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NOTES & CASES IN POLITICAL LAW

February 2012 Edition


Volume II
(BILL OF RIGHTS)

by:
ATTY. LARRY D. GACAYAN
Professor
(Constitutional Law Review, Constitutional Law I & II & Wills and Succession)
COLLEGE OF LAW
UNIVERSITY OF THE CORDILLERAS
Pre-Bar Reviewer
CPRS PRE-BAR REVIEW CENTER
(Cagayan de Oro City, Zamboanga City, Iloilo City, Tacloban City, Ozamis City, Cebu City, Davao
City and Baguio City)
EXCELLENT PRE-BAR REVIEW CENTER
(Naga City, Cebu City and Baguio City)
POWERHAUS PRE-BAR REVIEW CENTER
(Baguio, Manila, Santiago City, Dipolog City, San Fernando City (LU) and Tagbilaran City)
PANGASINAN REVIEW CENTER
Dagupan City
HOLY TRINITY REVIEW CENTER
General Santos City
CHAPTER 1
FUNDAMENTAL POWERS OF THE STATE
(Police Power)
1. Define:
A. police power---is the power vested in the legislature by the Constitution to make, ordain,
establish all manner of wholesome and reasonable laws for the good and welfare of the State and
its people. (ERMITA MALATE HOTEL VS. CITY MAYOR, July 31, 1967)
The basic purposes of police power are:

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a. to promote the general welfare, comfort and convenience of the people; (ASSOCIATION
OF SMALL LANDOWNERS VS. SECRETARY, 175 SCRA 343; US VS. TORIBIO, 15 Phil.
85
b. to promote and preserve public health; (VILLANUEVA VS. CASTANEDA, September 21,
1987; DECS VS. SAN DIEGO, 180 SCRA 533 [NMAT]; LORENZO VS. DIRECTOR OF
HEALTH, 50 Phil. 595apprehend and confine lepers in a leprosarium)
Police Power as a limitation to the right to practice a
profession
PROFESSIONAL REGULATIONS COMMISSION VS. ARLENE DE GUZMAN, ET AL.,
June 21, 2004
Facts:
After the Professional Regulations Commission (PRC) released the names of successful
examinees in the Medical Licensure Examination, the Board of Medicines observed that the
grades of the 79 Fatima College of Medicine successful examinees were unusually and
exceptionally high in the two (2) most difficult subjects of the exam, i.e., Biochemistry and
Obstetrics and Gynecology.
The Board then issued Resolution No. 19 withholding the registration as physicians of all
the examinees from Fatima College of Medicine. Compared with other examines from other
schools, the results of those from Fatima were not only incredibly high but unusually clustered
close to each other. The NBI Investigation found that the Fatima examinees gained early
access to the test questions.
Held:
It must be stressed that the power to regulate the practice of a profession or pursuit of an
occupation cannot be exercised by the State in an arbitrary, despotic or oppressive manner.
However, the regulating body has the right to grant or forbid such privilege in accordance with
certain conditions.
But like all rights and freedoms guaranteed by the Constitution, their exercise may be
regulated pursuant to the police power of the State to safeguard health, morals, peace, education,
order, safety, and general welfare of the people. As such, mandamus will not lie to compel the
Board of Medicine to issue licenses for the respondents to practice medicine.
RA 2382 which prescribes the requirements for admission to the practice of medicine, the
qualifications of the candidates for the board examination, the scope and conduct of the
examinations, the grounds for the denying of the issuance of a physicians license, or revoking a
license that has been issued. It is therefore clear that the examinee must prove that he has fully
complied with all the conditions and requirements imposed by law and the licensing authority to
be granted the privilege to practice medicine. In short, he shall have all the qualifications and
none of the disqualifications. The petition is therefore granted.

c. to promote and protect public safety; (AGUSTIN VS. EDU, 88 SCRA 195; TAXICAB
OPERATORS VS. JUINIO, 119 SCRA 897 )
d. to maintain and safeguard peace and order; (GUAZON VS. DE VILLA)

e. to protect public morals; (CITY OF MANILA VS. JUDGE LAGUIO, JR., 455 SCRA 308;
WHITE LIGHT CORPORATION VS. CITY OF MANILA, January 20, 2009; DE LA
CRUZ VS. PARAS, 123 SCRA 569; ERMITA MALATE HOTEL VS. CITY MAYOR, July

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31, 1967; VILLAVICENCIO VS. MAYOR LUKBAN OF MANILA, 39 Phil. 778; JMM
PROMOTIONS VS. CA, 260 SCRA 319; VELASCO VS. VILLEGAS, February 13, 1983)
An Ordinance of the City of Manila prohibiting short-time
in Motels and Hotels.
WHITE LIGHT CORPORATION, TITANIUM CORPORATION and STA.
MESA TOURIST & DEVELOPMENT CORPORATION vs. CITY OF
MANILA, represented by
MAYOR ALFREDO S. LIM, G.R. No.
122846, January 20, 2009
TINGA, J.:
With another city ordinance of Manila also principally involving the tourist district as
subject, the Court is confronted anew with the incessant clash between government power and
individual liberty in tandem with the archetypal tension between law and morality.
In City of Manila v. Laguio, Jr, the Court affirmed the nullification of a city ordinance
barring the operation of motels and inns, among other establishments, within the Ermita-Malate
area. The petition at bar assails a similarly-motivated city ordinance that prohibits those same
establishments from offering short-time admission, as well as pro-rated or wash up rates for
such abbreviated stays. Our earlier decision tested the city ordinance against our sacred
constitutional rights to liberty, due process and equal protection of law. The same parameters
apply to the present petition.
This Petition challenges the validity of Manila City Ordinance No. 7774 entitled, An
Ordinance Prohibiting Short-Time Admission, Short-Time Admission Rates, and Wash-Up Rate
Schemes in Hotels, Motels, Inns, Lodging Houses, Pension Houses, and Similar Establishments
in the City of Manila (the Ordinance).
The facts are as follows:
On December 3, 1992, City Mayor Alfredo S. Lim (Mayor Lim) signed into law the
Ordinance. The Ordinance is reproduced in full, hereunder:
SEC. 3. Pursuant to the above policy, short-time admission and rate [sic], wash-up rate
or other similarly concocted terms, are hereby prohibited in hotels, motels, inns, lodging houses,
pension houses and similar establishments in the City of Manila.
SEC. 4. Definition of Term[s]. Short-time admission shall mean admittance and
charging of room rate for less than twelve (12) hours at any given time or the renting out of
rooms more than twice a day or any other term that may be concocted by owners or managers of
said establishments but would mean the same or would bear the same meaning.
SEC. 5. Penalty Clause. Any person or corporation who shall violate any provision of
this ordinance shall upon conviction thereof be punished by a fine of Five Thousand ( P5,000.00)
Pesos or imprisonment for a period of not exceeding one (1) year or both such fine and
imprisonment at the discretion of the court; Provided, That in case of [a] juridical person, the
president, the manager, or the persons in charge of the operation thereof shall be liable: Provided,
further, That in case of subsequent conviction for the same offense, the business license of the
guilty party shall automatically be cancelled.
On December 15, 1992, the Malate Tourist and Development Corporation (MTDC) filed
a complaint for declaratory relief with prayer for a writ of preliminary injunction and/or
temporary restraining order ( TRO) with the Regional Trial Court (RTC) of Manila, Branch 9
impleading as defendant, herein respondent City of Manila (the City) represented by Mayor Lim.
MTDC prayed that the Ordinance, insofar as it includes motels and inns as among its prohibited

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establishments, be declared invalid and unconstitutional. MTDC claimed that as owner and
operator of the Victoria Court in Malate, Manila it was authorized by Presidential Decree (P.D.)
No. 259 to admit customers on a short time basis as well as to charge customers wash up rates for
stays of only three hours.
They contend that the assailed Ordinance is an invalid exercise of police power.
II.
To students of jurisprudence, the facts of this case will recall to mind not only the recent
City of Manila ruling, but our 1967 decision in Ermita-Malate Hotel and Motel Operations
Association, Inc., v. Hon. City Mayor of Manila. Ermita-Malate concerned the City ordinance
requiring patrons to fill up a prescribed form stating personal information such as name, gender,
nationality, age, address and occupation before they could be admitted to a motel, hotel or lodging
house. This earlier ordinance was precisely enacted to minimize certain practices deemed harmful
to public morals. A purpose similar to the annulled ordinance in City of Manila which sought a
blanket ban on motels, inns and similar establishments in the Ermita-Malate area. However, the
constitutionality of the ordinance in Ermita-Malate was sustained by the Court.
The common thread that runs through those decisions and the case at bar goes beyond the
singularity of the localities covered under the respective ordinances. All three ordinances were
enacted with a view of regulating public morals including particular illicit activity in transient
lodging establishments. This could be described as the middle case, wherein there is no wholesale
ban on motels and hotels but the services offered by these establishments have been severely
restricted. At its core, this is another case about the extent to which the State can intrude into and
regulate the lives of its citizens.
The test of a valid ordinance is well established. A long line of decisions including
City of Manila has held that for an ordinance to be valid, it must not only be within the
corporate powers of the local government unit to enact and pass according to the procedure
prescribed by law, it must also conform to the following substantive requirements: (1) must
not contravene the Constitution or any statute; (2) must not be unfair or oppressive; (3)
must not be partial or discriminatory; (4) must not prohibit but may regulate trade; (5)
must be general and consistent with public policy; and (6) must not be unreasonable .
A.
Police power, while incapable of an exact definition, has been purposely veiled in general
terms to underscore its comprehensiveness to meet all exigencies and provide enough room for an
efficient and flexible response as the conditions warrant. Police power is based upon the concept
of necessity of the State and its corresponding right to protect itself and its people.Police power
has been used as justification for numerous and varied actions by the State. These range from the
regulation of dance halls, movie theaters, gas stations, and cockpits. The awesome scope of police
power is best demonstrated by the fact that in its hundred or so years of presence in our nations
legal system, its use has rarely been denied.
The apparent goal of the Ordinance is to minimize if not eliminate the use of the covered
establishments for illicit sex, prostitution, drug use and alike. These goals, by themselves, are
unimpeachable and certainly fall within the ambit of the police power of the State.
B.
The primary constitutional question that confronts us is one of due process, as guaranteed
under Section 1, Article III of the Constitution. Due process evades a precise definition. The
purpose of the guaranty is to prevent arbitrary governmental encroachment against the life, liberty
and property of individuals. The due process guaranty serves as a protection against arbitrary

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regulation or seizure. Even corporations and partnerships are protected by the guaranty insofar as
their property is concerned.
The due process guaranty has traditionally been interpreted as imposing two related but
distinct restrictions on government, "procedural due process" and "substantive due process."
Procedural due process refers to the procedures that the government must follow before it
deprives a person of life, liberty, or property. Procedural due process concerns itself with
government action adhering to the established process when it makes an intrusion into the private
sphere. Examples range from the form of notice given to the level of formality of a hearing.
Substantive due process completes the protection envisioned by the due process clause.
It inquires whether the government has sufficient justification for depriving a person of life,
liberty, or property.
The question of substantive due process, more so than most other fields of law, has
reflected dynamism in progressive legal thought tied with the expanded acceptance of
fundamental freedoms. Police power, traditionally awesome as it may be, is now confronted with
a more rigorous level of analysis before it can be upheld. The vitality though of constitutional due
process has not been predicated on the frequency with which it has been utilized to achieve a
liberal result for, after all, the libertarian ends should sometimes yield to the prerogatives of the
State. Instead, the due process clause has acquired potency because of the sophisticated
methodology that has emerged to determine the proper metes and bounds for its application.
C.
The general test of the validity of an ordinance on substantive due process grounds is best
tested when assessed with the evolved footnote 4 test laid down by the U.S. Supreme Court in
U.S. v. Carolene Products. Footnote 4 of the Carolene Products case acknowledged that the
judiciary would defer to the legislature unless there is a discrimination against a discrete and
insular minority or infringement of a fundamental right. Consequently, two standards of
judicial review were established: strict scrutiny for laws dealing with freedom of the mind or
restricting the political process, and the rational basis standard of review for economic
legislation.
A third standard, denominated as heightened or immediate scrutiny, was later adopted
by the U.S. Supreme Court for evaluating classifications based on gender and legitimacy,
Immediate scrutiny was adopted by the U.S. Supreme Court in Craig, after the Court declined to
do so in Reed v. Reed. While the test may have first been articulated in equal protection analysis,
it has in the United States since been applied in all substantive due process cases as well.
We ourselves have often applied the rational basis test mainly in analysis of equal
protection challenges. Using the rational basis examination, laws or ordinances are upheld if they
rationally further a legitimate governmental interest. Under intermediate review, governmental
interest is extensively examined and the availability of less restrictive measures is considered.
Applying strict scrutiny, the focus is on the presence of compelling, rather than substantial,
governmental interest and on the absence of less restrictive means for achieving that interest.
In terms of judicial review of statutes or ordinances, strict scrutiny refers to the standard
for determining the quality and the amount of governmental interest brought to justify the
regulation of fundamental freedoms. Strict scrutiny is used today to test the validity of laws
dealing with the regulation of speech, gender, or race as well as other fundamental rights as
expansion from its earlier applications to equal protection. The United States Supreme Court has
expanded the scope of strict scrutiny to protect fundamental rights such as suffrage, judicial
access and interstate travel.

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If we were to take the myopic view that an Ordinance should be analyzed strictly as to its
effect only on the petitioners at bar, then it would seem that the only restraint imposed by the law
which we are capacitated to act upon is the injury to property sustained by the petitioners, an
injury that would warrant the application of the most deferential standard the rational basis test.
Yet as earlier stated, we recognize the capacity of the petitioners to invoke as well the
constitutional rights of their patrons those persons who would be deprived of availing short time
access or wash-up rates to the lodging establishments in question.
D.
It cannot be denied that the primary animus behind the ordinance is the curtailment of
sexual behavior. The City asserts before this Court that the subject establishments have gained
notoriety as venue of prostitution, adultery and fornications in Manila since they provide the
necessary atmosphere for clandestine entry, presence and exit and thus became the ideal haven
for prostitutes and thrill-seekers. Whether or not this depiction of a mise-en-scene of vice is
accurate, it cannot be denied that legitimate sexual behavior among willing married or consenting
single adults which is constitutionally protected will be curtailed as well, as it was in the City of
Manila case. Our holding therein retains significance for our purposes:
We cannot discount other legitimate activities which the Ordinance would proscribe or
impair. There are very legitimate uses for a wash rate or renting the room out for more than twice
a day. Entire families are known to choose pass the time in a motel or hotel whilst the power is
momentarily out in their homes. In transit passengers who wish to wash up and rest between trips
have a legitimate purpose for abbreviated stays in motels or hotels. Indeed any person or groups
of persons in need of comfortable private spaces for a span of a few hours with purposes other
than having sex or using illegal drugs can legitimately look to staying in a motel or hotel as a
convenient alternative.
E.
Further, it is apparent that the Ordinance can easily be circumvented by merely
paying the whole day rate without any hindrance to those engaged in illicit activities.
Moreover, drug dealers and prostitutes can in fact collect wash rates from their clientele
by charging their customers a portion of the rent for motel rooms and even apartments.
The Ordinance needlessly restrains the operation of the businesses of the petitioners
as well as restricting the rights of their patrons without sufficient justification. The
Ordinance rashly equates wash rates and renting out a room more than twice a day with
immorality without accommodating innocuous intentions.
To be candid about it, the oft-quoted American maxim that you cannot legislate
morality is ultimately illegitimate as a matter of law, since as explained by Calabresi, that
phrase is more accurately interpreted as meaning that efforts to legislate morality will fail if they
are widely at variance with public attitudes about right and wrong. Our penal laws, for one, are
founded on age-old moral traditions, and as long as there are widely accepted distinctions
between right and wrong, they will remain so oriented.
WHEREFORE, the Petition is GRANTED.
UNCONSTITUTIONAL.
*********************************
An Ordinance requiring the motels in Ermita-Malate area to
transfer to another place in the City of Manila as well as
prohibiting THE ESTABLISHMENT OR OPERATION OF
BUSINESSES PROVIDING CERTAIN FORMS OF

Ordinance No. 7774 is hereby declared

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AMUSEMENT, ENTERTAINMENT, SERVICES AND
FACILITIES IN THE ERMITA-MALATE AREA was held
unconstitutional
CITY OF MANILA, HON. ALFREDO S. LIM as the Mayor of the City of Manila, et al vs.
HON. PERFECTO A.S. LAGUIO, JR., as Presiding Judge, RTC, Manila and MALATE
TOURIST DEVELOPMENT CORPORATION, GR No. 118127, April 12, 2005

TINGA, J.:
FACTS:
The City Council of Manila enacted on 9 March 1993 and approved by petitioner City
Mayor on 30 March 1993 an Ordinance is entitled

AN ORDINANCE PROHIBITING THE ESTABLISHMENT OR OPERATION OF


BUSINESSES PROVIDING CERTAIN FORMS OF AMUSEMENT, ENTERTAINMENT,
SERVICES AND FACILITIES IN THE ERMITA-MALATE AREA, PRESCRIBING
PENALTIES FOR VIOLATION THEREOF, AND FOR OTHER PURPOSES.
The Ordinance is reproduced in full, hereunder:
SECTION 1. Any provision of existing laws and ordinances to the contrary notwithstanding,
no person, partnership, corporation or entity shall, in the Ermita-Malate area bounded by
Teodoro M. Kalaw Sr. Street in the North, Taft Avenue in the East, Vito Cruz Street in the South
and Roxas Boulevard in the West, pursuant to P.D. 499 be allowed or authorized to contract
and engage in, any business providing certain forms of amusement, entertainment, services
and facilities where women are used as tools in entertainment and which tend to disturb the
community, annoy the inhabitants, and adversely affect the social and moral welfare of the
community, such as but not limited to:
1. Sauna Parlors
2. Massage Parlors
3. Karaoke Bars
4. Beerhouses
5. Night Clubs
6. Day Clubs
7. Super Clubs
8. Discotheques
9. Cabarets
10. Dance Halls
11. Motels
12. Inns
SEC. 2 The City Mayor, the City Treasurer or any person acting in behalf of the said
officials are prohibited from issuing permits, temporary or otherwise, or from granting
licenses and accepting payments for the operation of business enumerated in the preceding
section.
SEC. 3. Owners and/or operator of establishments engaged in, or devoted to, the
businesses enumerated in Section 1 hereof are hereby given three (3) months from the date of
approval of this ordinance within which to wind up business operations or to transfer to any
place outside of the Ermita-Malate area or convert said businesses to other kinds of
business allowable within the area, such as but not limited to:
1. Curio or antique shop
2. Souvenir Shops

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3. Handicrafts display centers
4. Art galleries
5. Records and music shops
6. Restaurants
7. Coffee shops
8. Flower shops
9. Music lounge and sing-along restaurants, with well-defined activities for wholesome family
entertainment that cater to both local and foreign clientele.
10. Theaters engaged in the exhibition, not only of motion pictures but also of cultural shows, stage and
theatrical plays, art exhibitions, concerts and the like.
11. Businesses allowable within the law and medium intensity districts as provided for in the zoning
ordinances for Metropolitan Manila, except new warehouse or open-storage depot, dock or yard, motor repair
shop, gasoline service station, light industry with any machinery, or funeral establishments.
The Ordinance was questioned as an invalid exercise of police power and violative of the due process and equal
protection clause of the 1987 Constitution.
HELD:
The tests of a valid ordinance are well established. A long line of decisions has held that
for an ordinance to be valid, it must not only be within the corporate powers of the local
government unit to enact and must be passed according to the procedure prescribed by law, it
must also conform to the following substantive requirements: (1) must not contravene the
Constitution or any statute; (2) must not be unfair or oppressive; (3) must not be partial or
discriminatory; (4) must not prohibit but may regulate trade; (5) must be general and
consistent with public policy; and (6) must not be unreasonable.
The Ordinance contravenes
the Constitution
The police power of the City Council, however broad and far-reaching, is subordinate to the
constitutional limitations thereon; and is subject to the limitation that its exercise must be
reasonable and for the public good. In the case at bar, the enactment of the Ordinance was an
invalid exercise of delegated power as it is unconstitutional and repugnant to general laws.
The relevant constitutional provisions are the following:
SEC. 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.
SEC. 14. The State recognizes the role of women in nation-building, and shall ensure the
fundamental equality before the law of women and men.
SEC. 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 laws.
Sec. 9. Private property shall not be taken for public use without just compensation.
A. The Ordinance infringes
the Due Process Clause
The constitutional safeguard of due process is embodied in the fiat (N)o person shall be
deprived of life, liberty or property without due process of law. . . . There is no controlling and
precise definition of due process. It furnishes though a standard to which governmental action
should conform in order that deprivation of life, liberty or property, in each appropriate case, be
valid. This standard is aptly described as a responsiveness to the supremacy of reason, obedience
to the dictates of justice, and as such it is a limitation upon the exercise of the police power. The
purpose of the guaranty is to prevent governmental encroachment against the life, liberty and

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property of individuals; to secure the individual from the arbitrary exercise of the powers of the
government, unrestrained by the established principles of private rights and distributive justice; to
protect property from confiscation by legislative enactments, from seizure, forfeiture, and
destruction without a trial and conviction by the ordinary mode of judicial procedure; and to
secure to all persons equal and impartial justice and the benefit of the general law. The guaranty
serves as a protection against arbitrary regulation, and private corporations and partnerships are
persons within the scope of the guaranty insofar as their property is concerned. This clause has
been interpreted as imposing two separate limits on government, usually called procedural due
process and substantive due process.
Procedural due process, as the phrase implies, refers to the procedures that the government
must follow before it deprives a person of life, liberty, or property. Classic procedural due process
issues are concerned with what kind of notice and what form of hearing the government must
provide when it takes a particular action.
Substantive due process, as that phrase connotes, asks whether the government has an
adequate reason for taking away a persons life, liberty, or property. In other words, substantive
due process looks to whether there is a sufficient justification for the governments action. Case
law in the United States (U.S.) tells us that whether there is such a justification depends very
much on the level of scrutiny used. For example, if a law is in an area where only rational basis
review is applied, substantive due process is met so long as the law is rationally related to a
legitimate government purpose. But if it is an area where strict scrutiny is used, such as for
protecting fundamental rights, then the government will meet substantive due process only if it
can prove that the law is necessary to achieve a compelling government purpose. The police
power granted to local government units must always be exercised with utmost observance of the
rights of the people to due process and equal protection of the law. Such power cannot be
exercised whimsically, arbitrarily or despotically as its exercise is subject to a qualification,
limitation or restriction demanded by the respect and regard due to the prescription of the
fundamental law, particularly those forming part of the Bill of Rights. Individual rights, it bears
emphasis, may be adversely affected only to the extent that may fairly be required by the
legitimate demands of public interest or public welfare. Due process requires the intrinsic validity
of the law in interfering with the rights of the person to his life, liberty and property.
Requisites for the valid exercise
of Police Power are not met
To successfully invoke the exercise of police power as the rationale for the enactment of
the Ordinance, and to free it from the imputation of constitutional infirmity, not only must it
appear that the interests of the public generally, as distinguished from those of a particular
class, require an interference with private rights, but the means adopted must be reasonably
necessary for the accomplishment of the purpose and not unduly oppressive upon
individuals. It must be evident that no other alternative for the accomplishment of the
purpose less intrusive of private rights can work. A reasonable relation must exist between
the purposes of the police measure and the means employed for its accomplishment, for
even under the guise of protecting the public interest, personal rights and those pertaining
to private property will not be permitted to be arbitrarily invaded. Lacking a concurrence
of these two requisites, the police measure shall be struck down as an arbitrary intrusion
into private rights and a violation of the due process clause.
The Ordinance was enacted to address and arrest the social ills purportedly spawned by the
establishments in the Ermita-Malate area which are allegedly operated under the deceptive veneer
of legitimate, licensed and tax-paying nightclubs, bars, karaoke bars, girlie houses, cocktail
lounges, hotels and motels. Petitioners insist that even the Court in the case of Ermita-Malate
Hotel and Motel Operators Association, Inc. v. City Mayor of Manila had already taken judicial
notice of the alarming increase in the rate of prostitution, adultery and fornication in Manila
traceable in great part to existence of motels, which provide a necessary atmosphere for
clandestine entry, presence and exit and thus become the ideal haven for prostitutes and thrill-

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seekers. The object of the Ordinance was, accordingly, the promotion and protection of the
social and moral values of the community. Granting for the sake of argument that the objectives
of the Ordinance are within the scope of the City Councils police powers, the means employed
for the accomplishment thereof were unreasonable and unduly oppressive.
The Ordinance seeks to legislate morality but fails to address the core issues of morality. Try
as the Ordinance may to shape morality, it should not foster the illusion that it can make a moral
man out of it because immorality is not a thing, a building or establishment; it is in the hearts of
men. The City Council instead should regulate human conduct that occurs inside the
establishments, but not to the detriment of liberty and privacy which are covenants, premiums
and blessings of democracy.
While petitioners earnestness at curbing clearly objectionable social ills is commendable,
they unwittingly punish even the proprietors and operators of wholesome, innocent
establishments. In the instant case, there is a clear invasion of personal or property rights,
personal in the case of those individuals desirous of owning, operating and patronizing those
motels and property in terms of the investments made and the salaries to be paid to those therein
employed. If the City of Manila so desires to put an end to prostitution, fornication and other
social ills, it can instead impose reasonable regulations such as daily inspections of the
establishments for any violation of the conditions of their licenses or permits; it may exercise its
authority to suspend or revoke their licenses for these violations; and it may even impose
increased license fees. In other words, there are other means to reasonably accomplish the desired
end.
Means employed are
constitutionally infirm
The Ordinance disallows the operation of sauna parlors, massage parlors, karaoke bars,
beerhouses, night clubs, day clubs, super clubs, discotheques, cabarets, dance halls, motels and
inns in the Ermita-Malate area. In Section 3 thereof, owners and/or operators of the enumerated
establishments are given three (3) months from the date of approval of the Ordinance within
which to wind up business operations or to transfer to any place outside the Ermita-Malate area
or convert said businesses to other kinds of business allowable within the area. Further, it states
in Section 4 that in cases of subsequent violations of the provisions of the Ordinance, the
premises of the erring establishment shall be closed and padlocked permanently.
It is readily apparent that the means employed by the Ordinance for the achievement of its
purposes, the governmental interference itself, infringes on the constitutional guarantees of a
persons fundamental right to liberty and property.
Modality employed is
unlawful taking
In addition, the Ordinance is unreasonable and oppressive as it substantially divests the
respondent of the beneficial use of its property. [77] The Ordinance in Section 1 thereof forbids the
running of the enumerated businesses in the Ermita-Malate area and in Section 3 instructs its
owners/operators to wind up business operations or to transfer outside the area or convert said
businesses into allowed businesses. An ordinance which permanently restricts the use of property
that it can not be used for any reasonable purpose goes beyond regulation and must be recognized
as a taking of the property without just compensation. [78] It is intrusive and violative of the private
property rights of individuals.
The Constitution expressly provides in Article III, Section 9, that private property shall not
be taken for public use without just compensation. The provision is the most important
protection of property rights in the Constitution. This is a restriction on the general power of the
government to take property. The constitutional provision is about ensuring that the government
does not confiscate the property of some to give it to others. In part too, it is about loss spreading.

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If the government takes away a persons property to benefit society, then society should pay. The
principal purpose of the guarantee is to bar the Government from forcing some people alone to
bear public burdens which, in all fairness and justice, should be borne by the public as a whole. [79]
The second option instructs the owners to abandon their property and build another one
outside the Ermita-Malate area. In every sense, it qualifies as a taking without just compensation
with an additional burden imposed on the owner to build another establishment solely from his
coffers. The proffered solution does not put an end to the problem, it merely relocates it. Not
only is this impractical, it is unreasonable, onerous and oppressive. The conversion into allowed
enterprises is just as ridiculous. How may the respondent convert a motel into a restaurant or a
coffee shop, art gallery or music lounge without essentially destroying its property? This is a
taking of private property without due process of law, nay, even without compensation.
Petitioners cannot therefore order the closure of the enumerated establishments without
infringing the due process clause. These lawful establishments may be regulated, but not
prevented from carrying on their business. This is a sweeping exercise of police power that is a
result of a lack of imagination on the part of the City Council and which amounts to an
interference into personal and private rights which the Court will not countenance. In this regard,
we take a resolute stand to uphold the constitutional guarantee of the right to liberty and property.
The foregoing premises show that the Ordinance is an unwarranted and unlawful curtailment
of property and personal rights of citizens. For being unreasonable and an undue restraint of
trade, it cannot, even under the guise of exercising police power, be upheld as valid.
B. The Ordinance violates Equal
Protection Clause
Equal protection requires that all persons or things similarly situated should be treated alike,
both as to rights conferred and responsibilities imposed. Similar subjects, in other words, should
not be treated differently, so as to give undue favor to some and unjustly discriminate against
others.[98] The guarantee means that no person or class of persons shall be denied the same
protection of laws which is enjoyed by other persons or other classes in like circumstances. [99] The
equal protection of the laws is a pledge of the protection of equal laws. [100] It limits
governmental discrimination. The equal protection clause extends to artificial persons but only
insofar as their property is concerned. [101]
Legislative bodies are allowed to classify the subjects of legislation. If the classification is
reasonable, the law may operate only on some and not all of the people without violating the
equal protection clause.[103] The classification must, as an indispensable requisite, not be
arbitrary. To be valid, it must conform to the following requirements:
1) It must be based on substantial distinctions.
2) It must be germane to the purposes of the law.
3) It must not be limited to existing conditions only.
4) It must apply equally to all members of the class. [104]

In the Courts view, there are no substantial distinctions between motels, inns, pension houses, hotels,
lodging houses or other similar establishments. By definition, all are commercial establishments providing
lodging and usually meals and other services for the public. No reason exists for prohibiting motels and inns but
not pension houses, hotels, lodging houses or other similar establishments. The classification in the instant case is
invalid as similar subjects are not similarly treated, both as to rights conferred and obligations imposed. It is
arbitrary as it does not rest on substantial distinctions bearing a just and fair relation to the purpose of the
Ordinance.
The Court likewise cannot see the logic for prohibiting the business and operation of motels in the
Ermita-Malate area but not outside of this area. A noxious establishment does not become any less noxious if
located outside the area.

12

f. to promote the economic security of the people. (ICHONG VS. HERNANDEZ, 101 Phil.
11155)
Not a valid exercise of police power:
a. CITY GOVERNMENT OF QC VS. ERICTA, 122 SCRA 759; (Requiring private cemeteries
to set aside a portion of their land area to be given as burial place for paupers, free of
charge, is an invalid exercise of police power. It constitutes taking of a private property for
public use without just compensation. The local government units could not validly pass to
private cemeteries their obligation under the Local Government Code to provide cemeteries
to their constituents)
b. YNOT VS. IAC, 148 SCRA 659; the Director of Animal Industry or the Chairman if the
National Meat Commission may dispose of the carabaos or carabeef confiscated for violating
the executive order prohibiting the inter-provincial transport of said animals without prior permit
issued by the government to charitable agencies as he may deem fit. This is oppressive and
unreasonable since the owner of the animals is denied due process of law and the Director of
Animal Industry or Chairman of the National Meat Commission is given so much discretion as
the law is not complete in itself nor is there a standard to guide the official.
c. DE LA CRUZ VS. PARAS, 123 SCRA 569
(An Ordinance of Bocaue, Bulacan prohibiting the operation of nightclubs is unconstitutional.
It is not a valid exercise of police power. This is so because nightclubs are not illegal per se. They
can be regulated but not prohibited)
B. POWER OF EMINENT DOMAIN
3. POWER OF TAXATION
2. Differences and similarities
DIDIPIO EARTH SAVERS MULTI PURPOSE ASSOCIATION VS. DENR SEC. ELISEA
GOZU, ET AL., 485 SCRA 586
Chico-Nazario, J.
1.

The power of eminent domain is the inherent right of the State to condemn or to take
private property for public use upon payment of just compensation while police power is the
power of the state to promote public welfare by restraining and regulating the use of liberty and
property without compensation;
2.
In the exercise of police power, enjoyment of a property is restricted because the
continued use thereof would be injurious to public welfare. In such case, there is no compensable
taking provided none of the property interests is appropriated for the use or for the benefit of the
public. Otherwise, there should be compensable taking if it would result to public use.
3.
Properties condemned under police power are usually noxious or intended for noxious
purpose; hence , no compensation shall be paid. Likewise, in the exercise of police power,
property rights of private individuals are subjected to restraints and burdens in order to secure the
general comfort, health and prosperity of the state.
While the power of eminent domain often results in the appropriation of title to or
possession of property, it need not always be the case. Taking may include trespass without actual
eviction of the owner, material impairment of the value of the property or prevention of the
ordinary uses for which the property was intended such as the establishment of an easement.

13
As such, an imposition of burden over a private property through easement (by the
government) is considered taking; hence, payment of just compensation is required. The
determination of just compensation, however, is a judicial function (EPZA vs. Dulay, 149 SCRA
305) and initial determinations on just compensation by the executive department and Congress
cannot prevail over the courts findings.
3. Limitations in the exercise of said powers
4. Tests for a valid exercise of police power
a. the interests of the public, not mere particular class, require the exercise of police power;
(LAWFUL SUBJECT)
b. the means employed is reasonably necessary for the accomplishment of the purpose and
not unduly oppressive to individuals. (LAWFUL MEANS). In short, the end does not
justify the means.
Illustration: Lawful subject but the means employed is illegal
RESTITUTO YNOT VS. THE ITERMEDIATE APPELLATE COURT, G.R. No.
74457,March 20, 1987
Cruz, J.
Facts:
1. On January, 13, 1984, Ynot transported six carabaos by using a pumpboat from Masbate to
Iloilo. The six carabaos, were, however, confiscated by the Police Station Commander of Baratoc
Nuevo, Iloilo for alleged violation of Executive Order No. 626-A which prohibits the interprovincial transporting of carabaos and carabeefs which does not comply with the provisions of
Executive No.626;
2. That Section 1 of the said law provides that "henceforth, no carabaos regardless of age, sex
physical condition or purpose and no carabeef shall be transported from one province to another.
The carabao or carabeef transported in violation of the said law shall be subjected to confiscation
and forfeiture by the government to be distributed to charitable institution and similar institutions
as the Chairman of the National meat inspection Commission may see fit in the case of the
carabeef, and to deserving farmers through the dispersal of the Director of Animal Industry, in the
case of carabaos;
3. Ynot filed a suit for recovery and the carabao were returned to him upon the issuance of a writ
of replevin upon his filing of a supersede as bond in the amount of P12,000.00;
4. After trial of the case, the Judge upheld the validity of the act of the Police Station
Commander in confiscating the carabaos. Ynot was ordered to returned the carabaos but since he
could not do so, the court ordered the confiscation of the bond. The court refused to rule on the
constitutionality of the said Executive Order on the ground of lack of authority to do so and also
because of its presumed validity;
5. The petitioner appealed to the IAC but the said court upheld the decision of the Trial Court.
Hence this petition for review on certiorari before the Supreme Court where YNOT claimed that
the penalty of confiscation is INVALID the same was imposed without according the owner the
right to be heard before a competent and impartial tribunal as guaranteed by due process.
Issues:
1.
May a lower court (like the MTC, RTC, of the Court of Appeals) declare a law
unconstitutional?

14
2. Is Executive Order No. 626-A constitutional?
Sub-issues under this are:
a. Was it a valid police power measure?
b. Was there an undue delegation of legislative power?
Held:
1. While the lower courts should observe a becoming modesty in examining constitutional
question, THEY ARE NOT PREVENTED FROM RESOLVING THE SAME WHENEVER
WARRANTED, subject only to review by the supreme court. This is so because under Section 5,
[2(a)], Art. VIII, of the 1987 Constitution provides that the Supreme Court has the power to
"review, revise, reverse, modify or affirm on appeal" or certiorari as the rules of court may
provide, final judgments and orders of the lower courts in all cases involving the constitutionality
of certain measures. This simply means that lower courts may declare whether or not a law is
constitutional.
2. In order that a measure or law may be justified under the police power of the state, it
must meet two tests:
a. the subject must be lawful; and
b. the means employed is lawful.
Since the prohibition of the slaughtering of carabaos except where they are at least 7 years old
when male and at least 11 years old when female is in furtherance of the public interest since said
carabaos are very useful to the work at the farm, it is conceded
that the Executive Order meets the first test---- it has lawful subject.
But does the law meets the second requisite or test which is lawful method?
Executive Order No. 626-A imposes an absolute ban not on the slaughtering of
carabaos BUT ON THIER MOVEMENT, providing that "no carabao regardless of age, sex,
physical condition or purpose and no carabeef shall be transported from one province to another."
The reasonable connection between the means employed and the purpose sought to be achieved
by the question measure is missing. We do not see how the prohibition of the inter-provincial
transport can prevent their indiscriminate slaughter considering that they can be killed any where,
with no less difficulty in one province than in the other. Obviously, retaining a carabao in one
province will not prevent their slaughter there, any more than moving them to another province
will make it easier to kill them there.
The law is unconstitutional because it struck at once and pounced upon the
petitioner without giving him a chance to be heard, thus denying him the centuries-old guarantee
of elementary fair play.
Since the Executive Order in question is a penal law, then violation thereof
should be pronounce not by the police BUT BY A COURT OF JUSTICE, WHICH ALONE
WOULD HAVE HAD THE AUTHORITY TO IMPOSE THE PRESCRIBED PENALTY, AND
ONLY AFTER TRIAL AND CONVICTION OF THE ACCUSED.
Also, there is no reasonable guidelines or bases of the Director of Animal
Industry or the Chairman of the NATIONAL Meat Inspection Commission in the disposition of
the carabaos or carabeef other than what "they may see fit" which is very dangerous and could
result to opportunities for partiality and abuse, and even graft and corruption.

15
The Executive Order is, therefore, invalid and unconstitutional and not a valid
police power measure because the METHOD EMPLOYED TO CONSERVE CARABAOS IS
NOT REASONABLY NECESSARY TO THE PURPOSE OF THE LAW AND, WORSE IS
UNDULY OPPRESSIVE. DUE PROCESS IS VIOLATED BECAUSE THE OWNER OF THE
PROPERTY CONFISCATED IS DENIED THE RIGHT TO BE HEARD IN HIS DEFENSE
AND IS IMMEDIATELY CONDEMNED AND PUNISHED. THE CONFERMENT ON THE
ADMINISTRATIVE AUTHORITIES (like the police) OF THE POWER TO ADJUDGE THE
GUILT OF THE SUPPOSED OFFENDER IS A CLEAR ENCROACHMENT OF JUDICIAL
FUNCTIONS AND MILITATES AGAINST THE DOCTRINE OF SEPARATION OF POWERS.
Also, there is undue delegation of legislative power to the officers mentioned
therein (Director of Animal Industry and Head of the National Meat Commission) because they
were given unlimited discretion in the distribution of the property confiscated.
5. Read:
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
k.

JMM Promotions vs. CA, 260 SCRA 319


ERMITA-MALATE HOTEL VS. MAYOR OF MANILA, July 31, 1967;
ICHONG VS. HERNANDEZ, 101 Phil. 1155
CHURCHILL VS. RAFFERTY, 32 Phil. 580
PEOPLE VS. POMAR, 46 Phil. 447
US VS. TORIBIO, 15 Phil. 85
VELASCO VS. VILLEGAS, February 13, 1983
ILOILO ICE & COLD STORAGE VS. MUNICIPAL COUNCIL, 24 Phil. 471
AGUSTIN VS. EDU, 88 SCRA 195
TAXICAB OPERATORS VS. BOT, 119 SCRA 597
BAUTISTA VS. JUINIO, 127 SCRA 329

A law prohibiting the use of Heavy and Extra Heavy Vehicles on


weekends and holidays when there is energy crisis is a valid
police power measure.
MARY CONCEPCION-BAUTISTA VS. ALFREDO JUINIO, ET AL, 127 SCRA 329
Fernando, C.J.
Facts:
1. On May 31, 1979, President Marcos issued Letter of Instruction No. 869 prohibiting the use of
private motor vehicles with H (Heavy Vehicles) and EH (Extra Heavy Vehicles) on week-ends
and holidays from 12:00 a.m. Saturday morning to 5:00 a.m. Monday morning, or 1:00 a.m. of
the holiday to 5:00 a.m. of the day after the holiday. Motor vehicles of the following
classifications are however, exempted:
1. S----service;
2. T----Truck;
3. DPL--Diplomatic;
4. CC---Consular Corps; and
5. TC---Tourist Cars
2. On June 11, 1979, the then Commissioner of Land Transportation, ROMEO EDU issued
Circular No. 39 imposing "the penalties of fine, confiscation of vehicle and cancellation of
registration on owners of the above-specified found violating such letter of Instructions";
3. Bautista is questioning the constitutionality of the LOI and the Implementing Circular on the
grounds that:

16
a. The banning of H and EH vehicles is unfair, discriminatory, and arbitrary and thus contravenes
the EQUAL PROTECTION CLAUSE; and
b. The LOI denies the owners of H and EH vehicles of due process, more
specifically of their right to use and enjoy their private property and of their freedom to travel and
hold family gatherings, reunions, outings on week-ends and holidays, while those not included in
the prohibition are enjoying unrestricted freedom;
c. The Circular violates the prohibition against undue delegation of legislative
power because the LOI does not impose the penalty of confiscation.
HELD:
1. It must be pointed out that the LOI was promulgated to solve the oil crisis
which was besetting the country at that time. It was therefore a valid police power measure to
ensures the country's economy as a result of spiralling fuel prices. In the interplay of Bautista's
right to due process and the exercise of police power by the State, the latter must be given leeway.
The police power is intended to promote public health, public morals, public safety and general
welfare.
2. The petitioners' claim that their right to equal protection was violated is
without basis. This is so because there is a valid classification in this case. Definitely, Heavy and
Extra-Heavy vehicles consume more gasoline that the other kinds of vehicles and it is but proper
to regulate the use of those which consumes more gasoline. If all the owner of H and EH vehicles
are treated in the same fashion, or whatever restrictions cast on some in the group is held equally
binding on the rest, there is no violation of the equal protection clause.
3. The penalty of "impounding" the vehicle as embodied in Circular No. 39 has
no statutory basis. Therefore, it is not valid being an "ultra vires".
l.

ASSOCIATION OF SMALL LANDOWNERS VS. SECRETARY OF AGRARIAN REFORM,


175 SCRA 343
m. DECS VS. SAN DIEGO, 180 SCRA 533
n. VILLANUEVA VS. CASTANEDA, September 21, 1987
5-a. Not a valid exercise of police power
CITY GOVERNMENT OF QUEZON CITY VS. ERICTA, 122 SCRA 759
CHAPTER IIDUE PROCESS
Section 1---NO PERSON SHALL BE DEPRIVED OF LIFE,
LIBERTY OR PROPERTY WITHOUT DUE PROCESS OF
LAW, NOR SHALL ANY PERSON BE DENIED EQUAL
PROTECTION OF THE LAWS.
Kinds of Due Process:
a. substantive due process---requires the intrinsic validity of the law in interfering with the rights of
the person to life, liberty or property. In short, it is to determine whether it has a valid
governmental objective like for the interest of the public as against mere particular class.
b. Procedural due process---one which hears before it condemns as pointed out by Daniel Webster.
Due process is a law which hears before it condemns, which proceeds upon inquiry and renders judgment only
after trial (Per Daniel Webster in the DARTMOUTH COLLEGE CASE)

17
Due process have different requisites in:
1.
2.
3.
4.

Due process before judicial bodies or judicial due process;


Due process before administrative bodies;
Due process before the labor tribunals; and
Due process involving students.

If the proceeding is not covered by any of the above, due


process may not be invoked if one was not given the right to
be heard.
Illustrative case:
DUE PROCESS
JOSE L. ATIENZA, JR., MATIAS V. DEFENSOR, JR., RODOLFO
G.VALENCIA, DANILO E. SUAREZ, SOLOMON R. CHUNGALAO,
SALVACION ZALDIVAR-PEREZ, HARLIN CAST-ABAYON, MELVIN
G.MACUSI and ELEAZAR P. QUINTO vs. COMELEC, MANUEL
ROXAS II, FRANKLIN DRILON and J.R. NEREUS ACOSTA , G.R. No.
188920
ABAD, J.:
On July 5, 2005 respondent Franklin M. Drilon , then the president of the Liberal Party (LP),
announced his partys withdrawal of support for the administration of President Gloria MacapagalArroyo. But petitioner Jose L. Atienza, Jr., LP Chairman, and a number of party members denounced
Drilons move, claiming that he made the announcement without consulting his party.
On March 2, 2006 petitioner Atienza hosted a party conference to supposedly discuss local
autonomy and party matters but, when convened, the assembly proceeded to declare all positions in the
LPs ruling body vacant and elected new officers, with Atienza as LP president. Respondent Drilon
immediately filed a petition with the Commission on Elections (COMELEC) to nullify the elections. He
claimed that it was illegal considering that the partys electing bodies, the National Executive Council
(NECO) and the National Political Council (NAPOLCO), were not properly convened. Drilon also
claimed that under the amended LP Constitution, party officers were elected to a fixed three-year term
that was yet to end on November 30, 2007.
On the other hand, petitioner Atienza claimed that the majority of the LPs NECO and NAPOLCO
attended the March 2, 2006 assembly. The election of new officers on that occasion could be likened to
people power, wherein the LP majority removed respondent Drilon as president by direct action.
Atienza also said that the amendments to the original LP Constitution, or the Salonga Constitution,
giving LP officers a fixed three-year term, had not been properly ratified. Consequently, the term of
Drilon and the other officers already ended on July 24, 2006
On October 13, 2006, the COMELEC issued a resolution, partially granting respondent Drilons
petition. It annulled the March 2, 2006 elections and ordered the holding of a new election under
COMELEC supervision. It held that the election of petitioner Atienza and the others with him was
invalid since the electing assembly did not convene in accordance with the Salonga Constitution. But,
since the amendments to the Salonga Constitution had not been properly ratified, Drilons term may be
deemed to have ended. Thus, he held the position of LP president in a holdover capacity until new
officers were elected.
Both sides of the dispute went to the Supreme Court to challenge the COMELEC rulings. On
April 17, 2007 a divided Court issued a resolution, granting respondent Drilons petition and denying that

18
of petitioner Atienza. The Court held, through the majority, that the COMELEC had jurisdiction over the
intra-party leadership dispute; that the Salonga Constitution had been validly amended; and that, as a
consequence, respondent Drilons term as LP president was to end only on November 30, 2007.
Subsequently, the LP held a NECO meeting to elect new party leaders before respondent Drilons
term expired. Fifty-nine NECO members out of the 87 who were supposedly qualified to vote attended.
Before the election, however, several persons associated with petitioner Atienza sought to clarify their
membership status and raised issues regarding the composition of the NECO. Eventually, that meeting
installed respondent Manuel A. Roxas II (Roxas) as the new LP president.
On January 11, 2008 petitioners Atienza, Matias V. Defensor, Jr., Rodolfo G. Valencia, Danilo E.
Suarez, Solomon R. Chungalao, Salvacion Zaldivar-Perez, Harlin Cast-Abayon, Melvin G. Macusi, and
Eleazar P. Quinto, filed a petition for mandatory and prohibitory injunction before the COMELEC against
respondents Roxas, Drilon and J.R. Nereus O. Acosta, the party secretary general. Atienza, et al. sought
to enjoin Roxas from assuming the presidency of the LP, claiming that the NECO assembly which elected
him was invalidly convened. They questioned the existence of a quorum and claimed that the NECO
composition ought to have been based on a list appearing in the partys 60th Anniversary Souvenir
Program. Both Atienza and Drilon adopted that list as common exhibit in the earlier cases and it showed
that the NECO had 103 members.
Petitioners Atienza, et al. also complained that Atienza, the incumbent party chairman, was not
invited to the NECO meeting and that some members, like petitioner Defensor, were given the status of
guests during the meeting. Atienzas allies allegedly raised these issues but respondent Drilon
arbitrarily thumbed them down and railroaded the proceedings. He suspended the meeting and moved
it to another room, where Roxas was elected without notice to Atienzas allies.
On the other hand, respondents Roxas, et al. claimed that Roxas election as LP president faithfully
complied with the provisions of the amended LP Constitution. The partys 60th Anniversary Souvenir
Program could not be used for determining the NECO members because supervening events changed the
bodys number and composition. Some NECO members had died, voluntarily resigned, or had gone on
leave after accepting positions in the government. Others had lost their re-election bid or did not run in
the May 2007 elections, making them ineligible to serve as NECO members. LP members who got
elected to public office also became part of the NECO. Certain persons of national stature also became
NECO members upon respondent Drilons nomination, a privilege granted the LP president under the
amended LP Constitution. In other words, the NECO membership was not fixed or static; it changed due
to supervening circumstances.
Respondents Roxas, et al. also claimed that the party deemed petitioners Atienza, Zaldivar-Perez,
and Cast-Abayon resigned for holding the illegal election of LP officers on March 2, 2006. This was
pursuant to a March 14, 2006 NAPOLCO resolution that NECO subsequently ratified. Meanwhile,
certain NECO members, like petitioners Defensor, Valencia, and Suarez, forfeited their party membership
when they ran under other political parties during the May 2007 elections. They were dropped from the
roster of LP members.
On June 18, 2009 the COMELEC issued the assailed resolution denying petitioners Atienza, et al.s
petition. It noted that the May 2007 elections necessarily changed the composition of the NECO since the
amended LP Constitution explicitly made incumbent senators, members of the House of Representatives,
governors and mayors members of that body. That some lost or won these positions in the May 2007
elections affected the NECO membership. Petitioners failed to prove that the NECO which elected Roxas
as LP president was not properly convened.
As for the validity of petitioners Atienza, et al.s expulsion as LP members, the COMELEC
observed that this was a membership issue that related to disciplinary action within the political party.
The COMELEC treated it as an internal party matter that was beyond its jurisdiction to resolve.

19
Without filing a motion for reconsideration of the COMELEC resolution, petitioners Atienza, et al.
filed this petition for certiorari under Rule 65.
ISSUE
Whether or not respondents Roxas, et al. violated
petitioners Atienza, et al.s constitutional right to
due process by the latters expulsion from the
party.
HELD:
Petitioners Atienza, et al. argue that their expulsion from the party is not a simple issue of party
membership or discipline; it involves a violation of their constitutionally-protected right to due process of
law. They claim that the NAPOLCO and the NECO should have first summoned them to a hearing
before summarily expelling them from the party. According to Atienza, et al., proceedings on party
discipline are the equivalent of administrative proceedings and are, therefore, covered by the due process
requirements laid down in Ang Tibay v. Court of Industrial Relations.
But the requirements of administrative due process do not apply to the internal affairs of political
parties. The due process standards set in Ang Tibay cover only administrative bodies created by the
state and through which certain governmental acts or functions are performed. An administrative
agency or instrumentality contemplates an authority to which the state delegates governmental
power for the performance of a state function. The constitutional limitations that generally apply
to the exercise of the states powers thus, apply too, to administrative bodies
The constitutional limitations on the exercise of the states powers are found in Article III of the
Constitution or the Bill of Rights. The Bill of Rights, which guarantees against the taking of life,
property, or liberty without due process under Section 1 is generally a limitation on the states powers in
relation to the rights of its citizens. The right to due process is meant to protect ordinary citizens
against arbitrary government action, but not from acts committed by private individuals or entities.
In the latter case, the specific statutes that provide reliefs from such private acts apply. The right
to due process guards against unwarranted encroachment by the state into the fundamental rights
of its citizens and cannot be invoked in private controversies involving private parties.
Although political parties play an important role in our democratic set-up as an intermediary
between the state and its citizens, it is still a private organization, not a state instrument. The discipline of
members by a political party does not involve the right to life, liberty or property within the meaning of
the due process clause. An individual has no vested right, as against the state, to be accepted or to prevent
his removal by a political party. The only rights, if any, that party members may have, in relation to other
party members, correspond to those that may have been freely agreed upon among themselves through
their charter, which is a contract among the party members. Members whose rights under their charter
may have been violated have recourse to courts of law for the enforcement of those rights, but not as a
due process issue against the government or any of its agencies.
But even when recourse to courts of law may be made, courts will ordinarily not interfere in
membership and disciplinary matters within a political party. A political party is free to conduct its
internal affairs, pursuant to its constitutionally-protected right to free association. In Sinaca v. Mula, the
Court said that judicial restraint in internal party matters serves the public interest by allowing the
political processes to operate without undue interference. It is also consistent with the state policy of
allowing a free and open party system to evolve, according to the free choice of the people.
To conclude, the COMELEC did not gravely abuse its discretion when it upheld Roxas election
as LP president but refused to rule on the validity of Atienza, et al.s expulsion from the party. While the
question of party leadership has implications on the COMELECs performance of its functions under

20
Section 2, Article IX-C of the Constitution, the same cannot be said of the issue pertaining to Atienza, et
al.s expulsion from the LP. Such expulsion is for the moment an issue of party membership and
discipline, in which the COMELEC cannot intervene, given the limited scope of its power over political
parties.

5. Requisites of judicial due process.


a. BANCO ESPANOL VS. PALANCA, 37 Phil. 921
Requisites:
1. There must be an impartial court or tribunal clothed with judicial power to hear and decide the
matter before it;
2. Jurisdiction must be lawfully acquired over the person of the defendant or over the property
subject of the proceedings;
3. The defendant must be given the opportunity to be heard;
4. Judgment must be rendered only after lawful hearing.
a. GALMAN VS. PAMARAN (the 1st case)
b. IMELDA MARCOS VS. SANDIGANBAYAN, October 6, 1998
IMELDA R. MARCOS VS. SANDIGANBAYAN, G.R. No. 126995, October 6, 1998
Purisima, J.
Facts:
1. On June 8, 1984, IMELDA MARCOS and JOSE DANS, as Chairman and Vice Chairman of the
Light Railway Transit Authority (LRTA) entered into a Lease Contract with the Philippine
General Hospital Foundation (PGHFI) involving an LRTA property in Pasay City for
P102,760.00 per month for 25 years;
2. On June 27,1984, the PGHFI subleased the said property for P734,000.00 per month to the
Transnational Construction Corporation represented by one Ignacio Jumenez;
3. After petitioners husband was deposed as President of the Philippines, she and Dans were
charged of alleged violation of Section 3 [g] of RA 3019, otherwise known as the Anti-Graft and
Corrupt Practices Act before the Sandiganbayan;
4. After trial , the First Division of the Sandiganbayan failed to comply with the legal requirement
that all the 3 justices must be unanimous in its Decision because Justice Garchitorena and Justice
Jose Balajadia voted for the conviction of both accused while Justice Narciso Atienza voted to
acquit them;
5. Thereafter, Justice Garchitorena as Presiding Justice issued Administrative Order No. 288-93
constituting a Special Division of five and designating Justices Augusto Amores and Cipriano del
Rosario;
6. On September 21, 1993, Justice Amores wrote Justice Garchitorena that he be given 15 days his
Manifestation. On the same date, however, Justice Garchitorena dissolved the division of 5
allegedly because he and Justice Balajadia had agreed to the opinion of Justice del Rosario;
7. On September 24, 1993, a Decision was rendered convicting the petitioner and Dans of violation
of Sec. 3 [g] of RA 3019;
8. On June 29, 1998, the Third Division of the Supreme Court by a vote of 3-2 affirmed the
conviction of the petitioner but acquitted DANS;
9. Petitioner then filed a Motion for Reconsideration and at the same time prayed that her Motion be
heard by the Supreme Court en banc claiming that her right to due process of law, both
substantive and procedural, was violated:

21
a.

as a result of the fact that she was convicted as a result of the alleged disparity of the rentals
agreed upon with PGHFI and the subsequent sub-lease contract between PGHFI and
Transnational Construction Corporation; and
b. the First Division convicted her after Justice Garchitorena dissolved the Special Division of 5
after a lunch in a Quezon City restaurant where they agreed to convict her in one case and acquit
her in her other cases. The said meeting was attended by another justice who is not a member of
the First Division or the Special Division in violation of the Rules of the Sandiganbayan which
requires that sessions of the court shall be done only in its principal office in Manila and that only
justices belonging to the division should join the deliberations.
Held:
The petitioner is hereby acquitted.
1. The great disparity between the rental price of the lease agreement signed by the petitioner
(P102,760.00 per month) and the sub-lease rental (P734,000.00 per month) does not necessarily
render the monthly rate of P102,760.00 manifestly and grossly disadvantageous to the
government in the absence of any evidence using rentals of adjacent properties showing that the
rentals in the property subject of the lease agreement is indeed very low. NO EVIDENCE
WHATSOEVER WAS PRESENTED BY THE PROSECUTION REGARDING THE RENTAL
RATE OF ADJACENT PROPERTIES.. As such, the prosecution failed to prove the guilt of the
petitioner reasonable doubt.
2. The court notes likewise the bias and prejudice of Presiding Justice Garchitorena against the
petitioner as shown by his leading, misleading and baseless hypothetical questions of said justice
to RAMON F. CUERVO, witness for the petitioner. Said justice asked 179 questions to the
witness as against the prosecutor who cross-examined the witness and asked 73. Said number of
questions could no longer be described as clarificatory questions. Another ground therefore for
the acquittal of the petitioner is that she was denied IMPARTIAL TRIAL before the
Sandiganbayan. This is one reason why the case could no longer be remanded to the
Sandiganbayan especially so that the other Sandiganbayan Justices in the Special Division of 5
have retired. There is therefore no compelling reason why the case should still be remanded to the
lower court when all the evidence are already with the Supreme Court.
(NOTE: The vote was 9-5 for Acquittal. CJ Narvasa, Justices Regalado, Davide, Jr., Romero, and
Panganiban voted for conviction while Justice Vitug was the only Justice who voted for the return
of the case to the Sandiganbayan to allow the corrections of the perceived irregularities in the
proceedings below.)
c. DBP VS. CA, January 29, 1999 (Repeated failure of a party to present evidence justifies the
court to consider the case submitted for decision and hold that the party has waived the
right to present evidence)
d. MATUGUINA VS. CA, 263 SCRA 490
e. PEOPLE VS. CA, 262 SCRA 452
f. JAVIER VS. COMELEC, 144 SCRA 194

JAVIER VS. COMELEC


G.R. No.L- 68379-812, September 22, 1986
FACTS:
1. The petitioner Evelio Javier and the private respondent Arturo Pacificador were candidates in
Antique for the Batasang Pambansa election in May 1984;

22
2. Alleging serious anomalies in the conduct of the elections and the canvass of the election
returns, Javier went to the COMELEC to prevent the impending proclamation of his rival;
3. On May 18, 1984, the Second Division of the COMELEC directed the provincial board of
canvassers to proceed with the canvass but to suspend the proclamation of the winning candidate
until further orders;
4. On June 7, 1984, the same Second Division ordered the board to immediately convene and to
proclaim the winner without prejudice to the outcome of the petition filed by Javier with the
COMELEC;
5. On certiorari with the S.C. the proclamation made by the Board of Canvassers was set aside
as premature, having been made before the lapse of the 5 - day period of appeal, which the
petitioner seasonably made;
6. On July 23, 1984 the Second Division itself proclaimed Pacificador the elected assemblyman
of Antique.
ISSUE:
Was the Second Division of the COMELEC, authorized to promulgate its decision of July 23,
1984 proclaiming Pacificador the winner in the election ?
APPLICABLE PROVISIONS OF THE CONSITUTION:
The applicable provisions of the 1973 Constitution are Art. XII-C, secs. 2 and 3, which
provide:
"Section 2. Be the sole judge of all contests relating to the election, returns and
qualifications of all members of the Batasang Pambansa and elective provincial and city
officials."
"Section 3. The Commission on Elections may sit en banc or in three divisions. All election
cases may be heard and decided by divisions except contests involving members of the
Batasang Pambansa, which shall be heard and decided en banc. Unless otherwise provided
by law, all election cases shall be decided within ninety days from the date of their submission for
decision."
CONTENTIONS OF THE PARTIES:
Petitioner:
The proclamation made by the Second Division is invalid because all contests involving
members of the Batasang Pambansa come under the jurisdiction of the Commission on Elections
en banc.
Respondents:
Only "contests" need to be heard and decided en banc, all other cases can be - in fact,
should be - filed with and decided only by any of the three divisions.
There is a difference between "contests" and "cases" and also a difference between "preproclamation controversies" and "election protests". The pre-proclamation controversy between
the petitioner and the private respondent was not yet a contest at the time and therefore could be
validly heard by a mere division of the Commission on elections, consonant with Sec. 3. The
issue at that stage was still administrative and could be resolved by a division.

23
HELD:
a. The S.C. decided to resolve the case even if the Batasang Pambansa had already been
abolished by the Aquino government, and even if Javier had already died in the meantime. This
was because of its desire for this case to serve as a guidance for the future. Thus it said: "The
Supreme Court is not only the highest arbiter of legal questions but also the conscience of the
government. The citizen comes to us in quest of law but we must also give him justice. The two
are not always the same. There are times when we cannot grant the latter because the issue has
been settled and decision is no longer possible according to law. But there are also times when
although the dispute has disappeared, as in this case, it nevertheless cries out to be resolved.
Justice demands that we act, then, not only for the vindication of the outraged right, though gone,
but also for the guidance of and as a restraint upon the future."
b. The S.C. held on the main issue that in making the COMELEC the sole judge of all contests
involving the election, returns and qualifications of the members of the Batasang Pambansa and
elective provincial and city officials, the Constitution intended to give it full authority to hear and
decide these cases from beginning to end and on all matter related thereto, including those arising
before the proclamation of the winners.
The decision rendered by the Second Division alone was therefore set aside as violative of the
Constitution. The case should have been decided en banc.
c. Pre-proclamation controversies became known and designated as such only because of Sec.
175 of the 1978 Election Code. The 1973 Constitution could not have therefore been intended to
have divided contests between pre and post proclamation when that Constitution was written in
1973.
d. The word "contests" should not be given a restrictive meaning; on the contrary, it should
receive the widest possible scope conformably to the rule that the words used in the Constitution
should be interpreted liberally. As employed in the 1973 Constitution, the term should be
understood as referring to any matter involving the title or claim of title to an elective office,
made before or after the proclamation of the winner, whether or not the contestant is claiming the
office in dispute.
e. There was also a denial of due process. One of the members of the Second Division,
Commissioner Jaime Opinion was a law partner of Pacificador. He denied the motion to
disqualify him from hearing the case. The Court has repeatedly and consistently demanded "the
cold neutrality of an impartial judge" as the indispensable imperative of due process. To
bolster that requirement we have held that the judge must not only be impartial but must also
appear to be impartial as an added assurance to the parties that his decision will be just.
g.
h.
i.
j.
k.
l.
m.
n.
o.

AZUL VS. CASTRO, 133 SCRA 271


PADERANGA VS. AZURA, 136 SCRA 266
DAVID VS. AQUILIZAN, 94 SCRA 707
LORENZANA VS. CAYETANO, 78 SCRA 485 (respondent was not a party to the
ejectment case) so to enforce the decision on her violates her right to due process of law
ZAMBALES CHROMITE MINING VS. CA, 94 SCRA 261
ANZALDO VS. CLAVE, 119 SCRA 353
SINGSON VS. NLRC, 273 SCRA 258
ANZALDO VS. CLAVE, 119 SCRA 353
MAYOR ALONTE VS. JUDGE SAVELLANO, 287 SCRA 245
MAYOR BAYANI ALONTE VS. JUDGE SAVELLANO, 287 SCRA 245
Vitug, J.

24
Mayor Alonte of Binan, Laguna was charged of rape before Branch 25, RTC of Laguna.
However, as a result of a petition for a transfer of venue filed by the prosecution and granted by
the SC, his case was transferred to RTC Branch 53, Manila, presided over by the respondent
judge.
After the petitioners arraignment, the prosecution submitted an AFFIDAVIT OF
DESISTANCE signed by the private complainant JUVIE-LYN PUNONGBAYAN where she
prayed for the withdrawal of the case because she is no longer interested in pursuing the same
with no intention of re-filing the said case in the future.
Pending resolution of the said motion to withdraw, the petitioner filed a motion for bail.
The same was not resolved despite several motions filed by the petitioner to resolve the same.
On December 17, 1997, counsel for the petitioner, ATTY. PHILIP SIGFRID FORTUN,
received a notice from the respondent judge notifying him of the promulgation of the decision in
this case despite the fact that the prosecution and the defense have not presented their evidence in
court.
On December 18, 1997, the respondent judge issued a Decision convicting the petitioner
of rape and sentenced to suffer a penalty of RECLUSION PERPETUA.
Issue:
Whether or not the petitioner was denied his right to due process of law.
Held:
In order that an accused in a criminal proceedings is deemed to have been given the right
to due process of law, the following requisites must be complied with before a decision is
rendered:
1. the court or tribunal trying the case is clothed with jurisdiction to hear and determine the matter
before it;
2. that jurisdiction was lawfully acquired by it over the person of the accused;
3. that the accused is given the opportunity to be heard; and
4. that judgment is rendered only upon lawful hearing (PEOPLE VS. DAPITAN, 197 SCRA 378)
The act of the respondent judge in rendering a decision without even giving the petitioner
the right to adduce evidence in his behalf is a gross violation of his right to due process of law.
The Decision rendered is NULL AND VOID for want of due process.
As long as there is a notice to a party in the hearing of a motion
on the custody of their children in a Declaration of Nullity of
Marriage case, there is no violation of the right to due process.
SUSIE CHAN-TAN vs. JESSE TAN, G.R. No. 167139, February 25, 2010
ISSUE:
Petitioner raises the question of whether the 30 March 2004 decision and the 17 May 2004
resolution of the trial court giving custody to their children have attained finality despite the alleged
denial of due process since she was not present during the hearing.
HELD:

25
Petitioner contends she was denied due process when her counsel failed to file pleadings and appear at
the hearings for respondents omnibus motion to amend the partial judgment as regards the custody of the
children and the properties in her possession. Petitioner claims the trial court issued the 17 May 2004
resolution relying solely on the testimony of respondent. Respondent stresses neither petitioner nor her
counsel appeared in court at the hearings on respondent's omnibus motion or on petitioners motion to
dismiss.
We also ruled in Tuason that notice sent to the counsel of record is binding upon the client and the
neglect or failure of the counsel to inform the client of an adverse judgment resulting in the loss of the
latters right to appeal is not a ground for setting aside a judgment valid and regular on its face.
Further, petitioner cannot claim that she was denied due process. While she may have lost her right
to present evidence due to the supposed negligence of her counsel, she cannot say she was denied her day
in court. Records show petitioner, through counsel, actively participated in the proceedings below, filing
motion after motion. Contrary to petitioners allegation of negligence of her counsel, we have reason to
believe the negligence in pursuing the case was on petitioners end, as may be gleaned from her counsels
manifestation dated 3 May 2004:
Undersigned Counsel, who appeared for petitioner, in the nullity proceedings,
respectfully informs the Honorable Court that she has not heard from petitioner since
Holy Week. Attempts to call petitioner have failed.
Undersigned counsel regrets therefore that she is unable to respond in an intelligent
manner to the Motion (Omnibus Motion) filed by respondent.
Clearly, despite her counsels efforts to reach her, petitioner showed utter disinterest in the hearings
on respondents omnibus motion seeking, among others, custody of the children. The trial judge was left
with no other recourse but to proceed with the hearings and rule on the motion based on the evidence
presented by respondent. Petitioner cannot now come to this Court crying denial of due process.
The right of the accused to due process of law was violated
when the judge issued a warrant for her arrest even though
she has not received any notice for her arraignment before
the Municipal Trial Court of Baguio City because the notice
was actually sent to her through the Chief of Police of
Quezon City.
NORYN S. TAN VS. JUDGE MARIA CLARITA CASUGA-TABIN, A.M. No.
MTJ-09-1729, January 20, 2009
AUSTRIA-MARTINEZ, J.:
FACTS:
Noryn S. Tan (complainant) filed a Complaint dated April 2, 2007 against Judge Maria Clarita Casuga-Tabin
(respondent) of the Municipal Trial Court in Cities (MTCC), Branch 4, Baguio City for denial of due process relative
to Criminal Case No. 118628.
Complainant avers: On November 9, 2006, the Philippine National Police (PNP) Quezon City Police District
(QCPD) served her a warrant of arrest dated October 13, 2006, issued by the MTCC Baguio City, Branch 4, presided
by respondent, relative to Criminal Case No. 118628 for alleged violation of Batas Pambansa Blg. 22. It was only
then that she learned for the first time that a criminal case was filed against her before the court. She was detained at
the Quezon City Hall Complex Police Office and had to post bail of P1,000.00 before the Office of the Executive
Judge of the Regional Trial Court (RTC) of Quezon City for her temporary release. Upon verification, she learned that
respondent issued on August 8, 2006 an Order directing her to appear before the court on October 10, 2006 for

26
arraignment. It was sent by mail to PNP Quezon City for service to her. However, she did not receive any copy of the
Order and up to the present has not seen the same; hence, she was not able to attend her arraignment. She also found
out that there was no proof of service of the Order or any notice to her of the arraignment. This notwithstanding,
respondent issued a warrant for her arrest. Complainant alleges that she was deeply aggrieved and embarrassed by the
issuance of the warrant for her arrest despite the fact that she was never notified of her arraignment. Complainant
prayed that the appropriate investigation be conducted as to the undue issuance of a warrant for her arrest.
In her Comment dated July 5, 2007, respondent answered: She issued the warrant of arrest because when the
case was called for appearance, the complainant, as accused therein, failed to appear. Prior to the issuance of the
warrant of arrest, her staff sent by registered mail the court's Order dated August 8, 2006 addressed to complainant
through the Chief of Police, PNP, 1104, Quezon City directing complainant to appear on October 10, 2006 at 8:30
a.m. for the arraignment and preliminary conference in Criminal Case No. 118628, as proven by Registry Receipt No.
0310. It is true that the return on the court's Order dated August 8, 2006 had not yet been made by the QC Police on or
before October 10, 2006. Nonetheless, she issued the warrant of arrest in good faith and upon the following grounds:
(a) under Sec. 3 of Rule 131 of the Rules of Court, the court was entitled to presume that on October 10, 2006, after the
lapse of a little over two months, official duty had been regularly performed and a letter duly directed and mailed had
been received in the regular course of mail; and (b) Sec. 12 of the 1983 Rule on Summary Procedure in Special Cases
provides that bail may be required where the accused does not reside in the place where the violation of the law or
ordinance was committed. The warrant of arrest she issued was meant to implement this provision, which was not
repealed by the 1991 Revised Rule on Summary Procedure, since complainant is a resident of Quezon City and not of
Baguio City. If her interpretation was erroneous, she (respondent) believes that an administrative sanction for such
error would be harsh and unsympathetic. She has nothing personal against complainant and did not want to embarrass
or humiliate her. She issued the warrant in the honest belief that her act was in compliance with the rules. She prays
that the case against her be dismissed and that a ruling on the interpretation of Secs. 10 & 12, of the 1983 Rule on
Summary Procedure in Special Cases, in relation to Sec. 16 of the 1991 Revised Rule on Summary Procedure be made
for the guidance of the bench and bar.
HELD:
Whenever a criminal case falls under the Summary Procedure, the general rule is that the court shall not order
the arrest of the accused, unless the accused fails to appear whenever required. This is clearly provided in Section 16
of the 1991 Revised Rule on Summary Procedure which states:
Sec. 16. Arrest of accused. - The court shall not order the arrest of the accused except
for failure to appear whenever required. Release of the person arrested shall either be in bail or
on recognizance by a responsible citizen acceptable to the court. (Emphasis supplied)
In this case, respondent claims that the issuance of a warrant for the arrest of complainant was justified, since
complainant failed to appear during the arraignment in spite of an order requiring her to do so. Respondent admits,
however, that a copy of the Order dated August 8, 2006, was sent to complainant through the Chief of Police, PNP,
1104, Quezon City.
While it is true that the Rules of Court provides for presumptions, one of which is that official duty has been
regularly performed, such presumption should not be the sole basis of a magistrate in concluding that a person called to
court has failed to appear as required, which in turn justifies the issuance of a warrant for her arrest, when such notice
was not actually addressed to her residence but to the police in her city. So basic and fundamental is a person's right to
liberty that it should not be taken lightly or brushed aside with the presumption that the police through which the notice
had been sent, actually served the same on complainant whose address was not even specified.
The Court has held that a judge commits grave abuse of authority when she hastily issues a warrant of arrest
against the accused in violation of the summary procedure rule that the accused should first be notified of the charges
against him and given the opportunity to file his counter-affidavits and countervailing evidence .
Hence, complainants right to due process was violated.

27
Considering that this is respondent's first administrative infraction in her more than 8 years of service in the
judiciary, which serves to mitigate her liability, the Court holds the imposition of a fine in the amount of P10,000.00 to
be proper in this case.
6. Procedural due process before administrative bodies
a. TIBAY VS. CIR, 69 Phil. 635
Requisites:
a.
b.
c.
d.
e.
f.
g.

the right to a hearing which includes the right to present evidence;


the tribunal must consider the evidence presented;
the decision must have something to support itself;
the evidence must be substantial;
the decision must be based on the evidence presented during the hearing;
the tribunal or body must act on its own independent consideration of the law or facts;
the board or body shall in all controversial questions, render its decision in such a manner
that the parties to the proceedings can know the various issues involved.

b. AMERICAN TOBACCO VS. DIRECTOR, 67 SCRA 287


c. MANILA ELECTRIC COMPANY VS. NLRC, 263 SCRA 531
d. DELGADO VS. CA, November 10, 1986
If an accused was represented by a non-lawyer during the trial (though she
thought that he is a lawyer), her right to due process was violated and therefore entitled to a
new trial.
e. PEDRO CONSULTA VS. PEOPLE, G.R. No. 179462, February 12, 2009
ISSUE:
Whether or not appellant was denied due process having been represented by a fake lawyer
during arraignment, pre-trial and presentation of principal witnesses for the prosecution.
HELD:
On the matter of accused-appellants claim of having been denied due process, an
examination of the records shows that while accused-appellant was represented by Atty. Jocelyn
P. Reyes, who seems not a lawyer, during the early stages of trial, the latter withdrew her
appearance with the conformity of the former as early as July 28, 2000 and subsequently,
approved by the RTC in its Order dated August 4, 2000. Thereafter, accused-appellant was
represented by Atty. Rainald C. Paggao from the Public Defenders (Attorneys) Office of Makati
City. Since the accused-appellant was already represented by a member of the Philippine Bar
who principally handled his defense, albeit unsuccessfully, then he cannot now be heard to
complain about having been denied of due process.
That appellants first counsel may not have been a member of the bar does not dent the proven fact that appellant
prevented Nelia and company from proceeding to their destination. Further, appellant was afforded competent
representation by the Public Attorneys Office during the presentation by the prosecution of the medico-legal
officer and during the presentation of his evidence. People v. Elesterio1[4] enlightens:
As for the circumstance that the defense counsel turned out later to be a non-lawyer, it is
observed that he was chosen by the accused himself and that his representation does not change
1

[4]

G.R. No. 63971, May 9, 1989, 173 SCRA 243, 249.

28
the fact that Elesterio was undeniably carrying an unlicensed firearm when he was arrested. At
any rate, he has since been represented by a member of the Philippine bar, who prepared the
petition for habeas corpus and the appellants brief.
7. Procedural due process in disciplinary actions against students
Academic freedom; due process in disciplinary actions involving students
DE LA SALLE UNIVERSITY VS. COURT OF APPEALS, HON.WILFREDO D. REYES,
in his capacity as Presiding Judge of Branch 36, Regional Trial Court of Manila, THE
COMMISSION ON HIGHER EDUCATION, THE DEPARTMENT OF EDUCATION
CULTURE AND SPORTS, ALVIN AGUILAR, JAMES PAUL BUNGUBUNG, RICHARD
REVERENTE and ROBERTO VALDES, JR., G.R. No. 127980, December 19, 2007
REYES, R.T., J.:
THE FACTS:
PRIVATE respondents Alvin Aguilar, James Paul Bungubung, Richard Reverente and
Roberto Valdes, Jr. are members of Tau Gamma Phi Fraternity who were expelled by the De La
Salle University (DLSU) and College of Saint Benilde (CSB) Joint Discipline Board because of
their involvement in an offensive action causing injuries to petitioner James Yap and three other
student members of Domino Lux Fraternity.
The mauling incidents were a result of a fraternity war. The victims, namely: petitioner
James Yap and Dennis Pascual, Ericson Cano, and Michael Perez, are members of the Domino
Lux Fraternity, while the alleged assailants, private respondents Alvin Aguilar, James Paul
Bungubung, Richard Reverente and Roberto Valdes, Jr. are members of Tau Gamma Phi
Fraternity, a rival fraternity.
The next day, March 30, 1995, petitioner Yap lodged a complaint with the Discipline
Board of DLSU charging private respondents with direct assault. Similar complaints were also
filed by Dennis Pascual and Ericson Cano against Alvin Lee and private respondents Valdes and
Reverente. Thus, cases entitled De La Salle University and College of St. Benilde v. Alvin
Aguilar (AB-BSM/9152105), James Paul Bungubung (AB-PSM/9234403), Robert R. Valdes, Jr.
(BS-BS-APM/9235086), Alvin Lee (EDD/9462325), Richard Reverente (AB-MGT/9153837) and
Malvin A. Papio (AB-MGT/9251227) were docketed as Discipline Case No. 9495-3-25121.
The Director of the DLSU Discipline Office sent separate notices to private respondents
Aguilar, Bungubung and Valdes, Jr. and Reverente informing them of the complaints and
requiring them to answer. Private respondents filed their respective answers.
Said notices issued by De La Salle Discipline Board uniformly stated as follows:
Please be informed that a joint and expanded Discipline Board had been constituted to
hear and deliberate the charge against you for violation of CHED Order No. 4 arising from the
written complaints of James Yap, Dennis C. Pascual, and Ericson Y. Cano.
You are directed to appear at the hearing of the Board scheduled on April 19, 1995 at
9:00 a.m. at the Bro. Connon Hall for you and your witnesses to give testimony and present
evidence in your behalf. You may be assisted by a lawyer when you give your testimony or those
of your witnesses.

29
During the proceedings before the Board on April 19 and 28, 1995, private respondents
interposed the common defense of alibi. No full-blown hearing was conducted nor the students
allowed to cross-examine the witnesses against them.
On May 3, 1995, the DLSU-CSB Joint Discipline Board issued a Resolution finding
private respondents guilty. They were meted the supreme penalty of automatic expulsion
pursuant to CHED Order No. 4. The dispositive part of the resolution reads:
WHEREFORE, considering all the foregoing, the Board finds respondents ALVIN
AGUILAR (AB-BSM/9152105), JAMES PAUL BUNGUBUNG (AB-PSM/9234403), ALVIN
LEE (EDD/94623250) and RICHARD V. REVERENTE (AB-MGT/9153837) guilty of having
violated CHED Order No. 4 and thereby orders their automatic expulsion.
In the case of respondent MALVIN A. PAPIO (AB-MGT/9251227), the Board acquits
him of the charge.
I SSUE
Were private respondents accorded due process of law because there was no full-blown
hearing nor were they allowed to cross-examine the witnesses against them?
H E L D:
Private respondents right to due process of law was not violated.
In administrative cases, such as investigations of students found violating school
discipline, [t]here are withal minimum standards which must be met before to satisfy the
demands of procedural due process and these are: that (1) the students must be informed in
writing of the nature and cause of any accusation against them; (2) they shall have the right to
answer the charges against them and with the assistance if counsel, if desired;
(3) they shall
be informed of the evidence against them; (4) they shall have the right to adduce evidence in their
own behalf; and (5) the evidence must be duly considered by the investigating committee or
official designated by the school authorities to hear and decide the case.
Where a party was afforded an opportunity to participate in the proceedings but failed to
do so, he cannot complain of deprivation of due process. Notice and hearing is the bulwark of
administrative due process, the right to which is among the primary rights that must be respected
even in administrative proceedings. The essence of due process is simply an opportunity to be
heard, or as applied to administrative proceedings, an opportunity to explain ones side or an
opportunity to seek reconsideration of the action or ruling complained of. So long as the party is
given the opportunity to advocate her cause or defend her interest in due course, it cannot be said
that there was denial of due process.
A formal trial-type hearing is not, at all times and in all instances, essential to due process
it is enough that the parties are given a fair and reasonable opportunity to explain their
respective sides of the controversy and to present supporting evidence on which a fair decision
can be based. To be heard does not only mean presentation of testimonial evidence in court
one may also be heard through pleadings and where the opportunity to be heard through
pleadings is accorded, there is no denial of due process.
Private respondents were duly informed in writing of the charges against them by the DLSU-CSB
Joint Discipline Board through petitioner Sales. They were given the opportunity to answer the
charges against them as they, in fact, submitted their respective answers. They were also
informed of the evidence presented against them as they attended all the hearings before the
Board. Moreover, private respondents were given the right to adduce evidence on their behalf

30
and they did. Lastly, the Discipline Board considered all the pieces of evidence submitted to it by
all the parties before rendering its resolution in Discipline Case No. 9495-3-25121.
Private respondents cannot claim that they were denied due process when they were not
allowed to cross-examine the witnesses against them. This argument was already rejected in
Guzman v. National University] where this Court held that x x x the imposition of disciplinary
sanctions requires observance of procedural due process. And it bears stressing that due process
in disciplinary cases involving students does not entail proceedings and hearings similar to those
prescribed for actions and proceedings in courts of justice. The proceedings in student discipline
cases may be summary; and cross examination is not, x x x an essential part thereof.

GUZMAN VS. NATIONAL UNIVERSITY


G.R. No. L-68288, July 11, 1986
FACTS:
Petitioners who are students of the National University were barred from enrolment. The
school claims that their scholastic standing is poor and that they have been involved in activities
that have disrupted classes and had conducted mass actions without the required permits.
HELD:
a. It is apparent that despite the accusations of alleged violations hurled by the school against the
petitioners, the fact is that it had never conducted proceedings of any sort to determine whether or
not petitioners-students had indeed led or participated "in activities within the university
premises, conducted without prior permit from school authorities, that disturbed or disrupted
classes therein".
Also apparent is the omission of respondents to cite any duly published rule of theirs by which
students may be expelled or refused re-enrollment for poor scholastic standing.
b. Under the Education Act of 1982, students have the right "to freely choose their field of study
subject to existing curricula and to continue their course therein up to graduation, EXCEPT in
case of academic deficiency, or violation of disciplinary regulations."
The petitioner were denied of this right, and were being disciplined without due process, in
violation of the admonition in the Manual of Regulations for Private Schools that "no penalty
shall be imposed upon any student except for cause as defined in *** (the) Manuel and/or in the
school rules and regulations as duly promulgated and only after due investigation shall have
been conducted. It has already been held in Berina vs. Philippine Maritime Institute, 117
SCRA 581, that it is illegal of a school to impose sanctions on students without conducting due
investigation.
c. Of course, all schools have the power to adopt and enforce its rules. In fact the maintenance of
good school discipline is a duty specifically enjoined on every private school. The Manual of
Regulations for Private Schools provides that:
"* * The school rules governing discipline and the corresponding sanctions therefor must
be clearly specified and defined in writing and made known to the students and/or their parents or
guardians. Schools shall have the authority and prerogative to promulgate such rules and
regulations as they may deem necessary from time to time effective as of the date of their
promulgation unless otherwise specified."
d. The imposition of disciplinary sanctions requires observance of procedural due process. Due
process in disciplinary cases involving students :

31
a. need not entail proceedings and hearing similar to those prescribed for actions and
proceedings in court of justice;
b. the proceedings may be summary;
c. cross-examination is not an essential part thereof.
But the S.C. said that the following minimum standards must be met to satisfy the demands of
procedural due process:
1. the students must be informed in writing of the nature and cause of any accusation against
them;
2. they shall have the right to answer the charges against them, with the assistance of counsel;
3. they shall be informed of the evidence against them;
4. they shall have the right to adduce evidence in their own behalf;
5. the evidence must be duly considered by the investigating committee or official designated
by the school authorities to hear and decide the case.
a. BERINA VS. PMI, September 30, 1982
Due process in the dismissal of employees
Requisites of Due Process before the NLRC
1. Notice; and
2. Hearing
a.
b.
c.
d.
e.
f.
g.

MGG Marine Services vs. NLRC, 259 SCRA 664


Philippine Savings Bank vs. NLRC, 261 SCRA 409
RAYCOR AIR CONTROL VS. NLRC, 261 SCRA 589
WALLEM MARITIME SERVICES VS. NLRC, 263 SCRA 174
SAMILLANO VS. NLRC, 265 SCRA 788
STOLT-NIELSEN VS. NLRC, 264 SCRA 307
GARCIA VS. NLRC, 264 SCRA 261

8. Effect of a Motion for Reconsideration to violation of the right to due process


a. CASUELA VS. OFFICE OF THE OMBUDSMAN, 276 SCRA 635
b. CORDENILLO VS. EXECUTIVE SECRETARY, 276 SCRA 652
9. In administrative proceedings, does due process require that [1] a party be assisted by counsel and
[2] be able to cross-examine the witnesses?
LUMIQUED VS. EXENEA, 282 SCRA 125
There is no law, whether the Civil Service Act or the Administrative Code of
1987, which provides that a respondent in an administrative case should be assisted by counsel in
order that the proceedings therein is considered valid. Not only, that, petitioner herein was given
the opportunity several times to engage the services of a lawyer to assist him but he confidently
informed the investigators that he could protect himself.

32
Administrative Due Process before the Civil Service
Commission does not require cross-examination of the
complainant and his witnesses by the respondent.
ATTY. ROMEO ERECE VS. LYN MACALINGAY, ET AL., G.R. No. 166809, April 22,
2008
THE FACTS:
Petitioner is the Regional Director of the Commission on Human Rights (CHR) Region I,
whose office is located in San Fernando City, La Union. Respondent employees of the CHR
Region I filed an Affidavit-Complaint dated October 2, 1998 against petitioner alleging that he
denied them the use of the office vehicle assigned to petitioner, that petitioner still claimed
transportation allowance even if he was using the said vehicle, and that he certified that he did not
use any government vehicle, when in fact he did, in order to collect transportation allowance.
Respondent filed his answer denying the allegations against him.
After a fact-finding investigation, the CSC Proper in CSC Resolution No. 99-1360 dated
July 1, 1999 charged petitioner with Dishonesty and Grave Misconduct for using a government
vehicle in spite of his receipt of the monthly transportation allowance and for certifying that he
did not use any government vehicle, when in fact, he did, in order to receive the transportation
allowance.
Pertinent portions of the formal charge read:
1.
That despite the regular receipt of Erece of his monthly Representation and
Transportation Allowance (RATA) in the amount of P4,000.00, he still prioritizes himself in the
use of the office vehicle (Tamaraw FX) in spite of the directive from the Central Office that he
cannot use the service vehicle for official purposes and at the same time receive his transportation
allowance;
2.
That Erece did not comply with the directive of the Central Office addressed to
all Regional Human Rights Directors, as follows: to regularize your receipt of the transportation
allowance component of the RATA to which you are entitled monthly, you are hereby directed to
immediately transfer to any of your staff, preferably one of your lawyers, the memorandum
receipt of the vehicle(s) now still in your name;
3.
That he certified in his monthly liquidation of his RATA that he did not use any
government vehicle for the corresponding month, which is not true because he is the regular user
of the government vehicle issued to CHR-Region I.
The foregoing facts and circumstances indicate that government service has been
prejudiced by the acts of Erece.
WHEREFORE, Romeo L. Erece is hereby formally charged with Dishonesty and Grave
Misconduct. Accordingly, he is given five (5) days from receipt hereof to submit his Answer
under oath and affidavits of his witnesses, if any, to the Civil Service Commission-Cordillera
Administrative Region (CSC-CAR). On his Answer, he should indicate whether he elects a
formal investigation or waives his right thereto. Any Motion to Dismiss, request for clarification
or Bills of Particulars shall not be entertained by the Commission. Any of these pleadings
interposed by the respondent shall be considered as an Answer and shall be evaluated as such.
Likewise, he is advised of his right to the assistance of counsel of his choice. 2[4]

2[4]

Id. at 35-36.

33
After a formal investigation of the case, the CSC issued Resolution No. 020124, dated
January 24. 2002, finding petitioner guilty of dishonesty and conduct prejudicial to the best
interest of the service and penalizing him with dismissal from the service.
Petitioner filed a petition for review of the CSC Resolution with the CA.
In the Decision promulgated on January 7, 2005, the CA upheld the CSC Resolution, the
dispositive portion of which reads:
WHEREFORE, in view of the foregoing, the petition is DENIED and the assailed
Resolutions of the Civil Service Commission are hereby AFFIRMED.
Hence, this petition.
I S S U E:
Petitioner raised the issue of violation of his right to due process because he was denied
the right to cross-examine the respondents on their affidavit-complaint.
H E L D:
Petitioner contends that he was denied due process as he was not afforded the right to
cross-examine his accusers and their witnesses. He stated that at his instance, in order to prevent
delay in the disposition of the case, he was allowed to present evidence first to support the
allegations in his Counter-Affidavit. After he rested his case, respondents did not present their
evidence, but moved to submit their position paper and formal offer of evidence, which motion
was granted by the CSC over his (petitioners) objection. Respondents then submitted their
Position Paper and Formal Offer of Exhibits.
Petitioner submits that although he was allowed to present evidence first, it should not be
construed as a waiver of his right to cross-examine the complainants. Although the order of
presentation of evidence was not in conformity with the procedure, still petitioner should not be
deemed to have lost his right to cross-examine his accusers and their witnesses. This may be
allowed only if he expressly waived said right.
The Court agrees with the CA that petitioner was not denied due process when he failed
to cross-examine the complainants and their witnesses since he was given the opportunity to be
heard and present his evidence. In administrative proceedings, the essence of due process is
simply the opportunity to explain ones side.
Velez v. De Vera it was held that :
Due process of law in administrative cases is not identical with judicial process for a
trial in court is not always essential to due process. While a day in court is a matter of right in
judicial proceedings, it is otherwise in administrative proceedings since they rest upon different
principles. The due process clause guarantees no particular form of procedure and its
requirements are not technical. Thus, in certain proceedings of administrative character, the right
to a notice or hearing are not essential to due process of law. The constitutional requirement of
due process is met by a fair hearing before a regularly established administrative agency or
tribunal. It is not essential that hearings be had before the making of a determination if thereafter,
there is available trial and tribunal before which all objections and defenses to the making of such
determination may be raised and considered. One adequate hearing is all that due process
requires. . . .
The right to cross-examine is not an indispensable aspect of due process. Nor is an
actual hearing always essential. . . .

34
The dismissal of the petitioner from the government is valid.
There is violation of the right to due process of law if a party he
is declared as having waived the right to file his answer despite
improper service of summons.
DATUPAX MANGUDADATU VS. HOUSE OF REPRESENTATIVES ELECTORAL
TRIBUNAL (HRET), G.R. No. 179813, December 18, 2008
LEONARDO-DE CASTRO, J.:
Datu Pax Pakung S. Mangudadatu (petitioner) and Angelo O. Montilla (private
respondent) were congressional candidates for the First District of Sultan Kudarat during the May
14, 2007 national elections. Petitioner won by 17,451 votes and was proclaimed on May 22,
2007 by the Provincial Board of Canvassers as the duly elected Representative of the said
congressional district. On May 31, 2007, respondent filed with the HRET a Petition of Protest
(Ad Cautelam)3[4] contesting the results of the elections and the proclamation of petitioner. On
June 14, 2007, the Secretary of the HRET caused the service of summons 4[5] upon petitioner
through registered mail at Purok Losaria,5[6] Tamnag (Poblacion), Lutayan, Sultan Kudarat,
requiring petitioner to file an Answer to the protest within ten (10) days from receipt thereof.

On July 11, 2007, the HRET received the Registry Return Receipt Card, 6[7] showing that a
certain Aileen R. Baldenas7[8] (Baldenas) received the summons on June 27, 2007. On August 16,
2007, the HRET issued Resolution No. 07-1798[9] which noted the aforementioned Registry
Return Receipt Card and that despite the fact that 43 days from June 27, 2007 had passed since
Baldenas received the summons, petitioner had not filed an answer in accordance with Rule 27 9[10]
of the 2004 HRET Rules. In the same Resolution, the HRET considered petitioner to have
entered a general denial of the allegations of the protest.

In an Order dated August 17, 2007, the HRET set the preliminary conference on
September 27, 2007 at 11:00 a.m.

Meanwhile, petitioner informally learned of respondents protest, prompting petitioner to


request his lawyers to verify the same from the records of the HRET. Thereafter, his lawyers
entered their appearance on September 4, 2007 and requested that they be furnished with copies
of the petition of protest as well as notices, orders and resolutions pertaining to the protest.

On September 10, 2007, petitioner filed a Motion to Reconsider 10[11] Resolution No. 07179 and Motion to Admit Answer with Counter-Protest, alleging that he never received the
3

[4]

[5]

6
7
8
9

10

Id., pp. 41-76.


Id., p. 77.
[6]
The assailed Resolutions state Loria but the Summons and Registry Return Receipt Card correctly state
Losaria.
[7]
Rollo, p. 78.
[8]
The assailed Resolutions state Baldena; it should be Baldenas based on the Registry Return Receipt Card.
[9]
See Note 2.
[10]
RULE 27. Failure to Answer; Effect. If no answer is filed to the protest, counter-protest, or the petition for
quo warranto within the period fixed in these Rules, a general denial shall be deemed to have been entered.
[11]
Rollo, pp. 26-37.

35
summons issued by the HRET. In his affidavit 11[12] attached to the motion, petitioner denied that
Baldenas was a member of his household or his employee. He further claimed that she was not
authorized to receive any important documents addressed to him. And assuming that he had
authorized her, the summons received by her was never brought to his attention.

On September 19, 2007, the HRET issued Resolution No. 07-300 12[13] denying for lack of
merit.

Hence, this petition.

Petitioner filed the instant petition imputing grave abuse of discretion amounting to lack
of jurisdiction on the part of the HRET for issuing Resolution Nos. 07-179 and 07-300. He also
prayed for a temporary restraining order and/or a writ of preliminary injunction for this Court to
enjoin the HRET from further proceeding with HRET Case No.07-021. Petitioner contended
that the HRET never acquired jurisdiction over his person because of the absence of a valid
service of summons. He argued that a substitute service of summons is made only when the
defendant cannot be served personally at a reasonable time after efforts to locate him have
failed.13[14] In his case, since the process servers return failed to show on its face the
impossibility of personal service, then the substituted service was improper and invalid.

In his comment, respondent countered that the HRET did not commit grave abuse of
discretion in issuing Resolution Nos. 07-179 dated August 16, 2007 and 07-300 dated September
19, 2007. He argued that Rule 22 of the 2004 HRET Rules merely states that the Secretary of
the Tribunal shall issue the corresponding summons to the protestee or respondent, as the case
may be. He posited then that the intent of the HRET in not expressly specifying personal service
of summons on the protestee or respondent was to give it a reasonable discretion or leeway in
serving the summons by other means such as registered mail. Thus, service of summons on
petitioner through registered mail did not violate Rule 22 of the 2004 HRET Rules. Further,
respondent claimed that Rule 14, Sections 6 and 7 of the Rules of Court were inconsistent with
Rule 22 of the 2004 HRET Rules and therefore should not be given suppletory application to
HRET proceedings.

HELD:

Rule 22 of the 2004 HRET Rules provides:

RULE 22. Summons. If the petition is not summarily dismissed in accordance with Rule 21 of
these Rules, the Secretary of the Tribunal shall issue the corresponding summons to the protestee
or respondent, as the case may be, together with a copy of the petition, requiring him within ten
(10) days from receipt thereof to file his answer.

11

[12]

12

[13]

13[14]

Id., p. 30.
See Note 3.
Rollo, p.12.

36
The 2004 HRET Rules on summons is silent on how the summons should be served on
the protestee. Significantly, Rule 80 14[15] of the 2004 HRET Rules provides that the 1997 Rules of
Civil Procedure applies by analogy or suppletorily in so far as the latter may be applicable and
not inconsistent therewith as well as with the orders, resolutions and decisions of the HRET. In
view of the failure of the HRET Rules to specify the authorized modes of service of summons,
resort then is necessary to Sections 6 and 7, Rule 14, 1997 Rules of Civil Procedure, which state:
SEC. 6. Service in person on defendant. Whenever practicable, the summons shall be served
handling a copy thereof to the defendant in person, or, if he refuses to receive and sign for it, by
tendering it to him.
SEC. 7. Substituted service. If, for justifiable causes, the defendant cannot be served within a
reasonable time as provided in the preceding section, service may be effected (a) by leaving
copies of the summons at the defendants residence with some person of suitable age and
discretion then residing therein, or (b) by leaving copies at defendants office or regular
place of business with some competent person in charge thereof.
In the case at bar, the service of the summons was made through registered mail, which is
not among the allowed modes of service under Rule 14 of the Rules of Court.

Indeed, if in ordinary civil cases (which involve only private and proprietary interests)
personal service of summons is preferred and service by registered mail is not allowed on
jurisdictional and due process grounds, with more reason should election cases (which involve
public interest and the will of the electorate) strictly follow the hierarchy of modes of service of
summons under the Rules of Court.

The Court sees no reason why the HRET cannot make use of its own process servers to
personally serve the summons, or alternatively, delegate the matter to the process server of a court
with territorial jurisdiction over the place of residence of the respondent/protestee in the election
case, at the expense of the petitioner/protestant. Considering that the proper service of
summons on the respondent/protestee is a jurisdictional requirement and goes to heart of
due process, we cannot allow service of summons by a method not sanctioned by the HRET
Rules in relation to the Rules of Court.
In view of the foregoing, we find that the HRET committed grave abuse of discretion in
considering petitioner to have entered a general denial of the allegations in respondents petition
of protest and in denying his motion to reconsider as well as his motion to admit answer with
counter-protest.

The right to due process on the part of the respondent was


violated when the Civil Service Commission reconsidered its
earlier decision in favor of the former based on a Motion for
14

[15]

RULE 80. Applicability. The following shall be applicable by analogy or in suppletory character and effect in
so far as they may be applicable and are not inconsistent with these Rules and with the orders, resolutions and
decisions of the Tribunal, namely:
(1) The Rules of Court;
(2) Decisions of the Supreme Court;
(3) Decisions of the Electoral Tribunals.

37
Reconsideration wherein said respondent was not furnished a
copy thereof nor given the chance to comment on it.

DEPARTMENT OF EDUCATION VS. GODOFREDO CUANAN, G.R. No. 169013,


December 16, 2008
The factual background of the case is as follows:
On March 11, 1996, Luzviminda Borja and Juliana Castro, on behalf of their respective minor
daughters, Lily Borja and Charo Castro, filed before the Department of Education, Culture and Sports Regional Office No. III (DECS-RO No. III), Cabanatuan City, two separate administrative complaints for
Sexual Harassment and Conduct Unbecoming a Public Officer against Cuanan, then Principal of Lawang
Kupang Elementary School in San Antonio, Nueva Ecija.
Acting on the complaints, DECS-RO No. III Regional Director Vilma L. Labrador constituted an
Investigating Committee, composed of three DepEd officials from the province, to conduct a formal
investigation. Following the investigation, the Investigating Committee submitted its Investigation Report
dated December 14, 1999, finding Cuanan guilty of sexual harassment and recommending his forced
resignation without prejudice to benefits. In a Decision dated January 28, 2000, Regional Director Labrador
concurred in the findings of the Investigating Committee and meted out the penalty of forced resignation to
Cuanan without prejudice to benefits.
In an Order dated April 13, 2000, then DepEd Secretary Andrew Gonzales affirmed the Decision of
Regional Director Labrador. On May 30, 2000, Cuanan filed a Petition for Reconsideration thereof, but the
same was denied for lack of merit by Secretary Gonzales in a Resolution dated June 19, 2000.
Cuanan elevated his case to the CSC. On January 20, 2003, the CSC issued Resolution No.
030069 , which set aside the June 19, 2000 Resolution of Secretary Gonzales and exonerated Cuanan from
the charge of sexual harassment. On January 23, 2003, copies of the resolution were duly sent to the parties,
including the DepEd , Cuanan received a copy of Resolution No. 030069 on January 31, 2003 .
In a Letter dated February 3, 2003, Cuanan requested his reinstatement as Elementary School
Principal I . In a 1st Indorsement, the District Supervisor recommended appropriate action. In a 2 nd
Indorsement dated February 4, 2003, Schools Division Superintendent Dioscorides D. Lusung
(Superintendent) recommended that Cuanan be reinstated to duty as School Principal of San Antonio District
upon finality of the decision of the CSC . In a Letter dated February 10, 2003, Regional Director Ricardo T.
Sibug informed the Superintendent that Cuanan could not be immediately reinstated to the service until an
order of implementation was received from the Department Secretary.
Sometime in March 2003, DepEd Undersecretary Jose Luis Martin C. Gascon sent a letter to the
CSC requesting a copy of CSC Resolution No. 030069 dated January 20, 2003. In a Letter dated March 25,
2003, the CSC informed the DepEd that a copy of the requested resolution was duly sent to it on January 23,
2003. Nonetheless, the CSC sent another copy of the resolution to the DepEd for its reference. The DepEd
received said reference copy on March 28, 2003.
On April 11, 2003, then DepEd Secretary Edilberto C. de Jesus filed a Petition for
Review/Reconsideration with the CSC. No copy of the pleading was served upon Cuanan.
On July 29, 2003, Secretary De Jesus filed a Supplemental Petition for Review/Reconsideration
reiterating the prayer for reversal of the resolution. Again, no copy of the pleading was served upon Cuanan.
Subsequently, pursuant to Division Special Order No. 001 series of 2003 dated June 18, 2003,
Cuanan was reinstated to his former position as school principal effective April 30, 2003 In Division Special
Order No. 285, series of 2003 dated July 8, 2003, Cuanan was directed to return to duty . Based thereon,
Cuanan requested payment of salaries and his inclusion in the payroll, which the Division School
Superintendent of Nueva Ecija duly endorsed on November 7, 2003 .

38
However, on October 22, 2004, the CSC issued Resolution No. 041147 setting aside CSC
Resolution No. 030069 dated January 20, 2003. It found Cuanan guilty of Sexual Harassment, Grave
Misconduct and Conduct Grossly Prejudicial to the Best Interest of the Service and meted out the penalty of
dismissal from the service with forfeiture of retirement benefits, cancellation of his service eligibility, and
perpetual disqualification from holding public office. Cuanan received a copy of the Resolution on
November 9, 2004 .
Thirteen days later, or on November 22, 2004, Cuanan filed a petition for certiorari with the CA
seeking to annul Resolution No. 041147, alleging that the CSC should not have entertained the petition for
review/reconsideration since the DepEd was not the complainant or the party adversely affected by the
resolution; that the petition for review/reconsideration was filed out of time; and that Cuanan was not
furnished copies of the pleadings filed by the DepEd in violation of procedural due process.
The DepEd sought the dismissal of the petition on the ground of improper remedy, the mode of
review from a decision of the CSC being a petition for review under Rule 43 of the Rules of Court.
On May 16, 2005, the CA rendered a Decision granting the petition for certiorari and setting aside
CSC Resolution No. 041147 dated October 12, 2004. The CA held that while a motion for reconsideration
and a petition for review under Rule 43 were available remedies, Cuanan's recourse to a petition for certiorari
was warranted, since the act complained of was patently illegal; that the CSC gravely abused its discretion in
granting the petition for review/reconsideration filed by the DepEd without regard for Cuanan's fundamental
right to due process, since he was not duly notified of the petition for review/reconsideration, nor was he
required by the CSC to file a comment thereon, much less, given a copy of the said petition; that the DepEd
failed to establish that the resolution was not yet final and executory when it filed its petition for
review/reconsideration.
DepEd filed a Motion for Reconsideration but the CA denied the same in its Resolution dated July
18, 2005.
Hence, the present petition on the following grounds:
I
WITH DUE RESPECT, THE COURT OF APPEALS GRAVELY ERRED ON A QUESTION OF LAW
IN TAKING COGNIZANCE OF THE PETITION IN CA-G.R. SP NO. 87499, THE SAME NOT BEING
THE PROPER REMEDY IN ASSAILING CSC RESOLUTION NO. 041147 DATED OCTOBER 22,
2004.
II
WITH DUE RESPECT, THE COURT OF APPEALS GRAVELY ERRED ON A QUESTION OF LAW
IN ADJUDGING CSC AS HAVING COMMITTED GRAVE ABUSE OF DISCRETION IN ISSUING
RESOLUTION NO. 041147 DATED OCTOBER 22, 2004 .
DepEd contends that the CA should have dismissed outright the petition for certiorari because CSC
decisions are appealable to the CA by petition for review under Rule 43; that the filing of a motion for
reconsideration was a precondition to the filing of a petition for certiorari under Rule 65; that the DepEd,
even if not the complainant, may question the resolution of the CSC; that Cuanan failed to prove that the
CSC's petition for review/reconsideration was not seasonably filed; that even if Cuanan was not served a copy
of the pleadings filed by the DepEd, the CSC was not bound by procedural rules.
Cuanan, on the other hand, contends that the DepEd cannot file a motion for reconsideration from
the CSC Resolution exonerating him, since it is not the complainant in the administrative case and therefore
not a party adversely affected by the decision therein; that even if DepEd may seek reconsideration of the
CSC Resolution, the petition for review/reconsideration was filed out of time; and that Cuanans right to due

39
process was violated when he was not given a copy of the pleadings filed by the DepEd or given the
opportunity to comment thereon.
The Court finds it necessary, before delving on the grounds relied upon by the DepEd in support of
the petition, to first resolve the question of whether the DepEd can seek reconsideration of the CSC
Resolution exonerating Cuanan.
In a long line of cases, beginning with Civil Service Commission v. Dacoycoy , and reiterated in
Philippine National Bank v. Garcia, Jr ., the Court has maintained that the disciplining authority qualifies as a
party adversely affected by the judgment, who can file an appeal of a judgment of exoneration in an
administrative case. CSC Resolution No. 021600 allows the disciplining authority to appeal from a decision
exonerating an erring employee, thus:
Section 2. Coverage and Definition of Terms. x x x (l) PARTY ADVERSELY AFFECTED refers
to the respondent against whom a decision in a disciplinary case has been rendered or to the disciplining
authority in an appeal from a decision exonerating the said employee. (Emphasis supplied)
Hence, Cuanan's exoneration under CSC Resolution No. 030069 may be subject to a motion for
reconsideration by the DepEd which, as the appointing and disciplining authority, is a real party in interest.
Now, as to the merits of DepEd's arguments, the Court finds none.
The remedy of an aggrieved party from a resolution issued by the CSC is to file a petition for review
thereof under Rule 43 of the Rules of Court within fifteen days from notice of the resolution. Recourse to a
petition for certiorari under Rule 65 renders the petition dismissible for being the wrong remedy.
Nonetheless, there are exceptions to this rule, to wit: (a) when public welfare and the advancement of public
policy dictates; (b) when the broader interest of justice so requires; (c) when the writs issued are null and
void; or (d) when the questioned order amounts to an oppressive exercise of judicial authority . As will be
shown forthwith, exception (c) applies to the present case.
Furthermore, while a motion for reconsideration is a condition precedent to the filing of a petition for
certiorari, immediate recourse to the extraordinary remedy of certiorari is warranted where the order is a
patent nullity, as where the court a quo has no jurisdiction; where petitioner was deprived of due process and
there is extreme urgency for relief; where the proceedings in the lower court are a nullity for lack of due
process; where the proceeding was ex parte or one in which the petitioner had no opportunity to object .
These exceptions find application to Cuanan's petition for certiorari in the CA.
At any rate, Cuanan's petition for certiorari before the CA could be treated as a petition for review,
the petition having been filed on November 22, 2004, or thirteen (13) days from receipt on November 9, 2004
of CSC Resolution No. 041147, clearly within the 15-day reglementary period for the filing of a petition for
review . Such move would be in accordance with the liberal spirit pervading the Rules of Court and in the
interest of substantial justice .
Furthermore, CSC Resolution No. 030069 has long become final and executory. It must be noted
that the records show that copies of CSC Resolution No. 030069 were duly sent to the parties, including
DepEd, on January 23, 2003 . Cuanan received a copy thereof on January 31, 2003 while the DepEd
requested a copy sometime in March 2003, or about two months later. Under the Rules of Evidence, it is
presumed that official duty has been regularly performed, unless contradicted . This presumption includes that
of regularity of service of judgments, final orders or resolutions.
Consequently, the burden of proving the irregularity in official conduct -- that is, non-receipt of the
duly sent copy of CSC Resolution No. 030069 -- is on the part of the DepEd, which in the present case clearly
failed to discharge the same . Thus, the presumption stands that CSC Resolution No. 030069 dated January
20, 2003 had already become final and executory when the DepEd filed its Petition for
Review/Reconsideration on April 11, 2003, more than two months later.

40
It is elementary that once judgment has become final and executory, it becomes immutable and can
no longer be amended or modified. In Gallardo-Corro v. Gallardo , this Court held:
Nothing is more settled in law than that once a judgment attains finality it thereby becomes
immutable and unalterable. It may no longer be modified in any respect, even if the modification is meant to
correct what is perceived to be an erroneous conclusion of fact or law, and regardless of whether the
modification is attempted to be made by the court rendering it or by the highest court of the land. Just as the
losing party has the right to file an appeal within the prescribed period, the winning party also has the
correlative right to enjoy the finality of the resolution of his case. The doctrine of finality of judgment is
grounded on fundamental considerations of public policy and sound practice, and that, at the risk of
occasional errors, the judgments or orders of courts must become final at some definite time fixed by law;
otherwise, there would be no end to litigations, thus setting to naught the main role of courts of justice which
is to assist in the enforcement of the rule of law and the maintenance of peace and order by settling justiciable
controversies with finality .
Moreover, while it is true that administrative tribunals exercising quasi-judicial functions are free
from the rigidity of certain procedural requirements, they are bound by law and practice to observe the
fundamental and essential requirements of due process in justiciable cases presented before them . The
relative freedom of the CSC from the rigidities of procedure cannot be invoked to evade what was
clearly emphasized in the landmark case of Ang Tibay v. Court of Industrial Relations that all
administrative bodies cannot ignore or disregard the fundamental and essential requirements of due
process.
Furthermore, Section 43.A of the Uniform Rules in Administrative Cases in the Civil Service
provides:
Section 43.A. Filing of Supplemental Pleadings. - All pleadings filed by the parties with the
Commission, shall be copy furnished the other party with proof of service filed with the Commission.
Any supplemental pleading to supply deficiencies in aid of an original pleading but which should not
entirely substitute the latter can be filed only upon a favorable action by the Commission on the motion of a
party to the case. The said motion should be submitted within five (5) days from receipt of a copy of the
original pleading and it is discretionary upon the Commission to allow the same or not or even to consider the
averments therein.(Emphasis supplied)
Cuanan undoubtedly was denied procedural due process. He had no opportunity to participate in the
proceedings for the petition for review/ reconsideration filed by the DepEd, since no copy of the pleadings
filed by the DepEd were served upon him or his counsel; nor was he even required by the CSC to file his
comments thereon. Considering that pleadings filed by the DepEd were not served upon Cuanan, they may
be treated as mere scraps of paper which should not have merited the attention or consideration of the CSC.
WHEREFORE, the petition is DENIED. The assailed Decision and Resolution of the Court of
Appeals in CA-G.R. SP No. 87499 are AFFIRMED.
There is no violation of the petitioners right to due process
when after the election protest against him was already
submitted for decision and the ballots transferred to the
Senate Electoral Tribunal, the COMELEC went to deliberate
on the case at the Senate Electoral Tribunal using the ballots
therein in the process without notice to the petitioner.
JOSELITO MENDOZA VS. COMELEC and ROBERTO
PAGDANGANAN, G.R. No. 188308, October 15, 2009
BRION, J.:

41
The petitioner and the respondent vied for the position of Governor of the Province of Bulacan in
the May 14, 2007 elections. The petitioner was proclaimed winning candidate and assumed the office of
Governor.
The respondent seasonably filed an election protest with the COMELEC, which was raffled to the
Second Division and docketed as EPC No. 2007-44. Revision of ballots involving the protested and
counter-protested precincts in Angat, Bocaue, Calumpit, Doa Remedios Trinidad, Guiginto, Malolos,
Meycauayan, Norzagaray, Pandi, Paombong, Plaridel, Pulilan, San Rafael and San Jose del Monte soon
followed. The revision was conducted at the COMELECs office in Intramuros. After revision, the
parties presented their other evidence, leading to the parties formal offer of their respective evidence.
The COMELEC approved the parties formal offer of evidence and then required the parties to
submit their respective memoranda. The parties complied with the COMELECs order. The case was
thereafter submitted for resolution.
On March 2, 2009 the COMELEC transferred the Bulacan ballot boxes, including those involved
in the provincial election contest, to the Senate Electoral Tribunal (SET) in connection with the protest
filed by Aquilino Pimentel III against Juan Miguel Zubiri. In light of this development, the petitioner
moved to suspend further proceedings. .
The COMELECs Second Division denied the petitioners motion in its Order of April 29, 2009,
ruling that the COMELEC has plenary powers to find alternative methods to facilitate the resolution of
the election protest; thus, it concluded that it would continue the proceedings after proper coordination
with the SET. The petitioner moved to reconsider this Order, but the COMELECs Second Division
denied the motion in its Order of May 26, 2009. These inter-related Resolutions led to the COMELECs
continued action specifically, the appreciation of ballots on the provincial election contest at the
SET offices---which the COMELEC did without informing the petitioner.
Allegedly alarmed by information on COMELEC action on the provincial election contest within
the SET premises without notice to him and without his participation, the petitioners counsel wrote the
SET Secretary, Atty. Irene Guevarra, a letter dated June 10, 2009 to confirm the veracity of the reported
conduct of proceedings.15[2] The SET Secretary responded on June 17, 2009 as follows:
x x x please be informed that the conduct of proceedings in COMELEC EPC No.
2007-44 (Pagdanganan vs. Mendoza) within the Tribunal Premises was authorized by
then Acting Chairman of the Tribunal, Justice Antonio T. Carpio, upon formal request of
the Office of Commissioner Lucenito N. Tagle.
Basis of such grant is Section 3, Comelec Resolution No. 2812 dated 17 October
1995, stating that (t)he Tribunals, the Commission and the Courts shall coordinate and
make arrangement with each other so as not to delay or interrupt the revision of ballots
being conducted. The synchronization of revision of ballots shall be such that the
expeditious disposition of the respective protest case shall be the primary concern.
While the said provision speaks only of revision, it has been the practice of the Tribunal
to allow the conduct of other proceedings in local election protest cases within its
premises as may be requested. [emphasis supplied]16[3]
ISSUE:
A.
WHETHER OR NOT THE COMELEC VIOLATED DUE PROCESS BY
CONDUCTING PROCEEDINGS WITHOUT GIVING DUE NOTICE TO THE
PETITIONER.
15[2]
16[3]

See Petition, p. 12.


Rollo, p. 45.

42
The petitioner argues that the election protest involves his election as Governor; thus, its subject
matter involves him and the people of the Province of Bulacan who elected him. On this basis, he claims
entitlement to notice and participation in all matters that involve or are related to the election protest. He
further asserts that he had the legitimate expectation that no further proceedings would be held or
conducted in the case after its submission for decision.
Citing the commentaries of Father Joaquin Bernas, 17[4] the petitioner argues that the proceedings
before the COMELEC in election protests are judicial in nature and character. Thus, the strictures of
judicial due process specifically, (a) opportunity to be heard and (b) that judgment be rendered only
after lawful hearing apply. Notices in judicial dispute, he claims, are not really just a matter of
courtesy; they are elementary fundamental element of due process, they are part and parcel of a right of a
party to be heard. He further cites Justice Isagani A. Cruz, 18[5] who wrote:
x x x Every litigant is entitled to his day in court. He has a right to be notified of
every incident of the proceeding and to be present at every stage thereof so that he may
be heard by himself and counsel for the protection of his interest.
The petitioner claims that without notice to him of the proceedings, the due process element of
the right to have judgment only after lawful hearing is absent. There is no way, he claims, that a judicial
proceeding held without notice to the parties could be described as a lawful hearing, especially a
proceeding which has as its subject matter the sovereign will of an entire province.
He was therefore denied his day in court, he claims, when the COMELEC conducted the
examination and appreciation of ballots. The proceedings should be stopped and declared null and void;
its future results, too, should be nullified, as nothing derived from the anomalous and unconstitutional
clandestine and unilateral proceedings should ever be part of any decision that the COMELEC may
subsequently render. The poisonous fruits (derived from the proceedings) should have no part and should
not be admitted for any purpose and/or in any judicial proceeding.
HELD:
The petition is anchored on the alleged conduct of proceedings in the election protest following
the completed revision of ballots at the SET premises without notice to and without the participation of
the petitioner. Significantly, the conduct of proceedings is confirmed by the SET Secretary in the letter
we quoted above.19[8] As the issues raised show the petitioners focus is not really on the COMELEC
Orders denying the suspension of proceedings when the ballot boxes and other election materials
pertinent to the election contest were transferred to the SET; the focus is on what the COMELEC did after
to the issuance of the Resolutions. We read the petition in this context as these COMELEC Orders are
now unassailable as the period to challenge them has long passed. 20[9]
The substantive issue we are primarily called upon to resolve is whether there were proceedings
within the SET premises, entitling the petitioner to notice and participation, which were denied to him; in
other words, the issue is whether the petitioners right to due process has been violated. A finding of due
process violation, because of the inherent arbitrariness it carries, necessarily amounts to grave abuse of
discretion.
As a preliminary matter, we note that the petitioner has claimed that COMELEC exercises
judicial power in its action over provincial election contests and has argued its due process position from
this view. We take this opportunity to clarify that judicial power in our country is vested in one

17[4]

J. Bernas, Constitutional Structure and Powers of Government, 2005, pp. 718-719.


I. Cruz, Constitutional Law, 2003, p. 14.
19[8]
Supra note 3.
20[9]
See Section 3, Rule 64 of the Rules of Court. The petitioner received the COMELEC Resolution denying his motion for
reconsideration on June 1, 2009. Thirty (30) days later or on July 1, 2009, he filed a motion for extension of time to file the
petition. The petition cannot but be late because of the remainder rule under Section 3, Rule 64.
18[5]

43
Supreme Court and in such lower courts as may be established by law.21[10] This exclusive grant of
authority to the Judiciary is reinforced under the second paragraph of Section 1, Article VIII of the
Constitution which further states that Judicial power includes the duty of the courts of justice to settle
actual controversies involving rights which are legally demandable and enforceable.. ., thus
constitutionally locating the situs of the exercise of judicial power in the courts.
In contrast with the above definitions, Section 2, Article IX(C) of the Constitution lists the
COMELECs powers and functions, among others, as follows:
(1) Enforce and administer all laws and regulations relative to the conduct of an
election, plebiscite, initiative, referendum, and recall.
(2) Exercise exclusive original jurisdiction over all contests relating to the
elections, returns and qualifications of all elective regional, provincial, and city officials,
and appellate jurisdiction over all contests involving elective municipal officials decided
by trial courts of general jurisdiction, or involving elective barangay officials by trial
courts of limited jurisdiction.
Decisions, final orders, or rulings of the Commission on election contests
involving elective municipal and barangay officials shall be final, executory, and not
appealable.
(3) Decide, except those involving the right to vote, all questions affecting
elections, including determination of the number and location of polling places,
appointment of election officials and inspectors, and registration of voters.
Under these terms, the COMELEC under our governmental structure is a constitutional
administrative agency and its powers are essentially executive in nature (i.e., to enforce and administer
election laws),22[11] quasi-judicial (to exercise original jurisdiction over election contests of regional,
provincial and city officials and appellate jurisdiction over election contests of other lower ranking
officials), and quasi-legislative (rulemaking on all questions affecting elections and the promulgation of
its rules of procedure).
The COMELECs adjudicative function is quasi-judicial since it is a constitutional body, other
than a court, vested with authority to decide election contests, and in the course of the exercise of its
jurisdiction, to hold hearings and exercise discretion of a judicial nature; 23[12] it receives evidence,
ascertain the facts from these submissions, determine the law and the legal rights of the parties, and on the
basis of all these decides on the merits of the case and renders judgment. 24[13] Despite the exercise of
discretion that is essentially judicial in character, particularly with respect to election contests,
COMELEC is not a tribunal within the judicial branch of government and is not a court exercising
judicial power in the constitutional sense; 25[14] hence, its adjudicative function, exercised as it is in the
course of administration and enforcement, is quasi-judicial.
The appropriate due process standards that apply to the COMELEC, as an administrative or
quasi-judicial tribunal, are those outlined in the seminal case of Ang Tibay v. Court of Industrial
Relations,26[16] quoted below:

21[10]

Section 1 (first paragraph), Article VIII, 1987 Constitution.


Ututalum v. Commission on Elections, G.R. No. L-25349, December 3, 1965, 15 SCRA 465.
23[12]
See: Presidential Anti-Dollar Salting Task Force v. Court of Appeals, G.R. No. 83578, March 16, 1989, 171 SCRA 348;
Midland Insurance Corporation v. IAC, No. L-71905, August 13, 1986, 143 SCRA 458.
24[13]
See: Cario v. Commission on Human Rights, G.R. No. 96681, December 2, 1991, 204 SCRA 483, on the activities
encompassed by the exercise of quasi-judicial power.
25[14]
See: Cipriano v. COMELEC, G.R. No. 158830, August 10, 2004, 436 SCRA 45, citing Sandoval v. COMELEC, 323 SCRA 403
[2000].
26[16]
69 Phil. 635 (1940).
22[11]

44
(1) The first of these rights is the right to a hearing, which includes the right of
the party interested or affected to present his own case and submit evidence in support
thereof. xxx
(2) Not only must the party be given an opportunity to present his case and to
adduce evidence tending to establish the rights which he asserts but the tribunal must
consider the evidence presented.
(3) While the duty to deliberate does not impose the obligation to decide right, it
does imply a necessity which cannot be disregarded, namely, that of having something to
support its decision. A decision with absolutely nothing to support it is a nullity, a place
when directly attached.
(4) Not only must there be some evidence to support a finding or conclusion, but
the evidence must be "substantial. "Substantial evidence is more than a mere scintilla. It
means such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion."
(5) The decision must be rendered on the evidence presented at the hearing, or at
least contained in the record and disclosed to the parties affected.
(6) The Court of Industrial Relations or any of its judges, therefore, must act on
its or his own independent consideration of the law and facts of the controversy, and not
simply accept the views of a subordinate in arriving at a decision.
(7) The Court of Industrial Relations should, in all controversial questions, render
its decision in such a manner that the parties to the proceeding can know the various
issues involved, and the reasons for the decisions rendered. The performance of this duty
is inseparable from the authority conferred upon it.
These are now commonly referred to as cardinal primary rights in administrative proceedings.
The first of the enumerated rights pertain to the substantive rights of a party at hearing stage of
the proceedings. The essence of this aspect of due process, we have consistently held, is simply the
opportunity to be heard, or as applied to administrative proceedings, an opportunity to explain ones side
or an opportunity to seek a reconsideration of the action or ruling complained of. 27[17] A formal or trialtype hearing is not at all times and in all instances essential; in the case of COMELEC, Rule 17 of its
Rules of Procedure defines the requirements for a hearing and these serve as the standards in the
determination of the presence or denial of due process.
The second, third, fourth, fifth, and sixth aspects of the Ang Tibay requirements are
reinforcements of the right to a hearing and are the inviolable rights applicable at the deliberative stage,
as the decision-maker decides on the evidence presented during the hearing. These standards set forth the
guiding considerations in deliberating on the case and are the material and substantial components of
decision-making. Briefly, the tribunal must consider the totality of the evidence presented which must all
be found in the records of the case (i.e., those presented or submitted by the parties); the conclusion,
reached by the decision-maker himself and not by a subordinate, must be based on substantial evidence. 28
[18]

Finally, the last requirement, relating to the form and substance of the decision of a quasi-judicial
body, further complements the hearing and decision-making due process rights and is similar in substance
to the constitutional requirement that a decision of a court must state distinctly the facts and the law upon
which it is based.29[19] As a component of the rule of fairness that underlies due process, this is the duty
to give reason to enable the affected person to understand how the rule of fairness has been administered
27[17]

Bautista v. Comelec, G.R. Nos. 154796-97, October 23, 2003, 414 SCRA 299.
Supra note 17.
29[19]
CONSTITUTION, Article VIII, Section 14; See Solid Homes, Inc. v. Laserna, G.R. No. 166051, April 8, 2008, 550 SCRA 613.
28[18]

45
in his case, to expose the reason to public scrutiny and criticism, and to ensure that the decision will be
thought through by the decision-maker.
In the present case, the petitioner invokes both the due process component rights at the hearing
and deliberative stages and alleges that these component rights have all been violated. We discuss all
these allegations below.
The Right to Notice and to be Heard.
a. At the Hearing and Revision of Ballots.
Based on the pleadings filed, we see no factual and legal basis for the petitioner to complain of
denial of his hearing stage rights. In the first place, he does not dispute that he fully participated in the
proceedings of the election protest until the case was deemed submitted for resolution; he had
representation at the revision of the ballots, duly presented his evidence, and summed up his case through
a memorandum. These various phases of the proceedings constitute the hearing proper of the election
contest and the COMELEC has more than satisfied the opportunity to be heard that the Ang Tibay hearing
stage rights require. In these proceedings, the petitioner stood head-to-head with the respondent in an
adversarial contest where both sides were given their respective rights to speak, make their presentations,
and controvert each others submission, subject only to established COMELEC rules of procedures.
Under these undisputed facts, both parties had their day in court, so to speak, and neither one can
complain of any denial of notice or of the right to be heard.
b. At the Proceedings at the SET.
A critical question to be answered in passing upon due process questions at this stage of the
election contest is the nature of the so-called proceedings after the ballots and other materials pertinent
to the provincial election contest were transferred to the SET.
In the petition, the petitioner alleged that there were strange proceedings 30[20] which were
unilateral, clandestine and surreptitious within the premises of the SET, on documents, ballots and
election materials whose possession and custody have been transferred to the SET, and the petitioner
was NEVER OFFICIALLY NOTIFIED of the strange on-goings at the SET.31[21] Attached to the petition
was the letter of the Secretary of the SET confirming the conduct of proceedings in the provincial
election contest, and citing as basis the authority of Acting SET Chairman, Justice Antonio T. Carpio,
upon the formal request of the Office of Commissioner Lucenito N. Tagle, and citing Section 3,
COMELEC Resolution No. 2812 dated 17 October 1995 on the coordination envisioned among the
COMELEC, the SET and the courts so as not to delay or interrupt the revision of ballots being
conducted. While the SET letter made the reservation that While the said provision speaks only of
revision, it has been the practice of the Tribunal to allow the conduct of other proceedings in local
election protest cases within its premises as may be requested, no mention whatsoever was made of the
kind of proceedings taking place.
It was at this point that this Court intervened, in response to the petitioners prayer for the
issuance of temporary injunctive relief, through the issuance of a Status Quo Order with a non-extendible
directive for the respondents to file their comments on the petition; for indeed, any further revision of
ballots or other adversarial proceedings after the case has been submitted for resolution, would not only
be strange and unusual but would indicate a gross violation of due process rights.
After consideration of the respondents Comments and the petitioners petition and Reply, we
hold that the contested proceedings at the SET (contested proceedings) are no longer part of the
adversarial aspects of the election contest that would require notice of hearing and the participation of the

30[20]
31[21]

Rollo, p. 12.
Id., p. 13.

46
parties. As the COMELEC stated in its Comment and without any contrary or disputing claim in the
petitioners Reply:32[22]
However, contrary to the claim of petitioner, public respondent in the appreciation of
the contested ballots in EPC No. 2007-44 simultaneously with the SET in SET Case No.
001-07 is not conducting further proceedings requiring notice to the parties. There is
no revision or correction of the ballots because EPC No. 2007-04 was already submitted
for resolution. Public respondent, in coordinating with the SET, is simply resolving the
submitted protest case before it. The parties necessarily take no part in said deliberation,
which require utmost secrecy. Needless to state, the actual decision-making process is
supposed to be conducted only by the designated members of the Second Division of the
public respondent in strict confidentiality.
In other words, what took place at the SET were the internal deliberations of the COMELEC, as a
quasi-judicial body, in the course of appreciating the evidence presented and deciding the provincial
election contest on the merits. These deliberations are no different from judicial deliberations which are
considered confidential and privileged. 33[23] We find it significant that the private respondents Comment
fully supported the COMELECs position and disavowed any participation in the contested proceeding
the petitioner complained about. The petitioner, on the other hand, has not shown that the private
respondent was ever present in any proceeding at the SET relating to the provincial election contest.
To conclude, the rights to notice and to be heard are not material considerations in the
COMELECs handling of the Bulacan provincial election contest after the transfer of the ballot boxes to
the SET; no proceedings at the instance of one party or of COMELEC has been conducted at the SET that
would require notice and hearing because of the possibility of prejudice to the other party. The
COMELEC is under no legal obligation to notify either party of the steps it is taking in the course of
deliberating on the merits of the provincial election contest. In the context of our standard of review for
the petition, we see no grave abuse of discretion amounting to lack or excess of jurisdiction committed by
the COMELEC in its deliberation on the Bulacan election contest and the appreciation of ballots this
deliberation entailed.
Alleged Violations of
Deliberation Stage Rights.
On the basis of the above conclusion, we see no point in discussing any alleged violation of the
deliberative stage rights. First, no illegal proceeding ever took place that would bear the poisonous
fruits that the petitioner fears. Secondly, in the absence of the results of the COMELEC deliberations
through its decision on the election protest, no basis exists to apply the Ang Tibay deliberative stage
rights; there is nothing for us to test under the standards of the due process deliberative stages rights
before the COMELEC renders its decision. Expressed in terms of our standard of review, we have as yet
no basis to determine the existence of any grave abuse of discretion.
Conduct of COMELEC
Deliberations at the SET Premises
We turn to the issue of the propriety of the COMELECs consideration of the provincial election
contest (specifically its appreciation of the contested ballots) at the SET premises and while the same
ballots are also under consideration by the SET for another election contest legitimately within the SETs
own jurisdiction.
We state at the outset that the COMELEC did not lose jurisdiction over the provincial election
contest, as the petitioner seems to imply, because of the transmittal of the provincial ballot boxes and
other election materials to the SET. The Constitution conferred upon the COMELEC jurisdiction over
election protests involving provincial officials. The COMELEC in this case has lawfully acquired
32[22]
33[23]

COMELEC Comment; rollo, pp. 72-S and 72-T.


See Chavez v. Public Estates Authority, G.R. No. 133250, July 9, 2002, 384 SCRA 152.

47
jurisdiction over the subject matter, i.e., the provincial election contest, as well as over the parties. After
its jurisdiction attached, this jurisdiction cannot be ousted by subsequent events such as the temporary
transfer of evidence and material records of the proceedings to another tribunal exercising its own
jurisdiction over another election contest pursuant to the Constitution. This is the rule of adherence of
jurisdiction.34[24]
Thus, the jurisdiction of the COMELEC over provincial election contest exists side by side with
the jurisdiction of the Senate Electoral Tribunal, with each tribunal being supreme in their respective
areas of concern (the Senate election contests for the SET, and the regional, provincial and city election
contests for the COMELEC), and with neither one being higher than the other in terms of precedence so
that the jurisdiction of one must yield to the other.
But while no precedence in jurisdiction exists, the COMELEC, vowing to the reality that only a
single ballot exists in an election for national and local officials, saw it fit to lay down the rule on the
order of preference in the custody and revision of ballots and other documents contained in the ballot
boxes. The order, in terms of the adjudicatory tribunal and as provided in COMELEC Resolution No.
2812, runs:
1.
2.
3.
4.
5.

Presidential Electoral Tribunal;


Senate Electoral Tribunal;
House of Representatives Electoral Tribunal;
Commission on Elections; and
Regional Trial Courts.

This order of preference dictated that the ballot boxes and other election materials in Bulacans provincial
election contest, had to be transferred to the SET when the latter needed these materials for its revision of
ballots. The transfer to the SET, however, did not mean that the Bulacan provincial election contest at
that time already submitted for decision had to be suspended as the COMELEC held in its Orders of 29
April 2009 and 26 May 2009 in EPC No. 2007-44. 35[25] This is particularly true in Bulacans case as no
revision had to be undertaken, the revision having been already terminated.
WHEREFORE, premises considered, we DISMISS the petition for certiorari for lack of merit.
We accordingly LIFT the STATUS QUO ORDER we issued, effective immediately.
CHAPTER III - THE EQUAL
PROTECTION CLAUSE
Sec. 1nor shall any person be denied the equal protection
of the laws.
The laws considering appointed officials of the government who
filed their certificates of candidacy considered resigned while
elected officials are not does not violate the equal protection
clause of the Constitution.
ELEAZAR P. QUINTO and GERINO TOLENTINO, JR. VS. COMELEC,
G.R. No. 189698, February 22, 2010 (Reversing the December 1, 2009 En
Banc Decision)

34[24]

See: Ramos v. Central Bank of the Philippines, No. L-29352, October 4, 1971, 41 SCRA 565; Bengzon v. Inciong, Nos. L48706-07, June 29, 1079, 91 SCRA 248; Baltazar v. CA, 104 SCRA 619 [1981]; Ramos v. Our Lady of Peace School, No. L-55950,
December 26, 1984, 133 SCRA 741; Lee v. Presiding Judge, MTC Legazpi City, No. L-68789, November 10, 1986, 145 SCRA
408.
35[25]
Rollo, pp. 29-34.

48
Puno, CJ
The main issue in this case is whether or not the second proviso in the third paragraph of Section
13 of Republic Act No. 9369, Section 66 of the Omnibus Election Code and Section 4(a) of COMELEC
Resolution No. 8678, providing that appointive officials are deemed automatically resigned from their
jobs upon the filing of their certificates of candidacy (while the elected officials are not) is
unconstitutional mainly on the ground that they violate the equal protection clause of the Constitution and
suffer from overbreadth.
On December 1, 2009, the Supreme Court held that the questioned provisions of the abovementioned laws are unconstitutional for being violative of the equal protection clause.
On Motion for Reconsideration, the Supreme Court reconsidered its earlier Decision and declared
the above laws and COMELEC Resolution constitutional.
In support of their respective motions for reconsideration, respondent COMELEC and movantsintervenors submit the following arguments:
(1) The assailed Decision is contrary to, and/or violative of, the constitutional proscription against
the participation of public appointive officials and members of the military in partisan
political activity;
(2) The assailed provisions do not violate the equal protection clause when they accord
differential treatment to elective and appointive officials, because such differential treatment
rests on material and substantial distinctions and is germane to the purposes of the law;
(3) The assailed provisions do not suffer from the infirmity of overbreadth; and
(4) There is a compelling need to reverse the assailed Decision, as public safety and interest
demand such reversal.
We find the foregoing arguments meritorious.
The assailed December 1, 2009 Decision struck down Section 4(a) of Resolution 8678, the
second proviso in the third paragraph of Section 13 of Republic Act (RA) 9369, and Section 66 of the
Omnibus Election Code, on the following grounds:
(1) They violate the equal protection clause of the Constitution because of the differential
treatment of persons holding appointive offices and those holding elective positions;
(2) They are overbroad insofar as they prohibit the candidacy of all civil servants holding
appointive posts: (a) without distinction as to whether or not they occupy high/influential
positions in the government, and (b) they limit these civil servants activity regardless of
whether they be partisan or nonpartisan in character, or whether they be in the national,
municipal or barangay level; and
(3) Congress has not shown a compelling state interest to restrict the fundamental right of these
public appointive officials.
We grant the motions for reconsideration. We now rule that Section 4(a) of Resolution 8678,
Section 66 of the Omnibus Election Code, and the second proviso in the third paragraph of Section 13 of
RA 9369 are not unconstitutional, and accordingly reverse our December 1, 2009 Decision.

49
We now hold that Section 4(a) of Resolution 8678, Section 66 of the Omnibus Election Code, and
the second proviso in the third paragraph of Section 13 of RA 9369 are not violative of the equal
protection clause of the Constitution.
i.

Farias, et al. v. Executive Secretary, et al. is Controlling

In truth, this Court has already ruled squarely on whether these deemed-resigned provisions
challenged in the case at bar violate the equal protection clause of the Constitution in Farias, et al. v.
Executive Secretary, et al.
In Farias, the constitutionality of Section 14 of the Fair Election Act, in relation to Sections 66
and 67 of the Omnibus Election Code, was assailed on the ground, among others, that it unduly
discriminates against appointive officials. As Section 14 repealed Section 67 (i.e., the deemed-resigned
provision in respect of elected officials) of the Omnibus Election Code, elected officials are no longer
considered ipso facto resigned from their respective offices upon their filing of certificates of candidacy.
In contrast, since Section 66 was not repealed, the limitation on appointive officials continues to be
operative they are deemed resigned when they file their certificates of candidacy.
The petitioners in Farias thus brought an equal protection challenge against Section 14, with the
end in view of having the deemed-resigned provisions apply equally to both elected and appointive
officials. We held, however, that the legal dichotomy created by the Legislature is a reasonable
classification, as there are material and significant distinctions between the two classes of officials.
Consequently, the contention that Section 14 of the Fair Election Act, in relation to Sections 66 and 67 of
the Omnibus Election Code, infringed on the equal protection clause of the Constitution, failed muster.
We ruled:
The petitioners' contention, that the repeal of Section 67 of the Omnibus Election
Code pertaining to elective officials gives undue benefit to such officials as against the
appointive ones and violates the equal protection clause of the constitution, is tenuous.
The equal protection of the law clause in the Constitution is not absolute, but is
subject to reasonable classification. If the groupings are characterized by substantial
distinctions that make real differences, one class may be treated and regulated differently
from the other. The Court has explained the nature of the equal protection guarantee in
this manner:
The equal protection of the law clause is against undue favor and
individual or class privilege, as well as hostile discrimination or the
oppression of inequality. It is not intended to prohibit legislation which is
limited either in the object to which it is directed or by territory within
which it is to operate. It does not demand absolute equality among
residents; it merely requires that all persons shall be treated alike, under
like circumstances and conditions both as to privileges conferred and
liabilities enforced. The equal protection clause is not infringed by
legislation which applies only to those persons falling within a specified
class, if it applies alike to all persons within such class, and reasonable
grounds exist for making a distinction between those who fall within
such class and those who do not.
Substantial distinctions clearly exist between elective officials and appointive
officials. The former occupy their office by virtue of the mandate of the electorate.
They are elected to an office for a definite term and may be removed therefrom only
upon stringent conditions. On the other hand, appointive officials hold their office by
virtue of their designation thereto by an appointing authority. Some appointive officials
hold their office in a permanent capacity and are entitled to security of tenure while
others serve at the pleasure of the appointing authority.

50
Another substantial distinction between the two sets of officials is that under
Section 55, Chapter 8, Title I, Subsection A. Civil Service Commission, Book V of the
Administrative Code of 1987 (Executive Order No. 292), appointive officials, as officers
and employees in the civil service, are strictly prohibited from engaging in any partisan
political activity or take (sic) part in any election except to vote. Under the same
provision, elective officials, or officers or employees holding political offices, are
obviously expressly allowed to take part in political and electoral activities.
By repealing Section 67 but retaining Section 66 of the Omnibus Election Code,
the legislators deemed it proper to treat these two classes of officials differently with
respect to the effect on their tenure in the office of the filing of the certificates of
candidacy for any position other than those occupied by them. Again, it is not within the
power of the Court to pass upon or look into the wisdom of this classification.
Since the classification justifying Section 14 of Rep. Act No. 9006, i.e., elected
officials vis--vis appointive officials, is anchored upon material and significant
distinctions and all the persons belonging under the same classification are similarly
treated, the equal protection clause of the Constitution is, thus, not infringed.
The case at bar is a crass attempt to resurrect a dead issue. The miracle is that our assailed
Decision gave it new life. We ought to be guided by the doctrine of stare decisis et non quieta movere.
This doctrine, which is really adherence to precedents, mandates that once a case has been decided one
way, then another case involving exactly the same point at issue should be decided in the same manner.
This doctrine is one of policy grounded on the necessity for securing certainty and stability of judicial
decisions. As the renowned jurist Benjamin Cardozo stated in his treatise The Nature of the Judicial
Process:
It will not do to decide the same question one way between one set of litigants and the
opposite way between another. If a group of cases involves the same point, the parties
expect the same decision. It would be a gross injustice to decide alternate cases on
opposite principles. If a case was decided against me yesterday when I was a defendant, I
shall look for the same judgment today if I am plaintiff. To decide differently would raise
a feeling of resentment and wrong in my breast; it would be an infringement, material
and moral, of my rights." Adherence to precedent must then be the rule rather than the
exception if litigants are to have faith in the even-handed administration of justice in the
courts.
Our Farias ruling on the equal protection implications of the deemed-resigned provisions cannot
be minimalized as mere obiter dictum. It is trite to state that an adjudication on any point within the issues
presented by the case cannot be considered as obiter dictum. This rule applies to all pertinent questions
that are presented and resolved in the regular course of the consideration of the case and lead up to the
final conclusion, and to any statement as to the matter on which the decision is predicated. For that reason,
a point expressly decided does not lose its value as a precedent because the disposition of the case is, or
might have been, made on some other ground; or even though, by reason of other points in the case, the
result reached might have been the same if the court had held, on the particular point, otherwise than it
did. As we held in Villanueva, Jr. v. Court of Appeals, et al.:
A decision which the case could have turned on is not regarded as obiter dictum
merely because, owing to the disposal of the contention, it was necessary to consider
another question, nor can an additional reason in a decision, brought forward after the
case has been disposed of on one ground, be regarded as dicta. So, also, where a case
presents two (2) or more points, any one of which is sufficient to determine the ultimate
issue, but the court actually decides all such points, the case as an authoritative
precedent as to every point decided, and none of such points can be regarded as having
the status of a dictum, and one point should not be denied authority merely because
another point was more dwelt on and more fully argued and considered, nor does a

51
decision on one proposition make statements of the court regarding other propositions
dicta. (italics supplied)
ii.

Classification Germane to the Purposes of the Law

The Farias ruling on the equal protection challenge stands on solid ground even if reexamined.
To start with, the equal protection clause does not require the universal application of the laws to
all persons or things without distinction. What it simply requires is equality among equals as determined
according to a valid classification. The test developed by jurisprudence here and yonder is that of
reasonableness, which has four requisites:
(1) The classification rests on substantial distinctions;
(2) It is germane to the purposes of the law;
(3) It is not limited to existing conditions only; and
(4) It applies equally to all members of the same class.
Our assailed Decision readily acknowledged that these deemed-resigned provisions satisfy the
first, third and fourth requisites of reasonableness. It, however, proffers the dubious conclusion that the
differential treatment of appointive officials vis--vis elected officials is not germane to the purpose of the
law, because whether one holds an appointive office or an elective one, the evils sought to be prevented
by the measure remain, viz.:
For example, the Executive Secretary, or any Member of the Cabinet for that matter,
could wield the same influence as the Vice-President who at the same time is appointed to
a Cabinet post (in the recent past, elected Vice-Presidents were appointed to take charge
of national housing, social welfare development, interior and local government, and
foreign affairs). With the fact that they both head executive offices, there is no valid
justification to treat them differently when both file their [Certificates of Candidacy] for
the elections. Under the present state of our law, the Vice-President, in the example,
running this time, let us say, for President, retains his position during the entire election
period and can still use the resources of his office to support his campaign.
Sad to state, this conclusion conveniently ignores the long-standing rule that to remedy an
injustice, the Legislature need not address every manifestation of the evil at once; it may proceed one
step at a time. In addressing a societal concern, it must invariably draw lines and make choices, thereby
creating some inequity as to those included or excluded. Nevertheless, as long as the bounds of
reasonable choice are not exceeded, the courts must defer to the legislative judgment. We may not strike
down a law merely because the legislative aim would have been more fully achieved by expanding the
class. Stated differently, the fact that a legislative classification, by itself, is under inclusive will not
render it unconstitutionally arbitrary or invidious. There is no constitutional requirement that regulation
must reach each and every class to which it might be applied; that the Legislature must be held rigidly to
the choice of regulating all or none.
Thus, any person who poses an equal protection challenge must convincingly show that the law
creates a classification that is palpably arbitrary or capricious. He must refute all possible rational bases
for the differing treatment, whether or not the Legislature cited those bases as reasons for the enactment,
such that the constitutionality of the law must be sustained even if the reasonableness of the classification
is fairly debatable. In the case at bar, the petitioners failed and in fact did not even attempt to
discharge this heavy burden. Our assailed Decision was likewise silent as a sphinx on this point even
while we submitted the following thesis:

52
... [I]t is not sufficient grounds for invalidation that we may find that the statutes
distinction is unfair, underinclusive, unwise, or not the best solution from a public-policy
standpoint; rather, we must find that there is no reasonably rational reason for the
differing treatment.
In the instant case, is there a rational justification for excluding elected officials
from the operation of the deemed resigned provisions? I submit that there is.
An election is the embodiment of the popular will, perhaps the purest expression
of the sovereign power of the people. It involves the choice or selection of candidates to
public office by popular vote. Considering that elected officials are put in office by their
constituents for a definite term, it may justifiably be said that they were excluded from
the ambit of the deemed resigned provisions in utmost respect for the mandate of the
sovereign will. In other words, complete deference is accorded to the will of the
electorate that they be served by such officials until the end of the term for which they
were elected. In contrast, there is no such expectation insofar as appointed officials are
concerned.
The dichotomized treatment of appointive and elective officials is therefore
germane to the purposes of the law. For the law was made not merely to preserve
the integrity, efficiency, and discipline of the public service; the Legislature, whose
wisdom is outside the rubric of judicial scrutiny, also thought it wise to balance this
with the competing, yet equally compelling, interest of deferring to the sovereign
will. (emphasis in the original)
In fine, the assailed Decision would have us equalize the playing field by invalidating
provisions of law that seek to restrain the evils from running riot. Under the pretext of equal protection, it
would favor a situation in which the evils are unconfined and vagrant, existing at the behest of both
appointive and elected officials, over another in which a significant portion thereof is contained. The
absurdity of that position is self-evident, to say the least.
The concern, voiced by our esteemed colleague, Mr. Justice Nachura, in his dissent, that elected
officials (vis--vis appointive officials) have greater political clout over the electorate, is indeed a matter
worth exploring but not by this Court. Suffice it to say that the remedy lies with the Legislature. It is the
Legislature that is given the authority, under our constitutional system, to balance competing interests and
thereafter make policy choices responsive to the exigencies of the times. It is certainly within the
Legislatures power to make the deemed-resigned provisions applicable to elected officials, should it later
decide that the evils sought to be prevented are of such frequency and magnitude as to tilt the balance in
favor of expanding the class. This Court cannot and should not arrogate unto itself the power to ascertain
and impose on the people the best state of affairs from a public policy standpoint.
iii.

Mancuso v. Taft Has Been Overruled

Finding no Philippine jurisprudence to prop up its equal protection ruling, our assailed Decision
adverted to, and extensively cited, Mancuso v. Taft. This was a decision of the First Circuit of the United
States Court of Appeals promulgated in March 1973, which struck down as unconstitutional a similar
statutory provision. Pathetically, our assailed Decision, relying on Mancuso, claimed:
(1) The right to run for public office is inextricably linked with two fundamental freedoms
freedom of expression and association;
(2) Any legislative classification that significantly burdens this fundamental right must be
subjected to strict equal protection review; and

53
(3) While the state has a compelling interest in maintaining the honesty and impartiality of its
public work force, the deemed-resigned provisions pursue their objective in a far too heavyhanded manner as to render them unconstitutional.
It then concluded with the exhortation that since the Americans, from whom we copied the
provision in question, had already stricken down a similar measure for being unconstitutional[,] it is hightime that we, too, should follow suit.
Our assailed Decisions reliance on Mancuso is completely misplaced. We cannot blink away the
fact that the United States Supreme Court effectively overruled Mancuso three months after its
promulgation by the United States Court of Appeals. In United States Civil Service Commission, et al.
v. National Association of Letter Carriers AFL-CIO, et al. and Broadrick, et al. v. State of
Oklahoma, et al., the United States Supreme Court was faced with the issue of whether statutory
provisions prohibiting federal and state employees from taking an active part in political management or
in political campaigns were unconstitutional as to warrant facial invalidation. Violation of these
provisions results in dismissal from employment and possible criminal sanctions.
The Court declared these provisions compliant with the equal protection clause. It held that (i) in
regulating the speech of its employees, the state as employer has interests that differ significantly from
those it possesses in regulating the speech of the citizenry in general; (ii) the courts must therefore
balance the legitimate interest of employee free expression against the interests of the employer in
promoting efficiency of public services; (iii) if the employees expression interferes with the maintenance
of efficient and regularly functioning services, the limitation on speech is not unconstitutional; and (iv)
the Legislature is to be given some flexibility or latitude in ascertaining which positions are to be covered
by any statutory restrictions. Therefore, insofar as government employees are concerned, the correct
standard of review is an interest-balancing approach, a means-end scrutiny that examines the closeness of
fit between the governmental interests and the prohibitions in question.
Letter Carriers elucidated on these principles, as follows:
Until now, the judgment of Congress, the Executive, and the country appears to
have been that partisan political activities by federal employees must be limited if the
Government is to operate effectively and fairly, elections are to play their proper part in
representative government, and employees themselves are to be sufficiently free from
improper influences. The restrictions so far imposed on federal employees are not aimed
at particular parties, groups, or points of view, but apply equally to all partisan activities
of the type described. They discriminate against no racial, ethnic, or religious minorities.
Nor do they seek to control political opinions or beliefs, or to interfere with or influence
anyone's vote at the polls.
But, as the Court held in Pickering v. Board of Education, the government has an
interest in regulating the conduct and the speech of its employees that differ(s)
significantly from those it possesses in connection with regulation of the speech of the
citizenry in general. The problem in any case is to arrive at a balance between the
interests of the (employee), as a citizen, in commenting upon matters of public concern
and the interest of the (government), as an employer, in promoting the efficiency of the
public services it performs through its employees. Although Congress is free to strike a
different balance than it has, if it so chooses, we think the balance it has so far struck is
sustainable by the obviously important interests sought to be served by the limitations on
partisan political activities now contained in the Hatch Act.
It seems fundamental in the first place that employees in the Executive Branch of
the Government, or those working for any of its agencies, should administer the law in
accordance with the will of Congress, rather than in accordance with their own or the
will of a political party. They are expected to enforce the law and execute the programs
of the Government without bias or favoritism for or against any political party or group

54
or the members thereof. A major thesis of the Hatch Act is that to serve this great end of
Government-the impartial execution of the laws-it is essential that federal employees, for
example, not take formal positions in political parties, not undertake to play substantial
roles in partisan political campaigns, and not run for office on partisan political tickets.
Forbidding activities like these will reduce the hazards to fair and effective government.
There is another consideration in this judgment: it is not only important that the
Government and its employees in fact avoid practicing political justice, but it is also
critical that they appear to the public to be avoiding it, if confidence in the system of
representative Government is not to be eroded to a disastrous extent.
Another major concern of the restriction against partisan activities by federal
employees was perhaps the immediate occasion for enactment of the Hatch Act in 1939.
That was the conviction that the rapidly expanding Government work force should not be
employed to build a powerful, invincible, and perhaps corrupt political machine. The
experience of the 1936 and 1938 campaigns convinced Congress that these dangers were
sufficiently real that substantial barriers should be raised against the party in power-or the
party out of power, for that matter-using the thousands or hundreds of thousands of
federal employees, paid for at public expense, to man its political structure and political
campaigns.
A related concern, and this remains as important as any other, was to further
serve the goal that employment and advancement in the Government service not depend
on political performance, and at the same time to make sure that Government employees
would be free from pressure and from express or tacit invitation to vote in a certain way
or perform political chores in order to curry favor with their superiors rather than to act
out their own beliefs. It may be urged that prohibitions against coercion are sufficient
protection; but for many years the joint judgment of the Executive and Congress has been
that to protect the rights of federal employees with respect to their jobs and their political
acts and beliefs it is not enough merely to forbid one employee to attempt to influence or
coerce another. For example, at the hearings in 1972 on proposed legislation for
liberalizing the prohibition against political activity, the Chairman of the Civil Service
Commission stated that the prohibitions against active participation in partisan political
management and partisan political campaigns constitute the most significant safeguards
against coercion . . .. Perhaps Congress at some time will come to a different view of the
realities of political life and Government service; but that is its current view of the matter,
and we are not now in any position to dispute it. Nor, in our view, does the Constitution
forbid it.
Neither the right to associate nor the right to participate in political activities is
absolute in any event. x x x
As we see it, our task is not to destroy the Act if we can, but to construe it, if
consistent with the will of Congress, so as to comport with constitutional limitations.
(italics supplied)
Broadrick likewise definitively stated that the assailed statutory provision is constitutionally
permissible, viz.:
Appellants do not question Oklahoma's right to place even-handed restrictions on
the partisan political conduct of state employees. Appellants freely concede that such
restrictions serve valid and important state interests, particularly with respect to
attracting greater numbers of qualified people by insuring their job security, free from
the vicissitudes of the elective process, and by protecting them from political extortion.
Rather, appellants maintain that however permissible, even commendable, the goals of s
818 may be, its language is unconstitutionally vague and its prohibitions too broad in
their sweep, failing to distinguish between conduct that may be proscribed and conduct

55
that must be permitted. For these and other reasons, appellants assert that the sixth and
seventh paragraphs of s 818 are void in toto and cannot be enforced against them or
anyone else.
We have held today that the Hatch Act is not impermissibly vague. We have little
doubt that s 818 is similarly not so vague that men of common intelligence must
necessarily guess at its meaning. Whatever other problems there are with s 818, it is all
but frivolous to suggest that the section fails to give adequate warning of what activities it
proscribes or fails to set out explicit standards' for those who must apply it. In the
plainest language, it prohibits any state classified employee from being an officer or
member of a partisan political club or a candidate for any paid public office. It forbids
solicitation of contributions for any political organization, candidacy or other political
purpose and taking part in the management or affairs of any political party or in any
political campaign. Words inevitably contain germs of uncertainty and, as with the Hatch
Act, there may be disputes over the meaning of such terms in s 818 as partisan, or take
part in, or affairs of political parties. But what was said in Letter Carriers, is applicable
here: there are limitations in the English language with respect to being both specific and
manageably brief, and it seems to us that although the prohibitions may not satisfy those
intent on finding fault at any cost, they are set out in terms that the ordinary person
exercising ordinary common sense can sufficiently understand and comply with, without
sacrifice to the public interest.' x x x
xxxx
[Appellants] nevertheless maintain that the statute is overbroad and purports to
reach protected, as well as unprotected conduct, and must therefore be struck down on its
face and held to be incapable of any constitutional application. We do not believe that the
overbreadth doctrine may appropriately be invoked in this manner here.
xxxx
The consequence of our departure from traditional rules of standing in the First
Amendment area is that any enforcement of a statute thus placed at issue is totally
forbidden until and unless a limiting construction or partial invalidation so narrows it as
to remove the seeming threat or deterrence to constitutionally protected expression.
Application of the overbreadth doctrine in this manner is, manifestly, strong medicine. It
has been employed by the Court sparingly and only as a last resort. x x x
x x x But the plain import of our cases is, at the very least, that facial over-breadth
adjudication is an exception to our traditional rules of practice and that its function, a
limited one at the outset, attenuates as the otherwise unprotected behavior that it forbids
the State to sanction moves from pure speech toward conduct and that conduct-even if
expressive-falls within the scope of otherwise valid criminal laws that reflect legitimate
state interests in maintaining comprehensive controls over harmful, constitutionally
unprotected conduct. Although such laws, if too broadly worded, may deter protected
speech to some unknown extent, there comes a point where that effect-at best a
prediction-cannot, with confidence, justify invalidating a statute on its face and so
prohibiting a State from enforcing the statute against conduct that is admittedly within its
power to proscribe. To put the matter another way, particularly where conduct and not
merely speech is involved, we believe that the overbreadth of a statute must not only be
real, but substantial as well, judged in relation to the statute's plainly legitimate sweep. It
is our view that s 818 is not substantially overbroad and that whatever overbreadth may
exist should be cured through case-by-case analysis of the fact situations to which its
sanctions, assertedly, may not be applied.
Unlike ordinary breach-of-the peace statutes or other broad regulatory acts, s
818 is directed, by its terms, at political expression which if engaged in by private

56
persons would plainly be protected by the First and Fourteenth Amendments. But at the
same time, s 818 is not a censorial statute, directed at particular groups or viewpoints.
The statute, rather, seeks to regulate political activity in an even-handed and neutral
manner. As indicted, such statutes have in the past been subject to a less exacting
overbreadth scrutiny. Moreover, the fact remains that s 818 regulates a substantial
spectrum of conduct that is as manifestly subject to state regulation as the public peace
or criminal trespass. This much was established in United Public Workers v. Mitchell,
and has been unhesitatingly reaffirmed today in Letter Carriers. Under the decision in
Letter Carriers, there is no question that s 818 is valid at least insofar as it forbids
classified employees from: soliciting contributions for partisan candidates, political
parties, or other partisan political purposes; becoming members of national, state, or local
committees of political parties, or officers or committee members in partisan political
clubs, or candidates for any paid public office; taking part in the management or affairs
of any political party's partisan political campaign; serving as delegates or alternates to
caucuses or conventions of political parties; addressing or taking an active part in partisan
political rallies or meetings; soliciting votes or assisting voters at the polls or helping in a
partisan effort to get voters to the polls; participating in the distribution of partisan
campaign literature; initiating or circulating partisan nominating petitions; or riding in
caravans for any political party or partisan political candidate.
x x x It may be that such restrictions are impermissible and that s 818 may be
susceptible of some other improper applications. But, as presently construed, we do not
believe that s 818 must be discarded in toto because some persons arguably protected
conduct may or may not be caught or chilled by the statute. Section 818 is not
substantially overbroad and it not, therefore, unconstitutional on its face. (italics
supplied)
It bears stressing that, in his Dissenting Opinion, Mr. Justice Nachura does not deny the principles
enunciated in Letter Carriers and Broadrick. He would hold, nonetheless, that these cases cannot be
interpreted to mean a reversal of Mancuso, since they pertain to different types of laws and were
decided based on a different set of facts, viz.:
In Letter Carriers, the plaintiffs alleged that the Civil Service Commission was
enforcing, or threatening to enforce, the Hatch Acts prohibition against active
participation in political management or political campaigns. The plaintiffs desired to
campaign for candidates for public office, to encourage and get federal employees to run
for state and local offices, to participate as delegates in party conventions, and to hold
office in a political club.
In Broadrick, the appellants sought the invalidation for being vague and
overbroad a provision in the (sic) Oklahomas Merit System of Personnel Administration
Act restricting the political activities of the States classified civil servants, in much the
same manner as the Hatch Act proscribed partisan political activities of federal
employees. Prior to the commencement of the action, the appellants actively participated
in the 1970 reelection campaign of their superior, and were administratively charged for
asking other Corporation Commission employees to do campaign work or to give
referrals to persons who might help in the campaign, for soliciting money for the
campaign, and for receiving and distributing campaign posters in bulk.
Mancuso, on the other hand, involves, as aforesaid, an automatic resignation
provision. Kenneth Mancuso, a full time police officer and classified civil service
employee of the City of Cranston, filed as a candidate for nomination as representative to
the Rhode Island General Assembly. The Mayor of Cranston then began the process of
enforcing the resign-to-run provision of the City Home Rule Charter.

57
Clearly, as the above-cited US cases pertain to different types of laws and were
decided based on a different set of facts, Letter Carriers and Broadrick cannot be
interpreted to mean a reversal of Mancuso. x x x (italics in the original)
We hold, however, that his position is belied by a plain reading of these cases. Contrary to his
claim, Letter Carriers, Broadrick and Mancuso all concerned the constitutionality of resign-to-run
laws, viz.:
(1) Mancuso involved a civil service
representative to the Rhode Island
14.09(c) of the City Home Rule
service of the city after becoming
office.

employee who filed as a candidate for nomination as


General Assembly. He assailed the constitutionality of
Charter, which prohibits continuing in the classified
a candidate for nomination or election to any public

(2) Letter Carriers involved plaintiffs who alleged that the Civil Service Commission was
enforcing, or threatening to enforce, the Hatch Acts prohibition against active participation
in political management or political campaigns with respect to certain defined activities in
which they desired to engage. The plaintiffs relevant to this discussion are
(a) The National Association of Letter Carriers, which alleged that its members
were desirous of, among others, running in local elections for offices such as
school board member, city council member or mayor;
(b) Plaintiff Gee, who alleged that he desired to, but did not, file as a candidate
for the office of Borough Councilman in his local community for fear that his
participation in a partisan election would endanger his job; and
(c) Plaintiff Myers, who alleged that he desired to run as a Republican candidate
in the 1971 partisan election for the mayor of West Lafayette, Indiana, and
that he would do so except for fear of losing his job by reason of violation of
the Hatch Act.
The Hatch Act defines active participation in political management or political campaigns
by cross-referring to the rules made by the Civil Service Commission. The rule pertinent to
our inquiry states:
30. Candidacy for local office: Candidacy for a nomination or for
election to any National, State, county, or municipal office is not
permissible. The prohibition against political activity extends not merely
to formal announcement of candidacy but also to the preliminaries
leading to such announcement and to canvassing or soliciting support or
doing or permitting to be done any act in furtherance of candidacy. The
fact that candidacy, is merely passive is immaterial; if an employee
acquiesces in the efforts of friends in furtherance of such candidacy such
acquiescence constitutes an infraction of the prohibitions against political
activity. (italics supplied)
Section 9(b) requires the immediate removal of violators and forbids the use of appropriated
funds thereafter to pay compensation to these persons.
(3) Broadrick was a class action brought by certain Oklahoma state employees seeking a
declaration of unconstitutionality of two sub-paragraphs of Section 818 of Oklahomas Merit
System of Personnel Administration Act. Section 818 (7), the paragraph relevant to this
discussion, states that [n]o employee in the classified service shall be a candidate for
nomination or election to any paid public office Violation of Section 818 results in

58
dismissal from employment, possible criminal sanctions and limited state employment
ineligibility.
Consequently, it cannot be denied that Letter Carriers and Broadrick effectively overruled
Mancuso. By no stretch of the imagination could Mancuso still be held operative, as Letter Carriers
and Broadrick (i) concerned virtually identical resign-to-run laws, and (ii) were decided by a superior
court, the United States Supreme Court. It was thus not surprising for the First Circuit Court of Appeals
the same court that decided Mancuso to hold categorically and emphatically in Magill v. Lynch that
Mancuso is no longer good law. As we priorly explained:
Magill involved Pawtucket, Rhode Island firemen who ran for city office in
1975. Pawtuckets Little Hatch Act prohibits city employees from engaging in a broad
range of political activities. Becoming a candidate for any city office is specifically
proscribed, the violation being punished by removal from office or immediate dismissal.
The firemen brought an action against the city officials on the ground that that the
provision of the city charter was unconstitutional. However, the court, fully cognizant
of Letter Carriers and Broadrick, took the position that Mancuso had since lost
considerable vitality. It observed that the view that political candidacy was a
fundamental interest which could be infringed upon only if less restrictive
alternatives were not available, was a position which was no longer viable, since the
Supreme Court (finding that the governments interest in regulating both the
conduct and speech of its employees differed significantly from its interest in
regulating those of the citizenry in general) had given little weight to the argument
that prohibitions against the coercion of government employees were a less drastic
means to the same end, deferring to the judgment of Congress, and applying a
balancing test to determine whether limits on political activity by public
employees substantially served government interests which were important
enough to outweigh the employees First Amendment rights.
It must be noted that the Court of Appeals ruled in this manner even though the
election in Magill was characterized as nonpartisan, as it was reasonable for the city to
fear, under the circumstances of that case, that politically active bureaucrats might use
their official power to help political friends and hurt political foes. Ruled the court:
The question before us is whether Pawtucket's charter provision,
which bars a city employee's candidacy in even a nonpartisan city
election, is constitutional. The issue compels us to extrapolate two recent
Supreme Court decisions, Civil Service Comm'n v. Nat'l Ass'n of Letter
Carriers and Broadrick v. Oklahoma. Both dealt with laws barring civil
servants from partisan political activity. Letter Carriers reaffirmed
United Public Workers v. Mitchell, upholding the constitutionality of the
Hatch Act as to federal employees. Broadrick sustained Oklahoma's
Little Hatch Act against constitutional attack, limiting its holding to
Oklahoma's construction that the Act barred only activity in partisan
politics. In Mancuso v. Taft, we assumed that proscriptions of candidacy
in nonpartisan elections would not be constitutional. Letter Carriers and
Broadrick compel new analysis.
xxxx
What we are obligated to do in this case, as the district court
recognized, is to apply the Courts interest balancing approach to the
kind of nonpartisan election revealed in this record. We believe that the
district court found more residual vigor in our opinion in Mancuso v.
Taft than remains after Letter Carriers. We have particular reference to
our view that political candidacy was a fundamental interest which could

59
be trenched upon only if less restrictive alternatives were not available.
While this approach may still be viable for citizens who are not
government employees, the Court in Letter Carriers recognized that the
government's interest in regulating both the conduct and speech of its
employees differs significantly from its interest in regulating those of the
citizenry in general. Not only was United Public Workers v. Mitchell
"unhesitatingly" reaffirmed, but the Court gave little weight to the
argument that prohibitions against the coercion of government
employees were a less drastic means to the same end, deferring to the
judgment of the Congress. We cannot be more precise than the Third
Circuit in characterizing the Court's approach as "some sort of 'balancing'
process". It appears that the government may place limits on
campaigning by public employees if the limits substantially serve
government interests that are "important" enough to outweigh the
employees' First Amendment rights. x x x (italics supplied)
Upholding thus the constitutionality of the law in question, the Magill court
detailed the major governmental interests discussed in Letter Carriers and applied them
to the Pawtucket provision as follows:
In Letter Carriers[,] the first interest identified by the Court was
that of an efficient government, faithful to the Congress rather than to
party. The district court discounted this interest, reasoning that
candidates in a local election would not likely be committed to a state or
national platform. This observation undoubtedly has substance insofar as
allegiance to broad policy positions is concerned. But a different kind of
possible political intrusion into efficient administration could be thought
to threaten municipal government: not into broad policy decisions, but
into the particulars of administration favoritism in minute decisions
affecting welfare, tax assessments, municipal contracts and purchasing,
hiring, zoning, licensing, and inspections. Just as the Court in Letter
Carriers identified a second governmental interest in the avoidance of
the appearance of "political justice" as to policy, so there is an equivalent
interest in avoiding the appearance of political preferment in privileges,
concessions, and benefits. The appearance (or reality) of favoritism that
the charter's authors evidently feared is not exorcised by the nonpartisan
character of the formal election process. Where, as here, party support is
a key to successful campaigning, and party rivalry is the norm, the city
might reasonably fear that politically active bureaucrats would use their
official power to help political friends and hurt political foes. This is not
to say that the city's interest in visibly fair and effective administration
necessarily justifies a blanket prohibition of all employee campaigning;
if parties are not heavily involved in a campaign, the danger of
favoritism is less, for neither friend nor foe is as easily identified.
A second major governmental interest identified in Letter
Carriers was avoiding the danger of a powerful political machine. The
Court had in mind the large and growing federal bureaucracy and its
partisan potential. The district court felt this was only a minor threat
since parties had no control over nominations. But in fact candidates
sought party endorsements, and party endorsements proved to be highly
effective both in determining who would emerge from the primary
election and who would be elected in the final election. Under the
prevailing customs, known party affiliation and support were highly
significant factors in Pawtucket elections. The charter's authors might
reasonably have feared that a politically active public work force would
give the incumbent party, and the incumbent workers, an unbreakable

60
grasp on the reins of power. In municipal elections especially, the small
size of the electorate and the limited powers of local government may
inhibit the growth of interest groups powerful enough to outbalance the
weight of a partisan work force. Even when nonpartisan issues and
candidacies are at stake, isolated government employees may seek to
influence voters or their co-workers improperly; but a more real danger
is that a central party structure will mass the scattered powers of
government workers behind a single party platform or slate. Occasional
misuse of the public trust to pursue private political ends is tolerable,
especially because the political views of individual employees may
balance each other out. But party discipline eliminates this diversity and
tends to make abuse systematic. Instead of a handful of employees
pressured into advancing their immediate superior's political ambitions,
the entire government work force may be expected to turn out for many
candidates in every election. In Pawtucket, where parties are a continuing
presence in political campaigns, a carefully orchestrated use of city
employees in support of the incumbent party's candidates is possible. The
danger is scarcely lessened by the openness of Pawtucket's nominating
procedure or the lack of party labels on its ballots.
The third area of proper governmental interest in Letter Carriers
was ensuring that employees achieve advancement on their merits and
that they be free from both coercion and the prospect of favor from
political activity. The district court did not address this factor, but looked
only to the possibility of a civil servant using his position to influence
voters, and held this to be no more of a threat than in the most
nonpartisan of elections. But we think that the possibility of coercion of
employees by superiors remains as strong a factor in municipal elections
as it was in Letter Carriers. Once again, it is the systematic and
coordinated exploitation of public servants for political ends that a
legislature is most likely to see as the primary threat of employees' rights.
Political oppression of public employees will be rare in an entirely
nonpartisan system. Some superiors may be inclined to ride herd on the
politics of their employees even in a nonpartisan context, but without
party officials looking over their shoulders most supervisors will prefer
to let employees go their own ways.
In short, the government may constitutionally restrict its
employees' participation in nominally nonpartisan elections if political
parties play a large role in the campaigns. In the absence of substantial
party involvement, on the other hand, the interests identified by the
Letter Carriers Court lose much of their force. While the employees'
First Amendment rights would normally outbalance these diminished
interests, we do not suggest that they would always do so. Even when
parties are absent, many employee campaigns might be thought to
endanger at least one strong public interest, an interest that looms larger
in the context of municipal elections than it does in the national elections
considered in Letter Carriers. The city could reasonably fear the
prospect of a subordinate running directly against his superior or running
for a position that confers great power over his superior. An employee of
a federal agency who seeks a Congressional seat poses less of a direct
challenge to the command and discipline of his agency than a fireman or
policeman who runs for mayor or city council. The possibilities of
internal discussion, cliques, and political bargaining, should an employee
gather substantial political support, are considerable. (citations omitted)

61
The court, however, remanded the case to the district court for further
proceedings in respect of the petitioners overbreadth charge. Noting that invalidating a
statute for being overbroad is not to be taken lightly, much less to be taken in the dark,
the court held:
The governing case is Broadrick, which introduced the doctrine
of "substantial" overbreadth in a closely analogous case. Under
Broadrick, when one who challenges a law has engaged in
constitutionally unprotected conduct (rather than unprotected speech)
and when the challenged law is aimed at unprotected conduct, "the
overbreadth of a statute must not only be real, but substantial as well,
judged in relation to the statute's plainly legitimate sweep." Two major
uncertainties attend the doctrine: how to distinguish speech from
conduct, and how to define "substantial" overbreadth. We are spared the
first inquiry by Broadrick itself. The plaintiffs in that case had solicited
support for a candidate, and they were subject to discipline under a law
proscribing a wide range of activities, including soliciting contributions
for political candidates and becoming a candidate. The Court found that
this combination required a substantial overbreadth approach. The facts
of this case are so similar that we may reach the same result without
worrying unduly about the sometimes opaque distinction between speech
and conduct.
The second difficulty is not so easily disposed of. Broadrick
found no substantial overbreadth in a statute restricting partisan
campaigning. Pawtucket has gone further, banning participation in
nonpartisan campaigns as well. Measuring the substantiality of a
statute's overbreadth apparently requires, inter alia, a rough balancing
of the number of valid applications compared to the number of
potentially invalid applications. Some sensitivity to reality is needed; an
invalid application that is far-fetched does not deserve as much weight
as one that is probable. The question is a matter of degree; it will never
be possible to say that a ratio of one invalid to nine valid applications
makes a law substantially overbroad. Still, an overbreadth challenger
has a duty to provide the court with some idea of the number of
potentially invalid applications the statute permits. Often, simply reading
the statute in the light of common experience or litigated cases will
suggest a number of probable invalid applications. But this case is
different. Whether the statute is overbroad depends in large part on the
number of elections that are insulated from party rivalry yet closed to
Pawtucket employees. For all the record shows, every one of the city,
state, or federal elections in Pawtucket is actively contested by political
parties. Certainly the record suggests that parties play a major role even
in campaigns that often are entirely nonpartisan in other cities. School
committee candidates, for example, are endorsed by the local Democratic
committee.
The state of the record does not permit us to find overbreadth;
indeed such a step is not to be taken lightly, much less to be taken in the
dark. On the other hand, the entire focus below, in the short period before
the election was held, was on the constitutionality of the statute as
applied. Plaintiffs may very well feel that further efforts are not justified,
but they should be afforded the opportunity to demonstrate that the
charter forecloses access to a significant number of offices, the
candidacy for which by municipal employees would not pose the possible
threats to government efficiency and integrity which Letter Carriers, as
we have interpreted it, deems significant. Accordingly, we remand for

62
consideration of plaintiffs' overbreadth claim. (italics supplied, citations
omitted)
Clearly, Letter Carriers, Broadrick, and Magill demonstrate beyond doubt
that Mancuso v. Taft, heavily relied upon by the ponencia, has effectively been
overruled. As it is no longer good law, the ponencias exhortation that [since] the
Americans, from whom we copied the provision in question, had already stricken down a
similar measure for being unconstitutional[,] it is high-time that we, too, should follow
suit is misplaced and unwarranted.
Accordingly, our assailed Decisions submission that the right to run for public office is
inextricably linked with two fundamental freedoms those of expression and association lies on
barren ground. American case law has in fact never recognized a fundamental right to express ones
political views through candidacy, as to invoke a rigorous standard of review. Bart v. Telford
pointedly stated that [t]he First Amendment does not in terms confer a right to run for public office, and
this court has held that it does not do so by implication either. Thus, ones interest in seeking office, by
itself, is not entitled to constitutional protection. Moreover, one cannot bring ones action under the rubric
of freedom of association, absent any allegation that, by running for an elective position, one is advancing
the political ideas of a particular set of voters.
Prescinding from these premises, it is crystal clear that the provisions challenged in the case at bar,
are not violative of the equal protection clause. The deemed-resigned provisions substantially serve
governmental interests (i.e., (i) efficient civil service faithful to the government and the people rather than
to party; (ii) avoidance of the appearance of political justice as to policy; (iii) avoidance of the danger
of a powerful political machine; and (iv) ensuring that employees achieve advancement on their merits
and that they be free from both coercion and the prospect of favor from political activity). These are
interests that are important enough to outweigh the non-fundamental right of appointive officials and
employees to seek elective office.
En passant, we find it quite ironic that Mr. Justice Nachura cites Clements v. Fashing and Morial,
et al. v. Judiciary Commission of the State of Louisiana, et al. to buttress his dissent. Maintaining that
resign-to-run provisions are valid only when made applicable to specified officials, he explains:
U.S. courts, in subsequent cases, sustained the constitutionality of resign-to-run
provisions when applied to specified or particular officials, as distinguished from all
others, under a classification that is germane to the purposes of the law. These
resign-to-run legislations were not expressed in a general and sweeping provision, and
thus did not violate the test of being germane to the purpose of the law, the second
requisite for a valid classification. Directed, as they were, to particular officials, they
were not overly encompassing as to be overbroad. (emphasis in the original)
This reading is a regrettable misrepresentation of Clements and Morial. The resign-to-run
provisions in these cases were upheld not because they referred to specified or particular officials (vis-vis a general class); the questioned provisions were found valid precisely because the Court deferred to
legislative judgment and found that a regulation is not devoid of a rational predicate simply
because it happens to be incomplete. In fact, the equal protection challenge in Clements revolved
around the claim that the State of Texas failed to explain why some public officials are subject to the
resign-to-run provisions, while others are not. Ruled the United States Supreme Court:
Article XVI, 65, of the Texas Constitution provides that the holders of certain
offices automatically resign their positions if they become candidates for any other
elected office, unless the unexpired portion of the current term is one year or less. The
burdens that 65 imposes on candidacy are even less substantial than those imposed by
19. The two provisions, of course, serve essentially the same state interests. The District
Court found 65 deficient, however, not because of the nature or extent of the provision's
restriction on candidacy, but because of the manner in which the offices are classified.
According to the District Court, the classification system cannot survive equal protection

63
scrutiny, because Texas has failed to explain sufficiently why some elected public officials
are subject to 65 and why others are not. As with the case of 19, we conclude that
65 survives a challenge under the Equal Protection Clause unless appellees can show
that there is no rational predicate to the classification scheme.
The history behind 65 shows that it may be upheld consistent with the "one step
at a time" approach that this Court has undertaken with regard to state regulation not
subject to more vigorous scrutiny than that sanctioned by the traditional principles.
Section 65 was enacted in 1954 as a transitional provision applying only to the 1954
election. Section 65 extended the terms of those offices enumerated in the provision from
two to four years. The provision also staggered the terms of other offices so that at least
some county and local offices would be contested at each election. The automatic
resignation proviso to 65 was not added until 1958. In that year, a similar automatic
resignation provision was added in Art. XI, 11, which applies to officeholders in home
rule cities who serve terms longer than two years. Section 11 allows home rule cities the
option of extending the terms of municipal offices from two to up to four years.
Thus, the automatic resignation provision in Texas is a creature of the State's
electoral reforms of 1958. That the State did not go further in applying the automatic
resignation provision to those officeholders whose terms were not extended by 11 or
65, absent an invidious purpose, is not the sort of malfunctioning of the State's
lawmaking process forbidden by the Equal Protection Clause. A regulation is not devoid
of a rational predicate simply because it happens to be incomplete. The Equal Protection
Clause does not forbid Texas to restrict one elected officeholder's candidacy for another
elected office unless and until it places similar restrictions on other officeholders. The
provision's language and its history belie any notion that 65 serves the invidious
purpose of denying access to the political process to identifiable classes of potential
candidates. (citations omitted and italics supplied)
Furthermore, it is unfortunate that the dissenters took the Morial line that there is no blanket
approval of restrictions on the right of public employees to become candidates for public office out of
context. A correct reading of that line readily shows that the Court only meant to confine its ruling to the
facts of that case, as each equal protection challenge would necessarily have to involve weighing
governmental interests vis--vis the specific prohibition assailed. The Court held:
The interests of public employees in free expression and political association are
unquestionably entitled to the protection of the first and fourteenth amendments. Nothing
in today's decision should be taken to imply that public employees may be prohibited
from expressing their private views on controversial topics in a manner that does not
interfere with the proper performance of their public duties. In today's decision, there is
no blanket approval of restrictions on the right of public employees to become candidates
for public office. Nor do we approve any general restrictions on the political and civil
rights of judges in particular. Our holding is necessarily narrowed by the methodology
employed to reach it. A requirement that a state judge resign his office prior to becoming
a candidate for non-judicial office bears a reasonably necessary relation to the
achievement of the state's interest in preventing the actuality or appearance of judicial
impropriety. Such a requirement offends neither the first amendment's guarantees of free
expression and association nor the fourteenth amendment's guarantee of equal protection
of the laws. (italics supplied)

Indeed, the Morial court even quoted Broadrick and stated that:
In any event, the legislature must have some leeway in determining which of its
employment positions require restrictions on partisan political activities and which may

64
be left unregulated. And a State can hardly be faulted for attempting to limit the positions
upon which such restrictions are placed. (citations omitted)
V.
Section 4(a) of Resolution 8678, Section 13 of RA 9369, and Section 66 of the Omnibus Election
Code Do Not Suffer from Overbreadth
Apart from nullifying Section 4(a) of Resolution 8678, Section 13 of RA 9369, and Section 66 of
the Omnibus Election Code on equal protection ground, our assailed Decision struck them down for being
overbroad in two respects, viz.:
(1) The assailed provisions limit the candidacy of all civil servants holding appointive posts
without due regard for the type of position being held by the employee seeking an elective
post and the degree of influence that may be attendant thereto; and
(2) The assailed provisions limit the candidacy of any and all civil servants holding appointive
positions without due regard for the type of office being sought, whether it be partisan or
nonpartisan in character, or in the national, municipal or barangay level.
Again, on second look, we have to revise our assailed Decision.
i.

Limitation on Candidacy Regardless of Incumbent Appointive Officials Position, Valid

According to the assailed Decision, the challenged provisions of law are overly broad because
they apply indiscriminately to all civil servants holding appointive posts, without due regard for the type
of position being held by the employee running for elective office and the degree of influence that may be
attendant thereto.
Its underlying assumption appears to be that the evils sought to be prevented are extant only when
the incumbent appointive official running for elective office holds an influential post.
Such a myopic view obviously fails to consider a different, yet equally plausible, threat to the
government posed by the partisan potential of a large and growing bureaucracy: the danger of systematic
abuse perpetuated by a powerful political machine that has amassed the scattered powers of
government workers so as to give itself and its incumbent workers an unbreakable grasp on the reins of
power. As elucidated in our prior exposition:
Attempts by government employees to wield influence over others or to make
use of their respective positions (apparently) to promote their own candidacy may seem
tolerable even innocuous particularly when viewed in isolation from other similar
attempts by other government employees. Yet it would be decidedly foolhardy to
discount the equally (if not more) realistic and dangerous possibility that such seemingly
disjointed attempts, when taken together, constitute a veiled effort on the part of an
emerging central party structure to advance its own agenda through a carefully
orchestrated use of [appointive and/or elective] officials coming from various levels of
the bureaucracy.
[T]he avoidance of such a politically active public work force which could
give an emerging political machine an unbreakable grasp on the reins of power is
reason enough to impose a restriction on the candidacies of all appointive public officials
without further distinction as to the type of positions being held by such employees or the
degree of influence that may be attendant thereto. (citations omitted)
ii.

Limitation on Candidacy Regardless of Type of Office Sought, Valid

65
The assailed Decision also held that the challenged provisions of law are overly broad because
they are made to apply indiscriminately to all civil servants holding appointive offices, without due regard
for the type of elective office being sought, whether it be partisan or nonpartisan in character, or in the
national, municipal or barangay level.
This erroneous ruling is premised on the assumption that the concerns of a truly partisan office
and the temptations it fosters are sufficiently different from those involved in an office removed from
regular party politics [so as] to warrant distinctive treatment, so that restrictions on candidacy akin to
those imposed by the challenged provisions can validly apply only to situations in which the elective
office sought is partisan in character. To the extent, therefore, that such restrictions are said to preclude
even candidacies for nonpartisan elective offices, the challenged restrictions are to be considered as
overbroad.
Again, a careful study of the challenged provisions and related laws on the matter will show that
the alleged overbreadth is more apparent than real. Our exposition on this issue has not been repudiated,
viz.:
A perusal of Resolution 8678 will immediately disclose that the rules and
guidelines set forth therein refer to the filing of certificates of candidacy and nomination
of official candidates of registered political parties, in connection with the May 10,
2010 National and Local Elections. Obviously, these rules and guidelines, including the
restriction in Section 4(a) of Resolution 8678, were issued specifically for purposes of the
May 10, 2010 National and Local Elections, which, it must be noted, are decidedly
partisan in character. Thus, it is clear that the restriction in Section 4(a) of RA 8678
applies only to the candidacies of appointive officials vying for partisan elective posts in
the May 10, 2010 National and Local Elections. On this score, the overbreadth challenge
leveled against Section 4(a) is clearly unsustainable.
Similarly, a considered review of Section 13 of RA 9369 and Section 66 of the
Omnibus Election Code, in conjunction with other related laws on the matter, will
confirm that these provisions are likewise not intended to apply to elections for
nonpartisan public offices.
The only elections which are relevant to the present inquiry are the elections for
barangay offices, since these are the only elections in this country which involve
nonpartisan public offices.
In this regard, it is well to note that from as far back as the enactment of the
Omnibus Election Code in 1985, Congress has intended that these nonpartisan barangay
elections be governed by special rules, including a separate rule on deemed resignations
which is found in Section 39 of the Omnibus Election Code. Said provision states:
Section 39. Certificate of Candidacy. No person shall be elected
punong barangay or kagawad ng sangguniang barangay unless he files a
sworn certificate of candidacy in triplicate on any day from the
commencement of the election period but not later than the day before
the beginning of the campaign period in a form to be prescribed by the
Commission. The candidate shall state the barangay office for which he
is a candidate.
xxxx
Any elective or appointive municipal, city, provincial or national official
or employee, or those in the civil or military service, including those in
government-owned or-controlled corporations, shall be considered

66
automatically resigned upon the filing of certificate of candidacy for a
barangay office.
Since barangay elections are governed by a separate deemed resignation rule,
under the present state of law, there would be no occasion to apply the restriction on
candidacy found in Section 66 of the Omnibus Election Code, and later reiterated in the
proviso of Section 13 of RA 9369, to any election other than a partisan one. For this
reason, the overbreadth challenge raised against Section 66 of the Omnibus Election
Code and the pertinent proviso in Section 13 of RA 9369 must also fail.
In any event, even if we were to assume, for the sake of argument, that Section 66 of the Omnibus
Election Code and the corresponding provision in Section 13 of RA 9369 are general rules that apply also
to elections for nonpartisan public offices, the overbreadth challenge would still be futile. Again, we
explained:
In the first place, the view that Congress is limited to controlling only partisan
behavior has not received judicial imprimatur, because the general proposition of the
relevant US cases on the matter is simply that the government has an interest in
regulating the conduct and speech of its employees that differs significantly from those it
possesses in connection with regulation of the speech of the citizenry in general.
Moreover, in order to have a statute declared as unconstitutional or void on its
face for being overly broad, particularly where, as in this case, conduct and not pure
speech is involved, the overbreadth must not only be real, but substantial as well, judged
in relation to the statutes plainly legitimate sweep.
In operational terms, measuring the substantiality of a statutes overbreadth
would entail, among other things, a rough balancing of the number of valid applications
compared to the number of potentially invalid applications. In this regard, some
sensitivity to reality is needed; an invalid application that is far-fetched does not deserve
as much weight as one that is probable. The question is a matter of degree. Thus,
assuming for the sake of argument that the partisan-nonpartisan distinction is valid and
necessary such that a statute which fails to make this distinction is susceptible to an
overbreadth attack, the overbreadth challenge presently mounted must demonstrate or
provide this Court with some idea of the number of potentially invalid elections (i.e. the
number of elections that were insulated from party rivalry but were nevertheless closed to
appointive employees) that may in all probability result from the enforcement of the
statute.
The state of the record, however, does not permit us to find overbreadth.
Borrowing from the words of Magill v. Lynch, indeed, such a step is not to be taken
lightly, much less to be taken in the dark, especially since an overbreadth finding in this
case would effectively prohibit the State from enforcing an otherwise valid measure
against conduct that is admittedly within its power to proscribe.
This Court would do well to proceed with tiptoe caution, particularly when it comes to the
application of the overbreadth doctrine in the analysis of statutes that purportedly attempt to restrict or
burden the exercise of the right to freedom of speech, for such approach is manifestly strong medicine
that must be used sparingly, and only as a last resort.
In the United States, claims of facial overbreadth have been entertained only where, in the
judgment of the court, the possibility that protected speech of others may be muted and perceived
grievances left to fester (due to the possible inhibitory effects of overly broad statutes) outweighs the
possible harm to society in allowing some unprotected speech or conduct to go unpunished. Facial
overbreadth has likewise not been invoked where a limiting construction could be placed on the
challenged statute, and where there are readily apparent constructions that would cure, or at least
substantially reduce, the alleged overbreadth of the statute.

67
In the case at bar, the probable harm to society in permitting incumbent appointive officials to
remain in office, even as they actively pursue elective posts, far outweighs the less likely evil of having
arguably protected candidacies blocked by the possible inhibitory effect of a potentially overly broad
statute.
In this light, the conceivably impermissible applications of the challenged statutes which are, at
best, bold predictions cannot justify invalidating these statutes in toto and prohibiting the State from
enforcing them against conduct that is, and has for more than 100 years been, unquestionably within its
power and interest to proscribe. Instead, the more prudent approach would be to deal with these
conceivably impermissible applications through case-by-case adjudication rather than through a total
invalidation of the statute itself.
Indeed, the anomalies spawned by our assailed Decision have taken place. In his Motion for
Reconsideration, intervenor Drilon stated that a number of high-ranking Cabinet members had already
filed their Certificates of Candidacy without relinquishing their posts. Several COMELEC election
officers had likewise filed their Certificates of Candidacy in their respective provinces. Even the
Secretary of Justice had filed her certificate of substitution for representative of the first district of
Quezon province last December 14, 2009 even as her position as Justice Secretary includes supervision
over the City and Provincial Prosecutors, who, in turn, act as Vice-Chairmen of the respective Boards of
Canvassers. The Judiciary has not been spared, for a Regional Trial Court Judge in the South has thrown
his hat into the political arena. We cannot allow the tilting of our electoral playing field in their favor.
For the foregoing reasons, we now rule that Section 4(a) of Resolution 8678 and Section 13 of
RA 9369, which merely reiterate Section 66 of the Omnibus Election Code, are not unconstitutionally
overbroad.
IN VIEW WHEREOF, the Court RESOLVES to GRANT the respondents and the intervenors
Motions for Reconsideration; REVERSE and SET ASIDE this Courts December 1, 2009 Decision;
DISMISS the Petition; and ISSUE this Resolution declaring as not UNCONSTITUTIONAL (1) Section
4(a) of COMELEC Resolution No. 8678, (2) the second proviso in the third paragraph of Section 13 of
Republic Act No. 9369, and (3) Section 66 of the Omnibus Election Code.
1. The scope of the equal protection clause, 95 SCRA

420

2. Equal protection of the law, 13 SCRA 266


3. Requisites for a valid classificationRead:
1. People vs. Cayat, 68 Phil. 12
a.
b.
c.
d.

There must be real and substantial distinctions;


It must be germane tot he purposes of the law;
It must not be limited to existing conditions only; and
It must apply equally to all members of the same class.
2. Read again, Association of Small Landowners vs. Sec. of Agrarian reform, July 14, 1989
4. Equal protection in generalRead:

1. P. vs. Vera, 65 Phil. 56


2. TIU VS. CA, 301 SCRA 278 (There is real and substantial distinction between business inside
the Subic Special Economic Zone and outside wherein those inside are exempt from other taxes

68
as a result of the policy of the government to accelerate the development of the portion of Subic
left by the Americans)
3. IMELDA MARCOS VS. CA, 278 SCRA 843
4. HIMAGAN VS. PEOPLE, October 7, 1994
The fact that policemen charged with a criminal offense punishable by more than
6 years are to be suspended during the entire duration of the case unlike other government
employees is valid since it rests on valid classification because policemen carry weapons and the
badge of the law which can be used to harass or intimidate witnesses against them.
There is no violation of the equal protection clause when the
Compensation and Classification Act of 1989 includes certain
allowances and fringe benefits into the standardized salaries of
most government employees but not to police and military
personnel.
VICTORIA C. GUTIERREZ,
et al vs. DEPARTMENT OF BUDGET
AND MANAGEMENT,
G.R. No. 153266, March 18, 2010
ABAD, J.:
These consolidated cases question the inclusion of certain allowances and fringe benefits into the
standardized salary rates for offices in the national government, state universities and colleges, and local
government units as required by the Compensation and Position Classification Act of 1989 and
implemented through the challenged National Compensation Circular 59 (NCC 59) while the said
allowances and other fringe benefits are not included insofar as members of the police and military are
concerned.
The Facts and the Case
Congress enacted in 1989 Republic Act (R.A.) 6758, called the Compensation and Position
Classification Act of 1989 to rationalize the compensation of government employees. Its Section 12
directed the consolidation of allowances and additional compensation already being enjoyed by
employees into their standardized salary rates. But it exempted certain additional compensations that the
employees may be receiving from such consolidation. Thus:
Section 12. Consolidation of Allowances and Compensation. -- All
allowances, except for representation and transportation allowances; clothing and
laundry allowances; subsistence allowance of marine officers and crew on board
government vessels and hospital personnel; hazard pay; allowances of foreign
service personnel stationed abroad; and such other additional compensation not
otherwise specified herein as may be determined by the DBM, shall be deemed
included in the standardized salary rates herein prescribed. Such other additional
compensation, whether in cash or in kind, being received by incumbents only as of
July 1, 1989 not integrated into the standardized salary rates shall continue to be
authorized.
The Issue:
Whether or not the grant of COLA to military and police personnel
to the exclusion of other government employees violates the equal
protection clause.
The Courts Ruling

69
At the heart of the present controversy is Section 12 of R.A. 6758 as quoted above. .
As will be noted from the first sentence above, all allowances were deemed integrated into the
standardized salary rates except the following:
(1)

representation and transportation allowances;

(2)

clothing and laundry allowances;

(3)

subsistence allowances of marine officers and crew on board government vessels;

(4)

subsistence allowances of hospital personnel;

(5)

hazard pay;

(6)

allowances of foreign service personnel stationed abroad; and

(7)

such other additional compensation not otherwise specified in Section 12 as may be


determined by the DBM.

But, while the provision enumerated certain exclusions, it also authorized the DBM to identify
such other additional compensation that may be granted over and above the standardized salary rates. In
Philippine Ports Authority Employees Hired After July 1, 1989 v. Commission on Audit, the Court has
ruled that while Section 12 could be considered self-executing in regard to items (1) to (6), it was not so
in regard to item (7). The DBM still needed to amplify item (7) since one cannot simply assume what
other allowances were excluded from the standardized salary rates. It was only upon the issuance and
effectivity of the corresponding implementing rules and regulations that item (7) could be deemed legally
completed.
Clearly, COLA is not in the nature of an allowance intended to reimburse expenses incurred by
officials and employees of the government in the performance of their official functions. It is not
payment in consideration of the fulfillment of official duty. As defined, cost of living refers to the level
of prices relating to a range of everyday items or the cost of purchasing those goods and services which
are included in an accepted standard level of consumption. Based on this premise, COLA is a benefit
intended to cover increases in the cost of living. Thus, it is and should be integrated into the standardized
salary rates.
Petitioners contend that the continued grant of COLA to military and police to the exclusion of
other government employees violates the equal protection clause of the Constitution.
But as respondents pointed out, while it may appear that petitioners are questioning the
constitutionality of these issuances, they are in fact attacking the very constitutionality of Section 11 of
R.A. 6758. It is actually this provision which allows the uniformed personnel to continue receiving their
COLA over and above their basic pay, thus:
Section 11. Military and Police Personnel. - The base pay of uniformed
personnel of the Armed Forces of the Philippines and the Integrated National Police
shall be as prescribed in the salary schedule for these personnel in R.A. 6638 and
R.A. 6648. The longevity pay of these personnel shall be as prescribed under R.A.
6638, and R.A. 1134 as amended by R.A. 3725 and R.A. 6648: Provided, however,
That the longevity pay of uniformed personnel of the Integrated National Police
shall include those services rendered as uniformed members of the police, jail and
fire departments of the local government units prior to the police integration.

70
All existing types of allowances authorized for uniformed personnel of the
Armed Forces of the Philippines and Integrated National Police such as cost of
living allowance, longevity pay, quarters allowance, subsistence allowance, clothing
allowance, hazard pay and other allowances shall continue to be authorized.
Nothing is more settled than that the constitutionality of a statute cannot be attacked collaterally
because constitutionality issues must be pleaded directly and not collaterally.
In any event, the Court is not persuaded that the continued grant of COLA to the uniformed
personnel to the exclusion of other national government officials run afoul the equal protection clause of
the Constitution. The fundamental right of equal protection of the laws is not absolute, but is subject to
reasonable classification. If the groupings are characterized by substantial distinctions that make real
differences, one class may be treated and regulated differently from another. The classification must also
be germane to the purpose of the law and must apply to all those belonging to the same class.
To be valid and reasonable, the classification must satisfy the following requirements: (1) it must
rest on substantial distinctions; (2) it must be germane to the purpose of the law; (3) it must not be limited
to existing conditions only; and (4) it must apply equally to all members of the same class.
It is clear from the first paragraph of Section 11 that Congress intended the uniformed personnel
to be continually governed by their respective compensation laws. Thus, the military is governed by R.A.
6638, as amended by R.A. 9166 while the police is governed by R.A. 6648, as amended by R.A. 6975.
Certainly, there are valid reasons to treat the uniformed personnel differently from other national
government officials. Being in charged of the actual defense of the State and the maintenance of internal
peace and order, they are expected to be stationed virtually anywhere in the country. They are likely to be
assigned to a variety of low, moderate, and high-cost areas. Since their basic pay does not vary based on
location, the continued grant of COLA is intended to help them offset the effects of living in higher cost
areas.
2-A Gumabon vs. Director of Prisons, 37 SCRA 420
2-b. PANFILO LACSON VS. SANDIGANBAYAN, January 20, 1999
2-b-1. BASCO VS. PAGCOR, May 14, 1991
No violation of the equal protection clause if Congress would legalize cockfighting and horse racing since police power could regulate gambling.
3. PHILIPPINE JUDGES ASSOCIATION VS. PRADO, November 11, 1993
There is no valid distinction for a law removing the franking privilege of the
judiciary while leaving the same to the Executive and Legislative despite the fact that there is
considerable volume of mails from the courts. Loss of revenue is not a valid ground unless it
would be withdrawn to all government offices.
FRANCISCO TATAD vs. THE SECRETARY OF DEPARTMENT OF ENERGY, G. R. No.
124360, November 5, 1997
EDCEL LAGMAN, JOKER ARROYO, ENRIQUE GARCIA, WIGBERTO TANADA,
FLAG HUMAN RIGHTS FOUNDATION vs. HON. RUBEN TORRES, HON.
FRANCISCO VIRAY, PETRON, FILIPINAS SHELL and CALTEX PHILIPPINES, G.R.
No. 127867, November 5, 1997.
PUNO, J.

71
These petitions challenge the constitutionality of Republic Act No. 8180 entitled An Act
Deregulating the Downstream Oil Industry and for Other Purposes. RA 8180 seeks to end 26
years of government regulation of the downstream oil industry.
The facts:
1. Prior to 1971, no government agency was regulating the oil industry. New players were free to
enter the oil market without any government interference. There were four (4) refining companies
at that time. SHELL, CALTEX, BATAAN REFINING COMPANY and FILOIL MARKETING
and six (6) petroleum marketing companies: ESSO, FILOIL, CALTEX, GETTY, MOBIL and
SHELL;
2. In 1971, the country was driven to its knees by the crippling oil crisis and in order to remedy the
same, the OIL INDUSTRY COMMISSION ACT was enacted REGULATING the oil industry ;
3. On November 9, 1973, then President Marcos created the Philippine national Oil Corporation
(PNOC) t break the control of the foreigners to the oil industry. It acquired ownership of ESSO
Philippines and Filoil and likewise bought controlling shares of the Bataan Refining Corporation.
PNOC then operated under the business name PETRON CORPORATION and for the first time,
there was a Filipino presence in the Philippine oil market;
4. In 1984, Pres. Marcos through section 8 of PD 1956 created the OIL PRICE STABILIZATION
FUND (OPSF) to cushion the effects of frequent changes in the price of oil caused by the
exchange rate adjustments or increase of the world market prices crude oil and imported
petroleum products;
5. By 1985, only three (3) oil companies were left operating in the country. These are: CALTEX,
FILIPINAS SHELL and PNOC;
6. In May, 1987, Pres. Corazon Aquino signed Executive Order No. 172 creating the ENERGY
REULATORY BOARD to regulate the business of importing, exporting, shipping, transporting,
processing, refining, marketing and distributing energy resources WHEN WARRANTED AND
ONLY WHEN PUBLIC NECESSITY REQUIRES. The Board was empowered to fix and
regulate the prices of petroleum products and other related merchandise;
7. In March, 1996, Congress enacted RA 8180 deregulating the Oil Industry not later than March,
1997. The law requires that the implementation of the regulation, shall as far as practicable be
made at a time WHEN THE PRICES OF CRUDE OIL AND PETROLEUM PRODUCTS IN
THE WORLD ARE DECLINING AND WHEN THE EXCHANGE RATE OF THE PESO IN
RELATION TO THE US DOLLAR; IS STABLE;
8. On February 8, 1997, Executive Order No. 372 was issued by President Fidel Ramos
implementing full deregulation ON THE GROUND THAT THE OPSF FUND HAS BEEN
DEPLETED;
9. The petitioners questioned the constitutionality of RA 8180 on the following grounds:
a.
b.

Section 5 of RA 8180 violates the equal protection clause of the Constitution;


The imposition of different tariff rates does not deregulate the oil industry and even
bars the entry of other players in the oil industry but instead effectively protects the interest
of the oil companies with existing refineries. Thus, it runs counter to the objective of the law
to foster a truly competitive market; The inclusion of Sec. 5 [b] providing for tariff
differential violates Section 26 [1] of Art. VI of the 1987 Constitution which requires every
law to have only one subject which should be expressed in the title thereof;
c.
Section 15 of RA 8180 and EO No. 392 are unconstitutional for undue delegation of
legislative power to the President and the Secretary of Energy;
d.
EO 392 implementing the full deregulation of the oil industry is unconstitutional
since it is arbitrary and unreasonable since it was enacted due to the alleged depletion of the
OPSF fund, a condition which is not found in RA No. 8180;
e.
Section 15 of RA 8180 is unconstitutional for it allows the formation of a de facto
cartel among three existing oil companies in violation of the Constitution prohibiting against
monopolies, combination in restraint of trade and unfair competition.

72
The provisions of the law being questioned as unconstitutional are Section 5 [b] and Section 15
which provide:
Section 5 [b] Any law to the contrary notwithstanding and starting with the
effectivity of this Act, tariff duty shall be imposed and collected on imported
crude oil at the rate of 3% and imported refined petroleum products at the rate of
seven (7%) percent, except fuel oil and LPG, the rate for which shall be the
same; Provided, that beginning on January 1, 2004, the tariff rate on imported
crude oil and refined petroleum products shall be the same; Provided, further,
that this provision may be amended only by an Act of Congress.
xxx
Section 15. Implementation of full deregulation. Pursuant to Section 5 [e] of
RA 7638, the DOE, upon approval of the President, implement full
deregulation of the downstream oil industry not later than March, 1997. As far
as practicable, the DOE shall time the full deregulation when the prices of
crude oil and petroleum products in the world market are declining and when
the exchange rate of the peso in relation to the US dollar is stable.
The issues are:
Procedural Issues:
a. Whether or not the petitions raise justiciable controversy; and
b. Whether or not the petitioners have the standing to question the validity of the subject law and
executive order.
Substantive Issues:
a. Whether or not Section 5 of RA 8180 violates the one titleone subject requirement of the
Constitution;
b. Whether or not Section 5 of RA 8180 violates the equal protection clause of the Constitution;
c. Whether section 15 violates the constitutional prohibition on undue delegation of legislative
power;
d. Whether or not EO 392 is arbitrary and unreasonable; and
e. Whether or not RA 8180 violates the constitutional prohibition against monopolies, combinations
in restraint of trade and unfair competition.
HELD:
1. Judicial power includes not only the duty of the courts to settle controversies involving rights but
also the duty to determine whether or not there has been grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any agency or branch of the government. The courts,
as guardians of the Constitution, have the inherent authority to determine whether a statute
enacted by the legislature transcends the limit imposed by the fundamental law. When the statute
violates the Constitution, it is not only the right of the judiciary to declare such act as
unconstitutional and void.
2. The question of locus standi must likewise fall . As held in KAPATIRAN NG MGA
NAGLILINGKOD SA PAMAHALAAN NG PILIPINAS, INC. VS. TAN, it was held that:
Objections to taxpayers suit for lack of sufficient personality, standing, or interest are , however,
in the main procedural matters. CONSIDERING THE IMPORTANCE OF THE CASES TO THE
PUBLIC, AND IN KEEPING WITH THE COURTS DUTY TO DETERMINE WHETHER OR
NOT THE OTHER BRANCHEDS OF GOVERNMENT HAVE KEPT THEMSELVES WITHIN
THE LIMITS OF THE CONSTITUTION AND THE LAWS AND THAT THEY HAVE NOT

73
ABUSE THE DISCRETION GIVEN TO THEM, THE COURT HAS BRUSHED ASIDE
TECHNICALITIES OF PROCEDURE AND HAS TAKEN COGNIZANCE OF THESE
PETITIONS.
There is no disagreement on the part of the parties as to the far-reaching importance of the
validity of RA 8180. Thus, there is no good sense in being hyper-technical on the standing of the
petitioners for they pose issues which are significant to our people and which deserve our
forthright resolution.
3. It is contended that Section 5[b[ of RA 8180 on tariff differentials violates the Constitutional
prohibition requiring every law to have only one subject which should be expressed in its title.
We do not concur with this contention. As a policy, the Court has adopted a liberal construction of
the one title---one subject rule. We have consistently ruled that the title need not mirror, fully
index or catalogue all contents and minute details of a law. A law having a single general subject
indicated in the title may contain a number of provisions, no matter how diverse they may be, so
long as they are not inconsistent with or foreign to the general subject, and may be considered in
furtherance of such subject by providing for the method and means of carrying out the general
subject. We hold that Section 5 providing for tariff differential is germane to the subject of RA
8180 which is the deregulation of the downstream oil industry.
4. The contention that there is undue delegation of legislative power when it authorized the
President to determine when deregulation starts is without merit. The petitioners claim that the
phrases as far as practicable, decline of crude oil prices in the world market and stability of
the peso exchange rate to the US dollar are ambivalent, unclear and inconcrete in meaning and
could not therefore provide the determinate or determinable standards which can guide the
President in his decision to fully deregulate the oil industry. The power of Congress to delegate
the execution of laws has long been settled by this Court in 1916 in the case of COMPANIA
GENERAL DE TABACOS DE FILIPINA VS. THE BOARD OF PUBLIC UTILITY
COMMISSIONERS WHERE IT WAS HELD THAT:
The true distinction is between the delegation of power to make the law , which necessarily
involves a discretion as to what it shall be, and conferring authority or discretion as to its
execution, to be exercised under and in pursuance of the law. The first cannot be done; to the
latter, no valid objection can be made.
Two tests have been developed to determine whether the delegation of the power to
execute laws does not involve the abdication of the power to make law itself. We delineated the
metes and bounds of these tests in EASTERM SHIPPING LINES VS. POEA, thus:
There are two accepted tests to determine whether or not there is a valid delegation of legislative
power , viz: the completeness test and the sufficiency of standard test. Under the first test, the law
must be complete in all its terms and conditions when it leaves the legislative such that when it
reaches the delegate, the only thing he will do is enforce it. Under the sufficient standard test,
there must be adequate guidelines or limitations in the law to map out the boundaries of the
delegates authority and prevent the delegation from running riot. BOTH TESTS ARE
INTENDED TO PREVENT A TOTAL TRANSFERENCE OF LEGISLATIVE AUTHORITY TO
THE DELEGATE, WHO IS NOT ALLOWED TO STEP INTO THE SHOES OF THE
LEGISLATURE AND EXERCISE A POWER ESSENTIALLY LEGISLATIVE.
The validity of delegating legislative power is now a quiet area in our constitutional landscape
because such has become an inevitability in light of the increasing complexity of the task of
government. In fact, in HIRABAYASHI VS. UNITED STATES, the Supreme Court through
Justice ISAGANI CRUZ held that even if the law does not expressly pinpoint the standard,
THE COURTS WILL BEND BACKWARD TO LOCATE THE SAME ELSEWHERE IN
ORDER TO SPARE THE STATUTE; IF IT CAN, FROM CONSTITUTIONAL INFIRMITY.

74
5. EO No. 392 failed to follow faithfully the standards set by RA 8180 when it considered the
extraneous factor of depletion of the OPSF Fund. The misapplication of this extra factor cannot
be justified. The executive is bereft of any right to alter either by addition or subtraction the
standards set by RA 8180 for it has no power to make laws. To cede to the executive the power to
make laws would invite tyranny and to transgress the separation of powers. The exercise of
delegated power is given a strict scrutiny by courts for the delegate is a mere agent whose action
cannot infringe the terms of the agency.
6. Section 19 of Article XII of the Constitution provides:
The state shall regulate or prohibit monopolies when the public interests so requires. No
combinations in restraint of trade or unfair competition shall be allowed.
A monopoly is a privilege or peculiar advantage vested in one or more persons or companies,
consisting of the exclusive right or power to carry on a particular business or trade, manufacture
a particular article or control the sale or the whole market structure in which one or only a few
firms dominate the total sales of a product or service. On the other hand, a combination in
restraint of trade is an agreement or understanding between two or more persons, in the form of
contract, trust, pool, holding company, for the purpose of unduly restricting competition,
monopolizing trade and commerce in a certain commodity, controlling its production,
distribution and price or otherwise interfering with freedom of trade without statutory authority.
Combination in restraint of trade refers to means while monopoly refers to the end.
Respondents aver that the 4% tariff differential is designed to encourage new entrants to invest in
refineries. They stress that the inventory requirement is meant to guaranty continuous domestic
supply of petroleum and to discourage fly-by-night operators. They also claim that the
prohibition against predatory pricing is intended to protect prospective entrants.
The validity of the assailed provisions of RA 8180 has to be decided in the light of the letter and
spirit of Section 19, Art. XII of the Constitution. While the Constitution embraced free enterprise
as an economic creed, it did not prohibit per se the operation of monopolies which can, however,
be regulated in the public interest. This distinct free enterprise system is dictated by the need to
achieve the goals of our national economy as defined under Section 1, Art. XII of the Constitution
which are: more equitable distribution of opportunities, income and wealth; a sustained increase
in the amount of goods and services produced by the nation for all, especially the underprivileged
. It also calls for the State to protect Filipino enterprises against unfair and trades practices.
The provisions on 4% tariff differential, predatory pricing and inventory requirement blocks the
entry of other players and give undue advantage to the 3 oil companies resulting to monopolies or
unfair competition. This is so because it would take billions for new players to construct
refineries, and to have big inventories. This would effectively prevent new players.
In the case at bar, it cannot be denied that our oil industry is operated and controlled by an
oligopoly (dominated by a handful of players) and a foreign oligopoly at that. As the dominant
players, SHELL, CALTEX & PETRON boast of existing refineries of various capacities. The
tariff differential of 4% works to their immense advantage. Yet, this is only one edge on tariff
differential. THE OTHER EDGE CUTS AND CUTS DEEP IN THE HEART OF THEIR
COMPETITORS. IT ERECTS HIGH BARRIERS TO NE PLAYERS. New players in order to
equalize must build their refineries worth billions of pesos. Those without refineries had to
compete with a higher cost of 4%.They will be competing on an uneven field.
The provision on inventory widens the advantage of PETRON, SHELL AND CALTEX against
prospective new players. The three (3) could easily comply with the inventory requirement in
view of their numerous storage facilities. Prospective competitors again find compliance oft his
requirement difficult because of prohibitive cost in constructing new storage facilities. The net
effect would be to effectively prohibit the entrance of new players.

75
Now comes the prohibition on predatory pricing or selling or offering to sell any product at a
price unreasonably below the industry average cost so as to attract customers to the detriment of
the competitors. According to HOVENKAMP:
The rationale for predatory pricing is the sustaining of losses today that will give a firm
monopoly profits in the future. The monopoly profits will never materialize, however, if the
market is flooded with new entrants as soon as the successful predator attempts to raise its
price. Predatory pricing will be profitable only if the market contains significant barriers to
new entry.
Coupled with the 4% tariff differential and the inventory requirement, the predatory pricing is a
significant barrier which discourage new players to enter the oil market thereby promoting unfair
competition, monopoly and restraint of trade which are prohibited by the Constitution.
2-d.LACSON VS. SANDIGANBAYAN, January 20, 1999
3. Taxicab Operators vs. BOT, September 30,l982
4. Bautista vs. Juinio,127 SCRA 329
5. Dumlao vs. COMELEC, 95 SCRA 392
6. Villegas vs. Hiu, 86 SCRA 270
7. Ceniza vs. COMELEC, 95 SCRA 763
8. UNIDO vs. COMELEC, 104 SCRA 38
9. Nunez vs. Sandiganbayan, 111 SCRA 433(Read also the dissenting opinion of Justice
Makasiar
10. Sison vs. Ancheta, 130 SCRA 654
11. Citizens Surety vs. Puno, 119 SCRA 216
12. Peralta vs. COMELEC, 82 SCRA 30
13. Hawaiian-Phil. Co. vs. Asociacion, 151 SCRA 306
14. Ormoc Sugar Co. vs. Ormoc City, 22 SCRA 603
15. Flores vs. COMELEC, 184 SCRA 484
CHAPTER IV - THE SEARCH
AND SEIZURE PROVISION

Section 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.
NOTE: Applicable provisions of the Human Security Act/Anti-Terrorism Law, Republic
Act No. 9372, Approved on March 6, 2007 and effective on July 15, 2007 (This Law
shall be automatically suspended one (1) month before and two (2) months after the
holding of any election)
Sec. 18. Period of detention without judicial warrant of arrest.- The provisions of Article
125 of the Revised Penal Code, notwithstanding, any police or law enforcement
personnel, who, having been duly authorized in writing by the Anti-Terrorism
Council has taken custody of a person charged with or suspected of the crime of
terrorism or the crime of conspiracy to commit terrorism shall, WITHOUT INCURRING
ANY CRIMINAL LIABILITY FOR DELAY IN THE DELIVERY OF DETAINED
PERSONS TO THE PROPER JUDICIAL AUTHORITIES, DELIVER SAID

76
CHARGED OR SUSPECTED PERSON TO THE PROPER JUDICIAL AUTHORITY
WITHIN A PERIOD OF THREE (3) DAYS counted from the moment said charged or
suspected person has been apprehended or arrested, detained, and taken into custody by
the said police, or law enforcement personnel: Provided, That the arrest of those
suspected of the crime of terrorism or conspiracy to commit terrorism must result from
the surveillance under Section 7 and examination of bank deposits under Section 27 pf
this Act.
The police or law enforcement personnel concerned shall, before detaining the
person suspected of the crime of terrorism, present him or her before any judge at the
latters residence or office nearest the place where the arrest took place at any time of the
day or night. It shall be the duty of the judge, among other things, to ascertain the identity
of the police or law enforcement personnel and the person or persons they have arrested
and presented before him or her, to inquire of them the reasons why they have arrested
the person and determine by questioning and personal observation whether or not the
subject has been subjected to any physical, moral or psychological torture by whom and
why. The judge shall then submit a written report of what he/she had observed when the
subject was brought before him to the proper court that has jurisdiction over the case of
the person thus arrested.
The judge shall forthwith submit his report within 3 calendar days from the time
the suspect was brought to his/her residence or office.
Immediately after taking custody of a person charged with or suspected of the
crime of terrorism or conspiracy to commit terrorism, the police or law enforcement
personnel shall notify in writing the judge of the court nearest the place of apprehension
or arrest; provided, That where the arrest is made during Saturdays, Sundays, holidays or
after office hours, the written notice shall be served at the residence of the judge nearest
the place where the accused was arrested. The penalty of 10 years and 1 day to 12 years
imprisonment shall be imposed upon the police or law enforcement personnel who fails
to notify any judge as provided in the preceding paragraph.
Section 19. Period of Detention in the event of an actual or imminent terrorist
attack.- In the vent of an actual or imminent terrorist attack,, suspects may not be
detained for more than three days without the written approval of a municipal, city,
provincial or regional official of a Human Rights Commission, or judge of the municipal,
regional trial court, the Sandiganbayan or a justice of the Court of Appeals nearest the
place of arrest. If the arrest is made during Saturdays, Sundays or holidays, or after office
hours, the arresting police of law enforcement personnel shall bring the person thus
arrested to the residence of any of the officials mentioned above that is nearest the place
where the accused was arrested. The approval in writing of any of the said officials shall
be secured by the police or law enforcement personnel concerned within five days after
the date of the detention of the persons concerned; Provided, however, That within three
days after the detention the suspects whose connection with the terror attack or threat is
not established, shall be released immediately.
Section 26 provides that persons who have been charged with terrorism or
conspiracy to commit terrorism---even if they have been granted bail because evidence of
guilt is not strongcan be:

Detained under house arrest;


Restricted from traveling; and/or
Prohibited from using any cellular phones, computers, or other means of communications
with people outside their residence.

77
Section 39. Seizure and Sequestration.- The deposits and their outstanding balances,
placements, trust accounts, assets, and records in any bank or financial institution,
moneys, businesses, transportation and communication equipment, supplies and other
implements, and property of whatever kind and nature belonging:

To any person charged with or suspected of the crime of terrorism or conspiracy to


commit terrorism;
to a judicially declared and outlawed terrorist organization or group of persons;
to a member of such judicially declared and outlawed organization, association or group
of persons,
-shall be seized, sequestered, and frozen in order to prevent their use, transfer or
conveyance for purposes that are inimical to the safety and security of the people or
injurious to the interest of the State.
The accused or suspect may withdraw such sums as are reasonably needed by his family
including the services of his counsel and his familys medical needs upon approval of the
court. He or she may also use any of his property that is under seizure or sequestration or
frozen because of his/her indictment as a terrorist upon permission of the court for any
legitimate reason.
Section 40. The seized, sequestered and frozen bank depositsshall be deemed property
held in trust by the bank or financial institution and that their use or disposition while the
case is pending shall be subject to the approval of the court before which the case or
cases are pending.
Section 41. If the person suspected as terrorist is acquitted after arraignment or his case
dismissed before his arraignment by a competent court, the seizureshall be lifted by the
investigating body or the competent court and restored to him without delay. The filing of
an appeal or motion for reconsideration shall not stay the release of said funds from
seizure, sequestration and freezing.
If convicted, said seized, sequestered and frozen assets shall automatically
forfeited in favor of the government.

Requisites of a valid search warrant


Read:
a. Essentials of a valid search warrant,145 SCRA

739

b. Validity of a search warrant and the admissibility of evidence obtained in


thereof.

violation

c. The place to be searched as indicated in the warrant is controlling


PEOPLE VS. CA, 291 SCRA 400
Narvasa, CJ
In applying for a search warrant, the police officers had in their mind the first four (4)
separate apartment units at the rear of ABIGAIL VARIETY STORE in Quezon City to be the
subject of their search. The same was not, however, what the Judge who issued the warrant had in
mind, AND WAS NOT WHAT WAS ULTIMATELY DESCRIBED IN THE SEARCH
WARRANT. As such, any evidence obtained from the place searched which is different from that
indicated in the search warrant is inadmissible in evidence for any purpose and in any proceeding.

78
This is so because it is neither licit nor fair to allow police officers to search a place
different from that stated in the warrant on the claim that the place actually searched---although
not that specified in the search warrant---is exactly what they had in view when they applied for
the warrant and had demarcated in their supporting evidence. WHAT IS MATERIAL IN
DETERMINING THE VALIDITY OF A SEARCH IS THE PLACE STATED IN THE
WARRANT ITSELF, NOT WHAT THE APPLICANTS HAD IN THEIR THOUGHTS, OR HAD
REPRESENTED IN THE PROOFS THEY SUBMITTED TO THE COURT ISSUING THE
WARRANT. As such, it was not just a case of obvious typographical error, but a clear case of a
search of a place different from that clearly and without ambiguity identified in the search
warrant.
NOTE: Very Important: Where a search warrant is issued by one court and the criminal
action base don the results of the search is afterwards commenced in another court, IT IS NOT
THE RULE THAT A MOTION TO QUASH THE WARRANT (or to retrieve the things seized)
MAY BE FILED ONLY IN THE ISSUING COURT---SUCH A MOTION MAY BE FILED FOR
THE FIRST TIME IN EITHER THE ISSUING COURT OR THAT IN WHICH THE
CRIMINAL PROCEEDING IS PENDING.
d. Validity of a warrantless search and seizure as a result of an informers tip. Note the two (2)
conflicting decisions of the Supreme Court.
PEOPLE VS. ARUTA, 288 SCRA 626
On December 13, 1988, P/Lt. Abello of the Olongapo PNP was tipped off by an informer
that Aling Rosa would be arriving from Baguio City the following day with a large volume of
marijuana. As a result of the tip, the policemen waited for a Victory Bus from Baguio City near
the PNB Olongapo, near Rizal Ave. When the accused got off, she was pointed to by the informer.
She was carrying a traveling bag at that time. She was not acting suspiciously. She was arrested
without a warrant.
The bag allegedly contained 8.5 kilos of marijuana. After trial, she was convicted and
imposed a penalty of life imprisonment.
Issue:
Whether or not the marijuana allegedly taken from the accused is admissible in evidence.
Held:
Warrantless search is allowed in the following instances:
1.
2.
3.
4.
5.
6.

customs searches;
searches of moving vehicle;
seizure of evidence in plain view;
consented searches;
search incidental to a lawful arrest; and
stop and frisk measures.
The above exceptions to the requirement of a search warrant, however, should not
become unbridled licenses for law enforcement officers to trample upon the conditionally
guaranteed and more fundamental right of persons against unreasonable search and seizures. The
essential requisite of probable cause must still be satisfied before a warrantless search and seizure
can be lawfully conducted. In order that the information received by the police officers may be
sufficient to be the basis of probable cause, it must be based on reasonable ground of suspicion or
belief a crime has been committed or is about to be committed.

79
The marijuana obtained as a result of a warrantless search is inadmissible as evidence for
the following reasons:
a. the policemen had sufficient time to apply for a search warrant but they failed to do so;
b. the accused was not acting suspiciously;
c. the accuseds identity was previously ascertained so applying for a warrant should have been
easy;
d. the accused in this case was searched while innocently crossing a street
Consequently, there was no legal basis for the police to effect a warrantless search of the
accuseds bag, there being no probable cause and the accuseds not having been legally arrested.
The arrest was made only after the accused was pointed to by the informant at a time when she
was not doing anything suspicious. The arresting officers do not have personal knowledge that the
accused was committing a crime at that time.
Since there was no valid warrantless arrest, it logically follows that the
subsequent search is similarly illegal, it being not incidental to a lawful arrest. This is so because
if a search is first undertaken, and an arrest effected based on the evidence produced by the
search, both such search and arrest would be unlawful, for being contrary to law.
This case is similar tot he case of PEOPLE VS. AMINNUDIN, and PEOPLE VS.
ENCINADA.
PEOPLE VS. MONTILLA, 284 SCRA 703
On June 19, 1994, at about 2 p.m., SPO1 Talingting and SPO1 Clarin of the
Dasmarinas, Cavite PNP were informed by an INFORMER that a drug courier would be arriving
in Barangay Salitran, Dasmarinas, Cavite, from Baguio City, with an undetermined amount of
marijuana. The informer likewise informed them that he could recognize said person.
At about 4 in the morning of June 20, 1994, the appellant was arrested by the
above-named police officers while alighting from a passenger jeepney near a waiting shed in
Salitran, Dasmarinas, Cavite, upon being pointed to by the informer. The policemen recovered 28
kilos of dried marijuana leaves. The arrest was without warrant.
The trial court convicted the appellant for transporting marijuana based on the
testimonies of the Above-named police officers without presenting the alleged informer.
Issue:
Was the warrantless arrest valid?
Held:
The accused claims that the warrantless search and seizure is illegal because the
alleged information was received by the police on June 19, 1994 and therefore, they could have
applied for a search warrant. The said contention is without merit considering that the information
given by the informer is too sketchy and not detailed enough for the obtention of the
corresponding arrest or search warrant. While there is indication that the informer knows the
courier, the records do not show that he knew his name. On bare information, the police could not
have secured a warrant from a judge.
Furthermore, warrantless search is allowed in the following instances:
1.
2.

customs searches;
searches of moving vehicle;

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3.
4.
5.
6.

seizure of evidence in plain view;


consented searches;
search incidental to a lawful arrest; and
stop and frisk measures.
Since the accused was arrested for transporting marijuana, the subsequent search on his
person is justified. An arresting officer has the right to validly search and seize from the offender
(1) dangerous weapons; and (2) those that may be used as proof of the commission of the
offense.
In the case at bar, upon being pointed to by the informer as the drug courier, the
policemen requested the accused to open and show them the contents of his bag and the cartoon
he was carrying and he voluntarily opened the same and upon cursory inspection, it was found
out that it contains marijuana. Hence the arrest.
The accused insists that it is normal for a person traveling with a bag and cartoon which
should not elicit the slightest suspicion that he was committing a crime. In short, there was no
probable cause for this policemen to think that he was committing a crime.
The said contention was considered without merit by the Supreme Court considering the
fact that he consented to the search as well as the fact that the informer was a reliable one who
had supplied similar information to the police in the past which proved positive.
(NOTE: The SC held that the non-presentation of the informer does not affect the case for
the prosecution because he is not even the best witness. He is merely a corroborative witness to
the arresting officers. )
JUSTICE PANGANIBAN:
To say that reliable tips from informers constitute probable cause for a warrantless
arrest or search IS A DANGEROUS PRECEDENT AND PLACES IN GREAT JEOPARDY THE
DOCTRINES LAID DOWN IN MANY DECISIONS MADE BY THIS COURT. (PEOPLE VS.
BURGOS, 144 SCRA 1; PEOPLE VS. AMINNUDIN, 163 SCRA 402; PEOPLE VS.
ENCINADA, October 2, 1997; PEOPLE VS. MENGOTE, 220 SCRA).
The case is similar to the case of People vs. Encimada where the appellant was searched
without a warrant while disembarking from a ship on the strength of a tip from an informer
received by the police the previous afternoon that the appellant would be transporting prohibited
drugs. The search yielded a plastic package containing marijuana. On Appeal, the SC reversed the
decision of conviction and held that Encinada did not manifest any suspicious behavior that
would necessarily and reasonably invite the attention of the police.

Warrantless Arrest, search and seizure in buy-bust operations.

PEOPLE OF THE PHILIPPINES VS. SPO3 SANGKI ARA, et al., G.R. No.
185011, December 23, 2009
VELASCO, JR., J.:
This is an appeal from the December 13, 2007 Decision of the Court of Appeals (CA) in CA-G.R.
CR-H.C. No. 00025B entitled People of the Philippines v. SPO3 Sangki Ara y Mirasol, Mike Talib y
Mama, Jordan Musa y Bayan, which affirmed the Decision of the Regional Trial Court (RTC), Branch 9
in Davao City, convicting accused-appellants of violation of Republic Act No. (RA) 9165 or the
Comprehensive Dangerous Drugs Act of 2002.

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The Facts
Criminal Case No. 51,471-2002 against Ara
That on or about December 20, 2002, in the City of Davao, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, without being authorized
by law, willfully, unlawfully and consciously traded, transported and delivered 26.6563
grams of Methamphetamine Hydrochloride or shabu, which is a dangerous drug, with
the aggravating circumstance of trading, transporting and delivering said 26.6563 grams
of shabu within 100 meters from [the] school St. Peters College of Toril, Davao City.
CONTRARY TO LAW.
During their arraignment, accused-appellants all gave a not guilty plea.
Version of the Prosecution
In the morning of December 20, 2002, a confidential informant (CI) came to the Heinous Crime
Investigation Section (HCIS) of the Davao City Police Department and reported that three (3) suspected
drug pushers had contacted him for a deal involving six (6) plastic sachets of shabu. He was instructed to
go that same morning to St. Peters College at Toril, Davao City and look for an orange Nissan Sentra car.
Police Chief Inspector Fulgencio Pavo, Sr. immediately formed a buy-bust team composed of SPO3
Reynaldo Capute, SPO4 Mario Galendez, SPO3 Antonio Balolong, SPO2 Arturo Lascaos, SPO2 Jim
Tan, SPO1 Rizalino Aquino, SPO1 Bienvenido Furog, PO2 Vivencio Jumawan, Jr., PO2 Ronald Lao, and
PO1 Enrique Ayao, Jr., who would act as poseur-buyer.
The team proceeded to the school where PO1 Ayao and the CI waited by the gate. At around 8:45
a.m., an orange Nissan Sentra bearing plate number UGR 510 stopped in front of them. The two men
approached the vehicle and the CI talked briefly with an old man in the front seat. PO1 Ayao was then
told to get in the back seat as accused-appellant Mike Talib opened the door. The old man, later identified
as accused-appellant SPO3 Ara, asked PO1 Ayao if he had the money and the latter replied in the
positive. Ara took out several sachets with crystalline granules from his pocket and handed them to PO1
Ayao, who thereupon gave the pre-arranged signal of opening the car door. The driver of the car, later
identified as accused-appellant Jordan Musa, tried to drive away but PO1 Ayao was able to switch off the
car engine in time. The back-up team appeared and SPO1 Furog held on to Musa while PO2 Lao
restrained Talib. PO1 Ayao then asked Ara to get out of the vehicle.
Recovered from the group were plastic sachets of white crystalline substance: six (6) big sachets,
weighing 26.6563 grams, from Ara by PO1 Ayao; five (5) big sachets, weighing 14.2936 grams, from
Musa by SPO1 Furog; and a small sachet, weighing 0.3559 gram, from Talib by PO2 Lao.
The three suspects were brought to the HCIS and the seized items indorsed to the Philippine
National Police (PNP) Crime Laboratory for examination. Forensic Chemist Austero, who conducted the
examination, found that the confiscated sachets all tested positive for shabu.
Version of the Defense
The defense offered the sole testimony of Ara, who said that he had been a member of the PNP for
32 years, with a spotless record. On December 20, 2002, SPO3 Ara was in Cotabato City, at the house of
his daughter Marilyn, wife of his co-accused Musa. He was set to go that day to the Ombudsmans Davao
City office for some paperwork in preparation for his retirement on July 8, 2003. He recounted expecting
at least PhP 1.6 million in retirement benefits. Early that morning, past three oclock, he and Musa headed
for Davao City on board the latters car. As he was feeling weak, Ara slept in the back seat.

82
Upon reaching Davao City, he was surprised to see another man, Mike Talib, in the front seat of
the car when he woke up. Musa explained that Talib had hitched a ride on a bridge they had passed.
When they arrived in Toril, Ara noticed the car to be overheating, so they stopped. Ara did not
know that they were near St. Peters College since he was not familiar with the area. Talib alighted from
the car and Ara transferred to the front seat. While Talib was getting into the back seat, PO1 Ayao came
out of nowhere, pointed his .45 caliber pistol at Ara even if he was not doing anything, and ordered him to
get off the vehicle. He saw that guns were also pointed at his companions. As the group were being
arrested, he told PO1 Ayao that he was also a police officer. Ara insisted that he was not holding anything
and that the shabu taken from him was planted. He asserted that the only time he saw shabu was on
television.
The Ruling of the Trial Court
The dispositive portion of the RTC Decision reads:
WHEREFORE, premised on the foregoing the Court finds the following:
In Criminal Case No. 51,471-2002, the accused herein SANGKI ARA Y MASOL,
Filipino, 55 years old, widower, a resident of Kabuntalan, Cotabato City, is hereby found
GUILTY beyond reasonable doubt, and is CONVICTED of the crime of violation of Sec.
5, 1st paragraph of Republic Act 9165. He is hereby imposed the DEATH PENALTY and
FINE of TEN MILLION PESOS (PhP 10,000,000) with all the accessory penalties
corresponding thereto, including absolute perpetual disqualification from any public
office, in view of the provision of section 28 of RA 9165 quoted above.
Since the prosecution proved beyond reasonable doubt that the crime was
committed in the area which is only five (5) to six (6) meters away from the school, the
provision of section 5 paragraph 3 Article II of RA 9165 was applied in the imposition of
the maximum penalty against the herein accused.
In Criminal Case No. 51,472-2002, the accused herein MIKE TALIB y MAMA,
Filipino, of legal age, single and a resident of Parang, Cotabato, is found GUILTY
beyond reasonable doubt, and is CONVICTED of the crime of violation of Sec. 11, 3rd
paragraph, Article II of Republic Act 9165. He is hereby imposed a penalty of
Imprisonment of SIXTEEN (16) YEARS and a fine of THREE HUNDRED
THOUSAND PESOS (PhP 300,000) with all the accessory penalties corresponding
thereto.
In Criminal Case No. 51,473-2002 the accused herein JORDAN MUSA Y
BAYAN, Filipino, 30 years old, married and a resident of Cotabato City, is hereby found
GUILTY beyond reasonable doubt and is CONVICTED of the crime for Violation of Sec.
11, 1st paragraph, Article II of Republic Act No. 9165. He is hereby sentenced to suffer a
penalty of LIFE IMPRISONMENT and FINE of FOUR HUNDRED THOUSAND
PESOS (PhP 400,000) with all the accessory penalties corresponding thereto.
SO ORDERED.
As the death penalty was imposed on Ara, the case went on automatic review before this Court.
Conformably with People v. Mateo, we, however, ordered the transfer of the case to the CA.
The Issue
Whether the Court of Appeals erred in holding that the arrest of the accused-appellants
was valid based on the affidavits of the complaining witnesses

83
Warrantless Arrest and Seizure Valid
In calling for their acquittal, accused-appellants decry their arrest without probable cause and the
violation of their constitutional rights. They claim that the buy-bust team had more than a month to apply
for an arrest warrant yet failed to do so.
Owing to the special circumstances surrounding the drug trade, a buy-bust operation has long been
held as a legitimate method of catching offenders. It is a form of entrapment employed as an effective
way of apprehending a criminal in the act of commission of an offense. We have ruled that a buy-bust
operation can be carried out after a long period of planning. The period of planning for such operation
cannot be dictated to the police authorities who are to undertake such operation. It is unavailing then to
argue that the operatives had to first secure a warrant of arrest given that the objective of the operation
was to apprehend the accused-appellants in flagrante delicto. In fact, one of the situations covered by a
lawful warrantless arrest under Section 5(a), Rule 113 of the Rules of Court is when a person has
committed, is actually committing, or is attempting to commit an offense in the presence of a peace
officer or private person.
It is erroneous as well to argue that there was no probable cause to arrest accused-appellants.
Probable cause, in warrantless searches, must only be based on reasonable ground of suspicion or belief
that a crime has been committed or is about to be committed. There is no hard and fast rule or fixed
formula for determining probable cause, for its determination varies according to the facts of each case.
Probable cause was provided by information gathered from the CI and from accused-appellants
themselves when they instructed PO1 Ayao to enter their vehicle and begin the transaction. The illegal
sale of shabu inside accused-appellants vehicle was afterwards clearly established. Thus, as we have
previously held, the arresting officers were justified in making the arrests as accused-appellants had just
committed a crime when Ara sold shabu to PO1 Ayao. Talib and Musa were also frisked for contraband
as it may be logically inferred that they were also part of Aras drug activities inside the vehicle. This
inference was further strengthened by Musas attempt to drive the vehicle away and elude arrest.
Moreover, the trial court correctly denied the Motion to Suppress or Exclude Evidence. We need
not reiterate that the evidence was not excluded since the buy-bust operation was shown to be a legitimate
form of entrapment. The pieces of evidence thus seized therein were admissible. As the appellate court
noted, it was within legal bounds and no anomaly was found in the conduct of the buy-bust operation.
There is, therefore, no basis for the assertion that the trial courts order denying said motion was biased
and committed with grave abuse of discretion.

ELI LUI, ET AL. VS. MATILLANO, May 27, 2004


Right against unreasonable searches and seizures; Mission Order does not authorize an illegal
search. Waiver of the right against an unreasonable search and seizure.
In search of the allegedly missing amount of P45,000.00 owned by the employer, the
residence of a relative of the suspect was forcibly open by the authorities by kicking the kitchen
door to gain entry into the house. Thereafter, they confiscated different personal properties therein
which were allegedly part of those stolen from the employer. They were in possession of a
mission order but later on claimed that the owner of the house gave his consent to the warrantless
search. Are the things admissible in evidence? Can they be sued for damages as a result of the
said warrantless search and seizure?
Held:
The right against unreasonable searches and seizures is a personal right which may be
waived expressly or impliedly. BUT A WAIVER BY IMPLICATION CANNOT BE

84
PRESUMED. There must be clear and convincing evidence of an actual intention to relinquish
the right. There must be proof of the following:
a. that the right exists;
b. that the person involved had knowledge, either constructive or actual, of the existence of said
right;
c. that the said person had an actual intention to relinquish the right.
Finally, the waiver must be made voluntarily, knowingly and intelligently in order that
the said is to be valid.
The search was therefore held illegal and the members of the searching party held liable
for damages in accordance with the doctrine laid down in Lim vs. Ponce de Leon and MHP
Garments vs. CA.
e. General or roving warrants
Read:
1. Stonehill vs. Diokno,June 19,1967
Concepcion, C.J.
The petitioners are questioning the validity of a total of 42 search warrants issued
on different dates against them and the corporations in which they are officers, directing the peace
officer to search the persons above-named and/or the premises of their offices, warehouses and to
seize and take possession of the following personal property, to wit:
"Books of accounts, financial records, vouchers, correspondence, receipts, ledgers, journals,
typewriters and other documents or papers showing all business transactions including
disbursement receipts, balance sheets and profit and loss statements"
since they are the subject of the offense of violating the CENTRAL BANK
LAWS, TARIFF AND CUSTOMS LAWS, INTERNAL REVENUE CODE AND THE REVISED
PENAL CODE.
The petitioners claim that the search warrants are void being violative of the
Constitutional provision on search and seizure on the ground that:
a. The search warrants did not particularly describe the documents, books and things to be seized;
b. cash money not mentioned in the warrant were actually seized;
c. The warrants were issued to fish evidence in the deportation cases against them;
d. the searches and seizures were made in an illegal manner;
e. the things seized were not delivered to the court to be disposed of in a manner provided for by
law.
Issue:
Were the searches and seizures made in the offices and residences of the
petitioners valid?

85
a. As to the searches made on their offices, they could not question the same in
their personal capacities because the corporations have a personality separate and distinct with its
officers. An objection to an unlawful search and seizure IS PURELY PERSONAL AND
CANNOT BE AVAILED OF BY THIRD PARTIES. CONSEQUENTLY, THE PETITIONERS
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, TO WHOM THE SEIZED EFFECTS BELONG, AND MAY NOT BE
INVOKED BY THE CORPORATE OFFICERS IN PROCEEDINGS AGAINST THEM IN
THEIR INDIVIDUAL CAPACITY.
b. As to the documents seized in the residences of the petitioners, the same may
not be used in evidence against them because the warrants issued were in the nature of a general
warrant for failure to comply with the constitutional requirement that:
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.
They were issued upon applications stating that the natural and juridical persons therein named
had committed a violation of Central bank Laws, Tariff and Customs Laws, Internal revenue
Code and Revised Penal Code. IN OTHER WORDS, NO SPECIFIC 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 JUDGE 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.
2. Bache vs. Ruiz, 37 SCRA 823
3. Secretary vs. Marcos, 76 SCRA 301
4. Castro vs. Pabalan, April 30,l976
5. Asian Surety vs. Herrera, 54 SCRA 312 (A search warrant for estafa, falsification, tax
evasion and insurance fraud is a general warrant and therefore not valid)
6. Collector vs. Villaluz, June 18,1976
7. Viduya vs. Verdiago, 73 SCRA 553
8. Dizon vs. Castro, April 12, 1985
9. People vs. Veloso, 48 Phil. 169
10. TAMBASEN VS. PEOPLE, July 14, 1995; PEOPLE VS. CA, 216 SCRA 101. A SCATTERSHOT WARRANT is a search warrant issued for more than one specific offense like one for
estafa, robbery, theft and qualified theft)
f. Define probable cause. Who determines probable cause?
a. ROBERTS VS. CA, 254 SCRA 307
b. DE LOS SANTOS VS. MONTESA, 247 SCRA 85
VICENTE LIM,SR. AND MAYOR SUSANA LIM
VS.HON. N. FELIX (G.R. NO. 99054-57)
EN BANC
GUTIERREZ, JR. J.

86
Facts:
-------Petitioners are suspects of the slaying of Congressman Moises Espinosa, Sr. and
three of his security escorts and the wounding of another. They were initially charged, with three
others, with the crime of multiple murder with frustrated murder. After conducting a preliminary
investigation, a warrant of arrest was issued on July 31, 1989. Bail was fixed at P200,000.
On September 22, 1989, Fiscal Alfane, designated to review the case, issued a
Resolution affirming the finding of a prima facie case against the petitioners but ruled that a case
of Murder for each of the killing of the four victims and a physical injuries case for inflicting
gunshot wound on the survivor be filled instead against the suspects. Thereafter, four separate
informations to that effect were filed with the RTC of Masbate with no bail recommended.
On November 21, 1989, a motion for change of venue, filed by the petitioners
was granted by the SC. It ordered that the case may be transferred from the RTC of Masbate to
the RTC of Makati.
Petitioners then moved that another hearing ba conducted to determine if there
really exists a prima facie case against them in the light of documents showing recantations of
some witnesses in the preliminary investigation. They likewise filed a motion to order the
transmittal of initial records of the preliminary investigation conducted by the municipal judge of
Barsaga of Masbate. These motions were however denied by the court because the prosecution
had declared the existence of probable cause, informations were complete in form in substance ,
and there was no defect on its face. Hence it found it just and proper to rely on the prosecutors
certification in each information.
ISSUE:
---------Whether or not a judge may issue a warrant of arrest without bail by simply
relying on the prosecutions certification and recommendation that a probable cause exists?
Held:
----1. The judge committed a grave abuse of discretion.
In the case of Placer vs. Villanueva, the sc ruled that a judge may rely upon the
fiscal's certification of the existence of a probable cause and on the basis thereof, issue a warrant
of arrest. However, the certification does not bind the judge to come out with the warrant of
arrest. This decision interpreted the "search and seizure" provision of the 1973 Constitution.
Under this provision, the judge must satisfy himself of the existence of probable cause before
issuing a warrant of order of arrest. If on the face of information, the judge finds no probable
cause, he may disregard the fiscal's certification and require the submission of the affidavits of
witness to aid him at arriving at a conclusion as to the existence of a probable cause. This has
been the rule since U.S vs. Ocampo and Amarga vs. Abbas.
2. In the case of Soliven vs. Makasiar, decided under the 1987 Constitution, the
Court noted that the addition of the word personally after the word determined and the deletion of
the grant of authority by the 1973 Constitution to issue warrants to other respondent officers as to
may be authorized by law does not require the judge to personally examine the complainant and
his witness in his determination of probable cause for the issuance of a warrant of arrest.What the
Constitution underscores is the exclusive and personal responsibility of the issuing judge to

87
satisfy himself of the existence of probable cause. Following established doctrine and procedures,
he shall:
(1) personally evaluate the reports and the supporting documents submitted
by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant
of arrest;
(2) If on the basis thereof he finds no probable cause, he may disregard the
fiscal's report and require the submission of supporting affidavits of witnesses to aid him in
arriving at a conclusion as to the existence of probable cause.
3.

The case of People vs. Honorable Enrique B. Inting reiterates the following

doctrines:
(1) The determination of probable cause is a function of the judge. It is not
for the Provincial Fiscal or Prosecutor nor for the Election Supervisor to ascertain. Only the judge
alone makes this detemination.
(2) The preliminary inquiry made by the prosecutor does not bind the judge.
It merely assist him to make the determination of probable cause. The judge does not have to
follow what the prosecutor's present to him. By itself, the prosecutor's certification of probable
cause is ineffectual. It is the report, the affidavits, the transcripts of stenographic notes, and all
other supporting documents behind the prosecutor's certification which are material in assisting
the judge to make his determination.
(3) Preliminary inquiry should be distinguished from the preliminary
investigation proper. While the former seeks to determine probable cause for the issuance of
warrant of arrest, the latter ascertains whether the offender should be held for trial or be released.
4.
In the case of Castillo vs. Villaluz, the court ruled that judges of RTC no
longer have authority to conduct preliminary investigations: This authority was removed from
them by the 1985 Rules on Criminal Procedure, effective on January 1, 1985.
5.
In the present case, the respondent judge relies solely on the certification of
the prosecutor. Considering that all the records of the investigation are in Masbate, he has not
personally determined the existence of probable cause. The determination was made by the
provincial prosecutor. The constitutional requirement had not been satisfied.
The records of the preliminary investigation conducted by the Municipal Court of
Masbate and reviewed by the respondent Fiscal were still in Masbate when the respondent Fiscal
issued the warrant of arrest against the petitioners. There was no basis for the respondent judge to
make his personal determination regarding the existence of probable cause from the issuance of
warrant of arrest as mandated by the Constitution. He could not have possibly known what has
transpired in Masbate as he had nothing but a certification. Although the judge does not have to
personally examine the complainant and his witnesses (for the prosecutor can perform the same
functions as commissioner for taking of evidence) there should be a report and necessary
documents supporting the Fiscal's bare certification. All of these should be before the judge.
1. Amarga vs. Abbas, 98 Phil. 739
1-a. 20th Century Fox vs. CA, 164 SCRA 655
1-b. Quintero vs. NBI, 162 SCRA 467
1-c. The Presidential Anti-Dollar Salting Task Force vs. CA, GR No. 83578, March 16,
1989
SOLIVEN VS. MAKASIAR, 167 SCRA 393

88
The word personally after the word determined does not necessarily mean that
the judge should examine the complainant and his witnesses personally before issuing the search
warrant or warrant of arrest but the exclusive responsibility on the part of said judge to satisfy
himself of the existence of probable cause. As such, there is no need to examine the complainant
and his witnesses face to face. It is sufficient if the judge is convinced of the existence of
probable cause upon reading the affidavits or deposition of the complainant and his witnesses.
1-e. Pendon vs. CA, Nov. 16, 1990
1-f. P. vs. Inting, July 25, 1990
1-g. Umil vs. Ramos, et al., July 9, 1990 with the Resolution of the
Motion for Reconsideration in November, 1991
1-h. Paderanga vs. Drilon, April 19, 1991
2. Department of Health vs. Sy Chi Siong,
Inc., GR No. 85289, February 20, 1989
2-a. P. vs. Villanueva, 110 SCRA 465
2-b. Placer vs. Villanueva, 126 SCRA 463 (Only a judge has the power to determine
probable insofar as the issuance of a warrant of arrest is concerned)
3. Tolentino vs. Villaluz,July 27,1987
4. Cruz vs. Gatan, 74 SCRA 226
5. Olaes vs. P., 155 SCRA 486
7. Geronimo vs. Ramos, 136 SCRA 435
JUAN PONCE ENRILE VS. JUDGE JAIME SALAZAR, ET AL., G.R.NO. 92163, June 5,
1990
Due process; right to bail; probable cause for the issuance of a warrant of arrest
(Note: This might be useful also in your Criminal Law)
Narvasa, J.
On February 27, 1990, Senator Juan Ponce Enrile was arrested by law enforcement officers
led by NBI Director Alfredo Lim on the strength of a warrant of arrest issued by the respondent
judge, HON. JAIME SALAZAR, Regional trial Court, Branch 103, Quezon City in Criminal
Case No. 90-10941. The warrant was issued on an information signed and filed earlier in the day
by Senior State Prosecutor AURELIO TRAMPE charging Senator Enrile, the spouses Rebecco
and Erlinda Panlilio, and Gregorio Honasan with the crime of rebellion with murder and multiple
frustrated murder allegedly committed during the period of the failed coup attempt from
November 29 to December 10, 1990. Senator Enrile was taken to and held overnight at the NBI
Headquarters on Taft Ave., Manila, WITHOUT BAIL, NONE HAVING BEEN
RECOMMENDED IN THE INFORMATION AND NONE FIXED IN THE WARRANT OF
ARREST.
On February 28, 1990, petitioner through counsel filed a petition for Habeas Corpus alleging
that he was deprived of his constitutional rights in being, or having been:
a. held to answer for a criminal offense which does not exist in the statute books;
b. charged with a criminal offense in an information for which no complaint was initially
filed or preliminary investigation was conducted, hence, he was denied due process;
c. denied the right to bail; and
d. arrested or detained on the strength of warrant issued without the judge who issued it
first having personally determined the existence of probable cause.
HELD:

89
The parties' oral and written arguments presented the following options:
1. Abandon the Hernandez Doctrine and adopt the dissenting opinion of Justice Montemayor
that "rebellion cannot absorb more serious crimes";
2. Hold Hernandez Doctrine applicable only to offenses committed in furtherance, or as
necessary means for the commission, of rebellion, BUT NOT TO ACTS COMMITTED IN THE
COURSE OF A REBELLION WHICH ALSO CONSTITUTE COMMON CRIMES OF GRAVE
OR LESS GRAVE CHARACTER;
3. Maintain Hernandez Doctrine as applying to make rebellion absorb all other offenses
committed in its course, whether or not necessary to its commission or in furtherance thereof.
1. On the first option, 11 justices voted AGAINST abandoning Hernandez. Two members felt that
the doctrine should be re-examined. In view of the majority, THE RULING REMAINS GOOD
LAW, ITS SUBSTANTIVE AND LEGAL BASES HAVE WITHSTOOD ALL SUBSEQUENT
CHALLENGES AND NO NEW ONES ARE PRESENTED HERE PERSUASIVE ENOUGH TO
WARRANT A COMPLETE REVERSAL. This is so because of the fact that the incumbent
President (exercising legislative powers under the 1986 Freedom Constitution) repealed PD No.
942 which added a new provision of the Revised Penal Code, particularly Art. 142-A which
sought to nullify if not repealed the Hernandez Doctrine. In thus acting, the President in effect by
legislative fiat reinstated the Hernandez as a binding doctrine with the effect of law. The Court
can do no less than accord it the same recognition, absent any sufficiently powerful reason against
so doing.
2. On the second option, the Supreme Court was unanimous in voting to reject the same though
four justices believe that the arguments in support thereof is not entirely devoid of merit.
3. With the rejection of the first two options, the Hernandez Doctrine remains a binding doctrine
operating to prohibit the complexing of rebellion with any other offense committed on the
occasion thereof, either as a means necessary to its commission or as unintended effect of an
activity that constitutes rebellion.
On the issues raised by the petitioner:
a. By a vote of 11-3, the Court ruled that the information filed against the petitioner does in fact
charge an offense despite the objectionable phrasing that would complex rebellion with murder
and multiple frustrated murder, that indictment is to be read as charging SIMPLE REBELLION.
The petitioner's contention that he was charged with a crime that does not exist in the statute
books, WHILE TECHNICALLY CORRECT SO FAR AS THE COURT RULED THAT
REBELLION MAY NOT BE COMPLEXED WITH OTHER OFFENSES COMMITTED ON
THE OCCASION THEREOF, MUST THEREFORE BE DISMISSED AS A MERE FLIGHT OF
RHETORIC. Read in the context of Hernandez, the information does indeed charge the petitioner
with a crime defined and punished by the Revised Penal Code: SIMPLE REBELLION.
b. Was the petitioner charged without a complaint having been initially filed and/or preliminary
investigation conducted? The record shows that a complaint for simple rebellion against
petitioner was filed by the NBI Director and that based on the strength of said complaint a
preliminary investigation was conducted by the respondent prosecutors culminating in the filing
of the questioned information. THERE IS NOTHING INHERENTLY IRREGULAR OR
CONTRARY TO LAW IN FILING AGAINST A RESPONDENT AN INDUCTMENT FOR AN
OFFENSE DIFFERENT FROM WHAT IS CHARGED IN THE INITIATORY COMPLAINT, IF
WARRANTED BY THE EVIDENCE DEVELOPED DURING THE PRELIMINARY
INVESTIGATION.

90
c. The petitioner claims that the warrant issued is void because it was issued barely one hour and
twenty minutes after the case was raffled to the respondent judge which could hardly gave him
sufficient time to personally go over the voluminous records of the preliminary investigation.
Also, the petitioner claims that the respondent judge issued the warrant for his arrest without first
personally determining the existence of probable cause by examining under oath or affirmation
the complainant and his witnesses, in violation of Art. III, Section 2, of the Constitution. This
Court has already ruled that it is not unavoidable duty of the judge to make such a personal
examination, it being sufficient that he follows established procedure by PERSONALLY
EVALUATING THE REPORT AND THE SUPPORTING DOCUMENT SUBMITTED BY THE
PROSECUTOR. MEREBY BECAUSE SAID RESPONDENT JUDGE HAD WHAT SOME
MIGHT CONSIDER ONLY A RELATIVELY BRIEF PERIOD WITHIN WHICH TO COMPLY
WITH THAT DUTY , GIVES NO REASON TO ASSUME THAT HE HAD NOT, OR COULD
NOT HAVE, SO COMPLIED; NOR DOES THAT SINGLE CIRCUMSTANCE SUFFICE TO
OVERCOME THE LEGAL PRESUMPTION THAT OFFICIAL DUTY HAS BEEN
REGULARLY PERFORMED.
d. Petitioner also claims that he is denied of his constitutional right to bail. In the light of the
Court's affirmation of Hernandez as applicable to petitioner's case, and of the logical and
necessary corollary that the information against him should be considered as charging only the
crime of simple rebellion which is bailable before conviction, THAT MUST NOW BE
ACCEPTED AS A CORRECT PROPOSITION.
NOTES:
This might be useful also in your Remedial Law.
Was a petition for Habeas Corpus before the Supreme Court the appropriate vehicle for
asserting a right to bail or vindicating its denial?
The Supreme Court held that the criminal case before the respondent judge is the normal
venue for invoking the petitioner's right to have provisional liberty pending trial and judgment.
The correct course was for the petitioner to invoke that jurisdiction by filing a petition to be
admitted to bail, claiming a right to bail per se or by reason of the weakness of the evidence
against him. ONLY AFTER THAT REMEDY WAS DENIED BY THE TRIAL COURT
SHOULD THE REVIEW JURISDICTION OF THE SUPREME COURT BE INVOKED, AND
EVEN THEN, NOT WITHOUT FIRST APPLYING TO THE COURT OF APPEALS IF
APPROPRIATE RELIEF WAS ALSO AVAILABLE THERE.
Even assuming that the petitioner's premise that the information charges a non-existent crime
would not excuse or justify his improper choice of remedies. Under either hypothesis, the obvious
recourse would have been a motion to quash brought in the criminal action before the respondent
judge.
g. Warrantless searches and seizures--when valid
or not. Is "Operation Kapkap" valid?
Read:
PEOPLE VS. MENGOTE, G.R. No. 87059, June, 1992, 210 SCRA 174
Warrantless search and
seizure
Cruz, J.
Facts|

91
1. On August 8, 1987, the Western Police District received a telephone call from an informer that
there were three suspicious-looking persons at the corner of Juan Luna and North Bay Blvd., in
Tondo, Manila;
2. When the surveilance team arrived therein, they saw the accused "looking from side to side"
and "holding his abdomen". They approched these persons and identified themselves as
policement that is why they tried to ran away because of the other lawmen, they were unable to
escape;
3. After their arrest, a .38 cal. Smith and Wessor revolver was confiscated from the accused and
several days later, an information for violation of PD 1866 was filed against him;
4. After trial, Mengote was convicted of having violated PD 1866 and was sentenced to suffer
reclusion perpetua based on the alleged gun as the principal evidence. Hence this automatic
appeal.
Issue:
Was there a valid warrantless search and seizure?
Held:
There is no question that evidence obtained as a result of an illegal search or
seizure is inadmissible in any proceeding for any purpose. That is the absolute prohibition of
Article III, Section 3 [2], of the Constitution. This is the celebrated exclusionary rule based on the
justification given by Justice Learned Hand that "only in case the prosecution, which itself
controls the seizing officials, knows that it cannot profit by their wrong will the wrong be
repressed."
Section 5, Article 113 of the Rules of Court provides:
Sec. 5. Arrest without warrant; when lawful.- A peace officer or 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 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.
x x x
We have carefully examined the wording of this Rule and cannot see how we we
can agree with the prosecution.
Par. (c) of Section 5 is obviously inapplicable as Mengote was not an escapee
from a penal institution when he was arrested. We therefore confine ourselves to determining the
lawfulness of his arrest under either Par. (a) or Par. (b) of this Section.

92
Par. (a) requires that the person be arrested (1) after he has committed or while
he is actually committing or is at least attempting to commit an offense, (2) in the presence of the
arresting officer.
These requirements have not been established in the case at bar. At the time of
the arrest in question, the accused-appellant was merely "looking from side to side" and "holding
his abdomen," according to the arresting officers themselves. There was apparently no offense
that had just been committed or was being actually committed or at least being attempted by
Mengote in thie presence.
The Solicitor General submits that the actual existence of an offense was not
necessary as long as Mengote's acts created a reasonable suspicion on the part of the arresting
officers and induced in them the belief that an offense had been committed and that accusedappellant had committed it". The question is, What offense? What offense could possibly have
been suggested by a person "looking from side to side" and "holding his abdomen" and in aplace
not exactly forsaken.
These are certainly not sinister acts. And the setting of the arrest made them less
so, if at all. It might have been different if Mengote had been apprehended at an unholy hour and
in a place where he had no reason to be, like a darkened alley at 3 o'clock in the morning. But
he was arrested at 11:30 in the morning and in a crowded street shortly after alighting from a
passenger jeep with his companion.He was not skulking in the shadows but walking in the clear
light of day. There was nothing clandestine about his being on that street at that busy hour in the
blaze of the noonday sun.
On the other hand, there could have been a number of reasons, all of them
innoent, why hiseyes were darting from side to sideand he was holding his abdomen. If they
excited suspicion in the minds of the arresting officers, as the prosecution suggests, it has
nevertheless not been shown what their suspicion was all about.
xxx
The case before us is different because there was nothing to support the arresting
officers' suspicion other than Mengote's darting eyes and his hand on his abdomen. By no stretch
of the imagination could it have been inferred from these acts that an offense had just been
committed, or was actually being committed, or was at least being attempted in their presence.
This is similar to PEOPLE vs. AMMINUIDIN, 163 SCRA 402 where the Court
held that a warrantless arrest of the accused was unconstitutional. This was effected while he was
coming down the vessel, to all appearances no less innocent than the other disembarking
passengers. He had not committed nor was actually committing or attempting to commit an
offense in the presence of the arresting officers. He was not even acting suspiciously. In short,
there was no probable cause that, as the prosecution incorrectly suggested, dispensed with the
constitutional requirement of a warrant.
Par. (b) is no less applicable because its no less stringent requirements have also
not been satisfied. Theprosecution has not shown that at the time of Mengote's arrest an offense
had in fact been committed and that the arresting officers had personal knowldge of facts
indicating that Mengote had committed it. All they had was hearsay information from the
telephone caller, and about a crime that had yet to bem committed.
xxx
In the landmark case of People vs. Burgos, 144 SCRA 1, this Court declared:

93
Under Section 6(a) of Rule 113, the officer arresting a person who has just
committed, is committing, or is about to commit an offense must have personalknowledge of that
fact. The offense must also be committed in his presence or within his view. (SAYO vs. CHIEF
OF POLICE, 80 Phil. 859).
xxx
In arrests without a warrant under Section 6(b), however, it is not enough that
there is reasonable ground to believe that the person to be arrested has committed a crime. A
crime must in fact or actually have been committed first. That a crime has actually been
committed is an essential precondition. It is not enough to suspect that a crime may have been
committed. The fact of the commission of the offense must be undisputed. The test of reasonable
ground applies only to the identity of the perpetrator..
This doctrine was affirmed in Alih vs. Castro, 151 SCRA 279, thus:
If the arrest was made under Rule 113, Section 5, of the Rules of Court in
connection with a crime about to be committed, being committed, or just committed, what was
that crime? There is no allegation in the record of such a falsification. Parenthetically, it may be
observed that under the Revised Rule 113, Section 5(b), the officer making the arrest must have
personal knowledge of the ground therefor as stressed in the recent case of People vs. Burgos.
It would be a sad day, indeed, if any person could be summarily arrested and
searched just because he is holding his abdomen, even if it be possibly because of a stomachache, or if a peace officer could clamp handcuffs on any person with a shifty look on suspicion
that he may have committed a criminal act is actually committing or attempting it. This simply
cannot be done in a free society. This is not a police state where order is exalted over liberty or,
worse, personal malice on the part ofthe arresting officer may be justified in the name of
security.
xxx
The court feels that if the peace officers had been more mindful of the
provisions of the Bill of Rights, the prosecution of the accused-appellant might have succeeded.
As it happened, they allowed their over zealousness to get the better of them, resulting in their
disregard
of the requirements of a valid search and seizure that rendered inadmissible the
evidence they had invalidly seized.
This should be a lesson to other peace officers. Their impulsiveness may be the
very cause of the acquittal of persons who deserve to be convicted, escaping the clutches of the
law, because, ironically enough, it has not been observed by those who are supposed to enforce
it.
When illegal arrest is deemed waived.
Warrantless arrest; no personal knowledge of the arresting officer
PEOPLE VS. GALVEZ, 355 SCRA 246
Mendoza, J.
The policeman arrested the accused-appellant on the basis solely of what Reynaldo
Castro had told him and not because he saw the accused-appellant commit the crime charged
against him. Indeed, the prosecution admitted that there was no warrant of arrest issued against
accused-appellant when the latter was taken into custody. Considering that the accused-appellant
was not committing a crime at the time he was arrested nor did the arresting officer have any

94
personal knowledge of facts indicating that accused-appellant committed a crime, his arrest
without a warrant cannot be justified.
However, by entering a plea of not guilty during the arraignment, the accused-appellant
waived his right to raise the issue of illegality of his arrest. IT IS NOW SETTLED THAT
OBJECTION TO A WARRANT OF ARREST OR THE PROCEDURE BY WHICH A COURT
ACQUIRES JURISDICTION OVER THE PERSON OF AN ACCUSED MUST BE MADE
BEFORE HE ENTERS HIS PLEA, OTHERWISE, THE OBJECTION IS DEEMED WAIVED.
THE FACT THAT THE ARREST WAS ILLEGAL DOES NOT RENDER THE SUBSEQUENT
PROCEEDINGS VOID AND DEPRIVE THE STATE OF ITS RIGHT TO CONVICT THE
GUILTY WHEN ALL THE FACTS POINT TO THE CULPABILITY OF THE ACCUSED.
g-1. Warrantless Search and seizure by a private person. (Valid since the
constitutional provision is not applicable to him; when it is not valid)
1.

Read:
PEOPLE VS. MENDOZA, 301 SCRA 66
Warrantless searches and seizures by private individuals
2. SILAHIS INTERNATIONAL HOTEL, INC. VS. ROGELIO SOLUTA, ET AL., 482
SCRA 660
Carpio-Morales, J.
The petitioner suspects that the respondents who are officers of the Silahis International
Hotel Union were using the Union Office located inside the hotel in the sale or use of marijuana,
dollar smuggling, and prostitution. They arrived at the said conclusion through surveillance.
In the morning of January 11, 1988, while the respondent union officer was opening the
Union Office, security officers of the plaintiff entered the union office despite objections thereto
by forcibly opening the same. Once inside the union office they started to make searches which
resulted in the confiscation of a plastic bag of marijuana. An information for violation of the
dangerous drugs act was filed against the respondent before the RTC of Manila which acquitted
them on the ground that the search conducted was illegal since it was warrantless and without
consent by the respondents.
After their acquittal, the respondents filed a case for Malicious Prosecution against the
petitioner for violation of Art. 32 of the Civil Code. After trial, the Regional Trial Court held that
petitioners are liable for damages as a result of an illegal search. The same was affirmed by the
Court of Appeals.
Issue:
Whether the warrantless search conducted by the petitioners (private individual and
corporation) on the union office of the private respondents is valid.
Held:
The search is not valid and they are civilly liable under Art. 32 of the Civil Code. The fact
that the union office is part of the hotel owned by the petitioners does not justify the warrantless
search. The alleged reports that the said union office is being used by the union officers for illegal
activities does not justify their acts of barging into the said office without the consent of the union
officers and without a search warrant. If indeed there was surveillance made, then they should
have applied for a search warrant.

95
The ruling in People vs. Andre Marti is not applicable here because in Marti, a
criminal case, the issue was whether an act of a private individual, allegedly in violation of ones
constitutional rights may be invoked against the State. In other words, the issue in Marti is
whether the evidence obtained by a private person acting in his private capacity without the
participation of the State, is admissible.
3. PEOPLE OF THE PHILIPPINES VS. ANDRE MARTI
G.R. NO. 81561, January 18, 1991
Warrantless Search and seizure
by a private person
Bidin, J.
FACTS:
Andre Marti and his common-law wife, Shirley Reyes went to Manila Packaging
and Export Forwarders to send four (4) packages to Zurich, Switzerland. Anita Reyes, owner of
the place (no relation to Shirley), received said goods and asked if she could examine and inspect
it. Marti refused. However later, following standard operating procedure, Job Reyes, co-owner
and husband of Anita opened the boxes for final inspection, before delivering it to the Bureau of
Customs and/or Bureau of Posts.
Upon opening, a peculiar odor emanated from the box that was supposed to
contain gloves. Upon further perusal, he felt and saw a dried leaves inside the box. Job Reyes
then brought samples to the NBI, he told them that the boxes to be shipped were still in his office.
In the presence of the NBI agents, Reyes opened the box and discovered that the odor came from
the fact that the dried leaves were actually those of the marijuana flowering tops.
Two other boxes,marked as containing books and tabacalera cigars; also revealed
bricks or case-like marijuana leaves and dried marijuana leaves respectively.
Marti was later invited by the NBI to shed light on the attempted shipment of the
dried leaves. Thereafter an information was filed against the appellant for violating RA 6425 or
the Dangerous Drugs Act. The Special Criminal Court of Manila convicted accused Marti of
violating sec.21(b) of said RA.
ISSUES:
1. Did the search conducted by a private person, violate accused's right against
unreasonable searches seizures and invocable against the state?
2. Was the evidence procured from the search admissible?
Held:
1. No, constitutional protection on search and seizure is imposable only against the state and not
to private persons.
Since Art. III,2 of the 1987 constitution is almost verbatim from the United States
constitution, the SC may consider US Fed. SC cases as likewise doctrinal in this jurisdiction.
Hence, in US cases, the constitutional provision against unreasomable searches and seizure was
intended as a restraint upon the activities of the sovereign authority and NOT intended against
private persons. If a search was initiated by a private person the provision does not apply since it
only proscribes government action. This view is supported by the deliberations by the 1986
Constitutional Commission.

96
In short, the protection against unreasonable searches and seizures cannot be
extended to acts comitted by private individuals so as to bring it within the ambit of alleged
unlawful intrusion.
Case at bar will show that it was Job Reyes` initiative that perpetrated the search.
He opened the packages and took the samples to NBI. All the NBI agents did was to observe and
look in plain sight. This did not convert it to a search as contemplated by the constitution.
2. Yes, since the search was valid, the evidence from therein is admissible evidence.
Art.III [2], on the admissibility of evidence in violation of the right against
unreasonable searches and seizures, likewise applies only to the government and its agencies and
not to private persons.
(U.S. cases cited: Burdeau v. McDowell (256 us 465 [1921], state v. Bryan (457
p 2d 661 [1968], Walker v. state (429 s.w 2d 121 [1969]), Barnes v. us (373 F 2d 517 [1967]),
Chadwick v. state (329 sw 2d 135).
VALID WARRANTLESS SEARCH AND SEIZURE:
1. Search made incidental to a valid arrest
a.
b.
c.
d.
e.

f.

Moreno vs. Ago Chi, 12 Phil. 439


PEOPLE VS. ANG CHUN KIT, 251 SCRA 660
PEOPLE VS. LUA, 256 SCRA 539
PEOPLE VS. Figueroa, 248 SCRA 679
NOLASCO VS. PANO, 139 SCRA 541 (A search incidental to a valid arrest must be done at
the place where the accused is arrested. As such, if accused was arrested while inside a jeepney,
there is no valid search incidental to a valid arrest if she will be brought to her residence and
thereafter search the said place)
ESPANO VS. CA, 288 SCRA 588 (If the accused was arrested in the street during a buy-bust
operation, the search of his house nearby is not a valid search incidental to a valid arrest)
PEOPLE VS. GO, 354 SCRA 338
Where the gun tucked in a persons waist is plainly visible to the police, no search
warrant is necessary and in the absence of any license for said firearm, he may be arrested at once
as he is in effect committing a crime in the presence of the police officers. No warrant is
necessary in such a situation, it being one of the recognized exceptions under the Rules.
As a consequence of the accuseds valid warrantless arrest inside the nightclub, he may
be lawfully searched for dangerous weapons or anything which may be used as proof of the
commission of an offense, without a search warrant in accordance with Section 12, Rule 126.
This is a valid search incidental to a lawful arrest.
In fact, the subsequent discovery in his car which was parked in a distant place from
where the illegal possession of firearm was committed [after he requested that he will bring his
car to the Police Station after his warrantless arrest) , of a drug paraphernalia and shabu,
CANNOT BE SAID TO HAVE BEEN MADE DURING AN ILLEGAL SEARCH. As such, the
items do not fall under the exclusionary rule and the unlicensed firearms, drug paraphernalia and
the shabu, can be used as evidence against the accused.

2. Search of moving vehicles


a.

P. VS. MARIACOS, G.R. No. 188611, June 16, 2010

97
b.
c.

Carrol vs. US, 267 US 132


PEOPLE VS. LO HO WING, et al.
(G. R. No. 88017) January 21, 1991
d.
MUSTANG LUMBER VS. CA, 257 SCRA 430
e.
PEOPLE VS. CFI, 101 SCRA 86
f.
PEOPLE VS. MALMSTEDT198 SCRA 401
g.

PEOPLE VS. LO HO WING, 193 SCRA 122

FACTS:
In July 1987, the Special Operations Group of the CIS received a tip from one of
its informers about an organized group engaged in importation of illegal drugs and smuggling of
contraband items. To infiltrate the crime syndicate, they recruited confidential men and "deep
penetration agents" under OPLAN SHARON 887. One such agent was Reynaldo Tia (the
dicharged/accused). As an agent, he submitted regular reports of undercover activities of
suspected syndicates. CAPTAIN PALMERA, head of oplan sharon 887, in turned informed the
Dan
gerous Drugs Board of Tia's activities.
Tia was introduced to his co-accused Lim Cheng Huat by another agent named
George. Lim wanted a male travelling companion for his business trips abroad. Tia offered his
services and was hired by Lim. Later, Tia was introduced to Peter Lo (alias of accused/appellant
Lo Ho Wing), the later turning out to be Tia's intended companion.
Appellant Lo Ho Wing and Tia left for Hongkong on October 4, 1987. Tia
telephoned Capt. Palmera that they would return to the Philippines on October 6. From
Hongkong, the two proceeded to Guangzhou in mainland China. There, appeallant Lo Ho Wing
bought six (6) cans of tea.Tia saw these 6 bags when they were opened for examination. That
evening, they went to Lo Ho Wing's room and he saw two other men with him. One was fixing
the tea bags, while the other was burning a substance on a piece of aluminum foil using a lighter.
Appellant Lo Ho Wing joined the second man and sniffed the smoke emitted by the burning
substance. When Tia asked Lo Ho Wing what cargo they would bring to Manila, the latter replied
that they would be bringing Chinese drugs.
The next day en route to Manila, customs examiners inspected the bags
containing the tin cans of tea. Since the bags were not closely examined, appellant Lo Ho Wing
and Tia were cleared. In Manila, They were met by Lim Cheng Huat. Appelant Lo Ho Wing and
Tia boarded a taxi from the airport and loaded their luggage in the taxi's compartment. Lim
Cheng Huat followed them in another taxi.
Meamwhile, a team composed by Capt. Palmera positioned themselves in
strategic areas around the airport. The CIS men who first saw Lo Ho and Tia followed them.
Along Imelda Avenue, the CIS car overtook the taxi ridden by Lo Ho Wing and Tia , forcing the
taxi driver to stop his vehicle. The CIS team asked the taxi driver to open the baggage
compartment. The CIS team asked permission to search their luggage.
A tin can of tea was taken out of the compartment. Sgt. Cayabyab of the CIS
pried the lid open and pressed it in the middle to pull out the contents. Crystalline white powder
resmbling crushed alum came out. Suspecting the crystalline powder to be a dangerous drug, he
had the three travelling bags opened for inspection. All the bags threshed out a total of six tin
cans. Tia and appellant were taken to the CIS headquarters for questioning. Meanwhile, the
second taxi carrying Lim Cheng Huat sped in attempt to escape. However, they were later
captured.

98
Samples from the bag tested positive for metamphetamine. The three suspects
were indicted for violating Art. III, sec.15 of the Dangerous Drug Act. Appellant Lo Ho Wing and
Lim Cheng Huat were sentenced to suffer life imprisonment and to pay a fine of P25,000 each.
Reynaldo Tia was discharged as a state witness. The trial court gave full credence to the
testimonies of government agents since the presumption of regularity in the performance of
official duties were in their favor.
ISSUES:
1. Was the warrantless search valid?
2. Are the effects taken admissible as evidence?
HELD:
1. This is a case of search on a moving vehicle which is one of the well-known
exceptions to the valid warrantless search and seizure. To stilol get a search warrant from a judge
would allow the accused go scot-free.
2. Since the search and seizure are valid, the evidence obtained is admissible as
evidence in any proceeding.
3. Seizure of goods concealed to avoid duties/taxes (Valid)
a.
b.
c.
d.

Papa vs. Mago, 22 SCRA 857


Pacis vs. Pamaran, 56 SCRA 16
HIZON VS. CA, 265 SCRA 517
PEOPLE VS. QUE, 265 SCRA 721

4. Seize of evidence in plain view


a.
b.
c.
d.

Harris vs. US, 390 US 234


PEOPLE VS. DAMASO, 212 SCRA 547
PEOPLE VS. VELOSO, 252 SCRA 135
PEOPLE VS. LESANGIN, 252 SCRA 213

5.
a.
b.
c.

When there is waiver of right or gives his consent;


De Garcia vs. Locsin, 65 Phil. 689
Lopez vs. Commissioner, 65 SCRA 336
PEOPLE VS. DAMASO, 212 SCRA (In order that there is a valid waiver to a warrantless
search, the waiver or consent should be given by the person affected, not just anybody. Example:
The landlady could not give a valid consent to the search of a room occupied by a tenant. Said
tenant himself should give the consent in order to be valid. The doctrine in Lopez vs.
Commissioner to the effect that it could be given by any occupant of a hotel room being rented by
the respondent is deemed abandoned)
d. VEROY VS. LAYAGUE, 210 SCRA 97. (If the owner of the house allowed the
policemen/soldiers to enter his house because they are searching for rebel soldiers but once inside
the house, they instead seized an unlicensed firearm,)
6. STOP AND FRISK.
a.
People vs. Mengote, June, 1992
b.
PEOPLE VS. POSADAS, 188 SCRA 288
c.
MANALILI VS. PEOPLE, October 9, 1997. (The policemen saw several suspicious looking
men at dawn who ran when they went near them. As the policemen ran after them, an unlicensed
firearm was confiscated. The search is valid)
d.
MALACAT VS. CA, 283 SCRA 159. (Mere suspicions not sufficient to validate warrantless
arrest)

99
6. EDDIE GUAZON, ET AL. VS. MAJ. GEN. RENATO DE VILLA, ET AL., GR NO.
80508, January 30, 1990
Warrantless searches;
"zonings" and "saturation drives"
Section 17, Art. VII of the Constitution
Gutierrez, Jr., J.
Facts:
This is a petition for Prohibition with preliminary injunction to prohibit military and police
officers from conducting "Areal target zonings" or "saturation drive" in Metro Manila particularly
in places where they suspect that the subversives are hiding. The 41 petitioners claim that the
saturation drives conducted by the military is in violation of their human rights because with no
specific target house in mind, in the dead of the night or early morning hours, police and military
officers without any search warrant cordon an area of more than one residence and sometimes the
whole barangay. Most of them are in civilian clothes and w/o nameplates or identification cards;
that the raiders rudely rouse residents from their sleep by banging on the walls and windows of
their homes, shouting, kicking their doors open (destroying some) and ordering the residents to
come out; the residents are herded like cows at the point of high powered guns, ordered to strip
down to their briefs and examined for tattoo marks; that while examination of the bodies of the
men are being conducted, the other military men conduct search and seizures to each and every
house without civilian witnesses from the neighbors; some victims complained that their money
and other valuables were lost as a result of these illegal operations.
The respondents claim that they have legal authority to conduct saturation drives under Art.
VII, Sec. 17 of the Constitution which provides:
The respondents would want to justify said military operation on the following constitutional
provisions:
The President shall be the Commander-in-Chief of all the armed forces of the Philippines and
whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless
violence, invasion or rebellion x x x
xxxx
The President shall have control of all the executive departments, bureaus and offices. He shall
ensure that the laws are faithfully executed.
Held:
There can be no question that under ordinary circumstances, the police action of the nature
described by the petitioners would be illegal and blatantly violative of the Bill of Rights. If the
military wants to flush out subversive and criminal elements, the same must be consistent with
the constitutional and statutory rights of the people. However, nowhere in the Constitution can we
see a provision which prohibits the Chief Executive from ordering the military to stop unabated
criminality, rising lawlessness and alarming communist activities. However, all police actions are
governed by the limitations of the Bill of Rights. The government cannot adopt the same
reprehensible methods of authoritarian systems both of the right and of the left. This is so because
Art. III, Section 3 of the Constitution is very clear as explained in Roan vs. Gonzales, 145 SCRA
687 and Century Fox vs. Court of Appeals, 164 SCRA 655. Also, it must be pointed out that
police actions should not be characterized by methods that offend one's sense of justice (Rochin
vs. California, 342 US 165).

100
The Court believes it highly probable that some violations were actually committed. But the
remedy is not to stop all police actions, including the essential and legitimate ones. A show of
force is sometimes necessary as long as the rights of people are protected and not violated.
However, the remedy of the petitioners is not an original action for prohibition since not one
victim complains and not one violator is properly charged. It is basically for the executive
department and the trial courts. The problem is appropriate for the Commission of Human Rights.
The petition was therefore remanded to the Regional Trial Courts of Manila, Malabon and
Pasay City where the petitioners may present evidence supporting their allegations so that the
erring parties may be pinpointed and prosecuted. In the meantime, the acts violative of human
rights alleged by the petitioners as committed during the police actions are ENJOINED until such
time as permanent rules to govern such actions are promulgated.
********************
Cruz, Padilla and Sarmiento, JJ. , Dissenting
The ruling of the majority that the petitioners are not proper parties is a specious pretext for
inaction. We have held that technical objections may be brushed aside where there are
constitutional questions that must be met (RODRIGUEZ VS. GELLA, 92 PHIL. 603;
TOLENTINO VS. COMELEC, 41 SCRA 702; PHILCONSA VS. JIMENEZ, 65 SCRA 479;
EDU VS. ERICTA, 35 SCRA 481; GONZALES VS. COMELEC, 27 SCRA 835; LAGUNZAD
VS. CA, 154 SCRA 199; DEMETRIA VS. ALBA,148 SCRA 208). Lozada was in fact an
aberration.
Where liberty is involved, every person is a proper party even if he may not be directly
injured. Each of us has a duty to protect liberty and that alone makes him a proper party. It is not
only the owner of a burning house who has the right to call the firemen.
Section 2, Art. III of the constitution is very clear: Unreasonable searches and seizures of
whatever nature and for whatever purpose is prohibited.
Saturation drives are NOT AMONG THE ACCEPTED INSTANCES WHEN A SEARCH OR
AN ARREST MAY BE MADE WITHOUT A WARRANT. THEY COME UNDER THE
CONCEPT OF THE FISHING EXPEDITIONS STIGMATIZED BY LAW AND DOCTRINE X
X X I submit that this court should instead categorically and emphatically that these saturation
drives are violative of human rights and individual liberty and should be stopped immediately.
While they may be allowed in the actual theater of military operations against the insurgents, the
Court should also make it clear that Metro Manila is not such a battleground.
7. IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ROBERTO UMIL,
ROLANDO DURAL and RENATO VILLANUEVA. MANOLITA UMIL and NICANOR
DURAL, FELICITAS SESE VS. FIDEL RAMOS, ET AL. and companion cases, G.R. No.
81567, July 9, 1990 (An NPA may be arrested without warrant while sleeping or being treated in
a hospital because his being a communist rebel is a continuing crime)
h. If the judge finds that there's probable cause, must he issue a warrant of arrest
matter of course? See the distinctions.

as a

Read:
1. SAMULDE VS. SALVANI, SEPTEMBER 26, 1988 (No because a warrant is issued in order to
have jurisdiction of the court over the person of an accused and to assure the court of his presence
whenever his case is called in court. As such, if the court believes that the presence of the accused
could be had even without a warrant of arrest, then he may not issue said warrant. Note: This case
involves a minor offense)

101
2. GOZO VS. TAC-AN, 300 SCRA 265. If the offense committed is a serious one like that
obtaining in this case for murder, the Judge must issue a warrant of arrest after determining the
existence of probable cause)
i. Searching questions
Read:
DR. NEMESIO PRUDENTE VS. THE HON. EXECUTIVE JUDGE ABELARDO M.
DAYRIT, RTC 33, Manila & People of the Philippines, GR No. 82870, December 14, 1989
(En Banc)
Search and seizure; requirements/requisites of a valid search warrant; searching questions
Padilla, J.
This is a petition to annul and set aside the Order of respondent Judge DENYING the motion
of the petitioner to quash Search Warrant No. 87-14 as well as its Order denying the petitioner's
Motion for Reconsideration.
Facts:
1. On October 31, 1987, P/Major Alladin Dimagmaliw, Chief of the Intelligence Special Action
Division (ISAD) of the Western Police District (WPD) filed with the Regional Trial Court of
Manila, Branch 33, presided by the respondent Judge, an application for the issuance of a Search
Warrant for violation of PD 1866 against the petitioner;
2. In his application for search warrant, P/Major Dimagmaliw alleged that:
"1. That he has been informed and has good and sufficient reasons to believe that NEMESIO
PRUDENTE who may be found at the Polytechnic University of the Philippines x x x has in his
control or possession firearms, explosives, hand grenades and ammunition intended to be used as
the means of committing an offense x x x;
"2. That the undersigned has verified the report and found it to be a fact x x x ".
In support of said application, P/Lt. Florencio Angeles executed a "Deposition of Witness
dated October 31, 1987 .
3. On November 1, 1987, a Sunday and All Saints Day, the search warrant was enforced by some
200 WPD operatives led by Col. Edgar Dula Torre and Major Maganto;
4. On November 2, 1987, Ricardo Abando, a member of the searching team executed an affidavit
alleging that he found in the drawer of a cabinet inside the wash room of Dr. Prudente's office a
bulging brown envelope with three live fragmentation hand grenades separately with old
newspapers;
5. On November 6, 1987, the petitioner moved to quash the search warrant on the grounds that:
a. the complainant's lone witness, Lt. Angeles had no personal knowledge of the facts which
formed the basis for the issuance of the search warrant;
b. the examination of said witness was not in the form of searching questions and answers;

102
c. the search warrant was a general warrant, for the reason that it did not particularly describe the
place to be searched and that it failed to charge one specific offense; and
d. the warrant was issued in violation of Circular No. 19 of the Supreme Court in that the
complainant failed to allege that the issuance of the search warrant on a Saturday was urgent.
6. On March 9, 1986, the respondent judge denied the motion to quash and on April 20, 1988, the
same judge denied petitioner's motion for reconsideration. Hence this petition.
Issue:
Was the Search Warrant issued by the respondent judge valid? Was there probable cause?
Held:
a. For a valid search warrant to issue, there must be probable cause, which is 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. The probable cause must be in connection with one specific offense and the judge must,
before issuing the warrant, personally examine in the form of searching questions and answers, in
writing and under oath, the complainant and the witnesses he may produce, on facts personally
known to them and attach to the record their sworn statements together with any affidavits
submitted.
The "probable cause" for a valid search warrant, has been defined "as such facts and
circumstances which would lead a reasonably 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". (Quintero vs. NBI, June 23, 1988). This probable cause must be shown to
be within the personal knowledge of the complainant or the witnesses he may produce and not
based on mere hearsay. (P. VS. SY JUCO, 64 PHIL. 667; ALVAREZ VS. CFI, 64 PHIL. 33; US
VS. ADDISON, 28 PHIL. 566).
In his affidavit, Major Dimagmaliw declared that "he has been informed" that Nemesio
Prudente "has in his control and possession" the firearms and explosivees described therein, and
that he "has verified the report and found it to be a fact." On the other hand, Lt. Angeles declared
that as a result of continuous surveillance for several days, they "gathered informations from
verified sources" that the holders of said firearms and explosives are not licensed t possess them.
It is clear from the foregoing that the applicant and his witness HAD NO PERSONAL
KNOWLEDGE OF THE FACTS AND CIRCUMSTANCES which became the basis for issuing
the questioned search warrant, but acquired knowledge thereof only through information from
other sources or persons.
Despite the fact that Major Dimagmaliw stated in his affidavit that "he verified the information
he had earlier received and found it to be a fact, YET THERE IS NOTHING IN THE RECORD
TO SHOW OR INDICATE HOW AND WHEN SAID APPLICANT VERIFIED THE EARLIER
INFORMATION ACQUIRED BY HIM AS TO JUSTIFY HIS CONCLUSION. He might have
clarified this point if there had been searching questions and answers, but there were none. In
fact, the records yield no questions and answers, whether searching or not, vis-a-vis the said
applicant.
In ALVAREZ VS. CFI, 64 PHIL. 33, it was held that the following test must be complied with
in an application for search warrant or in a supporting deposition based on personal knowledge or
not"The true test of sufficiency of a deposition or affidavit to warrant issuance of a search warrant
is whether it was drawn in a manner that perjury could be charged thereon and the affiant be held
liable for damage caused. The oath required must refer to the truth of the facts within the personal

103
knowledge of the applicant of a search warrant and/or his witnesses, not of the facts merely
reported by a person whom one considers to be reliable."
Tested by the above standards, the allegation of the witness, Lt. Angeles, do not come up to the
level of facts based on his personal knowledge so much so that he cannot be held liable for
perjury for such allegations in causing the issuance of the questioned search warrant.
Besides, respondent judge did not take the deposition of the applicant as required by the Rules
of Court. As held in Roan vs. Gonzales, 145 SCRA 694, "mere affidavits of the complainant and
his witnesses are thus insufficient. The examining judge has to take the depositions in writing of
the complainant and the witnesses he may produce and attach them to the record."
b. There was also no searching questions asked by the respondent judge because as shown by the
record, his questions were too brief and short and did not examine the complainant and his
witnesses in the form of searching questions and answers. On the contrary, the questions asked
were leading as they called for a simple "yes" or "no" answer. As held in Quintero vs. NBI, June
23, 1988, "the questions propounded are not sufficiently searching to establish probable cause.
Asking of leading questions to the deponent in an application for search warrant and conducting
of examination in a general manner would not satisfy the requirements for the issuance of a valid
search warrant."
The Court avails of this decision to reiterate the strict requirements for determination of
probable cause in the valid issuance of a search warrant as enunciated in earlier cases. True, this
requirements are stringent but the purpose is to assure that the constitutional right of the
individual against unreasonable search and seizure shall remain both meaningful and effective.
c. The rule is, that a description of a place to be searched is sufficient if the officer with the
warrant can with reasonable effort ascertain and identify the place intended (P VS. VELOSO, 48
PHIL. 180). In the case at bar, the warrant described the place to be searched as the premises of
the PUP, more particularly the offices of the Department of Science and Tactics as well as the
Office of the President, Nemesio Prudente.
There is also no violation of the "one specific offense" requirement considering that the
application for a search warrant explicitly described the offense: illegal possession of firearms
and ammunitions under PD 1866.
d. CIRCULAR NO. 19 OF THE SUPREME COURT merely provides for a guideline, departure
from which would not necessarily affect the validity of the search warrant provided the
constitutional requirements are complied with.
a. HUBERT WEBB VS. DE LEON, 247 SCRA 650
Read also:
1. Alvarez vs. CFI, 64 Phil. 33 (When the applicant is basing his knowledge from an
informant, the same is not valid)
2. Luna vs. Plaza, 26 SCRA 313
3. De Mulata vs. Irizari, 62 SCRA 210
4. Marinas vs. Siochi, 104 SCRA 423
5. Roan vs. Gonzales, 145 687
6. Mata vs. Bayona, 128 SCRA 388 (Depositions of the applicants and witnesses should be
attached to the record of the case)
7. Corro vs. Lising, 137 SCRA 541
8. Nolasco vs Pano, 147 SCRA 509
9. Burgos vs. Chief of Staff, 133 SCRA 800

104
10. P. vs. Burgos, September 14,1986
11. P. vs. Aminnudin Y Ahni, July 6,1988
12. Ponsica vs. Ignalaga, July 31,1987 (When the statements in the affidavits of witnesses
are mere generalities, mere conclusions of law, and not positive statements of particular acts, the
warrant is not valid)
13. Aberca vs. Ver, April 15,1988
2. Panganiban vs. Cesar, 159 SCRA 599
3. PENDON VS. CA, November 16, 1990. (When the questions asked to the applicant for a search
warrant was pre-typed, the same is not valid since there could have been no searching questions)
j. Warrantless searches and seizures--when valid
or not.
Read:
1. RICARDO VALMONTE VS. GEN RENATO DE VILLA,
September 29, 1989

GR No. 83988,

Warrantless searches and seizures;


validity of checkpoints
Padilla, J.
Facts:
1. On January 20, 1987, the National Capital Region District Command (NCRDC) was activated
with the mission of conducting security operations within its area of responsibility for the purpose
of maintaining peace and order. As part of its duty to maintain peace and order, the NCRDC
installed checkpoints in various parts of Valenzuela, Metro Manila.
Petitioners claim that because of these checkpoints, the residents of Valenzuela, MM are worried
of being harassed and of their safety being placed at the arbitrary, capricious and whimsical
disposition of the military authorities manning the checkpoints considering that their cars and
vehicles are being subjected to regular searches and check-ups, especially at night or dawn,
without the benefit of a search warrant and/or court order.
2. On July 9, 1988 at dawn, the apprehensions of the residents of Valenzuela increased because
Benjamin Parpon, the supply officer of the Municipality of Valenzuela was gunned down in cold
blood by the military men manning the checkpoints for ignoring or refusing to submit himself to
the checkpoint and for continuing to speed off inspite of several warning shots fired in the air.
Issue:
Whether or not the existence of said checkpoints as well as the periodic searches and seizures
made by the military authorities without search warrant valid?
Held:
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.
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.

105
Where, for example, the officer merely draws aside the curtain of a vacant vehicle which is
parked on a public fair grounds (People vs. Case, 190 MW 289), or simply looks into a vehicle
(State vs. Gaina, 97 SE 62), or flashes a light therein (Rowland vs. Commonwealth, 259 SW 33),
these do not constitute unreasonable search.
The setting up of checkpoints in Valenzuela, Metro Manila may be considered as security
measure to effectively maintain peace and order and to thwart plots to destabilize the government.
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's "sparrow units," not to mention the abundance of unlicensed
firearms.
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 HOWEVER REASONABLY CONDUCTED, THE
FORMER SHALL PREVAIL.
True, the manning of these checkpoints by the military is susceptible of abuse by the men in
uniform, in the same manner that all governmental power is susceptible to abuse. BUT , AT THE
COST OF OCCASIONAL INCONVENIENCE, DISCOMFORT AND EVEN IRRITATION TO
THE CITIZEN, THE CHECKPOINTS DURING THESE ABNORMAL TIMES ARE PART OF
THE PRICE WE PAY FOR AN ORDERLY SOCIETY AND PEACEFUL COMMUNITY.
Finally, it must be emphasized that on July 17, 1988, the military 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 upon order of the NCRDC Chief.
Cruz and Sarmiento, JJ., dissenting:
The bland declaration by the majority 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.
RESOLUTION ON THE MOTION FOR RECONSIDERATION, JUNE
15, 1990
Very Important:
The Supreme Court in its Resolution of the Motion for Reconsideration dated 15 June, 1990,
held that military and police checkpoints are not illegal as these measures to protect the
government and safeguards the lives of the people. The checkpoints are legal as where the
survival of the organized government is on the balance, or where the lives and safety of the
people are in grave peril. However, the Supreme Court held further that the military officers
manning the checkpoints may conduct VISUAL SEARCH ONLY, NOT BODILY SEARCH.
Read also:
1-a. Rizal Alih vs. Gen. Castro, June 23,1987
1-b. P s. Cendana, October 17, 1990
1-c. P. vs. Castiller, August 6, 1990
1-d. P. vs. Olaes, July 30, 1990
2. Papa vs. Mago, 22 SCRA 857
3. Roldan vs. Arca, 65 SCRA 336
4. P. vs. CFI, 101 SCRA 86
5. Pacis vs. Pamaran, 56 SCRA 16
6. Lopez vs. Commisioner, 65 SCRA 336

106
7. P vs. Cruz, 165 SCRA 135
8. Nolasco vs. Pano, 147 SCRA 509 & 139 SCRA
152
9. P vs. Claudio, 160 SCRA 646 (There is a valid warrantless search when a NARCOM
(now PDEA) officer arrests the person who owns a bag which contains marijuana which he found
out when he smelled the same. Here , there is a probable cause since he has personal knowledge
due to his expertise on drugs)
11. PEOPLE VS. DEL ROSARIO, July 10, 1994. (After the informant was given by the police the
amount of P100.00, he went to buy marijuana from the accused then returned to the police
headquarters with said article. Thereafter, the policemen went to arrest the accused without
warrant. The arrest is not valid since it does not fall under Section 5 Rule 113)
Likewise, after securing a search warrant authorizing the seizure of shabu and its
paraphernalia and
an unlicensed firearm was seized instead, said gun is inadmissible in
evidence.
k. May a non-judicial officer issue a warrant of arrest? (NO)
Read:
1.
2.
3.
4.

Harvey vs. Miriam Defensor-Santiago, June 26,1988


Moreno vs. Vivo, 20 SCRA 562
Lim vs. Ponce de Leon, 66 SCRA 299
HORTENCIA SALAZAR VS. HON TOMAS ACHACOSO, G.R. NO. 81510, March 14, 1990
(En banc)
5. Presidential Anti_Dollar Salting Task Force vs. CA, March 16, 1989
l. Properties subject to seizure
Read:

1. Sec. 2, Rule 126,1985 Rules on Crimial Procedure, as amended


2. ESPANO VS. CA, 288 SCRA 558
m. Warrantless searches and arrests
Read:
1. P. vs. Bati, August 27, 1990
1-a. Manuel et al., vs. Judge Tirso Velasco, GR No. 84666, February 9, 1989
1-b. Garcia-Padilla vs. Enrile,121 SCRA 47 &
137 SCRA 647
1-c. P. vs. Maspil, Jr., August 20, 1990 (Compare with P. vs. Aminnudin, July 6, 1988,
supra)
1-d. Posadas vs. CA, Aug. 2, 1990
1-e. P. vs. De la Cruz
1-f. P. vs. ortiz, Dec. 3, 1990
1-g. Rolito Go vs. CA, Feb. 11, 1992
1-h. People vs. Mati, January 18, 1991
2. Morales vs. Ponce Enrile, 121 SCRA 538
2-a. P vs. Burgos, 144 SCRA 1
2-b. People vs. de la Cruz, 184 SCRA 416
2-c. Gatchalian vs. Board, May 31, 1991
2-d. People vs. Sucro, March 18, 1991
2-e. PEOPLE VS. SOLAYAO, 262 SCRA 255
2-f. PEOPLE VS. CUISON, 256 SCRA 325
2-g. PEOPLE VS. DAMASO, 212 SCRA 547
2-h. OPOSADAS VS. CA, 258 SCRA 188

107
2-i. PEOPLE VS. JUATAN, 260 SCRA 532 (Buy-bust operation)
3. Sec. 6, Rule 113, 1985 Rules on Criminal
Procedure, as amended
n. Effect posting bail or entering a plea during the arraignment, if the arrest was illegal. (The
alleged illegality of the arrest is deemed waived upon posting of the bond by the accused)
PEOPLE VS. GALVEZ, 355 SCRA 246
Mendoza, J.
The policeman arrested the accused-appellant on the basis solely of what Reynaldo
Castro had told him and not because he saw the accused-appellant commit the crime charged
against him. Indeed, the prosecution admitted that there was no warrant of arrest issued against
accused-appellant when the latter was taken into custody. Considering that the accused-appellant
was not committing a crime at the time he was arrested nor did the arresting officer have any
personal knowledge of facts indicating that accused-appellant committed a crime, his arrest
without a warrant cannot be justified.
However, by entering a plea of not guilty during the arraignment, the accused-appellant
waived his right to raise the issue of illegality of his arrest. IT IS NOW SETTLED THAT
OBJECTION TO A WARRANT OF ARREST OR THE PROCEDURE BY WHICH A COURT
ACQUIRES JURISDICTION OVER THE PERSON OF AN ACCUSED MUST BE MADE
BEFORE HE ENTERS HIS PLEA, OTHERWISE, THE OBJECTION IS DEEMED WAIVED.
THE FACT THAT THE ARREST WAS ILLEGAL DOES NOT RENDER THE SUBSEQUENT
PROCEEDINGS VOID AND DEPRIVE THE STATE OF ITS RIGHT TO CONVICT THE
GUILTY WHEN ALL THE FACTS POINT TO THE CULPABILITY OF THE ACCUSED.
Read:
1.
2.
3.
4.
5.
6.

Callanta vs. Villanueva, 77 SCRA 377


PEOPLE VS. NAZARENO, 260 SCRA 256
FILOTEO VS. SANDIGANBAYAN, 263 SCRA 222
PEOPLE VS. NAZARENO, 260 SCRA 256
PEOPLE VS. LAPURA, 255 SCRA 85
PEOPLE VS. SILAN, 254 SCRA 491
o . Penalty for illegal arrest
Read:
Palon vs. NAPOLCOM, May 28, 1989
p. Judicial pronouncements on illegally seized

evidence, 106 SCRA 336

q. The exclusionary rule,155 SCRA 494


n. What is the status of a document obtained through subpoena?
Read:
Dianalan vs. Pros., Office of the Tanodbayan, Nov. 27, 1990
r. Search warrant for pirated video tapes
1. Century Fox vs. CA, 164 SCRA 655 (The master copy of the allegedly pirated tape should be
presented before the judge in order to convince him of the existence of probable cause)

108
2. COLUMBIA PICTURES VS. CA, 261 SCRA 144
UY VS. BIR, 344 SCRA 36
The following are the requisites of a valid search warrant:
1. The warrant must be issued upon probable cause;
2. The probable cause must be determined by the judge himself and not by applicant or any other
person;
3. In determining probable cause, the judge must examine under oath and affirmation the
complainant and such witnesses as the latter may produce; and
4. The warrant issued must particularly describe the place to be searched and the person or things to
be seized.
A description of the place to be searched is sufficient if the officer with the
warrant can, with reasonable effort, ascertain and identify the place intended and distinguish it
from other places in the community. Search warrants are not issued on loose, vague or doubtful
basis of fact, nor on mere suspicion or belief. In this case, most of the items listed in the warrants
fail to meet the test of particularity, especially since the witness had furnished the judge
photocopies of the documents sought to be seized. THE SEARCH WARRANT IS
SEPARABLE, AND THOSE ITEMS NOT PARTICULARLY DESCRIBED MAY BE CUT
OFF WITHOUT DESTROYING THE WHOLE WARRANT.
PEOPLE VS. VALDEZ, 341 SCRA 25
The protection against unreasonable search and seizure covers both innocent and guilty
alike against any form of highhandedness of law enforces.
The plain view doctrine, which may justify a search without warrant, APPLIES
ONLY WHERE THE POLICE OFFICER IS NOT SEARCHING FOR EVIDENCE
AGAINST THE ACCUSED, BUT INADVERTENTLY COMES ACROSS AN
INCRIMINATING OBJECT.
Just because the marijuana plants were found in an unfenced lot does nor prevent the
appellant from invoking the protection afforded by the Constitution. The right against
unreasonable search and seizure is the immunity of ones person, which includes his residence,
papers and other possessions. For a person to be immune against unreasonable searches and
seizures, he need not be in his home or office, within a fenced yard or private place.
PEOPLE VS. BAULA, 344 SCRA 663
In case of consented searches or waiver of the constitutional guarantee against obtrusive
searches, it is fundamental that to constitute waiver, IT MUST APPEAR THAT THE
RIGHT EXISTS; THE PERSONS INVOLVED HAD KNOWLEDGE, EITHER ACTUAL
OR CONSTRUCTIVE, of the existence of such right. The third condition did not exist in the
instant case. Neither was the search incidental to a valid warrantless arrest. (PEOPLE VS.
FIFUEROA, July 6, 2000) An alleged consent to a warrantless search and seizure cannot be based
merely on the presumption of regularity in the performance of official duty. THE
PRESUMPTION BY ITSELF, CANNOT PREVAIL AGAINST THE CONSTITUTIONALLY
PROTECTED RIGHTS OF AN INDIVIDUAL, AND ZEAL IN THE PURSUIT OF
CRIMINALS CANNOT ENNOBLE THE USE OF ARBITRARY METHODS THAT THE
CONSTITUTION ITSELF ABHORS.

109
CHAPTER IV
THE RIGHT TO PRIVACY
Section 3. 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.
Any evidence obtained in violation of this or the preceding
section shall be inadmissible for any purpose in any proceeding.
Read:
Read:
NOTE: Applicable provisions of the Human Security Act/Anti-Terrorism Law, Republic Act No.
9372, Approved on March 6, 2007 and effective on July 15, 2007 (This Law shall be
automatically suspended one (1) month before and two (2) months after the holding of any
election)
Please observe the procedure in obtaining the The Warrant [or Order] of Surveillance, not
found in the 1987 Philippine Constitution.
SURVEILLANCE OF SUSPECTS AND INTERCEPTION AND
COMMUNICATIONS OF SUSPECTS OR CHARGED OF TERRORISM

RECORDING

OF

Section 7. Surveillance of suspects and interception and recording of


communications. The provisions of RA 4200 (Anti-Wiretapping Law) to the contrary
notwithstanding, a police or law enforcement official and the members of his team may, upon a
written order of the Court of Appeals, listen to, intercept and record, with the use of any mode,
form or kind or type of electronic or other surveillance equipment or intercepting and tracking
devices, or with the use of any other suitable ways or means for that purpose, any
communication, message, conversation, discussion, or spoken or written words between members
of a judicially declared and outlawed terrorist organization, association, or group of persons or of
any person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism.
Provided, That surveillance, interception and recording of communications
between lawyers and clients, doctors and patients, journalists and their sources and confidential
business correspondence shall not be authorized.
Section 8. Formal Application for Judicial Authorization.- The written order of
the authorizing division of the Court of Appeals to track down, tap, listen, intercept, and record
communications, messages, conversations, discussions, or spoken or written words of any person
suspected of the crime of terrorism or the crime of conspiracy to commit terrorism, shall only be
granted by the authorizing division of the Court of Appeals UPON AN EX-PARTE written
application of a police or law enforcement official who has been duly authorized in writing by the
Anti-Terrorism Council created in Section 53 of this Act to file such ex-parte application, and
upon examination under oath and affirmation of the applicant and the witnesses who may produce
to establish:

That there is probable cause to believe based on personal knowledge of facts and circumstances
that the said crime of terrorism or conspiracy to commit terrorism has been committed, or is being
committed, or is about to be committed;
That there is probable cause to believe based on personal knowledge of facts and circumstances
that evidence which is essential to the conviction of any charged or suspected person for, or to the
solution or prevention of any such crimes, will be obtained; and

110

That there is no other effective means readily available for acquiring such evidence.
Sec. 9. Classification and Contents of the Order of the Court. The written order
granted by the authorizing division of the Court of Appeals as well as its order, if any, to extend
or renew the same, the original application of the applicant, including his application to extend or
renew, if any, and the written authorizations of the Anti-Terrorism Council shall be deemed and
are hereby declared as classified information: Provided, That the person being surveilled or
whose communications, letters, papers, messages, conversations, discussions, spoken or written
words and effects have been monitored, listened to, bugged or recorded by law enforcement
authorities has the right to be informed of the acts done by the law enforcement authorities in the
premises or to challenge, if he or she intends to do so, the legality of the interference before the
Court of Appeals which issued said written order. The written order of the authorizing division of
the court of Appeals shall specify the following:

The identity, such as name and address, if known, of the charged of suspected persons whose
communications, messages, conversations, discussions, or spoken or written words are to be
tracked down, tapped, listened to, intercepted or recorded and, in case of radio, electronic, or
telephone (whether wireless or otherwise) communications, messages, conversations, discussions,
or spoken or written words, the electronic transmission systems or the telephone numbers to be
tracked down, tapped, listened to, intercepted, and recorded and their locations if the person
suspected of the crime of terrorism or conspiracy to commit terrorism is not fully known, such
person shall be subject to continuous surveillance provided there is reasonable ground to do so;
The identity (name and address, and the police or law enforcement organization) of the members
of his team judicially authorized to track down, tap, listen to, intercept, and record the
communications, messages, conversations, discussions, or spoken or written words;
The offense or offenses committed, or being committed, or sought to be prevented; and
The length of time which the authorization shall be used or carried out.
Section. 10. Effective Period of Judicial Authorization. Any authorization
granted by the authorizing division of the court of Appealsshall only be effective for the length
of time specified in the written order of the authorizing division of the Court of Appeals, which
shall not exceed 30 days from the date of receipt of the written order of the authorizing division
of the court of Appeals by the applicant police or law enforcement official.
The CA may extend or renew the said authorization for another non-extendible
period, which shall not exceed 30 days from the expiration of the original periodThe ex-parte
application for renewal has been duly authorized by the Anti-terrorism Council in writing.
If no case is filed within the 30-day period, the applicant police or law
enforcement official shall immediately notify the person subject of the surveillance, interception,
and recording of the termination of the said surveillance, interception and recording. [Penalty to
be imposed on the police official who fails to inform the person subject of surveillance of the
termination of the surveillance, monitoring, interception and recording shall be penalized to 10
years and 1 day to 12 years.
Section 15. Evidentiary Value of Deposited Materials. Any listened to,
intercepted, and recorded communications, messages, conversationsWHICH HAVE BEEN
SECURED IN VIOLATION OF THE PERTINENT PROVISIONS OF THIS ACT, SHALL
ABSOLUTELY NOT BE ADMISSIBLE AND USABLE AS EVIDENCE AGAINST
ANYBODY IN ANY JUDICIAL, QUASI-JUDICIAL, LEGISLATIVE, OR ADMINISTRATIVE
INVESTIGATION, INQUIRY, PROCEEDING, OR HEARING.
JUDICIAL AUTHORIZATION TO EXAMINE BANK DEPOSITS, ACCOUNTS, AND
RECORDS OF SUSPECTED OR CHARGED TERRORISTS

111
Section 27. judicial authorization required to examine bank deposits, accounts
and records.
The justices of CA designated as special court to handle anti-terrorism cases after
satisfying themselves of the existence of probable cause in a hearing called for that purpose that:

A person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism;
Of a judicially declared and outlawed terrorist organization or group of persons;
Of a member of such judicially declared and outlawed organization, association or group of
persons, may authorize in writing any police or law enforcement officer and the members of his
team duly authorized in writing by the anti-terrorism council to:
1.
examine or cause the examination of, the deposits, placements, trust accounts, assets, and
records in a bank or financial institution; and
2.
gather or cause the gathering of any relevant information about such deposits,
placements, trust accounts, assets, and records from a bank or financial institution. The bank or
financial institution shall not refuse to allow such examination or to provide the desired
information, when so ordered by and served with the written order of the Court of Appeals.
Sec. 28. Application to examine deposits, accounts and records.
The written order of the CA authorizing the examination of bank deposits,
placements, trust accounts, assets and records:

A person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism;
Of a judicially declared and outlawed terrorist organization or group of persons;
Of a member of such judicially declared and outlawed organization, association or group of
persons, in a bank or financial institution-SHALL ONLY BE GRANTED BY THE AUTHORIZING DIVISION OF THE
CA UPON AN EX-PARTE APPLICATION TO THAT EFFECT OF A POLICE OR LAW
ENFORCEMENT OFFICIAL who has been duly authorized by the Anti-Terrorism Council to file
such ex-parte application and upon examination under oath or affirmation of the applicant and his
witnesses he may produce to establish the facts that will justify the need and urgency of
examining and freezing the bank deposits, placements, trust accounts, assets and records:

Of A person charged with or suspected of the crime of terrorism or conspiracy to commit


terrorism;
Of a judicially declared and outlawed terrorist organization or group of persons;
Of a member of such judicially declared and outlawed organization, association or group of
persons.
Section 35. Evidentiary value of deposited bank materials.- Any information,
data, excerpts, summaries, notes, memoranda, work sheets, reports or documents acquired from
the examination of the bank deposits, placements, trust accounts, assets and records of:

A person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism;
Of a judicially declared and outlawed terrorist organization or group of persons;
Of a member of such judicially declared and outlawed organization, association or group of
persons,
-which have been secured in violation of the provisions of this Act, shall
absolutely not be admissible and usable as evidence against anybody in any judicial, quasijudicial, legislative or administrative investigation, inquiry, proceeding or hearing.

112
1. PEOPLE VS. CABALQUINTO, September 19, 2006, 502 SCRA 419
2. ZULUETA VS. CA, February 10, 1996
The wife forcibly opened the drawers at the clinic of her doctor-husband and
took diaries, checks and greeting cards of his alleged paramours. Thereafter, she used the same in
their legal separation case. Said documents are inadmissible in evidence. This is so because the
intimacies of husband and wife does not justify the breaking of cabinets to determine marital
infidelity.
3. OPLE VS. TORRES, July 23, 1998
Puno, J.
Facts:
On December 12, 1996, then President FIDEL V. RAMOS issued Administrative
Order No. 308 entitled ADOPTION OF A NATIONAL COMPUTERIZED IDENTIFICATION
REFERENCE SYSTEM.
The AO seeks to have all Filipino citizens and foreign residents to have a
Population Reference Number (PRN) generated by the National Statistics Office (NSO) through
the use of BIOMETRICS TECHNOLOGY .
The AO was questioned by Senator Ople on the following grounds:
1. The establishment of the PRN without any law is an unconstitutional usurpation of the legislative
powers of the Congress of the Philippines;
2. The appropriation of public funds for the implementation of the said AO is unconstitutional since
Congress has the exclusive authority to appropriate funds for such expenditure; and
3. The AO violates the citizens right to privacy protected by the Bill of Rights of the Constitution.
Held:
1. The AO establishes a system of identification that is all-encompassing in scope, affects the life
and liberty of every Filipino citizens and foreign residents and therefore, it is supposed to be a
law passed by Congress that implements it, not by an Administrative Order issued by the
President. Administrative Power, which is supposed to be exercised by the President, is
concerned with the work of applying policies and enforcing orders as determined by proper
governmental organs. It enables the President to fix a uniform standard of administrative
efficiency and check the official conduct of his agents. Prescinding from the foregoing precepts,
AO 308 involves a subject that is not appropriate to be covered by an Administrative Order. An
administrative order is an ordinance issued by the President which relates to specific aspects in
the administrative operation of the government. It must be in harmony with the law and should be
for the sole purpose of implementing the law and carrying out the legislative policy. The subject
of AO 308 therefore is beyond the power of the President to issue and it is a usurpation of
legislative power.
2. The AO likewise violates the right to privacy since its main purpose is to provide a common
reference number to establish a linkage among concerned agencies through the use of
BIOMETRICS TECHNOLOGY. Biometry is the science of the application of statistical methods
to biological facts; a mathematical analysis of a biological data. It is the confirmation of an
individuals identity through a fingerprint, retinal scan, hand geometry or facial features.
Through the PRN, the government offices has the chance of building a huge and formidable
information base through the electronic linkage of the files of every citizen. The data, however,
may be gathered for gainful and useful government purposes; but the existence of this vast

113
reservoir of personal information constitutes a covert invitation to misuse, a temptation that may
be too great for some of our authorities to resist.
Further, the AO does not even tells us in clear and unequivocal terms how these informations
gathered shall be handled. It does not provide who shall control and access the data and under
what circumstances and for what purpose. These factors are essential to safeguard the privacy and
guaranty the integrity of the information. The computer linkage gives other government agencies
access to the information. YET, THERE ARE NO CONTROLS TO GUARD AGAINST
LEAKAGE OF INFORMATIONS. WHEN THE ACCESS CODE OF THE CONTROL
PROGRAMS OF THE PARTICULAR COMPUTER SYSTEM IS BROKEN, AN INTRUDER,
WITHOUT FEAR OF SANCTION OR PENALTY, CAN MAKE USE OF THE DATA FOR
WHATEVER PURPOSE, OR WORSE, MANIPULATE THE DATA STORED WITHIN THE
SYSTEM.
AO No. 308 is unconstitutional since it falls short of assuring that personal
information gathered about our people will be used only for specified purposes thereby violating
the citizens right to privacy.
KILUSANG MAYO UNO VS. EXECUTIVE SECRETARY EDUARDO ERMITA, ET AL.,
April 19, 2006 & June 20, 2006
BAYAN MUNA VS. EXECUTIVE SECRETARY EDUARDO ERMITA, ET AL., April 19,
2006 & June 20, 2006

Carpio, J.
President Gloria Macapagal-Arroyo issued Presidential Proclamation No. 420 that mandates
the Adoption of a Unified, Multi-purpose Identification System by all Government Agencies
in the Executive Department. This is so despite the fact that the Supreme Court held in an En
Banc decision in 1998 OPLE VS. EXECUTIVE SECRETARY RUBEN TORRES Administrative
Order No. 308[National computerized Identification Reference System] issued by then President
Fidel V. Ramos that the same is unconstitutional because a national ID card system requires
legislation because it creates a new national data collection and card issuance system, where
none existed before. The Supreme Court likewise held that EO 308 as unconstitutional for it
violates the citizens right to privacy.
Based on the Ople ruling, the petitioners claimed that Proclamation No. 420 is
unconstitutional on two (2) grounds:
a. usurpation of legislative powers; and
b. it infringes on the citizens right to privacy
Held:
The said Executive Order No. 420 does not violate the citizens right to privacy since it does not
require all the citizens to be issued a national ID as what happened in AO 308. Only those dealing
or employed with the said government entities who are required to provide the required
information for the issuance of the said ID.
CAMILO L. SABIO vs. GORDON, G.R. No. 174340, October 17, 2006, 504 SCRA 704
Sandoval-Gutierrez, J.

114
The Facts:

On February 20, 2006, Senator Miriam Defensor Santiago introduced Philippine Senate
Resolution No. 455 (Senate Res. No. 455), 36[4] directing an inquiry in aid of legislation on the
anomalous losses incurred by the Philippines Overseas Telecommunications Corporation
(POTC),
Philippine Communications Satellite Corporation (PHILCOMSAT), and
PHILCOMSAT Holdings Corporation (PHC) due to the alleged improprieties in their operations
by their respective Board of Directors.

On May 8, 2006, Chief of Staff Rio C. Inocencio, under the authority of Senator Richard
J. Gordon, wrote Chairman Camilo L. Sabio of the PCGG, one of the herein petitioners, inviting
him to be one of the resource persons in the public meeting jointly conducted by the Committee
on Government Corporations and Public Enterprises and Committee on Public Services. The
purpose of the public meeting was to deliberate on Senate Res. No. 455. 37[6]

On May 9, 2006, Chairman Sabio and other commissioners of the PCGG declined the invitation
because of prior commitment. 38[7] At the same time, they invoked Section 4(b) of
E.O.
No. 1 earlier quoted.

On September 12, 2006, at around 10:45 a.m., Major General Balajadia arrested
Chairman Sabio in his office at IRC Building, No. 82 EDSA, Mandaluyong City and brought him
to the Senate premises where he was detained.

Hence, Chairman Sabio filed with the Supreme Court a petition for habeas corpus against
the Senate Committee on Government Corporations and Public Enterprises and Committee on
Public Services, their Chairmen, Senators Richard Gordon and Joker P. Arroyo and Members.

I S S U E S:

Is the investigation conducted on the petitioners violative of their right to privacy?

H E L D:

Zones of privacy are recognized and protected in our laws. 39[46] Within these zones, any
form of intrusion is impermissible unless excused by law and in accordance with customary legal
process. The meticulous regard we accord to these zones arises not only from our conviction that
the right to privacy is a constitutional right and the right most valued by civilized men,40[47]
36[4]
37[6]

Annex E of the Petition in G.R. No. 174318.


Annex F of the Petition in G.R. No. 174318.

38[7]

Annex G of the Petition in G.R. No. 174318.

39[46]

Marquez v. Desierto, G.R. No. 135882, June 27, 2001, 359 SCRA 772.

40[47]

See Morfe v. Mutuc No. L-20387, January 31, 1968, 22 SCRA 424.

115
but also from our adherence to the Universal Declaration of Human Rights which mandates that,
no one shall be subjected to arbitrary interference with his privacy and everyone has the right
to the protection of the law against such interference or attacks. 41[48]
Our Bill of Rights, enshrined in Article III of the Constitution, provides at least two
guarantees that explicitly create zones of privacy. It highlights a persons right to be let alone or
the right to determine what, how much, to whom and when information about himself shall be
disclosed.42[49] Section 2 guarantees 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. Section 3 renders inviolable the privacy of communication
and correspondence and further cautions that any evidence obtained in violation of this
or the preceding section shall be inadmissible for any purpose in any proceeding.

In evaluating a claim for violation of the right to privacy, a court must determine whether
a person has exhibited a reasonable expectation of privacy and, if so, whether that expectation has
been violated by unreasonable government intrusion.43[50] Applying this determination to these
cases, the important inquiries are: first, did the directors and officers of Philcomsat Holdings
Corporation exhibit a reasonable expectation of privacy? ; and second, did the government
violate such expectation?

The answers are in the negative. Petitioners were invited in the Senates public hearing to
deliberate on Senate Res. No. 455, particularly on the anomalous losses incurred by the
Philippine Overseas Telecommunications Corporation (POTC), Philippine Communications
Satellite Corporation (PHILCOMSAT), and Philcomsat Holdings Corporations (PHC) due
to the alleged improprieties in the operations by their respective board of directors .
Obviously, the inquiry focus on petitioners acts committed in the discharge of their duties as
officers and directors of the said corporations, particularly Philcomsat Holdings Corporation.
Consequently, they have no reasonable expectation of privacy over matters involving their
offices in a corporation where the government has interest. Certainly, such matters are of
public concern and over which the people have the right to information.

This goes to show that the right to privacy is not absolute where there is an
overriding compelling state interest. In Morfe v. Mutuc,44[51] the Court, in line with Whalen v.
Roe,45[52] employed the rational basis relationship test when it held that there was no infringement
of the individuals right to privacy as the requirement to disclosure information is for a valid
purpose, i.e., to curtail and minimize the opportunities for official corruption, maintain a standard
of honesty in public service, and promote morality in public administration. 46[53] In Valmonte v.
Belmonte,47[54] the Court remarked that as public figures, the Members of the former Batasang
41

[48]

42

[49]

43

[50]

44[51]

Supra.

45[52]

429 U.S. 589 (1977).

46[53]

Justice Puno, Lecture on Legislative Inquiry and Right to Privacy, p. 60.

47[54]

170 SCRA 256 (1989)

Article 12 of the Universal Declaration of Human Rights. See also Article 17 (1) and (2) of the International Covenant on
Civil and Political Rights.
Constitutional and Legal Systems of ASEAN Countries, Sison, Academy of ASEAN Law and Jurisprudence, 1990, at 221,
citing I.R. Cortes, The Constitutional Foundations of Privacy, 7 (1970).
Burrows v. Superior Court of San Bernardino County, 13 Cal. 3d 238, 529 P 2d 590 (1974). See Katz v. United states (1967),
389 U.S. 347, 350-352, 88 S. Ct. 507, 19 L. Ed. 2d 576; People v. Krivda (1971) 5 Cal. 3d 357, 364, 96 Cal. Rptr. 62, 486 P. 2d 1262; 8
Cal. 3d 623-624,105 Cal. Rptr. 521, 504 P. 2d 457. INSERT Herreras Handbook on Arrest, Search and Seizure.

116
Pambansa enjoy a more limited right to privacy as compared to ordinary individuals, and
their actions are subject to closer scrutiny. Taking this into consideration, the Court ruled that the
right of the people to access information on matters of public concern prevails over the right to
privacy of financial transactions.

Under the present circumstances, the alleged anomalies in the PHILCOMSAT, PHC and
POTC, ranging in millions of pesos, and the conspiratorial participation of the PCGG and its
officials are compelling reasons for the Senate to exact vital information from the directors and
officers of Philcomsat Holdings Corporations, as well as from Chairman Sabio and his
Commissioners to aid it in crafting the necessary legislation to prevent corruption and formulate
remedial measures and policy determination regarding PCGGs efficacy. There being no
reasonable expectation of privacy on the part of those directors and officers over the subject
covered by Senate Res. No. 455, it follows that their right to privacy has not been violated by
respondent Senate Committees.

Let it be stressed at this point that so long as the constitutional rights of witnesses, like
Chairman Sabio and his Commissioners, will be respected by respondent Senate Committees, it
their duty to cooperate with them in their efforts to obtain the facts needed for intelligent
legislative action. The unremitting obligation of every citizen is to respond to subpoenae, to
respect the dignity of the Congress and its Committees, and to testify fully with respect to matters
within the realm of proper investigation.
In fine, PCGG Chairman Camilo Sabio and Commissioners Ricardo Abcede, Narciso
Nario, Nicasio Conti, and Tereso Javier; and Manuel Andal and Julio Jalandoni, PCGGs
nominees to Philcomsat Holdings Corporation, as well as its directors and officers, must comply
with the Subpoenae Ad Testificandum issued by respondent Senate Committees directing
them to appear and testify in public hearings relative to Senate Resolution No. 455.

CHAPTER V - FREEDOM OF SPEECH,


PRESS, EXPRESSION, etc.

Section 4. No law shall be passed abridging the freedom of


speech, of expression, or of the press, or the right of the
people peaceably to assemble and petition the government
for the redress of their grievances.
NOTE: Applicable provisions of the Human Security Act/Anti-Terrorism Law, Republic Act No.
9372, Approved on March 6, 2007 and effective on July 15, 2007 (This Law shall be
automatically suspended one (1) month before and two (2) months after the holding of any
election)
Section 26 provides that persons who have been charged with terrorism or
conspiracy to commit terrorism---even if they have been granted bail because evidence of guilt is
not strongcan be:

Detained under house arrest;


Restricted from traveling; and/or
Prohibited from using any cellular phones, computers, or other means of communications with
people outside their residence.

117
1. Rule on criticisms against acts of public officers
Read:
1. Espuelas vs. People, 90 Phil. 524
2. US vs. Bustos, 37 Phil. 731 (A public official should not be onion-skinned with
reference to comments upon his official acts. The interest of the government and the society
demands full discussion of public affairs)
3. P. vs. Perez, 45 Phil. 599
4. Mercado vs. CFI, 116 SCRA 93
2. Freedom of the press, in general
Read:
BAGUIO MIDLAND COURIER & CECILLE AFABLE VS. COURT OF APPEALS &
RAMON LABO, JR., 444 SCRA 28 [November 25, 2004]
Freedom of Expression; the public has the right to be informed on the mental, moral and physical
fitness of candidates for public office.
FACTS:
1. In the January 3, 1988 issue of the Baguio Midland Courier (BMC), Cecille Afable, the Editorin-Chief, in her column In and Out of Baguio made the following comments:
Of all the candidates for Mayor of Baguio City), Labo has the most
imponderables about him. People would ask: can he read and write? Why is he always talking
about his Japanese father-in-law? Is he really a Japanes Senator or a barrio Kapitan? Is it true that
he will send P18M aid to Baguio? Somebody wanted to put an advertisement of Labo in the
Midland Courier but was refused because he has not yet paid his account of the last time he was a
candidate for Congress. We will accept all advertisements for him if he pays his old account
first.
2. In the same column, Cecille Afable wrote the following comments in her January 10, 1988
column at the Courier:
I heard that the Dumpty in the Egg is campaigning for Cortes. Not fair. Some
real doctors are also busy campaigning against Labo because he has not also paid their medical
services with them. Since he is donating millions he should also settle his small debts like the
reportedly insignificant amount of P27,000 only. If he wins, several teachers were signifying to
resign and leave Baguio forever, and Pangasinan will be the franca-liqua of Baguio.
3. As a result of the above articles, Ramon Labor, Jr. filed a complaint for Damages before the
regional trial Court of Baguio City as he claimed said articles were libelous. He likewise filed a
separate criminal complaint before the Office of the City Prosecutor of Baguio but was dismissed;
4. Labo claimed that the said articles were tainted with malice because he was allegedly described
as Dumpty in the Egg or one who is a failure in his business which is false because he is a
very successful businessman or to mean zero or a big lie; that he is a balasubas due to his
alleged failure to pay his medical expenses;
5. The petitioners, however, were able to prove that Labo has an unpaid obligation to the Courier in
the amount of P27,415.00 for the ads placed by his campaigners for the 1984 Batasang
Pambansa elections;

118
6. The Regional Trial Court, Branch 6, Baguio City, in its Decision dated June 14, 1990 dismissed
Labos complaint for damages on the ground that the article of petitioner Afable was privileged
and constituted fair comment on matters of public interest as it dealt with the integrity, reputation
and honesty of private respondent Labo who was a candidate for Mayor of Baguio City;
7. On January 7, 1992, the Court of Appeals reversed the RTC Decision and ordered the petitioners
to pay Ramon Labo, Jr. damages in the total amount of P350,000.00 after concluding that the
Dumpty in the Egg refers to no one but Labo himself.
Hence, the Petition to the Supreme Court.
ISSUES:
A. WAS LABO THE DUMPTY IN THE EGG DESCRIBED IN THE QUESTIONED
ARTICLE/
B. WERE THE ARTICLES SUBJECT OF THE CASE LIBELOUS OR PRIVILEGED/
HELD:
1. The Court of Appeals is wrong when it held that Labo is the Dumpty in the Egg in the
questioned article. This is so because the article stated that The Dumpty in the Egg is
campaigning for Cortes, another candidate for mayor and opponent of Labo himself. It is
unbelievable that Labo campaigned for his opponent and against himself. Although such
gracious attitude on the part of Labo would have been commendable, it is contrary to common
human experience. As pointed out by the petitioners, had he done that, it is doubtful whether he
could have won as City Mayor of Baguio in the 1988 elections, which he actually did. In line
with the doctrine in BORJAL VS. CA, 310 SCRA 1, that it is also not sufficient that the offended
party recognized himself as the person attacked or defamed, but it must be shown that at least a
3rd person could identify him as the object of the libelous publication, the case should be
dismissed since Labo utterly failed to dispose of this responsibility.
2. Labo claims that the petitioners could not invoke public interest to justify the publication since
he was not yet a public official at that time. This argument is without merit since he was already a
candidate for City mayor of Baguio. As such, the article is still within the mantle of protection
guaranteed by the freedom of expression provided in the Constitution since it is the publics right
to be informed of the mental, moral and physical fitness of candidates for public office. This was
recognized as early as the case of US VS. SEDANO, 14 Phil. 338 [1909] and the case of NEW
YORK TIMES VS. SULLIVAN, 376 U.S. 254 where the US Supreme Court held:
it is of the utmost consequence that the people should discuss the character
and qualifications of candidates for their suffrages. The importance to the State and to
society of such discussions is so vast, and the advantages derived so great, that they more
than counterbalance the inconvenience of private persons whose conduct may be
involved, and occasional injury to the reputations of individuals must yield to the public
welfare, although at times such injury may be great. The public benefit from publicity is
so great and the chance of injury to private character so small, that such discussion must
be privileged.
Clearly, the questioned articles constitute fair comment on a matter of public
interest as it dealt with the character of the private respondent who was running for the top
elective post in Baguio City at that time.
PABLITO V. SANIDAD VS. COMELEC,
G.R. NO. 90878, January 29, 1990
Freedom of expression and of the press

119
Medialdea, J.
Facts:
1. On October 23, 1989, RA 6766, entitled "AN ACT PROVIDING FOR AN ORGANIC ACT
FOR THE CORDILLERA AUTONOMOUS REGION" was enacted into law;
2. Pursuant to said law, the City of Baguio and Provinces of Benguet, Abra, Mt. Province, Ifugao
and Kalinga-Apayao, all comprising the autonomous region shall take part in a plebiscite
originally scheduled for December 27, 1989 but was reset to January 30, 1990 specifically for the
ratification or rejection of the said act;
3. By virtue of the 1987 Constitution and the Omnibus Election Code (BP 881), the Comelec
issued Comelec Resolution No. 2167, Section 19 of which provides:
"Section 19. Prohibition on columnist, commentators or announcers.- During the
plebiscite campaign period, on the day before and on plebiscite day, no mass media
columnist, commentator, announcer or personality shall use his column or radio or
television time to campaign for or against the plebiscite issues."
4. On November 20, 1989, petitioner PABLITO V. SANIDAD who is a columnist
("OVERVIEW") for the Baguio Midland Courier, a weekly newspaper circulated in the City of
Baguio and the Cordilleras, filed a petition for Prohibition with prayer for the issuance of a
temporary restraining order or a writ of preliminary injunction against the Comelec to enjoin the
latter from enforcing Section 19 of resolution No. 2167. Petitioner claims that the said provision
is violative of his constitutional freedom of expression and of the press and it also constitutes a
prior restraint because it imposes subsequent punishment for those who violate the same;
5. On November 28, 1989, the Supreme Court issued a temporary restraining order enjoining the
respondent from enforcing Section 19 of Resolution No. 2167;
6. On January 9, 1990, Comelec through the Solicitor General filed its Comment and moved for
the dismissal of the petition on the ground that Section 19 of Resolution No. 2167 does not
absolutely bar the petitioner from expressing his views because under Section 90 and 92 of BP
881, he may still express his views or campaign for or against the act through the Comelec space
and airtime.
Held:
What is granted by Art. IX-C of the Constitution to the Comelec is the power to supervise and
regulate the use and enjoyment of franchises, permits or other grants issued for the operation of
transportation or other public utilities to the end that equal opportunity, time and space, and the
right to reply, including reasonable, equal rates therefor, for public information campaigns and
forums among candidates are insured. The evil sought to be prevented by this provision is the
possibility that a franchise holder may favor or give undue advantage to a candidate in terms of
advertising time and space. This is also the reason why a columnist, commentator or announcer is
required to take a leave of absence from his work during the campaign period if he is a candidate.
HOWEVER, NEITHER ARTICLE IX-C OF THE CONSTITUTION NOR SECTION 11(B),
2ND PAR. OF RA 6646 CAN BE CONSTRUED TO MEAN THAT THE COMELEC HAS
ALSO BEEN GRANTED THE RIGHT TO SUPERVISE AND REGULATE THE EXERCISE
BY MEDIA PRACTITIONERS THEMSELVES OF THEIR RIGHT TO EXPRESSION
DURING THE PLEBISCITE PERIODS. Media practitioners exercising their freedom of
expression during the plebiscite periods are neither the franchise holders nor the candidates. In
fact, there are no candidates in a plebiscite.

120
While it is true that the petitioner is not absolutely barred from campaigning for or against the
Organic Act, said fact does not cure the constitutional infirmity of Section 19, Comelec
Resolution No. 2167. This is so because IT IS STILL A RESTRICTION ON HIS CHOICE OF
THE FORUM WHERE HE MAY EXPRESS HIS VIEW.
Plebiscite issues are matters of public concern and importance. The people's right to be
informed and to be able to freely and intelligently make a decision would be better served by
access to an unabridged discussion of the issues, INCLUDING THE FORUM. The people
affected by the issues presented in a plebiscite should not be unduly burdened by restrictions on
the forum where the right to expression may be exercised.
ACCORDINGLY, Section 19 of Comelec Resolution No. 2167 is hereby declared
UNCONSTITUTIONAL.
Read also:
1.
2.
3.
4.
5.

6.

7.
8.
9.
10.

In re: Ramon Tulfo,March 19, 199


In re: Atty. Emil Jurado, July 12, 1990
Burgos vs. Chief of Staff, 133 SCRA 800
Corro vs. Lising, 137 SCRA 448
Babst vs. NIB, 132 SCRA 316
Elizalde vs. Gutierrez,76 SCRA 448 (In order that any news item relating to a judicial
proceeding will not be actionable for being libelous, the same must be [a] a true and fair
report of the actual proceedings; [b] must be done in good faith; and [c] no comments nor
remarks shall be made by the writer.
Policarpio vs. Manila Times, 5 SCRA 148
Lopez vs. CA, 34 SCRA 116
New York Times vs. Sullivan,376 U.S.254
Liwayway Publishing vs. PCGG, April 15,l988
3. Freedom of expression in general
Read:

1. RANDY DAVID VS. ARROYO, May 3, 2006, 489 SCRA 160;


2. Adiong vs. Comelec, March 31, 1992 (putting of decals and stickers in ones car is within the
protected freedom of expression)
3. National Press Club vs. Comelec, March 5, 1992. Real also the dissenting and separate opinions
of the justices. (Preventing campaigns through radio, TV and newspapers is valid in order to
even the playing field between rich and poor candidates)
4. Zaldivar vs. Sandiganbayan, GR No. 7960-707 &
Zaldivar vs. Gonzales, GR No. 80578,
February
1, 1989
5. Eastern Broadcasting vs. Dans,137 SCRA 628
6. Newsweek vs. IAC, 142 SCRA 171
7. Kapisanan vs. Camara Shoes, 11 SCRA 477
8. IN RE: Atty. Tipon, 79 SCRA 372
9. Lacsa vs. IAC, May 23,1988
10. Kapunan vs. De Villa, December 6, 1988
4. Not within the protection of the freedom of
1. Obscenity; test of
Read:

expression clause of the Constitution

121
a. P. vs. Kottinger, 45 Phil. 352
b. P vs. GO PIN, August 8, 1955
Tests:
a. Whether the average person applying to contemporary community standards would find
the work appeals to prurient interest;
b. Whether the work depicts or describes a patently offensive sexual conduct;
c. Whether the work as a whole lacks serious literary , artistic, political or scientific value.
c. Miller vs. California, 37 L. Ed. 2d 419
d. Ginsberg vs. New York,390 U.S. 629
e. Pita vs. CA, 178 SCRA 362 (A City Mayor may not order the warrantless
seizure of magazines which he believes to be obscene; otherwise, he will become the
complainant, prosecutor and judge at the same time. He should obtain a search warrant from a
judge)
2. Libel or slander; test ofRead:
a. Lopez and Manila Times cases, supra
b. Quisumbing vs. Lopez, 96 Phil. 510
3. Cases undersub-judice
Read:
a. P. vs. Alarcon, 69 Phil. 265
5. Freedom of assembly and to petition the government

for redress of grievances

INTEGRATED BAR OF THE PHILIPPINES VS. MANILA MAYOR


JOSE LITO ATIENZA, G.R. No. 175241, February 24, 2010
CARPIO MORALES, J.:
Petitioners Integrated Bar of the Philippines (IBP) and lawyers H. Harry L. Roque and Joel R.
Butuyan appeal the June 28, 2006 Decision and the October 26, 2006 Resolution of the Court of Appeals
that found no grave abuse of discretion on the part of respondent Jose Lito Atienza, the then mayor of
Manila, in granting a permit to rally in a venue other than the one applied for by the IBP.
On June 15, 2006, the IBP, through its then National President Jose Anselmo Cadiz (Cadiz), filed
with the Office of the City Mayor of Manila a letter application for a permit to rally at the foot of
Mendiola Bridge on June 22, 2006 from 2:30 p.m. to 5:30 p.m. to be participated in by IBP officers and
members, law students and multi-sectoral organizations.
Respondent issued a permit dated June 16, 2006 allowing the IBP to stage a rally on given date but
indicated therein Plaza Miranda as the venue, instead of Mendiola Bridge, which permit the IBP received
on June 19, 2006.
Aggrieved, petitioners filed on June 21, 2006 before the Court of Appeals a petition for certiorari
docketed as CA-G.R. SP No. 94949. The petition having been unresolved within 24 hours from its filing,
petitioners filed before this Court on June 22, 2006 a petition for certiorari docketed as G.R. No. 172951

122
which assailed the appellate courts inaction or refusal to resolve the petition within the period provided
under the Public Assembly Act of 1985.
The Court, by Resolutions of July 26, 2006, August 30, 2006 and November 20, 2006,
respectively, denied the petition for being moot and academic, denied the relief that the petition be heard
on the merits in view of the pendency of CA-G.R. SP No. 94949, and denied the motion for
reconsideration.
The rally pushed through on June 22, 2006 at Mendiola Bridge, after Cadiz discussed with P/Supt.
Arturo Paglinawan whose contingent from the Manila Police District (MPD) earlier barred petitioners
from proceeding thereto. Petitioners allege that the participants voluntarily dispersed after the peaceful
conduct of the program.
The MPD thereupon instituted on June 26, 2006 a criminal action, docketed as I.S. No. 06I-12501,
against Cadiz for violating the Public Assembly Act in staging a rally at a venue not indicated in the
permit, to which charge Cadiz filed a Counter-Affidavit of August 3, 2006.
In the meantime, the appellate court ruled, in CA-G.R. SP No. 94949, by the first assailed issuance,
that the petition became moot and lacked merit. The appellate court also denied petitioners motion for
reconsideration by the second assailed issuance.
Hence, the filing of the present petition for review on certiorari, to which respondent filed his
Comment of November 18, 2008 which merited petitioners Reply of October 2, 2009.
ISSUE:
The main issue is whether the appellate court erred in holding that the modification of the venue in
IBPs rally permit does not constitute grave abuse of discretion.
Petitioners assert that the partial grant of the application runs contrary to the Pubic Assembly Act
and violates their constitutional right to freedom of expression and public assembly.
HELD:
The Court shall first resolve the preliminary issue of mootness.
Undoubtedly, the petition filed with the appellate court on June 21, 2006 became moot upon the
passing of the date of the rally on June 22, 2006.
A moot and academic case is one that ceases to present a justiciable controversy by virtue of
supervening events, so that a declaration thereon would be of no practical use or value. Generally, courts
decline jurisdiction over such case or dismiss it on ground of mootness. However, even in cases where
supervening events had made the cases moot, this Court did not hesitate to resolve the legal or
constitutional issues raised to formulate controlling principles to guide the bench, bar and public.
Moreover, as an exception to the rule on mootness, courts will decide a question otherwise moot if it
is capable of repetition, yet evading review.
In the present case, the question of the legality of a modification of a permit to rally will arise each
time the terms of an intended rally are altered by the concerned official, yet it evades review, owing to the
limited time in processing the application where the shortest allowable period is five days prior to the
assembly. The susceptibility of recurrence compels the Court to definitively resolve the issue at hand.
Section 6 of the Public Assembly Act reads:
Section 6. Action to be taken on the application -

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(a) It shall be the duty of the mayor or any official acting in his behalf to issue or grant a
permit unless there is clear and convincing evidence that the public assembly will create a
clear and present danger to public order, public safety, public convenience, public morals
or public health.
(b) The mayor or any official acting in his behalf shall act on the application within two
(2) working days from the date the application was filed, failing which, the permit shall be
deemed granted. Should for any reason the mayor or any official acting in his behalf
refuse to accept the application for a permit, said application shall be posted by the
applicant on the premises of the office of the mayor and shall be deemed to have been
filed.
(c) If the mayor is of the view that there is imminent and grave danger of a substantive
evil warranting the denial or modification of the permit, he shall immediately inform the
applicant who must be heard on the matter.
(d) The action on the permit shall be in writing and served on the application [ sic] within
twenty-four hours.
(e) If the mayor or any official acting in his behalf denies the application or modifies the
terms thereof in his permit, the applicant may contest the decision in an appropriate court
of law.
(f) In case suit is brought before the Metropolitan Trial Court, the Municipal Trial Court,
the Municipal Circuit Trial Court, the Regional Trial Court, or the Intermediate Appellate
Court, its decisions may be appealed to the appropriate court within forty-eight (48) hours
after receipt of the same. No appeal bond and record on appeal shall be required. A
decision granting such permit or modifying it in terms satisfactory to the applicant shall,
be immediately executory.
(g) All cases filed in court under this Section shall be decided within twenty-four (24)
hours from date of filing. Cases filed hereunder shall be immediately endorsed to the
executive judge for disposition or, in his absence, to the next in rank.
(h) In all cases, any decision may be appealed to the Supreme Court.
(i) Telegraphic appeals to be followed by formal appeals are hereby allowed.
(underscoring supplied)
In Bayan, Karapatan, Kilusang Magbubukid ng Pilipinas (KMP) v. Ermita, the Court reiterated:
x x x Freedom of assembly connotes the right of the people to meet peaceably for
consultation and discussion of matters of public concern. It is entitled to be accorded the
utmost deference and respect. It is not to be limited, much less denied, except on a
showing, as is the case with freedom of expression, of a clear and present danger of a
substantive evil that the state has a right to prevent. Even prior to the 1935
Constitution, Justice Malcolm had occasion to stress that it is a necessary consequence of
our republican institutions and complements the right of free speech. To paraphrase the
opinion of Justice Rutledge, speaking for the majority of the American Supreme Court in
Thomas v. Collins, it was not by accident or coincidence that the rights to freedom of
speech and of the press were coupled in a single guarantee with the rights of the people
peaceably to assemble and to petition the government for redress of grievances. All these
rights, while not identical, are inseparable. In every case, therefore, where there is a
limitation placed on the exercise of this right, the judiciary is called upon to examine the
effects of the challenged governmental actuation. The sole justification for a limitation

124
on the exercise of this right, so fundamental to the maintenance of democratic
institutions, is the danger, of a character both grave and imminent, of a serious evil
to public safety, public morals, public health, or any other legitimate public interest.
(emphasis supplied)
The Court in Bayan stated that the provisions of the Public Assembly Act of 1985 practically
codified the 1983 ruling in Reyes v. Bagatsing. In juxtaposing Sections 4 to 6 of the Public Assembly Act
with the pertinent portion of the Reyes case, the Court elucidated as follows:
x x x [The public official concerned shall] appraise whether there may be valid objections to the
grant of the permit or to its grant but at another public place. It is an indispensable condition to
such refusal or modification that the clear and present danger test be the standard for the decision
reached. If he is of the view that there is such an imminent and grave danger of a substantive
evil, the applicants must be heard on the matter. Thereafter, his decision, whether favorable or
adverse, must be transmitted to them at the earliest opportunity. Thus if so minded, they can have
recourse to the proper judicial authority. (italics and underscoring supplied)
In modifying the permit outright, respondent gravely abused his discretion when he did not
immediately inform the IBP who should have been heard first on the matter of his perceived
imminent and grave danger of a substantive evil that may warrant the changing of the venue. The
opportunity to be heard precedes the action on the permit, since the applicant may directly go to
court after an unfavorable action on the permit.
Respondent failed to indicate how he had arrived at modifying the terms of the permit against the
standard of a clear and present danger test which, it bears repeating, is an indispensable condition
to such modification. Nothing in the issued permit adverts to an imminent and grave danger of a
substantive evil, which blank denial or modification would, when granted imprimatur as the appellate
court would have it, render illusory any judicial scrutiny thereof.
It is true that the licensing official, here respondent Mayor, is not devoid of discretion in
determining whether or not a permit would be granted. It is not, however, unfettered discretion. While
prudence requires that there be a realistic appraisal not of what may possibly occur but of what may
probably occur, given all the relevant circumstances, still the assumption especially so where the
assembly is scheduled for a specific public place is that the permit must be for the assembly being held
there. The exercise of such a right, in the language of Justice Roberts, speaking for the American
Supreme Court, is not to be "abridged on the plea that it may be exercised in some other place.
(emphasis and underscoring supplied)
Notably, respondent failed to indicate in his Comment any basis or explanation for his action. It
smacks of whim and caprice for respondent to just impose a change of venue for an assembly that was
slated for a specific public place. It is thus reversible error for the appellate court not to
have found
such grave abuse of discretion.
The Court DECLARES that respondent committed grave abuse of discretion in modifying the
rally permit issued on June 16, 2006 insofar as it altered the venue from Mendiola Bridge to Plaza
Miranda.

GESITE et al. vs. COURT OF APPEALS, 444 SCRA 51


Freedom of public school teachers to peaceably assemble and petition the government for redress
of grievances; right of public school teachers to form union.
The petitioners admitted that they participated in concerted mass actions in Metro
Manila from September to the first half of October, 1990 which temporarily disrupted classes in
Metro Manila but they claimed that they were not on strike. They claimed that they were merely

125
exercising their constitutional right to peaceably assemble and petition the government for redress
of their grievances. Thus, they may not be penalized administratively.
HELD:
The issue of whether or not the mass action launched by the public school
teachers during the period from September up to the 1 st half of October, 1990 was a strike or not
has been decided in the case of MANILA PUBLIC SCHOOL TEACHERS ASSOCIATION VS.
LAGUIO, 200 SCRA 323 where it was held that these mass actions were to all intents and
purposes a strike; they constituted a concerted and unauthorized stoppage of, or absence from,
work which it was the teachers duty to perform, undertaken for essentially economic reasons.
It is undisputed fact that there was a work stoppage and that petitioners purpose
was to realize their demands by withholding their services. The fact that the conventional term
strike was not used by the striking employees to describe their common course of action is
inconsequential, SINCE THE SUBSTANCE OF THE SITUATION, AND NOT ITS
APPEARANCE, WILL BE DEEMED CONTROLLING.
Despite the constitutional right to form associations under the Constitution,
employees in the public service may not engage in strikes, mass leaves, walkouts and other forms
of mass actions that will lead to temporary stoppage or disruption of public service. The right of
government employees to organize IS LIMITED TO THE FORMATIONS OF UNIONS OR
ASSOCIATIONS ONLY, WITHOUT INCLUDING THE RIGHT TO STRIKE. (Bangalisan vs.
CA, 276 SCRA 619)
The petitioners are not therefore entitled to their salaries during their suspension
because the general proposition is that a public official is not entitled to any compensation if he
had not rendered any service.

BAYAN, KARAPATAN, KILUSANG MAGBUBUKID NG PILIPINAS (KMP), and


GABRIELA vs. EDUARDO ERMITA, in his capacity as Executive Secretary, Manila City
Mayor LITO ATIENZA, Chief of the Philippine National Police, Gen. ARTURO M.
LOMIBAO, NCRPO Chief Maj. Gen. VIDAL QUEROL, and Western Police District Chief
Gen. PEDRO BULAONG, G.R. No. 169848, May, 2006
AZCUNA, J.:
The Facts:
Petitioners come in three groups.
The first petitioners, Bayan, et al., in G.R. No. 169838, allege that they are citizens and
taxpayers of the Philippines and that their rights as organizations and individuals were violated
when the rally they participated in on October 6, 2005 was violently dispersed by policemen
implementing Batas Pambansa (B.P.) No. 880.
The second group consists of 26 individual petitioners, Jess del Prado, et al., in G.R.
No. 169848, who allege that they were injured, arrested and detained when a peaceful mass action
they held on September 26, 2005 was preempted and violently dispersed by the police. They
further assert that on October 5, 2005, a group they participated in marched to Malacaang to
protest issuances of the Palace which, they claim, put the country under an undeclared martial
rule, and the protest was likewise dispersed violently and many among them were arrested and
suffered injuries.

126
The third group, Kilusang Mayo Uno (KMU), et al., petitioners in G.R. No. 169881,
allege that they conduct peaceful mass actions and that their rights as organizations and those of
their individual members as citizens, specifically the right to peaceful assembly, are affected by
Batas Pambansa No. 880 and the policy of Calibrated Preemptive Response (CPR) being
followed to implement it.
KMU, et al., claim that on October 4, 2005, a rally KMU co-sponsored was to be
conducted at the Mendiola bridge but police blocked them along C.M. Recto and Lepanto Streets
and forcibly dispersed them, causing injuries to several of their members. They further allege
that on October 6, 2005, a multi-sectoral rally which KMU also co-sponsored was scheduled to
proceed along Espaa Avenue in front of the University of Santo Tomas and going towards
Mendiola bridge. Police officers blocked them along Morayta Street and prevented them from
proceeding further. They were then forcibly dispersed, causing injuries on one of them. Three
other rallyists were arrested.
All petitioners assail Batas Pambansa No. 880, some of them in toto and others only
Sections 4, 5, 6, 12, 13(a), and 14(a), as well as the policy of CPR. They seek to stop violent
dispersals of rallies under the no permit, no rally policy and the CPR policy recently
announced.
B.P. No. 880, The Public Assembly Act of 1985, provides:
Batas Pambansa Blg. 880
An Act Ensuring The Free Exercise By The People Of Their Right Peaceably To
Assemble And Petition The Government [And] For Other Purposes
Be it enacted by the Batasang Pambansa in session assembled:
SECTION 1. Title . This Act shall be known as The Public Assembly Act of 1985.
SEC. 2. Declaration of policy. The constitutional right of the people peaceably to
assemble and petition the government for redress of grievances is essential and vital to the
strength and stability of the State. To this end, the State shall ensure the free exercise of such
right without prejudice to the rights of others to life, liberty and equal protection of the law.
SEC. 3. Definition of terms. For purposes of this Act:
(b)
Public place shall include any highway, boulevard, avenue, road, street, bridge
or other thoroughfare, park, plaza square, and/or any open space of public ownership where the
people are allowed access.
(c)
Maximum tolerance means the highest degree of restraint that the military,
police and other peace keeping authorities shall observe during a public assembly or in the
dispersal of the same.
SEC. 4. Permit when required and when not required.-- A written permit shall be
required for any person or persons to organize and hold a public assembly in a public place.
However, no permit shall be required if the public assembly shall be done or made in a freedom
park duly established by law or ordinance or in private property, in which case only the consent of
the owner or the one entitled to its legal possession is required, or in the campus of a governmentowned and operated educational institution which shall be subject to the rules and regulations of
said educational institution. Political meetings or rallies held during any election campaign period
as provided for by law are not covered by this Act.
SEC. 5. Application requirements.-- All applications for a permit shall comply with the
following guidelines:

127
1.
The applications shall be in writing and shall include the names of the leaders or
organizers; the purpose of such public assembly; the date, time and duration thereof, and place or
streets to be used for the intended activity; and the probable number of persons participating, the
transport and the public address systems to be used.
2.
The application shall incorporate the duty and responsibility of applicant under
Section 8 hereof.
3.
The application shall be filed with the office of the mayor of the city or
municipality in whose jurisdiction the intended activity is to be held, at least five (5) working
days before the scheduled public assembly.
4.
Upon receipt of the application, which must be duly acknowledged in writing, the
office of the city or municipal mayor shall cause the same to immediately be posted at a
conspicuous place in the city or municipal building.
SEC. 6. Action to be taken on the application.
1.
It shall be the duty of the mayor or any official acting in his behalf to issue or
grant a permit unless there is clear and convincing evidence that the public assembly will create a
clear and present danger to public order, public safety, public convenience, public morals or
public health.
2.
The mayor or any official acting in his behalf shall act on the application within
two (2) working days from the date the application was filed, failing which, the permit shall be
deemed granted. Should for any reason the mayor or any official acting in his behalf refuse to
accept the application for a permit, said application shall be posted by the applicant on the
premises of the office of the mayor and shall be deemed to have been filed.
3.
If the mayor is of the view that there is imminent and grave danger of a
substantive evil warranting the denial or modification of the permit, he shall immediately inform
the applicant who must be heard on the matter.
4.
The action on the permit shall be in writing and served on the applica[nt] within
twenty-four hours.
5.
If the mayor or any official acting in his behalf denies the application or modifies
the terms thereof in his permit, the applicant may contest the decision in an appropriate court of
law.
6.
In case suit is brought before the Metropolitan Trial Court, the Municipal Trial
Court, the Municipal Circuit Trial Court, the Regional Trial Court, or the Intermediate Appellate
court, its decisions may be appealed to the appropriate court within forty-eight (48) hours after
receipt of the same. No appeal bond and record on appeal shall be required. A decision granting
such permit or modifying if in terms satisfactory to the applicant shall be immediately executory.
7.
All cases filed in court under this section shall be decided within twenty-four
(24) hours from date of filing. Cases filed hereunder shall be immediately endorsed to the
executive judge for disposition or, in his absence, to the next in rank.
8.

In all cases, any decision may be appealed to the Supreme Court.

CPR, on the other hand, is a policy set forth in a press release by Malacaang dated
September 21, 2005, shown in Annex A to the Petition in G.R. No. 169848, thus:

128
Malacaang
Manila, Philippines
Release No. 2

Official
NEWS
September 21, 2005

STATEMENT OF EXECUTIVE SECRETARY EDUARDO ERMITA


On Unlawful Mass Actions
In view of intelligence reports pointing to credible plans of anti-government groups to
inflame the political situation, sow disorder and incite people against the duty constituted
authorities, we have instructed the PNP as well as the local government units to strictly enforce a
no permit, no rally policy, disperse groups that run afoul of this standard and arrest all persons
violating the laws of the land as well as ordinances on the proper conduct of mass actions and
demonstrations.
The rule of calibrated preemptive response is now in force, in lieu of maximum
tolerance. The authorities will not stand aside while those with ill intent are herding a
witting or unwitting mass of people and inciting them into actions that are inimical to public
order, and the peace of mind of the national community.
Unlawful mass actions will be dispersed. The majority of law-abiding citizens have the
right to be protected by a vigilant and proactive government.
We appeal to the detractors of the government to engage in lawful and peaceful conduct
befitting of a democratic society.
The Presidents call for unity and reconciliation stands, based on the rule of law.
Petitioners Bayan, et al., contend that Batas Pambansa No. 880 is clearly a violation of
the Constitution and the International Covenant on Civil and Political Rights and other human
rights treaties of which the Philippines is a signatory.
They argue that B.P. No. 880 requires a permit before one can stage a public assembly
regardless of the presence or absence of a clear and present danger. It also curtails the choice of
venue and is thus repugnant to the freedom of expression clause as the time and place of a public
assembly form part of the message for which the expression is sought. Furthermore, it is not
content-neutral as it does not apply to mass actions in support of the government. The words
lawful cause, opinion, protesting or influencing suggest the exposition of some cause not
espoused by the government. Also, the phrase maximum tolerance shows that the law applies
to assemblies against the government because they are being tolerated. As a content-based
legislation, it cannot pass the strict scrutiny test.
Furthermore, the law delegates powers to the Mayor without providing clear
standards. The two standards stated in the laws (clear and present danger and imminent and
grave danger) are inconsistent.
Regarding the CPR policy, it is void for being an ultra vires act that alters the standard of
maximum tolerance set forth in B.P. No. 880, aside from being void for being vague and for lack
of publication.
Finally, petitioners KMU, et al., argue that the Constitution sets no limits on the right to
assembly and therefore B.P. No. 880 cannot put the prior requirement of securing a permit. And
even assuming that the legislature can set limits to this right, the limits provided are
unreasonable: First, allowing the Mayor to deny the permit on clear and convincing evidence of a
clear and present danger is too comprehensive. Second, the five-day requirement to apply for a

129
permit is too long as certain events require instant public assembly, otherwise interest on the issue
would possibly wane.
As to the CPR policy, they argue that it is preemptive, that the government takes action
even before the rallyists can perform their act, and that no law, ordinance or executive order
supports the policy. Furthermore, it contravenes the maximum tolerance policy of B.P. No. 880
and violates the Constitution as it causes a chilling effect on the exercise by the people of the
right to peaceably assemble.
I s s u e s:
4.

On the constitutionality of Batas Pambansa No. 880, specifically Sections 4, 5, 6, 12 13(a) and
14(a) thereof, and Republic Act No. 7160:

1.
1.
2.
3.
4.

Are these content-neutral or content-based regulations?


Are they void on grounds of overbreadth or vagueness?
Do they constitute prior restraint?
Are they undue delegations of powers to Mayors?
Do they violate international human rights treaties and the Universal Declaration of Human
Rights?

5.

On the constitutionality and legality of the policy of Calibrated Preemptive Response (CPR):

1.
2.
3.

Is the policy void on its face or due to vagueness?


Is it void for lack of publication?
Is the policy of CPR void as applied to the rallies of September 26 and October 4, 5 and 6, 2005?
H e l d:
Petitioners standing cannot be seriously challenged. Their right as citizens to engage in
peaceful assembly and exercise the right of petition, as guaranteed by the Constitution, is directly
affected by B.P. No. 880 which requires a permit for all who would publicly assemble in the
nations streets and parks. They have, in fact, purposely engaged in public assemblies without the
required permits to press their claim that no such permit can be validly required without violating
the Constitutional guarantee. Respondents, on the other hand, have challenged such action as
contrary to law and dispersed the public assemblies held without the permit.
Section 4 of Article III of the Constitution provides:
SEC. 4. No law shall be passed abridging the freedom of speech, of expression, or of the
press, or the right of the people peaceably to assemble and petition the government for redress of
grievances.
The first point to mark is that the right to peaceably assemble and petition for redress of
grievances is, together with freedom of speech, of expression, and of the press, a right that enjoys
primacy in the realm of constitutional protection. For these rights constitute the very basis of a
functional democratic polity, without which all the other rights would be meaningless and
unprotected. As stated in Jacinto v. CA, the Court, as early as the onset of this century, in U.S. v.
Apurado already upheld the right to assembly and petition, as follows:
There is no question as to the petitioners rights to peaceful assembly to petition the
government for a redress of grievances and, for that matter, to organize or form associations for
purposes not contrary to law, as well as to engage in peaceful concerted activities. These rights
are guaranteed by no less than the Constitution, particularly Sections 4 and 8 of the Bill of Rights,
Section 2(5) of Article IX, and Section 3 of Article XIII. Jurisprudence abounds with hallowed
pronouncements defending and promoting the peoples exercise of these rights. As early as the

130
onset of this century, this Court in U.S. vs. Apurado, already upheld the right to assembly and
petition and even went as far as to acknowledge:
It is rather to be expected that more or less disorder will mark the public assembly of the
people to protest against grievances whether real or imaginary, because on such occasions feeling
is always wrought to a high pitch of excitement, and the greater, the grievance and the more
intense the feeling, the less perfect, as a rule will be the disciplinary control of the leaders over
their irresponsible followers. But if the prosecution be permitted to seize upon every instance of
such disorderly conduct by individual members of a crowd as an excuse to characterize the
assembly as a seditious and tumultuous rising against the authorities, then the right to assemble
and to petition for redress of grievances would expose all those who took part therein to the
severest and most unmerited punishment, if the purposes which they sought to attain did not
happen to be pleasing to the prosecuting authorities. If instances of disorderly conduct occur on
such occasions, the guilty individuals should be sought out and punished therefor, but the utmost
discretion must be exercised in drawing the line between disorderly and seditious conduct and
between an essentially peaceable assembly and a tumultuous uprising.
Again, in Primicias v. Fugoso, the Court likewise sustained the primacy of freedom of
speech and to assembly and petition over comfort and convenience in the use of streets and parks.
Next, however, it must be remembered that the right, while sacrosanct, is not absolute. In
Primicias, this Court said:
The right to freedom of speech, and to peacefully assemble and petition the government
for redress of grievances, are fundamental personal rights of the people recognized and
guaranteed by the constitutions of democratic countries. But it is a settled principle growing out
of the nature of well-ordered civil societies that the exercise of those rights is not absolute for it
may be so regulated that it shall not be injurious to the equal enjoyment of others having equal
rights, nor injurious to the rights of the community or society. The power to regulate the exercise
of such and other constitutional rights is termed the sovereign police power, which is the power
to prescribe regulations, to promote the health, morals, peace, education, good order or safety, and
general welfare of the people. This sovereign police power is exercised by the government
through its legislative branch by the enactment of laws regulating those and other constitutional
and civil rights, and it may be delegated to political subdivisions, such as towns, municipalities
and cities by authorizing their legislative bodies called municipal and city councils enact
ordinances for purpose
Reyes v. Bagatsing further expounded on the right and its limits, as follows:
1.
It is thus clear that the Court is called upon to protect the exercise of the cognate
rights to free speech and peaceful assembly, arising from the denial of a permit. The Constitution
is quite explicit: No law shall be passed abridging the freedom of speech, or of the press, or the
right of the people peaceably to assemble and petition the Government for redress of grievances.
Free speech, like free press, may be identified with the liberty to discuss publicly and truthfully
any matter of public concern without censorship or punishment. There is to be then no previous
restraint on the communication of views or subsequent liability whether in libel suits, prosecution
for sedition, or action for damages, or contempt proceedings unless there be a clear and present
danger of a substantive evil that [the State] has a right to prevent. Freedom of assembly
connotes the right of the people to meet peaceably for consultation and discussion of matters of
public concern. It is entitled to be accorded the utmost deference and respect. It is not to be
limited, much less denied, except on a showing, as is the case with freedom of expression, of a
clear and present danger of a substantive evil that the state has a right to prevent. Even prior to
the 1935 Constitution, Justice Malcolm had occasion to stress that it is a necessary consequence
of our republican institutions and complements the right of free speech. To paraphrase the
opinion of Justice Rutledge, speaking for the majority of the American Supreme Court in Thomas
v. Collins, it was not by accident or coincidence that the rights to freedom of speech and of the

131
press were coupled in a single guarantee with the right of the people peaceably to assemble and to
petition the government for redress of grievances. All these rights, while not identical, are
inseparable. In every case, therefore, where there is a limitation placed on the exercise of this
right, the judiciary is called upon to examine the effects of the challenged governmental
actuation. The sole justification for a limitation on the exercise of this right, so fundamental to
the maintenance of democratic institutions, is the danger, of a character both grave and imminent,
of a serious evil to public safety, public morals, public health, or any other legitimate public
interest.
2.
Nowhere is the rationale that underlies the freedom of expression and peaceable
assembly better expressed than in this excerpt from an opinion of Justice Frankfurter: It must
never be forgotten, however, that the Bill of Rights was the child of the Enlightenment. Back of
the guaranty of free speech lay faith in the power of an appeal to reason by all the peaceful means
for gaining access to the mind. It was in order to avert force and explosions due to restrictions
upon rational modes of communication that the guaranty of free speech was given a generous
scope. But utterance in a context of violence can lose its significance as an appeal to reason and
become part of an instrument of force. Such utterance was not meant to be sheltered by the
Constitution. What was rightfully stressed is the abandonment of reason, the utterance, whether
verbal or printed, being in a context of violence. It must always be remembered that this right
likewise provides for a safety valve, allowing parties the opportunity to give vent to their views,
even if contrary to the prevailing climate of opinion. For if the peaceful means of communication
cannot be availed of, resort to non-peaceful means may be the only alternative. Nor is this the
sole reason for the expression of dissent. It means more than just the right to be heard of the
person who feels aggrieved or who is dissatisfied with things as they are. Its value may lie in the
fact that there may be something worth hearing from the dissenter. That is to ensure a true
ferment of ideas. There are, of course, well-defined limits. What is guaranteed is peaceable
assembly. One may not advocate disorder in the name of protest, much less preach rebellion
under the cloak of dissent. The Constitution frowns on disorder or tumult attending a rally or
assembly. Resort to force is ruled out and outbreaks of violence to be avoided. The utmost calm
though is not required. As pointed out in an early Philippine case, penned in 1907 to be precise,
United States v. Apurado: It is rather to be expected that more or less disorder will mark the
public assembly of the people to protest against grievances whether real or imaginary, because on
such occasions feeling is always wrought to a high pitch of excitement, and the greater the
grievance and the more intense the feeling, the less perfect, as a rule, will be the disciplinary
control of the leaders over their irresponsible followers. It bears repeating that for the
constitutional right to be invoked, riotous conduct, injury to property, and acts of vandalism must
be avoided. To give free rein to ones destructive urges is to call for condemnation. It is to make
a mockery of the high estate occupied by intellectual liberty in our scheme of values.
There can be no legal objection, absent the existence of a clear and present danger of a
substantive evil, on the choice of Luneta as the place where the peace rally would start. The
Philippines is committed to the view expressed in the plurality opinion, of 1939 vintage of,
Justice Roberts in Hague v. CIO: Whenever the title of streets and parks may rest, they have
immemorially been held in trust for the use of the public and, time out of mind, have been used
for purposes of assembly, communicating thoughts between citizens, and discussing public
questions. Such use of the streets and public places has, from ancient times, been a part of the
privileges, immunities, rights and liberties of citizens. The privilege of a citizen of the United
States to use the streets and parks for communication of views on national questions may be
regulated in the interest of all; it is not absolute, but relative, and must be exercised in
subordination to the general comfort and convenience, and in consonance with peace and good
order; but must not, in the guise of respondents, be abridged or denied. The above excerpt was
quoted with approval in Primicias v. Fugoso. Primicias made explicit what was implicit in
Municipality of Cavite v. Rojas, a 1915 decision, where this Court categorically affirmed that
plazas or parks and streets are outside the commerce of man and thus nullified a contract that
leased Plaza Soledad of plaintiff-municipality. Reference was made to such plaza being a
promenade for public use, which certainly is not the only purpose that it could serve. To repeat,

132
there can be no valid reason why a permit should not be granted for the proposed march and rally
starting from a public park that is the Luneta.
4.
Neither can there be any valid objection to the use of the streets to the gates of
the US embassy, hardly two blocks away at the Roxas Boulevard. Primicias v. Fugoso has
resolved any lurking doubt on the matter. In holding that the then Mayor Fugoso of the City of
Manila should grant a permit for a public meeting at Plaza Miranda in Quiapo, this Court
categorically declared: Our conclusion finds support in the decision in the case of Willis Cox v.
State of New Hampshire, 312 U.S., 569. In that case, the statute of New Hampshire P.L. chap.
145, section 2, providing that no parade or procession upon any ground abutting thereon, shall be
permitted unless a special license therefor shall first be obtained from the selectmen of the town
or from licensing committee, was construed by the Supreme Court of New Hampshire as not
conferring upon the licensing board unfettered discretion to refuse to grant the license, and held
valid. And the Supreme Court of the United States, in its decision (1941) penned by Chief Justice
Hughes affirming the judgment of the State Supreme Court, held that a statute requiring persons
using the public streets for a parade or procession to procure a special license therefor from the
local authorities is not an unconstitutional abridgment of the rights of assembly or of freedom of
speech and press, where, as the statute is construed by the state courts, the licensing authorities
are strictly limited, in the issuance of licenses, to a consideration of the time, place, and manner
of the parade or procession, with a view to conserving the public convenience and of affording an
opportunity to provide proper policing, and are not invested with arbitrary discretion to issue or
refuse license, * * *. Nor should the point made by Chief Justice Hughes in a subsequent
portion of the opinion be ignored: Civil liberties, as guaranteed by the Constitution, imply the
existence of an organized society maintaining public order without which liberty itself would be
lost in the excesses of unrestricted abuses. The authority of a municipality to impose regulations
in order to assure the safety and convenience of the people in the use of public highways has
never been regarded as inconsistent with civil liberties but rather as one of the means of
safeguarding the good order upon which they ultimately depend. The control of travel on the
streets of cities is the most familiar illustration of this recognition of social need. Where a
restriction of the use of highways in that relation is designed to promote the public convenience
in the interest of all, it cannot be disregarded by the attempted exercise of some civil right which
in other circumstances would be entitled to protection.
xxx
6.
x x x The principle under American doctrines was given utterance by Chief
Justice Hughes in these words: The question, if the rights of free speech and peaceable
assembly are to be preserved, is not as to the auspices under which the meeting is held but as to
its purpose; not as to the relations of the speakers, but whether their utterances transcend the
bounds of the freedom of speech which the Constitution protects. There could be danger to
public peace and safety if such a gathering were marked by turbulence. That would deprive it of
its peaceful character. It is true that the licensing official, here respondent Mayor, is not devoid of
discretion in determining whether or not a permit would be granted. It is not, however, unfettered
discretion. While prudence requires that there be a realistic appraisal not of what may possibly
occur but of what may probably occur, given all the relevant circumstances, still the assumption
especially so where the assembly is scheduled for a specific public place is that the permit must
be for the assembly being held there. The exercise of such a right, in the language of Justice
Roberts, speaking for the American Supreme Court, is not to be abridged on the plea that it may
be exercised in some other place.
xxx
8.
By way of a summary. [a] The applicants for a permit to hold an assembly
should inform the licensing authority of the date, the public place where and the time when
it will take place. [b] If it were a private place, only the consent of the owner or the one
entitled to its legal possession is required. [c] Such application should be filed well ahead in
time to enable the public official concerned to appraise whether there may be valid

133
objections to the grant of the permit or to its grant but at another public place. [d] It is an
indispensable condition to such refusal or modification that the clear and present danger
test be the standard for the decision reached. [e] If he is of the view that there is such an
imminent and grave danger of a substantive evil, the applicants must be heard on the
matter. [f] Thereafter, his decision, whether favorable or adverse, must be transmitted to
them at the earliest opportunity. Thus if so minded, they can have recourse to the proper
judicial authority. Free speech and peaceable assembly, along with the other intellectual
freedoms, are highly ranked in our scheme of constitutional values. It cannot be too strongly
stressed that on the judiciary, -- even more so than on the other departments rests the grave and
delicate responsibility of assuring respect for and deference to such preferred rights. No verbal
formula, no sanctifying phrase can, of course, dispense with what has been so felicitously termed
by Justice Holmes as the sovereign prerogative of judgment. Nonetheless, the presumption
must be to incline the weight of the scales of justice on the side of such rights, enjoying as they
do precedence and primacy. x x x.
B.P. No. 880 was enacted after this Court rendered its decision in Reyes.
The provisions of B.P. No. 880 practically codify the ruling in Reyes:
Reyes v. Bagatsing
(G.R. No. L-65366, November
9, 1983,
125 SCRA 553,
569)
8. By way of a summary.
The applicants for a permit to
hold an assembly should inform
the licensing authority of the
date, the public place where and
the time when it will take place.
If it were a private place, only
the consent of the owner or the
one entitled to its legal
possession is required. Such
application should be filed well
ahead in time to enable the
public official concerned to
appraise whether there may be
valid objections to the grant of
the permit or to its grant but at
another public place. It is an
indispensable condition to such
refusal or modification that the
clear and present danger test be
the standard for the decision
reached. If he is of the view
that there is such an imminent
and grave danger of a
substantive evil, the applicants
must be heard on the matter.
Thereafter,
his
decision,
whether favorable or adverse,
must be transmitted to them at
the earliest opportunity. Thus if

B.P. No. 880

SEC. 4.
Permit when
required and when not
required.-- A written permit
shall be required for any
person or persons to organize
and hold a public assembly in
a public place. However, no
permit shall be required if the
public assembly shall be done
or made in a freedom park
duly established by law or
ordinance or in private
property, in which case only
the consent of the owner or
the one entitled to its legal
possession is required, or in
the campus of a governmentowned
and
operated
educational institution which
shall be subject to the rules
and regulations of said
educational
institution.
Political meetings or rallies
held during any election
campaign period as provided
for by law are not covered by
this Act.
SEC. 5.
Application
requirements.-All
applications for a permit shall
comply with the following

134
so minded, they can have
recourse to the proper judicial
authority.

guidelines:
(a) The applications shall
be in writing and shall
include the names of the
leaders or organizers; the
purpose of such public
assembly; the date, time and
duration thereof, and place or
streets to be used for the
intended activity; and the
probable number of persons
participating, the transport
and the public address
systems to be used.
(b) The application shall
incorporate the duty and
responsibility of applicant
under Section 8 hereof.
(c) The application shall be
filed with the office of the
mayor of the city or
municipality
in
whose
jurisdiction the intended
activity is to be held, at least
five (5) working days before
the
scheduled
public
assembly.
(d) Upon receipt of the
application, which must be
duly
acknowledged
in
writing, the office of the city
or municipal mayor shall
cause
the
same
to
immediately be posted at a
conspicuous place in the city
or municipal building.
SEC. 6. Action to be taken
on the application.
(a) It shall be the duty of
the mayor or any official
acting in his behalf to issue or
grant a permit unless there is
clear
and
convincing
evidence that the public
assembly will create a clear
and present danger to public
order, public safety, public
convenience, public morals or
public health.
(b) The mayor or any
official acting in his behalf
shall act on the application
within two (2) working days
from the date the application
was filed, failing which, the
permit shall be deemed

135
granted.
Should for any
reason the mayor or any
official acting in his behalf
refuse
to
accept
the
application for a permit, said
application shall be posted by
the applicant on the premises
of the office of the mayor
and shall be deemed to have
been filed.
(c) If the mayor is of the
view that there is imminent
and grave danger of a
substantive evil warranting
the denial or modification of
the
permit,
he
shall
immediately
inform
the
applicant who must be heard
on the matter.
(d) The action on the
permit shall be in writing and
served on the applica[nt]
within twenty-four hours.
(e) If the mayor or any
official acting in his behalf
denies the application or
modifies the terms thereof in
his permit, the applicant may
contest the decision in an
appropriate court of law.
(f) In case suit is brought
before the Metropolitan Trial
Court, the Municipal Trial
Court, the Municipal Circuit
Trial Court, the Regional
Trial
Court,
or
the
Intermediate Appellate Court,
its decisions may be appealed
to the appropriate court
within forty-eight (48) hours
after receipt of the same. No
appeal bond and record on
appeal shall be required. A
decision granting such permit
or modifying it in terms
satisfactory to the applicant
shall
be
immediately
executory.
(g) All cases filed in court
under this section shall be
decided within twenty-four
(24) hours from date of filing.
Cases filed hereunder shall be
immediately endorsed to the
executive
judge
for
disposition or, in his absence,
to the next in rank.

136
(h) In all cases, any
decision may be appealed to
the Supreme Court.
(i) Telegraphic appeals to
be followed by formal
appeals are hereby allowed.

It is very clear, therefore, that B.P. No. 880 is not an absolute ban of public assemblies
but a restriction that simply regulates the time, place and manner of the assemblies. This
was adverted to in Osmea v. Comelec,48 where the Court referred to it as a content-neutral
regulation of the time, place, and manner of holding public assemblies. 49
A fair and impartial reading of B.P. No. 880 thus readily shows that it refers to all kinds
of public assemblies50 that would use public places. The reference to lawful cause does not
make it content-based because assemblies really have to be for lawful causes, otherwise they
would not be peaceable and entitled to protection. Neither are the words opinion,
protesting and influencing in the definition of public assembly content based, since they can
refer to any subject. The words petitioning the government for redress of grievances come
from the wording of the Constitution, so its use cannot be avoided. Finally, maximum tolerance
is for the protection and benefit of all rallyists and is independent of the content of the
expressions in the rally.
Furthermore, the permit can only be denied on the ground of clear and present danger to
public order, public safety, public convenience, public morals or public health. This is a
recognized exception to the exercise of the right even under the Universal Declaration of Human
Rights and the International Covenant on Civil and Political Rights.
Neither is the law overbroad. It regulates the exercise of the right to peaceful assembly
and petition only to the extent needed to avoid a clear and present danger of the substantive evils
Congress has the right to prevent.
There is, likewise, no prior restraint, since the content of the speech is not relevant to
the regulation.
As to the delegation of powers to the mayor, the law provides a precise and sufficient
standard the clear and present danger test stated in Sec. 6(a). The reference to imminent and
grave danger of a substantive evil in Sec. 6(c) substantially means the same thing and is not an
inconsistent standard. As to whether respondent Mayor has the same power independently under
Republic Act No. 716051 is thus not necessary to resolve in these proceedings, and was not
pursued by the parties in their arguments.

48
49
50

51

G.R. No. 132231, March 31, 1998, 288 SCRA 447.


Ibid, p. 478.
Except picketing and other concerted action in strike areas by workers and employees resulting from a
labor dispute, which are governed by the Labor Code and other labor laws; political meeting or rallies held during
any election campaign period, which are governed by the Election Code and other election related laws; and public
assemblies in the campus of a government-owned and operated educational institution, which shall be subject to
the rules and regulations of said educational institution. (Sec. 3[a] and Sec. 4 of B.P. No. 880).
The Local Government Code. Specifically, Section 16 stating the general welfare clause, thus:
SEC. 16. General Welfare. Every local government unit shall exercise the powers expressly granted,
those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and
effective governance, and those which are essential to the promotion of the general welfare. Within their
respective territorial jurisdictions, local government units shall ensure and support among other things, the
preservation and enrichment of culture, promote health and safety, enhance the right of the people to a balanced
ecology, encourage and support the development of appropriate and self-reliant scientific and technological
capabilities, improve public morals, enhance economic prosperity and social justice, promote full employment
among their residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants.

137
Finally, for those who cannot wait, Section 15 of the law provides for an alternative
forum through the creation of freedom parks where no prior permit is needed for peaceful
assembly and petition at any time:
SEC. 15. Freedom parks. Every city and municipality in the country shall within six
months after the effectivity of this Act establish or designate at least one suitable freedom park
or mall in their respective jurisdictions which, as far as practicable, shall be centrally located
within the poblacion where demonstrations and meetings may be held at any time without the
need of any prior permit.
In the cities and municipalities of Metropolitan Manila, the respective mayors shall
establish the freedom parks within the period of six months from the effectivity this Act.
2
The Court now comes to the matter of the CPR. As stated earlier, the Solicitor General
has conceded that the use of the term should now be discontinued, since it does not mean
anything other than the maximum tolerance policy set forth in B.P. No. 880. This is stated in the
Affidavit of respondent Executive Secretary Eduardo Ermita, submitted by the Solicitor General,
thus:
The truth of the matter is the policy of calibrated preemptive response is in consonance
with the legal definition of maximum tolerance under Section 3 (c) of B.P. Blg. 880, which is
the highest degree of restraint that the military, police and other peacekeeping authorities shall
observe during a public assembly or in the dispersal of the same. Unfortunately, however, the
phrase maximum tolerance has acquired a different meaning over the years. Many have taken
it to mean inaction on the part of law enforcers even in the face of mayhem and serious threats to
public order. More so, other felt that they need not bother secure a permit when holding rallies
thinking this would be tolerated. Clearly, the popular connotation of maximum tolerance has
departed from its real essence under B.P. Blg. 880.
It should be emphasized that the policy of maximum tolerance is provided under the same
law which requires all pubic assemblies to have a permit, which allows the dispersal of rallies
without a permit, and which recognizes certain instances when water cannons may be used. This
could only mean that maximum tolerance is not in conflict with a no permit, no rally policy
or with the dispersal and use of water cannons under certain circumstances for indeed, the
maximum amount of tolerance required is dependent on how peaceful or unruly a mass action is.
Our law enforcers should calibrate their response based on the circumstances on the ground with
the view to preempting the outbreak of violence.
Thus, when I stated that calibrated preemptive response is being enforced in lieu of
maximum tolerance I clearly was not referring to its legal definition but to the distorted and much
abused definition that it has now acquired. I only wanted to disabuse the minds of the public
from the notion that law enforcers would shirk their responsibility of keeping the peace even
when confronted with dangerously threatening behavior. I wanted to send a message that we
would no longer be lax in enforcing the law but would henceforth follow it to the letter. Thus I
said, we have instructed the PNP as well as the local government units to strictly enforce a no
permit, no rally policy . . . arrest all persons violating the laws of the land . . . unlawful mass
actions will be dispersed. None of these is at loggerheads with the letter and spirit of Batas
Pambansa Blg. 880. It is thus absurd for complainants to even claim that I ordered my corespondents to violate any law.
In sum, this Court reiterates its basic policy of upholding the fundamental rights of our people,
especially freedom of expression and freedom of assembly. For this reason, the so-called
calibrated preemptive response policy has no place in our legal firmament and must be struck
down as a darkness that shrouds freedom. It merely confuses our people and is used by some

138
police agents to justify abuses. On the other hand, B.P. No. 880 cannot be condemned as
unconstitutional; it does not curtail or unduly restrict freedoms; it merely regulates the use of
public places as to the time, place and manner of assemblies. Far from being insidious,
maximum tolerance is for the benefit of rallyists, not the government. The delegation to the
mayors of the power to issue rally permits is valid because it is subject to the constitutionallysound clear and present danger standard.
WHEREFORE, the petitions are GRANTED in part, and Calibrated Preemptive Response
(CPR), insofar as it would purport to differ from or be in lieu of maximum tolerance, is NULL
and VOID and respondents are ENJOINED to REFRAIN from using it and to STRICTLY
OBSERVE the requirements of maximum tolerance.
Read:
1. Right of assembly..31 SCRA 734 and 742
2. Evangelista vs. Earnshaw, 57 Phil 255
3. Primicias vs. Fuguso, 80 Phil. 71
4. De la Cruz vs. Ela, 99 Phil. 346
5. Navarro vs. Villegas, 31 SCRA 731
6. Philippine Blooming Mills Case,51 SCRA 189
7. Reyes vs. Bagatsing, 125 SCRA 553;see
guidelines
8. Ruiz vs. Gordon, 126 SCRA 233
9. Villar vs. TIP, 135 SCRA 705
10. Malabanan vs. Ramento, 129 SCRA 359
11. Carpio vs. Guevara, 106 SCRA 685
12. Nestle' Phils. vs. Sanchez, 154 SCRA 542
13. Arreza vs. Araneta University Foundation, 137
SCRA 94
6. Freedom from prior restraint
Closing a radio station is definitely prior restraint
NEWSOUNDS
BROADCASTING
NETWORK
INC.
and
CONSOLIDATED
BROADCASTING SYSTEM, INC.HON. CEASAR G. DY, FELICISIMO G. MEER,
BAGNOS MAXIMO, RACMA FERNANDEZ-GARCIA and THE CITY OF CAUAYAN,
G.R. Nos. 170270 &179411, April 2, 2009
TINGA, J.:
Bombo Radyo Philippines (Bombo Radyo) operates several radio stations under the
AM and FM band throughout the Philippines. These stations are operated by corporations
organized and incorporated by Bombo Radyo, particularly petitioners Newsounds Broadcasting
Network, Inc. (Newsounds) and Consolidated Broadcasting System, Inc. (CBS). Among the
stations run by Newsounds is Bombo Radyo DZNC Cauayan (DZNC), an AM radio broadcast
station operating out of Cauayan City, Isabela. CBS, in turn, runs Star FM DWIT Cauayan (Star
FM), also operating out of Cauayan City, airing on the FM band. The service areas of DZNC and
Star FM extend from the province of Isabela to throughout Region II and the Cordillera region. 52
[6]
THE ONLY OTHER STATION OPERATING IN CAUAYAN CITY, ISABELA, is owned by
the family of respondent Mayor Dy.
In 1996, Newsounds commenced relocation of its broadcasting stations, management
office and transmitters on property located in Minante 2, Cauayan City, Isabela. The property is
owned by CBS Development Corporation (CDC), an affiliate corporation under the Bombo
Radyo network which holds title over the properties used by Bombo Radyo stations throughout
52
[6]

Rollo (G.R. No. 179411), p. 13.

139
the country.53[7] On 28 June 1996, CDC was issued by the then municipal government of Cauayan
a building permit authorizing the construction of a commercial establishment on the property. 54[8]
On 5 July 1996, the Housing and Land Use Regulatory Board (HLURB) issued a Zoning
Decision certifying the property as commercial. 55[9] That same day, the Office of the Municipal
Planning and Development Coordinator (OMPDC) of Cauayan affirmed that the commercial
structure to be constructed by CDC conformed to local zoning regulations, noting as well that the
location is classified as a Commercial area. 56[10] Similar certifications would be issued by
OMPDC from 1997 to 2001.57[11]
A building was consequently erected on the property, and therefrom, DZNC and Star FM
operated as radio stations. Both stations successfully secured all necessary operating documents,
including mayors permits from 1997 to 2001. 58[12] During that period, CDC paid real property
taxes on the property based on the classification of the land as commercial. 59[13]
All that changed beginning in 2002. On 15 January of that year, petitioners applied for
the renewal of the mayors permit. The following day, the City Assessors Office in Cauayan City
noted on CDCs Declaration of Real Property filed for 2002 confirmed that based on the existing
file, CDCs property was classified as commercial. 60[14] On 28 January, representatives of
petitioners formally requested then City Zoning Administrator-Designate Bagnos Maximo
(Maximo) to issue a zoning clearance for the property. 61[15] Maximo, however, required petitioners
to submit either an approved land conversion papers from the Department of Agrarian Reform
(DAR) showing that the property was converted from prime agricultural land to commercial land,
or an approved resolution from the Sangguniang Bayan or Sangguniang Panglungsod authorizing
the re-classification of the property from agricultural to commercial land. 62[16] Petitioners had
never been required to submit such papers before, and from 1996 to 2001, the OMPDC had
consistently certified that the property had been classified as commercial. THEREAFTER, THE
MUNICIPAL OFFICIALS PADLOCKED THE RADIO STATIONS BASED ON THE
GROUND THAT THE PETITIONERS FAILED TO SUBMIT THE requisite zoning clearance
needed for the issuance of the mayors permit because there was allegedly no DAR Decision
converting said land from agricultural to commercial.
Petitioners filed a petition for mandamus, docketed as SCA No. 20-171, with the RTC of
Cauayan City, Branch 20 to compel the municipality to allow the radio stations to operate. The
petition was accompanied by an application for the issuance of temporary restraining order and
writ of preliminary prohibitory injunction, both provisional reliefs being denied by the RTC
through an Order dated 20 April 2004. Thereafter, the petition was dismissed by the RTC as well
as the Court of Appeals.
53
[7]

Id.

54
[8]

Id. at 90.

55[9]

Id. at 91.

56
[10]

Id. at 92.

57
[11]

Id. at 93-97.

58
[12]

Id. at 98-102.

59
[13]

Id. at 103-110.

60
[14]

Id. at 103.

61
[15]

Id. at 111.

62
[16]

Id. at 18-19.

140
Hence, this case before the Supreme Court.
I S S U E:
Is the closure of the petitioners radio stations constitutional?
HELD:
The closure constitutes prior restraint.
The fundamental constitutional principle that informs our analysis of both petitions is the
freedom of speech, of expression or the press. 63[32] Free speech and free press may be identified
with the liberty to discuss publicly and truthfully any matter of public interest without censorship
and punishment. There is to be no previous restraint on the communication of views or
subsequent liability whether in libel suits, prosecution for sedition, or action for damages, or
contempt proceedings unless there be a clear and present danger of substantive evil that Congress
has a right to prevent.64[33]
Petitioners have taken great pains to depict their struggle as a textbook case of denial of
the right to free speech and of the press. In their tale, there is undeniable political color. They
admit that in 2001, Bombo Radyo was aggressive in exposing the widespread election
irregularities in Isabela that appear to have favored respondent Dy and other members of the Dy
political dynasty. 65[34] Respondent Ceasar Dy is the brother of Faustino Dy, Jr., governor of
Isabela from 2001 until he was defeated in his re-election bid in 2004 by Grace Padaca, a former
assistant station manager at petitioners own DZNC Bombo Radyo. 66[35] A rival AM radio station
in Cauayan City, DWDY, is owned and operated by the Dy family. 67[36] Petitioners likewise direct
our attention to a 20 February 2004 article printed in the Philippine Daily Inquirer where Dy is
quoted as intending to file disenfranchisement proceedings against DZNC-AM. 68[37]
The following undisputed facts bring the issue of free expression to fore. Petitioners are
authorized by law to operate radio stations in Cauayan City, and had been doing so for some years
undisturbed by local authorities. Beginning in 2002, respondents in their official capacities have
taken actions, whatever may be the motive, that have impeded the ability of petitioners to freely
broadcast, if not broadcast at all. These actions have ranged from withholding permits to operate
to the physical closure of those stations under color of legal authority. While once petitioners
were able to broadcast freely, the weight of government has since bore down upon them to silence
their voices on the airwaves. An elementary school child with a basic understanding of civics
lessons will recognize that free speech animates these cases.
Without taking into account any extenuating circumstances that may favor the
respondents, we can identify the bare acts of closing the radio stations or preventing their
operations as an act of prior restraint against speech, expression or of the press. Prior restraint
refers to official governmental restrictions on the press or other forms of expression in
63
[32]

Article 3, Sec. 4.

64
[33]

Gonzales v. COMELEC, 137 Phil. 471, 492 (1969).

65
[34]

Rollo (G.R. No. 170270), p. 27.

66
[35]
See TJ Burgonio, Isabela gov who ended a dynasty wins RM prize, Philippine Daily Inquirer (1 August 2008), at
http://opinion.inquirer.net/inquireropinion/letterstotheeditor/view /20080801-151950/Isabela-gov-who-ended-a-dynasty-wins-RMprize
67
[36]

Rollo (G.R. No. 170270), p. 17.

68
[37]

Rollo (G.R. No. 179411), p. 142.

141
advance of actual publication or dissemination.69[38] While any system of prior restraint
comes to court bearing a heavy burden against its constitutionality, 70[39] not all prior
restraints on speech are invalid.71[40]
That the acts imputed against respondents constitute a prior restraint on the freedom of
expression of respondents who happen to be members of the press is clear enough. There is a
long-standing tradition of special judicial solicitude for free speech, meaning that governmental
action directed at expression must satisfy a greater burden of justification than governmental
action directed at most other forms of behavior.72[41] We had said in SWS v. COMELEC: Because
of the preferred status of the constitutional rights of speech, expression, and the press, such a
measure is vitiated by a weighty presumption of invalidity. Indeed, any system of prior restraints
of expression comes to this Court bearing a heavy presumption against its constitutional validity. .
. . The Government 'thus carries a heavy burden of showing justification for the enforcement of
such restraint. There is thus a reversal of the normal presumption of validity that inheres in every
legislation.73[42]
At
the
same
time,
jurisprudence
distinguishes
between
a contentneutral regulation, i.e., merely concerned with the incidents of the speech, or one that merely
controls the time, place or manner, and under well defined standards; and a contentbased restraint or censorship, i.e., the restriction is based on the subject matter of the utterance or
speech.74[43] Content-based laws are generally treated as more suspect than content-neutral laws
because of judicial concern with discrimination in the regulation of expression. 75[44] Contentneutral regulations of speech or of conduct that may amount to speech, are subject to lesser but
still heightened scrutiny.76[45]
Ostensibly, the act of an LGU requiring a business of proof that the property from which
it operates has been zoned for commercial use can be argued, when applied to a radio station, as
content-neutral since such a regulation would presumably apply to any other radio station or
business enterprise within the LGU.
However, the circumstances of this case dictate that we view the action of the
respondents as a content-based restraint. In their petition for mandamus filed with the RTC,
petitioners make the following relevant allegations:
6.1.
With specific reference to DZNC, Newsounds, to this date, is engaged in
discussing public issues that include, among others, the conduct of public officials that are
detrimental to the constituents of Isabela, including Cauayan City. In view of its wide coverage,
DZNC has been a primary medium for the exercise of the people of Isabela of their constitutional
right to free speech. Corollarily, DZNC has always been at the forefront of the struggle to
maintain and uphold freedom of the press, and the peoples corollary right to freedom of speech,
expression and petition the government for redress of grievances.
69
[38]

Chavez v. Gonzales, G.R. No. 168338, 15 February 2008, 545 SCRA 441, 491.

70
[39]

Social Weather Stations, Inc. v. COMELEC, 409 Phil. 571, 585 (2001); citing New York Times v. United States, 403
U.S. 713, 714, 29 L. Ed. 2d 822, 824 (1971).
71
[40]

Chavez v. Gonzales, G.R. No. 168335, 15 February 2008, 545 SCRA 441, 492.

72
[41]

GUNTHER, et al., CONSTITUTIONAL LAW (14th ed., 2001), at 964.

73
[42]

SWS v. COMELEC, supra note 39.

74
[43]

Chavez v. Gonzales, G.R. No. 168338, 15 February 2008, 545 SCRA 441, 493.

75
[44]

GUNTHER, et al., supra note 44.

76
[45]

Id. at 957.

142
6.2. Newsounds only rival AM station in Cauayan and the rest of Isabela, DWDY, is
owned and operated by the family of respondent Dy.77[46]
xxxx
35. Respondents closure of petitioners radio stations is clearly tainted with ill motives.
35.1. It must be pointed out that in the 2001 elections, Bombo Radyo was aggressive in
exposing the widespread election irregularities in Isabela that appear to have favored respondent
Dy and other members of the Dy political dynasty. It is just too coincidental that it was only after
the 2001 elections (i.e., 2002) that the Mayors Office started questioning petitioners applications
for renewal of their mayors permits.
35.2. In an article found in the Philippine Daily inquirer dated 20 February 2004,
respondent Dy was quoted as saying that he will disenfranchise the radio station. Such
statement manifests and confirms that respondents denial of petitioners renewal applications on
the ground that the Property is commercial is merely a pretext and that their real agenda is to
remove petitioners from Cauayan City and suppress the latters voice. This is a blatant violation
of the petitioners constitutional right to press freedom.
35.3. The timing of respondents closure of petitioners radio stations is also very telling.
The closure comes at a most critical time when the people are set to exercise their right of
suffrage. Such timing emphasizes the ill motives of respondents. 78[47]
All those circumstances lead us to believe that the steps employed by respondents to
ultimately shut down petitioners radio station were ultimately content-based. The United States
Supreme Court generally treats restriction of the expression of a particular point of view as the
paradigm violation of the First Amendment. 79[53] The facts confronting us now could have easily
been drawn up by a constitutional law professor eager to provide a plain example on how free
speech may be violated.
The Court is of the position that the actions of the respondents warrant heightened or
strict scrutiny from the Court, the test which we have deemed appropriate in assessing contentbased restrictions on free speech, as well as for laws dealing with freedom of the mind or
restricting the political process, of laws dealing with the regulation of speech, gender, or race as
well as other fundamental rights as expansion from its earlier applications to equal protection. 80[54]
The immediate implication of the application of the strict scrutiny test is that the burden falls
upon respondents as agents of government to prove that their actions do not infringe upon
petitioners constitutional rights. As content regulation cannot be done in the absence of any
compelling reason,81[55] the burden lies with the government to establish such compelling reason
to infringe the right to free expression.
It is thus evident that respondents had no valid cause at all to even require petitioners to
secure approved land conversion papers from the DAR showing that the property was converted
from prime agricultural land to commercial land. That requirement, assuming that it can be
demanded by a local government in the context of approving mayors permits, should only obtain
77
[46]

Rollo (G.R. No. 179411), p. 170.

78
[47]

Id. at 178-179.

79
[53]

GUNTHER et. al., supra note 44.

80
[54]

See White Light v. Court of Appeals, G.R. No. 122846, 20 January 2009.

81
[55]

Osmea v. COMELEC, 351 Phil. 692, 711 (1998).

143
upon clear proof that the property from where the business would operate was classified as
agricultural under the LGUs land use plan or zoning ordinances and other relevant laws. No
evidence to that effect was presented by the respondents either to the petitioners, or to the courts.
Having established that respondents had violated petitioners legal and constitutional
rights, let us now turn to the appropriate reliefs that should be granted.
We turn to the issue of damages. Petitioners had sought to recover from respondents P8
Million in temperate damages, P1 Million in exemplary damages, and P1 Million in attorneys
fees. Given respondents clear violation of petitioners constitutional guarantee of free expression,
the right to damages from respondents is squarely assured by Article 32 (2) of the Civil Code,
which provides:
Art. 32. Any public officer or employee, or any private individual, who directly or
indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the following
rights and liberties of another person shall be liable to the latter for damages:
x x x x
(2) Freedom of speech;
We noted in Lim v. Ponce de Leon that [p]ublic officials in the past have abused their
powers on the pretext of justifiable motives or good faith in the performance of their duties
[and] the object of [Article 32 of the Civil Code] is to put an end to official abuse by plea of the
good faith.82[85] The application of Article 32 not only serves as a measure of pecuniary recovery
to mitigate the injury to constitutional rights, it likewise serves notice to public officers and
employees that any violation on their part of any persons guarantees under the Bill of Rights will
meet with final reckoning.
The present prayer for temperate damages is premised on the existence of pecuniary
injury to petitioner due to the actions of respondents, the amount of which nevertheless being
difficult to prove.83[86] Temperate damages avail when the court finds that some pecuniary loss has
been suffered but its amount can not, from the nature of the case, be proved with certainty. 84[87]
The existence of pecuniary injury at bar cannot be denied. Petitioners had no way of knowing it
when they filed their petition, but the actions of respondents led to the closure of their radio
stations from June 2004 until this Court issued a writ of preliminary injunction in January
2006.85[88] The lost potential income during that one and a half year of closure can only be
presumed as substantial enough. Still, despite that fact, possibly unanticipated when the original
amount for claimed temperate damages was calculated, petitioners have maintained before this
Court the same amount, P8 Million, for temperate damages. The said amount is reasonable
under the circumstances.86[89]

82
[85]

160 Phil. 991, 1001 (1975). See also MHP Garments, Inc., v. Court of Appeals, G.R. No. 86720, 2 September 1994, 236
SCRA 227, 235.
83
[86]

Rollo (G.R. No. 179411), p. 183.

84
[87]

See CIVIL CODE, Art. 2224.

85
[88]

According to an article posted on the official website of Bombo Radyo, DZNC accordingly resumed broadcast on 8
February 2006. See http://www.bomboradyo.com/archive/ new/stationprofile /bombocauayan/index.htm (last visited, 6 March
2009)
86
[89]

See CIVIL CODE, Art. 2225.

144
Exemplary damages can be awarded herein, since temperate damages are available.
Public officers who violate the Constitution they are sworn to uphold embody a poison of
wickedness that may not run through the body politic. 87[90] Respondents, by purposely denying
the commercial character of the property in order to deny petitioners the exercise of their
constitutional rights and their business, manifested bad faith in a wanton, fraudulent, oppressive
and malevolent manner.88[91] The amount of exemplary damages need not be proved where it is
shown that plaintiff is entitled to temperate damages, 89[92] and the sought for amount of P1 Million
is more than appropriate. We likewise deem the prayer for
P1 Million in attorneys fees as
suitable under the circumstances.
WHEREFORE, the petitions are GRANTED. The assailed decisions of the Court of
Appeals and the Regional Trial Court of Cauayan City, Branch 24, are hereby reversed and set
aside.
Suspension for three (3) months of TV Host, as well as his
own TV Program held not prior restraint.

BRO. ELISEO SORIANO VS. MOVIE AND TELEVISION


CLASSIFICATION BOARD, G.R. NO. 164785, APRIL 29, 2009

REVIEW

AND

VELASCO, JR., J.:


On August 10, 2004, at around 10:00 p.m., petitioner, as host of the program Ang Dating
Daan, aired on UNTV 37, made the following remarks:
Lehitimong anak ng demonyo; sinungaling;
Gago ka talaga Michael, masahol ka pa sa putang babae o di ba. Yung putang babae ang
gumagana lang doon yung ibaba, [dito] kay Michael ang gumagana ang itaas, o di ba! O,
masahol pa sa putang babae yan. Sabi ng lola ko masahol pa sa putang babae yan. Sobra ang
kasinungalingan ng mga demonyong ito.
Two days after, before the MTRCB, separate but almost identical affidavit-complaints
were lodged by Jessie L. Galapon and seven other private respondents, all members of the Iglesia
ni Cristo (INC), against petitioner in connection with the above broadcast. Respondent Michael
M. Sandoval, who felt directly alluded to in petitioners remark, was then a minister of INC and a
regular host of the TV program Ang Tamang Daan.90[3] Forthwith, the MTRCB sent petitioner a
notice of the hearing on August 16, 2004 in relation to the alleged use of some cuss words in the
August 10, 2004 episode of Ang Dating Daan.91[4]
After a preliminary conference in which petitioner appeared, the MTRCB, by Order of
August 16, 2004, preventively suspended the showing of Ang Dating Daan program for 20 days,
in accordance with Section 3(d) of Presidential Decree No. (PD) 1986, creating the MTRCB, in
relation to Sec. 3, Chapter XIII of the 2004 Implementing Rules and Regulations (IRR) of PD
87
[90]
[Exemplary damages] are an antidote so that the poison of wickedness may not run through the body politic. Octot v.
Ybaez, etc., et al., 197 Phil. 76, 82 (1982).
88
[91]

[The award of exemplary damages] would be allowed only if the guilty party acted in a wanton, fraudulent, reckless,
oppressive or malevolent manner. Octot v. Ybaez, supra note 87, at 85; citing Ong Yiu v. CA, 91 SCRA 223.
89
[92]

90
91

Patricio v. Hon. Leviste, G.R. No. L-51832, 26 April 1989.


Id. at 924, Private Respondents Memorandum.
[4]
Id. at 110.
[3]

145
1986 and Sec. 7, Rule VII of the MTRCB Rules of Procedure. 92[5] The same order also set the case
for preliminary investigation.
The following day, petitioner sought reconsideration of the preventive suspension order,
praying that Chairperson Consoliza P. Laguardia and two other members of the adjudication
board recuse themselves from hearing the case. 93[6] Two days after, however, petitioner sought to
withdraw94[7] his motion for reconsideration, followed by the filing with this Court of a petition
for certiorari and prohibition,95[8] docketed as G.R. No. 164785, to nullify the preventive
suspension order thus issued.
On September 27, 2004, in Adm. Case No. 01-04, the MTRCB issued a decision,
disposing as follows:
WHEREFORE, in view of all the foregoing, a Decision is hereby rendered, finding
respondent Soriano liable for his utterances and thereby imposing on him a penalty of three (3)
months suspension from his program, Ang Dating Daan.
SO ORDERED.96[9]
Petitioner then filed this petition for certiorari and prohibition with prayer for injunctive
relief, docketed as G.R. No. 165636.
In G.R. No. 164785, petitioner raises the following issues:
THE ORDER OF PREVENTIVE SUSPENSION PROMULGATED BY RESPONDENT
[MTRCB] DATED 16 AUGUST 2004 AGAINST THE TELEVISION PROGRAM ANG
DATING DAAN x x x IS NULL AND VOID FOR BEING ISSUED WITH GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION
(A) BY REASON THAT THE [IRR] IS INVALID INSOFAR AS IT PROVIDES FOR THE
ISSUANCE OF PREVENTIVE SUSPENSION ORDERS;
(B) BY REASON OF LACK OF DUE HEARING IN THE CASE AT BENCH;
(C) FOR BEING VIOLATIVE OF EQUAL PROTECTION UNDER THE LAW;
(D) FOR BEING VIOLATIVE OF FREEDOM OF RELIGION; AND
(E) FOR BEING VIOLATIVE OF FREEDOM OF SPEECH AND EXPRESSION.97[10]
In G.R. No. 165636, petitioner relies on the following grounds:
SECTION 3(C) OF [PD] 1986, IS PATENTLY UNCONSTITUTIONAL AND ENACTED
WITHOUT OR IN EXCESS OF JURISDICTION x x x CONSIDERING THAT:
I
SECTION 3(C) OF [PD] 1986, AS APPLIED TO PETITIONER, UNDULY INFRINGES ON
THE CONSTITUTIONAL GUARANTEE OF FREEDOM OF RELIGION, SPEECH, AND
EXPRESSION AS IT PARTAKES OF THE NATURE OF A SUBSEQUENT PUNISHMENT
CURTAILING THE SAME; CONSEQUENTLY, THE IMPLEMENTING RULES AND
REGULATIONS, RULES OF PROCEDURE, AND OFFICIAL ACTS OF THE MTRCB
PURSUANT THERETO, I.E. DECISION DATED 27 SEPTEMBER 2004 AND ORDER
92

[5]

93

[6]

94
95
96
97

Id. at 112-113, Rules of Procedure in the Conduct of Hearing for Violations of PD 1986 and the IRR.
Id. at 141-151.
[7]
Id. at 152-154.
[8]
Id. at 166-252.
[9]
Id. at 378.
[10]
Id. at 182.

146
DATED 19 OCTOBER 2004, ARE LIKEWISE CONSTITUTIONALLY INFIRM AS APPLIED
IN THE CASE AT BENCH;
II
SECTION 3(C) OF [PD] 1986, AS APPLIED TO PETITIONER, UNDULY INFRINGES ON
THE CONSTITUTIONAL GUARANTEE OF DUE PROCESS OF LAW AND EQUAL
PROTECTION UNDER THE LAW; CONSEQUENTLY, THE [IRR], RULES OF
PROCEDURE, AND OFFICIAL ACTS OF THE MTRCB PURSUANT THERETO, I.E.,
DECISION DATED 27 SEPTEMBER 2004 AND ORDER DATED 19 OCTOBER 2004, ARE
LIKEWISE CONSTITUTIONALLY INFIRM AS APPLIED IN THE CASE AT BENCH; AND
III
[PD] 1986 IS NOT COMPLETE IN ITSELF AND DOES NOT PROVIDE FOR A SUFFICIENT
STANDARD FOR ITS IMPLEMENTATION THEREBY RESULTING IN AN UNDUE
DELEGATION OF LEGISLATIVE POWER BY REASON THAT IT DOES NOT PROVIDE
FOR THE PENALTIES FOR VIOLATIONS OF ITS PROVISIONS. CONSEQUENTLY, THE
[IRR], RULES OF PROCEDURE, AND OFFICIAL ACTS OF THE MTRCB PURSUANT
THERETO, I.E. DECISION DATED 27 SEPTEMBER 2004 AND ORDER DATED 19
OCTOBER 2004, ARE LIKEWISE CONSTITUTIONALLY INFIRM AS APPLIED IN THE
CASE AT BENCH98[11]
G.R. No. 164785
We shall first dispose of the issues in G.R. No. 164785, regarding the assailed order of
preventive suspension, although its implementability had already been overtaken and veritably
been rendered moot by the equally assailed September 27, 2004 decision.
It is petitioners threshold posture that the preventive suspension imposed against him
and the relevant IRR provision authorizing it are invalid inasmuch as PD 1986 does not expressly
authorize the MTRCB to issue preventive suspension.
Petitioners contention is untenable.
Administrative agencies have powers and functions which may be administrative,
investigatory, regulatory, quasi-legislative, or quasi-judicial, or a mix of the five, as may be
conferred by the Constitution or by statute. 99[12] They have in fine only such powers or authority
as are granted or delegated, expressly or impliedly, by law.100[13] And in determining whether an
agency has certain powers, the inquiry should be from the law itself. But once ascertained as
existing, the authority given should be liberally construed. 101[14]
A perusal of the MTRCBs basic mandate under PD 1986 reveals the possession by the
agency of the authority, albeit impliedly, to issue the challenged order of preventive suspension.
And this authority stems naturally from, and is necessary for the exercise of, its power of
regulation and supervision.
Sec. 3 of PD 1986 pertinently provides the following:
Section 3. Powers and Functions.The BOARD shall
functions, powers and duties:

have the following

xxxx
98

[11]

99

[12]

100
101

Id. at 46.
Azarcon v. Sandiganbayan, G.R. No. 116033, February 26, 1997, 268 SCRA 747.
[13]
Pimentel v. COMELEC, Nos. L-53581-83, December 19, 1980, 101 SCRA 769.
[14]
Agpalo, ADMINISTRATIVE LAW (2005); citing Matienzon v. Abellera, G.R. No. 77632, June 8, 1988, 162 SCRA 1.

147
c) To approve or disapprove, delete objectionable portions from and/or prohibit the x x x
production, x x x exhibition and/or television broadcast of the motion pictures, television
programs and publicity materials subject of the preceding paragraph, which, in the judgment of
the board applying contemporary Filipino cultural values as standard, are objectionable for being
immoral, indecent, contrary to law and/or good customs, injurious to the prestige of the Republic
of the Philippines or its people, or with a dangerous tendency to encourage the commission of
violence or of wrong or crime such as but not limited to:
xxxx
vi) Those which are libelous or defamatory to the good name and reputation of any person,
whether living or dead;
xxxx
(d)
To supervise, regulate, and grant, deny or cancel, permits for the x x x production,
copying, distribution, sale, lease, exhibition, and/or television broadcast of all motion pictures,
television programs and publicity materials, to the end that no such pictures, programs and
materials as are determined by the BOARD to be objectionable in accordance with paragraph (c)
hereof shall be x x x produced, copied, reproduced, distributed, sold, leased, exhibited and/or
broadcast
by
television;
xxxx
k) To exercise such powers and functions as may be necessary or incidental to the attainment of
the purposes and objectives of this Act x x x. (Emphasis added.)
The issuance of a preventive suspension comes well within the scope of the MTRCBs
authority and functions expressly set forth in PD 1986, more particularly under its Sec. 3(d), as
quoted above, which empowers the MTRCB to supervise, regulate, and grant, deny or cancel,
permits for the x x x exhibition, and/or television broadcast of all motion pictures, television
programs and publicity materials, to the end that no such pictures, programs and materials as are
determined by the BOARD to be objectionable in accordance with paragraph (c) hereof shall be x
x x exhibited and/or broadcast by television.
Surely, the power to issue preventive suspension forms part of the MTRCBs express
regulatory and supervisory statutory mandate and its investigatory and disciplinary authority
subsumed in or implied from such mandate. Any other construal would render its power to
regulate, supervise, or discipline illusory.
Preventive suspension, it ought to be noted, is not a penalty by itself, being merely a
preliminary step in an administrative investigation. 102[15] And the power to discipline and impose
penalties, if granted, carries with it the power to investigate administrative complaints and, during
such investigation, to preventively suspend the person subject of the complaint. 103[16]
To reiterate, preventive suspension authority of the MTRCB springs from its powers
conferred under PD 1986. The MTRCB did not, as petitioner insinuates, empower itself to
impose preventive suspension through the medium of the IRR of PD 1986. It is true that the
matter of imposing preventive suspension is embodied only in the IRR of PD 1986. Sec. 3,
Chapter XIII of the IRR provides:

102

[15]

103

[16]

Lastimoso v. Vasquez, G.R. No. 116801, April 6, 1995, 243 SCRA 497.
Alonzo v. Capulong, G.R. No. 110590, May 10, 1995, 244 SCRA 80; Beja v. Court of Appeals, G.R. No. 97149, March
31, 1992, 207 SCRA 689.

148
Sec. 3. PREVENTION SUSPENSION ORDER.Any time during the pendency of the
case, and in order to prevent or stop further violations or for the interest and welfare of the public,
the Chairman of the Board may issue a Preventive Suspension Order mandating the preventive x
x x suspension of the permit/permits involved, and/or closure of the x x x television network,
cable TV station x x x provided that the temporary/preventive order thus issued shall have a life
of not more than twenty (20) days from the date of issuance.
But the mere absence of a provision on preventive suspension in PD 1986, without more,
would not work to deprive the MTRCB a basic disciplinary tool, such as preventive suspension.
Recall that the MTRCB is expressly empowered by statute to regulate and supervise television
programs to obviate the exhibition or broadcast of, among others, indecent or immoral materials
and to impose sanctions for violations and, corollarily, to prevent further violations as it
investigates. Contrary to petitioners assertion, the aforequoted Sec. 3 of the IRR neither amended
PD 1986 nor extended the effect of the law. Neither did the MTRCB, by imposing the assailed
preventive suspension, outrun its authority under the law. Far from it. The preventive suspension
was actually done in furtherance of the law, imposed pursuant, to repeat, to the MTRCBs duty of
regulating or supervising television programs, pending a determination of whether or not there
has actually been a violation. In the final analysis, Sec. 3, Chapter XIII of the 2004 IRR merely
formalized a power which PD 1986 bestowed, albeit impliedly, on MTRCB.
Sec. 3(c) and (d) of PD 1986 finds application to the present case, sufficient to authorize
the MTRCBs assailed action. Petitioners restrictive reading of PD 1986, limiting the MTRCB
to functions within the literal confines of the law, would give the agency little leeway to operate,
stifling and rendering it inutile, when Sec. 3(k) of PD 1986 clearly intends to grant the MTRCB a
wide room for flexibility in its operation. Sec. 3(k), we reiterate, provides, To exercise such
powers and functions as may be necessary or incidental to the attainment of the purposes and
objectives of this Act x x x. Indeed, the power to impose preventive suspension is one of the
implied powers of MTRCB. As distinguished from express powers, implied powers are those that
can be inferred or are implicit in the wordings or conferred by necessary or fair implication of the
enabling act.104[17] As we held in Angara v. Electoral Commission, when a general grant of power
is conferred or a duty enjoined, every particular power necessary for the exercise of one or the
performance of the other is also conferred by necessary implication. 105[18] Clearly, the power to
impose preventive suspension pending investigation is one of the implied or inherent powers of
MTRCB.
We cannot agree with petitioners assertion that the aforequoted IRR provision on
preventive suspension is applicable only to motion pictures and publicity materials. The scope of
the MTRCBs authority extends beyond motion pictures. What the acronym MTRCB stands for
would suggest as much. And while the law makes specific reference to the closure of a television
network, the suspension of a television program is a far less punitive measure that can be
undertaken, with the purpose of stopping further violations of PD 1986. Again, the MTRCB
would regretfully be rendered ineffective should it be subject to the restrictions petitioner
envisages.
Just as untenable is petitioners argument on the nullity of the preventive suspension
order on the ground of lack of hearing. As it were, the MTRCB handed out the assailed order
after petitioner, in response to a written notice, appeared before that Board for a hearing on
private respondents complaint. No less than petitioner admitted that the order was issued after
the adjournment of the hearing, 106[19] proving that he had already appeared before the MTRCB.
Under Sec. 3, Chapter XIII of the IRR of PD 1986, preventive suspension shall issue [a]ny time
during the pendency of the case. In this particular case, it was done after MTRCB duly apprised
104

[17]
Chavez v. National Housing Authority, G.R. No. 164527, August 15, 2007, 530 SCRA 235, 295-296; citing Azarcon,
supra note 12, at 761; Radio Communications of the Philippines, Inc. v. Santiago, Nos. L-29236 & 29247, August 21, 1974, 58
SCRA 493, 497.
105
[18]
63 Phil. 139, 177 (1936).
106
[19]
Rollo (G.R. No. 164785), p. 12.

149
petitioner of his having possibly violated PD 1986 107[20] and of administrative complaints that had
been filed against him for such violation.108[21]
At any event, that preventive suspension can validly be meted out even without a
hearing.

109[22]

Petitioner next faults the MTRCB for denying him his right to the equal protection of the
law, arguing that, owing to the preventive suspension order, he was unable to answer the
criticisms coming from the INC ministers.
Petitioners position does not persuade. The equal protection clause demands that all
persons subject to legislation should be treated alike, under like circumstances and conditions
both in the privileges conferred and liabilities imposed. 110[23] It guards against undue favor and
individual privilege as well as hostile discrimination. 111[24] Surely, petitioner cannot, under the
premises, place himself in the same shoes as the INC ministers, who, for one, are not facing
administrative complaints before the MTRCB. For another, he offers no proof that the said
ministers, in their TV programs, use language similar to that which he used in his own,
necessitating the MTRCBs disciplinary action. If the immediate result of the preventive
suspension order is that petitioner remains temporarily gagged and is unable to answer his critics,
this does not become a deprivation of the equal protection guarantee. The Court need not belabor
the fact that the circumstances of petitioner, as host of Ang Dating Daan, on one hand, and the
INC ministers, as hosts of Ang Tamang Daan, on the other, are, within the purview of this case,
simply too different to even consider whether or not there is a prima facie indication of
oppressive inequality.
Petitioner next injects the notion of religious freedom, submitting that what he uttered
was religious speech, adding that words like putang babae were said in exercise of his religious
freedom.
The argument has no merit.
The Court is at a loss to understand how petitioners utterances in question can come
within the pale of Sec. 5, Article III of the 1987 Constitution on religious freedom. The section
reads as follows:
No law shall be made respecting the establishment of a religion, or prohibiting the free
exercise thereof. The free exercise and enjoyment of religious profession and worship, without
discrimination or preference, shall forever be allowed. No religious test shall be required for the
exercise of civil or political rights.
There is nothing in petitioners statements subject of the complaints expressing any
particular religious belief, nothing furthering his avowed evangelical mission. The fact that he
came out with his statements in a televised bible exposition program does not automatically
accord them the character of a religious discourse. Plain and simple insults directed at another
person cannot be elevated to the status of religious speech.
G.R. No. 165636
Petitioner urges the striking down of the decision suspending him from hosting Ang
Dating Daan for three months on the main ground that the decision violates, apart from his
107

[20]

108

[21]

Id. at 94.
Id. at 95.
109
[22]
Beja, supra note 16; Espiritu v. Melgar, G.R. No. 100874, February 13, 1992, 206 SCRA 256.
110
[23]
1 De Leon, PHILIPPINE CONSTITUTIONAL LAW 274 (2003).
111
[24]
Tiu v. Guingona, G.R. No. 127410, January 20, 1999, 301 SCRA 278; citing Ichong v. Hernandez, 101 Phil. 1155
(1957) and other cases.

150
religious freedom, his freedom of speech and expression guaranteed under Sec. 4, Art. III of the
Constitution, which reads:
No law shall be passed abridging the freedom of speech, of expression, or of the press, or
the right of the people peaceably to assemble and petition the government for redress of
grievance.
He would also have the Court declare PD 1986, its Sec. 3(c) in particular,
unconstitutional for reasons articulated in this petition.
It is settled that expressions by means of newspapers, radio, television, and motion
pictures come within the broad protection of the free speech and expression clause. 112[25] Each
method though, because of its dissimilar presence in the lives of people and accessibility to
children, tends to present its own problems in the area of free speech protection, with broadcast
media, of all forms of communication, enjoying a lesser degree of protection. 113[26] Just as settled
is the rule that restrictions, be it in the form of prior restraint, e.g., judicial injunction against
publication or threat of cancellation of license/franchise, or subsequent liability, whether in libel
and damage suits, prosecution for sedition, or contempt proceedings, are anathema to the freedom
of expression. Prior restraint means official government restrictions on the press or other forms of
expression in advance of actual publication or dissemination. 114[27] The freedom of expression, as
with the other freedoms encased in the Bill of Rights, is, however, not absolute. It may be
regulated to some extent to serve important public interests, some forms of speech not being
protected. As has been held, the limits of the freedom of expression are reached when the
expression touches upon matters of essentially private concern. 115[28] In the oft-quoted expression
of Justice Holmes, the constitutional guarantee obviously was not intended to give immunity for
every possible use of language. 116[29] From Lucas v. Royo comes this line: [T]he freedom to
express ones sentiments and belief does not grant one the license to vilify in public the honor and
integrity of another. Any sentiments must be expressed within the proper forum and with proper
regard for the rights of others.117[30]
Indeed, as noted in Chaplinsky v. State of New Hampshire,118[31] there are certain welldefined and narrowly limited classes of speech that are harmful, the prevention and punishment
of which has never been thought to raise any Constitutional problems. In net effect, some forms
of speech are not protected by the Constitution, meaning that restrictions on unprotected speech
may be decreed without running afoul of the freedom of speech clause. 119[32] A speech would fall
under the unprotected type if the utterances involved are no essential part of any exposition of
ideas, and are of such slight social value as a step of truth that any benefit that may be derived
from them is clearly outweighed by the social interest in order and morality. 120[33] Being of little
or no value, there is, in dealing with or regulating them, no imperative call for the application of
the clear and present danger rule or the balancing-of-interest test, they being essentially modes of
weighing competing values,121[34] or, with like effect, determining which of the clashing interests
should be advanced.
112[25]

US v. Paramount Pictures, 334 U.S. 131; Eastern Broadcasting Corporation v. Dans, Jr., No. L-59329, July 19,
1985, 137 SCRA 628.
113
[26]
Eastern Broadcasting Corporation v. Dans, Jr., supra note 25; citing FCC v. Pacifica Foundation, 438 U.S. 726;
Gonzales v. Kalaw Katigbak, No. L-69500, July 22, 1985, 137 SCRA 717.
114
[27]
J.G. Bernas, S.J., THE CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES: A COMMENTARY 205
(1996).
115
[28]
Lagunsad v. Soto vda. De Gonzales, No. L-32066, August 6, 1979, 92 SCRA 476.
116
[29]
Trohwerk v. United States, 249 U.S. 204 (1919); cited in Bernas, supra at 218.
117
[30]
G.R. No. 136185, October 30, 2000, 344 SCRA 481, 490.
118[31]
315 U.S. 568 (1942).
119[32]
Agpalo, PHILIPPINE CONSTITUTIONAL LAW 358 (2006).
120[33]
Chaplinsky, supra note 31; cited in Bernas, supra note 27, at 248.
121[34]
Bernas, supra note 27, at 248.

151
Petitioner asserts that his utterance in question is a protected form of speech.
The Court rules otherwise. It has been established in this jurisdiction that unprotected
speech or low-value expression refers to libelous statements, obscenity or pornography, false or
misleading advertisement, insulting or fighting words, i.e., those which by their very utterance
inflict injury or tend to incite an immediate breach of peace and expression endangering national
security.
The Court finds that petitioners statement can be treated as obscene, at least with respect
to the average child. Hence, it is, in that context, unprotected speech. In Fernando v. Court of
Appeals, the Court expressed difficulty in formulating a definition of obscenity that would apply
to all cases, but nonetheless stated the ensuing observations on the matter:
There is no perfect definition of obscenity but the latest word is that of Miller v.
California which established basic guidelines, to wit: (a) whether to the average person,
applying contemporary standards would find the work, taken as a whole, appeals to the prurient
interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct
specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks
serious literary, artistic, political, or scientific value. But, it would be a serious misreading of
Miller to conclude that the trier of facts has the unbridled discretion in determining what is
patently offensive. x x x What remains clear is that obscenity is an issue proper for judicial
determination and should be treated on a case to case basis and on the judges sound discretion. 122
[35]

Following the contextual lessons of the cited case of Miller v. California,123[36] a patently
offensive utterance would come within the pale of the term obscenity should it appeal to the
prurient interest of an average listener applying contemporary standards.
A cursory examination of the utterances complained of and the circumstances of the case
reveal that to an average adult, the utterances Gago ka talaga x x x, masahol ka pa sa putang
babae x x x. Yung putang babae ang gumagana lang doon yung ibaba, [dito] kay Michael ang
gumagana ang itaas, o di ba! may not constitute obscene but merely indecent utterances. They
can be viewed as figures of speech or merely a play on words. In the context they were used, they
may not appeal to the prurient interests of an adult. The problem with the challenged statements is
that they were uttered in a TV program that is rated G or for general viewership, and in a time
slot that would likely reach even the eyes and ears of children.
While adults may have understood that the terms thus used were not to be taken literally,
children could hardly be expected to have the same discernment. Without parental guidance, the
unbridled use of such language as that of petitioner in a television broadcast could corrupt
impressionable young minds. The term putang babae means a female prostitute, a term
wholly inappropriate for children, who could look it up in a dictionary and just get the literal
meaning, missing the context within which it was used. Petitioner further used the terms, ang
gumagana lang doon yung ibaba, making reference to the female sexual organ and how a female
prostitute uses it in her trade, then stating that Sandoval was worse than that by using his mouth
in a similar manner. Children could be motivated by curiosity and ask the meaning of what
petitioner said, also without placing the phrase in context. They may be inquisitive as to why
Sandoval is different from a female prostitute and the reasons for the dissimilarity. And upon
learning the meanings of the words used, young minds, without the guidance of an adult, may,
from their end, view this kind of indecent speech as obscene, if they take these words literally and
use them in their own speech or form their own ideas on the matter. In this particular case, where
children had the opportunity to hear petitioners words, when speaking of the average person in
the test for obscenity, we are speaking of the average child, not the average adult. The average
child may not have the adults grasp of figures of speech, and may lack the understanding that
122

[35]

123

[36]

G.R. No. 159751, December 6, 2006, 510 SCRA 351, 360-361.


413 U.S. 15.

152
language may be colorful, and words may convey more than the literal meaning. Undeniably the
subject speech is very suggestive of a female sexual organ and its function as such. In this sense,
we find petitioners utterances obscene and not entitled to protection under the umbrella of
freedom of speech.
Even if we concede that petitioners remarks are not obscene but merely indecent speech,
still the Court rules that petitioner cannot avail himself of the constitutional protection of free
speech. Said statements were made in a medium easily accessible to children. With respect to the
young minds, said utterances are to be treated as unprotected speech.
No doubt what petitioner said constitutes indecent or offensive utterances. But while a
jurisprudential pattern involving certain offensive utterances conveyed in different mediums has
emerged, this case is veritably one of first impression, it being the first time that indecent speech
communicated via television and the applicable norm for its regulation are, in this jurisdiction,
made the focal point. Federal Communications Commission (FCC) v. Pacifica Foundation,124[37] a
1978 American landmark case cited in Eastern Broadcasting Corporation v. Dans, Jr.125[38] and
Chavez v. Gonzales,126[39] is a rich source of persuasive lessons. Foremost of these relates to
indecent speech without prurient appeal component coming under the category of protected
speech depending on the context within which it was made, irresistibly suggesting that, within a
particular context, such indecent speech may validly be categorized as unprotected, ergo,
susceptible to restriction.
In FCC, seven of what were considered filthy words 127[40] earlier recorded in a
monologue by a satiric humorist later aired in the afternoon over a radio station owned by
Pacifica Foundation. Upon the complaint of a man who heard the pre-recorded monologue while
driving with his son, FCC declared the language used as patently offensive and indecent
under a prohibiting law, though not necessarily obscene. FCC added, however, that its declaratory
order was issued in a special factual context, referring, in gist, to an afternoon radio broadcast
when children were undoubtedly in the audience. Acting on the question of whether the FCC
could regulate the subject utterance, the US Supreme Court ruled in the affirmative, owing to two
special features of the broadcast medium, to wit: (1) radio is a pervasive medium and (2)
broadcasting is uniquely accessible to children. The US Court, however, hastened to add that the
monologue would be protected speech in other contexts, albeit it did not expound and identify a
compelling state interest in putting FCCs content-based regulatory action under scrutiny.
The Court in Chavez128[41] elucidated on the distinction between regulation or restriction
of protected speech that is content-based and that which is content-neutral. A content-based
restraint is aimed at the contents or idea of the expression, whereas a content-neutral restraint
intends to regulate the time, place, and manner of the expression under well-defined standards
tailored to serve a compelling state interest, without restraint on the message of the expression.
Courts subject content-based restraint to strict scrutiny.
With the view we take of the case, the suspension MTRCB imposed under the premises
was, in one perspective, permissible restriction. We make this disposition against the backdrop of
the following interplaying factors: First, the indecent speech was made via television, a
pervasive medium that, to borrow from Gonzales v. Kalaw Katigbak,129[42] easily reaches every
home where there is a set [and where] [c]hildren will likely be among the avid viewers of the
programs therein shown; second, the broadcast was aired at the time of the day when there was a
reasonable risk that children might be in the audience; and third, petitioner uttered his speech on
a G or for general patronage rated program. Under Sec. 2(A) of Chapter IV of the IRR of the
124

[37]

125

[38]

126
127
128
129

438 U.S. 726.


Supra note 25.
[39]
G.R. No. 168338, February 15, 2008, 545 SCRA 441.
[40]
Shit, piss, fuck, tits, etc.
[41]
Supra note 39.
[42]
Supra note 26.

153
MTRCB, a show for general patronage is [s]uitable for all ages, meaning that the material for
television x x x in the judgment of the BOARD, does not contain anything unsuitable for children
and minors, and may be viewed without adult guidance or supervision. The words petitioner
used were, by any civilized norm, clearly not suitable for children. Where a language is
categorized as indecent, as in petitioners utterances on a general-patronage rated TV program, it
may be readily proscribed as unprotected speech.
A view has been advanced that unprotected speech refers only to pornography, 130[43] false
or misleading advertisement,131[44] advocacy of imminent lawless action, and expression
endangering national security. But this list is not, as some members of the Court would submit,
exclusive or carved in stone. Without going into specifics, it may be stated without fear of
contradiction that US decisional law goes beyond the aforesaid general exceptions. As the Court
has been impelled to recognize exceptions to the rule against censorship in the past, this particular
case constitutes yet another exception, another instance of unprotected speech, created by the
necessity of protecting the welfare of our children. As unprotected speech, petitioners utterances
can be subjected to restraint or regulation.
Despite the settled ruling in FCC which has remained undisturbed since 1978, petitioner
asserts that his utterances must present a clear and present danger of bringing about a substantive
evil the State has a right and duty to prevent and such danger must be grave and imminent. 132[45]
Petitioners invocation of the clear and present danger doctrine, arguably the most
permissive of speech tests, would not avail him any relief, for the application of said test is
uncalled for under the premises. The doctrine, first formulated by Justice Holmes, accords
protection for utterances so that the printed or spoken words may not be subject to prior restraint
or subsequent punishment unless its expression creates a clear and present danger of bringing
about a substantial evil which the government has the power to prohibit. 133[46] Under the doctrine,
freedom of speech and of press is susceptible of restriction when and only when necessary to
prevent grave and immediate danger to interests which the government may lawfully protect. As
it were, said doctrine evolved in the context of prosecutions for rebellion and other crimes
involving the overthrow of government. 134[47] It was originally designed to determine the latitude
which should be given to speech that espouses anti-government action, or to have serious and
substantial deleterious consequences on the security and public order of the community. 135[48] The
clear and present danger rule has been applied to this jurisdiction. 136[49] As a standard of limitation
on free speech and press, however, the clear and present danger test is not a magic incantation
that wipes out all problems and does away with analysis and judgment in the testing of the
legitimacy of claims to free speech and which compels a court to release a defendant from
liability the moment the doctrine is invoked, absent proof of imminent catastrophic disaster. 137[50]
As we observed in Eastern Broadcasting Corporation, the clear and present danger test does not
lend itself to a simplistic and all embracing interpretation applicable to all utterances in all
forums.138[51]
To be sure, the clear and present danger doctrine is not the only test which has been
applied by the courts. Generally, said doctrine is applied to cases involving the overthrow of the
government and even other evils which do not clearly undermine national security. Since not all
evils can be measured in terms of proximity and degree the Court, however, in several cases
130[43]

Gonzales v. Kalaw Katigbak, supra.


Pharmaceutical and Health Care Association of the Philippines v. Health Secretary Francisco T. Duque III , G.R. No.
173034, October 9, 2007, 535 SCRA 265.
132
[45]
Bayan v. Ermita, G.R. No. 169838, April 25, 2006, 488 SCRA 226.
133[46]
16A Am Jur. 2d Constitutional Law Sec. 493; Schenck v. United States, 249 U.S. 47.
134[47]
Bernas, supra note 27, at 219-220.
135[48]
Gonzales v. COMELEC, No. L-27833, April 18, 1969, 27 SCRA 835.
136[49]
ABS-CBN Broadcasting Corp. v. COMELEC, G.R. No. 133486, January 28, 2000, 323 SCRA 811; Adiong v.
COMELEC, G.R. No. 103956, March 31, 1992, 207 SCRA 712.
137[50]
Zaldivar v. Sandiganbayan, G.R. Nos. 79690-707 & 80578, February 1, 1989, 170 SCRA 1.
138[51]
Supra note 25, at 635.
131[44]

154
Ayer Productions v. Capulong139[52] and Gonzales v. COMELEC,140[53] applied the balancing of
interests test. Former Chief Justice Fred Ruiz Castro, in Gonzales v. COMELEC, elucidated in
his Separate Opinion that where the legislation under constitutional attack interferes with the
freedom of speech and assembly in a more generalized way and where the effect of the speech
and assembly in terms of the probability of realization of a specific danger is not susceptible even
of impressionistic calculation,141[54] then the balancing of interests test can be applied.
The Court explained also in Gonzales v. COMELEC the balancing of interests test:
When particular conduct is regulated in the interest of public order, and the regulation
results in an indirect, conditional, partial abridgment of speech, the duty of the courts is to
determine which of the two conflicting interests demands the greater protection under the
particular circumstances presented. x x x We must, therefore, undertake the delicate and difficult
task x x x to weigh the circumstances and to appraise the substantiality of the reasons advanced in
support of the regulation of the free enjoyment of rights x x x.
In enunciating standard premised on a judicial balancing of the conflicting social values
and individual interests competing for ascendancy in legislation which restricts expression, the
court in Douds laid the basis for what has been called the balancing-of-interests test which has
found application in more recent decisions of the U.S. Supreme Court. Briefly stated, the
balancing test requires a court to take conscious and detailed consideration of the interplay of
interests observable in a given situation or type of situation.
xxx
Although the urgency of the public interest sought to be secured by Congressional power
restricting the individuals freedom, and the social importance and value of the freedom so
restricted, are to be judged in the concrete, not on the basis of abstractions, a wide range of
factors are necessarily relevant in ascertaining the point or line of equilibrium. Among these are
(a) the social value and importance of the specific aspect of the particular freedom restricted by
the legislation; (b) the specific thrust of the restriction, i.e., whether the restriction is direct or
indirect, whether or not the persons affected are few; (c) the value and importance of the public
interest sought to be secured by the legislationthe reference here is to the nature and gravity of
the evil which Congress seeks to prevent; (d) whether the specific restriction decreed by Congress
is reasonably appropriate and necessary for the protection of such public interest; and (e) whether
the necessary safeguarding of the public interest involved may be achieved by some other
measure less restrictive of the protected freedom. 142[55]
This balancing of interest test, to borrow from Professor Kauper, 143[56] rests on the theory
that it is the courts function in a case before it when it finds public interests served by legislation,
on the one hand, and the free expression clause affected by it, on the other, to balance one against
the other and arrive at a judgment where the greater weight shall be placed. If, on balance, it
appears that the public interest served by restrictive legislation is of such nature that it outweighs
the abridgment of freedom, then the court will find the legislation valid. In short, the balance-ofinterests theory rests on the basis that constitutional freedoms are not absolute, not even those
stated in the free speech and expression clause, and that they may be abridged to some extent to
serve appropriate and important interests. 144[57] To the mind of the Court, the balancing of interest
doctrine is the more appropriate test to follow.
139[52]

No. L-82380, April 29, 1988, 160 SCRA 861.


Supra note 48.
141
[54]
Supra at 898.
142[55]
Supra at 899-900.
143[56]
Kauper, CIVIL LIBERTIES AND THE CONSTITUTION 113 (1966); cited in Gonzales v. COMELEC, supra note
48; also cited in J.G. Bernas, S.J., THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES: A COMMENTARY
(2003).
144
[57]
Id.
140

[53]

155
In the case at bar, petitioner used indecent and obscene language and a three (3)-month
suspension was slapped on him for breach of MTRCB rules. In this setting, the assertion by
petitioner of his enjoyment of his freedom of speech is ranged against the duty of the government
to protect and promote the development and welfare of the youth.
After a careful examination of the factual milieu and the arguments raised by petitioner in
support of his claim to free speech, the Court rules that the governments interest to protect and
promote the interests and welfare of the children adequately buttresses the reasonable curtailment
and valid restraint on petitioners prayer to continue as program host of Ang Dating Daan during
the suspension period.
No doubt, one of the fundamental and most vital rights granted to citizens of a State is the
freedom of speech or expression, for without the enjoyment of such right, a free, stable, effective,
and progressive democratic state would be difficult to attain. Arrayed against the freedom of
speech is the right of the youth to their moral, spiritual, intellectual, and social being which the
State is constitutionally tasked to promote and protect. Moreover, the State is also mandated to
recognize and support the vital role of the youth in nation building as laid down in Sec. 13, Art. II
of the 1987 Constitution.
The Constitution has, therefore, imposed the sacred obligation and responsibility on the
State to provide protection to the youth against illegal or improper activities which may prejudice
their general well-being. The Article on youth, approved on second reading by the Constitutional
Commission, explained that the State shall extend social protection to minors against all forms
of neglect, cruelty, exploitation, immorality, and practices which may foster racial, religious or
other forms of discrimination.145[58]
Indisputably, the State has a compelling interest in extending social protection to minors
against all forms of neglect, exploitation, and immorality which may pollute innocent minds. It
has a compelling interest in helping parents, through regulatory mechanisms, protect their
childrens minds from exposure to undesirable materials and corrupting experiences. The
Constitution, no less, in fact enjoins the State, as earlier indicated, to promote and protect the
physical, moral, spiritual, intellectual, and social well-being of the youth to better prepare them
fulfill their role in the field of nation-building. 146[59] In the same way, the State is mandated to
support parents in the rearing of the youth for civic efficiency and the development of moral
character.147[60]
Petitioners offensive and obscene language uttered in a television broadcast, without
doubt, was easily accessible to the children. His statements could have exposed children to a
language that is unacceptable in everyday use. As such, the welfare of children and the States
mandate to protect and care for them, as parens patriae,148[61] constitute a substantial and
compelling government interest in regulating petitioners utterances in TV broadcast as provided
in PD 1986.
FCC explains the duty of the government to act as parens patriae to protect the children
who, because of age or interest capacity, are susceptible of being corrupted or prejudiced by
offensive language, thus:
[B]roadcasting is uniquely accessible to children, even those too young to read. Although
Cohens written message, [Fuck the Draft], might have been incomprehensible to a first grader,
Pacificas broadcast could have enlarged a childs vocabulary in an instant. Other forms of
offensive expression may be withheld from the young without restricting the expression at its
145

[58]

146

[59]

147
148

Bernas, supra note 27, at 81.


CONSTITUTION, Art. II, Sec. 13.
[60]
Id., id., Sec. 12.
[61]
Id.

156
source. Bookstores and motion picture theaters, for example, may be prohibited from making
indecent material available to children. We held in Ginsberg v. New York that the governments
interest in the well-being of its youth and in supporting parents claim to authority in their own
household justified the regulation of otherwise protected expression. The ease with which
children may obtain access to broadcast material, coupled with the concerns recognized in
Ginsberg, amply justify special treatment of indecent broadcasting.
Moreover, Gonzales v. Kalaw Katigbak likewise stressed the duty of the State to attend to
the welfare of the young:
x x x It is the consensus of this Court that where television is concerned, a less liberal
approach calls for observance. This is so because unlike motion pictures where the patrons have
to pay their way, television reaches every home where there is a set. Children then will likely will
be among the avid viewers of the programs therein shown. As was observed by Circuit Court of
Appeals Judge Jerome Frank, it is hardly the concern of the law to deal with the sexual fantasies
of the adult population. It cannot be denied though that the State as parens patriae is called upon
to manifest an attitude of caring for the welfare of the young. 149[62]
The compelling need to protect the young impels us to sustain the regulatory action
MTRCB took in the narrow confines of the case. To reiterate, FCC justified the restraint on the
TV broadcast grounded on the following considerations: (1) the use of television with its unique
accessibility to children, as a medium of broadcast of a patently offensive speech; (2) the time of
broadcast; and (3) the G rating of the Ang Dating Daan program. And in agreeing with
MTRCB, the court takes stock of and cites with approval the following excerpts from FCC:
It is appropriate, in conclusion, to emphasize the narrowness of our holding. This case
does not involve a two-way radio conversation between a cab driver and a dispatcher, or a telecast
of an Elizabethan comedy. We have not decided that an occasional expletive in either setting
would justify any sanction. x x x The [FFCs] decision rested entirely on a nuisance rationale
under which context is all important. The concept requires consideration of a host of variables.
The time of day was emphasized by the [FFC]. The content of the program in which the language
is used will affect the composition of the audience x x x. As Mr. Justice Sutherland wrote a
nuisance may be merely a right thing in the wrong place, like a pig in the parlor instead of the
barnyard. We simply hold that when the [FCC] finds that a pig has entered the parlor, the
exercise of its regulatory power does not depend on proof that the pig is obscene. (Citation
omitted.)
There can be no quibbling that the remarks in question petitioner uttered on prime-time
television are blatantly indecent if not outright obscene. It is the kind of speech that PD 1986
proscribes necessitating the exercise by MTRCB of statutory disciplinary powers. It is the kind
of speech that the State has the inherent prerogative, nay duty, to regulate and prevent should such
action served and further compelling state interests. One who utters indecent, insulting, or
offensive words on television when unsuspecting children are in the audience is, in the graphic
language of FCC, a pig in the parlor. Public interest would be served if the pig is reasonably
restrained or even removed from the parlor.
Ergo, petitioners offensive and indecent language can be subjected to prior
restraint.
Petitioner theorizes that the three (3)-month suspension is either prior restraint or
subsequent punishment that, however, includes prior restraint, albeit indirectly.
After a review of the facts, the Court finds that what MTRCB imposed on petitioner
is an administrative sanction or subsequent punishment for his offensive and obscene
language in Ang Dating Daan.
149

[62]

Supra note 26, at 729.

157
To clarify, statutes imposing prior restraints on speech are generally illegal and presumed
unconstitutional breaches of the freedom of speech. The exceptions to prior restraint are movies,
television, and radio broadcast censorship in view of its access to numerous people, including the
young who must be insulated from the prejudicial effects of unprotected speech. PD 1986 was
passed creating the Board of Review for Motion Pictures and Television (now MTRCB) and
which requires prior permit or license before showing a motion picture or broadcasting a TV
program. The Board can classify movies and television programs and can cancel permits for
exhibition of films or television broadcast.
The power of MTRCB to regulate and even impose some prior restraint on radio and
television shows, even religious programs, was upheld in Iglesia Ni Cristo v. Court of Appeals.
Speaking through Chief Justice Reynato S. Puno, the Court wrote:
We thus reject petitioners postulate that its religious program is per se beyond review by
the respondent Board. Its public broadcast on TV of its religious program brings it out of the
bosom of internal belief. Television is a medium that reaches even the eyes and ears of children.
The Court iterates the rule that the exercise of religious freedom can be regulated by the State
when it will bring about the clear and present danger of some substantive evil which the State is
duty bound to prevent, i.e., serious detriment to the more overriding interest of public health,
public morals, or public welfare. x x x
xxx
While the thesis has a lot to commend itself, we are not ready to hold that [PD 1986] is
unconstitutional for Congress to grant an administrative body quasi-judicial power to preview and
classify TV programs and enforce its decision subject to review by our courts. As far back as
1921, we upheld this setup in Sotto vs. Ruiz, viz:
The use of the mails by private persons is in the nature of a privilege which can be
regulated in order to avoid its abuse. Persons possess no absolute right to put into the mail
anything they please, regardless of its character. 150[63]
Bernas adds:
Under the decree a movie classification board is made the arbiter of what movies and
television programs or parts of either are fit for public consumption. It decides what movies are
immoral, indecent, contrary to law and/or good customs, injurious to the prestige of the Republic
of the Philippines or its people, and what tend to incite subversion, insurrection, rebellion or
sedition, or tend to undermine the faith and confidence of the people in their government and/or
duly constituted authorities, etc. Moreover, its decisions are executory unless stopped by a
court.151[64]
Moreover, in MTRCB v. ABS-CBN Broadcasting Corporation,152[65] it was held that the
power of review and prior approval of MTRCB extends to all television programs and is valid
despite the freedom of speech guaranteed by the Constitution. Thus, all broadcast networks are
regulated by the MTRCB since they are required to get a permit before they air their television
programs. Consequently, their right to enjoy their freedom of speech is subject to that
requirement. As lucidly explained by Justice Dante O. Tinga, government regulations through the
MTRCB became a necessary evil with the government taking the role of assigning bandwidth
to individual broadcasters. The stations explicitly agreed to this regulatory scheme; otherwise,
chaos would result in the television broadcast industry as competing broadcasters will interfere or
co-opt each others signals. In this scheme, station owners and broadcasters in effect waived their
150

[63]

151

[64]

152

G.R. No. 119673, July 26, 1996, 259 SCRA 529, 544, 552.
Supra note 56, at 235.
[65]
G.R. No. 155282, January 17, 2005, 448 SCRA 575.

158
right to the full enjoyment of their right to freedom of speech in radio and television programs
and impliedly agreed that said right may be subject to prior restraintdenial of permit or
subsequent punishment, like suspension or cancellation of permit, among others.
The three (3) months suspension in this case is not a prior restraint on the right of
petitioner to continue with the broadcast of Ang Dating Daan as a permit was already issued
to him by MTRCB for such broadcast. Rather, the suspension is in the form of permissible
administrative sanction or subsequent punishment for the offensive and obscene remarks he
uttered on the evening of August 10, 2004 in his television program, Ang Dating Daan. It is a
sanction that the MTRCB may validly impose under its charter without running afoul of the free
speech clause. And the imposition is separate and distinct from the criminal action the Board
may take pursuant to Sec. 3(i) of PD 1986 and the remedies that may be availed of by the
aggrieved private party under the provisions on libel or tort, if applicable. As FCC teaches, the
imposition of sanctions on broadcasters who indulge in profane or indecent broadcasting does not
constitute forbidden censorship. Lest it be overlooked, the sanction imposed is not per se for
petitioners exercise of his freedom of speech via television, but for the indecent contents of his
utterances in a G rated TV program.
More importantly, petitioner is deemed to have yielded his right to his full enjoyment of
his freedom of speech to regulation under PD 1986 and its IRR as television station owners,
program producers, and hosts have impliedly accepted the power of MTRCB to regulate the
broadcast industry.
Neither can petitioners virtual inability to speak in his program during the period of
suspension be plausibly treated as prior restraint on future speech. For viewed in its proper
perspective, the suspension is in the nature of an intermediate penalty for uttering an unprotected
form of speech. It is definitely a lesser punishment than the permissible cancellation of
exhibition or broadcast permit or license. In fine, the suspension meted was simply part of the
duties of the MTRCB in the enforcement and administration of the law which it is tasked to
implement. Viewed in its proper context, the suspension sought to penalize past speech made on
prime-time G rated TV program; it does not bar future speech of petitioner in other television
programs; it is a permissible subsequent administrative sanction; it should not be confused with a
prior restraint on speech. While not on all fours, the Court, in MTRCB,153[66] sustained the power
of the MTRCB to penalize a broadcast company for exhibiting/airing a pre-taped TV episode
without Board authorization in violation of Sec. 7 of PD 1986.
Any simplistic suggestion, however, that the MTRCB would be crossing the limits of its
authority were it to regulate and even restrain the prime-time television broadcast of indecent or
obscene speech in a G rated program is not acceptable. As made clear in Eastern Broadcasting
Corporation, the freedom of television and radio broadcasting is somewhat lesser in scope than
the freedom accorded to newspaper and print media. The MTRCB, as a regulatory agency, must
have the wherewithal to enforce its mandate, which would not be effective if its punitive actions
would be limited to mere fines. Television broadcasts should be subject to some form of
regulation, considering the ease with which they can be accessed, and violations of the
regulations must be met with appropriate and proportional disciplinary action. The suspension of
a violating television program would be a sufficient punishment and serve as a deterrent for those
responsible. The prevention of the broadcast of petitioners television program is justified, and
does not constitute prohibited prior restraint. It behooves the Court to respond to the needs of the
changing times, and craft jurisprudence to reflect these times.
Finally, petitioner argues that there has been undue delegation of legislative power, as PD
1986 does not provide for the range of imposable penalties that may be applied with respect to
violations of the provisions of the law.
The argument is without merit.
153

[66]

Supra note 65.

159
In Edu v. Ericta, the Court discussed the matter of undue delegation of legislative power
in the following wise:
It is a fundamental principle flowing from the doctrine of separation of powers that
Congress may not delegate its legislative power to the two other branches of the government,
subject to the exception that local governments may over local affairs participate in its exercise.
What cannot be delegated is the authority under the Constitution to make laws and to alter and
repeal them; the test is the completeness of the statute in all its term and provisions when it leaves
the hands of the legislature. To determine whether or not there is an undue delegation of
legislative power, the inquiry must be directed to the scope and definiteness of the measure
enacted. The legislature does not abdicate its functions when it describes what job must be done,
who is to do it, and what is the scope of his authority. For a complex economy, that may indeed
be the only way in which the legislative process can go forward. A distinction has rightfully
been made between delegation of power to make laws which necessarily involves a discretion as
to what it shall be, which constitutionally may not be done, and delegation of authority or
discretion as to its execution to be exercised under and in pursuance of the law, to which no valid
objection can be made. The Constitution is thus not to be regarded as denying the legislature the
necessary resources of flexibility and practicability.
To avoid the taint of unlawful delegation, there must be a standard, which implies at the
very least that the legislature itself determines matters of principle and lays down fundamental
policy. Otherwise, the charge of complete abdication may be hard to repel. A standard thus
defines legislative policy, marks its limits, maps out its boundaries and specifies the public
agency to apply it. It indicates the circumstances under which the legislative command is to be
effected. It is the criterion by which legislative purpose may be carried out. Thereafter, the
executive or administrative office designated may in pursuance of the above guidelines
promulgate supplemental rules and regulations.154[67]
Based on the foregoing pronouncements and analyzing the law in question, petitioners
protestation about undue delegation of legislative power for the sole reason that PD 1986
does not provide for a range of penalties for violation of the law is untenable. His thesis is
that MTRCB, in promulgating the IRR of PD 1986, prescribing a schedule of penalties for
violation of the provisions of the decree, went beyond the terms of the law.
Petitioners posture is flawed by the erroneous assumptions holding it together, the first
assumption being that PD 1986 does not prescribe the imposition of, or authorize the MTRCB to
impose, penalties for violators of PD 1986. As earlier indicated, however, the MTRCB, by
express and direct conferment of power and functions, is charged with supervising and regulating,
granting, denying, or canceling permits for the exhibition and/or television broadcast of all
motion pictures, television programs, and publicity materials to the end that no such objectionable
pictures, programs, and materials shall be exhibited and/or broadcast by television.
Complementing this provision is Sec. 3(k) of the decree authorizing the MTRCB to exercise
such powers and functions as may be necessary or incidental to the attainment of the purpose and
objectives of [the law]. As earlier explained, the investiture of supervisory, regulatory, and
disciplinary power would surely be a meaningless grant if it did not carry with it the power to
penalize the supervised or the regulated as may be proportionate to the offense committed,
charged, and proved. As the Court said in Chavez v. National Housing Authority:
x x x [W]hen a general grant of power is conferred or duty enjoined, every particular
power necessary for the exercise of the one or the performance of the other is also conferred. x x
x [W]hen the statute does not specify the particular method to be followed or used by a
government agency in the exercise of the power vested in it by law, said agency has the authority
to adopt any reasonable method to carry out its function. 155[68]
154

[67]

No. L-32096, October 24, 1970, 35 SCRA 481, 496-497.

160
Given the foregoing perspective, it stands to reason that the power of the MTRCB to
regulate and supervise the exhibition of TV programs carries with it or necessarily implies the
authority to take effective punitive action for violation of the law sought to be enforced. And
would it not be logical too to say that the power to deny or cancel a permit for the exhibition of a
TV program or broadcast necessarily includes the lesser power to suspend?
The MTRCB promulgated the IRR of PD 1986 in accordance with Sec. 3(a) which, for
reference, provides that agency with the power [to] promulgate such rules and regulations as are
necessary or proper for the implementation of this Act, and the accomplishment of its purposes
and objectives x x x. And Chapter XIII, Sec. 1 of the IRR providing:
Section 1. VIOLATIONS AND ADMINISTRATIVE SANCTIONS.Without prejudice
to the immediate filing of the appropriate criminal action and the immediate seizure of the
pertinent articles pursuant to Section 13, any violation of PD 1986 and its Implementing Rules
and Regulations governing motion pictures, television programs, and related promotional
materials shall be penalized with suspension or cancellation of permits and/or licenses
issued by the Board and/or with the imposition of fines and other administrative
penalty/penalties. The Board recognizes the existing Table of Administrative Penalties attached
without prejudice to the power of the Board to amend it when the need arises. In the meantime
the existing revised Table of Administrative Penalties shall be enforced. (Emphasis added.)
This is, in the final analysis, no more than a measure to specifically implement the
aforequoted provisions of Sec. 3(d) and (k). Contrary to what petitioner implies, the IRR does not
expand the mandate of the MTRCB under the law or partake of the nature of an unauthorized
administrative legislation. The MTRCB cannot shirk its responsibility to regulate the public
airwaves and employ such means as it can as a guardian of the public.
In Sec. 3(c), one can already find the permissible actions of the MTRCB, along with the
standards to be applied to determine whether there have been statutory breaches. The MTRCB
may evaluate motion pictures, television programs, and publicity materials applying
contemporary Filipino cultural values as standard, and, from there, determine whether these
audio and video materials are objectionable for being immoral, indecent, contrary to law and/or
good customs, [etc.] x x x and apply the sanctions it deems proper. The lawmaking body cannot
possibly provide for all the details in the enforcement of a particular statute. 156[69] The grant of
the rule-making power to administrative agencies is a relaxation of the principle of separation of
powers and is an exception to the non-delegation of legislative powers. 157[70] Administrative
regulations or subordinate legislation calculated to promote the public interest are necessary
because of the growing complexity of modern life, the multiplication of the subjects of
governmental regulations, and the increased difficulty of administering the law. 158[71] Allowing
the MTRCB some reasonable elbow-room in its operations and, in the exercise of its statutory
disciplinary functions, according it ample latitude in fixing, by way of an appropriate issuance,
administrative penalties with due regard for the severity of the offense and attending mitigating or
aggravating circumstances, as the case may be, would be consistent with its mandate to
effectively and efficiently regulate the movie and television industry.
But even as we uphold the power of the MTRCB to review and impose sanctions for
violations of PD 1986, its decision to suspend petitioner must be modified, for nowhere in
that issuance, particularly the power-defining Sec. 3 nor in the MTRCB Schedule of
Administrative Penalties effective January 1, 1999 is the Board empowered to suspend the
program host or even to prevent certain people from appearing in television programs. The
MTRCB, to be sure, may prohibit the broadcast of such television programs or cancel permits for
155

[68]
Supra note 17; citing Angara v. Electoral Commission, 63 Phil. 139 (1936); Provident Tree Farms, Inc. v. Batario, Jr.,
G.R. No. 92285, March 28, 1994, 231 SCRA 463.
156
[69]
People v. Maceren, No. L-32166, October 18, 1977, 79 SCRA 450, 458.
157
[70]
Id.
158
[71]
Id.

161
exhibition, but it may not suspend television personalities, for such would be beyond its
jurisdiction. The MTRCB cannot extend its exercise of regulation beyond what the law provides.
Only persons, offenses, and penalties clearly falling clearly within the letter and spirit of PD 1986
will be considered to be within the decrees penal or disciplinary operation. And when it exists,
the reasonable doubt must be resolved in favor of the person charged with violating the statute
and for whom the penalty is sought. Thus, the MTRCBs decision in Administrative Case No. 0104 dated September 27, 2004 and the subsequent order issued pursuant to said decision must be
modified. The suspension should cover only the television program on which petitioner
appeared and uttered the offensive and obscene language, which sanction is what the law
and the facts obtaining call for.
In ending, what petitioner obviously advocates is an unrestricted speech paradigm in
which absolute permissiveness is the norm. Petitioners flawed belief that he may simply utter
gutter profanity on television without adverse consequences, under the guise of free speech, does
not lend itself to acceptance in this jurisdiction. We repeat: freedoms of speech and expression
are not absolute freedoms. To say any act that restrains speech should be greeted with furrowed
brows is not to say that any act that restrains or regulates speech or expression is per se invalid.
This only recognizes the importance of freedoms of speech and expression, and indicates the
necessity to carefully scrutinize acts that may restrain or regulate speech.
WHEREFORE, the decision of the MTRCB in Adm. Case No. 01-04 dated September
27, 2004 is hereby AFFIRMED with the MODIFICATION of limiting the suspension to the
program Ang Dating Daan. As thus modified, the fallo of the MTRCB shall read as follows:
WHEREFORE, in view of all the foregoing, a Decision is hereby rendered, imposing a
penalty of THREE (3) MONTHS SUSPENSION on the television program, Ang Dating
Daan, subject of the instant petition.
DISSENTING OPINION, Justice Antonio Carpio.
I dissent because the three-month suspension of petitioners TV program Ang Dating
Daan constitutes an unconstitutional prior restraint on freedom of expression. The suspension
prevents petitioner from even reciting the Lords Prayer, or even saying hello to viewers,
in his TV program. The suspension bars the public airing of petitioners TV program regardless
of whatever subject matter petitioner, or anyone else, wishes to discuss in petitioners TV
program.
This is like suspending the publication of the Philippine Daily Inquirer for three months
if its editorial describes a private person as masahol pa sa putang babae. This is also similar
to suspending for three months the column of a newspaper columnist for using the expletive
putang ina mo in his column. Such suspension is the censorship that the Constitution outlaws
when it states that [n]o law shall be passed abridging the freedom of speech, of expression, or of
the press x x x.159[1]
The remedy of any aggrieved person is to file a libel or tort case after the utterance or
publication of such cusswords. Our libels laws punish with fine, imprisonment or damages
libelous language already uttered or published.160[2] Our tort laws also allow recovery of
damages for tortious speech already uttered or published.161[3] However, both our libel and tort
159

[1]
Section 4, Article III, Constitution.

160

[2]
Article 353-359, Revised Penal Code; Article 33, Civil Code.

161

[3]
Article 26, Civil Code.

162
laws never impose a gag order on future expression because that will constitute prior restraint or
censorship. Thus, our libel and tort laws do not allow the filing of a suit to enjoin or punish an
expression that has yet to be uttered or written.
Indeed, there can never be a prior restraint on future expression, whether for fear of
possible libelous utterance or publication, or as a punishment for past libelous utterance or
publication. Otherwise, many of the radio and TV political programs will have to be banned for
the frequent use of cusswords and other libelous language. Even politicians will have to be
barred from addressing political rallies, or the rallies themselves will have to be banned, because
politicians often use cusswords and other profanities during political rallies.
In the present case, the three-month preventive suspension of petitioners TV program
bars petitioner from talking about the weather, or from talking about the birds and the bees, or
even from talking about nothingness, in his TV program. The public airing of the entire TV
program, regardless of its content, is totally suppressed for three months. The Government has no
power under the Constitution to so brazenly suppress freedom of expression. This Court should
never give its imprimatur to such a blatant violation of a fundamental constitutional right, which
has been described as the one basic right that makes all other civil, human and political rights
possible.
Prior Restraint on Expression
The well-settled rule is there can be no prior restraint on expression. This rule emanates
from the constitutional command that [n]o law shall be passed abridging the freedom of speech,
of expression, or of the press x x x. The history of freedom of expression has been a constant
struggle against the censors prior restraint on expression. The leading American case of Near
v. Minnesota162[4] teaches us that the primordial purpose of the Free Expression Clause is to
prevent prior restraint on expression.
This well-settled rule, however, is subject to exceptions narrowly carved out by courts
over time because of necessity. In this jurisdiction, we recognize only four exceptions, namely:
pornography,163[5] false or misleading advertisement,164[6] advocacy of imminent lawless
action,165[7] and danger to national security.166[8] Only in these instances may expression be
subject to prior restraint. All other expression is not subject to prior restraint.
Although pornography, false or misleading advertisement, advocacy of imminent lawless
action, and expression endangering national security may be subject to prior restraint, such prior
restraint must hurdle a high barrier. First, such prior restraint is strongly presumed as
unconstitutional. Second, the government bears a heavy burden of justifying such prior
restraint.167[9]

162

[4]
283 U.S. 697 (1931).

163

[5]
Gonzales v. Kalaw-Katigbak, 222 Phil. 225 (1985).

164

[6]

Pharmaceutical and Health Care Association of the Philippines v. Duque III, G.R. No. 173034,
535 SCRA 265.

9 October 2007,

165

[7]
Eastern Broadcasting Corporation v. Dans, No. 222 Phil. 151 (1985).

166

[8]
Id.

167

[9]

Iglesia ni Cristo (INC) v. Court of Appeals, G.R. No. 119673, 26 July 1996, 259 SCRA 529;
United States, 403 U.S. 713 (1971).

New York Times v.

163
The test to determine the constitutionality of prior restraint on pornography, advocacy of
imminent lawless action, and expression endangering national security is the clear and present
danger test. The expression subject to prior restraint must present a clear and present danger of
bringing about a substantive evil the State has a right and duty to prevent, and such danger must
be grave and imminent.168[10]
The power of Congress to impose prior restraint on false or misleading advertisements
emanates from the constitutional provision that the advertising industry is impressed with public
interest, and shall be regulated by law for the protection of consumers and the promotion of the
general welfare.169[11]
Prior restraint on expression may be either content-based or content-neutral. Contentbased prior restraint is aimed at suppressing the message or idea contained in the expression.
Courts subject content-based restraint to strict scrutiny. Content-neutral restraint on expression is
restraint that regulates the time, place or manner of expression in public places without any
restraint on the content of the expression. Courts subject content-neutral restraint to intermediate
scrutiny.
Subsequent Punishment of Expression
The rule is also well-settled that expression cannot be subject to subsequent punishment.
This rule also emanates from the constitutional command that [n]o law shall be passed abridging
the freedom of speech, of expression, or of the press x x x. However, courts again have carved
out narrow exceptions to this rule out of necessity.
The exceptions start with the four types of expression that may be subject to prior
restraint. If a certain expression is subject to prior restraint, its utterance or publication in
violation of the lawful restraint naturally subjects the person responsible to subsequent
punishment. Thus, acts of pornography,170[12] false or misleading advertisement,171[13] advocacy
of imminent lawless action,172[14] and endangering national security,173[15] are all punishable
under the law.
Two other exceptions are defamation, 174[16] which includes libel and slander, and tortious
speech.175[17] Defamatory and tortious speech, per se, are not subject to prior restraint because
by definition they do not constitute a clear and present danger to the State that is grave and
imminent. Once defamatory or tortuous speech rises to the level of advocacy of imminent
lawless action, then it may be subject to prior restraint because it is seditious 176[18] but not
168

[10]
Bayan v. Ermita, G.R. Nos. 169838, 169848 and 169881, 25 April 2006, 488 SCRA 226.

169

[11]
Section 11(2), Article XVI, Constitution.

170

[12]
Article 201, Revised Penal Code.

171

[13]
Section 6(a), Milk Code.

172

[14]
Article 142, Revised Penal Code.

173

[15]
Article 138, Revised Penal Code.

174

[16]
See note 2.

175

[17]
See note 3.

176

[18]
Articles 138 and 142, Revised Penal Code.

164
because it is defamatory or tortious. Defamation and tortious conduct, however, may be subject to
subsequent punishment, civilly or criminally.
Fighting words are not subject to subsequent punishment unless they are defamatory or
tortious. Fighting words refer to profane or vulgar words that are likely to provoke a violent
response from an audience. Profane or vulgar words like Fuck the draft, when not directed at
any particular person, ethnic or religious group, are not subject to subsequent punishment. 177[19]
As aptly stated, one mans vulgarity may be another mans lyric. 178[20]
If profane or vulgar language like Fuck the draft is not subject to
subsequent punishment, then with more reason it cannot be subject to prior restraint.
Without a law punishing the actual utterance or publication of an expression, an expression
cannot be subject to prior restraint because such expression is not unlawful or illegal.
Prior restraint is more deleterious to freedom of expression than subsequent punishment.
Although subsequent punishment also deters expression, still the ideas are disseminated to the
public. Prior restraint prevents even the dissemination of ideas to the public. Thus, the threemonth suspension of petitioners TV program, being a prior restraint on expression, has far graver
ramifications than any possible subsequent punishment of petitioner.
Three-Month Suspension is a Prohibited Prior Restraint
The three-month suspension of petitioners TV program is indisputably a prior restraint
on expression. During the three-month suspension, petitioner cannot utter a single word in his
TV program because the program is totally suppressed. A prior restraint may be justified only if
the expression falls under any of the four types of expression that may be subject to prior
restraint, namely, pornography, false or misleading advertisement, advocacy of imminent lawless
action, and danger to national security.
Obviously, what petitioner uttered does not fall under any of the four types of expression
that may be subject to prior restraint. What respondents assail is the following ranting of
petitioner:
Lehitimong anak ng demonyo; sinungaling;
Gago ka talaga Michael, masahol ka pa sa putang babae o di ba. Yung putang babae ang
gumagana lang doon yung ibaba, [dito] kay Michael ang gumagana ang itaas, o di ba! O,
masahol pa sa putang babae yan. Sabi ng lola ko masahol pa sa putang babae yan. Sobra ang
kasinungalingan ng mga demonyong ito
No matter how offensive, profane or vulgar petitioners words may be, they do not constitute
pornography, false or misleading advertisement, advocacy of imminent lawless action, or danger
to national security. Thus, petitioners offensive, profane or vulgar language cannot be subject to
prior restraint but may be subject to subsequent punishment if defamatory or tortious.
Any prior restraint is strongly presumed to be unconstitutional and the government bears
a heavy burden of justifying such prior restraint. 179[21] Such prior restraint must pass the clear
177

[19]
Cohen v. California, 403 U.S. 15 (1971).

178

[20]
Id.

179

[21]
See note 9.

165
and present danger test. The majority opinion, which imposes a prior restraint on expression,
is totally bereft of any discussion that petitioners ranting poses a clear and present danger
to the State that is grave and imminent. The respondents have not presented any credible
justification to overcome the strong presumption of unconstitutionality accorded to the threemonth suspension order.
The three-month suspension cannot be passed off merely as a preventive suspension that
does not partake of a penalty. The actual and real effect of the three-month suspension is a prior
restraint on expression in violation of a fundamental constitutional right. Even Congress cannot
validly pass a law imposing a three-month preventive suspension on freedom of expression for
offensive or vulgar language uttered in the past. Congress may punish such offensive or vulgar
language, after their utterance, with damages, fine or imprisonment but Congress has no power to
suspend or suppress the peoples right to speak freely because of such past utterances.
In short, Congress may pass a law punishing defamation or tortious speech but the
punishment cannot be the suspension or suppression of the constitutional right to freedom of
expression. Otherwise, such law would be abridging the freedom of speech, of expression,
or of the press. If Congress cannot pass such a law, neither can respondent MTRCB
promulgate a rule or a decision suspending for three months petitioners constitutional right to
freedom of expression. And of course, neither can this Court give its stamp of imprimatur to such
an unconstitutional MTRCB rule or decision.
Read:
1. Gonzales vs. Kalaw Katigbak, 137 SCRA 717
2. New York Times vs. U.S., 403 U.S. 713 (Any system of prior restraints of expression comes
to this Court bearing a heavy presumption against its validity)
3. Near vs. Minnesota, 283 U.S. 697
4. Times Film vs. City of Chicago, 365 U.S. 43
5. Freedman vs. Maryland, 380 U.S. 51
8. Clear and present danger and dangerous tendency rule (whether the words used in such
circumstances and are of such a nature as to create a clear and present danger that they will
bring about the substantive evils that the State has the right to prevent)
7-a. Dangerous tendency rule (If the words uttered create a dangerous tendency which the
State has the right to prevent, then such words are punishable)
Read:
1. Cabansag vs. Fernandez, 102 Phil. 152
2. Read again the Reyes and Ruiz cases, supra
3. Read again Zaldivar vs. Sandiganbayan, GR No.
GR No.
80578, February 1, 1989

7960-707& Zaldivar vs. Gonzales,

8. The balancing-of-interest test (When a particular conduct is regulated in the interest of


the public order, and the regulation results in an indirect, conditional, partial abridgment of
speech, the duty of the courts is to determine which of the 2 conflicting interests demand
greater protection under the circumstances presented.)
Read:
AYER PRODUCTION VS. JUDGE CAPULONG, JUAN PONCE ENRILE, ET AL., 160 SCRA
861
Read also:

166
1. Lagunzad vs. Gonzales, 92 SCRA 476
2. Gitlow vs. New York, 268 U.S. 652, including
Holmes
3. See also Zaldivar case above

the criticism on this test by Justice

CHAPTER VI - THE NON-ESTABLISHMENT


OF RELIGION CLAUSE
Section 5. No law shall be made respecting the establishment
of religion, or prohibiting the free exercise thereof. The free
exercise and enjoyment of religious profession and worship,
without discrimination or preference shall forever be
allowed. No religious test shall be required for the exercise of
civil or political rights.
ESTRADA VS. SOLEDAD ESCRITOR, 492 SCRA 1 (Resolution of the Motion for
Reconsideration), 408 SCRA 1
Puno, J.
Respondent is the Court interpreter of RTC Branch 253, Las Pinas City. Complainant
requested for an investigation of respondent for living with a man not her husband while she was
still legally married and having borne a child within this live-in arrangement. Estrada believes
that Escritor is committing a grossly immoral act which tarnishes the image of the judiciary, thus
she should not be allowed to remain employed therein as it might appear that the court condones
her act.
Respondent admitted she started living with Luciano Quilapio, Jr. more than 20 years ago
when her husband was still alive but living with another woman. She likewise admitted having a
son with Quilapio but denies any liability for alleged grossly immoral conduct because:

She is a member of the Jehovahs Witnesses and the Watch Tower Society;
That the conjugal arrangement was in conformity with their religious beliefs;
That the conjugal arrangement with Quilapio has the approval of her congregation.
Escritor likewise claimed that she had executed a DECLARATION OF PLEDGING
FAITHFULNESS in accordance with her religion which allows members of the Jehovahs
witnesses who have been abandoned by their spouses to enter into marital relations. The
Declaration thus makes the resulting union moral and binding within the congregation all over the
world except in countries where divorce is allowed.
HELD:
Escritors conjugal arrangement cannot be penalized as she has made out a case for
exemption from the law based on her fundamental right to religion. The Court recognizes that
state interests must be upheld in order that freedoms---including religious freedom---may be
enjoyed. IN THE AREA OF RELIGIOUS EXERCISE AS A PREFERRED FREEDOM,
HOWEVER, MAN STANDS ACCOUNTABLE TO AN AUTHORITY HIGHER THAN THE
STATE, and so the state interest sought to be upheld must be so compelling that its violation will
erode the very fabric of the state that will also protect the freedom. In the absence of a showing
that the state interest exists, man must be allowed to subscribe to the Infinite.
Escritor was therefore held not administratively liable for grossly immoral conduct.

167
FREEDOM OF RELIGION
-any specific system of belief, worship or conduct, often involving a code of ethics and
philosophy.
-A profession of faith to an active power that binds and elevates man to his Creator.
The existence of a Divine being is not necessarily inherent in religion; the Buddhists espouses
a way of life without reference to an omnipotent God.
Strong fences make good neighbors. The idea is to delineate the boundaries between
two institutions and prevent encroachments by one against the other.
The doctrine cuts both ways. It is not only the State that is prohibited from interfering in
purely ecclesiastical affairs; the Church is likewise barred from meddling in purely secular
matters.
NON-STABLISHMENT CLAUSE:
It simply means that the State cannot set up a church; nor pass laws which aids one
religion; aid all religion, or prefer one religion over another nor force nor influence a person to go
to or remain away from church against his will; or force him to profess a belief or disbelief; that
the State cannot openly or secretly participate in the affairs of any religious organization or group
and vice versa (EVERSON VS. BOARD OF EDUCATION, 330 US 1)
This clause seeks to protect:
Voluntarism---must come into existence through the voluntary support of its members;
Insulation from political processgrowth through voluntary support of its members will not take
place if there is intervention from the State.
There will be no violation of the non-establishment clause if:
the statute has a secular legislative purpose;
its principal or primary effect is one that neither advances nor inhibits religion; and
it does not foster an excessive government entanglement with religion. (LEMON VS.
KURTZMAN, 403 US 602)
The government is neutral and while protecting all, it prefers none and disparages none. All
here applies both to the believer and the non-believer. FREEDOM OF RELIGION INCLUDES
FREEDOM FROM RELIGION; THE RIGHT TO WORHIP INCLUDES THE RIGHT NOT TO
WORSHIP.
SCHOOL PRAYER CASE (ENGEL VS. VITALE, 370 US 421)
It is unconstitutional for a school to require the students to recite a prayer composed by
the Board of Regents at the starts of the days class. It is no part of the business of government to
compose official prayers for any group of the American People.
SCHOOL DISTRICT OF ABINGTON VS. SCHEMPP, 374 US 203
It is unconstitutional for a law to require that at least 10 verses from the Holy Bible be
read daily without comment because the same constitute a religious exercise which violates the
non-establishment clause.

168
BOARD OF EDUCATION VS. ALLEN, 392 US 236
A law requiring the Board of Education to lend textbooks free of charge to all students
from grades 7-12 of parochial school. This is constitutional since it is not the parochial school
which gets the benefits but the parents.
EVERSON VS. BOARD OF EDUCATION, 330 US 1
The law authorizing reimbursement of transportation expenses of school children going
to and from parochial schools is not violative of the non-establishment clause because it will be
the parents who get benefits, not the parochial school.
RIGHT TO RELIGIOUS PROFESSION AND WORSHIP HAS TWO ASPECTS:
a. Freedom to believe; and
b. Freedom to act.
IN the first, such freedom is absolute. He may indulge in his own theories about life and
death; worship any god he chooses, or none at all. He may not be punished even if he cannot
prove what he believes.
In the second, if the individual externalizes what he believes, his freedom to do so
becomes subject to the authority of the State. This is so because religious freedom can be
exercised only with due regard to the rights of others. Example: Go forth and multiply---cannot
marry several times just to comply.
PEOPLE VS. LAGMAN & ZOSA, 38 O.G. 1676
Avoiding military duties based on religious grounds is not allowed in the Philippines
because of Section 4, Article IIThe state is the protector of the people and it is the prime duty
of the people to defend the State and in the fulfillment of this duty, the State may call all citizens
to render military or civil service.
IN RE SUMMERS, 325 US 561
The act of the Illinois Supreme Court denying admission to the bar because of his refusal
to take in good faith an oath to support the Constitution of the State of Illinois which requires
mandatory service in the military in times of war was reversed by the US Supreme Court stating
that this constitutes a violation of the 1st Amendment which guarantees religious freedom.
1. Religious freedom in relation to impairment of
associations,36
SCRA 445

contracts and the right to join

2. Read:
1. Aglipay vs. Ruiz, 64 Phil. 201
2. Garces vs. Estenzo, 104 SCRA 510
3. INK vs. Gironella, 106 SCRA 1
4. American Bible Society vs. City of Manila, 101
5. Gerona vs. Sec. of Education, 106 Phil. 11
6. Pamil vs. Teleron, November 20, 1978
7. Victoriano vs. Elizalde Rope, 59 SCRA 54
7. German vs. Barangan, 135 SCRA 514

Phil. 398

169
ANG LADLAD LGBT PARTY VS. COMELEC, G.R. No. 190582, April 7, 2010
DEL CASTILLO, J.:
This is a Petition for Certiorari under Rule 65 of the Rules of Court, with an application for a writ of
preliminary mandatory injunction, filed by Ang Ladlad LGBT Party (Ang Ladlad) against the Resolutions of the
Commission on Elections (COMELEC) dated November 11, 2009 (the First Assailed Resolution) and December
16, 2009 (the Second Assailed Resolution) in SPP No. 09-228 (PL) (collectively, the Assailed Resolutions). The
case has its roots in the COMELECs refusal to accredit Ang Ladlad as a party-list organization under Republic Act
(RA) No. 7941, otherwise known as the Party-List System Act.
Ang Ladlad is an organization composed of men and women who identify themselves as lesbians, gays,
bisexuals, or trans-gendered individuals (LGBTs). Incorporated in 2003, Ang Ladlad first applied for registration
with the COMELEC in 2006. The application for accreditation was denied on the ground that the organization had
no substantial membership base. On August 17, 2009, Ang Ladlad again filed a Petition for registration with the
COMELEC.
Before the COMELEC, petitioner argued that the LGBT community is a marginalized and underrepresented sector that is particularly disadvantaged because of their sexual orientation and gender identity; that
LGBTs are victims of exclusion, discrimination, and violence; that because of negative societal attitudes, LGBTs are
constrained to hide their sexual orientation; and that Ang Ladlad complied with the 8-point guidelines enunciated by
this Court in Ang Bagong Bayani-OFW Labor Party v. Commission on Elections . Ang Ladlad laid out its national
membership base consisting of individual members and organizational supporters, and outlined its platform of
governance.
On November 11, 2009, after admitting the petitioners evidence, the COMELEC (Second Division)
dismissed the Petition on moral grounds, stating that:
x x x This Petition is dismissible on moral grounds. Petitioner defines the Filipino
Lesbian, Gay, Bisexual and Transgender (LGBT) Community, thus:
x x x a marginalized and under-represented sector that is particularly disadvantaged because of their
sexual orientation and gender identity.
and proceeded to define sexual orientation as that which:
x x x refers to a persons capacity for profound emotional, affectional and sexual attraction to, and intimate and
sexual relations with, individuals of a different gender, of the same gender, or more than one gender.
This definition of the LGBT sector makes it crystal clear that petitioner tolerates immorality which
offends religious beliefs.
The ANG LADLAD apparently advocates sexual immorality as indicated in the Petitions par. 6F:
Consensual partnerships or relationships by gays and lesbians who are already of age. It is further indicated in par.
24 of the Petition which waves for the record: In 2007, Men Having Sex with Men or MSMs in the Philippines
were estimated as 670,000 (Genesis 19 is the history of Sodom and Gomorrah).
Laws are deemed incorporated in every contract, permit, license, relationship, or accreditation. Hence,
pertinent provisions of the Civil Code and the Revised Penal Code are deemed part of the requirement to be
complied with for accreditation.
ANG LADLAD collides with Article 695 of the Civil Code which defines nuisance as Any act,
omission, establishment, business, condition of property, or anything else which x x x (3) shocks, defies; or
disregards decency or morality x x x

170
It also collides with Article 1306 of the Civil Code: The contracting parties may establish such
stipulations, clauses, terms and conditions as they may deem convenient, provided they are not contrary to law,
morals, good customs, public order or public policy. Art 1409 of the Civil Code provides that Contracts whose
cause, object or purpose is contrary to law, morals, good customs, public order or public policy are inexistent and
void from the beginning.
Finally to safeguard the morality of the Filipino community, the Revised Penal Code, as amended,
penalizes Immoral doctrines, obscene publications and exhibitions and indecent shows as follows:
Art. 201. Immoral doctrines, obscene publications and exhibitions, and indecent shows. The penalty
of prision mayor or a fine ranging from six thousand to twelve thousand pesos, or both such imprisonment and fine,
shall be imposed upon:
1. Those who shall publicly expound or proclaim doctrines openly contrary to public morals;
When Ang Ladlad sought reconsideration to the COMELEC EN BANC, three commissioners voted to
overturn the First Assailed Resolution (Commissioners Gregorio Y. Larrazabal, Rene V. Sarmiento, and Armando
Velasco), while three commissioners voted to deny Ang Ladlads Motion for Reconsideration (Commissioners
Nicodemo T. Ferrer, Lucenito N. Tagle, and Elias R. Yusoph). The COMELEC Chairman, breaking the tie and
speaking for the majority in his Separate Opinion, upheld the First Assailed Resolution, stating that:
Ladlad is applying for accreditation as a sectoral party in the party-list system. Even assuming that it has
properly proven its under-representation and marginalization, it cannot be said that Ladlads expressed sexual
orientations per se would benefit the nation as a whole.
Section 2 of the party-list law unequivocally states that the purpose of the party-list system of electing
congressional representatives is to enable Filipino citizens belonging to marginalized and under-represented sectors,
organizations and parties, and who lack well-defined political constituencies but who could contribute to the
formulation and enactment of appropriate legislation that will benefit the nation as a whole, to become members of
the House of Representatives.
If entry into the party-list system would depend only on the ability of an organization to represent its
constituencies, then all representative organizations would have found themselves into the party-list race. But that is
not the intention of the framers of the law. The party-list system is not a tool to advocate tolerance and acceptance of
misunderstood persons or groups of persons. Rather, the party-list system is a tool for the realization of
aspirations of marginalized individuals whose interests are also the nations only that their interests have not
been brought to the attention of the nation because of their under representation. Until the time comes when
Ladlad is able to justify that having mixed sexual orientations and transgender identities is beneficial to the
nation, its application for accreditation under the party-list system will remain just that.
Thus, even if societys understanding, tolerance, and acceptance of LGBTs is elevated, there can be no
denying that Ladlad constituencies are still males and females, and they will remain either male or female
protected by the same Bill of Rights that applies to all citizens alike.
The COMELEC likewise used the Holy Bible and the Koran in denying Ladlads application.
On January 4, 2010, Ang Ladlad filed this Petition, praying that the Court annul the Assailed Resolutions
and direct the COMELEC to grant Ang Ladlads application for accreditation. Ang Ladlad also sought the issuance
ex parte of a preliminary mandatory injunction against the COMELEC, which had previously announced that it
would begin printing the final ballots for the May 2010 elections by January 25, 2010.
On January 6, 2010, the Office of the Solicitor General (OSG was ordered to file its Comment on behalf
of COMELEC not later than 12:00 noon of January 11, 2010. Instead of filing a Comment, however, the OSG filed
a Motion for Extension, requesting that it be given until January 16, 2010 to Comment. Somewhat surprisingly, the
OSG later filed a Comment in support of petitioners application. Thus, in order to give COMELEC the

171
opportunity to fully ventilate its position, we required it to file its own comment. The COMELEC, through its Law
Department, filed its Comment on February 2, 2010.
In the meantime, due to the urgency of the petition, a temporary restraining order was issued on January
12, 2010, effective immediately and continuing until further orders from this Court, directing the COMELEC to
cease and desist from implementing the Assailed Resolutions.
Also, on January 13, 2010, the Commission on Human Rights (CHR) filed a Motion to Intervene or to
Appear as Amicus Curiae, attaching thereto its Comment-in-Intervention. The CHR opined that the denial of Ang
Ladlads petition on moral grounds violated the standards and principles of the Constitution, the Universal
Declaration of Human Rights (UDHR), and the International Covenant on Civil and Political Rights (ICCPR). On
January 19, 2010, we granted the CHRs motion to intervene.
HELD:
We grant the petition.
Compliance with the Requirements of the Constitution and Republic Act No. 7941
The COMELEC denied Ang Ladlads application for registration on the ground that the LGBT sector is
neither enumerated in the Constitution and RA 7941, nor is it associated with or related to any of the sectors in the
enumeration.
Respondent mistakenly opines that our ruling in Ang Bagong Bayani stands for the proposition that only
those sectors specifically enumerated in the law or related to said sectors (labor, peasant, fisherfolk, urban poor,
indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas workers, and
professionals) may be registered under the party-list system. As we explicitly ruled in Ang Bagong Bayani-OFW
Labor Party v. Commission on Elections, the enumeration of marginalized and under-represented sectors is
not exclusive. The crucial element is not whether a sector is specifically enumerated, but whether a particular
organization complies with the requirements of the Constitution and RA 7941.

A cursory perusal of Ang Ladlads initial petition shows that it never claimed to exist in each province of
the Philippines. Rather, petitioner alleged that the LGBT community in the Philippines was estimated to constitute at
least 670,000 persons; that it had 16,100 affiliates and members around the country, and 4,044 members in its
electronic discussion group. Ang Ladlad also represented itself to be a national LGBT umbrella organization with
affiliates around the Philippines composed of the following LGBT networks:

Abra Gay Association


Aklan Butterfly Brigade (ABB) Aklan
Albay Gay Association
Arts Center of Cabanatuan City Nueva Ecija
Boys Legion Metro Manila
Cagayan de Oro People Like Us (CDO PLUS)
Cant Live in the Closet, Inc. (CLIC) Metro Manila
Cebu Pride Cebu City
Circle of Friends
Dipolog Gay Association Zamboanga del Norte
Gay, Bisexual, & Transgender Youth Association (GABAY)
Gay and Lesbian Activists Network for Gender Equality (GALANG) Metro Manila
Gay Mens Support Group (GMSG) Metro Manila
Gay United for Peace and Solidarity (GUPS) Lanao del Norte
Iloilo City Gay Association Iloilo City

172

Kabulig Writers Group Camarines Sur


Lesbian Advocates Philippines, Inc. (LEAP)
LUMINA Baguio City
Marikina Gay Association Metro Manila
Metropolitan Community Church (MCC) Metro Manila
Naga City Gay Association Naga City
ONE BACARDI
Order of St. Aelred (OSAe) Metro Manila
PUP LAKAN
RADAR PRIDEWEAR
Rainbow Rights Project (R-Rights), Inc. Metro Manila
San Jose del Monte Gay Association Bulacan
Sining Kayumanggi Royal Family Rizal
Society of Transexual Women of the Philippines (STRAP) Metro Manila
Soul Jive Antipolo, Rizal
The Link Davao City
Tayabas Gay Association Quezon
Womens Bisexual Network Metro Manila
Zamboanga Gay Association Zamboanga City
Against this backdrop, we find that Ang Ladlad has sufficiently demonstrated its compliance with the legal
requirements for accreditation. Indeed, aside from COMELECs moral objection and the belated allegation of nonexistence, nowhere in the records has the respondent ever found/ruled that Ang Ladlad is not qualified to register as
a party-list organization under any of the requisites under RA 7941 or the guidelines in Ang Bagong Bayani. The
difference, COMELEC claims, lies in Ang Ladlads morality, or lack thereof.
Our Constitution provides in Article III, Section 5 that [n]o law shall be made respecting an
establishment of religion, or prohibiting the free exercise thereof. At bottom, what our non-establishment
clause calls for is government neutrality in religious matters. Clearly, governmental reliance on religious
justification is inconsistent with this policy of neutrality. We thus find that it was grave violation of the nonestablishment clause for the COMELEC to utilize the Bible and the Koran to justify the exclusion of Ang Ladlad.
Rather than relying on religious belief, the legitimacy of the Assailed Resolutions should depend, instead,
on whether the COMELEC is able to advance some justification for its rulings beyond mere conformity to religious
doctrine. Otherwise stated, government must act for secular purposes and in ways that have primarily secular
effects. As we held in Estrada v. Escritor:
x x x The morality referred to in the law is public and necessarily secular, not religious as the dissent of
Mr. Justice Carpio holds. "Religious teachings as expressed in public debate may influence the civil public order but
public moral disputes may be resolved only on grounds articulable in secular terms." Otherwise, if government
relies upon religious beliefs in formulating public policies and morals, the resulting policies and morals would
require conformity to what some might regard as religious programs or agenda. The non-believers would therefore
be compelled to conform to a standard of conduct buttressed by a religious belief, i.e., to a "compelled religion,"
anathema to religious freedom. Likewise, if government based its actions upon religious beliefs, it would tacitly
approve or endorse that belief and thereby also tacitly disapprove contrary religious or non-religious views that
would not support the policy. As a result, government will not provide full religious freedom for all its citizens, or
even make it appear that those whose beliefs are disapproved are second-class citizens.
We are not blind to the fact that, through the years, homosexual conduct, and perhaps homosexuals
themselves, have borne the brunt of societal disapproval. It is not difficult to imagine the reasons behind this
censure religious beliefs, convictions about the preservation of marriage, family, and procreation, even dislike or
distrust of homosexuals themselves and their perceived lifestyle. Nonetheless, we recall that the Philippines has not
seen fit to criminalize homosexual conduct. Evidently, therefore, these generally accepted public morals have not
been convincingly transplanted into the realm of law.

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The Assailed Resolutions have not identified any specific overt immoral act performed by Ang Ladlad.
Even the OSG agrees that there should have been a finding by the COMELEC that the groups members have
committed or are committing immoral acts. The OSG argues:
x x x A person may be sexually attracted to a person of the same gender, of a different gender, or more
than one gender, but mere attraction does not translate to immoral acts. There is a great divide between thought and
action. Reduction ad absurdum. If immoral thoughts could be penalized, COMELEC would have its hands full of
disqualification cases against both the straights and the gays. Certainly this is not the intendment of the law.
Respondent has failed to explain what societal ills are sought to be prevented, or why special protection is
required for the youth. Neither has the COMELEC condescended to justify its position that petitioners admission
into the party-list system would be so harmful as to irreparably damage the moral fabric of society. We, of course,
do not suggest that the state is wholly without authority to regulate matters concerning morality, sexuality, and
sexual relations, and we recognize that the government will and should continue to restrict behavior considered
detrimental to society. Nonetheless, we cannot countenance advocates who, undoubtedly with the loftiest of
intentions, situate morality on one end of an argument or another, without bothering to go through the rigors of legal
reasoning and explanation. In this, the notion of morality is robbed of all value. Clearly then, the bare invocation of
morality will not remove an issue from our scrutiny.
We also find the COMELECs reference to purported violations of our penal and civil laws flimsy, at best;
disingenuous, at worst. Article 694 of the Civil Code defines a nuisance as any act, omission, establishment,
condition of property, or anything else which shocks, defies, or disregards decency or morality, the remedies for
which are a prosecution under the Revised Penal Code or any local ordinance, a civil action, or abatement without
judicial proceedings. A violation of Article 201 of the Revised Penal Code, on the other hand, requires proof
beyond reasonable doubt to support a criminal conviction. It hardly needs to be emphasized that mere allegation of
violation of laws is not proof, and a mere blanket invocation of public morals cannot replace the institution of civil
or criminal proceedings and a judicial determination of liability or culpability.
As such, we hold that moral disapproval, without more, is not a sufficient governmental interest to justify
exclusion of homosexuals from participation in the party-list system. The denial of Ang Ladlads registration on
purely moral grounds amounts more to a statement of dislike and disapproval of homosexuals, rather than a tool to
further any substantial public interest. Respondents blanket justifications give rise to the inevitable conclusion that
the COMELEC targets homosexuals themselves as a class, not because of any particular morally reprehensible act.
It is this selective targeting that implicates our equal protection clause.
Equal Protection
Despite the absolutism of Article III, Section 1 of our Constitution, which provides nor shall any person
be denied equal protection of the laws, courts have never interpreted the provision as an absolute prohibition on
classification. Equality, said Aristotle, consists in the same treatment of similar persons. The equal protection
clause guarantees that no person or class of persons shall be deprived of the same protection of laws which is
enjoyed by other persons or other classes in the same place and in like circumstances.
Recent jurisprudence has affirmed that if a law neither burdens a fundamental right nor targets a
suspect class, we will uphold the classification as long as it bears a rational relationship to some
legitimate government end. In Central Bank Employees Association, Inc. v. Banko Sentral ng Pilipinas,
we declared that [i]n our jurisdiction, the standard of analysis of equal protection challenges x x x have
followed the rational basis test, coupled with a deferential attitude to legislative classifications and a
reluctance to invalidate a law unless there is a showing of a clear and unequivocal breach of the
Constitution.
The COMELEC posits that the majority of the Philippine population considers homosexual conduct as
immoral and unacceptable, and this constitutes sufficient reason to disqualify the petitioner. Unfortunately for the
respondent, the Philippine electorate has expressed no such belief. No law exists to criminalize homosexual
behavior or expressions or parties about homosexual behavior. Indeed, even if we were to assume that public

174
opinion is as the COMELEC describes it, the asserted state interest here that is, moral disapproval of an unpopular
minority is not a legitimate state interest that is sufficient to satisfy rational basis review under the equal protection
clause. The COMELECs differentiation, and its unsubstantiated claim that Ang Ladlad cannot contribute to the
formulation of legislation that would benefit the nation, furthers no legitimate state interest other than disapproval of
or dislike for a disfavored group.
It bears stressing that our finding that COMELECs act of differentiating LGBTs from heterosexuals
insofar as the party-list system is concerned does not imply that any other law distinguishing between heterosexuals
and homosexuals under different circumstances would similarly fail. We disagree with the OSGs position that
homosexuals are a class in themselves for the purposes of the equal protection clause. We are not prepared to single
out homosexuals as a separate class meriting special or differentiated treatment. We have not received sufficient
evidence to this effect, and it is simply unnecessary to make such a ruling today. Petitioner itself has merely
demanded that it be recognized under the same basis as all other groups similarly situated, and that the COMELEC
made an unwarranted and impermissible classification not justified by the circumstances of the case.
Freedom of Expression and Association
Freedom of expression constitutes one of the essential foundations of a democratic society, and this
freedom applies not only to those that are favorably received but also to those that offend, shock, or disturb. Any
restriction imposed in this sphere must be proportionate to the legitimate aim pursued. Absent any compelling state
interest, it is not for the COMELEC or this Court to impose its views on the populace. Otherwise stated, the
COMELEC is certainly not free to interfere with speech for no better reason than promoting an approved message
or discouraging a disfavored one.
This position gains even more force if one considers that homosexual conduct is not illegal in this country.
It follows that both expressions concerning ones homosexuality and the activity of forming a political association
that supports LGBT individuals are protected as well.
Other jurisdictions have gone so far as to categorically rule that even overwhelming public perception that
homosexual conduct violates public morality does not justify criminalizing same-sex conduct. European and
United Nations judicial decisions have ruled in favor of gay rights claimants on both privacy and equality grounds,
citing general privacy and equal protection provisions in foreign and international texts. To the extent that there is
much to learn from other jurisdictions that have reflected on the issues we face here, such jurisprudence is certainly
illuminating. These foreign authorities, while not formally binding on Philippine courts, may nevertheless have
persuasive influence on the Courts analysis.
In the area of freedom of expression, for instance, United States courts have ruled that existing
free speech doctrines protect gay and lesbian rights to expressive conduct. In order to justify the
prohibition of a particular expression of opinion, public institutions must show that their actions were
caused by something more than a mere desire to avoid the discomfort and unpleasantness that always
accompany an unpopular viewpoint.
With respect to freedom of association for the advancement of ideas and beliefs, in Europe, with its vibrant
human rights tradition, the European Court of Human Rights (ECHR) has repeatedly stated that a political party
may campaign for a change in the law or the constitutional structures of a state if it uses legal and democratic means
and the changes it proposes are consistent with democratic principles. The ECHR has emphasized that political
ideas that challenge the existing order and whose realization is advocated by peaceful means must be afforded a
proper opportunity of expression through the exercise of the right of association, even if such ideas may seem
shocking or unacceptable to the authorities or the majority of the population. A political group should not be
hindered solely because it seeks to publicly debate controversial political issues in order to find solutions capable of
satisfying everyone concerned. Only if a political party incites violence or puts forward policies that are
incompatible with democracy does it fall outside the protection of the freedom of association guarantee.
We do not doubt that a number of our citizens may believe that homosexual conduct is distasteful,
offensive, or even defiant. They are entitled to hold and express that view. On the other hand, LGBTs and their
supporters, in all likelihood, believe with equal fervor that relationships between individuals of the same sex are
morally equivalent to heterosexual relationships. They, too, are entitled to hold and express that view. However, as

175
far as this Court is concerned, our democracy precludes using the religious or moral views of one part of the
community to exclude from consideration the values of other members of the community.
Of course, none of this suggests the impending arrival of a golden age for gay rights litigants. It well may
be that this Decision will only serve to highlight the discrepancy between the rigid constitutional analysis of this
Court and the more complex moral sentiments of Filipinos. We do not suggest that public opinion, even at its most
liberal, reflect a clear-cut strong consensus favorable to gay rights claims and we neither attempt nor expect to affect
individual perceptions of homosexuality through this Decision.
WHEREFORE, the Petition is hereby GRANTED.

ROEL EBRALINAG, ET AL VS. THE DIVISION SUPERINTENDENT OF SCHOOLS OF


CEBU, March 1, 1993

Grino--Aquino, J.
Facts:
1. The petitioners are high school and grade schools students enrolled in the different public
schools of the Province of Cebu and who belong to the religious group known as the Jehovah's
Witnesses;
2. That they rrefused to take part in the flag ceremony which includes playing by a band or
singing the Philippine National Anthem, saluting the Philippine Flag and reciting the patriotic
pledge because they considered the flag as an image and they should not worship it except GOD;
3. That because of their refusal to perform the foregoing acts as required by RA 1265 of July 11,
1955 and by Department Order No. 8 dated July 21, 1955 of the DECS making the flag ceremony
compulsory in all educational institutions, they were expelled by the respondent school
authorities.
Hence this petition.
Issue:
-----May the petitioners be expelled for refusing to salute the flag, recite the patriotic
pledge or sing the national anthem in order to follow their religious beliefs?
Held:
The same issue was raised in Gerona vs. Secretary of Education, 106 Phil. 2
(1959) and Balbuna vs. Secretary of Education, 110 Phil. 150 (1960) where the SC held that:
The flag is not an image but a symbol of the Republic of the Philippines, an
emblem of national sovereignty, of national unity and cohesion and of freedom and liberty which
it and the Constitution guarantee and protect. Under a system of complete separation of church
and state in the government, the flag is utterly devoid of any religious significance.
The law, RA 1265 was likewise incorporated in Executive Order No. 297,
September 21, 1988.

176
Our task is extremely difficult for the 30-year old decision of this Court in
GERONA upholding the salute law and approving the expulsion of students who refuse to obey
it, is not lightly to be trifled with.
The idea that one may be compelled to salute the flag, sing the national anthem,
and recite the patriotic pledge, during flag ceremony on pain of being dismissed from one's job or
be expelled in school, IS ALIEN TO THE CONSCIENCE OF THE PRESENT GENERATION
OF FILIPINOS WHO CUT THEIR TEETH ON THE BILL OF RIGHTS WHICH
GUARANTEES THEIR RIGHTS TO FREE SPEECH AND THE FREE EXERCISE OF
RELIGIOUS PROFESSION AND WORSHIP (Section 5, Art. III, 1987 Constitution).
Religious freedom is a fundamental right which is entitled to the highest priority
and the amplest protection among human rights, for it involves the relationship of man and his
Creator (Chief Justice Fernando's separate opinion in German vs. Barangan, 135 SCRA 530).
The right to religious profession has a two-fold aspect, vis., freedom to believe
and freedom to act on one's belief. The first is absolute as long as the belief is confined within the
realm of the thought. The second is subject to regulation where the belief is translated into
external acts that affect the public welfare.
The sole justification for a prior restraint or limitation on the exercise of religious
freedom (according the Former Chief justice Teehankee in his dissenting opinion in German vs.
Baranagan) is the existence of a grave and present danger of a character both grave and imminent,
of a serious evil to public safety, public morals, public health or any other legitimate public
interest, that the State has the right and duty to presvent. Absent such a threat to public safety, the
expulsion of the petitioners from the schools is not justified since they are not doing anything that
could warrant their expulsion since during flag ceremonies, they just quietly stand at attention to
show their respect for the rights of others who choose to participate in the solemn proceedings.
In Victoriano vs. Elizalde Rope Workers Union, 59 SCRA 54, we upheld the
exemption of the members of the Iglesia ni Kristo from the coverage of the closed-shop
agreement between the labor union and the company because it would violate the teaching of
their church not to join any labor group.
We hold that a similar exemption may be accorded to the Jehovah's Witnesses
with regard to the observance of the flag ceremony out of respect to their religious beliefs,
however "bizarre" those beliefs may seem to others
CHAPTER VII - THE CONSTITUTIONAL
RIGHT TO TRAVEL
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.
NOTE: THE APPLICABLE PROVISION OF THE HUMAN SECURITY ACT ON THE RIGHT
TO TRAVEL
Section 26 provides that persons who have been charged with terrorism or
conspiracy to commit terrorism---even if they have been granted bail because evidence of guilt is
not strongcan be:

177

Detained under house arrest;


Restricted from traveling; and/or
Prohibited from using any cellular phones, computers, or other means of communications with
people outside their residence.
Upon application of the prosecutor, the suspects right to travel shall be limited to the
municipality or city where he resides or where the case is pending, in the interest of national
security and public safety. Travel outside of said municipality or city, without the authorization of
the court, shall be deemed a violation of the terms and conditions of the bail which shall then be
forfeited as provided in the Rules of Court.
These restrictions shall be terminated upon acquittal of the accused; or the
dismissal of the case filed against him; or earlier upon the discretion of the court or upon motion
of the prosecutor.
1. The constitutional as well as human right to travel,

129 SCRA

2. Read:
FERDINAND MARCOS, ET AL. VS. HON. RAUL MANGLAPUS, ET AL., G.R. NO.
88211, September 15, 1989 and the Resolution of the Motion for Reconsideration dated
October 27, 1989
right to travel; liberty of abode
and "right to return"
En banc
Cortes, J.
This is a petition for mandamus and prohibition asking the Supreme Court to Order the
respondents to issue travel documents to the petitioners and to enjoin the implementation of the
President's decision to bar their return to the Philippines.
The case for the petitioners is founded on the assertion that their right to return to the
Philippines is guaranteed by the following provisions of the Constitution:
Section 1. No person shall be deprived of life liberty or property without due process of law,
nor shall any person be denied equal protection of the laws.
Section 6. The liberty of abode and of changing the same within the limits prescribed by law
shall not 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 has no power to impair the liberty of abode of the
Marcoses because only the Courts may do so "within the limits prescribed by law". Nor may the
President impair the right to travel because no law has authorized her to do so.
Also, the petitioners claim that under international law, particularly the Universal Declaration
of Humjan Rights guaranteed the right of the Marcoses to return to the Philippines. Thus:
Art. 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.

178
Likewise, under the International Covenant on Civil and Political Rights, which had been
ratified by the Philippines, provides:
Art. 12
4) No one shall be arbitrarily deprived of the right to enter his own country.
The respondents argue that the issue in this case involves a political question which is
therefore beyond the jurisdiction of the Court. Furthermore, they argue that the right of the state
to national security prevails over individual rights, citing Section 4, Art. II of the 1987 Philippine
Constitution.
Issue:
Whether or not, in the exercise of the powers granted in the Constitution, the President may
prohibit the Marcoses from returning to the Philippines.
The sub-issues, which could help in the determination of the main issue, are:
1. Does the President have the power to bar the Marcoses to return to the Philippines?
a. Is this a political question?
2. Assuming that the President has the power to bar former Pres. Marcos and his family from
returning to the Philippines, in the interest of national security, public safety or public health, has
the President made a finding that the return of the petitioners to the Philippines is a clear and
present danger to national security, public welfare or public health. And if she has made that
finding, have the requirements of due process been complied with in making such finding? Has
there been prior notice to the petitioners?
Held:
It must be emphasized that the individual right involved in this case is not the right to travel
from the Philippines to other countries or within the Philippines. These are what the right to travel
connote. Essentially, the right to return to one's country, a totally distinct right under international
law, independent from, though related to the right to travel. Thus, even the Universal declaration
of Human Rights and the International Covenant on Civil and Political Rights treat the right to
freedom of movement and abode within the territory of the state, the right to leave a country and
the right to enter one's country as separate and distinct rights.
THE RIGHT TO RETURN TO ONE'S COUNTRY IS NOT AMONG THE RIGHTS
SPECIFICALLY GUARANTEED BY THE BILL OF RIGHTS, WHICH TREATS ONLY
OF THE LIBERTY OF ABODE AND THE RIGHT TO TRAVEL, BUT IT IS OUR WELLCONSIDERED VIEW THAT THE RIGHT TO RETURN MAY BE CONSIDERED AS A
GENERALLY ACCEPTED PRINCIPLE OF INTERNATIONAL LAW, UNDER OUR
CONSTITUTION, IS PART OF THE LAW OF THE LAND.
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.
The court cannot close its eyes to present realities and pretend that the country is not besieged
by the insurgency, separatist movement in Mindanao, rightist conspiracies to grab power, etc.
With these before her, the President cannot be said to have acted arbitrarily, capriciously and
whimsically.

179
Lastly, the issue involved in the case at bar is not political in nature since under Section 1, Art.
VIII of the Constitution, judicial power now includes the duty to "determine whether or not there
has been a grave abuse of discretion amounting to lack of jurisdiction on the part of any branch or
instrumentality of the government."
NOTE:
The main opinion was concurred in by 7 justices (CJ Fernan, Narvasa, Melencio-Herrera,
Gancayco, Grino-Aquino, Medialdea and Regalado) or a total of 8 justices in voting in favor of
DISMISSING the petition. Seven justices filed separate dissenting opinions (Gutierrez, Jr., Cruz,
Paras, Feliciano, Padilla, Bidin and Sarmiento).
***********************
Gutierrez, Jr., J., dissenting.
With all due respect for the majority in the Court that the main issue in this case is not one of
power but one on RIGHTS. If he comes home, 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? x x x The government has more than ample powers under existing laws 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
SAY SO. THERE IS NO LAW PRESCRIBING EXILE IN FOREIGN LAND AS THE
PENALTY FOR HURTING THE NATION.
. 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 the hearing.
2. Silverio vs. CA, April 8, 1991
Read also:
1. Caunca vs. Salazar, 82 Phil. 851
2. Kwong vs. PCGG, December 7,l987
Manotoc vs. CA, 142 SCRA 149
1. Petitioner Ricardo Manotoc, Jr. has 6 criminal cases for estafa pending against him. In said
cases he was admitted to bail with the FGU Insurance Corporation as surety.
He is also involved in a case pending before the Securities and Exchange Commission.
2. The SEC requested the Commissioner on Immigration not to clear petitioner for departure
pending disposition of the case involving him. The same was granted by the Commissioner.
3. Petitioner subsequently filed before the trial courts a motion entitled "motion for permission
to leave the country" stating as ground therefor his desire to go to the United States, "relative to
his business transactions and opportunities".
4. The motion was denied by the lower courts and the matter was elevated to the Court of
Appeals which also denied the same. Petitioner brings the matter to the S.C. claiming his

180
constitutional right to travel and also contending that having been admitted to bail as a matter of
right, neither the courts which granted him bail nor the SEC would have jurisdiction over his
liberty.
HELD:
Petition denied.
a. A court has the power to prohibit a person admitted to bail from leaving the Philippines. This
is a necessary consequence of the nature and function of a bail bond. The condition imposed upon
petitioner to make himself available at all times whenever the court requires his presence operates
as a valid restriction on his right to travel.
b. "x x x the result of the obligation assumed by appellee to hold the accused amenable at all
times to the orders and processes of the lower court, was to prohibit the accused from leaving the
jurisdiction of the Philippines, because, otherwise, said orders and processes will be nugatory, and
inasmuch as the jurisdiction of the courts from which they issued does not extend beyond that of
the Philippines they would have no binding force outside of said jurisdiction."(People vs. Uy
Tuising, 61 Phil. 404 (l935)
c. To allow the petitioner to leave the Philippines without sufficient reason would place him
beyond the reach of the courts.
d. Petitioner cites the Court of Appeals case of People vs. Shepherd (C.A.-G.R. No. 23505-R,
Feb. 13, 1980) as authority for his claim that he could travel. The S.C. held however that said
case is not squarely on all fours with the case at bar. Unlike the Shepherd case, petitioner has
failed to satisfy the courts of the urgency of his travel, the duration thereof, as well as the consent
of his surety to the proposed travel.
e. It may thus be inferred that the fact that a criminal case is pending against an accused does not
automatically bar him from travelling abroad. He must however convince the courts of the
urgency of his travel, the duration thereof, and that his sureties are willing to undertake the
responsibility of allowing him to travel.
4. Villavicencio vs. Lukban, 39 Phil. 778
5. Roan vs. Gonzales, supra.
6. Salonga vs. Hermoso, 97 SCRA 121
7. Read also the Ferdinand Marcos Cases of August

& October, 1989

CHAPTER VIII - THE CONSTITUTIONAL


RIGHT TO INFORMATION
Section 7. The right of the people to information on matters
of public concern shall be recognized. Access to official
recordsshall be afforded the citizen subject to such
limitations as may be provided by law.
1. Read:
Right to Privacy; right to information on matters of public concern;
CAMILO L. SABIO vs. GORDON, G.R. No. 174340, October 17, 2006, 504 SCRA 704
Sandoval-Gutierrez, J.
The Facts:

181
On February 20, 2006, Senator Miriam Defensor Santiago introduced Philippine Senate
Resolution No. 455 (Senate Res. No. 455), 180[4] directing an inquiry in aid of legislation on the
anomalous losses incurred by the Philippines Overseas Telecommunications Corporation
(POTC),
Philippine Communications Satellite Corporation (PHILCOMSAT), and
PHILCOMSAT Holdings Corporation (PHC) due to the alleged improprieties in their operations
by their respective Board of Directors. The pertinent portions of the Resolution read:

WHEREAS, in the last quarter of 2005, the representation and entertainment expense of
the PHC skyrocketed to P4.3 million, as compared to the previous years mere P106 thousand;
WHEREAS, some board members established wholly owned PHC subsidiary called
Telecommunications Center, Inc. (TCI), where PHC funds are allegedly siphoned; in 18 months,
over P73 million had been allegedly advanced to TCI without any accountability report given to
PHC and PHILCOMSAT;
WHEREAS, the Philippine Star, in its 12 February 2002 issue reported that the executive
committee of Philcomsat has precipitately released P265 million and granted P125 million loan to
a relative of an executive committee member; to date there have been no payments given,
subjecting the company to an estimated interest income loss of P11.25 million in 2004;
WHEREFORE, be it resolved that the proper Senate Committee shall conduct an
inquiry in aid of legislation, on the anomalous losses incurred by the Philippine Overseas
Telecommunications Corporation (POTC), Philippine Communications Satellite
Corporation (PHILCOMSAT), and Philcomsat Holdings Corporations (PHC) due to the
alleged improprieties in the operations by their respective board of directors.
On May 8, 2006, Chief of Staff Rio C. Inocencio, under the authority of Senator Richard
J. Gordon, wrote Chairman Camilo L. Sabio of the PCGG, one of the herein petitioners, inviting
him to be one of the resource persons in the public meeting jointly conducted by the Committee
on Government Corporations and Public Enterprises and Committee on Public Services. The
purpose of the public meeting was to deliberate on Senate Res. No. 455. 181[6]

On May 9, 2006, Chairman Sabio declined the invitation because of prior


commitment.182[7] At the same time, he invoked Section 4(b) of
E.O. No. 1 earlier quoted.
On September 12, 2006, at around 10:45 a.m., Major General Balajadia arrested Chairman Sabio
in his office at IRC Building, No. 82 EDSA, Mandaluyong City and brought him to the Senate
premises where he was detained. Hence, Chairman Sabio filed with the Supreme Court a petition
for habeas corpus against the Senate Committee on Government Corporations and Public
Enterprises and Committee on Public Services, their Chairmen, Senators Richard Gordon and
Joker P. Arroyo and Members. The case was docketed as G.R. No. 174340.

I S S U E S:

Is the refusal of the petitioners to testify in Congress by virtue of EO No. 1, Section 4


[b] violates the constitutional provision on information on matters of public concern?

180[4]
181[6]
182[7]

Annex E of the Petition in G.R. No. 174318.


Annex F of the Petition in G.R. No. 174318.
Annex G of the Petition in G.R. No. 174318.

182
H E L D:

Yes.

Section 4(b) of E.O. No.1 which was invoked by the petitioners in support of their
refusal to testify in the Senate limits the power of legislative inquiry by exempting all PCGG
members or staff from testifying in any judicial, legislative or administrative proceeding, thus:

No member or staff of the Commission shall be required to testify or produce


evidence in any judicial, legislative or administrative proceeding concerning matters within
its official cognizance.

Such provision of EO No. 1 is unconstitutional because it violates the constitutional


provision ensuring the peoples access to information on matters of public

BANTAY REPUBLIC ACT VS. COMELEC, MAY 4, 2007, 523 SCRA 1


The petitioner requested the COMELEC to publish the individual nominees
of all the party-list groups in order that they will be guided on what party-list group shall be
supported by them. The COMELEC held that under the Party-list Act, such list of
nominees is confidential and should not be published.
Held:
The COMELEC should publish the list of nominees of all the party-list
groups. This is in accordance with the right to information on matters of public concern
which shall be accorded to every citizen.
VALMONTE VS. BELMONTE, GR NO. 74930, FEBRUARY 13, 1989 in relation to the
Right to Privacy
Cortes, J.
Facts:
1. On June 4, 1986, petitioner Valmonte wrote the respondent asking the latter to furnish him
copies of former members of the Batasang Pambansa who were able to secure a "clean loan" from
the GSIS prior to the February 7, 1986 elections;
2. On June 17, 1986, respondent through counsel refused to give the petitioner a list of said
lawmakers who obtained "clean loans" from the GSIS on the ground that there is a confidential
relationship between the GSIS and its borrowers and it would be proper for them to preserve the
same;
3. On July 19, 1986, the petitioners filed this instant petition.
Issues:

183
1. Whether or not the case should be dismissed for failure to exhaust administrative remedies?
2. Whether or not the petitioners are entitled to the documents sought in accordance with their
constitutional right to information?
Held:
1. It is well-settled in our jurisdiction that before a party can be allowed to resort to the courts, he
is expected to have exhausted all means of administrative redress available under the law.
In the case at bar, the decision of the General Manager of the GSIS is appealable/reviewable by
the GSIS Board of Trustees. Petitioners did not ask the Board of Trustees to review the decision
of the respondent.
However, the rule on exhaustion of administrative remedies is not applicable when only
questions of law is involved. (Pascual vs. Provincial Board, 106 Phil. 466; Aguilar vs. Valencia,
40 SCRA 210; Malabanan vs. Ramento, 129 SCRA 359.
This is not the first time that the court is confronted with a case involving the right to
information. In Tanada vs. Tuvera, 136 SCRA 27, we upheld the citizen's right to information as
well as in Legaspi vs. CSC, 150 SCRA 530 and ordered the government officers involved to act
as prayed for by the petitioners. The pertinent provision of the Constitution is Section 7, Art. III
which provides:
The right of the people to information on matters of public concern shall be recognized. Access to
official records, and to documents, and papers pertaining to official acts, transactions x x x shall
be afforded the citizen, subject to such limitations as may be provided for by law.
The postulate of public office is a public trust as institutionalized in the Constitution (Sec. 1,
Art. XI) to protect the people from abuse of governmental power, would certainly be empty
words if access to information of public concern is denied except under limitations prescribed by
law.
Petitioners are members of the media. As such, they have both the right to gather and the
obligation to check the accuracy of the information they disseminate x x x
The right to information is an essential premise of a meaningful right to speech and
expression. But this is not to say that the right to information is merely an adjunct of and
therefore restricted in application by the exercise of the freedom of speech and of the press. Far
from it. The right to information goes hand in hand with the constitutional policies of "full public
disclosure" and "honesty in the public service".
Yet, like all the constitutional guarantees, the right to information is not absolute. It is subject
to limitations provided for by law and the people's right to information is limited to "matters of
public concern". Similarly, the State's policy of full disclosure is limited to "transactions
involving public interest" and subject to "reasonable conditions prescribed by law."
The information sought to be obtained by the petitioners affect public interest since the GSIS
is the trustee of contributions from the government and its employees. The funds of the GSIS
assume a public character and that its obligations are guaranteed by the government.
The petitioners are entitled to access to documents sought subject to reasonable regulations
that the respondent may impose relating to manner and hours of examination, to the end that
damage or loss of the records may be avoided, that undue interference with the duties of the
custodian of the records may be prevented and that the right of other persons entitled to inspect
the records may be insured [Legaspi vs. CSC, supra; Subido vs. Ozaeta, 80 Phil. 383]

184
he petitioners, however, are not entitled to be furnished copies of list of alleged members of
the Batasang Pambansa who were able to secure clean loans through the intercessions of Pres.
Marcos and the First Lady. This is so because access to public records does not include the right
to compel custodians of official records to prepare lists, abstracts, summaries and the like in their
desire to acquire information on matters of public concern.
The respondent is therefore ordered to allow petitioners access to documents and records
evidencing loans granted to members of the Batasang Pambansa, as petitioners may specify,
subject to reasonable rules and regulations as the GSIS may deem necessary.
SENATE OF THE PHILIPPINES, represented by SENATE PRESIDENT FRANKLIN
DRILON, ET AL., VS. EXEC. SEC. EDUARDO ERMITA, ET AL., G.R. No. 16977, April
20, 2006

CARPIO MORALES, J.:


The Facts:
In the exercise of its legislative power, the Senate of the Philippines, through its various
Senate Committees, conducts inquiries or investigations in aid of legislation which call for, inter
alia, the attendance of officials and employees of the executive department, bureaus, and offices
including those employed in Government Owned and Controlled Corporations, the Armed Forces
of the Philippines (AFP), and the Philippine National Police (PNP).
On September 21 to 23, 2005, the Committee of the Senate as a whole issued invitations
to various officials of the Executive Department for them to appear on September 29, 2005 as
resource speakers in a public hearing on the railway project of the North Luzon Railways
Corporation with the China National Machinery and Equipment Group (hereinafter North Rail
Project). The public hearing was sparked by a privilege speech of Senator Juan Ponce Enrile
urging the Senate to investigate the alleged overpricing and other unlawful provisions of the
contract covering the North Rail Project.
On September 28, 2005, the President of the Philippines issued E.O. 464, ENSURING
OBSERVANCE OF THE PRINCIPLE OF SEPARATION OF POWERS, ADHERENCE TO
THE RULE ON EXECUTIVE PRIVILEGE AND RESPECT FOR THE RIGHTS OF PUBLIC
OFFICIALS APPEARING IN LEGISLATIVE INQUIRIES IN AID OF LEGISLATION UNDER
THE CONSTITUTION, AND FOR OTHER PURPOSES, which, pursuant to Section 6 thereof,
took effect immediately. The salient provisions of the Order are as follows:
SECTION 1. Appearance by Heads of Departments Before Congress. In accordance with
Article VI, Section 22 of the Constitution and to implement the Constitutional provisions on the
separation of powers between co-equal branches of the government, all heads of departments of
the Executive Branch of the government shall secure the consent of the President prior to
appearing before either House of Congress.
When the security of the State or the public interest so requires and the President so states in
writing, the appearance shall only be conducted in executive session.
SECTION. 2. Nature, Scope and Coverage of Executive Privilege.
(a) Nature and Scope. - The rule of confidentiality based on executive privilege is fundamental to
the operation of government and rooted in the separation of powers under the Constitution

185
(Almonte vs. Vasquez, G.R. No. 95367, 23 May 1995). Further, Republic Act No. 6713 or the
Code of Conduct and Ethical Standards for Public Officials and Employees provides that Public
Officials and Employees shall not use or divulge confidential or classified information officially
known to them by reason of their office and not made available to the public to prejudice the
public interest.
(b) Who are covered. The following are covered by this executive order:
1.
2.
3.
4.
5.

Senior officials of executive departments who in the judgment of the department


heads are covered by the executive privilege;
Generals and flag officers of the Armed Forces of the Philippines and such other officers
who in the judgment of the Chief of Staff are covered by the executive privilege;
Philippine National Police (PNP) officers with rank of chief superintendent or higher and
such other officers who in the judgment of the Chief of the PNP are covered by the executive
privilege;
Senior national security officials who in the judgment of the National Security Adviser
are covered by the executive privilege; and
Such other officers as may be determined by the President.
I S S U E S:
1. Whether E.O. 464 violates the right of the people to information on matters of public
concern; and
H E L D:
E.O 464 likewise violates the constitutional provision on the right to information on
matters of public concern. There are clear distinctions between the right of Congress to
information which underlies the power of inquiry and the right of the people to information on
matters of public concern. For one, the demand of a citizen for the production of documents
pursuant to his right to information does not have the same obligatory force as a subpoena duces
tecum issued by Congress. Neither does the right to information grant a citizen the power to
exact testimony from government officials. These powers belong only to Congress and not to an
individual citizen.
To the extent that investigations in aid of legislation are generally conducted in
public, however, any executive issuance tending to unduly limit disclosures of information in
such investigations necessarily deprives the people of information which, being presumed to be in
aid of legislation, is presumed to be a matter of public concern. The citizens are thereby denied
access to information which they can use in formulating their own opinions on the matter before
Congress opinions which they can then communicate to their representatives and other
government officials through the various legal means allowed by their freedom of expression.
Thus holds Valmonte v. Belmonte:
It is in the interest of the State that the channels for free political discussion be
maintained to the end that the government may perceive and be responsive to the peoples
will. Yet, this open dialogue can be effective only to the extent that the citizenry is informed
and thus able to formulate its will intelligently. Only when the participants in the discussion
are aware of the issues and have access to information relating thereto can such bear fruit. 183
(Emphasis and underscoring supplied)

183

G.R. No. 74930, February 13, 1989, 170 SCRA 256.

186
The impairment of the right of the people to information as a consequence of E.O. 464 is,
therefore, in the sense explained above, just as direct as its violation of the legislatures power of
inquiry.
1-a. Legaspi vs. CSC, 150 SCRA 530
1-b. Brilliantes vs. Chang, Aug. 14, 1990
1-c. Canlas vs. Vazquez, July 3, 1990
1-d. Aquino-Sarmiento vs. Manuel Morato, November 13, 1991
2. Tanada vs. Tuvera, 146 SCRA 44
3. Baldoza vs. Dimaano, 71 SCRA 14
4. Lantaco vs. Lllamas, 108 SCRA 502
5. Subido vs. Ozaeta, 80 Phil. 383
CHAPTER IX - THE CONSTITUTIONAL
RIGHT TO FORM AND JOIN ASSOCIATIONS
Section 8. The right of the people, including those employed
in the public and private sectors, to form unions,
associations, societies for purposes not contrary to law shall
not be abridged.
1. Freedom of Association, 100 SCRA 100
2. The fundamental right of self-organization,108 SCRA 390
3. The right of self-organization of managerial

employees,47 SCRA 434

4. Read:
1. In re: ATTY. EDILLON, 84 SCRA 554
2. Tarnate vs. Noriel, 100 SCRA 93
3. Samahan ng Manggagawa vs. Noriel, 108 SCRA 381
4. Villar vs. Inciong, April 20,l983
5. P. vs. Ferrer, 48 SCRA 382
6. P. vs. Ferrer, 56 SCRA 793 (Read the dissenting
both cases)

opinion of Justice FERNANDO in

CHAPTER X - THE POWER


OF EMINENT DOMAIN
Section 9. Private property shall not be taken for public use
without just compensation
1. The inherent power of eminent domain,93 SCRA 663
2. Who may exercise it? How about a barangay? Yes with the Presidents approval.
Read:
1. Barangay Matictic vs. Elbinias, 148 SCRA 83
2. Procedure for the exercise of said power; Extent of payment to be made before writ of possession
shall be issued in favor of the government.

187
Value of property expropriated for national government projects; Writ of possession when it
shall be issued by the court; when Rule 67 of the Rules of Court and when RA 8974 shall apply;
full payment of just compensation before government takes over.
REPUBLIC OF THE PHILIPPINES VS. JUDGE GINGOYON, 478 SCRA 474
Tinga, J.
Facts:
In 2003, the Supreme Court held in AGAN VS. PIATCO, 402 SCRA 612 that the
CONCESSION AGREEMENT FOR THE BUILD OPERATE TRANSFER ARRANGEMENT
OF THE NINOY AQUINO INTERNATIONAL AIRPORT PASSENGER TERMINAL II
between the Philippine Government and the Philippine International Air Terminals Co., Inc.
(PIATCO) as well as the amendments thereto is void for being contrary to law and public policy.
On Motion for Reconsideration (420 SCRA 420), the Supreme Court held that:
This Court, however, is not unmindful of the reality that the structures comprising the
NAIA IPT III facility are almost complete and that funds have been spent by PIATCO in their
construction. For the government to take over the said facility, IT HAS TO COMPENSATE
RESPONDENT PIATCO AS BUILDER OF THE SAID STRUCTURES. THE
COMPENSATION MUST BE JUST AND IN ACCORDANCE WITH LAW AND EQUITY
FOR THE GOVERNMENT CAN NOT UNJUSTLY ENRICH ITSELF AT THE EXPENSE
OF PIATCO AND ITS INVESTORS.
On December 21, 2004, the Government filed a complaint for expropriation with the
RTC of Pasay City seeking a writ of possession authorizing to take immediate possession and
control over NAIA 3 facilities and deposited the amount of P3.0B in cash with Land Bank of the
Philippines representing the assessed value of the terminals assessed value for taxation purposes.
On the same day, Judge Gingoyon issued an Order directing the issuance of a writ of
possession to the government to take or enter upon the possession of the NAIA 3 facilities. It
held that it is the ministerial duty of the government to issue writ of possession upon deposit of
the assessed value of the property subject of expropriation.
However, on January 4, 2005, Judge Gingoyon issued another Order supplementing the
December 21, 2004 Order. It pointed out that the earlier orders to the amount to be deposited by
the government was based on Section 2, Rule 67 when what should be applicable is RA 8974 and
therefore ordered that the amount of US$62,343,175.77 be released to PIATCO instead of the
amount in the December 21, 2004 Order.
On January 7, 2005, Judge Gingoyon issued another Order directing the appointment of
three (3) Commissioners to determine just compensation for the NAIA 3 Complex.
Both Orders were questioned by the government as having been issued with grave abuse
of discretion.
ISSUES:
1. What law is applicable in this expropriation case: Rule 67 of the Rules of
or
RA
8974?
2. If RA 8974 will be used, may the court used the provision of Rule 67 on the 3
commissioners to determine just compensation.
Court

HELD:

188
1.
Application of Rule 67 would violate the AGAN Doctrine which provides that for the
government to take over the said NAIA 3 facility, IT HAS TO COMPENSATE RESPONDENT
PIATCO AS BUILDER OF THE SAID STRUCTURES. If Section 2, Rule 67 will be applied,
PIATCO would be enjoined from receiving the just compensation even if the government takes
over the NAIA 3 facility. It is sufficient that the government deposits the amount equal to the
assessed value of the facilities. It would violate the proscription in the AGAN Decision that the
government must pay first the just compensation before taking over the facilities.
So when shall Rule 67 be used in expropriation cases and when shall RA 8974 be used?
In all National government projects or national infrastructure projects, like those
covered by the Build-Operate-Transfer, RA 8974 shall be followed. The rest, Rule 67 shall
apply.
Differences between the two laws on expropriation:
a. Under Rule 67, the government merely deposits the assessed value of the property subject of
expropriation and can have a writ of possession over the same while under RA 8974, the scheme
of immediate payment (100%) shall be followed.
b. Under Rule 67, there can be writ of possession even if the owner of the property has not received
a single centavo while under RA 8974, as in this case, Writ of Possession may not be issued in
favor of the government UNTIL ACTUAL RECEIPT by PIATCO of the preferred value of just
compensation.
Upon issuance of the writ in favor of the government, however, it could already exercise acts
of ownership over the NAIA 3 facilities.
The just compensation to be paid by the government shall be determined within 60 days
from the finality of the decision based on Section 4, RA 8974.
2
Rule 67 on the appointment of three (3) commissioners to determine just compensation
may be used since RA 8974 does not provide for such procedure.
Just Compensation; Amount to be deposited in court before a Writ of Possession may be issued
by the court in favor of the government; When to apply Rule 67 and when to apply RA No. 8974;
Who owns the interest of the initial amount deposited for the purpose of issuing writ of
possession
REPUBLIC OF THE PHILIPPINES VS. HOLY TRINITY REALTY DEVELOPMENT
CORPORATION, G.R. No. 172410, April 14, 2008
THE FACTS:
On 29 December 2000, petitioner Republic of the Philippines, represented by the Toll
Regulatory Board (TRB), filed with the RTC a Consolidated Complaint for Expropriation against
landowners whose properties would be affected by the construction, rehabilitation and expansion
of the North Luzon Expressway. The suit was docketed as Civil Case No. 869-M-2000 and
raffled to Branch 85, Malolos, Bulacan. Respondent Holy Trinity Realty and Development
Corporation (HTRDC) was one of the affected landowners.

189
On 18 March 2002, TRB filed an Urgent Ex-Parte Motion for the issuance of a Writ of
Possession, manifesting that it deposited a sufficient amount to cover the payment of 100% of the
zonal value of the affected properties, in the total amount of P28,406,700.00, with the Land Bank
of the Philippines, South Harbor Branch (LBP-South Harbor), an authorized government
depository. TRB maintained that since it had already complied with the provisions of Section 4
of Republic Act No. 8974184[5] in relation to Section 2 of Rule 67 of the Rules of Court, the
issuance of the writ of possession becomes ministerial on the part of the RTC.
The RTC issued, on 19 March 2002, an Order for the Issuance of a Writ of Possession.
On 3 March 2003, HTRDC filed with the RTC a Motion to Withdraw Deposit, praying
that the respondent or its duly authorized representative be allowed to withdraw the amount of
P22,968,000.00, out of TRBs advance deposit of P28,406,700.00 with LBP-South Harbor,
including the interest which accrued thereon.
Thereafter, the RTC allowed the release of the principal amount together with the interest
to the respondent but on Motion for Reconsideration of the TRB, it disallowed the withdrawal of
the interest reasoning out that the said issue will be included in the second stage of expropriation,
that is, the determination of just compensation.
The private respondent elevated the issue to the Court of Appeals which ruled that the
respondent is entitled to the interest by way of accession.
Hence, this petition of the government before the Supreme Court.
I S S U E:
Who has the right over the interest of the amount deposited representing the zonal value
of the property sought to be expropriated? The expropriator or the landowner?
HELD:
The petition is without merit.
The TRB claims that there are two stages 185[11] in expropriation proceedings, the
determination of the authority to exercise eminent domain and the determination of just
compensation. The TRB argues that it is only during the second stage when the court will
appoint commissioners and determine claims for entitlement to interest, citing Land Bank of the
Philippines v. Wycoco186[12] and National Power Corporation v. Angas.187[13]
The TRB further points out that the expropriation account with LBP-South Harbor is not
in the name of HTRDC, but of DPWH. Thus, the said expropriation account includes the
compensation for the other landowners named defendants in Civil Case No. 869-M-2000, and
does not exclusively belong to respondent.
The said argument is without merit because it failed to distinguish between the
expropriation procedures under Republic Act No. 8974 and Rule 67 of the Rules of Court.
Republic Act No. 8974 and Rule 67 of the Rules of Court speak of different procedures, with the
former specifically governing expropriation proceedings for national government infrastructure
projects. Thus, in Republic v. Gingoyon,188[14] we held:
184
185
186
187
188

190
There are at least two crucial differences between the respective procedures under Rep.
Act No. 8974 and Rule 67. Under the statute, the Government is required to make immediate
payment to the property owner upon the filing of the complaint to be entitled to a writ of
possession, whereas in Rule 67, the Government is required only to make an initial
deposit with an authorized government depositary. Moreover, Rule 67 prescribes that the
initial deposit be equivalent to the assessed value of the property for purposes of taxation, unlike
Rep. Act No. 8974 which provides, as the relevant standard for initial compensation, the market
value of the property as stated in the tax declaration or the current relevant zonal valuation of the
Bureau of Internal Revenue (BIR), whichever is higher, and the value of the improvements and/or
structures using the replacement cost method.
xxxx
Rule 67 outlines the procedure under which eminent domain may be exercised by the
Government. Yet by no means does it serve at present as the solitary guideline through which the
State may expropriate private property. For example, Section 19 of the Local Government Code
governs as to the exercise by local government units of the power of eminent domain through an
enabling ordinance. And then there is Rep. Act No. 8974, which covers expropriation proceedings
intended for national government infrastructure projects.
Rep. Act No. 8974, which provides for a procedure eminently more favorable to the
property owner than Rule 67, inescapably applies in instances when the national government
expropriates property for national government infrastructure projects. Thus, if expropriation is
engaged in by the national government for purposes other than national infrastructure projects,
the assessed value standard and the deposit mode prescribed in Rule 67 continues to apply.
There is no question that the proceedings in this case deal with the expropriation of
properties intended for a national government infrastructure project. Therefore, the RTC
correctly applied the procedure laid out in Republic Act No. 8974, by requiring the deposit of the
amount equivalent to 100% of the zonal value of the properties sought to be expropriated before
the issuance of a writ of possession in favor of the Republic.
The controversy, though, arises not from the amount of the deposit, but as to the
ownership of the interest that had since accrued on the deposited amount.
Whether the Court of Appeals was correct in holding that the interest earned by the
deposited amount in the expropriation account would accrue to HRTDC by virtue of accession,
hinges on the determination of who actually owns the deposited amount, since, under Article 440
of the Civil Code, the right of accession is conferred by ownership of the principal property:
Art. 440. The ownership of property gives the right by accession to everything which is
produced thereby, or which is incorporated or attached thereto, either naturally or artificially.
The principal property in the case at bar is part of the deposited amount in the
expropriation account of DPWH which pertains particularly to HTRDC. Such amount,
determined to be P22,968,000.00 of the P28,406,700.00 total deposit, was already ordered by the
RTC to be released to HTRDC or its authorized representative. The Court of Appeals further
recognized that the deposit of the amount was already deemed a constructive delivery thereof to
HTRDC:
When the [herein petitioner] TRB deposited the money as advance payment for the
expropriated property with an authorized government depositary bank for purposes of obtaining a
writ of possession, it is deemed to be a constructive delivery of the amount corresponding to
the 100% zonal valuation of the expropriated property. Since [HTRDC] is entitled thereto and
indisputably the owner of the principal amount deposited by [herein petitioner] TRB, conversely,

191
the interest yield, as accession, in a bank deposit should likewise pertain to the owner of the
money deposited.189[15]
Since the Court of Appeals found that the HTRDC is the owner of the deposited amount,
then the latter should also be entitled to the interest which accrued thereon.
The deposit was made in order to comply with Section 4 of Republic Act No. 8974,
which requires nothing less than the immediate payment of 100% of the value of the property,
based on the current zonal valuation of the BIR, to the property owner. Thus, going back to our
ruling in Republic v. Gingoyon190[16]:
It is the plain intent of Rep. Act No. 8974 to supersede the system of deposit under Rule
67 with the scheme of immediate payment in cases involving national government
infrastructure projects.
The critical factor in the different modes of effecting delivery which gives legal effect to
the act is the actual intention to deliver on the part of the party making such delivery. 191[17] The
intention of the TRB in depositing such amount through DPWH was clearly to comply with the
requirement of immediate payment in Republic Act No. 8974, so that it could already secure a
writ of possession over the properties subject of the expropriation and commence implementation
of the project. In fact, TRB did not object to HTRDCs Motion to Withdraw Deposit with the
RTC, for as long as HTRDC shows (1) that the property is free from any lien or encumbrance and
(2) that respondent is the absolute owner thereof. 192[18]
A close scrutiny of TRBs arguments would further reveal that it does not directly
challenge the Court of Appeals determinative pronouncement that the interest earned by the
amount deposited in the expropriation account accrues to HTRDC by virtue of accession. TRB
only asserts that HTRDC is entitled only to an amount equivalent to the zonal value of the
expropriated property, nothing more and nothing less.
We agree in TRBs statement since it is exactly how the amount of the immediate
payment shall be determined in accordance with Section 4 of Republic Act No. 8974, i.e., an
amount equivalent to 100% of the zonal value of the expropriated properties. However, TRB
already complied therewith by depositing the required amount in the expropriation account of
DPWH with LBP-South Harbor. By depositing the said amount, TRB is already considered to
have paid the same to HTRDC, and HTRDC became the owner thereof. The amount earned
interest after the deposit; hence, the interest should pertain to the owner of the principal who is
already determined as HTRDC. The interest is paid by LBP-South Harbor on the deposit, and the
TRB cannot claim that it paid an amount more than what it is required to do so by law.
Since the respondent is the owner of P22,968,000.00, it is entitled by right of accession
to the interest that had accrued to the said amount only.
We are not persuaded by TRBs citation of National Power Corporation v. Angas and
Land Bank of the Philippines v. Wycoco, in support of its argument that the issue on interest is
merely part and parcel of the determination of just compensation which should be determined in
the second stage of the proceedings only. We find that neither case is applicable herein.
The issue in Angas is whether or not, in the computation of the legal rate of interest on
just compensation for expropriated lands, the applicable law is Article 2209 of the Civil Code
which prescribes a 6% legal interest rate, or Central Bank Circular No. 416 which fixed the legal
rate at 12% per annum. We ruled in Angas that since the kind of interest involved therein is
189
190
191
192

192
interest by way of damages for delay in the payment thereof, and not as earnings from loans or
forbearances of money, Article 2209 of the Civil Code prescribing the 6% interest shall apply. In
Wycoco, on the other hand, we clarified that interests in the form of damages cannot be applied
where there is prompt and valid payment of just compensation.
The case at bar, however, does not involve interest as damages for delay in payment of
just compensation. It concerns interest earned by the amount deposited in the expropriation
account.
Under Section 4 of Republic Act No. 8974, the implementing agency of the government
pays just compensation twice: (1) immediately upon the filing of the complaint, where the
amount to be paid is 100% of the value of the property based on the current relevant zonal
valuation of the BIR (initial payment); and (2) when the decision of the court in the determination
of just compensation becomes final and executory, where the implementing agency shall pay the
owner the difference between the amount already paid and the just compensation as determined
by the court (final payment)
As a final note, TRB does not object to HTRDCs withdrawal of the amount of
P22,968,000.00 from the expropriation account, provided that it is able to show (1) that the
property is free from any lien or encumbrance and (2) that it is the absolute owner thereof. The
said conditions do not put in abeyance the constructive delivery of the said amount to HTRDC
pending the latters compliance therewith. Article 1187 of the Civil Code provides that the
effects of a conditional obligation to give, once the condition has been fulfilled, shall retroact to
the day of the constitution of the obligation. Hence, when HTRDC complied with the given
conditions, as determined by the RTC in its Orderdated 21 April 2003, the effects of the
constructive delivery retroacted to the actual date of the deposit of the amount in the
expropriation account of DPWH.
BIGLANG-AWA VS. JUDGE BACALLA, 354 SCRA 562
PURSUANT TO SECTION 2, RULE 67 OF THE 1997 RULES OF CIVIL
PROCEDURE AND THE DOCTRINE LAID DOWN IN THE ROBERN DEVELOPMENT
CASE, THE ONLY REQUISITES FOR THE IMMEDIATE ENTRY BY THE
GOVERNMENT IN EXPROPRIATION CASES ARE:
a. the filing of a complaint for expropriation sufficient in form and substance; and
b. the making of a deposit equivalent to the ASSESSED VALUE OF THE PROPERTY
SUBJECT TO EXPROPRIATION.
The owners of the expropriated land are entitled to legal interest on the compensation eventually
adjudged from the date the condemnor takes possession of the land until the full compensation is
paid to them or deposited in court.
Requisites before immediate possession or writ of possession may be issued in expropriation cases,
involving local government units as the expropriating agency:
1. Complaint sufficient in form and substance; and
2. Payment of 15% of the Market value as appearing in the latest Tax Declaration.
THE CITY OF ILOILO VS. JUDGE LEGASPI, RTC 22, ILOILO CITY, 444 SCRA 269
Requisites before the expropriator is allowed immediate entry on the property subject of
expropriation if the expropriator is a local government unit.

193
The expropriator may immediately enter the property subject of
proceedings if the following requisites are present:
1.

expropriation

the complaint for expropriation filed in court is sufficient in form


and substance; and

2.

the expropriator must deposit the amount equivalent to 15%


of the fair market value of the property to be expropriated based on its current tax
declaration.

But if the government fails to use the property expropriated


for the purpose for which it was intended, the landowner has
the right to buy-back the same.

MACTAN-CEBU INTERNATIONAL AIRPORT AUTHORITY and AIR


TRANSPORTATION OFFICE vs. BERNARDO LOZADA, JR., ET AL.,
G.R. No. 176625, February 25, 2010
NACHURA, J.:
Subject of this case is Lot No. 88-SWO-25042 (Lot No. 88), with an area of 1,017 square meters,
more or less, located in Lahug, Cebu City. Its original owner was Anastacio Deiparine when the same
was subject to expropriation proceedings, initiated by the Republic of the Philippines (Republic),
represented by the then Civil Aeronautics Administration (CAA), for the expansion and improvement of
the Lahug Airport. The case was filed with the then Court of First Instance of Cebu, Third Branch, and
docketed as Civil Case No. R-1881.
As early as 1947, the lots were already occupied by the U.S. Army. They were turned over to the
Surplus Property Commission, the Bureau of Aeronautics, the National Airport Corporation and then to
the CAA.
During the pendency of the expropriation proceedings, respondent Bernardo L. Lozada, Sr.
acquired Lot No. 88 from Deiparine. Consequently, Transfer Certificate of Title (TCT) No. 9045 was
issued in Lozadas name.
On December 29, 1961, the trial court rendered judgment in favor of the Republic and ordered the
latter to pay Lozada the fair market value of Lot No. 88, adjudged at P3.00 per square meter, with
consequential damages by way of legal interest computed from November 16, 1947the time when the
lot was first occupied by the airport. Lozada received the amount of P3,018.00 by way of payment.
The affected landowners appealed. Pending appeal, the Air Transportation Office (ATO), formerly
CAA, proposed a compromise settlement whereby the owners of the lots affected by the expropriation
proceedings would either not appeal or withdraw their respective appeals in consideration of a
commitment that the expropriated lots would be resold at the price they were expropriated in the event
that the ATO would abandon the Lahug Airport, pursuant to an established policy involving similar cases.
Because of this promise, Lozada did not pursue his appeal. Thereafter, Lot No. 88 was transferred and
registered in the name of the Republic under TCT No. 25057.
The projected improvement and expansion plan of the old Lahug Airport, however, was not
pursued.
Lozada, with the other landowners, contacted then CAA Director Vicente Rivera, Jr., requesting to
repurchase the lots, as per previous agreement. The CAA replied that there might still be a need for the
Lahug Airport to be used as an emergency DC-3 airport. It reiterated, however, the assurance that

194
should this Office dispose and resell the properties which may be found to be no longer necessary as an
airport, then the policy of this Office is to give priority to the former owners subject to the approval of the
President.
On November 29, 1989, then President Corazon C. Aquino issued a Memorandum to the
Department of Transportation, directing the transfer of general aviation operations of the Lahug Airport to
the Mactan International Airport before the end of 1990 and, upon such transfer, the closure of the Lahug
Airport.
Sometime in 1990, the Congress of the Philippines passed Republic Act (R.A.) No. 6958, entitled
An Act Creating the Mactan-Cebu International Airport Authority, Transferring Existing Assets of the
Mactan International Airport and the Lahug Airport to the Authority, Vesting the Authority with Power to
Administer and Operate the Mactan International Airport and the Lahug Airport, and For Other
Purposes.

From the date of the institution of the expropriation proceedings up to the present, the public
purpose of the said expropriation (expansion of the airport) was never actually initiated, realized, or
implemented. Instead, the old airport was converted into a commercial complex. Lot No. 88 became the
site of a jail known as Bagong Buhay Rehabilitation Complex, while a portion thereof was occupied by
squatters. The old airport was converted into what is now known as the Ayala I.T. Park, a commercial
area.
Thus, on June 4, 1996, petitioners initiated a complaint for the recovery of possession and
reconveyance of ownership of Lot No. 88. The case was docketed as Civil Case No. CEB-18823 and was
raffled to the Regional Trial Court (RTC), Branch 57, Cebu City.
In their Answer, petitioners asked for the immediate dismissal of the complaint. They specifically
denied that the Government had made assurances to reconvey Lot No. 88 to respondents in the event that
the property would no longer be needed for airport operations. Petitioners instead asserted that the
judgment of condemnation was unconditional, and respondents were, therefore, not entitled to recover the
expropriated property notwithstanding non-use or abandonment thereof.
After pretrial, but before trial on the merits, the parties stipulated on the following set of facts:
(1)

The lot involved is Lot No. 88-SWO-25042 of the Banilad Estate, situated in the
City of Cebu, containing an area of One Thousand Seventeen (1,017) square
meters, more or less;

(2)

The property was expropriated among several other properties in Lahug in favor of
the Republic of the Philippines by virtue of a Decision dated December 29, 1961 of
the CFI of Cebu in Civil Case No. R-1881;

(3)

The public purpose for which the property was expropriated was for the purpose of
the Lahug Airport;

(4)

After the expansion, the property was transferred in the name of MCIAA; [and]

(5)

On November 29, 1989, then President Corazon C. Aquino directed the Department
of Transportation and Communication to transfer general aviation operations of the
Lahug Airport to the Mactan-Cebu International Airport Authority and to close the
Lahug Airport after such transfer.

195
On October 22, 1999, the RTC rendered its Decision, disposing as follows:
WHEREFORE, in the light of the foregoing, the Court hereby renders judgment
in favor of the plaintiffs, Bernardo L. Lozada, Sr., and the heirs of Rosario Mercado,
namely, Vicente M. Lozada, Marcia L. Godinez, Virginia L. Flores, Bernardo M. Lozada,
Jr., Dolores L. Gacasan, Socorro L. Cafaro and Rosario M. Lozada, represented by their
attorney-in-fact Marcia Lozada Godinez, and against defendants Cebu-Mactan
International Airport Authority (MCIAA) and Air Transportation Office (ATO):
1. ordering MCIAA and ATO to restore to plaintiffs the possession and
ownership of their land, Lot No. 88 Psd-821 (SWO-23803), upon payment of the
expropriation price to plaintiffs; and
2. ordering the Register of Deeds to effect the transfer of the Certificate of Title
from defendant[s] to plaintiffs on Lot No. [88], cancelling TCT No. 20357 in the name of
defendant MCIAA and to issue a new title on the same lot in the name of Bernardo L.
Lozada, Sr. and the heirs of Rosario Mercado, namely: Vicente M. Lozada, Mario M.
Lozada, Marcia L. Godinez, Virginia L. Flores, Bernardo M. Lozada, Jr., Dolores L.
Gacasan, Socorro L. Cafaro and Rosario M. Lozada.
No pronouncement as to costs.
Aggrieved, petitioners interposed an appeal to the CA. After the filing of the necessary appellate
briefs, the CA rendered its assailed Decision dated February 28, 2006, denying petitioners appeal and
affirming in toto the Decision of the RTC, Branch 57, Cebu City. Petitioners motion for reconsideration
was, likewise, denied in the questioned CA Resolution dated February 7, 2007.
Hence, this petition arguing that: (1) the respondents utterly failed to prove that there was a
repurchase agreement or compromise settlement between them and the Government; (2) the judgment in
Civil Case No. R-1881 was absolute and unconditional, giving title in fee simple to the Republic; and (3)
the respondents claim of verbal assurances from government officials violates the Statute of Frauds.
The petition should be denied.
Petitioners anchor their claim to the controverted property on the supposition that the Decision in
the pertinent expropriation proceedings did not provide for the condition that should the intended use of
Lot No. 88 for the expansion of the Lahug Airport be aborted or abandoned, the property would revert to
respondents, being its former owners. Petitioners cite, in support of this position, Fery v. Municipality of
Cabanatuan, which declared that the Government acquires only such rights in expropriated parcels of
land as may be allowed by the character of its title over the properties
If x x x land is expropriated for a particular purpose, with the condition that when that
purpose is ended or abandoned the property shall return to its former owner, then, of
course, when the purpose is terminated or abandoned the former owner reacquires the
property so expropriated. If x x x land is expropriated for a public street and the
expropriation is granted upon condition that the city can only use it for a public street,
then, of course, when the city abandons its use as a public street, it returns to the former
owner, unless there is some statutory provision to the contrary. x x x. If, upon the
contrary, however, the decree of expropriation gives to the entity a fee simple title, then,
of course, the land becomes the absolute property of the expropriator, whether it be the
State, a province, or municipality, and in that case the non-user does not have the effect of
defeating the title acquired by the expropriation proceedings. x x x.
When land has been acquired for public use in fee simple, unconditionally, either
by the exercise of eminent domain or by purchase, the former owner retains no right in

196
the land, and the public use may be abandoned, or the land may be devoted to a different
use, without any impairment of the estate or title acquired, or any reversion to the former
owner. x x x.
Contrary to the stance of petitioners, this Court had ruled otherwise in Heirs of Timoteo Moreno
and Maria Rotea v. Mactan-Cebu International Airport Authority, thus
Moreover, respondent MCIAA has brought to our attention a significant and
telling portion in the Decision in Civil Case No. R-1881 validating our discernment that
the expropriation by the predecessors of respondent was ordered under the running
impression that Lahug Airport would continue in operation
As for the public purpose of the expropriation proceeding, it
cannot now be doubted. Although Mactan Airport is being constructed,
it does not take away the actual usefulness and importance of the Lahug
Airport: it is handling the air traffic both civilian and military. From it
aircrafts fly to Mindanao and Visayas and pass thru it on their flights to
the North and Manila. Then, no evidence was adduced to show how
soon is the Mactan Airport to be placed in operation and whether the
Lahug Airport will be closed immediately thereafter. It is up to the other
departments of the Government to determine said matters. The Court
cannot substitute its judgment for those of the said departments or
agencies. In the absence of such showing, the Court will presume that
the Lahug Airport will continue to be in operation (emphasis supplied).
While in the trial in Civil Case No. R-1881 [we] could have simply acknowledged
the presence of public purpose for the exercise of eminent domain regardless of the
survival of Lahug Airport, the trial court in its Decision chose not to do so but instead
prefixed its finding of public purpose upon its understanding that Lahug Airport will
continue to be in operation. Verily, these meaningful statements in the body of the
Decision warrant the conclusion that the expropriated properties would remain to be so
until it was confirmed that Lahug Airport was no longer in operation. This inference
further implies two (2) things: (a) after the Lahug Airport ceased its undertaking as such
and the expropriated lots were not being used for any airport expansion project, the rights
vis--vis the expropriated Lots Nos. 916 and 920 as between the State and their former
owners, petitioners herein, must be equitably adjusted; and (b) the foregoing
unmistakable declarations in the body of the Decision should merge with and become an
intrinsic part of the fallo thereof which under the premises is clearly inadequate since the
dispositive portion is not in accord with the findings as contained in the body thereof.
Indeed, the Decision in Civil Case No. R-1881 should be read in its entirety, wherein it is apparent
that the acquisition by the Republic of the expropriated lots was subject to the condition that the Lahug
Airport would continue its operation. The condition not having materialized because the airport had been
abandoned, the former owner should then be allowed to reacquire the expropriated property.
On this note, we take this opportunity to revisit our ruling in Fery, which involved an expropriation
suit commenced upon parcels of land to be used as a site for a public market. Instead of putting up a
public market, respondent Cabanatuan constructed residential houses for lease on the area. Claiming that
the municipality lost its right to the property taken since it did not pursue its public purpose, petitioner
Juan Fery, the former owner of the lots expropriated, sought to recover his properties. However, as he
had admitted that, in 1915, respondent Cabanatuan acquired a fee simple title to the lands in question,
judgment was rendered in favor of the municipality, following American jurisprudence, particularly City
of Fort Wayne v. Lake Shore & M.S. RY. Co., McConihay v. Theodore Wright, and Reichling v. Covington
Lumber Co., all uniformly holding that the transfer to a third party of the expropriated real property,
which necessarily resulted in the abandonment of the particular public purpose for which the property was
taken, is not a ground for the recovery of the same by its previous owner, the title of the expropriating
agency being one of fee simple.

197
Obviously, Fery was not decided pursuant to our now sacredly held constitutional right that private
property shall not be taken for public use without just compensation. It is well settled that the taking of
private property by the Governments power of eminent domain is subject to two mandatory
requirements: (1) that it is for a particular public purpose; and (2) that just compensation be paid to the
property owner. These requirements partake of the nature of implied conditions that should be complied
with to enable the condemnor to keep the property expropriated.
More particularly, with respect to the element of public use, the expropriator should commit to use
the property pursuant to the purpose stated in the petition for expropriation filed, failing which, it should
file another petition for the new purpose. If not, it is then incumbent upon the expropriator to return the
said property to its private owner, if the latter desires to reacquire the same. Otherwise, the judgment of
expropriation suffers an intrinsic flaw, as it would lack one indispensable element for the proper exercise
of the power of eminent domain, namely, the particular public purpose for which the property will be
devoted. Accordingly, the private property owner would be denied due process of law, and the judgment
would violate the property owners right to justice, fairness, and equity.
In light of these premises, we now expressly hold that the taking of private property,
consequent to the Governments exercise of its power of eminent domain, is always subject to the
condition that the property be devoted to the specific public purpose for which it was taken.
Corollarily, if this particular purpose or intent is not initiated or not at all pursued, and is
peremptorily abandoned, then the former owners, if they so desire, may seek the reversion of the
property, subject to the return of the amount of just compensation received. In such a case, the
exercise of the power of eminent domain has become improper for lack of the required factual
justification.
On the matter of the repurchase price, while petitioners are obliged to reconvey Lot No. 88 to
respondents, the latter must return to the former what they received as just compensation for the
expropriation of the property, plus legal interest to be computed from default, which in this case runs from
the time petitioners comply with their obligation to respondents.
Respondents must likewise pay petitioners the necessary expenses they may have incurred in
maintaining Lot No. 88, as well as the monetary value of their services in managing it to the extent that
respondents were benefited thereby.

GABATIN VS. LAND BANK OF THE PHILIPPINES, 444 SCRA 176


What is the basis of the just compensation for expropriation proceedings in connection
with the agrarian reform program of the government.
Held:
The taking of private lands under the agrarian reform program of the government
partakes of the nature of an expropriation proceedings. As such, in computing the just
compensation, it is the value of the land at the time of the taking, not at the time of the
rendition of the judgment, which should be taken into consideration.
BANK OF THE PHILIPPINE ISLANDS VS. COURT OF APPEALS, 441 SCRA 637
Just compensation in expropriation cases; value of the property when?
Just compensation is defined as the full and fair equivalent of the property taken from its
owner by the expropriator. The measure is not the takers gain, but the owners loss. Market value

198
is that sum of money which a person desirous but not compelled to buy, and an owner willing but
not compelled to sell, would agree on as a price to be given and received therefore.
The just compensation is determined as of the date of taking of the property or the filing
of the complaint for expropriation, WHICHEVER COMES FIRST.
4. Basis of just compensation
Read:
a. NPC vs. Jocson, February 25, 1992
a-1. Ansaldo vs. Tantuico, Aug. 3, 1990
b. Mun. of Makati vs. CA, Oct. 1, 1990
c. Reublic vs. IAC, 185 SCRA 572
d. Mun. of Talisay vs. Ramirez, 183 SCRA 528
e. NPC vs. CA, 129 SCRA 665
f. Maddumba vs. GSIS, 182 SCRA 281
Read also:
1. Meaning of just compensation in eminent domain

proceedings, 29 SCRA 868

Basis of just compensation (Exceptional case)


BERKENKOTTER, INC. VS. COURT OF APPEALS AND REPUBLIC OF THE
PHILIPPINES, December 14, 1992
Cruz, J.
Facts:
1. On June 18, 1982, Vicente Viray, then President of Apolinario Apacible School of Fisheries, a
government institution in Nasugbu, Batangas, sent the petitioner a written offer to buy the
property of the latter with an area of 10,640 square meters for its 5-year expansion program;
2. That the petitioner expressed willingness to sell at P50.00 per square meter in its reply;
3. Viray then requested the Office of the Provincial Assessor of the Province of Batangas to
appraise the land and the latter fixed its market value at P32.00 per square meter;
4. Viray then wrote the petitioner and expressed willingness to buy the latter's property at P32.00
per square meter. The petitioner, however, stuck to its original valuation. Later on, it said that its
property had in fact appreciated to as much as P100.00 per square meter;
5. On October 28, 1983, the Republic of the Philippines filed a complaint for the expropriation of
the petitioner's property and invoked the assessment made by the Provincial Appraisal Committee
of the Provincial Assessor of Batangas in the amount of P32.00. The government likewise sought
immediate possession of the property upon deposit of 10% of the total assessment in accordance
with PD 48;
6. Berkenkotter originally questioned the purpose of the expropriation but later abandoned this
objection and concentrated only on what it called the "underappraisal" of the subject land;
7. The RTC then appointed a panel of commissioners in accordance with Rule 67, ection 5, of the
Rules of Court, to determine the just compensation to be paid for the land;

199
8. On September 23, 1985, the panel of commissioners submitted its report to the trial court and
pegged the market value at P85.00 per square meter;
9. The Republic of the Philippines objected and pointed to three (3) contracts of sale executed
by the petitioner in 1985 whereby it sold three (3) tracts of land similar in topography and
adjacent to the property in question for the unit price of only P19.18 per square meter;
10. The court directed the commissioners to convene anew and to receive additional evidence.
However, in its second report dated April 1, 1987, the panel reiterated its original
recommendation of P85.00/sq. m. or a total of P904,400.00 for the entire area sought to be
expropriated. The trial court acting on this recommendation rendered judgment requiring the
Republic to pay the petitioner the amount of P904,400.00 for the entire area sought to be
expropriated;
11. The government appealed the trial court's decision to the Court of Appeals which rendered a
decision REVERSING THE LOWER COURT'S DECISION and declaring that the fair market
value which should be the basis in computing the amount to be paid by the government to the
petitioner shall be P19.18, the market value according set by the petitioner if we follow the
three (3) deeds of sale it executed in favor of three (3) different individuals;
12. The petitioner was therefore constrained to file this instant petition claiming that the Court of
Appeals erred in holding that P19.18 per square meter should be the basis of the computation
for the just compensation of its property because:
a. Viray even offered the amount of P32.00 per squaremeter as the fair market value;
b. that P32.00 per square meter was the appraised value made by the Office of the Provincial
Assessor of Batangas; and
c. the complaint itself prays that the market value be pegged at P32.00 per square meter.
Issue:
WHAT SHOULD BE THE BASIS IN THE COMPUTATION OF THE JUST
COMPENSATION: P32.00/SQ. M. IN ACCORANCE WITH THE APPRAISAL OF THE
PROVINCIAL ASSESSOR; P100.00/SQ.M. AS CLAIMED BY THE OWNER; P85.00/SQ.
M. AS RECOMMENDED BY THE BOARD OF COMMISSIONERS APPOINTED BY THE
COURT TO EVALUATE THE SAME, OR P19.18 PER SQUARE METER WHICH WAS THE
SELLING PRICE IN AN ADJACENT LOT SOLD BY THE PETITIONER TO THREE
PRIVATE INDIVIDUALS.
Held.
The basis in the computation of just compensation shall be P19.18 per square
meter or the price which the petitioner sold its other lots to other individuals.
This is so because there is no showing that the petitioner had any special reason
for granting each of the individual vendees the extraordinary discount amounting to as much as
75% of its claimed real value of the land. To all appearances, they were ordinary buyers who
bought the land for their own private purposes only and not for the public purpose invoked
by the government.
The petitioner's claim that the value as appearing in the deeds of sale in the
three other parcels is not a reliable index of just compensation "because owners usually
undervalue the selling price of the property to lower the expenses they would have to pay for

200
capital gains tax and documentary stamps tax" is practically an admission that it did not indicate
the actual consideration in the three transactions where it was made to appear that the price per
square meter was only P19.18. If this was the purpose of the petitioner when it executed the 3
deeds of sale, then IT IS SURELY HOIST NOW BY ITS OWN PETARD. AND RIGHTLY SO,
FOR IT CANNOT BE ALLOWED TO PROFIT FROM ITS OWN DECEPTION AND CLAIM
THAT THE SUBJECT PROPERTY SHOULD BE ASSESSED AT THE HIGHER RATE IT
CLANDESTINELY AGREED UPON WITH THE BUYERS.
The Court is disappointed that the petitioner should demand a higher price from
the republic, which needs the land for a public purpose, when it was willing to accept less from
the three individual buyers who had only their private interests to serve.
The fact that the petitioner sold the 3 other parcels of land at P19.18 per square
meter which are admittedly of the same topography as that subject of this case, it impliedly
admitted that the price for the latter should be the same as the former. This rule of consistency is
best expressed in the familiar saying, surely not unknown to the petitioner, THAT WHAT IS
SAUCE FOR THE GOOSE IS ALSO SAUCE FOR THE GANDER.
Just compensation is defined as the full and fair equivalent of the proerty sought
to be expropriated (Association of Small Landowners vs. Secretary of Agrarian Reform, 175
SCRA 378). The measure is not the taker's gain but the owner's loss. he compensation, to be just,
must be fair not only to the owner but also to the taker.
To determine just compensation, the trial court should first ascertain the market
value of the property, to which should be added the consequential benefits which may arise from
the expropriation.
The market value of the property is the price that may be agreed upon by the
parties willing but not compelled to enter into a contract of sale.
Among the factors to be considered in arriving at the fair market value
are:
1. cost of acquisition;
2. the current value of like proerties;
3. its actual or potential uses;
4. particular case of lands;
5. their size, shape, location; and
6. the tax declarations thereon.
Finally, note that as held in the case of Republic vs. Santos, 141 SCRA 30, the
market value as recommended by the board of commissioners appointed by the court were at
best only ADVISORY AND PERSUASIVE AND BY NO MEANS FINAL OR BINDING.
2. NHA vs. Reyes, 123 SCRA 245
3. Manotok vs. CA, May 21,1987
4. EPZA vs. Dulay, April 29,l987
5. Lagunzad vs. CA, 154 SCRA 199
When it is considered for "public use":
6. Sumulong vs. Guererro, 154 SCRA 461
7. Republic vs. CA, 154 SCRA 428
8.Cosculluela vs. CA, 164 SCRA 393
5. Requisite of "taking" in eminent domain cases

201
Read:
1. Rep. vs. Castellvi, 58 SCRA 336
a.
b.
c.
d.
e.

Requisites of taking:
the expropriator must enter the property;
the entrance must not be for just a momentary period;
the entry must be under warrant of color or title;
the property must be devoted for public use; and
the owner must be ousted from beneficial use of his land.
2. Ignacio vs. Guererro, 150 SCRA 369
3. Garcia vs. CA, 102 SCRA 597
6. Not a valid exercise of eminent domain
Read:
1. City of Manila vs. Chinese Community, 40
Phil. 349 ( A private property which is
devoted to public use may not be expropriated for another public purpose.)

2. De Knecht vs. Bautista, 100 SCRA 660


REPUBLIC OF THE PHILIPPINES VS. CRISTINA DE KNECHT AND THE COURT OF
APPEALS, G.R. NO. 87335, February 12, 1989
Expropriation
Gancayco, J.
Facts:
1. On February 20, 1979, the Rep. of the Philippines initiated an expropriation proceedings
against the owners of the houses standing along Fernando Rein-Del Pan streets, among them
Cristina de Knecht together with Concepcion Cabarrus, and some other fifteen defendants in
Civil Case No. 7001-P;
2. In June, 1979, the Republic of the Philippines prayed for the issuance of a writ of possession of
the property to be expropriated on the ground that it had already deposited with the PNB 10% of
the amount of compensation stated in the complaint; that on June 14, 1979, the Lower Court
issued a writ of possession authorizing the Republic to enter into the properties condemned and
created a committee to determine just compensation;
3. On July 16, 1979, De Knecht went to the Supreme Court on a petition for certiorari and
prohibition directed against the June 14, 1979 order of the lower court;
4. On October 30, 1980, the Supreme Court rendered its decision granting the petition for
certiorari and prohibition and directing that the Order of the respondent Judge dated June 14,
1979 be SET ASIDE and the respondent Judge is permanently enjoined from taking any further
action on Civil Case No. 7001-P;
5. On August 8, 1981, the defendants in Civil Case No. 7001- moved for the dismissal of said
case since the decision of the Supreme Court is already final;

202
6. On September 2, 1983, the Republic moved for the dismissal of the case due to the enactment
of BP 340 expropriating the same properties for the same purpose. On the same date, the Court
dismissed the case. The defendants moved for a reconsideration which the Court denied;
7. De Knecht appealed the Order dismissing the case to the Court of Appeals who on December
28, 1988 issued its decision setting aside the Order appealed from and dismissing the
expropriation proceedings before the lower court on the ground that the choice of the abovementioned streets as the line through which the EDSA should be extended is arbitrary and should
not receive judicial approval;
8. The Republic of the Philippines filed a Petition for Review with the Supreme Court.
Issue:
Whether or not the legislature could still pass a law expropriating the lots of the private
respondents despite the existence of a final decision of the Supreme Court which held that choice
of their lot to be used as an extension of EDSA is arbitrary?
Held:
It is true that there is already a final decision of the Supreme Court to the effect that the choice
of the Fernando Rein-Del Pan Streets is arbitrary and should not receive judicial approval.
However, it is equally true that the Constitution and our laws may expropriate private properties
after the payment of just compensation. When on February 17, 1983, the Batasang Pambansa
passed BP 340 expropriating the same properties for the same purpose, IT APPEARS THAT THE
SAME WAS BASED ON SUPERVENING EVENTS THAT OCCURRED after the decision of
the SC in De Knecht vs. Bautista in 1980. The social impact factor which persuaded the Court to
consider this extension has disappeared because of the fact that the residents of the area have
been relocated and duly compensated and only DE KNECHT now is left while her property is
only about 5% of the area to be expropriated. The Republic could continue it expropriation
proceedings considering the supervening events after the decision was rendered.
BP Bilang 340 THEREFORE EFFECTIVELY SUPERSEDED THE AFORESAID FINAL
AND EXECUTORY DECISION OF THE SUPREME COURT. X x x THE COURT AGREES IN
THE WISDOM AND NECESSITY OF ENACTING BP 340. THUS THE ANTERIOR
DECISION OF THIS COURT MUST YIELD TO THIS SUBSEQUENT LEGISLATIVE FIAT.
************************
Cruz, J., concurring
Supervening events have changed the factual basis of the SC's decision to justify the
subsequent enactment of the statute. If we are sustaining the legislation, it is not because we
concede that the lawmakers can nullify the findings of the Court in the exercise of its discretion.
It is simply because we ourselves have found that under the changed situation, the present
expropriation is no longer arbitrary.
I MUST ADD THAT THIS DECISION IS NOT A REVERSAL OF THE ORIGINAL DE
KNECHT CASE, WHICH WAS DECIDED UNDER A DIFFERENT SET OF FACTS.
3. REPUBLIC OF THE PHILIPPINES VS. CRISTINA DE KNECHT AND THE COURT OF
APPEALS, G.R. NO. 87335, February 12, 1989
3-a. Limitations of the power of expropriation, 3

SCRA 706

203
7. When shall we base the computation of the value of the property expropriated: at the time of
taking or at the time of the institution of the expropriation proceedings?
8. Eminent domain cases, in general
Read:
1. City of Baguio vs. NAWASA, 106 Phil. 144
2. Garcia vs. CA, 102 SCRA 620
3. Municipality of Daet vs. CA, 93 SCRA 503
4. Salas vs. Jarencio, 46 SCRA 734
5. Arce vs. Genito, Feb. 27, 1976
6. Guido vs. RPA, 84 Phil. 847
7. Rep. vs. Baylosis, 96 Phil. 461
8. Mataas na Lupa vs. Dimayuga, 130 SCRA 30
9. San Diego vs. Valdellon, 80 SCRA 305
10. Haguisan vs. Emilia, 131 SCRA 517
11. Heirs of Ardona vs. Reyes, 125 SCRA 220
12. Commissioner vs. Burgos, March 31,1980
13. Republic vs. Juan, 92 SCRA 29
CHAPTER XI - THE NON-IMPAIRMENT CLAUSE
Section 10. No law impairing the obligation of contracts shall
be passed.
1. Read:
1. Kabiling, et al., vs. NHA, December 18,l987
2. Clements vs. Nolting, 42 Phil. 702
3. Co vs. PNB, 114 SCRA 842
4. Lozano vs. Martinez,146 SCRA 323
5. Rutter vs. Esteban,93 Phil. 68
6. Ilusorio vs. CAR, 17 SCRA 25
7. Ortigas vs. Feati Bank, 94 SCRA 533
8. Ganzon vs. Insierto, 123 SCRA 713
9. Del Rosario vs. De los Santos, March 21, 1968
10. Abella vs. NLRC, 152 SCRA 140
11. PVBEU vs. PVB, 189 SCRA 14
Section 11. Free access to the courts and quasi-judicial bodies
and adequate legal assistance shall not be denied to any person
by reason of poverty.
CHAPTER XII - RIGHTS DURING
CUSTODIAL INVESTIGATION
Section 12. (1) Any person under investigation for the
commission of an offense shall have the right to be informed of
his right to remain silent and to have competent and independent
counsel preferably of his own choice. If the person cannot afford
the services of counsel, he must be provided with one. These
rights cannot be waived except in writing and in the presence of
counsel.

204
(2) No torture, force, violence, threat, intimidation or any other
means which vitiate the free will shall be used against him.
Secret detention places, solitary, incommunicado, or other
similar forms of detention are prohibited.
(3) Any confession or admission obtained in violation of this or
Section 17 hereof shall be inadmissible in evidence against him.
Rights of a person under custodial detention for one suspected or arrested as a
terrorist.
NOTE: Applicable provisions of the Human Security Act/Anti-Terrorism Law, Republic Act No.
9372, Approved on March 6, 2007 and effective on July 15, 2007 (This Law shall be
automatically suspended one (1) month before and two (2) months after the holding of any
election)
Section 21. Rights of a person under custodial detention.- The moment a person
charged with or suspected of the crime of terrorism or the crime of conspiracy to commit
terrorism is apprehended or arrested and detained, he shall forthwith be informed by the arresting
police or law enforcement officers to whose custody the person concerned is brought, of his or
her right:
1.

2.
3.
4.
5.

to be informed of the nature and cause of his arrest, to remain silent and to have
competent and independent counsel preferably of his own choice. If the person cannot afford the
services of counsel of his or her choice, the police or law enforcement officers concerned shall
immediately contact the free legal assistance unit of the IBP or the Public attorneys office (PAO).
It shall be the duty of the free legal assistance unit of the IBP or the PAOs thus contacted to
immediately visit the person detained and provide him with legal assistance. These rights cannot
be waived except in writing and in the presence of the counsel of choice;
informed of the cause or causes of his detention in the presence of his legal counsel;
allowed to communicate freely with his legal counsel and to confer with them at any
time without restriction;
allowed to communicate freely and privately without restrictions with the members
of his family or with his nearest relatives and be visited by them; and
allowed freely to avail of the services of a physician or physicians of choice.
Section 23. Requirement for an official custodial logbook and its contents.The police or other law enforcement custodial unit in whose care and control the person charged
with or suspected of the crime of terrorism or the crime of conspiracy to commit terrorism has
been placed under custodial arrest and detention shall keep a securely and orderly maintained
official logbook, which is hereby declared as public document and opened and made available for
inspection and scrutiny of the lawyer or lawyers of the person under custody or any member of
his family or relative by consanguinity within the fourth civil degree or his physician at any time
of the day without any form of restriction. The logbook shall contain a clear and concise record
of:

1.
2.
3.
4.
5.
6.
7.
8.

name, description, and address of the detained person;


date and exact time of his initial admission for custodial arrest and detention;
the name and address of the physician/s who examined him physically and medically;
the state of his health and his physical condition a the time of his initial admission for
custodial detention;
the date and time of each removal of the detained person from his cell for interrogation or for
any purpose;
the date and time of his return to his cell;
name and address of the physician who examined him physically and medically;
summary of the physical and medical findings after each interrogation;

205
9.
10.
11.
12.
13.
14.

names and addresses of the members of his family and relatives;


names and addresses of the persons who visited him;
date and time of such visits;
date and time when the detained person requested to communicate or confer with his lawyer;
the date and time of visits by his legal counsel and the date and time of departure; and
all other important events bearing on all relevant details regarding the treatment of the
detained person while under custodial arrest or detention.
Section 24. No torture or coercion in Investigation and interrogation. No threat,
intimidation, or coercion, and no act which will inflict any form of physical pain or torment, or
mental, moral, or psychological pressure on the detained person which shall vitiate his free will
shall be employed in his investigation and interrogation; otherwise, the evidence obtained from
said detained person shall be in its entirety, absolutely not admissible and usable as evidence in
any judicial, quasi-judicial, legislative, or administrative investigation, inquiry, proceeding or
hearing.

The summary of the rights of an accused during custodial


investigation (from the time of arrest) under the
Constitution, laws and jurisprudence.
THE PEOPLE OF THE PHILIPPINES VS. MAHINAY, G.R. No. 122485, February 1,
1999
Per Curiam:
Considering the heavy penalty of death and in order to ensure that evidence against an
accused were obtained through lawful means, the Court, as guardian of the rights of the
people, lays down the PROCEDURE, GUIDELINES, AND DUTIES WHICH THE
ARRESTING, DETAINING, INVITING OR INVESTIGATING OFFICER OR HIS
COMPANIONS MUST OBSERVE AT THE TIME OF MAKING THE ARREST AND AGAIN
AT AND DURING THE TIME OF THE CUSTODIAL INVESTIGATION OR
INTERROGATION IN ACCORDANCE with the Constitution, jurisprudence and Republic Act
No. 7438. It is high time to educate our law enforcement agencies who neglect either by
ignorance or indifference the so-called Miranda rights which had become insufficient and
which the court must update in the light of new legal developments.
1. The person arrested, detained, invited or under custodial investigation must be informed in a
language known to and understood by him of the reason for the arrest and he must be shown a
copy of the warrant of arrest, if any; Every other warnings, information or communication must
be in a language known to and understood by said person;
2. He must be warned that he has the right to remain silent and that any statement he makes may be
used as evidence against him;
3. He must be informed that he has the right to be assisted at all times and have the presence of an
independent and competent lawyer, preferably of his own choice;
4. He must be informed that if he has no lawyer or cannot afford the services of a lawyer, one will
be provided for him; and that a lawyer may also be engaged by any person in his behalf, or may
be appointed by the court upon petition of the person arrested or one acting in his behalf;
5. That whether or not the person arrested has a lawyer, , he must be informed that no custodial
investigation in any form shall be conducted except in the presence of his counsel or after a valid
waiver has been made;

206
6. The person arrested must be informed that, at any time, he has the right to communicate or confer
by the most expedient means---telephone, radio, letter or messenger---with his lawyer (either
retained or appointed), any member of his immediate family; or any medical doctor, priest or
minister chosen by him or by any one from his immediate family or by his counsel, or be visited
by/confer with duly accredited national or international non-governmental organization. IT
SHALL BE THE RESPONSIBILITY OF THE OFFICER TO ENSURE THAT THIS IS
ACCOMPLISHED;
7. He must be informed that he has the right to waive any of said rights provided it is made
voluntarily, knowingly and intelligently and ensure that he understood the same;
8. In addition, if the person arrested waives his right to a lawyer, he must be informed that it must be
done in writing AND in the presence of counsel, otherwise, he must be warned that the waiver is
void even if he insist on his waiver and chooses to speak;
9. That the person arrested must be informed that he may indicate in any manner at any time or
state of the process that he does not wish to be questioned with the warning that once he makes
such indication, the police may not interrogate him if the same had not yet commenced, or the
interrogation has begun;
10. The person arrested must be informed that his initial waiver of his right to remain silent, the right
to counsel or any of his rights does not bar him from invoking it at any other time during the
process, regardless of whether he may have answered some questions or volunteered some
information or statements;
11. He must be informed that any statement OR EVIDENCE, as the case may be, obtained in
violation of any of the foregoing, whether inculpatory or exculpatory, in whole or in part, SHALL
BE INADMISSIBLE IN EVIDENCE.
(NOTE: Any violation of the foregoing rights of the accused shall entitle him to sue for damages
against the arresting or investigating officers in accordance with RA7438, not to mention the
possible criminal liability of said persons under existing laws).
LATEST CASES ON THE RIGHTS OF A PERSON DURING CUSTODIAL
INVESTIGATION
Rights during custodial investigation; when custodial investigation is deemed to have started;
right to be informed of the nature and cause of accusation against him.
THE PEOPLE OF THE PHILIPPINES VS. JOSE TING LAN UY, JR., et al., 475 SCRA
248

Ynares-Santiago, J.
Facts:
For allegedly diverting and collecting funds of the National Power Corporation intended
for the purchase of US Dollars from the United Coconut Planters Bank (UCPB), the accusedappellants were charged of Malversation through Falsification of Commercial Documents as
defined and penalized under Arts. 217 and 171 [8] in relation to Article 48 of the Revised Penal
Code. After trial, all accused were convicted by the Sandiganbayan.
While the Information charged the accused of willful and intentional commission of
the acts complained of while the Decision found the accused guilty of inexcusable negligence.

207
Accused Ochoa interposed an appeal and claimed that his conviction was based on his
alleged sworn statement and the transcript of stenographic notes of a supposed interview with an
NPC personnel and the report of the NBI. He maintains that he signed the sworn statement while
confined a the Philippine heart center and upon assurance that it would not be used against him.
He was not assisted by counsel nor he was apprised of his constitutional rights when he executed
the affidavit. He likewise claimed that his constitutional rights to be informed of the nature and
cause of accusation against and due process were violated.
Held:
1. Even if the information charges willful malversation, conviction for malversation through
negligence may still be adjudged if the evidence ultimately proves that mode of commission of
the offense. (Diaz vs. Sandiganbayan, 302 SCRA 118). This was the doctrine laid down in the
case of Samson vs. Court of appeals, 103 Phil. 277.
2. The claim that his affidavit is inadmissible in evidence in accordance with section 12 [1] of the
Bill of Rights is not tenable. The investigation under said provision refers to custodial
investigation where a suspect has already been taken into police custody and that the
investigating officers begin to ask questions to elicit information and confessions or admissions
from the suspect. Succinctly stated, custodial investigation refers to the critical pre-trial stage
when the investigation ceases to be a general inquiry into an unsolved crime but has began to
focus on a particular person as a suspect (People vs. Duenas, Jr., 426 SCRA 666). Clearly,
therefore, the rights enumerated by the accused are not available BEFORE GOVERNMENT
INVESTIGATORS ENTER THE PICTURE. The protective mantle of section 12, article III does
not apply to administrative investigations (People vs. Judge Ayson, 175 SCRA 216); confession
to a private individual (Kimpo vs. CA, 232 SCRA 53); verbal admission made to a radio
announcer who was not a part of the investigation (People vs. Ordono, 334 SCRA 673); or even
to a Mayor approached as a personal confidante and not in his official capacity (People vs. Zuela,
323 SCRA 589). In fact, even a videotaped interview where the accused willingly admit his guilt
in the presence of newsmen is not covered by the said provision though the trial courts were
warned by the supreme Court to take extreme caution in admitting similar confessions because of
the distinct possibility that the police, with the connivance of unscrupulous media practitioners,
may attempt to legitimize coerced extrajudicial confessions and place them beyond the
exclusionary rule by having an accused admit an offense on television (People vs. Endino, 353
SCRA 307).
Clearly, the confession of the accused was obtained during an administrative investigation by
NPC and therefore, the same was not covered by Section 12, Art. III of the Constitution.
(NOTE: In People vs. Andam, the confession made before a Municipal Mayor was
held admissible as evidence).
PEOPLE VS. FIGUEROA, 335 SCRA 349
Under Art. III, Section 12 [1] of the Constitution, a suspect in custodial investigation must be:
1.
2.
3.

informed of his right to remain silent;


warned that anything he says can be and will be used against him;
told that he has the right to counsel, and that if he is indigent, a lawyer will be appointed to
represent him.
In this case, accused-appellant was given no more than a perfunctory recitation of his
rights, signifying nothing more than a feigned compliance with the constitutional requirements.
(People vs. Samolde, July 31, 2000)

208
It is always incumbent on the prosecution to prove at the trial that, prior to in-custody
questioning, the confessant was informed of his constitutional rights. The presumption of
regularity of official acts does not prevail over the constitutional presumption of innocence.
Hence, in the absence of proof that the arresting officers complied with the above constitutional
safeguards, extrajudicial statements, whether inculpatory or exculpatory, made during the
custodial investigation, are inadmissible not only against the DECLARANT but with more so
against 3rd persons. THIS IS SO EVEN IF SUCH STATEMENTS ARE GOSPEL TRUTH AND
VOLUNTARILY GIVEN.
Such statements are useless EXCEPT AS EVIDENCE AGAINST THE VERY POLICE
AUTHORITIES WHO VIOLATED THE SUSPECTS RIGHTS.
PEOPLE VS. BARIQUIT, 341 SCRA 600
When custodial investigation is deemed to have started.
The protection under Section 12 , Art. III of the Constitution begins when a person is
taken into custody for investigation of his possible participation in the commission of a crime, or
from the time he is singled out as a suspect in the commission of the crime, although not yet in
custody.
Custodial investigation begins when it is no longer a general inquiry into an unsolved
crime but starts to focus on a particular person as a suspect, i.e., when the police investigator
starts interrogating or exacting confession from the suspect in connection with an alleged offense.
THE PLACE OF INTERROGATION IS NOT DETERMINATIVE OF THE
EXISTENCE OR ABSENCE OF CUSTODIAL INVESTIGATION BUT THE TONE AND
MANNER OF QUESTIONING BY THE POLICE AUTHORITIES. Thus, there was
custodial investigation when the police authorities, upon their arrest of some of the accused,
immediately asked them regarding their participation in the commission of the crime , even while
they were still walking along the highway on their way to the police station. This is line with the
provisions of RA 7438 which makes it applicable even when a person is merely invited for
questioning.
PEOPLE VS. DANO, G.R. NO. 117690, 339 SCRA 515, SEPT. 1, 2000; PEOPLE VS.
MAYORGA, G.R. NO. 135405, 346 SCRA 458, NOVEMBER 29, 2000.
However, spontaneous statements voluntarily given, as where appellant orally
admitted killing the victim before the barangay captain (who is neither a police officer nor a
law enforcement agent), do not fall under custodial investigation. Such admission, even without
the assistance of a lawyer, does not violate appellants constitutional rights AND THEREFORE
ADMISSIBLE IN EVIDENCE.
PEOPLE VS. DANO, G.R. NO. 117690, 339 SCRA 515, SEPT. 1, 2000; PEOPLE VS.
SAMOLDE, G.R. NO. 128551, 336 SCRA 632, JUL. 31, 2000.
To be admissible in evidence, an extrajudicial confession must be:
(i) voluntary;
(ii) made with the assistance of competent and independent counsel;
(iii) express; and
(iv) in writing.
A suspects confession, whether verbal or non-verbal, when taken without the assistance
of counsel, without a valid waiver of such assistance, regardless of the absence of coercion or the

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fact that it had been voluntarily given, is inadmissible in evidence, even if appellants
confession were gospel truth.
Requisites of a valid extrajudicial confession

PEOPLE OF THE PHILIPPINES vs. ROMULO TUNIACO, ET AL.,


G.R. No. 185710, January 10, 2010
ABAD, J.:
This case is about the requirements of a valid extrajudicial confession and the establishment of the
existence of corpus delicti in murder cases.
The Facts and the Case
The city prosecutor of General Santos City charged the accused Romulo Tuniaco, Jeffrey
Datulayta, and Alex Aleman with murder before the Regional Trial Court (RTC) of General Santos City in
Criminal Case 8370.
Based on the findings of the RTC, in the morning of June 13, 1992 some police officers from the
Lagao Police Sub-Station requested police officer Jaime Tabucon of the Central Police Station of General
Santos City homicide division to take the statement of accused Alex Aleman regarding the slaying of a
certain Dondon Cortez. On his arrival at the sub-station, Tabucon noted the presence of Atty. Ruperto
Besinga, Jr. of the Public Attorneys Office (PAO) who was conversing with those taken into custody for
the offense. When queried if the suspects would be willing to give their statements, Atty. Besinga said
that they were.
Some other police officer first took the statement of accused Jeffrey Datulayta. Officer Tabucon
next took the statement of accused Aleman, whom he observed to be in good physical shape.
Before anything else, officer Tabucon informed accused Aleman in Cebuano of his constitutional
right to remain silent and to the assistance of counsel of his own choice and asked him if he was willing to
give a statement. Aleman answered in the affirmative. When asked if he had any complaint to make,
Aleman said that he had none. When Aleman said that he had no lawyer, Tabucon pointed to Atty.
Besinga who claimed that he was assisting all the suspects in the case. Tabucon warned Aleman that
anything he would say may be used against him later in court. Afterwards, the police officer started
taking down Alemans statement.
Accused Aleman said that in the course of a drinking bout with accused Datulayta and Tuniaco at
around 9 p.m. on June 6, 1992, Dondon Cortez threatened to report his drinking companions illegal
activities to the police unless they gave him money for his forthcoming marriage. According to Aleman,
Datulayta and Tuniaco had already planned to kill Cortez in Tupi, South Cotabato, for making the same
threats and now they decided to do it. They got Cortez drunk then led him out supposedly to get the
money he needed.
The three accused brought Cortez to Apopong near the dump site and, as they were walking,
accused Aleman turned on Cortez and stabbed him on the stomach. Accused Datulayta, on the other
hand, drew out his single shot homemade M16 pistol and shot Cortez on the head, causing him to fall.
Datulayta handed over the gun to Aleman who fired another shot on Cortezs head. Accused Tuniaco
used the same gun to pump some bullets into Cortezs body. Then they covered him with rice husks.
After taking down the statement, Tabucon explained the substance of it to accused Aleman who
then signed it in the presence of Atty. Besinga.

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On June 15, 1992 the police brought Aleman to the City Prosecutors Office where he swore to
his statement before an assistant city prosecutor. In the afternoon, accused Datulayta and Aleman led
Tabucon, the city prosecutor, and a police inspector, to the dump site where they left their victims body.
After some search, the group found a spot covered with burnt rice husks and a partially burnt body of a
man. About a foot from the body, they found the shells of a 5.56 caliber gun and an armalite rifle.
On being arraigned, all three accused, assisted by Atty. Besinga, pleaded not guilty to the murder
charge. After the prosecution rested its case, accused Tuniaco filed a demurrer to evidence which the
Court granted, resulting in the dismissal of the case against him. On being re-arraigned at his request,
accused Datulayta pleaded guilty to the lesser offense of Homicide. The trial court sentenced him to
imprisonment of six years and one day and to pay P50,000.00 to the victims
family.
For some reason, the trial court had Aleman subjected to psychiatric examination at the Davao
Mental Hospital. But, shortly after, the hospital sent word that Aleman had escaped. He was later
recaptured. When trial in the case resumed, Alemans new PAO lawyer raised the defense of insanity.
This prompted the court to require the Provincial Jail Warden to issue a certification regarding Alemans
behavior and mental condition while in jail to determine if he was fit to stand trial. The warden complied,
stating that Aleman had been observed to have good mental condition and did not commit any infraction
while in jail.
Although the prosecution and defense stipulated that Atty. Besinga assisted accused Aleman during
the taking of his extrajudicial confession, the latter, however, recanted what he said to the police during
the trial. He testified that sometime in 1992, some police officers took him from his aunts house in
Purok Palen, Labangal, General Santos City, and brought him to the Lagao police station. He was there
asked to admit having taken part in the murder of Cortez. When he refused, they tortured him until he
agreed to sign a document admitting his part in the crime.
Accused Aleman also testified that he could not remember having been assisted by Atty. Besinga
during the police investigation. He even denied ever knowing the lawyer. Aleman further denied prior
association with accused Tuniaco and Datulayta. He said that he met them only at the city jail where they
were detained for the death of Cortez.
On October 8, 2001 the RTC rendered judgment, finding accused Aleman guilty beyond
reasonable doubt of the crime charged, and sentenced him to suffer the penalty of reclusion perpetua.
The court also ordered him to pay death indemnity of P70,000.00 and moral damages of P50,000.00 to
the heirs of Cortez.
On appeal to the Court of Appeals (CA) in CA-G.R. CR-HC 00311, the court rendered judgment on
January 21, 2008, affirming the decision of the RTC with the modification that directed accused Aleman
and Datulayta to indemnify the heirs of Cortez, jointly and severally, in the amounts of P50,000.00 as
civil indemnity; P50,000.00 as moral damages; P25,000.00 as temperate damages; and P25,000.00 as
exemplary damages. Aleman appealed to this Court.
The Issues Presented
Accused Aleman raises two issues: a) whether or not the prosecution was able to present evidence
of corpus delicti; and b) whether or not accused Alemans extrajudicial confession is admissible in
evidence.
The Rulings of the Court
1.
Corpus delicti has been defined as the body, foundation, or substance of a crime. The
evidence of a dead body with a gunshot wound on its back would be evidence that murder has been
committed. Corpus delicti has two elements: (a) that a certain result has been established, for example,

211
that a man has died and (b) that some person is criminally responsible for it. The prosecution is burdened
to prove corpus delicti beyond reasonable doubt either by direct evidence or by circumstantial or
presumptive evidence.
The defense claims that the prosecution failed to prove corpus delicti since it did not bother to
present a medical certificate identifying the remains found at the dump site and an autopsy report showing
such remains sustained gunshot and stab wounds that resulted in death; and the shells of the guns used in
killing the victim.
But corpus delicti need not be proved by an autopsy report of the dead victims body or even by
the testimony of the physician who examined such body. While such report or testimony is useful for
understanding the nature of the injuries the victim suffered, they are not indispensable proof of such
injuries or of the fact of death. Nor is the presentation of the murder weapons also indispensable since the
physical existence of such weapons is not an element of the crime of murder.
Here, the police authorities found the remains of Cortez at the place pointed to by accused
Aleman. That physical confirmation, coming after his testimony of the gruesome murder, sufficiently
establishes the corpus delicti of the crime. Of course, that statement must be admissible in evidence.
2.
There is no reason for it not to be. Confession to be admissible must be a) voluntary; b)
made with the assistance of a competent and independent counsel; c) express; and d) in writing.
These requirements were met here. A lawyer, not working with or was not beholden to the police, Atty.
Besinga, assisted accused Aleman during the custodial investigation. Officer Tabucon testified that he
saw accused Aleman, before the taking of his statement, conversing with counsel at the police station.
Atty. Besinga did not dispute this claim.
Aleman alleges torture as the reason for the execution of the confession. The appellate court is
correct in ruling that such allegation is baseless. It is a settled rule that where the defendant did not
present evidence of compulsion, where he did not institute any criminal or administrative action against
his supposed intimidators, where no physical evidence of violence was presented, all these will be
considered as indicating voluntariness. Here, although Aleman claimed that he bore torture marks on his
head, he never brought this to the attention of his counsel, his relatives, or the prosecutor who
administered his oath.
Accused Aleman claims, citing People v. Galit, that long questions followed by monosyllabic
answers do not satisfy the requirement that the accused is amply informed of his rights. But this does not
apply here. Tabucon testified that he spoke to Aleman clearly in the language he knew. Aleman, joined
by Atty. Besinga, even signed a certification that the investigator sufficiently explained to him his
constitutional rights and that he was still willing to give his statement.
Further, Aleman asserts that he was lacking in education and so he did not fully realize the
consequences of a confession. But as the CA said, no law or jurisprudence requires the police officer to
ascertain the educational attainment of the accused. All that is needed is an effective communication
between the interrogator and the suspect to the end that the latter is able to understand his rights. This
appears to have been done in this case.
Moreover, as the lower court noted, it is improbable that the police fabricated Alemans
confession and just forced him to sign it. The confession has details that only the person who committed
the crime could have possibly known. What is more, accused Datulaytas confession corroborate that of
Aleman in important details. Under the doctrine of interlocking confessions, such corroboration is
circumstantial evidence against the person implicated in it.
Custodial Investigation before Bantay Bayan Members
requires that the suspect be informed of his Expanded

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Miranda Rights; otherwise, the evidence obtained shall be
inadmissible in evidence.

PEOPLE OF THE PHILIPPINES VS. ANTONIO LAUGA, G.R. No.


186228, March 15, 2010
PEREZ, J.:
Consistent with the ruling of this Court in People v. Cabalquinto, the real name and the personal
circumstances of the victim, and any other information tending to establish or compromise her identity,
including those of her immediate family or household members, are not disclosed in this decision.
The Facts
In an Information dated 21 September 2000, the appellant was accused of the crime of
QUALIFIED RAPE allegedly committed as follows:
That on or about the 15th day of March 2000, in the evening, at Barangay xxx,
municipality of xxx, province of Bukidnon, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, being the father of AAA with lewd design,
with the use of force and intimidation, did then and there, willfully, unlawfully and
criminally have carnal knowledge with his own daughter AAA, a 13 year[s]old minor
against her will.
On 12 October 2000, appellant entered a plea of not guilty. During the pre-trial conference, the
prosecution and the defense stipulated and admitted: (a) the correctness of the findings indicated in the
medical certificate of the physician who examined AAA; (b) that AAA was only thirteen (13) years old
when the alleged offense was committed; and (c) that AAA is the daughter of the appellant. On trial,
three (3) witnesses testified for the prosecution, namely: victim AAA; her brother BBB; and one Moises
Boy Banting, a bantay bayan in the barangay. Their testimonies revealed the following:
In the afternoon of 15 March 2000, AAA was left alone at home. AAAs father, the appellant,
was having a drinking spree at the neighbors place. Her mother decided to leave because when appellant
gets drunk, he has the habit of mauling AAAs mother. Her only brother BBB also went out in the
company of some neighbors.
At around 10:00 oclock in the evening, appellant woke AAA up; removed his pants, slid inside
the blanket covering AAA and removed her pants and underwear; warned her not to shout for help while
threatening her with his fist; and told her that he had a knife placed above her head. He proceeded to
mash her breast, kiss her repeatedly, and inserted his penis inside her vagina.
Soon after, BBB arrived and found AAA crying. Appellant claimed he scolded her for staying
out late. BBB decided to take AAA with him. While on their way to their maternal grandmothers house,
AAA recounted her harrowing experience with their father. Upon reaching their grandmothers house,
they told their grandmother and uncle of the incident, after which, they sought the assistance of Moises
Boy Banting.
Moises Boy Banting found appellant in his house wearing only his underwear. He invited
appellant to the police station, to which appellant obliged. At the police outpost, he admitted to him that
he raped AAA because he was unable to control himself.
The following day, AAA submitted herself to physical examination. Dra. Josefa Arlita L. Alsula,
Municipal Health Officer of x x x, Bukidnon, issued the Medical Certificate, which reads:

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hyperemic vulvae with 4 oclock & 6 oclock freshly lacerated hymen; (+)
minimal to moderate bloody discharges 2 to an alleged raping incident
On the other hand, only appellant testified for the defense. He believed that the charge against
him was ill-motivated because he sometimes physically abuses his wife in front of their children after
engaging in a heated argument, and beats the children as a disciplinary measure. He went further to
narrate how his day was on the date of the alleged rape.
The lone assignment of error in the appellants brief is that, the trial court gravely erred in finding
him guilty as charged despite the failure of the prosecution to establish his guilt beyond reasonable doubt,
because: (1) there were inconsistencies in the testimonies of AAA and her brother BBB; (2) his
extrajudicial confession before Moises Boy Banting was without the assistance of a counsel, in violation
of his constitutional right; and (3) AAAs accusation was ill-motivated.
HELD
Appellant contests the admissibility in evidence of his alleged confession with a bantay bayan
and the credibility of the witnesses for the prosecution.
Admissibility in Evidence of an Extrajudicial Confession before a
Bantay Bayan
Appellant argues that even if he, indeed, confessed to Moises Boy Banting, a bantay bayan, the
confession was inadmissible in evidence because he was not assisted by a lawyer and there was no valid
waiver of such requirement.
The case of People v. Malngan is the authority on the scope of the Miranda doctrine provided for
under Article III, Section 12(1) and (3) of the Constitution. In Malngan, appellant questioned the
admissibility of her extrajudicial confessions given to the barangay chairman and a neighbor of the
private complainant. This Court distinguished. Thus:
Arguably, the barangay tanods, including the Barangay Chairman, in this
particular instance, may be deemed as law enforcement officer for purposes of
applying Article III, Section 12(1) and (3), of the Constitution. When accusedappellant was brought to the barangay hall in the morning of 2 January 2001, she was
already a suspect, actually the only one, in the fire that destroyed several houses x x x.
She was, therefore, already under custodial investigation and the rights guaranteed by x x
x [the] Constitution should have already been observed or applied to her. Accusedappellants confession to Barangay Chairman x x x was made in response to the
interrogation made by the latter admittedly conducted without first informing
accused-appellant of her rights under the Constitution or done in the presence of counsel.
For this reason, the confession of accused-appellant, given to Barangay Chairman x x x,
as well as the lighter found x x x in her bag are inadmissible in evidence against her x x
x.
[But such does] not automatically lead to her acquittal. x x x [T]he constitutional
safeguards during custodial investigations do not apply to those not elicited through
questioning by the police or their agents but given in an ordinary manner whereby the
accused verbally admits x x x as x x x in the case at bar when accused-appellant admitted
to Mercedita Mendoza, one of the neighbors x x x [of the private complainant].
(Emphasis supplied)
Following the rationale behind the ruling in Malngan, this Court needs to ascertain whether or not
a bantay bayan may be deemed a law enforcement officer within the contemplation of Article III,
Section 12 of the Constitution.

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In People of the Philippines v. Buendia, this Court had the occasion to mention the nature of a
bantay bayan, that is, a group of male residents living in [the] area organized for the purpose of
keeping peace in their community[,which is] an accredited auxiliary of the x x x PNP.
Also, it may be worthy to consider that pursuant to Section 1(g) of Executive Order No. 309
issued on 11 November 1987, as amended, a Peace and Order Committee in each barangay shall be
organized to serve as implementing arm of the City/Municipal Peace and Order Council at the Barangay
level. The composition of the Committee includes, among others: (1) the Punong Barangay as
Chairman; (2) the Chairman of the Sangguniang Kabataan; (3) a Member of the Lupon Tagapamayapa;
(4) a Barangay Tanod; and (5) at least three (3) Members of existing Barangay-Based Anti-Crime or
neighborhood Watch Groups or a Non Government Organization Representative well-known in his
community.
This Court is, therefore, convinced that barangay-based volunteer organizations in the
nature of watch groups, as in the case of the bantay bayan, are recognized by the local
government unit to perform functions relating to the preservation of peace and order at the
barangay level. Thus, without ruling on the legality of the actions taken by Moises Boy Banting, and the
specific scope of duties and responsibilities delegated to a bantay bayan, particularly on the authority to
conduct a custodial investigation, any inquiry he makes has the color of a state-related function and
objective insofar as the entitlement of a suspect to his constitutional rights provided for under
Article III, Section 12 of the Constitution, otherwise known as the Miranda Rights, is concerned.
We, therefore, find the extrajudicial confession of appellant, which was taken without a counsel,
inadmissible in evidence.
Be that as it may, We agree with the Court of Appeals that the conviction of the appellant was not
deduced solely from the assailed extrajudicial confession but from the confluence of evidence showing
his guilt beyond reasonable doubt.
Voluntary and spontaneous confession of a suspect who is
already under custody of the police is admissible in evidence
even in the absence of counsel.
PEOPLE OF THE PHILIPPINES VS. VICTOR VILLARINO, G.R.NO. 185012,
MARCH 5, 2010
FACTS:
On April 28, 1995, BBB, together with her 10-year old daughter AAA and her younger son CCC
went to the house of their relative in Barangay D to attend the fiesta to be held the next day.
On even date, from 7:00 oclock to 9:00 oclock in the evening, SPO4 Jesus Genoguin (SPO4 Genoguin)
was in his house in Barangay D entertaining his guests, one of whom was appellant. While personally serving
food and drinks to appellant, SP04 Genoguin noticed that the latter was wearing a bracelet and a necklace with
pendant. Appellant even allowed SPO4 Genoguin to put on the bracelet.
On April 29, 1995, at around 9:00 oclock in the morning, the appellant who was on his way to Barangay
D, passed by the house of Rodrigo Olaje (Rodrigo). At that time, Rodrigo noticed appellant wearing a bracelet
and a necklace with pendant. He was also wearing a white sleeveless t-shirt (sando).
At 11:00 oclock in the morning, appellant was at the house of BBBs aunt. BBB offered him food.
BBB also noticed that he was dressed in a white sando and that he wore jewelry consisting of a bracelet and a
necklace with pendant. At 1:00 oclock in the afternoon, he was seen wearing the same sando and jewelry while
drinking at the basketball court in Barangay D.

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At around 3:00 oclock in the afternoon, BBB told AAA to go home to Barangay D1 to get a t-shirt
for her brother. AAA obeyed. However, she no longer returned. While BBB was anxiously waiting for
AAA in the house of her aunt in Barangay D, she received information that a dead child had been found in
Barangay D1. She proceeded to the area where she identified the childs body as that of her daughter, AAA.
At around 4:00 oclock in the afternoon, Rodrigo, who was the barangay captain of Barangay D1
received information that a dead child was found in their barangay. He instructed a barangay tanod to inform the
police about the incident. Thereafter, Rodrigo proceeded to the specified area together with other barangay tanods.
SPO4 Genoguin also went to the crime scene after being informed by his commander. Upon arrival, he saw
the corpse of a little girl behind a big boulder that was about 10 meters away from the trail junction of the
barangays. People had gathered seven to 10 meters away from the dead body, but no one dared to approach.
AAAs lifeless body lay face up with her buttocks on top of a small rock. Her body was slanted
downward with her legs spread apart and dangling on the sides of the small boulder. She was no longer wearing
short pants and panty, and blood oozed from her vagina. Wrapped around her right hand, which was positioned
near her right ear, was a white sando.
AAAs panty was found a meter away from her body, while her short pants was about two meters farther.
A bracelet and a pendant were also recovered from the crime scene. Rodrigo and BBB identified these pieces of
jewelry as those seen on the appellant. They also identified the sando on AAAs arm as the appellants. Thus, the
hunt for appellant began.
On the same day, the appellant was found in the house of Aurelia Susmena near the seashore of Barangay
D1. He was drunk and violent. He resisted arrest and had to be bodily carried to the motorboat that would take
him to the municipal building in Almagro, Samar. The arresting team made the appellant take off his clothes since
they were wet. When he complied, his briefs revealed bloodstains.
On May 2, 1995, the police brought appellant to Calbayog City for medical examination since he had
scratches and abrasions on his body. While waiting for a boat ride at 4:00 oclock in the morning, the police team
took a coffee break. SPO4 Genoguin was momentarily left alone to guard the appellant. During this short period,
the appellant voluntarily admitted to SPO4 Genoguin that he committed the crime charged. He also told SPO4
Genoguin that he could keep the pendant and bracelet if he would retrieve the t-shirt and throw it into the sea.
SPO4 Genoguin rejected the appellants offer and reminded him of his right to a counsel and that everything the
appellant said could be used against him in court. Unperturbed, the appellant reiterated his offer.
When they boarded the motorboat, the appellant repeatedly offered to give SPO4 Genoguin P20,000.00 if
he would throw the sando into the sea. However, the police officer ignored the offer and instead reported the matter
to the Chief of Police of Almagro, SPO4 Basilio M. Yabao. Later, the appellants mother, Felicidad Mabute y
Legaspi, asked him not to testify against her son.
At the Calbayog District Hospital, Senior Resident Physician Dr. Jose V. Ong, found that appellants body
had 10 healed abrasions and two linear abrasions or scratches, particularly, on his breast, knees, as well as right and
left ears, that could have been caused by fingernails.
On August 3, 1995, an Information was filed charging appellant Victor Villarino y Mabute with the special
complex crime of rape with homicide. The Information contained the following accusatory allegations:
That on or about the 29th day of April, 1995, at about 5:00 oclock in the afternoon, at
Barangay D1, Municipality of Almagro, Province of Samar, Philippines, and within the
jurisdiction of this Honorable Court, the above named accused, with lewd design, by means of
force, violence and intimidation, did then and there, willfully, unlawfully and feloniously have
carnal knowledge against a minor ten (10) years [sic], AAA, without the latters consent and
against her will, and thereafter, with deliberate intent to kill, did then and there willfully,
unlawfully and feloniously inflict upon the said AAA mortal wounds on x x x different parts of
her body, which caused her untimely death.

216
CONTRARY TO LAW.
Appellant pleaded not guilty to the crime charged. After the termination of the pre-trial conference, trial
ensued.
The RTC found him guilty beyond reasonable doubt of the complex crime of Rape with Homicide and
sentenced to Death.
ISSUE:
Is accused-appellants voluntary confession to SPO4 Genoguin admissible in evidence?
HELD:
In the instant case, appellant voluntarily confessed to raping and killing AAA to SPO4 Genoguin. He
even offered to give the pieces of jewelry to the latter if his sando is thrown into the sea. The appellant did not deny
this accusation nor assail its truthfulness.
When appellant confessed to the crime, he was alone with SPO4 Genoguin, and no force or intimidation
was employed against him. The confession was spontaneously made and not elicited through questioning. The
trial court did not, therefore, err in holding that compliance with the constitutional procedure on custodial
interrogation is not applicable in the instant case.
In People v. Dy, we held that:
Contrary to the defense contention, the oral confession made by the Accused to Pat.
Padilla that he had shot a tourist and that the gun he had used in shooting the victim was in his
bar which he wanted surrendered to the Chief of Police (t.s.n., October 17, 1984, pp. 6-9), is
competent evidence against him. The declaration of an accused acknowledging his guilt of the
offense charged may be given in evidence against him (Sec. 29, Rule 130, Rules of Court). It may
in a sense be also regarded as part of the res gestae. The rule is that, any person, otherwise
competent as a witness, who heard the confession, is competent to testify as to the substance of
what he heard if he heard and understood all of it. An oral confession need not be repeated
verbatim, but in such a case it must be given in substance (23 C.J.S. 196, cited in People v. Tawat,
G.R. No. 62871, May 25, 1985, 129 SCRA 431).
What was told by the Accused to Pat. Padilla was a spontaneous statement not elicited
through questioning, but given in an ordinary manner. No written confession was sought to be
presented in evidence as a result of formal custodial investigation. (People v. Taylaran, G.R. No.
L-19149, October 31, 1981, 108 SCRA 373). The Trial Court, therefore, cannot be held to have
erred in holding that compliance with the constitutional procedure on custodial interrogation is not
applicable in the instant case, as the defense alleges in its Error VII.
At any rate, even without his confession, appellant could still be convicted of the complex crime of rape
with homicide. The prosecution established his complicity in the crime through circumstantial evidence which
were credible and sufficient, and led to the inescapable conclusion that the appellant committed the complex crime
of rape with homicide. When considered together, the circumstances point to the appellant as the culprit.
2. Guidelines for police investigation
Read:
1.Escobedo vs. Illinois, 378 US 478
2. Miranda vs. Arizona, 384 US 436

217
3. P. vs. Duero, 104 SCRA 379
2-a. Duties of the Police or Arresting Officers
Read:
1. P. vs. Matos-Viduya, Sept. 11, 1990
1-a. P vs. Nicandro, 141 SCRA 289
2. P vs. Duhan, 142 SCRA 100
3. P vs. Caguioa, 95 SCRA 2
4. P vs. Ramos, 122 SCRA 312
3. To be informed of the Right to remain silent; cases in particular
Read:
1. Constitutional right to remain silent,104 SCRA
391
1-a. People vs. Marcos Jimenez, Dec. 10, 1991
Extrajudicial confession; counsel of choice
Right to counsel during custodial investigation; while making an extrajudicial confession
PEOPLE VS. PATUNGAN, 354 SCRA 413
The accused was under coercive and uncounselled custodial investigation by the police
without a lawyer for 2 and a half days . Then, he was brought to the IBP Office where a lawyer
assisted him in his extrajudicial confession.
We are inclined to believe that when he was brought to the IBP Office, his body and his
will were in no position to raise any objection much less to complaint to the IBP lawyer about
what he has gone through. In fact, the IBP lawyer was working on an appeal in another case while
the extrajudicial confession was being taken.
The mere presence of a lawyer is not sufficient compliance with the constitutional
requirement of assistance of counsel. Assistance of counsel must be effective, vigilant and
independent. A lawyer who could just hear the investigation going on while working on another
case hardly satisfies the minimum requirements of effective assistance of counsel. Not only was
the accused subjected to custodial investigation without counsel, he was likewise denied effective
assistance of counsel during the taking of his extra-judicial confession.
PEOPLE V. JIMENEZ
G.R.No. 82604. December 10, 1991
NARVASA, J.:
FACTS:
On August 13, 1985, police authorities, acting upon a report, came upon the
corpse of Pelagio Jimenez below a cliff near a balite tree. The police investigators learned that
Marcos, the son of the deceased Pelagio Jimenez told his mother that his father had not come
home the previous night: that the search for the deceased, who was living separately from them,
commenced a day earlier but it was not until the morning of the following day, August 13, 1985,
that deceased Pelagio was finally found dead. They also learned from the persons they
interviewed of circumstances that drew their suspicion to the son, Marcos and Robert, such as;

218
the bathing at the artesian well "as if washing away stains of blood"; the deceased's violent
quarrels with his children and occasions that he had been boxed and hit by his children. The
police had invited the deceased's widow and her sons for questioning about the killing. A draft of
the confession was prepared by the investigating officer but Marcos was not able to sign the same
due to the absence of the judge before whom it is supposed to be sworn and signed. Marcos
agreed to come back and sign his statement, but upon his return, he, assisted by a former judge
whose presence was requested by the police authorities, refused to sign his statement.
Subsequently, an information for parricide was filed against the widow and her sons, Marcos,
Robert, and Wilkins. In an order dated July 21, 1986, the trial court absolved the widow and
Wilkins of any participation in the filling for lack of proof. On December 12. 1986, the trial court
found Marcos and Robert guilty beyond reasonable doubt of the crime of parricide, noting that
the unsigned confession is admissible in evidence inasmuch as evidence aliunde corroborated
such confession. Both accused contest such ruling. Hence this appeal.
ISSUE:
Is the extrajudicial confession of Marcos admissible in evidence?
HELD:
No. Decision reversed.
Section 12 (1), Article III OF THE 1987 Constitution declares that a person being
investigated by the police as a suspect in an offense has the right, among others, (1) to have a
competent and independent counsel of his own choice and if he cannot afford the services of
counsel, he must be provided with one; and that (2) said right cannot be waived except in writing
and in the presence of counsel.
The lawyer who assists the suspect under custodial interrogation should be
of the latter's own choice, not one foisted on him by the police investigators or other parties.
In this case, the former judge whose assistance was requested by the police was evidently
not of Marcos Jimenez' own choice; she was the police officers' own choice; she did not ask
Marcos if was is willing to have her represent him. This is not the mode of solicitation of
legal assistance contemplated by the constitution.
Furthermore, the former judge was not present when Marcos was being
interrogated by the police. While she asked him if he had voluntarily given the statements
contained in the typewritten document, this is far from being substantial compliance with the
constitutional duty of police investigators during custodial interrogation.
The typewritten confession is unsigned and was in fact expressly rejected by
Marcos. Hence, the supposed waiver made therein of his constitutional right to counsel of his
own choice.
Neither can the confession prejudice his co-accused, his brother Robert, not only
because it was obtained in violation of the constitution but also because of the principle of res
inter alios acta.
The interrogation of Marcos Jimenez having been conducted without the
assistance of counsel, and no valid waiver of such right to counsel have been made, not only the
confession but also any admissible obtained in the course thereof are inadmissible against him or
his co accused. In view of the inadmissibility in evidence of the confession, the rest of the
evidence of the prosecution is inadequate to overcome the presumption of innocence raised by the
fundamental law in favor of both the accused.
Extrajudicial confession without the assistance of counsel, inadmissible as evidence; exception

219
PEOPLE VS. PANFILO CABILES, 284 SCRA 199; PEOPLE VS. TAN, 286 SCRA 207
Melo, J.
Even if the confession of the accused speaks of the truth, if it was made without
the assistance of counsel, it is inadmissible in evidence regardless of the absence of coercion or
even if it was voluntarily given.
In order that a confession is admissible, the following requisites must be present:
a.
b.
c.
d.

the confession must be voluntary;


the confession must be made with the assistance of a competent and independent counsel;
the confession must be express; and
the confession must be in writing.
The above requirements, however, are not applicable when the suspect makes an
spontaneous statement, not elicited through questioning by the authorities, BUT GIVEN IN AN
ORDINARY MANNER WHEREBY THE ACCUSED ORALLY ADMITTED HAVING
COMMITTED THE CRIME. This was the decision of the Supreme Court in the case of PEOPLE
VS. ANDAN, March 3, 1997 when the accused made a voluntary and verbal confession to the
Municipal Mayor that he committed the crime imputed to him. As such, his uncounselled
confession is admissible in evidence.
PEOPLE VS. OBRERO, 332 SCRA 190
Mendoza, J.
There are two (2) kinds of involuntary or coerced confessions under Art. III, Section 12
of the Constitution. These are:

a. confession which are the product of third degree methods such as torture, force, violence, threat,
intimidation; and
b. those which are given without the benefit of Miranda Warnings.
There is no compliance of the constitutional requirement of competent and independent
counsel to assist an accused during custodial investigation when the accused was assisted by the
Station Commander of the WPD, Atty. De los Reyes, while being investigated by other policemen
of the same police station because the interest of the police is naturally adverse to the accused. In
fact, the SC in the case of PEOPLE VS. JANUARIO, 267 SCRA 608 held that a lawyer applying
for a position in the NBI could not validly assist an accused being investigated then by the NBI.
1-b. P. vs. Aspili, November 21, 1990
1-c. People vs. Judge Ayson, 175 SCRA 216 (Confession made to the officials
of Philippine Airlines during an investigation is admissible in evidence despite the fact that
he was not informed of his rights during custodial investigations since said officials are not
bound by the requirements of Section 12, Art. III of the Constitution)
1-d. P. vs. Pinlac, 165 SCRA 675
1-e. People vs. Loveria, 187 SCRA 47
1-f. Gamboa vs. Judge Cruz, 162 SCRA 675
2. P. vs. Galit, 135 SCRA 465
3. P vs. Alegre, 94 SCRA 109
4. Draculan vs. Donato, 85 SCRA 266
5. P. vs. Borromeo, June 29,l983
6. P vs. Camalog, GR No. 77116, January 31, 1989
(Including the duty of Police Officers in
connection with said right)

220
7. P vs. Cui, Jr., 162 SCRA 220
3-a. How about if the accused gives an spontaneous statement before he could be advised of his
right to remain silent?
Read:
Aballe vs. People, 183 SCRA 196
3-b. When shall the constitutional rights of the
During police line-up?

accused as mentioned above demandable?

Read:

1. P vs. Usman Hassan, 157 SCRA 261


2. Gamboa vs. Judge Cruz, 162 SCRA 642
3. DE LA TORRE VS. CA, 294 SCRA 196
4. PEOPLE VS. HATTON
The right to counsel;
PEOPLE VS. JEREZ, 285 SCRA 393
A lawyer provided by the investigators to the accused during the custodial investigation is
deemed engaged by the accused where he never raised any objection against the formers
appointment during the course of the investigation AND THE ACCUSED THEREAFTER
SUBSCRIBES TO THE VERACITY OF HIS STATEMENT BEFORE THE SWEARING
OFFICER.
(NOTE: In the case of PEOPLE VS. JUANERIO, February 7, 1997, the SC held that a
lawyer who was at the NBI Office applying for a position therein and who was appointed as
counsel for a suspect being then investigated by the NBI could not be considered as the
competent and independent counsel referred to in the Constitution especially so that later on, said
lawyer was appointed by the NBI as one of its agents.)
The next case is very important. It diminishes the right to counsel during
custodial investigation and makes the work of the investigator easier to make the confession of a
suspect admissible as evidence. It is obviously a reversal of the People vs. Juanerio ruling.

RIGHT TO A COMPETENT AND INDEPENDENT


COUNSEL OF HIS OWN CHOICE. This case is different
form the previous doctrines.
PEOPLE OF THE PHILIPPINES VS. DOMINGO REYES, ET AL., G.R. No. 178300,
March 17, 2009
CHICO-NAZARIO, J.:
On 11 August 1999, an Information 193[4] was filed before the RTC charging appellants
with the special complex crime of kidnapping for ransom with homicide. The accusatory portion
of the information reads:
The undersigned State Prosecutor of the Department of Justice hereby accuses Domingo
Reyes y Paje, Alvin Arnaldo y Avena and Joselito Flores y Victorio of the crime of kidnapping for
193[4]

Records, pp. 42-43.

221
ransom with homicide defined and penalized under Article 267 of the Revised Penal Code, as
amended, committed as follows:
That on or about 11:00 p.m. on July 16, 1999, at Sitio Lambakin, barangay Sto. Cristo,
San Jose del Monte, Bulacan, Philippines and within the jurisdiction of this Honorable Court, the
above-named accused conspiring, confederating and mutually helping one another and grouping
themselves together with Juanito Pataray y Cayaban, Federico Pataray y Cabayan and Rommel
Libarnes y Acejo, who are still at large, did then and there willfully, unlawfully and feloniously,
by means of force and intimidation and with use of firearms, carry away and deprive Robert Yao,
Yao San, Chua Ong Ping Sim, Raymond Yao, Ronald Matthew Yao, Lennie Yao, Charlene
Yao, Jona Abagatnan ang Josephine Ortea against their will and consent on board their Mazda
MVP van for the purpose of extorting money in the amount of Five Million Pesos
(P5,000,000.00), that during the detention of Chua Ong Ping Sim and Raymong Yao, said
accused with intent to kill, willfully and unlawfully strangled Chua Ong Ping Sim and
Raymond Yao to death to the damage and prejudice of their heirs in such amount as may be
awarded to them by this Honorable Court.
The prosecution presented as witnesses Jona Abagatnan (Abagatnan), Robert Yao
(Robert), Yao San, Police Officer 3 (PO3) Alex Alberto, PO3 Roberto Jabien, Atty. Florimond
Rous (Atty. Rous) and Atty. Carlo Uminga (Atty. Uminga). Their testimonies, taken together,
attest to the following:
The Yao family is composed of Yao San (father), Chua Ong Ping Sim (mother), Robert
and Raymond (children), Lenny (daughter-in-law, wife of Robert), Matthew and Charlene
(grandchildren), and Jona Abagatnan and Josephine Ortea (housemaids). The Yao family owns
and operates a poultry farm in Barangay Santo Cristo, San Jose del Monte, Bulacan.
On 16 July 1999, at about 11:00 p.m., the Yao family, on board a Mazda MVP van,
arrived at the their poultry farm in Barangay Sto. Cristo, San Jose del Monte, Bulacan. Yao San
alighted from the van to open the gate of the farm. At this juncture, appellant Reyes and a certain
Juanito Pataray (Pataray) approached, poked their guns at Yao San, and dragged him inside the
van. Appellant Reyes and Pataray also boarded the van. Thereupon, appellants Arnaldo and
Flores, with two male companions, all armed with guns, arrived and immediately boarded the
van. Appellant Flores took the drivers seat and drove the van. Appellants Reyes and Arnaldo
and their cohorts then blindfolded each member of the Yao family inside the van with packaging
tape.194[6]
After about 30 minutes of traveling on the road, the van stopped. Per order of appellants
and their cohorts, Chua Ong Ping Sim, Robert, Raymond and Jona Abagatnan (Abagatnan)
stepped out of the van with appellants Reyes and Arnaldo, Pataray and one of their male
companions.195[7] Appellant Flores, with the other male companion, drove the van with the
remaining members of the Yao family inside the vehicle. 196[8]
Later, the van stopped again. Appellant Flores and his male companion told Yao San to
produce the amount of five million pesos (P5,000,000.00) as ransom in exchange for the release
of Chua Ong Ping Sim, Robert, Raymond and Abagatnan. Thereafter, appellant Flores and his
male companion left the van and fled; while Yao San, Lenny, Matthew, Charlene and Josephine
remained inside the van. Upon sensing that the kidnappers had already left, Yao San drove the
van towards the poultry farm and sought the help of relatives. 197[9]

194[6]
195[7]
196[8]
197[9]

TSN, 26 October 1999, pp. 3-14; TSN, 11 August 2000, pp. 3-7; TSN, 21 September 2000, pp. 2TSN, 26 October 1999, pp. 16-17; TSN, 11 August 2000, p. 7.
Records, p. 34.
Id.

8.

222
Meanwhile, Chua Ong Ping Sim, Robert, Raymond and Abagatnan were taken on foot by
appellants Reyes and Arnaldo, Pataray and one male companion to a safe-house situated in the
mountainous part of San Jose Del Monte, Bulacan where they spent the whole night. 198[10]
On the morning of the following day, at around 4:00 a.m., appellants and their cohorts
tried to contact Yao San regarding the ransom demanded, but the latter could not be reached.
Thus, appellants instructed Abagatnan to look for Yao San in the poultry farm. Appellants Reyes
and Arnaldo and one male companion escorted Abagatnan in proceeding to the poultry farm.
Upon arriving therein, Abagatnan searched for Yao San, but the latter could not be found.
Appellants Reyes and Arnaldo told Abagatnan to remind Yao San about the ransom demanded.
Thereafter, appellants Reyes and Arnaldo and their male companion left Abagatnan in the poultry
farm and went back to the safe-house.199[11]
In the safe-house, appellants told Robert that they would release him so he could help
Abagatnan in locating Yao San. Robert and appellants left the safe-house, and after 30 minutes of
trekking, appellants abandoned Robert. Robert then ran towards the poultry farm. Upon arriving
at the poultry farm, Robert found Yao San and informed him about the ransom demanded by the
appellants. Robert also told Yao San that Chua Ong Ping Sim and Raymond were still held by
appellants and their cohorts.200[12]
On 18 July 1999, appellants called Yao San through a cellular phone and demanded the
ransom of P5 million for Chua Ong Ping Sim and Raymond. Yao San acceded to appellants
demand. Appellants allowed Yao San to talk with Chua Ong Ping Sim. 201[13]
On the morning of 19 July 1999, appellants again called Yao San via a cellular phone and
threatened to kill Chua Ong Ping Sim and Raymond because of newspaper and radio reports
regarding the incident. Yao San clarified to appellants that he did not report the incident to the
police and also pleaded with them to spare the life of Chua Ong Ping Sim and Raymond.
Appellants then instructed Yao San to appear and bring with him the ransom of P5 million at 3:00
p.m. in the Usan dumpsite, Litex Road, Fairview, Quezon City. Yao San arrived at the designated
place of the pay-off at 4:00 p.m., but none of the appellants or their cohorts showed up. Yao San
waited for appellants call, but none came. Thus, Yao San left. 202[14]
On 23 July 1999, the corpses of Chua Ong Ping Sim and Raymond were found at the La
Mesa Dam, Novaliches, Quezon City.203[15] Both died of asphyxia by strangulation.204[16]
On 26 July 1999, appellant Arnaldo surrendered to the Presidential Anti-Organized Crime
Task Force (PAOCTF) at Camp Crame, Quezon City. Thereupon, appellant Arnaldo, with the
assistance of Atty. Uminga, executed a written extra-judicial confession narrating his participation
in the incident. Appellant Arnaldo identified appellants Reyes and Flores, Pataray and a certain
Tata and Akey as his co-participants in the incident. Appellant Arnaldo also described the
physical features of his cohorts and revealed their whereabouts. 205[17]
Subsequently, appellant Reyes was arrested in Sto. Cristo, San Jose del Monte, Bulacan.
Thereafter, appellants Arnaldo and Reyes were identified in a police line-up by Yao San, Robert
and Abagatnan as their kidnappers.206[18]

198[10]
199[11]
200[12]
201[13]
202[14]
203[15]
204[16]
205[17]
206[18]

TSN, 26 October 1999, pp. 16-23; TSN, 7 December 1999, pp. 2-5; TSN, 11 August 2000, pp. 8TSN, 7 December 1999, pp. 4-7.
Id. at 7-8; TSN, 11 August 2000, pp. 10-12.
Records, p. 35.
Id; TSN, 11 August 2000, pp. 12-14.
TSN, 7 December 1999, pp. 8-9; TSN, 11 August 2000, pp. 14-15; Records, p. 35.
Records, pp. 15-17.
Id. at 5, 8, 12, & 24-28.
Id. at 13-14 & 33, 35, & 38.

9.

223
On 10 August 1999, agents of the PAOCTF arrested appellant Flores in Balayan,
Batangas. Afterwards, appellant Flores, with the assistance of Atty. Rous, executed a written
extra-judicial confession detailing his participation in the incident. Appellant Flores identified
appellants Reyes and Arnaldo, Pataray and a certain Tata and Akey as his co-participants in the
incident. Appellant Flores was subsequently identified in a police line-up by Yao San, Robert and
Abagatnan as one of their kidnappers.207[19]
For its part, the defense presented the testimonies of appellants, Marina Reyes, Irene
Flores Celestino, Wilfredo Celestino, Jr., Rachel C. Ramos, and Isidro Arnaldo. Appellants
denied any liability and interposed alibis and the defense of frame-up. Their testimonies, as
corroborated by their witnesses, are as follows:
Appellant Arnaldo testified that he was an asset of the PAOCTF. He narrated that on 25
July 1999, while he was at the tricycle terminal of Brgy. Sto. Cristo, San Jose del Monte,
Bulacan, a police officer named Liwanag of the PAOCTF approached and invited him to go to
Camp Crame to shed light on a kidnapping case allegedly committed by a certain Brgy. Captain
Ramos and by members of the Aguirre and Bautista families. He accepted the invitation.
Subsequently, he proceeded to Camp Crame and met therein Colonel Cesar Mancao III (Colonel
Mancao) of the PAOCTF. Colonel Mancao told him that the PAOCTF would arrest Brgy. Capt.
Ramos and certain persons named Gerry Bautista and Dadie Bautista. Colonel Mancao instructed
him to identify said persons as responsible for the kidnapping of the Yao family. He refused to do
so because he feared Brgy. Capt. Ramos. The day after, Colonel Mancao called appellant Arnaldo
to his office. Upon arriving thereat, the latter saw Yao San. Yao San promised him that if their
kidnappers would be apprehended through his cooperation, he would give him P500,000.00. He
accepted Yao Sans offer under the condition that he would identify a different set of suspects.
Later, Colonel Mancao gave him P30,000.00.208[31]
Subsequently, he pointed to appellants Reyes and Flores as his cohorts in kidnapping the
Yao family. He implicated appellants Reyes and Flores to get even with them, since the two had
previously mauled him after he sold their fighting cocks and failed to give them the proceeds of
the sale.209[32]
He denied having met with Atty. Uminga. He was not assisted by the latter when he was
forced by the PAOCTF to make a written extra-judicial confession on the kidnapping of the Yao
family. Further, he claimed that while he was under the custody of PAOCTF, a certain Major
Paulino utilized him as a drug pusher. Upon failing to remit the proceeds of the drug sale, he was
beaten up by PAOCTF agents and thereafter included as accused with appellants Reyes and
Flores for the kidnapping of the Yao family.210[33]
On the other hand, appellant Reyes testified that he slept in his house with his family
from 6:00 p.m. of 16 July 1999 until the morning of the next day; that on the early morning of 26
July 1999, five policemen barged into his house and arrested him; that the policemen told him
that he was a suspect in the kidnapping of the Yao family; that he was mauled by the policemen
outside his house; that the policemen forcibly brought him to Camp Crame, where he was
subsequently tortured; that he knew the Yao family because he worked as a carpenter in the
familys poultry farm at Brgy. Sto. Cristo, San Jose del Monte, Bulacan; that he had no
involvement in the kidnapping of the family; and that appellant Arnaldo implicated him in the
kidnapping of the family because appellant Arnaldo held a grudge against him. 211[34]
For his part, appellant Flores testified that he stayed in his sisters house at Antipolo City
from 12 July 1999 up to 30 July 1999; that he went to her house on 12 July 1999 because it was
207[19]
208[31]
209[32]
210[33]
211[34]

Id. at 46-48, 63-64 & 302-306.


TSN, 7 June 2001, pp. 3-21.
TSN, 10 July 2001, pp. 3-6.
Id. at 10-16; TSN, 21 August 2001, pp. 3-14.
TSN, 6 March 2001, pp. 3-10.

224
the birthday of her child; that he worked as a construction worker during his stay in his sisters
house; that he was arrested in Batangas and thereafter brought to Camp Crame, where he was
beaten up by policemen for refusing to admit involvement in the kidnapping of the Yao family;
that after three days of beating, he was forced to sign a document which he later found out to be a
written extra-judicial confession; that he never met nor did he know Atty. Rous; that he knew the
Yao family because he lived near the familys poultry farm, and he used to work therein as a
welder; that he had no participation in the kidnapping of the family; and that appellant Arnaldo
implicated him in the kidnapping of the family because he and appellant Reyes had mauled
appellant Arnaldo several years ago.212[35]
The defense proffered documentary and object evidence to buttress their foregoing
claims, to wit: (1) prayer booklet of appellant Arnaldo (Exhibit 1 for appellant Arnaldo); 213[36] (2)
calling card of Colonel Mancao (Exhibit 2 for appellant Arnaldo); 214[37] and (3) pictures allegedly
showing appellant Flores working as a carpenter in Antipolo City (Exhibits 1 & 2 for appellant
Flores).215[38]
After trial, the RTC rendered a Decision dated 26 February 2002 convicting appellants of
the special complex crime of kidnapping for ransom with homicide and sentencing each of them
to suffer the supreme penalty of death. Appellants were also ordered to pay jointly and severally
the Yao family P150,000.00 as civil indemnity, P500,000.00 as moral damages and the costs of
the proceedings. The dispositive portion of the RTC Decision reads:
WHEREFORE, finding herein three (3) accused DOMINGO REYES y PAJE, ALVIN
ARNALDO y AVENA, and JOSELITO FLORES y VICTORIO guilty as principals beyond
reasonable doubt of the crime of KIDNAPPING FOR RANSOM WITH (DOUBLE) HOMICIDE
as charged, they are hereby sentenced each to suffer the supreme penalty of DEATH as mandated
by law, to jointly and severally indemnify the heirs of deceased Chua Ong Ping Sim and
Raymond Yao in the amount of One Hundred Fifty Thousand Pesos (P150,000.00), and all the
private offended parties or victims, including the heirs of the deceased, in the amount of Five
Hundred Thousand Pesos (P500,000.00) as moral damages, subject to the corresponding filing
fee as a first lien, and to pay the costs of the proceedings. 216[39]
By reason of the death penalty imposed on each of the appellants, the instant case was
elevated to us for automatic review. However, pursuant to our ruling in People v. Mateo,217[40] we
remanded the instant case to the Court of Appeals for proper disposition.
On 14 August 2006, the Court of Appeals promulgated its Decision affirming with
modifications the RTC Decision. The appellate court reduced the penalty imposed by the RTC on
each of the appellants from death penalty to reclusion perpetua without the possibility of parole.
It also decreased the amount of civil indemnity from P150,000.00 to P100,000.00. Further, it
directed appellants to pay jointly and severally the Yao family P100,000.00 as exemplary
damages. The fallo of the Court of Appeals decision states:
WHEREFORE, premises considered, the Decision of the Regional Trial Court of
Malolos, Bulacan, Branch 12, dated February 26, 2002, in Criminal Case No. 1611-M-99
convicting accused-appellants of the crime of Kidnapping For Ransom with (Double) Homicide,
is hereby AFFIRMED with MODIFICATIONS in that:
1)
perpetua;
212[35]
213[36]
214[37]
215[38]
216[39]
217[40]

accused-appellants are instead sentenced to suffer the penalty of reclusion

TSN, 24 May 2001, pp. 2-9.


Records, Volume VI, Index of Exhibits.
Id.
Records, p. 357.
CA rollo, p. 61.
G.R. Nos. 147678-87, 7 July 2004, 433 SCRA 640.

225
2)

the award of civil indemnity ex delicto is hereby reduced to P100,000; and

3)
accused-appellants are further ordered to pay private complainants the amount of
P100,000.00 as exemplary damages.218[41]
Appellants filed a motion for reconsideration of the Court of Appeals Decision but this
was denied. Hence, appellants filed their Notice of Appeal on 25 August 2006.
One of the main issues raised is:
THE TRIAL COURT ERRED IN GIVING WEIGHT AND CREDENCE TO THE EXTRAJUDICIAL CONFESSIONS OF APPELLANT ARNALDO AND APPELLANT FLORES;
Appellant Reyes claims that his alleged participation in the kidnapping of the Yao family
was based solely on the written extra-judicial confessions of appellants Arnaldo and Flores. He
maintains, however, that said extra-judicial confessions are inadmissible in evidence, because
they were obtained in violation of his co-appellants constitutional right to have an independent
counsel of their own choice during custodial investigation. Appellant Reyes alleges that the
agents of the PAOCTF did not ask his co-appellants during the custodial investigation whether
they had a lawyer of their own choice, and whether they could afford to hire a lawyer; that the
agents of the PAOCTF suggested the availability of Atty. Uminga and Atty. Rous to his coappellants; and that Atty. Uminga and Atty. Rous were associates of the PAOCTF. Appellant
Reyes also asseverates that the extra-judicial confessions of appellants Arnaldo and Flores cannot
be utilized against him.
Appellant Flores argues that his written extra-judicial confession is inadmissible in
evidence, because it was obtained in violation of his constitutional right to have an independent
counsel of his own choice during custodial investigation. He insists that his written extra-judicial
confession was elicited through force, torture and without the assistance of a lawyer. He avers
that he was not assisted by any lawyer from the time he was arrested until he was coerced to sign
the purported confession; that he was forced to sign it because he could not anymore endure the
beatings he suffered at the hands of the PAOCTF agents; and that he never met or knew Atty.
Rous who, according to the PAOCTF, had assisted him during the custodial investigation.
Appellant Arnaldo contends that his written extra-judicial confession should be excluded
as evidence, as it was procured in violation of his constitutional right to have an independent
counsel of his own choice during custodial investigation. He claims that he was not given
freedom to choose his counsel; that the agents of the PAOCTF did not ask him during the
custodial investigation whether he had a lawyer of his own choice, and whether he could afford to
hire a lawyer; and that the agents of the PAOCTF suggested the availability of Atty. Uminga to
him.
Thus, we have held that an extra-judicial confession is admissible in evidence if the
following requisites have been satisfied: (1) it must be voluntary; (2) it must be made with the
assistance of competent and independent counsel; (3) it must be express; and (4) it must be
in writing.219[67]
The right of an accused to be informed of the right to remain silent and to counsel
contemplates the transmission of meaningful information rather than just the ceremonial
and perfunctory recitation of an abstract constitutional principle.220[69] Such right

218[41]
219[67]
220[69]

Rollo, p. 34.
People v. Base, 385 Phil. 803, 815 (2000).
People v. Sayaboc, 464 Phil. 824, 839 (2004).

226
contemplates effective communication which results in the subject understanding what is
conveyed.221[70]
The right to counsel is a fundamental right and is intended to preclude the slightest
coercion as would lead the accused to admit something false. 222[71] The right to counsel attaches
upon the start of the investigation, i.e., when the investigating officer starts to ask questions to
elicit information and/or confessions or admissions from the accused. 223[72] The lawyer called to
be present during such investigation should be, as far as reasonably possible, the choice of the
accused. If the lawyer is one furnished in behalf of accused, he should be competent and
independent; that is, he must be willing to fully safeguard the constitutional rights of the
accused.224[73] A competent and independent counsel is logically required to be present and able to
advice and assist his client from the time the latter answers the first question asked by the
investigator until the signing of the confession. Moreover, the lawyer should ascertain that the
confession was made voluntarily, and that the person under investigation fully understood the
nature and the consequence of his extra-judicial confession vis-a-vis his constitutional rights. 225[74]
However, the foregoing rule is not intended to deter to the accused from confessing guilt
if he voluntarily and intelligently so desires, but to protect him from admitting what he is being
coerced to admit although untrue. To be an effective counsel, a lawyer need not challenge all the
questions being propounded to his client. The presence of a lawyer is not intended to stop an
accused from saying anything which might incriminate him; but, rather, it was adopted in
our Constitution to preclude the slightest coercion on the accused to admit something false.
The counsel should never prevent an accused from freely and voluntarily telling the truth.226
[75]

We have gone over the records and found that the PAOCTF investigators have duly
apprised appellants Arnaldo and Flores of their constitutional rights to remain silent and to have
competent and independent counsel of their own choice during their respective custodial
investigations.
The Pasubali227[76] of appellants Arnaldo and Floress written extra-judicial confessions
clearly shows that before they made their respective confessions, the PAOCTF investigators had
informed them that the interrogation about to be conducted on them referred to the kidnapping of
the Yao family. Thereafter, the PAOCTF agents explained to them that they had a constitutional
right to remain silent, and that anything they would say may be used against them in a court of
law. They were also told that they were entitled to a counsel of their own choice, and that they
would be provided with one if they had none. When asked if they had a lawyer of their own,
appellant Arnaldo replied that he would be assisted by Atty. Uminga, while appellant Flores
agreed to be represented by Atty. Rous. Thereafter, when asked if they understood their said
rights, they replied in the affirmative. The appraisal of their constitutional rights was done in the
presence of their respective lawyers and in the Tagalog dialect, the language spoken and
understood by them. Appellants Arnaldo and Flores and their respective counsels, Atty. Uminga
and Atty. Rous, also signed and thumbmarked the extra-judicial confessions. Atty. Uminga and
Atty. Rous attested to the veracity of the afore-cited facts in their respective court testimonies. 228
[77]
Indeed, the appraisal of appellants constitutional rights was not merely perfunctory, because it
appeared certain that appellants had understood and, in fact, exercised their fundamental rights
after being informed thereof.

221[70]
222[71]
223[72]
224[73]
225[74]
226[75]
227[76]
228[77]

People v. Agustin, 310 Phil. 594, 612 (1995).


People v. Olermo, 454 Phil. 147, 165 (2003).
Gamboa v. Cruz, G.R. No. L-56291, 27 June 1988, 162 SCRA 642, 653.
People v. Deniega, G.R. No. 103499, 29 December 1995, 251 SCRA 626, 637.
People v. Velarde, 434 Phil. 102, 119 (2002).
People v. Base, supra note 67.
Records, pp. 312-318.
TSN, 25 September 2001 and 27 September 2001.

227
Records reflect that appellants Arnaldo and Reyes were likewise accorded their right to
competent and independent counsel during their respective custodial investigations.
As regards appellant Arnaldo, Atty. Uminga testified that prior to the questioning of
appellant Arnaldo about the incident, Atty. Uminga told the PAOCTF investigators and agents to
give him and appellant Arnaldo space and privacy, so that they could freely converse. After the
PAOCTF investigators and agents left them, he and appellant Arnaldo went to a cubicle where
only the two of them were present. He interviewed appellant Arnaldo in the Tagalog language
regarding the latters personal circumstances and asked him why he was in the PAOCTF office
and why he wanted a lawyer. Appellant Arnaldo replied that he wanted to make a confession
about his participation in the kidnapping of the Yao family. Thereupon, he asked appellant
Arnaldo if the latter would accept his assistance as his lawyer for purposes of his confession.
Appellant Arnaldo agreed. He warned appellant Arnaldo that he might be sentenced to death if he
confessed involvement in the incident. Appellant Arnaldo answered that he would face the
consequences because he was bothered by his conscience. He inquired from appellant Arnaldo if
he was harmed or intimidated into giving self-incriminating statements to the PAOCTF
investigators. Appellant Arnaldo answered in the negative. He requested appellant Arnaldo to
remove his shirt for him to check if there were torture marks on his body, but he found none. He
also observed that appellant Arnaldos appearance and movements were normal. His conference
with appellant Arnaldo lasted for 15 minutes or more. Thereafter, he allowed the PAOCTF
investigators to question appellant Arnaldo.229[78]
Further, Atty. Uminga sat beside appellant Arnaldo during the inquiry and listened to the
latters entire confession. After the taking of appellant Arnaldos confession, Atty. Uminga
requested the PAOCTF investigators to give him a copy of appellant Arnaldos confession. Upon
obtaining such copy, he read it entirely and thereafter gave it to appellant Arnaldo. He instructed
appellant Arnaldo to read and comprehend the same carefully. He told appellant Arnaldo to ask
him for clarification and comment if he did not agree or understand any part of his written
confession. Appellant Arnaldo read his entire written confession and handed it to him. Atty.
Uminga asked him if he had objections to it. Appellant Arnaldo replied in the negative. He then
reminded appellant Arnaldo that the latter could still change his mind, and that he was not being
forced to sign. Appellant Arnaldo manifested that he would sign his written confession. Later, he
and appellant Arnaldo affixed their signatures to the written confession. 230[79]
With respect to appellant Flores, Atty. Rous declared that before the PAOCTF
investigators began questioning appellant, Atty. Rous interviewed him in Tagalog inside a room,
where only the two of them were present. He asked appellant Flores about his personal
circumstances. Appellant Flores replied that he was a suspect in the kidnapping of the Yao
family, and he wanted to give a confession regarding his involvement in the said incident. He
asked appellant Flores whether he would accept his assistance as his lawyer. Appellant Flores
affirmed that he would. He asked appellant Flores why he wanted to give such confession.
Appellant Flores answered that he was bothered by his conscience. Atty. Rous warned appellant
Flores that his confession would be used against him in a court of law, and that the death penalty
might be imposed on him. Appellant Flores told him that he wanted to tell the truth and unload
the burden on his mind. He requested appellant Flores to lift his shirt for the former to verify if
there were torture marks or bruises on his body, but found none. Again, he cautioned appellant
Flores about the serious consequences of his confession, but the latter maintained that he wanted
to tell the truth. Thereafter, he permitted the PAOCTF investigators to question appellant
Flores.231[80]
Additionally, Atty. Rous stayed with appellant Flores while the latter was giving
statements to the PAOCTF investigators. After the taking of appellant Flores statements, he
instructed appellant Flores to read and check his written confession. Appellant Flores read the
229[78]
230[79]
231[80]

TSN, 27 September 2001, pp. 5-9.


Id. at 9-15.
TSN, 25 September 2001, pp. 2-14.

228
same and made some minor corrections. He also read appellant Flores written confession.
Afterwards, he and appellant Flores signed the latters written confession. 232[81]
It is true that it was the PAOCTF which contacted and suggested the availability of Atty.
Uminga and Atty. Rous to appellants Arnaldo and Flores, respectively. Nonetheless, this does not
automatically imply that their right to counsel was violated. What the Constitution requires is the
presence of competent and independent counsel, one who will effectively undertake his clients
defense without any intervening conflict of interest. 233[82] There was no conflict of interest with
regard to the legal assistance rendered by Atty. Uminga and Atty. Rous. Both counsels had no
interest adverse to appellants Arnaldo and Flores. Although Atty. Uminga testified that he was a
former National Bureau of Investigation (NBI) agent, he, nevertheless, clarified that he had been
separated therefrom since 1994 234[83] when he went into private practice. Atty. Uminga declared
under oath that he was a private practitioner when he assisted appellant Arnaldo during the
custodial investigation.235[84] It appears that Atty. Uminga was called by the PAOCTF to assist
appellant Arnaldo, because Atty. Umingas telephone number was listed on the directory of his
former NBI officemates detailed at the PAOCTF. Atty. Rous, on the other hand, was a member of
the Free Legal Aid Committee of the Integrated Bar of the Philippines, Quezon City at the time
he rendered legal assistance to appellant Flores. 236[85] Part of Atty. Rous duty as member of the
said group was to render legal assistance to the indigents including suspects under custodial
investigation. There was no evidence showing that Atty. Rous had organizational or personal
links to the PAOCTF. In fact, he proceeded to the PAOCTF office to assist appellant Flores,
because he happened to be the lawyer manning the office when the PAOCTF called. 237[86] In
People v. Fabro,238[87] we stated:
The Constitution further requires that the counsel be independent; thus, he cannot be a
special counsel, public or private prosecutor, counsel of the police, or a municipal attorney whose
interest is admittedly adverse to that of the accused. Atty. Jungco does not fall under any of said
enumeration. Nor is there any evidence that he had any interest adverse to that of the accused.
The indelible fact is that he was president of the Zambales Chapter of the Integrated Bar of the
Philippines, and not a lackey of the lawmen.
Further, as earlier stated, under Section 12(1), Article III of the 1987 Constitution, an
accused is entitled to have competent and independent counsel preferably of his own choice. The
phrase preferably of his own choice does not convey the message that the choice of a lawyer by
a person under investigation is exclusive as to preclude other equally competent and independent
attorneys from handling the defense. Otherwise, the tempo of custodial investigation would be
solely in the hands of the accused who can impede, nay, obstruct, the progress of the interrogation
by simply selecting a lawyer who, for one reason or another, is not available to protect his
interest.239[88] While the choice of a lawyer in cases where the person under custodial
interrogation cannot afford the services of counsel or where the preferred lawyer is not
available is naturally lodged in the police investigators, the suspect has the final choice, as he
may reject the counsel chosen for him and ask for another one. A lawyer provided by the
investigators is deemed engaged by the accused when he does not raise any objection to the
counsels appointment during the course of the investigation, and the accused thereafter
subscribes to the veracity of the statement before the swearing officer. 240[89] Appellants Arnaldo
and Flores did not object to the appointment of Atty. Uminga and Atty. Rous as their lawyers,
232[81]
233[82]
234[83]
235[84]
236[85]
237[86]
238[87]
239[88]
240[89]

Id. at 14-19.
People v. Velarde, supra note 74.
TSN, 27 September 2001, p. 5.
Id.
TSN, 25 September 2001, pp. 4-5.
Id. at 6.
Supra note 65 at 726.
People v. Mojello, 468 Phil. 944, 954 (2004).
People v. Base, supra note 67.

229
respectively, during their custodial investigation. Prior to their questioning, appellants Arnaldo
and Flores conferred with Atty. Uminga and Atty. Rous. Appellant Arnaldo manifested that he
would be assisted by Atty. Uminga, while appellant Flores agreed to be counseled by Atty. Rous.
Atty. Uminga and Atty. Rous countersigned the written extra-judicial confessions of appellants
Arnaldo and Flores, respectively. Hence, appellants Arnaldo and Flores are deemed to have
engaged the services of Atty. Uminga and Atty. Rous, respectively.
Since the prosecution has sufficiently established that the respective extra-judicial
confessions of appellant Arnaldo and appellant Flores were obtained in accordance with the
constitutional guarantees, these confessions are admissible. They are evidence of a high order
because of the strong presumption that no person of normal mind would deliberately and
knowingly confess to a crime, unless prompted by truth and conscience. 241[90] Consequently, the
burden of proving that undue pressure or duress was used to procure the confessions rests on
appellants Arnaldo and Flores.242[91]
In the case at bar, appellants Arnaldo and Flores failed to discharge their burden of
proving that they were forced or coerced to make their respective confessions. Other than their
self-serving statements that they were maltreated by the PAOCTF officers/agents, they did not
present any plausible proof to substantiate their claims. They did not submit any medical report
showing that their bodies were subjected to violence or torture. Neither did they file complaints
against the persons who had allegedly beaten or forced them to execute their respective
confessions despite several opportunities to do so. Appellants Arnaldo and Flores averred that
they informed their family members/relatives of the alleged maltreatment, but the latter did not
report such allegations to proper authorities. On the contrary, appellants Arnaldo and Flores
declared in their respective confessions that they were not forced or harmed in giving their sworn
statements, and that they were not promised or given any award in consideration of the same.
Records also bear out that they were physically examined by doctors before they made their
confessions.243[92] Their physical examination reports certify that no external signs of physical
injury or any form of trauma were noted during their examination. 244[93] In People v. Pia,245[94] we
held that the following factors indicate voluntariness of an extra-judicial confession: (1)
where the accused failed to present credible evidence of compulsion or duress or violence on
their persons; (2) where they failed to complain to the officers who administered the oaths;
(3) where they did not institute any criminal or administrative action against their alleged
intimidators for maltreatment; (4) where there appeared to be no marks of violence on their
bodies; and (5) where they did not have themselves examined by a reputable physician to
buttress their claim.
It should also be noted that the extra-judicial confessions of appellants Arnaldo and
Flores are replete with details on the manner in which the kidnapping was committed, thereby
ruling out the possibility that these were involuntarily made. Their extra-judicial confessions
clearly state how appellants and their cohorts planned the kidnapping as well as the sequence of
events before, during and after its occurrence. The voluntariness of a confession may be inferred
from its language if, upon its face, the confession exhibits no suspicious circumstances tending to
cast doubt upon its integrity, it being replete with details which could only be supplied by the
accused.246[95]
With respect to appellant Reyess claim that the extra-judicial confessions of appellants
Arnaldo and Flores cannot be used in evidence against him, we have ruled that although an extrajudicial confession is admissible only against the confessant, jurisprudence makes it admissible as
241[90]
242[91]
243[92]
244[93]
245[94]
246[95]

People v. Bagnate, G.R. Nos. 133685-86, 20 May 2004, 428 SCRA 633, 651.
People v. Fabro, supra note 65.
Records, p. 18.
Id. at 19.
229 Phil. 577, 582 (1986).
People v. Bagnate, supra note 90.

230
corroborative evidence of other facts that tend to establish the guilt of his co-accused. 247[96] In
People v. Alvarez,248[97] we ruled that where the confession is used as circumstantial evidence to
show the probability of participation by the co-conspirator, that confession is receivable as
evidence against a co-accused. In People v. Encipido249[98] we elucidated as follows:
It is also to be noted that APPELLANTS extrajudicial confessions were independently
made without collusion, are identical with each other in their material respects and confirmatory
of the other. They are, therefore, also admissible as circumstantial evidence against their coaccused implicated therein to show the probability of the latters actual participation in the
commission of the crime. They are also admissible as corroborative evidence against the others,
it being clear from other facts and circumstances presented that persons other than the declarants
themselves participated in the commission of the crime charged and proved. They are what is
commonly known as interlocking confession and constitute an exception to the general rule that
extrajudicial confessions/admissions are admissible in evidence only against the declarants
thereof.
Appellants Arnaldo and Flores stated in their respective confessions that appellant Reyes
participated in their kidnapping of the Yao family. These statements are, therefore, admissible as
corroborative and circumstantial evidence to prove appellant Reyes guilt.
RIGHT TO COUNSEL
The person who assisted him in court during his arraignment and pre-trial is not a lawyer.
PEDRO CONSULTA VS. PEOPLE, G.R. No. 17942, February 12, 2009
CARPIO MORALES, J.:
On the matter of accused-appellants claim of having been denied due process, an
examination of the records shows that while accused-appellant was represented by Atty. Jocelyn
P. Reyes, who seems not a lawyer, during the early stages of trial, the latter withdrew her
appearance with the conformity of the former as early as July 28, 2000 and subsequently,
approved by the RTC in its Order dated August 4, 2000. Thereafter, accused-appellant was
represented by Atty. Rainald C. Paggao from the Public Defenders (Attorneys) Office of Makati
City. Since the accused-appellant was already represented by a member of the Philippine Bar
who principally handled his defense, albeit unsuccessfully, then he cannot now be heard to
complain about having been denied of due process.250[3] (Underscoring supplied)
That appellants first counsel may not have been a member of the bar does not dent the
proven fact that appellant prevented Nelia and company from proceeding to their destination.
Further, appellant was afforded competent representation by the Public Attorneys Office during
the presentation by the prosecution of the medico-legal officer and during the presentation of his
evidence. People v. Elesterio251[4] enlightens:
As for the circumstance that the defense counsel turned out later to be a non-lawyer, it is
observed that he was chosen by the accused himself and that his representation does not change
the fact that Elesterio was undeniably carrying an unlicensed firearm when he was arrested. At
any rate, he has since been represented by a member of the Philippine bar, who prepared the
petition for habeas corpus and the appellants brief. (Underscoring supplied)
Read also:
247[96]

Santos v. Sandiganbayan, 400 Phil. 1175, 1206 (2000).


G.R. No. 88451, 5 September 1991, 201 SCRA 364, 377.
230 Phil. 560, 574 (1986).

248[97]
249[98]
250

[3]

251

[4]

Rollo, p. 169
G.R. No. 63971, May 9, 1989, 173 SCRA 243, 249.

231
1. The right to counsel, 57 SCRA 481
1-a. P vs. Nolasco, 163 SCRA 623
1-b. P vs. Hernandez, 162 SCRA 422
1-c. P. vs. Ampo-an, July 4, 1990
1-d. P. vs. Saludar, July 31, 1990
1-e. P. vs. Kidagan, August 20, 1990
1-f. Estacio vs. Sandiganbayan, 183 SCRA 12
1-g. P. vs. Buenaflor, 181 SCRA 225
2. P vs. Tampus, 96 SCRA 624
3. P vs. Taylaran, 108 SCRA 373
4. P vs. Tawat, 129 SCRA 431
5. P vs. Marcos, 147 SCRA 204 (Note that this
decision is widely criticized by
constitutionalists)
6. P vs. Ladrera, 150 SCRA 113
7. P. Nulla, 153 SCRA 471
8. P vs. Marquez, 153 SCRA 700
9. P vs. Olvis, 154 SCRA 513
10. P vs. Caguioa, January 17, 1980
ll. P vs. Pecardal, 145 SCRA 624
12. P vs. Lasac, 148 SCRA 624
13. P vs. Pena, 80 SCRA 589
14. P vs. Jara, 144 SCRA 516
How about if the lawyer who assisted him during custodial investigation is a
public attorney who was not chosen by the accused himself but given to him free of charge? The
extrajudicial confession is inadmissible as evidence.
Read:
P. vs. Alegria, September 28, 1990
Could the Fiscal also represent the accused during custodial investigation to
satisfy the requirement of the Constitution that the accused is assisted by counsel? No. The Fiscal
is the counsel for the State, not the accused or the suspect.
Read:
P. vs. Matos-Viduaya, September 11, 1990
5. Right to remain silent and to counsel and the right to be informed of such rights; cases in
general/when does these rights demandable? Effect of its non-observance by the investigator
Read:
1. P vs. Albofera, 152 SCRA 123
1-a. P vs. Lasanas, 152 SCRA 27
1-b. P vs. Olvis, 154 SCRA 513
1-c. P vs. Capitin, 165 SCRA 47
1-a. Gamboa vs. Cruz, 162 SCRA 642
1-b. P vs. Hizon, 163 SCRA 760
1-c. P vs. Velasco, 110 SCRA 319
2. Diokno vs. Enrile, 110 SCRA 140
3. Morales vs. Ponce Enrile, 121 SCRA 538
4. P vs. Rojas, January 8, l987
5. P vs. Santiago, January 7,1987

232
6. P vs. Decierdo, 149 SCRA 496
5-a. Is the right to counsel indispensable in non-criminal proceedings?
Read:
1. Nera vs. Auditor Genral, 164 SCRA 1
6. Presumptions on extrajudicial confessions(that official acts were regularly performed as against
the presumption against waiver of constitutional rights)
Read:
1. P vs. Duero, 104 SCRA 379
2. P vs. Jara, 144 SCRA 516
3. P vs. Abano, 145 SCRA 555
4. P vs. Tolentino, 145 SCRA 597
5. P vs. Salig, 133 SCRA 59
6. P vs. Cruz, 133 SCRA 426
7. P vs. Prudente,, 133 SCRA 651
8 P vs. Trinidad, 162 SCRA 714, when the
7. Who can object to the admissibility of an

presumption of regularity does not apply


extrajudicial confession?

Read:
1. Stonehill vs. Diokno, supra
2. P vs. Jara, 144 SCRA 576
3. P. vs. loveria, July 2, 1990
8. Inadmissible as evidence
a. The doctrine of the "fruit of the poisoned

tree"

Even if the extrajudicial confession is inadmissible as evidence, accused still held guilty by the
Supreme Court.
PEOPLE VS. ROLANDO FELIXMINIA y CAMACHO
GR No. 125333, March 20, 2002
En Banc
Facts:
1. In the morning of September 19, 1995, accused-appellant and his cousin, RONNIE GARCIA
were drinking gin in a canteen in Urdaneta, Pangasinan;
2. At around 10 a.m. of the same day, Rosita Mangunay saw both persons walking along Ambrosio
St., in the poblacion and noticed that they smelled liquor when they greeted her;
3. In the early afternoon of the same day, accused-appellant and his cousin went to look for 6-year
old Maria Lourdes Galinato, also known as Tisay and found her playing inside a jeepney and took
her;

233
4. At around 2:45 p.m. of the same day, Mangunay again saw the accused-appellant walking along
Ambrosio St., carrying Tisay who was crying and struggling. She claimed that she clearly saw the
accused-appellant since they were walking towards each other coming from opposite directions;
5. Before 3 to 4 p.m., prosecution witness Natividad Bernardo, saw accused-appellant pass their
house carrying a child who looked about 5-6 years old.
6. At about the same time, witness Leah Magno saw the accused-appellant carrying a child was
seen heading towards the wooded area in the Macalong River;
7. By 5 p.m. to 6:30 p.m. of that same day, Magno saw accused-appellant walking alone to town
coming from the direction of the Macalong River;
8. Meanwhile, the parents of Tisay were frantically searching for their child and when their search
proved futile, they reported the matter to the Barangay Captain and to the Police;
9. Upon receipt of the information that the child was last seen with the accused-appellant, the police
together with the Barangay Captains of Camantiles and Bayaoas, Urdaneta, Pangasinan,
proceeded to the house of the accused-appellant;
10. As they approached the house, the accused-appellant jumped out of the window carrying a black
bag. The police authorities gave chase and finally caught him after twenty (20) exhausting hours;
11. After his arrest, accused-appellant was brought to the Urdaneta Police Station where he admitted
that he raped, killed and buried Maria Lourdes near the Macalong River in Barangay San Vicente,
Urdaneta, Pangasinan, while UNDER INVESTIGATION WITHOUT THE ASSISTANCE OF A
LAWYER. INDEED, THE BODY OF TISAY WAS FOUND IN THE PLACE WHICH HE
DESCRIBED DURING HIS CUSTODIAL INVESTIGATION.
12. After trial, the trial court (RTC 45 presided over by JUDGE JOVEN COSTALES) rendered a
judgment of conviction and imposing the penalty of death to the accused-appellant. The court
admitted as evidence the extrajudicial confession of the accused-appellant and used the same as
one of the grounds in support of the judgment of conviction.
1.

ISSUES

1. Is the extrajudicial confession of the accused appellant admissible in evidence?


2. Whether the lower court erred in convicting in convicting the accused-appellant?
Held:
1
The alleged extrajudicial confession of the accused while under custodial investigation
and without the assistance of counsel is inadmissible in evidence despite the fact that he was
allegedly appraised of his constitutional rights to remain silent and to counsel.
This is so because under the 1987 Constitution, the said rights could not be waived
except in the presence of counsel. As such, in accordance with the doctrine of the fruit of the
poisoned tree, the same is inadmissible in evidence.
Any information or admission given by a person while in custody which may appear
harmless or innocuous at the time without the competent assistance or an independent counsel
should be struck down as inadmissible.
2

234
Though the extrajudicial confession of the accused-appellant is inadmissible as evidence,
his conviction by the trial court is correct. This is so because [1] the compromising circumstances
were duly proven which were consistent with each other and which lead with moral certainty to
the conclusion that he was guilty of the crime charged; and [2] the totality of such circumstances
eliminated beyond doubt the possibility of his innocence. In People vs. Mahinay, it was held that
conviction may be had on circumstantial evidence provided the following requisites are present:
[a] there is more than one circumstance; [b] the facts from which the inferences are derived are
proven; and [c] the combination of all circumstances is such as to produce a conviction beyond
reasonable doubt.
The evidence in this case are more than sufficient to prove the accused-appellants
beyond reasonable doubt. Circumstantial evidence is not a weaker form of evidence vis--vis
direct evidence and cases have recognized that circumstantial evidence in its weight and
probative force, may surpass direct evidence in its effect upon the Supreme Court.
(NOTE: The indemnification for the death of a person in a rape with Homicide cases was
increased from P50,000.00 to P125,000.00. The said indemnity shall also be applicable where the
death penalty is authorized by applicable amendatory laws))
b. The exclusionary rule, 145 SCRA 700
Read:
1. P vs. Burgos, 144 SCRA 516
2. P vs. Alcaraz,136 SCRA 74
3. Does it also include the confession of a

witness, not the accused?

Read:
1. P vs. Bombesa, 162 SCRA 402
2. p. vs. Yutuc, July 26, 1990
9. Sec. 12(2)
Read:
1. Dizon vs. Gen. Eduardo, May 3,1988
2. P vs. Eligino, August 11,1988
3. Contado vs. Tan, April 15, 1988
10. Extrajudicial confession; when admissible or

inadmissible

Read:
1. The admissibility of an extrajudicial
110
2. Admissibility of an extrajudicial

confession in a criminal prosecution,142 SCRA


confession,135

3. Inadmissibility of an admission obtained by


4. Confession as evidence against the accused, 96
Read:

SCRA 419 and 10 SCRA 520


force, 114 SCRA 234
SCRA 637

235
5. P vs. Camalog, January 31, 1989
5-a. P vs. Capulong, 160 SCRA 533
5-b. P vs. Lagahan, December 8, 1988
5-c. P vs. Dino, 160 SCRA 197
5-d. P vs. Caramonte, 94 SCRA 150
5-e. P vs. Enciso, 160 SCRA 728
5-d. P vs. Abano, 145 SCRA 565
5-e. P vs. Quizon, 142 SCRA 362
5-f. P vs. Olvis, 154 SCRA 513
5-g. P vs. Robles, 104 SCRA 450
5-h. P vs. Eligino, 164 SCRA 260
5-i. P vs. Abejero, May 17,l980
5-j. P. vs. Bagano, 181 SCRA 34
5-k. P. vs. Estevan, 186 SCRA 184
5-l. P. vs. Ramos, 186 SCRA 184
5-m. P. vs. Flores, 186 SCRA 303
5-n. P. vs. Jungco, 186 SCRA 714
5-o. P. vs. Arsenio, 184 SCRA 205
6. P vs. Villanueva, 128 SCRA 488
7. P vs. Dejaresco, 129 SCRA 576
8. P vs. Tuvera, 130 SCRA 169
9. P vs. Maternal, 130 SCRA 625
10. P vs. Nilos, 127 SCRA 207
11. P vs. Sanchez, 132 SCRA 103
12. P vs. Pizarro, 131 SCRA 418
13. P vs. Sabilano, 132 SCRA 83
14. P vs. Veloso, 148 SCRA 60
15. Magtoto vs. Manguera, 63 SCRA 4
16. P vs. Gapasin, 145 SCRA 178
17. P vs. Palo, 147 SCRA 178
18. P. vs. De Jesus, 145 SCRA 521
19. P vs. Pia, 145 SCRA 581
20. P vs. Encipiado, 146 SCRA 478
21. P vs. Canumay, 130 SCRA 301
22. P vs. Marino, 130 SCRA 595
23. P vs. Natipravat, 145 SCRA 483
24. P vs. Cruz, 133 SCRa 426--when confession is
valid
25. P. vs. De La Cruz, 183 SCRA 763---when confession is inadmissible but accused is still
liable
11. Evidence of lack of cvoluntariness
Read:
1. P vs. Jara, 144 SCRA 516
2. P vs. Abayon, 114 SCRA 197
12. Is the testimony of the arresting officer on the
admissible?
Read:
1. P vs. Dy, 158 SCRA 111

alleged oral confession of the accused

236
CHAPTER XIII - THE CONSTITUTIONAL RIGHT TO BAIL
Section 13. All persons, except those charged with offenses
punishable by reclusion perpetua when the evidence of guilt is
strong, shall before conviction, be bailable by sufficient sureties,
or be released on recognizance as may be provided by law. The
right to be bail shall not be impaired even when the privilege of
the writ of habeas corpus is suspended. Excessive bail shall not
be required.
1. The right to bail, 104 SCRA 372
2. Bail, 81 SCRA 188
Kinds of bail; when not applicable.
Recognizance/bail for a convict
ATTY. JULIANA ADALIM-WHITE VS. JUDGE ARNULFO BUGTAS, RTC 2
BORONGAN, SAMAR, 475 SCRA 175
Austria-Martinez, J.
Facts:
Manuel Bagaporo, Jr. was convicted of frustrated murder and was sentenced four years
and two months to eight years and one day of imprisonment. He started serving his sentence and
subsequently, he filed an application for release on recognizance. In support of his application,
the Provincial Jail Warden issued a certification that Bagaoporo has been confined at the
Provincial Jail since February 9, 1996 and is already entitled to parole. Another certification was
issued by the Supervising Parole and Probation Officer showing that Bagaporo applied for parole
in lieu of the DOJs Maagang Paglaya Program.
By virtue of the above certifications, respondent judge ordered the release of Bagaporo
upon recognizance of the Provincial Jail Warden of Eastern Samar. He likewise justified the same
based on the rule that bail is discretionary upon conviction by the RTC of an offense not
punishable by death, reclusion perpetua or life imprisonment.
Held:
Respondent Judge is guilty of gross ignorance of the law for ordering the release of
Bagaporo pending the approval of his application for parole and before the completion of the
minimum period of the sentence imposed upon him.
It is patently erroneous to release a convict on recognizance. Section 24, Rule 114
provides that there shall no bail for a convict after final judgment. The only exception is when the
convict applies for Probation before he commences to serve his sentence and that the offense and
the penalty for the offense is within the purview of the Probation Law.
Sections 5 and 16 of Rule 114 of the Rules of Court (on the different kinds of bail)
APPLIES ONLY TO AN ACCUSED UNDERGOING PREVENTIVE IMPRISONMENT
DURING TRIAL OR ON APPEAL. THEY DO NOT APPLY TO A PERSON CONVICTED
BY FINAL JUSGMENT AND ALREADY SERVING SENTENCE.
Judge Bugtas was therefore fined P40,000.00 for gross ignorance of the law and sternly
warned that a repetition of the same or similar act shall be dealt with more severely.

237
3. Read:
Excessive bail:
1. De la Camara vs. Enage, 41 SCRA 1
1-a. Pestano vs. Judge Velasco, July 3, 1990
Waiver of the right to bail:
1-b. P. vs. Donato, June 5, 1991
2. Almeda vs. Villaluz, 66 SCRA 38
3. Marcos vs. Cruz, 67 and 70 Phil.
4. Villasenor vs. Abano, 21 SCRA 312
5. P vs. IAC, January 10,1987, 147 SCRA 219
6. Manotoc vs. CA, May 30,1986
7. Garcia vs. Domingo, 52 SCRA 143
8. P vs. San Diego, 26 SCRA 522

4. See Section 10, Rule 114, 1985 Rules on Criminal


Procedure
a. Procedure when prosecutor does not object to the petition for bail in capital
offenses:
Bail in Extradition cases.
1
UNITED STATES VS. JUDGE PURUGGANAN & MARK JUMENEZ
November, 2002
A person facing extradition proceedings is not entitled to bail even if the crime he was
charged of in a foreign country is bailable. This is so because the constitutional provision on the
right to bail under Art. III of the 1987 Constitution applies only to criminal cases, not in
extradition proceedings.

Right to notice and hearing before the issuance of a warrant of


arrest in extradition case when earlier, the extraditee was allowed
to be out on bail by the court. The bail could not be cancelled
without hearing.
2
EDUARDO RODRIGUEZ VS. THE PRESIDING JUDGE, RTC 17, MANILA, 483 SCRA
290
Quisumbing, J.
In SECRETARY OF JUSTICE VS. JUDGE LANTION, 322 SCRA 160 (The Mark
Jimenez Case) , the Supreme Court on a 9-6 vote held that the extraditee is entitled to notice and
hearing even when a request for extradition by another country is still being evaluated. However,
on Motion for Reconsideration in the same case, in a 9-6 decision, the Supreme Court held that
the prospective extraditee is not entitled to notice and hearing while his case is still under
evaluation because this would defeat the purpose of the arrest warrant since it could give warning
that respondents would be arrested and even encourage them to flee but entitled to notice and
hearing if the case is already filed in court.

238
It is a different matter if at first, the extraditee was allowed bail. The cancellation of his
bail bond may be made only after notice and hearing. Otherwise, his right to due process of law
will be violated.
(NOTE: In the case of US vs. Judge Purugganan, 389 SCRA 623), the Supreme Court
held that the extraditee is not entitled to post a bond even if the crime he was charged of abroad is
a bailable offense. This is so because of the possibility of flight.)
3
GOVERNMENT OF HONGKONG SPECIAL ADMINISTRATIVE
REGION VS. HON. FELIXBERTO OLALIA, JR., 521 SCRA 470
In UNITED STATES VS. JUDGE PURUGGANAN, 389 SCRA 623, it was held
that the constitutional provision on bail does not available in extradition proceedings. It applies
only in criminal proceedings because of the word conviction.
However, the modern trend in public international law is the primacy placed on
the worth of the individual person and the sanctity of human rights. As such, the right to bail was
applied in a deportation proceedings, i.e., MEJOFF VS. DIRECTOR OF PRISONS, 90 Phil. 70
[1951] and justified the same with the Universal declaration of Human Rights. If the right to bail
is available in deportation cases, then there is no reason why it is not allowed in extradition
proceedings.
BEFORE A PROSPECTIVE EXTRADITEE IS ALLOWED TO PUT UP
BAIL, HE MUST PROVE BY CLEAR AND CONVINCING EVIDENCE THAT HE IS
NOT A FLIGHT RISK AND WILL ABIDE WITH ALL ORDERS AND PROCESSES OF
THE EXTRADITION COURT.
CHAPTER XIV - DUE PROCESS
IN CRIMINAL PROCEEDINGS
1. In general:
1. P vs. Terrobias, 103 SCRA 321
Presumption of innocence prevails over the presumption of regularity in the performance of
official duties of the police authorities and Presumption of innocence resulting in acquittal
as a result on conflicting and inconsistent testimonies of the prosecutions witnesses:
Non-compliance of Section 21, Republic Act No. 9165,
violates the presumption of innocence on the part of the
accused and therefore, he should be acquitted.

PEOPLE OF THE PHILIPPINES VS. RONALDO DE GUZMAN, G.R. No.


186498, March 26, 2010
On June 10, 2003, a confidential informant reported De Guzmans drug pushing activities to
Alcala, Pangasinans Chief of Police, Sotero Soriano, Jr. Soriano immediately formed a team to conduct a
buy-bust operation. After a short briefing, the team proceeded to De Guzmans house. Once there, the
confidential informant introduced appellant to Senior Police Officer (SPO)1 Daniel Llanillo, who was
designated as poseur-buyer. Llanillo tried to buy P200 worth of shabu. He handed two marked P100 bills
to De Guzman, and the latter, in turn, gave him two heat-sealed transparent plastic sachets containing

239
what was suspected as shabu. Thereafter, Llanillo gave the prearranged signal to the rest of the team.
Appellant was arrested and frisked. The team recovered from De Guzman two packs of empty transparent
sachets, three disposable lighters, and P3,380.00 in cash, which included the marked money paid by
SPO1 Llanillo. The team then brought De Guzman to the police station in Alcala, Pangasinan.
At the police station, De Guzman and the items seized during the buy-bust operation were turned
over to the police investigator, SPO3 Eduardo Yadao. SPO3 Yadao entered the incident in the police
blotter. He then placed his initials on the packets of suspected shabu, which were later submitted to the
Philippine National Police (PNP) Crime Laboratory in Urdaneta City. Confirmatory tests revealed that the
substance in the packets that appellant handed to SPO1 Llanillo was indeed shabu.
At the trial, appellant denied the charges against him. He claimed that, on the morning of June 10,
2003, he was on the second floor of his house watching television when he was informed by his wife that
police officers were looking for him. He claimed that SPO1 Llanillo informed him about a report that he
(De Guzman) was repacking shabu, which he denied. Thereafter, the police officers frisked him and took
the P3,000.00 from his pocket. The police officers also searched the cabinet, where his television was, and
found a lighter. Then, he was handcuffed and brought to the police station.
After trial, the RTC rendered a decision, finding De Guzman guilty beyond reasonable doubt of
violating R.A. No. 9165. He was sentenced to life imprisonment and to pay a fine of P500,000.00.
De Guzman elevated the matter to the Supreme Court on Petition for Review after the Court of
Appeals affirmed the RTC Decision. He argues that the prosecution failed to show that the police officers
complied with the mandatory procedures under R.A. No. 9165. In particular, he points to the fact that the
seized items were not marked immediately after his arrest; that the police officers failed to make an
inventory of the seized items in his presence or in the presence of his counsel and of a representative from
the media and from the Department of Justice (DOJ); and that no photographs were taken of the seized
items and of appellant. Appellant also claims that the unbroken chain of custody of the evidence was not
established. Further, appellant contends that the failure of the police officers to enter the buy-bust
operation in the police blotter before the said operation, the lack of coordination with the Philippine Drug
Enforcement Agency (PDEA), and the failure to observe the requirements of R.A. No. 9165 have
effectively overturned the presumption of regularity in the performance of the police officers duties.
HELD:
A review of the records of this case reveals that circumstances warrant a reversal of the trial
courts decision.

The Constitution mandates that an accused in a criminal case shall be presumed innocent until the
contrary is proven beyond reasonable doubt. The prosecution is laden with the burden to overcome such
presumption of innocence by presenting the quantum of evidence required.
Consequently, courts are required to put the prosecution evidence through the crucible of a severe
testing, and the constitutional right to presumption of innocence requires them to take a more than casual
consideration of every circumstance or doubt favoring the innocence of the accused.
When the circumstances are capable of two or more inferences, as in this case, one of which is
consistent with innocence and the other is compatible with guilt, the presumption of innocence must
prevail, and the court must acquit.
The duty to prove the guilt of an accused is reposed in the State. Law enforcers and public officers
have the duty to preserve the chain of custody over the seized drugs. This guarantee of the integrity of the
evidence to be used against an accused goes to the very heart of his fundamental rights.

240
In a prosecution for illegal sale of dangerous drugs, the following elements must be proven: (1)
that the transaction or sale took place; (2) that the corpus delicti or the illicit drug was presented as
evidence; and (3) that the buyer and seller were identified. What is material is the proof that the
transaction or sale actually took place, coupled with the presentation in court of the prohibited or
regulated drug. The delivery of the contraband to the poseur-buyer and the receipt of the marked money
consummate the buy-bust transaction between the entrapping officers and the accused. The presentation
in court of the corpus delicti the body or the substance of the crime establishes the fact that a crime
has actually been committed.
Contrary to De Guzmans contention, the trial court correctly found that the buy-bust transaction
took place. The buyer (SPO1 Llanillo) and seller (De Guzman) were both identified and the
circumstances of how the purported sale of the illegal drugs took place were clearly demonstrated. Thus,
the prosecution successfully established the first and third elements of the crime. However, there is a
problem in the prosecutions effort to establish the integrity of the corpus delicti.
The identity of the prohibited drug must be established with moral certainty. Apart from showing
that the elements of possession or sale are present, the fact that the substance illegally possessed and sold
in the first place is the same substance offered in court as exhibit must likewise be established with the
same degree of certitude as that needed to sustain a guilty verdict. The corpus delicti should be identified
with unwavering exactitude.
The chain of custody requirement performs this function in that it ensures that unnecessary
doubts concerning the identity of the evidence are removed. Section 21 of R.A. No. 9165 states:
Section 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered
Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and
Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. The
PDEA shall take charge and have custody of all dangerous drugs, plant sources of
dangerous drugs, controlled precursors and essential chemicals, as well as
instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or
surrendered, for proper disposition in the following manner:
(1) The apprehending team having initial custody and control of the drugs shall,
immediately after seizure and confiscation, physically inventory and photograph
the same in the presence of the accused or the person/s from whom such items
were confiscated and/or seized, or his/her representative or counsel, a
representative from the media and the Department of Justice (DOJ), and any
elected public official who shall be required to sign the copies of the inventory
and be given a copy thereof.
The Court finds that the apprehending officers failed to comply with the guidelines set under R.A.
No. 9165 and its IRR.
SPO1 Llanillo himself admitted that the marking of the seized items was done in the police
station and not immediately after the buy-bust operation.
The failure to follow the procedure mandated under R.A. No. 9165 and its IRR must be
adequately explained. The justifiable ground for non-compliance must be proven as a fact. The court
cannot presume what these grounds are or that they even exist.
Accordingly, non-compliance with the procedure shall not render void and invalid the seizure and
custody of the drugs only when: (1) such non-compliance is attended by justifiable grounds; and (2) the
integrity and the evidentiary value of the seized items are properly preserved by the apprehending team.

241
There must be proof that these two (2) requirements were met before such non-compliance may be said
to fall within the scope of the proviso.
In this case, it was admitted that it was SPO3 Yadao, the assigned investigator, who marked the seized
items, and only upon seeing the items for the first time at the police station. Moreover, there was no
physical inventory made or photographs of the seized items taken under the circumstances required by
R.A. No. 9165 and its IRR. There was also no mention that representatives from the media and from the
DOJ, and any elected official, were present during this inventory. The prosecution never explained the
reasons for these lapses.
As a method of authenticating evidence, the chain of custody rule requires that the admission of
an exhibit be preceded by evidence sufficient to support a finding that the matter in question is what the
proponent claims it to be. It would include testimony about every link in the chain, from the moment the
item was picked up to the time it is offered in evidence, in such a way that every person who touched the
exhibit would describe how and from whom it was received, where it was and what happened to it while
in the witness possession, the condition in which it was received and the condition in which it was
delivered to the next link in the chain. These witnesses would then describe the precautions taken to
ensure that there had been no change in the condition of the item and no opportunity for someone not in
the chain to have possession of the same. Indeed, it is from the testimony of every witness who handled
the evidence that a reliable assurance can be derived that the evidence presented in court and that seized
from the accused are one and the same.
Accordingly, the failure to establish, through convincing proof, that the integrity of the seized items
has been adequately preserved through an unbroken chain of custody is enough to engender reasonable
doubt on the guilt of an accused. Reasonable doubt is that doubt engendered by an investigation of the
whole proof and an inability after such investigation to let the mind rest upon the certainty of guilt.
Absolute certainty of guilt is not demanded by the law to convict a person charged with a crime, but
moral certainty is required as to every proposition of proof requisite to constitute the offense. A
conviction cannot be sustained if there is a persistent doubt on the identity of the drug.

Indeed, the prosecutions failure to prove that the specimen submitted for laboratory examination
was the same one allegedly seized from appellant is fatal to the prosecutions case.
Finally, the prosecution cannot find solace in its invocation of the presumption of regularity in the
apprehending officers performance of official duty.
The presumption of regularity in the performance of official duty cannot by itself overcome
the presumption of innocence nor constitute proof beyond reasonable doubt. Moreover, the failure to
observe the proper procedure negates the operation of the presumption of regularity accorded to police
officers. As a general rule, the testimonies of the police officers who apprehended the accused are
accorded full faith and credit because of the presumption that they have performed their duties regularly.
But when the performance of their duties is tainted with failure to comply with the procedure and
guidelines prescribed, the presumption is effectively destroyed.
Thus, even if the defense evidence is weak, the prosecutions whole case still falls. The evidence
for the prosecution must stand or fall on its own weight and cannot be allowed to draw strength from the
weakness of the defense.
ELPIDIO BONDAD, JR. VS. PEOPLE, G.R. No. 173804, EDecember 10, 2008
CARPIO MORALES, J.:

242
Elpidio Bondad, Jr., y Burac (appellant) was charged before the Regional Trial Court
(RTC) of Marikina City252[1] for violation of Section 5, paragraph 2(3), Article II of Republic Act
No. 9165 (R.A. No. 9165) or the Comprehensive Dangerous Drugs Act of 2002, allegedly
committed as follows:253[2]
That on or about the 29th day of January 2004, in the City of Marikina, Philippines and
within the jurisdiction of this Honorable Court, the above-named accused, without being
authorized by law, did then and there willfully, unlawfully, feloniously and knowingly sell to
poseur buyer 0.02 gram of Methamphetamine Hydrochloride (shabu) contained in one (1) heatsealed transparent plastic sachet, a dangerous drug, in violation of the above-cited law. 254[3]
(Underscoring supplied)
He was likewise charged for violation of Section 11, par. 2(3), Article II also of R.A. No.
9165, allegedly committed as follows:
That on or about the 29th day of January 2004, in the City of Marikina, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, without being
authorized by law to possess or otherwise use any dangerous drugs, did then and there willfully,
unlawfully and feloniously have in his possession direct custody and control 0.04 gram of white
crystalline substance contained in two (2) heat-sealed plastic sachets which gave positive result to
the test for Methamphetamine Hydrochloride (shabu), which is a dangerous drug, in violation of
the above-cited law.255[4] (Underscoring supplied)
At around 7:05 p.m. of January 29, 2004, while PO2 Ferdinand Brubio, PO1 Christopher
Anos, and PO1 Roberto Muega were at the Station Anti Illegal Drug Special Operations Task
Force (SAIDSOTF), Office of the Marikina City Police Station, PO2 Nelson Arribay arrived
together with a confidential informant. The confidential informant reported, among other things,
about the rampant sale of shabu in a billiard hall along Bonifacio Avenue, Barangka, Marikina
City and named a certain alias Jun as the vendor.
The Chief of the SAIDSOTF, P/Sr. Insp. Ramchrisen Haveria, Jr., at once formed a buybust team composed of, among others, PO2 Ramiel Soriano and PO2 Dano who was designated
as the poseur-buyer. PO2 Dano was given a one hundred peso bill bearing Serial No. Q487945
to be used as buy-bust money. It was agreed that PO2 Danos removal of his cap would signal
that the buy-bust was consummated.
The conduct of a buy-bust operation was recorded in the police blotter and was
coordinated with the Philippine Drug Enforcement Agency (PDEA) which gave it control number
NOC-012904-28.
The buy-bust team, together with the confidential informant, proceeded to 3 Cs billiard
hall at the corner of M. Cruz St. and Bonifacio Avenue in Barangka, Marikina City. On entering
the hall, the confidential informant pointed to appellant who was then holding a cue stick beside
the billiard table as the alias Jun. The confidential informant approached appellant and talked
to him. Within minutes, appellant approached PO2 Dano and asked him if he wanted to buy
shabu, to which PO2 Dano answered piso lang. Appellant at once took out a Vicks container
from his right front pocket256[5] which, when opened, yielded heat-sealed plastic sachets
containing substances suspected to be shabu. From the container, appellant drew out one sachet
in exchange for which PO2 Dano gave the marked one hundred peso bill. At that instant, PO2
Dano removed his cap.
252

[1]

253

[2]

254

[3]

255

[4]

256

[5]

Rollo, pp. 73-74.


Records, p. 2.
Records, p. 2 - Information dated February 2, 2004.
Id. at p. 6.
No specification if it was a pocket of the shirt or of the pants.

243
As the back-up police officers were closing-in, PO2 Dano grabbed appellants arm,
identified himself, and apprised appellant of his constitutional rights. Upon PO2 Danos order,
appellant returned the buy-bust money, handed the Vicks container, and gave his name as
Elpidio Burac Bondad, Jr.
Still at the place of arrest, PO2 Dano placed the markings EBB-ED BUYBUST
01/29/04 on the substance-filled sachet sold to him, and EBB-ED, POS 1 and 2, 01/29/04 on
the sachets that remained inside the Vicks container.
The buy-bust team thereupon brought appellant and the seized items to the Marikina City
Police Station where a memorandum dated January 29, 2004 257[6] was prepared by P/Sr. Insp.
Chief Haveria, Jr., addressed to the Chief of the Eastern Police District Crime Laboratory Office,
requesting for the conduct of laboratory examination on the seized items to determine the
presence of dangerous drugs and their weight. PO2 Dano also requested that appellant be
subjected to a drug test.258[7]
The following day or on January 30, 2004, at 3:00 P.M., upon receipt of three sachets, a
laboratory examination was conducted thereon by Police Senior Inspector Annalee R. Forro,
Forensic Chemical Officer of the Eastern Police District Crime Laboratory Office, who, in
Physical Science Report No. D-0094-04E 259[8], recorded, among other things, the specimen
submitted, her findings and conclusion as follows:
SPECIMEN SUBMITTED:
Three (3) heat-sealed transparent plastic sachets with markings marked as A through C
respectively, each containing white crystalline substance with following recorded net weights and
markings:
A = 0.02 gram EBB-ED BUYBUST 01/29/04
B = 0.02 gram EBB-ED POSS 1 01/29/04
C = 0.02 gram EBB-ED POSS 2 01/29/04
x-x-x
F I N D I N G S:

x-x-x

x-x-x

x x x

Qualitative examination conducted on the above-stated specimen gave POSITIVE result to the
tests for Methamphetamine Hydrochloride, a dangerous drug.
x-x-x

x-x-x

x-x-x

C O N C L U S I O N:
Specimens A through C contain Methamphetamine Hydrochloride, a dangerous drug. 260[9]
(Italics and emphasis in the original)
Denying the charges against him, appellant, a former police officer, claimed that he was
framed up and gave the following version:
On January 29, 2004, while he was playing inside 3 Cs billiard hall, PO2 Brubio, whom
he knew was a policeman, entered the billiard hall. After greeting PO2 Brubio in Bicolano, he
continued playing but PO2 Brubio suddenly handcuffed him and asked him Sumama ka muna.
Another person who was at his back pushed him out of the billiard hall in the course of which he
257

[6]

258

[7]

259

[8]

260

[9]

Id. at p. 15
TSN, June 15, 2004, p. 41
Records, p. 17
Exhibit C, folder of exhibits, p. 2

244
felt PO2 Brubio reaching his (appellants) right front pocket, 261[10] drawing him to restrain the
hand of PO2 Brubio, telling him pera ko yan!
Aware that his son was inside the billiard hall, appellant summoned and handed him his
wallet containing P2,000. PO2 Brubio, however, took the wallet from his son, telling him
Huwag ka makialam dito. He was then made to board a car and taken to the Office of the
SAIDSOTF at the police station.
Appellants defense was corroborated by his son Christian Jeffrey C. Bondad, and
Roberto U. Mata who was a spotter (referee) at the billiard hall at the time appellant was
arrested.
Finding for the prosecution, the trial court convicted appellant in both charges, disposing
as follows:
WHEREFORE, foregoing premises considered, the Court finds the accused ELPIDIO
BONDAD, JR. y BURAC guilty beyond reasonable doubt of the crime of Violation of Sec. 11
par. 2(3), Art. II of R.A. 9165 and is sentenced to suffer the penalty of imprisonment for a period
of TWELVE (12) YEARS and ONE (1) DAY and to pay the fine of THREE HUNDRED
THOUSAND PESOS (PhP300,000.00) as provided for in Sec. 11 par. 2(3), Art. II of RA 9165.
The accused is likewise found guilty of the crime of Violation of Sec. 5 Art. II of RA 9165 and is
sentenced to suffer the penalty of LIFE IMPRISONMENT and fine of FIVE HUNDRED
THOUSAND PESOS (PhP500,00.00) pursuant to Sec. 5, Art. II of RA 9165 the
methamphetamine hydrochloride (shabu) is ordered confiscated in favor of the government for
proper destruction by the proper agency.
SO ORDERED.262[11] (Underscoring supplied)
By Decision of February 8, 2006, 263[12] the Court of Appeals affirmed the trial courts
decision with modification, disposing as follows:
WHEREFORE, in the light of the foregoing, the appeal is DISMISSED for lack of merit.
The assailed decision is AFFIRMED with the MODIFICATION that the accused-appellant is
sentenced to suffer an indeterminate penalty of imprisonment of twelve (12) years and one (1)
day, as minimum, to thirteen (13) years, as maximum and to pay a fine of Three Hundred
Thousand Pesos (P300,000.00).
SO ORDERED.264[13] (Underscoring supplied)
Specifically with respect to the charge of possession of shabu, the appellate court held:
The evidence for the prosecution fully proved beyond reasonable doubt the elements
necessary to successfully prosecute a case for illegal possession of a prohibited drug, namely, (a)
the accused is in possession of an item or an object identified to be a prohibited or a regulated
drug, (b) such possession is not authorized by law and (c) the accused freely and consciously
possessed said drug.
Under Section 11, Par. 2 [3] of R.A. 9165, the mere act of possessing any dangerous drug
consummates the crime. There is no doubt that the charge of illegal possession of shabu was
261[10]
262
263

264

There is also no specification if it was a pocket of the shirt or the pants


CA rollo, p. 124.
[12]
Penned by Justice Amelita G. Tolentino with the concurrence of Justices Portia Alio Hormachuelos and Vicente S.E.
Veloso, CA rollo, pp. 232-254.
[13]
Rollo, p. 68.
[11]

245
proven beyond reasonable doubt since the accused-appellant knowingly possessed plastic sachets
with white crystalline granules, without legal authority at the time he was caught during the buybust operation. The white crystalline granules found in his possession, upon laboratory
examination, were positively identified as methamphetamine hydrochloride or shabu, a dangerous
drug.265[14] (Italics in the original, underscoring supplied)
Hence, the present Petition for Review on Certiorari, appellant faulting the appellate
court:
II.
. . . IN ADMITTING THE EVIDENCE OF THE PROSECUTION DESPITE
CLEAR VIOLATION OF SECTION 21 (1) OF R.A. 9165;
As the resolution of the second assignment of error is determinative of whether there is
still necessity of segueing to the first and third assignments of error, it shall early on be passed
upon.
Appellant claims that there was failure to follow the requirements of Sec. 21 of R.A. No.
9165, hence, it compromised the integrity and evidentiary value of the allegedly seized items.
Sec. 21 of R.A. No 9165 provides:
Section 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered
Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential
Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. The PDEA shall take
charge and have custody of all dangerous drugs, plant sources or dangerous drugs, controlled
precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory
equipment so confiscated, seized and or surrendered, for proper disposition in the following
manner:
(1)

The apprehending team having initial custody and control of the drugs shall, immediately
after seizure and confiscation, physically inventory and photograph the same in the presence
of the accused or the persons/s from whom such items were confiscated and/or seized, or his/her
representative or counsel, a representative from the media and the Department of Justice (DOJ),
and any elected public official who shall be required to sign the copies of the inventory and be
given a copy thereof; x x x (Emphasis and underscoring supplied)
Appellant claims that no physical inventory and photographing of the drugs took place.
A reading of the testimony of the poseur-buyer, PO2 Dano indeed confirms appellants claim, viz:
Atty. Puentebella:
When you brought him to the police, it was there that the items taken from him were inventoried,
is it not?
Witness:
We did not make inventory because we simply brought the evidence confiscated.
xxx
Atty. Puentebella:
You also did not take photographs of the items taken from the accused?
Witness:
Yes, sir.

265

[14]

Id. at p. 66 (citations omitted)..

246
Atty. Puentebella:
And you know for a fact that under the new drugs law, this is a requirement for the apprehending
team to do, is it not?
Pros. Gapuzan:
Counsel is asking for a conclusion of law. I will object.
Court:
Witness may answer the question.
Witness:
Yes, sir.
xxxx
Atty. Puentebella:
So it is very clear now Mr. Witness that at the time you apprehended the accused, you did not
make an inventory in the presence of the accused nor you did not [sic] make a photograph of
the items seized in the presence of the accused, an elective official, a representative from the
Department of Justice, or the media, thats very clear?
Witness:
Yes, sir.
Atty. Puentebella:
Since you did not make any inventory, it follows that you did not require them to sign your
inventory as required by law?
Witness:
Yes, sir.266[16] (Emphasis and underscoring supplied)
Clearly then, the apprehending police officers failed to comply with the above-quoted
provision of Section 21 of R.A. No. 9165.
People v. Pringas holds, however:
Non-compliance by the apprehending/buy-bust team with Section 21 is not fatal as long
as there is justifiable ground therefor, and as long as the integrity and the evidentiary value
of the confiscated/seized items, are properly preserved by the apprehending officer/team. Its
non-compliance will not render an accused's arrest illegal or the items seized/confiscated from
him inadmissible. What is of utmost importance is the preservation of the integrity and the
evidentiary value of the seized items, as the same would be utilized in the determination of the
guilt or innocence of the accused. 267[17] (Citation omitted, emphasis, italics and underscoring
supplied)
The Courts pronouncement in Pringas is based on the provision of Section 21(a) of the
Implementing Rules and Regulations268[18] of R.A. No. 9165, viz:
x x x Provided, further, that non-compliance with these requirements under justifiable grounds,
as long as the integrity and evidentiary value of the seized items are properly preserved by
the apprehending officer/team, shall not render void and invalid such seizures of and custody
over said items; (Emphasis and underscoring supplied)
266

[16]

267

[17]

268[18]

TSN, June 15, 2004, pp. 80-87.


G.R. No. 175928. August 31, 2007, 531 SCRA 828, 842-843
Took effect on November 27, 2002.

247
In the present case, by PO2 Danos claim, he immediately marked the seized items which
were brought to the Crime Laboratory for examination. By his admission, however, he did not
conduct an inventory of the items seized. Worse, no photograph of the items was taken.
There was thus failure to faithfully follow the requirements of the law.
Parenthetically, unlike in Pringas, the defense in the present case questioned early on,
during the cross examination of PO2 Dano, the failure of the apprehending officers to comply
with the inventory and photographing requirements of Section 21 of R.A. No. 9165 269[19], despite
PO2 Danos awareness of such requirements. And the defense raised it again during the offer of
evidence by the prosecution, thus:
Atty. Puentebella:
xxxx
Exhibits B which is the brown envelope, B-1, B-2 and B-3 are objected to for being
product of irregular functions of police and therefore fruit of poisonous thinking [sic] and they
are not admissible and they were not photographed in the presence of the accused as
provided for by Sec. 21, par.1, R.A. 9165;270[20] (emphasis supplied)
IN FINE, as the failure to comply with the aforesaid requirements of the law
compromised the identity of the items seized, which is the corpus delicti of each of the crimes
charged against appellant,271[21] his acquittal is in order.
This leaves it unnecessary to still dwell on the first and third assignments of error.
WHEREFORE, the Petition is GRANTED. The assailed decision is REVERSED and
SET ASIDE and appellant, Elpidio Bondad Jr., y Burac, is ACQUITED of the crimes charged.
PEOPLE VS. SAMUEL OBMIRANIS, G.R. No. 181492, December 16, 2008
TINGA, J.:
This is an appeal filed by Samuel Obmiranis y Oreta (appellant) who was charged with
violation of Section 5 in relation to Section 26 of Republic Act (R.A.) No. 9165. 272[1] He was
allegedly caught in a buy-bust operation by elements of the Manila Western Police District
(MWPD) while offering to sell methyl amphetamine hydrochloride, a dangerous drug locally
known as shabu. The criminal information filed with the Regional Trial Court (RTC) of Manila,
Branch 2273[2] accused him as follows:
That on or about May 18, 2004, in the City of Manila, Philippines, the said accused, not
having been authorized by law to sell, trade, deliver or give away to another any dangerous drug,
did then and there willfully, unlawfully and knowingly attempt to sell or offer for sale one (1)
transparent plastic sachet containing TWO POINT EIGHT ZERO ZERO (2.800) grams of white
crystalline substance known as SHABU containing methylamphetamine hydrochloride, a
dangerous drug.
Contrary to law.274[3]
269

[19]

270

[20]

271

[21]

272
273
274

Vide TSN, June 15, 2004, pp. 81-85.


TSN, August 10, 2004, pp. 6-7.
People v. Laxa, 414 Phil. 156, 170 (2001) citing People v. Rigodon, 238 SCRA 27 (1994).

248
At the pre-trial, both the prosecution and the defense stipulated on the qualification of
Forensic Chemist Elisa Reyes and, thus, both parties dispensed with her testimony. The
prosecution further admitted that the forensic chemist who analyzed the seized the confiscated
substancewhich yielded positive for methylamphetamine hydrochloride contentdid not have
personal knowledge of the ultimate source of the drug. 275[4]
Appellant was brought to trial after having entered a negative plea. 276[5] The prosecution
then proceeded to prove the charge against him through the lone testimony of police officer Jerry
Velasco (Velasco). Velasco was the alleged leader of the raiding team that apprehended appellant
on 18 May 2004 at the corner of G.Tuazon and Jhocson Streets in Sampaloc, Manila. 277[6]
The narrative woven by Velasco established the following facts: On 17 May 2004, Police
Superintendent Marcelino Pedrozo (Pedrozo) of the MWPD organized a buy-bust team on the
information of a confidential informant that the latter was able to place an order for half a bulto
of shabu with appellant. Velasco was designated as the team leader and the poseur-buyer, with
Police Officers Wilfredo Cinco, Edgardo Palabay, Roberto Benitez and one 278[7]confidential
informant as members.279[8] Pedrozo gave the team a marked 500-peso bill to be used as buy-bust
money which was placed on top of a deck of boodle money. The team informed the Philippine
Drug Enforcement Agency (PDEA) of the impending operation, 280[9] entered the same in the
blotter281[10] and proceeded to Bambang in G.Tuazon Street just before 12 a.m. of 18 May 2004
the appointed time and date that the confidential informant and appellant had agreed to meet. The
informant joined Velasco in his car, and they awaited the arrival of appellant at the corner of
G.Tuazon and Jhocson Streets.282[11] At around 12:30 a.m., appellant on board a car arrived at the
scene and seeing the informant he approached the latter. The informant introduced Velasco to
appellant and said that Velasco would like to buy one-half bulto of shabu. Velasco negotiated
with appellant to lower the price but the latter refused. Velasco then insisted that he must first see
the merchandise. Appellant went back to his car, took the item and brought it to Velasco. Velasco
readily recognized the item as a plastic sachet containing a white crystalline substance. When
appellant asked for payment, he seemed to have recognized Velascos co-officer because he
uttered the words, May pulis yata. At that point, he was arrested just as he was trying to get
back to his car.283[12]
According to Velasco, he was the one who effected the arrest but it was Cinco who seized
the plastic sachet from appellant. He further stated that immediately after the arrest, he and his
team brought the seized item to the police headquarters and there, in his presence, Cinco marked
the same with the initials SOO. At the trial, he identified the plastic sachet as that seized from
appellant as well as the marking made by Cinco on it. Furthermore, he admitted on crossexamination that there was no evidence custodian designated and that he could not remember if
the seized item had been inventoried and photographed in the presence of the accused; that Cinco
put the item in his pocket after the same was recovered and did not mark it on the spot and that
the markings made on the buy-bust money had not been entered in the blotter.284[13]

275
276
277
278
279
280
281
282
283
284

249
The chemistry report issued at the instance of Pedrozo and signed by Forensic Chemical
Officer Maritess Mariano of the PNP Crime Laboratory revealed that the specimen supposedly
seized from appellant yielded positive of methylamphetamine hydrochloride content. 285[14]
Taking the stand, appellant boldly asserted that he was merely framed up by the buy-bust
team, and strongly denied having transacted the alleged sale of shabu with Velasco and the
confidential informant. He claimed that he was taken by Velasco and his team not on 18 May
2004 but rather on 17 May 2004 at 7:00 p.m. along Santa Teresita Street, Sampaloc, Manila; 286[15]
that he was there to see his girlfriend who was residing in that area; that when he was arrested by
two men in civilian clothes, he was not committing any crime; that he asked them why they were
arresting him but neither of them gave an answer and instead one of them grabbed him by his
shoulder and ushered him inside a police car; that once inside the car, one of the men pulled out a
gun with which he hit his neck, kicked him and uttered, Makulit ka ha, yuko!; that he asked
them why they were doing that to him when in fact he merely