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A.M. No.

RTJ-12-2333 October 22, 2012


(Formerly OCA-I.P.I. No. 11-3721-RTJ)

PROSECUTORS HYDIERABAD A. CASAR, JONALD E. HERNANDEZ, DANTE P. SINDAC and


ATTY. JOBERT D. REYES, Complainants,
vs.
CORAZON D. SOLUREN, Presiding Judge Regional Trial Court, Branch 96, Baler,
Aurora, Respondent.

RESOLUTION

MENDOZA, J.:

Before the Court is an administrative complaint against Judge Corazon D. Soluren (Judge Soluren)
of the Regional Trial Court (RTC), Branch 96, Baler, Aurora.

In a Complaint,1 dated August 12, 2011, Assistant Provincial Prosecutors Hydierabad A. Casar,
Jonald E. Hernandez, Dante P. Sindac and Aurora, charged Judge Soluren with Gross Misconduct.

Complainants aver that on June 20 and 22, 2011 and July 19, 2011, Judge Soluren went to the
Aurora Provincial Jail and conferred with the inmates including those who had pending cases before
her sala. This was in contravention of Office of the Court Administrator (OCA) Circular No. 03-2010,
dated January 12, 2010, which suspended the conduct of jail visitation and inspection by Executive
Judges and Presiding Judges pending results of the re-examination of the provisions of A.M. No. 07-
3-02-SC.

According to complainants, the purpose of Judge Solurens visit was to persuade the prisoners into
signing a letter addressed to then Chief Justice Renato C. Corona, calling for the dismissal of the
administrative complaint filed against her by Atty. Juliet M. Isidro-Reyes, District Public Attorney,
Baler, Aurora, and for the removal of Judge Evelyn Atienza-Turla as Presiding Judge of RTC,
Branch 6, Baler, Aurora.

Attached to the complaint were: the certification2 issued by the Prison Guard Administrator as proof
of Judge Solurens unauthorized visits to the provincial jail and the affidavit3 executed by Dolores P.
Sollano, her companion during the visits. Also presented was a subsequent handwritten letter4 signed
by the detention prisoners admitting that they were not aware of the import of the letter to the Chief
Justice due to lack of explanation by Judge Soluren. They wished to withdraw the same, not wanting
to be a part of the conflict between Judge Soluren and the Public Attorneys Office of Baler, Aurora.

In her Comment,5 dated November 5, 2011, Judge Soluren admitted that she went to the Aurora
Provincial Jail on four (4) occasions but they were not official jail visitations because she went there
without the presence and assistance of her staff member and not in compliance with the orders of
the Supreme Court.

After the filing of the Reply by complainants and the Rejoinder by Judge Soluren, the OCA issued its
Report, dated August 17, 2012, finding Judge Soluren guilty of Simple Misconduct and imposing
upon her a fine of ten thousand pesos (P10,000.00) to be deducted from her retirement benefits in
view of her compulsory retirement from the service on January 29, 2012.

The Court resolves to adopt the recommendation.


Judge Soluren opened herself to charges of impropriety when she went to the Aurora Provincial Jail
to solicit the sympathies and signatures of the prisoners, especially those who had pendings cases
in her sala.

This Court has consistently enjoined judges to avoid not just impropriety in their conduct but even
the mere appearance of impropriety6 because the appearance of bias or prejudice can be damaging
as actual bias or prejudice to the publics confidence on the Judiciarys role in the administration of
justice. To say the least, using detention prisoners who had cases before Judge Soluren cannot be
countenanced. 1wphi1

WHEREFORE, the Court RESOLVES to APPROVE and ADOPT the findings and recommendation
of the Office of the Court Administrator, Accordingly, the Court finds retired Judge Corazon D.
Soluren, Regional Trial Court, Branch 96, Baler, Aurora, GUILTY of SIMPLE MISCONDUCT and
imposes upon her the penalty of FINE in the amount of Ten Thousand Pesos (P10,000.00) to be
deducted from her retirement/gratuity benefits.

SO ORDERED.
G.R. No. 192377 July 25, 2012

CESAR V. MADRIAGA, JR., Petitioner,


vs.
CHINA BANKING CORPORATION, Respondent.

DECISION

REYES, J.:

Before us is a petition for review of the Decision1 dated January 27, 2010 of the Court of Appeals
(CA) dismissing the petition for certiorari and the Resolution2 dated May 26, 2010 denying the motion
for reconsideration thereof in CA-G.R. SP No. 96640.

The CA upheld the Order3 dated August 11, 2006 of the Regional Trial Court (RTC), Branch 17 of
Malolos, in Civil Case No. P-167-2002 denying herein petitioner Cesar V. Madriaga, Jr.s (petitioner)
motion to quash the ex parte writ of possession issued in favor of herein respondent China Banking
Corporation (China Bank).

Factual Antecedents

The spouses Rolando and Norma Trajano (Spouses Trajano) were the original registered owners of
the properties in dispute two residential properties located in Ibayo, Marilao, Bulacan, covered by
TCT Nos. 114853(M) and 114854(M). Sometime in 1991, they agreed to sell the properties to the
petitioners father, Cesar Madriaga, Sr. (Madriaga, Sr.) for P1,300,000.00 payable on installment
basis. Upon completion of payment,4 Spouses Trajano executed in Madriaga, Sr.s favor a Deed of
Absolute Sale dated September 2, 1992.5

Spouses Trajano, however, failed to deliver the lot titles, so Madriaga, Sr. sued for specific
performance with the RTC Branch 19 of Malolos City, and docketed as Civil Case No. 521-M-93.
The parties later entered into a compromise agreement, which the court approved on June 13,
1994.6 It was agreed that Spouses Trajano will take out a loan with Asia Trust Bank secured by a
mortgage over the properties, and from the proceeds, settle the P1,225,000.00 they owed Madriaga,
Sr.. It also appears from the agreement that the titles to the properties were retained by a certain
Mariano and Florentino Blanco as security for a loan received by both Spouses Trajano and
Madriaga, Sr..7 It was also agreed that the notice of lis pendens previously caused by Madriaga, Sr.
to be annotated on the titles will be cancelled.8

Spouses Trajano, however, failed to comply with their obligation under the compromise judgment.
On motion of Madriaga, Sr., the RTC issued a writ of execution on September 6, 1994, and several
properties of Spouses Trajano were levied upon, including the disputed properties. A notice of levy
dated January 18, 1995 was also given to the Register of Deeds.9 At the auction held on February
22, 1995, Madriaga, Sr. was declared the winning bidder, and a certificate of sale was issued to him
on March 22, 1995. After the lapse of the one-year redemption period, he was issued a final deed of
sale; consequently, TCT Nos. 114853(M) and 114854(M) were cancelled and replaced by TCT Nos.
T-284713(M) and T-284714 in his name. On January 27, 1997, he secured an ex parte writ of
possession.10

Meanwhile, on January 2, 1995, Spouses Trajano obtained a loan from China Bank in the amount of
P700,000.00, payable in one year and secured by a mortgage over TCT Nos. 114853(M) and
114854(M). They defaulted on their loan, and on October 20, 1997, China Bank foreclosed the
mortgage and was declared the highest bidder at the foreclosure sale held on November 24, 1997.
After consolidation of its titles, TCT Nos. T-346239(M) and T-346240(M) were issued to China Bank
to replace, for the second time, TCT Nos. 114853(M) and 114854(M).11

On April 2, 2002, China Bank filed with the RTC Branch 17 of Malolos, an ex parte petition for writ of
possession, docketed as Civil Case No. P-167-2002. It impleaded as respondents the "Sps. Trajano
and/or all persons claiming rights under their name." The writ was granted on July 12, 2002, and a
copy served upon Madriaga, Sr. on August 2, 2002.

On November 1, 2002, Madriaga, Sr. filed an opposition to the writ wherein he asserted that he was
the true owner of the properties, having obtained them at an earlier execution sale, and that his titles
were subsisting. The RTC dismissed his opposition and denied his motion for reconsideration.

Undeterred, on April 13, 2005, the petitioner filed a "Motion to Quash/Abate the Writ of
Possession,"12 which was denied by the RTC in its Order13 dated February 6, 2006. The RTC ruled
that it had no jurisdiction over the parties contending claims of ownership which was already
pending before RTC Branch 12 of Malolos, docketed as Civil Case No. 406-M-2002 (specific
performance case), entitled "Cesar Madriaga v. China Banking Corporation, Register of Deeds of
Meycauayan and Spouses Rolando and Norma Trajano." The RTC also noted that the petitioners
motion had been mooted by the satisfaction of the writ on April 15, 2005, per the Sheriffs return.14

On March 6, 2006, the petitioner moved for reconsideration of the Order dated February 6, 2006 in
Civil Case No. P-167-2002 (writ of possession case),15 insisting that he was deprived of due process
because he was not served with notice of China Banks ex parte petition for writ of possession, and
that he came to know of its separate titles only when he was served the writ of possession.

Unmoved, the RTC denied his motion for reconsideration in its Order16 dated August 11, 2006,
reasoning that it was merely performing a ministerial duty to issue the writ of possession to China
Bank.

The petitioner, who succeeded to his fathers properties then filed a petition for certiorari to the CA
averring that the RTC gravely and seriously abused its discretion in denying the motion to
abate/quash the writ of possession; in considering the issuance of the writ as ministerial; and in not
declaring China Bank in bad faith, hence, not entitled to possession of the properties.17

In the Decision dated January 27, 2010, the CA ruled that the RTC did not commit grave abuse of
discretion in denying Madriaga, Sr.s motion to quash or abate the ex parte writ of possession for the
reason that the motion had already been rendered moot and academic after the writ was satisfied on
April 15, 2005 with the physical removal of Madriaga, Sr. from the premises. On May 26, 2010, the
CA denied the petitioners motion for reconsideration.18

Hence, the present petition.

The petitioner avers that the writ of possession was directed, not against his father, but against
Spouses Trajano and "all persons claiming rights under them." He insists that his father derived his
titles not through a voluntary transaction with Spouses Trajano, but by purchase in an execution
sale. He also maintains that China Banks titles are void because they came from a void mortgage.

The petitioner also asserts that the RTC gravely erred in not finding that China Bank failed to
investigate the titles of Spouses Trajano before approving their loan, in view of the lis pendens
annotation thereon. The petitioner adverts to the decision of the RTC in Civil Case No. 406-M-2002
(specific performance case)19 charging China Bank with notice of a serious flaw in Spouses Trajanos
titles, whereas the petitioners titles came from an earlier execution sale, and he and his father had
been in open, uninterrupted and adverse possession since 1991.

The petitioner also insists that an ex parte writ of possession can be attacked either directly or
collaterally for being null and void ab initio due to lack of due process, notwithstanding that in the
meantime it has even been satisfied.

The petitioner, thus, maintains that his restoration to possession must be ordered because his
eviction by a mere ex parte writ of possession violated his right to due process, since his father was
unable to participate in the said proceedings due to lack of notice.

Our Ruling

We deny the petition.

The case has been rendered moot and academic by the full implementation/satisfaction of the writ of
possession.

The trial court in its Order dated February 6, 2006 took note of the Sheriffs return stating that the
writ of possession it issued to China Bank had been satisfied on April 15, 2005 after the petitioner
had been successfully removed from the subject premises, prompting the court to declare that the
petitioners Motion to Quash/Abate the Writ of Possession has been rendered moot and academic.

Indeed, with the writ of possession having been served and satisfied, the said motions had ceased
to present a justiciable controversy, and a declaration thereon would be of no practical use or value.20

Judicial power presupposes actual controversies, the very antithesis of mootness. Where there is no
more live subject of controversy, the Court ceases to have a reason to render any ruling or make
any pronouncement.21Courts generally decline jurisdiction on the ground of mootness save when,
among others, a compelling constitutional issue raised requires the formulation of controlling
principles to guide the bench, the bar and the public; or when the case is capable of repetition yet
evading judicial review,22 which are not extant in this case.

The issuance of the ex parte writ of possession did not violate Madriaga, Sr.s right to due process.

Section 7 of Act 3135 expressly allows the buyer at the auction to file a verified petition in the form of
an ex parte motion for issuance of a writ of possession. This connotes that it is for the benefit of one
party, without notice to or challenge by an adverse party. Being summary in nature, it cannot be said
to be a judgment on the merits, but is simply an incident in the transfer of title.23 As pointed out in
Philippine National Bank v. Court of Appeals,24 an ex parte petition for writ of possession under Act
3135 is, strictly speaking, not a judicial, or litigious, proceeding, for the reason that an extrajudicial
foreclosure of mortgage is accomplished by filing a petition, not with any court of justice, but with the
office of the sheriff of the place where the sale is to be made.

Indeed, the proceeding in a petition for a writ of possession is ex parte and summary in nature. It is a
judicial proceeding brought for the benefit of one party only and without notice by the court to any
person adversely interested. It is a proceeding wherein relief is granted without affording the person
against whom the relief is sought the opportunity to be heard.25 No notice is needed to be served
upon persons interested in the subject property.26And as held in Carlos v. Court of Appeals,27 the ex
parte nature of the proceeding does not deny due process to the petitioners because the issuance of
the writ of possession does not bar a separate case for annulment of mortgage and foreclosure sale.
Hence, the RTC may grant the petition even in the absence of Madriaga, Sr.s participation.

Moreover, records show that Madriaga, Sr. was able to air his side when he filed: on November 1,
2002 an opposition to the writ; on April 13, 2005, a "Motion to Quash/Abate the Writ of Possession";
and on March 6, 2006, a motion for reconsideration of the Order dated February 6, 2006 denying his
motion to quash/abate the writ of possession. When a party has been afforded opportunity to
present his side, he cannot feign denial of due process.28

The petitioners predecessor is not a third-party whose possession of the disputed properties is
adverse to that of Spouses Trajano.

A writ of possession of real property may be issued in cases of extrajudicial foreclosure of a real
estate mortgage under Section 7 of Act 3135, as amended by Act 4118.29 Sec. 7 provides:

Sec. 7. Possession during redemption period. In any sale made under the provisions of this Act,
the purchaser may petition the Court of First Instance of the province or place where the property or
any part thereof is situated, to give him possession thereof during the redemption period, furnishing
bond in an amount equivalent to the use of the property for a period of twelve months, to indemnify
the debtor in case it be shown that the sale was made without violating the mortgage or without
complying with the requirements of this Act. Such petition shall be made under oath and filed in form
of an ex parte motion in the registration or cadastral proceedings if the property is registered, or in
special proceedings in the case of property registered under the Mortgage Law or under Sec. 194 of
the Administrative Code, or of any other real property encumbered with a mortgage duly registered
in the office of any register of deeds in accordance with any existing law, and in each case the clerk
of court shall, upon the filing of such petition, collect the fees specified in par. 11 of Sec. 114 of Act
No. 496, and the court shall, upon approval of the bond, order that a writ of possession issue,
addressed to the sheriff of the province in which the property is situated, who shall execute said
order immediately.

The right of the owner to the possession of a property is an essential attribute of ownership.30 In
extrajudicial foreclosures, the purchaser becomes the absolute owner when no redemption is made.
Thus, after consolidation of ownership and issuance of a new transfer certificate of title in the name
of the purchaser, he is entitled to possession of the property31 as a matter of right under Section 7,
and its issuance by the RTC is a mere ministerial function.32

The rule, however, admits of an exception. Thus, it is specifically provided in Section 33, Rule 39 of
the Rules of Court33 that the possession of the extrajudicially foreclosed property shall be withheld
from the purchaser if a third-party is actually holding the same adversely to the mortgagor/debtor.34

"Sec. 33. Deed and possession to be given at expiration of redemption period; by whom executed or
given. x x x

x x x The possession of the property shall be given to the purchaser or last redemptioner by the
same officer unless a third party is actually holding the property adversely to the judgment obligor."

In an extrajudicial foreclosure of real property, when the foreclosed property is in the possession of a
third-party holding the same adversely to the defaulting debtor/mortgagor, the issuance by the RTC
of a writ of possession in favor of the purchaser of the said real property ceases to be ministerial and
may no longer be done ex parte. For the exception to apply, however, the property need not only be
possessed by a third-party, but also held by the third-party adversely to the debtor/mortgagor.35 1wphi1
In BPI Family Savings Bank, Inc. v. Golden Power Diesel Sales Center, Inc.,36 the Court discussed
the meaning of a "third-party who is actually holding the property adversely to the judgment obligor"

"The exception provided under Section 33 of Rule 39 of the Revised Rules of Court contemplates a
situation in which a third party holds the property by adverse title or right, such as that of a co-owner,
tenant or usufructuary. The co-owner, agricultural tenant, and usufructuary possess the property in
their own right, and they are not merely the successor or transferee of the right of possession of
another co-owner or the owner of the property."37

It is not disputed that Madriaga, Sr. was in actual possession of the disputed properties at the time
the writ of possession was issued by the RTC. China Bank, on the other hand, has in its favor TCT
Nos. T-346239(M) and T-346240(M) issued pursuant to the extrajudicial foreclosure sale. The RTC,
at that juncture, had no alternative but to issue the writ of possession. As it stated in its Order dated
February 6, 2006," x x x [a]t the time it rendered its Decision on July 12, 2002 (granting the ex parte
petition for the issuance of the writ of possession), the evidence obtaining herein overwhelmingly
warranted the issuance of the possessory writ in favor of petitioner Bank."38

Moreover, it must be emphasized that Madriaga, Sr.s possession was by virtue of the 1991
agreement between him and Spouses Trajano for the sale of the properties. As it turned out,
Spouses Trajano reneged on their original contractual undertaking to deliver the titles thereby
prompting the petitioner to pursue his claim over the disputed properties. The writ of execution and
execution sale referred to by the petitioner as basis of their alleged adverse possession was issued
by the RTC, as a matter of course in Civil Case No. 521-M-93, which was the initial civil case filed by
them to compel Spouses Trajano to deliver the title to the properties pursuant to the sale. The filing
of Civil Case No. 521-M-93, the compromise agreement subsequently entered into by the parties,
and the judgment and orders issued by the RTC in said case, in fact, confinned the existence of the
previous transaction between Madriaga, Sr. and Spouses Trajano, i.e., the transfer of the disputed
properties to Madriaga, Sr. by way of sale. Evidently, Madriaga, Sr.'s interest from the properties
sprung from his supposed right as the successor or transferee of Spouses Trajano. It cannot be
gainsaid, therefore, that their claim of possession was acquired from Spouses Trajano, which cannot
be considered adverse or contrary, and the RTC had all the authority to issue the ex parte writ of
possession.

In any event, as we have previously noted, the petitioner has already pursued Civil Case No. 406-M-
2002 for "Specific Performance, Nullification of Title, Reconveyance and Damages," a plenary action
to recover possession or an accion reivindicatoria."39 It is in said forum that the contending ownership
claims of the parties, and resultantly the right of possession, can be best ventilated and resolved
with definiteness.

WHEREFORE, the petition for review is DENIED for lack of merit.

SO ORDERED.
G.R. Nos. L-32282-83 November 26, 1970

PEOPLE OF THE PHILIPPINES, petitioner,


vs.
HON. MARIO J. GUTIERREZ, Judge of the Court of First Instance of Ilocos Sur, CAMILO
PILOTIN, FRANCISCO PIANO, DELFIN PIANO PEDRO PATAO, VINCENT CRISOLOGO,
CAMILO PIANO, CAMILO PATAO, PEDRING PIANO, ISIDRO PUGAL, ANTONIO TABULDO,
LORENZO PERALTA, VENANCIO PACLEB ANTONIO PIANO, FERMIN PUGAL, CARLITO
PUGAL, FLOR PIANO, ERNING ABANO and EIGHTY-TWO (82) JOHN DOES, respondents.

Office of the Solicitor General Felix Q. Antonio, Assistant Solicitor General Conrado T. Limcaoco,
Solicitor Eduardo C. Abaya and Special Attorney Juan A. Sison for petitioners.

Adaza, Adaza and Adaza for respondent Erning Abano.

Crisologo Law Office and Pedro Quadra for respondent Camilo Pilotin.

Juan T. David for respondent Vincent Crisologo.

Augusto Kalaw as private prosecutor.

REYES, J.B.L., J.:

Petition for writs of certiorari and mandamus, with preliminary injunction, filed by the Solicitor
General and State Prosecutors, to annul and set aside the order of Judge Mario J. Gutierrez of the
Court of First Instance of Ilocos Sur (respondent herein), dated 20 July 1970, denying the
prosecution's urgent motion to transfer Criminal Case Nos. 47-V and 48-V of said Court of First
Instance, entitled "People vs. Pilotin, et al.," to the Circuit Criminal Court of the Second Judicial
District; to direct the respondent Judge to effectuate such transfer; and to restrain the trial of the
cases aforesaid in the Court of First Instance of Ilocos Sur, sitting in Vigan, capital of the province.

In the morning of 22 May 1970, a group of armed persons descended on barrio Ora Centro,
municipality of Bantay, Province of Ilocos Sur, and set fire to various inhabited houses therein. On
the afternoon of the same day, in barrio Ora Este of the same municipality and province, several
residential houses were likewise burned by the group, resulting in the destruction of various houses
and in the death of an old woman named Vicenta Balboa. After investigation by the authorities, the
provincial fiscal, with several state prosecutors assigned by the Department of Justice to collaborate
with him, on 10 June 1970 filed in the Court of First Instance of Vigan, Ilocos Sur, two informations
(Criminal Cases 47-V for arson with homicide and 48-V for arson) charging that the seventeen
private respondents herein, together with 82 other unidentified persons, "confederating, conspiring,
confabulating and helping one another, did then and there willfully, unlawfully and feloniously burn or
cause to be burned several residential houses, knowing the said houses to be occupied" and
belonging to certain persons named in the filed informations in barrios Ora Este and Ora Centro,
Bantay, Ilocos Sur (Petition, Annexes B and B-1). Accused Camilo Pilotin and Vincent Crisologo
furnished bail, and on 15 June 1970 voluntarily appeared before respondent Judge Gutierrez, were
arraigned and pleaded not guilty. Trial was then set for 27, 28 and 29 July 1970.

It appears that on the same day, 15 June, the Secretary of Justice issued Administrative Order No.
221, authorizing Judge Lino Anover, of the Circuit Criminal Court of the Second Judicial District, with
official station at San Fernando, La Union, to hold a special term in Ilocos Sur, from and after 1 July
1970. Three days thereafter, on 18 June 1970, the Secretary further issued Administrative Order No.
226, authorizing Judge Mario Gutierrez to transfer Criminal Cases Nos. 47-V and 48-V to the Circuit
Criminal Court, "in the interest of justice and pursuant to Republic Act No. 5179, as implemented by
Administrative Order Nos. 258 and 274" of the Department of Justice.

On 22 June 1970, the prosecution moved the respondent judge for a transfer of cases 47-V and 48-
V to the Circuit Criminal Court, invoking the Administrative Orders just mentioned and calling
attention to the circumstance that they were issued at the instance of the witnesses seeking transfer
of the hearing from Vigan to either San Fernando, La Union, or Baguio City, for reasons of security
and personal safety, as shown in their affidavits. The accused vigorously opposed such transfer, and
on 20 July 1970, the respondent judge declined the transfer sought, on the ground that
Administrative Order No. 258 only provided for transfer of cases to the Circuit Criminal Court where
the interest of justice required it for the more expeditious disposal of the cases, and in the cases
involved the accused had already pleaded; that if the objective of the proposed transfer was to
subsequently obtain a change of venue from the Supreme Court under Section 4 of Republic Act No.
5179 the same should have been done right at the very inception of these cases.

In view of the lower court's denial of the motion to transfer the cases to the Circuit Criminal Court,
the prosecution resorted to Us for writs of certiorari and mandamus, charging abuse of discretion
and praying this Court to set aside the order of denial of the transfer and to compel the respondent
Court of First Instance to remand the cases to the Circuit Criminal Court of the Second Judicial
District, as well as to authorize the latter to try the cases (47-V and 48-V) at either San Fernando, La
Union, or Baguio City.

Respondents in their answer denied any abuse of discretion in view of the fact that the
Administrative Order No. 226 merely authorized the court below, but did not require or command it,
to transfer the cases in question to the Circuit Criminal Court, and likewise denied that the
circumstances justified any such transfer.

At petitioners' request this Court enjoined the respondent Judge Gutierrez from proceeding with the
trial of the cases until further orders.

We agree with respondents that the present laws do not confer upon the Secretary of Justice power
to determine what court should hear specific cases. Any such power, even in the guise of
administrative regulation of executive affairs, trenches upon the time-honored separation of the
Executive and the Judiciary; and while not directly depriving the courts of their independence, it
would endanger the rights and immunities of the accused or civil party. It could be much too easily
transformed into a means of predetermining the outcome of individual cases, so as to produce a
result in harmony with the Administration's preferences. The creation by Republic Act No. 5179 of
the Circuit Criminal Courts for the purpose of alleviating the burden of the regular Courts of First
Instance, and to accelerate the disposition of criminal cases pending or to be filed therein, nowhere
indicates an intent to permit the transfer of preselected individual cases to the circuit courts. Neither
do Administrative Orders Nos. 258 and 274 evidence any such intention; particularly since
Administrative Order No. 258, Series of 1968, in Section 2 of its Part V, as confirmed by
Administrative Order No. 274 of the same year, in Section 3 of Part III thereof, provides that the
transfer to Circuit Criminal Courts of cases pending in the regular Courts of First Instance should be
effected by raffle, chance here operating to nullify any executive arbitration of what particular cases
should be apportioned to either tribunal. The very terms of Administrative Order No. 226, issued on
18 June 1970 by Secretary of Justice Makasiar, relied upon by the petitioners, in merely authorizing,
and not directing, Judges Arciaga and Gutierrez of the Court of First Instance of Ilocos Sur to
transfer Criminal Cases Nos. 44-V and 47-V (People vs. Pilotin, et al.) to the Circuit Criminal Court of
the Second Judicial District, reveals that the Secretary himself was aware of the impropriety of
imperatively directing transfer of specified cases. Respondent Judge Gutierrez, therefore in
construing Administrative Order No. 226 as permissive and not mandatory, acted within the limits of
his discretion and violated neither the law nor the Executive Orders heretofore mentioned.

It is unfortunate, however, that in refusing to consider Department Administrative Order No. 226 of
the Secretary of Justice as mandatory respondent Judge Gutierrez failed to act upon the contention
of the prosecuting officers that the cases against private respondents herein should be transferred to
the Circuit Criminal Court of the Second Judicial District because a miscarriage of justice was
impending, in view of the refusal of the prosecution witnesses to testify in the court sitting in Vigan,
Ilocos Sur, where they felt their lives would be endangered. This claim was buttressed by the
affidavits of the injured parties and prosecution witnesses, reaffirming their fear to appear in Vigan to
testify in cases 47-V and 48-V and expressing their willingness to testify if the cases are heard
outside of Ilocos Sur, where they can be free from tension and terrorism (Petition, Annex J). The fear
thus expressed can not be considered fanciful and unfounded when account is taken of the
circumstances that the informations filed in the Court of First Instance of Ilocos Sur show that of the
one hundred armed participants in the burning of the houses at barrios Ora Este and Ora Centro,
Municipality of Bantay, some eighty-two (82) are still unidentified and at large; that one of the
accused, private respondent Vincent Crisologo, belongs to an influential family in the province, being
concededly the son of the Congressman for the first district of Ilocos Sur and of the lady Governor
that the reluctant witnesses are themselves the complainants in the criminal cases, and, therefore,
have reasons to fear that attempts will be made to silence them; that it is not shown that the
Executive branch is able or willing to give these witnesses full security during the trial and for a
reasonable time thereafter, that even if armed security escorts were to be provided, the same would
be no guarantee against the possibility of murderous assault against the affiant witnesses, as recent
events have proved; that Constabulary reports (Annex H) show that between 1 January and 31 May
1970 no less than 78 murders have been reported committed in said province, of which number only
21 were solved; and, finally, that the promotion and confirmation of respondent Judge Mario
Gutierrez from Clerk of Court to Judge of the Court of First Instance of the Second Judicial District,
Branch III, was actively supported by Congressman and Governor Crisologo, parents of accused
Vincent Crisologo (Annexes H, H-1, and K to N-2 to petitioner's supplemental memorandum).

This just refusal to testify in Ilocos Sur manifested by the complaining witnesses, who had on a
previous occasion freely given evidence before the investigators in Manila, renders manifest the
imperious necessity of transferring the place of trial to a site outside of Ilocos Sur, if the cases are to
be judicially inquired into conformably to the interest of truth and justice and the State is to be given
a fair chance to present its side of the case.

The respondents vigorously contend that a transfer of the trial site can not be made, because it is a
long standing rule of criminal procedure in these Islands that one who commits a crime is amenable
therefor only in the jurisdiction where the crime is committed, for the reason pointed out in U.S. vs.
Cunanan, 26 Phil. 376, and People vs. Mercado, 65 Phil. 665, that the jurisdiction of a Court of First
Instance in the Philippines is limited to certain well-defined territory and they can not take jurisdiction
of persons charged with one offense committed outside of that limited territory, and they invoke Rule
110, Section 14 (a), of the Revised Rules of Court providing that "in all criminal prosecutions the
action shall be instituted and tried in the court of the municipality or province wherein the offense
was committed or any one of the essential ingredient thereof took place."

It is well to note that this Court has explained in Beltran vs. Ramos, 96 Phil. 149, 150, that the
purpose of the rule invoked by accused respondents herein was "not to compel the defendant to
move to and appear in a different court from that of the province where the crime was committed, as
it would cause him great inconvenience in looking for his witnesses and other evidence in another
place." Where the convenience of the accused is opposed by that of the prosecution, as in the case
at bar, it is but logical that the court should have power to decide where the balance of convenience
or inconvenience lies, and to determine the most suitable place of the trial according to the
exigencies of truth and impartial justice.

In the particular case before Us, to compel the prosecution to proceed to trial in a locality where its
witnesses will not be at liberty to reveal what they know is to make a mockery of the judicial process,
and to betray the very purpose for which courts have been established. Since the rigorous
application of the general principle of Rule 110, Section 14 (a), would result here in preventing a fair
and impartial inquiry into the actual facts of the case, it must be admitted that the exigencies of
justice demand that the general rule relied upon by accused respondents should yield to occasional
exceptions wherever there are weighty reasons therefor. Otherwise, the rigor of the law would
become the highest injustice "summum jus, summa in juria."

The respondents accused can not complain that to transfer the trial to a site where the prosecution's
witnesses can feel free to reveal what they know would be equivalent to railroading them into a
conviction. Because regardless of the place where its evidence is to be heard, the prosecution will
be always obligated to prove the guilt of the accused beyond reasonable doubt. The scales of justice
clearly lean in favor of the prosecution being given full opportunity to lay its case before a proper
arbiter: for a dismissal of the charges for lack of evidence is a verdict that the prosecution can
neither challenge nor appeal.

We must thus reject the idea that our courts, faced by an impasse of the kind now before Us, are to
confess themselves impotent to further the cause of justice. The Constitution has vested the Judicial
Power in the Supreme Court and such inferior courts as may be established by law (Article VIII,
Section 13), and such judicial power connotes certain incidental and inherent attributes reasonably
necessary for an effective administration of justice. The courts "can by appropriate means do all
things necessary to preserve and maintain every quality needful to make the judiciary an effective
institution of government" (Borromeo vs. Mariano, 41 Phil. 322).

One of these incidental and inherent powers of courts is that of transferring the trial of cases from
one court to another of equal rank in a neighboring site, whenever the imperative of securing a fair
and impartial trial, or of preventing a miscarriage of justice, so demands. This authority was early
recognized in England as inhering in the courts of justice even prior to the eighteenth century. The
opinion in Crocker vs. Justices of the Superior Court, 208 Mass. 162, 21 Ann. Cases 1067, has
shown how the eminent Lord Chief Justice Mansfield, in Rex vs. Cowle (Eng.) 2 Burr 834, decided in
1759, said that, in this respect, "the law is clear and uniform as far back as it can be traced."

And in Reg. vs. Conway, 7 Jr. C. J. 507, the question was fully discussed, and all the judges appear
to have agreed as to the power of the court, Cramption, Jr., saying at page 525:

There is another common-law right, equally open to defendants and prosecutors, ...
that where it appears that either party cannot obtain a fair and impartial trial in the
proper county, then this court ... has jurisdiction to take the case out of the proper
county, as it is called, and to bring it into an indifferent county ... This jurisdiction to
change the venue ... has been exercised by this court from a very early period. We
have reported cases, where the doctrine is laid down in emphatic language; we have
the practice of the Court of Queen's Bench in England independently of any practice
of our own court ... The general jurisdiction of the court, in a proper case, to change
the venue from one county to any other, cannot be the subject of doubt.

This power to transfer trial of criminal cases in furtherance of justice, exercised through writs
of certiorari, has, according to the weight of authority, passed to the State Supreme Courts of the
American Union.1 In Cochecho R. Co. vs. Farrington, 26 N.H. 428, at page 436, it was held that the
power to transfer the place of holding trials

became thoroughly engrafted upon the common law, long before the independence
of this country; and from that time forth, not only has the practice prevailed in the
courts of England, but the power is now exercised by the Courts of very many if not
all of our states, either by force of express statute or the adoption of the common law
in the jurisprudence of the same.

That such inherent powers are likewise possessed by the Philippine courts admits of no doubt,
because they were organized on the American pattern with the enactment of the first judicial organic
law, Act 136, on 11 June 1901, by the Philippine Commission, then composed by a majority of able
American lawyers, fully familiar with the institutions and traditions of the common law.

In Alzua and Arnalot vs. Johnson, 21 Phil. 300, 333, this Court stated:

And it is safe to say that in every volume of the Philippine Reports, numbers of cases
might be cited wherein recourse has been had to the rules, principles and doctrines
of the common law in ascertaining the true meaning and scope of the legislation
enacted in and for the Philippine Islands since they passed under American
sovereignty.

Among the earliest measures of the Philippine Commission, after the establishment
of Civil Government under American sovereignty, was the enactment on June 11,
1901, of Act No. 136, "An Act providing for the organization of courts in the Philippine
Islands." This Act in express terms abolished the then existing Audiencia or Supreme
Court and Courts of First Instance, and substituted in their place the courts provided
therein. It sets out in general terms the jurisdiction, duties, privileges, and powers of
the new courts and their judges. The majority of the members of the body which
enacted it were able American lawyers. The spirit with which it is informed, and
indeed its very language and terminology would be unintelligible without some
knowledge of the judicial systems of England and the United States. Its manifest
purpose and object was to replace the old judicial system, with its incidents and
traditions drawn from Spanish sources, with a new system modeled in all its essential
characteristics upon the judicial systems of the United States. It cannot be doubted,
therefore, that any incident of the former system which conflicts with the essential
principles and settled doctrines on which the new system rests, must be held to be
abrogated by the law organizing the new system.

While not expressly conferred by Act 136, We find it difficult to believe that the framers' intent was to
deny, by silence, to the Philippine Courts, and particularly upon this Supreme Court, the inherent
jurisdiction possessed by the English and American courts under their common law heritage to
transfer the place of trial of cases in order to secure and promote the ends of justice, by providing
fair and impartial inquiry and adjudication.

Like the exemption of judges of courts of superior or general authority from liability in a civil action for
acts done by them in the exercise of their judicial functions, upheld in the Alzua case as essentially
inherent in the courts established by Act 136, even if not expressly provided for, the power to
transfer the place of trials when so demanded by the interest of justice is equally essential and
possesses no inferior rank. To it apply, mutatis mutandis, the words of this Court in the Alzua case
just cited:
The grounds of public policy and the reasoning upon which the doctrine is based are
not less forceful and imperative in these Islands than in the countries from which the
new judicial system was borrowed; and an examination of the reasons assigned ...
leaves no room for doubt that a failure to recognize it as an incident to the new
judicial system would materially impair its usefulness and tend very strongly to defeat
the ends for which it was established. (21 Phil. 333-334)

Not only has there been since then no proof of any specific pronouncement, by Constitution or
Congress, against the exercise by our Courts of the power discussed heretofore: on the contrary, the
law establishing the Circuit Criminal Courts, Republic Act No. 5179, in its Section 4, provides
express legislative recognition of its existence:

SEC. 4. The Circuit Criminal Courts may hold sessions anywhere within their
respective districts: Provided, however, that cases shall be heard within the province
where the crime subject of the offense was committed. And provided further, that
when the interest of justice so demands, with prior approval of the Supreme Court,
cases may be heard in a neighboring province within the district ... (Emphasis
supplied)

Since the requirements for proper jurisdiction have been satisfied by the filing of the criminal case in
question with the Court of First Instance of Ilocos Sur, in which province the offenses charged were
committed, according to the informations; since the holding of the trial in a particular place is more a
matter of venue, rather than jurisdiction; since the interests of truth and justice can not be subserved
by compelling the prosecution to proceed to trial in the respondent court in Ilocos Sur, because its
witnesses, for just and weighty reasons, are unwilling to testify therein, and the respondent court,
ignoring their safety, has abusively denied the motion to have the case transferred to another court,
this Supreme Court, in the exercise of judicial power possessed by it under the Constitution and the
statutes, should decree that the trial of cases 47-V and 48-V should be heard and decided by the
Circuit Criminal Court of the Second Judicial District, either in San Fernando, La Union, or in Baguio
City, at the earlier available date. This arrangement would have the advantage that the same trial
judge could later be authorized to hear the defense witnesses in Vigan, if circumstances so
demanded. Furthermore, the adjudication of the case by a judge other than respondent Gutierrez, if
resulting in acquittal, would remove any doubt or suspicion that the same was in any way influenced
by the trial Judge's being beholden to the Crisologo family.

The solution thus adopted is in harmony with the ideals set by this Court in Manila Railroad Co. vs.
Attorney General, 20 Phil. 523, where We said:

... The most perfect procedure that can be devised is that which gives opportunity for
the most complete and perfect exercise of the powers of the court within the
limitations set by natural justice. It is that one which, in other words, gives the most
perfect opportunity for the powers of the court to transmute themselves into concrete
acts of justice between the parties before it. The purpose of such a procedure is not
to restrict the jurisdiction of the court over the subject matter but to give it effective
facility in righteous action.

It may be said in passing that the most salient objection which can be urged against
procedure today is that it so restricts the exercise of the court's power by
technicalities that part of its authority effective for justice between the parties is many
times in inconsiderable portion of the whole. The purpose of procedure is not to
thwart justice. Its proper aim is to facilitate the application of justice to the rival claims
of contending parties. It was created not to hinder and delay but to facilitate and
promote the administration of justice. It does not constitute the thing itself which
courts are always striving to secure to litigants. It is designed as the means best
adapted to obtain that thing. In other words, it is a means to an end. It is the means
by which the powers of the court are made effective in just judgments. When it loses
the character of the one and takes on that of the other the administration of justice
becomes incomplete and unsatisfactory and lays itself open to grave criticism.
(Manila Railroad Co. v. Attorney-General, 20 Phil. 523, 529 [1911]. Emphasis and
paragraphing supplied.)

In resume, this Court holds, and so rules:

(1) That Republic Act No. 5179 creating the Circuit Criminal Courts did not, and does not, authorize
the Secretary of Justice to transfer thereto specified and individual cases;

(2) That this Supreme Court, in the exercise of the Judicial Power vested by the Constitution upon it
and other statutory Courts, possesses inherent power and jurisdiction to decree that the trial and
disposition of a case pending in a Court of First Instance be transferred to another Court of First
Instance within the same district whenever the interest of justice and truth so demand, and there are
serious and weighty reasons to believe that a trial by the court that originally had jurisdiction over the
case would not result in a fair and impartial trial and lead to a miscarriage of justice.

(3) That in the present case there are sufficient and adequate reasons for the transfer of the hearing
of Criminal Cases Nos. 47-V and 48-V of the Court of First Instance of Ilocos Sur to the Circuit
Criminal Court of the Second Judicial District, in the interest of truth and justice.

IN VIEW OF THE FOREGOING, the writs of certiorari and mandamus prayed for are
granted; the order of the respondent Court of First Instance of Ilocos Sur, dated 20
July 1970, is sustained in so far as it holds that the Administrative Order No. 221 of
the Department of Justice is not mandatory, but only directory; nevertheless, said
order is declared in grave abuse of discretion and set aside in so far as it declines to
transfer the trial of its cases Nos. 47-V and 48-V to another court within the district;
and said respondent Court is accordingly directed and ordered to remand the two
criminal cases aforesaid to the Circuit Criminal Court of the Second Judicial District
for hearing of the evidence for the prosecution either in Baguio or San Fernando, La
Union, at the earliest available date, and such other proceedings as the Circuit
Criminal Court may determine in the interest of justice.

The accused are required to file bail bonds to answer for their appearance at the trial and sentence
by the Circuit Criminal Court for the Second Judicial District, in the same amount, and under the
same terms and conditions as their present bail bonds, which will be replaced by those herein
ordered, all within fifteen (15) days from finality of this decision.

No special pronouncement as to costs.

Makalintal, Zaldivar, Castro and Teehankee, JJ., concur.

Concepcion, C.J., took no part.

Villamor, J., reserves his vote.

Dizon and Makasiar, JJ., are on leave.


Separate Opinions

FERNANDO, J., concurring:

The learned and scholarly opinion of Justice J.B.L. Reyes renders crystal-clear why the decision
reached by this Court should be what it is. It is a manifestation of the jurist's art at its most
exemplary. It belies the belief not infrequently given utterance that hard cases make bad law. The
problem before us is unique and unprecedented as far as our previous decisions go. It calls for a
resolution far-reaching in its consequences and far-flung in its implications. Fortunately for the
administration of justice according to law, there is the recognition of power vested in this Court, in
the past perhaps only imperfectly discerned but nonetheless in existence, to be utilized whenever
there is need to do so. This is one such occasion. Even without resort then to precedents coming
from jurisdictions after which our judicial system was patterned, the same result would have been
reached. For only thus, to paraphrase Cardozo, would the flexibility and the creativeness of the
judicial process assert themselves.

The opinion of Justice J.B.L., Reyes therefore calls for assent, which I readily yield. Nor does it seem
inappropriate if it be stressed that the conclusion reached by the Court is solidly buttressed not only
in law as history but likewise in law as logic and as social control. Hence this brief concurring
opinion, which likewise will afford me the opportunity to give expression to the view that the
Constitution and the proceedings in the Constitutional Convention of 1934-1935 point unerringly to
the conclusion that this Court as the sole body vested with judicial power by the fundamental law
itself is not devoid of supervisory authority over inferior courts. Necessarily the prerogative to
transfer the venue of criminal prosecutions whenever there is a persuasive showing that there would
be a failure of justice is therein included. On such an assumption, I do not feel called upon to inquire
into any asserted authority, even if denominated administrative, of an alter ego of the Executive, the
Secretary of Justice, over the lower courts. For my belief gets stronger with the years that it would be
difficult to assert that such a competence, even as thus limited, is warranted under a Constitution
based on the doctrine of separation of powers and necessarily committed to the principle of judicial
independence.

1. We start with the grant by the Constitution of Judicial power to this Court and to such inferior
courts as may be established by law.1 Thus is conferred the authority to decide cases through the
ascertainment of facts and the application of the law, involving many a time its interpretation.2It
connotes, in the language of the decision, "the imperative of securing a fair and impartial trial, or of
preventing a miscarriage of justice. ...."3 Where, as this did develop in this case, there is more than a
probability of an impasse with the witnesses for the prosecution displaying the utmost reluctance to
testify if the trial would be held in Vigan, entailing the risk that there be, again in the language of the
opinion, "a mockery of the judicial process."4 it would appear undeniable, and we have so held today,
that this Court is not to be denied the necessary competence to set matters right. It is not to fold its
hands as if in helpless submission to a binding decree of Providence but must meet the problem
squarely, possessed of power adequate to cope with such an exigency. In the same way that the
two other coordinate departments, the Executive and Congress, being constitutional organs, can rely
on the fundamental law to justify the exercise of certain prerogatives,5 so may this Court, the only
constitutional court, exercise supervision over all other judicial agencies thereafter legislatively
created, appropriately termed by the Constitution as inferior courts.

There would be a void in the framework of government thus established if there is no official body of
a higher rank that can take the necessary steps to avoid a frustration of the exercise of judicial
power. It is my firm conviction that neither the Presidency nor Congress can rightfully be entrusted
with such a task. If it were thus, then the doctrine of separation of powers becomes a myth. Such an
approach necessarily and logically compel the conclusion that the so called administrative
supervision exercised by the Secretary of Justice is, to put it at its mildest, infected with the gravest
doubts as to its constitutionality.

There is no need to go that far to reach a decision in this case as is so aptly demonstrated in the
opinion of the Court. What appears to me undisputed is that where the question partakes of a judicial
character, only this Court can perform that function and trace its source to the Constitution itself.
That is to free the Constitution from the reproach that a situation is left unprovided for. What is more,
it assures the utmost respect for the principle that like the other two coordinate and co-equal
branches, Court is likewise the recipient of power conferred by the Constitution itself.6

2. So much for law from the standpoint of analytical jurisprudence of law as logic. If the matter be
viewed from the approach found congenial by sociological jurists, law as one of the most effective
forms of social control, the same conclusion appears to be inescapable. This is to examine legal
institutions in terms of how they function. It certainly would be a blot on the administration of justice if
by the reluctance of witnesses to testify, based on what they consider to be a feeling that cannot be
stigmatized under the circumstances as having no basis in reason, no trial could be had of a criminal
case. It is a matter of great public interest that crime should not go unpunished. Of course, it is
equally important that the rights of whoever is accused are duly safeguarded. Where as in this case
an impasse is likely to occur, in itself an alarming symptom of a breakdown in the orderly legal
processes, the loss of public confidence in the rule of law itself is incalculable. That is an eventuality
which at all pains must be avoided. The only question is how. If the legal doctrine and principles,
which under the system of legal norms followed must be grounded in the Constitution itself do not
recognize such a competence in this Court, then for some all may well be lost.

It would be unthinkable, again given the assumption, not entirely without basis, that the two other
branches of the government cannot escape political considerations, to assume that either Congress
or the Executive can be trusted to take care of such a situation. Nor would it do to leave such
matters in the hands of the lower courts, unless whatever is decided by them is subject to correction
and review by the only constitutional court, certainly vested with the needed supervisory authority. It
would thus appear, if a breakdown in the legal system is to be averted, that the power of this Court is
undeniable. There would seem to be no other way to avoid a serious disruption in the legal order.

The above considerations necessarily lead me to yield a full concurrence with what has been so
persuasively and ably put forth in the masterly opinion of Justice J.B.L. Reyes.

December 5, 1970

BARREDO, J., concurring:

The accuracy of the technical bases as well as the unerring logic of the resolution of the various
facets of this case evidence in the main opinion written by our erudite colleague Mr. Justice J.B.L.
Reyes could not but impel the unanimous assent given thereto by the members of this Court.
Indeed, I could give the best evidence of my full concurrence therein by merely signing the same
without this separate opinion. I feel, however, that the impact of this decision is of such
transcendental importance to the administration of justice in this country, particularly now when
some sectors of our people make no secret of lingering doubts as to the fairness and impartiality by
judicial actuations and decisions, that my duty as a member of this highest tribunal of the land calls
for more than just the giving of my vote in favor thereof. I consider it incumbent upon me, since none
of my brethren seems to be minded to do it, to project more emphatically certain relevant matters,
the significance of which should go hand in hand with the resolution of the case itself.

I can neither control nor conceal the feeling of full satisfaction that overwhelms me now, because I
consider this decision as probably the first one of national importance, in a long time, that will receive
universal and unqualified approval throughout the length and breath of this Republic. I am sure it will
yield for our constitutional government as a whole and for the judiciary in particular a rich harvest of
regained trust and confidence in the administration of justice. This decision is a great leap forward.
We are shaking away from a long standing jurisprudential rule; We are casting aside technical
procedural roadblocks; We are here and now proclaiming to all and sundry the plenitude, under the
Constitution, of Our power and authority to "insure to (our people) and their posterity, the blessings
of independence under a regime of justice" (Preamble of the Constitution) by holding that the
"judicial power ... vested in ... (the) Supreme Court" necessarily carries with it the power to lay down
procedures that will effectively and fully guarantee, as far as it is humanly possible to do so, that
substantial justice shall not be defeated thru technicalities of procedure; and what is most important
today, as I view it, is that this is one decision the essence of which spells simple justice that will be
plainly understood by the common man. In the clearest terms, this Court holds in effect in this
decision that inspite of the traditional rule that a person charged with an offense may not be tried in a
province outside of the one ill which the alleged offense or any essential ingredient thereof has been
committed, it is the duty of the corresponding trial court, with the approval of the Supreme Court, to
see to it that when the demands of justice require it, the venue is moved to another province wherein
the circumstantial environment will insure a full disclosure of all material facts essential in the pursuit
of truth and justice. Surely, the common man would not understand why the Supreme Court in whom
the totality of judicial power is vested by the Constitution would not have the authority and the right,
nay the duty, to prevent a trial from being held in a place where it would be nothing more than a
farce and an empty show, the final chapter of which may have already been prewritten, even
independently of the honesty and integrity of the presiding judge, because of external factors and
forces that impede the witnesses from making a free and fearless exposition of what they know. I am
exceedingly happy that by this decision, the common man will understand that neither the
Constitution nor this Court will ever be found wanting in what is needed top render justice in its truest
sense.

Now, for some views of my own on the specific legal issues raised by the parties in their pleadings.
The problem revolves around the power of the Secretary of the Department of Justice vis-a-vis the
operation of the Circuit Criminal Courts created by Republic Act 5179. The People contends that by
Administrative Order 258 and 271, Series of 1968 and Administrative Order No. 226, Series of 1970,
of the Secretary of Justice, issued pursuant allegedly to Republic Act 5179, (presumably Section 8
thereof) the transfer of the criminal cases herein involved, Criminal Cases Nos. 47-V and 48-V of the
Court of First Instance of Ilocos Sur to the Circuit Criminal Court of the Second Judicial District is
legally justifiable. On the other hand, the defense submits that under the uniformly announced
doctrine of this Court regarding the jurisdictional nature of the venue of criminal cases and principally
because to give effect to the administrative orders aforementioned would be impairing the
independence of the judiciary, the accused in aforesaid cases must be tried in Vigan, Ilocos Sur, by
the Court of First Instance in which, it is a fact, the case was filed on June 15, 1970, the very day
Administrative Order No. 221 of the Secretary of Justice authorizing Judge Lino Anover of the Circuit
Criminal Court to hold sessions in Vigan beginning July 1, 1970 was issued.

It is my considered view that the less said about the intervention of the Department of Justice with
the Circuit Criminal Courts by the issuance of Administrative Orders 258 and 274, Series of 1968
and worse Administrative Order No. 226, Series of 1970 the better, for I find absolutely no legal
authority for the issuance of said Orders. The first two purportedly direct and instruct the judges of
the various judicial districts of the Philippines as to how to apportion among themselves, together
with the corresponding circuit criminal court judges, the cases falling within their concurrent
jurisdiction. I feel very strongly that the distribution of the powers of government by the Constitution
places, even in its broadest sense, everything that judges have to do that might in one way or
another affect or be related to the ultimate disposition of the controversies and cases to be tried by
them, including the distribution of the cases to be tried by them, entirely and exclusively with the
judges themselves by common agreement among them, and so I hold that whatever be the import of
Section 8 of Republic Act 5179 providing that "for administrative purposes, the Circuit Criminal
Courts shall be under the supervision of the Department of Justice," the same cannot be considered
as contemplating any intervention of the Secretary of Justice in the distribution of cases among
judges. That the common impression and long standing practice on the matter are otherwise, cannot
alter what, in my humble view, the Constitution ordains.

I take it that under Republic Act 5179, Circuit Criminal Courts are nothing but additional branches of
the regular Courts of First Instance in their respective districts with the limited concurrent jurisdiction
to take cognizance of, try and decide only those cases enumerated in Section 1 of the Act. This is
readily implied from Section 3 of the Act which says:

SEC. 3. The provisions of all laws and the Rules of Court relative to the judges of the
Courts of First Instance and the trial, disposition and appeal of criminal cases therein
shall be applicable to the circuit judge and the cases cognizable by them insofar as
they are not inconsistent with the provisions of this Act.

It is also my conviction that when Congress enacted Republic Act 5179, it was conscious of the
existing doctrinal rule laid down by this Court, in Cunanan1 that in criminal cases, venue is equivalent
to territorial jurisdiction and precisely because of this consciousness and the knowledge that the
nature of the crimes placed within the jurisdiction of the Circuit Criminal Courts is such that their
successful prosecution might be impaired or obstructed by the doctrinal rule aforementioned that in
Section 4 of the Act, Congress expressly provided that as a rule, "cases shall be heard within the
province where the crime subject of the offense (sic) was committed" but "when the interest of justice
so demands, with the prior approval of the Supreme Court, cases may be heard in a neighboring
province of the district."

It is contended that these quoted provisions of Section 4 contemplate only those cases already in
the Circuit Criminal Court. That may be so, but my view is that by the said provisions, Congress has
precisely opened the door for the regular courts trying cases of the nature enumerated in the Act to
shift those cases to the circuit criminal court in instances like the present wherein it appears quite
evident that to maintain Vigan as the venue of the trials in question will defeat the ends of justice, for,
after all, the circuit court is just another branch of the Court of First Instance, and once it is in the
former court, then Section 4 may be easily applied. Moving of cases from one branch of a Court of
First Instance to another branch thereof is neither new nor unusual when the judges concerned are
agreed that such a step would best promote the interests of justice. In the light of this practice,
commendable in its motivation, why cannot the transfer be made from the Court of First Instance to
circuit criminal court? Indeed, this should not be treated as merely a matter of discretion; judges
should feel bound to act accordingly, as a matter of duty, hence a negative action in the appropriate
cases is ground for certiorari or mandamus. In this connection, however, I must hasten to advert,
that the interested parties should be duly heard on the matter and, in accordance with the spirit, if
not the letter of the law, approval of the Supreme Court be secured.
Apropos of all this discussion, I would like to make it clear that the rule invoked by the defense to the
effect that venue in criminal cases is jurisdictional in character has no foundation in any act of the
legislature. There can be no question that jurisdiction is conferred only by law and that it is only
venue that may be fixed by the Rules of Court because jurisdiction is substantive and venue is
merely procedural. The rule the defense invokes is found only in a decision of this Court rendered
way back in 1913. In Cunanan, supra, this Court held: "The jurisdiction of the Courts of First Instance
of the Philippine Islands, in criminal cases, is limited to certain well-defined territory. They cannot
take jurisdiction of persons charged with an offense alleged to have been committed outside of that
limited territory."

As can be noted, no provision of law is cited in support of the ruling. The reason is simple. There is
no such law. In other words, whatever force such invoked ruling may have is no more than that of a
construction given by this Court. I dare say that when a previous construction by this Court runs
counter to fundamental principles now separating the rule making power of the courts from the
legislative faculty to define and apportion jurisdiction, it is best to lean in favor of recognizing the
constitutional boundaries of our prerogatives when they are plain and the contrary cannot be implied.
And since it was this Court that made the construction, there is nothing to stop Us from modifying the
same, and inasmuch as Section 14, par. (a) of Rule 110 is purely a rule of venue, not legislated
upon by Congress as a jurisdictional matter, Our power to change the same is unquestionable. I,
therefore, reiterate my concurrence in the resolution of this point in the main opinion.

Accordingly, I agree that the respondent judge gravely abused his discretion in not yielding to the
suggested transfer of the cases in question to the circuit criminal court. Court trials and proceedings
mean nothing unless the pronouncement and decisions of the courts merit the faith and trust of the
parties in particular and the people in general. To the common man specially, the imperatives of
justice administered by our courts are: (1) judge who can be trusted and (2) procedures that insulate
the proceedings from all factors that may taint the ultimate outcome of litigations with doubt and
skepticism. To my mind, it is not enough that a judge trusts himself or can be trusted as capable of
acting in good faith, it is equally important that no circumstance attendant to the proceedings should
mar that quality of trustworthiness. It is thus clear that by Our decision in this case, We are not
expressing any distrust as to the impartiality of respondent judge; it should be clearly understood,
however, that it is possible for his decision to be unfair not because he has made it so, but because
under the circumstances, the adulterated evidence before him leaves him no other alternative.

May I say as I close that what is most striking in this decision is that it is a unanimous one, in spite of
the fact that at first blush it appeared that there were formidable adverse precedents on our way.
After long and careful deliberation and after viewing all its angles, factual and legal, when the time
for voting came, there was no hesitation in the assent that all of us gave to the rationalizations and
conclusions contained in the scholarly main opinion of Mr. Justice Reyes and the dispositive part of
the decision, but by no means and in absolutely no degree did the public discussion generated by
the peculiary circumstances and personages involved in this case ever influence any of Us, as such
things, indeed, never will.

# Separate Opinions

FERNANDO, J., concurring:


The learned and scholarly opinion of Justice J.B.L. Reyes renders crystal-clear why the decision
reached by this Court should be what it is. It is a manifestation of the jurist's art at its most
exemplary. It belies the belief not infrequently given utterance that hard cases make bad law. The
problem before us is unique and unprecedented as far as our previous decisions go. It calls for a
resolution far-reaching in its consequences and far-flung in its implications. Fortunately for the
administration of justice according to law, there is the recognition of power vested in this Court, in
the past perhaps only imperfectly discerned but nonetheless in existence, to be utilized whenever
there is need to do so. This is one such occasion. Even without resort then to precedents coming
from jurisdictions after which our judicial system was patterned, the same result would have been
reached. For only thus, to paraphrase Cardozo, would the flexibility and the creativeness of the
judicial process assert themselves.

The opinion of Justice J.B.L., Reyes therefore calls for assent, which I readily yield. Nor does it seem
inappropriate if it be stressed that the conclusion reached by the Court is solidly buttressed not only
in law as history but likewise in law as logic and as social control. Hence this brief concurring
opinion, which likewise will afford me the opportunity to give expression to the view that the
Constitution and the proceedings in the Constitutional Convention of 1934-1935 point unerringly to
the conclusion that this Court as the sole body vested with judicial power by the fundamental law
itself is not devoid of supervisory authority over inferior courts. Necessarily the prerogative to
transfer the venue of criminal prosecutions whenever there is a persuasive showing that there would
be a failure of justice is therein included. On such an assumption, I do not feel called upon to inquire
into any asserted authority, even if denominated administrative, of an alter ego of the Executive, the
Secretary of Justice, over the lower courts. For my belief gets stronger with the years that it would be
difficult to assert that such a competence, even as thus limited, is warranted under a Constitution
based on the doctrine of separation of powers and necessarily committed to the principle of judicial
independence.

1. We start with the grant by the Constitution of Judicial power to this Court and to such inferior
courts as may be established by law.1 Thus is conferred the authority to decide cases through the
ascertainment of facts and the application of the law, involving many a time its interpretation.2It
connotes, in the language of the decision, "the imperative of securing a fair and impartial trial, or of
preventing a miscarriage of justice. ...."3 Where, as this did develop in this case, there is more than a
probability of an impasse with the witnesses for the prosecution displaying the utmost reluctance to
testify if the trial would be held in Vigan, entailing the risk that there be, again in the language of the
opinion, "a mockery of the judicial process."4 it would appear undeniable, and we have so held today,
that this Court is not to be denied the necessary competence to set matters right. It is not to fold its
hands as if in helpless submission to a binding decree of Providence but must meet the problem
squarely, possessed of power adequate to cope with such an exigency. In the same way that the
two other coordinate departments, the Executive and Congress, being constitutional organs, can rely
on the fundamental law to justify the exercise of certain prerogatives,5 so may this Court, the only
constitutional court, exercise supervision over all other judicial agencies thereafter legislatively
created, appropriately termed by the Constitution as inferior courts.

There would be a void in the framework of government thus established if there is no official body of
a higher rank that can take the necessary steps to avoid a frustration of the exercise of judicial
power. It is my firm conviction that neither the Presidency nor Congress can rightfully be entrusted
with such a task. If it were thus, then the doctrine of separation of powers becomes a myth. Such an
approach necessarily and logically compel the conclusion that the so called administrative
supervision exercised by the Secretary of Justice is, to put it at its mildest, infected with the gravest
doubts as to its constitutionality.

There is no need to go that far to reach a decision in this case as is so aptly demonstrated in the
opinion of the Court. What appears to me undisputed is that where the question partakes of a judicial
character, only this Court can perform that function and trace its source to the Constitution itself.
That is to free the Constitution from the reproach that a situation is left unprovided for. What is more,
it assures the utmost respect for the principle that like the other two coordinate and co-equal
branches, Court is likewise the recipient of power conferred by the Constitution itself.6

2. So much for law from the standpoint of analytical jurisprudence of law as logic. If the matter be
viewed from the approach found congenial by sociological jurists, law as one of the most effective
forms of social control, the same conclusion appears to be inescapable. This is to examine legal
institutions in terms of how they function. It certainly would be a blot on the administration of justice if
by the reluctance of witnesses to testify, based on what they consider to be a feeling that cannot be
stigmatized under the circumstances as having no basis in reason, no trial could be had of a criminal
case. It is a matter of great public interest that crime should not go unpunished. Of course, it is
equally important that the rights of whoever is accused are duly safeguarded. Where as in this case
an impasse is likely to occur, in itself an alarming symptom of a breakdown in the orderly legal
processes, the loss of public confidence in the rule of law itself is incalculable. That is an eventuality
which at all pains must be avoided. The only question is how. If the legal doctrine and principles,
which under the system of legal norms followed must be grounded in the Constitution itself do not
recognize such a competence in this Court, then for some all may well be lost.

It would be unthinkable, again given the assumption, not entirely without basis, that the two other
branches of the government cannot escape political considerations, to assume that either Congress
or the Executive can be trusted to take care of such a situation. Nor would it do to leave such
matters in the hands of the lower courts, unless whatever is decided by them is subject to correction
and review by the only constitutional court, certainly vested with the needed supervisory authority. It
would thus appear, if a breakdown in the legal system is to be averted, that the power of this Court is
undeniable. There would seem to be no other way to avoid a serious disruption in the legal order.

The above considerations necessarily lead me to yield a full concurrence with what has been so
persuasively and ably put forth in the masterly opinion of Justice J.B.L. Reyes.

December 5, 1970

BARREDO, J., concurring:

The accuracy of the technical bases as well as the unerring logic of the resolution of the various
facets of this case evidence in the main opinion written by our erudite colleague Mr. Justice J.B.L.
Reyes could not but impel the unanimous assent given thereto by the members of this Court.
Indeed, I could give the best evidence of my full concurrence therein by merely signing the same
without this separate opinion. I feel, however, that the impact of this decision is of such
transcendental importance to the administration of justice in this country, particularly now when
some sectors of our people make no secret of lingering doubts as to the fairness and impartiality by
judicial actuations and decisions, that my duty as a member of this highest tribunal of the land calls
for more than just the giving of my vote in favor thereof. I consider it incumbent upon me, since none
of my brethren seems to be minded to do it, to project more emphatically certain relevant matters,
the significance of which should go hand in hand with the resolution of the case itself.

I can neither control nor conceal the feeling of full satisfaction that overwhelms me now, because I
consider this decision as probably the first one of national importance, in a long time, that will receive
universal and unqualified approval throughout the length and breath of this Republic. I am sure it will
yield for our constitutional government as a whole and for the judiciary in particular a rich harvest of
regained trust and confidence in the administration of justice. This decision is a great leap forward.
We are shaking away from a long standing jurisprudential rule; We are casting aside technical
procedural roadblocks; We are here and now proclaiming to all and sundry the plenitude, under the
Constitution, of Our power and authority to "insure to (our people) and their posterity, the blessings
of independence under a regime of justice" (Preamble of the Constitution) by holding that the
"judicial power ... vested in ... (the) Supreme Court" necessarily carries with it the power to lay down
procedures that will effectively and fully guarantee, as far as it is humanly possible to do so, that
substantial justice shall not be defeated thru technicalities of procedure; and what is most important
today, as I view it, is that this is one decision the essence of which spells simple justice that will be
plainly understood by the common man. In the clearest terms, this Court holds in effect in this
decision that inspite of the traditional rule that a person charged with an offense may not be tried in a
province outside of the one ill which the alleged offense or any essential ingredient thereof has been
committed, it is the duty of the corresponding trial court, with the approval of the Supreme Court, to
see to it that when the demands of justice require it, the venue is moved to another province wherein
the circumstantial environment will insure a full disclosure of all material facts essential in the pursuit
of truth and justice. Surely, the common man would not understand why the Supreme Court in whom
the totality of judicial power is vested by the Constitution would not have the authority and the right,
nay the duty, to prevent a trial from being held in a place where it would be nothing more than a
farce and an empty show, the final chapter of which may have already been prewritten, even
independently of the honesty and integrity of the presiding judge, because of external factors and
forces that impede the witnesses from making a free and fearless exposition of what they know. I am
exceedingly happy that by this decision, the common man will understand that neither the
Constitution nor this Court will ever be found wanting in what is needed top render justice in its truest
sense.

Now, for some views of my own on the specific legal issues raised by the parties in their pleadings.
The problem revolves around the power of the Secretary of the Department of Justice vis-a-vis the
operation of the Circuit Criminal Courts created by Republic Act 5179. The People contends that by
Administrative Order 258 and 271, Series of 1968 and Administrative Order No. 226, Series of 1970,
of the Secretary of Justice, issued pursuant allegedly to Republic Act 5179, (presumably Section 8
thereof) the transfer of the criminal cases herein involved, Criminal Cases Nos. 47-V and 48-V of the
Court of First Instance of Ilocos Sur to the Circuit Criminal Court of the Second Judicial District is
legally justifiable. On the other hand, the defense submits that under the uniformly announced
doctrine of this Court regarding the jurisdictional nature of the venue of criminal cases and principally
because to give effect to the administrative orders aforementioned would be impairing the
independence of the judiciary, the accused in aforesaid cases must be tried in Vigan, Ilocos Sur, by
the Court of First Instance in which, it is a fact, the case was filed on June 15, 1970, the very day
Administrative Order No. 221 of the Secretary of Justice authorizing Judge Lino Anover of the Circuit
Criminal Court to hold sessions in Vigan beginning July 1, 1970 was issued.

It is my considered view that the less said about the intervention of the Department of Justice with
the Circuit Criminal Courts by the issuance of Administrative Orders 258 and 274, Series of 1968
and worse Administrative Order No. 226, Series of 1970 the better, for I find absolutely no legal
authority for the issuance of said Orders. The first two purportedly direct and instruct the judges of
the various judicial districts of the Philippines as to how to apportion among themselves, together
with the corresponding circuit criminal court judges, the cases falling within their concurrent
jurisdiction. I feel very strongly that the distribution of the powers of government by the Constitution
places, even in its broadest sense, everything that judges have to do that might in one way or
another affect or be related to the ultimate disposition of the controversies and cases to be tried by
them, including the distribution of the cases to be tried by them, entirely and exclusively with the
judges themselves by common agreement among them, and so I hold that whatever be the import of
Section 8 of Republic Act 5179 providing that "for administrative purposes, the Circuit Criminal
Courts shall be under the supervision of the Department of Justice," the same cannot be considered
as contemplating any intervention of the Secretary of Justice in the distribution of cases among
judges. That the common impression and long standing practice on the matter are otherwise, cannot
alter what, in my humble view, the Constitution ordains.

I take it that under Republic Act 5179, Circuit Criminal Courts are nothing but additional branches of
the regular Courts of First Instance in their respective districts with the limited concurrent jurisdiction
to take cognizance of, try and decide only those cases enumerated in Section 1 of the Act. This is
readily implied from Section 3 of the Act which says:

SEC. 3. The provisions of all laws and the Rules of Court relative to the judges of the
Courts of First Instance and the trial, disposition and appeal of criminal cases therein
shall be applicable to the circuit judge and the cases cognizable by them insofar as
they are not inconsistent with the provisions of this Act.

It is also my conviction that when Congress enacted Republic Act 5179, it was conscious of the
existing doctrinal rule laid down by this Court, in Cunanan1 that in criminal cases, venue is equivalent
to territorial jurisdiction and precisely because of this consciousness and the knowledge that the
nature of the crimes placed within the jurisdiction of the Circuit Criminal Courts is such that their
successful prosecution might be impaired or obstructed by the doctrinal rule aforementioned that in
Section 4 of the Act, Congress expressly provided that as a rule, "cases shall be heard within the
province where the crime subject of the offense (sic) was committed" but "when the interest of justice
so demands, with the prior approval of the Supreme Court, cases may be heard in a neighboring
province of the district."

It is contended that these quoted provisions of Section 4 contemplate only those cases already in
the Circuit Criminal Court. That may be so, but my view is that by the said provisions, Congress has
precisely opened the door for the regular courts trying cases of the nature enumerated in the Act to
shift those cases to the circuit criminal court in instances like the present wherein it appears quite
evident that to maintain Vigan as the venue of the trials in question will defeat the ends of justice, for,
after all, the circuit court is just another branch of the Court of First Instance, and once it is in the
former court, then Section 4 may be easily applied. Moving of cases from one branch of a Court of
First Instance to another branch thereof is neither new nor unusual when the judges concerned are
agreed that such a step would best promote the interests of justice. In the light of this practice,
commendable in its motivation, why cannot the transfer be made from the Court of First Instance to
circuit criminal court? Indeed, this should not be treated as merely a matter of discretion; judges
should feel bound to act accordingly, as a matter of duty, hence a negative action in the appropriate
cases is ground for certiorari or mandamus. In this connection, however, I must hasten to advert,
that the interested parties should be duly heard on the matter and, in accordance with the spirit, if
not the letter of the law, approval of the Supreme Court be secured.

Apropos of all this discussion, I would like to make it clear that the rule invoked by the defense to the
effect that venue in criminal cases is jurisdictional in character has no foundation in any act of the
legislature. There can be no question that jurisdiction is conferred only by law and that it is only
venue that may be fixed by the Rules of Court because jurisdiction is substantive and venue is
merely procedural. The rule the defense invokes is found only in a decision of this Court rendered
way back in 1913. In Cunanan, supra, this Court held: "The jurisdiction of the Courts of First Instance
of the Philippine Islands, in criminal cases, is limited to certain well-defined territory. They cannot
take jurisdiction of persons charged with an offense alleged to have been committed outside of that
limited territory."

As can be noted, no provision of law is cited in support of the ruling. The reason is simple. There is
no such law. In other words, whatever force such invoked ruling may have is no more than that of a
construction given by this Court. I dare say that when a previous construction by this Court runs
counter to fundamental principles now separating the rule making power of the courts from the
legislative faculty to define and apportion jurisdiction, it is best to lean in favor of recognizing the
constitutional boundaries of our prerogatives when they are plain and the contrary cannot be implied.
And since it was this Court that made the construction, there is nothing to stop Us from modifying the
same, and inasmuch as Section 14, par. (a) of Rule 110 is purely a rule of venue, not legislated
upon by Congress as a jurisdictional matter, Our power to change the same is unquestionable. I,
therefore, reiterate my concurrence in the resolution of this point in the main opinion.

Accordingly, I agree that the respondent judge gravely abused his discretion in not yielding to the
suggested transfer of the cases in question to the circuit criminal court. Court trials and proceedings
mean nothing unless the pronouncement and decisions of the courts merit the faith and trust of the
parties in particular and the people in general. To the common man specially, the imperatives of
justice administered by our courts are: (1) judge who can be trusted and (2) procedures that insulate
the proceedings from all factors that may taint the ultimate outcome of litigations with doubt and
skepticism. To my mind, it is not enough that a judge trusts himself or can be trusted as capable of
acting in good faith, it is equally important that no circumstance attendant to the proceedings should
mar that quality of trustworthiness. It is thus clear that by Our decision in this case, We are not
expressing any distrust as to the impartiality of respondent judge; it should be clearly understood,
however, that it is possible for his decision to be unfair not because he has made it so, but because
under the circumstances, the adulterated evidence before him leaves him no other alternative.

May I say as I close that what is most striking in this decision is that it is a unanimous one, in spite of
the fact that at first blush it appeared that there were formidable adverse precedents on our way.
After long and careful deliberation and after viewing all its angles, factual and legal, when the time
for voting came, there was no hesitation in the assent that all of us gave to the rationalizations and
conclusions contained in the scholarly main opinion of Mr. Justice Reyes and the dispositive part of
the decision, but by no means and in absolutely no degree did the public discussion generated by
the peculiary circumstances and personages involved in this case ever influence any of Us, as such
things, indeed, never will.
A.M. No. 1928 August 3, 1978

In the Matter of the IBP Membership Dues Delinquency of Atty. MARCIAL A. EDILION (IBP
Administrative Case No. MDD-1)

RESOLUTION

CASTRO, C.J.:

The respondent Marcial A. Edillon is a duly licensed practicing attorney in the Philippines.

On November 29, 1975, the Integrated Bar of the Philippines (IBP for short) Board of Governors
unanimously adopted Resolution No. 75-65 in Administrative Case No. MDD-1 (In the Matter of the
Membership Dues Delinquency of Atty. Marcial A. Edillon) recommending to the Court the removal
of the name of the respondent from its Roll of Attorneys for "stubborn refusal to pay his membership
dues" to the IBP since the latter's constitution notwithstanding due notice.

On January 21, 1976, the IBP, through its then President Liliano B. Neri, submitted the said
resolution to the Court for consideration and approval, pursuant to paragraph 2, Section 24, Article III
of the By-Laws of the IBP, which reads:

.... Should the delinquency further continue until the following June 29, the Board
shall promptly inquire into the cause or causes of the continued delinquency and take
whatever action it shall deem appropriate, including a recommendation to the
Supreme Court for the removal of the delinquent member's name from the Roll of
Attorneys. Notice of the action taken shall be sent by registered mail to the member
and to the Secretary of the Chapter concerned.

On January 27, 1976, the Court required the respondent to comment on the resolution and letter
adverted to above; he submitted his comment on February 23, 1976, reiterating his refusal to pay
the membership fees due from him.

On March 2, 1976, the Court required the IBP President and the IBP Board of Governors to reply to
Edillon's comment: on March 24, 1976, they submitted a joint reply.

Thereafter, the case was set for hearing on June 3, 1976. After the hearing, the parties were
required to submit memoranda in amplification of their oral arguments. The matter was thenceforth
submitted for resolution.

At the threshold, a painstaking scrutiny of the respondent's pleadings would show that the propriety
and necessity of the integration of the Bar of the Philippines are in essence conceded. The
respondent, however, objects to particular features of Rule of Court 139-A (hereinafter referred to as
the Court Rule) 1 in accordance with which the Bar of the Philippines was integrated and to the
provisions of par. 2, Section 24, Article III, of the IBP By-Laws (hereinabove cited).

The authority of the IBP Board of Governors to recommend to the Supreme Court the removal of a
delinquent member's name from the Roll of Attorneys is found in par. 2 Section 24, Article Ill of the
IBP By-Laws (supra), whereas the authority of the Court to issue the order applied for is found in
Section 10 of the Court Rule, which reads:
SEC. 10. Effect of non-payment of dues. Subject to the provisions of Section 12 of
this Rule, default in the payment of annual dues for six months shall warrant
suspension of membership in the Integrated Bar, and default in such payment for
one year shall be a ground for the removal of the name of the delinquent member
from the Roll of Attorneys.

The all-encompassing, all-inclusive scope of membership in the IBP is stated in these words of the
Court Rule:

SECTION 1. Organization. There is hereby organized an official national body to


be known as the 'Integrated Bar of the Philippines,' composed of all persons whose
names now appear or may hereafter be included in the Roll of Attorneys of the
Supreme Court.

The obligation to pay membership dues is couched in the following words of the Court Rule:

SEC. 9. Membership dues. Every member of the Integrated Bar shall pay such
annual dues as the Board of Governors shall determine with the approval of the
Supreme Court. ...

The core of the respondent's arguments is that the above provisions constitute an invasion of his
constitutional rights in the sense that he is being compelled, as a pre-condition to maintaining his
status as a lawyer in good standing, to be a member of the IBP and to pay the corresponding dues,
and that as a consequence of this compelled financial support of the said organization to which he is
admittedly personally antagonistic, he is being deprived of the rights to liberty and property
guaranteed to him by the Constitution. Hence, the respondent concludes, the above provisions of
the Court Rule and of the IBP By-Laws are void and of no legal force and effect.

The respondent similarly questions the jurisdiction of the Court to strike his name from the Roll of
Attorneys, contending that the said matter is not among the justiciable cases triable by the Court but
is rather of an "administrative nature pertaining to an administrative body."

The case at bar is not the first one that has reached the Court relating to constitutional issues that
inevitably and inextricably come up to the surface whenever attempts are made to regulate the
practice of law, define the conditions of such practice, or revoke the license granted for the exercise
of the legal profession.

The matters here complained of are the very same issues raised in a previous case before the
Court, entitled "Administrative Case No. 526, In the Matter of the Petition for the Integration of the
Bar of the Philippines, Roman Ozaeta, et al., Petitioners." The Court exhaustively considered all
these matters in that case in its Resolution ordaining the integration of the Bar of the Philippines,
promulgated on January 9, 1973. The Court there made the unanimous pronouncement that it was

... fully convinced, after a thoroughgoing conscientious study of all the arguments
adduced in Adm. Case No. 526 and the authoritative materials and the mass of
factual data contained in the exhaustive Report of the Commission on Bar
Integration, that the integration of the Philippine Bar is 'perfectly constitutional and
legally unobjectionable'. ...

Be that as it may, we now restate briefly the posture of the Court.


An "Integrated Bar" is a State-organized Bar, to which every lawyer must belong, as distinguished
from bar associations organized by individual lawyers themselves, membership in which is voluntary.
Integration of the Bar is essentially a process by which every member of the Bar is afforded an
opportunity to do his share in carrying out the objectives of the Bar as well as obliged to bear his
portion of its responsibilities. Organized by or under the direction of the State, an integrated Bar is an
official national body of which all lawyers are required to be members. They are, therefore, subject to
all the rules prescribed for the governance of the Bar, including the requirement of payment of a
reasonable annual fee for the effective discharge of the purposes of the Bar, and adherence to a
code of professional ethics or professional responsibility breach of which constitutes sufficient
reason for investigation by the Bar and, upon proper cause appearing, a recommendation for
discipline or disbarment of the offending member. 2

The integration of the Philippine Bar was obviously dictated by overriding considerations of public
interest and public welfare to such an extent as more than constitutionally and legally justifies the
restrictions that integration imposes upon the personal interests and personal convenience of
individual lawyers. 3

Apropos to the above, it must be stressed that all legislation directing the integration of the Bar have
been uniformly and universally sustained as a valid exercise of the police power over an important
profession. The practice of law is not a vested right but a privilege, a privilege moreover clothed with
public interest because a lawyer owes substantial duties not only to his client, but also to his
brethren in the profession, to the courts, and to the nation, and takes part in one of the most
important functions of the State the administration of justice as an officer of the court. 4 The
practice of law being clothed with public interest, the holder of this privilege must submit to a degree
of control for the common good, to the extent of the interest he has created. As the U. S. Supreme
Court through Mr. Justice Roberts explained, the expression "affected with a public interest" is the
equivalent of "subject to the exercise of the police power" (Nebbia vs. New York, 291 U.S. 502).

When, therefore, Congress enacted Republic Act No. 6397 5 authorizing the Supreme Court to
"adopt rules of court to effect the integration of the Philippine Bar under such conditions as it shall
see fit," it did so in the exercise of the paramount police power of the State. The Act's avowal is to
"raise the standards of the legal profession, improve the administration of justice, and enable the Bar
to discharge its public responsibility more effectively." Hence, the Congress in enacting such Act, the
Court in ordaining the integration of the Bar through its Resolution promulgated on January 9, 1973,
and the President of the Philippines in decreeing the constitution of the IBP into a body corporate
through Presidential Decree No. 181 dated May 4, 1973, were prompted by fundamental
considerations of public welfare and motivated by a desire to meet the demands of pressing public
necessity.

The State, in order to promote the general welfare, may interfere with and regulate personal liberty,
property and occupations. Persons and property may be subjected to restraints and burdens in order
to secure the general prosperity and welfare of the State (U.S. vs. Gomez Jesus, 31 Phil 218), for,
as the Latin maxim goes, "Salus populi est supreme lex." The public welfare is the supreme law. To
this fundamental principle of government the rights of individuals are subordinated. Liberty is a
blessing without which life is a misery, but liberty should not be made to prevail over authority
because then society win fall into anarchy (Calalang vs. Williams, 70 Phil. 726). It is an undoubted
power of the State to restrain some individuals from all freedom, and all individuals from some
freedom.

But the most compelling argument sustaining the constitutionality and validity of Bar integration in
the Philippines is the explicit unequivocal grant of precise power to the Supreme Court by Section 5
(5) of Article X of the 1973 Constitution of the Philippines, which reads:
Sec. 5. The Supreme Court shall have the following powers:

xxx xxx xxx

(5) Promulgate rules concerning pleading, practice, and pro. procedure in all courts,
and the admission to the practice of law and the integration of the Bar ...,

and Section 1 of Republic Act No. 6397, which reads:

SECTION 1. Within two years from the approval of this Act, the Supreme Court may
adopt rules of Court to effect the integration of the Philippine Bar under such
conditions as it shall see fit in order to raise the standards of the legal profession,
improve the administration of justice, and enable the Bar to discharge its public
responsibility more effectively.

Quite apart from the above, let it be stated that even without the enabling Act (Republic Act No.
6397), and looking solely to the language of the provision of the Constitution granting the Supreme
Court the power "to promulgate rules concerning pleading, practice and procedure in all courts, and
the admission to the practice of law," it at once becomes indubitable that this constitutional
declaration vests the Supreme Court with plenary power in all cases regarding the admission to and
supervision of the practice of law.

Thus, when the respondent Edillon entered upon the legal profession, his practice of law and his
exercise of the said profession, which affect the society at large, were (and are) subject to the power
of the body politic to require him to conform to such regulations as might be established by the
proper authorities for the common good, even to the extent of interfering with some of his liberties. If
he did not wish to submit himself to such reasonable interference and regulation, he should not have
clothed the public with an interest in his concerns.

On this score alone, the case for the respondent must already fall.

The issues being of constitutional dimension, however, we now concisely deal with them seriatim.

1. The first objection posed by the respondent is that the Court is without power to compel him to
become a member of the Integrated Bar of the Philippines, hence, Section 1 of the Court Rule is
unconstitutional for it impinges on his constitutional right of freedom to associate (and not to
associate). Our answer is: To compel a lawyer to be a member of the Integrated Bar is not violative
of his constitutional freedom to associate. 6

Integration does not make a lawyer a member of any group of which he is not already a member. He
became a member of the Bar when he passed the Bar examinations. 7 All that integration actually
does is to provide an official national organization for the well-defined but unorganized and
incohesive group of which every lawyer is a ready a member. 8

Bar integration does not compel the lawyer to associate with anyone. He is free to attend or not
attend the meetings of his Integrated Bar Chapter or vote or refuse to vote in its elections as he
chooses. The only compulsion to which he is subjected is the payment of annual dues. The
Supreme Court, in order to further the State's legitimate interest in elevating the quality of
professional legal services, may require that the cost of improving the profession in this fashion be
shared by the subjects and beneficiaries of the regulatory program the lawyers.9
Assuming that the questioned provision does in a sense compel a lawyer to be a member of the
Integrated Bar, such compulsion is justified as an exercise of the police power of the State. 10

2. The second issue posed by the respondent is that the provision of the Court Rule requiring
payment of a membership fee is void. We see nothing in the Constitution that prohibits the Court,
under its constitutional power and duty to promulgate rules concerning the admission to the practice
of law and the integration of the Philippine Bar (Article X, Section 5 of the 1973 Constitution)
which power the respondent acknowledges from requiring members of a privileged class, such as
lawyers are, to pay a reasonable fee toward defraying the expenses of regulation of the profession
to which they belong. It is quite apparent that the fee is indeed imposed as a regulatory measure,
designed to raise funds for carrying out the objectives and purposes of integration. 11

3. The respondent further argues that the enforcement of the penalty provisions would amount to a
deprivation of property without due process and hence infringes on one of his constitutional rights.
Whether the practice of law is a property right, in the sense of its being one that entitles the holder of
a license to practice a profession, we do not here pause to consider at length, as it clear that under
the police power of the State, and under the necessary powers granted to the Court to perpetuate its
existence, the respondent's right to practise law before the courts of this country should be and is a
matter subject to regulation and inquiry. And, if the power to impose the fee as a regulatory measure
is recognize, then a penalty designed to enforce its payment, which penalty may be avoided
altogether by payment, is not void as unreasonable or arbitrary. 12

But we must here emphasize that the practice of law is not a property right but a mere
privilege, 13 and as such must bow to the inherent regulatory power of the Court to exact compliance
with the lawyer's public responsibilities.

4. Relative to the issue of the power and/or jurisdiction of the Supreme Court to strike the name of a
lawyer from its Roll of Attorneys, it is sufficient to state that the matters of admission, suspension,
disbarment and reinstatement of lawyers and their regulation and supervision have been and are
indisputably recognized as inherent judicial functions and responsibilities, and the authorities holding
such are legion. 14

In In Re Sparks (267 Ky. 93, 101 S.W. (2d) 194), in which the report of the Board of Bar
Commissioners in a disbarment proceeding was confirmed and disbarment ordered, the court,
sustaining the Bar Integration Act of Kentucky, said: "The power to regulate the conduct and
qualifications of its officers does not depend upon constitutional or statutory grounds. It is a power
which is inherent in this court as a court appropriate, indeed necessary, to the proper
administration of justice ... the argument that this is an arbitrary power which the court is arrogating
to itself or accepting from the legislative likewise misconceives the nature of the duty. It has
limitations no less real because they are inherent. It is an unpleasant task to sit in judgment upon a
brother member of the Bar, particularly where, as here, the facts are disputed. It is a grave
responsibility, to be assumed only with a determination to uphold the Ideals and traditions of an
honorable profession and to protect the public from overreaching and fraud. The very burden of the
duty is itself a guaranty that the power will not be misused or prostituted. ..."

The Court's jurisdiction was greatly reinforced by our 1973 Constitution when it explicitly granted to
the Court the power to "Promulgate rules concerning pleading, practice ... and the admission to the
practice of law and the integration of the Bar ... (Article X, Sec. 5(5) the power to pass upon the
fitness of the respondent to remain a member of the legal profession is indeed undoubtedly vested in
the Court.
We thus reach the conclusion that the provisions of Rule of Court 139-A and of the By-Laws of the
Integrated Bar of the Philippines complained of are neither unconstitutional nor illegal.

WHEREFORE, premises considered, it is the unanimous sense of the Court that the respondent
Marcial A. Edillon should be as he is hereby disbarred, and his name is hereby ordered stricken from
the Roll of Attorneys of the Court.
A.M. OCA IPI No. 04-1606-MTJ : September 19, 2012

ATTY. ARTURO JUANITO T.MATURAN, Complainant, v. JUDGE LIZABETH GUTIERREZ-


TORRES,Respondent.

DECISION

BERSAMIN, J.:

A judge must exert every effort to timely rule upon a case submitted for decision. If she thinks that she
would need a period to decide a case or to resolve an issue longer than what the Constitution prescribes,
she may request an extension from the Court to avoid administrative sanctions.

Antecedents

On August 12, 2004, complainant Atty. Arturo Juanita T. Maturan (Maturan), the counsel for the private
complainant in Criminal Case No. 67659 entitled People v. Anicia C. Ventanilla, filed a sworn
complaint1 against Judge Lizabeth Gutierrez-Torres, the former Presiding Judge of Branch 60 of the
r ll

Metropolitan Trial Court in Mandaluyong City, charging her with unjustifiably delaying the rendition of the
decision in his clients criminal case. Atty. Maturan averred that the criminal case had remained pending and
unresolved despite its having been submitted for decision since June 2002 yet, pertinently alleging in detail
as follows:chan roblesv irtuallawl ib rary

Court Record show that-

1. 10 April 2002- This is the date of the last hearing during which the defense counsel, Atty. Williard S.
Wong, manifested in open court that he has no more documentary exhibit to offer and accordingly rested his
case. The Honorable Court then ordered the parties to file their respective memorandum after which, the
case was ordered submitted for decision.

2. 03 June 2002- The prosecution filed its MEMORANDUM. (Copy attached as ANNEX "A") The defense
waived filing any MEMORANDUM as court records show that up to this day, the defense counsel, Atty. Wong,
did not file any.

3. 09 December 2002- The prosecution filed a MOTION TO DECIDE case dated 09 December 2002. (Copy
attached as ANNEX "B") The Honorable Presiding Judge simply sat on said motion and did not take any
action thereto.

4. 10 July 2003- The prosecution filed a SECOND MOTION TO DECIDE CASE dated 10 July 2003 (Copy
attached as ANNEX "C"). The Honorable Presiding Judge denied it for the alleged failure to comply with the
ORDER dated 03 May 2001. Said ORDER involves sur-rebuttal evidence, however, this has been rendered
moot by the proceedings held on 10 April 2002. Court records would show that as mentioned above, Atty.
Wong manifested in open court that the defense is already resting its case. In fact, the Honorable Court
thereafter ordered the parties to file their respective memorandum and ordered the case submitted for
decision thereafter.

5. 04 February 2004- The prosecution filed a THIRD MOTION TO DECIDE CASE dated 04 February 2004
(Copy attached as ANNEX "D").

6. 11 August 2004- In the morning of 11 August 2004, undersigned thoroughly reviewed the court records
and discovered that the Hon. Presiding Judge has not taken any action to the motion. Records also show
that the Hon. Presiding Judge has not yet made a decision on the case despite the lapse of more than 2
years. When undersigned came back to again examine the records in the afternoon of 11 August 2004, he
was surprised to be shown with a newly-signed ORDER also dated 11 August 2004 stating completion of the
transcript of records and considered the case is now supposedly "submitted for decision".2 rll
Atty. Maturan stated that Judge Gutierrez-Torres failure to render the judgment within the 90-day period
from submission of the case for decision violated Canon 3, Rule 3.05 of the Code of Judicial Conduct and the
Constitution, and constituted gross inefficiency.3 rl l

On August 27, 2004, the Office of the Court Administrator (OCA) directed Judge Gutierrez-Torres through its
first indorsement of the complaint to submit her comment, and also to show cause why no disciplinary
action should be taken against her for her violation of her professional responsibility as a lawyer pursuant to
the Resolution dated September 17, 2002 issued in A.M. No. 02-9-02-SC.4 rll

On September 24, 2004, Judge Gutierrez-Torres implored the OCA to grant her a 20-day extension of the
period within which to submit her comment. Despite her request being granted, she failed to submit a
comment, causing the Court to issue on June 29, 2005 its Resolution "to REQUIRE the respondent to (a)
SHOW CAUSE why she should not be administratively dealt with for refusing to submit her comment despite
the two directives from the Office of the Court Administrator; and (b) SUBMIT the required COMMENT, both
within five (5) days from receipt hereof, failing which the Court shall take the necessary action against her
and decide the administrative complaint on the basis of the record on hand." 5 rl l

The records show that Judge Gutierrez-Torres sought four more extensions of the period within which to
submit a comment; and that the Court granted her further requests through its Resolutions dated
September 12, 2005,6 October 19, 2005,7 February 8, 2006,8 and March 21, 2007.9 The Court likewise
rl l r ll rl l rl l

granted her request to photocopy documents relevant to the complaint.10 Notwithstanding the liberality of rl l

the Court in granting several extensions, she still did not submit a comment. In its Memorandum dated
August 25, 2011,11 the OCA rendered the following findings, to wit:
rl l chanro blesvi rtua llawli bra ry

The respondent has consistently exhibited indifference to the Courts Resolutions requiring her to comment
on the instant complaint. Her behavior constitutes gross misconduct and blatant insubordination, even
outright disrespect for the Court. It must be borne in mind that a resolution of the Court requiring comment
on an administrative complaint is not a mere request, nor should it be complied with partially, inadequately
or selectively. Failure by the respondent to comply betrays not only a recalcitrant streak in character, but
also disrespect for the Courts lawful order and directive.

Moreover, she has no defense whatsoever to refute the charges against her. The records are replete with
documentary evidence that in Criminal Case No. 67659, entitled "People of the Philippines vs. Anicia C.
Ventenilla," she miserably failed to decide the said case within the reglementary period of 90 days. In fact,
three (3) successive Motions to Decide Case dated 9 December 2002, 10 July 2003 and 4 February 2004,
were filed by the prosecution without any action on the part of the respondent. By the time the instant
administrative complaint was filed on 12 August 2004, more than two (2) years had already elapsed since
the said criminal case was submitted for decision. Clearly, the respondent is not
only guilty of insubordination and gross inefficiency, but also of grave and serious misconduct,
having violated Canon 3, Rule 3.05 of the Code of Judicial Conduct and Section 15, Article VIII of the 1987
Constitution.

Considering the gravity of the above-mentioned offenses committed by the respondent, the penalty of
dismissal from the service is commensurate, imposing the penalty of dismissal from the service on the
respondent will be in consonance with the ruling of the Court in the consolidated cases of Alice Davila vs.
Judge Joselito S.D. Generoso and Leticia S. Santos vs. Judge Joselito S.D. Generoso, to wit: chanro blesvi rt uallawl ibra ry

"The failure of the respondent judge to comply with the show-cause resolutions aforecited
constitutes grave and serious misconduct affecting his fitness and worthiness of the honor and integrity
attached to his office. It is noteworthy that respondent judge was afforded several opportunities to explain
his failure to decide the subject cases long pending before his court and to comply with the directives of the
Court, but he has failed, and continues to fail, to heed the orders of the Court; a glaring proof that he has
become disinterested in his position in the judicial system to which he belongs.

It is beyond cavil that the inability of respondent judge to decide the cases in question within the
reglementary period of ninety (90) days from their date of submission, constitutes gross
inefficiency and is violative of Rule 3.05, Canon 3 of the Code of Judicial Conduct, which provides
that [a] judge shall dispose of the courts business promptly and decide cases within the required periods.
The separation of the respondent judge from the service is indeed warranted, if only to see to it
that the peoples trust in the judiciary be maintained and speedy administration of justice be assured."

It bears mentioning that the instant case is not an isolated one. Several administrative cases against the
respondent are still pending before the Court, all of which invariably charge her with gross misconduct and
inexcusable inefficiency, among others, for failing to decide cases or resolve pending incidents for
inordinately long periods of time. in similar lackadaisical fashion, the respondent has ignored the orders of
the Court directing her to comment on said complaints. She has likewise been previously penalized with
fines and suspensions. However, the respondent Judge has not shown any sign of remorse or contrition,
even as the administrative complaints against her piled up. And worse, in her sala, hundreds of criminal and
civil cases submitted for decision and/or resolution remained untouched and unresolved, gathering dust as
they aged.

Finally, on 23 November 2010, in three (3) consolidated cases against the respondent, docketed as A.M. No.
MTJ-08-1719, A.M. No. MTJ-08-1722, and A.M. No. MTJ-08-1723, the Court, in a Per Curiam Decision,
finally DISMISSED the respondent from the service with forfeiture of all retirement benefits except earned
leave and vacation benefits, with benefits, with prejudice to employment in any branch of the government
or any of its instrumentalities including government-owned and controlled corporations. The court ruled
therein that:chanro blesvi rt uallawl ibra ry

"The magnitude of her transgressions in the present consolidated cases gross inefficiency, gross ignorance
of the law, dereliction of duty, violation of the Code of Judicial Conduct, and insubordination, taken
collectively, cast a heavy shadow on her moral, intellectual and attitudinal competence. She has shown
herself unworthy of the judicial robe and place of honor reserved for guardians of justice. Thus, the Court is
constrained to impose upon her the severest of administrative penalties dismissal from the service, to
assure the peoples faith in the judiciary and the speedy administration of justice."

Even though the respondent has been dismissed from the service, this does not necessarily mean that she
cannot be held administratively liable in the instant case. In its fairly recent Decision in Narag vs.Manio, the
Court ruled that: chanroble svi rtual lawlib rary

"Unfortunately for the respondent, this did not render her case moot. She must not be allowed to evade
administrative liability by her previous dismissal from the service. Thus, for this case involving
additional serious offenses, the Court finds it proper to impose upon her a fine of P 20,000 to be deducted
from her accrued leave credits in lieu of dismissal from the service."

Upon the foregoing findings, the OCA recommended that Judge Gutierrez-Torres be administratively
sanctioned as follows:

xxxx

2. Respondent Lizabeth Gutierrez-Torres be found GUILTY of INSUBORDINATION, GROSS


INEFFICIENCY, and GRAVE and SERIOUS MISCONDUCT;

3. In view of her previous dismissal from the service, a FINE of P 20,000.00 instead be imposed upon her,
to be deducted from her accrued leave credits;

xxxx

Ruling

We adopt the findings and uphold the recommendations of the OCA.

Article VIII, Section 15(1) of the 1987 Constitution requires that all cases or matters filed after the
effectivity of the Constitution must be decided or resolved within twenty-four months from date of
submission for the Supreme Court, and, unless reduced by the Supreme Court, twelve months for all lower
collegiate courts, and three months for all other lower courts. Thereby, the Constitution mandates all
justices and judges to be efficient and speedy in the disposition of the cases or matters pending in their
courts.

Reiterating the mandate, the New Code of Judicial Conduct for the Philippine Judiciary requires judges to
"devote their professional activity to judicial duties, which include xxx the performance of judicial functions
and responsibilities in court and the making of decisions xxx,"12 and to "perform all judicial duties, including
r ll

the delivery of reserved decisions, efficiently, fairly and with reasonable promptness."13 Likewise, Rule 3.05,
rll

Canon 3 of the Code of Judicial Conduct imposes on all judges the duty to dispose of their courts business
promptly and to decide cases within the required periods.

These judicial canons directly demand efficiency from the judges in obvious recognition of the right of the
public to the speedy disposition of their cases. In such context, the saying justice delayed is justice
denied becomes a true encapsulation of the felt need for efficiency and promptness among judges.

To fix the time when a case pending before a court is to be considered as submitted for decision, the Court
has issued Administrative Circular No. 28 dated July 3, 1989, whose third paragraph provides: c han roblesv irt uallawl ibra ry

A case is considered submitted for decision upon the admission of the evidence of the parties at the
termination of the trial. The ninety (90) day period for deciding the case shall commence to run
from submission of the case for decision without memoranda; in case the court requires or
allows its filing, the case shall be considered submitted for decision upon the filing of the last
memorandum or upon the expiration of the period to do so, whichever is earlier. Lack of transcript of
stenographic notes shall not be a valid reason to interrupt or suspend the period for deciding the case unless
the case was previously heard by another judge not the deciding judge in which case the latter shall have
the full period of ninety (90) days for the completion of the transcripts within which to decide the same.

The time when a case or other matter is deemed submitted for decision or resolution by a judge is,
therefore, settled and well defined. There is no longer any excuse for not complying with the canons
mandating efficiency and promptness in the resolution of cases and other matters pending in the courts.
Hence, all judges should be mindful of the duty to decide promptly, knowing that the publics faith and
confidence in the Judiciary are no less at stake if they should ignore such duty. They must always be aware
that upon each time a delay occurs in the disposition of cases, their stature as judicial officers and the
respect for their position diminish. The reputation of the entire Judiciary, of which they are among the
pillars, is also thereby undeservedly tarnished.

A judge like Judge Gutierrez-Torres should be imbued with a high sense of duty and responsibility in the
discharge of the obligation to promptly administer justice. She must cultivate a capacity for promptly
rendering her decisions. Should she anticipate that she would need a period longer than what the
Constitution and the issuances of the Court prescribe within which to render her decision or resolution, she
should request a proper extension of the period from the Court, through the OCA, and lay out in the request
the justification for her inability. Yet, she did not at all do so in Criminal Case No. 67659 entitled People v.
Anicia C. Ventanilla. She was clearly guilty of gross inefficiency, especially because her inability to decide the
case within the required period became absolutely devoid of excuse after she did not bother to proffer any
explanation for her inability.

The gross inefficiency of Judge Gutierrez-Torres warranted the imposition of administrative sanction against
her.14 Rule 140 of the Rules of Court, as amended by A.M. No. 01-8-10-SC, classifies undue delay in
r ll

rendering a decision or order as a less serious charge punishable by either: (a) suspension from office
without salary and other benefits for not less than one nor more than three months; or (b) a fine of more
than P 10,000.00 but not exceeding P 20,000.00. We adopt the OCAs recommendation as to the fine in the
maximum of P 20,000.00, considering that she had already been dismissed from the service due to a similar
offense of unjustified delay in rendering decisions.15 rll

As a final word, the Court must focus attention to the indifference of Judge Gutierrez-Torres towards the
Courts directive for her to file her comment despite the repeated extensions of the period to do so liberally
extended by the Court at her request. Such indifference reflected not only that she had no credible
explanation for her omission, but also that she did not care to comply with the directives of the Court. The
latter represents an attitude that no judge should harbor towards the Highest Tribunal of the country, and
for that reason is worse than the former. She should not be emulated by any other judge, for that attitude
reflected her lack of personal character and ethical merit. To be sure, the Court does not brook her
insubordination, and would do more to her had she not been removed from the Judiciary. Accordingly, the
Court must still hold her to account for her actuations as a member of the Law Profession, which is what
remains to be done after first giving her the opportunity to show cause why she should not.

WHEREFORE, the Court finds former Metropolitan Trial Court JUDGE LIZABETH GUTIERREZ-
TORRES guilty of gross inefficiency, and imposes on her a fine of F20,000.00, to be deducted from her
accrued leave credits, if any.

The Court orders JUDGE GUTIERREZ-TORRES to show cause in writing within ten days from notice why
she should not be suspended from membership in the Integrated Bar of the Philippines for her act of
insubordination towards the Court.

The Court directs the Employees Leave Division, Office of Administrative Services-OCA to compute the
balance of Judge GutierrezTorres' earned leave credits and forward the same to the Finance Division, Fiscal
Management Office-OCA which shall compute its monetary value. rl l brr

SO ORDERED.
[G.R. No. 132177. July 19, 2001]

JUDGE JOSE F. CAOIBES, JR., petitioner, vs. THE HONORABLE


OMBUDSMAN and JUDGE FLORENTINO M.
ALUMBRES, respondents.

DECISION
BUENA, J.:

Petitioner Jose F. Caoibes, Jr., Presiding Judge of Branch 253 of the Regional
Trial Court of Las Pias City, seeks the review of the following orders of the Office of
the Ombudsman: (1) the Order dated August 22, 1997 denying the ex-parte motion to
refer to the Supreme Court filed by petitioner; and (2) the Order dated December 22,
1997 denying petitioners motion for reconsideration and directing petitioner to file his
counter-affidavit and other controverting evidences.
On May 23, 1997, respondent Florentino M. Alumbres, Presiding Judge of Branch
255 of the Regional Trial Court of Las Pinas City, filed before the Office of the
Ombudsman, a Criminal Complaint for physical injuries, malicious mischief for the
[1]

destruction of complainants eyeglasses, and assault upon a person in


authority. Respondent alleged therein that on May 20, 1997, at the hallway on the
third floor of the Hall of Justice, Las Pinas City, he requested petitioner to return the
executive table he borrowed from respondent; that petitioner did not answer so
respondent reiterated his request but before he could finish talking, petitioner
blurted Tarantado ito ah, and boxed him at his right eyebrow and left lower jaw so
that the right lens of his eyeglasses was thrown away, rendering his eyeglasses
unserviceable; and that respondent had the incident blottered with the Las Pias Police
Station. He prayed that criminal charges be filed before the Sandiganbayan against the
petitioner.
On June 13, 1997, respondent Judge lodged another Complaint against petitioner,
[2]

this time and administrative case with the Supreme Court, docketed as Adm. Case No.
97-387-RTJ, praying for the dismissal of petitioner from the judiciary on the ground
of grave misconduct or conduct unbecoming a judicial officer. Said complaint is
based on the same facts as those in the complaint filed earlier with the office of the
Ombudsman.
In the Order dated June 25, 1997, the Office of the Ombudsman required
[3]

petitioner to file a counter-affidavit within ten (10) days from receipt thereof. Instead
of filing a counter-affidavit, petitioner filed on July 7, 1997 and Ex-Parte Motion for
Referral to the Honorable Supreme Court, praying that the Office of the Ombudsman
[4]
hold its investigation of Case No. OMB-0-97-0903 in abeyance, and refer the same to
the Supreme Court which, through the Office of the Court Administrator, is already
investigating what transpired on May 20, 1997. Petitioner contended that the Supreme
Court, not the Office of the Ombudsman, has the authority to make a preliminary
determination of the respective culpability of petitioner and respondent Judge who,
both being members of the bench, are under its exclusive supervision and control.
On August 22, 197, the Office of the Ombudsman issued an Order denying the
[5]

motion for referral to the Supreme Court. Invoking Section 15 (1) of Republic Act No.
6770, the Office of the Ombudsman held that it is within its jurisdiction to investigate
the criminal charges of respondent Judge against petitioner.
Petitioner moved for reconsideration of the foregoing order, maintaining that the
[6]

Office of the Ombudsman should either refer Case No. OMB-0-97-0903 to the
Supreme Court for preliminary evaluation, or await the latters resolution of Adm.
Case No. 97-387-RTJ which involves the same parties and subject matter. Otherwise,
petitioner argues, the absurd situation may result wherein the Office of the
Ombudsman files criminal charges against petitioner who, on the other hand, is
declared without fault by the Supreme Court.
In the Order dated December 22, 1997, the Office of the Ombudsman denied the
[7]

motion for reconsideration and required petitioner to submit a counter-affidavit within


an inextendible period of five (5) days from receipt thereof.
Hence, petitioner filed this petition for certiorari, asking for the reversal of the
assailed Orders dated August 22, 1997 and December 22, 1997 of the Office of the
Ombudsman and the issuance of a writ of injunction or temporary restraining order,
directing the Office of the Ombudsman to refrain from taking further action in the
implementation of the challenged orders.
The issue in this case is whether or not the Office of the Ombudsman should defer
action on case No. OMB-0-97-0903 pending resolution of Adm. Case No. 97-387-
RTJ.
The issue is not novel. In Maceda vs. Vasquez, this Court resolved in the
[8]

affirmative the issue of whether or not the Ombudsman must defer action on a
criminal complaint against a judge, or a court employee where the same arises from
their administrative duties, and refer the same to this Court for determination whether
said judge or court employee had acted within the scope of their administrative duties.
Invoking Section 15 of R.A. 6770, the Office of the Ombudsman refuses to refrain
from taking cognizance of Case NO. OMB-0-97-0903 in favor of this Court on the
ground that, allegedly, the accusations therein against petitioner constitute simple
criminal charges falling within the parameters of its constitutional power and duty to
investigate and prosecute any act or omission of any public officer or employee which
appears to be illegal, unjust, improper or inefficient.
Section 15 (1) of R.A. 6770 grants, among others, the following powers and
duties to the Office of the Ombudsman:
(1) Investigate and prosecute on its own, or on complaint by any person, any act or omission of
any public officer or employee, office or agency when such act or omission appears to be
illegal, unjust, improper, or inefficient. It has primary jurisdiction over cases cognizable by
the Sandiganbayan and, in the exercise of this primary jurisdiction, it may takeover, at any
stage, from any investigatory agency of Government, the investigation of such cases;
(2) Direct, upon complaint or at its own instance, any officer or employee of the Government,
or of any subdivision, agency or instrumentality thereof, as well as any government-owned
or controlled corporations with original charter, to perform and expedite any act or duty
required by law, or to stop, prevent and correct any abuse or impropriety in the performance
of duties;
(3) Direct the officer concerned to take appropriate action against a public officer or employee
at fault or who neglects to perform an act or discharge a duty required by law, and
recommend his removal, suspension, demotion, fine, censure or prosecution, and ensure
compliance therewith, or enforce its disciplinary authority as provided in Section 21 of this
Act...

The foregoing provisions supply the legal basis for the Ombudsman in
maintaining its jurisdiction over the charges of physical injuries, malicious mischief
and assault upon a person in authority filed by respondent Judge against
petitioner. This conclusion seems to be reinforced by Section 16 of R.A. 6770 which
states that the powers of the Office of the Ombudsman apply to all kinds of
malfeasance, misfeasance and nonfeasance committed by public officers and
employees during their tenure or office.
The Office of the Solicitor General in its Manifestations, in Lieu of Comment,
correctly opined and we quote:

xxx the grant of the aforequoted powers to the Office of the Ombudsman is not
tantamount to giving it exclusive authority thereon. In fact, Section 15 (1) of R.A.
6770, which is relied upon by the Office of the Ombudsman in its assailed order,
provides that it has primary, not exclusive, jurisdiction over graft and corruption cases
and felonies committed by public officers in relation to their office. Moreover, it was
held in Sanchez vs. Demetriou, 227 SCRA 627 [1993], that the Ombudsmans power
under Section 15 (1) of R.A. 6770 is not an exclusive authority but rather a shared or
concurrent authority in respect of the offense charged. [9]

It appears that the present case involves two members of the judiciary who were
entangled in a fight within court premises over a piece of office furniture. Under
Section 6, Article VIII of the Constitution, it is the Supreme Court which is vested
with exclusive administrative supervision over all courts and its
personnel. Prescinding from this premise, the Ombudsman cannot determine for itself
and by itself whether a criminal complaint against a judge, or court employee,
involves an administrative matter. The Ombudsman is duty bound to have all cases
against judges and court personnel filed before it, referred to the Supreme Court for
determination as to whether and administrative aspect is involved therein. This rule
should hold true regardless of whether an administrative case based on the act subject
of the complaint before the Ombudsman is already pending with the Court. For, aside
from the fact that the Ombudsman would not know of this matter unless he is
informed of it, he should give due respect for and recognition of the administrative
authority of the Court, because in determining whether an administrative matter is
involved, the Court passes upon not only administrative liabilities but also other
administrative concerns, as is clearly conveyed in the case of Maceda vs. Vasquez. [10]

The Ombudsman cannot dictate to, and bind the Court, to its findings that a case
before it does or does not have administrative implications. To do so is to deprive the
Court of the exercise of its administrative prerogatives and to arrogate unto itself a
power not constitutionally sanctioned. This is a dangerous policy which impinges, as
it does, on judicial independence.
Maceda is emphatic that by virtue of its constitutional power of administrative
supervision over all courts and court personnel, from the Presiding Justice of the
Court of Appeals down to the lowest municipal trial court clerk, it is only the Supreme
Court that can oversee the judges and court personnels compliance with all laws, and
take the proper administrative action against them if they commit any violation
thereof. No other branch of government may intrude into this power, without running
afoul of the doctrine of separation of powers.
WHEREFORE, the petition for certiorari is hereby GRANTED. The
Ombudsman is hereby directed to dismiss the complaint filed by respondent Judge
Florentino M. Alumbres and to refer the same to this Court for appropriate action.
SO ORDERED.
[A.M. No. 00-7-09-CA. March 27, 2001]

In Re: Derogatory news Items Charging Court of Appeals Associate Justice


Demetrio Demetria with Interference on Behalf of a Suspected Drug
Queen:
Court of Appeals Associate Justice Demetrio G. Demetria, respondent.

DECISION
PER CURIAM:

Men and Women of the courts must conduct themselves with honor, probity,
fairness, prudence and discretion. Magistrates of justice must always be fair and
impartial. They should avoid not only acts of impropriety, but all appearances of
impropriety. Their influence in society must be consciously and conscientiously
exercised with utmost prudence and discretion. For, theirs is the assigned role of
preserving the independence, impartiality and integrity of the Judiciary.
The Code of Judicial Conduct mandates a judge to "refrain from influencing in
any manner the outcome of litigation or dispute pending before another court or
administrative agency."[1] The slightest form of interference cannot be
countenanced. Once a judge uses his influence to derail or interfere in the regular
course of a legal or judicial proceeding for the benefit of one or any of the parties
therein, public confidence in the judicial system is diminished, if not totally eroded.
Such is this administrative charge triggered by newspaper accounts which
appeared on the 21 July 2000 issues of The Manila Standard, The Manila Times,
Malaya, The Philippine Daily Inquirer and Today. The national dailies collectively
reported that Court of Appeals Associate Justice Demetrio G. Demetria tried to
intercede on behalf of suspected Chinese drug queen Yu Yuk Lai, alias Sze Yuk Lai,
who went in and out of prison to play in a Manila casino.[2]
That same day, 21 July 2000, Chief Justice Hilario G. Davide, Jr., issued
a Memorandum to Justice Demetria directing him to comment on the derogatory
allegations in the news items.[3] On 24 July 2000, Justice Demetria submitted
his Compliance. Subsequently, Chief State Prosecutor (CSP) Jovencito R. Zuo, who
disclosed to the media the name of Justice Demetria, and State Prosecutor (SP) Pablo
C. Formaran III, a member of the Task Force on Anti-Narcotics Cases of the
Department of Justice (DOJ) prosecuting the case of the suspected Chinese drug
queen, filed their respective Comments on the Compliance of Justice Demetria.[4]
On 8 August 2000, the Court En Banc ordered an investigation and designated
Mme. Justice Carolina C. Grio-Aquino as Investigator and Court Administrator
Alfredo L. Benipayo as Prosecutor. An investigation then commenced on 22 August
2000 and continued until 16 November 2000.
The Prosecution presented four (4) witnesses, namely, CSP Zuo, SP Formaran III,
Agnes P. Tuason, secretary of SP Formaran, III, and Jose H. Afalla, an employee from
the Office of Asst. CSP (ACSP) Leonardo Guiyab, Jr. The defense on the other hand
presented ten (10) witnesses: respondent Justice Demetria, Asst. Chief State
Prosecutor (ACSP) Severino Gana, Jr., Senior State Prosecutor (SSP) Romeo Daosos,
Go Teng Kok, Yu Yuk Lai, MTC Judge Orlando Siapno, Peter Young, Atty. Reinerio
Paas, lawyer of Go Teng Kok, Danilo J. Mijares, bodyguard of Go Teng Kok, and
Luisito Artiaga, official of the Philippine Amateur Track and Field Association
(PATAFA).
The facts as borne out by the evidence presented by the prosecution are quite
clear. In an Information dated 9 December 1998, SP Formaran III charged Yu Yuk
Lai, together with her supposed nephew, a certain Kenneth Monceda y Sy alias
William Sy, before the RTC of Manila, Br. 18,[5] with violation of Sec. 15, Art. III, RA
6425, as amended, for "conspiring, confederating and mutually helping one another,
with deliberate intent and without authority of law x x x (to) willfully, unlawfully and
feloniously sell and deliver to a poseur-buyer three (3) kilograms, more or less, of
methylamphetamine hydrochloride (shabu), which is a regulated drug." [6] Accused of
non-bailable offense, both Yu Yuk Lai and Kenneth Monceda were held at the
detention cell of the PNP Narcotics Group in Camp Crame, Quezon City. On 25 June
1999, accused Yu Yuk Lai filed a Petition for Bail on the ground that the evidence of
her guilt was not strong.
On 10 November 1999, upon receiving information that the accused, especially
Yu Yuk Lai, had been seen regularly playing in the casinos of Heritage Hotel and the
Holiday Inn Pavilion, SP Formaran III filed an Urgent Ex-Parte Motion to Transfer
the Detention of the Accused to the City Jail.[7] On the same day, Judge Perfecto A. S.
Laguio, Jr., granted the motion and ordered the immediate transfer of the two (2)
accused to the Manila City Jail.[8]
On 18 January 2000, Judge Laguio, Jr., concluded that "the evidence standing
alone and unrebutted, is strong and sufficient to warrant conviction of the two accused
for the crime charged" and denied the petition for bail of accused Yu Yuk Lai for lack
of merit.[9] Consequently, both accused filed a Joint Motion for Inhibition arguing that
the trial court's actuations "do not inspire the belief that its decision would be just and
impartial."[10] On 28 January 2000, Judge Laguio, Jr., believing that the joint motion
was utterly without merit but considering the gravity of the offense and for the peace
of mind of the accused, inhibited himself.[11]
The case was re-raffled to Branch 53, presided by Judge Angel V. Colet. Accused
Yu Yuk Lai then filed a Motion to Order the Confinement of the Accused in a
Hospital. Before Judge Colet could resolve the motion, the case was handled by the
Branch's Pairing Judge Manuel T. Muro.
On 15 May 2000 Judge Muro granted accused Yu Yuk Lai's motion and allowed
her to be confined at the Manila Doctors Hospital for a period not exceeding seven (7)
days,[12] contrary to the recommendation of Dr. Jose Estrada Rosal, Chief of the Health
Services of the Manila City Jail, that Yu Yuk Lai be confined at the Philippine
General Hospital.[13]
On 5 June 2000 Judge Muro granted Yu Yuk Lai's Urgent Motion for Extension of
Medical Confinement "for a period of one (1) month, or until such time that she is fit
to be discharged from the said hospital."[14] On 7 July 2000 Judge Muro also granted
Yu Yuk Lai's Motion for Leave of Court to File Demurrer to Evidence with Motion to
Admit Demurrer to Evidence.[15] Soon, rumors circulated in the Manila City Hall that
Judge Muro was partial towards accused Yu Yuk Lai.
The rumors did not end there, On 6 July 2000 unidentified employees of the RTC
Manila calling themselves "CONCERNED COURT EMPLOYEES" wrote the
Secretary of Justice, copy furnished the Chief State Prosecutor, the Ombudsman, and
Judge Muro. The letter alleged that Judge Muro ordered the hospitalization of Yu Yuk
Lai "even if she (was) not sick and there (was) already a rumor circulating around the
City Hall, that the notorious Judge had given the go signal to the counsel of the
accused to file the Motion to Quash, which (would) be granted for a consideration of
millions of pesos and the contact person (was) allegedly the daughter of the Judge,
who is an employee in the said branch."[16]
Accordingly on 14 July 2000, SP Formaran III filed a Motion for
Inhibition praying that Judge Muro inhibit himself "from further handling this case
and/or from resolving the demurrer to evidence filed by the accused Yu Yuk Lai as
well as any other pending incidents therein."[17]
On 16 July 2000, at around 7:30 o'clock in the morning, while she was supposed
to be confined at the Manila Doctors Hospital, accused Yu Yuk Lai was arrested
inside the VIP room of the Casino Filipino at the Holiday Inn Pavilion, Manila, while
playing baccarat, She was unescorted at the time of her arrest.
On 18 July 2000, at 9:00 o'clock in the morning, the Motion for Inhibition of
Judge Muro was heard and submitted for resolution. Later, at around 11:30 o'clock,
when SP Formaran III arrived in his office from the hearing, he was informed by his
secretary, Agnes Tuason, that the staff of Court of Appeals Justice Demetrio Demetria
had called earlier and said that the Justice wanted to speak with him. The caller
requested for a return call. As requested, SP Formaran III immediately returned the
call of Justice Demetria but the Justice had already gone out for lunch.
Later in the afternoon, between 1:30 and 2:00 o'clock, Justice Demetria, PATAFA
President Go Teng Kok and Atty. Reinerio Paas, lawyer of Go Teng Kok and a close
friend of Justice Demetria, went to the office of SP Formaran III in the DOJ which SP
Formaran III shares with SP Albert Fonacier. Apparently, Justice Demetria was not
familiar with SP Formaran III as he greeted SP Fonacier "Kamusta ka, Prosecutor
Formaran?"[18]
Soon the visitors were seated. Go Teng Kok immediately pleaded with SP
Formaran III to withdraw his motion to inhibit Judge Muro as this would purportedly
delay the resolution of the case. Go Teng Kok also expressed his apprehension that if
Judge Muro would inhibit, a new judge might convict his friend, accused Yu Yuk Lai,
who was then already receiving bad publicity.
Justice Demetria then asked about the status of the case. SP Formaran III
informed the Justice that a motion for inhibition has been submitted for resolution,
one basis of which was the unsigned letter of the concerned court employees. Justice
Demetria opined that it was a bit dangerous to anchor the inhibition of a judge on an
unsigned, anonymous letter. The Justice then advised Go Teng Kok who was
becoming persistent to "keep his cool" and asked SP Formaran III if he could do
something to help Go Teng Kok. Apparently, prior to 18 July 2000, Go Teng Kok had
already been asking SP Formaran III to go slow in prosecuting accused Yu Yuk
Lai.[19] SP Formaran III at first politely declined the request. But later, "just to put an
end to (the) conversation,"[20] he told them that he would bring the matter to CSP Zuo.
"Iyon pala," Justice Demetria replied. The Justice then stood up, bade good bye and
left. Atty. Paas and Go Teng Kok followed closely behind.[21]
Thereafter, SP Formaran III went to see CSP Zuo and informed the latter of what
had transpired. CSP Zuo replied, "No way!" SP Formaran III also told ACSP Guiyab,
Jr., who gave the same reply.[22]
At around 3:00 o'clock that same afternoon, CSP Zuo received a call from Justice
Demetria who requested him to instruct SP Formaran III to withdraw the motion for
inhibition of Judge Muro so that the Judge could already issue an order. "Pakisabi mo
nga kay State Prosecutor Formaran na iwithdraw na iyong kanyang Motion to Inhibit
para naman makagawa na ng Order si Judge Muro," Justice Demetria was quoted as
saying.[23] Politely, CSP Zuo said that he would see what he could do. Tingnan ko po
kung ano ang magagawa ko."[24]
On 20 July 2000, The Philippine Daily Inquirer reported that a "Supreme Court
Justice x x x and an outspoken sports person and leader"[25] had been exerting "undue
pressure" on the DOJ to go slow in prosecuting re-arrested drug queen Yu Yuk
Lai. That same afternoon, the names of Justice Demetria and Mr. Go Teng Kok were
disclosed to the media to clear the name of the Supreme Court justices who might
have been affected by the erroneous news report. The following day, 21 July 2000,
several newspapers named Justice Demetria and Go Teng Kok as "drug lawyers."
Also on 20 July 2000 the DOJ received a Copy of an Order dated 19 July 200 of
Judge Muro inhibiting himself from further hearing the case of Yu Yuk Lai and
Kenneth Monceda.[26]
Respondent Justice Demetria, for his part, vehemently denied having interceded
for Yu Yuk Lai. While he admitted that he indeed visited the DOJ on 18 July 2000, he
went there to "visit old friends" and his meeting Go Teng Kok whom he did not know
until that time was purely accidental. Expectedly, Atty. Paas and Go Teng Kok
corroborated the claim of respondent Justice.
Justice Demetria explained that he merely requested SP Formaran III "to do
something to help Go Teng Kok about the case" without ever specifying the kind of
"help" that he requested. He averred that it was purely on the basis of erroneous
impression and conjecture on the part of SP Formaran III that he impliedly asked him
to withdraw the motion "because that is what Mr. Go Teng Kok was appealing and
requesting."[27] Respondent claimed that the "help" he was requesting could well be
"within legal bounds or line of duty."
Justice Demetria claimed that if ever he said anything else during the discussion
between Go Teng Kok and SP Formaran III, such was not a form of intervention. He
only admonished Go Teng Kok "to cool it" when the discussion between the
prosecutor and Go Teng Kok became heated.While he asked about the status of the
case this, he said, demonstrated his lack of knowledge about the case and bolstered his
claim that he could not have possibly interceded for Yu Yuk Lai.
Respondent Justice likewise argued that the bases of his identification by CSP
Zuo as the Justice exerting undue pressure on the DOJ were all hearsay. Respondent
submited that CSP Zuo based his identification from a newspaper account, from the
statement of his secretary that it was he (Justice Demetria) who was on the other end
of the telephone and from SP Formaran III when the latter consulted the Chief State
Prosecutor about the visit of the Justice and Go Teng Kok impliedly asking him to
withdraw the motion.
In defense of respondent Justice, Atty. Paas stated that it was actually he, not
Justice Demetria, who later called up CSP Zuo to inquire about the latter's decision
regarding the withdrawal of the motion to inhibit since SP Formaran III had earlier
told Go Teng Kok that the matter would be taken up with his superiors.
In fine, respondent Justice Demetria maintains that it is inconceivable for him to
ask SP Formaran III whom he just met for the first time to do something for Go Teng
Kok whom he claims he just likewise met for the first time. Neither did he know Yu
Yuk Lai, a claim Yu Yuk Lai herself corroborated. It would be unthinkable for him to
intercede in behalf of someone he did not know. Indeed respondent Justice asserted
that his meeting Go Teng Kok on 18 July 2000 at the DOJ was purely coincidence, if
not accidental.
So, did respondent Justice Demetria really intercede in behalf of suspected drug
queen Yu Yuk Lai?
Investigating Justice Carolina C. Grio-Aquino believes so. In her Report dated 5
January 2001, she found respondent Justice Demetria "guilty of violating Rule 2.04,
Canon 2, Code of Judicial Conduct" and recommended that "appropriate disciplinary
action be taken against him by this Honorable Court."[28]
Only rightly so. The evidence is clear, if not overwhelming, and damning. Thus,
even the Senate Committee on Justice and Human Rights, after a hearing, found that
"there was a conspiracy to commit the following offenses on the part of CA Associate
Justice Demetrio Demetria and PATAFA President Go Teng Kok and Miss Yu Yuk
Lai: obstruction of justice punishable under PD No.1829 and Article 3(a) of RA 3019,
or the Anti-Graft and Corrupt Practices Act."[29]
While Justice Demetria vehemently denied interfering with the criminal case, his
denial cannot stand against the positive assertions of CSP Zuo and SP Formaran
III,[30] which are consistent with natural human experience. To accept the testimony of
the defense witnesses that it was Atty. Paas who telephoned CSP Zuo, and not Justice
Demetria, and that the "help" the respondent Justice was requesting SP Formaran III
was something "within legal bounds or line of duty" other than the withdrawal of the
motion is to strain too far one's imagination.
The testimony of CSP Zuo is plainly unambiguous and indubitably consistent
with the other facts and circumstances surrounding the case -
CSP Zuo: As far as I could recall Justice Demetria said, "Pakisabi mo nga kay
State Prosecutor Formaran na iwithdraw na iyong kanyang Motion to Inhibit para
naman makagawa ng Order si Judge Muro."[31]
In his discussion with Go Teng Kok and Justice Demetria, SP Formaran III said
that he would consult his superiors regarding the proposal to withdraw the
motion. The timely telephone call to CSP Zuo was thus a logical follow-up. And no
one could have made the call except respondent Justice since it is not uncommon for
anyone to believe that CSP Zuo would recognize the voice of respondent Justice who
was CSP Zuo's former superior in the DOJ. Thus, the confident utterance "[p]akisabi
mo nga kay State Prosecutor Formaran na iwithdraw na iyong kanyang Motion to
Inhibit para naman makagawa ng Order si Judge Muro" could not have come from
anyone else but from respondent Justice who had moral ascendancy over CSP Zuo, he
being a Justice of the Court of Appeals and a former Undersecretary and at one time
Acting Secretary of the DOJ.
Even the requested "help" for Go Teng Kok, whom respondent Justice claims he
did not know and met only that time, could not have meant any other assistance but
the withdrawal of the motion to inhibit Judge Muro. True, Justice Demetria never
categorically asked SP Formaran III to withdraw his Motion. But when respondent
Justice Demetria asked the state prosecutor at that particular time "to do something x
x x to help Mr. Go Teng Kok," the latter was pleading for the withdrawal of the
motion, and nothing else. That was the only form of "help" that Go Teng Kok
wanted. The subtle pressure exerted simply pointed to one particular act. Thus,
subsequently respondent Justice called CSP Zuo to ask for just that - the withdrawal
of the motion to inhibit Judge Muro.
Justice Demetria also claimed that he, together with Atty. Paas, went to the DOJ,
first, to see Secretary Artemio Tuquero and seek assistance in the appointment of
Atty. Paas to the Court of Appeals, and second, to "visit old friends,"[32] and that the
meeting with Go Teng Kok was purely accidental. But respondent Justice never
mentioned in his earlier Compliance to the Memorandum of the Chief Justice that his
primary purpose in going to the DOJ was to see Sec. Tuquero, and since Sec. Tuquero
was not in, he instead decided to see some officials/prosecutors whom he had not
visited for a long time.
We find this assertion difficult to accept. For, even his very own witnesses belied
his alibi. ACSP Gaa, Jr. testified and confirmed that Justice Demetria only said
"hi."[33] SSP Daosos, denied seeing him and claimed that it was only Atty. Paas who
peeped into his room.[34]Suspiciously, it was really in the office of SP Formaran III,
whom respondent Justice Demetria did not know, where Justice Demetria, Atty. Paas
and Go Teng Kok decided to "stay a while."[35]
Thus, as found by Mme. Justice Carolina C. Grio-Aquino, the Investigating
Justice, Justice Demetria and company could not have been there to exchange
pleasantries with SPs Formaran III and Fonacier since they were not acquainted with
each other. Prior to this incident, Justice Demetria did not personally know either SP
Formaran III or SP Fonacier, a fact corroborated by respondent himself.[36]
All of these contradict and belie respondent Justice Demetria's earlier Compliance
to the Memorandum of the Chief Justice that "[b]ecause Prosecutor Formaran is also a
friend, we decided to drop by his office x x x (and) I stayed a while."[37]
As pointed out by the Investigating Justice, respondent Justice was there "to join
forces with Go Teng Kok in arguing for the withdrawal of Formaran's Motion for
Inhibition of Judge Muro, which was the real purpose of their visit to SP Formaran
and to the DOJ. The uncanny coincidence in the timing of Justice Demetria's visit to
SP Formaran's office, and that of Go Teng Kok, could not have been 'accidental' but
pre-arranged."[38] And, "visiting old friends" only came as an afterthought. The
circumstances simply show that Justice Demetria and Atty. Paas, together with Go
Teng Kok, did not go to the DOJ to see Sec. Tuquero, but to visit, if not "pressure,"
CSP Zuo and SP Formaran III.
Justice Demetria also claimed that it is inconceivable for him to help Yu Yuk Lai
and Go Teng Kok, both of whom he did not personally know, and more unthinkable
that he would be asking help from SP Formaran III whom he had just met for the first
time.
The argument cannot be sustained. It is admitted that respondent is a very close
friend of Atty. Paas, lawyer of Go Teng Kok. And, it is not necessary that respondent
Justice Demetria be acquainted with Go Teng Kok, Yu Yuk Lai or SP Formaran III
for him to intercede in behalf of the accused. It is enough that he is a close friend of
the lawyer of Go Teng Kok, who has been helping the accused, and that he wields
influence as a former DOJ Undersecretary and later, Acting Secretary, and now, a
Justice of the Court of Appeals.
In sum, we find the testimonies of the prosecution witnesses convincing and
trustworthy, as compared to those of the defense which do not only defy natural
human experience but are also riddled with major inconsistencies which create well-
founded and overriding doubts.
The conduct and behavior of everyone connected with an office charged with the
dispensation of justice is circumscribed with the heavy burden of responsibility. His at
all times must be characterized with propriety and must be above suspicion. [39] His
must be free of even a whiff of impropriety, not only with respect to the performance
of his judicial duties, but also his behavior outside the courtroom and as a private
individual.
Unfortunately, respondent Justice Demetrio Demetria failed to live up to this
expectation.Through his indiscretions, Justice Demetria did not only make a mockery
of his high office, but also caused incalculable damage to the entire Judiciary. The
mere mention of his name in the national newspapers, allegedly lawyering for a
suspected drug queen and interfering with her prosecution, seriously undermined the
integrity of the entire Judiciary.
Although every office in the government service is a public trust, no position
exacts a greater demand on moral righteousness and uprightness than a seat in the
Judiciary.[40] High ethical principles and a sense of propriety should be maintained,
without which the faith of the people in the Judiciary so indispensable in an orderly
society cannot be preserved.[41] There is simply no place in the Judiciary for those who
cannot meet the exacting standards of judicial conduct and integrity.[42]
WHEREFORE, we sustain the findings of the Investigating Justice and hold
Justice Demetrio G. Demetria GUILTY of violating Rule 2.04 of the Code of Judicial
Conduct. He is ordered DISMISSED from the service with forfeiture of all benefits
and with prejudice to his appointment or reappointment to any government office,
agency or instrumentality, including any government owned or controlled corporation
or institution.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Vitug, Kapunan, Mendoza, Panganiban,
Quisumbing, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, De Leon,
Jr., and Sandoval-Gutierrez, JJ., concur.
Puno, J., abroad on official business.
U.S. Supreme Court
Marbury v. Madison, 5 U.S. 1 Cranch 137 137 (1803)

Marbury v. Madison

5 U.S. (1 Cranch) 137

Syllabus

The clerks of the Department of State of the United States may be called upon to give
evidence of transactions in the Department which are not of a confidential character.

The Secretary of State cannot be called upon as a witness to state transactions of a


confidential nature which may have occurred in his Department. But he may be called
upon to give testimony of circumstances which were not of that character.

Clerks in the Department of State were directed to be sworn, subject to objections to


questions upon confidential matters.

Some point of time must be taken when the power of the Executive over an officer, not
removable at his will, must cease. That point of time must be when the constitutional
power of appointment has been exercised. And the power has been exercised when the
last act required from the person possessing the power has been performed. This last
act is the signature of the commission.

If the act of livery be necessary to give validity to the commission of an officer, it has
been delivered when executed, and given to the Secretary of State for the purpose of
being sealed, recorded, and transmitted to the party.

In cases of commissions to public officers, the law orders the Secretary of State to
record them. When, therefore, they are signed and sealed, the order for their being
recorded is given, and, whether inserted inserted into the book or not, they are
recorded.

When the heads of the departments of the Government are the political or confidential
officers of the Executive, merely to execute the will of the President, or rather to act in
cases in which the Executive possesses a constitutional or legal discretion, nothing can
be more perfectly clear than that their acts are only politically examinable. But where a
specific duty is assigned by law, and individual rights depend upon the performance of
that duty, it seems equally clear that the individual who considers himself injured has a
right to resort to the laws of his country for a remedy.

The President of the United States, by signing the commission, appointed Mr. Marbury
a justice of the peace for the County of Washington, in the District of Columbia, and the
seal of the United States, affixed thereto by the Secretary of State, is conclusive
testimony of the verity of the signature, and of the completion of the appointment; and
the appointment conferred on him a legal right to the office for the space of five years.
Having this legal right to the office, he has a consequent right to the commission, a
refusal to deliver which is a plain violation of that right for which the laws of the country
afford him a remedy.

To render a mandamus a proper remedy, the officer to whom it is directed must be one
to whom, on legal principles, such writ must be directed, and the person applying for it
must be without any other specific remedy.

Where a commission to a public officer has been made out, signed, and sealed, and is
withheld from the person entitled to it, an action of detinue for the commission against
the Secretary of State who refuses to deliver it is not the proper remedy, as the
judgment in detinue is for the thing itself, or its value. The value of a public office, not to
be sold, is incapable of being ascertained. It is a plain case for a mandamus, either to
deliver the commission or a copy of it from the record.

To enable the Court to issue a mandamus to compel the delivery of the commission of a
public office by the Secretary of State, it must be shown that it is an exercise of
appellate jurisdiction, or that it be necessary to enable them to exercise appellate
jurisdiction.

It is the essential criterion of appellate jurisdiction that it revises and corrects the
proceedings in a cause already instituted, and does not create the cause.

The authority given to the Supreme Court by the act establishing the judicial system of
the United States to issue writs of mandamus to public officers appears not to be
warranted by the Constitution.

It is emphatically the duty of the Judicial Department to say what the law is. Those who
apply the rule to particular cases must, of necessity, expound and interpret the rule. If
two laws conflict with each other, the Court must decide on the operation of each.

If courts are to regard the Constitution, and the Constitution is superior to any ordinary
act of the legislature, the Constitution, and not such ordinary act, must govern the case
to which they both apply.

At the December Term, 1801, William Marbury, Dennis Ramsay, Robert Townsend
Hooe, and William Harper, by their counsel,

Page 5 U. S. 138

severally moved the court for a rule to James Madison, Secretary of State of the United
States, to show cause why a mandamus should not issue commanding him to cause to
be delivered to them respectively their several commissions as justices of the peace in
the District of Columbia. This motion was supported by affidavits of the following facts:
that notice of this motion had been given to Mr. Madison; that Mr. Adams, the late
President of the United States, nominated the applicants to the Senate for their advice
and consent to be appointed justices of the peace of the District of Columbia; that the
Senate advised and consented to the appointments; that commissions in due form were
signed by the said President appointing them justices, &c., and that the seal of the
United States was in due form affixed to the said commissions by the Secretary of
State; that the applicants have requested Mr. Madison to deliver them their said
commissions, who has not complied with that request; and that their said commissions
are withheld from them; that the applicants have made application to Mr. Madison as
Secretary of State of the United States at his office, for information whether the
commissions were signed and sealed as aforesaid; that explicit and satisfactory
information has not been given in answer to that inquiry, either by the Secretary of State
or any officer in the Department of State; that application has been made to the
secretary of the Senate for a certificate of the nomination of the applicants, and of the
advice and consent of the Senate, who has declined giving such a certificate;
whereupon a rule was made to show cause on the fourth day of this term. This rule
having been duly served,

Page 5 U. S. 139

Mr. Jacob Wagner and Mr. Daniel Brent, who had been summoned to attend the court
and were required to give evidence, objected to be sworn, alleging that they were clerks
in the Department of State, and not bound to disclose any facts relating to the business
or transactions of the office.

The court ordered the witnesses to be sworn, and their answers taken in writing, but
informed them that, when the questions were asked, they might state their objections to
answering each particular question, if they had any.

Mr. Lincoln, who had been the acting Secretary of State, when the circumstances stated
in the affidavits occurred, was called upon to give testimony. He objected to answering.
The questions were put in writing.

The court said there was nothing confidential required to be disclosed. If there had
been, he was not obliged to answer it, and if he thought anything was communicated to
him confidentially, he was not bound to disclose, nor was he obliged to state anything
which would criminate himself.

The questions argued by the counsel for the relators were, 1. Whether the Supreme
Court can award the writ of mandamus in any case. 2. Whether it will lie to a Secretary
of State, in any case whatever. 3. Whether, in the present case, the Court may award a
mandamus to James Madison, Secretary of State.

Page 5 U. S. 153

Mr. Chief Justice MARSHALL delivered the opinion of the Court.


At the last term, on the affidavits then read and filed with the clerk, a rule was granted in
this case requiring the Secretary of State to show cause why a mandamus

Page 5 U. S. 154

should not issue directing him to deliver to William Marbury his commission as a justice
of the peace for the county of Washington, in the District of Columbia.

No cause has been shown, and the present motion is for a mandamus. The peculiar
delicacy of this case, the novelty of some of its circumstances, and the real difficulty
attending the points which occur in it require a complete exposition of the principles on
which the opinion to be given by the Court is founded.

These principles have been, on the side of the applicant, very ably argued at the bar. In
rendering the opinion of the Court, there will be some departure in form, though not in
substance, from the points stated in that argument.

In the order in which the Court has viewed this subject, the following questions have
been considered and decided.

1. Has the applicant a right to the commission he demands?

2. If he has a right, and that right has been violated, do the laws of his country afford
him a remedy?

3. If they do afford him a remedy, is it a mandamus issuing from this court?

The first object of inquiry is:

1. Has the applicant a right to the commission he demands?

His right originates in an act of Congress passed in February, 1801, concerning the
District of Columbia.

After dividing the district into two counties, the eleventh section of this law enacts,

"that there shall be appointed in and for each of the said counties such number of
discreet persons to be justices of the peace as the President of the United States shall,
from time to time, think expedient, to continue in office for five years. "

Page 5 U. S. 155

It appears from the affidavits that, in compliance with this law, a commission for William
Marbury as a justice of peace for the County of Washington was signed by John
Adams, then President of the United States, after which the seal of the United States
was affixed to it, but the commission has never reached the person for whom it was
made out.

In order to determine whether he is entitled to this commission, it becomes necessary to


inquire whether he has been appointed to the office. For if he has been appointed, the
law continues him in office for five years, and he is entitled to the possession of those
evidences of office, which, being completed, became his property.

The second section of the second article of the Constitution declares,

"The President shall nominate, and, by and with the advice and consent of the Senate,
shall appoint ambassadors, other public ministers and consuls, and all other officers of
the United States, whose appointments are not otherwise provided for."

The third section declares, that "He shall commission all the officers of the United
States."

An act of Congress directs the Secretary of State to keep the seal of the United States,

"to make out and record, and affix the said seal to all civil commissions to officers of the
United States to be appointed by the President, by and with the consent of the Senate,
or by the President alone; provided that the said seal shall not be affixed to any
commission before the same shall have been signed by the President of the United
States."

These are the clauses of the Constitution and laws of the United States which affect this
part of the case. They seem to contemplate three distinct operations:

1. The nomination. This is the sole act of the President, and is completely voluntary.

2. The appointment. This is also the act of the President, and is also a voluntary act,
though it can only be performed by and with the advice and consent of the Senate.

Page 5 U. S. 156

3. The commission. To grant a commission to a person appointed might perhaps be


deemed a duty enjoined by the Constitution. "He shall," says that instrument,
"commission all the officers of the United States."

The acts of appointing to office and commissioning the person appointed can scarcely
be considered as one and the same, since the power to perform them is given in two
separate and distinct sections of the Constitution. The distinction between the
appointment and the commission will be rendered more apparent by adverting to that
provision in the second section of the second article of the Constitution which authorises
Congress
"to vest by law the appointment of such inferior officers as they think proper in the
President alone, in the Courts of law, or in the heads of departments;"

thus contemplating cases where the law may direct the President to commission an
officer appointed by the Courts or by the heads of departments. In such a case, to issue
a commission would be apparently a duty distinct from the appointment, the
performance of which perhaps could not legally be refused.

Although that clause of the Constitution which requires the President to commission all
the officers of the United States may never have been applied to officers appointed
otherwise than by himself, yet it would be difficult to deny the legislative power to apply
it to such cases. Of consequence, the constitutional distinction between the
appointment to an office and the commission of an officer who has been appointed
remains the same as if in practice the President had commissioned officers appointed
by an authority other than his own.

It follows too from the existence of this distinction that, if an appointment was to be
evidenced by any public act other than the commission, the performance of such public
act would create the officer, and if he was not removable at the will of the President,
would either give him a right to his commission or enable him to perform the duties
without it.

These observations are premised solely for the purpose of rendering more intelligible
those which apply more directly to the particular case under consideration.

Page 5 U. S. 157

This is an appointment made by the President, by and with the advice and consent of
the Senate, and is evidenced by no act but the commission itself. In such a case,
therefore, the commission and the appointment seem inseparable, it being almost
impossible to show an appointment otherwise than by proving the existence of a
commission; still, the commission is not necessarily the appointment; though conclusive
evidence of it.

But at what stage does it amount to this conclusive evidence?

The answer to this question seems an obvious one. The appointment, being the sole act
of the President, must be completely evidenced when it is shown that he has done
everything to be performed by him.

Should the commission, instead of being evidence of an appointment, even be


considered as constituting the appointment itself, still it would be made when the last act
to be done by the President was performed, or, at furthest, when the commission was
complete.
The last act to be done by the President is the signature of the commission. He has
then acted on the advice and consent of the Senate to his own nomination. The time for
deliberation has then passed. He has decided. His judgment, on the advice and consent
of the Senate concurring with his nomination, has been made, and the officer is
appointed. This appointment is evidenced by an open, unequivocal act, and, being the
last act required from the person making it, necessarily excludes the idea of its being,
so far as it respects the appointment, an inchoate and incomplete transaction.

Some point of time must be taken when the power of the Executive over an officer, not
removable at his will, must cease. That point of time must be when the constitutional
power of appointment has been exercised. And this power has been exercised when
the last act required from the person possessing the power has been performed. This
last act is the signature of the commission. This idea seems to have prevailed with the
Legislature when the act passed converting the Department

Page 5 U. S. 158

of Foreign Affairs into the Department of State. By that act, it is enacted that the
Secretary of State shall keep the seal of the United States,

"and shall make out and record, and shall affix the said seal to all civil commissions to
officers of the United States, to be appointed by the President: . . . provided that the
said seal shall not be affixed to any commission before the same shall have been
signed by the President of the United States, nor to any other instrument or act without
the special warrant of the President therefor."

The signature is a warrant for affixing the great seal to the commission, and the great
seal is only to be affixed to an instrument which is complete. It attests, by an act
supposed to be of public notoriety, the verity of the Presidential signature.

It is never to be affixed till the commission is signed, because the signature, which gives
force and effect to the commission, is conclusive evidence that the appointment is
made.

The commission being signed, the subsequent duty of the Secretary of State is
prescribed by law, and not to be guided by the will of the President. He is to affix the
seal of the United States to the commission, and is to record it.

This is not a proceeding which may be varied if the judgment of the Executive shall
suggest one more eligible, but is a precise course accurately marked out by law, and is
to be strictly pursued. It is the duty of the Secretary of State to conform to the law, and
in this he is an officer of the United States, bound to obey the laws. He acts, in this
respect, as has been very properly stated at the bar, under the authority of law, and not
by the instructions of the President. It is a ministerial act which the law enjoins on a
particular officer for a particular purpose.
If it should be supposed that the solemnity of affixing the seal is necessary not only to
the validity of the commission, but even to the completion of an appointment, still, when
the seal is affixed, the appointment is made, and

Page 5 U. S. 159

the commission is valid. No other solemnity is required by law; no other act is to be


performed on the part of government. All that the Executive can do to invest the person
with his office is done, and unless the appointment be then made, the Executive cannot
make one without the cooperation of others.

After searching anxiously for the principles on which a contrary opinion may be
supported, none has been found which appear of sufficient force to maintain the
opposite doctrine.

Such as the imagination of the Court could suggest have been very deliberately
examined, and after allowing them all the weight which it appears possible to give them,
they do not shake the opinion which has been formed.

In considering this question, it has been conjectured that the commission may have
been assimilated to a deed to the validity of which delivery is essential.

This idea is founded on the supposition that the commission is not merely evidence of
an appointment, but is itself the actual appointment -- a supposition by no means
unquestionable. But, for the purpose of examining this objection fairly, let it be conceded
that the principle claimed for its support is established.

The appointment being, under the Constitution, to be made by the President personally,
the delivery of the deed of appointment, if necessary to its completion, must be made by
the President also. It is not necessary that the livery should be made personally to the
grantee of the office; it never is so made. The law would seem to contemplate that it
should be made to the Secretary of State, since it directs the secretary to affix the seal
to the commission after it shall have been signed by the President. If then the act of
livery be necessary to give validity to the commission, it has been delivered when
executed and given to the Secretary for the purpose of being sealed, recorded, and
transmitted to the party.

But in all cases of letters patent, certain solemnities are required by law, which
solemnities are the evidences

Page 5 U. S. 160

of the validity of the instrument. A formal delivery to the person is not among them. In
cases of commissions, the sign manual of the President and the seal of the United
States are those solemnities. This objection therefore does not touch the case.
It has also occurred as possible, and barely possible, that the transmission of the
commission and the acceptance thereof might be deemed necessary to complete the
right of the plaintiff.

The transmission of the commission is a practice directed by convenience, but not by


law. It cannot therefore be necessary to constitute the appointment, which must precede
it and which is the mere act of the President. If the Executive required that every person
appointed to an office should himself take means to procure his commission, the
appointment would not be the less valid on that account. The appointment is the sole
act of the President; the transmission of the commission is the sole act of the officer to
whom that duty is assigned, and may be accelerated or retarded by circumstances
which can have no influence on the appointment. A commission is transmitted to a
person already appointed, not to a person to be appointed or not, as the letter enclosing
the commission should happen to get into the post office and reach him in safety, or to
miscarry.

It may have some tendency to elucidate this point to inquire whether the possession of
the original commission be indispensably necessary to authorize a person appointed to
any office to perform the duties of that office. If it was necessary, then a loss of the
commission would lose the office. Not only negligence, but accident or fraud, fire or theft
might deprive an individual of his office. In such a case, I presume it could not be
doubted but that a copy from the record of the Office of the Secretary of State would be,
to every intent and purpose, equal to the original. The act of Congress has expressly
made it so. To give that copy validity, it would not be necessary to prove that the original
had been transmitted and afterwards lost. The copy would be complete evidence that
the original had existed, and that the appointment had been made, but not that the
original had been transmitted. If indeed it should appear that

Page 5 U. S. 161

the original had been mislaid in the Office of State, that circumstance would not affect
the operation of the copy. When all the requisites have been performed which authorize
a recording officer to record any instrument whatever, and the order for that purpose
has been given, the instrument is in law considered as recorded, although the manual
labour of inserting it in a book kept for that purpose may not have been performed.

In the case of commissions, the law orders the Secretary of State to record them.
When, therefore, they are signed and sealed, the order for their being recorded is given,
and, whether inserted in the book or not, they are in law recorded.

A copy of this record is declared equal to the original, and the fees to be paid by a
person requiring a copy are ascertained by law. Can a keeper of a public record erase
therefrom a commission which has been recorded? Or can he refuse a copy thereof to a
person demanding it on the terms prescribed by law?
Such a copy would, equally with the original, authorize the justice of peace to proceed in
the performance of his duty, because it would, equally with the original, attest his
appointment.

If the transmission of a commission be not considered as necessary to give validity to


an appointment, still less is its acceptance. The appointment is the sole act of the
President; the acceptance is the sole act of the officer, and is, in plain common sense,
posterior to the appointment. As he may resign, so may he refuse to accept; but neither
the one nor the other is capable of rendering the appointment a nonentity.

That this is the understanding of the government is apparent from the whole tenor of its
conduct.

A commission bears date, and the salary of the officer commences from his
appointment, not from the transmission or acceptance of his commission. When a
person appointed to any office refuses to accept that office, the successor is nominated
in the place of the person who

Page 5 U. S. 162

has declined to accept, and not in the place of the person who had been previously in
office and had created the original vacancy.

It is therefore decidedly the opinion of the Court that, when a commission has been
signed by the President, the appointment is made, and that the commission is complete
when the seal of the United States has been affixed to it by the Secretary of State.

Where an officer is removable at the will of the Executive, the circumstance which
completes his appointment is of no concern, because the act is at any time revocable,
and the commission may be arrested if still in the office. But when the officer is not
removable at the will of the Executive, the appointment is not revocable, and cannot be
annulled. It has conferred legal rights which cannot be resumed.

The discretion of the Executive is to be exercised until the appointment has been made.
But having once made the appointment, his power over the office is terminated in all
cases, where by law the officer is not removable by him. The right to the office is then in
the person appointed, and he has the absolute, unconditional power of accepting or
rejecting it.

Mr. Marbury, then, since his commission was signed by the President and sealed by the
Secretary of State, was appointed, and as the law creating the office gave the officer a
right to hold for five years independent of the Executive, the appointment was not
revocable, but vested in the officer legal rights which are protected by the laws of his
country.
To withhold the commission, therefore, is an act deemed by the Court not warranted by
law, but violative of a vested legal right.

This brings us to the second inquiry, which is:

2. If he has a right, and that right has been violated, do the laws of his country afford
him a remedy?

Page 5 U. S. 163

The very essence of civil liberty certainly consists in the right of every individual to claim
the protection of the laws whenever he receives an injury. One of the first duties of
government is to afford that protection. In Great Britain, the King himself is sued in the
respectful form of a petition, and he never fails to comply with the judgment of his court.

In the third volume of his Commentaries, page 23, Blackstone states two cases in which
a remedy is afforded by mere operation of law.

"In all other cases," he says,

"it is a general and indisputable rule that where there is a legal right, there is also a legal
remedy by suit or action at law whenever that right is invaded."

And afterwards, page 109 of the same volume, he says,

"I am next to consider such injuries as are cognizable by the Courts of common law.
And herein I shall for the present only remark that all possible injuries whatsoever that
did not fall within the exclusive cognizance of either the ecclesiastical, military, or
maritime tribunals are, for that very reason, within the cognizance of the common law
courts of justice, for it is a settled and invariable principle in the laws of England that
every right, when withheld, must have a remedy, and every injury its proper redress."

The Government of the United States has been emphatically termed a government of
laws, and not of men. It will certainly cease to deserve this high appellation if the laws
furnish no remedy for the violation of a vested legal right.

If this obloquy is to be cast on the jurisprudence of our country, it must arise from the
peculiar character of the case.

It behooves us, then, to inquire whether there be in its composition any ingredient which
shall exempt from legal investigation or exclude the injured party from legal redress. In
pursuing this inquiry, the first question which presents itself is whether this can be
arranged

Page 5 U. S. 164
with that class of cases which come under the description of damnum absque injuria --
a loss without an injury.

This description of cases never has been considered, and, it is believed, never can be
considered, as comprehending offices of trust, of honour or of profit. The office of justice
of peace in the District of Columbia is such an office; it is therefore worthy of the
attention and guardianship of the laws. It has received that attention and guardianship.
It has been created by special act of Congress, and has been secured, so far as the
laws can give security to the person appointed to fill it, for five years. It is not then on
account of the worthlessness of the thing pursued that the injured party can be alleged
to be without remedy.

Is it in the nature of the transaction? Is the act of delivering or withholding a commission


to be considered as a mere political act belonging to the Executive department alone,
for the performance of which entire confidence is placed by our Constitution in the
Supreme Executive, and for any misconduct respecting which the injured individual has
no remedy?

That there may be such cases is not to be questioned. but that every act of duty to be
performed in any of the great departments of government constitutes such a case is not
to be admitted.

By the act concerning invalids, passed in June, 1794, the Secretary at War is ordered to
place on the pension list all persons whose names are contained in a report previously
made by him to Congress. If he should refuse to do so, would the wounded veteran be
without remedy? Is it to be contended that where the law, in precise terms, directs the
performance of an act in which an individual is interested, the law is incapable of
securing obedience to its mandate? Is it on account of the character of the person
against whom the complaint is made? Is it to be contended that the heads of
departments are not amenable to the laws of their country?

Whatever the practice on particular occasions may be, the theory of this principle will
certainly never be maintained.

Page 5 U. S. 165

No act of the Legislature confers so extraordinary a privilege, nor can it derive


countenance from the doctrines of the common law. After stating that personal injury
from the King to a subject is presumed to be impossible, Blackstone, Vol. III. p. 255,
says,

"but injuries to the rights of property can scarcely be committed by the Crown without
the intervention of its officers, for whom, the law, in matters of right, entertains no
respect or delicacy, but furnishes various methods of detecting the errors and
misconduct of those agents by whom the King has been deceived and induced to do a
temporary injustice."
By the act passed in 1796, authorizing the sale of the lands above the mouth of
Kentucky river, the purchaser, on paying his purchase money, becomes completely
entitled to the property purchased, and, on producing to the Secretary of State the
receipt of the treasurer upon a certificate required by the law, the President of the
United States is authorized to grant him a patent. It is further enacted that all patents
shall be countersigned by the Secretary of State, and recorded in his office. If the
Secretary of State should choose to withhold this patent, or, the patent being lost,
should refuse a copy of it, can it be imagined that the law furnishes to the injured person
no remedy?

It is not believed that any person whatever would attempt to maintain such a
proposition.

It follows, then, that the question whether the legality of an act of the head of a
department be examinable in a court of justice or not must always depend on the nature
of that act.

If some acts be examinable and others not, there must be some rule of law to guide the
Court in the exercise of its jurisdiction.

In some instances, there may be difficulty in applying the rule to particular cases; but
there cannot, it is believed, be much difficulty in laying down the rule.

By the Constitution of the United States, the President is invested with certain important
political powers, in the

Page 5 U. S. 166

exercise of which he is to use his own discretion, and is accountable only to his country
in his political character and to his own conscience. To aid him in the performance of
these duties, he is authorized to appoint certain officers, who act by his authority and in
conformity with his orders.

In such cases, their acts are his acts; and whatever opinion may be entertained of the
manner in which executive discretion may be used, still there exists, and can exist, no
power to control that discretion. The subjects are political. They respect the nation, not
individual rights, and, being entrusted to the Executive, the decision of the Executive is
conclusive. The application of this remark will be perceived by adverting to the act of
Congress for establishing the Department of Foreign Affairs. This officer, as his duties
were prescribed by that act, is to conform precisely to the will of the President. He is the
mere organ by whom that will is communicated. The acts of such an officer, as an
officer, can never be examinable by the Courts.

But when the Legislature proceeds to impose on that officer other duties; when he is
directed peremptorily to perform certain acts; when the rights of individuals are
dependent on the performance of those acts; he is so far the officer of the law, is
amenable to the laws for his conduct, and cannot at his discretion, sport away the
vested rights of others.

The conclusion from this reasoning is that, where the heads of departments are the
political or confidential agents of the Executive, merely to execute the will of the
President, or rather to act in cases in which the Executive possesses a constitutional or
legal discretion, nothing can be more perfectly clear than that their acts are only
politically examinable. But where a specific duty is assigned by law, and individual rights
depend upon the performance of that duty, it seems equally clear that the individual who
considers himself injured has a right to resort to the laws of his country for a remedy.

If this be the rule, let us inquire how it applies to the case under the consideration of the
Court.

Page 5 U. S. 167

The power of nominating to the Senate, and the power of appointing the person
nominated, are political powers, to be exercised by the President according to his own
discretion. When he has made an appointment, he has exercised his whole power, and
his discretion has been completely applied to the case. If, by law, the officer be
removable at the will of the President, then a new appointment may be immediately
made, and the rights of the officer are terminated. But as a fact which has existed
cannot be made never to have existed, the appointment cannot be annihilated, and
consequently, if the officer is by law not removable at the will of the President, the rights
he has acquired are protected by the law, and are not resumable by the President. They
cannot be extinguished by Executive authority, and he has the privilege of asserting
them in like manner as if they had been derived from any other source.

The question whether a right has vested or not is, in its nature, judicial, and must be
tried by the judicial authority. If, for example, Mr. Marbury had taken the oaths of a
magistrate and proceeded to act as one, in consequence of which a suit had been
instituted against him in which his defence had depended on his being a magistrate; the
validity of his appointment must have been determined by judicial authority.

So, if he conceives that, by virtue of his appointment, he has a legal right either to the
commission which has been made out for him or to a copy of that commission, it is
equally a question examinable in a court, and the decision of the Court upon it must
depend on the opinion entertained of his appointment.

That question has been discussed, and the opinion is that the latest point of time which
can be taken as that at which the appointment was complete and evidenced was when,
after the signature of the President, the seal of the United States was affixed to the
commission.

It is then the opinion of the Court:


1. That, by signing the commission of Mr. Marbury, the President of the United States
appointed him a justice

Page 5 U. S. 168

of peace for the County of Washington in the District of Columbia, and that the seal of
the United States, affixed thereto by the Secretary of State, is conclusive testimony of
the verity of the signature, and of the completion of the appointment, and that the
appointment conferred on him a legal right to the office for the space of five years.

2. That, having this legal title to the office, he has a consequent right to the commission,
a refusal to deliver which is a plain violation of that right, for which the laws of his
country afford him a remedy.

It remains to be inquired whether,

3. He is entitled to the remedy for which he applies. This depends on:

1. The nature of the writ applied for, and

2. The power of this court.

1. The nature of the writ.

Blackstone, in the third volume of his Commentaries, page 110, defines a mandamus to
be

"a command issuing in the King's name from the Court of King's Bench, and directed to
any person, corporation, or inferior court of judicature within the King's dominions
requiring them to do some particular thing therein specified which appertains to their
office and duty, and which the Court of King's Bench has previously determined, or at
least supposes, to be consonant to right and justice."

Lord Mansfield, in 3 Burrows, 1266, in the case of The King v. Baker et al., states with
much precision and explicitness the cases in which this writ may be used.

"Whenever," says that very able judge,

"there is a right to execute an office, perform a service, or exercise a franchise (more


especially if it be in a matter of public concern or attended with profit), and a person is
kept out of possession, or dispossessed of such right, and

Page 5 U. S. 169
has no other specific legal remedy, this court ought to assist by mandamus, upon
reasons of justice, as the writ expresses, and upon reasons of public policy, to preserve
peace, order and good government."

In the same case, he says,

"this writ ought to be used upon all occasions where the law has established no specific
remedy, and where in justice and good government there ought to be one."

In addition to the authorities now particularly cited, many others were relied on at the
bar which show how far the practice has conformed to the general doctrines that have
been just quoted.

This writ, if awarded, would be directed to an officer of government, and its mandate to
him would be, to use the words of Blackstone,

"to do a particular thing therein specified, which appertains to his office and duty and
which the Court has previously determined or at least supposes to be consonant to right
and justice."

Or, in the words of Lord Mansfield, the applicant, in this case, has a right to execute an
office of public concern, and is kept out of possession of that right.

These circumstances certainly concur in this case.

Still, to render the mandamus a proper remedy, the officer to whom it is to be directed
must be one to whom, on legal principles, such writ may be directed, and the person
applying for it must be without any other specific and legal remedy.

1. With respect to the officer to whom it would be directed. The intimate political relation,
subsisting between the President of the United States and the heads of departments,
necessarily renders any legal investigation of the acts of one of those high officers
peculiarly irksome, as well as delicate, and excites some hesitation with respect to the
propriety of entering into such investigation. Impressions are often received without
much reflection or examination, and it is not wonderful that, in such a case as this, the
assertion by an individual of his legal claims in a court of justice, to which claims it is the
duty of that court to attend, should, at first view, be considered

Page 5 U. S. 170

by some as an attempt to intrude into the cabinet and to intermeddle with the
prerogatives of the Executive.

It is scarcely necessary for the Court to disclaim all pretensions to such a jurisdiction.
An extravagance so absurd and excessive could not have been entertained for a
moment. The province of the Court is solely to decide on the rights of individuals, not to
inquire how the Executive or Executive officers perform duties in which they have a
discretion. Questions, in their nature political or which are, by the Constitution and laws,
submitted to the Executive, can never be made in this court.

But, if this be not such a question; if so far from being an intrusion into the secrets of the
cabinet, it respects a paper which, according to law, is upon record, and to a copy of
which the law gives a right, on the payment of ten cents; if it be no intermeddling with a
subject over which the Executive can be considered as having exercised any control;
what is there in the exalted station of the officer which shall bar a citizen from asserting
in a court of justice his legal rights, or shall forbid a court to listen to the claim or to issue
a mandamus directing the performance of a duty not depending on Executive discretion,
but on particular acts of Congress and the general principles of law?

If one of the heads of departments commits any illegal act under colour of his office by
which an individual sustains an injury, it cannot be pretended that his office alone
exempts him from being sued in the ordinary mode of proceeding, and being compelled
to obey the judgment of the law. How then can his office exempt him from this particular
mode of deciding on the legality of his conduct if the case be such a case as would,
were any other individual the party complained of, authorize the process?

It is not by the office of the person to whom the writ is directed, but the nature of the
thing to be done, that the propriety or impropriety of issuing a mandamus is to be
determined. Where the head of a department acts in a case in which Executive
discretion is to be exercised, in which he is the mere organ of Executive will, it is

Page 5 U. S. 171

again repeated, that any application to a court to control, in any respect, his conduct,
would be rejected without hesitation.

But where he is directed by law to do a certain act affecting the absolute rights of
individuals, in the performance of which he is not placed under the particular direction of
the President, and the performance of which the President cannot lawfully forbid, and
therefore is never presumed to have forbidden -- as for example, to record a
commission, or a patent for land, which has received all the legal solemnities; or to give
a copy of such record -- in such cases, it is not perceived on what ground the Courts of
the country are further excused from the duty of giving judgment that right to be done to
an injured individual than if the same services were to be performed by a person not the
head of a department.

This opinion seems not now for the first time to be taken up in this country.

It must be well recollected that, in 1792, an act passed, directing the secretary at war to
place on the pension list such disabled officers and soldiers as should be reported to
him by the Circuit Courts, which act, so far as the duty was imposed on the Courts, was
deemed unconstitutional; but some of the judges, thinking that the law might be
executed by them in the character of commissioners, proceeded to act and to report in
that character.

This law being deemed unconstitutional at the circuits, was repealed, and a different
system was established; but the question whether those persons who had been
reported by the judges, as commissioners, were entitled, in consequence of that report,
to be placed on the pension list was a legal question, properly determinable in the
Courts, although the act of placing such persons on the list was to be performed by the
head of a department.

That this question might be properly settled, Congress passed an act in February, 1793,
making it the duty of the Secretary of War, in conjunction with the Attorney General, to
take such measures as might be necessary to obtain an adjudication of the Supreme
Court of the United

Page 5 U. S. 172

States on the validity of any such rights, claimed under the act aforesaid.

After the passage of this act, a mandamus was moved for, to be directed to the
Secretary of War, commanding him to place on the pension list a person stating himself
to be on the report of the judges.

There is, therefore, much reason to believe that this mode of trying the legal right of the
complainant was deemed by the head of a department, and by the highest law officer of
the United States, the most proper which could be selected for the purpose.

When the subject was brought before the Court, the decision was not that a mandamus
would not lie to the head of a department directing him to perform an act enjoined by
law, in the performance of which an individual had a vested interest, but that a
mandamus ought not to issue in that case -- the decision necessarily to be made if the
report of the commissioners did not confer on the applicant a legal right.

The judgment in that case is understood to have decided the merits of all claims of that
description, and the persons, on the report of the commissioners, found it necessary to
pursue the mode prescribed by the law subsequent to that which had been deemed
unconstitutional in order to place themselves on the pension list.

The doctrine, therefore, now advanced is by no means a novel one.

It is true that the mandamus now moved for is not for the performance of an act
expressly enjoined by statute.

It is to deliver a commission, on which subjects the acts of Congress are silent. This
difference is not considered as affecting the case. It has already been stated that the
applicant has, to that commission, a vested legal right of which the Executive cannot
deprive him. He has been appointed to an office from which he is not removable at the
will of the Executive, and, being so

Page 5 U. S. 173

appointed, he has a right to the commission which the Secretary has received from the
President for his use. The act of Congress does not, indeed, order the Secretary of
State to send it to him, but it is placed in his hands for the person entitled to it, and
cannot be more lawfully withheld by him than by another person.

It was at first doubted whether the action of detinue was not a specific legal remedy for
the commission which has been withheld from Mr. Marbury, in which case a mandamus
would be improper. But this doubt has yielded to the consideration that the judgment in
detinue is for the thing itself, or its value. The value of a public office not to be sold is
incapable of being ascertained, and the applicant has a right to the office itself, or to
nothing. He will obtain the office by obtaining the commission or a copy of it from the
record.

This, then, is a plain case of a mandamus, either to deliver the commission or a copy of
it from the record, and it only remains to be inquired:

Whether it can issue from this Court.

The act to establish the judicial courts of the United States authorizes the Supreme
Court

"to issue writs of mandamus, in cases warranted by the principles and usages of law, to
any courts appointed, or persons holding office, under the authority of the United
States."

The Secretary of State, being a person, holding an office under the authority of the
United States, is precisely within the letter of the description, and if this Court is not
authorized to issue a writ of mandamus to such an officer, it must be because the law is
unconstitutional, and therefore absolutely incapable of conferring the authority and
assigning the duties which its words purport to confer and assign.

The Constitution vests the whole judicial power of the United States in one Supreme
Court, and such inferior courts as Congress shall, from time to time, ordain and
establish. This power is expressly extended to all cases arising under the laws of the
United States; and consequently, in some form, may be exercised over the present

Page 5 U. S. 174

case, because the right claimed is given by a law of the United States.

In the distribution of this power. it is declared that


"The Supreme Court shall have original jurisdiction in all cases affecting ambassadors,
other public ministers and consuls, and those in which a state shall be a party. In all
other cases, the Supreme Court shall have appellate jurisdiction."

It has been insisted at the bar, that, as the original grant of jurisdiction to the Supreme
and inferior courts is general, and the clause assigning original jurisdiction to the
Supreme Court contains no negative or restrictive words, the power remains to the
Legislature to assign original jurisdiction to that Court in other cases than those
specified in the article which has been recited, provided those cases belong to the
judicial power of the United States.

If it had been intended to leave it in the discretion of the Legislature to apportion the
judicial power between the Supreme and inferior courts according to the will of that
body, it would certainly have been useless to have proceeded further than to have
defined the judicial power and the tribunals in which it should be vested. The
subsequent part of the section is mere surplusage -- is entirely without meaning -- if
such is to be the construction. If Congress remains at liberty to give this court appellate
jurisdiction where the Constitution has declared their jurisdiction shall be original, and
original jurisdiction where the Constitution has declared it shall be appellate, the
distribution of jurisdiction made in the Constitution, is form without substance.

Affirmative words are often, in their operation, negative of other objects than those
affirmed, and, in this case, a negative or exclusive sense must be given to them or they
have no operation at all.

It cannot be presumed that any clause in the Constitution is intended to be without


effect, and therefore such construction is inadmissible unless the words require it.

Page 5 U. S. 175

If the solicitude of the Convention respecting our peace with foreign powers induced a
provision that the Supreme Court should take original jurisdiction in cases which might
be supposed to affect them, yet the clause would have proceeded no further than to
provide for such cases if no further restriction on the powers of Congress had been
intended. That they should have appellate jurisdiction in all other cases, with such
exceptions as Congress might make, is no restriction unless the words be deemed
exclusive of original jurisdiction.

When an instrument organizing fundamentally a judicial system divides it into one


Supreme and so many inferior courts as the Legislature may ordain and establish, then
enumerates its powers, and proceeds so far to distribute them as to define the
jurisdiction of the Supreme Court by declaring the cases in which it shall take original
jurisdiction, and that in others it shall take appellate jurisdiction, the plain import of the
words seems to be that, in one class of cases, its jurisdiction is original, and not
appellate; in the other, it is appellate, and not original. ,If any other construction would
render the clause inoperative, that is an additional reason for rejecting such other
construction, and for adhering to the obvious meaning.

To enable this court then to issue a mandamus, it must be shown to be an exercise of


appellate jurisdiction, or to be necessary to enable them to exercise appellate
jurisdiction.

It has been stated at the bar that the appellate jurisdiction may be exercised in a variety
of forms, and that, if it be the will of the Legislature that a mandamus should be used for
that purpose, that will must be obeyed. This is true; yet the jurisdiction must be
appellate, not original.

It is the essential criterion of appellate jurisdiction that it revises and corrects the
proceedings in a cause already instituted, and does not create that case. Although,
therefore, a mandamus may be directed to courts, yet to issue such a writ to an officer
for the delivery of a paper is, in effect, the same as to sustain an original action for that
paper, and therefore seems not to belong to

Page 5 U. S. 176

appellate, but to original jurisdiction. Neither is it necessary in such a case as this to


enable the Court to exercise its appellate jurisdiction.

The authority, therefore, given to the Supreme Court by the act establishing the judicial
courts of the United States to issue writs of mandamus to public officers appears not to
be warranted by the Constitution, and it becomes necessary to inquire whether a
jurisdiction so conferred can be exercised.

The question whether an act repugnant to the Constitution can become the law of the
land is a question deeply interesting to the United States, but, happily, not of an
intricacy proportioned to its interest. It seems only necessary to recognise certain
principles, supposed to have been long and well established, to decide it.

That the people have an original right to establish for their future government such
principles as, in their opinion, shall most conduce to their own happiness is the basis on
which the whole American fabric has been erected. The exercise of this original right is
a very great exertion; nor can it nor ought it to be frequently repeated. The principles,
therefore, so established are deemed fundamental. And as the authority from which
they proceed, is supreme, and can seldom act, they are designed to be permanent.

This original and supreme will organizes the government and assigns to different
departments their respective powers. It may either stop here or establish certain limits
not to be transcended by those departments.

The Government of the United States is of the latter description. The powers of the
Legislature are defined and limited; and that those limits may not be mistaken or
forgotten, the Constitution is written. To what purpose are powers limited, and to what
purpose is that limitation committed to writing, if these limits may at any time be passed
by those intended to be restrained? The distinction between a government with limited
and unlimited powers is abolished if those limits do not confine the persons on whom
they are imposed, and if acts prohibited

Page 5 U. S. 177

and acts allowed are of equal obligation. It is a proposition too plain to be contested that
the Constitution controls any legislative act repugnant to it, or that the Legislature may
alter the Constitution by an ordinary act.

Between these alternatives there is no middle ground. The Constitution is either a


superior, paramount law, unchangeable by ordinary means, or it is on a level with
ordinary legislative acts, and, like other acts, is alterable when the legislature shall
please to alter it.

If the former part of the alternative be true, then a legislative act contrary to the
Constitution is not law; if the latter part be true, then written Constitutions are absurd
attempts on the part of the people to limit a power in its own nature illimitable.

Certainly all those who have framed written Constitutions contemplate them as forming
the fundamental and paramount law of the nation, and consequently the theory of every
such government must be that an act of the Legislature repugnant to the Constitution is
void.

This theory is essentially attached to a written Constitution, and is consequently to be


considered by this Court as one of the fundamental principles of our society. It is not,
therefore, to be lost sight of in the further consideration of this subject.

If an act of the Legislature repugnant to the Constitution is void, does it, notwithstanding
its invalidity, bind the Courts and oblige them to give it effect? Or, in other words, though
it be not law, does it constitute a rule as operative as if it was a law? This would be to
overthrow in fact what was established in theory, and would seem, at first view, an
absurdity too gross to be insisted on. It shall, however, receive a more attentive
consideration.

It is emphatically the province and duty of the Judicial Department to say what the law
is. Those who apply the rule to particular cases must, of necessity, expound and
interpret that rule. If two laws conflict with each other, the Courts must decide on the
operation of each.

Page 5 U. S. 178

So, if a law be in opposition to the Constitution, if both the law and the Constitution
apply to a particular case, so that the Court must either decide that case conformably to
the law, disregarding the Constitution, or conformably to the Constitution, disregarding
the law, the Court must determine which of these conflicting rules governs the case.
This is of the very essence of judicial duty.

If, then, the Courts are to regard the Constitution, and the Constitution is superior to any
ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern
the case to which they both apply.

Those, then, who controvert the principle that the Constitution is to be considered in
court as a paramount law are reduced to the necessity of maintaining that courts must
close their eyes on the Constitution, and see only the law.

This doctrine would subvert the very foundation of all written Constitutions. It would
declare that an act which, according to the principles and theory of our government, is
entirely void, is yet, in practice, completely obligatory. It would declare that, if the
Legislature shall do what is expressly forbidden, such act, notwithstanding the express
prohibition, is in reality effectual. It would be giving to the Legislature a practical and real
omnipotence with the same breath which professes to restrict their powers within
narrow limits. It is prescribing limits, and declaring that those limits may be passed at
pleasure.

That it thus reduces to nothing what we have deemed the greatest improvement on
political institutions -- a written Constitution, would of itself be sufficient, in America
where written Constitutions have been viewed with so much reverence, for rejecting the
construction. But the peculiar expressions of the Constitution of the United States
furnish additional arguments in favour of its rejection.

The judicial power of the United States is extended to all cases arising under the
Constitution.

Page 5 U. S. 179

Could it be the intention of those who gave this power to say that, in using it, the
Constitution should not be looked into? That a case arising under the Constitution
should be decided without examining the instrument under which it arises?

This is too extravagant to be maintained.

In some cases then, the Constitution must be looked into by the judges. And if they can
open it at all, what part of it are they forbidden to read or to obey?

There are many other parts of the Constitution which serve to illustrate this subject.

It is declared that "no tax or duty shall be laid on articles exported from any State."
Suppose a duty on the export of cotton, of tobacco, or of flour, and a suit instituted to
recover it. Ought judgment to be rendered in such a case? ought the judges to close
their eyes on the Constitution, and only see the law?

The Constitution declares that "no bill of attainder or ex post facto law shall be passed."

If, however, such a bill should be passed and a person should be prosecuted under it,
must the Court condemn to death those victims whom the Constitution endeavours to
preserve?

"No person,' says the Constitution, 'shall be convicted of treason unless on the
testimony of two witnesses to the same overt act, or on confession in open court."

Here. the language of the Constitution is addressed especially to the Courts. It


prescribes, directly for them, a rule of evidence not to be departed from. If the
Legislature should change that rule, and declare one witness, or a confession out of
court, sufficient for conviction, must the constitutional principle yield to the legislative
act?

From these and many other selections which might be made, it is apparent that the
framers of the Constitution

Page 5 U. S. 180

contemplated that instrument as a rule for the government of courts, as well as of the
Legislature.

Why otherwise does it direct the judges to take an oath to support it? This oath certainly
applies in an especial manner to their conduct in their official character. How immoral to
impose it on them if they were to be used as the instruments, and the knowing
instruments, for violating what they swear to support!

The oath of office, too, imposed by the Legislature, is completely demonstrative of the
legislative opinion on this subject. It is in these words:

"I do solemnly swear that I will administer justice without respect to persons, and do
equal right to the poor and to the rich; and that I will faithfully and impartially discharge
all the duties incumbent on me as according to the best of my abilities and
understanding, agreeably to the Constitution and laws of the United States."

Why does a judge swear to discharge his duties agreeably to the Constitution of the
United States if that Constitution forms no rule for his government? if it is closed upon
him and cannot be inspected by him?

If such be the real state of things, this is worse than solemn mockery. To prescribe or to
take this oath becomes equally a crime.
It is also not entirely unworthy of observation that, in declaring what shall be the
supreme law of the land, the Constitution itself is first mentioned, and not the laws of the
United States generally, but those only which shall be made in pursuance of the
Constitution, have that rank.

Thus, the particular phraseology of the Constitution of the United States confirms and
strengthens the principle, supposed to be essential to all written Constitutions, that a
law repugnant to the Constitution is void, and that courts, as well as other departments,
are bound by that instrument.

The rule must be discharged.

_____________________________________________________________________________________

SUMMARY

U.S. Supreme Court


Marbury v. Madison, 5 U.S. 1 Cranch 137 137 (1803)

Marbury v. Madison

5 U.S. (1 Cranch) 137

Syllabus

The clerks of the Department of State of the United States may be called upon to give
evidence of transactions in the Department which are not of a confidential character.

The Secretary of State cannot be called upon as a witness to state transactions of a


confidential nature which may have occurred in his Department. But he may be called
upon to give testimony of circumstances which were not of that character.

Clerks in the Department of State were directed to be sworn, subject to objections to


questions upon confidential matters.

Some point of time must be taken when the power of the Executive over an officer, not
removable at his will, must cease. That point of time must be when the constitutional
power of appointment has been exercised. And the power has been exercised when the
last act required from the person possessing the power has been performed. This last
act is the signature of the commission.

If the act of livery be necessary to give validity to the commission of an officer, it has
been delivered when executed, and given to the Secretary of State for the purpose of
being sealed, recorded, and transmitted to the party.
In cases of commissions to public officers, the law orders the Secretary of State to
record them. When, therefore, they are signed and sealed, the order for their being
recorded is given, and, whether inserted inserted into the book or not, they are
recorded.

When the heads of the departments of the Government are the political or confidential
officers of the Executive, merely to execute the will of the President, or rather to act in
cases in which the Executive possesses a constitutional or legal discretion, nothing can
be more perfectly clear than that their acts are only politically examinable. But where a
specific duty is assigned by law, and individual rights depend upon the performance of
that duty, it seems equally clear that the individual who considers himself injured has a
right to resort to the laws of his country for a remedy.

The President of the United States, by signing the commission, appointed Mr. Marbury
a justice of the peace for the County of Washington, in the District of Columbia, and the
seal of the United States, affixed thereto by the Secretary of State, is conclusive
testimony of the verity of the signature, and of the completion of the appointment; and
the appointment conferred on him a legal right to the office for the space of five years.
Having this legal right to the office, he has a consequent right to the commission, a
refusal to deliver which is a plain violation of that right for which the laws of the country
afford him a remedy.

To render a mandamus a proper remedy, the officer to whom it is directed must be one
to whom, on legal principles, such writ must be directed, and the person applying for it
must be without any other specific remedy.

Where a commission to a public officer has been made out, signed, and sealed, and is
withheld from the person entitled to it, an action of detinue for the commission against
the Secretary of State who refuses to deliver it is not the proper remedy, as the
judgment in detinue is for the thing itself, or its value. The value of a public office, not to
be sold, is incapable of being ascertained. It is a plain case for a mandamus, either to
deliver the commission or a copy of it from the record.

To enable the Court to issue a mandamus to compel the delivery of the commission of a
public office by the Secretary of State, it must be shown that it is an exercise of
appellate jurisdiction, or that it be necessary to enable them to exercise appellate
jurisdiction.

It is the essential criterion of appellate jurisdiction that it revises and corrects the
proceedings in a cause already instituted, and does not create the cause.

The authority given to the Supreme Court by the act establishing the judicial system of
the United States to issue writs of mandamus to public officers appears not to be
warranted by the Constitution.
It is emphatically the duty of the Judicial Department to say what the law is. Those who
apply the rule to particular cases must, of necessity, expound and interpret the rule. If
two laws conflict with each other, the Court must decide on the operation of each.

If courts are to regard the Constitution, and the Constitution is superior to any ordinary
act of the legislature, the Constitution, and not such ordinary act, must govern the case
to which they both apply.

At the December Term, 1801, William Marbury, Dennis Ramsay, Robert Townsend
Hooe, and William Harper, by their counsel,

Page 5 U. S. 138

severally moved the court for a rule to James Madison, Secretary of State of the United
States, to show cause why a mandamus should not issue commanding him to cause to
be delivered to them respectively their several commissions as justices of the peace in
the District of Columbia. This motion was supported by affidavits of the following facts:
that notice of this motion had been given to Mr. Madison; that Mr. Adams, the late
President of the United States, nominated the applicants to the Senate for their advice
and consent to be appointed justices of the peace of the District of Columbia; that the
Senate advised and consented to the appointments; that commissions in due form were
signed by the said President appointing them justices, &c., and that the seal of the
United States was in due form affixed to the said commissions by the Secretary of
State; that the applicants have requested Mr. Madison to deliver them their said
commissions, who has not complied with that request; and that their said commissions
are withheld from them; that the applicants have made application to Mr. Madison as
Secretary of State of the United States at his office, for information whether the
commissions were signed and sealed as aforesaid; that explicit and satisfactory
information has not been given in answer to that inquiry, either by the Secretary of State
or any officer in the Department of State; that application has been made to the
secretary of the Senate for a certificate of the nomination of the applicants, and of the
advice and consent of the Senate, who has declined giving such a certificate;
whereupon a rule was made to show cause on the fourth day of this term. This rule
having been duly served,

Page 5 U. S. 139

Mr. Jacob Wagner and Mr. Daniel Brent, who had been summoned to attend the court
and were required to give evidence, objected to be sworn, alleging that they were clerks
in the Department of State, and not bound to disclose any facts relating to the business
or transactions of the office.

The court ordered the witnesses to be sworn, and their answers taken in writing, but
informed them that, when the questions were asked, they might state their objections to
answering each particular question, if they had any.
Mr. Lincoln, who had been the acting Secretary of State, when the circumstances stated
in the affidavits occurred, was called upon to give testimony. He objected to answering.
The questions were put in writing.

The court said there was nothing confidential required to be disclosed. If there had
been, he was not obliged to answer it, and if he thought anything was communicated to
him confidentially, he was not bound to disclose, nor was he obliged to state anything
which would criminate himself.

The questions argued by the counsel for the relators were, 1. Whether the Supreme
Court can award the writ of mandamus in any case. 2. Whether it will lie to a Secretary
of State, in any case whatever. 3. Whether, in the present case, the Court may award a
mandamus to James Madison, Secretary of State.
A.M. No. RTJ-12-2334 November 14, 2012

ERNESTO HEBRON, Complainant,


vs.
JUDGE MATIAS M. GARCIA II, Regional Trial Court, Branch 19, Bacoor City,
Cavite, Respondent.

RESOLUTION

REYES, J.:

This case stems from the administrative complaint1 dated September 30, 2011 filed with the Office of
the Court Administrator (OCA) by complainant Ernesto Hebron (Hebron), charging respondent
Judge Matias M. Garcia II (Judge Garcia) with gross ignorance of the law, incompetence, abuse of
authority and abuse of discretion.

Hebron was the complainant in Criminal Case No. CC-07-43, a case for falsification of public
document which he filed against one Aladin Simundac (Simundac) relative to the latters application
for free patent over a property situated in Carmona, Cavite. When Simundacs motion to suspend
proceedings was denied by the Municipal Trial Court (MTC) of Carmona, Cavite where the criminal
case was pending, Simundac filed with the Regional Trial Court (RTC) of Bacoor, Cavite a petition
for certiorari with prayer for issuance of temporary restraining order (TRO) and writ of preliminary
injunction, docketed as BSC No. 2009-02 and raffled to RTC, Branch 19, presided by respondent
Judge Garcia. Hebron filed a motion for Judge Garcias inhibition, citing his perceived bias and
partiality of Judge Garcia, who had earlier dismissed Civil Case No. BCV-2005-94 also filed by
Hebron against Simundac.

A hearing on Simundacs application for injunctive writ was conducted by Judge Garcia on April 16,
2009, when he issued the following Order:

When this case was called for Temporary Restraining Order and/or Writ of Preliminary Injunction,
Atty. Frolin Remonquillo filed a Motion to Inhibit which was received by the Court only yesterday.
Atty. Bingle B. Talatala, counsel for the petitioner, moved that she be given ten (10) days to file her
comment. Atty. Remonquillo prayed that he be given the same number of days within which to file
his reply, if necessary. After which, the incident is submitted for resolution.

Both parties agreed to maintain the status quo until this Court could have resolved the incident.

SO ORDERED.2

On June 2, 2009, Judge Garcia set for June 8, 2009 another hearing on the application for TRO.
Come June 8, 2009, he issued an Order that states, "by agreement of the parties, let them be given
time to file their respective position papers."3 On September 18, 2009, he finally issued his Order
granting Simundacs application for preliminary injunction, which led to the suspension of the
proceedings in Criminal Case No. CC-07-43. He denied in the same Order Hebrons motion for
inhibition.

Against the foregoing antecedents, Hebron filed the administrative complaint with the OCA, claiming
that: (1) Judge Garcia "distorted the facts"4 to justify his issuance of the writ of preliminary injunction;
(2) neither Hebron nor his counsel could have agreed on June 8, 2009 to file a position paper on
Simundacs application for injunctive writ, since they were both absent during the hearing on said
date; (3) Judge Garcia was guilty of "ignorance of the rule and jurisprudence"5 for ordering the
issuance of a writ of preliminary injunction without first conducting a hearing thereon; (4) Judge
Garcia had ignored existing jurisprudence, making his rulings "beyond the permissible margin of
error"6 ; and (5) Judge Garcia should have recused himself from Civil Case No. BSC No. 2009-02,
given his bias and partiality in favor of Simundac.

Hebron had previously asked the RTC to reconsider the Order dated September 18, 2009, but as
stated in his complaint charging Judge Garcia:

On October 30, 2009, we filed a Motion for Reconsideration of the Order of Judge Matias Garcia II
dated September 18, 2009. x x x.

On November 25, 2009, accused thru counsel filed his comment on the motion for reconsideration
which is the last pleading and the motion was submitted for resolution.

On April 20, 2010, we filed a motion to resolve our motion for reconsideration and set the same for
hearing on April 29, 2010. x x x

On September 7, 2010, we filed our second motion to resolve our motion for reconsideration and set
the same for hearing on September 28, 2010. x x x.

Up to the present, after the lapse of one (1) year, nine (9) months and fourteen (14) days, no notice
of resolution on our Motion for Reconsideration was sent to our counsel or to the undersigned. Any
motion, regardless of whether the motions were frivolous or dilatory, and not germane to the pending
case x x x respondent judge should have resolved the same citing the facts and the law on which the
order was based within the time prescribed by the rules (Aries vs. Beldia, 476 SCRA 298).7

In his Comment, Judge Garcia gave a lengthy discussion of his bases for his past rulings.
Particularly on the matter of his failure to immediately resolve Hebrons motion to reconsider the
Order dated September 18, 2009, Judge Garcia, explained:

The Motion for Reconsideration was inadvertently not acted upon by the Court for an unreasonable
length of time. The Court noticed only of the pending Motion for Reconsideration when it conducted
its inventory of cases in July 2011 which was further extended to September 2011 due to the
program of this Honorable Office entitled "Case Delay and Docket Reduction Project (CDDRP)"
wherein this Court was one of the designated pilot courts for its implementation. For about five (5)
months, the Court almost literally stopped all its proceedings to give way to the said program. x x x.

The Court would not be washing its hand for the delay, and admits the lapse but would rather ask
the indulgence and understanding of this Honorable Office on its predicament. The delay was not
deliberately and maliciously motivated. The Court is swamped with thousands of cases and
undersigned is just overwhelmed thereof. As of July 2011, the Court has about 3,788 pending cases.
From January to October 2011, about 879 cases were raffled to the Court. The Court is trying its
best to comply with the mandate of the law on resolving pending incidents. But with such workload,
the Court could not simply comply.

The overload of cases has been brought to the attention of the CDDRP during its meeting with the
Supreme Court and Office of the Court Administrator Officials and Personnel. It was explained to us
that the said program was to find ways and means on how to unclog the docket of the Court.
Statistics would not help the Courts of Bacoor. What we need is the creation of new salas. For the
meantime, we are doing our best and undersigned promised that the same incident would not
happen again and if it could not be avoided, promised to file an extension of time to
resolve.8 (Emphasis ours)

The OCAs Report and Recommendation

In its Report9 dated September 12, 2012, the OCA explained that Judge Garcia could not be
disciplined for the charges that pertained to his discharge of adjudicative functions. If Hebron truly
believed that the rulings of Judge Garcia were erroneously made, the same could not be corrected
through the filing of an administrative complaint.10

Nonetheless, the OCA held that Judge Garcia could be held administratively liable for his undue
delay in resolving Hebrons motion for reconsideration. It declared:

Records show that the motion was submitted for resolution on 25 November 2009. However,
respondent Judge claimed that the motion was inadvertently not acted upon for an unreasonable
length of time because the court only noticed the same when it conducted its inventory of cases in
July 2011. Evidently, respondent Judge failed to resolve the motion within the 90-day reglementary
period provided in the Constitution. "Reglementary periods fixed by law and the various issuances of
the Court are designed not only to protect the rights of all the parties to due process, but also to
achieve efficiency and order in the conduct of official business." Further, "judges are enjoined to
dispose of the courts business promptly and expeditiously, and to decide cases within the period
fixed by law."11(Citations omitted and emphasis ours)

The OCA then recommended that Judge Garcia be found guilty of undue delay in rendering an
order, and accordingly be fined in the amount of P5,000.00 with a stern warning that a repetition of
the same or similar act shall be dealt with more severely.12

Before the Court could have acted upon the OCAs Report, Hebron filed with the OCA a Letter dated
October 2, 2012, withdrawing his complaint against Judge Garcia. He claimed to have filed the
administrative complaint only upon the prodding of his former lawyer, Atty. Frolin H. Remoquillo, and
that he signed it without even fully understanding the contents thereof. Furthermore, he reasoned
that he was already ailing at 69 years of age, and he already yearned to rectify the mistakes that he
had committed, including his loss of trust in the justice system.

The Court re-docketed the administrative complaint as A.M. No. RTJ-12-2334.

This Courts Ruling

At the outset, we emphasize that Hebrons withdrawal of his complaint against Judge Garcia does
not necessarily warrant its dismissal. In Bayaca v. Ramos,13 we explained:

We have repeatedly ruled in a number of cases that mere desistance or recantation by the
complainant does not necessarily result in the dismissal of an administrative complaint against any
member of the bench. The withdrawal of complaints cannot divest the Court of its jurisdiction nor
strip it of its power to determine the veracity of the charges made and to discipline, such as the
results of its investigation may warrant, an erring respondent. Administrative actions cannot depend
on the will or pleasure of the complainant who may, for reasons of his own, condone what may be
detestable. Neither can the Court be bound by the unilateral act of the complainant in a matter
relating to its disciplinary power. The Courts interest in the affairs of the judiciary is of paramount
concern. x x x.14 (Citations omitted and emphasis ours)
Given this doctrine, the Court has resolved to allow the administrative case to proceed, especially
after taking due consideration of the nature of the offense which, per the evaluation of the OCA, had
been committed by Judge Garcia.

The Court fully agrees with the OCAs report that Judge Garcia cannot be held administratively liable
for the alleged wrongful rulings that he made in Civil Case No. BCV-2005-94 and BSC No. 2009-02.
Time and again, we have ruled that the errors attributed to judges pertaining to the exercise of their
adjudicative functions should be assailed in judicial proceedings instead of in an administrative
case.15 As the Court held in Dadula v. Judge Ginete:16

Even assuming arguendo that respondent Judge made an erroneous interpretation of the law, the
matter is judicial in nature. Well-entrenched is the rule that a partys remedy, if prejudiced by the
orders of a judge given in the course of a trial, is the proper reviewing court, and not with the OCA by
means of an administrative complaint. As a matter of policy, in the absence of fraud, dishonesty or
corruption, the acts of a judge in his judicial capacity are not subject to disciplinary action even
though such acts are erroneous. The Court has to be shown acts or conduct of the judge clearly
indicative of arbitrariness or prejudice before the latter can be branded the stigma of being biased
and partial. To hold otherwise would be to render judicial office untenable, for no one called upon to
try the facts or interpret the law in the process of administering justice can be infallible in his
judgment.17 (Citations omitted and emphasis ours)

However, Judge Garcias undue delay in resolving Hebrons motion for reconsideration is a wrong of
a different nature which warrants a different treatment. Article VIII, Section 15 of the 1987
Constitution mandates that "all cases or matters filed after the effectivity of the Constitution must be
decided or resolved within twenty-four months from date of submission for the SC, and, unless
reduced by the SC, twelve months for all collegiate courts, and three months for all other courts." In
relation thereto, SC Administrative Circular No. 13-87 provides that "judges shall observe
scrupulously the periods prescribed by Article VIII, Section 15 of the Constitution for the adjudication
and resolution of all cases or matters submitted in their courts. Thus, all cases or matters must be
decided or resolved within twelve months from date of submission by all lower collegiate courts while
all other lower courts are given a period of three months to do so."

Judge Garcia failed to meet this three-month deadline. He explained his delay by saying that "the
Motion for Reconsideration was inadvertently not acted upon by the Court for an unreasonable
length of time,"18 because it noticed its pendency only when it conducted an inventory of its cases in
July 2011. Unfortunately for Judge Garcia, such poor excuse merits no weight for his exoneration
from the charge. It, in fact, demonstrates serious errors in Judge Garcias performance of his duties
and the management of his court. For such error, even Judge Garcia has admitted that the delay in
resolving the motion to reconsider has dragged on for an "unreasonable length of
time."19Furthermore, we observe that he should have been prompted to take immediate action by the
two motions to resolve that were filed by Hebron, yet even these two motions remained unacted
upon.

To the Court, the volume of Judge Garcias pending cases did not justify the delay. In Angelia v.
Grageda,20 we held:

In consonance with the Constitutional mandate that all lower courts decide or resolve cases or
matters within three (3) months from their date of submission, the Code of Judicial Conduct in Rule
1.02 of Canon 1 and Rule 3.05 of Canon 3, provide:

Rule 1.02 A judge should administer justice impartially and without delay.
Rule 3.05 A judge should dispose of the courts business promptly and decide cases within the
required periods.

xxxx

The Court, however, finds no merit in Judge Gragedas explanation that the reason for the delay in
resolving the motion was the pressure from equally urgent matters in connection with the 800
pending cases before his sala. Firstly, he is duty-bound to comply with the above-cited rules under
the Canons in the Code of Judicial Conduct, and the administrative guidelines laid down by this
Court. Secondly, as this Court is not unmindful of the circumstances that may delay the speedy
disposition of cases assigned to judges, respondent Judge Grageda should have seasonably filed a
request for an extension to resolve the subject motion. For failing to do so, he cannot evade
administrative liability.

Judges must decide cases and resolve matters with dispatch because any delay in the
administration of justice deprives litigants of their right to a speedy disposition of their case and
undermines the peoples faith in the judiciary. Indeed, justice delayed is justice denied.21 (Emphasis
ours)

The failure to decide cases and other matters within the reglementary period of ninety (90) days
constitutes gross inefficiency and warrants the imposition of administrative sanction against the
erring judge. This is not only a blatant transgression of the Constitution but also of the Code of
Judicial Conduct, which enshrines the significant duty of magistrates to decide cases
promptly.22 Under Section 9, Rule 140 of the Revised Rules of Court, delay in rendering a decision or
order is considered a less serious offense that is punishable by either (1) suspension from office
without salary and other benefits for not less than one nor more than three months, or (2) a fine of
more than P10,000 but not exceeding P20,000. The sheer volume of Judge Garcias work may, at
most, only serve to mitigate the penalty to be imposed upon him, as in the case of Angelia where the
fine was reduced to P5,000.00 given therein respondent judges 800 pending cases before his sala. 1wphi1

In the present case, we deem a fine of P2,000.00 sufficient, after considering Judge Garcias
caseload of more than 3,700 pending cases. It is also our view that his delay in resolving Hebrons
motion for reconsideration was not prompted by bad faith or malice, that even his complainant had
later filed with the OCA a letter that sought the withdrawal of the charges. Finally, we take note of the
OCAs observation that the delay committed by Judge Garcia involves a single motion, and that this
is his first administrative offense.23

All told, the Court adopts the OCAs recommendation for the Court to hold Judge Garcia guilty of
undue delay in rendering an order, but the recommended fine of P5,000.00 is reduced to P2,000.00,
still with a stern warning that a repetition of the same or similar act shall be dealt with more severely.

WHEREFORE, the Court finds respondent Judge Matias M. Garcia II GUILTY of undue delay in
rendering an order, and orders him to pay a FINE of Two Thousand Pesos (P2,000.00). He is
STERNLY WARNED that a repetition of the same or similar act in the future shall be dealt with more
severely. The other charges are dismissed.

SO ORDERED.
A.M. No. RTJ-15-2426 June 16, 2015
[Formerly A.M. No. 05-3-83-MTC]

OFFICE OF THE COURT ADMINISTRATION, Complainant,


vs.
JUDGE ALEXANDER BALUT, Respondent.

RESOLUTION

Per Curiam:

On October 9, 2007, the Court partially resolved this case by disposing it as follows:

WHEREFORE the Court finds and declares:

1. Judge Alexander S. Balut GUILTY of undue delay in deciding 33 cases submitted for
decision and in failing to resolve 101 motions within the 90-day reglementary period. He is
FINED twenty thousand pesos (20,000.00), with a stern warning that a repetition of the
same shall be dealt with more severely.

2. Judith En. Salimpade GUILTY of gross neglect of duty, dishonesty and grave misconduct.
She is DISMISSED from the service. She is DIRECTED to RESTITUTE the amount of
1,817,378.59 representing the amount of shortages in her collections. Her withheld salaries
are to be applied to her accountabilities. The Office of Administrative Services, OCA is
DIRECTED to compute Ms. Salimpade's leave credits and forward the same to the Finance
Division, Fiscal Management Office-OCA which shall compute the money value of the same,
the amount to be deducted from the shortages to be restituted.

3. Eduardo Esconde GUILTY of gross neglect of duty. He is DISMISSED from the service.
He is also ORDERED to restitute his accountabilities in the amount of 58,100.00

4. Lydia O. Ramos GUILTY of neglect of duty. She is FINED 5,000, which should be
deducted from her retirement benefits.

The Office of the Court Administrator Legal Office is DIRECTED to file appropriate criminal charges
against Judge Alexander Balut, Judith En. Salimpade and Eduardo Esconde.

SO ORDERED.

As stated in the October 9, 2007 Resolution, the facts of the case are as follows:

On May 3, 2003, the Office of the Court Administrator (OCA) conducted a judicial audit and physical
inventory of cases at the Municipal Trial Courts (MTCs) of Bayombong and Solano, Nueva Vizcaya.
Judge Alexander S. Balut was the acting presiding judge in both courts.

xxx xxx xxx

Aside from the judicial audit, a financial audit was also conducted in the MTCs of Bayombong and
Solano as well as the MCTC of Aritao-Sta. Fe.
In the MTC, Bayombong, where Judith En. Salimpade was Clerk of Court II, the audit team found an
unremitted amount of 18,702.oo representing the court's collection from August 3, 2003 to August
18, 2003. Said amount was deposited only on August 18, 2003, upon advise by the audit team, in
the Land Bank of the Philippines account. Furthermore, 31 booklets of accountable forms issued to
Ms. Salimpade by the Property Division, SC and OCA were not accounted for. Also, the court had a
total Judiciary Development Fund (JDF) collection of 348,993.60 from January 1990 to August
2003. However, only 186,330.98 was remitted by Ms. Salimpade leaving a balance of
162,662.62; the total Clerk of Court General Fund (CCGF) collections from January 1996 to August
2003 (audit scope) showed an unremitted amount of 30,411. 70; and as of August 31, 2003 the
Fiduciary Fund had a total cash shortage of 1,864,304.27 which covered the collections from 1995
to August 2003.

In sum, the shortages in the various funds incurred by Salimpade as of August 31, 2003 totalled
2,057,378.59.

Salimpade, when asked about the shortages, explained that Judge Balut, since 1995 had been
getting money from the JDF collections. She had given in to the requests of Judge Balut out of fear
of him. She also admitted that she lent her co-employees money which she took from her
collections.

Parenthetically, in September 2003, Judge Balut turned over 240,000.00 to Salimpade and the
latter issued a certification stating that the former had completely settled his monetary accountability
to the MTC, Bayombong. Judge Balut delivered to the Fiscal Monitoring Division, Court Management
Office (CMO) OCA the certification and deposit slip evidencing the turnover of the 240,000.00.

The audit team also found that Salimpade failed to regularly submit her monthly report of collections,
as required in Supreme Court Circular No. 32-93. Consequently, Salimpade's salaries were withheld
effective August 2003 to the present.

In the MTC, Solano, the spot cash count on the court's collection disclosed that Eduardo Esconde,
Clerk of Court, had an unremitted/undeposited cash on hand amounting to 59,545.oo. However,
the Official Receipts issued to cover said amounts were not accounted for. The said cash amount
was deposited on August 21, 2003 to Land Bank JDF Account No. 0591-0116-34.

A review of the receipts on file from May 2001 to July 2003 also showed a total cash shortage of
106,527.80. However, on August 29, 2003, Esconde deposited in the CCGF and JDF bank
accounts sums corresponding to the said shortage. Esconde explained to the audit team that Judge
Balut borrowed various amounts from the collections. He stated that Judge Balut started borrowing
funds when the former was still the Clerk of Court of MCTC, Aritao-Sta. Fe. He transferred to MTC,
Solano, to get out of the shadow of Judge Balut. But, much to his dismay, Judge Balut was
designated Acting Presiding Judge of MTC, Solano and continued the practice of borrowing money
from the collections of the court.

In the MCTC, Aritao-Sta. Fe, the audit team found that Lydia Ramos, Clerk of Court, succeeded
Eduardo S. Esconde on July 16, 2000, without proper turnover of accountabilities. The team also
found that the amount of 540.00, part of the JDF collections from August 1, 2003 to August 21,
2003, remained undeposited at the time of audit. Said amount was remitted to the Chief Accountant,
Supreme Court on September 10, 2003. Also, Mrs. Ramos opened an account at the Rural Bank of
Aritao, Inc. for the Fiduciary Fund of the court instead of maintaining an account with Landbank. Said
account was closed on September 11, 2003 and an account was opened at Landbank, Bambang, on
the same date. A comparison of the court's CCGF collections and remittances for the period of
November 1995 to July 2003 revealed a shortage of 510.00. Mr. Esconde incurred during his
incumbency a cash shortage of 430.00 while Mrs. Ramos incurred a shortage of 80.00 as of July
31, 2003. From August 2003 to June 5, 2004, Mrs. Ramos incurred a shortage of 430.00. She
deposited the amount of 400.00 on August 23, 2004 leaving a shortage of 1!30.00. Withdrawals
from the Fiduciary Fund account on various dates, totalling 243,900.00 for the refund and return of
cash bonds to 20 litigants, were not supported by any official court orders. Of the 20 litigants 15 did
not acknowledge receipt of the amount refunded. The Fiduciary Fund collection of the court from
April 1996 to August 31, 2003 amounted to 2,064,978.00. As of August 31, 2003, however, the
amount of 846,710.00 was unaccounted for by Mr. Esconde and Mrs. Ramos. Both denied that the
shortages incurred were of their own doing and they instead pointed to Judge Balut as the offender.

Ramos related to the audit team the constant requests/orders of Judge Balut to hand over to him
money from the Fiduciary Fund collections. In these instances, she requested Judge Balut to affix
1w phi 1

his signature at the back portion of the withdrawal slips as the cash recipient. However, not all of the
transactions were evidenced by an acknowledgement receipt. Ramos further stated that Judge Balut
also collected the money through Salvador Briones, Court Interpreter of MCTC-Aritao-Sta. Fe,
whose signature also appeared at the back portion of withdrawal slips as cash recipient. The total
withdrawals from the Fiduciary Fund Account given to Judge Balut, as evidenced by withdrawal slips
bearing the signatures of Judge Balut and Briones, for the benefit of the former, as cash recipients,
amounted to 193,500.00.

Aside from these, withdrawals from the Fiduciary Fund account totalling 90,500.oo were also given
to Judge Balut. On the face of the slips of this class of withdrawals were notations such as "Judge,"
"for Judge," "taken by Judge xxx" and "given to Judge" written by Ramos.

On May 9, 2002, Judge Balut issued a Certification stating that his accountability with the Fiduciary
Fund collection of MCTC Aritao-Sta. Fe as of April 2002 amounted to .207,774.42. However,
before the final report on the court's shortages was completed, various amounts totalling
802,299.82 were deposited by Judge Balut, Esconde and Ramos in the court's LBP Account No.
3251-0544-51, as restitution/payment of part of the shortage of 846, 710.00.

As of August, 2004, Ramos had fully settled the balance of her accountability. On the other hand,
Esconde still had a balance of accountability in MCTC, Aritao-Sta. Fe of 58,100.oo which, as of the
time this case was submitted by the OCA for the Court's consideration, has remained unsettled.
(Emphases supplied)

In its Resolution,1 the Court ordered Respondent Judge Alexander Balut (Judge Balut) to pay a fine
for his failure to decide 33 cases and 101 motions without properly requesting for an extension. The
Court, however, did not rule on the administrative liability of Judge Balut with respect to the result of
the financial audit for the reason that he was not given a chance to present his side on the matter.

Consequently, the Office of the Court Administrator (OCA), in its Memorandum,2 sought
reconsideration of the Court's decision stating that although Judge Balut was not formally required to
comment on the findings of the audit team regarding the shortage in the court collections, he was not
denied due process of law. The OCA explained that Judge Balut was able to present his side in his
Letter3 to OCA, dated December 9, 2006. The OCA, thus, asked for the re-opening of the case or in
the alternative, that Judge Balut be required to comment on the findings of the financial audit.

In its Resolution,4 dated December 16, 2008, the Court directed Judge Balut to comment on the audit
report and, upon the recommendation5 of the OCA, referred the matter to the Court of Appeals (CA)
for investigation, report and recommendation.6
Thereafter, the CA, in its Report and Recommendation, recommended the dismissal of the charges
against Judge Balut for failure of the OCA to clearly substantiate and prove the participation of
Judge Balut in the financial transactions of the courts. On his admission that he borrowed money
from the judiciary fund, the CA opined that Judge Balut could no longer be penalized as he was
previously fined by the Court in its October 9, 2007 Resolution.

The Court finds itself unable to agree with the recommendation of the CA.

In administrative cases, the quantum of proof necessary is substantial evidence or such relevant
evidence as a reasonable mind may accept as adequate to support a conclusion.7 The standard of
substantial evidence is justified when there is reasonable ground to believe that respondent is
responsible for the misconduct complained of, even if such evidence is not overwhelming or even
preponderant.8

A review of the records shows that Judge Balut actually messed with the court collections. The three
clerks of court of MTC Bayombong, MTC Solano and MCTC Aritao-Sta Fe categorically stated that
Judge Balut borrowed money from the court funds and executed certifications to that effect. They
separately reported that Judge Balut had been borrowing money from the various funds of the court
collections. In fact, Lydia Ramos (Ramos), the Clerk of Court of MCTC-Aritao-Sta. Fe, presented
several withdrawal slips9 where the back portions were signed either by Judge Balut or his court
interpreter, Salvador Briones, as the recipient of the cash withdrawn from the funds of the court.
These withdrawal slips likewise bore the notations of Ramos such as "Judge," "for Judge," "taken by
Judge," and "given to Judge" to serve as her reminder that the money withdrawn were given to
Judge Balut.

Significantly, Judge Balut himself issued the Certification10 stating that his cash accountability as of
April 2002 with the Fiduciary Fund was 207,774.42 and there were certifications issued by the
clerks of court attesting that he had settled his accountabilities with the court funds.

The CA opinion that Judge Balut could no longer be penalized for his admission that he had
borrowed money from the judiciary fund because the Court already fined him in its October 9, 2007
resolution is erroneous. In the said resolution, the Court categorically stated that Judge Balut was
fined for undue delay in deciding 33 cases submitted for decision and for failing to resolve 101
motions within the 90-day reglementary period.

Once again, the Court stresses that judges must adhere to the highest tenets of judicial
conduct.11 Because of the sensitivity of his position, a judge is required to exhibit, at all times, the
highest degree of honesty and integrity and to observe exacting standards of morality, decency and
competence.12 He should adhere to the highest standards of public accountability lest his action
erode the public faith in the Judiciary.13

Judge Balut fell short of this standard for borrowing money from the collections of the court. He
knowingly and deliberately made the clerks of court violate the circulars on the proper administration
of court funds.14 He miserably failed to become a role model of his staff and other court personnel in
the observance of the standards of morality and decency, both in his official and personal conduct.

The act of misappropriating court -funds constitutes dishonesty and grave misconduct, punishable
by dismissal from the service even on the first offense.15 For said reason, the respondent deserves a
penalty no lighter than dismissal. This Court has never tolerated and will never condone any conduct
which violates the norms of public accountability, and diminish, or even tend to diminish, the faith of
the people in the justice system.16
The Court has considered the recommendation of imposing the penalty of suspension. That,
however, would be unfair to Clerk of Court Judith En. Salimpade, Municipal Trial Courts of
Bayombong and Solano; and Clerk of Court Eduardo Esconde of the Municipal Circuit Trial Court,
Arita-Sta. Fe, who were both dismissed from the service for the same offense. Clerk of Court Lydia
Ramos was fined but only because she had already retired from the service. And it would send a
wrong message to the public that the Court has different standards - one for the magistrates and
another for the rank-and-file.

The fact that Judge Balut fully paid his cash liabilities will not shield him from the consequences of
his wrongdoings. His unwarranted interference in the Court collections deserves administrative
sanction and not even the full payment of his accountabilities will exempt him from liability. "It
matters not that these personal borrowings were paid as what counts is the fact that these funds
were used outside of official business."17

Similarly, his nearly 22 years in the service would not serve to mitigate his liability. His offense was
not a single or isolated act but it constituted a series of acts committed in a span of several years. In
other words, he was a repeated offender, perpetrating his misdeeds with impunity not once, not
twice, but several times in three (3) different stations. In the case of In Re: Report on the Judicial and
Financial Audit Conducted in the Municipal Trial Court in Cities, Koronadal City,18 it was written:

For misappropriating court funds in concert with Ines, Judge Sardido has been charged with grave
misconduct. Admitting that he indeed "borrowed" money from court funds, the latter recounted that
on four occasions in 1994, he had borrowed 130,ooo to be able to purchase a car and thereafter
borrowed intermittently through the years, for reasons ranging from the schooling needs of his
children to the illness of his parents. That he intended to repay the amounts "borrowed" is
immaterial. These funds should never be used outside of official business. Rule 5.04 of Canon 5 of
the Code of Judicial Conduct states:

"A judge or any immediate member of the family shall not accept a gift, bequest, favor or loan from
anyone except as may be allowed by law."

Time and time again, this Court has emphasized that "the judge is the visible representation of the
law, and more importantly, of justice. It is from him that the people draw their will and awareness to
obey the law. For the judge to return that regard, he must be the first to abide by the law and weave
an example for others to follow."

Sadly, the foregoing facts clearly show that Judge Sardido has not only miserably failed to present
himself as an example to his staff and to others, but has also shown no compunction in violating the
law, as well as the rules and regulations. His dishonesty, gross misconduct, and gross ignorance of
the law tarnish the image of the judiciary and would have warranted the maximum penalty of
dismissal. were it not for the fact that he had already been dismissed from the service in another
administrative case. (Emphasis and underscoring supplied) WHEREFORE, finding Judge Alexander
Balut GUILTY of gross misconduct, the Court hereby imposes upon him the penalty of DISMISSAL
from the service, with forfeiture of all retirement benefits and with prejudice to re-employment in any
branch of the government, including government-owned and controlled corporations, except the
money value of accrued earned leave credits.

Judge Balut is hereby ORDERED to cease and desist immediately from rendering any order or
decision, or from continuing any proceedings, in any case whatsoever, effective upon receipt of a
copy of this resolution.

This disposition is IMMEDIATELY EXECUTORY.


The Office of the Court Administrator shall see to it that a copy of this resolution be immediately
served on the respondent.

SO ORDERED.
A.M. No. RTJ-13-2355 September 2, 2013
(Formerly A.M. No. 13-7-128-RTC)

RE: CASES SUBMITTED FOR DECISION BEFORE HON. TEOFILO D. BALUMA, FORMER
JUDGE, BRANCH 1, REGIONAL TRIAL COURT, TAGBILARAN CITY, BOHOL

DECISION

LEONARDO-DE CASTRO, J.:

Before the Court is the request for Certificate of Clearance of Judge Teofilo D. Baluma (Baluma),
former Presiding Judge, Regional Trial Court (RTC), Branch 1, of Tagbilaran City, Bohol, in support
of his application for Retirement/Gratuity Benefits under Republic Act No. 910,1 as amended.

Judge Baluma availed himself of optional retirement on July 22, 2011.

According to the Certification2 dated August 19, 2011 of Juan J. Lumanas, Jr. (Lumanas), Officer-in-
Charge, RTC, Branch 1, Tagbilaran City, Bohol, there were 23 cases submitted for
decision/resolution which were left undecided by Judge Baluma. All 23 cases were already beyond
the reglementary period for deciding them by the time Judge Baluma retired. Lumanas listed the 23
cases as follows:

CASES SUBMITTED FOR DECISION

Accused/Parties/Nature Date Submitted for


Case Number Due Date of Decision
of the Case Decision

CRIMINAL CASES

1. 13161 Bernard I. Escarpe for 08-16-10 11-14-10


Viol. of Sec. 5, R.A.
9262
2. 13162 Bernard I. Escarpe for 08-16-10 11-14-10
Viol. of Sec. 12, R.A.
9262
3. 13459 Cyrus Keene "LA" D. 12-30-10 03-29-11
Apale for Rape

4. 13613 Gualberto Mangala 04-08-10 04-23-10


for Viol. of R.A. 9165

5. 14043 Melvin Capa for 07-20-10 10-18-10


Frustrated Murder

6. 10515 Merlyn Fabroa, et al. 05-12-10 08-10-10


for Rebellion
7. 14853 Ernesto Pudalan for 01-30-11 04-28-11
Estafa
8. 14892 Ernesto Pudalan for 02-17-11 05-15-11
Estafa

9. 14992 Ernesto Pudalan for 02-15-11 05-15-11


Estafa
10. 14993 Ernesto Pudalan for 02-15-11 05-15-11
Estafa
11. 12766 Bernard Marc Romea 09-07-10 12-06-10
for Rape

12. 12767 Bernard Marc Romea 09-07-10 12-06-10


for Rape

CIVIL CASES

13. 7243 Rosalinda Gabronino 07-13-10 10-11-10


vs. Sps. Germiniana
and Gaudioso
Guibone, et al. for
Review, Annulment
and Cancellation of
Title

CASES SUBMITTED FOR RESOLUTION

Accused/Parties/Nature Date Submitted for Due Date of


Case Number
of the Case Resolution Resolution

CRIMINAL CASES

14. 14692 Adison Ucang for 03-18-11 06-16-11


Viol. of COMELEC
Gun Ban
15. 14696 Gabriel Lopez for 11-11-10 11-26-10
R.A. 9165

16. 14697 Gabriel Lopez for 11-11-10 11-26-10


R.A. 9165
17. 14881 Alberto Dagamac for 01-15-11 01-30-11
Viol. of Sec. 11, R.A.
9165
18. 14882 Alberto Dagamac for 01-15-11 04-14-11
Viol. of R.A. 8294
19. 14889 Jonas Manzanilla for 01-21-11 02-05-11
Viol. of Sec. 11, Art.
II, R.A. 9165
20. 14890 Jonas Manzanilla for 01-15-11 01-30-11
Viol. of Sec. 12, Art.
II, R.A. 9165

CIVIL CASES

21. 4986 Valerio Nalitan vs. 12-11-09 03-11-09


Fortunato Cagas for
Annulment of OCT
9958
22. 7528 Teresita Aranton vs. 08-18-10 11-16-10
Heirs of Marcial
Oada for
Reformation of
Instrument and
Specific Performance

23. OCT (6055) 3239 Heirs of Fabia 02-03-11 05-03-113


Jumarito (nature of
the case not
indicated)

The aforementioned 23 cases were the subject matter of a Memorandum dated July 22, 2011, Re:
Report on the Judicial Audit and Physical Inventory of Pending Cases Conducted at Branch 1, RTC,
Tagbilaran City, Bohol, issued by an audit team of the Office of the Court Administrator (OCA).
Deputy Court Administrator Raul Bautista Villanueva required Judge Baluma to explain his failure to
act on the 23 cases. However, Judge Baluma failed to comply with said directive.

The processing of Judge Balumas Application for Clearance has been put on hold pending
clearance from the OCA.

In a letter4 dated April 4, 2013, Judge Balumas son, Atty. Cristifil D. Baluma, averred that his father
was suffering from depression and requested for the early release of Judge Balumas retirement pay
and other benefits. Atty. Baluma appealed that if any amount needs to be withheld from Judge
Balumas retirement benefits due to the undecided cases, Judge Balumas health condition be taken
into consideration.

On June 7, 2013, the OCA submitted its report with the following recommendations:

In view of the foregoing, it is respectfully recommended that: (a) this matter be re-docketed as a
regular administrative matter against Hon. TEOFILO D. BALUMA, former Presiding Judge, Branch 1,
Regional Trial Court, Tagbilaran City, Bohol; (b) Judge Baluma be FINED in the total amount of
FORTY-SIX THOUSAND PESOS (46,000.00) for gross inefficiency for failure to decide the twenty-
three (23) cases submitted for decision before him within the reglementary period prior to his
retirement, the amount to be deducted from his retirement benefits; and (c) considering that retired
Judge Baluma is suffering from depression, the equivalent value of his terminal leave be released
pending resolution of this Administrative Matter.5
The Court agrees with the findings of the OCA, except as to the recommended penalty.

Article VIII, Section 15(1) of the 1987 Constitution provides that lower courts have three months
within which to decide cases or resolve matters submitted to them for resolution. Moreover, Canon
3, Rule 3.05 of the Code of Judicial Conduct enjoins judges to dispose of their business promptly
and decide cases within the required period. In addition, this Court laid down guidelines in SC
Administrative Circular No. 13 which provides, inter alia, that "[j]udges shall observe scrupulously the
periods prescribed by Article VIII, Section 15, of the Constitution for the adjudication and resolution
of all cases or matters submitted in their courts. Thus, all cases or matters must be decided or
resolved within twelve months from date of submission by all lower collegiate courts while all other
lower courts are given a period of three months to do so." The Court has reiterated this admonition in
SC Administrative Circular No. 3-99 which requires all judges to scrupulously observe the periods
prescribed in the Constitution for deciding cases and the failure to comply therewith is considered a
serious violation of the constitutional right of the parties to speedy disposition of their cases.6

The Court has consistently impressed upon judges the need to decide cases promptly and
expeditiously under the time-honored precept that justice delayed is justice denied. Every judge
should decide cases with dispatch and should be careful, punctual, and observant in the
performance of his functions for delay in the disposition of cases erodes the faith and confidence of
our people in the judiciary, lowers its standards and brings it into disrepute. Failure to decide a case
within the reglementary period is not excusable and constitutes gross inefficiency warranting the
imposition of administrative sanctions on the defaulting judge.7

At the same time, however, the Court is also aware of the heavy case load of trial courts. The Court
has allowed reasonable extensions of time needed to decide cases, but such extensions must first
be requested from the Court. A judge cannot by himself choose to prolong the period for deciding
cases beyond that authorized by law.8

The following facts are uncontested herein: Judge Baluma failed to decide 23 cases already
submitted for decision/resolution within the mandatory reglementary period for doing so; he left said
cases still undecided upon his retirement on July 22, 2011; he did not give any reason/explanation
for his failure to comply with the reglementary period for deciding cases; and there were no previous
requests by him for extension of time to decide said cases. Judge Balumas gross inefficiency,
evident in his undue delay in deciding 23 cases within the reglementary period, merits the imposition
of administrative sanctions.

Under the new amendments to Rule 1409 of the Rules of Court, undue delay in rendering a decision
or order is a less serious charge, for which the respondent judge shall be penalized with either (a)
suspension from office without salary and other benefits for not less than one nor more than three
months; or (b) a fine of more than 10,000.00, but not more than 20,000.00.

Nonetheless, the Court noted in Re: Cases Submitted for Decision Before Hon. Teresito A. Andoy,
Former Judge, Municipal Trial Court, Cainta, Rizal,10 that it has imposed varying amounts of fines for
the same offense depending on the circumstances of each case, to wit:

The fines imposed on each judge may vary, depending on the number of cases undecided or
matters unresolved by said judge beyond the reglementary period, plus the presence of aggravating
or mitigating circumstances, such as the damage suffered by the parties as a result of the delay, the
health and age of the judge, etc.

The Court imposed a fine of 10,000.00 upon a judge who failed to decide one case within the
reglementary period, without offering an explanation for such delay; another who left one motion
unresolved within the prescriptive period; and a third who left eight cases unresolved beyond the
extended period of time granted by the Court, taking into consideration that the judge involved was
understaffed, burdened with heavy caseload, and hospitalized for more than a month. In another
case, the judge was fined 10,100.00 for failing to act on one motion. The Court fixed the fine at
11,000.00 when the judge failed to resolve a motion for reconsideration and other pending
incidents relative thereto because of alleged lack of manpower in his sala; when the judge decided a
case for forcible entry only after one year and seven months from the time it was submitted for
resolution, giving consideration to the fact that said judge was still grieving from the untimely demise
of his daughter; when a judge resolved a motion after an undue delay of almost eight months; when
a judge resolved a motion only after 231 days; when a judge failed to resolve three cases within the
reglementary period; and when a judge failed to resolve a motion to cite a defendant for contempt,
the penalty being mitigated by the judges immediate action to determine whether the charge had
basis. In one case, the judge was fined 12,000.00 for failing to decide one criminal case on time,
without explaining the reason for the delay. Still in other cases, the maximum fine of 20,000.00 was
imposed by the Court on a judge who was delayed in rendering decisions in nine criminal cases,
failed altogether to render decisions in 18 other cases, and promulgated decisions in 17 cases even
after he had already retired; a judge who failed to decide 48 cases on time and to resolve pending
incidents in 49 cases despite the lapse of a considerable length of time; a judge who unduly delayed
deciding 26 cases because of poor health; and a judge who failed to decide 56 cases, without regard
for the judges explanation of heavy caseload, intermittent electrical brownouts, old age, and
operation on both his eyes, because this already constituted his second offense.

There were cases in which the Court did not strictly apply the Rules, imposing fines well-below those
prescribed. The Court only imposed a fine of 1,000.00 for a judges delay of nine months in
resolving complainants Amended Formal Offer of Exhibits, after finding that there was no malice in
the delay and that the delay, was caused by the complainant himself. In another case, a judge was
fined 1,000.00 for his failure to act on two civil cases and one criminal case for an unreasonable
period of time. The Court also imposed a fine of 5,000.00 on a judge, who was suffering from
cancer, for his failure to decide five cases within the reglementary period and to resolve pending
incidents in nine cases; and on another judge, who had "end stage renal disease secondary to
nephrosclerosis" and died barely a year after his retirement, for his failure to decide several criminal
and civil cases submitted for decision or resolution and to act on the pending incidents in over a
hundred criminal and civil cases assigned to the two branches he was presiding.

The Court also variably set the fines at more than the maximum amount, usually when the judges
undue delay was coupled with other offenses. The judge, in one case, was fined 25,000.00 for
undue delay in rendering a ruling and for making a grossly and patently erroneous decision. The
judge, in another case, was penalized with a fine of 40,000.00 for deciding a case only after an
undue delay of one year and six months, as well as for simple misconduct and gross ignorance of
the law, considering that the undue delay was already the judges second offense. The Court again
imposed a fine of 40,000.00 upon a judge who failed to resolve one motion, bearing in mind that he
was twice previously penalized for violating the Code of Judicial Conduct and for Gross Ignorance of
Procedural Law and Unreasonable Delay. (Citations omitted.)

In the present case, the Court takes into account the aforequoted survey of cases; together with the
number of cases Judge Baluma failed to decide within the reglementary period (23 cases upon his
retirement) and the lack of effort on his part to proffer an explanation or express remorse for his
offense; but considering as well that he is suffering from depression and that he has no prior
infraction, the Court finds that a fine of 20,000.00 is adequate.

WHEREFORE, the Court finds JUDGE TEOFILO D. BALUMA, former judge of the Regional Trial
Court, Branch 1, of Tagbilaran City, Bohol, GUILTY of undue delay in rendering a decision or order,
for which he is FINED in the amount of 20,000.00, to be deducted from his retirement benefits
withheld by the Fiscal Management Office, Office of the Court Administrator. The balance of his
retirement benefits shall be released without unnecessary delay.

SO ORDERED.
G.R. No. 200942 June 16, 2015

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,


vs.
JORIE WAHIMAN y RAYOS, Accused-Appellant.

CONCURRING OPINION

I concur with the ponencia but I write separately to state further my reasons for the grant of an award
for loss of earning capacity.

The prosecution presented testimonial evidence to prove the income of the deceased for an award
of loss of earning capacity and met the requisite quantum of evidence, preponderance of evidence,
for civil actions. Allowing testimonial evidence to prove loss of earning capacity is more consistent to
the nature of civil actions, as opposed to the previous doctrine that requires claims for loss of
earning capacity to be proven through documentary evidence.

Under Article 100 of the Revised Penal Code, "[ e ]very person criminally liable for a felony is also
civilly liable." Institution of a criminal case includes the civil action for the recovery of the civil liability
arising from the offense charged.1 The inclusion of the civil action is to avoid multiplicity of suits.2

While the criminal and civil actions can be litigated in the same proceedings, the quanta of evidence
for the two actions are not the same. For the court to find criminal liability against the accused, there
must be proof beyond reasonable doubt:3

Proof beyond reasonable doubt does not mean such a degree of proof as, excluding possibility of
error, produces absolute certainty. Moral certainty only is required, or that degree of proof which
produces conviction in an unprejudiced mind.4

On the other hand, the finding of civil liability only requires preponderance of evidence or "superior
weight of evidence on the issues involved."5

[T]he court may consider all the facts and circumstances of the case, the witnesses manner of
testifying, their intelligence, their means and opportunity of knowing the facts to which they are
testifying, the nature of the facts to which they testify, the probability or improbability of their
testimony, their interest or want of interest, and also their personal credibility so far as the same may
legitimately appear upon the trial.6

Despite the singularity of the proceedings of both the criminal case and the civil case, it is possible
for there to be an acquittal on the criminal case and yet a finding of civil liability. The respective
weights of the evidence in the criminal and civil cases are evaluated independently. A claim for
damages, including actual damages for loss of earning capacity, is part of the civil aspect of the
case. Hence, to prove loss of earning capacity, the quantum of evidence required is preponderance
of evidence, not proof beyond reasonable doubt.

Loss of earning capacity is a form of actual or compensatory damages under the Civil Code, which
states that:

Art. 2206. . . .
(1) The defendant shall be liable for the loss of earning capacity of the deceased, and the indemnity
shall be paid to the heirs of the latter; such indemnity shall in every case be assessed and awarded
by the court, unless the deceased on account of permanent physical disability not caused by the
defendant, had no earning capacity at the time of his death[.]

The courts have assessed loss of earning capacity either through testimonial or documentary
evidence presented during trial. There are varying precedents on the type of evidence required to
prove loss of earning capacity.

In the first set of cases, this court ruled that there has to be an unbiased documentary evidence of
the annual income of the deceased to prove loss of earning capacity. These documents are income
tax returns, receipts, or pay slips.

People v. Villanueva7 is a murder case. During trial, the widow testified that she and her deceased
husband earned 5,000.00 a week from selling fish, and attributed half of those earnings to her
husbands efforts. The Regional Trial Court awarded actual damages for loss of earning capacity
relying on the widows testimony. The award was never questioned on appeal. However, this court
deleted the award of loss of earning capacity holding that the award was unjustified since the wife
"gave only a self-serving, hence unreliable, statement of her husbands income."8

The decision in People v. Listerio9 is consistent with Villanuevas ruling. Here, the deceased is a pre-
cast businessman, and his sister testified as to his alleged income. This court affirmed the trial
courts disregard for this testimony and ruled that there was insufficient proof of loss of earning
capacity. The testimony of the sister should have been supported by income tax returns or receipts.10

The rule requiring income tax returns or receipts was reiterated in People v. Ereo11 and People v.
Mindanao.12 In Ereo,the deceased was a fish vendor. In Mindanao, the deceased was a meat
vendor. In both cases, only relatives of the deceased testified as to the annual income of the
deceased, and this court stated that these statements were self-serving and unreliable.

In Tamayo v. Seora,13 this court allowed the presentation of pay slips in lieu of income tax returns.
They were considered documents proving the deceaseds income.

In the second set of cases, the evidence accepted to prove the deceaseds annual income was
relaxed. This court still required "unbiased proof," and as long as the quantum of evidence was met,
it was deemed acceptable.

In Heirs of Jose Marcial K. Ochoa v. G & S Transport Corporation,14 this court allowed an employers
certification of the annual income of the deceased as acceptable evidence for loss of earning
capacity. This court ruled that the certification is not self-serving, and it is highly improbable for the
employer to give unreliable information regarding the income of the deceased.

In Philippine Airlines v. Court of Appeals,15 the payroll and income tax returns of the decedent were
not presented in court. There was no certification or document coming from the employer either.
However, officers of the employer testified as to the income of the decedent. This court stated:

The witnesses Mate and Reyes, who were respectively the manager and auditor of Allied Overseas
Trading Company and Padilla Shipping Company, were competent to testify on matters within their
personal knowledge because of their positions, such as the income and salary of the deceased,
Nicanor A. Padilla (Sec. 30, Rule 130, Rules of Court). As observed by the Court of Appeals, since
they were cross-examined by petitioner's counsel, any objections to their competence and the
admissibility of their testimonies, were deemed waived. The payrolls of the companies and the
decedent's income tax returns could, it is true, have constituted the best evidence of his salaries, but
there is no rule disqualifying competent officers of the corporation from testifying on the
compensation of the deceased as an officer of the same corporation, and in any event, no timely
objection was made to their testimonies.16 (Emphasis supplied). Aside from the liberality in allowing
testimonial evidence, this court also discussed the requirement of preponderance of evidence to
prove earning capacity. Philippine Airlines was a torts case. When the tortfeasor did not object to the
competence and admissibility of the testimony of the officers of the deceaseds employer, any
objection was deemed waived. The testimonies of the employers officers were accepted to prove
loss of earning capacity.

The third set of cases allowed testimonial evidence as an exception to a general rule that annual
income for an award of loss of earning capacity must be proven by documentary evidence. However,
the circumstances where testimonial evidence is allowed were limited.

People v. Dizon17 involved the felonious death of a 15-year-old construction worker with a daily wage
of 100.00. The fact was established through testimonial evidence, and no documentary evidence
was presented. In Dizon, this court allowed the non-presentation of documentary evidence but
limited only to instances where: "(a) the victim was self-employed earning less than the minimum
wage under current labor laws and judicial notice was taken of the fact that in the victim's line of
work, no documentary evidence is available; or (b) the victim was employed as a daily wage worker
earning less than the minimum wage under current labor laws."18 This court also awarded actual
damages for loss of earning capacity in Licyayo v. People19 because the victim was a gardener
earning 30,000.00 annually. Hence, he was covered by the Dizon exceptions.

This rule implies that if the decedent was earning more than minimum wage, even if he or she was
self-employed, documentary evidence is required in proving annual income from the grant of loss of
earning capacity.

In People v. Caraig,20 since the victims were an employee of the Social Security System, a president
of a family-owned corporation, and a taxi driver, this court ruled that they were earning more than
minimum wage and were not covered by the exceptions drawn in Dizon. Documentary evidence
should have been presented to prove the victims annual income. The same ruling was made in
Victory Liner, Inc. v. Gammad21 when only testimonial evidence was presented to show that the
deceased was a Section Chief of the Bureau of Internal Revenue who earned an annual income of
83,088.00. In both cases, the actual damages for loss of earning capacity was not awarded.

Finally, the fourth set of cases admits testimonial evidence to prove the victims annual income.
These cases do not consider whether the victim was a minimum wage earner or if the witness
testifying to the income was biased or not.

In People v. Gutierrez,22 this court considered the testimony of the wife as to the income of her
deceased husband. The deceased was a teacher by profession, but was a sitting municipal
councilor at the time of his death. This court awarded actual damages as loss of earning capacity
using the higher salary estimate given by the widow. This court stated that:

Although the prosecution did not present evidence to support the widow's claim for loss of earning
capacity, such failure does not necessarily prevent recovery of the damages if the testimony of the
surviving spouse is sufficient to establish a basis from which the court can make a fair and
reasonable estimate of the damages for the loss of earning capacity of the victim.23 (Emphasis
supplied)
People v. Bangcado24 added that aside from considering testimonial evidence, the courts could also
consider "the nature of [the victims] occupation, his educational attainment and the state of his
health at the time of his death."25In this case, the testimony of the victims father sufficiently
supported the claim for actual damages for loss of earning capacity.

The rule of allowing testimonial evidence as long as the court can make a "fair and reasonable
estimate of damages for loss of earning capacity" was applied in Pleyto v. Lomboy26 and People v.
Garcia.27 Despite the absence of documentary evidence to support the widows claims, the court still
awarded loss of earning capacity.

The fourth set of cases is more consistent with the rule that to prove loss of earning capacity, only
preponderance of evidence is required. Nothing in the Rules of Court requires that only documentary
evidence is allowed in civil cases. All that is required is the satisfaction of the quantum of evidence,
that is, preponderance of evidence. In addition, the Civil Code does not prohibit a claim for loss of
earning capacity on the basis that it is not proven by documentary evidence.

Testimonial evidence, if not questioned for credibility, bears the same weight as documentary
evidence. Testimonies given by the deceaseds spouse, parent, or child should be given weight
1w phi 1

because these individuals are presumed to know the income of their spouse, child, or parent.

If the amount of income testified to seemed incredible or unrealistic, the defense could always raise
their objections and discredit the witness or, better yet, present evidence that would outweigh the
evidence of the prosecution.

If the defense did not question the credibility of the witnesses during trial, they could question it
during appeal as a last resort.

Parenthetically, if both the documentary and testimonial evidence on the income of the decedent
were unavailable, expert evidence could be considered.28 There are experts who are familiar with
data generated by the Bureau of Labor and Employment Statistics of the Department of Labor and
Employment. This bureau collects annual data relating to labor and employment, which includes
data relating to the wages and salaries received in specific occupations. These experts can testify to
the average annual income of the deceased if their usual occupations are known.

The heirs could also present expert witnesses familiar with the Family Income and Expenditure
Survey or FIES. The FIES contains average incomes and expenditures of Filipino families in the
different regions of the country.

Nothing in our definition of preponderance of evidence excludes the admission of expert testimony.
Hence, these could also be considered in evaluating the loss of earning capacity of a deceased.

II

The law allows recovery of actual damages for loss of earning capacity in consideration of the heirs
of the deceased or those who are legally entitled to support from the deceased. The damages do not
pertain to the full amount of foregone earnings, "but of the support they received or would have
received from [the deceased] had he not died in consequence of the negligence [or fault] of [the
tortfeasor or the accused]."29

This form of actual damages quantifies the loss of the deceaseds family in terms of financial support
they will receive from the deceased. A widow does not only grieve for the loss of her husband; she
also has to worry about finding an additional source of livelihood. The condition is often worsened
when the deceased is the sole breadwinner of the family and the family is already experiencing
difficulties making ends meet. While this might not always be the case, the law devised the concept
of actual damages in the form of loss of earning capacity to ensure that a part of the familys loss is
mitigated.

The computation for loss of earning capacity was extensively discussed in the 1970 case of Villa
Rey Transit v. Court of Appeals.30 In Villa Rey Transit, this court considered two factors in
determining loss of earning capacity, which are: "(1) the number of years on the basis of which the
damages shall be computed; and (2) the rate at which the losses sustained by said respondents
should be fixed."31 The number of years is often pegged at life expectancy (instead of work
expectancy), while the rate of losses is derived from annual income. The general formula applied is:

Net Earning Capacity = Life Expectancy [Gross Annual Income Necessary Expenses]

To approximate the first factor of life expectancy, this court has applied the formula in the
American Expectancy Table of Mortality or the actuarial of Combined Experience Table of
Mortality.32 Hence:

Life Expectancy = 2/3 x (80 age of the deceased at time of death)

Later, in People v. Quilaton,33 the use of the 1980 Commissioners Standard Ordinary Mortality Table
was suggested to take into consideration longer life expectancy in the Philippines.34 However, the
formula used was not shown and the table was not published for easier reference. Hence,
succeeding cases reverted back to the formula in Villa Rey Transit. The problem with both Villa Rey
Transitand Quilaton is that these cases relied on American mortality tables. In addition, these tables
were antiquated and were devised under conditions prevailing during that time. The American
Expectancy Table of Mortality used in Villa Rey Transit was developed in 1860.35 The
Commissioners Standard Ordinary Mortality Table was a slight improvement, considering that the
table was developed in 1980. The standard of living and modern medicine has prolonged life
expectancy in the past 150 years; hence, it is not reliable to base life expectancy on a formula made
in 1860. In addition, living conditions in the Philippines are different from living conditions in the
United States. Continued reliance on the Villa Rey Transit doctrine to determine life expectancy
might already be incompatible to modern Filipinos. One author suggested that an alternative to the
Villa Rey Transit equation to determine life expectancy is the use of the Philippine Intercompany
Mortality Table.36 The Commission on Population also creates life table estimates for the Philippines,
and the data is classified by geography and sex, which can also be used as basis for life expectancy
in the Philippines.

With respect to the second factor, or the rate at which the losses sustained by said respondents
should be fixed, this court used the general formula of gross annual income less necessary
expenses.

Villa Rey Transit explains why necessary expenses should be deducted from annual income. The
beneficiaries are only entitled to receive what they would have received if the deceased had stayed
alive. Hence:

. . . it has been consistently held that earning capacity, as an element of damages to one's estate for
his death by wrongful act is necessarily his net earning capacity or his capacity to acquire money,
"less the necessary expense for his own living." Stated otherwise, the amount recoverable is not the
loss of the entire earning, but rather the loss of that portion of the earnings which the beneficiary
would have received. In other words, only net earnings, not gross earning, are to be considered, that
is, the total of the earnings less expenses necessary in the creation of such earnings or income and
less living and other incidental expenses.37

In Negros Navigation v. Court of Appeals,38 this court made a general rule that only 50% of gross
annual income redounds to the benefit of the beneficiaries, while 50% is considered reasonable and
necessary expenses for the support and maintenance of the deceased earner. "To hold that she
would have used only a small part of her income for herself, a larger part going to the support of her
children would be conjectural and unreasonable."39People v. Aringue40 translated it into formula form:

Net Earning Capacity = Life Expectancy [Gross Annual Income Reasonable and
Necessary Living Expenses (50% of Gross Annual Income)]

A majority of cases involving loss of earning capacity adopted the life expectancy formula set
in Villa Rey and the formula for net annual income set in Aringue.

The Regional Trial Court used a simplified formula to compute for loss of earning capacity
citing People v. Reanzares.41

Loss of Earning Capacity

= [2/3 x (80 age of the deceased)] x 1/2 annual gross income

The simplification of the formula is correct. However, the trial courts computation was erroneous.

This is a step-by-step guide to compute an award for loss of earning capacity.

(1) Subtract the age of the deceased from 80.

(2) Multiply the answer in (1) by 2, and divide it by 3 (these operations are interchangeable).

(3) Multiply 50% to the annual gross income of the deceased.

(4) Multiply the answer in (2) by the answer in (3). This is the loss of earning capacity to be
awarded.

When the evidence on record only shows monthly gross income, annual gross income is derived
from multiplying the monthly gross income by 12. When the daily wage is the only information
provided during trial, such amount may be multiplied by 260, or the number of usual workdays in a
year,42 to arrive at annual gross income.

For this case, the victim was 54 years old at his time of death. The prosecution was able to prove
that his monthly income was 95,000.00. With the amount multiplied by 12, the victims annual gross
income is 1,140,000.00.

To compute for life expectancy, or steps 1 and 2, we would get:

Life Expectancy = 2/3 x (80 54)

Life Expectancy = 2/3 x (26)


Life Expectancy = 17 1/3 years

Applying the victim's life expectancy and annual gross income to the general formula, or step 3:

Loss of Earning Capacity = Life Expectancy x 1/2 annual gross income

Loss of Earning Capacity = 17 1/3 x 1/2 (1,140,000.00)

Loss of Earning Capacity = 17 1/3 x 570,000.00

Loss of Earning Capacity = 9,880,000.00.

The accused confessed to killing the victim for 5,000.00 because he was facing financial difficulties
at that time. We recognize that it might be impossible for him to pay almost 10 million to the heirs of
the victim. Nevertheless, it is part of our legal system that those who willfully and feloniously caused
wrongful death must pay for all the damages caused. The damages are not based on the capacity of
the accused to pay; it is based on the injury the accused caused to the family, Deleting the award for
actual damages for loss of earning capacity based on a procedural rule of requiring documentary
evidence is unfair and unjust to the heirs of the victim. ACCORDINGLY, I concur with the Resolution.
G.R. No. 203335 February 11, 2014

JOSE JESUS M. DISINI, JR., ROWENA S. DISINI, LIANNE IVY P. MEDINA, JANETTE TORAL
and ERNESTO SONIDO, JR., Petitioners,
vs.
THE SECRETARY OF JUSTICE, THE SECRETARY OF THE DEPARTMENT OF THE INTERIOR
AND LOCAL GOVERNMENT, THE EXECUTIVE DIRECTOR OF THE INFORMATION AND
COMMUNICATIONS TECHNOLOGY OFFICE, THE CHIEF OF THE PHILIPPINE NATIONAL
POLICE and THE DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION, Respondents.

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

G.R. No. 203299

LOUIS "BAROK" C. BIRAOGO, Petitioner,


vs.
NATIONAL BUREAU OF INVESTIGATION and PHILIPPINE NATIONAL POLICE, Respondents.

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

G.R. No. 203306

ALAB NG MAMAMAHAYAG (ALAM), HUKUMAN NG MAMAMAYAN MOVEMENT, INC., JERRY


S. YAP, BERTENI "TOTO" CAUSING, HERNANI Q. CUARE, PERCY LAPID, TRACY CABRERA,
RONALDO E. RENTA, CIRILO P. SABARRE, JR., DERVIN CASTRO, ET AL., Petitioners,
vs.
OFFICE OF THE PRESIDENT, represented by President Benigno Simeon Aquino III, SENATE
OF THE PHILIPPINES, and HOUSE OF REPRESENTATIVES, Respondents.

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

G.R. No. 203359

SENATOR TEOFISTO DL GUINGONA III, Petitioner,


vs.
EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF THE
DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT, THE CHIEF OF THE PHILIPPINE
NATIONAL POLICE, and DIRECTOR OF THE NATIONAL BUREAU OF
INVESTIGATION, Respondents.

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

G.R. No. 203378

ALEXANDER ADONIS, ELLEN TORDESILLAS, MA. GISELA ORDENES-CASCOLAN, H. HARRY


L. ROQUE, JR., ROMEL R. BAGARES, and GILBERT T. ANDRES, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE DEPARTMENT OF BUDGET AND MANAGEMENT, THE
DEPARTMENT OF JUSTICE, THE DEPARTMENT OF THE INTERIOR AND LOCAL
GOVERNMENT, THE NATIONAL BUREAU OF INVESTIGATION, THE PHILIPPINE NATIONAL
POLICE, AND THE INFORMATION AND COMMUNICATIONS TECHNOLOGY OFFICE-
DEPARTMENT OF SCIENCE AND TECHNOLOGY, Respondents.

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

G.R. No. 203391

HON. RAYMOND V. PALATINO, HON. ANTONIO TINIO, VENCER MARI CRISOSTOMO OF


ANAKBAYAN, MA. KATHERINE ELONA OF THE PHILIPPINE COLLEGIAN, ISABELLE
THERESE BAGUISI OF THE NATIONAL UNION OF STUDENTS OF THE PHILIPPINES, ET
AL., Petitioners,
vs.
PAQUITO N. OCHOA, JR., in his capacity as Executive Secretary and alter-ego of President
Benigno Simeon Aquino III, LEILA DE LIMA in her capacity as Secretary of
Justice, Respondents.

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

G.R. No. 203407

BAGONG ALYANSANG MAKABAYAN SECRETARY GENERAL RENATO M. REYES, JR.,


National Artist BIENVENIDO L. LUMBERA, Chairperson of Concerned Artists of the
Philippines, ELMER C. LABOG, Chairperson of Kilusang Mayo Uno, CRISTINA E. PALABAY,
Secretary General of Karapatan, FERDINAND R. GAITE, Chairperson of COURAGE, JOEL B.
MAGLUNSOD, Vice President of Anakpawis Party-List, LANA R. LINABAN, Secretary General
Gabriela Women's Party, ADOLFO ARES P. GUTIERREZ, and JULIUS GARCIA
MATIBAG, Petitioners,
vs.
BENIGNO SIMEON C. AQUINO III, President of the Republic of the Philippines, PAQUITO N.
OCHOA, JR., Executive Secretary, SENATE OF THE PHILIPPINES, represented by SENATE
PRESIDENT JUAN PONCE ENRILE, HOUSE OF REPRESENTATIVES, represented by
SPEAKER FELICIANO BELMONTE, JR., LEILA DE LIMA, Secretary of the Department of
Justice, LOUIS NAPOLEON C. CASAMBRE, Executive Director of the Information and
Communications Technology Office, NONNATUS CAESAR R. ROJAS, Director of the National
Bureau of Investigation, D/GEN. NICANOR A. BARTOLOME, Chief of the Philippine National
Police, MANUEL A. ROXAS II, Secretary of the Department of the Interior and Local
Government, Respondents.

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

G.R. No. 203440

MELENCIO S. STA. MARIA, SEDFREY M. CANDELARIA, AMPARITA STA. MARIA, RAY


PAOLO J. SANTIAGO, GILBERT V. SEMBRANO, and RYAN JEREMIAH D. QUAN (all of the
Ateneo Human Rights Center),Petitioners,
vs.
HONORABLE PAQUITO OCHOA in his capacity as Executive Secretary, HONORABLE LEILA
DE LIMA in her capacity as Secretary of Justice, HONORABLE MANUEL ROXAS in his
capacity as Secretary of the Department of Interior and Local Government, The CHIEF of the
Philippine National Police, The DIRECTOR of the National Bureau of Investigation (all of the
Executive Department of Government), Respondents.
x-----------------------x

G.R. No. 203453

NATIONAL UNION OF JOURNALISTS OF THE PHILIPPINES (NUJP), PHILIPPINE PRESS


INSTITUTE (PPI), CENTER FOR MEDIA FREEDOM AND RESPONSIBILITY, ROWENA
CARRANZA PARAAN, MELINDA QUINTOS-DE JESUS, JOSEPH ALWYN ALBURO, ARIEL
SEBELLINO AND THE PETITIONERS IN THE e-PETITION http://www.nujp.org/no-to-
ra10175/, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF THE
INTERIOR AND LOCAL GOVERNMENT, THE SECRETARY OF BUDGET AND MANAGEMENT,
THE DIRECTOR GENERAL OF THE PHILIPPINE NATIONAL POLICE, THE DIRECTOR OF THE
NATIONAL BUREAU OF INVESTIGATION, THE CYBERCRIME INVESTIGATION AND
COORDINATING CENTER, AND ALL AGENCIES AND INSTRUMENTALITIES OF
GOVERNMENT AND ALL PERSONS ACTING UNDER THEIR INSTRUCTIONS, ORDERS,
DIRECTION IN RELATION TO THE IMPLEMENTATION OF REPUBLIC ACT NO.
10175, Respondents.

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

G.R. No. 203454

PAUL CORNELIUS T. CASTILLO & RYAN D. ANDRES, Petitioners,


vs.
THE HON. SECRETARY OF JUSTICE THE HON. SECRETARY OF INTERIOR AND LOCAL
GOVERNMENT,Respondents.

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

G.R. No. 203469

ANTHONY IAN M. CRUZ; MARCELO R. LANDICHO; BENJAMIN NOEL A. ESPINA; MARCK


RONALD C. RIMORIN; JULIUS D. ROCAS; OLIVER RICHARD V. ROBILLO; AARON ERICK A.
LOZADA; GERARD ADRIAN P. MAGNAYE; JOSE REGINALD A. RAMOS; MA. ROSARIO T.
JUAN; BRENDALYN P. RAMIREZ; MAUREEN A. HERMITANIO; KRISTINE JOY S.
REMENTILLA; MARICEL O. GRAY; JULIUS IVAN F. CABIGON; BENRALPH S. YU; CEBU
BLOGGERS SOCIETY, INC. PRESIDENT RUBEN B. LICERA, JR; and PINOY EXPAT/OFW
BLOG AWARDS, INC. COORDINATOR PEDRO E. RAHON; Petitioners,
vs.
HIS EXCELLENCY BENIGNO S. AQUINO III, in his capacity as President of the Republic of the
Philippines; SENATE OF THE PHILIPPINES, represented by HON. JUAN PONCE ENRILE, in
his capacity as Senate President; HOUSE OF REPRESENTATIVES, represented by
FELICIANO R. BELMONTE, JR., in his capacity as Speaker of the House of Representatives;
HON. PAQUITO N. OCHOA, JR., in his capacity as Executive Secretary; HON. LEILA M. DE
LIMA, in her capacity as Secretary of Justice; HON. LOUIS NAPOLEON C. CASAMBRE, in his
capacity as Executive Director, Information and Communications Technology Office; HON.
NONNATUS CAESAR R. ROJAS, in his capacity as Director, National Bureau of Investigation;
and P/DGEN. NICANOR A. BARTOLOME, in his capacity as Chief, Philippine National
Police, Respondents.

x-----------------------x
G.R. No. 203501

PHILIPPINE BAR ASSOCIATION, INC., Petitioner,


vs.
HIS EXCELLENCY BENIGNO S. AQUINO III, in his official capacity as President of the
Republic of the Philippines; HON. PAQUITO N. OCHOA, JR., in his official capacity as
Executive Secretary; HON. LEILA M. DE LIMA, in her official capacity as Secretary of Justice;
LOUIS NAPOLEON C. CASAMBRE, in his official capacity as Executive Director, Information
and Communications Technology Office; NONNATUS CAESAR R. ROJAS, in his official
capacity as Director of the National Bureau of Investigation; and DIRECTOR GENERAL
NICANOR A. BARTOLOME, in his official capacity as Chief of the Philippine National
Police,Respondents.

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

G.R. No. 203509

BAYAN MUNA REPRESENTATIVE NERI J. COLMENARES, Petitioner,


vs.
THE EXECUTIVE SECRETARY PAQUITO OCHOA, JR., Respondent.

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

G.R. No. 203515

NATIONAL PRESS CLUB OF THE PHILIPPINES, INC. represented by BENNY D. ANTIPORDA


in his capacity as President and in his personal capacity, Petitioner,
vs.
OFFICE OF THE PRESIDENT, PRES. BENIGNO SIMEON AQUINO III, DEPARTMENT OF
JUSTICE, DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT, PHILIPPINE NATIONAL
POLICE, NATIONAL BUREAU OF INVESTIGATION, DEPARTMENT OF BUDGET AND
MANAGEMENT AND ALL OTHER GOVERNMENT INSTRUMENTALITIES WHO HAVE HANDS
IN THE PASSAGE AND/OR IMPLEMENTATION OF REPUBLIC ACT 10175, Respondents.

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

G.R. No. 203518

PHILIPPINE INTERNET FREEDOM ALLIANCE, composed of DAKILA-PHILIPPINE


COLLECTIVE FOR MODERN HEROISM, represented by Leni Velasco, PARTIDO LAKAS NG
MASA, represented by Cesar S. Melencio, FRANCIS EUSTON R. ACERO, MARLON ANTHONY
ROMASANTA TONSON, TEODORO A. CASIO, NOEMI LARDIZABAL-DADO, IMELDA
ORALES, JAMES MATTHEW B. MIRAFLOR, JUAN G.M. RAGRAGIO, MARIA FATIMA A.
VILLENA, MEDARDO M. MANRIQUE, JR., LAUREN DADO, MARCO VITTORIA TOBIAS
SUMAYAO, IRENE CHIA, ERASTUS NOEL T. DELIZO, CRISTINA SARAH E. OSORIO, ROMEO
FACTOLERIN, NAOMI L. TUPAS, KENNETH KENG, ANA ALEXANDRA C.
CASTRO, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF
INTERIOR AND LOCAL GOVERNMENT, THE SECRETARY OF SCIENCE AND TECHNOLOGY,
THE EXECUTIVE DIRECTOR OF THE INFORMATION TECHNOLOGY OFFICE, THE DIRECTOR
OF THE NATIONAL BUREAU OF INVESTIGATION, THE CHIEF, PHILIPPINE NATIONAL
POLICE, THE HEAD OF THE DOJ OFFICE OF CYBERCRIME, and THE OTHER MEMBERS OF
THE CYBERCRIME INVESTIGATION AND COORDINATING CENTER, Respondents.

DECISION

ABAD, J.:

These consolidated petitions seek to declare several provisions of Republic Act (R.A.) 10175, the
Cybercrime Prevention Act of 2012, unconstitutional and void.

The Facts and the Case

The cybercrime law aims to regulate access to and use of the cyberspace. Using his laptop or
computer, a person can connect to the internet, a system that links him to other computers and
enable him, among other things, to:

1. Access virtual libraries and encyclopedias for all kinds of information that he needs for
research, study, amusement, upliftment, or pure curiosity;

2. Post billboard-like notices or messages, including pictures and videos, for the general
public or for special audiences like associates, classmates, or friends and read postings from
them;

3. Advertise and promote goods or services and make purchases and payments;

4. Inquire and do business with institutional entities like government agencies, banks, stock
exchanges, trade houses, credit card companies, public utilities, hospitals, and schools; and

5. Communicate in writing or by voice with any person through his e-mail address or
telephone.

This is cyberspace, a system that accommodates millions and billions of simultaneous and ongoing
individual accesses to and uses of the internet. The cyberspace is a boon to the need of the current
generation for greater information and facility of communication. But all is not well with the system
since it could not filter out a number of persons of ill will who would want to use cyberspace
technology for mischiefs and crimes. One of them can, for instance, avail himself of the system to
unjustly ruin the reputation of another or bully the latter by posting defamatory statements against
him that people can read.

And because linking with the internet opens up a user to communications from others, the ill-
motivated can use the cyberspace for committing theft by hacking into or surreptitiously accessing
his bank account or credit card or defrauding him through false representations. The wicked can use
the cyberspace, too, for illicit trafficking in sex or for exposing to pornography guileless children who
have access to the internet. For this reason, the government has a legitimate right to regulate the
use of cyberspace and contain and punish wrongdoings.

Notably, there are also those who would want, like vandals, to wreak or cause havoc to the
computer systems and networks of indispensable or highly useful institutions as well as to the laptop
or computer programs and memories of innocent individuals. They accomplish this by sending
electronic viruses or virtual dynamites that destroy those computer systems, networks, programs,
and memories. The government certainly has the duty and the right to prevent these tomfooleries
from happening and punish their perpetrators, hence the Cybercrime Prevention Act.

But petitioners claim that the means adopted by the cybercrime law for regulating undesirable
cyberspace activities violate certain of their constitutional rights. The government of course asserts
that the law merely seeks to reasonably put order into cyberspace activities, punish wrongdoings,
and prevent hurtful attacks on the system.

Pending hearing and adjudication of the issues presented in these cases, on February 5, 2013 the
Court extended the original 120-day temporary restraining order (TRO) that it earlier issued on
October 9, 2012, enjoining respondent government agencies from implementing the cybercrime law
until further orders.

The Issues Presented

Petitioners challenge the constitutionality of the following provisions of the cybercrime law that
regard certain acts as crimes and impose penalties for their commission as well as provisions that
would enable the government to track down and penalize violators. These provisions are:

a. Section 4(a)(1) on Illegal Access;

b. Section 4(a)(3) on Data Interference;

c. Section 4(a)(6) on Cyber-squatting;

d. Section 4(b)(3) on Identity Theft;

e. Section 4(c)(1) on Cybersex;

f. Section 4(c)(2) on Child Pornography;

g. Section 4(c)(3) on Unsolicited Commercial Communications;

h. Section 4(c)(4) on Libel;

i. Section 5 on Aiding or Abetting and Attempt in the Commission of Cybercrimes;

j. Section 6 on the Penalty of One Degree Higher;

k. Section 7 on the Prosecution under both the Revised Penal Code (RPC) and R.A. 10175;

l. Section 8 on Penalties;

m. Section 12 on Real-Time Collection of Traffic Data;

n. Section 13 on Preservation of Computer Data;

o. Section 14 on Disclosure of Computer Data;

p. Section 15 on Search, Seizure and Examination of Computer Data;


q. Section 17 on Destruction of Computer Data;

r. Section 19 on Restricting or Blocking Access to Computer Data;

s. Section 20 on Obstruction of Justice;

t. Section 24 on Cybercrime Investigation and Coordinating Center (CICC); and

u. Section 26(a) on CICCs Powers and Functions.

Some petitioners also raise the constitutionality of related Articles 353, 354, 361, and 362 of the
RPC on the crime of libel.

The Rulings of the Court

Section 4(a)(1)

Section 4(a)(1) provides:

Section 4. Cybercrime Offenses. The following acts constitute the offense of cybercrime
punishable under this Act:

(a) Offenses against the confidentiality, integrity and availability of computer data and systems:

(1) Illegal Access. The access to the whole or any part of a computer system without right.

Petitioners contend that Section 4(a)(1) fails to meet the strict scrutiny standard required of laws that
interfere with the fundamental rights of the people and should thus be struck down.

The Court has in a way found the strict scrutiny standard, an American constitutional
construct,1 useful in determining the constitutionality of laws that tend to target a class of things or
persons. According to this standard, a legislative classification that impermissibly interferes with the
exercise of fundamental right or operates to the peculiar class disadvantage of a suspect class is
presumed unconstitutional. The burden is on the government to prove that the classification is
necessary to achieve a compelling state interest and that it is the least restrictive means to protect
such interest.2 Later, the strict scrutiny standard was used to assess the validity of laws dealing with
the regulation of speech, gender, or race as well as other fundamental rights, as expansion from its
earlier applications to equal protection.3

In the cases before it, the Court finds nothing in Section 4(a)(1) that calls for the application of the
strict scrutiny standard since no fundamental freedom, like speech, is involved in punishing what is
essentially a condemnable act accessing the computer system of another without right. It is a
universally condemned conduct.4

Petitioners of course fear that this section will jeopardize the work of ethical hackers, professionals
who employ tools and techniques used by criminal hackers but would neither damage the target
systems nor steal information. Ethical hackers evaluate the target systems security and report back
to the owners the vulnerabilities they found in it and give instructions for how these can be remedied.
Ethical hackers are the equivalent of independent auditors who come into an organization to verify
its bookkeeping records.5
Besides, a clients engagement of an ethical hacker requires an agreement between them as to the
extent of the search, the methods to be used, and the systems to be tested. This is referred to as the
"get out of jail free card."6Since the ethical hacker does his job with prior permission from the client,
such permission would insulate him from the coverage of Section 4(a)(1).

Section 4(a)(3) of the Cybercrime Law

Section 4(a)(3) provides:

Section 4. Cybercrime Offenses. The following acts constitute the offense of cybercrime
punishable under this Act:

(a) Offenses against the confidentiality, integrity and availability of computer data and systems:

xxxx

(3) Data Interference. The intentional or reckless alteration, damaging, deletion or deterioration of
computer data, electronic document, or electronic data message, without right, including the
introduction or transmission of viruses.

Petitioners claim that Section 4(a)(3) suffers from overbreadth in that, while it seeks to discourage
data interference, it intrudes into the area of protected speech and expression, creating a chilling
and deterrent effect on these guaranteed freedoms.

Under the overbreadth doctrine, a proper governmental purpose, constitutionally subject to state
regulation, may not be achieved by means that unnecessarily sweep its subject broadly, thereby
invading the area of protected freedoms.7 But Section 4(a)(3) does not encroach on these freedoms
at all. It simply punishes what essentially is a form of vandalism,8 the act of willfully destroying
without right the things that belong to others, in this case their computer data, electronic document,
or electronic data message. Such act has no connection to guaranteed freedoms. There is no
freedom to destroy other peoples computer systems and private documents.

All penal laws, like the cybercrime law, have of course an inherent chilling effect, an in terrorem
effect9 or the fear of possible prosecution that hangs on the heads of citizens who are minded to step
beyond the boundaries of what is proper. But to prevent the State from legislating criminal laws
because they instill such kind of fear is to render the state powerless in addressing and penalizing
socially harmful conduct.10 Here, the chilling effect that results in paralysis is an illusion since Section
4(a)(3) clearly describes the evil that it seeks to punish and creates no tendency to intimidate the
free exercise of ones constitutional rights.

Besides, the overbreadth challenge places on petitioners the heavy burden of proving that under no
set of circumstances will Section 4(a)(3) be valid.11 Petitioner has failed to discharge this burden.

Section 4(a)(6) of the Cybercrime Law

Section 4(a)(6) provides:

Section 4. Cybercrime Offenses. The following acts constitute the offense of cybercrime
punishable under this Act:

(a) Offenses against the confidentiality, integrity and availability of computer data and systems:
xxxx

(6) Cyber-squatting. The acquisition of domain name over the internet in bad faith to profit,
mislead, destroy the reputation, and deprive others from registering the same, if such a domain
name is:

(i) Similar, identical, or confusingly similar to an existing trademark registered with the
appropriate government agency at the time of the domain name registration;

(ii) Identical or in any way similar with the name of a person other than the registrant, in case
of a personal name; and

(iii) Acquired without right or with intellectual property interests in it.

Petitioners claim that Section 4(a)(6) or cyber-squatting violates the equal protection clause12 in that,
not being narrowly tailored, it will cause a user using his real name to suffer the same fate as those
who use aliases or take the name of another in satire, parody, or any other literary device. For
example, supposing there exists a well known billionaire-philanthropist named "Julio Gandolfo," the
law would punish for cyber-squatting both the person who registers such name because he claims it
to be his pseudo-name and another who registers the name because it happens to be his real name.
Petitioners claim that, considering the substantial distinction between the two, the law should
recognize the difference.

But there is no real difference whether he uses "Julio Gandolfo" which happens to be his real name
or use it as a pseudo-name for it is the evil purpose for which he uses the name that the law
condemns. The law is reasonable in penalizing him for acquiring the domain name in bad faith to
profit, mislead, destroy reputation, or deprive others who are not ill-motivated of the rightful
opportunity of registering the same. The challenge to the constitutionality of Section 4(a)(6) on
ground of denial of equal protection is baseless.

Section 4(b)(3) of the Cybercrime Law

Section 4(b)(3) provides:

Section 4. Cybercrime Offenses. The following acts constitute the offense of cybercrime
punishable under this Act:

xxxx

b) Computer-related Offenses:

xxxx

(3) Computer-related Identity Theft. The intentional acquisition, use, misuse, transfer, possession,
alteration, or deletion of identifying information belonging to another, whether natural or juridical,
without right: Provided: that if no damage has yet been caused, the penalty imposable shall be one
(1) degree lower.

Petitioners claim that Section 4(b)(3) violates the constitutional rights to due process and to privacy
and correspondence, and transgresses the freedom of the press.
The right to privacy, or the right to be let alone, was institutionalized in the 1987 Constitution as a
facet of the right protected by the guarantee against unreasonable searches and seizures.13 But the
Court acknowledged its existence as early as 1968 in Morfe v. Mutuc,14 it ruled that the right to
privacy exists independently of its identification with liberty; it is in itself fully deserving of
constitutional protection.

Relevant to any discussion of the right to privacy is the concept known as the "Zones of Privacy."
The Court explained in "In the Matter of the Petition for Issuance of Writ of Habeas Corpus of Sabio
v. Senator Gordon"15 the relevance of these zones to the right to privacy:

Zones of privacy are recognized and protected in our laws. Within these zones, any form of intrusion
is impermissible unless excused by law and in accordance with customary legal process. The
meticulous regard we accord to these zones arises not only from our conviction that the right to
privacy is a "constitutional right" and "the right most valued by civilized men," but also from our
adherence to the Universal Declaration of Human Rights which mandates that, "no one shall be
subjected to arbitrary interference with his privacy" and "everyone has the right to the protection of
the law against such interference or attacks."

Two constitutional guarantees create these zones of privacy: (a) the right against unreasonable
searches16 and seizures, which is the basis of the right to be let alone, and (b) the right to privacy of
communication and correspondence.17 In assessing the challenge that the State has impermissibly
intruded into these zones of privacy, a court must determine whether a person has exhibited a
reasonable expectation of privacy and, if so, whether that expectation has been violated by
unreasonable government intrusion.18

The usual identifying information regarding a person includes his name, his citizenship, his
residence address, his contact number, his place and date of birth, the name of his spouse if any,
his occupation, and similar data.19 The law punishes those who acquire or use such identifying
information without right, implicitly to cause damage. Petitioners simply fail to show how government
effort to curb computer-related identity theft violates the right to privacy and correspondence as well
as the right to due process of law.

Also, the charge of invalidity of this section based on the overbreadth doctrine will not hold water
since the specific conducts proscribed do not intrude into guaranteed freedoms like speech. Clearly,
what this section regulates are specific actions: the acquisition, use, misuse or deletion of personal
identifying data of another. There is no fundamental right to acquire anothers personal data.

Further, petitioners fear that Section 4(b)(3) violates the freedom of the press in that journalists
would be hindered from accessing the unrestricted user account of a person in the news to secure
information about him that could be published. But this is not the essence of identity theft that the
law seeks to prohibit and punish. Evidently, the theft of identity information must be intended for an
illegitimate purpose. Moreover, acquiring and disseminating information made public by the user
himself cannot be regarded as a form of theft.

The Court has defined intent to gain as an internal act which can be established through the overt
acts of the offender, and it may be presumed from the furtive taking of useful property pertaining to
another, unless special circumstances reveal a different intent on the part of the perpetrator.20 As
such, the press, whether in quest of news reporting or social investigation, has nothing to fear since
a special circumstance is present to negate intent to gain which is required by this Section.

Section 4(c)(1) of the Cybercrime Law


Section 4(c)(1) provides:

Sec. 4. Cybercrime Offenses. The following acts constitute the offense of cybercrime punishable
under this Act:

xxxx

(c) Content-related Offenses:

(1) Cybersex. The willful engagement, maintenance, control, or operation, directly or indirectly, of
any lascivious exhibition of sexual organs or sexual activity, with the aid of a computer system, for
favor or consideration.

Petitioners claim that the above violates the freedom of expression clause of the Constitution.21 They
express fear that private communications of sexual character between husband and wife or
consenting adults, which are not regarded as crimes under the penal code, would now be regarded
as crimes when done "for favor" in cyberspace. In common usage, the term "favor" includes
"gracious kindness," "a special privilege or right granted or conceded," or "a token of love (as a
ribbon) usually worn conspicuously."22 This meaning given to the term "favor" embraces socially
tolerated trysts. The law as written would invite law enforcement agencies into the bedrooms of
married couples or consenting individuals.

But the deliberations of the Bicameral Committee of Congress on this section of the Cybercrime
Prevention Act give a proper perspective on the issue. These deliberations show a lack of intent to
penalize a "private showing x x x between and among two private persons x x x although that may
be a form of obscenity to some."23 The understanding of those who drew up the cybercrime law is
that the element of "engaging in a business" is necessary to constitute the illegal cybersex.24 The Act
actually seeks to punish cyber prostitution, white slave trade, and pornography for favor and
consideration. This includes interactive prostitution and pornography, i.e., by webcam.25

The subject of Section 4(c)(1)lascivious exhibition of sexual organs or sexual activityis not
novel. Article 201 of the RPC punishes "obscene publications and exhibitions and indecent shows."
The Anti-Trafficking in Persons Act of 2003 penalizes those who "maintain or hire a person to
engage in prostitution or pornography."26 The law defines prostitution as any act, transaction,
scheme, or design involving the use of a person by another, for sexual intercourse or lascivious
conduct in exchange for money, profit, or any other consideration.27

The case of Nogales v. People28 shows the extent to which the State can regulate materials that
serve no other purpose than satisfy the market for violence, lust, or pornography.29 The Court
weighed the property rights of individuals against the public welfare. Private property, if containing
pornographic materials, may be forfeited and destroyed. Likewise, engaging in sexual acts privately
through internet connection, perceived by some as a right, has to be balanced with the mandate of
the State to eradicate white slavery and the exploitation of women.

In any event, consenting adults are protected by the wealth of jurisprudence delineating the bounds
of obscenity.30The Court will not declare Section 4(c)(1) unconstitutional where it stands a
construction that makes it apply only to persons engaged in the business of maintaining, controlling,
or operating, directly or indirectly, the lascivious exhibition of sexual organs or sexual activity with the
aid of a computer system as Congress has intended.

Section 4(c)(2) of the Cybercrime Law


Section 4(c)(2) provides:

Sec. 4. Cybercrime Offenses. The following acts constitute the offense of cybercrime punishable
under this Act:

xxxx

(c) Content-related Offenses:

xxxx

(2) Child Pornography. The unlawful or prohibited acts defined and punishable by Republic Act
No. 9775 or the Anti-Child Pornography Act of 2009, committed through a computer system:
Provided, That the penalty to be imposed shall be (1) one degree higher than that provided for in
Republic Act No. 9775.

It seems that the above merely expands the scope of the Anti-Child Pornography Act of
200931 (ACPA) to cover identical activities in cyberspace. In theory, nothing prevents the government
from invoking the ACPA when prosecuting persons who commit child pornography using a computer
system. Actually, ACPAs definition of child pornography already embraces the use of "electronic,
mechanical, digital, optical, magnetic or any other means." Notably, no one has questioned this
ACPA provision.

Of course, the law makes the penalty higher by one degree when the crime is committed in
cyberspace. But no one can complain since the intensity or duration of penalty is a legislative
prerogative and there is rational basis for such higher penalty.32 The potential for uncontrolled
proliferation of a particular piece of child pornography when uploaded in the cyberspace is
incalculable.

Petitioners point out that the provision of ACPA that makes it unlawful for any person to "produce,
direct, manufacture or create any form of child pornography"33 clearly relates to the prosecution of
persons who aid and abet the core offenses that ACPA seeks to punish.34 Petitioners are wary that a
person who merely doodles on paper and imagines a sexual abuse of a 16-year-old is not criminally
liable for producing child pornography but one who formulates the idea on his laptop would be.
Further, if the author bounces off his ideas on Twitter, anyone who replies to the tweet could be
considered aiding and abetting a cybercrime.

The question of aiding and abetting the offense by simply commenting on it will be discussed
elsewhere below. For now the Court must hold that the constitutionality of Section 4(c)(2) is not
successfully challenged.

Section 4(c)(3) of the Cybercrime Law

Section 4(c)(3) provides:

Sec. 4. Cybercrime Offenses. The following acts constitute the offense of cybercrime punishable
under this Act:

xxxx

(c) Content-related Offenses:


xxxx

(3) Unsolicited Commercial Communications. The transmission of commercial electronic


communication with the use of computer system which seeks to advertise, sell, or offer for sale
products and services are prohibited unless:

(i) There is prior affirmative consent from the recipient; or

(ii) The primary intent of the communication is for service and/or administrative
announcements from the sender to its existing users, subscribers or customers; or

(iii) The following conditions are present:

(aa) The commercial electronic communication contains a simple, valid, and reliable
way for the recipient to reject receipt of further commercial electronic messages (opt-
out) from the same source;

(bb) The commercial electronic communication does not purposely disguise the
source of the electronic message; and

(cc) The commercial electronic communication does not purposely include


misleading information in any part of the message in order to induce the recipients to
read the message.

The above penalizes the transmission of unsolicited commercial communications, also known as
"spam." The term "spam" surfaced in early internet chat rooms and interactive fantasy games. One
who repeats the same sentence or comment was said to be making a "spam." The term referred to a
Monty Pythons Flying Circus scene in which actors would keep saying "Spam, Spam, Spam, and
Spam" when reading options from a menu.35

The Government, represented by the Solicitor General, points out that unsolicited commercial
communications or spams are a nuisance that wastes the storage and network capacities of internet
service providers, reduces the efficiency of commerce and technology, and interferes with the
owners peaceful enjoyment of his property. Transmitting spams amounts to trespass to ones
privacy since the person sending out spams enters the recipients domain without prior permission.
The OSG contends that commercial speech enjoys less protection in law.

But, firstly, the government presents no basis for holding that unsolicited electronic ads reduce the
"efficiency of computers." Secondly, people, before the arrival of the age of computers, have already
been receiving such unsolicited ads by mail. These have never been outlawed as nuisance since
people might have interest in such ads. What matters is that the recipient has the option of not
opening or reading these mail ads. That is true with spams. Their recipients always have the option
to delete or not to read them.

To prohibit the transmission of unsolicited ads would deny a person the right to read his emails, even
unsolicited commercial ads addressed to him. Commercial speech is a separate category of speech
which is not accorded the same level of protection as that given to other constitutionally guaranteed
forms of expression but is nonetheless entitled to protection.36 The State cannot rob him of this right
without violating the constitutionally guaranteed freedom of expression. Unsolicited advertisements
are legitimate forms of expression.
Articles 353, 354, and 355 of the Penal Code

Section 4(c)(4) of the Cyber Crime Law

Petitioners dispute the constitutionality of both the penal code provisions on libel as well as Section
4(c)(4) of the Cybercrime Prevention Act on cyberlibel.

The RPC provisions on libel read:

Art. 353. Definition of libel. A libel is public and malicious imputation of a crime, or of a vice or
defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause
the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one
who is dead.

Art. 354. Requirement for publicity. Every defamatory imputation is presumed to be malicious,
even if it be true, if no good intention and justifiable motive for making it is shown, except in the
following cases:

1. A private communication made by any person to another in the performance of any legal,
moral or social duty; and

2. A fair and true report, made in good faith, without any comments or remarks, of any
judicial, legislative or other official proceedings which are not of confidential nature, or of any
statement, report or speech delivered in said proceedings, or of any other act performed by
public officers in the exercise of their functions.

Art. 355. Libel means by writings or similar means. A libel committed by means of writing, printing,
lithography, engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition,
or any similar means, shall be punished by prision correccional in its minimum and medium periods
or a fine ranging from 200 to 6,000 pesos, or both, in addition to the civil action which may be
brought by the offended party.

The libel provision of the cybercrime law, on the other hand, merely incorporates to form part of it the
provisions of the RPC on libel. Thus Section 4(c)(4) reads:

Sec. 4. Cybercrime Offenses. The following acts constitute the offense of cybercrime punishable
under this Act:

xxxx

(c) Content-related Offenses:

xxxx

(4) Libel. The unlawful or prohibited acts of libel as defined in Article 355 of the Revised Penal
Code, as amended, committed through a computer system or any other similar means which may be
devised in the future.

Petitioners lament that libel provisions of the penal code37 and, in effect, the libel provisions of the
cybercrime law carry with them the requirement of "presumed malice" even when the latest
jurisprudence already replaces it with the higher standard of "actual malice" as a basis for
conviction.38 Petitioners argue that inferring "presumed malice" from the accuseds defamatory
statement by virtue of Article 354 of the penal code infringes on his constitutionally guaranteed
freedom of expression.

Petitioners would go further. They contend that the laws on libel should be stricken down as
unconstitutional for otherwise good jurisprudence requiring "actual malice" could easily be
overturned as the Court has done in Fermin v. People39 even where the offended parties happened
to be public figures.

The elements of libel are: (a) the allegation of a discreditable act or condition concerning another; (b)
publication of the charge; (c) identity of the person defamed; and (d) existence of malice.40

There is "actual malice" or malice in fact41 when the offender makes the defamatory statement with
the knowledge that it is false or with reckless disregard of whether it was false or not.42 The reckless
disregard standard used here requires a high degree of awareness of probable falsity. There must
be sufficient evidence to permit the conclusion that the accused in fact entertained serious doubts as
to the truth of the statement he published. Gross or even extreme negligence is not sufficient to
establish actual malice.43

The prosecution bears the burden of proving the presence of actual malice in instances where such
element is required to establish guilt. The defense of absence of actual malice, even when the
statement turns out to be false, is available where the offended party is a public official or a public
figure, as in the cases of Vasquez (a barangay official) and Borjal (the Executive Director, First
National Conference on Land Transportation). Since the penal code and implicitly, the cybercrime
law, mainly target libel against private persons, the Court recognizes that these laws imply a stricter
standard of "malice" to convict the author of a defamatory statement where the offended party is a
public figure. Societys interest and the maintenance of good government demand a full discussion
of public affairs.44

Parenthetically, the Court cannot accept the proposition that its ruling in Fermin disregarded the
higher standard of actual malice or malice in fact when it found Cristinelli Fermin guilty of committing
libel against complainants who were public figures. Actually, the Court found the presence of malice
in fact in that case. Thus:

It can be gleaned from her testimony that petitioner had the motive to make defamatory imputations
against complainants. Thus, petitioner cannot, by simply making a general denial, convince us that
there was no malice on her part. Verily, not only was there malice in law, the article being malicious
in itself, but there was also malice in fact, as there was motive to talk ill against complainants during
the electoral campaign. (Emphasis ours)

Indeed, the Court took into account the relatively wide leeway given to utterances against public
figures in the above case, cinema and television personalities, when it modified the penalty of
imprisonment to just a fine of 6,000.00.

But, where the offended party is a private individual, the prosecution need not prove the presence of
malice. The law explicitly presumes its existence (malice in law) from the defamatory character of
the assailed statement.45 For his defense, the accused must show that he has a justifiable reason for
the defamatory statement even if it was in fact true.46

Petitioners peddle the view that both the penal code and the Cybercrime Prevention Act violate the
countrys obligations under the International Covenant of Civil and Political Rights (ICCPR). They
point out that in Adonis v. Republic of the Philippines,47 the United Nations Human Rights Committee
(UNHRC) cited its General Comment 34 to the effect that penal defamation laws should include the
defense of truth.

But General Comment 34 does not say that the truth of the defamatory statement should constitute
an all-encompassing defense. As it happens, Article 361 recognizes truth as a defense but under the
condition that the accused has been prompted in making the statement by good motives and for
justifiable ends. Thus:

Art. 361. Proof of the truth. In every criminal prosecution for libel, the truth may be given in
evidence to the court and if it appears that the matter charged as libelous is true, and, moreover, that
it was published with good motives and for justifiable ends, the defendants shall be acquitted.

Proof of the truth of an imputation of an act or omission not constituting a crime shall not be
admitted, unless the imputation shall have been made against Government employees with respect
to facts related to the discharge of their official duties.

In such cases if the defendant proves the truth of the imputation made by him, he shall be acquitted.

Besides, the UNHRC did not actually enjoin the Philippines, as petitioners urge, to decriminalize
libel. It simply suggested that defamation laws be crafted with care to ensure that they do not stifle
freedom of expression.48Indeed, the ICCPR states that although everyone should enjoy freedom of
expression, its exercise carries with it special duties and responsibilities. Free speech is not
absolute. It is subject to certain restrictions, as may be necessary and as may be provided by law.49

The Court agrees with the Solicitor General that libel is not a constitutionally protected speech and
that the government has an obligation to protect private individuals from defamation. Indeed,
cyberlibel is actually not a new crime since Article 353, in relation to Article 355 of the penal code,
already punishes it. In effect, Section 4(c)(4) above merely affirms that online defamation constitutes
"similar means" for committing libel.

But the Courts acquiescence goes only insofar as the cybercrime law penalizes the author of the
libelous statement or article. Cyberlibel brings with it certain intricacies, unheard of when the penal
code provisions on libel were enacted. The culture associated with internet media is distinct from
that of print.

The internet is characterized as encouraging a freewheeling, anything-goes writing style.50 In a


sense, they are a world apart in terms of quickness of the readers reaction to defamatory
statements posted in cyberspace, facilitated by one-click reply options offered by the networking site
as well as by the speed with which such reactions are disseminated down the line to other internet
users. Whether these reactions to defamatory statement posted on the internet constitute aiding and
abetting libel, acts that Section 5 of the cybercrime law punishes, is another matter that the Court will
deal with next in relation to Section 5 of the law.

Section 5 of the Cybercrime Law

Section 5 provides:

Sec. 5. Other Offenses. The following acts shall also constitute an offense:

(a) Aiding or Abetting in the Commission of Cybercrime. Any person who willfully abets or
aids in the commission of any of the offenses enumerated in this Act shall be held liable.
(b) Attempt in the Commission of Cybercrime. Any person who willfully attempts to commit
any of the offenses enumerated in this Act shall be held liable.

Petitioners assail the constitutionality of Section 5 that renders criminally liable any person who
willfully abets or aids in the commission or attempts to commit any of the offenses enumerated as
cybercrimes. It suffers from overbreadth, creating a chilling and deterrent effect on protected
expression.

The Solicitor General contends, however, that the current body of jurisprudence and laws on aiding
and abetting sufficiently protects the freedom of expression of "netizens," the multitude that avail
themselves of the services of the internet. He points out that existing laws and jurisprudence
sufficiently delineate the meaning of "aiding or abetting" a crime as to protect the innocent. The
Solicitor General argues that plain, ordinary, and common usage is at times sufficient to guide law
enforcement agencies in enforcing the law.51 The legislature is not required to define every single
word contained in the laws they craft.

Aiding or abetting has of course well-defined meaning and application in existing laws. When a
person aids or abets another in destroying a forest,52 smuggling merchandise into the country,53 or
interfering in the peaceful picketing of laborers,54 his action is essentially physical and so is
susceptible to easy assessment as criminal in character. These forms of aiding or abetting lend
themselves to the tests of common sense and human experience.

But, when it comes to certain cybercrimes, the waters are muddier and the line of sight is somewhat
blurred. The idea of "aiding or abetting" wrongdoings online threatens the heretofore popular and
unchallenged dogmas of cyberspace use.

According to the 2011 Southeast Asia Digital Consumer Report, 33% of Filipinos have accessed the
internet within a year, translating to about 31 million users.55 Based on a recent survey, the
Philippines ranks 6th in the top 10 most engaged countries for social networking.56 Social networking
sites build social relations among people who, for example, share interests, activities, backgrounds,
or real-life connections.57

Two of the most popular of these sites are Facebook and Twitter. As of late 2012, 1.2 billion people
with shared interests use Facebook to get in touch.58 Users register at this site, create a personal
profile or an open book of who they are, add other users as friends, and exchange messages,
including automatic notifications when they update their profile.59 A user can post a statement, a
photo, or a video on Facebook, which can be made visible to anyone, depending on the users
privacy settings.

If the post is made available to the public, meaning to everyone and not only to his friends, anyone
on Facebook can react to the posting, clicking any of several buttons of preferences on the
programs screen such as "Like," "Comment," or "Share." "Like" signifies that the reader likes the
posting while "Comment" enables him to post online his feelings or views about the same, such as
"This is great!" When a Facebook user "Shares" a posting, the original "posting" will appear on his
own Facebook profile, consequently making it visible to his down-line Facebook Friends.

Twitter, on the other hand, is an internet social networking and microblogging service that enables its
users to send and read short text-based messages of up to 140 characters. These are known as
"Tweets." Microblogging is the practice of posting small pieces of digital contentwhich could be in
the form of text, pictures, links, short videos, or other mediaon the internet. Instead of friends, a
Twitter user has "Followers," those who subscribe to this particular users posts, enabling them to
read the same, and "Following," those whom this particular user is subscribed to, enabling him to
read their posts. Like Facebook, a Twitter user can make his tweets available only to his Followers,
or to the general public. If a post is available to the public, any Twitter user can "Retweet" a given
posting. Retweeting is just reposting or republishing another persons tweet without the need of
copying and pasting it.

In the cyberworld, there are many actors: a) the blogger who originates the assailed statement; b)
the blog service provider like Yahoo; c) the internet service provider like PLDT, Smart, Globe, or
Sun; d) the internet caf that may have provided the computer used for posting the blog; e) the
person who makes a favorable comment on the blog; and f) the person who posts a link to the blog
site.60 Now, suppose Maria (a blogger) maintains a blog on WordPress.com (blog service provider).
She needs the internet to access her blog so she subscribes to Sun Broadband (Internet Service
Provider).

One day, Maria posts on her internet account the statement that a certain married public official has
an illicit affair with a movie star. Linda, one of Marias friends who sees this post, comments online,
"Yes, this is so true! They are so immoral." Marias original post is then multiplied by her friends and
the latters friends, and down the line to friends of friends almost ad infinitum. Nena, who is a
stranger to both Maria and Linda, comes across this blog, finds it interesting and so shares the link
to this apparently defamatory blog on her Twitter account. Nenas "Followers" then "Retweet" the link
to that blog site.

Pamela, a Twitter user, stumbles upon a random persons "Retweet" of Nenas original tweet and
posts this on her Facebook account. Immediately, Pamelas Facebook Friends start Liking and
making Comments on the assailed posting. A lot of them even press the Share button, resulting in
the further spread of the original posting into tens, hundreds, thousands, and greater postings.

The question is: are online postings such as "Liking" an openly defamatory statement, "Commenting"
on it, or "Sharing" it with others, to be regarded as "aiding or abetting?" In libel in the physical world,
if Nestor places on the office bulletin board a small poster that says, "Armand is a thief!," he could
certainly be charged with libel. If Roger, seeing the poster, writes on it, "I like this!," that could not be
libel since he did not author the poster. If Arthur, passing by and noticing the poster, writes on it,
"Correct!," would that be libel? No, for he merely expresses agreement with the statement on the
poster. He still is not its author. Besides, it is not clear if aiding or abetting libel in the physical world
is a crime.

But suppose Nestor posts the blog, "Armand is a thief!" on a social networking site. Would a reader
and his Friends or Followers, availing themselves of any of the "Like," "Comment," and "Share"
reactions, be guilty of aiding or abetting libel? And, in the complex world of cyberspace expressions
of thoughts, when will one be liable for aiding or abetting cybercrimes? Where is the venue of the
crime?

Except for the original author of the assailed statement, the rest (those who pressed Like, Comment
and Share) are essentially knee-jerk sentiments of readers who may think little or haphazardly of
their response to the original posting. Will they be liable for aiding or abetting? And, considering the
inherent impossibility of joining hundreds or thousands of responding "Friends" or "Followers" in the
criminal charge to be filed in court, who will make a choice as to who should go to jail for the
outbreak of the challenged posting?

The old parameters for enforcing the traditional form of libel would be a square peg in a round hole
when applied to cyberspace libel. Unless the legislature crafts a cyber libel law that takes into
account its unique circumstances and culture, such law will tend to create a chilling effect on the
millions that use this new medium of communication in violation of their constitutionally-guaranteed
right to freedom of expression.

The United States Supreme Court faced the same issue in Reno v. American Civil Liberties
Union,61 a case involving the constitutionality of the Communications Decency Act of 1996. The law
prohibited (1) the knowing transmission, by means of a telecommunications device, of

"obscene or indecent" communications to any recipient under 18 years of age; and (2) the knowing
use of an interactive computer service to send to a specific person or persons under 18 years of age
or to display in a manner available to a person under 18 years of age communications that, in
context, depict or describe, in terms "patently offensive" as measured by contemporary community
standards, sexual or excretory activities or organs.

Those who challenged the Act claim that the law violated the First Amendments guarantee of
freedom of speech for being overbroad. The U.S. Supreme Court agreed and ruled:

The vagueness of the Communications Decency Act of 1996 (CDA), 47 U.S.C.S. 223, is a matter
of special concern for two reasons. First, the CDA is a content-based regulation of speech. The
vagueness of such a regulation raises special U.S. Const. amend. I concerns because of its obvious
chilling effect on free speech. Second, the CDA is a criminal statute. In addition to the opprobrium
and stigma of a criminal conviction, the CDA threatens violators with penalties including up to two
years in prison for each act of violation. The severity of criminal sanctions may well cause speakers
to remain silent rather than communicate even arguably unlawful words, ideas, and images. As a
practical matter, this increased deterrent effect, coupled with the risk of discriminatory enforcement
of vague regulations, poses greater U.S. Const. amend. I concerns than those implicated by certain
civil regulations.

xxxx

The Communications Decency Act of 1996 (CDA), 47 U.S.C.S. 223, presents a great threat of
censoring speech that, in fact, falls outside the statute's scope. Given the vague contours of the
coverage of the statute, it unquestionably silences some speakers whose messages would be
entitled to constitutional protection. That danger provides further reason for insisting that the statute
not be overly broad. The CDAs burden on protected speech cannot be justified if it could be avoided
by a more carefully drafted statute. (Emphasis ours)

Libel in the cyberspace can of course stain a persons image with just one click of the mouse.
Scurrilous statements can spread and travel fast across the globe like bad news. Moreover,
cyberlibel often goes hand in hand with cyberbullying that oppresses the victim, his relatives, and
friends, evoking from mild to disastrous reactions. Still, a governmental purpose, which seeks to
regulate the use of this cyberspace communication technology to protect a persons reputation and
peace of mind, cannot adopt means that will unnecessarily and broadly sweep, invading the area of
protected freedoms.62

If such means are adopted, self-inhibition borne of fear of what sinister predicaments await internet
users will suppress otherwise robust discussion of public issues. Democracy will be threatened and
with it, all liberties. Penal laws should provide reasonably clear guidelines for law enforcement
officials and triers of facts to prevent arbitrary and discriminatory enforcement.63 The terms "aiding or
abetting" constitute broad sweep that generates chilling effect on those who express themselves
through cyberspace posts, comments, and other messages.64 Hence, Section 5 of the cybercrime
law that punishes "aiding or abetting" libel on the cyberspace is a nullity.
When a penal statute encroaches upon the freedom of speech, a facial challenge grounded on the
void-for-vagueness doctrine is acceptable. The inapplicability of the doctrine must be carefully
delineated. As Justice Antonio T. Carpio explained in his dissent in Romualdez v. Commission on
Elections,65 "we must view these statements of the Court on the inapplicability of the overbreadth and
vagueness doctrines to penal statutes as appropriate only insofar as these doctrines are used to
mount facial challenges to penal statutes not involving free speech."

In an "as applied" challenge, the petitioner who claims a violation of his constitutional right can raise
any constitutional ground absence of due process, lack of fair notice, lack of ascertainable
standards, overbreadth, or vagueness. Here, one can challenge the constitutionality of a statute only
if he asserts a violation of his own rights. It prohibits one from assailing the constitutionality of the
statute based solely on the violation of the rights of third persons not before the court. This rule is
also known as the prohibition against third-party standing.66

But this rule admits of exceptions. A petitioner may for instance mount a "facial" challenge to the
constitutionality of a statute even if he claims no violation of his own rights under the assailed statute
where it involves free speech on grounds of overbreadth or vagueness of the statute.

The rationale for this exception is to counter the "chilling effect" on protected speech that comes
from statutes violating free speech. A person who does not know whether his speech constitutes a
crime under an overbroad or vague law may simply restrain himself from speaking in order to avoid
being charged of a crime. The overbroad or vague law thus chills him into silence.67

As already stated, the cyberspace is an incomparable, pervasive medium of communication. It is


inevitable that any government threat of punishment regarding certain uses of the medium creates a
chilling effect on the constitutionally-protected freedom of expression of the great masses that use it.
In this case, the particularly complex web of interaction on social media websites would give law
enforcers such latitude that they could arbitrarily or selectively enforce the law.

Who is to decide when to prosecute persons who boost the visibility of a posting on the internet by
liking it? Netizens are not given "fair notice" or warning as to what is criminal conduct and what is
lawful conduct. When a case is filed, how will the court ascertain whether or not one netizens
comment aided and abetted a cybercrime while another comment did not?

Of course, if the "Comment" does not merely react to the original posting but creates an altogether
new defamatory story against Armand like "He beats his wife and children," then that should be
considered an original posting published on the internet. Both the penal code and the cybercrime law
clearly punish authors of defamatory publications. Make no mistake, libel destroys reputations that
society values. Allowed to cascade in the internet, it will destroy relationships and, under certain
circumstances, will generate enmity and tension between social or economic groups, races, or
religions, exacerbating existing tension in their relationships.

In regard to the crime that targets child pornography, when "Google procures, stores, and indexes
child pornography and facilitates the completion of transactions involving the dissemination of child
pornography," does this make Google and its users aiders and abettors in the commission of child
pornography crimes?68 Byars highlights a feature in the American law on child pornography that the
Cybercrimes law lacksthe exemption of a provider or notably a plain user of interactive computer
service from civil liability for child pornography as follows:

No provider or user of an interactive computer service shall be treated as the publisher or speaker of
any information provided by another information content provider and cannot be held civilly liable for
any action voluntarily taken in good faith to restrict access to or availability of material that the
provider or user considers to be obscene...whether or not such material is constitutionally
protected.69

When a person replies to a Tweet containing child pornography, he effectively republishes it whether
wittingly or unwittingly. Does this make him a willing accomplice to the distribution of child
pornography? When a user downloads the Facebook mobile application, the user may give consent
to Facebook to access his contact details. In this way, certain information is forwarded to third
parties and unsolicited commercial communication could be disseminated on the basis of this
information.70 As the source of this information, is the user aiding the distribution of this
communication? The legislature needs to address this clearly to relieve users of annoying fear of
possible criminal prosecution.

Section 5 with respect to Section 4(c)(4) is unconstitutional. Its vagueness raises apprehension on
the part of internet users because of its obvious chilling effect on the freedom of expression,
especially since the crime of aiding or abetting ensnares all the actors in the cyberspace front in a
fuzzy way. What is more, as the petitioners point out, formal crimes such as libel are not punishable
unless consummated.71 In the absence of legislation tracing the interaction of netizens and their level
of responsibility such as in other countries, Section 5, in relation to Section 4(c)(4) on Libel, Section
4(c)(3) on Unsolicited Commercial Communications, and Section 4(c)(2) on Child Pornography,
cannot stand scrutiny.

But the crime of aiding or abetting the commission of cybercrimes under Section 5 should be
permitted to apply to Section 4(a)(1) on Illegal Access, Section 4(a)(2) on Illegal Interception,
Section 4(a)(3) on Data Interference, Section 4(a)(4) on System Interference, Section 4(a)(5) on
Misuse of Devices, Section 4(a)(6) on Cyber-squatting, Section 4(b)(1) on Computer-related
Forgery, Section 4(b)(2) on Computer-related Fraud, Section 4(b)(3) on Computer-related Identity
Theft, and Section 4(c)(1) on Cybersex. None of these offenses borders on the exercise of the
freedom of expression.

The crime of willfully attempting to commit any of these offenses is for the same reason not
objectionable. A hacker may for instance have done all that is necessary to illegally access another
partys computer system but the security employed by the systems lawful owner could frustrate his
effort. Another hacker may have gained access to usernames and passwords of others but fail to
use these because the system supervisor is alerted.72 If Section 5 that punishes any person who
willfully attempts to commit this specific offense is not upheld, the owner of the username and
password could not file a complaint against him for attempted hacking. But this is not right. The
hacker should not be freed from liability simply because of the vigilance of a lawful owner or his
supervisor.

Petitioners of course claim that Section 5 lacks positive limits and could cover the innocent.73 While
this may be true with respect to cybercrimes that tend to sneak past the area of free expression, any
attempt to commit the other acts specified in Section 4(a)(1), Section 4(a)(2), Section 4(a)(3),
Section 4(a)(4), Section 4(a)(5), Section 4(a)(6), Section 4(b)(1), Section 4(b)(2), Section 4(b)(3),
and Section 4(c)(1) as well as the actors aiding and abetting the commission of such acts can be
identified with some reasonable certainty through adroit tracking of their works. Absent concrete
proof of the same, the innocent will of course be spared.

Section 6 of the Cybercrime Law

Section 6 provides:
Sec. 6. All crimes defined and penalized by the Revised Penal Code, as amended, and special laws,
if committed by, through and with the use of information and communications technologies shall be
covered by the relevant provisions of this Act: Provided, That the penalty to be imposed shall be one
(1) degree higher than that provided for by the Revised Penal Code, as amended, and special laws,
as the case may be.

Section 6 merely makes commission of existing crimes through the internet a qualifying
circumstance. As the Solicitor General points out, there exists a substantial distinction between
crimes committed through the use of information and communications technology and similar crimes
committed using other means. In using the technology in question, the offender often evades
identification and is able to reach far more victims or cause greater harm. The distinction, therefore,
creates a basis for higher penalties for cybercrimes.

Section 7 of the Cybercrime Law

Section 7 provides:

Sec. 7. Liability under Other Laws. A prosecution under this Act shall be without prejudice to any
liability for violation of any provision of the Revised Penal Code, as amended, or special laws.

The Solicitor General points out that Section 7 merely expresses the settled doctrine that a single set
of acts may be prosecuted and penalized simultaneously under two laws, a special law and the
Revised Penal Code. When two different laws define two crimes, prior jeopardy as to one does not
bar prosecution of the other although both offenses arise from the same fact, if each crime involves
some important act which is not an essential element of the other.74 With the exception of the crimes
of online libel and online child pornography, the Court would rather leave the determination of the
correct application of Section 7 to actual cases.

Online libel is different. There should be no question that if the published material on print, said to be
libelous, is again posted online or vice versa, that identical material cannot be the subject of two
separate libels. The two offenses, one a violation of Article 353 of the Revised Penal Code and the
other a violation of Section 4(c)(4) of R.A. 10175 involve essentially the same elements and are in
fact one and the same offense. Indeed, the OSG itself claims that online libel under Section 4(c)(4)
is not a new crime but is one already punished under Article 353. Section 4(c)(4) merely establishes
the computer system as another means of publication.75 Charging the offender under both laws
would be a blatant violation of the proscription against double jeopardy.76

The same is true with child pornography committed online. Section 4(c)(2) merely expands the
ACPAs scope so as to include identical activities in cyberspace. As previously discussed, ACPAs
definition of child pornography in fact already covers the use of "electronic, mechanical, digital,
optical, magnetic or any other means." Thus, charging the offender under both Section 4(c)(2) and
ACPA would likewise be tantamount to a violation of the constitutional prohibition against double
jeopardy.

Section 8 of the Cybercrime Law

Section 8 provides:

Sec. 8. Penalties. Any person found guilty of any of the punishable acts enumerated in Sections
4(a) and 4(b) of this Act shall be punished with imprisonment of prision mayor or a fine of at least
Two hundred thousand pesos (Ph200,000.00) up to a maximum amount commensurate to the
damage incurred or both.
Any person found guilty of the punishable act under Section 4(a)(5) shall be punished with
imprisonment of prision mayor or a fine of not more than Five hundred thousand pesos
(Ph500,000.00) or both.

If punishable acts in Section 4(a) are committed against critical infrastructure, the penalty of
reclusion temporal or a fine of at least Five hundred thousand pesos (Ph500,000.00) up to
maximum amount commensurate to the damage incurred or both, shall be imposed.

Any person found guilty of any of the punishable acts enumerated in Section 4(c)(1) of this Act shall
be punished with imprisonment of prision mayor or a fine of at least Two hundred thousand pesos
(Ph200,000.00) but not exceeding One million pesos (Ph1,000,000.00) or both.

Any person found guilty of any of the punishable acts enumerated in Section 4(c)(2) of this Act shall
be punished with the penalties as enumerated in Republic Act No. 9775 or the "Anti-Child
Pornography Act of 2009:" Provided, That the penalty to be imposed shall be one (1) degree higher
than that provided for in Republic Act No. 9775, if committed through a computer system.

Any person found guilty of any of the punishable acts enumerated in Section 4(c)(3) shall be
punished with imprisonment of arresto mayor or a fine of at least Fifty thousand pesos
(Ph50,000.00) but not exceeding Two hundred fifty thousand pesos (Ph250,000.00) or both.

Any person found guilty of any of the punishable acts enumerated in Section 5 shall be punished
with imprisonment one (1) degree lower than that of the prescribed penalty for the offense or a fine
of at least One hundred thousand pesos (Ph100,000.00) but not exceeding Five hundred thousand
pesos (Ph500,000.00) or both.

Section 8 provides for the penalties for the following crimes: Sections 4(a) on Offenses Against the
Confidentiality, Integrity and Availability of Computer Data and Systems; 4(b) on Computer-related
Offenses; 4(a)(5) on Misuse of Devices; when the crime punishable under 4(a) is committed against
critical infrastructure; 4(c)(1) on Cybersex; 4(c)(2) on Child Pornography; 4(c)(3) on Unsolicited
Commercial Communications; and Section 5 on Aiding or Abetting, and Attempt in the Commission
of Cybercrime.

The matter of fixing penalties for the commission of crimes is as a rule a legislative prerogative. Here
the legislature prescribed a measure of severe penalties for what it regards as deleterious
cybercrimes. They appear proportionate to the evil sought to be punished. The power to determine
penalties for offenses is not diluted or improperly wielded simply because at some prior time the act
or omission was but an element of another offense or might just have been connected with another
crime.77 Judges and magistrates can only interpret and apply them and have no authority to modify or
revise their range as determined by the legislative department.

The courts should not encroach on this prerogative of the lawmaking body.78

Section 12 of the Cybercrime Law

Section 12 provides:

Sec. 12. Real-Time Collection of Traffic Data. Law enforcement authorities, with due cause, shall
be authorized to collect or record by technical or electronic means traffic data in real-time associated
with specified communications transmitted by means of a computer system.
Traffic data refer only to the communications origin, destination, route, time, date, size, duration, or
type of underlying service, but not content, nor identities.

All other data to be collected or seized or disclosed will require a court warrant.

Service providers are required to cooperate and assist law enforcement authorities in the collection
or recording of the above-stated information.

The court warrant required under this section shall only be issued or granted upon written application
and the examination under oath or affirmation of the applicant and the witnesses he may produce
and the showing: (1) that there are reasonable grounds to believe that any of the crimes enumerated
hereinabove has been committed, or is being committed, or is about to be committed; (2) that there
are reasonable grounds to believe that evidence that will be obtained is essential to the conviction of
any person for, or to the solution of, or to the prevention of, any such crimes; and (3) that there are
no other means readily available for obtaining such evidence.

Petitioners assail the grant to law enforcement agencies of the power to collect or record traffic data
in real time as tending to curtail civil liberties or provide opportunities for official abuse. They claim
that data showing where digital messages come from, what kind they are, and where they are
destined need not be incriminating to their senders or recipients before they are to be protected.
Petitioners invoke the right of every individual to privacy and to be protected from government
snooping into the messages or information that they send to one another.

The first question is whether or not Section 12 has a proper governmental purpose since a law may
require the disclosure of matters normally considered private but then only upon showing that such
requirement has a rational relation to the purpose of the law,79 that there is a compelling State
interest behind the law, and that the provision itself is narrowly drawn.80 In assessing regulations
affecting privacy rights, courts should balance the legitimate concerns of the State against
constitutional guarantees.81

Undoubtedly, the State has a compelling interest in enacting the cybercrime law for there is a need
to put order to the tremendous activities in cyberspace for public good.82 To do this, it is within the
realm of reason that the government should be able to monitor traffic data to enhance its ability to
combat all sorts of cybercrimes.

Chapter IV of the cybercrime law, of which the collection or recording of traffic data is a part, aims to
provide law enforcement authorities with the power they need for spotting, preventing, and
investigating crimes committed in cyberspace. Crime-fighting is a state business. Indeed, as Chief
Justice Sereno points out, the Budapest Convention on Cybercrimes requires signatory countries to
adopt legislative measures to empower state authorities to collect or record "traffic data, in real time,
associated with specified communications."83 And this is precisely what Section 12 does. It
empowers law enforcement agencies in this country to collect or record such data.

But is not evidence of yesterdays traffic data, like the scene of the crime after it has been
committed, adequate for fighting cybercrimes and, therefore, real-time data is superfluous for that
purpose? Evidently, it is not. Those who commit the crimes of accessing a computer system without
right,84 transmitting viruses,85 lasciviously exhibiting sexual organs or sexual activity for favor or
consideration;86 and producing child pornography87 could easily evade detection and prosecution by
simply moving the physical location of their computers or laptops from day to day. In this digital age,
the wicked can commit cybercrimes from virtually anywhere: from internet cafs, from kindred places
that provide free internet services, and from unregistered mobile internet connectors. Criminals using
cellphones under pre-paid arrangements and with unregistered SIM cards do not have listed
addresses and can neither be located nor identified. There are many ways the cyber criminals can
quickly erase their tracks. Those who peddle child pornography could use relays of computers to
mislead law enforcement authorities regarding their places of operations. Evidently, it is only real-
time traffic data collection or recording and a subsequent recourse to court-issued search and
seizure warrant that can succeed in ferreting them out.

Petitioners of course point out that the provisions of Section 12 are too broad and do not provide
ample safeguards against crossing legal boundaries and invading the peoples right to privacy. The
concern is understandable. Indeed, the Court recognizes in Morfe v. Mutuc88 that certain
constitutional guarantees work together to create zones of privacy wherein governmental powers
may not intrude, and that there exists an independent constitutional right of privacy. Such right to be
left alone has been regarded as the beginning of all freedoms.89

But that right is not unqualified. In Whalen v. Roe,90 the United States Supreme Court classified
privacy into two categories: decisional privacy and informational privacy. Decisional privacy involves
the right to independence in making certain important decisions, while informational privacy refers to
the interest in avoiding disclosure of personal matters. It is the latter rightthe right to informational
privacythat those who oppose government collection or recording of traffic data in real-time seek
to protect.

Informational privacy has two aspects: the right not to have private information disclosed, and the
right to live freely without surveillance and intrusion.91 In determining whether or not a matter is
entitled to the right to privacy, this Court has laid down a two-fold test. The first is a subjective test,
where one claiming the right must have an actual or legitimate expectation of privacy over a certain
matter. The second is an objective test, where his or her expectation of privacy must be one society
is prepared to accept as objectively reasonable.92

Since the validity of the cybercrime law is being challenged, not in relation to its application to a
particular person or group, petitioners challenge to Section 12 applies to all information and
communications technology (ICT) users, meaning the large segment of the population who use all
sorts of electronic devices to communicate with one another. Consequently, the expectation of
privacy is to be measured from the general publics point of view. Without reasonable expectation of
privacy, the right to it would have no basis in fact.

As the Solicitor General points out, an ordinary ICT user who courses his communication through a
service provider, must of necessity disclose to the latter, a third person, the traffic data needed for
connecting him to the recipient ICT user. For example, an ICT user who writes a text message
intended for another ICT user must furnish his service provider with his cellphone number and the
cellphone number of his recipient, accompanying the message sent. It is this information that creates
the traffic data. Transmitting communications is akin to putting a letter in an envelope properly
addressed, sealing it closed, and sending it through the postal service. Those who post letters have
no expectations that no one will read the information appearing outside the envelope.

Computer datamessages of all kindstravel across the internet in packets and in a way that may
be likened to parcels of letters or things that are sent through the posts. When data is sent from any
one source, the content is broken up into packets and around each of these packets is a wrapper or
header. This header contains the traffic data: information that tells computers where the packet
originated, what kind of data is in the packet (SMS, voice call, video, internet chat messages, email,
online browsing data, etc.), where the packet is going, and how the packet fits together with other
packets.93 The difference is that traffic data sent through the internet at times across the ocean do
not disclose the actual names and addresses (residential or office) of the sender and the recipient,
only their coded internet protocol (IP) addresses. The packets travel from one computer system to
another where their contents are pieced back together.

Section 12 does not permit law enforcement authorities to look into the contents of the messages
and uncover the identities of the sender and the recipient.

For example, when one calls to speak to another through his cellphone, the service providers
communications system will put his voice message into packets and send them to the other
persons cellphone where they are refitted together and heard. The latters spoken reply is sent to
the caller in the same way. To be connected by the service provider, the sender reveals his
cellphone number to the service provider when he puts his call through. He also reveals the
cellphone number to the person he calls. The other ways of communicating electronically follow the
same basic pattern.

In Smith v. Maryland,94 cited by the Solicitor General, the United States Supreme Court reasoned
that telephone users in the 70s must realize that they necessarily convey phone numbers to the
telephone company in order to complete a call. That Court ruled that even if there is an expectation
that phone numbers one dials should remain private, such expectation is not one that society is
prepared to recognize as reasonable.

In much the same way, ICT users must know that they cannot communicate or exchange data with
one another over cyberspace except through some service providers to whom they must submit
certain traffic data that are needed for a successful cyberspace communication. The conveyance of
this data takes them out of the private sphere, making the expectation to privacy in regard to them
an expectation that society is not prepared to recognize as reasonable.

The Court, however, agrees with Justices Carpio and Brion that when seemingly random bits of
traffic data are gathered in bulk, pooled together, and analyzed, they reveal patterns of activities
which can then be used to create profiles of the persons under surveillance. With enough traffic
data, analysts may be able to determine a persons close associations, religious views, political
affiliations, even sexual preferences. Such information is likely beyond what the public may expect to
be disclosed, and clearly falls within matters protected by the right to privacy. But has the procedure
that Section 12 of the law provides been drawn narrowly enough to protect individual rights?

Section 12 empowers law enforcement authorities, "with due cause," to collect or record by technical
or electronic means traffic data in real-time. Petitioners point out that the phrase "due cause" has no
precedent in law or jurisprudence and that whether there is due cause or not is left to the discretion
of the police. Replying to this, the Solicitor General asserts that Congress is not required to define
the meaning of every word it uses in drafting the law.

Indeed, courts are able to save vague provisions of law through statutory construction. But the
cybercrime law, dealing with a novel situation, fails to hint at the meaning it intends for the phrase
"due cause." The Solicitor General suggests that "due cause" should mean "just reason or motive"
and "adherence to a lawful procedure." But the Court cannot draw this meaning since Section 12
does not even bother to relate the collection of data to the probable commission of a particular
crime. It just says, "with due cause," thus justifying a general gathering of data. It is akin to the use of
a general search warrant that the Constitution prohibits.

Due cause is also not descriptive of the purpose for which data collection will be used. Will the law
enforcement agencies use the traffic data to identify the perpetrator of a cyber attack? Or will it be
used to build up a case against an identified suspect? Can the data be used to prevent cybercrimes
from happening?
The authority that Section 12 gives law enforcement agencies is too sweeping and lacks restraint.
While it says that traffic data collection should not disclose identities or content data, such restraint is
but an illusion. Admittedly, nothing can prevent law enforcement agencies holding these data in their
hands from looking into the identity of their sender or receiver and what the data contains. This will
unnecessarily expose the citizenry to leaked information or, worse, to extortion from certain bad
elements in these agencies.

Section 12, of course, limits the collection of traffic data to those "associated with specified
communications." But this supposed limitation is no limitation at all since, evidently, it is the law
enforcement agencies that would specify the target communications. The power is virtually limitless,
enabling law enforcement authorities to engage in "fishing expedition," choosing whatever specified
communication they want. This evidently threatens the right of individuals to privacy.

The Solicitor General points out that Section 12 needs to authorize collection of traffic data "in real
time" because it is not possible to get a court warrant that would authorize the search of what is akin
to a "moving vehicle." But warrantless search is associated with a police officers determination of
probable cause that a crime has been committed, that there is no opportunity for getting a warrant,
and that unless the search is immediately carried out, the thing to be searched stands to be
removed. These preconditions are not provided in Section 12.

The Solicitor General is honest enough to admit that Section 12 provides minimal protection to
internet users and that the procedure envisioned by the law could be better served by providing for
more robust safeguards. His bare assurance that law enforcement authorities will not abuse the
provisions of Section 12 is of course not enough. The grant of the power to track cyberspace
communications in real time and determine their sources and destinations must be narrowly drawn
to preclude abuses.95

Petitioners also ask that the Court strike down Section 12 for being violative of the void-for-
vagueness doctrine and the overbreadth doctrine. These doctrines however, have been consistently
held by this Court to apply only to free speech cases. But Section 12 on its own neither regulates nor
punishes any type of speech. Therefore, such analysis is unnecessary.

This Court is mindful that advances in technology allow the government and kindred institutions to
monitor individuals and place them under surveillance in ways that have previously been impractical
or even impossible. "All the forces of a technological age x x x operate to narrow the area of privacy
and facilitate intrusions into it. In modern terms, the capacity to maintain and support this enclave of
private life marks the difference between a democratic and a totalitarian society."96 The Court must
ensure that laws seeking to take advantage of these technologies be written with specificity and
definiteness as to ensure respect for the rights that the Constitution guarantees.

Section 13 of the Cybercrime Law

Section 13 provides:

Sec. 13. Preservation of Computer Data. The integrity of traffic data and subscriber information
relating to communication services provided by a service provider shall be preserved for a minimum
period of six (6) months from the date of the transaction. Content data shall be similarly preserved
for six (6) months from the date of receipt of the order from law enforcement authorities requiring its
preservation.

Law enforcement authorities may order a one-time extension for another six (6) months: Provided,
That once computer data preserved, transmitted or stored by a service provider is used as evidence
in a case, the mere furnishing to such service provider of the transmittal document to the Office of
the Prosecutor shall be deemed a notification to preserve the computer data until the termination of
the case.

The service provider ordered to preserve computer data shall keep confidential the order and its
compliance.

Petitioners in G.R. 20339197 claim that Section 13 constitutes an undue deprivation of the right to
property. They liken the data preservation order that law enforcement authorities are to issue as a
form of garnishment of personal property in civil forfeiture proceedings. Such order prevents internet
users from accessing and disposing of traffic data that essentially belong to them.

No doubt, the contents of materials sent or received through the internet belong to their authors or
recipients and are to be considered private communications. But it is not clear that a service provider
has an obligation to indefinitely keep a copy of the same as they pass its system for the benefit of
users. By virtue of Section 13, however, the law now requires service providers to keep traffic data
and subscriber information relating to communication services for at least six months from the date
of the transaction and those relating to content data for at least six months from receipt of the order
for their preservation.

Actually, the user ought to have kept a copy of that data when it crossed his computer if he was so
minded. The service provider has never assumed responsibility for their loss or deletion while in its
keep.

At any rate, as the Solicitor General correctly points out, the data that service providers preserve on
orders of law enforcement authorities are not made inaccessible to users by reason of the issuance
of such orders. The process of preserving data will not unduly hamper the normal transmission or
use of the same.

Section 14 of the Cybercrime Law

Section 14 provides:

Sec. 14. Disclosure of Computer Data. Law enforcement authorities, upon securing a court
warrant, shall issue an order requiring any person or service provider to disclose or submit
subscribers information, traffic data or relevant data in his/its possession or control within seventy-
two (72) hours from receipt of the order in relation to a valid complaint officially docketed and
assigned for investigation and the disclosure is necessary and relevant for the purpose of
investigation.

The process envisioned in Section 14 is being likened to the issuance of a subpoena. Petitioners
objection is that the issuance of subpoenas is a judicial function. But it is well-settled that the power
to issue subpoenas is not exclusively a judicial function. Executive agencies have the power to issue
subpoena as an adjunct of their investigatory powers.98

Besides, what Section 14 envisions is merely the enforcement of a duly issued court warrant, a
function usually lodged in the hands of law enforcers to enable them to carry out their executive
functions. The prescribed procedure for disclosure would not constitute an unlawful search or
seizure nor would it violate the privacy of communications and correspondence. Disclosure can be
made only after judicial intervention.
Section 15 of the Cybercrime Law

Section 15 provides:

Sec. 15. Search, Seizure and Examination of Computer Data. Where a search and seizure
warrant is properly issued, the law enforcement authorities shall likewise have the following powers
and duties.

Within the time period specified in the warrant, to conduct interception, as defined in this Act, and:

(a) To secure a computer system or a computer data storage medium;

(b) To make and retain a copy of those computer data secured;

(c) To maintain the integrity of the relevant stored computer data;

(d) To conduct forensic analysis or examination of the computer data storage medium; and

(e) To render inaccessible or remove those computer data in the accessed computer or
computer and communications network.

Pursuant thereof, the law enforcement authorities may order any person who has knowledge about
the functioning of the computer system and the measures to protect and preserve the computer data
therein to provide, as is reasonable, the necessary information, to enable the undertaking of the
search, seizure and examination.

Law enforcement authorities may request for an extension of time to complete the examination of
the computer data storage medium and to make a return thereon but in no case for a period longer
than thirty (30) days from date of approval by the court.

Petitioners challenge Section 15 on the assumption that it will supplant established search and
seizure procedures. On its face, however, Section 15 merely enumerates the duties of law
enforcement authorities that would ensure the proper collection, preservation, and use of computer
system or data that have been seized by virtue of a court warrant. The exercise of these duties do
not pose any threat on the rights of the person from whom they were taken. Section 15 does not
appear to supersede existing search and seizure rules but merely supplements them.

Section 17 of the Cybercrime Law

Section 17 provides:

Sec. 17. Destruction of Computer Data. Upon expiration of the periods as provided in Sections 13
and 15, service providers and law enforcement authorities, as the case may be, shall immediately
and completely destroy the computer data subject of a preservation and examination.

Section 17 would have the computer data, previous subject of preservation or examination,
destroyed or deleted upon the lapse of the prescribed period. The Solicitor General justifies this as
necessary to clear up the service providers storage systems and prevent overload. It would also
ensure that investigations are quickly concluded.
Petitioners claim that such destruction of computer data subject of previous preservation or
examination violates the users right against deprivation of property without due process of law. But,
as already stated, it is unclear that the user has a demandable right to require the service provider to
have that copy of the data saved indefinitely for him in its storage system. If he wanted them
preserved, he should have saved them in his computer when he generated the data or received it.
He could also request the service provider for a copy before it is deleted.

Section 19 of the Cybercrime Law

Section 19 empowers the Department of Justice to restrict or block access to computer data:

Sec. 19. Restricting or Blocking Access to Computer Data. When a computer data is prima facie
found to be in violation of the provisions of this Act, the DOJ shall issue an order to restrict or block
access to such computer data.

Petitioners contest Section 19 in that it stifles freedom of expression and violates the right against
unreasonable searches and seizures. The Solicitor General concedes that this provision may be
unconstitutional. But since laws enjoy a presumption of constitutionality, the Court must satisfy itself
that Section 19 indeed violates the freedom and right mentioned.

Computer data99 may refer to entire programs or lines of code, including malware, as well as files that
contain texts, images, audio, or video recordings. Without having to go into a lengthy discussion of
property rights in the digital space, it is indisputable that computer data, produced or created by their
writers or authors may constitute personal property. Consequently, they are protected from
unreasonable searches and seizures, whether while stored in their personal computers or in the
service providers systems.

Section 2, Article III of the 1987 Constitution provides that the right to be secure in ones papers and
effects against unreasonable searches and seizures of whatever nature and for any purpose shall be
inviolable. Further, it states that no search warrant shall issue except upon probable cause to be
determined personally by the judge. Here, the Government, in effect, seizes and places the
computer data under its control and disposition without a warrant. The Department of Justice order
cannot substitute for judicial search warrant.

The content of the computer data can also constitute speech. In such a case, Section 19 operates
as a restriction on the freedom of expression over cyberspace. Certainly not all forms of speech are
protected. Legislature may, within constitutional bounds, declare certain kinds of expression as
illegal. But for an executive officer to seize content alleged to be unprotected without any judicial
warrant, it is not enough for him to be of the opinion that such content violates some law, for to do so
would make him judge, jury, and executioner all rolled into one.100

Not only does Section 19 preclude any judicial intervention, but it also disregards jurisprudential
guidelines established to determine the validity of restrictions on speech. Restraints on free speech
are generally evaluated on one of or a combination of three tests: the dangerous tendency doctrine,
the balancing of interest test, and the clear and present danger rule.101 Section 19, however, merely
requires that the data to be blocked be found prima facie in violation of any provision of the
cybercrime law. Taking Section 6 into consideration, this can actually be made to apply in relation to
any penal provision. It does not take into consideration any of the three tests mentioned above.

The Court is therefore compelled to strike down Section 19 for being violative of the constitutional
guarantees to freedom of expression and against unreasonable searches and seizures.
Section 20 of the Cybercrime Law

Section 20 provides:

Sec. 20. Noncompliance. Failure to comply with the provisions of Chapter IV hereof specifically
the orders from law enforcement authorities shall be punished as a violation of Presidential Decree
No. 1829 with imprisonment of prision correctional in its maximum period or a fine of One hundred
thousand pesos (Php100,000.00) or both, for each and every noncompliance with an order issued
by law enforcement authorities.

Petitioners challenge Section 20, alleging that it is a bill of attainder. The argument is that the mere
failure to comply constitutes a legislative finding of guilt, without regard to situations where non-
compliance would be reasonable or valid.

But since the non-compliance would be punished as a violation of Presidential Decree (P.D.)
1829,102 Section 20 necessarily incorporates elements of the offense which are defined therein. If
Congress had intended for Section 20 to constitute an offense in and of itself, it would not have had
to make reference to any other statue or provision.

P.D. 1829 states:

Section 1. The penalty of prision correccional in its maximum period, or a fine ranging from 1,000 to
6,000 pesos, or both, shall be imposed upon any person who knowingly or willfully obstructs,
impedes, frustrates or delays the apprehension of suspects and the investigation and prosecution of
criminal cases by committing any of the following acts:

x x x.

Thus, the act of non-compliance, for it to be punishable, must still be done "knowingly or willfully."
There must still be a judicial determination of guilt, during which, as the Solicitor General assumes,
defense and justifications for non-compliance may be raised. Thus, Section 20 is valid insofar as it
applies to the provisions of Chapter IV which are not struck down by the Court.

Sections 24 and 26(a) of the Cybercrime Law

Sections 24 and 26(a) provide:

Sec. 24. Cybercrime Investigation and Coordinating Center. There is hereby created, within thirty
(30) days from the effectivity of this Act, an inter-agency body to be known as the Cybercrime
Investigation and Coordinating Center (CICC), under the administrative supervision of the Office of
the President, for policy coordination among concerned agencies and for the formulation and
enforcement of the national cybersecurity plan.

Sec. 26. Powers and Functions. The CICC shall have the following powers and functions:

(a) To formulate a national cybersecurity plan and extend immediate assistance of real time
commission of cybercrime offenses through a computer emergency response team (CERT); x x x.

Petitioners mainly contend that Congress invalidly delegated its power when it gave the Cybercrime
Investigation and Coordinating Center (CICC) the power to formulate a national cybersecurity plan
without any sufficient standards or parameters for it to follow.
In order to determine whether there is undue delegation of legislative power, the Court has adopted
two tests: the completeness test and the sufficient standard test. Under the first test, the law must be
complete in all its terms and conditions when it leaves the legislature such that when it reaches the
delegate, the only thing he will have to do is to enforce it. The second test mandates adequate
1av vphi1

guidelines or limitations in the law to determine the boundaries of the delegates authority and
prevent the delegation from running riot.103

Here, the cybercrime law is complete in itself when it directed the CICC to formulate and implement
a national cybersecurity plan. Also, contrary to the position of the petitioners, the law gave sufficient
standards for the CICC to follow when it provided a definition of cybersecurity.

Cybersecurity refers to the collection of tools, policies, risk management approaches, actions,
training, best practices, assurance and technologies that can be used to protect cyber environment
and organization and users assets.104 This definition serves as the parameters within which CICC
should work in formulating the cybersecurity plan.

Further, the formulation of the cybersecurity plan is consistent with the policy of the law to "prevent
and combat such [cyber] offenses by facilitating their detection, investigation, and prosecution at
both the domestic and international levels, and by providing arrangements for fast and reliable
international cooperation."105 This policy is clearly adopted in the interest of law and order, which has
been considered as sufficient standard.106 Hence, Sections 24 and 26(a) are likewise valid.

WHEREFORE, the Court DECLARES:

1. VOID for being UNCONSTITUTIONAL:

a. Section 4(c)(3) of Republic Act 10175 that penalizes posting of unsolicited


commercial communications;

b. Section 12 that authorizes the collection or recording of traffic data in real-time;


and

c. Section 19 of the same Act that authorizes the Department of Justice to restrict or
block access to suspected Computer Data.

2. VALID and CONSTITUTIONAL:

a. Section 4(a)(1) that penalizes accessing a computer system without right;

b. Section 4(a)(3) that penalizes data interference, including transmission of viruses;

c. Section 4(a)(6) that penalizes cyber-squatting or acquiring domain name over the
internet in bad faith to the prejudice of others;

d. Section 4(b)(3) that penalizes identity theft or the use or misuse of identifying
information belonging to another;

e. Section 4(c)(1) that penalizes cybersex or the lascivious exhibition of sexual


organs or sexual activity for favor or consideration;

f. Section 4(c)(2) that penalizes the production of child pornography;


g. Section 6 that imposes penalties one degree higher when crimes defined under
the Revised Penal Code are committed with the use of information and
communications technologies;

h. Section 8 that prescribes the penalties for cybercrimes;

i. Section 13 that permits law enforcement authorities to require service providers to


preserve traffic data and subscriber information as well as specified content data for
six months;

j. Section 14 that authorizes the disclosure of computer data under a court-issued


warrant;

k. Section 15 that authorizes the search, seizure, and examination of computer data
under a court-issued warrant;

l. Section 17 that authorizes the destruction of previously preserved computer data


after the expiration of the prescribed holding periods;

m. Section 20 that penalizes obstruction of justice in relation to cybercrime


investigations;

n. Section 24 that establishes a Cybercrime Investigation and Coordinating Center


(CICC);

o. Section 26(a) that defines the CICCs Powers and Functions; and

p. Articles 353, 354, 361, and 362 of the Revised Penal Code that penalizes libel.

Further, the Court DECLARES:

1. Section 4(c)(4) that penalizes online libel as VALID and CONSTITUTIONAL with respect
to the original author of the post; but VOID and UNCONSTITUTIONAL with respect to others
who simply receive the post and react to it; and

2. Section 5 that penalizes aiding or abetting and attempt in the commission of cybercrimes
as VA L I D and CONSTITUTIONAL only in relation to Section 4(a)(1) on Illegal Access,
Section 4(a)(2) on Illegal Interception, Section 4(a)(3) on Data Interference, Section 4(a)(4)
on System

Interference, Section 4(a)(5) on Misuse of Devices, Section 4(a)(6) on Cyber-squatting, Section


4(b)(1) on Computer-related Forgery, Section 4(b)(2) on Computer-related Fraud, Section 4(b)(3) on
Computer-related Identity Theft, and Section 4(c)(1) on Cybersex; but VOID and
UNCONSTITUTIONAL with respect to Sections 4(c)(2) on Child Pornography, 4(c)(3) on Unsolicited
Commercial Communications, and 4(c)(4) on online Libel. 1wphi1

Lastly, the Court RESOLVES to LEAVE THE DETERMINATION of the correct application of Section
7 that authorizes prosecution of the offender under both the Revised Penal Code and Republic Act
10175 to actual cases, WITH THE EXCEPTION of the crimes of:
1. Online libel as to which, charging the offender under both Section 4(c)(4) of Republic Act
10175 and Article 353 of the Revised Penal Code constitutes a violation of the proscription
against double jeopardy; as well as

2. Child pornography committed online as to which, charging the offender under both Section
4(c)(2) of Republic Act 10175 and Republic Act 9775 or the Anti-Child Pornography Act of
2009 also constitutes a violation of the same proscription, and, in respect to these, is VOID
and UNCONSTITUTIONAL.

SO ORDERED.