motion exclude the public from the courtroom if the evidence to be produced
during the trial is of such a character as to be offensive to decency or public morals."
Cf. Reagan v. United States, 202 Fed. 488 (1918).
22 In re Oliver, 333 US 257, 272.
23 4 Moran Comments on the Rules of Court, 1970 ed., 207-208.
24 4 Phil. 304.
25 L-24494, June 22, 1968, 23 SCRA 1061.

26 Ibid, 1065-1066.

EN BANC

[A.M. No. 01-4-03-SC. June 29, 2001]

RE: REQUEST RADIO-TV COVERAGE OF THE TRIAL IN THE

SANDIGANBAYAN OF THE PLUNDER CASES AGAINST THE
FORMER PRESIDENT JOSEPH E. ESTRADA, SECRETARY OF
JUSTICE HERNANDO PEREZ, KAPISANAN NG MGA
BRODKASTER NG PILIPINAS, CESAR SARINO, RENATO
CAYETANO
and
ATTY.
RICARDO
ROMULO, petitioners,
vs. JOSEPH E. ESTRADA and INTEGRATED BAR OF THE
PHILIPPINES, oppositors.
DECISION
VITUG, J.:

The travails of a deposed President continue. The Sandiganbayan reels to start hearing the
criminal charges against Mr. Joseph E. Estrada. Media seeks to cover the event via live television
and live radio broadcast and endeavors this Court to allow it that kind of access to the
proceedings.
On 13 March 2001, the Kapisanan ng mga Brodkaster ng Pilipinas (KBP), an association
representing duly franchised and authorized television and radio networks throughout the
country, sent a letter[1] requesting this Court to allow live media coverage of the anticipated trial
of the plunder and other criminal cases filed against former President Joseph E. Estrada before
the Sandiganbayan in order "to assure the public of full ransparency in the proceedings of an
unprecedented case in our history."[2] The request was seconded by Mr. Cesar N. Sarino in his
letter of 05 April 2001 to the Chief Justice and, still later, by Senator Renato Cayetano and
Attorney Ricardo Romulo.
On 17 April 2001, the Honorable Secretary of Justice Hernando Perez formally filed the
instant petition,[3] submitting the following exegesis:

"3. The foregoing criminal cases involve the previous acts of the former highest
official of the land, members of his family, his cohorts and, therefore, it cannot be
over emphasized that the prosecution thereof, definitely involves a matter of public
concern and interest, or a matter over which the entire citizenry has the right to know,
be informed and made aware of.
" 4. There is no gainsaying that the constitutional right of the people to be informed on
matters of public concern, as in the instant cases, can best be recognized, served and

satisfied by allowing the live radio and television coverage of the concomitant court
proceedings.
"5. Moreover, the live radio and television coverage of the proceedings will also serve
the dual purpose of ensuring the desired transparency in the administration of justice
in order to disabuse the minds of the supporters of the past regime of any and all
unfounded notions, or ill-perceived attempts on the part of the present dispensation, to
'railroad' the instant criminal cases against the Former President Joseph Ejercito
Estrada."[4]
Public interest, the petition further averred, should be evident bearing in mind the right of the
public to vital information affecting the nation.
In effect, the petition seeks a re-examination of the 23rd October 1991 resolution of this
Court in a case for libel filed by then President Corazon C. Aquino. The resolution read:

"The records of the Constitutional Commission are bereft of discussion regarding the
subject of cameras in the courtroom. Similarly, Philippine courts have not had the
opportunity to rule on the question squarely.
While we take notice of the September 1990 report of the United States Judicial
Conference Ad Hoc Committee on Cameras in the Courtroom, still the current rule
obtaining in the Federal Courts of the United States prohibit the presence of television
cameras in criminal trials. Rule 53 of the Federal Rules of Criminal Procedure forbids
the taking of photographs during the progress of judicial proceedings or radio
broadcasting of such proceedings from the courtroom. 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. To 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.
"Courts do not discriminate against radio and television media by forbidding the
broadcasting or televising of a trial while permitting the newspaper reporter access to
the courtroom, since a television or news reporter has the same privilege, as the news
reporter is not permitted to bring his typewriter or printing press into the courtroom.
"In Estes vs. Texas, the United States Supreme Court held that television coverage of
judicial proceedings involves an inherent denial of the due process rights of a criminal
defendant. Voting 5-4, the Court through 'Mr. Justice Clark, identified four (4) areas of
potential prejudice which might arise from the impact of the cameras on the jury,
witnesses, the trial judge and the defendant. The decision in part pertinently stated:

"'Experience likewise has established the prejudicial effect of telecasting on

witnesses. Witnesses might be frightened, play to the camera, or become
nervous. They are subject to extraordinary out-of-court influences which might affect
their testimony. Also, telecasting not only increases the trial judge's responsibility to
avoid actual prejudice to the defendant, it may as well affect his own
performance. Judges are human beings also and are subject to the same psychologjcal
reactions as laymen. For the defendant, telecasting is a form of mental harassment and
subjects him to excessive public exposure and distracts him from the effective
presentation of his defense.
'The television camera is a powerful weapon which intentionally or inadvertently can
destroy an accused and his case in the eyes of the public.'
"Representatives of the press have no special standing to apply for a writ of mandate
to compel a court to permit them to attend a trial, since within the courtroom, a
reporter's constitutional rights are no greater than those of any other member of the
public. Massive intrusion of representatives of the news media into the trial itself can
so alter or destroy the constitutionally necessary judicial atmosphere and decorum that
the requirements of impartiality imposed by due process of law are denied the
defendant and a defendant in a criminal proceeding should not be forced to run a
gauntlet of reporters and photographers each time he enters or leaves the courtroom.
"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 PROHIBIT live radio and television
coverage of court proceedings. Video footages of court hearings for news purposes
shall be limited and restricted as above indicated."
Admittedly, the press is a mighty catalyst in awakening public consciousness, and it has
become an important instrument in the quest for truth. [5]Recent history exemplifies media's
invigorating presence, and its contribution to society is quite impressive. The Court, just recently,
has taken judicial notice of the enormous effect of media in stirring public sentience during the

impeachment trial, a partly judicial and partly political exercise, indeed the most-watched
program in the boob-tubes during those times, that would soon culminate in EDSA II.
The propriety of granting or denying the instant petition involve 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.[6]
When these rights race against one another, jurisprudence[7] tells us that the right of the
accused must be preferred to win.
With the possibility of losing not only the precious liberty but also the very life of an
accused, it behooves all to make absolutely certain that an accused receives a verdict solely on
the basis of a just and dispassionate judgment, a verdict that would come only after the
presentation of credible evidence testified to by unbiased witnesses unswayed by any kind of
pressure, whether open or subtle, in proceedings that are devoid of histrionics that might detract
from its basic aim to ferret veritable facts free from improper influence, [8] and decreed by a judge
with an unprejudiced mind, unbridled by running emotions or passions.
Due process guarantees the accused a presumption of innocence until the contrary is proved
in a trial that is not lifted above its individual settings nor made an object of public's
attention[9] and where the conclusions reached are induced not by any outside force or
influence[10] but only by evidence and argument given in open court, where fitting dignity and
calm ambiance is demanded.
Witnesses and judges may very well be men and women of fortitude, able to thrive in hardy
climate, with every reason to presume firmness of mind and resolute endurance, but it must also
be conceded that "television can work profound changes in the behavior of the people it focuses
on."[11] Even while it may be difficult to quantify the influence, or pressure that media can bring
to bear on them directly and through the shaping of public opinion, it is a fact, nonetheless, that,
indeed, it does so in so many ways and in varying degrees. The conscious or unconscious effect
that such coverage may have on the testimony of witnesses and the decision of judges cannot be
evaluated but, it can likewise be said, it is not at all unlikely for a vote of guilt or innocence to
yield to it.[12] It might be farcical to build around them an impregnable armor against the influence
of the most powerful media of public opinion.[13]
To say that actual prejudice should first be present would leave to near nirvana the subtle
threats to justice that a disturbance of the mind so indispensable to the calm and deliberate
dispensation of justice can create.[14] The effect of television may escape the ordinary means of
proof, but it is not far-fetched for it to gradually erode our basal conception of a trial such as we
know it now.[15]
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.[16]
The courts recognize the constitutionally embodied freedom of the press and the right to
public information. It also approves of media's exalted power to provide the most accurate and
comprehensive means of conveying the proceedings to the public and in acquainting the public
with the judicial process in action; nevertheless, within the courthouse, the overriding
consideration is still the paramount right of the accused to due process [17] which must never be
allowed to suffer diminution in its constitutional proportions. Justice Clark thusly pronounced,
"while a maximum freedom must be allowed the press in carrying out the important function of
informing the public in a democratic society, its exercise must necessarily be subject to the
maintenance of absolute fairness in the judicial process."[18]
This Court, in the instance[19] already mentioned, citing Estes vs. Texas,[20] the United States
Supreme Court holding the television coverage of judicial proceedings as an inherent denial of
due process rights of an accused, also identified the following as being likely prejudices:

"1. The potential impact of television x x x is perhaps of the greatest significance. x x

x. From the moment the trial judge announces that a case will be televised it becomes
a cause celebre. The whole community, x x x becomes interested in all the morbid
details surrounding it. The approaching trial immediately assumes an important status
in the public press and the accused is highly publicized along with the offense with
which he is charged. Every juror carries with him into the jury box these solemn facts
and thus increases the chance of prejudice that is present in every criminal case. x x x
"2. The quality of the testimony in criminal trials will often be impaired. The impact
upon a witness of the knowledge that he is being viewed by a vast audience is simply
incalculable. Some may be demoralized and frightened, some cocky and given to
overstatement; memories may falter, as with anyone speaking publicly, and accuracy
of statement may be severely undermined. x x x. Indeed, the mere fact that the trial is
to be televised might render witnesses reluctant to appear and thereby impede the trial
as well as the discovery of the truth.
"3. A major aspect of the problem is the additional responsibilities the presence of
television places on the trial judge. His job is to make certain that the accused receives
a fair trial. This most difficult task requires his undivided attention. x x x
4. Finally, we cannot ignore the impact of courtroom television on the defendant. Its
presence is a form of mental - if not physical-harassment, resembling a police line-up
or the third degree. The inevitable close-up of his gestures and expressions during the
ordeal of his trial might well transgress his personal sensibilities, his dignity, and his
ability to concentrate on the proceedings before him - sometimes the difference
between life and death - dispassionately, freely and without the distraction of wide
public surveillance. A defendant on trial for a specific crime is entitled to his day in

court, not in a stadium, or a city or nationwide arena. The heightened public clamor
resulting from radio and television coverage will inevitably result in prejudice."
In his concurring opinion in Estes, Mr. Justice Harlan opined that live television and radio
coverage could have mischievous potentialities for intruding upon the detached atmosphere that
should always surround the judicial process.[21]
The Integrated Bar of the Philippines, in its Resolution of 16 April 2001, expressed its own
concern on the live television and radio coverage of the criminal trials of Mr. Estrada; to
paraphrase: Live television and radio coverage can negate the rule on exclusion of witnesses
during the hearings intended to assure a fair trial; at stake in the criminal trial is not only the life
and liberty of the accused but the very credibility of the Philippine criminal justice system, and
live television and radio coverage of the trial could allow the "hooting throng" to arrogate unto
themselves the task of judging the guilt of the accused, such that the verdict of the court will be
acceptable only if popular; and live television and radio coverage of the trial will not subserve
the ends of justice but will only pander to the desire for publicity of a few grandstanding lawyers.
It may not be unlikely, if the minority position were to be adopted, to see protracted delays
in the prosecution of cases before trial courts brought about by petitions seeking a declaration of
mistrial on account of undue publicity and assailing a court a quo's action either allowing or
disallowing live media coverage of the court proceedings because of supposed abuse of
discretion on the part of the judge.
En passant, the minority would view the ponencia as having modified the case law on the
matter. Just to the contrary, the Court effectively reiterated its standing resolution of 23 October
1991. Until 1991, the Court had yet to establish the case law on the matter, and when it did in its
23 October resolution, it confirmed, in disallowing live television and radio coverage of court
proceedings, that "the records of the Constitutional Commission (were) bereft of discussion
regarding the subject of cameras in the courtroom" and that "Philippine courts (had) not
(theretofore) had the opportunity to rule on the question squarely."
rd

But were the cases decided by the U.S. courts and cited in the minority opinion really in
point?
In Nebraska Press Association vs. Stewart,[22] the Nebraska State trial judge issued an order
restraining news media from publishing accounts of confession or admissions made by the
accused or facts strongly implicating him. The order was struck down. In Richmond Newspaper,
Inc., vs. Virginia,[23]the trial judge closed the courtroom to the public and all participants except
witnesses when they testify. The judge was reversed by the U.S. Supreme Court which ruled that
criminal trials were historically open. In Globe Newspaper vs. Superior Court ,[24] the US Supreme
Court voided a Massachusetts law that required trial judges to exclude the press and the public
from the courtroom during the testimony of a minor victim of certain sexual offenses.
Justice Stewart, in Chandler vs. Florida,[25] where two police officers charged with burglary
sought to overturn their conviction before the US Supreme Court upon the ground that the
television coverage had infringed their right to fair trial, explained that "the constitutional
violation perceived by the Estes Court did not stem from the physical disruption that might one
day disappear with technological advances in the television equipment but inhered, rather, in the

hypothesis that the mere presence of cameras and recording devices might have an effect on the
trial participants prejudicial to the accused."[26]
Parenthetically, the United States Supreme Court and other federal courts do not allow live
television and radio coverage of their proceedings.
The sad reality is that the criminal cases presently involved are of great dimensions so
involving as they do a former President of the Republic. It is undeniable that these cases have
twice become the nation's focal points in the two conflicting phenomena of EDSA II and EDSA
III where the magnitude of the events has left a still divided nation. Must these events be invited
anew and risk the relative stability that has thus far been achieved? The transcendental events in
our midst do not allow us to, turn a blind eye to yet another possible extraordinary case of mass
action being allowed to now creep into even the business of the courts in the dispensation of
justice under a rule of law. At the very least, a change in the standing rule of the court contained
in its resolution of 23 October 1991 may not appear to be propitious.
Unlike other government offices, courts do not express the popular will of the people in any
sense which, instead, are tasked to only adjudicate justiciable controversies on the basis of what
alone is submitted before them.[27] A trial is not a free trade of ideas. Nor is a competing market of
thoughts the known test truth in a courtroom.[28]
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 to 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.
Pardo, Buena, Gonzaga-Reyes, and De Leon, Jr., JJ., concur.
Davide, Jr., C.J., Bellosillo, and Quisumbing, JJ., joins the dissenting opinion of Puno, J.
Puno, and Panganiban, JJ., see dissenting opinion.
Kapunan, and Sandoval-Gutierrez, JJ., see concurring opinion.
Melo, J., joins the dissents.
Mendoza, J., concur in the majority opinion of Vitug, J., and join the separate opinion of
Kapunan, J.
Ynares-Santiago, J., on leave.

[1]

Signed by KBP President Ruperto S. Nicdao, Jr.

[2]

Letter to Hon. Hilario Davide Jr. by Ruperto Nicdao, 13 March 2001

[3]

"Petition to Allow Live Radio and Television Coverage of the Court Hearings on the Plunder and Other Criminal
Cases Filed Against Former President Joseph Ejercito Estrada, et al., Pending Before the Sandiganbayan."
[4]

Petition, pp. 3-4.

[5]

Perfecto Fernandez, Law of the Press, 2nd Edition, p. 210

[6]

Re: Live TV and radio coverage of the hearing of President Corazon C. Aquino Libel Case; infra.

[7]

People vs. Alarcon, 60 Phil 265; Estes vs. Texas, 381 US 532; Sheppard vs. Maxwell, 384 US 333

[8]

People vs.; Stapleton, 18 Colo. 568, 33 p. 167, 23. L.R.A 787, (1983)

[9]

75 American Jurisprudence 2d, p. 569

[10]

Patterson vs. Colorado, 205 US 454.

[11]

Keating, American Jurisdiction 2d, p. 565.

[12]

US Supreme Court Reports, 14 L ed 2d, p.552

[13]

As Mr Justice Jackson, dissenting in Craig vs. Harney, 331 U.S. 396, aptly said: 'Who does not prefer good to ill
report of his work? And if fame -a good public name -is, as Milton said, the "last Infirmity of the noble mind," it is
frequently the "first infirmity of a mediocre one."
[14]

Freedom of the Press vs. Impartial Justice," MLQ Quarterly, Volume 6, No.2, p.100

[15]

Cf. Fay v. New York, 332 US 261; Offut vs. United States, 348 US 11

[16]

Ibid., p.574

[17]

Mr. Justice Harran concurring in Estes vs. Texas, supra

[18]

Mr. Justice Tom Clark concurring in Estes vs. Texas, supra

[19]

Re: Live TV and radio coverage of Pres. Corazon Aquino's Libel case, 23 October 1991

[20]

381 U.S. 532, 14 L ed 2d 543, 85 S Ct 1628.

[21]

Mr. Justice Harlan, concurring in Estes vs. Texas, supra

[22]

427 US 539.

[23]

448 US 555.

[24]

457 US 596.

[25]

449 US 560

[26]

Ibid, p. 758.

[27]

Supra, p. 6

[28]

Frankfurter, J., dissenting in Bridges vs. California, 314 U.S. 252, 283

U.S. Supreme Court

Tumey v. Ohio, 273 U.S. 510 (1927)

Tumey v. Ohio
No. 527
Argued November 29, 30, 1926
Decided March 7, 1927
273 U.S. 510
ERROR TO THE SUPREME COURT OF OHIO
Syllabus
1. To subject a defendant to trial in a criminal case involving his liberty or property
before a judge having a direct, personal, substantial interest in convicting him is a denial
of due process of law. P. 273 U. S. 522.
2. A system by which an inferior judge is paid for his service only when he convicts the
defendant has not become so customary in the common law or in this country that it can
be regarded as due process where the costs usually imposed are not so small as to be
within the maxim de minimis non curat lex. Pp. 273 U. S. 523, 273 U. S. 531.
Page 273 U. S. 511
3. Under statutes of Ohio, offenses against State prohibition, involving a wide range of
fines enforceable by imprisonment, may be tried without a jury, before the mayor of any
rural village situate in the county (however populous) in which offenses occur; his
judgment upon the facts is final and conclusive unless so clearly unsupported as to
indicate mistake, bias, or willful disregard of duty; the fines are divided between the
State and village; the village, by means of the fines collected, hires attorneys and
detectives to arrest alleged offenders anywhere in the county and prosecute them
before the mayor; in addition to his salary, the mayor, when he convicts, but not
otherwise, receive his fees and cost amounting to a substantial income; the fine offer a

means of adding materially to the financial prosperity of the village, for which the mayor,
in his executive capacity, is responsible. Held violative of the Fourteenth Amendment.
Pp. 273 U. S. 520, 273 U. S. 531.
115 Oh.St. 701, reversed.
ERROR to a judgment of the Supreme Court of Ohio which declined to review a
judgment of the State Court of Appeals, 22 Oh.L.Rep. 634, reversing a judgment of the
Court of Common Pleas of Hamilton County, 25 Oh.Nisi Prius (N.S.) 580, which
reversed a judgment of the Mayor of the Village of North College Hill convicting and
fining Tumey for violation of the Ohio Prohibition Act and ordering that he be imprisoned
until the fine and costs were paid.
Page 273 U. S. 514
MR. CHIEF JUSTICE TAFT delivered the opinion of the Court.
The question in this case is whether certain statutes of Ohio, in providing for the trial by
the mayor of a village of one accused of violating the Prohibition Act of the State,
deprive the accused of due process of law and violate the Fourteenth Amendment to the
Federal Constitution
Page 273 U. S. 515
because of the pecuniary and other interest which those statutes give the mayor in the
result of the trial.
Tumey, the plaintiff in error, hereafter to be called the defendant, was arrested and
brought before Mayor Pugh, of the Village of North College Hill, charged with unlawfully
possessing intoxicating liquor. He moved for his dismissal because of the
disqualification of the Mayor to try him, under the Fourteenth Amendment. The Mayor
denied the motion, proceeded to the trial, convicted the defendant of unlawfully
possessing intoxicating liquor within Hamilton County, as charged, fined him $100, and
ordered that he be imprisoned until the fine and costs were paid. He obtained a bill of
exceptions and carried the case on error to the Court of Common Pleas of Hamilton
County. That court heard the case and reversed the judgment on the ground that the
Mayor was disqualified, as claimed. 25 Ohio Nisi Prius (N.S.) 580. The State sought

review by the Court of Appeals of the first appellate district of Ohio, which reversed the
Common Pleas and affirmed the judgment of the Mayor. 23 Ohio Law Reporter, 634.
On May 4, 1926, the State Supreme Court refused defendant's application to require the
Court of Appeals to certify its record in the case. The defendant then filed a petition in
error in that court as of right, asking that the judgment of the Mayor's Court and of the
Appellate Court be reversed on constitutional grounds. On May 11, 1926, the Supreme
Court adjudged that the petition be dismissed for the reason that no debatable
constitutional question was involved in the cause. The judgment was then brought here
upon a writ of error allowed by the Chief Justice of the State Supreme Court, to which it
was rightly directed. Matthews v. Huwe, Treasurer, 269 U. S. 262; Hetrick v. Village of
Lindsey, 265 U. S. 384. This brings us to the merits of the case.
Page 273 U. S. 516
The defendant was arrested and charged with the unlawful possession of intoxicating
liquor at White Oak, another village in Hamilton County, Ohio, on a warrant issued by
the Mayor of North College Hill. The Mayor acted under the sections of the State
Prohibition Act, and Ordinance No. 125 of the Village of North College Hill adopted in
pursuance thereof.
Section 6212-15 (Ohio General Code) provides that "No person shall after the passage
of this act manufacture possess . . . any intoxicating liquors. . . ."
Section 6212-17 provides that
". . . any person who violates the provisions of this act (General Code, Sections 6212-13
to 6212-20) for a first offense shall be fined not less than one hundred dollars nor more
than one thousand dollars; for a second offense he shall be fined not less than three
hundred dollars nor more than two thousand dollars; for a third and each subsequent
offense he shall be fined not less than five hundred dollars nor more than two thousand
dollars and be imprisoned in the state penitentiary not less than one year nor more than
five years. . . ."
The Mayor has authority, which he exercised in this case, to order that the person
sentenced to pay a fine shall remain in prison until the fine and costs are paid. At the
time of this sentence, the prisoner received a credit of sixty cents a day for each day's

imprisonment. By a recent amendment, that credit has been increased to one dollar and
a half a day. Sections 13716, 13717, Ohio Gen.Code.
Section 62118 provides, in part, that
"Any justice of the peace, mayor, municipal or police judge, probate or common pleas
judge within the county with whom the affidavit is filed charging a violation of any of the
provisions of this act (G.C. Sections 6212-13 to 6212-20) when the offense is alleged to
have been committed in the county in which such mayor, justice of the peace, or judge
Page 273 U. S. 517
may be sitting, shall have final jurisdiction to try such cases upon such affidavits without
a jury, unless imprisonment is a part of the penalty, but error may be prosecuted to the
judgment of such mayor, justice of the peace, or judge as herein provided."
Error from the Mayor's Court lies to the court of Common Pleas of the County, and a bill
of exceptions is necessary to present questions arising on the evidence. Sections
10359, 10361, Ohio General Code. The appellate review in respect of evidence is such
that the judgment can only be set aside by the reviewing court on the ground that it is so
clearly unsupported by the weight of the evidence as to indicate some misapprehension
or mistake or bias on the part of the trial court, or a willful disregard of duties. Datesh v.
State, 23 Ohio Nisi Prius (N.S.) 273.
Section 6212-19 provides that
"Money arising from fines and forfeited bonds shall be paid one-half into the state
treasury credited to the general revenue fund, one-half to the treasury of the township,
municipality or county where the prosecution is held, according as to whether the officer
hearing the case is a township, municipal, or county officer."
Section 6212-37 provides that
"The council of any city or village may by ordinance authorize the use of any part of the
fines collected for the violation of any law prohibiting the manufacture and sale of
intoxicating liquors, for the purpose of hiring attorneys, detectives. or secret service
officers to secure the enforcement of such prohibition law. And such council are hereby
authorized to appropriate not more than five hundred dollars annually from the general

revenue funds for the purpose of enforcing the law prohibiting the manufacture and sale
of intoxicating liquors, when there are no funds available from the fines collected for the
violation of such prohibitory law."
Under the authority of the last section, the Village Council of North College Hill passed
Ordinance No. 125, as follows:
Page 273 U. S. 518
"An ordinance to provide for compensation to be paid from the secret service funds of
the Village of North College Hill, Hamilton County, Ohio, created by authority of Section
62137, of the General Code of Ohio, to detectives, secret service officers, deputy
marshals' and attorneys' fees, costs, etc., for services in securing evidence necessary to
conviction and prosecuting violation of the law of the state of Ohio prohibiting the liquor
traffic."
"Be it ordained by the Council of the Village of North College Hill, Hamilton County,
Ohio:"
"Section I. That fifty percent of all moneys hereafter paid into the treasury of said village
of North College Hill, Ohio, that is one-half of the share of all fines collected and paid
into and belonging to said village of North College Hill, Ohio, received from fines
collected under any law of the state of Ohio prohibiting the liquor traffic, shall constitute
a separate fund to be called the Secret Service Fund to be used for the purpose of
securing the enforcement of any prohibition law."
"Section II. That deputy marshals of the village of North College Hill, Ohio, shall receive
as compensation for their services in securing the evidence necessary to secure the
conviction of persons violating the law of the state of Ohio, prohibiting the liquor traffic,
an amount of money equal to 15 percent. of the fine collected, and other fees allowed by
law."
"Section II. That the attorney at law of record prosecuting persons charged with violating
the law of the state of Ohio, prohibiting the liquor traffic, shall receive as compensation
for legal services an amount equal to 10 percent. of the fine collected, in all cases,
whether the plea be guilty or not guilty."

"Section IV. That detectives and secret service officers shall receive as compensation
for their services in securing the evidence necessary to secure the conviction of
Page 273 U. S. 519
persons violating the law of the state of Ohio, prohibiting the liquor traffic, an amount of
money equal to 15 percent. of the fine collected."
"Section V. That the mayor of the village of North College Hill, Ohio, shall receive or
retain the amount of his costs in each case, in addition to his regular salary, as
compensation for hearing such cases."
"Section VI. This ordinance is hereby declared to be an emergency ordinance,
necessary to the immediate preservation of the public peace and safety, made
necessary by reason of the flagrant violation of the laws of Ohio, enacted to prohibit
traffic in intoxicating liquors, and shall be in effect from and after its passage."
The duties of the Mayor of a village in Ohio are primarily executive. Sections of the
General Code of Ohio provide as follows:
"Section 4248. The executive power and authority of villages shall be vested in a mayor,
clerk, treasurer, marshal, street commissioner, and such other officers and departments
thereof as are created by law."
"Section 4255. . . . He (the Mayor) shall be the chief conservator of the peace within the
corporation. . . . He shall be the president of the council, and shall preside at all regular
and special meetings thereof, but shall have no vote except in case of a tie."
"Section 4258. . . . He shall see that all ordinances, bylaws and resolutions are faithfully
obeyed and enforced."
"Section 4259. The mayor shall communicate to council from time to time a statement of
the finances of the municipality and such other information relating thereto and to the
general condition of affairs of the municipality as he deems proper or as may be
required by council."
"Section 4262. The mayor shall supervise the conduct of all the officers of the
corporation. . . . "

Page 273 U. S. 520

The fees which the Mayor and Marshal received in this case came to them by virtue of
the general statutes of the state applying to all state cases, liquor and otherwise. The
Mayor was entitled to hold the legal fees taxed in his favor. Ohio General Code,
4270; State v. Nolte, 111 O.S. 486. Moreover, the North College Hill village council
sought to remove all doubt on this point by providing ( 5, Ord. 125, supra), that he
should receive or retain the amount of his costs in each case, in addition to his regular
salary, as compensation for hearing such cases. But no fees or costs in such cases are
paid him except by the defendant if convicted. There is, therefore, no way by which the
Mayor may be paid for his service as judge if he does not convict those who are brought
before him, nor is there any fund from which marshals, inspectors and detectives can be
paid for their services in arresting and bringing to trial and furnishing the evidence to
convict in such cases, except it be from the initial $500 which the village may vote from
its treasury to set the court going, or from a fund created by the fines thereafter
collected from convicted defendants.
By an Act of 1913 (103 O.L. 290), the Mayor's court in villages in Hamilton County and
in half a dozen other counties with large cities was deprived of jurisdiction to hear and
punish misdemeanors committed in the county beyond the limits of the corporation. The
Prohibition Act, known as the Crabbe Act, adopted in 1920 (108 O.L., Pt. 1, 388 and Pt.
2, 1182) changed this, and gave to the Mayor of every village in the State jurisdiction
within the county in which it was situate to try violations of that Act.
Counsel for the State in their brief explain the vesting by state legislatures of this country
of jurisdiction in village courts as follows:
"The purpose of extending the jurisdiction in the first instance was to break up places of
outlawry that were located on the municipal boundary just outside of the city. The
Legislature also
Page 273 U. S. 521
faced the situation that, in some of the cities the law enforcement agencies were failing
to perform their duty, and therefore, in order that those forces that believe in
enforcement and upholding of law might have some courts through which process could
be had, it gave to mayors county-wide jurisdiction."

It was further pointed out in argument that the system by which the fines to be collected
were to be divided between the State and the village was for the proper purpose of
stimulating the activities of the village officers to such due enforcement.
The Village of North College Hill in Hamilton County, Ohio, is shown by the federal
census to have a population of 1104. That of Hamilton County, including the City of
Cincinnati, is more than half a million. The evidence discloses that Mayor Pugh came to
office after ordinance No. 125 was adopted, and that there was a division of public
sentiment in the village as to whether the ordinance should continue in effect. A petition
opposing it and signed by a majority of the voters was presented to Mayor Pugh. To this,
the Mayor answered with the declaration that, if the village was in need of finances, he
was in favor of, and would carry on, "the Liquor Court," as it was popularly called, but
that, if the court was not needed for village financial reasons, he would not do so. It
appears that substantial sums were expended out of the village treasury, from the fund
made up of the fines thus collected, for village improvements and repairs. The Mayor
was the owner of a house in the village.
Between May 11, 1923 and December 31, 1923, the total amount of fines for violation of
the prohibition law, collected by this village court, was upwards of $20,000, from which
the State received $8,992.50, North College Hill received $4,471.25 for its general uses,
$2,697.25 was placed to the credit of the village safety fund, and the balance was put in
the secret service fund. Out of this, the person acting as prosecutor in the liquor court
received
Page 273 U. S. 522
in that period $1,796.50; the deputy marshals, inspectors and other employees,
including the detectives, received $2,697.75, and $438.50 was paid for cost in
transporting prisoners, serving writs and other services in connection with the trial of
these cases. Mayor Pugh received $696.35 from these liquor cases during that period
as his fees and costs, in addition to his regular salary.
That officers acting in a judicial or quasi-judicial capacity are disqualified by their interest
in the controversy to be decided is, of course, the general rule. Dimes v. Grand Junction
Canal, 3 H.L.C. 759; Gregory v. Railroad, 4 O.S. 675; Peace v. Atwood, 13 Mass.
324; Taylor v. Commissioners, 105 Mass. 225; Kentish Artillery v. Gardiner, 15 R.I.
296; Moses v. Julian, 45 N.H. 52; State v. Crane, 36 N.J.L. 394; Railroad Company v.

Howard, 20 Mich. 18; Stockwell v. Township, 22 Mich. 341; Findley v. Smith, 42 W.Va.
299; Nettleton's Appeal, 28 Conn. 268; Cooley's Constitutional Limitations, 7th ed., p.
592, et seq. Nice questions, however, often arise as to what the degree or nature of the
interest must be. One is in respect of the effect of the membership of a judge in a class
of taxpayers or others to be affected by a principle of law, statutory or constitutional, to
be applied in a case between other parties and in which the judge has no other interest.
Then the circumstance that there is no judge not equally disqualified to act in such a
case has been held to affect the question. Wheeling v. Black, 25 W.Va. 266, 280; Peck
v. Freeholders of Essex, 20 N.J.L. 457; Dimes v. Grand Junction Canal, 3 H.L.C. 759
(see Baron Parke's Answer for the Judges, pp. 785, 787); Year Book, 8 Henry 6, 19, s.c.
2 Roll.Abridg. 93;Evans v. Gore, 253 U. S. 245, 253 U. S. 247; Stuart v. Mechanics' &
Farmers' Bank, 19 Johns. 496; Ranger v. Railroad, 5 H.L.C. 72. We are not
embarrassed by such considerations here, for there were available in this case other
judicial officers who had
Page 273 U. S. 523
no disqualification either by reason of the character of their compensation or their
relation to the village government.
All questions of judicial qualification may not involve constitutional validity. Thus, matters
of kinship, personal bias, state policy, remoteness of interest, would seem generally to
be matters merely of legislative discretion. Wheeling v. Black, 25 W.Va. 266, 270. But it
certainly violates the Fourteenth Amendment, and deprives a defendant in a criminal
case of due process of law, to subject his liberty or property to the judgment of a court
the judge of which has a direct, personal, substantial, pecuniary interest in reaching a
conclusion against him in his case.
The Mayor of the Village of North College Hill, Ohio, had a direct, personal, pecuniary
interest in convicting the defendant who came before him for trial, in the twelve dollars of
costs imposed in his behalf, which he would not have received if the defendant had
been acquitted. This was not exceptional, but was the result of the normal operation of
the law and the ordinance. Counsel for the State do not deny this, but assert the validity
of the practice as an exception to the general rule. The rely upon the cases of Ownbey
v. Morgan, 256 U. S. 94; Murray's Lessee v. Hoboken Land and Improvement
Company, 18 How. 272, 59 U. S. 276-280. These cases show that, in determining what

due process of law is, under the Fifth or Fourteenth Amendment, the Court must look to
those settled usages and modes of proceeding existing in the common and statute law
of England before the emigration of our ancestors, which were shown not to have been
unsuited to their civil and political condition by having been acted on by them after the
settlement of this country. Counsel contend that, in Ohio and in other States, in the
economy which it is found necessary to maintain in the administration of justice in the
inferior courts by justices of the peace and by judicial officers of like jurisdiction, the only
compensation which the State and county
Page 273 U. S. 524
and township can afford is the fees and costs earned by them, and that such
compensation is so small that it is not to be regarded as likely to influence improperly a
judicial officer in the discharge of his duty, or as prejudicing the defendant in securing
justice, even though the magistrate will receive nothing if the defendant is not convicted.
We have been referred to no cases at common law in England prior to the separation of
colonies from the mother country showing a practice that inferior judicial officers were
dependent upon the conviction of the defendant for receiving their compensation.
Indeed, in analogous cases, it is very clear that the slightest pecuniary interest of any
officer, judicial or quasi-judicial, in the resolving of the subject matter which he was to
decide rendered the decision voidable. Bonham's Case, 8 Coke, 118a; s.c. 2 Brownlow
and Goldesborough's Rep. 255; City of London v. Wood,12 Modern Rep. 669, 687; Day
v. Savage, Hobart 85, 87; Hesketh v. Braddock, 3 Burrows 1847, 1856, 1857 and 1858.
As early as the 12th Richard II, A.D. 1388, it was provided that there should be a
commission of the justices of the peace, with six justices in the county once a quarter,
which might sit for three days, and that the justices should receive four shillings a day
"as wages," to be paid by the sheriffs out of a fund made up of fines and amercements,
and that that fund should be added to out of the fines and amercements from the courts
of the Lords of the Franchises, which were hundred courts allowed by the King by grant
to individuals.
It was required that the justices of the peace should be knights, esquires or gentlemen
of the land -- qualifications that were not modified until 1906. The wages paid were used
"to defray their common diet," and soon became obsolete. 1 Holdsworth's History of
English Law, 288, 289. The wages paid were not dependent on conviction

Page 273 U. S. 525

of the defendant. They were paid at a time when the distinction between torts and
criminal case was not clear, Holdsworth, Vol. 2, 363, 365; Vol. 3, 328, and they came
from a fund which was created by fines and amercements collected from both sides in
the controversy. There was always a plaintiff, whether in the action for a tort or the
prosecution for an offense. In the latter, he was called the prosecutor. If he failed to
prove his case, whether civil or criminal, he was subject to amercement pro falso
clamore, while if he succeeded, the defendant was inmisericordia. See Comm. v.
Johnson, 5 S. & R. (Pa.) 195, 198; Musser v. Good, 11 Id. 247. Thus, in the outcome,
someone would be amerced in every case, and the amercements generally went to the
Crown, and the fund was considerable. The Statute of Richard II remained on the
statute book until 1855, when it was repealed by the 18th and 19th Victoria. Meantime,
the hundred courts by franchise had largely disappeared. The wages referred to were
not part of the costs. The costs at common law were the amounts paid either by the
plaintiff or prosecutor or by the defendant for the witnesses or services of the court
officers. Burn's Justice, Vol. 1, p. 628. Chitty's Criminal Law, 4 ed. 1841, Vol. 1,
829. See also 14 George III, ch. 20, 1774. For hundreds of years, the justices of the
peace of England seem not to have received compensation for court work. Instead of
that, they were required, upon entering upon the office, to pay certain fees. Holdsworth,
Vol. 1, p. 289; 19 Halsbury's Laws of England, 1152. Local judges in towns are paid
salaries.
There was at the common law the greatest sensitiveness over the existence of any
pecuniary interest, however small or infinitesimal, in the justices of the peace. In
Hawkins, 2 Pleas of the Crown, we find the following:
"The general rule of law certainly is that justices of the peace ought not to execute their
office in their own case [citing 1 Salk. 396], and even in cases where such
Page 273 U. S. 526
proceeding seems indispensably necessary, as in being publicly assaulted or personally
abused, or their authority otherwise contemned while in the execution of their duty, yet if
another justice be present, his assistance should be required to punish the offender
(Stra. 240)."

"And by the common law, if an order of removal were made by two justices, and one of
them was an inhabitant of the parish from which the pauper was removed, such order
was illegal and bad on the ground that the justice who was an inhabitant was interested,
as being liable to the poor's rate. (Rex v. Great Chart, Burr. S.C.194, Stra. 1173.)"
And this strict principle, unless there is relief by the statute, is seen in modern
cases. Queen v. The Recorder of Cambridge, 8 Ellis & Blackburn, 637; Regina v.
Hammond, 9 Law Times Reports (N.S.) 423; The Queen v. Rand, Law Reports, 1st
Queen's Bench, 230; Queen v. Gafford, 1st Queen's Bench Division, 381; 19 Halsbury's
Laws of England 1156.
There was, then, no usage at common law by which justices of the peace or inferior
judicial officers were paid fees on condition that they convicted the defendants, and
such a practice certainly cannot find support as due process of law in English
precedent. It may be that the principle, as stated in Blackstone, Book 3rd, page 400, that
the King shall neither pay nor receive costs, because it is the King's prerogative not to
pay them to a subject and is beneath his dignity to receive them, was misunderstood
and led, as suggested by Mr. Lewis in his edition of Blackstone, Vol. 3, p. 400, n. 60, to
the practice in some States, in minor cases, of allowing inferior judges no compensation
except by fees collected of the convicted defendant; but whether it did or not, the
principle relied on did not support the practice. That practice has prevailed, and still
prevails, in Arkansas, Kentucky, Nebraska, North Carolina, Georgia, Ohio and Texas,
and it seems
Page 273 U. S. 527
at one time to have obtained in Indiana, Oregon, Illinois and Alabama.
In two of these States only has the question been considered by their courts, and it has
been held that provision for payment to the judge of fees only in case of conviction does
not disqualify him. Those are Bennett v. State, 4 Tex.App. 72; Wellmaker v. Terrell, 3
Ga.App. 791. There is no discussion in either of the question of due process of law. The
existence of a statute authorizing the practice seems to have been the controlling
consideration. Two other cases are cited. In Ex parte Guerrero, 69 Cal. 88, the judge
was paid a regular salary, fixed by law. The fund out of which this was paid was
increased by fees and fines collected in his court, but there is no evidence that payment
of his salary was dependent on the amount of his collections or convictions. In Herbert

v. Baltimore County, 97 Md. 639, the action was by a justice of the peace against a
county for services in criminal cases. A new law limited him to $10 a month. The
statement of the case does not distinctly show that, in convictions, he would have had a
larger compensation from his costs collected out of the defendant, but this may be
assumed from the argument. His contention was that the new law was invalid because it
did not give the defendants before him due process. The court held against him, chiefly
on the ground that he must be satisfied with the compensation the law afforded him.
Responding to his argument that the new law was invalid because justices would be
induced to convict when in justice they should acquit, the court said:
"We cannot recognize the force of this suggestion, founded as it is upon the assumption
that the justices will violate their oaths and the duties of their office, and not upon
anything that the law authorizes to be done."
So far as the case goes, it is an authority for the contention of the State, but the issue
thus raised was not
Page 273 U. S. 528
considered at length, and was not one which, in such an action, the court would be
patient to hear pressed by the justice whose constitutional rights were not affected. Tyler
v. Court, 179 U. S. 405, 179 U. S. 409; California Reduction Co. v. Sanitary Reduction
Works, 199 U. S. 306,199 U. S. 318.
In the case of Probasco v. Raine, Auditor, 50 O.S. 378, the question arose whether the
fee of 4 percent. payable to county auditors for placing omitted property on the duplicate
list for taxation, which required investigation and quasi-judicial consideration, was
invalid. The court held that it was not, and that the objection urged there could not be
based on the argument that a man could not be a judge in his own case; that the auditor
had no case to be adjudged, but that, on the contrary, he was the taxing officer before
whom other parties were cited to appear and show cause why they should not bear their
equal burden of taxation. The court said that the action of the auditor was not final so as
to cut off further inquiry, but that the whole case might be gone into anew by proper
proceedings in court. An exactly opposite conclusion was reached by the United States
Circuit Court for the Northern District of Ohio in Meyers v. Shields, 61 Fed. 713, 725 et
seq.

In other States than those above-mentioned, the minor courts are paid for their services
by the State or county regardless of acquittal or conviction, except that, in Virginia, the
minor courts receive one-half of the usual fees where there is acquittal. Four States
have put into their constitutions a provision that the State must pay the costs in such
cases in case of acquittal. They are California, Florida, Louisiana and South Carolina.
The strict common law rule was adopted in this country as one to be enforced where
nothing but the common law controlled, and citizens and taxpayers have been held
incompetent to sit in suits against the municipal corporation of which they have been
residents. Diveny v.
Page 273 U. S. 529
Elmira, 51 N.Y. 506; Corwein v. Names, 11 Johns. 76; Clark v. Lamb, 2 Allen
396; Dively v. Cedar Falls, 21 Iowa 565; Fulweiler v. St. Louis, 61 Mo. 479; Petition of
New Boston, 49 N.H. 328; Commonwealth v. McLane, 4 Gray 427; Fine v. St. Louis
Public Schools, 30 Mo. 166, 173. With other courts, however, and with the legislatures,
the strict rule seemed to be inconvenient, impracticable, and unnecessary, and the view
was taken that such remote or minute interest in the litigation might be declared by the
Legislature not to be a reason for disqualification of a judge or juror.
A case, much cited, in which this conclusion was reached and in which the old English
corporation cases were considered was that of City Council v. Pepper, 1 Richardson
(S.C.) 364. The recorder of the City of Charleston sentenced a nonresident of the city
for violation of a city ordinance requiring him to take out a license for what he did or to
pay a fine not exceeding $20. The contention was that the defendant was a
noncorporator and nonresident, and not subject to the jurisdiction of the city court; that
the recorder was a corporator and interested in the penalty, and therefore was not
competent to try the cause. The Court said (p. 366) in respect to Hesketh v. Braddock, 3
Burrows 1847, supra:
"It will be remarked that that case depends altogether upon the common law, and if the
city court depended upon the same for its jurisdiction, the objection might be fatal. But
the establishment and jurisdiction of the city court commences with the Act of 1801. By
that Act, it is clothed with the power of trying all offences against the by laws of the city,
and for that purpose is given concurrent jurisdiction with the court of Sessions. This

grant of power is from all the people of the State, through their Legislature, and surely
they have the power to dispense with the common law objection that the corporators
Page 273 U. S. 530
were interested, and ought not to be intrusted with the enforcement of their laws against
others. The authority given to the city court to try all offenders against the city
ordinances impliedly declares that, notwithstanding the common law objection, it was
right and proper to give it the power to enforce the city law against all offenders. That
there was great reason in this cannot be doubted when it is remembered that the
interest of the corporators is so minute as not to be even thought of by sheriff, juror, or
judge. It is very much like the interest which similar officers would feel in enforcing a
State law the sanction of which was a penalty. The sum thus to be recovered goes in
exoneration of some part of the burden of government to which every citizen is
subjected, but such an interest has no effect upon the mind. It is too slight to excite
prejudice against a defendant. The same thing is the case here. For the judge, sheriff
and jurors, are members of a corporation of many thousand members. What interest of
value have they in a fine of twenty dollars? It would put a most eminent calculator to
great trouble to ascertain the very minute grain of interest which each of these
gentlemen might have. To remove so shadowy and slight an objection, the Legislature
thought proper to clothe the city court, consisting of its judge, clerk, sheriff and jurors,
with authority to try the defendant, and he cannot now object to it."
And the same view is taken in Commonwealth v. Ryan, 5 Mass. 90; Commonwealth v.
Reed, 1 Gray 472, 475; Thomas v. Mt. Vernon, 9 Ohio 290; Commissioners v. Lytle, 3
Ohio 289;Wheeling v. Black, 25 W.Va. 266, 280; Board of Justices v. Fennimore, 1
N.J.L.190; Foreman v. Mariana, 43 Ark. 324; Cartersville v. Lyon, 69 Ga. 577; Omaha v.
Olmstead, 5 Neb. 446; Hill v. Wells, 6 Pickering 104; Commonwealth v. Emery, 11
Cushing 406; Barnett
Page 273 U. S. 531
v. State, 4 Tex.App. 72; Wellmaker v. Terrell, 3 Ga.App. 791; State v. Craig, 80 Maine 85.
Mr. Justice Cooley, in his work on Constitutional Limitations, 7th edition, page 594,
points out that the real ground of the ruling in these cases is that

"interest is so remote, trifling and insignificant that it may fairly be supposed to be

incapable of affecting the judgment of or of influencing the conduct of an individual. And
where penalties are imposed, to be recovered only in a municipal court, the judge or
jurors in which would be interested as corporators in the recovery, the law providing for
such recovery must be regarded as precluding the objection of interest."
But the learned judge then proceeds:
"But except in cases resting upon such reasons, we do not see how the legislature can
have any power to abolish a maxim which is among the fundamentals of judicial
authority."
Referring then to a remark in the case of the Matter of Leefe, 2 Barb.Ch. 39, that the
people of the State, when framing their constitution, might possibly establish so great an
anomaly, if they saw fit, the learned author says:
"Even this must be deemed doubtful, since the adoption of the fourteenth article of the
amendments to the Federal Constitution, which denies to the state the right to deprive
one of life, liberty or property without due process of law."
From this review, we conclude that a system by which an inferior judge is paid for his
service only when he convicts the defendant has not become so embedded by custom
in the general practice either at common law or in this country that it can be regarded as
due process of law unless the costs usually imposed are so small that they may be
properly ignored as within the maxim de minimis non curat lex.
The Mayor received for his fees and costs in the present case $12, and from such costs
under the Prohibition Act
Page 273 U. S. 532
for seven months he made about $100 a month, in addition to his salary. We cannot
regard the prospect of receipt or loss of such an emolument in each case as a minute,
remote, trifling or insignificant interest. It is certainly not fair to each defendant, brought
before the Mayor for the careful and judicial consideration of his guilt or innocence, that
the prospect of such a loss by the Mayor should weigh against his acquittal.

These are not cases in which the penalties and the costs are negligible. The field of
jurisdiction is not that of a small community engaged in enforcing its own local
regulations. The court is a state agency imposing substantial punishment, and the
cases to be considered are gathered from the whole county by the energy of the village
marshals and detectives regularly employed by the village for the purpose. It is not to be
treated as a mere village tribunal for village peccadillos. There are doubtless mayors
who would not allow such a consideration as $12 costs in each case to affect their
judgment in it; but the requirement of due process of law in judicial procedure is not
satisfied by the argument that men of the highest honor and the greatest self-sacrifice
could carry it on without danger of injustice. Every procedure which would offer a
possible temptation to the average man as a judge to forget the burden of proof required
to convict the defendant, or which might lead him not to hold the balance nice, clear, and
true between the State and the accused denies the latter due process of law.
But the pecuniary interest of the Mayor in the result of his judgment is not the only
reason for holding that due process of law is denied to the defendant here. The statutes
were drawn to stimulate small municipalities in the country part of counties in which
there are large cities, to organize and maintain courts to try persons accused of
violations of the Prohibition Act everywhere in the county. The inducement is offered of
dividing between
Page 273 U. S. 533
the State and the village the large fines provided by the law for its violations. The trial is
to be had before a mayor without a jury, without opportunity for retrial, and with a review
confined to questions of law presented by a bill of exceptions, with no opportunity by the
reviewing court to set aside the judgment on the weighing of evidence unless it should
appear to be so manifestly against the evidence as to indicate mistake, bias or willful
disregard of duty by the trial court. The statute specifically authorizes the village to
employ detectives, deputy marshals, and other assistants to detect crime of this kind all
over the county, and to bring offenders before the Mayor's court, and it offers to the
village council and its officers a means of substantially adding to the income of the
village to relieve it from further taxation. The mayor is the chief executive of the village.
He supervises all the other executive officers. He is charged with the business of looking
after the finances of the village. It appears from the evidence in this case, and would be
plain if the evidence did not show it, that the law is calculated to awaken the interest of

all those in the village charged with the responsibility of raising the public money and
expending it, in the pecuniarily successful conduct of such a court. The mayor
represents the village, and cannot escape his representative capacity. On the other
hand, he is given the judicial duty, first, of determining whether the defendant is guilty at
all, and second, having found his guilt, to measure his punishment between $100 as a
minimum and $1,000 as a maximum for first offenses, and $300 as a minimum and
$2,000 as a maximum for second offenses. With his interest as mayor in the financial
condition of the village, and his responsibility therefor, might not a defendant with reason
say that he feared he could not get a fair trial or a fair sentence from one who would
have so strong a motive to help his village by conviction and a heavy fine? The old
English cases, cited above, of the
Page 273 U. S. 534
days of Coke and Holt and Mansfield, are not nearly so strong. A situation in which an
official perforce occupies two practically and seriously inconsistent positions, one
partisan and the other judicial, necessarily involves a lack of due process of law in the
trial of defendants charged with crimes before him. City of Boston v. Baldwin, 139 Mass.
315; Florida ex rel. Colcord v. Young, 31 Fla. 594. It is, of course, so common to vest the
mayor of villages with inferior judicial functions that the mere union of the executive
power and the judicial power in him cannot be said to violate due process of law. The
minor penalties usually attaching to the ordinances of a village council, or to the
misdemeanors in which the mayor may pronounce final judgment without a jury, do not
involve any such addition to the revenue of the village as to justify the fear that the
mayor would be influenced in his judicial judgment by that fact. The difference between
such a case and the plan and operation of the statutes before us is so plain as not to
call for further elaboration.
Counsel for the State argue that it has been decided by this Court that the legislature of
a State may provide such system of courts as it chooses; that there is nothing in the
Fourteenth Amendment that requires a jury trial for any offender; that it may give such
territorial jurisdiction to its courts as it sees fit, and therefore that there is nothing sinister
or constitutionally invalid in giving to a village mayor the jurisdiction of a justice of the
peace to try misdemeanors committed anywhere in the county, even though the mayor
presides over a village of 1,100 people and exercises jurisdiction over offenses
committed in a county of 500,000. This is true, and is established by the decisions of

this Court in Missouri v. Lewis, 101 U. S. 22, 101 U. S. 30; In re Claasen, 140 U. S.
200. See also Carey v. State, 70 Ohio State 121. It is also correctly pointed out that it is
completely within the power of the legislature to dispose of the fines collected
Page 273 U. S. 535
in criminal cases as it will, and it may therefore divide the fines as it does here, one-half
to the State and one-half to the village by whose mayor they are imposed and collected.
It is further said with truth that the legislature of a State may, and often ought to,
stimulate prosecutions for crime by offering to those who shall initiate and carry on such
prosecutions rewards for thus acting in the interest of the State and the people. The
legislature may offer rewards or a percentage of the recovery to informers. United
States v. Murphy & Morgan, 16 Pet. 203. It may authorize the employment of detectives.
But these principles do not at all affect the question whether the State, by the operation
of the statutes we have considered, has not vested the judicial power in one who, by
reason of his interest both as an individual and as chief executive of the village, is
disqualified to exercise it in the trial of the defendant.
It is finally argued that the evidence shows clearly that the defendant was guilty, and that
he was only fined $100, which was the minimum amount, and therefore that he cannot
complain of a lack of due process, either in his conviction or in the amount of the
judgment. The plea was not guilty, and he was convicted. No matter what the evidence
was against him, he had the right to have an impartial judge. He seasonably raised the
objection, and was entitled to halt the trial because of the disqualification of the judge,
which existed both because of his direct pecuniary interest in the outcome and because
of his official motive to convict and to graduate the fine to help the financial needs of the
village. There were thus presented at the outset both features of the disqualification.
The judgment of the Supreme Court of Ohio must be reversed, and the cause
remanded for further proceedings not inconsistent with this opinion.
Judgment reversed.

SECOND DIVISION

[G.R. No. 109920. August 31, 2000]

CEFERINO A. SORIANO, petitioner, vs. HON. ADORACION C.

ANGELES, in her capacity as Presiding Judge of the Caloocan
City, Regional Trial Court, Branch CXXI, and RUEL
GARCIA, respondents.
DECISION
MENDOZA, J.:

This is a petition for certiorari to annul the decision rendered by the Regional Trial
Court, Branch 121, Caloocan City, on March 15, 1993 in Criminal Case No. C-40740
which acquitted private respondent Ruel Garcia of direct assault.
The prosecutions evidence was as follows: Private respondent Ruel Garcia and his
uncle, Pedro Garcia, were members of the Caloocan police. Shortly after midnight on
November 7, 1991, they barged into the barangay hall of Barangay 56, Zone 5 in
Caloocan City, looking for petitioner Ceferino A. Soriano, the barangay captain. Private
respondent gave petitioner fist blows on the face four times with his left hand, while he
poked a gun at him with his right hand, at the same time cursing him, Putang ina mo
cabeza (You son of a bitch chief).Although there were four barangay tanods (Manuel
Montoya, Arturo del Rosario, Ramiro Samson, and Francisco Raton) in the barangay
hall, they could not come to the aid of petitioner because they were held at bay by
Pedro Garcia. The Garcias then left with their companions who had been waiting
outside the hall. Petitioner was treated for his injuries in the hospital.
Private respondent denied petitioners allegations. He testified that he went to the
barangay hall in the evening of November 6, 1991 because his younger brother had
been reportedly arrested and beaten up by petitioner. (It appears that the younger
Garcia was involved in a brawl with Dennis Mones and a certain Ocampo. They were
arrested and taken to the barangay hall. One of the boys, who was apparently drunk,
vomitted while their names were recorded. Petitioner, therefore, ordered the three boys
to be taken to the Ospital ng Kalookan for a check-up.) As private respondent saw
petitioner near the door of the barangay hall, he asked for the whereabouts of his

brother and the reason for the latters arrest. Apparently thinking that private respondent
was trying to intervene in the case he was investigating, petitioner angrily told private
respondent to lay off: Walang pulis pulis dito (Your being a policeman doesnt pull strings
here).When private respondent insisted on going inside the barangay hall, petitioner
blocked him and then pushed him on the chest. Private respondent also pushed
petitioner, causing him to fall on a pile of nightsticks and injure himself. All the time,
private respondent claimed he had his gun tucked at his waist. Private respondents
uncle, Pedro Garcia, then arrived and took him home.
In acquitting private respondent, respondent Judge Adoracion C. Angeles found it
incredible that petitioner did not resist or even say anything when private respondent
allegedly assaulted him and that none of the four barangay tanods who were near him
came to his aid.She thought that if petitioner had indeed been attacked, he would have
suffered more serious injuries than a contusion on the forehead, erythema on the chest,
and a lacerated wound on the lower lip. Respondent judge also excluded from the
evidence the testimonies of petitioner and barangay tanod Manuel Montoya on the
ground that their testimonies had not been formally offered in evidence as required by
Rule 132, 34 to 35 of the Revised Rules on Evidence.
Hence this petition for certiorari. Petitioner alleges that the decision is void because
it was not rendered by an impartial tribunal. He contends that respondent judge was
hell-bent on saving the private respondent from conviction and had pre-judged the case
as shown by the fact that (1) on August 26, 1992, before private respondents
arraignment, she called the parties and their counsels to her chambers and urged them
to settle the case, and, when petitioner refused, she did not set the case for hearing
until after three weeks allegedly to provide a cooling off period; (2) that at the initial trial
on September 15 and 16, 1992, respondent judge again called on the parties to settle
the case.Petitioner alleges that, while respondent judge stated in her order of
September 15, 1992 cancelling the hearing on that date that this was done to enable
Atty. Maria Lelibet Sampaga to study the case as she had been appointed as private
respondents counsel only on that day, the same was actually a pretext, the real reason
being to give private respondent another opportunity to persuade petitioner to settle the
case. The records in fact show that Atty. Sampaga had been private respondents
counsel at the arraignment on August 26, 1992; (3) that respondent judge excluded the
testimonies of petitioner and his witness, Manuel Montoya, for failure of the prosecution
to offer formally the same when the transcript of stenographic notes shows this was not
so and that, at any rate, the defense waived the objection based on this ground by
cross-examining petitioner and Montoya; and (4) that respondent judge failed to find
private respondent guilty despite the testimonies of three eyewitnesses
(barangay tanods Montoya, del Rosario, and Samson). Petitioner therefore prays that a
mistrial be declared and that the case be ordered retried before another judge.
On the other hand, private respondent Ruel Garcia contends that, if at the outset,
petitioner doubted respondent judges impartiality, he should have sought her inhibition
right then and there; that it was not true respondent judge called the parties to her
chambers on August 26, 1992 as only the arraignment took place on that day; that at
said arraignment, his counsel, Atty. Emilio Bermas, was absent for which reason
respondent judge designated Atty. Maria Lelibet S. Sampaga to assist him; that the

schedule of the trial (September 15, 16, and 21, 1992) was not fixed by respondent
judge but by the clerk in charge of the matter, taking into account the schedule of the
other cases assigned to the court; that it was only on the first day of trial on September
15, 1992 that respondent judge first talked to the parties, and, upon learning that both
were public officers, thought it proper to ask them if they were not willing to settle their
dispute, and seeing the parties and their counsels to be receptive, she invited them to
her chambers; that as petitioner later appeared to have second thoughts and, on the
other hand, as Atty. Sampaga needed time to prepare for trial, respondent judge
postponed the trial to the next day, September 16, 1992; that on September 16, 1992,
respondent judge again called the parties to her chambers to see if they had come to
any agreement, but as she was told by petitioner that for him to withdraw his complaint
against the private respondent, he must have to transfer his residence first, thus
implying that he wished the case against private respondent to continue, respondent
judge proceeded with the trial that morning.
Private respondent contends that the instant petition does not have the consent and
conformity of the public prosecutor but was instead filed by the private prosecutor who
does not have the requisite legal personality to question the decision acquitting him.
Required to comment, the Solicitor General argues that this petition should be
dismissed:

A perusal of the judgment of the trial court showed that the parties were heard
conformably to the norms of due process, evidence was presented by both
parties and duly considered, their arguments were studied, analyzed, and
assessed, and judgment was rendered in which findings of facts and
conclusions of law were set forth. These conclusions of fact or law cannot in
any sense be characterized as outrageously wrong or manifestly mistaken or
whimsically or capriciously arrived at. The worst that may perhaps be said of
them is that they are fairly debatable and may even be possibly
erroneous. But they cannot be declared to have been made with grave abuse
of discretion (Bustamante vs. NLRC, 195 SCRA 1991). Clearly, there was no
mistrial in this case which would warrant the nullity of the assailed judgment.[1]
The preliminary issue in this case is whether the petition should be dismissed
outright because it was filed without the intervention of the OSG as counsel for the
prosecution.
This question is not a novel one. In the case of People v. Santiago,[2] this Court held:

The question as to whether or not U.P., as the private offended party, can file
this special civil action for certiorari questioning the validity of said decision of
the trial court should be answered in the affirmative.
It is well-settled that in criminal cases where the offended party is the State,
the interest of the private complainant or the private offended party is limited

to the civil liability. Thus, in the prosecution of the offense, the complainants
role is limited to that of a witness for the prosecution. If a criminal case is
dismissed by the trial court or if there is an acquittal, an appeal therefrom on
the criminal aspect may be undertaken only by the State through the Solicitor
General. Only the Solicitor General may represent the People of the
Philippines on appeal. The private offended party or complainant may not take
such appeal. However, the said offended party or complainant may appeal the
civil aspect despite the acquittal of the accused.
In a special civil action for certiorari filed under Section 1, Rule 65 of the Rules
of Court wherein it is alleged that the trial court committed a grave abuse of
discretion amounting to lack of jurisdiction or on other jurisdictional grounds,
the rules state that the petition may be filed by the person aggrieved. In such
case, the aggrieved parties are the State and the private offended party or
complainant. The complainant has an interest in the civil aspect of the case so
he may file such special civil action questioning the decision or action of the
respondent court on jurisdictional grounds. In so doing, complainant should
not bring the action in the name of the People of the Philippines. The action
may be prosecuted in name of said complainant.[3]
The above ruling has been reiterated in De la Rosa v. Court of Appeals[4] and Perez
v. Hagonoy Rural Bank, Inc.,[5] in which the legal personality of private complainant to file
a special civil action of certiorari questioning the dismissal by the trial court of a criminal
case has been upheld subject to the limitation that the accuseds right to double
jeopardy is not violated.[6] As explained by the Court in People v. Court of Appeals:[7] 7

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. However, where the petition demonstrates mere errors in
judgment not amounting to grave abuse of discretion or deprivation of due
process, the writ of certiorari cannot issue. A review of the alleged errors of
judgment cannot be made without trampling upon the right of the accused
against double jeopardy.[8]
In short, petitioner must establish that the judgment of acquittal resulted from a mistrial
so as not to place private respondent, as accused, in double jeopardy.
In only one case has the Court categorically declared a mistrial, and that is the case
of Galman v. Sandiganbayan.[9] Petitioner would have the Court draw parallelisms
between this case and Galman where the Court nullified the judgment of acquittal of the
Sandiganbayan in Criminal Case Nos. 10010 and 10011 entitled People of the
Philippines v. General Luther Custodio, et al.

This cases is, however, a far cry from Galman. There, it was shown that evidence
was suppressed in order to justify the acquittal of the accused. This Court held that the
secret Malacaang conference at which the authoritarian President called together the
Presiding Justice of the Sandiganbayan [Manuel Pamaran] and Tanodbayan [Bernardo]
Fernandez and the entire prosecution panel headed by Deputy Tanodbayan [Manuel]
Herrera and told them how to handle and rig (moro-moro) the trial and the close
monitoring of the entire proceedings to assure the pre-determined ignominious final
outcome are without parallel and precedent in our annals and jurisprudence.[10]
In contrast, petitioner does not allege any such irregularity in the trial of private
respondent. He simply claims that respondent judges bias and partiality denied the
prosecution a fair and impartial trial. Why respondent judge was biased for the defense
petitioner does not say. It is noteworthy that petitioner does not even dispute private
respondents allegation that respondent judge was not personally acquainted with him
until she heard the criminal case against him.
It is pertinent at this point to cite certain principles laid down by the Court regarding
the disqualification of a judge for lack of the objectivity that due process requires. It is
settled that mere suspicion that a judge is partial to one of the parties is not enough;
there should be evidence to prove the charge. [11] Bias and prejudice cannot be
presumed, especially weighed against a judges sacred allegation under oath of office to
administer justice without respect to any person and do equal right to the poor and the
rich.[12] There must be a showing of bias and prejudice stemming from an extrajudicial
source resulting in an opinion in the merits on some basis other than what the judge
learned from his participation in the case. [13]
The arguments which petitioner advances by way of proof of respondents judges
alleged bias are not persuasive.
Respondent judges efforts to have the parties arrive at an amicable settlement is
not evidence of partiality for private respondent. She could have been motivated by
factors other than a desire to clear private respondent of criminal liability, i.e., the
clearing of her court docket or, as pointed out by the OSG in its comment, [14] in setting a
good example considering that petitioner and private respondent were neighbors
occupying public offices charged with the maintenance of peace and order in the
community.
As for the allegation that the trial was not held until after three weeks to give private
respondent more time to persuade petitioner to amicably settle the case, it has been
shown that it was not respondent judge but court personnel in charge of scheduling
cases who assigned the dates of trial taking into account the court calendar. The
cancellation of the September 15, 1992 hearing, on the other hand, was made to give
private respondents counsel, Atty. Maria Lelibet Sampaga, time to study the case and
prepare for trial. Although Atty. Sampaga had once appeared in behalf of private
respondent, it was for the purpose of assisting the latter at the arraignment because the
regular counsel was absent. As new counsel, Atty. Sampaga needed to study the
case. A postponement to the next day, September 16, 1992, was not an unreasonable
request. Indeed, this did not involve resetting the case since September 16, 1992 had
been originally designated as one of the initial trial dates.

Nor is there any showing that respondent judge decided the criminal case on
grounds other than its merits. A reading of her decision acquitting private respondent
shows that the same was made on the basis of her evaluation of the evidence of the
prosecution and of the defense. Because of the conflicting versions of the parties as to
what really happened, her decision was necessarily based on her appreciation of the
credibility of the witnesses for the prosecution and the defense.
True, petitioner is correct in his argument that respondent judge mistakenly
excluded from the evidence his testimony as well as that of prosecution witness Manuel
Montoya on the ground that the same had not been formally offered at the time they
were called to the witness stand. For the fact was that petitioner and Montoya had been
cross-examined at length by the defense and, therefore, the latter had waived objection
to the failure of the prosecution to make an offer of the evidence. [15] It has been held
in Go v. Court of Appeals,[16] however, that divergence of opinion between the trial judge
and a partys counsel as to the admissibility of evidence is not proof of bias or partiality.
Besides, though respondent judge stated in her decision that the testimonies of
petitioner and Montoya cannot be considered by this Court as constituting part of the
evidence for the prosecution, her decision shows that she actually considered the
testimonies in piecing together the prosecutions version of the events and in evaluating
the evidence in the case. The testimonies of petitioner and Montoya were after all
referred to by the other witnesses for the prosecution, namely, del Rosario and
Samson. Thus respondent judges decision reads in pertinent part:

The allegation of the private complainant that he neither resisted the punches
of the accused nor said anything to the latter is quite hard to believe. No
rational man would allow another to hurt him without offering any form of
resistance, for he is instinctively concerned [with] his self-preservation. It is
more in consonance with human nature that when one is hurt, especially if the
feeling of innocence is within him, to immediately retaliate to an unjust act.
Another equally unbelievable allegation is that the four barangay tanods just
stood and watched their barangay captain while he was being mauled. There
were four of them inside the hall yet no one even dared to defend herein
private complainant or stop herein accused. If they could not do it for their
barangay captain and inside their hall, how can they be expected to protect
the residents of their barangay outside their hall?
Furthermore, if herein private complainant was indeed mauled, he should
have suffered a lot more serious injuries than he alleged[ly]
incurred. Considering their allegation that the barangay tanods were guarded
at the point of a gun by Pedro Garcia, herein accused thus had all the time
and opportunity to inflict on the private complainant as many serious injuries
as he could. But the results of the medical examination belie this point.

Well-settled is the rule that the prosecution must rely on the strength of its own
evidence and not on the weakness of the defense (People vs. Dennis
Mendoza, 203 SCRA 148, G.R. No. 85176, October 21, 1991). After a
thorough examination of the pieces of evidence presented by the prosecution,
the latter failed to fulfill the test of moral certainty and establish such degree of
proof necessary to support conviction. If the inculpatory facts and
circumstances are capable of one or more explanations, one of which is
consistent with innocence and the other consistent with his guilt, then the
evidence does not fulfill the test of moral certainty and is not sufficient to
support a conviction. The constitutional presumption of innocence stands until
overthrown by strong and convincing evidence, one of which will prove guilt
beyond reasonable doubt (People vs. Gina Sahagun, 182 SCRA 91, G.R. No.
62024, February 12, 1990).
The testimonies of the prosecution witnesses are merely unfounded accusations
insufficient to gain conviction. In the case of People vs. Guinto, 184 SCRA 287, G.R.
88400, April 6, 1990, the Supreme Court held: Accusation is not synonymous with
guilt. The accused is protected by the constitutional presumption of innocence which the
prosecution must overcome with contrary proof beyond reasonable doubt. Even if the
defense is weak, the case against the accused must fail if the prosecution is even
weaker. . . . If the prosecution has not sufficiently established the guilt of the accused,
he has a right to be acquitted and released even if he presents naught a shred of
evidence.[17]
That respondent judge believed the evidence of the defense more than that of the
prosecution does not indicate that she was biased.She must have simply found the
defense witnesses to be more credible. [18]
Indeed, no grave abuse of discretion may be attributed to a court simply because of
its alleged misappreciation of facts and evidence. A writ of certiorari cannot be used to
correct a lower tribunals evaluation of the evidence and factual findings. Thus,
in People v. Court of Appeals,[19] the Court dismissed a petition for certiorari filed by the
prosecution from a decision of the Court of Appeals reversing that of the trial court and
acquitting the accused of homicide and serious physical injuries on the ground that he
acted in self-defense. The Court held:

To show grave abuse of discretion, herein petitioner contends that

Respondent Court of Appeals committed manifest bias and partiality in
rendering the assailed Decision. It claims that Respondent Court ignored and
discarded uncontroverted physical evidence which the trial judge had relied
upon. Furthermore, it allegedly erred in finding that he had base[d] his
decision on the testimony of witnesses whose demeanor he did not personally
witness. In addition, it supposedly harped on insignificant inconsistencies in

the testimonies of some prosecution witnesses, while unquestioningly

accepting the private respondents claim of self-defense.
Finally, the solicitor general maintains that the assailed Decision (1) failed to
discuss the effect of Maquilings escape from confinement during the
pendency of the case; (2) shifted the burden of proof on the prosecution to
prove Maquilings guilt, although he admitted killing the victim in self-defense;
(3) ignored the physical evidence particularly the downward trajectory of the
bullets that had hit the two victims, thereby showing that private respondent
was still standing when he shot them; and the shotgun wound sustained by
private respondent, which disabled him and rendered him incapable of
shooting the victims.
It is quite obvious from the foregoing allegations that petitioner imputed grave
abuse of discretion to Respondent Court because of the latters supposed
misappreciation and wrongful assessment of factual evidence. However, as
earlier stressed, the present recourse is a petition for certiorari under Rule
65. It is a fundamental aphorism in law that a review of facts and evidence is
not the province of the extraordinary remedy of certiorari; which is extra
ordinem beyond the ambit of appeal. Stated elsewise, factual matters cannot
normally be inquired into by the Supreme Court in
a certiorari proceeding. This Court cannot be tasked to go over the proofs
presented by the parties and analyze, assess and weigh them again, in order
to ascertain if the trial and the appellate courts were correct in according
superior credit to this or that piece of evidence of one party or the other.
The mere fact that a court erroneously decides a case does not necessarily
deprive it of jurisdiction. Thus, assuming arguendo that a court commits a
mistake in its judgment, the error does not vitiate the decision, considering
that it has jurisdiction over the case.
An examination of the 65-page Decision rendered by the Court of Appeals
shows no patent and gross error amounting to grave abuse of
discretion. Neither does it show an arbitrary or despotic exercise of power
arising from passion or hostility. . . .[20]
Finally, petitioners claim that respondent judge was biased is belied by his failure to
move for respondent judges inhibition. Petitioners claim that he did not do so because
of his belief and desire for said respondent judge to finally return to her normal sense of
fairness is a feeble excuse. His failure to file such motion stands as one more stark
difference between this case and Galman since the private prosecutors in the latter

case lost no time in seeking the disqualification of the members of the Sandiganbayan
on grounds of manifest bias and partiality for the defense. [21]
WHEREFORE, the petition for certiorari is DISMISSED for lack of merit.
SO ORDERED.
Bellosillo, (Chairman), Quisumbing, Buena, and De Leon, Jr., JJ., concur.

[1]

OSGs Comment, pp. 3-4; Rollo, pp. 112-113.

[2]

174 SCRA 143 (1989).

[3]

Id., pp. 152-153.

[4]

253 SCRA 499 (1996).

[5]

G.R. No. 126210, Mar. 9, 2000.

[6]

Const., Art. III, 21 provides:

No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law and an
ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act.
[7]

308 SCRA 687 (1999).

[8]

Id., p. 690.

[9]

144 SCRA 43 (1986).

[10]

Id, pp. 82-83.

[11]

Geneblazo v. Court of Appeals, 174 SCRA 124, 134 (1989).

[12]

Pimentel v. Salanga, 21 SCRA 161, 167 (1967).

[13]

Webb v. People, 276 SCRA 243, 253 (1997).

[14]

OSGs Comment, p. 3; Rollo, p. 112.

[15]

People v. Java, 227 SCRA 669, 680 (1992).

[16]

221 SCRA 397, 413 (1993).

[17]

Petition, Annex A, pp. 10-11; Rollo, pp. 22-23.

[18]

See People v. Tabarno, 242 SCRA 456, 460 (1995).

[19]

308 SCRA 687 (1999).

[20]

Id., pp. 700-701.

[21]
The Court in fact viewed in a negative light the Sandiganbayans rush to judgment notwithstanding the pendency
of the motion for inhibition.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-12990

January 21, 1918

THE UNITED STATES, plaintiff-appellee,

vs.
LAZARO JAVIER, ET AL., defendants-appellants.
Modesto Castillo, Eusebio Lopez and G. N. Trinidad for appellants.
Acting Attorney-General Paredes for appellee.
MALCOLM, J.:
We find the proven facts as brought out in the trial of this case to be as follows:
Doroteo Natividad on the afternoon of October 22, 1915, fastened his carabao valued at P150 in his
corral situated in the barrio of Trapiche municipality of Tanauan, Province of Batangas. On the
following morning when he went to look after the animal, he found the gate to the corral open and
that the carabao had disappeared. He reported the matter to the Constabulary, and a patrol of the
Constabulary under the leadership of sergeant Presa, now deceased, on the 20th of November
following, encountered the accused Lazaro Javier, Apolinario Mendoza, and Placido de Chavez
leading the carabao. When the ladrones saw the Constabulary, that scattered in all directions. On
the following day, the Constabulary found this carabao tied in front of the house of one Pedro
Monterola in the barrio of Santa Clara, municipality of San Pablo. The carabao was identified by
Doroteo Natividad as the one which had been taken from his corral on the night of October 22, 1915,
and by the Constabulary as the one seen in the possession of the accused.
As corroborative of such evidence, we have the well-known legal principle, which as applied to
cases of this character is that, although the persons who unlawfully took a certain carabao are not
recognized at the time, and their identity remains entirely unknown, nevertheless, if the stolen animal
is found in the possession of the accused shortly after the commission of the crime and they make
no satisfactory explanation of such possession they may be properly convicted of the crime. (See U.
S. vs. Divino [1911], 18 Phil., 425.) In the present instance, the attempt of the accused to insinuate
that one of the Constabulary soldiers testified against them falsely because of enmity is hardly
believable.
The foregoing statement of the facts and the law disposes of all but one assignment of error, namely,
that the lower court erred in admitting Exhibit B of the prosecution as evidence. Exhibit B is the
sworn statement of sergeant Presa, now deceased, whose signature was identified, before the
justice of the peace of the municipality of Santo Tomas, Province of Batangas. Appellant's argument
is predicated on the provision of the Philippine Bill of Rights which says, "That in all criminal
prosecutions the accused shall enjoy the right . . . to meet the witnesses face to face," and the

provision of the Code of Criminal Procedure, section 15 (5), which says that "In all criminal
prosecutions the defendant shall be entitled: . . . to be confronted at the trial by and to crossexamine the witnesses against him." With reference to the clause of the Bill of Rights, which we
have quoted, Justice Day said in a case of the Philippine origin (Dowdell vs. U. S. [1911], 221 U. S.,
325) that it "intends to secure the accused in the right to be tried, so far as facts provable by
witnesses are concerned, by only such witnesses as meet him face to face at the trial, who give their
testimony in his presence, and give to the accused an opportunity of cross-examination. It was
intended to prevent the conviction of the accused upon deposition or ex parte affidavits, and
particularly to preserve the right of the accused to test the recollection of the witness in the exercise
of the right of cross-examination." In other words, confrontation is essential because crossexamination is essential. A second reason for the prohibition is that a tribunal may have before it the
department and appearance of the witness while testifying. ( U. S. vs. Anastacio [1906], 6 Phil., 413.)
The Supreme Court of the Philippine Islands has applied this constitutional provisions on behalf of
accused persons in a number of cases. (See for example U. S. vs. Tamjuanco [1902], 1 Phil., 374;
U. S. vs. Bello [1908], 11 Phil., 526; U. S. vs. De la Cruz [1908], 12 Phil., 87.) It is for us now to
determine whether the present facts entitle the accused to the protection of the Bill of Rights or
whether the facts fall under some exception thereto.
The sworn statement of Presa was not made by question and answer under circumstances which
gave the defense an opportunity to cross-examine the witness. The proviso of the Code of Criminal
Procedure as to confrontation is therefore inapplicable. Presa's statement again is not the testimony
of a witness deceased, given in a former action between the same parties relating to the same
matter. Consequently, the exception provided by section 298, No. 8, of the Code of Civil Procedure
and relied upon by the prosecution in the lower court is also inapplicable. Nor is the statement of
Presa a dying declaration or a deposition in a former trial or shown to be a part of the preliminary
examination. Under these circumstances, not to burden the opinion with an extensive citation of
authorities, we can rely on the old and historic case of R. vs. Paine (1 Salk., 281 [King's Bench Div.])
occurring in the year 1696. It appears that a deposition of B., examined by the Mayor of Bristol under
oath, but not in P's presence, was offered. It was objected that B, being dead, the defendant had lost
all opportunity of cross-examining him. The King's Bench consulted with the Common Pleas, and "it
was the opinion of both courts that these deposition should not be given in evidence, the defendant
not being present when they were taken before the Mayor and so had lost the benefit of a crossexamination." Although we are faced with the alternative of being unable to utilize the statements of
the witness now deceased, yet if there has been no opportunity for cross-examination and the case
is not one coming within one of the exceptions, the mere necessity alone accepting the statement
will not suffice. In fine, Exhibit B was improperly received in evidence in the lower court.
With such a resolution of this question, we could, as has been done in other cases, further find this
to be reversible error and remand the case for a new trial. We are convinced, however, that this
would gain the accused nothing except delay for the testimony of the owner of the carabao and of
the two Constabulary soldiers, rebutted by no reasonable evidence on behalf of the accused, is
deemed sufficient to prove guilt beyond a reasonable doubt.
The facts come under article 518, No. 3, in connection with article 520, as amended, of the Penal
Code. Accordingly the defendants and appellants are each sentenced to four years, two months, and
one day ofpresidio correccional, with the accessory penalties provided by law, and to pay one-third

part of costs of both instances; the carabao shall be returned to Doroteo Natividad, if this has not
already been done. So ordered.
Arellano, C.J., Torres, Johnson, Carson, Araullo, Street, and Avancea, JJ., concur.