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TABLE OF CONTENTS

CARTER VS CANADA ............................................................................................. 2


SECRETARY VS MANALO................................................................................... 40
REYES VS CA .......................................................................................................... 68
US VS BALDOMERO.............................................................................................. 80
PEOPLE VS GUILLEN ........................................................................................... 95
SILVERIO VS CA .................................................................................................. 100
SPS HING VS CHOACHUY ................................................................................. 104
POLLO VS CONSTANTINO-DAVID ................................................................. 111
DISINI VS DOJ ....................................................................................................... 133
VIVARES VS STC.................................................................................................. 165
MARCOS VS MANGLAPUS ................................................................................ 178

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CARTER VS CANADA
FULL TEXT

CARTER v. CANADA (ATTORNEY GENERAL), 2015 SCC 5, [2015] 1 S.C.R. 331


Indexed as: Carter v. Canada (Attorney General)
2015 SCC 5
File No.: 35591.
2014: October 15; 2015: February 6.
Present: McLachlin C.J. and LeBel, Abella, Rothstein, Cromwell, Moldaver,
Karakatsanis, Wagner and Gascon JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA
Constitutional law — Division of powers — Interjurisdictional immunity
— Criminal Code provisions prohibiting physician-assisted dying — Whether
prohibition interferes with protected core of provincial jurisdiction over health —
Constitution Act, 1867, ss. 91(27), 92(7), (13), (16).
Constitutional law — Charter of Rights — Right to life, liberty and
security of the person — Fundamental justice — Competent adult with grievous and
irremediable medical condition causing enduring suffering consenting to termination
of life with physician assistance — Whether Criminal Code provisions prohibiting
physician-assisted dying infringe s. 7 of Canadian Charter of Rights and Freedoms —
If so, whether infringement justifiable under s. 1 of Charter — Criminal Code, R.S.C.
1985, c. C-46, ss. 14, 241(b).
Constitutional law — Charter of Rights — Remedy — Constitutional
exemption — Availability — Constitutional challenge of Criminal Code provisions
prohibiting physician-assisted dying seeking declaration of invalidity of provisions
and free-standing constitutional exemption for claimants — Whether constitutional
exemption under s. 24(1) of Canadian Charter of Rights and Freedoms should be
granted.
Courts — Costs — Special costs — Principles governing exercise of
courts’ discretionary power to grant special costs on full indemnity basis — Trial
judge awarding special costs to successful plaintiffs on basis that award justified by
public interest, and ordering Attorney General intervening as of right to pay amount
proportional to participation in proceedings — Whether special costs should be
awarded to cover entire expense of bringing case before courts — Whether award
against Attorney General justified.
Section 241(b) of the Criminal Code says that everyone who aids or abets
a person in committing suicide commits an indictable offence, and s. 14 says that no
person may consent to death being inflicted on them. Together, these provisions
prohibit the provision of assistance in dying in Canada. After T was diagnosed with a
fatal neurodegenerative disease in 2009, she challenged the constitutionality of the
Criminal Code provisions prohibiting assistance in dying. She was joined in her claim
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by C and J, who had assisted C’s mother in achieving her goal of dying with dignity
by taking her to Switzerland to use the services of an assisted suicide clinic; a
physician who would be willing to participate in physician-assisted dying if it were
no longer prohibited; and the British Columbia Civil Liberties Association. The
Attorney General of British Columbia participated in the constitutional litigation as of
right.
The trial judge found that the prohibition against physician-assisted dying
violates the s. 7 rights of competent adults who are suffering intolerably as a result of
a grievous and irremediable medical condition and concluded that this infringement is
not justified under s. 1 of the Charter. She declared the prohibition unconstitutional,
granted a one-year suspension of invalidity and provided T with a constitutional
exemption. She awarded special costs in favour of the plaintiffs on the ground that
this was justified by the public interest in resolving the legal issues raised by the case,
and awarded 10 percent of the costs against the Attorney General of British Columbia
in light of the full and active role it assumed in the proceedings.
The majority of the Court of Appeal allowed the appeal on the ground
that the trial judge was bound to follow this Court’s decision in Rodriguez v. British
Columbia (Attorney General), [1993] 3 S.C.R. 519, where a majority of the Court
upheld the blanket prohibition on assisted suicide. The dissenting judge found no
errors in the trial judge’s assessment of stare decisis, her application of s. 7 or the
corresponding analysis under s. 1. However, he concluded that the trial judge was
bound by the conclusion in Rodriguez that any s. 15 infringement was saved by s. 1.
Held: The appeal should be allowed. Section 241(b) and s. 14 of the
Criminal Code unjustifiably infringe s. 7 of the Charter and are of no force or effect
to the extent that they prohibit physician-assisted death for a competent adult person
who (1) clearly consents to the termination of life and (2) has a grievous and
irremediable medical condition (including an illness, disease or disability) that causes
enduring suffering that is intolerable to the individual in the circumstances of his or
her condition. The declaration of invalidity is suspended for 12 months. Special costs
on a full indemnity basis are awarded against Canada throughout. The Attorney
General of British Columbia will bear responsibility for 10 percent of the costs at trial
on a full indemnity basis and will pay the costs associated with its presence at the
appellate levels on a party-and-party basis.
The trial judge was entitled to revisit this Court’s decision in Rodriguez.
Trial courts may reconsider settled rulings of higher courts in two situations: (1)
where a new legal issue is raised; and (2) where there is a change in the circumstances
or evidence that fundamentally shifts the parameters of the debate. Here, both
conditions were met. The argument before the trial judge involved a different legal
conception of s. 7 than that prevailing when Rodriguez was decided. In particular, the
law relating to the principles of overbreadth and gross disproportionality had
materially advanced since Rodriguez. The matrix of legislative and social facts in this
case also differed from the evidence before the Court in Rodriguez.
The prohibition on assisted suicide is, in general, a valid exercise of the
federal criminal law power under s. 91(27) of the Constitution Act, 1867, and it does
not impair the protected core of the provincial jurisdiction over health. Health is an
area of concurrent jurisdiction, which suggests that aspects of physician-assisted
dying may be the subject of valid legislation by both levels of government, depending

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on the circumstances and the focus of the legislation. On the basis of the record, the
interjurisdictional immunity claim cannot succeed.
Insofar as they prohibit physician-assisted dying for competent adults
who seek such assistance as a result of a grievous and irremediable medical condition
that causes enduring and intolerable suffering, ss. 241(b) and 14 of the Criminal Code
deprive these adults of their right to life, liberty and security of the person under s. 7
of the Charter. The right to life is engaged where the law or state action imposes
death or an increased risk of death on a person, either directly or indirectly. Here, the
prohibition deprives some individuals of life, as it has the effect of forcing some
individuals to take their own lives prematurely, for fear that they would be incapable
of doing so when they reached the point where suffering was intolerable. The rights
to liberty and security of the person, which deal with concerns about autonomy and
quality of life, are also engaged. An individual’s response to a grievous and
irremediable medical condition is a matter critical to their dignity and autonomy. The
prohibition denies people in this situation the right to make decisions concerning their
bodily integrity and medical care and thus trenches on their liberty. And by leaving
them to endure intolerable suffering, it impinges on their security of the person.
The prohibition on physician-assisted dying infringes the right to life,
liberty and security of the person in a manner that is not in accordance with the
principles of fundamental justice. The object of the prohibition is not, broadly, to
preserve life whatever the circumstances, but more specifically to protect vulnerable
persons from being induced to commit suicide at a time of weakness. Since a total
ban on assisted suicide clearly helps achieve this object, individuals’ rights are not
deprived arbitrarily. However, the prohibition catches people outside the class of
protected persons. It follows that the limitation on their rights is in at least some cases
not connected to the objective and that the prohibition is thus overbroad. It is
unnecessary to decide whether the prohibition also violates the principle against gross
disproportionality.
Having concluded that the prohibition on physician-assisted dying
violates s. 7, it is unnecessary to consider whether it deprives adults who are
physically disabled of their right to equal treatment under s. 15 of the Charter.
Sections 241(b) and 14 of the Criminal Code are not saved by s. 1 of the
Charter. While the limit is prescribed by law and the law has a pressing and
substantial objective, the prohibition is not proportionate to the objective. An absolute
prohibition on physician-assisted dying is rationally connected to the goal of
protecting the vulnerable from taking their life in times of weakness, because
prohibiting an activity that poses certain risks is a rational method of curtailing the
risks. However, as the trial judge found, the evidence does not support the contention
that a blanket prohibition is necessary in order to substantially meet the government’s
objective. The trial judge made no palpable and overriding error in concluding, on the
basis of evidence from scientists, medical practitioners, and others who are familiar
with end-of-life decision-making in Canada and abroad, that a permissive regime with
properly designed and administered safeguards was capable of protecting vulnerable
people from abuse and error. It was also open to her to conclude that vulnerability can
be assessed on an individual basis, using the procedures that physicians apply in their
assessment of informed consent and decisional capacity in the context of medical
decision-making more generally. The absolute prohibition is therefore not minimally
impairing. Given this conclusion, it is not necessary to weigh the impacts of the law
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on protected rights against the beneficial effect of the law in terms of the greater
public good.
The appropriate remedy is not to grant a free-standing constitutional
exemption, but rather to issue a declaration of invalidity and to suspend it for 12
months. Nothing in this declaration would compel physicians to provide assistance in
dying. The Charter rights of patients and physicians will need to be reconciled in any
legislative and regulatory response to this judgment.
The appellants are entitled to an award of special costs on a full
indemnity basis to cover the entire expense of bringing this case before the courts. A
court may depart from the usual rule on costs and award special costs where two
criteria are met. First, the case must involve matters of public interest that are truly
exceptional. It is not enough that the issues raised have not been previously resolved
or that they transcend individual interests of the successful litigant: they must also
have a significant and widespread societal impact. Second, in addition to showing that
they have no personal, proprietary or pecuniary interest in the litigation that would
justify the proceedings on economic grounds, the plaintiffs must show that it would
not have been possible to effectively pursue the litigation in question with private
funding. Finally, only those costs that are shown to be reasonable and prudent will be
covered by the award of special costs. Here, the trial judge did not err in awarding
special costs in the truly exceptional circumstances of this case. It was also open to
her to award 10 percent of the costs against the Attorney General of British Columbia
in light of the full and active role it played in the proceedings. The trial judge was in
the best position to determine the role taken by that Attorney General and the extent
to which it shared carriage of the case.
Cases Cited
Distinguished: Rodriguez v. British Columbia (Attorney General),
[1993] 3 S.C.R. 519; applied: Canada (Attorney General) v. Bedford, 2013 SCC 72,
[2013] 3 S.C.R. 1101; disapproved: Victoria (City) v. Adams, 2009 BCCA 563, 100
B.C.L.R. (4th) 28; referred to: Washington v. Glucksberg, 521 U.S. 702 (1997);
Vacco v. Quill, 521 U.S. 793 (1997); Pretty v. United Kingdom, No. 2346/02, ECHR
2002-III; Fleming v. Ireland, [2013] IESC 19; R. (on the application of Nicklinson) v.
Ministry of Justice, [2014] UKSC 38, [2014] 3 All E.R. 843; Alberta v. Hutterian
Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567; R. v. Ferguson, 2008
SCC 6, [2008] 1 S.C.R. 96; Ontario (Attorney General) v. Fraser, 2011 SCC 20,
[2011] 2 S.C.R. 3; Canadian Western Bank v. Alberta, 2007 SCC 22, [2007] 2 S.C.R.
3; Tsilhqot’in Nation v. British Columbia, 2014 SCC 44, [2014] 2 S.C.R. 256;
Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44,
[2011] 3 S.C.R. 134; RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3
S.C.R. 199; Schneider v. The Queen, [1982] 2 S.C.R. 112; Chaoulli v. Quebec
(Attorney General), 2005 SCC 35, [2005] 1 S.C.R. 791; Blencoe v. British Columbia
(Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307; R. v. Morgentaler,
[1988] 1 S.C.R. 30; New Brunswick (Minister of Health and Community Services) v.
G. (J.), [1999] 3 S.C.R. 46; A.C. v. Manitoba (Director of Child and Family
Services), 2009 SCC 30, [2009] 2 S.C.R. 181; R. v. Parker (2000), 49 O.R. (3d) 481;
Fleming v. Reid (1991), 4 O.R. (3d) 74; Ciarlariello v. Schacter, [1993] 2 S.C.R. 119;
Malette v. Shulman (1990), 72 O.R. (2d) 417; Nancy B. v. Hôtel-Dieu de Québec
(1992), 86 D.L.R. (4th) 385; Charkaoui v. Canada (Citizenship and Immigration),
2007 SCC 9, [2007] 1 S.C.R. 350; R. v. Swain, [1991] 1 S.C.R. 933; Re B.C. Motor
Page 5 of 236
Vehicle Act, [1985] 2 S.C.R. 486; Suresh v. Canada (Minister of Citizenship and
Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3; R. v. Oakes, [1986] 1 S.C.R. 103;
Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11, [2013] 1
S.C.R. 467; Little Sisters Book and Art Emporium v. Canada (Commissioner of
Customs and Revenue), 2007 SCC 2, [2007] 1 S.C.R. 38; Finney v. Barreau du
Québec, 2004 SCC 36, [2004] 2 S.C.R. 17; British Columbia (Minister of Forests) v.
Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371; B. (R.) v. Children’s Aid
Society of Metropolitan Toronto, [1995] 1 S.C.R. 315; Hegeman v. Carter, 2008
NWTSC 48, 74 C.P.C. (6th) 112; Polglase v. Polglase (1979), 18 B.C.L.R. 294.
Statutes and Regulations Cited
Act respecting end-of-life care, CQLR, c. S-32.0001 [not yet in force].
Canadian Charter of Rights and Freedoms, ss. 1, 7, 15.
Constitution Act, 1867, ss. 91, 92.
Constitution Act, 1982, s. 52.
Criminal Code, R.S.C. 1985, c. C-46, ss. 14, 21, 22, 212(1)(j), 222, 241.
Authors Cited
Singleton, Thomas J. “The Principles of Fundamental Justice, Societal Interests and
Section 1 of the Charter” (1995), 74 Can. Bar Rev. 446.
APPEAL from a judgment of the British Columbia Court of Appeal
(Finch C.J.B.C. and Newbury and Saunders JJ.A.), 2013 BCCA 435, 51 B.C.L.R.
(5th) 213, 302 C.C.C. (3d) 26, 365 D.L.R. (4th) 351, 293 C.R.R. (2d) 109, 345
B.C.A.C. 232, 589 W.A.C. 232, [2014] 1 W.W.R. 211, [2013] B.C.J. No. 2227 (QL),
2013 CarswellBC 3051 (WL Can.), setting aside decisions of Smith J., 2012 BCSC
886, 287 C.C.C. (3d) 1, 261 C.R.R. (2d) 1, [2012] B.C.J. No. 1196 (QL), 2012
CarswellBC 1752 (WL Can.); and 2012 BCSC 1587, 271 C.R.R. (2d) 224, [2012]
B.C.J. No. 2259 (QL), 2012 CarswellBC 3388 (WL Can.). Appeal allowed.
Joseph J. Arvay, Q.C., Sheila M. Tucker and Alison M. Latimer, for the
appellants.
Robert J. Frater and Donnaree Nygard, for the respondent the Attorney
General of Canada.
Bryant Mackey, for the respondent the Attorney General of British
Columbia.
S. Zachary Green, for the intervener the Attorney General of Ontario.
Jean-Yves Bernard and Sylvain Leboeuf, for the intervener the Attorney
General of Quebec.
David Baker and Emily Shepard, for the interveners the Council of
Canadians with Disabilities and the Canadian Association for Community Living.
Gerald D. Chipeur, Q.C., for the intervener the Christian Legal
Fellowship.
Written submissions only by Gordon Capern, Michael Fenrick, Richard
Elliott and Ryan Peck, for the interveners the Canadian HIV/AIDS Legal Network
and the HIV & AIDS Legal Clinic Ontario.
André Schutten, for the intervener the Association for Reformed Political
Action Canada.
Pierre Bienvenu, Andres C. Garin and Vincent Rochette, for the
intervener the Physicians’ Alliance against Euthanasia.
Geoffrey Trotter, for the intervener the Evangelical Fellowship of
Canada.
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Albertos Polizogopoulos, for the interveners the Christian Medical and
Dental Society of Canada and the Canadian Federation of Catholic Physicians’
Societies.
Written submissions only by Cynthia Petersen and Kelly Doctor, for the
intervener Dying With Dignity.
Harry Underwood and Jessica Prince, for the intervener the Canadian
Medical Association.
Albertos Polizogopoulos and Russell G. Gibson, for the intervener the
Catholic Health Alliance of Canada.
Marlys A. Edwardh and Daniel Sheppard, for the intervener the Criminal
Lawyers’ Association (Ontario).
Jason B. Gratl, for the interveners the Farewell Foundation for the Right
to Die and Association québécoise pour le droit de mourir dans la dignité.
Christopher D. Bredt and Margot Finley, for the intervener the Canadian
Civil Liberties Association.
Robert W. Staley, Ranjan K. Agarwal, Jack R. Maslen and Philip H.
Horgan, for the interveners the Catholic Civil Rights League, the Faith and Freedom
Alliance and the Protection of Conscience Project.
Angus M. Gunn, Q.C., and Duncan A. W. Ault, for the intervener the
Alliance of People With Disabilities Who are Supportive of Legal Assisted Dying
Society.
Tim Dickson and Ryan J. M. Androsoff, for the intervener the Canadian
Unitarian Council.
Hugh R. Scher, for the interveners the Euthanasia Prevention Coalition
and the Euthanasia Prevention Coalition — British Columbia.
TABLE OF CONTENTS
Paragraph

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1
I. Introduction ....................................................................................................... 4
5
II. Background ........................................................................................................ 19 5
III. Statutory Provisions ........................................................................................ 22 14
22
IV. Judicial History ................................................................................................ 16
A. British Columbia Supreme Court, 2012 BCSC 886, 287 C.C.C. (3d) 1 ............ 34 16
B. British Columbia Court of Appeal, 2013 BCCA 435, 51 B.C.L.R. (5th) 40
213 .....................................................................................................................
42 22
V. Issues on Appeal .............................................................................................. 25
49
VI. Was the Trial Judge Bound by Rodriguez? ................................................... 54 25
VII. Does the Prohibition Interfere With the “Core” of the Provincial
Jurisdiction Over Health? .............................................................................. 57 28
57
VIII. Section 7 ............................................................................................................ 31
64
A. Does the Law Infringe the Right to Life, Liberty and
70
Security of the Person? ...................................................................................... 32
71
(1) Life ............................................................................................................. 32
83
(2) Liberty and Security of the Person ............................................................. 35
85
(3) Summary on Section 7: Life, Liberty and Security of the Person ............. 38
89
B. The Principles of Fundamental Justice ............................................................. 39
91
(1) Arbitrariness ............................................................................................... 44
(2) Overbreadth ................................................................................................ 44
93
(3) Gross Disproportionality ............................................................................ 46
94
(4) Parity .......................................................................................................... 47
99
IX. Does the Prohibition on Assisted Suicide Violate Section 15 102
of the Charter?.................................................................................................. 10848
X. Section 1 ............................................................................................................ 11048
(1)
Rational Connection ................................................................................... 50
(2)
Minimal Impairment................................................................................... 11451
Canada’s Challenge to the Facts ...............................................................
(a) 12254
(b)
The Fresh Evidence .................................................................................... 12455
(c)
The Feasibility of Safeguards and the Possibility of 124
a “Slippery Slope” ..................................................................................... 12657
(3) Deleterious Effects and Salutary Benefits .................................................. 13361
147
XI. Remedy ............................................................................................................. 61
A. The Court of Appeal’s Proposed Constitutional Exemption ............................. 61
B. Declaration of Invalidity ................................................................................... 62
XII. Costs .................................................................................................................. 65
XIII. Conclusion ........................................................................................................ 70

The following is the judgment delivered by


THE COURT —
I. Introduction
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[1] It is a crime in Canada to assist another person in ending her own life. As
a result, people who are grievously and irremediably ill cannot seek a physician’s
assistance in dying and may be condemned to a life of severe and intolerable
suffering. A person facing this prospect has two options: she can take her own life
prematurely, often by violent or dangerous means, or she can suffer until she dies
from natural causes. The choice is cruel.
[2] The question on this appeal is whether the criminal prohibition that puts a
person to this choice violates her Charter rights to life, liberty and security of the
person (s. 7) and to equal treatment by and under the law (s. 15). This is a question
that asks us to balance competing values of great importance. On the one hand stands
the autonomy and dignity of a competent adult who seeks death as a response to a
grievous and irremediable medical condition. On the other stands the sanctity of life
and the need to protect the vulnerable.
[3] The trial judge found that the prohibition violates the s. 7 rights of
competent adults who are suffering intolerably as a result of a grievous and
irremediable medical condition. She concluded that this infringement is not justified
under s. 1 of the Charter. We agree. The trial judge’s findings were based on an
exhaustive review of the extensive record before her. The evidence supports her
conclusion that the violation of the right to life, liberty and security of the person
guaranteed by s. 7 of the Charter is severe. It also supports her finding that a
properly administered regulatory regime is capable of protecting the vulnerable from
abuse or error.
[4] We conclude that the prohibition on physician-assisted dying is void
insofar as it deprives a competent adult of such assistance where (1) the person
affected clearly consents to the termination of life; and (2) the person has a grievous
and irremediable medical condition (including an illness, disease or disability) that
causes enduring suffering that is intolerable to the individual in the circumstances of
his or her condition. We therefore allow the appeal.
II. Background
[5] In Canada, aiding or abetting a person to commit suicide is a criminal
offence: see s. 241(b) of the Criminal Code, R.S.C. 1985, c. C-46. This means that a
person cannot seek a physician-assisted death. Twenty-one years ago, this Court
upheld this blanket prohibition on assisted suicide by a slim majority: Rodriguez v.
British Columbia (Attorney General), [1993] 3 S.C.R. 519. Sopinka J., writing for
five justices, held that the prohibition did not violate s. 7 of the Canadian Charter of
Rights and Freedoms, and that if it violated s. 15, this was justified under s. 1, as
there was “no halfway measure that could be relied upon with assurance” to protect
the vulnerable (p. 614). Four justices disagreed. McLachlin J. (as she then was), with
L’Heureux-Dubé J. concurring, concluded that the prohibition violated s. 7 of the
Charter and was not justified under s. 1. Lamer C.J. held that the prohibition violated
s. 15 of the Charter and was not saved under s. 1. Cory J. agreed that the prohibition
violated both ss. 7 and 15 and could not be justified.
[6] Despite the Court’s decision in Rodriguez, the debate over physician-
assisted dying continued. Between 1991 and 2010, the House of Commons and its
committees debated no less than six private member’s bills seeking to decriminalize
assisted suicide. None was passed. While opponents to legalization emphasized the
inadequacy of safeguards and the potential to devalue human life, a vocal minority
spoke in favour of reform, highlighting the importance of dignity and autonomy and
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the limits of palliative care in addressing suffering. The Senate considered the matter
as well, issuing a report on assisted suicide and euthanasia in 1995. The majority
expressed concerns about the risk of abuse under a permissive regime and the need
for respect for life. A minority supported an exemption to the prohibition in some
circumstances.
[7] More recent reports have come down in favour of reform. In 2011, the
Royal Society of Canada published a report on end-of-life decision-making and
recommended that the Criminal Code be modified to permit assistance in dying in
some circumstances. The Quebec National Assembly’s Select Committee on Dying
with Dignity issued a report in 2012, recommending amendments to legislation to
recognize medical aid in dying as appropriate end-of-life care (now codified in An Act
respecting end-of-life care, CQLR, c. S-32.0001 (not yet in force)).
[8] The legislative landscape on the issue of physician-assisted death has
changed in the two decades since Rodriguez. In 1993 Sopinka J. noted that no other
Western democracy expressly permitted assistance in dying. By 2010, however, eight
jurisdictions permitted some form of assisted dying: the Netherlands, Belgium,
Luxembourg, Switzerland, Oregon, Washington, Montana, and Colombia. The
process of legalization began in 1994, when Oregon, as a result of a citizens’
initiative, altered its laws to permit medical aid in dying for a person suffering from a
terminal disease. Colombia followed in 1997, after a decision of the constitutional
court. The Dutch Parliament established a regulatory regime for assisted dying in
2002; Belgium quickly adopted a similar regime, with Luxembourg joining in 2009.
Together, these regimes have produced a body of evidence about the practical and
legal workings of physician-assisted death and the efficacy of safeguards for the
vulnerable.
[9] Nevertheless, physician-assisted dying remains a criminal offence in most
Western countries, and a number of courts have upheld the prohibition on such
assistance in the face of constitutional and human rights challenges: see, e.g.,
Washington v. Glucksberg, 521 U.S. 702 (1997); Vacco v. Quill, 521 U.S. 793
(1997); Pretty v. United Kingdom, No. 2346/02, ECHR 2002-III; and Fleming v.
Ireland, [2013] IESC 19. In a recent decision, a majority of the Supreme Court of the
United Kingdom accepted that the absolute prohibition on assisted dying breached the
claimants’ rights, but found the evidence on safeguards insufficient; the court
concluded that Parliament should be given an opportunity to debate and amend the
legislation based on the court’s provisional views (see R. (on the application of
Nicklinson) v. Ministry of Justice, [2014] UKSC 38, [2014] 3 All E.R. 843).
[10] The debate in the public arena reflects the ongoing debate in the
legislative sphere. Some medical practitioners see legal change as a natural extension
of the principle of patient autonomy, while others fear derogation from the principles
of medical ethics. Some people with disabilities oppose the legalization of assisted
dying, arguing that it implicitly devalues their lives and renders them vulnerable to
unwanted assistance in dying, as medical professionals assume that a disabled patient
“leans towards death at a sharper angle than the acutely ill — but otherwise non-
disabled — patient” (2012 BCSC 886, 287 C.C.C. (3d) 1, at para. 811). Other people
with disabilities take the opposite view, arguing that a regime which permits control
over the manner of one’s death respects, rather than threatens, their autonomy and
dignity, and that the legalization of physician-assisted suicide will protect them by
establishing stronger safeguards and oversight for end-of-life medical care.
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[11] The impetus for this case arose in 2009, when Gloria Taylor was
diagnosed with a fatal neurodegenerative disease, amyotrophic lateral sclerosis (or
ALS), which causes progressive muscle weakness. ALS patients first lose the ability
to use their hands and feet, then the ability to walk, chew, swallow, speak and,
eventually, breathe. Like Sue Rodriguez before her, Gloria Taylor did “not want to
die slowly, piece by piece” or “wracked with pain,” and brought a claim before the
British Columbia Supreme Court challenging the constitutionality of the Criminal
Code provisions that prohibit assistance in dying, specifically ss. 14, 21, 22, 222, and
241. She was joined in her claim by Lee Carter and Hollis Johnson, who had assisted
Ms. Carter’s mother, Kathleen (“Kay”) Carter, in achieving her goal of dying with
dignity by taking her to Switzerland to use the services of DIGNITAS, an assisted-
suicide clinic; Dr. William Shoichet, a physician from British Columbia who would
be willing to participate in physician-assisted dying if it were no longer prohibited;
and the British Columbia Civil Liberties Association, which has a long-standing
interest in patients’ rights and health policy and has conducted advocacy and
education with respect to end-of-life choices, including assisted suicide.
[12] By 2010, Ms. Taylor’s condition had deteriorated to the point that she
required a wheelchair to go more than a short distance and was suffering pain from
muscle deterioration. She required home support for assistance with the daily tasks of
living, something that she described as an assault on her privacy, dignity, and self-
esteem. She continued to pursue an independent life despite her illness, but found
that she was steadily losing the ability to participate fully in that life. Ms. Taylor
informed her family and friends of a desire to obtain a physician-assisted death. She
did not want to “live in a bedridden state, stripped of dignity and independence”, she
said; nor did she want an “ugly death”. This is how she explained her desire to seek a
physician-assisted death:
I do not want my life to end violently. I do not want my mode of death
to be traumatic for my family members. I want the legal right to die
peacefully, at the time of my own choosing, in the embrace of my family
and friends.

I know that I am dying, but I am far from depressed. I have some


down time - that is part and parcel of the experience of knowing that you
are terminal. But there is still a lot of good in my life; there are still
things, like special times with my granddaughter and family, that bring
me extreme joy. I will not waste any of my remaining time being
depressed. I intend to get every bit of happiness I can wring from what is
left of my life so long as it remains a life of quality; but I do not want to
live a life without quality. There will come a point when I will know that
enough is enough. I cannot say precisely when that time will be. It is not
a question of “when I can’t walk” or “when I can’t talk.” There is no pre-
set trigger moment. I just know that, globally, there will be some point in
time when I will be able to say – “this is it, this is the point where life is
just not worthwhile.” When that time comes, I want to be able to call my
family together, tell them of my decision, say a dignified good-bye and
obtain final closure – for me and for them.

Page 11 of 236
My present quality of life is impaired by the fact that I am unable to
say for certain that I will have the right to ask for physician-assisted
dying when that “enough is enough” moment arrives. I live in
apprehension that my death will be slow, difficult, unpleasant, painful,
undignified and inconsistent with the values and principles I have tried to
live by. . . .

...

. . . What I fear is a death that negates, as opposed to concludes, my


life. I do not want to die slowly, piece by piece. I do not want to waste
away unconscious in a hospital bed. I do not want to die wracked with
pain.
[13] Ms. Taylor, however, knew she would be unable to request a physician-
assisted death when the time came, because of the Criminal Code prohibition and the
fact that she lacked the financial resources to travel to Switzerland, where assisted
suicide is legal and available to non-residents. This left her with what she described
as the “cruel choice” between killing herself while she was still physically capable of
doing so, or giving up the ability to exercise any control over the manner and timing
of her death.
[14] Other witnesses also described the “horrible” choice faced by a person
suffering from a grievous and irremediable illness. The stories in the affidavits vary
in their details: some witnesses described the progression of degenerative illnesses
like motor neuron diseases or Huntington’s disease, while others described the agony
of treatment and the fear of a gruesome death from advanced-stage cancer. Yet
running through the evidence of all the witnesses is a constant theme — that they
suffer from the knowledge that they lack the ability to bring a peaceful end to their
lives at a time and in a manner of their own choosing.
[15] Some describe how they had considered seeking out the traditional modes
of suicide but found that choice, too, repugnant:
I was going to blow my head off. I have a gun and I seriously considered
doing it. I decided that I could not do that to my family. It would be
horrible to put them through something like that. . . . I want a better
choice than that.
A number of the witnesses made clear that they — or their loved ones — had
considered or in fact committed suicide earlier than they would have chosen to die if
physician-assisted death had been available to them. One woman noted that the
conventional methods of suicide, such as carbon monoxide asphyxiation, slitting of
the wrists or overdosing on street drugs, would require that she end her life “while I
am still able bodied and capable of taking my life, well ahead of when I actually need
to leave this life”.
[16] Still other witnesses described their situation in terms of a choice between
a protracted or painful death and exposing their loved ones to prosecution for
assisting them in ending their lives. Speaking of himself and his wife, one man said:
“We both face this reality, that we have only two terrible and imperfect options, with
a sense of horror and loathing.”
[17] Ms. Carter and Mr. Johnson described Kay Carter’s journey to assisted
suicide in Switzerland and their role in facilitating that process. Kay was diagnosed
Page 12 of 236
in 2008 with spinal stenosis, a condition that results in the progressive compression of
the spinal cord. By mid-2009, her physical condition had deteriorated to the point
that she required assistance with virtually all of her daily activities. She had
extremely limited mobility and suffered from chronic pain. As her illness progressed,
Kay informed her family that she did not wish to live out her life as an “ironing
board”, lying flat in bed. She asked her daughter, Lee Carter, and her daughter’s
husband, Hollis Johnson, to support and assist her in arranging an assisted suicide in
Switzerland, and to travel there with her for that purpose. Although aware that
assisting Kay could expose them both to prosecution in Canada, they agreed to assist
her. In early 2010, they attended a clinic in Switzerland operated by DIGNITAS, a
Swiss “death with dignity” organization. Kay took the prescribed dose of sodium
pentobarbital while surrounded by her family, and passed away within 20 minutes.
[18] Ms. Carter and Mr. Johnson found the process of planning and arranging
for Kay’s trip to Switzerland difficult, in part because their activities had to be kept
secret due to the potential for criminal sanctions. While they have not faced
prosecution in Canada following Kay’s death, Ms. Carter and Mr. Johnson are of the
view that Kay ought to have been able to obtain a physician-assisted suicide at home,
surrounded by her family and friends, rather than undergoing the stressful and
expensive process of arranging for the procedure overseas. Accordingly, they joined
Ms. Taylor in pressing for the legalization of physician-assisted death.
III. Statutory Provisions
[19] The appellants challenge the constitutionality of the following provisions
of the Criminal Code:
14. No person is entitled to consent to have death inflicted on him, and
such consent does not affect the criminal responsibility of any person by
whom death may be inflicted on the person by whom consent is given.

21. (1) Every one is a party to an offence who

...

(b) does or omits to do anything for the purpose of aiding any person
to commit it; or

...

(2) Where two or more persons form an intention in common to carry


out an unlawful purpose and to assist each other therein and any one of
them, in carrying out the common purpose, commits an offence, each of
them who knew or ought to have known that the commission of the
offence would be a probable consequence of carrying out the common
purpose is a party to that offence.

22. (1) Where a person counsels another person to be a party to an


offence and that other person is afterwards a party to that offence, the
person who counselled is a party to that offence, notwithstanding that the
offence was committed in a way different from that which was
counselled.
Page 13 of 236
(2) Every one who counsels another person to be a party to an offence
is a party to every offence that the other commits in consequence of the
counselling that the person who counselled knew or ought to have known
was likely to be committed in consequence of the counselling.

(3) For the purposes of this Act, “counsel” includes procure, solicit or
incite.

222. (1) A person commits homicide when, directly or indirectly, by


any means, he causes the death of a human being.

(2) Homicide is culpable or not culpable.

(3) Homicide that is not culpable is not an offence.

(4) Culpable homicide is murder or manslaughter or infanticide.

(5) A person commits culpable homicide when he causes the death of a


human being,

(a) by means of an unlawful act;

...

241. Every one who

(a) counsels a person to commit suicide, or

(b) aids or abets a person to commit suicide,

whether suicide ensues or not, is guilty of an indictable offence and liable


to imprisonment for a term not exceeding fourteen years.
[20] In our view, two of these provisions are at the core of the constitutional
challenge: s. 241(b), which says that everyone who aids or abets a person in
committing suicide commits an indictable offence, and s. 14, which says that no
person may consent to death being inflicted on them. It is these two provisions that
prohibit the provision of assistance in dying. Sections 21, 22, and 222 are only
engaged so long as the provision of assistance in dying is itself an “unlawful act” or
offence. Section 241(a) does not contribute to the prohibition on assisted suicide.
[21] The Charter states:
1. The Canadian Charter of Rights and Freedoms guarantees the
rights and freedoms set out in it subject only to such reasonable limits
prescribed by law as can be demonstrably justified in a free and
democratic society.

Page 14 of 236
7. Everyone has the right to life, liberty and security of the person and
the right not to be deprived thereof except in accordance with the
principles of fundamental justice.

15. (1) Every individual is equal before and under the law and has the
right to the equal protection and equal benefit of the law without
discrimination and, in particular, without discrimination based on race,
national or ethnic origin, colour, religion, sex, age or mental or physical
disability.
IV. Judicial History
A. British Columbia Supreme Court, 2012 BCSC 886, 287 C.C.C. (3d) 1
[22] The action was brought by way of summary trial before Smith J. in the
British Columbia Supreme Court. While the majority of the evidence was presented
in affidavit form, a number of the expert witnesses were cross-examined, both prior to
trial and before the trial judge. The record was voluminous: the trial judge canvassed
evidence from Canada and from the permissive jurisdictions on medical ethics and
current end-of-life practices, the risks associated with assisted suicide, and the
feasibility of safeguards.
[23] The trial judge began by reviewing the current state of the law and
practice in Canada regarding end-of-life care. She found that current unregulated
end-of-life practices in Canada — such as the administration of palliative sedation
and the withholding or withdrawal of lifesaving or life-sustaining medical treatment
— can have the effect of hastening death and that there is a strong societal consensus
that these practices are ethically acceptable (para. 357). After considering the
evidence of physicians and ethicists, she found that the “preponderance of the
evidence from ethicists is that there is no ethical distinction between physician-
assisted death and other end-of-life practices whose outcome is highly likely to be
death” (para. 335). Finally, she found that there are qualified Canadian physicians
who would find it ethical to assist a patient in dying if that act were not prohibited by
law (para. 319).
[24] Based on these findings, the trial judge concluded that, while there is no
clear societal consensus on physician-assisted dying, there is a strong consensus that
it would only be ethical with respect to voluntary adults who are competent,
informed, grievously and irremediably ill, and where the assistance is “clearly
consistent with the patient’s wishes and best interests, and [provided] in order to
relieve suffering” (para. 358).
[25] The trial judge then turned to the evidence from the regimes that permit
physician-assisted dying. She reviewed the safeguards in place in each jurisdiction
and considered the effectiveness of each regulatory regime. In each system, she
found general compliance with regulations, although she noted some room for
improvement. The evidence from Oregon and the Netherlands showed that a system
can be designed to protect the socially vulnerable. Expert evidence established that
the “predicted abuse and disproportionate impact on vulnerable populations has not
materialized” in Belgium, the Netherlands, and Oregon (para. 684). She concluded
that
although none of the systems has achieved perfection, empirical
researchers and practitioners who have experience in those systems are of
the view that they work well in protecting patients from abuse while
Page 15 of 236
allowing competent patients to choose the timing of their deaths. [para.
685]
While stressing the need for caution in drawing conclusions for Canada based on
foreign experience, the trial judge found that “weak inference[s]” could be drawn
about the effectiveness of safeguards and the potential degree of compliance with any
permissive regime (para. 683).
[26] Based on the evidence from the permissive jurisdictions, the trial judge
also rejected the argument that the legalization of physician-assisted dying would
impede the development of palliative care in the country, finding that the effects of a
permissive regime, while speculative, would “not necessarily be negative” (para.
736). Similarly, she concluded that any changes in the physician-patient relationship
following legalization “could prove to be neutral or for the good” (para. 746).
[27] The trial judge then considered the risks of a permissive regime and the
feasibility of implementing safeguards to address those risks. After reviewing the
evidence tendered by physicians and experts in patient assessment, she concluded that
physicians were capable of reliably assessing patient competence, including in the
context of life-and-death decisions (para. 798). She found that it was possible to
detect coercion, undue influence, and ambivalence as part of this assessment process
(paras. 815, 843). She also found that the informed consent standard could be applied
in the context of physician-assisted death, so long as care was taken to “ensure a
patient is properly informed of her diagnosis and prognosis” and the treatment options
described included all reasonable palliative care interventions (para. 831).
Ultimately, she concluded that the risks of physician-assisted death “can be identified
and very substantially minimized through a carefully-designed system” that imposes
strict limits that are scrupulously monitored and enforced (para. 883).
[28] Having reviewed the copious evidence before her, the trial judge
concluded that the decision in Rodriguez did not prevent her from reviewing the
constitutionality of the impugned provisions, because (1) the majority in Rodriguez
did not address the right to life; (2) the principles of overbreadth and gross
disproportionality had not been identified at the time of the decision in Rodriguez and
thus were not addressed in that decision; (3) the majority only “assumed” a violation
of s. 15; and (4) the decision in Alberta v. Hutterian Brethren of Wilson Colony, 2009
SCC 37, [2009] 2 S.C.R. 567, represented a “substantive change” to the s. 1 analysis
(para. 994). The trial judge concluded that these changes in the law, combined with
the changes in the social and factual landscape over the past 20 years, permitted her to
reconsider the constitutionality on the prohibition on physician-assisted dying.
[29] The trial judge then turned to the Charter analysis. She first asked
whether the prohibition violated the s. 15 equality guarantee. She found that the
provisions imposed a disproportionate burden on persons with physical disabilities, as
only they are restricted to self-imposed starvation and dehydration in order to take
their own lives (para. 1076). This distinction, she found, is discriminatory, and not
justified under s. 1. While the objective of the prohibition — the protection of
vulnerable persons from being induced to commit suicide at a time of weakness — is
pressing and substantial and the means are rationally connected to that purpose, the
prohibition is not minimally impairing. A “stringently limited, carefully monitored
system of exceptions” would achieve Parliament’s objective:
Permission for physician-assisted death for grievously ill and
irremediably suffering people who are competent, fully informed, non-
Page 16 of 236
ambivalent, and free from coercion or duress, with stringent and well-
enforced safeguards, could achieve that objective in a real and substantial
way. [para. 1243]
[30] Turning to s. 7 of the Charter, which protects life, liberty and security of
the person, the trial judge found that the prohibition impacted all three interests. The
prohibition on seeking physician-assisted dying deprived individuals of liberty, which
encompasses “the right to non-interference by the state with fundamentally important
and personal medical decision-making” (para. 1302). In addition, it also impinged on
Ms. Taylor’s security of the person by restricting her control over her bodily integrity.
While the trial judge rejected a “qualitative” approach to the right to life, concluding
that the right to life is only engaged by a threat of death, she concluded that Ms.
Taylor’s right to life was engaged insofar as the prohibition might force her to take
her life earlier than she otherwise would if she had access to a physician-assisted
death.
[31] The trial judge concluded that the deprivation of the claimants’ s. 7 rights
was not in accordance with the principles of fundamental justice, particularly the
principles against overbreadth and gross disproportionality. The prohibition was
broader than necessary, as the evidence showed that a system with properly designed
and administered safeguards offered a less restrictive means of reaching the
government’s objective. Moreover, the “very severe” effects of the absolute
prohibition in relation to its salutary effects rendered it grossly disproportionate (para.
1378). As with the s. 15 infringement, the trial judge found the s. 7 infringement was
not justified under s. 1.
[32] In the result, the trial judge declared the prohibition unconstitutional,
granted a one-year suspension of invalidity, and provided Ms. Taylor with a
constitutional exemption for use during the one-year period of the suspension. Ms.
Taylor passed away prior to the appeal of this matter, without accessing the
exemption.
[33] In a separate decision on costs (2012 BCSC 1587, 271 C.R.R. (2d) 224),
the trial judge ordered an award of special costs in favour of the plaintiffs. The issues
in the case were “complex and momentous” (para. 87) and the plaintiffs could not
have prosecuted the case without assistance from pro bono counsel; an award of
special costs would therefore promote the public interest in encouraging experienced
counsel to take on Charter litigation on a pro bono basis. The trial judge ordered the
Attorney General of British Columbia to pay 10 percent of the costs, noting that she
had taken a full and active role in the proceedings. Canada was ordered to pay the
remaining 90 percent of the award.
B. British Columbia Court of Appeal, 2013 BCCA 435, 51 B.C.L.R. (5th) 213
[34] The majority of the Court of Appeal, per Newbury and Saunders JJ.A.,
allowed Canada’s appeal on the ground that the trial judge was bound to follow this
Court’s decision in Rodriguez. The majority concluded that neither the change in
legislative and social facts nor the new legal issues relied on by the trial judge
permitted a departure from Rodriguez.
[35] The majority read Rodriguez as implicitly rejecting the proposition that
the prohibition infringes the right to life under s. 7 of the Charter. It concluded that
the post-Rodriguez principles of fundamental justice — namely overbreadth and gross
disproportionality — did not impose a new legal framework under s. 7. While
acknowledging that the reasons in Rodriguez did not follow the analytical
Page 17 of 236
methodology that now applies under s. 7, the majority held that this would not have
changed the result.
[36] The majority also noted that Rodriguez disposed of the s. 15 equality
argument (which only two judges in that case expressly considered) by holding that
any rights violation worked by the prohibition was justified as a reasonable limit
under s. 1 of the Charter. The decision in Hutterian Brethren did not represent a
change in the law under s. 1. Had it been necessary to consider s. 1 in relation to s. 7,
the majority opined, the s. 1 analysis carried out under s. 15 likely would have led to
the same conclusion — the “blanket prohibition” under s. 241 of the Criminal Code
was justified (para. 323). Accordingly, the majority concluded that “the trial judge
was bound to find that the plaintiffs’ case had been authoritatively decided by
Rodriguez” (para. 324).
[37] Commenting on remedy in the alternative, the majority of the Court of
Appeal suggested the reinstatement of the free-standing constitutional exemption
eliminated in R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, instead of a
declaration of invalidity, as a suspended declaration presented the spectre of a
legislative vacuum.
[38] The majority denied the appellants their costs, given the outcome, but
otherwise would have approved the trial judge’s award of special costs. In addition,
the majority held that costs should not have been awarded against British Columbia.
[39] Finch C.J.B.C., dissenting, found no errors in the trial judge’s assessment
of stare decisis, her application of s. 7, or the corresponding analysis under s. 1.
However, he concluded that the trial judge was bound by Sopinka J.’s conclusion that
any s. 15 infringement was saved by s. 1. While he essentially agreed with her s. 7
analysis, he would have accepted a broader, qualitative scope for the right to life. He
agreed with the trial judge that the prohibition was not minimally impairing, and
concluded that a “carefully regulated scheme” could meet Parliament’s objectives
(para. 177); therefore, the breach of s. 7 could not be justified under s. 1. He would
have upheld the trial judge’s order on costs.
V. Issues on Appeal
[40] The main issue in this case is whether the prohibition on physician-
assisted dying found in s. 241(b) of the Criminal Code violates the claimants’ rights
under ss. 7 and 15 of the Charter. For the purposes of their claim, the appellants use
“physician-assisted death” and “physician-assisted dying” to describe the situation
where a physician provides or administers medication that intentionally brings about
the patient’s death, at the request of the patient. The appellants advance two claims:
(1) that the prohibition on physician-assisted dying deprives competent adults, who
suffer a grievous and irremediable medical condition that causes the person to endure
physical or psychological suffering that is intolerable to that person, of their right to
life, liberty and security of the person under s. 7 of the Charter; and (2) that the
prohibition deprives adults who are physically disabled of their right to equal
treatment under s. 15 of the Charter.
[41] Before turning to the Charter claims, two preliminary issues arise: (1)
whether this Court’s decision in Rodriguez can be revisited; and (2) whether the
prohibition is beyond Parliament’s power because physician-assisted dying lies at the
core of the provincial jurisdiction over health.
VI. Was the Trial Judge Bound by Rodriguez?

Page 18 of 236
[42] The adjudicative facts in Rodriguez were very similar to the facts before
the trial judge. Ms. Rodriguez, like Ms. Taylor, was dying of ALS. She, like Ms.
Taylor, wanted the right to seek a physician’s assistance in dying when her suffering
became intolerable. The majority of the Court, per Sopinka J., held that the
prohibition deprived Ms. Rodriguez of her security of the person, but found that it did
so in a manner that was in accordance with the principles of fundamental justice. The
majority also assumed that the provision violated the claimant’s s. 15 rights, but held
that the limit was justified under s. 1 of the Charter.
[43] Canada and Ontario argue that the trial judge was bound by Rodriguez
and not entitled to revisit the constitutionality of the legislation prohibiting assisted
suicide. Ontario goes so far as to argue that “vertical stare decisis” is a constitutional
principle that requires all lower courts to rigidly follow this Court’s Charter
precedents unless and until this Court sets them aside.
[44] The doctrine that lower courts must follow the decisions of higher courts
is fundamental to our legal system. It provides certainty while permitting the orderly
development of the law in incremental steps. However, stare decisis is not a
straitjacket that condemns the law to stasis. Trial courts may reconsider settled
rulings of higher courts in two situations: (1) where a new legal issue is raised; and
(2) where there is a change in the circumstances or evidence that “fundamentally
shifts the parameters of the debate” (Canada (Attorney General) v. Bedford, 2013
SCC 72, [2013] 3 S.C.R. 1101, at para. 42).
[45] Both conditions were met in this case. The trial judge explained her
decision to revisit Rodriguez by noting the changes in both the legal framework for s.
7 and the evidence on controlling the risk of abuse associated with assisted suicide.
[46] The argument before the trial judge involved a different legal conception
of s. 7 than that prevailing when Rodriguez was decided. In particular, the law
relating to the principles of overbreadth and gross disproportionality had materially
advanced since Rodriguez. The majority of this Court in Rodriguez acknowledged
the argument that the impugned laws were “over-inclusive” when discussing the
principles of fundamental justice (see p. 590). However, it did not apply the principle
of overbreadth as it is currently understood, but instead asked whether the prohibition
was “arbitrary or unfair in that it is unrelated to the state’s interest in protecting the
vulnerable, and that it lacks a foundation in the legal tradition and societal beliefs
which are said to be represented by the prohibition” (p. 595). By contrast, the law on
overbreadth, now explicitly recognized as a principle of fundamental justice, asks
whether the law interferes with some conduct that has no connection to the law’s
objectives (Bedford, at para. 101). This different question may lead to a different
answer. The majority’s consideration of overbreadth under s. 1 suffers from the same
defect: see Rodriguez, at p. 614. Finally, the majority in Rodriguez did not consider
whether the prohibition was grossly disproportionate.
[47] The matrix of legislative and social facts in this case also differed from
the evidence before the Court in Rodriguez. The majority in Rodriguez relied on
evidence of (1) the widespread acceptance of a moral or ethical distinction between
passive and active euthanasia (pp. 605-7); (2) the lack of any “halfway measure” that
could protect the vulnerable (pp. 613-14); and (3) the “substantial consensus” in
Western countries that a blanket prohibition is necessary to protect against the
slippery slope (pp. 601-6 and 613). The record before the trial judge in this case
contained evidence that, if accepted, was capable of undermining each of these
Page 19 of 236
conclusions (see Ontario (Attorney General) v. Fraser, 2011 SCC 20, [2011] 2 S.C.R.
3, at para. 136, per Rothstein J.).
[48] While we do not agree with the trial judge that the comments in Hutterian
Brethren on the s. 1 proportionality doctrine suffice to justify reconsideration of the s.
15 equality claim, we conclude it was open to the trial judge to reconsider the s. 15
claim as well, given the fundamental change in the facts.
VII. Does the Prohibition Interfere With the “Core” of the Provincial Jurisdiction
Over Health?
[49] The appellants accept that the prohibition on assisted suicide is, in
general, a valid exercise of the federal criminal law power under s. 91(27) of the
Constitution Act, 1867. However, they say that the doctrine of interjurisdictional
immunity means that the prohibition cannot constitutionally apply to physician-
assisted dying, because it lies at the core of the provincial jurisdiction over health care
under s. 92(7), (13) and (16) of the Constitution Act, 1867, and is therefore beyond
the legislative competence of the federal Parliament.
[50] The doctrine of interjurisdictional immunity is premised on the idea that
the heads of power in ss. 91 and 92 are “exclusive”, and therefore each have a
“minimum and unassailable” core of content that is immune from the application of
legislation enacted by the other level of government (Canadian Western Bank v.
Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3, at paras. 33-34). To succeed in their
argument on this point, the appellants must show that the prohibition, insofar as it
extends to physician-assisted dying, impairs the “protected core” of the provincial
jurisdiction over health: Tsilhqot’in Nation v. British Columbia, 2014 SCC 44,
[2014] 2 S.C.R. 256, at para. 131.
[51] This Court rejected a similar argument in Canada (Attorney General) v.
PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134. The issue in
that case was “whether the delivery of health care services constitutes a protected
core of the provincial power over health care in s. 92(7), (13) and (16) . . . and is
therefore immune from federal interference” (para. 66). The Court concluded that it
did not (per McLachlin C.J.):
. . . Parliament has power to legislate with respect to federal matters,
notably criminal law, that touch on health. For instance, it has historic
jurisdiction to prohibit medical treatments that are dangerous, or that it
perceives as “socially undesirable” behaviour: R. v. Morgentaler, [1988]
1 S.C.R. 30; Morgentaler v. The Queen, [1976] 1 S.C.R. 616; R. v.
Morgentaler, [1993] 3 S.C.R. 463. The federal role in the domain of
health makes it impossible to precisely define what falls in or out of the
proposed provincial “core”. Overlapping federal jurisdiction and the
sheer size and diversity of provincial health power render daunting the
task of drawing a bright line around a protected provincial core of health
where federal legislation may not tread. [para. 68]
[52] The appellants and the Attorney General of Quebec (who intervened on
this point) say that it is possible to describe a precise core for the power over health,
and thereby to distinguish PHS. The appellants’ proposed core is described as a
power to deliver necessary medical treatment for which there is no alternative
treatment capable of meeting a patient’s needs (A.F., at para. 43). Quebec takes a
slightly different approach, defining the core as the power to establish the kind of

Page 20 of 236
health care offered to patients and supervise the process of consent required for that
care (I.F., at para. 7).
[53] We are not persuaded by the submissions that PHS is distinguishable,
given the vague terms in which the proposed definitions of the “core” of the
provincial health power are couched. In our view, the appellants have not established
that the prohibition on physician-assisted dying impairs the core of the provincial
jurisdiction. Health is an area of concurrent jurisdiction; both Parliament and the
provinces may validly legislate on the topic: RJR-MacDonald Inc. v. Canada
(Attorney General), [1995] 3 S.C.R. 199, at para. 32; Schneider v. The Queen, [1982]
2 S.C.R. 112, at p. 142. This suggests that aspects of physician-assisted dying may be
the subject of valid legislation by both levels of government, depending on the
circumstances and focus of the legislation. We are not satisfied on the record before
us that the provincial power over health excludes the power of the federal Parliament
to legislate on physician-assisted dying. It follows that the interjurisdictional
immunity claim cannot succeed.
VIII. Section 7
[54] Section 7 of the Charter states that “[e]veryone has the right to life,
liberty and security of the person and the right not to be deprived thereof except in
accordance with the principles of fundamental justice.”
[55] In order to demonstrate a violation of s. 7, the claimants must first show
that the law interferes with, or deprives them of, their life, liberty or security of the
person. Once they have established that s. 7 is engaged, they must then show that the
deprivation in question is not in accordance with the principles of fundamental
justice.
[56] For the reasons below, we conclude that the prohibition on physician-
assisted dying infringes the right to life, liberty and security of Ms. Taylor and of
persons in her position, and that it does so in a manner that is overbroad and thus is
not in accordance with the principles of fundamental justice. It therefore violates s. 7.
A. Does the Law Infringe the Right to Life, Liberty and Security of the Person?
Life
[57] The trial judge found that the prohibition on physician-assisted dying had
the effect of forcing some individuals to take their own lives prematurely, for fear that
they would be incapable of doing so when they reached the point where suffering was
intolerable. On that basis, she found that the right to life was engaged.
[58] We see no basis for interfering with the trial judge’s conclusion on this
point. The evidence of premature death was not challenged before this Court. It is
therefore established that the prohibition deprives some individuals of life.
[59] The appellants and a number of the interveners urge us to adopt a
broader, qualitative approach to the right to life. Some argue that the right to life is
not restricted to the preservation of life, but protects quality of life and therefore a
right to die with dignity. Others argue that the right to life protects personal
autonomy and fundamental notions of self-determination and dignity, and therefore
includes the right to determine whether to take one’s own life.
[60] In dissent at the Court of Appeal, Finch C.J.B.C. accepted the argument
that the right to life protects more than physical existence (paras. 84-89). In his view,
the life interest is “intimately connected to the way a person values his or her lived
experience. The point at which the meaning of life is lost, when life’s positive
attributes are so diminished as to render life valueless, . . . is an intensely personal
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decision which ‘everyone’ has the right to make for him or herself” (para. 86).
Similarly, in his dissent in Rodriguez, Cory J. accepted that the right to life included a
right to die with dignity, on the ground that “dying is an integral part of living” (p.
630).
[61] The trial judge, on the other hand, rejected the “qualitative” approach to
the right to life. She concluded that the right to life is only engaged when there is a
threat of death as a result of government action or laws. In her words, the right to life
is limited to a “right not to die” (para. 1322 (emphasis in original)).
[62] This Court has most recently invoked the right to life in Chaoulli v.
Quebec (Attorney General), 2005 SCC 35, [2005] 1 S.C.R. 791, where evidence
showed that the lack of timely health care could result in death (paras. 38 and 50, per
Deschamps J.; para. 123, per McLachlin C.J. and Major J.; and paras. 191 and 200,
per Binnie and LeBel JJ.), and in PHS, where the clients of Insite were deprived of
potentially lifesaving medical care (para. 91). In each case, the right was only
engaged by the threat of death. In short, the case law suggests that the right to life is
engaged where the law or state action imposes death or an increased risk of death on a
person, either directly or indirectly. Conversely, concerns about autonomy and
quality of life have traditionally been treated as liberty and security rights. We see no
reason to alter that approach in this case.
[63] This said, we do not agree that the existential formulation of the right to
life requires an absolute prohibition on assistance in dying, or that individuals cannot
“waive” their right to life. This would create a “duty to live”, rather than a “right to
life”, and would call into question the legality of any consent to the withdrawal or
refusal of lifesaving or life-sustaining treatment. The sanctity of life is one of our
most fundamental societal values. Section 7 is rooted in a profound respect for the
value of human life. But s. 7 also encompasses life, liberty and security of the person
during the passage to death. It is for this reason that the sanctity of life “is no longer
seen to require that all human life be preserved at all costs” (Rodriguez, at p. 595, per
Sopinka J.). And it is for this reason that the law has come to recognize that, in
certain circumstances, an individual’s choice about the end of her life is entitled to
respect. It is to this fundamental choice that we now turn.
Liberty and Security of the Person
[64] Underlying both of these rights is a concern for the protection of
individual autonomy and dignity. Liberty protects “the right to make fundamental
personal choices free from state interference”: Blencoe v. British Columbia (Human
Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307, at para. 54. Security of the
person encompasses “a notion of personal autonomy involving . . . control over one’s
bodily integrity free from state interference” (Rodriguez, at pp. 587-88, per Sopinka
J., referring to R. v. Morgentaler, [1988] 1 S.C.R. 30) and it is engaged by state
interference with an individual’s physical or psychological integrity, including any
state action that causes physical or serious psychological suffering (New Brunswick
(Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46, at para.
58; Blencoe, at paras. 55-57; Chaoulli, at para. 43, per Deschamps J.; para. 119, per
McLachlin C.J. and Major J.; and paras. 191 and 200, per Binnie and LeBel JJ.).
While liberty and security of the person are distinct interests, for the purpose of this
appeal they may be considered together.
[65] The trial judge concluded that the prohibition on assisted dying limited
Ms. Taylor’s s. 7 right to liberty and security of the person, by interfering with
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“fundamentally important and personal medical decision-making” (para. 1302),
imposing pain and psychological stress and depriving her of control over her bodily
integrity (paras. 1293-94). She found that the prohibition left people like Ms. Taylor
to suffer physical or psychological pain and imposed stress due to the unavailability
of physician-assisted dying, impinging on her security of the person. She further
noted that seriously and irremediably ill persons were “denied the opportunity to
make a choice that may be very important to their sense of dignity and personal
integrity” and that is “consistent with their lifelong values and that reflects their life’s
experience” (para. 1326).
[66] We agree with the trial judge. An individual’s response to a grievous and
irremediable medical condition is a matter critical to their dignity and autonomy. The
law allows people in this situation to request palliative sedation, refuse artificial
nutrition and hydration, or request the removal of life-sustaining medical equipment,
but denies them the right to request a physician’s assistance in dying. This interferes
with their ability to make decisions concerning their bodily integrity and medical care
and thus trenches on liberty. And, by leaving people like Ms. Taylor to endure
intolerable suffering, it impinges on their security of the person.
[67] The law has long protected patient autonomy in medical decision-making.
In A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30, [2009] 2
S.C.R. 181, a majority of this Court, per Abella J. (the dissent not disagreeing on this
point), endorsed the “tenacious relevance in our legal system of the principle that
competent individuals are — and should be — free to make decisions about their
bodily integrity” (para. 39). This right to “decide one’s own fate” entitles adults to
direct the course of their own medical care (para. 40): it is this principle that
underlies the concept of “informed consent” and is protected by s. 7’s guarantee of
liberty and security of the person (para. 100; see also R. v. Parker (2000), 49 O.R.
(3d) 481 (C.A.)). As noted in Fleming v. Reid (1991), 4 O.R. (3d) 74 (C.A.), the right
of medical self-determination is not vitiated by the fact that serious risks or
consequences, including death, may flow from the patient’s decision. It is this same
principle that is at work in the cases dealing with the right to refuse consent to
medical treatment, or to demand that treatment be withdrawn or discontinued: see,
e.g., Ciarlariello v. Schacter, [1993] 2 S.C.R. 119; Malette v. Shulman (1990), 72
O.R. (2d) 417 (C.A.); and Nancy B. v. Hôtel-Dieu de Québec (1992), 86 D.L.R. (4th)
385 (Que. Sup. Ct.).
[68] In Blencoe, a majority of the Court held that the s. 7 liberty interest is
engaged “where state compulsions or prohibitions affect important and fundamental
life choices” (para. 49). In A.C., where the claimant sought to refuse a potentially
lifesaving blood transfusion on religious grounds, Binnie J. noted that we may
“instinctively recoil” from the decision to seek death because of our belief in the
sanctity of human life (para. 219). But his response is equally relevant here: it is
clear that anyone who seeks physician-assisted dying because they are suffering
intolerably as a result of a grievous and irremediable medical condition “does so out
of a deeply personal and fundamental belief about how they wish to live, or cease to
live” (ibid.). The trial judge, too, described this as a decision that, for some people, is
“very important to their sense of dignity and personal integrity, that is consistent with
their lifelong values and that reflects their life’s experience” (para. 1326). This is a
decision that is rooted in their control over their bodily integrity; it represents their
deeply personal response to serious pain and suffering. By denying them the
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opportunity to make that choice, the prohibition impinges on their liberty and security
of the person. As noted above, s. 7 recognizes the value of life, but it also honours
the role that autonomy and dignity play at the end of that life. We therefore conclude
that ss. 241(b) and 14 of the Criminal Code, insofar as they prohibit physician-
assisted dying for competent adults who seek such assistance as a result of a grievous
and irremediable medical condition that causes enduring and intolerable suffering,
infringe the rights to liberty and security of the person.
[69] We note, as the trial judge did, that Lee Carter and Hollis Johnson’s
interest in liberty may be engaged by the threat of criminal sanction for their role in
Kay Carter’s death in Switzerland. However, this potential deprivation was not the
focus of the arguments raised at trial, and neither Ms. Carter nor Mr. Johnson sought
a personal remedy before this Court. Accordingly, we have confined ourselves to the
rights of those who seek assistance in dying, rather than of those who might provide
such assistance.
Summary on Section 7: Life, Liberty and Security of the Person
[70] For the foregoing reasons, we conclude that the prohibition on physician-
assisted dying deprived Ms. Taylor and others suffering from grievous and
irremediable medical conditions of the right to life, liberty and security of the person.
The remaining question under s. 7 is whether this deprivation was in accordance with
the principles of fundamental justice.
B. The Principles of Fundamental Justice
[71] Section 7 does not promise that the state will never interfere with a
person’s life, liberty or security of the person — laws do this all the time — but rather
that the state will not do so in a way that violates the principles of fundamental
justice.
[72] Section 7 does not catalogue the principles of fundamental justice to
which it refers. Over the course of 32 years of Charter adjudication, this Court has
worked to define the minimum constitutional requirements that a law that trenches on
life, liberty or security of the person must meet (Bedford, at para. 94). While the
Court has recognized a number of principles of fundamental justice, three have
emerged as central in the recent s. 7 jurisprudence: laws that impinge on life, liberty
or security of the person must not be arbitrary, overbroad, or have consequences that
are grossly disproportionate to their object.
[73] Each of these potential vices involves comparison with the object of the
law that is challenged (Bedford, at para. 123). The first step is therefore to identify
the object of the prohibition on assisted dying.
[74] The trial judge, relying on Rodriguez, concluded that the object of the
prohibition was to protect vulnerable persons from being induced to commit suicide
at a time of weakness (para. 1190). All the parties except Canada accept this
formulation of the object.
[75] Canada agrees that the prohibition is intended to protect the vulnerable,
but argues that the object of the prohibition should also be defined more broadly as
simply “the preservation of life” (R.F., at paras 66, 108, and 109). We cannot accept
this submission.
[76] First, it is incorrect to say that the majority in Rodriguez adopted “the
preservation of life” as the object of the prohibition on assisted dying. Justice Sopinka
refers to the preservation of life when discussing the objectives of s. 241(b) (pp. 590,
614). However, he later clarifies this comment, stating that “[s]ection 241(b) has as
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its purpose the protection of the vulnerable who might be induced in moments of
weakness to commit suicide” (p. 595). Sopinka J. then goes on to note that this
purpose is “grounded in the state interest in protecting life and reflects the policy of
the state that human life should not be depreciated by allowing life to be taken”
(ibid.). His remarks about the “preservation of life” in Rodriguez are best understood
as a reference to an animating social value rather than as a description of the specific
object of the prohibition.
[77] Second, defining the object of the prohibition on physician-assisted dying
as the preservation of life has the potential to short-circuit the analysis. In RJR-
MacDonald, this Court warned against stating the object of a law “too broadly” in the
s. 1 analysis, lest the resulting objective immunize the law from challenge under the
Charter (para. 144). The same applies to assessing whether the principles of
fundamental justice are breached under s. 7. If the object of the prohibition is stated
broadly as “the preservation of life”, it becomes difficult to say that the means used to
further it are overbroad or grossly disproportionate. The outcome is to this extent
foreordained.
[78] Finally, the jurisprudence requires the object of the impugned law to be
defined precisely for the purposes of s. 7. In Bedford, Canada argued that the bawdy-
house prohibition in s. 210 of the Code should be defined broadly as to “deter
prostitution” for the purposes of s. 7 (para. 131). This Court rejected this argument,
holding that the object of the prohibition should be confined to measures directly
targeted by the law (para. 132). That reasoning applies with equal force in this case.
Section 241(b) is not directed at preserving life, or even at preventing suicide —
attempted suicide is no longer a crime. Yet Canada asks us to posit that the object of
the prohibition is to preserve life, whatever the circumstances. This formulation goes
beyond the ambit of the provision itself. The direct target of the measure is the
narrow goal of preventing vulnerable persons from being induced to commit suicide
at a time of weakness.
[79] Before turning to the principles of fundamental justice at play, a general
comment is in order. In determining whether the deprivation of life, liberty and
security of the person is in accordance with the principles of fundamental justice
under s. 7, courts are not concerned with competing social interests or public benefits
conferred by the impugned law. These competing moral claims and broad societal
benefits are more appropriately considered at the stage of justification under s. 1 of
the Charter (Bedford, at paras. 123 and 125).
[80] In Bedford, the Court noted that requiring s. 7 claimants “to establish the
efficacy of the law versus its deleterious consequences on members of society as a
whole, would impose the government’s s. 1 burden on claimants under s. 7” (para.
127; see also Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9,
[2007] 1 S.C.R. 350, at paras. 21-22). A claimant under s. 7 must show that the state
has deprived them of their life, liberty or security of the person and that the
deprivation is not in accordance with the principles of fundamental justice. They
should not be tasked with also showing that these principles are “not overridden by a
valid state or communal interest in these circumstances”: T. J. Singleton, “The
Principles of Fundamental Justice, Societal Interests and Section 1 of the Charter”
(1995), 74 Can. Bar Rev. 446, at p. 449. As this Court stated in R. v. Swain, [1991] 1
S.C.R. 933, at p. 977:

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It is not appropriate for the state to thwart the exercise of the accused’s
right by attempting to bring societal interests into the principles of
fundamental justice and to thereby limit an accused’s s. 7 rights. Societal
interests are to be dealt with under s. 1 of the Charter . . . .
[81] In Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486 (the “Motor Vehicle
Reference”), Lamer J. (as he then was) explained that the principles of fundamental
justice are derived from the essential elements of our system of justice, which is itself
founded on a belief in the dignity and worth of every human person. To deprive a
person of constitutional rights arbitrarily or in a way that is overbroad or grossly
disproportionate diminishes that worth and dignity. If a law operates in this way, it
asks the right claimant to “serve as a scapegoat” (Rodriguez, at p. 621, per McLachlin
J.). It imposes a deprivation via a process that is “fundamentally unfair” to the rights
claimant (Charkaoui, at para. 22).
[82] This is not to say that such a deprivation cannot be justified under s. 1 of
the Charter. In some cases the government, for practical reasons, may only be able to
meet an important objective by means of a law that has some fundamental flaw. But
this does not concern us when considering whether s. 7 of the Charter has been
breached.
Arbitrariness
[83] The principle of fundamental justice that forbids arbitrariness targets the
situation where there is no rational connection between the object of the law and the
limit it imposes on life, liberty or security of the person: Bedford, at para. 111. An
arbitrary law is one that is not capable of fulfilling its objectives. It exacts a
constitutional price in terms of rights, without furthering the public good that is said
to be the object of the law.
[84] The object of the prohibition on physician-assisted dying is to protect the
vulnerable from ending their life in times of weakness. A total ban on assisted
suicide clearly helps achieve this object. Therefore, individuals’ rights are not limited
arbitrarily.
Overbreadth
[85] The overbreadth inquiry asks whether a law that takes away rights in a
way that generally supports the object of the law, goes too far by denying the rights of
some individuals in a way that bears no relation to the object: Bedford, at paras. 101
and 112-13. Like the other principles of fundamental justice under s. 7, overbreadth
is not concerned with competing social interests or ancillary benefits to the general
population. A law that is drawn broadly to target conduct that bears no relation to its
purpose “in order to make enforcement more practical” may therefore be overbroad
(see Bedford, at para. 113). The question is not whether Parliament has chosen the
least restrictive means, but whether the chosen means infringe life, liberty or security
of the person in a way that has no connection with the mischief contemplated by the
legislature. The focus is not on broad social impacts, but on the impact of the
measure on the individuals whose life, liberty or security of the person is trammelled.
[86] Applying this approach, we conclude that the prohibition on assisted
dying is overbroad. The object of the law, as discussed, is to protect vulnerable
persons from being induced to commit suicide at a moment of weakness. Canada
conceded at trial that the law catches people outside this class: “It is recognised that
not every person who wishes to commit suicide is vulnerable, and that there may be
people with disabilities who have a considered, rational and persistent wish to end
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their own lives” (trial reasons, at para. 1136). The trial judge accepted that Ms.
Taylor was such a person — competent, fully informed, and free from coercion or
duress (para. 16). It follows that the limitation on their rights is in at least some cases
not connected to the objective of protecting vulnerable persons. The blanket
prohibition sweeps conduct into its ambit that is unrelated to the law’s objective.
[87] Canada argues that it is difficult to conclusively identify the “vulnerable”,
and that therefore it cannot be said that the prohibition is overbroad. Indeed, Canada
asserts, “every person is potentially vulnerable” from a legislative perspective (R.F.,
at para. 115 (emphasis in original)).
[88] We do not agree. The situation is analogous to that in Bedford, where
this Court concluded that the prohibition on living on the avails of prostitution in s.
212(1)(j) of the Criminal Code was overbroad. The law in that case punished
everyone who earned a living through a relationship with a prostitute, without
distinguishing between those who would assist and protect them and those who would
be at least potentially exploitive of them. Canada there as here argued that the line
between exploitative and non-exploitative relationships was blurry, and that, as a
result, the provision had to be drawn broadly to capture its targets. The Court
concluded that that argument is more appropriately addressed under s. 1 (paras. 143-
44).
Gross Disproportionality
[89] This principle is infringed if the impact of the restriction on the
individual’s life, liberty or security of the person is grossly disproportionate to the
object of the measure. As with overbreadth, the focus is not on the impact of the
measure on society or the public, which are matters for s. 1, but on its impact on the
rights of the claimant. The inquiry into gross disproportionality compares the law’s
purpose, “taken at face value”, with its negative effects on the rights of the claimant,
and asks if this impact is completely out of sync with the object of the law (Bedford,
at para. 125). The standard is high: the law’s object and its impact may be
incommensurate without reaching the standard for gross disproportionality (Bedford,
at para. 120; Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC
1, [2002] 1 S.C.R. 3, at para. 47).
[90] The trial judge concluded that the prohibition’s negative impact on life,
liberty and security of the person was “very severe” and therefore grossly
disproportionate to its objective (para. 1378). We agree that the impact of the
prohibition is severe: it imposes unnecessary suffering on affected individuals,
deprives them of the ability to determine what to do with their bodies and how those
bodies will be treated, and may cause those affected to take their own lives sooner
than they would were they able to obtain a physician’s assistance in dying. Against
this it is argued that the object of the prohibition — to protect vulnerable persons
from being induced to commit suicide at a time of weakness — is also of high
importance. We find it unnecessary to decide whether the prohibition also violates
the principle against gross disproportionality, in light of our conclusion that it is
overbroad.
Parity
[91] The appellants ask the Court to recognize a new principle of fundamental
justice, the principle of parity, which would require that offenders committing acts of
comparable blameworthiness receive sanctions of like severity. They say the
prohibition violates this principle because it punishes the provision of physician
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assistance in dying with the highest possible criminal sanction (for culpable
homicide), while exempting other comparable end-of-life practices from any criminal
sanction.
[92] Parity in the sense invoked by the appellants has not been recognized as a
principle of fundamental justice in this Court’s jurisprudence to date. Given our
conclusion that the deprivation of Ms. Taylor’s s. 7 rights is not in accordance with
the principle against overbreadth, it is unnecessary to consider this argument and we
decline to do so.
IX. Does the Prohibition on Assisted Suicide Violate Section 15 of the Charter?
[93] Having concluded that the prohibition violates s. 7, it is unnecessary to
consider this question.
X. Section 1
[94] In order to justify the infringement of the appellants’ s. 7 rights under s. 1
of the Charter, Canada must show that the law has a pressing and substantial object
and that the means chosen are proportional to that object. A law is proportionate if
(1) the means adopted are rationally connected to that objective; (2) it is minimally
impairing of the right in question; and (3) there is proportionality between the
deleterious and salutary effects of the law: R. v. Oakes, [1986] 1 S.C.R. 103.
[95] It is difficult to justify a s. 7 violation: see Motor Vehicle Reference, at p.
518; G. (J.), at para. 99. The rights protected by s. 7 are fundamental, and “not easily
overridden by competing social interests” (Charkaoui, at para. 66). And it is hard to
justify a law that runs afoul of the principles of fundamental justice and is thus
inherently flawed (Bedford, at para. 96). However, in some situations the state may
be able to show that the public good — a matter not considered under s. 7, which
looks only at the impact on the rights claimants — justifies depriving an individual of
life, liberty or security of the person under s. 1 of the Charter. More particularly, in
cases such as this where the competing societal interests are themselves protected
under the Charter, a restriction on s. 7 rights may in the end be found to be
proportionate to its objective.
[96] Here, the limit is prescribed by law, and the appellants concede that the
law has a pressing and substantial objective. The question is whether the government
has demonstrated that the prohibition is proportionate.
[97] At this stage of the analysis, the courts must accord the legislature a
measure of deference. Proportionality does not require perfection: Saskatchewan
(Human Rights Commission) v. Whatcott, 2013 SCC 11, [2013] 1 S.C.R. 467, at para.
78. Section 1 only requires that the limits be “reasonable”. This Court has
emphasized that there may be a number of possible solutions to a particular social
problem, and suggested that a “complex regulatory response” to a social ill will
garner a high degree of deference (Hutterian Brethren, at para. 37).
[98] On the one hand, as the trial judge noted, physician-assisted death
involves complex issues of social policy and a number of competing societal values.
Parliament faces a difficult task in addressing this issue; it must weigh and balance
the perspective of those who might be at risk in a permissive regime against that of
those who seek assistance in dying. It follows that a high degree of deference is owed
to Parliament’s decision to impose an absolute prohibition on assisted death. On the
other hand, the trial judge also found — and we agree — that the absolute prohibition
could not be described as a “complex regulatory response” (para. 1180). The degree
of deference owed to Parliament, while high, is accordingly reduced.
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Rational Connection
[99] The government must show that the absolute prohibition on physician-
assisted dying is rationally connected to the goal of protecting the vulnerable from
being induced to take their own lives in times of weakness. The question is whether
the means the law adopts are a rational way for the legislature to pursue its objective.
If not, rights are limited for no good reason. To establish a rational connection, the
government need only show that there is a causal connection between the
infringement and the benefit sought “on the basis of reason or logic”: RJR-
MacDonald, at para. 153.
[100] We agree with Finch C.J.B.C. in the Court of Appeal that, where an
activity poses certain risks, prohibition of the activity in question is a rational method
of curtailing the risks (para. 175). We therefore conclude that there is a rational
connection between the prohibition and its objective.
[101] The appellants argue that the absolute nature of the prohibition is not
logically connected to the object of the provision. This is another way of saying that
the prohibition goes too far. In our view, this argument is better dealt with in the
inquiry into minimal impairment. It is clearly rational to conclude that a law that bars
all persons from accessing assistance in suicide will protect the vulnerable from being
induced to commit suicide at a time of weakness. The means here are logically
connected with the objective.
Minimal Impairment
[102] At this stage of the analysis, the question is whether the limit on the right
is reasonably tailored to the objective. The inquiry into minimal impairment asks
“whether there are less harmful means of achieving the legislative goal” (Hutterian
Brethren, at para. 53). The burden is on the government to show the absence of less
drastic means of achieving the objective “in a real and substantial manner” (ibid., at
para. 55). The analysis at this stage is meant to ensure that the deprivation of Charter
rights is confined to what is reasonably necessary to achieve the state’s object.
[103] The question in this case comes down to whether the absolute prohibition
on physician-assisted dying, with its heavy impact on the claimants’ s. 7 rights to life,
liberty and security of the person, is the least drastic means of achieving the
legislative objective. It was the task of the trial judge to determine whether a regime
less restrictive of life, liberty and security of the person could address the risks
associated with physician-assisted dying, or whether Canada was right to say that the
risks could not adequately be addressed through the use of safeguards.
[104] This question lies at the heart of this case and was the focus of much of
the evidence at trial. In assessing minimal impairment, the trial judge heard evidence
from scientists, medical practitioners, and others who were familiar with end-of-life
decision-making in Canada and abroad. She also heard extensive evidence from each
of the jurisdictions where physician-assisted dying is legal or regulated. In the trial
judge’s view, an absolute prohibition would have been necessary if the evidence
showed that physicians were unable to reliably assess competence, voluntariness, and
non-ambivalence in patients; that physicians fail to understand or apply the informed
consent requirement for medical treatment; or if the evidence from permissive
jurisdictions showed abuse of patients, carelessness, callousness, or a slippery slope,
leading to the casual termination of life (paras. 1365-66).
[105] The trial judge, however, expressly rejected these possibilities. After
reviewing the evidence, she concluded that a permissive regime with properly
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designed and administered safeguards was capable of protecting vulnerable people
from abuse and error. While there are risks, to be sure, a carefully designed and
managed system is capable of adequately addressing them:
My review of the evidence in this section, and in the preceding section
on the experience in permissive jurisdictions, leads me to conclude that
the risks inherent in permitting physician-assisted death can be identified
and very substantially minimized through a carefully-designed system
imposing stringent limits that are scrupulously monitored and enforced.
[para. 883]
[106] The trial judge found that it was feasible for properly qualified and
experienced physicians to reliably assess patient competence and voluntariness, and
that coercion, undue influence, and ambivalence could all be reliably assessed as part
of that process (paras. 795-98, 815, 837, and 843). In reaching this conclusion, she
particularly relied on the evidence on the application of the informed consent standard
in other medical decision-making in Canada, including end-of-life decision-making
(para. 1368). She concluded that it would be possible for physicians to apply the
informed consent standard to patients who seek assistance in dying, adding the
caution that physicians should ensure that patients are properly informed of their
diagnosis and prognosis and the range of available options for medical care, including
palliative care interventions aimed at reducing pain and avoiding the loss of personal
dignity (para. 831).
[107] As to the risk to vulnerable populations (such as the elderly and disabled),
the trial judge found that there was no evidence from permissive jurisdictions that
people with disabilities are at heightened risk of accessing physician-assisted dying
(paras. 852 and 1242). She thus rejected the contention that unconscious bias by
physicians would undermine the assessment process (para. 1129). The trial judge
found there was no evidence of inordinate impact on socially vulnerable populations
in the permissive jurisdictions, and that in some cases palliative care actually
improved post-legalization (para. 731). She also found that while the evidence
suggested that the law had both negative and positive impacts on physicians, it did
support the conclusion that physicians were better able to provide overall end-of-life
treatment once assisted death was legalized (para. 1271). Finally, she found no
compelling evidence that a permissive regime in Canada would result in a “practical
slippery slope” (para. 1241).
Canada’s Challenge to the Facts
[108] Canada says that the trial judge made a palpable and overriding error in
concluding that safeguards would minimize the risk associated with assisted dying.
Canada argues that the trial judge’s conclusion that the level of risk was acceptable
flies in the face of her acknowledgment that some of the evidence on safeguards was
weak, and that there was evidence of a lack of compliance with safeguards in
permissive jurisdictions. Canada also says the trial judge erred by relying on cultural
differences between Canada and other countries in finding that problems experienced
elsewhere were not likely to occur in Canada.
[109] We cannot accede to Canada’s submission. In Bedford, this Court
affirmed that a trial judge’s findings on social and legislative facts are entitled to the
same degree of deference as any other factual findings (para. 48). In our view,
Canada has not established that the trial judge’s conclusion on this point is
unsupported, arbitrary, insufficiently precise or otherwise in error. At most, Canada’s
Page 30 of 236
criticisms amount to “pointing out conflicting evidence”, which is not sufficient to
establish a palpable and overriding error (Tsilhqot’in Nation, at para. 60). We see no
reason to reject the conclusions drawn by the trial judge. They were reasonable and
open to her on the record.
The Fresh Evidence
[110] Rothstein J. granted Canada leave to file fresh evidence on developments
in Belgium since the time of the trial. This evidence took the form of an affidavit
from Professor Etienne Montero, a professor in bioethics and an expert on the
practice of euthanasia in Belgium. Canada says that Professor Montero’s evidence
demonstrates that issues with compliance and with the expansion of the criteria
granting access to assisted suicide inevitably arise, even in a system of ostensibly
strict limits and safeguards. It argues that this “should give pause to those who feel
very strict safeguards will provide adequate protection: paper safeguards are only as
strong as the human hands that carry them out” (R.F., at para. 97).
[111] Professor Montero’s affidavit reviews a number of recent, controversial,
and high-profile cases of assistance in dying in Belgium which would not fall within
the parameters suggested in these reasons, such as euthanasia for minors or persons
with psychiatric disorders or minor medical conditions. Professor Montero suggests
that these cases demonstrate that a slippery slope is at work in Belgium. In his view,
“[o]nce euthanasia is allowed, it becomes very difficult to maintain a strict
interpretation of the statutory conditions.”
[112] We are not convinced that Professor Montero’s evidence undermines the
trial judge’s findings of fact. First, the trial judge (rightly, in our view) noted that the
permissive regime in Belgium is the product of a very different medico-legal culture.
Practices of assisted death were “already prevalent and embedded in the medical
culture” prior to legalization (para. 660). The regime simply regulates a common pre-
existing practice. In the absence of a comparable history in Canada, the trial judge
concluded that it was problematic to draw inferences about the level of physician
compliance with legislated safeguards based on the Belgian evidence (para. 680).
This distinction is relevant both in assessing the degree of physician compliance and
in considering evidence with regards to the potential for a slippery slope.
[113] Second, the cases described by Professor Montero were the result of an
oversight body exercising discretion in the interpretation of the safeguards and
restrictions in the Belgian legislative regime — a discretion the Belgian Parliament
has not moved to restrict. These cases offer little insight into how a Canadian regime
might operate.
The Feasibility of Safeguards and the Possibility of a “Slippery Slope”
[114] At trial Canada went into some detail about the risks associated with the
legalization of physician-assisted dying. In its view, there are many possible sources
of error and many factors that can render a patient “decisionally vulnerable” and
thereby give rise to the risk that persons without a rational and considered desire for
death will in fact end up dead. It points to cognitive impairment, depression or other
mental illness, coercion, undue influence, psychological or emotional manipulation,
systemic prejudice (against the elderly or people with disabilities), and the possibility
of ambivalence or misdiagnosis as factors that may escape detection or give rise to
errors in capacity assessment. Essentially, Canada argues that, given the breadth of
this list, there is no reliable way to identify those who are vulnerable and those who
are not. As a result, it says, a blanket prohibition is necessary.
Page 31 of 236
[115] The evidence accepted by the trial judge does not support Canada’s
argument. Based on the evidence regarding assessment processes in comparable end-
of-life medical decision-making in Canada, the trial judge concluded that
vulnerability can be assessed on an individual basis, using the procedures that
physicians apply in their assessment of informed consent and decisional capacity in
the context of medical decision-making more generally. Concerns about decisional
capacity and vulnerability arise in all end-of-life medical decision-making. Logically
speaking, there is no reason to think that the injured, ill, and disabled who have the
option to refuse or to request withdrawal of lifesaving or life-sustaining treatment, or
who seek palliative sedation, are less vulnerable or less susceptible to biased
decision-making than those who might seek more active assistance in dying. The
risks that Canada describes are already part and parcel of our medical system.
[116] As the trial judge noted, the individual assessment of vulnerability
(whatever its source) is implicitly condoned for life-and-death decision-making in
Canada. In some cases, these decisions are governed by advance directives, or made
by a substitute decision-maker. Canada does not argue that the risk in those
circumstances requires an absolute prohibition (indeed, there is currently no federal
regulation of such practices). In A.C., Abella J. adverted to the potential vulnerability
of adolescents who are faced with life-and-death decisions about medical treatment
(paras. 72-78). Yet, this Court implicitly accepted the viability of an individual
assessment of decisional capacity in the context of that case. We accept the trial
judge’s conclusion that it is possible for physicians, with due care and attention to the
seriousness of the decision involved, to adequately assess decisional capacity.
[117] The trial judge, on the basis of her consideration of various regimes and
how they operate, found that it is possible to establish a regime that addresses the
risks associated with physician-assisted death. We agree with the trial judge that the
risks associated with physician-assisted death can be limited through a carefully
designed and monitored system of safeguards.
[118] Canada also argues that the permissive regulatory regime accepted by the
trial judge “accepts too much risk”, and that its effectiveness is “speculative” (R.F., at
para. 154). In effect, Canada argues that a blanket prohibition should be upheld
unless the appellants can demonstrate that an alternative approach eliminates all risk.
This effectively reverses the onus under s. 1, requiring the claimant whose rights are
infringed to prove less invasive ways of achieving the prohibition’s object. The
burden of establishing minimal impairment is on the government.
[119] The trial judge found that Canada had not discharged this burden. The
evidence, she concluded, did not support the contention that a blanket prohibition was
necessary in order to substantially meet the government’s objectives. We agree. A
theoretical or speculative fear cannot justify an absolute prohibition. As Deschamps
J. stated in Chaoulli, at para. 68, the claimant “d[oes] not have the burden of
disproving every fear or every threat”, nor can the government meet its burden simply
by asserting an adverse impact on the public. Justification under s. 1 is a process of
demonstration, not intuition or automatic deference to the government’s assertion of
risk (RJR-MacDonald, at para. 128).
[120] Finally, it is argued that without an absolute prohibition on assisted dying,
Canada will descend the slippery slope into euthanasia and condoned murder.
Anecdotal examples of controversial cases abroad were cited in support of this
argument, only to be countered by anecdotal examples of systems that work well.
Page 32 of 236
The resolution of the issue before us falls to be resolved not by competing anecdotes,
but by the evidence. The trial judge, after an exhaustive review of the evidence,
rejected the argument that adoption of a regulatory regime would initiate a descent
down a slippery slope into homicide. We should not lightly assume that the
regulatory regime will function defectively, nor should we assume that other criminal
sanctions against the taking of lives will prove impotent against abuse.
[121] We find no error in the trial judge’s analysis of minimal impairment. We
therefore conclude that the absolute prohibition is not minimally impairing.
Deleterious Effects and Salutary Benefits
[122] This stage of the Oakes analysis weighs the impact of the law on
protected rights against the beneficial effect of the law in terms of the greater public
good. Given our conclusion that the law is not minimally impairing, it is not
necessary to go on to this step.
[123] We conclude that s. 241(b) and s. 14 of the Criminal Code are not saved
by s. 1 of the Charter.
XI. Remedy
A. The Court of Appeal’s Proposed Constitutional Exemption
[124] The majority at the Court of Appeal suggested that this Court consider
issuing a free-standing constitutional exemption, rather than a declaration of
invalidity, should it choose to reconsider Rodriguez. The majority noted that the law
does not currently provide an avenue for relief from a “generally sound law” that has
an extraordinary effect on a small number of individuals (para. 326). It also
expressed concern that it might not be possible for Parliament to create a fully
rounded, well-balanced alternative policy within the time frame of any suspension of
a declaration of invalidity (para. 334).
[125] In our view, this is not a proper case for a constitutional exemption. We
have found that the prohibition infringes the claimants’ s. 7 rights. Parliament must
be given the opportunity to craft an appropriate remedy. The concerns raised in
Ferguson about stand-alone constitutional exemptions are equally applicable here:
issuing such an exemption would create uncertainty, undermine the rule of law, and
usurp Parliament’s role. Complex regulatory regimes are better created by Parliament
than by the courts.
B. Declaration of Invalidity
[126] We have concluded that the laws prohibiting a physician’s assistance in
terminating life (Criminal Code, s. 241(b) and s. 14) infringe Ms. Taylor’s s. 7 rights
to life, liberty and security of the person in a manner that is not in accordance with the
principles of fundamental justice, and that the infringement is not justified under s. 1
of the Charter. To the extent that the impugned laws deny the s. 7 rights of people
like Ms. Taylor they are void by operation of s. 52 of the Constitution Act, 1982. It is
for Parliament and the provincial legislatures to respond, should they so choose, by
enacting legislation consistent with the constitutional parameters set out in these
reasons.
[127] The appropriate remedy is therefore a declaration that s. 241(b) and s. 14
of the Criminal Code are void insofar as they prohibit physician-assisted death for a
competent adult person who (1) clearly consents to the termination of life; and (2) has
a grievous and irremediable medical condition (including an illness, disease or
disability) that causes enduring suffering that is intolerable to the individual in the
circumstances of his or her condition. “Irremediable”, it should be added, does not
Page 33 of 236
require the patient to undertake treatments that are not acceptable to the individual.
The scope of this declaration is intended to respond to the factual circumstances in
this case. We make no pronouncement on other situations where physician-assisted
dying may be sought.
[128] We would suspend the declaration of invalidity for 12 months.
[129] We would not accede to the appellants’ request to create a mechanism for
exemptions during the period of suspended validity. In view of the fact that Ms.
Taylor has now passed away and that none of the remaining litigants seeks a personal
exemption, this is not a proper case for creating such an exemption mechanism.
[130] A number of the interveners asked the Court to account for physicians’
freedom of conscience and religion when crafting the remedy in this case. The
Catholic Civil Rights League, the Faith and Freedom Alliance, the Protection of
Conscience Project, and the Catholic Health Alliance of Canada all expressed concern
that physicians who object to medical assistance in dying on moral grounds may be
obligated, based on a duty to act in their patients’ best interests, to participate in
physician-assisted dying. They ask us to confirm that physicians and other health-
care workers cannot be compelled to provide medical aid in dying. They would have
the Court direct the legislature to provide robust protection for those who decline to
support or participate in physician-assisted dying for reasons of conscience or
religion.
[131] The Canadian Medical Association reports that its membership is divided
on the issue of assisted suicide. The Association’s current policy states that it
supports the right of all physicians, within the bounds of the law, to follow their
conscience in deciding whether or not to provide aid in dying. It seeks to see that
policy reflected in any legislative scheme that may be put forward. While
acknowledging that the Court cannot itself set out a comprehensive regime, the
Association asks us to indicate that any legislative scheme must legally protect both
those physicians who choose to provide this new intervention to their patients, along
with those who do not.
[132] In our view, nothing in the declaration of invalidity which we propose to
issue would compel physicians to provide assistance in dying. The declaration
simply renders the criminal prohibition invalid. What follows is in the hands of the
physicians’ colleges, Parliament, and the provincial legislatures. However, we note
— as did Beetz J. in addressing the topic of physician participation in abortion in
Morgentaler — that a physician’s decision to participate in assisted dying is a matter
of conscience and, in some cases, of religious belief (pp. 95-96). In making this
observation, we do not wish to pre-empt the legislative and regulatory response to this
judgment. Rather, we underline that the Charter rights of patients and physicians will
need to be reconciled.
XII. Costs
[133] The appellants ask for special costs on a full indemnity basis to cover the
entire expense of bringing this case before the courts.
[134] The trial judge awarded the appellants special costs exceeding
$1,000,000, on the ground that this was justified by the public interest in resolving the
legal issues raised by the case. (Costs awarded on the usual party-and-party basis
would not have exceeded about $150,000.) In doing so, the trial judge relied on
Victoria (City) v. Adams, 2009 BCCA 563, 100 B.C.L.R. (4th) 28, at para. 188, which
set out four factors for determining whether to award special costs to a successful
Page 34 of 236
public interest litigant: (1) the case concerns matters of public importance that
transcend the immediate interests of the parties, and which have not been previously
resolved; (2) the plaintiffs have no personal, proprietary or pecuniary interest in the
litigation that would justify the proceeding on economic grounds; (3) the unsuccessful
parties have a superior capacity to bear the cost of the proceedings; and (4) the
plaintiffs did not conduct the litigation in an abusive, vexatious or frivolous manner.
The trial judge found that all four criteria were met in this case.
[135] The Court of Appeal saw no error in the trial judge’s reasoning on special
costs, given her judgment on the merits. However, as the majority overturned the
trial judge’s decision on the merits, it varied her costs order accordingly. The
majority ordered each party to bear its own costs.
[136] The appellants argue that special costs, while exceptional, are appropriate
in a case such as this, where the litigation raises a constitutional issue of high public
interest, is beyond the plaintiffs’ means, and was not conducted in an abusive or
vexatious manner. Without such awards, they argue, plaintiffs will not be able to
bring vital issues of importance to all Canadians before the courts, to the detriment of
justice and other affected Canadians.
[137] Against this, we must weigh the caution that “[c]ourts should not seek on
their own to bring an alternative and extensive legal aid system into being”: Little
Sisters Book and Art Emporium v. Canada (Commissioner of Customs and Revenue),
2007 SCC 2, [2007] 1 S.C.R. 38, at para. 44. With this concern in mind, we are of
the view that Adams sets the threshold for an award of special costs too low. This
Court has previously emphasized that special costs are only available in “exceptional”
circumstances: Finney v. Barreau du Québec, 2004 SCC 36, [2004] 2 S.C.R. 17, at
para. 48. The test set out in Adams would permit an award of special costs in cases
that do not fit that description. Almost all constitutional litigation concerns “matters
of public importance”. Further, the criterion that asks whether the unsuccessful party
has a superior capacity to bear the cost of the proceedings will always favour an
award against the government. Without more, special costs awards may become
routine in public interest litigation.
[138] Some reference to this Court’s jurisprudence on advance costs may be
helpful in refining the criteria for special costs on a full indemnity basis. This Court
set the test for an award of advance costs in British Columbia (Minister of Forests) v.
Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371. LeBel J. identified three
criteria necessary to justify that departure from the usual rule of costs:
1. The party seeking interim costs genuinely cannot afford to pay for the
litigation, and no other realistic option exists for bringing the issues
to trial — in short, the litigation would be unable to proceed if the
order were not made.

2. The claim to be adjudicated is prima facie meritorious; that is, the


claim is at least of sufficient merit that it is contrary to the interests of
justice for the opportunity to pursue the case to be forfeited just
because the litigant lacks financial means.

3. The issues raised transcend the individual interests of the particular


litigant, are of public importance, and have not been resolved in
previous cases. [para. 40]
Page 35 of 236
[139] The Court elaborated on this test in Little Sisters, emphasizing that issues
of public importance will not in themselves “automatically entitle a litigant to
preferential treatment with respect to costs” (para. 35). The standard is a high one:
only “rare and exceptional” cases will warrant such treatment (para. 38).
[140] In our view, with appropriate modifications, this test serves as a useful
guide to the exercise of a judge’s discretion on a motion for special costs in a case
involving public interest litigants. First, the case must involve matters of public
interest that are truly exceptional. It is not enough that the issues raised have not
previously been resolved or that they transcend the individual interests of the
successful litigant: they must also have a significant and widespread societal impact.
Second, in addition to showing that they have no personal, proprietary or pecuniary
interest in the litigation that would justify the proceedings on economic grounds, the
plaintiffs must show that it would not have been possible to effectively pursue the
litigation in question with private funding. In those rare cases, it will be contrary to
the interests of justice to ask the individual litigants (or, more likely, pro bono
counsel) to bear the majority of the financial burden associated with pursuing the
claim.
[141] Where these criteria are met, a court will have the discretion to depart
from the usual rule on costs and award special costs.
[142] Finally, we note that an award of special costs does not give the
successful litigant the right to burden the defendant with any and all expenses accrued
during the course of the litigation. As costs awards are meant to “encourage the
reasonable and efficient conduct of litigation” (Okanagan Indian Band, at para. 41),
only those costs that are shown to be reasonable and prudent will be covered by the
award.
[143] Having regard to these criteria, we are not persuaded the trial judge erred
in awarding special costs to the appellants in the truly exceptional circumstances of
this case. We would order the same with respect to the proceedings in this Court and
in the Court of Appeal.
[144] The final question is whether the trial judge erred in awarding 10 percent
of the costs against the Attorney General of British Columbia. The trial judge
acknowledged that it is unusual for courts to award costs against an Attorney General
who intervenes in constitutional litigation as of right. However, as the jurisprudence
reveals, there is no firm rule against it: see, e.g., B. (R.) v. Children’s Aid Society of
Metropolitan Toronto, [1995] 1 S.C.R. 315; Hegeman v. Carter, 2008 NWTSC 48,
74 C.P.C. (6th) 112; and Polglase v. Polglase (1979), 18 B.C.L.R. 294 (S.C.).
[145] In her reasons on costs, the trial judge explained that counsel for British
Columbia led evidence, cross-examined the appellants’ witnesses, and made written
and oral submissions on most of the issues during the course of the trial. She also
noted that British Columbia took an active role in pre-trial proceedings. She held that
an Attorney General’s responsibility for costs when involved in constitutional
litigation as of right varies with the role the Attorney General assumes in the
litigation. Where the Attorney General assumes the role of a party, the court may
find the Attorney General liable for costs in the same manner as a party (para. 96).
She concluded that the Attorney General of British Columbia had taken a full and
active role in the proceedings and should therefore be liable for costs in proportion to
the time British Columbia took during the proceedings.

Page 36 of 236
[146] We stress, as did the trial judge, that it will be unusual for a court to
award costs against Attorneys General appearing before the court as of right.
However, we see no reason to interfere with the trial judge’s decision to do so in this
case or with her apportionment of responsibility between the Attorney General of
British Columbia and the Attorney General of Canada. The trial judge was best
positioned to determine the role taken by British Columbia and the extent to which it
shared carriage of the case.
XIII. Conclusion
[147] The appeal is allowed. We would issue the following declaration, which
is suspended for 12 months:
Section 241(b) and s. 14 of the Criminal Code unjustifiably infringe s. 7 of the
Charter and are of no force or effect to the extent that they prohibit physician-assisted
death for a competent adult person who (1) clearly consents to the termination of life
and (2) has a grievous and irremediable medical condition (including an illness,
disease or disability) that causes enduring suffering that is intolerable to the
individual in the circumstances of his or her condition.
[148] Special costs on a full indemnity basis are awarded against Canada
throughout. The Attorney General of British Columbia will bear responsibility for 10
percent of the costs at trial on a full indemnity basis and will pay the costs associated
with its presence at the appellate levels on a party-and-party basis.
Appeal allowed with costs.
Solicitors for the appellants: Farris, Vaughan, Wills & Murphy,
Vancouver; Davis, Vancouver.
Solicitor for the respondent the Attorney General of Canada: Attorney
General of Canada, Ottawa.
Solicitor for the respondent the Attorney General of British Columbia:
Attorney General of British Columbia, Victoria.
Solicitor for the intervener the Attorney General of Ontario: Attorney
General of Ontario, Toronto.
Solicitor for the intervener the Attorney General of Quebec: Attorney
General of Quebec, Québec.
Solicitors for the interveners the Council of Canadians with Disabilities
and the Canadian Association for Community Living: Bakerlaw, Toronto.
Solicitors for the intervener the Christian Legal Fellowship: Miller
Thomson, Calgary.
Solicitors for the interveners the Canadian HIV/AIDS Legal Network and
the HIV & AIDS Legal Clinic Ontario: Paliare Roland Rosenberg Rothstein,
Toronto; Canadian HIV/AIDS Legal Network, Toronto; HIV & AIDS Legal Clinic
Ontario, Toronto.
Solicitor for the intervener the Association for Reformed Political Action
Canada: Association for Reformed Political Action Canada, Ottawa.
Solicitors for the intervener the Physicians’ Alliance against Euthanasia:
Norton Rose Fulbright Canada, Montréal.
Solicitors for the intervener the Evangelical Fellowship of Canada:
Geoffrey Trotter Law Corporation, Vancouver.
Solicitors for the interveners the Christian Medical and Dental Society of
Canada and the Canadian Federation of Catholic Physicians’ Societies: Vincent
Dagenais Gibson, Ottawa.
Page 37 of 236
Solicitors for the intervener Dying With Dignity: Sack Goldblatt
Mitchell, Toronto.
Solicitors for the intervener the Canadian Medical Association: Polley
Faith, Toronto.
Solicitors for the intervener the Catholic Health Alliance of Canada:
Vincent Dagenais Gibson, Ottawa.
Solicitors for the intervener the Criminal Lawyers’ Association
(Ontario): Sack Goldblatt Mitchell, Toronto.
Solicitors for the interveners the Farewell Foundation for the Right to
Die and Association québécoise pour le droit de mourir dans la dignité: Gratl &
Company, Vancouver.
Solicitors for the intervener the Canadian Civil Liberties Association:
Borden Ladner Gervais, Toronto.
Solicitors for the interveners the Catholic Civil Rights League, the Faith
and Freedom Alliance and the Protection of Conscience Project: Bennett Jones,
Toronto; Philip H. Horgan, Toronto.
Solicitors for the intervener the Alliance of People With Disabilities Who
are Supportive of Legal Assisted Dying Society: Borden Ladner Gervais, Vancouver
and Ottawa.
Solicitors for the intervener the Canadian Unitarian Council: Farris,
Vaughan, Wills & Murphy, Vancouver.
Solicitors for the interveners the Euthanasia Prevention Coalition and
the Euthanasia Prevention Coalition — British Columbia: Scher Law Professional
Corporation, Toronto.

SUMMARY:
Introduction - Brief Summary of Carter v Canada
In Carter,Footnote1 the Supreme Court of Canada (the “Court”) held that the
criminal laws prohibiting assistance in dying limited the rights to life, liberty and
security of the person under section 7 of the Canadian Charter of Rights and
Freedoms (the “Charter”) in a manner that was not demonstrably justified under
section 1 of the Charter. The Criminal Code provisions at issue were paragraph
241(b), which prohibits assisting suicide, and section 14, which provides that no
person may consent to death being inflicted on them.
Life, Liberty and Security of the Person
Consistent with its earlier Rodriguez decision,Footnote2 the Court held that the laws
prohibiting physician-assisted dying interfere with the liberty and security of the
person of individuals who have a grievous and irremediable medical condition. They
interfere with liberty by constraining the ability of such individuals to make decisions
concerning their bodily integrity and medical care, and with security of the person by
leaving such individuals to endure intolerable suffering. The Court also held that the
laws deprive some people of life by forcing them to take their own lives prematurely
for fear that they would be incapable of doing so when they reached a point where
their suffering was intolerable.
Principles of Fundamental Justice
In order to comply with section 7 of the Charter, a deprivation of life, liberty or
security of the person must accord with the principles of fundamental justice. The
principles at issue in Carter were those against arbitrariness, overbreadth and gross
disproportionality. An arbitrary law is one that “exacts a constitutional price in terms
Page 38 of 236
of rights, without furthering the public good that is said to be the object of the law.”
An overbroad law is one that may be rational in general but denies the rights of some
individuals in a way that bears no relation to the legislative purpose. A grossly
disproportionate law is one that, while it may further the legislative objective, has
negative effects on life, liberty or security of the person that are so extreme as to be
“totally out of sync” with the object of the law.Footnote5
The Court held that the prohibition on assistance in dying is not arbitrary because it
“clearly helps achieve” the legislative objective of protecting vulnerable persons from
being induced to die by suicide at a moment of weakness.Footnote6 However, the
prohibition was found to be overbroad because it applies to individuals who are not
vulnerable, thereby denying the rights of some people in a way that bears no relation
to the purpose of the law. The Court found it unnecessary to decide the issue of
gross disproportionality in view of its conclusion that the prohibition is overbroad.
Section 1
Limitations of Charter protections are constitutional if they are reasonable and
demonstrably justified pursuant to section 1 of the Charter. The Court concluded that
the section 7 limitation was not justified. Although the Court accepted that the
absolute prohibition on assistance in dying furthers a pressing and substantial
objective, it concluded that a permissive regime with properly designed and
administered safeguards was capable of protecting vulnerable people from abuse
and error and that the absolute prohibition goes farther than reasonably necessary to
achieve the legislative purpose.
Remedy
The Court explained that the appropriate remedy was: a declaration that s. 241(b)
and s. 14 of the Criminal Code are void insofar as they prohibit physician-assisted
death for a competent adult person who (1) clearly consents to the termination of life;
and (2) has a grievous and irremediable medical condition (including an illness,
disease or disability) that causes enduring suffering that is intolerable to the
individual in the circumstances of his or her condition.
The Court went on to specify that the scope of the declaration was “intended to
respond to the factual circumstances in this case” and to highlight that it was making
“no pronouncement on other situations where physician-assisted dying may be
sought.” The factual circumstances that were the focus of the Court’s analysis were
those of Gloria Taylor, who suffered from amyotrophic lateral sclerosis (ALS), a fatal
neurodegenerative disease. The Court noted elsewhere in the judgment that
assistance in dying in other situations, such as for “minors or persons with
psychiatric disorders or minor medical conditions” would not fall within the
parameters suggested in its reasons.Footnote10
The Court suspended the declaration of invalidity for 12 months to give Parliament
and provincial legislatures time to respond. It acknowledged that the legislative
response would likely involve a “complex regulatory regime” and that Parliament
“faces a difficult task” in balancing the competing social interests of those who might
be at risk in a permissive regime against those who seek assistance in
dying.Footnote11 It also suggested that a high degree of deference would be owed
to the regime ultimately adopted by Parliament.
On January 15, 2016, the Court granted a four-month extension of the suspension,
with the result that the declaration of invalidity would take effect on June 6, 2016
unless new legislation is in place prior to that date.

Page 39 of 236
SECRETARY VS MANALO
FULL TEXT:
Republic of the Philippines
Supreme Court
Manila

EN BANC

THE SECRETARY OF NATIONAL G.R. No. 180906


DEFENSE, THE CHIEF OF STAFF,
ARMED FORCES OF Present:
THE PHILIPPINES,
Petitioners, PUNO, C.J.,
QUISUMBING,
YNARES-SANTIAGO,
CARPIO,
AUSTRIA-MARTINEZ,
CORONA,
CARPIO MORALES,
- versus - AZCUNA,
TINGA,
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA,
REYES,
LEONARDO-DE CASTRO, and
RAYMOND MANALO and BRION, JJ.
REYNALDO MANALO,
Respondents. Promulgated:
October 7, 2008
x- - -- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

PUNO, C.J.:
While victims of enforced disappearances are separated from the rest of the world
behind secret walls, they are not separated from the constitutional protection of their
basic rights. The constitution is an overarching sky that covers all in its
protection. The case at bar involves the rights to life, liberty and security in the first
petition for a writ of amparo filed before this Court.
This is an appeal via Petition for Review under Rule 45 of the Rules of Court in
relation to Section 19[1] of the Rule on the Writ of Amparo, seeking to reverse and set
aside on both questions of fact and law, the Decision promulgated by the Court of
Appeals in C.A. G.R. AMPARO No. 00001, entitled Raymond Manalo and Reynaldo
Manalo, petitioners, versus The Secretary of National Defense, the Chief of Staff,
Armed Forces of the Philippines, respondents.
This case was originally a Petition for Prohibition, Injunction, and Temporary
Restraining Order (TRO)[2] filed before this Court by herein respondents (therein
petitioners) on August 23, 2007 to stop herein petitioners (therein respondents)
and/or their officers and agents from depriving them of their right to liberty and other
Page 40 of 236
basic rights. Therein petitioners also sought ancillary remedies, Protective Custody
Orders, Appointment of Commissioner, Inspection and Access Orders, and all other
legal and equitable reliefs under Article VIII, Section 5(5)[3] of the 1987 Constitution
and Rule 135, Section 6 of the Rules of Court. In our Resolution dated August 24,
2007, we (1) ordered the Secretary of the Department of National Defense and the
Chief of Staff of the AFP, their agents, representatives, or persons acting in their
stead, including but not limited to the Citizens Armed Forces Geographical Unit
(CAFGU) to submit their Comment; and (2) enjoined them from causing the arrest of
therein petitioners, or otherwise restricting, curtailing, abridging, or depriving them of
their right to life, liberty, and other basic rights as guaranteed under Article III,
Section 1[4] of the 1987 Constitution.[5]
While the August 23, 2007 Petition was pending, the Rule on the Writ
of Amparo took effect on October 24, 2007. Forthwith, therein petitioners filed a
Manifestation and Omnibus Motion to Treat Existing Petition as Amparo Petition, to
Admit Supporting Affidavits, and to Grant Interim and Final Amparo Reliefs. They
prayed that: (1) the petition be considered a Petition for the Writ of Amparo under
Sec. 26[6] of the Amparo Rule; (2) the Court issue the writ commanding therein
respondents to make a verified return within the period provided by law and
containing the specific matter required by law; (3) they be granted the interim reliefs
allowed by the Amparo Rule and all other reliefs prayed for in the petition but not
covered by the Amparo Rule; (4) the Court, after hearing, render judgment as
required in Sec. 18[7] of the Amparo Rule; and (5) all other just and equitable reliefs.[8]
On October 25, 2007, the Court resolved to treat the August 23, 2007 Petition as a
petition under the Amparo Rule and further resolved, viz:
WHEREFORE, let a WRIT OF AMPARO be issued to respondents
requiring them to file with the CA (Court of Appeals) a verified written
return within five (5) working days from service of the writ. We
REMAND the petition to the CA and designate the Division of
Associate Justice Lucas P. Bersamin to conduct the summary hearing
on the petition on November 8, 2007 at 2:00 p.m. and decide the
petition in accordance with the Rule on the Writ of Amparo.[9]
On December 26, 2007, the Court of Appeals rendered a decision in favor of
therein petitioners (herein respondents), the dispositive portion of which reads, viz:
ACCORDINGLY, the PRIVILEGE OF THE WRIT OF
AMPARO is GRANTED.
The respondents SECRETARY OF NATIONAL DEFENSE and AFP
CHIEF OF STAFF are hereby REQUIRED:
1. To furnish to the petitioners and to this Court within five days
from notice of this decision all official and unofficial reports of the
investigation undertaken in connection with their case, except
those already on file herein;
2. To confirm in writing the present places of official assignment of
M/Sgt Hilario aka Rollie Castillo and Donald Caigas within five
days from notice of this decision.
3. To cause to be produced to this Court all medical reports,
records and charts, reports of any treatment given or
recommended and medicines prescribed, if any, to the petitioners,
to include a list of medical and (sic) personnel (military and civilian)
who attended to them from February 14, 2006 until August 12,
2007 within five days from notice of this decision.
The compliance with this decision shall be made under the signature
and oath of respondent AFP Chief of Staff or his duly authorized
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deputy, the latters authority to be express and made apparent on the
face of the sworn compliance with this directive.
SO ORDERED.[10]
Hence, this appeal. In resolving this appeal, we first unfurl the facts as
alleged by herein respondents:
Respondent Raymond Manalo recounted that about one or two weeks before
February 14, 2006, several uniformed and armed soldiers and members of the
CAFGU summoned to a meeting all the residents of their barangay in San Idelfonso,
Bulacan. Respondents were not able to attend as they were not informed of the
gathering, but Raymond saw some of the soldiers when he passed by
the barangay hall.[11]
On February 14, 2006, Raymond was sleeping in their house in Buhol na Mangga,
San Ildefonso, Bulacan. At past noon, several armed soldiers wearing white shirts,
fatigue pants and army boots, entered their house and roused him. They asked him if
he was Bestre, but his mother, Ester Manalo, replied that he was Raymond, not
Bestre. The armed soldier slapped him on both cheeks and nudged him in the
stomach. He was then handcuffed, brought to the rear of his house, and forced to the
ground face down. He was kicked on the hip, ordered to stand and face up to the
light, then forcibly brought near the road. He told his mother to follow him, but three
soldiers stopped her and told her to stay.[12]
Among the men who came to take him, Raymond recognized brothers Michael de la
Cruz, Madning de la Cruz, Puti de la Cruz, and Pula de la Cruz, who all acted as
lookout.They were all members of the CAFGU and residing in Manuzon, San
Ildefonso, Bulacan. He also recognized brothers Randy Mendoza and Rudy
Mendoza, also members of the CAFGU. While he was being forcibly taken, he also
saw outside of his house two barangay councilors, Pablo Cunanan and Bernardo
Lingasa, with some soldiers and armed men.[13]
The men forced Raymond into a white L300 van. Once inside, he was
blindfolded. Before being blindfolded, he saw the faces of the soldiers who took
him. Later, in his 18 months of captivity, he learned their names. The one who drove
the van was Rizal Hilario alias Rollie Castillo, whom he estimated was about 40
years of age or older. The leader of the team who entered his house and abducted
him was Ganata. He was tall, thin, curly-haired and a bit old. Another one of his
abductors was George who was tall, thin, white-skinned and about 30 years old.[14]
The van drove off, then came to a stop. A person was brought inside the van and
made to sit beside Raymond. Both of them were beaten up. On the road, he
recognized the voice of the person beside him as his brother Reynaldos. The van
stopped several times until they finally arrived at a house. Raymond and Reynaldo
were each brought to a different room. With the doors of their rooms left open,
Raymond saw several soldiers continuously hitting his brother Reynaldo on the head
and other parts of his body with the butt of their guns for about 15 minutes. After
which, Reynaldo was brought to his (Raymonds) room and it was his (Raymonds)
turn to be beaten up in the other room. The soldiers asked him if he was a member
of the New Peoples Army. Each time he said he was not, he was hit with the butt of
their guns. He was questioned where his comrades were, how many soldiers he had
killed, and how many NPA members he had helped. Each time he answered none,
they hit him.[15]
In the next days, Raymonds interrogators appeared to be high officials as the
soldiers who beat him up would salute them, call them sir, and treat them with
respect. He was in blindfolds when interrogated by the high officials, but he saw their
faces when they arrived and before the blindfold was put on. He noticed that the
uniform of the high officials was different from those of the other soldiers. One of
Page 42 of 236
those officials was tall and thin, wore white pants, tie, and leather shoes, instead of
combat boots. He spoke in Tagalog and knew much about his parents and family,
and a habeas corpus case filed in connection with the respondents
abduction.[16] While these officials interrogated him, Raymond was not
manhandled. But once they had left, the soldier guards beat him up. When the
guards got drunk, they also manhandled respondents. During this time, Raymond
was fed only at night, usually with left-over and rotten food.[17]
On the third week of respondents detention, two men arrived while Raymond was
sleeping and beat him up. They doused him with urine and hot water, hit his stomach
with a piece of wood, slapped his forehead twice with a .45 pistol, punched him on
the mouth, and burnt some parts of his body with a burning wood. When he could no
longer endure the torture and could hardly breathe, they stopped. They then
subjected Reynaldo to the same ordeal in another room. Before their torturers left,
they warned Raymond that they would come back the next day and kill him.[18]
The following night, Raymond attempted to escape. He waited for the guards to get
drunk, then made noise with the chains put on him to see if they were still
awake. When none of them came to check on him, he managed to free his hand
from the chains and jumped through the window. He passed through a helipad and
firing range and stopped near a fishpond where he used stones to break his
chains. After walking through a forested area, he came near a river and an Iglesia ni
Kristo church. He talked to some women who were doing the laundry, asked where
he was and the road to Gapan. He was told that he was in Fort Magsaysay.[19] He
reached the highway, but some soldiers spotted him, forcing him to run away. The
soldiers chased him and caught up with him. They brought him to another place near
the entrance of what he saw was Fort Magsaysay. He was boxed repeatedly, kicked,
and hit with chains until his back bled. They poured gasoline on him. Then a so-
called Mam or Madam suddenly called, saying that she wanted to see Raymond
before he was killed. The soldiers ceased the torture and he was returned
inside Fort Magsaysay where Reynaldo was detained.[20]
For some weeks, the respondents had a respite from all the torture. Their wounds
were treated. When the wounds were almost healed, the torture resumed,
particularly when respondents guards got drunk.[21]
Raymond recalled that sometime in April until May 2006, he was detained in a room
enclosed by steel bars. He stayed all the time in that small room measuring 1 x 2
meters, and did everything there, including urinating, removing his bowels, bathing,
eating and sleeping. He counted that eighteen people[22] had been detained in
that bartolina, including his brother Reynaldo and himself.[23]
For about three and a half months, the respondents were detained
in Fort Magsaysay. They were kept in a small house with two rooms and a
kitchen. One room was made into the bartolina. The house was near the firing range,
helipad and mango trees. At dawn, soldiers marched by their house. They were also
sometimes detained in what he only knew as the DTU.[24]
At the DTU, a male doctor came to examine respondents. He checked their body
and eyes, took their urine samples and marked them. When asked how they were
feeling, they replied that they had a hard time urinating, their stomachs were aching,
and they felt other pains in their body. The next day, two ladies in white arrived. They
also examined respondents and gave them medicines, including orasol, amoxicillin
and mefenamic acid. They brought with them the results of respondents urine test
and advised them to drink plenty of water and take their medicine. The two ladies
returned a few more times. Thereafter, medicines were sent through the master of
the DTU, Master Del Rosario alias Carinyoso at Puti. Respondents were kept in the

Page 43 of 236
DTU for about two weeks. While there, he met a soldier named Efren who said that
Gen. Palparan ordered him to monitor and take care of them.[25]
One day, Rizal Hilario fetched respondents in a Revo vehicle. They, along with Efren
and several other armed men wearing fatigue suits, went to a detachment in Pinaud,
San Ildefonso, Bulacan. Respondents were detained for one or two weeks in a big
two-storey house. Hilario and Efren stayed with them. While there, Raymond was
beaten up by Hilarios men.[26]
From Pinaud, Hilario and Efren brought respondents to Sapang, San Miguel,
Bulacan on board the Revo. They were detained in a big unfinished house inside the
compound of Kapitan for about three months. When they arrived in Sapang, Gen.
Palparan talked to them. They were brought out of the house to a basketball court in
the center of the compound and made to sit. Gen. Palparan was already waiting,
seated. He was about two arms length away from respondents. He began by asking
if respondents felt well already, to which Raymond replied in the affirmative. He
asked Raymond if he knew him. Raymond lied that he did not. He then asked
Raymond if he would be scared if he were made to face Gen. Palparan. Raymond
responded that he would not be because he did not believe that Gen. Palparan was
an evil man.[27]
Raymond narrated his conversation with Gen. Palparan in his affidavit, viz:
Tinanong ako ni Gen. Palparan, Ngayon na kaharap mo na ako, di
ka ba natatakot sa akin?
Sumagot akong, Siyempre po, natatakot din
Sabi ni Gen. Palparan: Sige, bibigyan ko kayo ng isang pagkakataon
na mabuhay, bastat sundin nyo ang lahat ng sasabihin ko sabihin
mo sa magulang mo huwag pumunta sa mga rali, sa hearing, sa
Karapatan at sa Human Right dahil niloloko lang kayo. Sabihin sa
magulang at lahat sa bahay na huwag paloko doon. Tulungan kami
na kausapin si Bestre na sumuko na sa gobyerno.[28]
Respondents agreed to do as Gen. Palparan told them as they felt they
could not do otherwise. At about 3:00 in the morning, Hilario, Efren and the formers
men - the same group that abducted them - brought them to their parents
house. Raymond was shown to his parents while Reynaldo stayed in the Revo
because he still could not walk. In the presence of Hilario and other soldiers,
Raymond relayed to his parents what Gen. Palparan told him. As they were afraid,
Raymonds parents acceded. Hilario threatened Raymonds parents that if they
continued to join human rights rallies, they would never see their children again. The
respondents were then brought back to Sapang.[29]
When respondents arrived back in Sapang, Gen. Palparan was about to
leave. He was talking with the four masters who were there: Arman, Ganata, Hilario
and Cabalse.[30] When Gen. Palparan saw Raymond, he called for him. He was in a
big white vehicle. Raymond stood outside the vehicle as Gen. Palparan told him to
gain back his strength and be healthy and to take the medicine he left for him and
Reynaldo. He said the medicine was expensive at Php35.00 each, and would make
them strong. He also said that they should prove that they are on the side of the
military and warned that they would not be given another chance.[31] During his
testimony, Raymond identified Gen. Palparan by his picture.[32]
One of the soldiers named Arman made Raymond take the medicine left by Gen.
Palparan. The medicine, named Alive, was green and yellow. Raymond and
Reynaldo were each given a box of this medicine and instructed to take one capsule
a day. Arman checked if they were getting their dose of the medicine. The Alive
made them sleep each time they took it, and they felt heavy upon waking up.[33]

Page 44 of 236
After a few days, Hilario arrived again. He took Reynaldo and left Raymond at
Sapang. Arman instructed Raymond that while in Sapang, he should introduce
himself as Oscar, a military trainee from Sariaya, Quezon, assigned in
Bulacan. While there, he saw again Ganata, one of the men who abducted him from
his house, and got acquainted with other military men and civilians.[34]
After about three months in Sapang, Raymond was brought to Camp Tecson under
the 24th Infantry Battalion. He was fetched by three unidentified men in a big white
vehicle.Efren went with them. Raymond was then blindfolded. After a 30-minute ride,
his blindfold was removed. Chains were put on him and he was kept in the
barracks.[35]
The next day, Raymonds chains were removed and he was ordered to clean outside
the barracks. It was then he learned that he was in a detachment of the
Rangers. There were many soldiers, hundreds of them were training. He was also
ordered to clean inside the barracks. In one of the rooms therein, he met Sherlyn
Cadapan from Laguna. She told him that she was a student of the University of
the Philippines and was abducted in Hagonoy, Bulacan. She confided that she had
been subjected to severe torture and raped. She was crying and longing to go home
and be with her parents. During the day, her chains were removed and she was
made to do the laundry.[36]
After a week, Reynaldo was also brought to Camp Tecson. Two days from his
arrival, two other captives, Karen Empeo and Manuel Merino, arrived. Karen and
Manuel were put in the room with Allan whose name they later came to know as
Donald Caigas, called master or commander by his men in the 24th Infantry
Battalion. Raymond and Reynaldo were put in the adjoining room. At times,
Raymond and Reynaldo were threatened, and Reynaldo was beaten up. In the
daytime, their chains were removed, but were put back on at night. They were
threatened that if they escaped, their families would all be killed.[37]
On or about October 6, 2006, Hilario arrived in Camp Tecson. He told the detainees
that they should be thankful they were still alive and should continue along their
renewed life.Before the hearing of November 6 or 8, 2006, respondents were
brought to their parents to instruct them not to attend the hearing. However, their
parents had already left for Manila. Respondents were brought back
to Camp Tecson. They stayed in that camp from September 2006 to November
2006, and Raymond was instructed to continue using the name Oscar and holding
himself out as a military trainee. He got acquainted with soldiers of the 24th Infantry
Battalion whose names and descriptions he stated in his affidavit.[38]
On November 22, 2006, respondents, along with Sherlyn, Karen, and Manuel, were
transferred to a camp of the 24th Infantry Battalion in Limay, Bataan. There were
many huts in the camp. They stayed in that camp until May 8, 2007. Some soldiers
of the battalion stayed with them. While there, battalion soldiers whom Raymond
knew as Mar and Billy beat him up and hit him in the stomach with their
guns. Sherlyn and Karen also suffered enormous torture in the camp. They were all
made to clean, cook, and help in raising livestock.[39]
Raymond recalled that when Operation Lubog was launched, Caigas and some
other soldiers brought him and Manuel with them to take and kill all sympathizers of
the NPA.They were brought to Barangay Bayan-bayanan, Bataan where he
witnessed the killing of an old man doing kaingin. The soldiers said he was killed
because he had a son who was a member of the NPA and he coddled NPA
members in his house.[40] Another time, in another Operation Lubog, Raymond was
brought to Barangay Orion in a house where NPA men stayed. When they arrived,
only the old man of the house who was sick was there. They spared him and killed
only his son right before Raymonds eyes.[41]
Page 45 of 236
From Limay, Raymond, Reynaldo, Sherlyn, Karen, and Manuel were transferred to
Zambales, in a safehouse near the sea. Caigas and some of his men stayed with
them. A retired army soldier was in charge of the house. Like in Limay, the five
detainees were made to do errands and chores. They stayed in Zambales from May
8 or 9, 2007 until June 2007.[42]
In June 2007, Caigas brought the five back to the camp in Limay. Raymond,
Reynaldo, and Manuel were tasked to bring food to detainees brought to the
camp. Raymond narrated what he witnessed and experienced in the camp, viz:
Isang gabi, sinabihan kami ni Donald (Caigas) na matulog na
kami. Nakita ko si Donald na inaayos ang kanyang baril, at nilagyan ng
silenser. Sabi ni Donald na kung mayroon man kaming makita o
marinig, walang nangyari. Kinaumagahan, nakita naming ang bangkay
ng isa sa mga bihag na dinala sa kampo. Mayroong binuhos sa
kanyang katawan at itoy sinunog. Masansang ang amoy.
Makaraan ang isang lingo, dalawang bangkay and ibinaba ng mga
unipormadong sundalo mula sa 6 x 6 na trak at dinala sa loob ng
kampo. May naiwang mga bakas ng dugo habang hinihila nila ang mga
bangkay. Naamoy ko iyon nang nililinis ang bakas.
Makalipas ang isa o dalawang lingo, may dinukot sila na dalawang
Ita. Itinali sila sa labas ng kubo, piniringan, ikinadena at labis na
binugbog. Nakita kong nakatakas ang isa sa kanila at binaril siya ng
sundalo ngunit hindi siya tinamaan. Iyong gabi nakita kong pinatay nila
iyong isang Ita malapit sa Post 3; sinilaban ang bangkay at ibinaon ito.
Pagkalipas ng halos 1 buwan, 2 pang bangkay ang dinala sa
kampo. Ibinaba ang mga bangkay mula sa pick up trak, dinala ang
mga bangkay sa labas ng bakod. Kinaumagahan nakita kong
mayroong sinilaban, at napakamasangsang ang amoy.
May nakilala rin akong 1 retiradong koronel at 1 kasama niya. Pinakain
ko sila. Sabi nila sa akin na dinukot sila sa Bataan. Iyong gabi, inilabas
sila at hindi ko na sila nakita.
xxx xxx xxx
Ikinadena kami ng 3 araw. Sa ikatlong araw, nilabas ni Lat si Manuel
dahil kakausapin daw siya ni Gen. Palparan. Nakapiring si Manuel,
wala siyang suot pang-itaas, pinosasan. Nilakasan ng mga sundalo
ang tunog na galing sa istiryo ng sasakyan. Di nagtagal, narinig ko
ang hiyaw o ungol ni Manuel. Sumilip ako sa isang haligi ng kamalig
at nakita kong sinisilaban si Manuel.
Kinaumagahan, naka-kadena pa kami. Tinanggal ang mga kadena
mga 3 o 4 na araw pagkalipas. Sinabi sa amin na kaya kami
nakakadena ay dahil pinagdedesisyunan pa ng mga sundalo kung
papatayin kami o hindi.
Tinanggal ang aming kadena. Kinausap kami ni Donald. Tinanong
kami kung ano ang sabi ni Manuel sa amin. Sabi ni Donald huwag na
raw naming hanapin ang dalawang babae at si Manuel, dahil
magkakasama na yung tatlo. Sabi pa ni Donald na kami ni Reynaldo
ay magbagong buhay at ituloy namin ni Reynaldo ang trabaho. Sa
gabi, hindi na kami kinakadena.[43]
On or about June 13, 2007, Raymond and Reynaldo were brought to
Pangasinan, ostensibly to raise poultry for Donald (Caigas). Caigas told respondents
to also farm his land, in exchange for which, he would take care of the food of their
family. They were also told that they could farm a small plot adjoining his land and
sell their produce. They were no longer put in chains and were instructed to use the
Page 46 of 236
names Rommel (for Raymond) and Rod (for Reynaldo) and represent themselves as
cousins from Rizal, Laguna.[44]
Respondents started to plan their escape. They could see the highway from where
they stayed. They helped farm adjoining lands for which they were paid Php200.00
or Php400.00 and they saved their earnings. When they had saved Php1,000.00
each, Raymond asked a neighbor how he could get a cellular phone as he wanted to
exchange text messages with a girl who lived nearby. A phone was pawned to him,
but he kept it first and did not use it. They earned some more until they had saved
Php1,400.00 between them.
There were four houses in the compound. Raymond and Reynaldo were housed in
one of them while their guards lived in the other three. Caigas entrusted respondents
to Nonong, the head of the guards. Respondents house did not have electricity. They
used a lamp. There was no television, but they had a radio. In the evening of August
13, 2007, Nonong and his cohorts had a drinking session. At about 1:00 a.m.,
Raymond turned up the volume of the radio. When none of the guards awoke and
took notice, Raymond and Reynaldo proceeded towards the highway, leaving behind
their sleeping guards and barking dogs. They boarded a bus bound for Manila and
were thus freed from captivity.[45]
Reynaldo also executed an affidavit affirming the contents of Raymonds affidavit
insofar as they related to matters they witnessed together. Reynaldo added that
when they were taken from their house on February 14, 2006, he saw the faces of
his abductors before he was blindfolded with his shirt. He also named the soldiers he
got acquainted with in the 18 months he was detained. When Raymond attempted to
escape from Fort Magsaysay, Reynaldo was severely beaten up and told that they
were indeed members of the NPA because Raymond escaped. With a .45 caliber
pistol, Reynaldo was hit on the back and punched in the face until he could no longer
bear the pain.
At one point during their detention, when Raymond and Reynaldo were in Sapang,
Reynaldo was separated from Raymond and brought to Pinaud by Rizal Hilario. He
was kept in the house of Kapitan, a friend of Hilario, in a mountainous area. He was
instructed to use the name Rodel and to represent himself as a military trainee from
Meycauayan, Bulacan. Sometimes, Hilario brought along Reynaldo in his trips. One
time, he was brought to a market in San Jose, del Monte, Bulacan and made to wait
in the vehicle while Hilario was buying. He was also brought to Tondo, Manila where
Hilario delivered boxes of Alive in different houses. In these trips, Hilario drove a
black and red vehicle.Reynaldo was blindfolded while still in Bulacan, but allowed to
remove the blindfold once outside the province. In one of their trips, they passed
by Fort Magsaysay and CampTecson where Reynaldo saw the sign board, Welcome
to Camp Tecson.[46]
Dr. Benito Molino, M.D., corroborated the accounts of respondents Raymond and
Reynaldo Manalo. Dr. Molino specialized in forensic medicine and was connected
with the Medical Action Group, an organization handling cases of human rights
violations, particularly cases where torture was involved. He was requested by an
NGO to conduct medical examinations on the respondents after their escape. He first
asked them about their ordeal, then proceeded with the physical examination. His
findings showed that the scars borne by respondents were consistent with their
account of physical injuries inflicted upon them. The examination was conducted
on August 15, 2007, two days after respondents escape, and the results thereof
were reduced into writing. Dr. Molino took photographs of the scars. He testified that
he followed the Istanbul Protocol in conducting the examination.[47]

Page 47 of 236
Petitioners dispute respondents account of their alleged abduction and torture. In
compliance with the October 25, 2007 Resolution of the Court, they filed a Return of
the Writ of Amparo admitting the abduction but denying any involvement therein, viz:
13. Petitioners Raymond and Reynaldo Manalo were not at any time
arrested, forcibly abducted, detained, held incommunicado,
disappeared or under the custody by the military. This is a settled
issue laid to rest in the habeas corpus case filed in their behalf by
petitioners parents before the Court of Appeals in C.A.-G.R. SP No.
94431 against M/Sgt. Rizal Hilario aka Rollie Castillo, as head of the
24th Infantry Battalion; Maj. Gen. Jovito Palparan, as Commander of
the 7th Infantry Division in Luzon; Lt. Gen. Hermogenes Esperon, in
his capacity as the Commanding General of the Philippine Army, and
members of the Citizens Armed Forces Geographical Unit (CAFGU),
namely: Michael dela Cruz, Puti dela Cruz, Madning dela Cruz, Pula
dela Cruz, Randy Mendoza and Rudy Mendoza. The respondents
therein submitted a return of the writ On July 4, 2006, the Court of
Appeals dropped as party respondents Lt. Gen. Hermogenes C.
Esperon, Jr., then Commanding General of the Philippine Army, and
on September 19, 2006, Maj. (sic) Jovito S. Palparan, then
Commanding General, 7th Infantry Division, Philippine Army, stationed
at Fort Magsaysay, Palayan City, Nueva Ecija, upon a finding that no
evidence was introduced to establish their personal involvement in the
taking of the Manalo brothers. In a Decision dated June 27, 2007, it
exonerated M/Sgt. Rizal Hilario aka Rollie Castillo for lack of evidence
establishing his involvement in any capacity in the disappearance of
the Manalo brothers, although it held that the remaining respondents
were illegally detaining the Manalo brothers and ordered them to
release the latter.[48]
Attached to the Return of the Writ was the affidavit of therein respondent
(herein petitioner) Secretary of National Defense, which attested that he assumed
office only on August 8, 2007 and was thus unaware of the Manalo brothers alleged
abduction. He also claimed that:
7. The Secretary of National Defense does not engage in actual
military directional operations, neither does he undertake
command directions of the AFP units in the field, nor in any way
micromanage the AFP operations. The principal responsibility of
the Secretary of National Defense is focused in providing strategic
policy direction to the Department (bureaus and agencies)
including the Armed Forces of the Philippines;

8. In connection with the Writ of Amparo issued by the Honorable


Supreme Court in this case, I have directed the Chief of Staff, AFP
to institute immediate action in compliance with Section 9(d) of
the Amparo Rule and to submit report of such compliance
Likewise, in a Memorandum Directive also dated October 31,
2007, I have issued a policy directive addressed to the Chief of
Staff, AFP that the AFP should adopt the following rules of action
in the event the Writ of Amparo is issued by a competent court
against any members of the AFP:
(1) to verify the identity of the aggrieved party;
(2) to recover and preserve evidence related to the death or
disappearance of the person identified in the petition which
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may aid in the prosecution of the person or persons
responsible;
(3) to identify witnesses and obtain statements from them
concerning the death or disappearance;
(4) to determine the cause, manner, location and time of death or
disappearance as well as any pattern or practice that may
have brought about the death or disappearance;
(5) to identify and apprehend the person or persons involved in
the death or disappearance; and
(6) to bring the suspected offenders before a competent court.[49]

Therein respondent AFP Chief of Staff also submitted his own affidavit,
attached to the Return of the Writ, attesting that he received the above directive of
therein respondent Secretary of National Defense and that acting on this directive,
he did the following:
3.1. As currently designated Chief of Staff, Armed Forces of the
Philippines (AFP), I have caused to be issued directive to the units of
the AFP for the purpose of establishing the circumstances of the
alleged disappearance and the recent reappearance of the petitioners.
3.2. I have caused the immediate investigation and submission of the
result thereof to Higher headquarters and/or direct the immediate
conduct of the investigation on the matter by the concerned unit/s,
dispatching Radio Message on November 05, 2007, addressed to the
Commanding General, Philippine Army (Info: COMNOLCOM, CG,
71D PA and CO 24 IB PA). A Copy of the Radio Message is attached
as ANNEX 3 of this Affidavit.
3.3. We undertake to provide result of the investigations conducted or
to be conducted by the concerned unit relative to the circumstances of
the alleged disappearance of the persons in whose favor the Writ of
Amparo has been sought for as soon as the same has been furnished
Higher headquarters.
3.4. A parallel investigation has been directed to the same units
relative to another Petition for the Writ of Amparo (G.R. No. 179994)
filed at the instance of relatives of a certain Cadapan and Empeo
pending before the Supreme Court.
3.5. On the part of the Armed Forces, this respondent will exert
earnest efforts to establish the surrounding circumstances of the
disappearances of the petitioners and to bring those responsible,
including any military personnel if shown to have participated or had
complicity in the commission of the complained acts, to the bar of
justice, when warranted by the findings and the competent evidence
that may be gathered in the process.[50]
Also attached to the Return of the Writ was the affidavit of Lt. Col. Felipe
Anontado, INF (GSC) PA, earlier filed in G.R. No. 179994, another amparo case in
this Court, involving Cadapan, Empeo and Merino, which averred among others, viz:
10) Upon reading the allegations in the Petition implicating the
24th Infantry Batallion detachment as detention area, I immediately
went to the 24th IB detachment in Limay, Bataan and found no
untoward incidents in the area nor any detainees by the name of
Sherlyn Cadapan, Karen Empeo and Manuel Merino being held
captive;

Page 49 of 236
11) There was neither any reports of any death of Manuel Merino in
the 24th IB in Limay, Bataan;
12) After going to the 24th IB in Limay, Bataan, we made further
inquiries with the Philippine National Police, Limay, Bataan regarding
the alleged detentions or deaths and were informed that none was
reported to their good office;
13) I also directed Company Commander 1st Lt. Romeo Publico to
inquire into the alleged beachhouse in Iba, Zambales also alleged to
be a detention place where Sherlyn Cadapan, Karen Empeo and
Manuel Merino were detained. As per the inquiry, however, no such
beachhouse was used as a detention place found to have been used
by armed men to detain Cadapan, Empeo and Merino.[51]

It was explained in the Return of the Writ that for lack of sufficient time, the affidavits
of Maj. Gen Jovito S. Palparan (Ret.), M/Sgt. Rizal Hilario aka Rollie Castillo, and
other persons implicated by therein petitioners could not be secured in time for the
submission of the Return and would be subsequently submitted.[52]
Herein petitioners presented a lone witness in the summary hearings, Lt. Col. Ruben
U. Jimenez, Provost Marshall, 7th Infantry Division, Philippine Army, based
in FortMagsaysay, Palayan City, Nueva Ecija. The territorial jurisdiction of this
Division covers Nueva Ecija, Aurora, Bataan, Bulacan, Pampanga, Tarlac and a
portion of Pangasinan.[53] The 24th Infantry Battalion is part of the 7th Infantry
Division.[54]
On May 26, 2006, Lt. Col. Jimenez was directed by the Commanding General of the
7th Infantry Division, Maj. Gen. Jovito Palaran,[55] through his Assistant Chief of
Staff,[56]to investigate the alleged abduction of the respondents by CAFGU auxiliaries
under his unit, namely: CAA Michael de la Cruz; CAA Roman de la Cruz, aka Puti;
CAA Maximo de la Cruz, aka Pula; CAA Randy Mendoza; ex-CAA Marcelo de la
Cruz aka Madning; and a civilian named Rudy Mendoza. He was directed to
determine: (1) the veracity of the abduction of Raymond and Reynaldo Manalo by
the alleged elements of the CAFGU auxiliaries; and (2) the administrative liability of
said auxiliaries, if any.[57] Jimenez testified that this particular investigation was
initiated not by a complaint as was the usual procedure, but because the
Commanding General saw news about the abduction of the Manalo brothers on the
television, and he was concerned about what was happening within his territorial
jurisdiction.[58]
Jimenez summoned all six implicated persons for the purpose of having them
execute sworn statements and conducting an investigation on May 29, 2006.[59] The
investigation started at 8:00 in the morning and finished at 10:00 in the
evening.[60] The investigating officer, Technical Sgt. Eduardo Lingad, took the
individual sworn statements of all six persons on that day. There were no other
sworn statements taken, not even of the Manalo family, nor were there other
witnesses summoned and investigated[61] as according to Jimenez, the directive to
him was only to investigate the six persons.[62]
Jimenez was beside Lingad when the latter took the statements.[63] The six persons
were not known to Jimenez as it was in fact his first time to meet them. [64] During the
entire time that he was beside Lingad, a subordinate of his in the Office of the
Provost Marshall, Jimenez did not propound a single question to the six persons.[65]
Jimenez testified that all six statements were taken on May 29, 2006, but Marcelo
Mendoza and Rudy Mendoza had to come back the next day to sign their statements
as the printing of their statements was interrupted by a power failure. Jimenez
testified that the two signed on May 30, 2006, but the jurats of their statements
Page 50 of 236
indicated that they were signed on May 29, 2006.[66] When the Sworn Statements
were turned over to Jimenez, he personally wrote his investigation report. He began
writing it in the afternoon of May 30, 2006 and finished it on June 1, 2006.[67] He then
gave his report to the Office of the Chief of Personnel.[68]
As petitioners largely rely on Jimenezs Investigation Report dated June 1, 2006 for
their evidence, the report is herein substantially quoted:
III. BACKGROUND OF THE CASE
4. This pertains to the abduction of RAYMOND MANALO and
REYNALDO MANALO who were forcibly taken from their respective
homes in Brgy. Buhol na Mangga, San Ildefonso, Bulacan on 14
February 2006 by unidentified armed men and thereafter were forcibly
disappeared. After the said incident, relatives of the victims filed a
case for Abduction in the civil court against the herein suspects:
Michael dela Cruz, Madning dela Cruz, Puti Dela Cruz, Pula Dela
Cruz, Randy Mendoza and Rudy Mendoza as alleged members of the
Citizen Armed Forces Geographical Unit (CAFGU).
a) Sworn statement of CAA Maximo F. dela Cruz, aka Pula dated 29
May 2006 in (Exhibit B) states that he was at Sitio Mozon,
Brgy. Bohol na Mangga, San Ildefonso, Bulacan doing the concrete
building of a church located nearby his residence, together with some
neighbor thereat. He claims that on 15 February 2006, he was being
informed by Brgy. Kagawad Pablo Umayan about the abduction of the
brothers Raymond and Reynaldo Manalo. As to the allegation that he
was one of the suspects, he claims that they only implicated him
because he was a CAFGU and that they claimed that those who
abducted the Manalo brothers are members of the Military and
CAFGU. Subject vehemently denied any participation or involvement
on the abduction of said victims.
b) Sworn statement of CAA Roman dela Cruz y Faustino Aka Puti
dtd 29 May 2006 in (Exhibit C) states that he is a resident of Sitio
Muzon, Brgy. Buhol na Mangga, San Ildefonso, Bulacan and a CAA
member based at Biak na Bato Detachment, San Miguel, Bulacan. He
claims that Raymond and Reynaldo Manalo being his neighbors are
active members/sympathizers of the CPP/NPA and he also knows
their elder Rolando Manalo @ KA BESTRE of being an NPA Leader
operating in their province. That at the time of the alleged abduction of
the two (2) brothers and for accusing him to be one of the suspects,
he claims that on February 14, 2006, he was one of those working at
the concrete chapel being constructed nearby his residence. He
claims further that he just came only to know about the incident on
other day (15 Feb 06) when he was being informed by Kagawad
Pablo Kunanan. That subject CAA vehemently denied any
participation about the incident and claimed that they only implicated
him because he is a member of the CAFGU.
c) Sworn Statement of CAA Randy Mendoza y Lingas dated 29 May
2006 in (Exhibit O) states that he is a resident of Brgy. Buhol na
Mangga, San Ildefonso, Bulacan and a member of CAFGU based
at Biak na Bato Detachment. That being a neighbor, he was very
much aware about the background of the two (2) brothers Raymond
and Reynaldo as active supporters of the CPP NPA in their Brgy. and
he also knew their elder brother KUMANDER BESTRE TN: Rolando
Manalo. Being one of the accused, he claims that on 14 February
Page 51 of 236
2006, he was at Brgy. Magmarate, San Miguel, Bulacan in the house
of his aunt and he learned only about the incident when he arrived
home in their place. He claims further that the only reason why they
implicated him was due to the fact that his mother has filed a criminal
charge against their brother Rolando Manalo @ KA BESTRE who is
an NPA Commander who killed his father and for that reason they
implicated him in support of their brother. Subject CAA vehemently
denied any involvement on the abduction of said Manalo brothers.
d) Sworn Statement of Rudy Mendoza y Lingasa dated May 29,
2006 in (Exhibit E) states that he is a resident of Brgy. Marungko,
Angat, Bulacan. He claims that Raymond and Reynaldo Manalo are
familiar to him being his barriomate when he was still unmarried and
he knew them since childhood. Being one of the accused, he claims
that on 14 February 2006, he was at his residence in Brgy. Marungko,
Angat, Bulacan. He claims that he was being informed only about the
incident lately and he was not aware of any reason why the two (2)
brothers were being abducted by alleged members of the military and
CAFGU. The only reason he knows why they implicated him was
because there are those people who are angry with their family
particularly victims of summary execution (killing) done by their
brother @ KA Bestre Rolando Manalo who is an NPA leader. He
claims further that it was their brother @ KA BESTRE who killed his
father and he was living witness to that incident. Subject civilian
vehemently denied any involvement on the abduction of the Manalo
brothers.
e) Sworn statement of Ex-CAA Marcelo dala Cruz dated 29 May
2006 in (Exhibit F) states that he is a resident of Sitio Muzon, Brgy.
Buhol na Mangga, San Ildefonso, Bulacan, a farmer and a former
CAA based at Biak na Bato, San Miguel, Bulacan. He claims that
Raymond and Reynaldo Manalo are familiar to him being their barrio
mate. He claims further that they are active supporters of CPP/NPA
and that their brother Rolando Manalo @ KA BESTRE is an NPA
leader. Being one of the accused, he claims that on 14 February
2006, he was in his residence at Sitio Muzon, Brgy. Buhol na Mangga,
San Ildefonso, Bulacan. That he vehemently denied any participation
of the alleged abduction of the two (2) brothers and learned only
about the incident when rumors reached him by his barrio mates. He
claims that his implication is merely fabricated because of his
relationship to Roman and Maximo who are his brothers.
f) Sworn statement of Michael dela Cruz y Faustino dated 29 May
2006 in (Exhibit G) states that he is a resident of Sitio Muzon, Brgy.
Buhol na Mangga, San Ildefonso, Bulacan, the Chief of Brgy. Tanod
and a CAFGU member based at Biak na Bato Detachment, San
Miguel, Bulacan. He claims that he knew very well the brothers
Raymond and Reynaldo Manalo in their barangay for having been the
Tanod Chief for twenty (20) years. He alleged further that they are
active supporters or sympathizers of the CPP/NPA and whose elder
brother Rolando Manalo @ KA BESTRE is an NPA leader operating
within the area. Being one of the accused, he claims that on 14 Feb
2006 he was helping in the construction of their concrete chapel in
their place and he learned only about the incident which is the
abduction of Raymond and Reynaldo Manalo when one of the Brgy.
Page 52 of 236
Kagawad in the person of Pablo Cunanan informed him about the
matter. He claims further that he is truly innocent of the allegation
against him as being one of the abductors and he considers
everything fabricated in order to destroy his name that remains loyal
to his service to the government as a CAA member.
IV. DISCUSSION
5. Based on the foregoing statements of respondents in this particular
case, the proof of linking them to the alleged abduction and
disappearance of Raymond and Reynaldo Manalo that transpired
on 14 February 2006 at Sitio Muzon, Brgy. Buhol na Mangga, San
Ildefonso, Bulacan, is unsubstantiated. Their alleged involvement
theretofore to that incident is considered doubtful, hence, no basis to
indict them as charged in this investigation.
Though there are previous grudges between each families (sic) in the
past to quote: the killing of the father of Randy and Rudy Mendoza by
@ KA BESTRE TN: Rolando Manalo, this will not suffice to establish
a fact that they were the ones who did the abduction as a form of
revenge. As it was also stated in the testimony of other accused
claiming that the Manalos are active sympathizers/supporters of the
CPP/NPA, this would not also mean, however, that in the first place,
they were in connivance with the abductors. Being their neighbors and
as members of CAFGUs, they ought to be vigilant in protecting their
village from any intervention by the leftist group, hence inside their
village, they were fully aware of the activities of Raymond and
Reynaldo Manalo in so far as their connection with the CPP/NPA is
concerned.
V. CONCLUSION
6. Premises considered surrounding this case shows that the alleged
charges of abduction committed by the above named respondents
has not been established in this investigation. Hence, it lacks merit to
indict them for any administrative punishment and/or criminal
liability. It is therefore concluded that they are innocent of the charge.
VI. RECOMMENDATIONS
7. That CAAs Michael F. dela Cruz, Maximo F. Dela Cruz, Roman
dela Cruz, Randy Mendoza, and two (2) civilians Maximo F. Dela
Cruz and Rudy L. Mendoza be exonerated from the case.
8. Upon approval, this case can be dropped and closed.[69]
In this appeal under Rule 45, petitioners question the appellate courts
assessment of the foregoing evidence and assail the December 26, 2007 Decision
on the following grounds, viz:
I.

THE COURT OF APPEALS SERIOUSLY AND GRIEVOUSLY


ERRED IN BELIEVING AND GIVING FULL FAITH AND CREDIT TO
THE INCREDIBLE, UNCORROBORATED, CONTRADICTED, AND
OBVIOUSLY SCRIPTED, REHEARSED AND SELF-SERVING
AFFIDAVIT/TESTIMONY OF HEREIN RESPONDENT RAYMOND
MANALO.

II.

Page 53 of 236
THE COURT OF APPEALS SERIOUSLY AND GRIEVOUSLY
ERRED IN REQUIRING RESPONDENTS (HEREIN PETITIONERS)
TO: (A) FURNISH TO THE MANALO BROTHER(S) AND TO THE
COURT OF APPEALS ALL OFFICIAL AND UNOFFICIAL REPORTS
OF THE INVESTIGATION UNDERTAKEN IN CONNECTION WITH
THEIR CASE, EXCEPT THOSE ALREADY IN FILE WITH THE
COURT; (B) CONFIRM IN WRITING THE PRESENT PLACES OF
OFFICIAL ASSIGNMENT OF M/SGT. HILARIO aka ROLLIE
CASTILLO AND DONALD CAIGAS; AND (C) CAUSE TO BE
PRODUCED TO THE COURT OF APPEALS ALL MEDICAL
REPORTS, RECORDS AND CHARTS, AND REPORTS OF ANY
TREATMENT GIVEN OR RECOMMENDED AND MEDICINES
PRESCRIBED, IF ANY, TO THE MANALO BROTHERS, TO
INCLUDE A LIST OF MEDICAL PERSONNEL (MILITARY AND
CIVILIAN) WHO ATTENDED TO THEM FROM FEBRUARY 14, 2006
UNTIL AUGUST 12, 2007.[70]

The case at bar is the first decision on the application of the Rule on the Writ
of Amparo (Amparo Rule). Let us hearken to its beginning.
The adoption of the Amparo Rule surfaced as a recurring proposition in the
recommendations that resulted from a two-day National Consultative Summit on
Extrajudicial Killings and Enforced Disappearances sponsored by the Court on July
16-17, 2007. The Summit was envisioned to provide a broad and fact-based
perspective on the issue of extrajudicial killings and enforced
disappearances,[71] hence representatives from all sides of the political and social
spectrum, as well as all the stakeholders in the justice system [72] participated in
mapping out ways to resolve the crisis.
On October 24, 2007, the Court promulgated the Amparo Rule in light of the
prevalence of extralegal killing and enforced disappearances.[73] It was an exercise
for the first time of the Courts expanded power to promulgate rules to protect our
peoples constitutional rights, which made its maiden appearance in the 1987
Constitution in response to the Filipino experience of the martial law regime. [74] As
the Amparo Rule was intended to address the intractable problem of extralegal
killings and enforced disappearances, its coverage, in its present form, is confined to
these two instances or to threats thereof. Extralegal killings are killings committed
without due process of law, i.e., without legal safeguards or judicial
proceedings.[75] On the other hand, enforced disappearances are attended by the
following characteristics: an arrest, detention or abduction of a person by a
government official or organized groups or private individuals acting with the direct or
indirect acquiescence of the government; the refusal of the State to disclose the fate
or whereabouts of the person concerned or a refusal to acknowledge the deprivation
of liberty which places such persons outside the protection of law.[76]
The writ of amparo originated in Mexico. Amparo literally means protection in
Spanish.[77] In 1837, de Tocquevilles Democracy in America became available
in Mexico and stirred great interest. Its description of the practice of judicial review in
the U.S. appealed to many Mexican jurists.[78] One of them, Manuel Crescencio Rejn,
drafted a constitutional provision for his native state, Yucatan,[79] which granted
judges the power to protect all persons in the enjoyment of their constitutional and
legal rights. This idea was incorporated into the national constitution in 1847, viz:
The federal courts shall protect any inhabitant of the Republic in
the exercise and preservation of those rights granted to him by this
Constitution and by laws enacted pursuant hereto, against attacks by
Page 54 of 236
the Legislative and Executive powers of the federal or state
governments, limiting themselves to granting protection in the specific
case in litigation, making no general declaration concerning the
statute or regulation that motivated the violation.[80]
Since then, the protection has been an important part of Mexican
constitutionalism.[81] If, after hearing, the judge determines that a constitutional right
of the petitioner is being violated, he orders the official, or the officials superiors, to
cease the violation and to take the necessary measures to restore the petitioner to
the full enjoyment of the right in question. Amparo thus combines the principles of
judicial review derived from the U.S. with the limitations on judicial power
characteristic of the civil law tradition which prevails in Mexico. It enables courts to
enforce the constitution by protecting individual rights in particular cases, but
prevents them from using this power to make law for the entire nation.[82]
The writ of amparo then spread throughout the Western Hemisphere, gradually
evolving into various forms, in response to the particular needs of each country. [83] It
became, in the words of a justice of the Mexican Federal Supreme Court, one piece
of Mexicos self-attributed task of conveying to the worlds legal heritage that
institution which, as a shield of human dignity, her own painful history
conceived.[84] What began as a protection against acts or omissions of public
authorities in violation of constitutional rights later evolved for several purposes:
(1) amparo libertad for the protection of personal freedom, equivalent to the habeas
corpus writ; (2) amparo contra leyes for the judicial review of the constitutionality of
statutes; (3) amparo casacion for the judicial review of the constitutionality and
legality of a judicial decision; (4) amparo administrativo for the judicial review of
administrative actions; and (5) amparo agrario for the protection of peasants rights
derived from the agrarian reform process.[85]
In Latin American countries, except Cuba, the writ of amparo has been
constitutionally adopted to protect against human rights abuses especially committed
in countries under military juntas. In general, these countries adopted an all-
encompassing writ to protect the whole gamut of constitutional rights, including
socio-economic rights.[86] Other countries like Colombia, Chile, Germany and Spain,
however, have chosen to limit the protection of the writ of amparo only to some
constitutional guarantees or fundamental rights.[87]
In the Philippines, while the 1987 Constitution does not explicitly provide for the writ
of amparo, several of the above amparo protections are guaranteed by our
charter. The second paragraph of Article VIII, Section 1 of the 1987 Constitution, the
Grave Abuse Clause, provides for the judicial power to determine whether or not
there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government. The
Clause accords a similar general protection to human rights extended by the amparo
contra leyes, amparo casacion, and amparo administrativo. Amparo libertad is
comparable to the remedy of habeas corpus found in several provisions of the 1987
Constitution.[88] The Clause is an offspring of the U.S. common law tradition of
judicial review, which finds its roots in the 1803 case of Marbury v. Madison.[89]
While constitutional rights can be protected under the Grave Abuse Clause through
remedies of injunction or prohibition under Rule 65 of the Rules of Court and a
petition for habeas corpus under Rule 102,[90] these remedies may not be adequate
to address the pestering problem of extralegal killings and enforced
disappearances. However, with the swiftness required to resolve a petition for a writ
of amparo through summary proceedings and the availability of appropriate interim
and permanent reliefs under the AmparoRule, this hybrid writ of the common law and
civil law traditions - borne out of the Latin American and Philippine experience of
Page 55 of 236
human rights abuses - offers a better remedy to extralegal killings and enforced
disappearances and threats thereof. The remedy provides rapid judicial relief as it
partakes of a summary proceeding that requires only substantial evidence to make
the appropriate reliefs available to the petitioner; it is not an action to determine
criminal guilt requiring proof beyond reasonable doubt, or liability for damages
requiring preponderance of evidence, or administrative responsibility requiring
substantial evidence that will require full and exhaustive proceedings.[91]
The writ of amparo serves both preventive and curative roles in addressing the
problem of extralegal killings and enforced disappearances. It is preventive in that it
breaks the expectation of impunity in the commission of these offenses; it is curative
in that it facilitates the subsequent punishment of perpetrators as it will inevitably
yield leads to subsequent investigation and action. In the long run, the goal of both
the preventive and curative roles is to deter the further commission of extralegal
killings and enforced disappearances.
In the case at bar, respondents initially filed an action for Prohibition, Injunction, and
Temporary Restraining Order[92] to stop petitioners and/or their officers and agents
from depriving the respondents of their right to liberty and other basic rights on
August 23, 2007,[93] prior to the promulgation of the Amparo Rule. They also sought
ancillary remedies including Protective Custody Orders, Appointment of
Commissioner, Inspection and Access Orders and other legal and equitable
remedies under Article VIII, Section 5(5) of the 1987 Constitution and Rule 135,
Section 6 of the Rules of Court. When the Amparo Rule came into effect on October
24, 2007, they moved to have their petition treated as an amparo petition as it would
be more effective and suitable to the circumstances of the Manalo brothers enforced
disappearance. The Court granted their motion.
With this backdrop, we now come to the arguments of the petitioner. Petitioners first
argument in disputing the Decision of the Court of Appeals states, viz:
The Court of Appeals seriously and grievously erred in believing and
giving full faith and credit to the incredible uncorroborated,
contradicted, and obviously scripted, rehearsed and self-serving
affidavit/testimony of herein respondent Raymond Manalo.[94]

In delving into the veracity of the evidence, we need to mine and refine the
ore of petitioners cause of action, to determine whether the evidence presented is
metal-strong to satisfy the degree of proof required.
Section 1 of the Rule on the Writ of Amparo provides for the following
causes of action, viz:
Section 1. Petition. The petition for a writ of amparo is a remedy
available to any person whose right to life, liberty and security is
violated or threatened with violation by an unlawful act or omission
of a public official or employee, or of a private individual or entity.

The writ shall cover extralegal killings and enforced disappearances


or threats thereof. (emphasis supplied)

Sections 17 and 18, on the other hand, provide for the degree of proof required, viz:
Sec. 17. Burden of Proof and Standard of Diligence Required. The
parties shall establish their claims by substantial evidence.

xxx xxx xxx


Sec. 18. Judgment. If the allegations in the petition are proven by
substantial evidence, the court shall grant the privilege of the writ
Page 56 of 236
and such reliefs as may be proper and appropriate; otherwise, the
privilege shall be denied. (emphases supplied)

Substantial evidence has been defined as such relevant evidence as a reasonable


mind might accept as adequate to support a conclusion.[95]
After careful perusal of the evidence presented, we affirm the findings of the Court of
Appeals that respondents were abducted from their houses in Sito Muzon, Brgy.
Buhol na Mangga, San Ildefonso, Bulacan on February 14, 2006 and were
continuously detained until they escaped on August 13, 2007. The abduction,
detention, torture, and escape of the respondents were narrated by respondent
Raymond Manalo in a clear and convincing manner. His account is dotted with
countless candid details of respondents harrowing experience and tenacious will to
escape, captured through his different senses and etched in his memory. A few
examples are the following: Sumilip ako sa isang haligi ng kamalig at nakita kong
sinisilaban si Manuel.[96] (N)ilakasan ng mga sundalo ang tunog na galing sa istiryo
ng sasakyan. Di nagtagal, narinig ko ang hiyaw o ungol ni Manuel.[97] May naiwang
mga bakas ng dugo habang hinihila nila ang mga bangkay. Naamoy ko iyon nang
nililinis ang bakas.[98] Tumigil ako sa may palaisdaan kung saan ginamit ko ang bato
para tanggalin ang mga kadena.[99] Tinanong ko sa isang kapit-bahay kung paano
ako makakakuha ng cell phone; sabi ko gusto kong i-text ang isang babae na
nakatira sa malapit na lugar.[100]
We affirm the factual findings of the appellate court, largely based on respondent
Raymond Manalos affidavit and testimony, viz:
the abduction was perpetrated by armed men who were sufficiently
identified by the petitioners (herein respondents) to be military
personnel and CAFGU auxiliaries. Raymond recalled that the six
armed men who barged into his house through the rear door were
military men based on their attire of fatigue pants and army boots, and
the CAFGU auxiliaries, namely: Michael de la Cruz, Madning de la
Cruz, Puti de la Cruz and Pula de la Cruz, all members of the CAFGU
and residents of Muzon, San Ildefonso, Bulacan, and the brothers
Randy Mendoza and Rudy Mendoza, also CAFGU members, served
as lookouts during the abduction. Raymond was sure that three of the
six military men were Ganata, who headed the abducting team, Hilario,
who drove the van, and George. Subsequent incidents of their long
captivity, as narrated by the petitioners, validated their assertion of the
participation of the elements of the 7th Infantry Division, Philippine
Army, and their CAFGU auxiliaries.
We are convinced, too, that the reason for the abduction was the
suspicion that the petitioners were either members or sympathizers of
the NPA, considering that the abductors were looking for Ka Bestre,
who turned out to be Rolando, the brother of petitioners.
The efforts exerted by the Military Command to look into the abduction
were, at best, merely superficial. The investigation of the Provost
Marshall of the 7th Infantry Division focused on the one-sided version of
the CAFGU auxiliaries involved. This one-sidedness might be due to
the fact that the Provost Marshall could delve only into the participation
of military personnel, but even then the Provost Marshall should have
refrained from outrightly exculpating the CAFGU auxiliaries he
perfunctorily investigated
Gen. Palparans participation in the abduction was also established. At
the very least, he was aware of the petitioners captivity at the hands of
Page 57 of 236
men in uniform assigned to his command. In fact, he or any other
officer tendered no controversion to the firm claim of Raymond that he
(Gen. Palparan) met them in person in a safehouse in Bulacan and told
them what he wanted them and their parents to do or not to be
doing. Gen. Palparans direct and personal role in the abduction might
not have been shown but his knowledge of the dire situation of the
petitioners during their long captivity at the hands of military personnel
under his command bespoke of his indubitable command policy that
unavoidably encouraged and not merely tolerated the abduction of
civilians without due process of law and without probable cause.
In the habeas proceedings, the Court, through the Former Special
Sixth Division (Justices Buzon, chairman; Santiago-Lagman, Sr.,
member; and Romilla-Lontok, Jr., member/ponente.) found no clear
and convincing evidence to establish that M/Sgt. Rizal Hilario had
anything to do with the abduction or the detention. Hilarios involvement
could not, indeed, be then established after Evangeline Francisco, who
allegedly saw Hilario drive the van in which the petitioners were
boarded and ferried following the abduction, did not testify. (See the
decision of the habeas proceedings at rollo, p. 52)
However, in this case, Raymond attested that Hilario drove the white L-
300 van in which the petitioners were brought away from their houses
on February 14, 2006. Raymond also attested that Hilario participated
in subsequent incidents during the captivity of the petitioners, one of
which was when Hilario fetched them from Fort Magsaysay on board a
Revo and conveyed them to a detachment in Pinaud, San Ildefonso,
Bulacan where they were detained for at least a week in a house of
strong materials (Exhibit D, rollo, p. 205) and then Hilario (along with
Efren) brought them to Sapang, San Miguel, Bulacan on board the
Revo, to an unfinished house inside the compound of Kapitan where
they were kept for more or less three months. (Exhibit D, rollo, p.
205) It was there where the petitioners came face to face with Gen.
Palparan. Hilario and Efren also brought the petitioners one early
morning to the house of the petitioners parents, where only Raymond
was presented to the parents to relay the message from Gen. Palparan
not to join anymore rallies. On that occasion, Hilario warned the
parents that they would not again see their sons should they join any
rallies to denounce human rights violations. (Exhibit D, rollo, pp. 205-
206) Hilario was also among four Master Sergeants (the others being
Arman, Ganata and Cabalse) with whom Gen. Palparan conversed on
the occasion when Gen. Palparan required Raymond to take the
medicines for his health. (Exhibit D, rollo, p. 206) There were other
occasions when the petitioners saw that Hilario had a direct hand in
their torture.
It is clear, therefore, that the participation of Hilario in the abduction
and forced disappearance of the petitioners was established. The
participation of other military personnel like Arman, Ganata, Cabalse
and Caigas, among others, was similarly established.
xxx xxx xxx
As to the CAFGU auxiliaries, the habeas Court found them personally
involved in the abduction. We also do, for, indeed, the evidence of their
participation is overwhelming.[101]

Page 58 of 236
We reject the claim of petitioners that respondent Raymond Manalos statements
were not corroborated by other independent and credible pieces of
evidence.[102] Raymonds affidavit and testimony were corroborated by the affidavit of
respondent Reynaldo Manalo. The testimony and medical reports prepared by
forensic specialist Dr. Molino, and the pictures of the scars left by the physical
injuries inflicted on respondents,[103] also corroborate respondents accounts of the
torture they endured while in detention. Respondent Raymond Manalos familiarity
with the facilities in Fort Magsaysay such as the DTU, as shown in his testimony and
confirmed by Lt. Col. Jimenez to be the Division Training Unit,[104] firms up
respondents story that they were detained for some time in said military facility.
In Ortiz v. Guatemala,[105] a case decided by the Inter-American Commission on
Human Rights, the Commission considered similar evidence, among others, in
finding that complainant Sister Diana Ortiz was abducted and tortured by agents of
the Guatemalan government. In this case, Sister Ortiz was kidnapped and tortured in
early November 1989. The Commissions findings of fact were mostly based on the
consistent and credible statements, written and oral, made by Sister Ortiz regarding
her ordeal.[106] These statements were supported by her recognition of portions of
the route they took when she was being driven out of the military installation where
she was detained.[107] She was also examined by a medical doctor whose findings
showed that the 111 circular second degree burns on her back and abrasions on her
cheek coincided with her account of cigarette burning and torture she suffered while
in detention.[108]
With the secret nature of an enforced disappearance and the torture perpetrated on
the victim during detention, it logically holds that much of the information and
evidence of the ordeal will come from the victims themselves, and the veracity of
their account will depend on their credibility and candidness in their written and/or
oral statements. Their statements can be corroborated by other evidence such as
physical evidence left by the torture they suffered or landmarks they can identify in
the places where they were detained. Where powerful military officers are
implicated, the hesitation of witnesses to surface and testify against them comes as
no surprise.
We now come to the right of the respondents to the privilege of the writ
of amparo. There is no quarrel that the enforced disappearance of both respondents
Raymond and Reynaldo Manalo has now passed as they have escaped from
captivity and surfaced. But while respondents admit that they are no longer in
detention and are physically free, they assert that they are not free in every sense of
the word[109] as their movements continue to be restricted for fear that people they
have named in their Judicial Affidavits and testified against (in the case of Raymond)
are still at large and have not been held accountable in any way. These people are
directly connected to the Armed Forces of the Philippines and are, thus, in a position
to threaten respondents rights to life, liberty and security.[110] (emphasis
supplied) Respondents claim that they are under threat of being once again
abducted, kept captive or even killed, which constitute a direct violation of
their right to security of person.[111]
Elaborating on the right to security, in general, respondents point out that
this right is often associated with liberty; it is also seen as an expansion of rights
based on the prohibition against torture and cruel and unusual
punishment. Conceding that there is no right to security expressly mentioned in
Article III of the 1987 Constitution, they submit that their rights to be kept free from
torture and from incommunicado detention and solitary detention places[112] fall
under the general coverage of the right to security of person under the writ of
Amparo. They submit that the Court ought to give an expansive recognition of the
Page 59 of 236
right to security of person in view of the State Policy under Article II of the 1987
Constitution which enunciates that, The State values the dignity of every human
person and guarantees full respect for human rights. Finally, to justify a liberal
interpretation of the right to security of person, respondents cite the teaching
in Moncupa v. Enrile[113] that the right to liberty may be made more meaningful only
if there is no undue restraint by the State on the exercise of that liberty[114] such as a
requirement to report under unreasonable restrictions that amounted to a deprivation
of liberty[115] or being put under monitoring and surveillance.[116]
In sum, respondents assert that their cause of action consists in the threat to their
right to life and liberty, and a violation of their right to security.
Let us put this right to security under the lens to determine if it has indeed
been violated as respondents assert. The right to security or the right to
security of person finds a textual hook in Article III, Section 2 of the 1987
Constitution which provides, viz:
Sec. 2. The right of the people to be secure in their persons,
houses, papers and effects against unreasonable searches and
seizures of whatever nature and for any purpose shall be inviolable,
and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge
At the core of this guarantee is the immunity of ones person, including the
extensions of his/her person houses, papers, and effects against government
intrusion. Section 2 not only limits the states power over a persons home and
possessions, but more importantly, protects the privacy and sanctity of the person
himself.[117] The purpose of this provision was enunciated by the Court in People v.
CFI of Rizal, Branch IX, Quezon City, viz: [118]
The purpose of the constitutional guarantee against unreasonable
searches and seizures is to prevent violations of private security in
person and property and unlawful invasion of the security of the home
by officers of the law acting under legislative or judicial sanction and to
give remedy against such usurpation when attempted. (Adams v. New
York, 192 U.S. 858; Alvero v. Dizon, 76 Phil. 637 [1946]). The right to
privacy is an essential condition to the dignity and happiness and
to the peace and security of every individual, whether it be of
home or of persons and correspondence. (Taada and Carreon,
Political Law of the Philippines, Vol. 2, 139 [1962]). The constitutional
inviolability of this great fundamental right against unreasonable
searches and seizures must be deemed absolute as nothing is closer
to a mans soul than the serenity of his privacy and the assurance
of his personal security. Any interference allowable can only be for
the best causes and reasons.[119] (emphases supplied)
While the right to life under Article III, Section 1[120] guarantees essentially
the right to be alive[121] - upon which the enjoyment of all other rights is
preconditioned - the right to security of person is a guarantee of the secure quality of
this life, viz: The life to which each person has a right is not a life lived in fear that his
person and property may be unreasonably violated by a powerful ruler. Rather, it is a
life lived with the assurance that the government he established and consented to,
will protect the security of his person and property. The ideal of security in life and
property pervades the whole history of man. It touches every aspect of mans
existence.[122] In a broad sense, the right to security of person emanates in a persons
legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his
reputation. It includes the right to exist, and the right to enjoyment of life while
existing, and it is invaded not only by a deprivation of life but also of those things
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which are necessary to the enjoyment of life according to the nature, temperament,
and lawful desires of the individual.[123]
A closer look at the right to security of person would yield various permutations of
the exercise of this right.
First, the right to security of person is freedom from fear. In its whereas
clauses, the Universal Declaration of Human Rights (UDHR) enunciates that a
world in which human beings shall enjoy freedom of speech and belief and freedom
from fear and want has been proclaimed as the highest aspiration of the common
people. (emphasis supplied) Some scholars postulate that freedom from fear is not
only an aspirational principle, but essentially an individual international human
right.[124] It is the right to security of person as the word security itself means freedom
from fear.[125] Article 3 of the UDHR provides, viz:
Everyone has the right to life, liberty and security of person.[126] (emphasis
supplied)
In furtherance of this right declared in the UDHR, Article 9(1) of
the International Covenant on Civil and Political Rights (ICCPR) also provides for
the right to security of person, viz:
1. Everyone has the right to liberty and security of person. No one
shall be subjected to arbitrary arrest or detention. No one shall be
deprived of his liberty except on such grounds and in accordance with
such procedure as are established by law. (emphasis supplied)
The Philippines is a signatory to both the UDHR and the ICCPR.
In the context of Section 1 of the Amparo Rule, freedom from fear is the right
and any threat to the rights to life, liberty or security is the actionable
wrong. Fear is a state of mind, a reaction; threat is a stimulus, a cause of
action. Fear caused by the same stimulus can range from being baseless to well-
founded as people react differently. The degree of fear can vary from one person to
another with the variation of the prolificacy of their imagination, strength of character
or past experience with the stimulus. Thus, in the amparo context, it is more correct to
say that the right to security is actually the freedom from threat. Viewed in this light,
the threatened with violation Clause in the latter part of Section 1 of the Amparo Rule
is a form of violation of the right to security mentioned in the earlier part of the
provision.[127]
Second, the right to security of person is a guarantee of bodily and
psychological integrity or security. Article III, Section II of the 1987 Constitution
guarantees that, as a general rule, ones body cannot be searched or invaded without
a search warrant.[128] Physical injuries inflicted in the context of extralegal killings and
enforced disappearances constitute more than a search or invasion of the body. It
may constitute dismemberment, physical disabilities, and painful physical
intrusion. As the degree of physical injury increases, the danger to life itself
escalates. Notably, in criminal law, physical injuries constitute a crime against
persons because they are an affront to the bodily integrity or security of a person.[129]
Physical torture, force, and violence are a severe invasion of bodily integrity. When
employed to vitiate the free will such as to force the victim to admit, reveal or
fabricate incriminating information, it constitutes an invasion of both bodily and
psychological integrity as the dignity of the human person includes the exercise of
free will. Article III, Section 12 of the 1987 Constitution more specifically proscribes
bodily and psychological invasion, viz:
(2) No torture, force, violence, threat or intimidation, or any other
means which vitiate the free will shall be used against him (any
person under investigation for the commission of an offense).Secret

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detention places, solitary, incommunicado or other similar forms of
detention are prohibited.

Parenthetically, under this provision, threat and intimidation that vitiate the free will -
although not involving invasion of bodily integrity - nevertheless constitute a violation
of the right to security in the sense of freedom from threat as afore-discussed.
Article III, Section 12 guarantees freedom from dehumanizing abuses of
persons under investigation for the commission of an offense. Victims of enforced
disappearances who are not even under such investigation should all the more be
protected from these degradations.
An overture to an interpretation of the right to security of person as a right against
torture was made by the European Court of Human Rights (ECHR) in the recent
case of Popov v. Russia.[130] In this case, the claimant, who was lawfully detained,
alleged that the state authorities had physically abused him in prison, thereby
violating his right to security of person. Article 5(1) of the European Convention on
Human Rights provides, viz: Everyone has the right to liberty and security of
person. No one shall be deprived of his liberty save in the following cases and in
accordance with a procedure prescribed by law ... (emphases supplied) Article 3, on
the other hand, provides that (n)o one shall be subjected to torture or to inhuman or
degrading treatment or punishment. Although the application failed on the facts as
the alleged ill-treatment was found baseless, the ECHR relied heavily on the concept
of security in holding, viz:
...the applicant did not bring his allegations to the attention of
domestic authorities at the time when they could reasonably have
been expected to take measures in order to ensure his security and
to investigate the circumstances in question.

xxx xxx xxx

... the authorities failed to ensure his security in custody or to


comply with the procedural obligation under Art.3 to conduct an
effective investigation into his allegations.[131] (emphasis supplied)

The U.N. Committee on the Elimination of Discrimination against Women has also
made a statement that the protection of the bodily integrity of women may also be
related to the right to security and liberty, viz:
gender-based violence which impairs or nullifies the enjoyment by
women of human rights and fundamental freedoms under general
international law or under specific human rights conventions is
discrimination within the meaning of article 1 of the Convention (on the
Elimination of All Forms of Discrimination Against Women). These
rights and freedoms include . . . the right to liberty and security of
person.[132]
Third, the right to security of person is a guarantee of protection of
ones rights by the government. In the context of the writ of amparo, this right
is built into the guarantees of the right to life and liberty under Article III, Section
1 of the 1987 Constitution and the right to security of person (as freedom from
threat and guarantee of bodily and psychological integrity) under Article III, Section
2. The right to security of person in this third sense is a corollary of the policy that
the State guarantees full respect for human rights under Article II, Section 11 of the
1987 Constitution.[133] As the government is the chief guarantor of order and security,
the Constitutional guarantee of the rights to life, liberty and security of person is
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rendered ineffective if government does not afford protection to these rights
especially when they are under threat. Protection includes conducting effective
investigations, organization of the government apparatus to extend protection to
victims of extralegal killings or enforced disappearances (or threats thereof) and/or
their families, and bringing offenders to the bar of justice. The Inter-American Court
of Human Rights stressed the importance of investigation in the Velasquez
Rodriguez Case,[134] viz:
(The duty to investigate) must be undertaken in a serious manner
and not as a mere formality preordained to be ineffective. An
investigation must have an objective and be assumed by the State
as its own legal duty, not as a step taken by private interests that
depends upon the initiative of the victim or his family or upon
their offer of proof, without an effective search for the truth by the
government.[135]

This third sense of the right to security of person as a guarantee of


government protection has been interpreted by the United Nations Human Rights
Committee[136] in not a few cases involving Article 9[137] of the ICCPR. While the right
to security of person appears in conjunction with the right to liberty under Article 9,
the Committee has ruled that the right to security of person can exist
independently of the right to liberty. In other words, there need not necessarily be
a deprivation of liberty for the right to security of person to be invoked. In Delgado
Paez v. Colombia,[138] a case involving death threats to a religion teacher at a
secondary school in Leticia, Colombia, whose social views differed from those of the
Apostolic Prefect of Leticia, the Committee held, viz:
The first sentence of article 9 does not stand as a separate
paragraph. Its location as a part of paragraph one could lead to the
view that the right to security arises only in the context of arrest and
detention. The travaux prparatoires indicate that the discussions of
the first sentence did indeed focus on matters dealt with in the other
provisions of article 9. The Universal Declaration of Human Rights,
in article 3, refers to the right to life, the right to liberty and the
right to security of the person. These elements have been dealt
with in separate clauses in the Covenant. Although in the
Covenant the only reference to the right of security of person is
to be found in article 9, there is no evidence that it was intended
to narrow the concept of the right to security only to situations of
formal deprivation of liberty. At the same time, States parties
have undertaken to guarantee the rights enshrined in the
Covenant.It cannot be the case that, as a matter of law, States
can ignore known threats to the life of persons under their
jurisdiction, just because that he or she is not arrested or
otherwise detained. States parties are under an obligation to take
reasonable and appropriate measures to protect them. An
interpretation of article 9 which would allow a State party to
ignore threats to the personal security of non-detained persons
within its jurisdiction would render totally ineffective the
guarantees of the Covenant.[139] (emphasis supplied)
The Paez ruling was reiterated in Bwalya v. Zambia,[140] which involved a
political activist and prisoner of conscience who continued to be intimidated,
harassed, and restricted in his movements following his release from detention. In a
catena of cases, the ruling of the Committee was of a similar import: Bahamonde v.
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Equatorial Guinea,[141] involving discrimination, intimidation and persecution of
opponents of the ruling party in that state; Tshishimbi v. Zaire,[142] involving the
abduction of the complainants husband who was a supporter of democratic reform in
Zaire; Dias v. Angola,[143] involving the murder of the complainants partner and the
harassment he (complainant) suffered because of his investigation of the murder;
and Chongwe v. Zambia,[144] involving an assassination attempt on the chairman of
an opposition alliance.
Similarly, the European Court of Human Rights (ECHR) has interpreted the right to
security not only as prohibiting the State from arbitrarily depriving liberty, but
imposing a positive duty on the State to afford protection of the right to
liberty.[145] The ECHR interpreted the right to security of person under Article 5(1) of
the European Convention of Human Rights in the leading case on disappearance of
persons, Kurt v. Turkey.[146] In this case, the claimants son had been arrested by
state authorities and had not been seen since. The familys requests for information
and investigation regarding his whereabouts proved futile. The claimant suggested
that this was a violation of her sons right to security of person. The ECHR ruled, viz:
... any deprivation of liberty must not only have been effected in
conformity with the substantive and procedural rules of national law
but must equally be in keeping with the very purpose of Article 5,
namely to protect the individual from arbitrariness... Having assumed
control over that individual it is incumbent on the authorities to
account for his or her whereabouts.For this reason, Article 5 must be
seen as requiring the authorities to take effective measures to
safeguard against the risk of disappearance and to conduct a
prompt effective investigation into an arguable claim that a
person has been taken into custody and has not been seen
since.[147] (emphasis supplied)
Applying the foregoing concept of the right to security of person to the case
at bar, we now determine whether there is a continuing violation of respondents right
to security.
First, the violation of the right to security as freedom from threat to
respondents life, liberty and security.
While respondents were detained, they were threatened that if they escaped, their
families, including them, would be killed. In Raymonds narration, he was tortured
and poured with gasoline after he was caught the first time he attempted to escape
from Fort Magsaysay. A call from a certain Mam, who wanted to see him before he
was killed, spared him.
This time, respondents have finally escaped. The condition of the threat to be killed
has come to pass. It should be stressed that they are now free from captivity not
because they were released by virtue of a lawful order or voluntarily freed by their
abductors. It ought to be recalled that towards the end of their ordeal, sometime in
June 2007 when respondents were detained in a camp in Limay, Bataan,
respondents captors even told them that they were still deciding whether they should
be executed. Respondent Raymond Manalo attested in his affidavit, viz:
Kinaumagahan, naka-kadena pa kami. Tinanggal ang mga kadena
mga 3 o 4 na araw pagkalipas. Sinabi sa amin na kaya kami
nakakadena ay dahil pinagdedesisyunan pa ng mga sundalo kung
papatayin kami o hindi.[148]

The possibility of respondents being executed stared them in the eye while
they were in detention. With their escape, this continuing threat to their life is
apparent, moreso now that they have surfaced and implicated specific officers in the
Page 64 of 236
military not only in their own abduction and torture, but also in those of other persons
known to have disappeared such as Sherlyn Cadapan, Karen Empeo, and Manuel
Merino, among others.
Understandably, since their escape, respondents have been under concealment and
protection by private citizens because of the threat to their life, liberty and
security. The threat vitiates their free will as they are forced to limit their movements
or activities.[149] Precisely because respondents are being shielded from the
perpetrators of their abduction, they cannot be expected to show evidence of overt
acts of threat such as face-to-face intimidation or written threats to their life, liberty
and security. Nonetheless, the circumstances of respondents abduction, detention,
torture and escape reasonably support a conclusion that there is an apparent threat
that they will again be abducted, tortured, and this time, even executed. These
constitute threats to their liberty, security, and life, actionable through a petition for a
writ of amparo.
Next, the violation of the right to security as protection by the
government. Apart from the failure of military elements to provide protection to
respondents by themselves perpetrating the abduction, detention, and torture, they
also miserably failed in conducting an effective investigation of respondents
abduction as revealed by the testimony and investigation report of petitioners own
witness, Lt. Col. Ruben Jimenez, Provost Marshall of the 7th Infantry Division.
The one-day investigation conducted by Jimenez was very limited, superficial, and
one-sided. He merely relied on the Sworn Statements of the six implicated members
of the CAFGU and civilians whom he met in the investigation for the first time. He
was present at the investigation when his subordinate Lingad was taking the sworn
statements, but he did not propound a single question to ascertain the veracity of
their statements or their credibility. He did not call for other witnesses to test the
alibis given by the six implicated persons nor for the family or neighbors of the
respondents.
In his affidavit, petitioner Secretary of National Defense attested that in a
Memorandum Directive dated October 31, 2007, he issued a policy directive
addressed to the AFP Chief of Staff, that the AFP should adopt rules of action in the
event the writ of amparo is issued by a competent court against any members of the
AFP, which should essentially include verification of the identity of the aggrieved
party; recovery and preservation of relevant evidence; identification of witnesses and
securing statements from them; determination of the cause, manner, location and
time of death or disappearance; identification and apprehension of the person or
persons involved in the death or disappearance; and bringing of the suspected
offenders before a competent court.[150] Petitioner AFP Chief of Staff also submitted
his own affidavit attesting that he received the above directive of respondent
Secretary of National Defense and that acting on this directive, he immediately
caused to be issued a directive to the units of the AFP for the purpose of
establishing the circumstances of the alleged disappearance and the recent
reappearance of the respondents, and undertook to provide results of the
investigations to respondents.[151] To this day, however, almost a year after the policy
directive was issued by petitioner Secretary of National Defense on October 31,
2007, respondents have not been furnished the results of the investigation which
they now seek through the instant petition for a writ of amparo.
Under these circumstances, there is substantial evidence to warrant the conclusion
that there is a violation of respondents right to security as a guarantee of protection
by the government.
In sum, we conclude that respondents right to security as freedom from threat is
violated by the apparent threat to their life, liberty and security of person. Their right
Page 65 of 236
to security as a guarantee of protection by the government is likewise violated by the
ineffective investigation and protection on the part of the military.
Finally, we come to the reliefs granted by the Court of Appeals, which petitioners
question.
First, that petitioners furnish respondents all official and unofficial reports of the
investigation undertaken in connection with their case, except those already in file
with the court.
Second, that petitioners confirm in writing the present places of official
assignment of M/Sgt. Hilario aka Rollie Castillo and Donald Caigas.
Third, that petitioners cause to be produced to the Court of Appeals all medical
reports, records and charts, and reports of any treatment given or
recommended and medicines prescribed, if any, to the Manalo brothers, to
include a list of medical personnel (military and civilian) who attended to
them from February 14, 2006 until August 12, 2007.
With respect to the first and second reliefs, petitioners argue that the production
order sought by respondents partakes of the characteristics of a search
warrant. Thus, they claim that the requisites for the issuance of a search warrant
must be complied with prior to the grant of the production order, namely: (1) the
application must be under oath or affirmation; (2) the search warrant must
particularly describe the place to be searched and the things to be seized; (3) there
exists probable cause with one specific offense; and (4) the probable cause must be
personally determined by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce.[152] In the case at bar, however,
petitioners point out that other than the bare, self-serving and vague allegations
made by respondent Raymond Manalo in his unverified declaration and affidavit, the
documents respondents seek to be produced are only mentioned generally by name,
with no other supporting details. They also argue that the relevancy of the
documents to be produced must be apparent, but this is not true in the present case
as the involvement of petitioners in the abduction has not been shown.
Petitioners arguments do not hold water. The production order under
the Amparo Rule should not be confused with a search warrant for law enforcement
under Article III, Section 2 of the 1987 Constitution. This Constitutional provision is a
protection of the people from the unreasonable intrusion of the government, not a
protection of the government from the demand of the people such as respondents.
Instead, the amparo production order may be likened to the production of documents
or things under Section 1, Rule 27 of the Rules of Civil Procedure which provides in
relevant part, viz:
Section 1. Motion for production or inspection order.
Upon motion of any party showing good cause therefor, the court in
which an action is pending may (a) order any party to produce and
permit the inspection and copying or photographing, by or on behalf of
the moving party, of any designated documents, papers, books of
accounts, letters, photographs, objects or tangible things, not
privileged, which constitute or contain evidence material to any matter
involved in the action and which are in his possession, custody or
control

In Material Distributors (Phil.) Inc. v. Judge Natividad,[153] the respondent judge,


under authority of Rule 27, issued a subpoena duces tecum for the production and
inspection of among others, the books and papers of Material Distributors (Phil.)
Inc. The company questioned the issuance of the subpoena on the ground that it
violated the search and seizure clause. The Court struck down the argument and
Page 66 of 236
held that the subpoena pertained to a civil procedure that cannot be identified or
confused with unreasonable searches prohibited by the Constitution
Moreover, in his affidavit, petitioner AFP Chief of Staff himself undertook to provide
results of the investigations conducted or to be conducted by the concerned unit
relative to the circumstances of the alleged disappearance of the persons in whose
favor the Writ of Amparo has been sought for as soon as the same has been
furnished Higher headquarters.
With respect to the second and third reliefs, petitioners assert that the disclosure
of the present places of assignment of M/Sgt. Hilario aka Rollie Castillo and Donald
Caigas, as well as the submission of a list of medical personnel, is irrelevant,
improper, immaterial, and unnecessary in the resolution of the petition for a writ
of amparo. They add that it will unnecessarily compromise and jeopardize the
exercise of official functions and duties of military officers and even unwittingly and
unnecessarily expose them to threat of personal injury or even death.
On the contrary, the disclosure of the present places of assignment of M/Sgt.
Hilario aka Rollie Castillo and Donald Caigas, whom respondents both directly
implicated as perpetrators behind their abduction and detention, is relevant in
ensuring the safety of respondents by avoiding their areas of territorial
jurisdiction. Such disclosure would also help ensure that these military officers can
be served with notices and court processes in relation to any investigation and action
for violation of the respondents rights. The list of medical personnel is also relevant
in securing information to create the medical history of respondents and make
appropriate medical interventions, when applicable and necessary.
In blatant violation of our hard-won guarantees to life, liberty and security, these
rights are snuffed out from victims of extralegal killings and enforced
disappearances. The writ of amparo is a tool that gives voice to preys of silent guns
and prisoners behind secret walls.
WHEREFORE, premises considered, the petition is DISMISSED. The Decision of
the Court of Appeals dated December 26, 2007 is affirmed.

SUMMARY:
Facts: The brothers Raymond and Reynaldo Manalo, farmers from Bulacan who
were suspected of being members of the New People’s Army, were forcibly taken
from their home, detained in various locations, and tortured by CAFGU and military
units. After several days in captivity, the brothers Raymond and Reynaldo
recognized their abductors as members of the armed forces led by General Jovito
Palparan. They also learned that they were being held in place for their brother,
Bestre, a suspected leader of the communist insurgents. While in captivity, they met
other desaperacidos (including the still-missing University of the Philippines students
Karen Empeno and Sherlyn Cadapan) who were also suspected of being communist
insurgents and members of the NPA. After eighteen months of restrained liberty,
torture and other dehumanizing acts, the brothers were able to escape and file a
petition for the writ of amparo.

Issue: Whether or not the right to freedom from fear is or can be protected by
existing laws.

Held: Yes. The right to the security of person is not merely a textual hook in Article
III, Section 2 of the Constitution. At its core is the immunity of one’s person against
government intrusion. The right to security of person is “freedom from fear,” a
guarantee of bodily and psychological integrity and security.

Page 67 of 236
To whom may the oppressed, the little ones, the desaperacidos, run to, if the
Orwellian sword of the State, wielded recklessly by the military or under the guise of
police power, is directed against them? The law thus gives the remedy of the writ of
amparo, in addition to the rights and liberties already protected by the Bill of Rights.
Amparo, literally meaning “to protect,” is borne out of the long history of Latin
American and Philippine human rights abuses—often perpetrated by the armed
forces against farmers thought to be communist insurgents, anarchists or brigands.
The writ serves to both prevent and cure extralegal killings, enforced
disappearances, and threats thereof, giving the powerless a powerful remedy to
ensure their rights, liberties, and dignity. Amparo, a triumph of natural law that has
been embodied in positive law, gives voice to the preys of silent guns and prisoners
behind secret walls.
In upholding the CA decision, the Supreme Court ruled that there is a continuing
violation of the Manalos right to security. xxx The Writ of Amparo is the most potent
remedy available to any person whose right to life, liberty, and security has been
violated or is threatened with violation by an unlawful act or omission by public
officials or employees and by private individuals or entities. xxx Understandably,
since their escape, the Manalos have been under concealment and protection by
private citizens because of the threat to their life, liberty, and security. The
circumstances of respondents’ abduction, detention, torture and escape reasonably
support a conclusion that there is an apparent threat that they will again be
abducted, tortured, and this time, even executed. These constitute threats to their
liberty, security, and life, actionable through a petition for a writ of amparo,” the Court
explained.

REYES VS CA
FULL TEXT:
EN BANC

Page 68 of 236
REVEREND FATHER ROBERT P. G. R. No. 182161
REYES,
Petitioner,
Present:

PUNO, C.J.,
CARPIO,
- versus - CORONA,
CARPIO MORALES,
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA,
COURT OF APPEALS, SECRETARY LEONARDO-DE CASTRO,
RAUL M. GONZALEZ, IN HIS BRION,
CAPACITY AS THE SECRETARY OF PERALTA,
THE DEPARTMENT OF JUSTICE, AND BERSAMIN,
COMMISSIONER MARCELINO C. DEL CASTILLO,
LIBANAN, IN HIS CAPACITY AS THE ABAD, and
COMMISSIONER OF THE BUREAU OF VILLARAMA, JR., JJ.
IMMIGRATION,
Respondents. Promulgated:

December 3, 2009

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

DECISION

LEONARDO-DE CASTRO, J.:

For resolution is the petition for review under Rule 45 of the Rules of Court,
assailing the February 4, 2008 Decision[1] of the Court of Appeals (CA) in CA-G.R.
No. 00011 which dismissed the petition for the issuance of the writ of amparo under
A.M. No. 07-9-12-SC, as amended. It also assails the CAs Resolution dated March
25, 2008, denying petitioners motion for reconsideration of the aforesaid February 4,
2008 Decision.

The undisputed facts as found by the CA are as follows:

Petitioner was among those arrested in the Manila Peninsula


Hotel siege on November 30, 2007. In the morning of November 30,
2007, petitioner together with fifty (50) others, were brought
to Camp Crame to await inquest proceedings. In the evening of the
same day, the Department of Justice (DOJ) Panel of Prosecutors,
composed of Emmanuel Y. Velasco, Phillip L. Dela Cruz and Aristotle

Page 69 of 236
M. Reyes, conducted inquest proceedings to ascertain whether or not
there was probable cause to hold petitioner and the others for trial on
charges of Rebellion and/or Inciting to Rebellion.

On December 1, 2007, upon the request of the Department of


Interior and Local Government (DILG), respondent DOJ Secretary
Raul Gonzales issued Hold Departure Order (HDO) No. 45 ordering
respondent Commissioner of Immigration to include in the Hold
Departure List of the Bureau of Immigration and Deportation (BID) the
name of petitioner and 49 others relative to the aforementioned case
in the interest of national security and public safety.

On December 2, 2007, after finding probable cause against


petitioner and 36 others for the crime of Rebellion under Article 134 of
the Revised Penal Code, the DOJ Panel of Prosecutors filed an
Information docketed as I.S. No. 2007-1045 before the Regional Trial
Court, Branch 150 of Makati City.

On December 7, 2007, petitioner filed a Motion for Judicial


Determination of Probable Cause and Release of the Accused Fr.
Reyes Upon Recognizance asserting that the DOJ panel failed to
produce any evidence indicating his specific participation in the crime
charged; and that under the Constitution, the determination of
probable cause must be made personally by a judge.

On December 13, 2007, the RTC issued an Order dismissing


the charge for Rebellion against petitioner and 17 others for lack of
probable cause. The trial court ratiocinated that the evidence
submitted by the DOJ Panel of Investigating Prosecutors failed to
show that petitioner and the other accused-civilians conspired and
confederated with the accused-soldiers in taking arms against the
government; that petitioner and other accused-civilians were arrested
because they ignored the call of the police despite the deadline given
to them to come out from the 2ndFloor of the Hotel and submit
themselves to the police authorities; that mere presence at the scene
of the crime and expressing ones sentiments on electoral and political
reforms did not make them conspirators absent concrete evidence
that the accused-civilians knew beforehand the intent of the accused-
soldiers to commit rebellion; and that the cooperation which the law
penalizes must be one that is knowingly and intentionally rendered.

On December 18, 2007, petitioners counsel Atty. Francisco L.


Chavez wrote the DOJ Secretary requesting the lifting of HDO No. 45
in view of the dismissal of Criminal Case No. 07-3126.

On even date, Secretary Gonzales replied to petitioners letter


stating that the DOJ could not act on petitioners request until Atty.
Chavezs right to represent petitioner is settled in view of the fact that
a certain Atty. J. V. Bautista representing himself as counsel of
petitioner had also written a letter to the DOJ.

Page 70 of 236
On January 3, 2008, petitioner filed the instant petition
claiming that despite the dismissal of the rebellion case against
petitioner, HDO No. 45 still subsists; that on December 19, 2007,
petitioner was held by BID officials at the NAIA as his name is
included in the Hold Departure List; that had it not been for the timely
intervention of petitioners counsel, petitioner would not have been
able to take his scheduled flight to Hong Kong; that on December 26,
2007, petitioner was able to fly back to the Philippines from Hong
Kong but every time petitioner would present himself at the NAIA for
his flights abroad, he stands to be detained and interrogated by BID
officers because of the continued inclusion of his name in the Hold
Departure List; and that the Secretary of Justice has not acted on his
request for the lifting of HDO No. 45. Petitioner further maintained that
immediate recourse to the Supreme Court for the availment of the writ
is exigent as the continued restraint on petitioners right to travel is
illegal.

On January 24, 2008, respondents represented by the Office


of the Solicitor General (OSG) filed the Return of the Writ raising the
following affirmative defenses: 1) that the Secretary of Justice is
authorized to issue Hold Departure Orders under the DOJ Circulars
No. 17, Series of 1998[2] and No. 18 Series of 2007[3] pursuant to his
mandate under the Administrative Code of 1987 as ahead of the
principal law agency of the government; 2) that HDO No. 45 dated
December 1, 2007 was issued by the Sec. Gonzales in the course of
the preliminary investigation of the case against herein petitioner upon
the request of the DILG; 3) that the lifting of HDO No. 45 is premature
in view of public respondents pending Motion for Reconsideration
dated January 3, 2008 filed by the respondents of the Order dated
December 13, 2007 of the RTC dismissing Criminal Case No. 07-
3126 for Rebellion for lack of probable cause; 4) that petitioner failed
to exhaust administrative remedies by filing a motion to lift HDO No.
45 before the DOJ; and 5) that the constitutionality of Circulars No. 17
and 18 can not be attacked collaterally in an amparo proceeding.

During the hearing on January 25, 2008 at 10:00 a.m. at the


Paras Hall of the Court of Appeals, counsels for both parties
appeared. Petitioners counsel Atty. Francisco Chavez manifested that
petitioner is currently in Hong Kong; that every time petitioner would
leave and return to the country, the immigration officers at the NAIA
detain and interrogate him for several minutes because of the existing
HDO; that the power of the DOJ Secretary to issue HDO has no legal
basis; and that petitioner did not file a motion to lift the HDO before
the RTC nor the DOJ because to do so would be tantamount to
recognizing the power of the DOJ Secretary to issue HDO.

For respondents part, the Office of the Solicitor-General (OSG)


maintained that the Secretary of the DOJs power to issue HDO
springs from its mandate under the Administrative Code to investigate
and prosecute offenders as the principal law agency of the
government; that in its ten-year existence, the constitutionality of DOJ
Circular No. 17 has not been challenged except now; and that on
Page 71 of 236
January 3, 2008, the DOJ Panel of Investigating Prosecutors had filed
a Motion for Reconsideration of the Order of Dismissal of the trial
court.

On February 1, 2008, petitioner filed a Manifestation attaching


thereto a copy of the Order dated January 31, 2008 of the trial court
denying respondent DOJs Motion for Reconsideration for utter lack of
merit. The trial court also observed that the said Motion should be
dismissed outright for being filed out of time. [4]

The petition for a writ of amparo is anchored on the ground that respondents
violated petitioners constitutional right to travel. Petitioner argues that the DOJ
Secretary has no power to issue a Hold Departure Order (HDO) and the subject
HDO No. 45 has no legal basis since Criminal Case No. 07-3126 has already been
dismissed.

On February 4, 2008, the CA rendered the assailed Decision dismissing the


petition and denying the privilege of the writ of amparo.

Petitioners Motion for Reconsideration[5] thereon was also denied in the


assailed Resolution[6] dated March 25, 2008.

Hence, the present petition which is based on the following grounds:

I.

THE DOJ SECRETARYS ARROGATION OF POWER AND


USURPATION OF AUTHORITY TO ISSUE A HOLD DEPARTURE
ORDER CANNOT BE JUSTIFIED THROUGH A RATIONALE THAT
IT HAS SUPPOSEDLY BEEN REGULARLY EXERCISED IN THE
PAST OR HAS NEVER BEEN QUESTIONED (IN THE PAST).

II.

THE DOJ HAS CLAIMED A POWER TO ISSUE AN HDO


INDEPENDENT OF THAT OF THE REGIONAL TRIAL COURTS,
HENCE, PETITIONER CANNOT MERELY RELY ON THE
RESIDUAL POWER OF THE RTC MAKATI IN CRIMINAL CASE NO.
07-3126 TO ASSAIL SUCH CLAIMED POWER.

III.

THE UTMOST EXIGENCY OF THE PETITION IS


EXEMPLIFIED BY THE CONTINUING
ACTUAL RESTRAINT ON PETITIONERS RIGHT TO TRAVEL
THROUGH THE MAINTENANCE OF HIS NAME IN THE HDO
LIST AND DOES NOT SIMPLY HINGE ON THE QUESTION OF
WHETHER OR NOT PETITIONER WAS ABLE TO TRAVEL
DESPITE SUCH A RESTRAINT.

IV.
Page 72 of 236
DOJ CIRCULAR 17 SERIES OF 1998 PROVIDES NO
STATUTORY BASIS FOR THE DOJ SECRETARYS CLAIMED
POWER TO ISSUE AN HDO FOR IT IS NOT A STATUTE. THE
CIRCULAR ITSELF APPEARS NOT TO BE BASED ON ANY
STATUTE, HENCE, IT DOES NOT HAVE THE FORCE OF LAW
AND NEED NOT BE ATTACKED IN A DIRECT PROCEEDING.[7]

Petitioner maintains that the writ of amparo does not only exclusively apply to
situations of extrajudicial killings and enforced disappearances but encompasses the
whole gamut of liberties protected by the Constitution. Petitioner argues that [liberty]
includes the right to exist and the right to be free from arbitrary personal restraint or
servitude and includes the right of the citizens to be free to use his faculties in all
lawful ways. Part of the right to liberty guaranteed by the Constitution is the right of a
person to travel.

In their Comment,[8] both respondents Secretary Gonzalez and Commissioner


Libanan argue that: 1) HDO No. 45 was validly issued by the Secretary of Justice in
accordance with Department of Justice Circular No. 17, Series of 1998, [9] and
Circular No. 18, Series of 2007,[10] which were issued pursuant to said Secretarys
mandate under the Administrative Code of 1987, as head of the principal law agency
of the government, to investigate the commission of crimes, prosecute offenders,
and provide immigration regulatory services; and; 2) the issue of the constitutionality
of the DOJ Secretarys authority to issue hold departure orders under DOJ Circulars
Nos. 17 and 18 is not within the ambit of a writ of amparo.

The case hinges on the issue as to whether or not petitioners right to liberty
has been violated or threatened with violation by the issuance of the subject HDO,
which would entitle him to the privilege of the writ of amparo.

The petition must fail.

Section 1 of the Rule on the Writ of Amparo provides:

SECTION 1. Petition. The petition for a writ of amparo is a


remedy available to any person whose right to life, liberty and
security is violated or threatened with violation by an unlawful act or
omission of a public official or employee, or of a private individual or
entity.

The writ shall cover extralegal killings and enforced


disappearances or threats thereof.

The Court, in Secretary of National Defense et al. v. Manalo et al.,[11] made a


categorical pronouncement that the Amparo Rule in its present form is confined to
these two instances of extralegal killings and enforced disappearances, or to threats
thereof, thus:

x x x As the Amparo Rule was intended to address the intractable


problem of extralegal killings and enforced disappearances, its
coverage, in its present form, is confined to these two instances or to
threats thereof. Extralegal killings are killings committed without due
Page 73 of 236
process of law, i.e., without legal safeguards or judicial proceedings.
On the other hand, enforced disappearances are attended by the
following characteristics: an arrest, detention or abduction of a person
by a government official or organized groups or private individuals
acting with the direct or indirect acquiescence of the government; the
refusal of the State to disclose the fate or whereabouts of the person
concerned or a refusal to acknowledge the deprivation of liberty which
places such persons outside the protection of law.[12]

In Tapuz v. Del Rosario,[13] the Court laid down the basic principle regarding
the rule on the writ of amparo as follows:

To start off with the basics, the writ of amparo was originally
conceived as a response to the extraordinary rise in the number of
killings and enforced disappearances, and to the perceived lack of
available and effective remedies to address these extraordinary
concerns. It is intended to address violations of or threats to the
rights to life, liberty or security, as an extraordinary and
independent remedy beyond those available under the prevailing
Rules, or as a remedy supplemental to these Rules. What it is not, is
a writ to protect concerns that are purely property or
commercial. Neither is it a writ that we shall issue on amorphous
and uncertain grounds. Consequently, the Rule on the Writ of
Amparo in line with the extraordinary character of the writ and the
reasonable certainty that its issuance demands requires that every
petition for the issuance of the writ must be supported by justifying
allegations of fact, to wit:

(a) The personal circumstances of the


petitioner;

(b) The name and personal circumstances of


the respondent responsible for the threat, act or
omission, or, if the name is unknown or uncertain, the
respondent may be described by an assumed
appellation;

(c) The right to life, liberty and security of the


aggrieved party violated or threatened with violation by
an unlawful act or omission of the respondent, and how
such threat or violation is committed with the attendant
circumstances detailed in supporting affidavits;

(d) The investigation conducted, if any,


specifying the names, personal circumstances, and
addresses of the investigating authority or individuals,
as well as the manner and conduct of the investigation,
together with any report;

(e) The actions and recourses taken by the


petitioner to determine the fate or whereabouts of the

Page 74 of 236
aggrieved party and the identity of the person
responsible for the threat, act or omission; and

(f) The relief prayed for.

The petition may include a general prayer for other just


and equitable reliefs.[14]

The writ shall issue if the Court is preliminarily satisfied with


the prima facie existence of the ultimate facts determinable from the
supporting affidavits that detail the circumstances of how and to what
extent a threat to or violation of the rights to life, liberty and security of
the aggrieved party was or is being committed. (Emphasis supplied)

Here, petitioner invokes this extraordinary remedy of the writ of amparo for the
protection of his right to travel. He insists that he is entitled to the protection covered
by the Rule on the Writ of Amparo because the HDO is a continuing actual restraint
on his right to travel. The Court is thus called upon to rule whether or not the right to
travel is covered by the Rule on the Writ of Amparo.

The rights that fall within the protective mantle of the Writ of Amparo under
Section 1 of the Rules thereon are the following: (1) right to life; (2) right to liberty; and
(3) right to security.

In Secretary of National Defense et al. v. Manalo et al.,[15] the Court


explained the concept of right to life in this wise:

While the right to life under Article III, Section 1 guarantees


essentially the right to be alive- upon which the enjoyment of all other
rights is preconditioned - the right to security of person is a guarantee
of the secure quality of this life, viz: The life to which each person has
a right is not a life lived in fear that his person and property may be
unreasonably violated by a powerful ruler. Rather, it is a life lived with
the assurance that the government he established and consented to,
will protect the security of his person and property. The ideal of
security in life and property pervades the whole history of man. It
touches every aspect of mans existence. In a broad sense, the right to
security of person emanates in a persons legal and uninterrupted
enjoyment of his life, his limbs, his body, his health, and his
reputation. It includes the right to exist, and the right to enjoyment of
life while existing, and it is invaded not only by a deprivation of life but
also of those things which are necessary to the enjoyment of life
according to the nature, temperament, and lawful desires of the
individual.[16]

The right to liberty, on the other hand, was defined in the City of Manila, et al.
v. Hon. Laguio, Jr.,[17] in this manner:

Liberty as guaranteed by the Constitution was defined by


Justice Malcolm to include the right to exist and the right to be free
from arbitrary restraint or servitude. The term cannot be dwarfed into
mere freedom from physical restraint of the person of the citizen, but
Page 75 of 236
is deemed to embrace the right of man to enjoy the facilities with
which he has been endowed by his Creator, subject only to such
restraint as are necessary for the common welfare. x x x

Secretary of National Defense et al. v. Manalo et al.[18] thoroughly expounded


on the import of the right to security, thus:

A closer look at the right to security of person would yield


various permutations of the exercise of this right.

First, the right to security of person is freedom from fear. In its


whereas clauses, the Universal Declaration of Human
Rights (UDHR) enunciates that a world in which human beings shall
enjoy freedom of speech and belief and freedom from fear and want
has been proclaimed as the highest aspiration of the common people.
(emphasis supplied) Some scholars postulate that freedom from fear
is not only an aspirational principle, but essentially an individual
international human right. It is the right to security of person as the
word security itself means freedom from fear. Article 3 of the UDHR
provides, viz:

Everyone has the right to life, liberty


and security of person.
xxx

The Philippines is a signatory to both the UDHR and the


ICCPR.

In the context of Section 1 of the Amparo Rule, freedom from


fear is the right and any threat to the rights to life, liberty or
security is the actionable wrong. Fear is a state of mind, a
reaction; threat is a stimulus, a cause of action. Fear caused by the
same stimulus can range from being baseless to well-founded as
people react differently. The degree of fear can vary from one person
to another with the variation of the prolificacy of their imagination,
strength of character or past experience with the stimulus. Thus, in
the amparo context, it is more correct to say that the right to security
is actually the freedom from threat. Viewed in this light, the
threatened with violation Clause in the latter part of Section 1 of
the Amparo Rule is a form of violation of the right to security
mentioned in the earlier part of the provision.

Second, the right to security of person is a guarantee of


bodily and psychological integrity or security. Article III, Section II
of the 1987 Constitution guarantees that, as a general rule, ones body
cannot be searched or invaded without a search warrant. Physical
injuries inflicted in the context of extralegal killings and enforced
disappearances constitute more than a search or invasion of the
body. It may constitute dismemberment, physical disabilities, and
painful physical intrusion. As the degree of physical injury increases,
the danger to life itself escalates.Notably, in criminal law, physical

Page 76 of 236
injuries constitute a crime against persons because they are an affront
to the bodily integrity or security of a person.

xxx

Third, the right to security of person is a guarantee of


protection of ones rights by the government. In the context of the
writ of amparo, this right is built into the guarantees of the right to
life and liberty under Article III, Section 1 of the 1987
Constitution and the right to security of person (as freedom from
threat and guarantee of bodily and psychological integrity) under
Article III, Section 2. The right to security of person in this third sense
is a corollary of the policy that the State guarantees full respect for
human rights under Article II, Section 11 of the 1987 Constitution. As
the government is the chief guarantor of order and security, the
Constitutional guarantee of the rights to life, liberty and security of
person is rendered ineffective if government does not afford protection
to these rights especially when they are under threat. Protection
includes conducting effective investigations, organization of the
government apparatus to extend protection to victims of extralegal
killings or enforced disappearances (or threats thereof) and/or their
families, and bringing offenders to the bar of justice. x x x (emphasis
supplied)[19]
The right to travel refers to the right to move from one place to another.[20] As
we have stated in Marcos v. Sandiganbayan,[21] xxx a persons right to travel is
subject to the usual constraints imposed by the very necessity of safeguarding the
system of justice. In such cases, whether the accused should be permitted to leave
the jurisdiction for humanitarian reasons is a matter of the courts sound discretion. [22]

Here, the restriction on petitioners right to travel as a consequence of the


pendency of the criminal case filed against him was not unlawful. Petitioner has also
failed to establish that his right to travel was impaired in the manner and to the extent
that it amounted to a serious violation of his right to life, liberty and security, for which
there exists no readily available legal recourse or remedy.

In Canlas et al. v. Napico Homeowners Association I XIII, Inc. et al.,[23] this


Court ruled that:

This new remedy of writ of amparo which is made available by


this Court is intended for the protection of the highest possible rights
of any person, which is his or her right to life, liberty and security. The
Court will not spare any time or effort on its part in order to give
priority to petitions of this nature. However, the Court will also not
waste its precious time and effort on matters not covered by the writ.

We find the direct recourse to this Court inappropriate, considering the


provision of Section 22 of the Rule on the Writ of Amparo which reads:

Section 22. Effect of Filing of a Criminal Action. When a


criminal action has been commenced, no separate petition for the writ
shall be filed. The reliefs under the writ shall be available by motion in
the criminal case.
Page 77 of 236
The procedure under this Rule shall govern the disposition of
the reliefs available under the writ of amparo.

Pursuant to the aforementioned Section 22, petitioner should have filed with
the RTC-Makati a motion to lift HDO No. 45 in Criminal Case No. 07-
3126. Petitioner, however, did not file in the RTC-Makati a motion to lift the DOJs
HDO, as his co-accused did in the same criminal case. Petitioner argues that it was
not the RTC-Makati but the DOJ that issued the said HDO, and that it is his intention
not to limit his remedy to the lifting of the HDO but also to question before this Court
the constitutionality of the power of the DOJ Secretary to issue an HDO. [24] We quote
with approval the CAs ruling on this matter:

The said provision [Section 22] is an affirmation by the


Supreme Court of its pronouncement in Crespo v. Mogul[25] that once
a complaint or information is filed in court, any disposition of the case
such as its dismissal or its continuation rests on the sound discretion
of the court. Despite the denial of respondents MR of the dismissal of
the case against petitioner, the trial court has not lost control over
Criminal Case No. 07-3126 which is still pending before it. By virtue of
its residual power, the court a quo retains the authority to entertain
incidents in the instant case to the exclusion of even this Court. The
relief petitioner seeks which is the lifting of the HDO was and is
available by motion in the criminal case. (Sec. 22, Rule on the Writ of
amparo, supra).[26]

Even in civil cases pending before the trial courts, the Court has no authority
to separately and directly intervene through the writ of amparo, as elucidated
in Tapuz v. Del Rosario,[27] thus:

Where, as in this case, there is an ongoing civil process


dealing directly with the possessory dispute and the reported acts of
violence and harassment, we see no point in separately and directly
intervening through a writ of amparo in the absence of any clear prima
facie showing that the right to life, liberty or
security the personal concern that the writ is intended to protect is
immediately in danger or threatened, or that the danger or threat is
continuing. We see no legal bar, however, to an application for the
issuance of the writ, in a proper case, by motion in a pending case on
appeal or on certiorari, applying by analogy the provisions on the co-
existence of the writ with a separately filed criminal case.

Additionally, petitioner is seeking the extraordinary writ of amparo due to his


apprehension that the DOJ may deny his motion to lift the HDO.[28] Petitioners
apprehension is at best merely speculative. Thus, he has failed to show any clear
threat to his right to liberty actionable through a petition for a writ of amparo. The
absence of an actual controversy also renders it unnecessary for us on this occasion
to pass upon the constitutionality of DOJ Circular No. 17, Series of 1998 (Prescribing
Rules and Regulations Governing the Issuance of Hold Departure Orders); and
Circular No. 18, Series of 2007 (Prescribing Rules and Regulations Governing the
Issuance and Implementation of Watchlist Orders and for Other Purposes).

Page 78 of 236
WHEREFORE, the petition is DISMISSED. The assailed Decision of the CA
dated February 4, 2008 in CA-G.R. No. 00011 is hereby AFFIRMED.

SO ORDERED.

SUMMARY:
Facts:
Petitioner was among those arrested in the Manila Peninsula Hotel siege on
November 30, 2007. Petitioner together with fifty (50) others, were brought to Camp
Crame to await inquest proceedings. In the evening of the same day, the Department
of Justice (DOJ) Panel of Prosecutors, composed of Emmanuel Y. Velasco, Phillip L.
Dela Cruz and Aristotle M. Reyes, conducted inquest proceedings to ascertain
whether or not there was probable cause to hold petitioner and the others for trial on
charges of Rebellion and/or Inciting to Rebellion. Upon the request of the DILG,
respondent DOJ Secretary Raul Gonzales issued Hold Departure Order (HDO) No.
45 ordering respondent Commissioner of Immigration to include in the Hold
Departure List of the Bureau of Immigration and Deportation (BID) the name of
petitioner and 49 others relative to the aforementioned case in the interest of national
security and public safety. After finding probable cause against petitioner and 36
others for the crime of Rebellion the DOJ Panel of Prosecutors filed an Information
before the RTC, Branch 150 of Makati City. RTC issued an Order dismissing the
charge for Rebellion against petitioner and 17 others for lack of probable cause.
Petitioner filed the instant petition claiming that despite the dismissal of the rebellion
case against petitioner, HDO No. 45 still subsists. Every time petitioner would leave
and return to the country, the immigration officers at the NAIA detain and interrogate
him for several minutes because of the existing HDO.

Issue:
Whether or not the right to travel is covered by the Rule on the Writ of
Amparo.

Ruling:
No, the Right to travel is not covered by the Rule on the Writ of Amparo. The
rights that fall within the protective mantle of the Writ of Amparo under Section 1 of
the Rules thereon are the following: (1) right to life; (2) right to liberty; and (3) right to
security. The restriction on petitioner’s right to travel as a consequence of the
pendency of the criminal case filed against him was not unlawful. Petitioner has also
failed to establish that his right to travel was impaired in the manner and to the extent
that it amounted to a serious violation of his right to life, liberty and security, for which
there exists no readily available legal recourse or remedy. Additionally, petitioner is
seeking the extraordinary writ of amparo due to his apprehension that the DOJ may
deny his motion to lift the HDO. Petitioner’s apprehension is at best merely
speculative. Thus, he has failed to show any clear threat to his right to liberty
actionable through a petition for a writ of amparo. The new remedy of writ of amparo
which is made available by the Supreme Court is intended for the protection of the
highest possible rights of any person, which is his or her right to life, liberty and
security. The Court will not spare any time or effort on its part in order to give priority
to petitions of this nature. However, the Court will also not waste its precious time
and effort on matters not covered by the writ.

Page 79 of 236
US VS BALDOMERO
FULL TEXT:
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 1272 January 11, 1904

THE UNITED STATES, complainant-appellee,

vs.

BALDOMERO NAVARRO, ET AL., defendants-appellants.

Felix Ferrer for appellants.


Office of the Solicitor-General Araneta for appellee.

MCDONOUGH, J.:

The defendants, Baldomero Navarro, Marcelo de Leon, and Fidel Feliciano


(alias Bulag) are charged with the crime of illegal detention, committed, according to
the information, as follows:
The said defendants, together with other persons unknown armed with revolvers and
daggers, went one night about the middle of November, 1902, to the house of one
Felix Punsalan, situated in Matang-tubig, barrio of Malinta, town of Polo, Province of
Bulacan, and by force and violence kidnapped the said Felix Punsalan, without, up to
the date of this information, having given any information as to his whereabouts or
having proven that they set him at liberty.
The defendants on being arraigned pleaded not guilty.
In the course of the trial Teodoro Pangan, Gregorio Mendoza, and Flaviano Punsalan
testified as witnesses for the prosecution. The witness Pangan said that one night
about the middle of November, 1902, while he was asleep in the house of Felix
Punsalan, situated in the barrio of Malinta, in front of Maysilo, he, being at that time a
servant of the said Punsalan, was aroused by the barking of the dogs; that his master,
Felix Punsalan, arose and opened the window, and, upon seeing some people there,
asked them who they were; they answered him by asking who was with him in the
house, to which he replied that his servant was there; they asked him if he had a gun,
and he replied that he had no gun, and they asked him to come down and talk with
them, and the said Felix Punsalan, having gone down accordingly, did not return, and
the witness added that he had not seen again since that time. This witness says that
he did not see the men who called to his master from below but only heard them.
Gregorio Mendoza, the second witness, testifies that he was taken from his house
one night in the month of November, 1902, by seven men, among who were these
defendants; that in addition to himself, the same party on that night kidnapped Felix
Punsalan and that the latter, with the witness, were taken by their captors to Pudag-
babuy where the defendant Marcelo de Leon hung them to a tree, demanding of them
that they hand over their guns; that on that same night they set the witness at liberty,
but kept Felix Punsalan; that the witness did not see Punsalan again since that time,
and that before the kidnapping he frequently saw him because he lived next door.
Flaviano Punsalan, brother of Felix Punsalan, testified that the latter was kidnapped
on the night of November 17, 1902, and that he had not seen since that time; that
subsequently, in January, 1903, on occasion of the witness having been called to the
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barracks of the Constabulary by the officers of that corps, he heard a statement made
there by the defendant Baldomero Navarro in the presence of the superintendent of
secret information, Captain Crame, Inspector Brown, and Interpreter Austin, in the
course of which statement Baldomero Navarro stated that he was the leader of the
band that kidnapped Felix Punsalan and Gregorio Mendoza, and that his companions
were Marcelo de Leon, Fidel Feliciano, Remigio Delupio, and one Luis; that the said
Felix Punsalan died within a week from the time he was kidnapped, in consequence
of the ill treatment received. The witness testified that Navarro made the statement
freely and spontaneously, without threats or compulsion. The witness also testified
that in the court of the justice of the peace in Malabon he heard one Florencia
Francisco testify that when his brother, Felix Punsalan, died he was covered with
bruises and was passing blood, and that his body was buried at a place called Ogong,
in the village known as Cay-grande.
The defendant Marcelo de Leon, who testified as a witness in the case, stated that
Felix Punsalan and Gregorio Mendoza were kidnapped by Baldomero Navarro and
Mariano Jacinto, one night in November, 1902, and that the witness knew this
because he also was on of the men kidnapped by these defendants.
The court below rendered judgment condemning each one of the defendants,
Baldomero Navarro, Marcelo de Leon, and Feliciano Felix (alias Bulag), to life
imprisonment and payment of the costs of prosecution. Against this judgment the
defendants appealed.
Article 481 of the Penal Code provides that a private person who shall lock up or
detain another, or in any way deprive him of his liberty shall be punished with the
penalty of prision mayor.
The second paragraph of article 483 provides that one who illegally detains another
and fails to give information concerning his whereabouts, or does not prove that he
set him at liberty, shall be punished with cadena temporal in its maximum degree to
life imprisonment.
The punishment for the crime mentioned in article 483 of the Penal Code is the
penalty of cadena temporal in its maximum degree to cadena perpetua, or in other
words one convicted of simply depriving a person of his liberty may be imprisoned for
a term of from six to twelve years and one convicted of depriving a person of his
liberty and who shall not state his whereabouts or prove that he had set said person
at liberty may be punished by imprisonment for a term of seventeen years four
months and one day, to life, as in this case. In other words, for failure on the part of
the defendant to testify regarding the whereabouts of the person deprived of his
liberty, or to prove that he was set at liberty, the punishment may be increased from
imprisonment for a term of six years to life imprisonment.
This provisions of the law has the effect of forcing a defendant to become a witness in
his own behalf or to take a much severer punishment. The burden is put upon him of
giving evidence if he desires to lessen the penalty, or, in other words, of criminating
himself, for the very statement of the whereabouts of the victim or the proof that the
defendant set him at liberty amounts to a confession that the defendant unlawfully
detained the person.
So the evidence necessary to clear the defendant, under article 483 of the Penal
Code, would have the effect of convincing him under article 481.
The counsel for the defendants claims that such practice is illegal, since the passage
by Congress of the act of July 1, 1902, relating too the Philippines, section 5 of which
provides that ". . . no person shall be compelled in any criminal case to be a witness
against himself." Section 57 of General Orders, No. 58, provides that a defendant in a
criminal case shall be presumed to be innocent until the contrary is proved; and
section 59 provides that the burden of proof of guilt shall be upon the prosecution.
Page 81 of 236
In fact he contends that as these provisions are in conflict with those of article 483
they have the effect of repealing that section.
Under the system of criminal procedure existing here under the Spanish Government
it was doubtless lawfull to require a suspected or accused person to give evidence
touching the crime of which he was charged or suspected.
And so in order to arrive at a true interpretation of article 483 it is necessary to
examine that system of procedure.
In Escriche's Dictionary of Legislation and Jurisprudence, volume 3, page 577, we
find the following description of the distinctive features of the inquisitorial system of
criminal procedure, which constitutes the machinery by which the legislator proposed
to enforce the penalty prescribed in the article under consideration. He say:
A criminal prosecution is divided into two principal parts or sections which are, first,
the summary, and second, the penalty stages. The principal purpose of the summary
trial is to inquire whether a criminal act has been committed and to determine by
whom the act has been committed — that is to say, the object is to get together all the
date possible for the purpose of proving that an act falling within the sanction of the
penal law has been committed by such and such persons. In the plenary stage the
purpose is a contradictory discussion of the question of the guilt or innocence of the
defendant, and the rendition of a judgment of conviction or acquittal. It may well be
that although it appear in the summary stage of the proceeding that the act has been
performed by the accused, still in the plenary stage it may be shown that the act was
not really criminal or that there was a lawful excuse for its commission.
The record of the summary proceeding should contain evidence of the commission of
a punishable act, all possible data tending to point out the delinquent, a record of all
proceedings connected with his arrest and imprisonment, the answers of the accused
to the interrogatories put to him as to any other witness to obtain from him a
statement of all he knows concerning the crime and those guilty of it.
The record of the proceedings described above was then sent to the prosecuting
attorney, or to the private accuser and in view of the facts which appeared from the
record the prosecution made out the formal charge, the facts elicited by the
proceeding enabling the prosecuting attorney to determine within what article of the
Penal Code the criminal act fell. After the filing of such a charge further proceedings
were had in which more evidence might be taken by either party and in which the
accused had his opportunity to make a defense.
The summary proceeding was secret, but the plenary stage was conducted publicly.
Article 544 of the royal decree of May 6, 1880, which provided the procedural law
applicable in criminal cases in the Islands, reads as follows: "The defendant can not
decline to answer by questions addressed him by the judge, or by the prosecuting
attorney, with the consent of the judge, or by the private prosecutor, even though he
may believe the judge to be without jurisdiction, in which case he may record a
protest against the authority of the court."
The author above cited, Escriche, commenting upon this obligation on the part of the
defendant to testify, says that in case he stands mute the court can not put him to the
torture as formerly, but can only inform the prisoner that his silence is unfavorable to
him, that it is an indication of his guilt, that in consequence thereof he will be regarded
as guilt for all the purposes of the summary, and that his silence will be taken into
account with all the other evidence against him when the time comes for the rendition
of judgment upon him.
Now let us apply the rules of law above indicated to the case in question, supposing
that the crime had been committed prior to the passage of the Philippine bill or
General Orders, No. 58. The judicial authorities having reason to believe that some
one has been illegally detained or kidnapped proceed to make a secret investigation
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of the case, arrest the suspected culprit, and demand of him that he give any
information he may have concerning the act under investigation and to state whatever
may have been his own participation therein. The evidence shows that some one has
been taken away from home and has not been heard of again, and the facts point to
the prisoner as the presumptive criminal. He is told to state what he knows of the
matter. If he does so, and proves that the person detained was liberated by him, or
that such person is living in such and such a place, then the prosecuting attorney will
know that he must draw a charge under the first or following sections of article 481,
according to whether the facts elicited by the preliminary or summary investigation
show only a detention in general, or for the specific periods of time indicated in the
latter part of the section. But if the prisoner fails to prove the whereabouts of the
person whom he is accused of making away with, or that he liberated him, then the
prosecuting attorney has a case falling within the last paragraph of article 483.
It follows, therefore, from an examination of the old law that no prosecution under this
article would have ever been possible without a concomitant provision of the
procedural law which made it the duty of the accused to testify and permitted the
prosecution to draw an unfavorable deduction from his refusal to do so. The crime
defined by article 483 was composed of three elements:
(a) The illegal detention of a person by the accused.
(b) Lack of evidence up to the time of the summary investigation that this person had
recovered his liberty.
(c) A failure on the part of the accused in the course of the summary proceeding to
prove that he had liberated the person detained, or to give information at that time of
his whereabouts, or a refusal to give any evidence at all which left him in the same
position as would an unsuccessful attempt to prove the facts above mentioned, and
which were necessary to overcome the prima facie case made out by the proof of the
first two elements.
Now every one of these ingredients of the offense must exists before an information
can be filed for a prosecution under this article. The real trial was the plenary and was
very similar to out regular trial after arraignment. But the summary, with its secret and
inquisitorial methods, was vastly different from our preliminary investigation. If the
right had been taken away to question the accused and compel him to testify, then
element (c) above indicated, would have always been lacking. And that right has been
taken from the prosecution by both General Orders, No. 58, and by the guaranty
embodied in the Philippine bill. That being the case the crime defined in article 483
can not now be committed, because the possibility of adding to the element (a) arising
from the act of the accused the other two elements equally essential to the offense
has been forever swept away by the extension to these Islands of the constitutional
barrier against an inquisitorial investigation of crime.
Under the present system the information must charge the accused with acts
committed by him prior to the filing of the information and which of themselves
constitute an offense against the law. The Government can not charge a man with
one of the necessary elements of an offense and trust to his making out the rest by
availing himself of his right to leave the entire burden of prosecuting on the
prosecution from beginning to end.
In this case the prosecuting attorney charges the accused with kidnapping some
person and with not having given any information of the whereabouts of that person,
of having proved that he — the accused — has set him at liberty. To make out a case
the Government must show that the prisoner has been guilty of every act or omission
necessary to constitute the crime of which he is charged, and it will not be disputed
that the exercise of an absolute right can not form part of a crime. In this case the
Government has proved that the defendant was guilty of a breach of his duty to
Page 83 of 236
respect the rights of others by showing that he, with others, carried a certain individual
away from his house against his will, the accused not being vested with authority to
restrain his fellow-citizens of liberty. It is impossible for the Government to prove the
other elements of the crime, because the acts necessary to constitute them must be
anterior in point of time to the trial, and must constitute some breach of duty under an
existing law. It has been demonstrated that the omission which, under the former law
constituted the two remaining elements, is no longer penalized but is nothing more
than the exercise of one of the most essential rights pertaining to an accused person.
The provision that no one is bound to criminate himself is older than the Government
of the United States. At an early day it became a part of the common law of England.
It was established on the grounds of public policy and humanity — of policy, because
if the party were required to testify, it would place the witness under the strongest
temptation to commit the crime of perjury, and of humanity, because it would prevent
the extorting of confessions by duress.
It had its origin in a protest against the inquisitorial methods of interrogating the
accused person, which had long obtained in the continental system. (Jones's Law of
Evidence, sec. 887; Black's Constitutional Law, 575.)
In other words, the very object of adopting this provision of law was to wipe out such
practices as formerly prevailed in these Islands of requiring accused persons to
submit to judicial examinations, and to get testimony regarding the offense with which
they were charged.
In Emery's case (107 Mass., 172) it was said that the principle applies equally to any
compulsory disclosure of the guilt of the offender himself, whether sought directly as
the object of the inquiry, or indirectly and incidentally for the purpose of establishing
facts involved in an issue between the parties.
If the disclosure thus made would be capable of being used against him as a
confession of crime, or an admission of facts tending to prove the commission of an
offense, such disclosure would be an accusation against himself.
In the present case, if the defendant, as said before disclosed the whereabouts of the
person taken, or shows that he was given his liberty, this disclosure may be used to
obtain a conviction under article 481 of the Penal Code.
The decision of the case of Boyd vs. The United States (116 U. S., 616) is authority
for the contention in the present case. There the question raised was one of a
violation of the revenue laws, it being claimed that false entry of merchandise had
been made, the punishment for which was fixed by law at a fine not exceeding $5,000
nor less than $50, or by imprisonment.
It became important on the part of the prosecution to show the quality of the goods
imported. Section 5 of the Revenue Law, passed in June, 1874, authorized the district
attorney to obtain an order of court requiring the defendants to produce their invoices,
books, papers, etc., to be examined by the district attorney in order to obtain such
evidence as he desired. Such an order was served on the defendant. The invoices
were produced under protest, the objection being that their introduction in evidence
could not be compelled and that the statute was unconstitutional as it compelled the
defendant to testify against himself.
The law provided that for a failure or refusal to produce the invoices the allegations
stated by the district attorney as to what he expected to prove by them should be
taken as confessed, unless the failure of refusal of the defendant to produce the same
shall be explained to the satisfaction of the court.
The court stated that a compulsory production of a man's private papers to establish a
criminal charge against himself, or to forfeit his property is unconstitutional.
The law, it is true, only required the defendant to produce the invoices, but it declared
that if he did not do so then the allegations which it is affirmed the district attorney will
Page 84 of 236
prove shall be taken as confessed. "This," said the court, "is tantamount to compelling
their production for the prosecution will always be sure to state the evidence expected
to be derived from them as strongly as the case will admit of."
Precisely the same of law applies to the case at bar. If the defendant does not do
certain things, if he does not make certain statements or proofs, he is severely
punished.
It may be said that the defendant is only required to speak on one point in the case,
that the prosecution must prove the illegal detention, and that the burden of showing
the whereabouts only is put upon the defendant.
Chief Justice Marshall, in the trial of Aaron Burr, expressed his views on this question
as follows:
Many links frequently compose the chain of testimony which is necessary to convict
an individual of a crime. It appears to the court to be the true sense of the rule that not
witness is compelled to furnish any one of them against himself. It is certainly not only
a possible but a probable case that a witness by declaring a single fact may complete
the testimony against himself as entirely as he would by stating every circumstance
which would be required for his conviction. The fact of itself would be unavailing, but
all the other facts without it would be insufficient. While that remains concealed in his
own bosom he is safe, but draw it from thence and he is exposed to a prosecution.1
If it be urged that the defendant is not compelled to testify, that he remain mute, the
answer is that, the illegal detention only being proved by the prosecution, if he does
not make certain proof, if he remains mute, then not only the presumption but the fact
of guilt follows as a consequence of his silence, and such a conclusion is not
permitted under American law.
In the case of the People vs. Courtney (94 N. Y., 490), decided by the court of
appeals of the State of New York, the question to be determined was whether or not a
law permitting a person charged with crime to testify in his own behalf was
constitutional or not. The law in question provided also that his omission or refusal to
testify "should create no presumption against him." Judge Andrews, in rendering the
decision of the court, stated: "A law which, while permitting a person accused of a
crime to be a witness in his own behalf, should at the same time authorize a
presumption of guilt from his omission to testify, would be a law adjudging guilt
without evidence, and while it might not be obnoxious to the constitutional provision
against compelling a party in a criminal case to give evidence against himself, would
be a law reversing the presumption of innocence, and would violate the fundamental
principles binding alike upon the legislature and the courts."
It is the duty of the prosecution, in order to convict one of a crime, to produce
evidence showing guilt beyond a reasonable doubt; and the accused can not be
called upon either by express words or acts to assist in the production of such
evidence; nor should his silence be taken as proof against him. He has a right to rely
on the presumption of innocence until the prosecution proves him guilty of every
element of the crime with which he is charged.
In the language of Mr. Justice Bradley, in the Boyd case, "any compulsory discovery
by extorting the party's oath . . . to convict him of a crime . . . is contrary to the
principles of free government; it is abhorrent to the instincts of an Englishman; it is
abhorrent to the instincts of an American. It may suit the purposes to despotic power
but it can not abide the pure atmosphere of political liberty and personal freedom."
The judgment of the Court of First Instance is reversed and the defendants are found
guilty of the crime defined and punished by article 482 of the Penal Code; applying
the aggravating circumstance of nocturnity each and every one of them is condemned
to eighteen years of reclusion temporal, with the legal accessory penalties, and to the
payment of the costs of both instances.
Page 85 of 236
Arellano, C. J., Cooper and Johnson, JJ., concur.

Separate Opinions
MAPA, J., with whom concur WILLARD and TORRES, JJ., dissenting:
When a person is illegally detained he may recover his liberty or he may not be seen
or heard of again. In the first case the crime would fall within the provisions of articles
481, 482, and 483, paragraph 1 of the Penal Code, according to the circumstances of
the case. The maximum penalty which could be imposed upon this hypothesis would
be that of reclusion temporal, fixed by article 482.
If the person detained is not seen or heard again, the crime is unquestionably a more
serious one, and the code, in order to be consistent with the system adopted by it of
making the penalty attached to crimes correspond to the extent and degree of the
harm occasioned thereby, necessarily had to fix a heavier penalty upon the illegal
detention of a person followed by his complete disappearance, than in any of the
cases in which the person detained recovers his liberty. "The disappearance of a
person who has been illegally detained by another," says Groizard, in his
Commentaries on the Penal Code, volume 5, page 633, "is certainly sufficient to
cause alarm to society. It constitutes a natural increase of the mediate harm caused
by the crime of illegal detention, and gives rise to a well-founded presumption of an
increased extent or immediate harm."
The greater the harm caused by the crime, the greater and more severe the penalty
attached to it. This is the system invariably followed by our code.
It appearing, then, that the code fixes the penalty of reclusion temporal when the
person detained recovers his liberty if his detention has lasted more than twenty days,
or any other of the aggravating circumstances expressed in article 482 concur, it was
logical and unavoidably necessary, in order not to destroy the unity of the system
referred to, that the code should fix a heavier penalty than reclusion temporal for a
case in which the person detained has disappeared, owing to the greater gravity with
which the circumstance invests the crime. This would be so if only on account of the
fact while the illegal detention continues, while the person detained remains in the
power of his captors, he continues to be expressed to the danger of being a helpless
and defenseless victim of violence and ill treatment of every kind, including the loss of
his life. Hence the code has fixed the penalty of cadena temporal in its maximum
degree to life imprisonment (cadena perpetua) when the person detained disappears.
"One who illegally detains another," says paragraph 2 of article 483, "and fails to give
information concerning his whereabouts, or does not prove that he has set him at
liberty, shall be punished with cadena temporal in its maximum degree to life
imprisonment (cadena perpetua)."
The fact that Felix Punsalan was kidnapped by the accused in November, 1901,
having been fully proven, and the fact that he has disappeared and that nothing has
been heard of him up to the present time having been also proven, we think that the
case should be determined in accordance with the provisions of article 483 above
transcribed, and that the defendants should be sentenced to the penalty of life
imprisonment (cadena perpetua), taking into consideration the aggravating
circumstance of nocturnity, inasmuch as they have not given information as to the
whereabouts of Punsalan, and have not proven that they set him at liberty.
In the opinion of the majority of the court this article "has the effect of forcing the
defendant to become a witness in his own behalf or to take a much severer
punishment. The burden is put upon him of giving evidence if he desires to lessen the
penalty, or in other words of incriminating himself, for the very statement of the
whereabouts of the victim or the proof that the defendant set him at liberty, amounts
Page 86 of 236
to a confession that the defendant unlawfully detained the person." As a consequence
of this interpretation, the majority are of the opinion that this article has been repealed
by section 5 of the Philippine bill, enacted July 1, 1902, which provides that no person
shall be compelled in any criminal case to be a witness against himself, and by the
provisions of section 57 and 59 of General Orders, No. 58, which provide that the
defendant in a criminal case shall be presumed to be innocent until the contrary is
proved, and that the burden of the proof of guilt shall be upon the prosecution. "It
follows, therefore, from an examination of the old law," say the majority, "that no
prosecution under this section would ever have been possible (par. 2, art. 483)
without a concomitant provision of the procedural law, which made it the duty of the
accused to testify and permitted the prosecution to draw an unfavorable inference
from his refusal to do so." If the right had been taken away to question the accused
and compel him to testify, the majority of the court are of the opinion that one of the
essential elements of the crime defined and punished by article 483 would always
have been lacking, and that right they say has been taken from the prosecution by
both General Orders, No. 58, and the guaranty embodied in the Philippine bill.
Article 554 of the compilation of rules concerning criminal procedure, approved by the
royal decree of May 6, defendant can not decline to answer the questions addressed
him by the judge or by the prosecuting attorney with the consent of the judge, or by
the private prosecutor, even though he may believe the judge to be without
jurisdiction, in which case he may record a protest against the authority of the court,"
does in fact appear to support the opinion of the majority with respect to the obligation
which it is assumed rested upon the accused under the old system of procedure to
appear as a witness. This provision of law, however, carefully considered, lacks a
great deal of having the meaning and scope attributed to it in the majority opinion, for
neither the article in question nor any other article in the royal decree cited, or any
other provision of law of which we are aware, provides for any penalty in case the
accused should refuse to testify. Far from it, paragraph 2 of article 545 of the royal
decree in question provides that "in no case shall the defendant be questioned or
cross-examined," and article 541 in its last paragraph provides: "Nor shall the
defendant be in any way threatened or coerced." Article 543 provides that a judge
who disregards this precept shall be subject to a disciplinary correction unless the
offense is such as to require still heavier punishment.
The use of threats or coercion against the accused being prohibited in absolute and
precise terms, how could it be lawful to threaten him, as Escriche states in his
Dictionary of Legislation and Jurisprudence, cited by the majority in support of their
opinion (a work which, by the way, was written long before the enactment of the
procedural law in force in the Philippines at the time General Orders, No. 58, was
published) — how could it be lawful, we say, to coerce the accused by informing him
that "his silence is prejudicial to him, that it is an indication of his guilt, that he will be
thereby considered guilty, and that his refusal to testify will be taken into
consideration, together with all other evidence against him when the time arrives for
rendering judgment?" Would this not be an actual coercion, and a coercion of the
worst kind, inasmuch as it implies a threat, also prohibited by the law, of a certain and
sure conviction, for the purpose of constraining and compelling the accused to testify?
Would not the judge making such a threat become subject to the punishment
prescribed by article 543 above cited?
Escriche himself, in his article on criminal procedure in the work above mentioned, in
speaking of the testimony of defendants says that "all coercion is prohibited by law."
"This," he adds, "has done away with all physical or moral compulsion to obtain
testimony." And in paragraph 70 of the same article he also says as follows: "If the
defendant remains silent when called upon to plead, and refuses to answer the
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charges made against him by the judge, he can not be compelled to answer . . .; nor
does it appear that this can be regarded as a plea of guilt, or that the accused can be
considered as the author of the crime on that account.
Providing for the case of the accused refusing to testify, article 392 of the Law of
Criminal Procedure of 1882 provides that "when the accused refuses to answer or
pretends to be insane, or dumb, the judge shall warn him that notwithstanding his
silence the prosecution will continue." This is the only thing which can be done in such
a case — the only thing the law permits — and anything which may be done beyond
that for the purpose of bringing pressure to bear, no matter how light, upon the
accused to constrain him to testify would be unjust and illegal.
If, therefore, the law prescribes no penalty for the refusal of the accused to testify, and
if an accused person who does so refuse can not be compelled to do so in any way, if
the only procedure which the law authorizes, if the only action which the judge can
take in that case is to continue the prosecution notwithstanding this denial, how can it
be successfully contended that the accused was obliged to testify? If the law had
assumed to impose upon him such an obligation it would have prescribed some
adequate means of enforcing it, for there can not be an obligation in the true legal
sense of the word without the coexistence of some penalty by which to enforce its
performance.
Thus, for example, the law in imposing upon witnesses the obligation to testify, at the
same time prescribes a penalty for one who refuses to perform this duty. Article 560
of the compilation says that "all persons residing in Spanish territory, whether natives
or foreigners, who are not under disability, shall be obliged to respond to a judicial
citation to testify as to all matters within their knowledge concerning which they may
be questioned." And article 567 providing that "he who, not being under disability,
shall fail to respond to the first judicial citation . . ., or shall refuse to testify as to the
facts concerning which he may be interrogated . . . shall be subject to a fine of not
less than 25 nor more than 250 pesetas; and if he should persist in his resistance he
shall in the first case be taken before the court by the officers of the law and
prosecuted for the crime defined and punished in paragraph 2 of article 383 of the
Penal Code (art. 252 of the Code of these Islands), and in the second case shall also
be prosecuted for the crime defined and punished in article 265 of the same Code."
(Art. 368 of the Philippine Code.)
This provision of law certainly constitutes a significant contrast to the absence of any
other similar coercive provision which might produce the effect of compelling accused
persons to testify against their will, and this demonstrates that the law did not propose
to impose upon them such an obligation.
To such a degree has the law carried its respect for the conscience of accused
persons and for their natural desire to refrain from incriminating statements that is
absolutely prohibits the administration of an oath even in cases in which such persons
voluntarily offer to testify. (Art. 593 of the Compilation, par. 17 of the royal order (auto
acordado) of 1860, and art. 9 of the royal cedula of 1855), thus leaving them entirely
at liberty to testify as they may see fit, whether false or true, without the fear, which
necessarily produces a certain moral pressure, of thereby incurring the guilt of
perjury. On this account, and of the fact of the absolute prohibition of using any
threats or coercion against them, the practical result was that not only might accused
persons testify with impunity as to whatever they might see fit, even if false, when
voluntarily offering themselves as witnesses, but that they could never be compelled
against their will to testify at all. This is equivalent to saying that accused persons
were not under any obligation to testify.
We have stated that the law did not authorize the drawing of any inference as to the
guilt of the accused from his silence, and we insist that such is the case. We believe
Page 88 of 236
that no provision of law can be cited in support of the contrary proposition. To what
has been said above upon this point we may add that among the means of proof of
the guilt of the accused expressly mentioned in article 52 of the provisional law for the
application of the Penal Code in the Philippines, the silence of the accused or his
refusal to testify is not included.
In corroboration of the assertions heretofore made we refer to a work published in
1883 by the editorial staff of the Review of Legislation and Jurisprudence, under the
title of "Law of criminal procedure," in which, in the chapter in which the subject of the
testimony of the accused is dealt with (vol. 1, p. 257), the following statement is
made:
Is the accused under any obligation to testify? This is the first doubt which arises in
examining the subject with which this chapter deals. The law does not solve the
question expressly, and consequently we must endeavor to discover whether this
obligation is imposed indirectly. We are of the opinion that it is not, inasmuch as
obligations, and more especially with respect to the penal law, are not to be
presumed. Nor do we attribute the lack of the provision to which we refer to
carelessness or oversight on the part of the legislator, both because it is such a
serious matter and because it is expressly provided that the accused is under no
obligation to testify, and because our former laws and the law of Aragon, before the
laws of other European countries, relieved accused persons from the obligation of
taking an oath in order not to place them in the predicament of either telling a
falsehood and thereby committing perjury, or of declaring themselves to be guilt of a
crime of which they are charged. That is to say, our ancient laws of Aragon and the
other laws of Europe which copied the provisions of the laws of Aragon when
providing that accused persons should not be required to take an oath, or permitted to
do so, were based upon the principle which is at the present time recognized by all
criminologists of Europe, that the accused should not be required under penalty to aid
in the prosecution of the crime of which he is charged. Upon these principles, which at
the present time are beyond question, it can not be inferred that the accused is under
obligation to testify.
For the purpose of supporting this contention we have still many other reasons. Upon
the supposition that the law imposes upon the defendant the obligation to testify what
penalty exists for the failure to perform this obligation? None, absolutely none; so that
assuming the obligation to exist, if the accused should refuse to testify, he might do
so with absolute immunity, for in such case there is no coercion measure which can
be used since the abolition of torture. Consequently if our law had imposed the
obligation of testifying upon accused persons, they would have provided some
adequate penalty. And not only is this conclusion to be reached from an examination
of all modern systems of law, without any exception, but it is based upon the express
provisions of the law we are commenting upon in article 392 and the last paragraph of
article 689 [should be 389], which provides that no coercion or threats can be used
against the accused, and to endeavor to compel him to testify would certainly be a
coercion. If the accused refuses to testify, notwithstanding his silence, the prosecution
will continue without any prejudice whatever to the defendant. It is true that article 693
provides that the presiding judge shall demand a categorical answer from the
accused, but in case the accused refuses to give such answer there is no penalty
other than that of article 798, to wit, that the prosecution shall continue, even although
the accused shall refuse to answer the questions addressed to him by the presiding
judge. Consequently this appears to decide the question in favor of our contention. If
the accused refuses to testify, that is his privilege, but the trial will continue down to
final judgment.

Page 89 of 236
With respect to the legal presumption of the innocence of the accused in the absence
of proof to the contrary, this is not a new principle in the law of criminal procedure of
the Philippine, nor was it introduced here by General Orders, No. 58, as might be
inferred from the majority opinion. Centuries ago the Code of the Partidas, which for a
long time constituted an integral part of the laws of this Archipelago, solemnly
recognized this principle by establishing in a number of its provisions that no person
should be considered as guilty of a crime except upon proof of his guilt, and that proof
to such degree as to exclude all doubt, proof "as clear as light." "A criminal charge,"
says Law 12, title 14, third partida, "brought against anyone . . . must be proved
openly by witnesses or by writing, or by the confession of the accused, and not upon
suspicion alone. For it is but just that a charge brought against the person of an man,
or against his reputation, should be proved and established by evidence as clear as
light, evidence not leaving room for any doubt. Wherefore the ancient sages held and
decided that it was more righteous to acquit a guilty man, as to whom the judge could
not find clear and manifest evidence, than to convict an innocent man even though
suspicion point his way."
Again, the provincial law for the application of the Penal Code which was in force here
at the time of the publication of General Orders, No. 58, also required, in order to
authorize the conviction of the defendant, that his guilt be established by some of the
means of proof enumerated in article 52 of that law. In default of this proof the
presumption prevailed that the accused was innocent and the law required his
acquittal.
In Escriche's Dictionary of Legislation of Jurisprudence, above cited, in the article on
Criminal Evidence, paragraph 5, the author says: "Until it appears to a certainty that
the accused is guilty, it would be a crime to condemn him to suffer any penalty
whatever; because he may be innocent, and every man has a right to be so
considered until the contrary is established by proof."
It follows then that if the accused could under no circumstance be compelled to testify
against his will under the procedural law prior to General Orders, No. 58, and of that
procedure the principle of the presumption of the innocence of the accused until the
contrary is proven formed part, and that notwithstanding this the provisions of
paragraph 2 of article 483 existed, it is logical to conclude, against the opinion of the
majority, that in establishing that precept the legislator in no wise took into
consideration the supposed obligation of the accused to testify as to the charge
against him, and did not consider it incompatible with that presumption of innocence,
for then as now the accused was under no obligation to testify, and then as now the
presumption referred to constituted a fundamental right of the accused under the law
of procedure.
Passing from this aspect of the question, we will now consider the provisions of
paragraph 2 of article 483 of the Penal Code in connection with section 5 of the
Philippine bill enacted July 1, 1902.
Pacheco, in commenting upon article 413 of the penal code of Spain, which is the
equivalent of article 483 of the Code of the Philippines, in his work entitled "The Penal
Code" (fifth edition, vol. 3, p. 258), says that this article is based upon "the
hypothesis that the person detained has completely disappeared." Then the author
adds: "The law considers the person guilty of this detention to be guilt by presumption
of killing the person detained, unless he proves that he set that person at liberty."
Such is the essence of the crime punished under the provisions of article 483. It does
not consist solely in the detention, but in the detention followed by the disappearance
of the person detained. It is indispensable to prove these two facts, for neither of them
alone are sufficient to authorize the application of the article. But, these facts having
been proven, upon that proof alone, and without the necessity of any further
Page 90 of 236
evidence, then as stated by the author cited, we have the crime punished by the
article in question, and as a consequence a case calling for the application of the
penalty prescribed by that article. This being so, if for the purpose of convicting the
accused the prosecution has only to prove the two facts above mentioned, this is
doubtless because these facts and these facts alone are sufficient to constitute the
crime under consideration.
Hence it is not true, as stated in the majority opinion, that one of the constituent and
essential elements of the crime is the fact that the accused has failed to give
information as to the whereabouts of the person detained, or failed to prove that he
has set him at liberty. This fact, that is to say, the fact of having given or failed to give
information as to the whereabouts or liberty of the person detained, is entirely foreign
to the essence of the crime. Not only is it not a necessary element for the existence of
the crime, but is, on the contrary, a defense, or, as Groizard says in his
Commentaries to the Penal Code (vol. 5, p. 632), an exception which the law grants
the defendant as a means by which, if he avails himself of it and establishes it by
proof, he may avoid the penalty prescribed in that article. "In order that this exception
be available," says that author, "it must be shown by competent evidence that the act
alleged in defense was actually performed." It is unnecessary to add that a defense
available to the accused is not and can not be an integral element of the crime, its
direct and immediate effect being, as it is, to overcome the criminal action arising from
the crime.
It having been demonstrated that the wording of article 483 of the Code, the effect
that if the person guilty of illegal detention "does not give information as to the
whereabouts of the person detained, or proof that he set him at liberty," had for their
purpose the establishment of a defense of which the accused may take the benefit,
and that they do not constitute an essential element of the crime in question, it is not
possible in our opinion to interpret these words in the sense of imposing upon the
defendant an obligation of testifying as to those facts — an obligation which did not
exist under the old system of procedures, as we have demonstrated — because the
use of a defense allowed by the law would lose its character as such if its use were
obligatory.
But it said that if the accused does not give information of the whereabouts of the
person detained, or does not prove that he set him at liberty, he becomes subject to
the penalty of paragraph 2 of article 483, which is much heavier than that prescribed
by articles 481 and 482, to which he would be subject in the contrary case. True. But
what is intended to be inferred from this? Is it contended that upon this supposition
the accused is convicted by reason of the fact that he does not give information as to
the whereabouts of the person detained, or proof that he set him at liberty? Is it meant
that the prosecution has only to prove this fact in order to obtain a conviction? Is it
meant that the law punishes as a crime the silence of the accused, as the majority
opinion would lead us to infer? Far from it. Nothing could be further from the true
meaning of article 483 under consideration. What is therein punished is
the disappearance of the person detained. This it is which constitutes the crime
defined in that article, and this it is which must be proven by the prosecution. If the
prosecution does not prove the detention of the supposed victim, and does not
moreover prove his disappearance, no matter how complete the silence of the
accused or how obstinate his refusal to give information as to the whereabouts or
liberty of the person detained, there can be no possibility of his conviction under the
article in question. This conclusively shows that the ground of the conviction would
not be the silence of the accused, but the proof offered by the prosecution upon the
two facts above mentioned, which are, as we have stated, essential elements of the
crime we are now considering.
Page 91 of 236
For this reason it was that in the case of the United States vs. Eulogio de Sosa, for
illegal detention, decided February 6, 1903, the court acquitted the defendant,
declaring that there was no ground upon which he could be convicted under the
provisions of paragraph 2 of article 483, giving among others the reason that "there
was not sufficient evidence that the whereabouts of Nicasio Rafael are unknown,"
Rafael being the person detained. Mr. Justice Willard, who wrote the opinion of the
court, in that opinion said: "The mere fact that the accused has not given information
as to the whereabouts of the person sequestered is not sufficient to authorize a
conviction." He also expressly laid down the rule that in order to justify a conviction it
is necessary that it "appear to the satisfaction of the court that the person has
disappeared." It is not necessary to add, for it is self-evident, that this decision implies
the proposition that paragraph 2 of article 483 of the Penal Code has not been
repealed by the Philippine bill of July 1, 1902. The sense of the decision is that if the
disappearance of Nicasio Rafael had been proven, it would have been proper to
convict the accused in accordance with the provisions of the article of the code under
consideration.
It is clear that the accused can overcome the evidence of the prosecution in whole or
in part, either by proving that he had not committed the alleged detention, in which
case his innocence would be completely established, or else by limiting his proof to
showing that it is not true that the person detained has disappeared, as, for instance,
proving the whereabouts of the latter, in which case the gravity of the crime would
naturally be reduced. Whatever the evidence may be, total or partial, demonstrative of
the complete innocence of the accused, or only of a lesser degree of guilt, the law
admits this defense either as a total defense or attenuate the penalty, as the case
may be. In the latter case, which is the one to which article 483 expressly refers, the
accused may prove the whereabouts of the person detained, or show that the placed
him at liberty. And because the law makes provisions for this case, which is certainly
favorable to the accused, who under such a hypothesis would be responsible solely
for the fact of the detention and not for the disappearance of the person detained,
because the law expressly grants and authorizes this exception or defense on behalf
of the accused, we do not believe that the law can be accused of injustice, or that it
can not be considered as incompatible in the slightest degree with section 5 of the
Philippine bill cited in the decision.
It would be, on the contrary, highly unreasonable and unjust if such a means of
defense were denied to the accused — if solely upon proof by the prosecution of the
disappearance of the person detained, the accused should be held under all
circumstances responsible for this crime, even though he might show by competent
evidence the whereabouts of the person or proof that he had set him at liberty.
It is said that this exculpatory evidence required by article 483 would be accusatory
for the purpose of article 481, because the mere statement as to the whereabouts of
the victim or proof that the accused had set him at liberty implies the confession that
the accused did kidnap that person.
This argument would be weighty if the introduction of this testimony were not wholly
voluntary or optional on the part of the accused. The law gives him this means of
defense. It is for him to determine whether it is for his benefit to avail himself of it or
not. In the course of the trial the accused has an opportunity to inform himself of the
evidence for the prosecution, and in view of that evidence to adopt such a plan of
defense as may best suit him. If the evidence of his guilt is insufficient, if the
prosecution does not prove the detention, and furthermore the disappearance of the
supposed victim, the accused even if guilty, may remain silent, and certainty will do so
as to the whereabouts or liberation of the person detained, and may do so with the
complete assurance that his silence will not in the slightest degree be prejudicial to
Page 92 of 236
him, and that he can not by virtue of that silence be sentenced to any penalty
whatever.
If on the contrary he sees that the evidence of the prosecution is conclusive, if he
sees that it clearly establishes his guilt, if he feels that it is absolutely convincing, if in
fine he feels that he is helpless to overcome that evidence completely, would he not
instinctively realize, no matter how obtuse he may be, that inasmuch as it is no longer
possible for him to avoid conviction, it would be better for him to elect to suffer the
lesser penalty by giving information as to the whereabouts of his victim? If he does so
he does so freely and for his own convenience, and not because he is presumed by
the law without evidence to be guilty, for it has been demonstrated that then as now
the presumption of the innocence of the accused was a principle deeply rooted in the
former system of procedure. Upon this supposition, even if the accused does by
implication admit the fact of the illegal detention he would be benefited thereby,
because he would thus avoid the heavier penalty imposed for the disappearance of
the person detained, and which we assume has been established by the prosecution
by sufficient evidence.
And what, we ask, but this very thing, occurs with respect to the allegation and proof
of mitigating circumstances? A defendant who alleges mitigating circumstances by
implication admits the commission of the crime with which he is charged, and seeks
solely by means of that allegation to obtain a reduction of the penalty. Can it be said
on that account that the law which establishes mitigating circumstances is
unconstitutional and unjust? Can it be said with reason that such a law compels the
accused to incriminate himself because it puts before him the alternative of suffering
the entire penalty prescribed for the crime, or alleging some mitigating circumstance,
confessing the commission of the offense in order to obtain a reduction of the
penalty? We can not in truth see any difference whatever between the confession of
guilt implied by allegation of a mitigating circumstance and that involved in the fact of
giving information of the whereabouts of the person detained, in crimes if illegal
detention.
Apart from this, it is not true that such a statement always implies the confession of
illegal detention. On the contrary, it would be in many cases a complete denial of it. In
the present case, for example, the accused, without testifying at all, might have
proved that Felix Punsalan is living at such and such a place in the Province of
Bulacan, without this statement necessarily carrying with it the conclusion that they
admit even by implication that they had sequestered him, for they might very well
have knowledge of his present whereabouts without having been guilty of
sequestering or detaining him. And if the proof should be sufficient to show that
Punsalan was in that place during all the month of November, 1901, the date on
which the crime in question is alleged to have been committed, and that he remained
there, entirely at liberty from that time down to the present, this fact would show
furthermore the falsity if the alleged illegal detention of that individual.
The natural tendency of an accused person is to evade, if possible, the penalty. If the
evidence for the prosecution is such as to make it impossible to evade the penalty,
then his tendency is to elect to suffer the lightest penalty which the law authorizes. In
case of paragraph 2 of article 483 of the Penal Code, the law does not condemn the
accused because of his remaining silent during the trial or because he fails to give
information of the whereabouts of the person detained. If the law convicts him it is
upon the supposition that the prosecution has fully established the fact of the illegal
detention and the fact of the disappearance of the person detained. It does not
convict the accused without evidence or by reason of his silence. It convicts him when
those two facts which constitute the crime defined in that article have been proven.

Page 93 of 236
But the law, while demanding that proof from the prosecution, at the same time takes
into consideration that it may be overcome by the accused, if not with respect to the
fact of the detention itself, which may be absolutely proven, at least with respect to
the disappearance of the victim, and therefore the law commands that the accused be
heard and that the evidence which he may offer on the point be considered, when he
— admitting his guilt of illegal detention in view of the evidence for the prosecution —
voluntarily determines to give information as to the whereabouts or liberation of the
person detained. The law grants him this exception or defense, but does not impose it
upon him. It constitutes a right but not an obligation. For the reasons stated we find no
incompatibility between the provisions of paragraph 2 of article 483 of the Penal Code
and section 5 of the Philippine bill of July 1, 1902. And taking into consideration the
legal doctrine that "posteriores leges ad priores pertinent, nisi contrario sint," we are
of the opinion that it has not repealed by implication — and it certainly has not done
so expressly — the provision in question of the Penal Code.
If this article had so been repealed and its principles could not therefore be applied to
these accused, neither could they be punished, strictly speaking, under article 482 of
the code, cited in the decision of the majority, because that article is based upon the
fundamental supposition that the person detained has recovered his liberty, which is
not the fact in the case at bar.

SUMMARY

FACTS:
The defendants, Baldomero Navarro, Marcelo de Leon, and Fidel Feliciano
are convicted of the crime of illegal detention under Article 481 and of 483 of
the Penal Code. They were sentenced to life imprisonment.

Article 481 of the Penal Code provides that a private person who shall lock up
or detain another, or in any way deprive him of his liberty shall be punished
with the penalty of prision mayor.

The second paragraph of article 483 provides that one who illegally detains
another and fails to give information concerning his whereabouts, or does not
prove that he set him at liberty, shall be punished with cadena temporal in its
maximum degree to life imprisonment.

The punishment for the crime mentioned in article 483 of the Penal Code is
the penalty of cadena temporal in its maximum degree to cadena perpetua,
or in other words one convicted of simply depriving a person of his liberty
may be imprisoned for a term of from six to twelve years and one convicted of
depriving a person of his liberty and who shall not state his whereabouts or
prove that he had set said person at liberty may be punished by
imprisonment for a term of seventeen years four months and one day, to life,
as in this case. In other words, for failure on the part of the defendant to
testify regarding the whereabouts of the person deprived of his liberty, or to
prove that he was set at liberty, the punishment may be increased from
imprisonment for a term of six years to life imprisonment.

On appeal, counsel for the defendants argued that the provisions of the law
has the effect of forcing a defendant to become a witness in his own behalf or
to take a much severer punishment. The burden is put upon him of giving
evidence if he desires to lessen the penalty, or, in other words, of
Page 94 of 236
incriminating himself, for the very statement of the whereabouts of the victim
or the proof that the defendant set him at liberty amounts to a confession that
the defendant unlawfully detained the person. So the evidence necessary to
clear the defendant, under article 483 of the Penal Code, would have the
effect of convincing him under article 481. It is claimed that such practice is
illegal, since section 5 of the Philippine Bill provides that ". . . no person shall
be compelled in any criminal case to be a witness against himself."

ISSUE: Whether or not the defendants' rights against self-incrimination were


violated.

HELD: Yes.
The right against self-incrimination was established on the grounds of public
policy and humanity - of policy, because if the party were required to testify, it
would place the witness under the strongest temptation to commit the crime
of perjury, and of humanity, because it would prevent the extorting of
confessions by duress.

Under the present system, the information must charge the accused with acts
committed by him prior to the filing of the information and which of
themselves constitute an offense against the law. The Government can not
charge a man with one of the necessary elements of an offense and trust to
his making out the rest by availing himself of his right to leave the entire
burden of prosecuting on the prosecution from beginning to end.

If the disclosure thus made would be capable of being used against him as a
confession of crime, or an admission of facts tending to prove the
commission of an offense, such disclosure would be an accusation against
himself.

In the present case, if the defendant disclosed the whereabouts of the person
taken, or shows that he was given his liberty, this disclosure may be used to
obtain a conviction under article 481 of the Penal Code.

It is the duty of the prosecution, in order to convict one of a crime, to produce


evidence showing guilt beyond a reasonable doubt; and the accused can not
be called upon either by express words or acts to assist in the production of
such evidence; nor should his silence be taken as proof against him. He has
a right to rely on the presumption of innocence until the prosecution proves
him guilty of every element of the crime with which he is charged.

PEOPLE VS GUILLEN
FULL TEXT:

Page 95 of 236
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 191756 November 25, 2013
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
JONAS GUILLEN y ATIENZA, Accused-Appellant.
DECISION
DEL CASTILLO, J.:
On appeal is the November 26, 2009 Decision1 of the Court of Appeals CA) in CA-
G.R. CR-H.C. No. 03476 which affirmed the June 10, 2008 Decision2 of the Regional
Trial Court RTC) of Manila, Branch 48 finding appellant Jonas Guillen y Atienza
guilty beyond reasonable doubt of the crime of rape.
On May 31, 2002, an Information3 was filed charging appellant with the crime of
rape, the accusatory portion of which reads as follows:
That on or about May 20, 2002, in the City of Manila, Philippines, the said accused,
by means of force, violence and intimidation, by entering the room of "AAA",4 poking
a balisong at her neck, forcing her to lie down on the floor, pressing her with his
thighs and removing her duster and panty and thereafter pulling down his brief and
shorts, did then and there wilfully, unlawfully and feloniously [insert] his penis into her
vagina and succeeded in having carnal knowledge of "AAA" against the latter’s will
and consent, thereby gravely endangering her growth and development to the
damage and prejudice of the said "AAA".
Contrary to law.
When arraigned on July 11, 2002, appellant pleaded not guilty.5
Factual Antecedents
The version of the prosecution as summarized by the Office of the Solicitor General
(OSG) are as follows:
On May 20, 2002, around 12 midnight, x x x "AAA" was inside her room on the
second floor of a two-storey house located at x x x Sampaloc, Manila. At that time
"AAA" was playing cards x x x while waiting for her common-law husband to arrive.
Momentarily, someone knocked at the door. When "AAA" opened the door, appellant
Jonas Guillen y Atienza, who was her neighbor, entered the room and suddenly
poked a balisong on her neck. Appellant then turned off the lights, removed his
clothes, placed himself on top of "AAA," and inserted his penis inside her private
parts. After the rape was consummated, appellant stood up and casually left the
room.
x x x "AAA" immediately went out and x x x sought assistance from her sister-in-law.
After being told of the incident, "AAA’s" sister-in-law contacted the police. When the
responding police officers arrived, appellant, who was readily identified by "AAA"
since he was her neighbor, was immediately arrested.
Per request for a medico legal examination prepared by P/Sr. Supt. Amador Serrano
Pabustan of the Western Police District, "AAA" was brought to the National Bureau
of Investigation (NBI) for physical examination. Dra. Annabelle Soliman, NBI medico-
legal officer, conducted medical and genital examinations on "AAA". The Preliminary
Report dated May 20, 2002 issued by Dra. Soliman shows the following findings: 1)
With extragenital physical injury noted; 2) Healed hymenal laceration present; and 3)
Pending laboratory examination result.
The Medico-Legal Report Number MG-02-366 issued by Dra. Soliman shows that
private complainant’s hymen had "deep healed laceration at 7 o’clock position;"

Page 96 of 236
positive for spermatozoa; and that there was "evident sign of extragenital physical
injury noted on the body of the subject at the time of the examination.6
Appellant denied the charge against him. He claimed that he had a drinking spree at
Galas, Quezon City and went home to Sampaloc, Manila at around 1:00 o’clock in
the morning of May 20, 2002. He surmised that "AAA" filed the charge against him
because of his prior altercation with "AAA’s" husband.
Ruling of the Regional Trial Court
In a Decision dated June 10, 2008, the trial court found appellant guilty as charged.
The dispositive portion of the Decision reads:
WHEREFORE, the Court finds accused JONAS GUILLEN Y ATIENZA guilty beyond
reasonable doubt for the felony of RAPE and pursuant to law, he is sentenced to
suffer a prison term of reclusion perpetua and to pay victim the following:
P50,000.00 as moral damages;
P30,000.00 as exemplary damages; and
To pay the cost.
The BJMP of the Manila City Jail is ordered to commit the accused to the National
Bilibid Prison without unnecessary delay.
SO ORDERED.7
Aggrieved, appellant filed a Notice of Appeal8 which was given due course by the
trial court in its Order9 dated June 13, 2008.
Ruling of the Court of Appeals
After the filing of the parties’ briefs, the CA rendered its Decision disposing as
follows:
WHEREFORE, in the light of all the foregoing, the instant appeal is DISMISSED for
lack of merit. The decision of the trial court dated June 10, 2008 is AFFIRMED.
SO ORDERED.10
Hence, this appeal.
ISSUE
THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-
APPELLANT OF RAPE DESPITE THE PROSECUTION’S FAILURE TO
OVERTHROW THE CONSTITUTIONAL PRESUMPTION OF INNOCENCE IN HIS
FAVOR.11
Appellant claims that the trial court gravely erred when it deemed his silence at the
police station immediately after his arrest as an implied admission of guilt. He also
argues that aside from being incredible, "AAA’s" testimony is insufficient to establish
his guilt beyond reasonable doubt. Moreover, he insists that "AAA’s" healed
lacerations do not prove that he indeed raped "AAA."
OUR RULING
The appeal lacks merit.
Indeed, records show that appellant remained silent and passive despite being
confronted by "AAA" with the rape charge at the police station immediately after his
arrest. In taking appellant’s silence as an implied admission of guilt, the RTC
ratiocinated that:
Owing to the complaint of the victim, the accused was apprehended by responding
police officer[s] of the Sampaloc Police Station. At the police precinct, the accused
was presented to the victim and [he] was positively identified as the person who
raped her. At this juncture, the accused after he was positively identified as the
malefactor who sexually molested and raped the victim x x x just [remained] SILENT.
In other words, he did not DENY the accusation lodged against him by the victim
much less register any vehement PROTEST at the station.
The aforesaid blatant FAILURE of the accused to deny victim’s complaint against
him is equivalent to an IMPLIED ADMISSION of guilt. Assuming arguendo that he is
Page 97 of 236
innocent of the accusation filed against him, he should have stood firm in his
contention that he didn’t rape/abuse the victim and should have stressed at the
police station that on the date and time of the incident he was having a drinking
spree with his friends.
A person who is accused of a felony/offense which he did not commit should be as
BOLD and FEROCIOUS as a LION in protecting the trampled rights as an innocent
person.12
Appellant claims that his silence should not be used against him as he was just
exercising his constitutional right to remain silent.
We agree with the appellant.
It should be borne in mind that when appellant was brought to the police station, he
was already a suspect to the crime of rape. As such, he was already under custodial
investigation. Section 12, Article III of the Constitution explicitly provides, viz:
Any person under investigation for the commission of an offense shall have the right
to be informed of his right to remain silent and to have competent and independent
counsel preferably of his own choice. If the person cannot afford the services of
counsel, he must be provided with one. These rights cannot be waived except in
writing and in the presence of counsel.
Clearly, when appellant remained silent when confronted by the accusation of "AAA"
at the police station, he was exercising his basic and fundamental right to remain
silent. At that stage, his silence should not be taken against him. Thus, it was error
on the part of the trial court to state that appellant’s silence should be deemed as
implied admission of guilt. In fact, this right cannot be waived except in writing and in
the presence of counsel and any admission obtained in violation of this rule shall be
inadmissible in evidence.13
In any case, we agree with the Decision of the trial court, as affirmed by the CA,
finding appellant guilty of the crime of rape. The trial court’s Decision convicting
appellant of rape was anchored not solely on his silence and so-called implied
admission. More importantly, it was based on the testimony of "AAA" which, standing
alone, is sufficient to establish his guilt beyond reasonable doubt.
Article 266-A of the Revised Penal Code specifically provides that rape may be
committed by a man who shall have carnal knowledge of a woman through force,
threats or intimidation. In this case, "AAA" categorically testified that appellant
forcibly undressed her, poked a knife at her neck, and inserted his penis into her
vagina without her consent and against her will. Thus, all elements of the crime of
rape were duly established from the testimony of "AAA". Moreover, "AAA" positively
identified appellant as her assailant.
Appellant could only offer alibi and denial as his defenses. However, alibi and denial
are weak defenses especially when measured up against the positive identification
made by the victim pointing to appellant as the malefactor. Besides, appellant failed
to prove that it was physically impossible for him to be at the crime scene at the time
of its commission. Aside from claiming that he was at Galas, Quezon City when the
rape incident happened, he failed to submit any proof to show that it is physically
impossible for him to be at Sampaloc, Manila where and when the rape happened.
Besides, appellant’s alibi crumbles in the face of his apprehension near the scene of
the crime immediately after "AAA" reported the incident to the police authorities.
We are not persuaded by appellant’s contention that he could not have raped "AAA"
inside her room as the discovery of the crime would have been more likely
considering its proximity to the room of "AAA’s" sister-in-law. Jurisprudence teaches
us that rape may be committed even in places where people congregate. Thus, it is
not impossible or unlikely that rape is perpetrated inside a room adjacent to a room
occupied by other persons, as in this case.
Page 98 of 236
Likewise, the failure of "AAA" to shout for help should not be taken against
her.1âwphi1 People react differently when confronted with a shocking or startling
situation. Some may show aggressive resistance while others may opt to remain
passive. The failure of "AAA" to shout for help and seek assistance should not be
construed as consent, or as voluntarily engaging in an illicit relationship with the
appellant, as implied by the defense. It would be recalled that appellant poked a knife
at "AAA’s" neck. Such threat of immediate danger to her life cowed "AAA" to submit
to the carnal desires of the appellant. However, immediately after appellant left,
"AAA" lost no time in seeking the help of her sister-in-law and in reporting the
incident to the police authorities. In fact, the police authorities were able to
apprehend appellant because "AAA" immediately reported the incident to them.
Anent appellant’s contention that "AAA’s" healed hymenal laceration does not prove
rape, we find the same irrelevant and immaterial. Hymenal laceration, whether fresh
or healed, is not an element of the crime of rape. Even a medical examination is not
necessary as it is merely corroborative. As we mentioned before, the fact of rape in
this case was satisfactorily established by the testimony of "AAA" alone.
All the elements of rape having been established beyond reasonable doubt, both the
trial court and the CA properly found appellant guilty as charged and correctly
imposed on him the penalty of reclusion perpetua.14
The RTC, as affirmed by the CA, awarded "AAA" moral damages of P50,000.00,
exemplary damages of P30,000.00 and cost of suit. In line with prevailing
jurisprudence, "AAA" is also entitled to an award of civil indemnity of P50,000.00. In
addition, all damages awarded shall earn interest at the rate of 6 per annum from
date of finality of judgment until fully paid.
WHEREFORE, the appeal is DISMISSED. The November 26, 2009 Decision of the
Court of Appeals in CA-G.R. CR-H.C. No. 03476 which affirmed the June 10, 2008
Decision of the Regional Trial Court of Manila, Branch 48 finding appellant Jonas
Guillen y Atienza guilty beyond reasonable doubt of the crime of rape and sentencing
him to suffer the penalty of reclusion perpetua is AFFIRMED with MODIFICATIONS
that appellant is further ordered to pay AAA civil indemnity in the amount
of P50,000.00 and interest on all damages awarded at the rate of 6% per annum
from date of finality of judgment until fully paid.
SO ORDERED.

Page 99 of 236
SILVERIO VS CA
FULL TEXT:
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 94284 April 8, 1991
RICARDO C. SILVERIO, petitioner,
vs.
THE COURT OF APPEALS, HON. BENIGNO G. GAVIOLA, as Judge of the
Regional Trial Court of Cebu City, Branch IX, and PEOPLE OF THE
PHILIPPINES, respondents.
Quisumbing, Torres & Evangelista for petitioner.

MELENCIO-HERRERA, J.:
This is a Petition for Review on Certiorari under Rule 45 of the Rules of Court
praying that the Decision of respondent Court of Appeals in CA-G.R. SP No. 15827,
entitled "Ricardo C. Silverio vs. Hon. Benigno C. Gaviola, etc., et al.," dated 31
January 1990, as well as the Resolution of 29 June 1990 denying reconsideration,
be set aside.
On 14 October 1985, Petitioner was charged with violation of Section 20 (4) of the
Revised Securities Act in Criminal Case No. CBU-6304 of the Regional Trial Court of
Cebu. In due time, he posted bail for his provisional liberty.
On 26 January 1988, or more than two (2) years after the filing of the Information,
respondent People of the Philippines filed an Urgent ex parte Motion to cancel the
passport of and to issue a hold-departure Order against accused-petitioner on the
ground that he had gone abroad several times without the necessary Court approval
resulting in postponements of the arraignment and scheduled hearings.
Overruling opposition, the Regional Trial Court, on 4 April 1988, issued an Order
directing the Department of Foreign Affairs to cancel Petitioner's passport or to deny
his application therefor, and the Commission on Immigration to prevent Petitioner
from leaving the country. This order was based primarily on the Trial Court's finding
that since the filing of the Information on 14 October 1985, "the accused has not yet
Page 100 of 236
been arraigned because he has never appeared in Court on the dates scheduled for
his arraignment and there is evidence to show that accused Ricardo C. Silverio, Sr.
has left the country and has gone abroad without the knowledge and permission of
this Court" (Rollo, p. 45). Petitioner's Motion for Reconsideration was denied on 28
July 1988.
Petitioner's Certiorari Petition before the Court of Appeals met a similar fate on 31
January 1990. Hence, this Petition for Review filed on 30 July 1990.
After the respective pleadings required by the Court were filed, we resolved to give
due course and to decide the case.
Petitioner contends that respondent Court of Appeals erred in not finding that the
Trial Court committed grave abuse of discretion amounting to lack of jurisdiction in
issuing its Orders, dated 4 April and 28 July 1988, (1) on the basis of facts allegedly
patently erroneous, claiming that the scheduled arraignments could not be held
because there was a pending Motion to Quash the Information; and (2) finding that
the right to travel can be impaired upon lawful order of the Court, even on grounds
other than the "interest of national security, public safety or public health."
We perceive no reversible error.
1) Although the date of the filing of the Motion to Quash has been omitted by
Petitioner, it is apparent that it was filed long after the filing of the Information in 1985
and only after several arraignments had already been scheduled and cancelled due
to Petitioner's non-appearance. In fact, said Motion to Quash was set for hearing
only on 19 February 1988. Convincingly shown by the Trial Court and conformed to
by respondent Appellate Court is the concurrence of the following circumstances:
1. The records will show that the information was filed on October 14, 1985.
Until this date (28 July 1988), the case had yet to be arraigned. Several
scheduled arraignments were cancelled and reset, mostly due to the failure of
accused Silverio to appear. The reason for accused Silverio's failure to
appear had invariably been because he is abroad in the United States of
America;
2. Since the information was filed, until this date, accused Silverio had never
appeared in person before the Court;
3. The bond posted by accused Silverio had been cancelled twice and
warrants of arrest had been issued against him all for the same reason ––
failure to appear at scheduled arraignments.
In all candidness, the Court makes the observation that it has given accused
Silverio more than enough consideration. The limit had long been reached
(Order, 28 July 1988, Crim. Case No. CBU-6304, RTC, Cebu, p. 5; Rollo, p.
73).
Patently, therefore, the questioned RTC Orders, dated 4 April 1988 and 28 July
1988, were not based on erroneous facts, as Petitioner would want this Court to
believe. To all appearances, the pendency of a Motion to Quash came about only
after several settings for arraignment had been scheduled and cancelled by reason
of Petitioner's non-appearance.
2) Petitioner's further submission is that respondent Appellate Court "glaringly erred"
in finding that the right to travel can be impaired upon lawful order of the Court, even
on grounds other than the "interest of national security, public safety or public
health."
To start with, and this has not been controverted by Petitioner, the bail bond he had
posted had been cancelled and Warrants of Arrest had been issued against him by
reason, in both instances, of his failure to appear at scheduled arraignments.
Warrants of Arrest having been issued against him for violation of the conditions of
his bail bond, he should be taken into custody. "Bail is the security given for the
Page 101 of 236
release of a person in custody of the law, furnished by him or a bondsman,
conditioned upon his appearance before any court when so required by the Court or
the Rules (1985 Rules on Criminal Procedure, as amended, Rule 114, Secs. 1 and
2).
The foregoing condition imposed upon an accused to make himself available at all
times whenever the Court requires his presence operates as a valid restriction of his
right to travel (Manotoc, Jr. vs. Court of Appeals, et al. No. 62100, 30 May 1986, 142
SCRA 149). A person facing criminal charges may be restrained by the Court from
leaving the country or, if abroad, compelled to return (Constitutional Law, Cruz,
Isagani A., 1987 Edition, p. 138). So it is also that "An accused released on bail may
be re-arrested without the necessity of a warrant if he attempts to depart from the
Philippines without prior permission of the Court where the case is pending (ibid.,
Sec. 20 [2nd
par. ]).
Petitioner takes the posture, however, that while the 1987 Constitution recognizes
the power of the Courts to curtail the liberty of abode within the limits prescribed by
law, it restricts the allowable impairment of the right to travel only on grounds of
interest of national security, public safety or public health, as compared to the
provisions on freedom of movement in the 1935 and 1973 Constitutions.
Under the 1935 Constitution, the liberty of abode and of travel were treated under
one provision.1âwphi1 Article III, Section 1(4) thereof reads:
The liberty of abode and of changing the same within the limits prescribed by
law shall not be impaired.
The 1973 Constitution altered the 1935 text by explicitly including the liberty of travel,
thus:
The liberty of abode and of travel shall not be impaired except upon lawful
order of the court or when necessary in the interest of national security, public
safety, or public health (Article IV, Section 5).
The 1987 Constitution has split the two freedoms into two distinct sentences and
treats them differently, to wit:
Sec. 6. The liberty of abode and of changing the same within the limits
prescribed by law shall not be impaired except upon lawful order of the court.
Neither shall the right to travel be impaired except in the interest of national
security, public safety, or public health, as may be provided by law.
Petitioner thus theorizes that under the 1987 Constitution, Courts can impair the right
to travel only on the grounds of "national security, public safety, or public health."
The submission is not well taken.
Article III, Section 6 of the 1987 Constitution should be interpreted to mean that while
the liberty of travel may be impaired even without Court Order, the appropriate
executive officers or administrative authorities are not armed with arbitrary discretion
to impose limitations. They can impose limits only on the basis of "national security,
public safety, or public health" and "as may be provided by law," a limitive phrase
which did not appear in the 1973 text (The Constitution, Bernas, Joaquin G.,S.J., Vol.
I, First Edition, 1987, p. 263). Apparently, the phraseology in the 1987 Constitution
was a reaction to the ban on international travel imposed under the previous regime
when there was a Travel Processing Center, which issued certificates of eligibility to
travel upon application of an interested party (See Salonga vs. Hermoso & Travel
Processing Center, No. 53622, 25 April 1980, 97 SCRA 121).
Article III, Section 6 of the 1987 Constitution should by no means be construed as
delimiting the inherent power of the Courts to use all means necessary to carry their
orders into effect in criminal cases pending before them. When by law jurisdiction is
conferred on a Court or judicial officer, all auxillary writs, process and other means
Page 102 of 236
necessary to carry it into effect may be employed by such Court or officer (Rule 135,
Section 6, Rules of Court).
Petitioner's argument that the ruling in Manotoc, Jr., v. Court of Appeals, et al.
(supra), to the effect that the condition imposed upon an accused admitted to bail to
make himself available at all times whenever the Court requires his presence
operates as a valid restriction on the right to travel no longer holds under the 1987
Constitution, is far from tenable. The nature and function of a bail bond has remained
unchanged whether under the 1935, the 1973, or the 1987 Constitution. Besides,
the Manotoc ruling on that point was but a re-affirmation of that laid down long before
in People v. Uy Tuising, 61 Phil. 404 (1935).
Petitioner is facing a criminal charge. He has posted bail but has violated the
conditions thereof by failing to appear before the Court when required. Warrants for
his arrest have been issued. Those orders and processes would be rendered
nugatory if an accused were to be allowed to leave or to remain, at his pleasure,
outside the territorial confines of the country. Holding an accused in a criminal case
within the reach of the Courts by preventing his departure from the Philippines must
be considered as a valid restriction on his right to travel so that he may be dealt with
in accordance with law. The offended party in any criminal proceeding is the People
of the Philippines. It is to their best interest that criminal prosecutions should run their
course and proceed to finality without undue delay, with an accused holding himself
amenable at all times to Court Orders and processes.
WHEREFORE, the judgment under review is hereby AFFIRMED. Costs against
petitioner, Ricardo C. Silverio.
SO ORDERED.
SUMMARY:

cts:
Petitioner was charged with violation of Section 20 (4) of the Revised
Securities Act in Criminal Case of the Regional Trial Court of Cebu. In due time, he
posted bail for his provisional liberty.
More than two (2) years after the filing of the Information, respondent People of the
Philippines filed an Urgent ex parte Motion to cancel the passport of and to issue a
hold-departure Order against accused-petitioner on the ground that he had gone
abroad several times without the necessary Court approval resulting in
postponements of the arraignment and scheduled hearings.
Overruling opposition, the Regional Trial Court issued an Order directing the
Department of Foreign Affairs to cancel Petitioner’s passport or to deny his
application therefor, and the Commission on Immigration to prevent Petitioner from
leaving the country. This order was based primarily on the Trial Court’s finding that
since the filing of the Information, “the accused has not yet been arraigned because
he has never appeared in Court on the dates scheduled for his arraignment and
there is evidence to show that accused Ricardo C. Silverio, Sr. has left the country
and has gone abroad without the knowledge and permission of this Court”.
Petitioner’s Motion for Reconsideration was denied.
Issue:
Whether or not the right to travel may be impaired by order of the court
Ruling:
The Supreme Court held that the foregoing condition imposed upon an
accused to make himself available at all times whenever the Court requires his
presence operates as a valid restriction of his right to travel. A person facing criminal
charges may be restrained by the Court from leaving the country or, if abroad,
compelled to return. So it is also that “An accused released on bail may be re-
Page 103 of 236
arrested without the necessity of a warrant if he attempts to depart from the
Philippines without prior permission of the Court where the case is pending.

Petitioner takes the posture, however, that while the 1987 Constitution
recognizes the power of the Courts to curtail the liberty of abode within the limits
prescribed by law, it restricts the allowable impairment of the right to travel only on
grounds of interest of national security, public safety or public health, as compared to
the provisions on freedom of movement in the 1935 and 1973 Constitutions.

SPS HING VS CHOACHUY


FULL TEXT:
SECOND DIVISION
G.R. No. 179736, June 26, 2013
SPOUSES BILL AND VICTORIA HING, Petitioners, v. ALEXANDER CHOACHUY,
SR. AND ALLAN CHOACHUY, Respondents.

DECISION
DEL CASTILLO, J.:
“The concept of liberty would be emasculated if it does not likewise compel respect
for [one’s] personality as a unique individual whose claim to privacy and [non]-
interference demands respect.”1

This Petition for Review on Certiorari2 under Rule 45 of the Rules of Court assails
the July 10, 2007 Decision3 and the September 11, 2007 Resolution4 of the Court of
Appeals (CA) in CA-G.R. CEB-SP No. 01473.

Factual Antecedents

On August 23, 2005, petitioner-spouses Bill and Victoria Hing filed with the Regional
Trial Court (RTC) of Mandaue City a Complaint5 for Injunction and Damages with
prayer for issuance of a Writ of Preliminary Mandatory Injunction/Temporary
Restraining Order (TRO), docketed as Civil Case MAN-5223 and raffled to Branch
Page 104 of 236
28, against respondents Alexander Choachuy, Sr. and Allan Choachuy.

Petitioners alleged that they are the registered owners of a parcel of land (Lot 1900-
B) covered by Transfer Certificate of Title (TCT) No. 42817 situated in Barangay
Basak, City of Mandaue, Cebu;6that respondents are the owners of Aldo
Development & Resources, Inc. (Aldo) located at Lots 1901 and 1900-C, adjacent to
the property of petitioners;7 that respondents constructed an auto-repair shop
building (Aldo Goodyear Servitec) on Lot 1900-C; that in April 2005, Aldo filed a case
against petitioners for Injunction and Damages with Writ of Preliminary
Injunction/TRO, docketed as Civil Case No. MAN-5125;8 that in that case, Aldo
claimed that petitioners were constructing a fence without a valid permit and that the
said construction would destroy the wall of its building, which is adjacent to
petitioners’ property;9 that the court, in that case, denied Aldo’s application for
preliminary injunction for failure to substantiate its allegations;10 that, in order to get
evidence to support the said case, respondents on June 13, 2005 illegally set-up and
installed on the building of Aldo Goodyear Servitec two video surveillance cameras
facing petitioners’ property;11 that respondents, through their employees and without
the consent of petitioners, also took pictures of petitioners’ on-going
construction;12 and that the acts of respondents violate petitioners’ right to
privacy.13 Thus, petitioners prayed that respondents be ordered to remove the video
surveillance cameras and enjoined from conducting illegal surveillance.14

In their Answer with Counterclaim,15 respondents claimed that they did not install the
video surveillance cameras,16 nor did they order their employees to take pictures of
petitioners’ construction.17 They also clarified that they are not the owners of Aldo but
are mere stockholders.18

Ruling of the Regional Trial Court

On October 18, 2005, the RTC issued an Order19 granting the application for a
TRO. The dispositive portion of the said Order reads:cralavvonlinelawlibrary
WHEREFORE, the application for a [T]emporary [R]estraining [O]rder or a [W]rit of
[P]reliminary [I]njunction is granted. Upon the filing and approval of a bond by
[petitioners], which the Court sets at P50,000.00, let a [W]rit of [P]reliminary
[I]njunction issue against the [respondents] Alexander Choachuy, Sr. and Allan
Choachuy. They are hereby directed to immediately remove the revolving camera
that they installed at the left side of their building overlooking the side of [petitioners’]
lot and to transfer and operate it elsewhere at the back where [petitioners’] property
can no longer be viewed within a distance of about 2-3 meters from the left corner of
Aldo Servitec, facing the road.

IT IS SO ORDERED.20

Respondents moved for a reconsideration21 but the RTC denied the same in its
Order22 dated February 6, 2006.23 Thus:cralavvonlinelawlibrary
WHEREFORE, the Motion for Reconsideration is hereby DENIED for lack of
merit. Issue a [W]rit of [P]reliminary [I]njunction in consonance with the Order dated
18 October 2005.

IT IS SO ORDERED.24nadcralavvonlinelawlibrary

Aggrieved, respondents filed with the CA a Petition for Certiorari25 under Rule 65 of
Page 105 of 236
the Rules of Court with application for a TRO and/or Writ of Preliminary Injunction.

Ruling of the Court of Appeals

On July 10, 2007, the CA issued its Decision26 granting the Petition
for Certiorari. The CA ruled that the Writ of Preliminary Injunction was issued with
grave abuse of discretion because petitioners failed to show a clear and
unmistakable right to an injunctive writ.27 The CA explained that the right to privacy
of residence under Article 26(1) of the Civil Code was not violated since the property
subject of the controversy is not used as a residence.28 The CA also said that since
respondents are not the owners of the building, they could not have installed video
surveillance cameras.29 They are mere stockholders of Aldo, which has a separate
juridical personality.30 Thus, they are not the proper
parties.31 The fallo reads:cralavvonlinelawlibrary
WHEREFORE, in view of the foregoing premises, judgment is hereby rendered by
us GRANTING the petition filed in this case. The assailed orders dated October 18,
2005 and February 6, 2006 issued by the respondent judge are
hereby ANNULLED and SET ASIDE.

SO ORDERED.32nadcralavvonlinelawlibrary

Issues

Hence, this recourse by petitioners arguing that:cralavvonlinelawlibrary


I.

THE X X X [CA] COMMITTED A REVERSIBLE ERROR WHEN IT ANNULLED AND


SET ASIDE THE ORDERS OF THE [RTC] DATED 18 OCTOBER 2005 AND 6
FEBRUARY 2006 HOLDING THAT THEY WERE ISSUED WITH GRAVE ABUSE
OF DISCRETION.
II.

THE X X X [CA] COMMITTED A REVERSIBLE ERROR WHEN IT RULED THAT


PETITIONER SPOUSES HING ARE NOT ENTITLED TO THE WRIT OF
PRELIMINARY INJUNCTION ON THE GROUND THAT THERE IS NO VIOLATION
OF THEIR CONSTITUTIONAL AND CIVIL RIGHT TO PRIVACY DESPITE THE
FACTUAL FINDINGS [OF] THE RTC, WHICH RESPONDENTS CHOACHUY
FAILED TO REFUTE, THAT THE ILLEGALLY INSTALLED SURVEILLANCE
CAMERAS OF RESPONDENTS CHOACH[U]Y WOULD CAPTURE THE PRIVATE
ACTIVITIES OF PETITIONER SPOUSES HING, THEIR CHILDREN AND
EMPLOYEES.
III.

THE X X X [CA] COMMITTED A REVERSIBLE ERROR WHEN IT RULED THAT


SINCE THE OWNER OF THE BUILDING IS ALDO DEVELOPMENT AND
RESOURCES, INC. THEN TO SUE RESPONDENTS CHOACHUY
CONSTITUTE[S] A PURPORTEDLY UNWARRANTED PIERCING OF THE
CORPORATE VEIL.
IV.

THE X X X [CA] COMMITTED A REVERSIBLE ERROR WHEN IT IGNORED THE


SERIOUS FORMAL DEFICIENCIES OF BOTH THE PETITION AND THE MOTION
Page 106 of 236
FOR RECONSIDERATION DATED 15 MARCH 2006 OF RESPONDENT[S]
CHOACH[U]Y AND GAVE X X X THEM DUE COURSE AND CONSIDERATION.33

Essentially, the issues boil down to (1) whether there is a violation of petitioners’ right
to privacy, and (2) whether respondents are the proper parties to this suit.

Petitioners’ Arguments

Petitioners insist that they are entitled to the issuance of a Writ of Preliminary
Injunction because respondents’ installation of a stationary camera directly facing
petitioners’ property and a revolving camera covering a significant portion of the
same property constitutes a violation of petitioners’ right to privacy.34 Petitioners cite
Article 26(1) of the Civil Code, which enjoins persons from prying into the private
lives of others.35 Although the said provision pertains to the privacy of another’s
residence, petitioners opine that it includes business offices, citing Professor Arturo
M. Tolentino.36 Thus, even assuming arguendo that petitioners’ property is used for
business, it is still covered by the said provision.37

As to whether respondents are the proper parties to implead in this case, petitioners
claim that respondents and Aldo are one and the same, and that respondents only
want to hide behind Aldo’s corporate fiction.38 They point out that if respondents are
not the real owners of the building, where the video surveillance cameras were
installed, then they had no business consenting to the ocular inspection conducted
by the court.39

Respondents’ Arguments

Respondents, on the other hand, echo the ruling of the CA that petitioners cannot
invoke their right to privacy since the property involved is not used as a
residence.40 Respondents maintain that they had nothing to do with the installation of
the video surveillance cameras as these were installed by Aldo, the registered owner
of the building,41 as additional security for its building. 42 Hence, they were wrongfully
impleaded in this case.43
Our Ruling

The Petition is meritorious.

The right to privacy is the right to be let alone.

The right to privacy is enshrined in our Constitution44 and in our laws. It is defined as
“the right to be free from unwarranted exploitation of one’s person or from intrusion
into one’s private activities in such a way as to cause humiliation to a person’s
ordinary sensibilities.”45 It is the right of an individual “to be free from unwarranted
publicity, or to live without unwarranted interference by the public in matters in which
the public is not necessarily concerned.”46 Simply put, the right to privacy is “the
right to be let alone.”47

The Bill of Rights guarantees the people’s right to privacy and protects them against
the State’s abuse of power. In this regard, the State recognizes the right of the
people to be secure in their houses. No one, not even the State, except “in case of
overriding social need and then only under the stringent procedural safeguards,” can
disturb them in the privacy of their homes.48
Page 107 of 236
The right to privacy under Article 26(1)
of the Civil Code covers business offices
where the public are excluded therefrom
and only certain individuals are allowed
to enter.

Article 26(1) of the Civil Code, on the other hand, protects an individual’s right to
privacy and provides a legal remedy against abuses that may be committed against
him by other individuals. It states:cralavvonlinelawlibrary
Art. 26. Every person shall respect the dignity, personality, privacy and peace of
mind of his neighbors and other persons. The following and similar acts, though they
may not constitute a criminal offense, shall produce a cause of action for damages,
prevention and other relief:cralavvonlinelawlibrary

(1) Prying into the privacy of another’s residence;chanroblesvirtualawlibrary

xxxx

This provision recognizes that a man’s house is his castle, where his right to privacy
cannot be denied or even restricted by others. It includes “any act of intrusion into,
peeping or peering inquisitively into the residence of another without the consent of
the latter.”49 The phrase “prying into the privacy of another’s residence,” however,
does not mean that only the residence is entitled to privacy. As elucidated by Civil
law expert Arturo M. Tolentino:cralavvonlinelawlibrary
Our Code specifically mentions “prying into the privacy of another’s residence.” This
does not mean, however, that only the residence is entitled to privacy, because the
law covers also “similar acts.” A business office is entitled to the same privacy
when the public is excluded therefrom and only such individuals as are
allowed to enter may come in. x x x50 (Emphasis supplied)

Thus, an individual’s right to privacy under Article 26(1) of the Civil Code should not
be confined to his house or residence as it may extend to places where he has the
right to exclude the public or deny them access. The phrase “prying into the privacy
of another’s residence,” therefore, covers places, locations, or even situations which
an individual considers as private. And as long as his right is recognized by society,
other individuals may not infringe on his right to privacy. The CA, therefore, erred in
limiting the application of Article 26(1) of the Civil Code only to residences.

The “reasonable expectation of privacy”


test is used to determine whether there
is a violation of the right to privacy.

In ascertaining whether there is a violation of the right to privacy, courts use the
“reasonable expectation of privacy” test. This test determines whether a person has
a reasonable expectation of privacy and whether the expectation has been
violated.51 In Ople v. Torres,52 we enunciated that “the reasonableness of a person’s
expectation of privacy depends on a two-part test: (1) whether, by his conduct, the
individual has exhibited an expectation of privacy; and (2) this expectation is one that
society recognizes as reasonable.” Customs, community norms, and practices may,
therefore, limit or extend an individual’s “reasonable expectation of
privacy.”53 Hence, the reasonableness of a person’s expectation of privacy must be
Page 108 of 236
determined on a case-to-case basis since it depends on the factual circumstances
surrounding the case.54

In this day and age, video surveillance cameras are installed practically everywhere
for the protection and safety of everyone. The installation of these cameras,
however, should not cover places where there is reasonable expectation of privacy,
unless the consent of the individual, whose right to privacy would be affected, was
obtained. Nor should these cameras be used to pry into the privacy of another’s
residence or business office as it would be no different from eavesdropping, which is
a crime under Republic Act No. 4200 or the Anti-Wiretapping Law.

In this case, the RTC, in granting the application for Preliminary Injunction, ruled
that:cralavvonlinelawlibrary
After careful consideration, there is basis to grant the application for a temporary
restraining order. The operation by [respondents] of a revolving camera, even if it
were mounted on their building, violated the right of privacy of [petitioners], who are
the owners of the adjacent lot. The camera does not only focus on [respondents’]
property or the roof of the factory at the back (Aldo Development and Resources,
Inc.) but it actually spans through a good portion of [the] land of [petitioners].

Based on the ocular inspection, the Court understands why [petitioner] Hing was so
unyielding in asserting that the revolving camera was set up deliberately to monitor
the on[-]going construction in his property. The monitor showed only a portion of the
roof of the factory of [Aldo]. If the purpose of [respondents] in setting up a camera at
the back is to secure the building and factory premises, then the camera should
revolve only towards their properties at the back. [Respondents’] camera cannot be
made to extend the view to [petitioners’] lot. To allow the [respondents] to do that
over the objection of the [petitioners] would violate the right of [petitioners] as
property owners. “The owner of a thing cannot make use thereof in such a manner
as to injure the rights of a third person.”55

The RTC, thus, considered that petitioners have a “reasonable expectation of


privacy” in their property, whether they use it as a business office or as a residence
and that the installation of video surveillance cameras directly facing petitioners’
property or covering a significant portion thereof, without their consent, is a clear
violation of their right to privacy. As we see then, the issuance of a preliminary
injunction was justified. We need not belabor that the issuance of a preliminary
injunction is discretionary on the part of the court taking cognizance of the case and
should not be interfered with, unless there is grave abuse of discretion committed by
the court.56 Here, there is no indication of any grave abuse of discretion. Hence, the
CA erred in finding that petitioners are not entitled to an injunctive writ.

This brings us to the next question: whether respondents are the proper parties to
this suit.

A real party defendant is one who has a


correlative legal obligation to redress
a wrong done to the plaintiff by reason
of the defendant's act or omission which
had violated the legal right of the former.

Section 2, Rule 3 of the Rules of Court provides:cralavvonlinelawlibrary


Page 109 of 236
SEC. 2. Parties-in-interest. — A real party-in-interest is the party who stands to be
benefited or injured by the judgment in the suit, or the party entitled to the avails of
the suit. Unless otherwise authorized by law or these Rules, every action must be
prosecuted or defended in the name of the real party-in-interest.

A real party defendant is “one who has a correlative legal obligation to redress a
wrong done to the plaintiff by reason of the defendant’s act or omission which had
violated the legal right of the former.”57

In ruling that respondents are not the proper parties, the CA reasoned that since they
do not own the building, they could not have installed the video surveillance
cameras.58 Such reasoning, however, is erroneous. The fact that respondents are
not the registered owners of the building does not automatically mean that they did
not cause the installation of the video surveillance cameras.

In their Complaint, petitioners claimed that respondents installed the video


surveillance cameras in order to fish for evidence, which could be used against
petitioners in another case.59 During the hearing of the application for Preliminary
Injunction, petitioner Bill testified that when respondents installed the video
surveillance cameras, he immediately broached his concerns but they did not seem
to care,60 and thus, he reported the matter to the barangay for mediation, and
eventually, filed a Complaint against respondents before the RTC.61 He also
admitted that as early as 1998 there has already been a dispute between his family
and the Choachuy family concerning the boundaries of their respective
properties.62 With these factual circumstances in mind, we believe that respondents
are the proper parties to be impleaded.

Moreover, although Aldo has a juridical personality separate and distinct from its
stockholders, records show that it is a family-owned corporation managed by the
Choachuy family.63

Also quite telling is the fact that respondents, notwithstanding their claim that they
are not owners of the building, allowed the court to enter the compound of Aldo and
conduct an ocular inspection. The counsel for respondents even toured Judge
Marilyn Lagura-Yap inside the building and answered all her questions regarding the
set-up and installation of the video surveillance cameras.64 And when respondents
moved for reconsideration of the Order dated October 18, 2005 of the RTC, one of
the arguments they raised is that Aldo would suffer damages if the video surveillance
cameras are removed and transferred.65 Noticeably, in these instances, the
personalities of respondents and Aldo seem to merge.

All these taken together lead us to the inevitable conclusion that respondents are
merely using the corporate fiction of Aldo as a shield to protect themselves from this
suit. In view of the foregoing, we find that respondents are the proper parties to this
suit.

WHEREFORE, the Petition is hereby GRANTED. The Decision dated July 10, 2007
and the Resolution dated September 11, 2007 of the Court of Appeals in CA-G.R.
CEB-SP No. 01473 are hereby REVERSED and SET ASIDE. The Orders dated
October 18, 2005 and February 6, 200[6] of Branch 28 of the Regional Trial Court of
Mandaue City in Civil Case No. MAN-5223 are
hereby REINSTATED and AFFIRMED.
Page 110 of 236
SO ORDERED.

POLLO VS CONSTANTINO-DAVID
FULL TEXT:
EN BANC

BRICCIO Ricky A. POLLO, G.R. No. 181881


Petitioner,
Present:

CORONA, C.J.,
CARPIO,
VELASCO, JR.,
- versus - LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,*
ABAD,
VILLARAMA, JR.,
CHAIRPERSON KARINA CONSTANTINO- PEREZ,
DAVID, MENDOZA,
DIRECTOR IV RACQUEL DE GUZMAN SERENO,
BUENSALIDA, REYES, and
DIRECTOR IV LYDIA A. PERLAS-BERNABE, JJ.
CASTILLO, DIRECTOR III
ENGELBERT ANTHONY D. UNITE AND Promulgated:
THE CIVIL SERVICE COMMISSION,
Respondents. October 18, 2011
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION
VILLARAMA, JR., J.:
This case involves a search of office computer assigned to a government employee
who was charged administratively and eventually dismissed from the service. The
employees personal files stored in the computer were used by the government
employer as evidence of misconduct.
Before us is a petition for review on certiorari under Rule 45 which seeks to
reverse and set aside the Decision[1] dated October 11, 2007 and
[2]
Resolution dated February 29, 2008 of the Court of Appeals (CA). The CA
dismissed the petition for certiorari (CA-G.R. SP No. 98224) filed by petitioner Briccio
Ricky A. Pollo to nullify the proceedings conducted by the Civil Service Commission
(CSC) which found him guilty of dishonesty, grave misconduct, conduct prejudicial to
the best interest of the service, and violation of Republic Act (R.A.) No. 6713 and
penalized him with dismissal.
The factual antecedents:
Petitioner is a former Supervising Personnel Specialist of the CSC Regional
Office No. IV and also the Officer-in-Charge of the Public Assistance and Liaison
Page 111 of 236
Division (PALD) under the Mamamayan Muna Hindi Mamaya Na program of the
CSC.
On January 3, 2007 at around 2:30 p.m., an unsigned letter-complaint addressed to
respondent CSC Chairperson Karina Constantino-David which was marked
Confidential and sent through a courier service (LBC) from a certain Alan San
Pascual of Bagong Silang, Caloocan City, was received by the Integrated Records
Management Office (IRMO) at the CSC Central Office. Following office practice in
which documents marked Confidential are left unopened and instead sent to the
addressee, the aforesaid letter was given directly to Chairperson David.
The letter-complaint reads:
The Chairwoman
Civil Service Commission
Batasan Hills, Quezon City

Dear Madam Chairwoman,


Belated Merry Christmas and Advance Happy New Year!

As a concerned citizen of my beloved country, I would like to ask


from you personally if it is just alright for an employee of your agency
to be a lawyer of an accused govt employee having a pending case in
the csc. I honestly think this is a violation of law and unfair to others
and your office.
I have known that a person have been lawyered by one of your
attorny in the region 4 office. He is the chief of the Mamamayan muna
hindi mamaya na division. He have been helping many who have
pending cases in the Csc. The justice in our govt system will not be
served if this will continue. Please investigate this anomaly because
our perception of your clean and good office is being tainted.

Concerned Govt employee[3]


Chairperson David immediately formed a team of four personnel with background in
information technology (IT), and issued a memo directing them to conduct an
investigation and specifically to back up all the files in the computers found in the
Mamamayan Muna (PALD) and Legal divisions.[4] After some briefing, the team
proceeded at once to the CSC-ROIV office at Panay Avenue, Quezon City. Upon
their arrival thereat around 5:30 p.m., the team informed the officials of the CSC-
ROIV, respondents Director IV Lydia Castillo (Director Castillo) and Director III
Engelbert Unite (Director Unite) of Chairperson Davids directive.
The backing-up of all files in the hard disk of computers at the PALD and Legal
Services Division (LSD) was witnessed by several employees, together with
Directors Castillo and Unite who closely monitored said activity. At around 6:00 p.m.,
Director Unite sent text messages to petitioner and the head of LSD, who were both
out of the office at the time, informing them of the ongoing copying of computer files
in their divisions upon orders of the CSC Chair. The text messages received by
petitioner read:
Gud p.m. This is Atty. Unite FYI: Co people are going over the PCs of
PALD and LSD per instruction of the Chairman. If you can make it
here now it would be better.
All PCs Of PALD and LSD are being backed up per memo of the
chair.
CO IT people arrived just now for this purpose. We were not also
informed about this.
Page 112 of 236
We cant do anything about it its a directive from chair.
Memo of the chair was referring to an anonymous complaint; ill send a
copy of the memo via mms[5]
Petitioner replied also thru text message that he was leaving the matter to Director
Unite and that he will just get a lawyer. Another text message received by petitioner
from PALD staff also reported the presence of the team from CSC main office: Sir
may mga taga C.O. daw sa kuarto natin.[6] At around 10:00 p.m. of the same day, the
investigating team finished their task. The next day, all the computers in the PALD
were sealed and secured for the purpose of preserving all the files stored
therein. Several diskettes containing the back-up files sourced from the hard disk of
PALD and LSD computers were turned over to Chairperson David. The contents of
the diskettes were examined by the CSCs Office for Legal Affairs (OLA). It was found
that most of the files in the 17 diskettes containing files copied from the computer
assigned to and being used by the petitioner, numbering about 40 to 42 documents,
were draft pleadings or letters[7] in connection with administrative cases in the CSC
and other tribunals. On the basis of this finding, Chairperson David issued the Show-
Cause Order[8] dated January 11, 2007, requiring the petitioner, who had gone on
extended leave, to submit his explanation or counter-affidavit within five days from
notice.
Evaluating the subject documents obtained from petitioners personal files,
Chairperson David made the following observations:
Most of the foregoing files are drafts of legal pleadings or
documents that are related to or connected with administrative cases
that may broadly be lumped as pending either in the CSCRO No. IV,
the CSC-NCR, the CSC-Central Office or other tribunals. It is also of
note that most of these draft pleadings are for and on behalves of
parties, who are facing charges as respondents in administrative
cases. This gives rise to the inference that the one who prepared
them was knowingly, deliberately and willfully aiding and advancing
interests adverse and inimical to the interest of the CSC as the central
personnel agency of the government tasked to discipline misfeasance
and malfeasance in the government service. The number of pleadings
so prepared further demonstrates that such person is not merely
engaged in an isolated practice but pursues it with seeming
regularity. It would also be the height of naivete or credulity, and
certainly against common human experience, to believe that the
person concerned had engaged in this customary practice without any
consideration, and in fact, one of the retrieved files (item 13 above)
appears to insinuate the collection of fees. That these draft pleadings
were obtained from the computer assigned to Pollo invariably raises
the presumption that he was the one responsible or had a hand in
their drafting or preparation since the computer of origin was within his
direct control and disposition.[9]
Petitioner filed his Comment, denying that he is the person referred to in the
anonymous letter-complaint which had no attachments to it, because he is not a
lawyer and neither is he lawyering for people with cases in the CSC. He accused
CSC officials of conducting a fishing expedition when they unlawfully copied and
printed personal files in his computer, and subsequently asking him to submit his
comment which violated his right against self-incrimination. He asserted that he had
protested the unlawful taking of his computer done while he was on leave, citing the
letter dated January 8, 2007 in which he informed Director Castillo that the files in his
computer were his personal files and those of his sister, relatives, friends and some
Page 113 of 236
associates and that he is not authorizing their sealing, copying, duplicating and
printing as these would violate his constitutional right to privacy and protection
against self-incrimination and warrantless search and seizure. He pointed out that
though government property, the temporary use and ownership of the computer
issued under a Memorandum of Receipt (MR) is ceded to the employee who may
exercise all attributes of ownership, including its use for personal purposes. As to the
anonymous letter, petitioner argued that it is not actionable as it failed to comply with
the requirements of a formal complaint under the Uniform Rules on Administrative
Cases in the Civil Service (URACC). In view of the illegal search, the files/documents
copied from his computer without his consent is thus inadmissible as evidence, being
fruits of a poisonous tree.[10]
On February 26, 2007, the CSC issued Resolution No. 070382[11] finding prima
facie case against the petitioner and charging him with Dishonesty, Grave
Misconduct, Conduct Prejudicial to the Best Interest of the Service and Violation of
R.A. No. 6713 (Code of Conduct and Ethical Standards for Public Officials and
Employees). Petitioner was directed to submit his answer under oath within five days
from notice and indicate whether he elects a formal investigation. Since the charges
fall under Section 19 of the URACC, petitioner was likewise placed under 90 days
preventive suspension effective immediately upon receipt of the resolution. Petitioner
received a copy of Resolution No. 070382 on March 1, 2007.
Petitioner filed an Omnibus Motion (For Reconsideration, to Dismiss and/or to Defer)
assailing the formal charge as without basis having proceeded from an illegal search
which is beyond the authority of the CSC Chairman, such power pertaining solely to
the court. Petitioner reiterated that he never aided any people with pending cases at
the CSC and alleged that those files found in his computer were prepared not by him
but by certain persons whom he permitted, at one time or another, to make use of his
computer out of close association or friendship. Attached to the motion were the
affidavit of Atty. Ponciano R. Solosa who entrusted his own files to be kept at
petitioners CPU and Atty. Eric N. Estrellado, the latter being Atty. Solosas client who
attested that petitioner had nothing to do with the pleadings or bill for legal fees
because in truth he owed legal fees to Atty. Solosa and not to petitioner. Petitioner
contended that the case should be deferred in view of the prejudicial question raised
in the criminal complaint he filed before the Ombudsman against Director
Buensalida, whom petitioner believes had instigated this administrative case. He also
prayed for the lifting of the preventive suspension imposed on him. In its Resolution
No. 070519[12] dated March 19, 2007, the CSC denied the omnibus motion. The CSC
resolved to treat the said motion as petitioners answer.
On March 14, 2007, petitioner filed an Urgent Petition[13] under Rule 65 of the
Rules of Court, docketed as CA-G.R. SP No. 98224, assailing both the January 11,
2007 Show-Cause Order and Resolution No. 070382 dated February 26, 2007 as
having been issued with grave abuse of discretion amounting to excess or total
absence of jurisdiction. Prior to this, however, petitioner lodged an
administrative/criminal complaint against respondents Directors Racquel D.G.
Buensalida (Chief of Staff, Office of the CSC Chairman) and Lydia A. Castillo (CSC-
RO IV) before the Office of the Ombudsman, and a separate complaint for
disbarment against Director Buensalida.[14]
On April 17, 2007, petitioner received a notice of hearing from the CSC setting the
formal investigation of the case on April 30, 2007. On April 25, 2007, he filed in the
CA an Urgent Motion for the issuance of TRO and preliminary injunction.[15] Since he
failed to attend the pre-hearing conference scheduled on April 30, 2007, the CSC
reset the same to May 17, 2007 with warning that the failure of petitioner and/or his
counsel to appear in the said pre-hearing conference shall entitle the prosecution to
Page 114 of 236
proceed with the formal investigation ex-parte.[16] Petitioner moved to defer or to
reset the pre-hearing conference, claiming that the investigation proceedings should
be held in abeyance pending the resolution of his petition by the CA. The CSC
denied his request and again scheduled the pre-hearing conference on May 18,
2007 with similar warning on the consequences of petitioner and/or his counsels
non-appearance.[17] This prompted petitioner to file another motion in the CA, to cite
the respondents, including the hearing officer, in indirect contempt.[18]
On June 12, 2007, the CSC issued Resolution No. 071134[19] denying petitioners
motion to set aside the denial of his motion to defer the proceedings and to inhibit the
designated hearing officer, Atty. Bernard G. Jimenez. The hearing officer was
directed to proceed with the investigation proper with dispatch.
In view of the absence of petitioner and his counsel, and upon the motion of the
prosecution, petitioner was deemed to have waived his right to the formal
investigation which then proceeded ex parte.
On July 24, 2007, the CSC issued Resolution No. 071420,[20] the dispositive part of
which reads:
WHEREFORE, foregoing premises considered, the
Commission hereby finds Briccio A. Pollo, a.k.a. Ricky A. Pollo
GUILTY of Dishonesty, Grave Misconduct, Conduct Prejudicial to the
Best Interest of the Service and Violation of Republic Act 6713. He is
meted the penalty of DISMISSAL FROM THE SERVICE with all its
accessory penalties, namely, disqualification to hold public office,
forfeiture of retirement benefits, cancellation of civil service eligibilities
and bar from taking future civil service examinations.[21]
On the paramount issue of the legality of the search conducted on petitioners
computer, the CSC noted the dearth of jurisprudence relevant to the factual milieu of
this case where the government as employer invades the private files of an
employee stored in the computer assigned to him for his official use, in the course of
initial investigation of possible misconduct committed by said employee and without
the latters consent or participation. The CSC thus turned to relevant rulings of the
United States Supreme Court, and cited the leading case of OConnor v. Ortega[22] as
authority for the view that government agencies, in their capacity as employers,
rather than law enforcers, could validly conduct search and seizure in the
governmental workplace without meeting the probable cause or warrant requirement
for search and seizure. Another ruling cited by the CSC is the more recent case
of United States v. Mark L. Simons[23] which declared that the federal agencys
computer use policy foreclosed any inference of reasonable expectation of privacy
on the part of its employees. Though the Court therein recognized that such policy
did not, at the same time, erode the respondents legitimate expectation of privacy in
the office in which the computer was installed, still, the warrantless search of the
employees office was upheld as valid because a government employer is entitled to
conduct a warrantless search pursuant to an investigation of work-related
misconduct provided the search is reasonable in its inception and scope.
With the foregoing American jurisprudence as benchmark, the CSC held that
petitioner has no reasonable expectation of privacy with regard to the computer he
was using in the regional office in view of the CSC computer use policy which
unequivocally declared that a CSC employee cannot assert any privacy right to a
computer assigned to him. Even assuming that there was no such administrative
policy, the CSC was of the view that the search of petitioners computer successfully
passed the test of reasonableness for warrantless searches in the workplace as
enunciated in the aforecited authorities. The CSC stressed that it pursued the search
in its capacity as government employer and that it was undertaken in connection with
Page 115 of 236
an investigation involving work-related misconduct, which exempts it from the
warrant requirement under the Constitution. With the matter of admissibility of the
evidence having been resolved, the CSC then ruled that the totality of evidence
adequately supports the charges of grave misconduct, dishonesty, conduct
prejudicial to the best interest of the service and violation of R.A. No. 6713 against
the petitioner. These grave infractions justified petitioners dismissal from the service
with all its accessory penalties.
In his Memorandum[24] filed in the CA, petitioner moved to incorporate the
above resolution dismissing him from the service in his main petition, in lieu of the
filing of an appeal via a Rule 43 petition. In a subsequent motion, he likewise prayed
for the inclusion of Resolution No. 071800[25] which denied his motion for
reconsideration.
By Decision dated October 11, 2007, the CA dismissed the petition for
certiorari after finding no grave abuse of discretion committed by respondents CSC
officials. The CA held that: (1) petitioner was not charged on the basis of the
anonymous letter but from the initiative of the CSC after a fact-finding investigation
was conducted and the results thereof yielded a prima facie case against him; (2) it
could not be said that in ordering the back-up of files in petitioners computer and
later confiscating the same, Chairperson David had encroached on the authority of a
judge in view of the CSC computer policy declaring the computers as government
property and that employee-users thereof have no reasonable expectation of privacy
in anything they create, store, send, or receive on the computer system; and (3)
there is nothing contemptuous in CSCs act of proceeding with the formal
investigation as there was no restraining order or injunction issued by the CA.
His motion for reconsideration having been denied by the CA, petitioner
brought this appeal arguing that
I
THE HONORABLE COURT OF APPEALS GRIEVOUSLY ERRED
AND COMMITTED SERIOUS IRREGULARITY AND BLATANT
ERRORS IN LAW AMOUNTING TO GRAVE ABUSE OF
DISCRETION WHEN IT RULED THAT ANONYMOUS COMPLAINT
IS ACTIONABLE UNDER E.O. 292 WHEN IN TRUTH AND IN FACT
THE CONTRARY IS EXPLICITLY PROVIDED UNDER
2nd PARAGRAPH OF SECTION 8 OF CSC RESOLUTION NO. 99-
1936, WHICH IS AN [AMENDMENT] TO THE ORIGINAL RULES
PER CSC RESOLUTION NO. 94-0521;
II
THE HONORABLE COURT GRIEVOUSLY ERRED AND
COMMITTED PALPABLE ERRORS IN LAW AMOUNTING TO
GRAVE ABUSE OF DISCRETION WHEN IT RULED THAT
PETITIONER CANNOT INVOKE HIS RIGHT TO PRIVACY, TO
UNREASONABLE SEARCH AND SEIZURE, AGAINST SELF-
INCRIMINATION, BY VIRTUE OF OFFICE MEMORANDUM NO. 10
S. 2002, A MERE INTERNAL MEMORANDUM SIGNED SOLELY
AND EXCLUSIVELY BY RESPONDENT DAVID AND NOT BY THE
COLLEGIAL COMMISSION CONSIDERING THAT POLICY
MATTERS INVOLVING SUB[S]TANTIAL RIGHTS CANNOT BE
COVERED BY AN OFFICE MEMORANDUM WHICH IS LIMITED TO
PROCEDURAL AND ROUTINARY INSTRUCTION;
III
THE HONORABLE COURT GRAVELY ERRED AND COMMITTED
GRAVE ABUSE OF DISCRETION WHEN IT RULED THAT MEMO
Page 116 of 236
SEARCH DATED JANUARY 3, 2007 AND THE TAKING OF
DOCUMENTS IN THE EVENING THEREOF FROM 7:00 TO 10:00
P.M. IS NOT GRAVE ABUSE OF DISCRETION LIMITING THE
DEFINITION [OF] GRAVE ABUSE OF DISCRETION TO ONE
INVOLVING AND TAINTED WITH PERSONAL HOSTILITY. IT
LIKEWISE ERRED IN HOLDING THAT DATA STORED IN THE
GOVERNMENT COMPUTERS ARE GOVERNMENT PROPERTIES
INCLUDING THE PERSONAL FILES WHEN THE CONTRARY IS
PROVIDED UNDER SECTION 14 OF OM. 10 s. 2002. AND
GRIEVOUSLY ERRED STILL WHEN IT RULED THAT
RESPONDENT DAVID BY VIRTUE OF O.M. 10 DID NOT
ENCROACH ON THE DUTIES AND FUNCTIONS OF A JUDGE
PURSUANT TO ARTICLE III, SECTION 2 OF THE 1987 PHILIPPINE
CONSTITUTION;
IV
THE HONORABLE COURT ERRED WHEN IT FAILED TO
CONSIDER ALL OTHER NEW ARGUMENTS, ADDITIONAL
EVIDENCE HEREUNTO SUBMITTED AS WELL AS ITS FAILURE
TO EVALUATE AND TAKE ACTION ON THE 2 MOTIONS TO
ADMIT AND INCORPORATE CSC RESOLUTION NOS. 07-1420
DATED JULY 24, 2007 AND CSC RESOLUTION 07-1800 DATED
SEPTEMBER 10, 2007. IT DID NOT RULE LIKEWISE ON THE
FOUR URGENT MOTION TO RESOLVE ANCILLARY PRAYER FOR
TRO.[26]
Squarely raised by the petitioner is the legality of the search conducted on his office
computer and the copying of his personal files without his knowledge and consent,
alleged as a transgression on his constitutional right to privacy.
The right to privacy has been accorded recognition in this jurisdiction as a
facet of the right protected by the guarantee against unreasonable search and
seizure under Section 2, Article III of the 1987 Constitution,[27] which provides:
SEC. 2. The right of the people to be secure in their persons,
houses, papers, and effects against unreasonable searches and
seizures of whatever nature and for any purpose shall be inviolable,
and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be
searched and the persons or things to be seized.
The constitutional guarantee is not a prohibition of all searches and seizures but only
of unreasonable searches and seizures.[28] But to fully understand this concept and
application for the purpose of resolving the issue at hand, it is essential that we
examine the doctrine in the light of pronouncements in another jurisdiction. As the
Court declared in People v. Marti[29]:
Our present constitutional provision on the guarantee against
unreasonable search and seizure had its origin in the 1935 Charter
which, worded as follows:
The right of the people to be secure in their
persons, houses, papers and effects against
unreasonable searches and seizures shall not be
violated, and no warrants shall issue but
upon probable cause, to be determined by the judge
after examination under oath or affirmation of the
Page 117 of 236
complainant and the witnesses he may produce, and
particularly describing the place to be searched, and
the persons or things to be seized. (Sec. 1[3], Article
III)
was in turn derived almost verbatim from the Fourth Amendment to
the United States Constitution. As such, the Court may turn to the
pronouncements of the United States Federal Supreme Court and
State Appellate Courts which are considered doctrinal in this
jurisdiction.[30]
In the 1967 case of Katz v. United States,[31] the US Supreme Court held that the act
of FBI agents in electronically recording a conversation made by petitioner in an
enclosed public telephone booth violated his right to privacy and constituted a search
and seizure. Because the petitioner had a reasonable expectation of privacy in using
the enclosed booth to make a personal telephone call, the protection of the Fourth
Amendment extends to such area. In the concurring opinion of Mr. Justice Harlan, it
was further noted that the existence of privacy right under prior decisions involved a
two-fold requirement: first, that a person has exhibited an actual (subjective)
expectation of privacy; and second, that the expectation be one that society is
prepared to recognize as reasonable (objective).[32]
In Mancusi v. DeForte[33] which addressed the reasonable expectations
of private employees in the workplace, the US Supreme Court held that a union
employee had Fourth Amendment rights with regard to an office at union
headquarters that he shared with other union officials, even as the latter or their
guests could enter the office. The Court thus recognized that employees may have a
reasonable expectation of privacy against intrusions by police.
That the Fourth Amendment equally applies to a government workplace was
addressed in the 1987 case of OConnor v. Ortega[34] where a physician, Dr. Magno
Ortega, who was employed by a state hospital, claimed a violation of his Fourth
Amendment rights when hospital officials investigating charges of mismanagement
of the psychiatric residency program, sexual harassment of female hospital
employees and other irregularities involving his private patients under the state
medical aid program, searched his office and seized personal items from his desk
and filing cabinets. In that case, the Court categorically declared that [i]ndividuals do
not lose Fourth Amendment rights merely because they work for the government
instead of a private employer.[35] A plurality of four Justices concurred that the correct
analysis has two steps: first, because some government offices may be so open to
fellow employees or the public that no expectation of privacy is reasonable, a court
must consider [t]he operational realities of the workplace in order to determine
whether an employees Fourth Amendment rights are implicated; and next, where an
employee has a legitimate privacy expectation, an employers intrusion on that
expectation for noninvestigatory, work-related purposes, as well as for investigations
of work-related misconduct, should be judged by the standard of reasonableness
under all the circumstances.[36]
On the matter of government employees reasonable expectations of privacy in their
workplace, OConnor teaches:
x x x Public employees expectations of privacy in their offices,
desks, and file cabinets, like similar expectations of employees in the
private sector, may be reduced by virtue of actual office practices and
procedures, or by legitimate regulation. x x x The employees
expectation of privacy must be assessed in the context of the
employment relation. An office is seldom a private enclave free from
entry by supervisors, other employees, and business and personal
Page 118 of 236
invitees. Instead, in many cases offices are continually entered by
fellow employees and other visitors during the workday for
conferences, consultations, and other work-related visits. Simply put,
it is the nature of government offices that others such as fellow
employees, supervisors, consensual visitors, and the general public
may have frequent access to an individuals office. We agree with
JUSTICE SCALIA that [c]onstitutional protection against
unreasonable searches by the government does not disappear merely
because the government has the right to make reasonable intrusions
in its capacity as employer, x x x but some government offices may
be so open to fellow employees or the public that no expectation
of privacy is reasonable. x x x Given the great variety of work
environments in the public sector, the question of whether an
employee has a reasonable expectation of privacy must be
addressed on a case-by-case basis.[37] (Citations omitted; emphasis
supplied.)
On the basis of the established rule in previous cases, the US Supreme Court
declared that Dr. Ortegas Fourth Amendment rights are implicated only if the conduct
of the hospital officials infringed an expectation of privacy that society is prepared to
consider as reasonable. Given the undisputed evidence that respondent Dr. Ortega
did not share his desk or file cabinets with any other employees, kept personal
correspondence and other private items in his own office while those work-related
files (on physicians in residency training) were stored outside his office, and there
being no evidence that the hospital had established any reasonable regulation or
policy discouraging employees from storing personal papers and effects in their
desks or file cabinets (although the absence of such a policy does not create any
expectation of privacy where it would not otherwise exist), the Court concluded that
Dr. Ortega has a reasonable expectation of privacy at least in his desk and file
cabinets.[38]
Proceeding to the next inquiry as to whether the search conducted by hospital
officials was reasonable, the OConnor plurality decision discussed the following
principles:
Having determined that Dr. Ortega had a reasonable
expectation of privacy in his office, the Court of Appeals simply
concluded without discussion that the searchwas not a reasonable
search under the fourth amendment. x x x [t]o hold that the Fourth
Amendment applies to searches conducted by [public employers] is
only to begin the inquiry into the standards governing such
searches[W]hat is reasonable depends on the context within which a
search takes place. x x x Thus, we must determine the appropriate
standard of reasonableness applicable to the search.A determination
of the standard of reasonableness applicable to a particular class of
searches requires balanc[ing] the nature and quality of the intrusion
on the individuals Fourth Amendment interests against the importance
of the governmental interests alleged to justify the intrusion. x x x In
the case of searches conducted by a public employer, we must
balance the invasion of the employees legitimate expectations of
privacy against the governments need for supervision, control,
and the efficient operation of the workplace.
xxxx
In our view, requiring an employer to obtain a warrant
whenever the employer wished to enter an employees office, desk, or
Page 119 of 236
file cabinets for a work-related purpose would seriously disrupt the
routine conduct of business and would be unduly
burdensome. Imposing unwieldy warrant procedures in such cases
upon supervisors, who would otherwise have no reason to be familiar
with such procedures, is simply unreasonable. In contrast to other
circumstances in which we have required warrants, supervisors in
offices such as at the Hospital are hardly in the business of
investigating the violation of criminal laws. Rather, work-related
searches are merely incident to the primary business of the
agency. Under these circumstances, the imposition of a warrant
requirement would conflict with the common-sense realization that
government offices could not function if every employment decision
became a constitutional matter. x x x
xxxx
The governmental interest justifying work-related intrusions by
public employers is the efficient and proper operation of the
workplace. Government agencies provide myriad services to the
public, and the work of these agencies would suffer if employers were
required to have probable cause before they entered an employees
desk for the purpose of finding a file or piece of office
correspondence. Indeed, it is difficult to give the concept of probable
cause, rooted as it is in the criminal investigatory context, much
meaning when the purpose of a search is to retrieve a file for work-
related reasons. Similarly, the concept of probable cause has little
meaning for a routine inventory conducted by public employers for the
purpose of securing state property. x x x To ensure the efficient and
proper operation of the agency, therefore, public employers must be
given wide latitude to enter employee offices for work-related,
noninvestigatory reasons.
We come to a similar conclusion for searches conducted
pursuant to an investigation of work-related employee
misconduct. Even when employers conduct an investigation, they
have an interest substantially different from the normal need for law
enforcement. x x x Public employers have an interest in ensuring that
their agencies operate in an effective and efficient manner, and the
work of these agencies inevitably suffers from the inefficiency,
incompetence, mismanagement, or other work-related misfeasance of
its employees. Indeed, in many cases, public employees are
entrusted with tremendous responsibility, and the consequences of
their misconduct or incompetence to both the agency and the public
interest can be severe. In contrast to law enforcement officials,
therefore, public employers are not enforcers of the criminal law;
instead, public employers have a direct and overriding interest in
ensuring that the work of the agency is conducted in a proper and
efficient manner. In our view, therefore, a probable cause
requirement for searches of the type at issue here would impose
intolerable burdens on public employers. The delay in correcting
the employee misconduct caused by the need for probable cause
rather than reasonable suspicion will be translated into tangible
and often irreparable damage to the agencys work, and
ultimately to the public interest. x x x
xxxx
Page 120 of 236
In sum, we conclude that the special needs, beyond the
normal need for law enforcement make theprobable-cause
requirement impracticable, x x x for legitimate, work-related
noninvestigatory intrusions as well as investigations of work-
related misconduct. A standard of reasonableness will neither
unduly burden the efforts of government employers to ensure the
efficient and proper operation of the workplace, nor authorize arbitrary
intrusions upon the privacy of public employees. We hold, therefore,
that public employer intrusions on the constitutionally protected
privacy interests of government employees for noninvestigatory,
work-related purposes, as well as for investigations of work-
related misconduct, should be judged by the standard of
reasonableness under all the circumstances. Under this
reasonableness standard, both the inception and the scope of the
intrusion must be reasonable:
Determining the reasonableness of any search
involves a twofold inquiry: first, one must consider
whether theaction was justified at its inception, x x x
; second, one must determine whether the search as
actually conducted was reasonably related in scope to
the circumstances which justified the interference in the
first place, x x x
Ordinarily, a search of an employees office by a supervisor
will be justified at its inception when there are reasonable
grounds for suspecting that the search will turn up evidence that
the employee is guilty of work-related misconduct, or that the
search is necessary for a noninvestigatory work-related
purpose such as to retrieve a needed file. x x x The search will be
permissible in its scope when the measures adopted are
reasonably related to the objectives of the search and not
excessively intrusive in light of the nature of the [misconduct]. x
x x[39] (Citations omitted; emphasis supplied.)
Since the District Court granted summary judgment without a hearing on the factual
dispute as to the character of the search and neither was there any finding made as
to the scope of the search that was undertaken, the case was remanded to said
court for the determination of the justification for the search and seizure, and
evaluation of the reasonableness of both the inception of the search and its scope.
In OConnor the Court recognized that special needs authorize warrantless
searches involving public employees for work-related reasons. The Court thus laid
down a balancing test under which government interests are weighed against the
employees reasonable expectation of privacy. This reasonableness test implicates
neither probable cause nor the warrant requirement, which are related to law
enforcement.[40]
OConnor was applied in subsequent cases raising issues on employees
privacy rights in the workplace. One of these cases involved a government
employers search of an office computer, United States v. Mark L. Simons[41] where
the defendant Simons, an employee of a division of the Central Intelligence Agency
(CIA), was convicted of receiving and possessing materials containing child
pornography. Simons was provided with an office which he did not share with
anyone, and a computer with Internet access.The agency had instituted a policy on
computer use stating that employees were to use the Internet for official government
business only and that accessing unlawful material was specifically prohibited. The
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policy also stated that users shall understand that the agency will periodically audit,
inspect, and/or monitor the users Internet access as deemed appropriate. CIA
agents instructed its contractor for the management of the agencys computer
network, upon initial discovery of prohibited internet activity originating from Simons
computer, to conduct a remote monitoring and examination of Simons
computer. After confirming that Simons had indeed downloaded pictures that were
pornographic in nature, all the files on the hard drive of Simons computer were
copied from a remote work station. Days later, the contractors representative finally
entered Simons office, removed the original hard drive on Simons computer,
replaced it with a copy, and gave the original to the agency security
officer. Thereafter, the agency secured warrants and searched Simons office in the
evening when Simons was not around. The search team copied the contents of
Simons computer; computer diskettes found in Simons desk drawer; computer files
stored on the zip drive or on zip drive diskettes; videotapes; and various documents,
including personal correspondence. At his trial, Simons moved to suppress these
evidence, arguing that the searches of his office and computer violated his Fourth
Amendment rights. After a hearing, the district court denied the motion and Simons
was found guilty as charged.
Simons appealed his convictions. The US Supreme Court ruled that the
searches of Simons computer and office did not violate his Fourth Amendment rights
and the first search warrant was valid. It held that the search remains valid under
the OConnor exception to the warrant requirement because evidence of the crime
was discovered in the course of an otherwise proper administrative
inspection. Simons violation of the agencys Internet policy happened also to be a
violation of criminal law; this does not mean that said employer lost the capacity and
interests of an employer. The warrantless entry into Simons office was reasonable
under the Fourth Amendment standard announced in OConnor because at the
inception of the search, the employer had reasonable grounds for suspecting that the
hard drive would yield evidence of misconduct, as the employer was already aware
that Simons had misused his Internet access to download over a thousand
pornographic images. The retrieval of the hard drive was reasonably related to the
objective of the search, and the search was not excessively intrusive. Thus, while
Simons had a reasonable expectation of privacy in his office, he did not have such
legitimate expectation of privacy with regard to the files in his computer.
x x x To establish a violation of his rights under the Fourth
Amendment, Simons must first prove that he had a legitimate
expectation of privacy in the place searched or the item seized. x x x
And, in order to prove a legitimate expectation of privacy, Simons
must show that his subjective expectation of privacy is one that
society is prepared to accept as objectively reasonable. x x x
xxxx
x x x We conclude that the remote searches of Simons
computer did not violate his Fourth Amendment rights because, in
light of the Internet policy, Simons lacked a legitimate expectation of
privacy in the files downloaded from the Internet. Additionally, we
conclude that Simons Fourth Amendment rights were not violated by
FBIS retrieval of Simons hard drive from his office.
Simons did not have a legitimate expectation of privacy
with regard to the record or fruits of his Internet use in light of
the FBIS Internet policy. The policy clearly stated that FBIS
would audit, inspect, and/or monitor employees use of the
Internet, including all file transfers, all websites visited, and all e-
Page 122 of 236
mail messages, as deemed appropriate. x x x This policy placed
employees on notice that they could not reasonably expect that their
Internet activity would be private. Therefore, regardless of whether
Simons subjectively believed that the files he transferred from the
Internet were private, such a belief was not objectively reasonable
after FBIS notified him that it would be overseeing his Internet use. x x
x Accordingly, FBIS actions in remotely searching and seizing the
computer files Simons downloaded from the Internet did not violate
the Fourth Amendment.
xxxx
The burden is on Simons to prove that he had a legitimate
expectation of privacy in his office. x x x Here, Simons has shown
that he had an office that he did not share. As noted above, the
operational realities of Simons workplace may have diminished his
legitimate privacy expectations. However, there is no evidence in the
record of any workplace practices, procedures, or regulations that had
such an effect. We therefore conclude that, on this record, Simons
possessed a legitimate expectation of privacy in his office.
xxxx
In the final analysis, this case involves an employees
supervisor entering the employees government office and retrieving a
piece of government equipment in which the employee had absolutely
no expectation of privacy equipment that the employer knew
contained evidence of crimes committed by the employee in the
employees office. This situation may be contrasted with one in which
the criminal acts of a government employee were unrelated to his
employment. Here, there was a conjunction of the conduct that
violated the employers policy and the conduct that violated the
criminal law. We consider that FBIS intrusion into Simons office to
retrieve the hard drive is one in which a reasonable employer might
engage. x x x[42] (Citations omitted; emphasis supplied.)
This Court, in Social Justice Society (SJS) v. Dangerous Drugs Board[43] which
involved the constitutionality of a provision in R.A. No. 9165 requiring mandatory
drug testing of candidates for public office, students of secondary and tertiary
schools, officers and employees of public and private offices, and persons charged
before the prosecutors office with certain offenses, have also recognized the fact that
there may be such legitimate intrusion of privacy in the workplace.
The first factor to consider in the matter of reasonableness is
the nature of the privacy interest upon which the drug testing, which
effects a search within the meaning of Sec. 2, Art. III of the
Constitution, intrudes. In this case, the office or workplace serves as
the backdrop for the analysis of the privacy expectation of the
employees and the reasonableness of drug testing requirement. The
employees privacy interest in an office is to a large extent
circumscribed by the companys work policies, the collective
bargaining agreement, if any, entered into by management and
the bargaining unit, and the inherent right of the employer to
maintain discipline and efficiency in the workplace. Their privacy
expectation in a regulated office environment is, in fine, reduced; and
a degree of impingement upon such privacy has been upheld.
(Emphasis supplied.)

Page 123 of 236


Applying the analysis and principles announced in OConnor and Simons to the case
at bar, we now address the following questions: (1) Did petitioner have a reasonable
expectation of privacy in his office and computer files?; and (2) Was the search
authorized by the CSC Chair, the copying of the contents of the hard drive on
petitioners computer reasonable in its inception and scope?
In this inquiry, the relevant surrounding circumstances to consider include (1) the
employees relationship to the item seized; (2) whether the item was in the immediate
control of the employee when it was seized; and (3) whether the employee took
actions to maintain his privacy in the item. These factors are relevant to both the
subjective and objective prongs of the reasonableness inquiry, and we consider the
two questions together.[44] Thus, where the employee used a password on his
computer, did not share his office with co-workers and kept the same locked, he had
a legitimate expectation of privacy and any search of that space and items located
therein must comply with the Fourth Amendment.[45]
We answer the first in the negative. Petitioner failed to prove that he had an
actual (subjective) expectation of privacy either in his office or government-issued
computer which contained his personal files. Petitioner did not allege that he had a
separate enclosed office which he did not share with anyone, or that his office was
always locked and not open to other employees or visitors. Neither did he allege that
he used passwords or adopted any means to prevent other employees from
accessing his computer files. On the contrary, he submits that being in the public
assistance office of the CSC-ROIV, he normally would have visitors in his office like
friends, associates and even unknown people, whom he even allowed to use his
computer which to him seemed a trivial request. He described his office as full of
people, his friends, unknown people and that in the past 22 years he had been
discharging his functions at the PALD, he is personally assisting incoming clients,
receiving documents, drafting cases on appeals, in charge of accomplishment
report, Mamamayan Muna Program, Public Sector Unionism, Correction of name,
accreditation of service, and hardly had anytime for himself alone, that in fact he
stays in the office as a paying customer.[46] Under this scenario, it can hardly be
deduced that petitioner had such expectation of privacy that society would recognize
as reasonable.

Moreover, even assuming arguendo, in the absence of allegation or proof of the


aforementioned factual circumstances, that petitioner had at least a subjective
expectation of privacy in his computer as he claims, such is negated by the presence
of policy regulating the use of office computers, as in Simons.
Office Memorandum No. 10, S. 2002 Computer Use Policy (CUP) explicitly provides:
POLICY
1. The Computer Resources are the property of the Civil Service
Commission and may be used only for legitimate business
purposes.

2. Users shall be permitted access to Computer Resources to


assist them in the performance of their respective jobs.

3. Use of the Computer Resources is a privilege that may be


revoked at any given time.

xxxx
No Expectation of Privacy

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4. No expectation of privacy. Users except the Members of the
Commission shall not have an expectation of privacy in anything
they create, store, send, or receive on the computer system.
The Head of the Office for Recruitment, Examination and Placement
shall select and assign Users to handle the confidential
examination data and processes.
5. Waiver of privacy rights. Users expressly waive any right to privacy
in anything they create, store, send, or receive on the computer
through the Internet or any other computer
network. Usersunderstand that the CSC may use human or
automated means to monitor the use of its Computer
Resources.
6. Non-exclusivity of Computer Resources. A computer resource
is not a personal property or for the exclusive use of a User to
whom a memorandum of receipt (MR) has been issued. It can
be shared or operated by other users. However, he is
accountable therefor and must insure its care and maintenance.
xxxx
Passwords
12. Responsibility for passwords. Users shall be responsible for
safeguarding their passwords for access to the computer
system. Individual passwords shall not be printed, stored online,
or given to others. Users shall be responsible for all transactions
made using their passwords. No User may access the computer
system with another Users password or account.
13. Passwords do not imply privacy. Use of passwords to gain access
to the computer system or to encode particular files or
messages does not imply that Users have an expectation of
privacy in the material they create or receive on the computer
system. The Civil Service Commission has global passwords
that permit access to all materials stored on its networked
computer system regardless of whether those materials have
been encoded with a particular Users password. Only members
of the Commission shall authorize the application of the said
global passwords.
x x x x[47] (Emphasis supplied.)
The CSC in this case had implemented a policy that put its employees on notice that
they have no expectation of privacy in anything they create, store, send or receive
on the office computers, and that the CSC may monitor the use of the computer
resources using both automated or human means. This implies that on-the-spot
inspections may be done to ensure that the computer resources were used only for
such legitimate business purposes.
One of the factors stated in OConnor which are relevant in determining whether an
employees expectation of privacy in the workplace is reasonable is the existence of a
workplace privacy policy.[48] In one case, the US Court of Appeals Eighth Circuit held
that a state university employee has not shown that he had a reasonable expectation
of privacy in his computer files where the universitys computer policy, the computer
user is informed not to expect privacy if the university has a legitimate reason to
conduct a search. The user is specifically told that computer files, including e-mail,
can be searched when the university is responding to a discovery request in the
course of litigation.Petitioner employee thus cannot claim a violation of Fourth

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Amendment rights when university officials conducted a warrantless search of his
computer for work-related materials.[49]
As to the second point of inquiry on the reasonableness of the search conducted on
petitioners computer, we answer in the affirmative.
The search of petitioners computer files was conducted in connection with
investigation of work-related misconduct prompted by an anonymous letter-
complaint addressed to Chairperson David regarding anomalies in the CSC-ROIV
where the head of the Mamamayan Muna Hindi Mamaya Na division is supposedly
lawyering for individuals with pending cases in the CSC. Chairperson David stated in
her sworn affidavit:
8. That prior to this, as early as 2006, the undersigned has received
several text messages from unknown sources adverting to
certain anomalies in Civil Service Commission Regional Office
IV (CSCRO IV) such as, staff working in another government
agency, selling cases and aiding parties with pending cases, all
done during office hours and involved the use of government
properties;
9. That said text messages were not investigated for lack of any
verifiable leads and details sufficient to warrant an investigation;
10. That the anonymous letter provided the lead and details as it
pinpointed the persons and divisions involved in the alleged
irregularities happening in CSCRO IV;
11. That in view of the seriousness of the allegations of irregularities
happening in CSCRO IV and its effect on the integrity of the
Commission, I decided to form a team of Central Office staff to
back up the files in the computers of the Public Assistance and
Liaison Division (PALD) and Legal Division;
x x x x[50]
A search by a government employer of an employees office is justified at inception
when there are reasonable grounds for suspecting that it will turn up evidence that
the employee is guilty of work-related misconduct.[51] Thus, in the 2004 case decided
by the US Court of Appeals Eighth Circuit, it was held that where a government
agencys computer use policy prohibited electronic messages with pornographic
content and in addition expressly provided that employees do not have any personal
privacy rights regarding their use of the agency information systems and technology,
the government employee had no legitimate expectation of privacy as to the use and
contents of his office computer, and therefore evidence found during warrantless
search of the computer was admissible in prosecution for child pornography. In that
case, the defendant employees computer hard drive was first remotely examined by
a computer information technician after his supervisor received complaints that he
was inaccessible and had copied and distributed non-work-related e-mail messages
throughout the office. When the supervisor confirmed that defendant had used his
computer to access the prohibited websites, in contravention of the express policy of
the agency, his computer tower and floppy disks were taken and examined. A formal
administrative investigation ensued and later search warrants were secured by the
police department. The initial remote search of the hard drive of petitioners
computer, as well as the subsequent warrantless searches was held as valid under
the OConnor ruling that a public employer can investigate work-related misconduct
so long as any search is justified at inception and is reasonably related in scope to
the circumstances that justified it in the first place.[52]
Under the facts obtaining, the search conducted on petitioners computer was
justified at its inception and scope. We quote with approval the CSCs discussion on
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the reasonableness of its actions, consistent as it were with the guidelines
established by OConnor:
Even conceding for a moment that there is no such
administrative policy, there is no doubt in the mind of the Commission
that the search of Pollos computer has successfully passed the test of
reasonableness for warrantless searches in the workplace as
enunciated in the above-discussed American authorities. It bears
emphasis that the Commission pursued the search in its capacity
as a government employer and that it was undertaken in
connection with an investigation involving a work-related
misconduct, one of the circumstances exempted from the warrant
requirement. At the inception of the search, a complaint was received
recounting that a certain division chief in the CSCRO No. IV was
lawyering for parties having pending cases with the said regional
office or in the Commission. The nature of the imputation was
serious, as it was grievously disturbing. If, indeed, a CSC
employee was found to be furtively engaged in the practice of
lawyering for parties with pending cases before the Commission
would be a highly repugnant scenario, then such a case would have
shattering repercussions. It would undeniably cast clouds of doubt
upon the institutional integrity of the Commission as a quasi-judicial
agency, and in the process, render it less effective in fulfilling its
mandate as an impartial and objective dispenser of administrative
justice. It is settled that a court or an administrative tribunal must not
only be actually impartial but must be seen to be so, otherwise the
general public would not have any trust and confidence in it.
Considering the damaging nature of the accusation, the
Commission had to act fast, if only to arrest or limit any possible
adverse consequence or fall-out. Thus, on the same date that the
complaint was received, a search was forthwith conducted involving
the computer resources in the concerned regional office. That it was
the computers that were subjected to the search was justified
since these furnished the easiest means for an employee to
encode and store documents. Indeed, the computers would be a
likely starting point in ferreting out incriminating evidence.
Concomitantly, the ephemeral nature of computer files, that is,
they could easily be destroyed at a click of a button,
necessitated drastic and immediate action. Pointedly, to impose
the need to comply with the probable cause requirement would
invariably defeat the purpose of the wok-related investigation.
Worthy to mention, too, is the fact that the Commission
effected the warrantless search in an open and transparent
manner. Officials and some employees of the regional office, who
happened to be in the vicinity, were on hand to observe the process
until its completion. In addition, the respondent himself was duly
notified, through text messaging, of the search and the concomitant
retrieval of files from his computer.
All in all, the Commission is convinced that the warrantless
search done on computer assigned to Pollo was not, in any way,
vitiated with unconstitutionality. It was a reasonable exercise of the
managerial prerogative of the Commission as an employer aimed at
ensuring its operational effectiveness and efficiency by going after the
Page 127 of 236
work-related misfeasance of its employees.Consequently, the
evidence derived from the questioned search are deemed
admissible.[53]
Petitioners claim of violation of his constitutional right to privacy must
necessarily fail. His other argument invoking the privacy of communication and
correspondence under Section 3(1), Article III of the 1987 Constitution is also
untenable considering the recognition accorded to certain legitimate intrusions into
the privacy of employees in the government workplace under the aforecited
authorities. We likewise find no merit in his contention that OConnor and Simons are
not relevant because the present case does not involve a criminal offense like child
pornography. As already mentioned, the search of petitioners computer was justified
there being reasonable ground for suspecting that the files stored therein would yield
incriminating evidence relevant to the investigation being conducted by CSC as
government employer of such misconduct subject of the anonymous complaint. This
situation clearly falls under the exception to the warrantless requirement in
administrative searches defined in OConnor.
The Court is not unaware of our decision in Anonymous Letter-Complaint
against Atty. Miguel Morales, Clerk of Court, Metropolitan Trial Court of
Manila[54] involving a branch clerk (Atty. Morales) who was investigated on the basis
of an anonymous letter alleging that he was consuming his working hours filing and
attending to personal cases, using office supplies, equipment and utilities. The OCA
conducted a spot investigation aided by NBI agents. The team was able to access
Atty. Morales personal computer and print two documents stored in its hard drive,
which turned out to be two pleadings, one filed in the CA and another in the RTC of
Manila, both in the name of another lawyer. Atty. Morales computer was seized and
taken in custody of the OCA but was later ordered released on his motion, but with
order to the MISO to first retrieve the files stored therein. The OCA disagreed with
the report of the Investigating Judge that there was no evidence to support the
charge against Atty. Morales as no one from the OCC personnel who were
interviewed would give a categorical and positive statement affirming the charges
against Atty. Morales, along with other court personnel also charged in the same
case. The OCA recommended that Atty. Morales should be found guilty of gross
misconduct. The Court En Banc held that while Atty. Morales may have fallen short
of the exacting standards required of every court employee, the Court cannot use the
evidence obtained from his personal computer against him for it violated his
constitutional right against unreasonable searches and seizures. The Court found no
evidence to support the claim of OCA that they were able to obtain the subject
pleadings with the consent of Atty. Morales, as in fact the latter immediately filed an
administrative case against the persons who conducted the spot investigation,
questioning the validity of the investigation and specifically invoking his constitutional
right against unreasonable search and seizure. And as there is no other evidence,
apart from the pleadings, retrieved from the unduly confiscated personal computer of
Atty. Morales, to hold him administratively liable, the Court had no choice but to
dismiss the charges against him for insufficiency of evidence.
The above case is to be distinguished from the case at bar because, unlike
the former which involved a personal computer of a court employee, the computer
from which the personal files of herein petitioner were retrieved is a government-
issued computer, hence government property the use of which the CSC has absolute
right to regulate and monitor. Such relationship of the petitioner with the item seized
(office computer) and other relevant factors and circumstances under American
Fourth Amendment jurisprudence, notably the existence of CSC MO 10, S. 2007 on

Page 128 of 236


Computer Use Policy, failed to establish that petitioner had a reasonable expectation
of privacy in the office computer assigned to him.
Having determined that the personal files copied from the office computer of
petitioner are admissible in the administrative case against him, we now proceed to
the issue of whether the CSC was correct in finding the petitioner guilty of the
charges and dismissing him from the service.
Well-settled is the rule that the findings of fact of quasi-judicial agencies, like
the CSC, are accorded not only respect but even finality if such findings are
supported by substantial evidence. Substantial evidence is such amount of relevant
evidence which a reasonable mind might accept as adequate to support a
conclusion, even if other equally reasonable minds might conceivably opine
otherwise.[55]
The CSC based its findings on evidence consisting of a substantial number of
drafts of legal pleadings and documents stored in his office computer, as well as the
sworn affidavits and testimonies of the witnesses it presented during the formal
investigation. According to the CSC, these documents were confirmed to be similar
or exactly the same content-wise with those on the case records of some cases
pending either with CSCRO No. IV, CSC-NCR or the Commission Proper. There
were also substantially similar copies of those pleadings filed with the CA and duly
furnished the Commission. Further, the CSC found the explanation given by
petitioner, to the effect that those files retrieved from his computer hard drive actually
belonged to his lawyer friends Estrellado and Solosa whom he allowed the use of his
computer for drafting their pleadings in the cases they handle, as implausible and
doubtful under the circumstances. We hold that the CSCs factual finding regarding
the authorship of the subject pleadings and misuse of the office computer is well-
supported by the evidence on record, thus:
It is also striking to note that some of these documents were in
the nature of pleadings responding to the orders, decisions or
resolutions of these offices or directly in opposition to them such as a
petition for certiorari or a motion for reconsideration of CSC
Resolution. This indicates that the author thereof knowingly and
willingly participated in the promotion or advancement of the interests
of parties contrary or antagonistic to the Commission. Worse, the
appearance in one of the retrieved documents the phrase, Eric N.
Estr[e]llado, Epal kulang ang bayad mo,lends plausibility to an
inference that the preparation or drafting of the legal pleadings
was pursued with less than a laudable motivation. Whoever was
responsible for these documents was simply doing the same for the
money a legal mercenary selling or purveying his expertise to the
highest bidder, so to speak.
Inevitably, the fact that these documents were retrieved
from the computer of Pollo raises the presumption that he was
the author thereof. This is because he had a control of the said
computer. More significantly, one of the witnesses, Margarita Reyes,
categorically testified seeing a written copy of one of the pleadings
found in the case records lying on the table of the respondent. This
was the Petition for Review in the case of Estrellado addressed to the
Court of Appeals. The said circumstances indubitably demonstrate
that Pollo was secretly undermining the interest of the Commission,
his very own employer.
To deflect any culpability, Pollo would, however, want the
Commission to believe that the documents were the personal files of
Page 129 of 236
some of his friends, including one Attorney Ponciano Solosa, who
incidentally served as his counsel of record during the formal
investigation of this case. In fact, Atty. Solosa himself executed a
sworn affidavit to this effect. Unfortunately, this contention of the
respondent was directly rebutted by the prosecution witness, Reyes,
who testified that during her entire stay in the PALD, she never saw
Atty. Solosa using the computer assigned to the respondent. Reyes
more particularly stated that she worked in close proximity with Pollo
and would have known if Atty. Solosa, whom she personally knows,
was using the computer in question. Further, Atty. Solosa himself was
never presented during the formal investigation to confirm his sworn
statement such that the same constitutes self-serving evidence
unworthy of weight and credence. The same is true with the other
supporting affidavits, which Pollo submitted.
At any rate, even admitting for a moment the said contention
of the respondent, it evinces the fact that he was unlawfully
authorizing private persons to use the computer assigned to him for
official purpose, not only once but several times gauging by the
number of pleadings, for ends not in conformity with the interests of
the Commission. He was, in effect, acting as a principal by
indispensable cooperationOr at the very least, he should be
responsible for serious misconduct for repeatedly allowing CSC
resources, that is, the computer and the electricity, to be utilized for
purposes other than what they were officially intended.
Further, the Commission cannot lend credence to the
posturing of the appellant that the line appearing in one of the
documents, Eric N. Estrellado, Epal kulang ang bayad mo, was a
private joke between the person alluded to therein, Eric N. Estrellado,
and his counsel, Atty. Solosa, and not indicative of anything more
sinister. The same is too preposterous to be believed.Why would such
a statement appear in a legal pleading stored in the computer
assigned to the respondent, unless he had something to do with it?[56]
Petitioner assails the CA in not ruling that the CSC should not have
entertained an anonymous complaint since Section 8 of CSC Resolution No. 99-
1936 (URACC) requires a verified complaint:
Rule II Disciplinary Cases
SEC. 8. Complaint. - A complaint against a civil service official or
employee shall not be given due course unless it is in writing and
subscribed and sworn to by the complainant. However, in cases
initiated by the proper disciplining authority, the complaint need
not be under oath.
No anonymous complaint shall be entertained unless there is
obvious truth or merit to the allegation therein or supported by
documentary or direct evidence, in which case the person complained
of may be required to comment.
xxxx
We need not belabor this point raised by petitioner. The administrative complaint is
deemed to have been initiated by the CSC itself when Chairperson David, after a
spot inspection and search of the files stored in the hard drive of computers in the
two divisions adverted to in the anonymous letter -- as part of the disciplining
authoritys own fact-finding investigation and information-gathering -- found a prima

Page 130 of 236


facie case against the petitioner who was then directed to file his comment. As this
Court held in Civil Service Commission v. Court of Appeals[57] --
Under Sections 46 and 48 (1), Chapter 6, Subtitle A, Book V of
E.O. No. 292 and Section 8, Rule II of Uniform Rules on
Administrative Cases in the Civil Service, a complaint may be
initiated against a civil service officer or employee by the
appropriate disciplining authority, even without being
subscribed and sworn to. Considering that the CSC, as the
disciplining authority for Dumlao, filed the complaint, jurisdiction over
Dumlao was validly acquired. (Emphasis supplied.)
As to petitioners challenge on the validity of CSC OM 10, S. 2002 (CUP), the same
deserves scant consideration. The alleged infirmity due to the said memorandum
order having been issued solely by the CSC Chair and not the Commission as a
collegial body, upon which the dissent of Commissioner Buenaflor is partly anchored,
was already explained by Chairperson David in her Reply to the Addendum to
Commissioner Buenaflors previous memo expressing his dissent to the actions and
disposition of the Commission in this case. According to Chairperson David, said
memorandum order was in fact exhaustively discussed, provision by provision in
the January 23, 2002 Commission Meeting, attended by her and former
Commissioners Erestain, Jr. and Valmores. Hence, the Commission En Banc at the
time saw no need to issue a Resolution for the purpose and further because the CUP
being for internal use of the Commission, the practice had been to issue a
memorandum order.[58] Moreover, being an administrative rule that is merely internal
in nature, or which regulates only the personnel of the CSC and not the public, the
CUP need not be published prior to its effectivity.[59]
In fine, no error or grave abuse of discretion was committed by the CA in affirming
the CSCs ruling that petitioner is guilty of grave misconduct, dishonesty, conduct
prejudicial to the best interest of the service, and violation of R.A. No. 6713. The
gravity of these offenses justified the imposition on petitioner of the ultimate penalty
of dismissal with all its accessory penalties, pursuant to existing rules and
regulations.
WHEREFORE, the petition for review on certiorari is DENIED.
The Decision dated October 11, 2007 and Resolution dated February 29, 2008 of the
Court of Appeals in CA-G.R. SP No. 98224 are AFFIRMED.
With costs against the petitioner.
SO ORDERED.

SUMMARY:
Facts

Respondent CSC Chair Constantino-David received an anonymous letter complaint


alleging of an anomaly taking place in the Regional Office of the CSC. The
respondent then formed a team and issued a memo directing the team “to back up
all the files in the computers found in the Mamamayan Muna (PALD) and Legal
divisions.”

Several diskettes containing the back-up files sourced from the hard disk of PALD
and LSD computers were turned over to Chairperson David. The contents of the
diskettes were examined by the CSC’s Office for Legal Affairs (OLA). It was found
that most of the files in the 17 diskettes containing files copied from the computer
assigned to and being used by the petitioner, numbering about 40 to 42 documents,
were draft pleadings or lettersin connection with administrative cases in the CSC and
Page 131 of 236
other tribunals. On the basis of this finding, Chairperson David issued the Show-
Cause Order, requiring the petitioner, who had gone on extended leave, to submit
his explanation or counter-affidavit within five days from notice.

In his Comment, petitioner denied the accusations against him and accused the CSC
Officials of “fishing expedition” when they unlawfully copied and printed personal files
in his computer.

He was charged of violating R.A. No. 6713 (Code of Conduct and Ethical Standards
for Public Officials and Employees). He assailed the formal charge and filed an
Omnibus Motion ((For Reconsideration, to Dismiss and/or to Defer) assailing the
formal charge as without basis having proceeded from an illegal search which is
beyond the authority of the CSC Chairman, such power pertaining solely to the court.

The CSC denied the omnibus motion and treated the motion as the petitioner’s
answer to the charge. In view of the absence of petitioner and his counsel, and upon
the motion of the prosecution, petitioner was deemed to have waived his right to the
formal investigation which then proceeded ex parte.

The petitioner was dismissed from service. He filed a petition to the CA which was
dismissed by the latter on the ground that it found no grave abuse of discretion on
the part of the respondents. He filed a motion for reconsideration which was further
denied by the appellate court. Hence, this petition.

Issue
WON the search conducted by the CSC on the computer of the petitioner constituted
an illegal search and was a violation of his constitutional right to privacy

Ruling

The search conducted on his office computer and the copying of his personal files
was lawful and did not violate his constitutional right.

Ratio Decidendi

In this case, the Court had the chance to present the cases illustrative of the issue
raised by the petitioner.

Katz v. United States 389 U.S. 437 (1967), the US Supreme Court held that the act
of FBI agents in electronically recording a conversation made by petitioner in an
enclosed public telephone booth violated his right to privacy and constituted a
“search and seizure”. Because the petitioner had a reasonable expectation of
privacy in using the enclosed booth to make a personal telephone call, the protection
of the Fourth Amendment extends to such area. Moreso, the concurring opinion of
Mr. Justice Harlan noted that the existence of privacy right under prior decisions
involved a two-fold requirement: first, that a person has exhibited an actual
(subjective) expectation of privacy; and second, that the expectation be one that
society is prepared to recognize as reasonable (objective).

Mancusi v. DeForte 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed2d 1154 (1968),thus
“recognized that employees may have a reasonable expectation of privacy against
intrusions by police.”
Page 132 of 236
O’Connor v. Ortega 480 U.S. 709 (1987), the Court categorically declared that
“[i]ndividuals do not lose Fourth Amendment rights merely because they work for the
government instead of a private employer.” In O’Connor the Court recognized that
“special needs” authorize warrantless searches involving public employees for work-
related reasons. The Court thus laid down a balancing test under which government
interests are weighed against the employee’s reasonable expectation of privacy. This
reasonableness test implicates neither probable cause nor the warrant requirement,
which are related to law enforcement.
Social Justice Society (SJS) v. Dangerous Drugs Board G.R. Nos. 157870, 158633
and 161658, November 3, 2008, 570 SCRA 410, 427, (citing Ople v. Torres, G.R.
No. 127685, July 23, 1998, 293 SCRA 141, 169), recognized the fact that there may
be such legitimate intrusion of privacy in the workplace.
The Court ruled that the petitioner did not have a reasonable expectation of privacy
in his office and computer files.
As to the second point of inquiry, the Court answered in the affirmative. The search
authorized by the CSC Chair, the copying of the contents of the hard drive on
petitioner’s computer reasonable in its inception and scope.
The Court noted that unlike in the case of Anonymous Letter-Complaint against Atty.
Miguel Morales, Clerk of Court, Metropolitan Trial Court of Manila A.M. Nos. P-08-
2519 and P-08-2520, November 19, 2008, 571 SCRA 361, the case at bar involves
the computer from which the personal files of the petitioner were retrieved is a
government-issued computer, hence government property the use of which the CSC
has absolute right to regulate and monitor.

DISINI VS DOJ

FULL TEXT:
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
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.
Page 133 of 236
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,
Page 134 of 236
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
Page 135 of 236
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.
Page 136 of 236
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. CASIÑO, 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
Page 137 of 236
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 CICC’s 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
Page 138 of 236
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 system’s 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 client’s 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
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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 people’s 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 one’s 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:
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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 another’s 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
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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
activity—is 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.30 The Court will not declare Section 4(c)(1)
unconstitutional where it stands a construction that makes it apply only to persons
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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, ACPA’s 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:
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(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 Python’s 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 owner’s peaceful enjoyment of his property.
Transmitting spams amounts to trespass to one’s privacy since the person sending
out spams enters the recipient’s 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
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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 accused’s 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. Society’s 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:
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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 P6,000.00.
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.45For 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 country’s 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 Court’s 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 reader’s
reaction to defamatory statements posted in cyberspace, facilitated by one-click reply
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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 user’s 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 program’s screen such as "Like," "Comment," or "Share."
"Like" signifies that the reader likes the posting while "Comment" enables him to post
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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 content—which could be in the form of text, pictures, links,
short videos, or other media—on the internet. Instead of friends, a Twitter user has
"Followers," those who subscribe to this particular user’s 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 person’s 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 café 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 Maria’s friends who
sees this post, comments online, "Yes, this is so true! They are so immoral." Maria’s
original post is then multiplied by her friends and the latter’s 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. Nena’s "Followers" then
"Retweet" the link to that blog site.
Pamela, a Twitter user, stumbles upon a random person’s "Retweet" of Nena’s
original tweet and posts this on her Facebook account. Immediately, Pamela’s
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
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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 Amendment’s
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
CDA’s 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 person’s 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 person’s reputation and peace of
mind, cannot adopt means that will unnecessarily and broadly sweep, invading the
area of protected freedoms.62

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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.64Hence, 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 netizen’s 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
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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 lacks—the 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 party’s computer system but the security employed by the
system’s 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
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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 ACPA’s scope so as to include identical activities in cyberspace. As
previously discussed, ACPA’s 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 (PhP200,000.00)
up to a maximum amount commensurate to the damage incurred or both.
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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 (PhP500,000.00) 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
(PhP500,000.00) 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 (PhP200,000.00) but not exceeding One million pesos
(PhP1,000,000.00) 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 (PhP50,000.00) but not exceeding Two hundred fifty thousand
pesos (PhP250,000.00) 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
(PhP100,000.00) but not exceeding Five hundred thousand pesos (PhP500,000.00)
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 communication’s 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.
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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 yesterday’s 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 cafés,
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

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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
people’s 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 right—the right to informational
privacy—that 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 public’s 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 data—messages of all kinds—travel 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.
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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
provider’s communication’s system will put his voice message into packets and send
them to the other person’s cellphone where they are refitted together and heard. The
latter’s 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
person’s 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
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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 officer’s 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.

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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 subscriber’s 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;

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(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 provider’s 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 user’s 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
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personal property. Consequently, they are protected from unreasonable searches
and seizures, whether while stored in their personal computers or in the service
provider’s systems.
Section 2, Article III of the 1987 Constitution provides that the right to be secure in
one’s 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.
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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.1avvphi1 The second test mandates adequate guidelines
or limitations in the law to determine the boundaries of the delegate’s 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 user’s 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.
Page 161 of 236
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 CICC’s 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.1âwphi1
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:

Page 162 of 236


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.
SUMMARY:

Case Summary and Outcome


The Supreme Court of Philippines declared Sections 4(c)(3), 12, and 19 of
the Cybercrime Prevention Act of 2012 as unconstitutional. It held that Section
4(c)(3) violated the right to freedom of expression by prohibiting the electronic
transmission of unsolicited commercial communications. It found Section 12 in
violation of the right to privacy because it lacked sufficient specificity and definiteness
in collecting real-time computer data. It struck down Section 19 of the Act for giving
the government the authority to restrict or block access to computer data without any
judicial warrant.

Facts
The case arises out of consolidated petitions to the Supreme Court of the Philippines
on the constitutionality of several provisions of the Cybercrime Prevention Act of
2012, Act No. 10175.
The Petitioners argued that even though the Act is the government’s platform in
combating illegal cyberspace activities, 21 separate sections of the Act violate their
constitutional rights, particularly the right to freedom of expression and access to
inforamtion.
In February 2013, the Supreme Court extended the duration of a temporary
restraining order against the government to halt enforcement of the Act until the
adjudication of the issues.

Decision Overview
Justice Abad delivered the Court’s opinion.
The government of Philippines adopted the Cybercrime Prevention Act of 2012 for
the purpose of regulating access to and use of cyberspace. Several sections of the
law define relevant cyber crimes and enable the government to track down and
penalize violators.
Among 21 challenged sections, the Court declared Sections 4(c)(3), 12, and 19 of
the Act as unconstitutional.
Section 4(c)(3) prohibits the transmission of unsolicited commercial electronic
communications, commonly known as spams, that seek to advertise, sell, or offer for
sale of products and services unless the recipient affirmatively consents, or when the
purpose of the communication is for service or administrative announcements from
the sender to its existing users, or “when 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
Page 163 of 236
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 government argued that unsolicited commercial communications amount to both
nuisance and trespass because they tend to interfere with the enjoyment of using
online services and that they enter the recipient’s domain without prior permission.
The Court first noted that spams are a category of commercial speech, which does
not receive the same level of protection as other constitutionally guaranteed forms of
expression ,”but is nonetheless entitled to protection.” It ruled that the prohibition on
transmitting unsolicited communications “would deny a person the right to read his
emails, even unsolicited commercial ads addressed to him.” Accordingly, the Court
declared Section4(c)(3) as unconstitutional.
Section 12 of the Act authorizes the law enforcement without a court warrant “to
collect or record traffic data in real-time associated with specified communications
transmitted by means of a computer system.” Traffic data under this Section
includes the origin, destination, route, size, date, and duration of the communication,
but not its content nor the identity of users.
The Petitioners argued that such warrantless authority curtails their civil liberties and
set the stage for abuse of discretion by the government. They also claimed that this
provision violates the right to privacy and protection from the government’s intrusion
into online communications.
According to the Court, since Section 12 may lead to disclosure of private
communications, it must survive the rational basis standard of whether it is narrowly
tailored towards serving a government’s compelling interest. The Court found that
the government did have a compelling interest in preventing cyber crimes by
monitoring real-time traffic data.
As to whether Section 12 violated the right to privacy, the Court first recognized that
the right at stake concerned informational privacy, defined as “the right not to have
private information disclosed, and the right to live freely without surveillance and
intrusion.” In determining whether a communication is entitled to the right of privacy,
the Court applied a two-part test: (1) Whether the person claiming the right has a
legitimate expectation of privacy over the communication, and (2) whether his
expectation of privacy can be regarded as objectively reasonable in the society.
The Court noted that internet users have subjective reasonable expectation of
privacy over their communications transmitted online. However, it did not find the
expectation as objectively reasonable because traffic data sent through internet
“does not disclose the actual names and addresses (residential or office) of the
sender and the recipient, only their coded Internet Protocol (IP) addresses.”
Even though the Court ruled that real-time traffic data under Section 12 does not
enjoy the objective reasonable expectation of privacy, the existence of enough data
may reveal the personal information of its sender or recipient, against which the
Section fails to provide sufficient safeguard. The Court viewed the law as “virtually
limitless, enabling law enforcement authorities to engage in “fishing expedition,”
choosing whatever specified communication they want.”
Accordingly, the Court struck down Section 12 for lack of specificity and definiteness
as to ensure respect for the right to privacy.
Section 19 authorizes the Department of Justice to restrict or block access to a
computer data found to be in violation of the Act. The Petitioners argued that this
section also violated the right to freedom of expression, as well as the constitutional
protection against unreasonable searches and seizures.
The Court first recognized that computer data constitutes a personal property,
entitled to protection against unreasonable searches and seizures. Also, the
Philippines’ Constitution requires the government to secure a valid judicial warrant
Page 164 of 236
when it seeks to seize a personal property or to block a form of
expression. Because Section 19 precluded any judicial intervention, the Court found
it unconstitutional.

VIVARES VS STC
FULL TEXT:
Page 165 of 236
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 202666 September 29, 2014
RHONDA AVE S. VIVARES and SPS. MARGARITA and DAVID
SUZARA, Petitioners,
vs.
ST. THERESA'S COLLEGE, MYLENE RHEZA T. ESCUDERO, and JOHN
DOES, Respondents.
DECISION
VELASCO, JR., J.:
The individual's desire for privacy is never absolute, since participation in society is
an equally powerful desire. Thus each individual is continually engaged in a personal
adjustment process in which he balances the desire for privacy with the desire for
disclosure and communication of himself to others, in light of the environmental
conditions and social norms set by the society in which he lives.
- Alan Westin, Privacy and Freedom (1967)
The Case
Before Us is a Petition for Review on Certiorari under Rule 45 of the Rules of Court,
in relation to Section 19 of A.M. No. 08-1-16-SC,1 otherwise known as the "Rule on
the Writ of Habeas Data." Petitioners herein assail the July 27, 2012 Decision2 of the
Regional Trial Court, Branch 14 in Cebu City (RTC) in SP. Proc. No. 19251-CEB,
which dismissed their habeas data petition.
The Facts
Nenita Julia V. Daluz (Julia) and Julienne Vida Suzara (Julienne), both minors, were,
during the period material, graduating high school students at St. Theresa's College
(STC), Cebu City. Sometime in January 2012, while changing into their swimsuits for
a beach party they were about to attend, Julia and Julienne, along with several
others, took digital pictures of themselves clad only in their undergarments. These
pictures were then uploaded by Angela Lindsay Tan (Angela) on her
Facebook3 profile.
Back at the school, Mylene Rheza T. Escudero (Escudero), a computer teacher at
STC’s high school department, learned from her students that some seniors at STC
posted pictures online, depicting themselves from the waist up, dressed only in
brassieres. Escudero then asked her students if they knew who the girls in the
photos are. In turn, they readily identified Julia, Julienne, and Chloe Lourdes
Taboada (Chloe), among others.
Using STC’s computers, Escudero’s students logged in to their respective personal
Facebook accounts and showed her photos of the identified students, which include:
(a) Julia and Julienne drinking hard liquor and smoking cigarettes inside a bar; and
(b) Julia and Julienne along the streets of Cebu wearing articles of clothing that show
virtually the entirety of their black brassieres. What is more, Escudero’s students
claimed that there were times when access to or the availability of the identified
students’ photos was not confined to the girls’ Facebook friends,4 but were, in fact,
viewable by any Facebook user.5
Upon discovery, Escudero reported the matter and, through one of her student’s
Facebook page, showed the photosto Kristine Rose Tigol (Tigol), STC’s Discipline-
in-Charge, for appropriate action. Thereafter, following an investigation, STC found
the identified students to have deported themselves in a manner proscribed by the
school’s Student Handbook, to wit:
Page 166 of 236
1. Possession of alcoholic drinks outside the school campus;
2. Engaging in immoral, indecent, obscene or lewd acts;
3. Smoking and drinking alcoholicbeverages in public places;
4. Apparel that exposes the underwear;
5. Clothing that advocates unhealthy behaviour; depicts obscenity; contains
sexually suggestive messages, language or symbols; and 6. Posing and
uploading pictures on the Internet that entail ample body exposure.
On March 1, 2012, Julia, Julienne, Angela, and the other students in the pictures in
question, reported, as required, to the office of Sr. Celeste Ma. Purisima Pe (Sr.
Purisima), STC’s high school principal and ICM6Directress. They claimed that during
the meeting, they were castigated and verbally abused by the STC officials present
in the conference, including Assistant Principal Mussolini S. Yap (Yap), Roswinda
Jumiller, and Tigol. What is more, Sr. Purisima informed their parents the following
day that, as part of their penalty, they are barred from joining the commencement
exercises scheduled on March 30, 2012.
A week before graduation, or on March 23, 2012, Angela’s mother, Dr. Armenia M.
Tan (Tan), filed a Petition for Injunction and Damages before the RTC of Cebu City
against STC, et al., docketed as Civil Case No. CEB-38594.7 In it, Tan prayed that
defendants therein be enjoined from implementing the sanction that precluded
Angela from joining the commencement exercises.
On March 25, 2012,petitioner Rhonda Ave Vivares (Vivares), the mother of Julia,
joined the fray as an intervenor. On March 28, 2012, defendants inCivil Case No.
CEB-38594 filed their memorandum, containing printed copies of the photographs in
issue as annexes. That same day, the RTC issued a temporary restraining order
(TRO) allowing the students to attend the graduation ceremony, to which STC filed a
motion for reconsideration.
Despite the issuance of the TRO,STC, nevertheless, barred the sanctioned students
from participating in the graduation rites, arguing that, on the date of the
commencement exercises, its adverted motion for reconsideration on the issuance
ofthe TRO remained unresolved.
Thereafter, petitioners filed before the RTC a Petition for the Issuance of a Writ of
Habeas Data, docketed as SP. Proc. No. 19251-CEB8 on the basis of the following
considerations:
1. The photos of their children in their undergarments (e.g., bra) were taken
for posterity before they changed into their swimsuits on the occasion of a
birthday beach party;
2. The privacy setting of their children’s Facebook accounts was set at
"Friends Only." They, thus, have a reasonable expectation of privacy which
must be respected.
3. Respondents, being involved in the field of education, knew or ought to
have known of laws that safeguard the right to privacy. Corollarily,
respondents knew or ought to have known that the girls, whose privacy has
been invaded, are the victims in this case, and not the offenders. Worse, after
viewing the photos, the minors were called "immoral" and were punished
outright;
4. The photos accessed belong to the girls and, thus, cannot be used and
reproduced without their consent. Escudero, however, violated their rights by
saving digital copies of the photos and by subsequently showing them to
STC’s officials. Thus, the Facebook accounts of petitioners’ children were
intruded upon;

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5. The intrusion into the Facebook accounts, as well as the copying of
information, data, and digital images happened at STC’s Computer
Laboratory; and
6. All the data and digital images that were extracted were boldly broadcasted
by respondents through their memorandum submitted to the RTC in
connection with Civil Case No. CEB-38594. To petitioners, the interplay of the
foregoing constitutes an invasion of their children’s privacy and, thus, prayed
that: (a) a writ of habeas databe issued; (b) respondents be ordered to
surrender and deposit with the court all soft and printed copies of the
subjectdata before or at the preliminary hearing; and (c) after trial, judgment
be rendered declaring all information, data, and digital images accessed,
saved or stored, reproduced, spread and used, to have been illegally
obtained inviolation of the children’s right to privacy.
Finding the petition sufficient in form and substance, the RTC, through an Order
dated July 5, 2012, issued the writ of habeas data. Through the same Order, herein
respondents were directed to file their verified written return, together with the
supporting affidavits, within five (5) working days from service of the writ.
In time, respondents complied with the RTC’s directive and filed their verified written
return, laying down the following grounds for the denial of the petition, viz: (a)
petitioners are not the proper parties to file the petition; (b) petitioners are engaging
in forum shopping; (c) the instant case is not one where a writ of habeas data may
issue;and (d) there can be no violation of their right to privacy as there is no
reasonable expectation of privacy on Facebook.
Ruling of the Regional Trial Court
On July 27, 2012, the RTC rendered a Decision dismissing the petition for habeas
data. The dispositive portion of the Decision pertinently states:
WHEREFORE, in view of the foregoing premises, the Petition is hereby DISMISSED.
The parties and media must observe the aforestated confidentiality.
xxxx
9
SO ORDERED.
To the trial court, petitioners failed to prove the existence of an actual or threatened
violation of the minors’ right to privacy, one of the preconditions for the issuance of
the writ of habeas data. Moreover, the court a quoheld that the photos, having been
uploaded on Facebook without restrictions as to who may view them, lost their
privacy in some way. Besides, the RTC noted, STC gathered the photographs
through legal means and for a legal purpose, that is, the implementation of the
school’s policies and rules on discipline.
Not satisfied with the outcome, petitioners now come before this Court pursuant to
Section 19 of the Rule on Habeas Data.10
The Issues
The main issue to be threshed out inthis case is whether or not a writ of habeas
datashould be issued given the factual milieu. Crucial in resolving the controversy,
however, is the pivotal point of whether or not there was indeed an actual or
threatened violation of the right to privacy in the life, liberty, or security of the minors
involved in this case.
Our Ruling
We find no merit in the petition.
Procedural issues concerning the availability of the Writ of Habeas Data
The writ of habeas datais a remedy available to any person whose right to privacy in
life, liberty or security is violated or threatened by an unlawful act or omission of a
public official or employee, or of a private individual or entity engaged in the
gathering, collecting or storing of data or information regarding the person, family,
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home and correspondence of the aggrieved party.11 It is an independent and
summary remedy designed to protect the image, privacy, honor, information, and
freedom of information of an individual, and to provide a forum to enforce one’s right
to the truth and to informational privacy. It seeks to protect a person’s right to control
information regarding oneself, particularly in instances in which such information is
being collected through unlawful means in order to achieve unlawful ends.12
In developing the writ of habeas data, the Court aimed to protect an individual’s right
to informational privacy, among others. A comparative law scholar has, in fact,
defined habeas dataas "a procedure designed to safeguard individual freedom from
abuse in the information age."13 The writ, however, will not issue on the basis merely
of an alleged unauthorized access to information about a person.Availment of the
writ requires the existence of a nexus between the right to privacy on the one hand,
and the right to life, liberty or security on the other.14 Thus, the existence of a
person’s right to informational privacy and a showing, at least by substantial
evidence, of an actual or threatened violation of the right to privacy in life, liberty or
security of the victim are indispensable before the privilege of the writ may be
extended.15
Without an actionable entitlement in the first place to the right to informational
privacy, a habeas datapetition will not prosper. Viewed from the perspective of the
case at bar,this requisite begs this question: given the nature of an online social
network (OSN)––(1) that it facilitates and promotes real-time interaction among
millions, if not billions, of users, sans the spatial barriers,16 bridging the gap created
by physical space; and (2) that any information uploaded in OSNs leavesan indelible
trace in the provider’s databases, which are outside the control of the end-users––is
there a right to informational privacy in OSN activities of its users? Before addressing
this point, We must first resolve the procedural issues in this case.
a. The writ of habeas data is not only confined to cases of extralegal killings and
enforced disappearances
Contrary to respondents’ submission, the Writ of Habeas Datawas not enacted solely
for the purpose of complementing the Writ of Amparoin cases of extralegal killings
and enforced disappearances.
Section 2 of the Rule on the Writ of Habeas Data provides:
Sec. 2. Who May File. – Any aggrieved party may file a petition for the writ of habeas
data. However, in cases of extralegal killings and enforced disappearances, the
petition may be filed by:
(a) Any member of the immediate family of the aggrieved party, namely: the
spouse, children and parents; or
(b) Any ascendant, descendant or collateral relative of the aggrieved party
within the fourth civil degreeof consanguinity or affinity, in default of those
mentioned in the preceding paragraph. (emphasis supplied)
Had the framers of the Rule intended to narrow the operation of the writ only to
cases of extralegal killings or enforced disappearances, the above underscored
portion of Section 2, reflecting a variance of habeas data situations, would not have
been made.
Habeas data, to stress, was designed "to safeguard individual freedom from abuse in
the information age."17 As such, it is erroneous to limit its applicability to extralegal
killings and enforced disappearances only. In fact, the annotations to the Rule
preparedby the Committee on the Revision of the Rules of Court, after explaining
that the Writ of Habeas Data complements the Writ of Amparo, pointed out that:
The writ of habeas data, however, can be availed of as an independent remedy to
enforce one’s right to privacy, more specifically the right to informational privacy. The
remedies against the violation of such right can include the updating, rectification,
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suppression or destruction of the database or information or files in possession or in
control of respondents.18 (emphasis Ours) Clearly then, the privilege of the Writ of
Habeas Datamay also be availed of in cases outside of extralegal killings and
enforced disappearances.
b. Meaning of "engaged" in the gathering, collecting or storing of data or information
Respondents’ contention that the habeas data writ may not issue against STC, it not
being an entity engaged in the gathering, collecting or storing of data or information
regarding the person, family, home and correspondence of the aggrieved party, while
valid to a point, is, nonetheless, erroneous.
To be sure, nothing in the Rule would suggest that the habeas data protection shall
be available only against abuses of a person or entity engaged in the businessof
gathering, storing, and collecting of data. As provided under Section 1 of the Rule:
Section 1. Habeas Data. – The writ of habeas datais a remedy available to any
person whose right to privacy in life, liberty or security is violated or threatened by an
unlawful act or omission of a public official or employee, or of a private individual or
entity engaged in the gathering, collecting or storing of data or information regarding
the person, family, home and correspondence of the aggrieved party. (emphasis
Ours)
The provision, when taken in its proper context, as a whole, irresistibly conveys the
idea that habeas data is a protection against unlawful acts or omissions of public
officials and of private individuals or entities engaged in gathering, collecting, or
storing data about the aggrieved party and his or her correspondences, or about his
or her family. Such individual or entity need not be in the business of collecting or
storing data.
To "engage" in something is different from undertaking a business endeavour. To
"engage" means "to do or take part in something."19 It does not necessarily mean
that the activity must be done in pursuit of a business. What matters is that the
person or entity must be gathering, collecting or storing said data or information
about the aggrieved party or his or her family. Whether such undertaking carries the
element of regularity, as when one pursues a business, and is in the nature of a
personal endeavour, for any other reason or even for no reason at all, is immaterial
and such will not prevent the writ from getting to said person or entity.
To agree with respondents’ above argument, would mean unduly limiting the reach
of the writ to a very small group, i.e., private persons and entities whose business is
data gathering and storage, and in the process decreasing the effectiveness of the
writ asan instrument designed to protect a right which is easily violated in view of
rapid advancements in the information and communications technology––a right
which a great majority of the users of technology themselves are not capable of
protecting.
Having resolved the procedural aspect of the case, We now proceed to the core of
the controversy.
The right to informational privacy on Facebook
a. The Right to Informational Privacy
The concept of privacyhas, through time, greatly evolved, with technological
advancements having an influential part therein. This evolution was briefly recounted
in former Chief Justice Reynato S. Puno’s speech, The Common Right to
Privacy,20 where he explained the three strands of the right to privacy, viz: (1)
locational or situational privacy;21 (2) informational privacy; and (3) decisional
privacy.22 Of the three, what is relevant to the case at bar is the right to informational
privacy––usually defined as the right of individuals to control information about
themselves.23

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With the availability of numerous avenues for information gathering and data sharing
nowadays, not to mention each system’s inherent vulnerability to attacks and
intrusions, there is more reason that every individual’s right to control said flow of
information should be protected and that each individual should have at least a
reasonable expectation of privacy in cyberspace. Several commentators regarding
privacy and social networking sites, however, all agree that given the millions of OSN
users, "[i]n this [Social Networking] environment, privacy is no longer grounded in
reasonable expectations, but rather in some theoretical protocol better known as
wishful thinking."24
It is due to this notion that the Court saw the pressing need to provide for judicial
remedies that would allow a summary hearing of the unlawful use of data or
information and to remedy possible violations of the right to privacy.25 In the same
vein, the South African High Court, in its Decision in the landmark case, H v.
W,26promulgated on January30, 2013, recognized that "[t]he law has to take into
account the changing realities not only technologically but also socially or else it will
lose credibility in the eyes of the people. x x x It is imperative that the courts respond
appropriately to changing times, acting cautiously and with wisdom." Consistent with
this, the Court, by developing what may be viewed as the Philippine model of the writ
of habeas data, in effect, recognized that, generally speaking, having an expectation
of informational privacy is not necessarily incompatible with engaging in cyberspace
activities, including those that occur in OSNs.
The question now though is up to whatextent is the right to privacy protected in
OSNs? Bear in mind that informational privacy involves personal information. At the
same time, the very purpose of OSNs is socializing––sharing a myriad of
information,27 some of which would have otherwise remained personal.
b. Facebook’s Privacy Tools: a response to the clamor for privacy in OSN activities
Briefly, the purpose of an OSN is precisely to give users the ability to interact and to
stay connected to other members of the same or different social media platform
through the sharing of statuses, photos, videos, among others, depending on the
services provided by the site. It is akin to having a room filled with millions of
personal bulletin boards or "walls," the contents of which are under the control of
each and every user. In his or her bulletin board, a user/owner can post anything––
from text, to pictures, to music and videos––access to which would depend on
whether he or she allows one, some or all of the other users to see his or her posts.
Since gaining popularity, the OSN phenomenon has paved the way to the creation of
various social networking sites, includingthe one involved in the case at bar,
www.facebook.com (Facebook), which, according to its developers, people use "to
stay connected with friends and family, to discover what’s going on in the world, and
to share and express what matters to them."28
Facebook connections are established through the process of "friending" another
user. By sending a "friend request," the user invites another to connect their
accounts so that they can view any and all "Public" and "Friends Only" posts of the
other.Once the request is accepted, the link is established and both users are
permitted to view the other user’s "Public" or "Friends Only" posts, among others.
"Friending," therefore, allows the user to form or maintain one-to-one relationships
with other users, whereby the user gives his or her "Facebook friend" access to his
or her profile and shares certain information to the latter.29
To address concerns about privacy,30 but without defeating its purpose, Facebook
was armed with different privacy tools designed to regulate the accessibility of a
user’s profile31 as well as information uploaded by the user. In H v. W,32 the South
Gauteng High Court recognized this ability of the users to "customize their privacy
settings," but did so with this caveat: "Facebook states in its policies that, although it
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makes every effort to protect a user’s information, these privacy settings are not
foolproof."33
For instance, a Facebook user canregulate the visibility and accessibility of digital
images(photos), posted on his or her personal bulletin or "wall," except for the
user’sprofile picture and ID, by selecting his or her desired privacy setting:
(a) Public - the default setting; every Facebook user can view the photo;
(b) Friends of Friends - only the user’s Facebook friends and their friends can
view the photo;
(b) Friends - only the user’s Facebook friends can view the photo;
(c) Custom - the photo is made visible only to particular friends and/or
networks of the Facebook user; and
(d) Only Me - the digital image can be viewed only by the user.
The foregoing are privacy tools, available to Facebook users, designed to set up
barriers to broaden or limit the visibility of his or her specific profile content, statuses,
and photos, among others, from another user’s point of view. In other words,
Facebook extends its users an avenue to make the availability of their Facebook
activities reflect their choice as to "when and to what extent to disclose facts about
[themselves] – and to put others in the position of receiving such
confidences."34 Ideally, the selected setting will be based on one’s desire to interact
with others, coupled with the opposing need to withhold certain information as well
as to regulate the spreading of his or her personal information. Needless to say, as
the privacy setting becomes more limiting, fewer Facebook users can view that
user’s particular post.
STC did not violate petitioners’ daughters’ right to privacy
Without these privacy settings, respondents’ contention that there is no reasonable
expectation of privacy in Facebook would, in context, be correct. However, such is
not the case. It is through the availability of said privacy tools that many OSN users
are said to have a subjective expectation that only those to whomthey grant access
to their profile will view the information they post or upload thereto.35
This, however, does not mean thatany Facebook user automatically has a protected
expectation of privacy inall of his or her Facebook activities.
Before one can have an expectation of privacy in his or her OSN activity, it is first
necessary that said user, in this case the children of petitioners,manifest the intention
to keepcertain posts private, through the employment of measures to prevent access
thereto or to limit its visibility.36 And this intention can materialize in cyberspace
through the utilization of the OSN’s privacy tools. In other words, utilization of these
privacy tools is the manifestation,in cyber world, of the user’s invocation of his or her
right to informational privacy.37
Therefore, a Facebook user who opts to make use of a privacy tool to grant or deny
access to his or her post orprofile detail should not be denied the informational
privacy right which necessarily accompanies said choice.38Otherwise, using these
privacy tools would be a feckless exercise, such that if, for instance, a user uploads a
photo or any personal information to his or her Facebook page and sets its privacy
level at "Only Me" or a custom list so that only the user or a chosen few can view it,
said photo would still be deemed public by the courts as if the user never chose to
limit the photo’s visibility and accessibility. Such position, if adopted, will not only strip
these privacy tools of their function but it would also disregard the very intention of
the user to keep said photo or information within the confines of his or her private
space.
We must now determine the extent that the images in question were visible to other
Facebook users and whether the disclosure was confidential in nature. In other
words, did the minors limit the disclosure of the photos such that the images were
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kept within their zones of privacy? This determination is necessary in resolving the
issue of whether the minors carved out a zone of privacy when the photos were
uploaded to Facebook so that the images will be protected against unauthorized
access and disclosure.
Petitioners, in support of their thesis about their children’s privacy right being
violated, insist that Escudero intruded upon their children’s Facebook accounts,
downloaded copies ofthe pictures and showed said photos to Tigol. To them, this
was a breach of the minors’ privacy since their Facebook accounts, allegedly, were
under "very private" or "Only Friends" setting safeguarded with a
password.39 Ultimately, they posit that their children’s disclosure was only limited
since their profiles were not open to public viewing. Therefore, according to them,
people who are not their Facebook friends, including respondents, are barred from
accessing said post without their knowledge and consent. Aspetitioner’s children
testified, it was Angelawho uploaded the subjectphotos which were only viewable by
the five of them,40 although who these five are do not appear on the records.
Escudero, on the other hand, stated in her affidavit41 that "my students showed me
some pictures of girls cladin brassieres. This student [sic] of mine informed me that
these are senior high school [students] of STC, who are their friends in [F]acebook. x
x x They then said [that] there are still many other photos posted on the Facebook
accounts of these girls. At the computer lab, these students then logged into their
Facebook account [sic], and accessed from there the various photographs x x x.
They even told me that there had been times when these photos were ‘public’ i.e.,
not confined to their friends in Facebook."
In this regard, We cannot give muchweight to the minors’ testimonies for one key
reason: failure to question the students’ act of showing the photos to Tigol disproves
their allegation that the photos were viewable only by the five of them. Without any
evidence to corroborate their statement that the images were visible only to the five
of them, and without their challenging Escudero’s claim that the other students were
able to view the photos, their statements are, at best, self-serving, thus deserving
scant consideration.42
It is well to note that not one of petitioners disputed Escudero’s sworn account that
her students, who are the minors’ Facebook "friends," showed her the photos using
their own Facebook accounts. This only goes to show that no special means to be
able to viewthe allegedly private posts were ever resorted to by Escudero’s
students,43 and that it is reasonable to assume, therefore, that the photos were, in
reality, viewable either by (1) their Facebook friends, or (2) by the public at large.
Considering that the default setting for Facebook posts is"Public," it can be surmised
that the photographs in question were viewable to everyone on Facebook, absent
any proof that petitioners’ children positively limited the disclosure of the photograph.
If suchwere the case, they cannot invoke the protection attached to the right to
informational privacy. The ensuing pronouncement in US v. Gines-Perez44 is most
instructive:
[A] person who places a photograph on the Internet precisely intends to forsake and
renounce all privacy rights to such imagery, particularly under circumstances suchas
here, where the Defendant did not employ protective measures or devices that would
have controlled access to the Web page or the photograph itself.45
Also, United States v. Maxwell46 held that "[t]he more open the method of
transmission is, the less privacy one can reasonably expect. Messages sent to the
public at large inthe chat room or e-mail that is forwarded from correspondent to
correspondent loses any semblance of privacy."
That the photos are viewable by "friends only" does not necessarily bolster the
petitioners’ contention. In this regard, the cyber community is agreed that the digital
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images under this setting still remain to be outside the confines of the zones of
privacy in view of the following:
(1) Facebook "allows the world to be more open and connected by giving its
users the tools to interact and share in any conceivable way;"47
(2) A good number of Facebook users "befriend" other users who are total
strangers;48
(3) The sheer number of "Friends" one user has, usually by the hundreds;
and
(4) A user’s Facebook friend can "share"49 the former’s post, or "tag"50 others
who are not Facebook friends with the former, despite its being visible only
tohis or her own Facebook friends.
It is well to emphasize at this point that setting a post’s or profile detail’s privacy to
"Friends" is no assurance that it can no longer be viewed by another user who is not
Facebook friends with the source of the content. The user’s own Facebook friend
can share said content or tag his or her own Facebook friend thereto, regardless of
whether the user tagged by the latter is Facebook friends or not with the former.
Also, when the post is shared or when a person is tagged, the respective Facebook
friends of the person who shared the post or who was tagged can view the post, the
privacy setting of which was set at "Friends."
To illustrate, suppose A has 100 Facebook friends and B has 200. A and B are not
Facebook friends. If C, A’s Facebook friend, tags B in A’s post, which is set at
"Friends," the initial audience of 100 (A’s own Facebook friends) is dramatically
increased to 300 (A’s 100 friends plus B’s 200 friends or the public, depending upon
B’s privacy setting). As a result, the audience who can view the post is effectively
expanded––and to a very large extent.
This, along with its other features and uses, is confirmation of Facebook’s proclivity
towards user interaction and socialization rather than seclusion or privacy, as it
encourages broadcasting of individual user posts. In fact, it has been said that OSNs
have facilitated their users’ self-tribute, thereby resulting into the "democratization of
fame."51 Thus, it is suggested, that a profile, or even a post, with visibility set at
"Friends Only" cannot easily, more so automatically, be said to be "very private,"
contrary to petitioners’ argument.
As applied, even assuming that the photos in issue are visible only to the sanctioned
students’ Facebook friends, respondent STC can hardly be taken to task for the
perceived privacy invasion since it was the minors’ Facebook friends who showed
the pictures to Tigol. Respondents were mere recipients of what were posted. They
did not resort to any unlawful means of gathering the information as it was voluntarily
given to them by persons who had legitimate access to the said posts. Clearly, the
fault, if any, lies with the friends of the minors. Curiously enough, however, neither
the minors nor their parents imputed any violation of privacy against the students
who showed the images to Escudero.
Furthermore, petitioners failed to prove their contention that respondents reproduced
and broadcasted the photographs. In fact, what petitioners attributed to respondents
as an act of offensive disclosure was no more than the actuality that respondents
appended said photographs in their memorandum submitted to the trial court in
connection with Civil Case No. CEB-38594.52 These are not tantamount to a violation
of the minor’s informational privacy rights, contrary to petitioners’ assertion.
In sum, there can be no quibbling that the images in question, or to be more precise,
the photos of minor students scantily clad, are personal in nature, likely to affect, if
indiscriminately circulated, the reputation of the minors enrolled in a conservative
institution. However, the records are bereft of any evidence, other than bare
assertions that they utilized Facebook’s privacy settings to make the photos visible
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only to them or to a select few. Without proof that they placed the photographs
subject of this case within the ambit of their protected zone of privacy, they cannot
now insist that they have an expectation of privacy with respect to the photographs in
question.
Had it been proved that the access tothe pictures posted were limited to the original
uploader, through the "Me Only" privacy setting, or that the user’s contact list has
been screened to limit access to a select few, through the "Custom" setting, the
result may have been different, for in such instances, the intention to limit access to
the particular post, instead of being broadcasted to the public at large or all the
user’s friends en masse, becomes more manifest and palpable.
On Cyber Responsibility
It has been said that "the best filter is the one between your children’s ears."53 This
means that self-regulation on the part of OSN users and internet consumers
ingeneral is the best means of avoiding privacy rights violations.54As a cyberspace
communitymember, one has to be proactive in protecting his or her own privacy.55 It
is in this regard that many OSN users, especially minors, fail.Responsible social
networking or observance of the "netiquettes"56 on the part of teenagers has been
the concern of many due to the widespreadnotion that teenagers can sometimes go
too far since they generally lack the people skills or general wisdom to conduct
themselves sensibly in a public forum.57
Respondent STC is clearly aware of this and incorporating lessons on good cyber
citizenship in its curriculum to educate its students on proper online conduct may be
mosttimely. Too, it is not only STC but a number of schools and organizations have
already deemed it important to include digital literacy and good cyber citizenshipin
their respective programs and curricula in view of the risks that the children are
exposed to every time they participate in online activities.58 Furthermore, considering
the complexity of the cyber world and its pervasiveness,as well as the dangers that
these children are wittingly or unwittingly exposed to in view of their unsupervised
activities in cyberspace, the participation of the parents in disciplining and educating
their children about being a good digital citizen is encouraged by these institutions
and organizations. In fact, it is believed that "to limit such risks, there’s no substitute
for parental involvement and supervision."59
As such, STC cannot be faulted for being steadfast in its duty of teaching its students
to beresponsible in their dealings and activities in cyberspace, particularly in OSNs,
whenit enforced the disciplinary actions specified in the Student Handbook, absenta
showing that, in the process, it violated the students’ rights.
OSN users should be aware of the risks that they expose themselves to whenever
they engage incyberspace activities.1âwphi1 Accordingly, they should be cautious
enough to control their privacy and to exercise sound discretion regarding how much
information about themselves they are willing to give up. Internet consumers ought to
be aware that, by entering or uploading any kind of data or information online, they
are automatically and inevitably making it permanently available online, the
perpetuation of which is outside the ambit of their control. Furthermore, and more
importantly, information, otherwise private, voluntarily surrendered by them can be
opened, read, or copied by third parties who may or may not be allowed access to
such.
It is, thus, incumbent upon internet users to exercise due diligence in their online
dealings and activities and must not be negligent in protecting their rights. Equity
serves the vigilant. Demanding relief from the courts, as here, requires that claimants
themselves take utmost care in safeguarding a right which they allege to have been
violated. These are indispensable. We cannot afford protection to persons if they
themselves did nothing to place the matter within the confines of their private zone.
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OSN users must be mindful enough to learn the use of privacy tools, to use them if
they desire to keep the information private, and to keep track of changes in the
available privacy settings, such as those of Facebook, especially because Facebook
is notorious for changing these settings and the site's layout often.
In finding that respondent STC and its officials did not violate the minors' privacy
rights, We find no cogent reason to disturb the findings and case disposition of the
court a quo.
In light of the foregoing, the Court need not belabor the other assigned errors.
WHEREFORE, premises considered, the petition is hereby DENIED. The Decision
dated July 27, 2012 of the Regional Trial Court, Branch 14 in Cebu City in SP. Proc.
No. 19251-CEB is hereby AFFIRMED.
No pronouncement as to costs.
SO ORDERED.
SUMMARY:

Case Summary and Outcome


The right to privacy is not violated when a third party downloads images from an
individual’s Facebook page that are accessible by “friends” of the individual or by the
public at large.

Facts
Minors Nenita Julia V. Daluz and Julienne Vida Suzara, along with several others,
took pictures of themselves in their underwear, smoking cigarettes and drinking hard
liquor. A third minor, Angela Tan, uploaded them onto Facebook. A computer
teacher at minors’ school, Mylene Rheza T. Escuedro, discovered the pictures. The
photos were reported to the Discipline in Charge and the girls were found to have
violated the Student Handbook.
The students were sent to the Principal’s office where they were chastised and
verbally abused. They were also banned from commencement. Angela’s mother filed
a Petition for Injunction and Damages asking that the school be denied from
prohibiting the girls from attending commencement. A TRO was granted allowing the
girls to attend graduation and the Plaintiffs filed a writ of habeas data alleging an
invasion of their children’s privacy by the Defendant.
The Regional Trial Court dismissed the petition for habeas data because “petitioners
failed to prove the existence of an actual or threatened violation of the minors’ right
to privacy.”

Decision Overview
The primary issue was “whether or not there was indeed an actual or threatened
violation of the right to privacy in the life, liberty, or security of the minors involved in
the case.” A writ of habeas data protects an individual’s right against invasion of
informational privacy, and a nexus between the right to privacy and the right to life,
liberty or security must be proven.
In this case, the core issue was the right to informational privacy, defined as “the
right of individuals to control information about themselves.” To what extent should
the right to privacy be protected in online social networks whose sole purpose is
sharing information over the web? The petitioners argued that the privacy settings on
Facebook limit who can see what information. This gives users a subjective
expectation of privacy. The Court agreed. However, the Court also ruled that before
one can have an expectation of privacy in her Facebook information, he or she must
manifest an intention to keep that information private by utilizing privacy tools. If
someone posts something on Facebook and does not limit who can see that
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information, there is no expectation of privacy. The photos in the case at hand were
all viewable by the friends of the girls or by the general public. Therefore, the Court
ruled that the Defendants did not violate the minors’ privacy rights by viewing and
copying the pictures on the minors’ Facebook pages.
SUMMARY:
Facts: This case involves graduating students of the STC-Cebu City; wherein, the
students involved posted pictures on their Facebook account of them wearing
wearing no shirt, but only brassieres from waist up. Said photos were taken while
they were changing into their swimsuits for a beach party. The said photos were
reported to the STC’s computer teacher, named Mylene Rheza Escudero. Escudero
asked several of her students to show her other photos of Julia and Julianne, above-
mentioned graduating students, they saw photos of: them along the streets of Cebu
wearing clothing which shows their black brassieres (duh, Sinulog? Hello?); them
drinking hard liquor and smoking cigarettes inside a bar (Private property OUTSIDE
school premises); and that their Facebook accounts were accessible to any
Facebook user.
Upon discovery thereof, Escudero reported the matter to the school authorities. The
poor students involved were investigated and were barred to attend their highschool
graduation rites which is experienced by a person once in their lifetime. Heartless.
A case was filed against the STC and its officials for Injunction and Damages.
Injunction as to the order of the school not to allow the poor children to attend their
graduation rites. A petition for the issuance of the writ of habeas data was also filed.
Petitioners (Parents of the students involved) assert that the privacy of the children
were unlawfully invaded. Since the Facebook accounts of the children are set
at “Friends Only”; That the photos were owned by the ladies, thus cannot be used
and reproduced without their consent. Old hag, however, violated this by saving
digital copies and subsequently showed them to the STC’s officials.
RTC issued the writ and directed the respondents to file their verified written return
within 5 working days from service of the writ.
Respondent denied the petitioners allegation, among others, because there can be
no violation of their right to privacy as there is no reasonable expectation of privacy
on Facebook.
RTC dismissed the petition for habeas data.
Issue: Whether the writ of habeas data is a proper remedy?
Decision: No.
The writ of habeas data is a remedy available to any person whose right to privacy in
life, liberty or security is violated or threatened by an unlawful act or omission of a
public official or employee, or of a private individual or entity engaged in the
gathering, collecting or storing data or information regarding the person, family,
home and correspondence of the aggrieved party.
PURPOSE:
It is an independent and summary remedy designed to protect the image, privacy,
honor, information, and freedom of information of an individual, and to provide a
forum to enforce one’s right to the truth and to informational privacy.
THE WRIT OF HABEAS DATA IS NOT ONLY CONFINED TO CASES OF
EXTRALEGAL KILLINGS AND ENFORCED DISAPPEARANCES.
Section 2 of the Rule on the Writ of Habeas Data
Sec. 2. Who May File. – Any aggrieved party may file a petition for the writ of habeas
data. However, in cases of extralegal killings and enforced disappearances, the
petition may be filed by: (a) Any member of the immediate family of the aggrieved
party, namely: the spouse, children and parents; or (b) Any ascendant, descendant
or collateral relative of the aggrieved party within the fourth civil degree of
Page 177 of 236
consanguinity or affinity, in default of those mentioned in the preceding paragraph.
(emphasis supplied)
Had the framers of the Rule intended to narrow the operation of the writ only to
extralegal killings or enforced disappearances, the above underscored portion of
Section 2, a variance of habeas data situations, would not have been made.
It is designed to safeguard individual freedom from abuse in the information age.
RESPONDENT CONTENDS THAT IT IS NOT AN ENTITY ENGAGED IN THE
GATHERING, COLLETING OR STORING OF DATA OR INFORMATION
REGARDING THE PERSON, FAMILY, HOME AND CORRESPONDENCE OF THE
AGGRIEVED PARTY. -THIS IS ERRONEOUS.
Such individual need not be in the business of such.
To “engage” in something is different from undertaking a business endeavor. To
“engage” means “to do or take part in something.” It does not necessarily mean that
the activity must be done in pursuit of a business. What matters is that the person or
entity must be gathering, collecting or storing said data or information about the
aggrieved party or his or her family. Regularity is immaterial.
THREE STRANDS OF RIGHT TO PRIVACY:
1. Locational/Situational
2. Informational (case at bar)
3. Decisional
RIGHT TO PRIVACY WAS NOT VIOLATED because:
1. Facebook has privacy safeguard tools.
2. Utilization of this tools is the manifestation, in the cyber world, of the user’s
invocation of his right to informational privacy.
That the photos are viewable by “friends only” does not necessarily bolsters the
petitioners’ contention. It is well emphasize at this point that setting a post’s or profile
detail’s to “Friends” is no assurance that it can no longer be viewed by another user
who is not Facebook friends with the source of the content.
The user’s own Facebook friend can share said content or tag his or her own
Facebook friend thereto, regardless of whether the user tagged by the latter is
Facebook friends or not with the former.

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

CORTES, J.:
Page 178 of 236
Before the Court is a contreversy of grave national importance. While ostensibly only
legal issues are involved, the Court's decision in this case would undeniably have a
profound effect on the political, economic and other aspects of national life.
We recall that in February 1986, Ferdinand E. Marcos was deposed from the
presidency via the non-violent "people power" revolution and forced into exile. In his
stead, Corazon C. Aquino was declared President of the Republic under a
revolutionary government. Her ascension to and consilidation of power have not
been unchallenged. The failed Manila Hotel coup in 1986 led by political leaders of
Mr. Marcos, the takeover of television station Channel 7 by rebel troops led by Col.
Canlas with the support of "Marcos loyalists" and the unseccessful plot of the Marcos
spouses to surreptitiously return from Hawii with mercenaries aboard an aircraft
chartered by a Lebanese arms dealer [Manila Bulletin, January 30, 1987] awakened
the nation to the capacity of the Marcoses to stir trouble even from afar and to the
fanaticism and blind loyalty of their followers in the country. The ratification of the
1987 Constitution enshrined the victory of "people power" and also clearly reinforced
the constitutional moorings of Mrs. Aquino's presidency. This did not, however, stop
bloody challenges to the government. On August 28, 1987, Col. Gregorio Honasan,
one of the major players in the February Revolution, led a failed coup that left scores
of people, both combatants and civilians, dead. There were several other armed
sorties of lesser significance, but the message they conveyed was the same — a
split in the ranks of the military establishment that thraetened civilian supremacy over
military and brought to the fore the realization that civilian government could be at
the mercy of a fractious military.
But the armed threats to the Government were not only found in misguided elements
and among rabid followers of Mr. Marcos. There are also the communist insurgency
and the seccessionist movement in Mindanao which gained ground during the rule of
Mr. Marcos, to the extent that the communists have set up a parallel government of
their own on the areas they effectively control while the separatist are virtually free to
move about in armed bands. There has been no let up on this groups' determination
to wrest power from the govermnent. Not only through resort to arms but also to
through the use of propaganda have they been successful in dreating chaos and
destabilizing the country.
Nor are the woes of the Republic purely political. The accumulated foreign debt and
the plunder of the nation attributed to Mr. Marcos and his cronies left the economy
devastated. The efforts at economic recovery, three years after Mrs. Aquino
assumed office, have yet to show concrete results in alleviating the poverty of the
masses, while the recovery of the ill-gotten wealth of the Marcoses has remained
elusive.
Now, Mr. Marcos, in his deathbed, has signified his wish to return to the Philipppines
to die. But Mrs. Aquino, considering the dire consequences to the nation of his return
at a time when the stability of government is threatened from various directions and
the economy is just beginning to rise and move forward, has stood firmly on the
decision to bar the return of Mr. Marcos and his family.
The Petition
This case is unique. It should not create a precedent, for the case of a dictator forced
out of office and into exile after causing twenty years of political, economic and social
havoc in the country and who within the short space of three years seeks to return, is
in a class by itself.
This petition for mandamus and prohibition asks the Courts to order the respondents
to issue travel documents to Mr. Marcos and the immediate members of his family
and to enjoin the implementation of the President's decision to bar their return to the
Philippines.
Page 179 of 236
The Issue
Th issue is basically one of power: whether or not, in the exercise of the powers
granted by the Constitution, the President may prohibit the Marcoses from returning
to the Philippines.
According to the petitioners, the resolution of the case would depend on the
resolution of the following issues:
1. Does the President have the power to bar the return of former
President Marcos and family to the Philippines?
a. Is this a political question?
2. Assuming that the President has the power to bar former President
Marcos and his family from returning to the Philippines, in the interest
of "national security, public safety or public health
a. Has the President made a finding that the return of former
President Marcos and his family to the Philippines is a clear and
present danger to national security, public safety or public health?
b. Assuming that she has made that finding
(1) Have the requirements of due process been
complied with in making such finding?
(2) Has there been prior notice to petitioners?
(3) Has there been a hearing?
(4) Assuming that notice and hearing may be
dispensed with, has the President's decision, including
the grounds upon which it was based, been made
known to petitioners so that they may controvert the
same?
c. Is the President's determination that the return of former President
Marcos and his family to the Philippines is a clear and present danger
to national security, public safety, or public health a political question?
d. Assuming that the Court may inquire as to whether the return of
former President Marcos and his family is a clear and present danger
to national security, public safety, or public health, have respondents
established such fact?
3. Have the respondents, therefore, in implementing the President's
decision to bar the return of former President Marcos and his family,
acted and would be acting without jurisdiction, or in excess of
jurisdiction, or with grave abuse of discretion, in performing any act
which would effectively bar the return of former President Marcos and
his family to the Philippines? [Memorandum for Petitioners, pp. 5-7;
Rollo, pp. 234-236.1
The case for petitioners is founded on the assertion that the right of the Marcoses to
return to the Philippines is guaranteed under the following provisions of the Bill of
Rights, to wit:
Section 1. No person shall be deprived of life, liberty, or property
without due process of law, nor shall any person be denied the equal
protection of the laws.
xxx xxx xxx
Section 6. The liberty of abode and of changing the same within the
limits prescribed by law shall not be impaired except upon lawful order
of the court. Neither shall the right to travel be impaired except in the
interest of national security, public safety, or public health, as may be
provided by law.

Page 180 of 236


The petitioners contend that the President is without power to impair the liberty of
abode of the Marcoses because only a court may do so "within the limits prescribed
by law." Nor may the President impair their right to travel because no law has
authorized her to do so. They advance the view that before the right to travel may be
impaired by any authority or agency of the government, there must be legislation to
that effect.
The petitioners further assert that under international law, the right of Mr. Marcos and
his family to return to the Philippines is guaranteed.
The Universal Declaration of Human Rights provides:
Article 13. (1) Everyone has the right to freedom of movement and
residence within the borders of each state.
(2) Everyone has the right to leave any country, including his own,
and to return to his country.
Likewise, the International Covenant on Civil and Political Rights, which had been
ratified by the Philippines, provides:
Article 12
1) Everyone lawfully within the territory of a State shall, within that
territory, have the right to liberty of movement and freedom to choose
his residence.
2) Everyone shall be free to leave any country, including his own.
3) The above-mentioned rights shall not be subject to any restrictions
except those which are provided by law, are necessary to protect
national security, public order (order public), public health or morals or
the rights and freedoms of others, and are consistent with the other
rights recognized in the present Covenant.
4) No one shall be arbitrarily deprived of the right to enter his own
country.
On the other hand, the respondents' principal argument is that the issue in this case
involves a political question which is non-justiciable. According to the Solicitor
General:
As petitioners couch it, the question involved is simply whether or not
petitioners Ferdinand E. Marcos and his family have the right to travel
and liberty of abode. Petitioners invoke these constitutional rights in
vacuo without reference to attendant circumstances.
Respondents submit that in its proper formulation, the issue is
whether or not petitioners Ferdinand E. Marcos and family have the
right to return to the Philippines and reside here at this time in the face
of the determination by the President that such return and residence
will endanger national security and public safety.
It may be conceded that as formulated by petitioners, the question is
not a political question as it involves merely a determination of what
the law provides on the matter and application thereof to petitioners
Ferdinand E. Marcos and family. But when the question is whether the
two rights claimed by petitioners Ferdinand E. Marcos and family
impinge on or collide with the more primordial and transcendental
right of the State to security and safety of its nationals, the question
becomes political and this Honorable Court can not consider it.
There are thus gradations to the question, to wit:
Do petitioners Ferdinand E. Marcos and family have the right to return
to the Philippines and reestablish their residence here? This is clearly
a justiciable question which this Honorable Court can decide.

Page 181 of 236


Do petitioners Ferdinand E. Marcos and family have their right to
return to the Philippines and reestablish their residence here even if
their return and residence here will endanger national security and
public safety? this is still a justiciable question which this Honorable
Court can decide.
Is there danger to national security and public safety if petitioners
Ferdinand E. Marcos and family shall return to the Philippines and
establish their residence here? This is now a political question which
this Honorable Court can not decide for it falls within the exclusive
authority and competence of the President of the Philippines.
[Memorandum for Respondents, pp. 9-11; Rollo, pp. 297-299.]
Respondents argue for the primacy of the right of the State to national security over
individual rights. In support thereof, they cite Article II of the Constitution, to wit:
Section 4. The prime duty of the Government is to serve and protect
the people. The Government may call upon the people to defend the
State and, in the fulfillment thereof, all citizens may be required, under
conditions provided by law, to render personal, military, or civil
service.
Section 5. The maintenance of peace and order, the protection of life,
liberty, and property, and the promotion of the general welfare are
essential for the enjoyment by all the people of the blessings of
democracy.
Respondents also point out that the decision to ban Mr. Marcos and family from
returning to the Philippines for reasons of national security and public safety has
international precedents. Rafael Trujillo of the Dominican Republic, Anastacio
Somoza Jr. of Nicaragua, Jorge Ubico of Guatemala, Fulgencio batista of Cuba, King
Farouk of Egypt, Maximiliano Hernandez Martinez of El Salvador, and Marcos Perez
Jimenez of Venezuela were among the deposed dictators whose return to their
homelands was prevented by their governments. [See Statement of Foreign Affairs
Secretary Raul S. Manglapus, quoted in Memorandum for Respondents, pp. 26-32;
Rollo, pp. 314-319.]
The parties are in agreement that the underlying issue is one of the scope of
presidential power and its limits. We, however, view this issue in a different light.
Although we give due weight to the parties' formulation of the issues, we are not
bound by its narrow confines in arriving at a solution to the controversy.
At the outset, we must state that it would not do to view the case within the confines
of the right to travel and the import of the decisions of the U.S. Supreme Court in the
leading cases of Kent v. Dulles [357 U.S. 116, 78 SCt 1113, 2 L Ed. 2d 1204]
and Haig v. Agee [453 U.S. 280, 101 SCt 2766, 69 L Ed. 2d 640) which affirmed the
right to travel and recognized exceptions to the exercise thereof, respectively.
It must be emphasized that the individual right involved is not the right to travel from
the Philippines to other countries or within the Philippines. These are what the right
to travel would normally connote. Essentially, the right involved is the right to return
to one's country, a totally distinct right under international law, independent from
although related to the right to travel. Thus, the Universal Declaration of Humans
Rights and the International Covenant on Civil and Political Rights treat the right to
freedom of movement and abode within the territory of a state, the right to leave a
country, and the right to enter one's country as separate and distinct rights. The
Declaration speaks of the "right to freedom of movement and residence within the
borders of each state" [Art. 13(l)] separately from the "right to leave any country,
including his own, and to return to his country." [Art. 13(2).] On the other hand, the
Covenant guarantees the "right to liberty of movement and freedom to choose his
Page 182 of 236
residence" [Art. 12(l)] and the right to "be free to leave any country, including his
own." [Art. 12(2)] which rights may be restricted by such laws as "are necessary to
protect national security, public order, public health or morals or enter qqqs own
country" of which one cannot be "arbitrarily deprived." [Art. 12(4).] It would therefore
be inappropriate to construe the limitations to the right to return to one's country in
the same context as those pertaining to the liberty of abode and the right to travel.
The right to return to one's country is not among the rights specifically guaranteed in
the Bill of Rights, which treats only of the liberty of abode and the right to travel, but it
is our well-considered view that the right to return may be considered, as a generally
accepted principle of international law and, under our Constitution, is part of the law
of the land [Art. II, Sec. 2 of the Constitution.] However, it is distinct and separate
from the right to travel and enjoys a different protection under the International
Covenant of Civil and Political Rights, i.e., against being "arbitrarily deprived" thereof
[Art. 12 (4).]
Thus, the rulings in the cases Kent and Haig which refer to the issuance of passports
for the purpose of effectively exercising the right to travel are not determinative of
this case and are only tangentially material insofar as they relate to a conflict
between executive action and the exercise of a protected right. The issue before the
Court is novel and without precedent in Philippine, and even in American
jurisprudence.
Consequently, resolution by the Court of the well-debated issue of whether or not
there can be limitations on the right to travel in the absence of legislation to that
effect is rendered unnecessary. An appropriate case for its resolution will have to be
awaited.
Having clarified the substance of the legal issue, we find now a need to explain the
methodology for its resolution. Our resolution of the issue will involve a two-tiered
approach. We shall first resolve whether or not the President has the power under
the Constitution, to bar the Marcoses from returning to the Philippines. Then, we
shall determine, pursuant to the express power of the Court under the Constitution in
Article VIII, Section 1, whether or not the President acted arbitrarily or with grave
abuse of discretion amounting to lack or excess of jurisdiction when she determined
that the return of the Marcose's to the Philippines poses a serious threat to national
interest and welfare and decided to bar their return.
Executive Power
The 1987 Constitution has fully restored the separation of powers of the three great
branches of government. To recall the words of Justice Laurel in Angara v. Electoral
Commission [63 Phil. 139 (1936)], "the Constitution has blocked but with deft strokes
and in bold lines, allotment of power to the executive, the legislative and the judicial
departments of the government." [At 157.1 Thus, the 1987 Constitution explicitly
provides that "[the legislative power shall be vested in the Congress of the
Philippines" Art VI, Sec. 11, "[t]he executive power shall bevested in the President of
the Philippines" [Art. VII, Sec. 11, and "[te judicial power shall be vested in one
Supreme Court and in such lower courts as may be established by law" [Art. VIII,
Sec. 1.] These provisions not only establish a separation of powers by actual division
[Angara v. Electoral Commission, supra] but also confer plenary legislative,
executive and judicial powers subject only to limitations provided in the Constitution.
For as the Supreme Court in Ocampo v. Cabangis [15 Phil. 626 (1910)] pointed out
"a grant of the legislative power means a grant of all legislative power; and a grant of
the judicial power means a grant of all the judicial power which may be exercised
under the government." [At 631-632.1 If this can be said of the legislative power
which is exercised by two chambers with a combined membership of more than two
hundred members and of the judicial power which is vested in a hierarchy of courts,
Page 183 of 236
it can equally be said of the executive power which is vested in one official the
President.
As stated above, the Constitution provides that "[t]he executive power shall be
vested in the President of the Philippines." [Art. VII, Sec. 1]. However, it does not
define what is meant by executive power" although in the same article it touches on
the exercise of certain powers by the President, i.e., the power of control over all
executive departments, bureaus and offices, the power to execute the laws, the
appointing power, the powers under the commander-in-chief clause, the power to
grant reprieves, commutations and pardons, the power to grant amnesty with the
concurrence of Congress, the power to contract or guarantee foreign loans, the
power to enter into treaties or international agreements, the power to submit the
budget to Congress, and the power to address Congress [Art. VII, Sec. 14-23].
The inevitable question then arises: by enumerating certain powers of the President
did the framers of the Constitution intend that the President shall exercise those
specific powers and no other? Are these se enumerated powers the breadth and
scope of "executive power"? Petitioners advance the view that the President's
powers are limited to those specifically enumerated in the 1987 Constitution. Thus,
they assert: "The President has enumerated powers, and what is not enumerated is
impliedly denied to her. Inclusion unius est exclusio alterius[Memorandum for
Petitioners, p. 4- Rollo p. 233.1 This argument brings to mind the institution of the
U.S. Presidency after which ours is legally patterned.**
Corwin, in his monumental volume on the President of the United States grappled
with the same problem. He said:
Article II is the most loosely drawn chapter of the Constitution. To
those who think that a constitution ought to settle everything
beforehand it should be a nightmare; by the same token, to those who
think that constitution makers ought to leave considerable leeway for
the future play of political forces, it should be a vision realized.
We encounter this characteristic of Article 11 in its opening words:
"The executive power shall be vested in a President of the United
States of America." . . .. [The President: Office and Powers,
17871957, pp. 3-4.]
Reviewing how the powers of the U.S. President were exercised by the different
persons who held the office from Washington to the early 1900's, and the swing from
the presidency by commission to Lincoln's dictatorship, he concluded that "what the
presidency is at any particular moment depends in important measure on who is
President." [At 30.]
This view is shared by Schlesinger who wrote in The Imperial Presidency:
For the American Presidency was a peculiarly personal institution. it
remained of course, an agency of government subject to unvarying
demands and duties no remained, of cas President. But, more than
most agencies of government, it changed shape, intensity and ethos
according to the man in charge. Each President's distinctive
temperament and character, his values, standards, style, his habits,
expectations, Idiosyncrasies, compulsions, phobias recast the
WhiteHouse and pervaded the entire government. The executive
branch, said Clark Clifford, was a chameleon, taking its color from the
character and personality of the President. The thrust of the office, its
impact on the constitutional order, therefore altered from President to
President. Above all, the way each President understood it as his
personal obligation to inform and involve the Congress, to earn and
hold the confidence of the electorate and to render an accounting to
Page 184 of 236
the nation and posterity determined whether he strengthened or
weakened the constitutional order. [At 212- 213.]
We do not say that the presidency is what Mrs. Aquino says it is or what she does
but, rather, that the consideration of tradition and the development of presidential
power under the different constitutions are essential for a complete understanding of
the extent of and limitations to the President's powers under the 1987 Constitution.
The 1935 Constitution created a strong President with explicitly broader powers than
the U.S. President. The 1973 Constitution attempted to modify the system of
government into the parliamentary type, with the President as a mere figurehead, but
through numerous amendments, the President became even more powerful, to the
point that he was also the de facto Legislature. The 1987 Constitution, however,
brought back the presidential system of government and restored the separation of
legislative, executive and judicial powers by their actual distribution among three
distinct branches of government with provision for checks and balances.
It would not be accurate, however, to state that "executive power" is the power to
enforce the laws, for the President is head of state as well as head of government
and whatever powers inhere in such positions pertain to the office unless the
Constitution itself withholds it. Furthermore, the Constitution itself provides that the
execution of the laws is only one of the powers of the President. It also grants the
President other powers that do not involve the execution of any provision of law, e.g.,
his power over the country's foreign relations.
On these premises, we hold the view that although the 1987 Constitution imposes
limitations on the exercise of specific powers of the President, it maintains intact
what is traditionally considered as within the scope of "executive power." Corollarily,
the powers of the President cannot be said to be limited only to the specific powers
enumerated in the Constitution. In other words, executive power is more than the
sum of specific powers so enumerated,
It has been advanced that whatever power inherent in the government that is neither
legislative nor judicial has to be executive. Thus, in the landmark decision of Springer
v. Government of the Philippine Islands, 277 U.S. 189 (1928), on the issue of who
between the Governor-General of the Philippines and the Legislature may vote the
shares of stock held by the Government to elect directors in the National Coal
Company and the Philippine National Bank, the U.S. Supreme Court, in upholding
the power of the Governor-General to do so, said:
...Here the members of the legislature who constitute a majority of the
"board" and "committee" respectively, are not charged with the
performance of any legislative functions or with the doing of anything
which is in aid of performance of any such functions by the legislature.
Putting aside for the moment the question whether the duties
devolved upon these members are vested by the Organic Act in the
Governor-General, it is clear that they are not legislative in character,
and still more clear that they are not judicial. The fact that they do not
fall within the authority of either of these two constitutes logical ground
for concluding that they do fall within that of the remaining one among
which the powers of government are divided ....[At 202-203; Emphasis
supplied.]
We are not unmindful of Justice Holmes' strong dissent. But in his enduring words of
dissent we find reinforcement for the view that it would indeed be a folly to construe
the powers of a branch of government to embrace only what are specifically
mentioned in the Constitution:
The great ordinances of the Constitution do not establish and divide
fields of black and white. Even the more specific of them are found to
Page 185 of 236
terminate in a penumbra shading gradually from one extreme to the
other. ....
xxx xxx xxx
It does not seem to need argument to show that however we may
disguise it by veiling words we do not and cannot carry out the
distinction between legislative and executive action with mathematical
precision and divide the branches into watertight compartments, were
it ever so desirable to do so, which I am far from believing that it is, or
that the Constitution requires. [At 210- 211.]
The Power Involved
The Constitution declares among the guiding principles that "[t]he prime duty of
theGovernment is to serve and protect the people" and that "[t]he maintenance of
peace and order,the protection of life, liberty, and property, and the promotion of the
general welfare are essential for the enjoyment by all the people of the blessings of
democracy." [Art. II, Secs. 4 and 5.]
Admittedly, service and protection of the people, the maintenance of peace and
order, the protection of life, liberty and property, and the promotion of the general
welfare are essentially ideals to guide governmental action. But such does not mean
that they are empty words. Thus, in the exercise of presidential functions, in drawing
a plan of government, and in directing implementing action for these plans, or from
another point of view, in making any decision as President of the Republic, the
President has to consider these principles, among other things, and adhere to them.
Faced with the problem of whether or not the time is right to allow the Marcoses to
return to the Philippines, the President is, under the Constitution, constrained to
consider these basic principles in arriving at a decision. More than that, having sworn
to defend and uphold the Constitution, the President has the obligation under the
Constitution to protect the people, promote their welfare and advance the national
interest. It must be borne in mind that the Constitution, aside from being an allocation
of power is also a social contract whereby the people have surrendered their
sovereign powers to the State for the common good. Hence, lest the officers of the
Government exercising the powers delegated by the people forget and the servants
of the people become rulers, the Constitution reminds everyone that "[s]overeignty
resides in the people and all government authority emanates from them." [Art. II,
Sec. 1.]
The resolution of the problem is made difficult because the persons who seek to
return to the country are the deposed dictator and his family at whose door the
travails of the country are laid and from whom billions of dollars believed to be ill-
gotten wealth are sought to be recovered. The constitutional guarantees they invoke
are neither absolute nor inflexible. For the exercise of even the preferred freedoms of
speech and ofexpression, although couched in absolute terms, admits of limits and
must be adjusted to the requirements of equally important public interests [Zaldivar v.
Sandiganbayan, G.R. Nos. 79690-707, October 7, 1981.]
To the President, the problem is one of balancing the general welfare and the
common good against the exercise of rights of certain individuals. The power
involved is the President's residual power to protect the general welfare of the
people. It is founded on the duty of the President, as steward of the people. To
paraphrase Theodore Roosevelt, it is not only the power of the President but also his
duty to do anything not forbidden by the Constitution or the laws that the needs of the
nation demand [See Corwin, supra, at 153]. It is a power borne by the President's
duty to preserve and defend the Constitution. It also may be viewed as a power
implicit in the President's duty to take care that the laws are faithfully executed
[see Hyman, The American President, where the author advances the view that an
Page 186 of 236
allowance of discretionary power is unavoidable in any government and is best
lodged in the President].
More particularly, this case calls for the exercise of the President's powers as
protector of the peace. Rossiter The American Presidency].The power of the
President to keep the peace is not limited merely to exercising the commander-in-
chief powers in times of emergency or to leading the State against external and
internal threats to its existence. The President is not only clothed with extraordinary
powers in times of emergency, but is also tasked with attending to the day-to-day
problems of maintaining peace and order and ensuring domestic tranquility in times
when no foreign foe appears on the horizon. Wide discretion, within the bounds of
law, in fulfilling presidential duties in times of peace is not in any way diminished by
the relative want of an emergency specified in the commander-in-chief provision. For
in making the President commander-in-chief the enumeration of powers that follow
cannot be said to exclude the President's exercising as Commander-in- Chief
powers short of the calling of the armed forces, or suspending the privilege of the writ
of habeas corpus or declaring martial law, in order to keep the peace, and maintain
public order and security.
That the President has the power under the Constitution to bar the Marcose's from
returning has been recognized by memembers of the Legislature, and is manifested
by the Resolution proposed in the House of Representatives and signed by 103 of its
members urging the President to allow Mr. Marcos to return to the Philippines "as a
genuine unselfish gesture for true national reconciliation and as irrevocable proof of
our collective adherence to uncompromising respect for human rights under the
Constitution and our laws." [House Resolution No. 1342, Rollo, p. 321.1 The
Resolution does not question the President's power to bar the Marcoses from
returning to the Philippines, rather, it appeals to the President's sense of compassion
to allow a man to come home to die in his country.
What we are saying in effect is that the request or demand of the Marcoses to be
allowed to return to the Philippines cannot be considered in the light solely of the
constitutional provisions guaranteeing liberty of abode and the right to travel, subject
to certain exceptions, or of case law which clearly never contemplated situations
even remotely similar to the present one. It must be treated as a matter that is
appropriately addressed to those residual unstated powers of the President which
are implicit in and correlative to the paramount duty residing in that office to
safeguard and protect general welfare. In that context, such request or demand
should submit to the exercise of a broader discretion on the part of the President to
determine whether it must be granted or denied.
The Extent of Review
Under the Constitution, judicial power includes the duty to determine whether or not
there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government." [Art. VIII,
Sec. 1] Given this wording, we cannot agree with the Solicitor General that the issue
constitutes a political question which is beyond the jurisdiction of the Court to decide.
The present Constitution limits resort to the political question doctrine and broadens
the scope of judicial inquiry into areas which the Court, under previous constitutions,
would have normally left to the political departments to decide. But nonetheless there
remain issues beyond the Court's jurisdiction the determination of which is
exclusively for the President, for Congress or for the people themselves through a
plebiscite or referendum. We cannot, for example, question the President's
recognition of a foreign government, no matter how premature or improvident such
action may appear. We cannot set aside a presidential pardon though it may appear
to us that the beneficiary is totally undeserving of the grant. Nor can we amend the
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Constitution under the guise of resolving a dispute brought before us because the
power is reserved to the people.
There is nothing in the case before us that precludes our determination thereof on
the political question doctrine. The deliberations of the Constitutional Commission
cited by petitioners show that the framers intended to widen the scope of judicial
review but they did not intend courts of justice to settle all actual controversies before
them. When political questions are involved, the Constitution limits the determination
to whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of the official whose action is being questioned. If
grave abuse is not established, the Court will not substitute its judgment for that of
the official concerned and decide a matter which by its nature or by law is for the
latter alone to decide. In this light, it would appear clear that the second paragraph of
Article VIII, Section 1 of the Constitution, defining "judicial power," which specifically
empowers the courts to determine whether or not there has been a grave abuse of
discretion on the part of any branch or instrumentality of the government,
incorporates in the fundamental law the ruling in Lansang v. Garcia [G.R. No. L-
33964, December 11, 1971, 42 SCRA 4481 that:]
Article VII of the [1935] Constitution vests in the Executive the power
to suspend the privilege of the writ of habeas corpus under specified
conditions. Pursuant to the principle of separation of powers
underlying our system of government, the Executive is supreme within
his own sphere. However, the separation of powers, under the
Constitution, is not absolute. What is more, it goes hand in hand with
the system of checks and balances, under which the Executive is
supreme, as regards the suspension of the privilege, but only if and
when he acts within the sphere alloted to him by the Basic Law, and
the authority to determine whether or not he has so acted is vested in
the Judicial Department, which, in this respect, is, in turn,
constitutionally supreme. In the exercise of such authority, the
function of the Court is merely to check — not to supplant the
Executive, or to ascertain merely whether he has gone beyond the
constitutional limits of his jurisdiction, not to exercise the power vested
in him or to determine the wisdom of his act [At 479-480.]
Accordingly, the question for the Court to determine is whether or not there exist
factual bases for the President to conclude that it was in the national interest to bar
the return of the Marcoses to the Philippines. If such postulates do exist, it cannot be
said that she has acted, or acts, arbitrarily or that she has gravely abused her
discretion in deciding to bar their return.
We find that from the pleadings filed by the parties, from their oral arguments, and
the facts revealed during the briefing in chambers by the Chief of Staff of the Armed
Forces of the Philippines and the National Security Adviser, wherein petitioners and
respondents were represented, there exist factual bases for the President's
decision..
The Court cannot close its eyes to present realities and pretend that the country is
not besieged from within by a well-organized communist insurgency, a separatist
movement in Mindanao, rightist conspiracies to grab power, urban terrorism, the
murder with impunity of military men, police officers and civilian officials, to mention
only a few. The documented history of the efforts of the Marcose's and their followers
to destabilize the country, as earlier narrated in this ponencia bolsters the conclusion
that the return of the Marcoses at this time would only exacerbate and intensify the
violence directed against the State and instigate more chaos.

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As divergent and discordant forces, the enemies of the State may be contained. The
military establishment has given assurances that it could handle the threats posed by
particular groups. But it is the catalytic effect of the return of the Marcoses that may
prove to be the proverbial final straw that would break the camel's back. With these
before her, the President cannot be said to have acted arbitrarily and capriciously
and whimsically in determining that the return of the Marcoses poses a serious threat
to the national interest and welfare and in prohibiting their return.
It will not do to argue that if the return of the Marcoses to the Philippines will cause
the escalation of violence against the State, that would be the time for the President
to step in and exercise the commander-in-chief powers granted her by the
Constitution to suppress or stamp out such violence. The State, acting through the
Government, is not precluded from taking pre- emptive action against threats to its
existence if, though still nascent they are perceived as apt to become serious and
direct. Protection of the people is the essence of the duty of government. The
preservation of the State the fruition of the people's sovereignty is an obligation in
the highest order. The President, sworn to preserve and defend the Constitution and
to see the faithful execution the laws, cannot shirk from that responsibility.
We cannot also lose sight of the fact that the country is only now beginning to
recover from the hardships brought about by the plunder of the economy attributed to
the Marcoses and their close associates and relatives, many of whom are still here in
the Philippines in a position to destabilize the country, while the Government has
barely scratched the surface, so to speak, in its efforts to recover the enormous
wealth stashed away by the Marcoses in foreign jurisdictions. Then, We cannot
ignore the continually increasing burden imposed on the economy by the excessive
foreign borrowing during the Marcos regime, which stifles and stagnates
development and is one of the root causes of widespread poverty and all its
attendant ills. The resulting precarious state of our economy is of common
knowledge and is easily within the ambit of judicial notice.
The President has determined that the destabilization caused by the return of the
Marcoses would wipe away the gains achieved during the past few years and lead to
total economic collapse. Given what is within our individual and common knowledge
of the state of the economy, we cannot argue with that determination.
WHEREFORE, and it being our well-considered opinion that the President did not
act arbitrarily or with grave abuse of discretion in determining that the return of
former President Marcos and his family at the present time and under present
circumstances poses a serious threat to national interest and welfare and in
prohibiting their return to the Philippines, the instant petition is hereby DISMISSED.
SO ORDERED.

Separate Opinions

FERNAN, C.J., concurring:


"The threats to national security and public order are real the mounting Communist
insurgency, a simmering separatist movement, a restive studentry, widespread labor
disputes, militant farmer groups. . . . Each of these threats is an explosive ingredient
in a steaming cauldron which could blow up if not handled properly." 1
These are not my words. They belong to my distinguished colleague in the Court, Mr.
Justice Hugo E. Gutierrez, Jr. But they express eloquently the basis of my full
concurrence to the exhaustive and well-written ponencia of Mme. Justice Irene R.
Cortes.
Presidential powers and prerogatives are not fixed but fluctuate. They are not
derived solely from a particular constitutional clause or article or from an express
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statutory grant. Their limits are likely to depend on the imperatives of events and
contemporary imponderables rather than on abstract theories of law. History and
time-honored principles of constitutional law have conceded to the Executive Branch
certain powers in times of crisis or grave and imperative national emergency. Many
terms are applied to these powers: "residual," "inherent," 44 moral," "implied,"
"aggregate," "emergency." whatever they may be called, the fact is that these
powers exist, as they must if the governance function of the Executive Branch is to
be carried out effectively and efficiently. It is in this context that the power of the
President to allow or disallow the Marcoses to return to the Philippines should be
viewed. By reason of its impact on national peace and order in these admittedly
critical times, said question cannot be withdrawn from the competence of the
Executive Branch to decide.
And indeed, the return of the deposed President, his wife and children cannot but
pose a clear and present danger to public order and safety. One needs only to recall
the series of destabilizing actions attempted by the so-called Marcos loyalists as well
as the ultra-rightist groups during the EDSA Revolution's aftermath to realize this.
The most publicized of these offensives is the Manila Hotel incident which occurred
barely five (5) months after the People's Power Revolution. Around 10,000 Marcos
supporters, backed by 300 loyalist soldiers led by Brigadier General Jose Zumel and
Lt. Col. Reynaldo Cabauatan converged at the Manila Hotel to witness the oath-
taking of Arturo Tolentino as acting president of the Philippines. The public disorder
and peril to life and limb of the citizens engendered by this event subsided only upon
the eventual surrender of the loyalist soldiers to the authorities.
Then followed the Channel 7, Sangley, Villamor, Horseshoe Drive and Camp
Aguinaldo incidents. Military rebels waged simultaneous offensives in different parts
of Metro Manila and Sangley Point in Cavite. A hundred rebel soldiers took over
Channel 7 and its radio station DZBB. About 74 soldier rebels attacked Villamor Air
Base, while another group struck at Sangley Point in Cavite and held the 15th Air
Force Strike wing commander and his deputy hostage. Troops on board several
vehicles attempted to enter Gate I of Camp Aguinaldo even as another batch of 200
soldiers encamped at Horseshoe Village.
Another destabilization plot was carried out in April, 1987 by enlisted personnel who
forced their way through Gate 1 of Fort Bonifacio. They stormed into the army
stockade but having failed to convince their incarcerated members to unite in their
cause, had to give up nine (9) hours later.
And who can forget the August 28, 1987 coup attempt which almost toppled the
Aquino Government? Launched not by Marcos loyalists, but by another ultra-rightist
group in the military led by Col. Gregorio "Gringo" Honasan who remains at large to
date, this most serious attempt to wrest control of the government resulted in the
death of many civilians.
Members of the so-called Black Forest Commando were able to cart away high-
powered firearms and ammunition from the Camp Crame Armory during a raid
conducted in June 1988. Most of the group members were, however, captured in
Antipolo, Rizal. The same group was involved in an unsuccessful plot known as
Oplan Balik Saya which sought the return of Marcos to the country.
A more recent threat to public order, peace and safety was the attempt of a group
named CEDECOR to mobilize civilians from nearby provinces to act as blockading
forces at different Metro Manila areas for the projected link-up of Marcos military
loyalist troops with the group of Honasan. The pseudo "people power" movement
was neutralized thru checkpoints set up by the authorities along major road arteries
where the members were arrested or forced to turn back.

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While not all of these disruptive incidents may be traced directly to the Marcoses,
their occurrence militates heavily against the wisdom of allowing the Marcoses'
return. Not only will the Marcoses' presence embolden their followers toward similar
actions, but any such action would be seized upon as an opportunity by other
enemies of the State, such as the Communist Party of the Philippines and the
NPA'S, the Muslim secessionists and extreme rightists of the RAM, to wage an
offensive against the government. Certainly, the state through its executive branch
has the power, nay, the responsibility and obligation, to prevent a grave and serious
threat to its safety from arising.
Apparently lost amidst the debate on whether or not to allow the Marcoses to return
to the Philippines is one factor, which albeit, at first blush appears to be extra legal,
constitutes a valid justification for disallowing the requested return. I refer to the
public pulse. It must be remembered that the ouster of the Marcoses from the
Philippines came about as an unexpected, but certainly welcomed, result of the
unprecedented peoples power" revolution. Millions of our people braved military
tanks and firepower, kept vigil, prayed, and in countless manner and ways
contributed time, effort and money to put an end to an evidently untenable claim to
power of a dictator. The removal of the Marcoses from the Philippines was a moral
victory for the Filipino people; and the installation of the present administration, a
realization of and obedience to the people's Will.
Failing in legal arguments for the allowance of the Marcoses' return, appeal is being
made to sympathy, compassion and even Filipino tradition. The political and
economic gains we have achieved during the past three years are however too
valuable and precious to gamble away on purely compassionate considerations.
Neither could public peace, order and safety be sacrificed for an individual's wish to
die in his own country. Verily in the balancing of interests, the scales tilt in favor of
presidential prerogative, which we do not find to have been gravely abused or
arbitrarily exercised, to ban the Marcoses from returning to the Philippines.
GUTIERREZ, JR., J., dissenting
"The Constitution ... is a law for rulers and people, equally in war and in peace, and
covers with the shield of its protection all classes of men, at all times, and under all
circumstances. No doctrine involving more pernicious consequences was ever
invented by the wit of man than that any of its provisions can be suspended during
any of the great exigencies of government." (Ex Parte Milligan, 4 Wall. 2; 18 L. Ed.
281 [1866])
Since our days as law students, we have proclaimed the stirring words of Ex Parte
Milligan as self-evident truth. But faced with a hard and delicate case, we now
hesitate to qive substance to their meaning. The Court has permitted a basic
freedom enshrined in the Bill of Rights to be taken away by Government.
There is only one Bill of Rights with the same interpretation of liberty and the same
guarantee of freedom for both unloved and despised persons on one hand and the
rest who are not so stigmatized on the other.
I am, therefore, disturbed by the majority ruling which declares that it should not be a
precedent. We are interpreting the Constitution for only one person and constituting
him into a class by himself. The Constitution is a law for all classes of men at all
times. To have a person as one class by himself smacks of unequal protection of the
laws.
With all due respect for the majority in the Court, I believe that the issue before us is
one of rights and not of power. Mr. Marcos is insensate and would not live if
separated from the machines which have taken over the functions of his kidneys and
other organs. To treat him at this point as one with full panoply of power against
whom the forces of Government should be marshalled is totally unrealistic. The
Page 191 of 236
Government has the power to arrest and punish him. But does it have the power to
deny him his right to come home and die among familiar surroundings?
Hence, this dissent.
The Bill of Rights provides:
Sec. 6. The liberty of abode and of changing the same within the limits
prescribed by law shall not be impaired except upon lawful order of
the court. Neither shall the right to travel be impaired except in the
interest of national security, public safety, or public health, as may be
provided by law. (Emphasis supplied, Section 6, Art. 111,
Constitution)
To have the petition dismissed, the Solicitor General repeats a ritual invocation of
national security and public safety which is hauntingly familiar because it was
pleaded so often by petitioner Ferdinand E. Marcos to justify his acts under martial
law. There is, however, no showing of the existence of a law prescribing the limits of
the power to impair and the occasions for its exercise. And except for citing breaches
of law and order, the more serious of which were totally unrelated to Mr. Marcos and
which the military was able to readily quell, the respondents have not pointed to any
grave exigency which permits the use of untrammeled Governmental power in this
case and the indefinite suspension of the constitutional right to travel.
The respondents' basic argument is that the issue before us is a political question
beyond our jurisdiction to consider. They contend that the decision to ban former
President Marcos, and his family on grounds of national security and public safety is
vested by the Constitution in the President alone. The determination should not be
questioned before this Court. The President's finding of danger to the nation should
be conclusive on the Court.
What is a political question?
In Vera v. Avelino (77 Phil. 192, 223 [1946], the Court stated:
xxx xxx xxx
It is a well-settled doctrine that political questions are not within the
province of the judiciary, except to the extent that power to deal with
such questions has been conferred on the courts by express
constitutional or statutory provisions. It is not so easy, however, to
define the phrase political question, nor to determine what matters fall
within its scope. It is frequently used to designate all questions that he
outside the scope of the judicial power. More properly, however, it
means those questions which, under the constitution, are to be
decided by the people in their sovereign capacity, or in regard to
which full discretionary authority has been delegated to the legislative
or executive branch of the government.
We defined a political question in Taniada v. Cuenco (103 Phil. 1051, 1066 [1957]),
as follows:
In short, the term 'Political question' connotes, in legal parlance, what
it means in ordinary parlance, namely, a question of policy. In other
words, in the language of Corpus Juris Secundum (supra), it refers to
'those questions which, under the Constitution, are to be decided by
the people in their sovereign capacity, or in regard to which full
discretionary authority has been delegated to the Legislature or
executive branch of the Government. It is concerned with issues
dependent upon the wisdom, not legality, of a particular measure.
The most often quoted definition of political question was made by Justice William J.
Brennan Jr., who penned the decision of the United States Supreme Court in Baker

Page 192 of 236


v. Carr (369 US 186,82, S. Ct. 691, L. Ed. 2d. 663 [1962]). The ingredients of a
political question as formulated in Baker v. Carr are:
It is apparent that several formulations which vary slightly according to
the settings in which the questions arise may describe a political
question, which identifies it as essentially a function of the separation
of powers. Prominent on the surface of any case held to involve a
political question is found a textually demonstrable constitutional
commitment of the issue to a coordinate political department; or a lack
of judicially discoverable and manageable standards for resolving it;
or the impossibility of deciding without an initial policy determination of
a kind clearly for non-judicial discretion; or the impossibility of a
court's undertaking independent resolution without expressing lack of
the respect due coordinate branches of government; or an unusual
need for unquestioning adherence to a political decision already
made; or potentiality of embarrassment from multifarious
pronouncements by various departments on one question.
For a political question to exist, there must be in the Constitution a power vested
exclusively in the President or Congress, the exercise of which the court should not
examine or prohibit. A claim of plenary or inherent power against a civil right which
claim is not found in a specific provision is dangerous. Neither should we validate a
roving commission allowing public officials to strike where they please and to
override everything which to them represents evil. The entire Government is bound
by the rule of law.
The respondents have not pointed to any provision of the Constitution which commits
or vests the determination of the question raised to us solely in the President.
The authority implied in Section 6 of the Bill of Rights itself does not exist because no
law has been enacted specifying the circumstances when the right may be impaired
in the interest of national security or public safety. The power is in Congress, not the
Executive.
The closest resort to a textile demonstrable constitutional commitment of power may
be found in the commander-in-chief clause which allows the President to call out the
armed forces in case of lawless violence, invasion or rebellion and to suspend the
privilege of the writ of habeas corpus or proclaim martial law in the event of invasion
or rebellion, when the public safety requires it.
There is, however, no showing, not even a claim that the followers of former
President Marcos are engaging in rebellion or that he is in a position to lead them.
Neither is it claimed that there is a need to suspend the privilege of the writ of
habeas corpus or proclaim martial law because of the arrival of Mr. Marcos and his
family. To be sure, there may be disturbances but not of a magnitude as would
compel this Court to resort to a doctrine of non- justiceability and to ignore a plea for
the enforcement of an express Bill of Rights guarantee.
The respondents themselves are hard-pressed to state who or what constitutes a
Marcos "loyalist." The constant insinuations that the "loyalist" group is heavily funded
by Mr. Marcos and his cronies and that the "loyalists" engaging in rallies and
demonstrations have to be paid individual allowances to do so constitute the
strongest indication that the hard core "loyalists" who would follow Marcos right or
wrong are so few in number that they could not possibly destabilize the government,
much less mount a serious attempt to overthrow it.
Not every person who would allow Mr. Marcos to come home can be tagged a
"loyalist." It is in the best of Filipino customs and traditions to allow a dying person to
return to his home and breath his last in his native surroundings. Out of the 103
Congressmen who passed the House resolution urging permission for his return,
Page 193 of 236
there are those who dislike Mr. Marcos intensely or who suffered under his regime.
There are also many Filipinos who believe that in the spirit of national unity and
reconciliation Mr. Marcos and his family should be permitted to return to the
Philippines and that such a return would deprive his fanatic followers of any further
reason to engage in rallies and demonstrations.
The Court, however, should view the return of Mr. Marcos and his family solely in the
light of the constitutional guarantee of liberty of abode and the citizen's right to travel
as against the respondents' contention that national security and public safety would
be endangered by a grant of the petition.
Apart from the absence of any text in the Constitution committing the issue
exclusively to the President, there is likewise no dearth of decisional data, no
unmanageable standards which stand in the way of a judicial determination.
Section 6 of the Bill of Rights states categorically that the liberty of abode and of
changing the same within the limits prescribed by law may be impaired only upon a
lawful order of a court. Not by an executive officer. Not even by the President.
Section 6 further provides that the right to travel, and this obviously includes the right
to travel out of or back into the Philippines, cannot be impaired except in the interest
of national security, public safety, or public health, as may be provided by law.
There is no law setting the limits on a citizen's right to move from one part of the
country to another or from the Philippines to a foreign country or from a foreign
country to the Philippines. The laws cited by the Solicitor General immigration,
health, quarantine, passports, motor vehicle, destierro probation, and parole are all
inapplicable insofar as the return of Mr. Marcos and family is concerned. There is
absolutely no showing how any of these statutes and regulations could serve as a
basis to bar their coming home.
There is also no disrespect for a Presidential determination if we grant the petition.
We would simply be applying the Constitution, in the preservation and defense of
which all of us in Government, the President and Congress included, are sworn to
participate. Significantly, the President herself has stated that the Court has the last
word when it comes to constitutional liberties and that she would abide by our
decision.
As early as 1983, it was noted that this Court has not been very receptive to the
invocation of the political question doctrine by government lawyers. (See Morales, Jr.
.v Ponce Enrile, 121 SCRA 538 [1983]).
Many of those now occupying the highest positions in the executive departments,
Congress, and the judiciary criticized this Court for using what they felt was a
doctrine of convenience, expediency, utility or subservience. Every major challenge
to the acts of petitioner Ferdinand E. Marcos under his authoritarian regime the
proclamation of martial law, the ratification of a new constitution, the arrest and
detention of "enemies of the State" without charges being filed against them, the
dissolution of Congress and the exercise by the President of legislative powers, the
trial of civilians for civil offenses by military tribunals, the seizure of some of the
country's biggest corporations, the taking over or closure of newspaper offices, radio
and television stations and other forms of media, the proposals to amend the
Constitution, etc. was invariably met by an invocation that the petition involved a
political question. It is indeed poetic justice that the political question doctrine so
often invoked by then President Marcos to justify his acts is now being used against
him and his family. Unfortunately, the Court should not and is not allowed to indulge
in such a persiflage. We are bound by the Constitution.
The dim view of the doctrine's use was such that when the present Constitution was
drafted, a broad definition of judicial power was added to the vesting in the Supreme
Court and statutory courts of said power.
Page 194 of 236
The second paragraph of Section 1, Article VIII of the Constitution provides:
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of the Government.
This new provision was enacted to preclude this Court from using the political
question doctrine as a means to avoid having to make decisions simply because
they are too controversial, displeasing to the President or Congress, inordinately
unpopular, or which may be ignored and not enforced.
The framers of the Constitution believed that the free use of the political question
doctrine allowed the Court during the Marcos years to fall back on prudence,
institutional difficulties, complexity of issues, momentousness of consequences or a
fear that it was extravagantly extending judicial power in the cases where it refused
to examine and strike down an exercise of authoritarian power. Parenthetically, at
least two of the respondents and their counsel were among the most vigorous critics
of Mr. Marcos (the main petitioner) and his use of the political question doctrine. The
Constitution was accordingly amended. We are now precluded by its mandate from
refusing to invalidate a political use of power through a convenient resort to the
question doctrine. We are compelled to decide what would have been non-
justiceable under our decisions interpreting earlier fundamental charters.
This is not to state that there can be no more political questions which we may refuse
to resolve. There are still some political questions which only the President,
Congress, or a plebiscite may decide. Definitely, the issue before us is not one of
them.
The Constitution requires the Court "to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction."
How do we determine a grave abuse of discretion?
The tested procedure is to require the parties to present evidence. Unfortunately,
considerations of national security do not readily lend themselves to the presentation
of proof before a court of justice. The vital information essential to an objective
determination is usually highly classified and it cannot be rebutted by those who seek
to overthrow the government. As early as Barcelon v. Baker (5 Phil. 87, 93 [19051),
the Court was faced with a similar situation. It posed a rhetorical question. If after
investigating conditions in the Archipelago or any part thereof, the President finds
that public safety requires the suspension of the privilege of the writ of habeas
corpus, can the judicial department investigate the same facts and declare that no
such conditions exist?
In the effort to follow the "grave abuse of discretion" formula in the second paragraph
of Section 1, Article VIII of the Constitution, the court granted the Solicitor General's
offer that the military give us a closed door factual briefing with a lawyer for the
petitioners and a lawyer for the respondents present.
The results of the briefing call to mind the concurrence of Justice Vicente Abad
Santos in Morales, Jr. v. Enrile, (121 SCRA 538, 592 [19831):
How can this Court determine the factual basis in order that it can
ascertain whether or not the president acted arbitrarily in suspending
the writ when, in the truth words of Montenegro, with its very limited
machinery fit] cannot be in better position [than the Executive Branch]
to ascertain or evaluate the conditions prevailing in the Archipelago?
(At p. 887). The answer is obvious. It must rely on the Executive
Branch which has the appropriate civil and military machinery for the
facts. This was the method which had to be used in Lansang. This
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Court relied heavily on classified information supplied by the military.
Accordingly, an incongruous situation obtained. For this Court, relied
on the very branch of the government whose act was in question to
obtain the facts. And as should be expected the Executive Branch
supplied information to support its position and this Court was in no
situation to disprove them. It was a case of the defendant judging the
suit. After all is said and done, the attempt by its Court to determine
whether or not the President acted arbitrarily in suspending the writ
was a useless and futile exercise.
There is still another reason why this Court should maintain a
detached attitude and refrain from giving the seal of approval to the
act of the Executive Branch. For it is possible that the suspension of
the writ lacks popular support because of one reason or another. But
when this Court declares that the suspension is not arbitrary (because
it cannot do otherwise upon the facts given to it by the Executive
Branch) it in effect participates in the decision-making process. It
assumes a task which it is not equipped to handle; it lends its prestige
and credibility to an unpopular act.
The other method is to avail of judicial notice. In this particular case, judicial notice
would be the only basis for determining the clear and present danger to national
security and public safety. The majority of the Court has taken judicial notice of the
Communist rebellion, the separatist movement, the rightist conspiracies, and urban
terrorism. But is it fair to blame the present day Marcos for these incidents? All these
problems are totally unrelated to the Marcos of today and, in fact, are led by people
who have always opposed him. If we use the problems of Government as excuses
for denying a person's right to come home, we will never run out of justifying
reasons. These problems or others like them will always be with us.
Significantly, we do not have to look into the factual bases of the ban Marcos policy
in order to ascertain whether or not the respondents acted with grave abuse of
discretion. Nor are we forced to fall back upon judicial notice of the implications of a
Marcos return to his home to buttress a conclusion.
In the first place, there has never been a pronouncement by the President that a
clear and present danger to national security and public safety will arise if Mr.
Marcos and his family are allowed to return to the Philippines. It was only after the
present petition was filed that the alleged danger to national security and public
safety conveniently surfaced in the respondents' pleadings. Secondly, President
Aquino herself limits the reason for the ban Marcos policy to — (1) national welfare
and interest and (2) the continuing need to preserve the gains achieved in terms of
recovery and stability. (See page 7, respondents' Comment at page 73 of Rollo).
Neither ground satisfies the criteria of national security and public safety. The
President has been quoted as stating that the vast majority of Filipinos support her
position. (The Journal, front page, January 24,1989) We cannot validate their stance
simply because it is a popular one. Supreme Court decisions do not have to be
popular as long as they follow the Constitution and the law. The President's original
position "that it is not in the interest of the nation that Marcos be allowed to return at
this time" has not changed. (Manila Times, front page, February 7, 1989). On
February 11, 1989, the President is reported to have stated that "considerations of
the highest national good dictate that we preserve the substantial economic and
political gains of the past three years" in justifying her firm refusal to allow the return
of Mr. Marcos despite his failing health. (Daily Globe, front page, February 15, 1989).
"Interest of the nation national good," and "preserving economic and political gains,"
cannot be equated with national security or public order. They are too generic and
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sweeping to serve as grounds for the denial of a constitutional right. The Bill of
Rights commands that the right to travel may not be impaired except on the stated
grounds of national security, public safety, or public health and with the added
requirement that such impairment must be "as provided by law." The constitutional
command cannot be negated by mere generalizations.
There is an actual rebellion not by Marcos followers but by the New Peoples' Army.
Feeding as it does on injustice, ignorance, poverty, and other aspects at under-
development, the Communist rebellion is the clearest and most present danger to
national security and constitutional freedoms. Nobody has suggested that one way to
quell it would be to catch and exile its leaders, Mr. Marcos himself was forced to flee
the country because of "peoples' power." Yet, there is no move to arrest and exile
the leaders of student groups, teachers' organizations, pea ant and labor federations,
transport workers, and government unions whose threatened mass actions would
definitely endanger national security and the stability of government. We fail to see
how Mr. Marcos could be a greater danger.
The fear that Communist rebels, Bangsa Moro secessionists, the Honasan ex-
soldiers, the hard core loyalists, and other dissatisfied elements would suddenly
unite to overthrow the Republic should a dying Marcos come home is too speculative
and unsubstantial a ground for denying a constitutional right. It is not shown how
extremists from the right and the left who loathe each other could find a rallying point
in the coming of Mr. Marcos.
The "confluence theory" of the Solicitor General or what the majority calls "catalytic
effect," which alone sustains the claim of danger to national security is fraught with
perilous implications. Any difficult problem or any troublesome person can be
substituted for the Marcos threat as the catalysing factor. The alleged confluence of
NPAs, secessionists, radical elements, renegade soldiers, etc., would still be
present. Challenged by any critic or any serious problem, the Government can state
that the situation threatens a confluence of rebel forces and proceed to ride
roughshod over civil liberties in the name of national security. Today, a passport is
denied. Tomorrow, a newspaper may be closed. Public assemblies may be
prohibited. Human rights may be violated. Yesterday, the right to travel of Senators
Benigno Aquino, Jr. and Jovito Salonga was curtailed. Today, it is the right of Mr.
Marcos and family. Who will be tomorrow's pariahs I deeply regret that the Court's
decision to use the political question doctrine in a situation where it does not apply
raises all kinds of disturbing possibilities.
I must emphasize that General Renato de Villa, the Chief of Staff of the Armed
Forces, has personally assured the Court that a rebellion of the above combined
groups will not succeed and that the military is on top of the situation. Where then is
the clear danger to national security? The Court has taken judicial notice of
something which even the military denies. There would be severe strains on military
capabilities according to General de Villa. There would be set-backs in the expected
eradication of the Communist threat. There would be other serious problems but all
can be successfully contained by the military. I must stress that no reference was
made to a clear and present danger to national security as would allow an overriding
of the Bill of Rights.
The Solicitor General's argument that the failure of Congress to enact a statute
defining the parameters of the right to travel and to freely choose one's abode has
constrained the President to fill in the vacuum, is too reminiscent of Amendment No.
6 of the martial law Constitution to warrant serious consideration. Amendment No. 6
allowed Marcos to issue decrees whenever the Batasang Pambansa failed or was
unable to act adequately on any matter for any reason that in his judgment required
immediate action. When the Bill of Rights provides that a right may not be impaired
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except in the interest of national security, public safety, or public health and further
requires that a law must provide when such specifically defined interests are
prejudiced or require protection, the inaction of Congress does not give reason for
the respondents to assume the grounds for its impairment.
The fact that the Marcoses have been indicted before American federal courts does
not obstruct us from ruling against an unconstitutional assertion of power by
Philippine officials. Let the United States apply its laws. We have to be true to our
own.
Mr. Marcos may be too ill to withstand the rigors of a transpacific flight. The agony of
traveling while hooked up to machines which have taken over the functions of his
heart, lungs, and kidneys may hasten his death. The physical condition of Mr.
Marcos does not justify our ignoring or refusing to act on his claim to a basic right
which is legally demandable and enforceable. For his own good, it might be
preferable to stay where he is. But he invokes a constitutional right. We have no
power to deny it to him.
The issuance of a passport may be discretionary but it should not be withheld if to do
so would run counter to a constitutional guarantee. Besides, the petitioners are not
asking for passports and nothing else. Any travel documents or any formal lifting of
the Marcos ban as would allow international airlines to sell them tickets would
suffice.
With all due respect for the majority opinion, I disagree with its dictum on the right to
travel. I do not think we should differentiate the right to return home from the right to
go abroad or to move around in the Philippines. If at all, the right to come home must
be more preferred than any other aspect of the right to travel. It was precisely the
banning by Mr. Marcos of the right to travel by Senators Benigno Aquino, Jr., Jovito
Salonga, and scores of other "undesirables" and "threats to national security" during
that unfortunate period which led the framers of our present Constitution not only to
re-enact but to strengthen the declaration of this right. Media often asks, "what else
is new?" I submit that we now have a freedom loving and humane regime. I regret
that the Court's decision in this case sets back the gains that our country has
achieved in terms of human rights, especially human rights for those whom we do
not like or those who are against us.
The respondent Secretary of Foreign Affairs, Raul S. Manglapus has disclosed a list
of former dictators who were barred by their successors from returning to their
respective countries. There is no showing that the countries involved have
constitutions which guarantee the liberty of abode and the freedom to travel and that
despite such constitutional protections, the courts have validated the "ban a return"
policy. Neither is it shown that the successors of the listed dictators are as deeply
committed to democratic principles and as observant of constitutional protections as
President Aquino.
It is indeed regrettable that some followers of the former President are conducting a
campaign to sow discord and to divide the nation. Opposition to the government no
matter how odious or disgusting is, however, insufficient ground to ignore a
constitutional guarantee.
During the protracted deliberations on this case, the question was asked is the
Government helpless to defend itself against a threat to national security? Does the
President have to suspend the privilege of the writ of habeas corpus or proclaim
martial law? Can she not take less drastic measures?
Of course, the Government can act. It can have Mr. Marcos arrested and tried in
court. The Government has more than ample powers under eixisting law to deal with
a person who transgresses the peace and imperils public safety. But the denial of

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travel papers is not one of those powers because the Bill of Rights says so. There is
no law prescribing exile in a foreign land as the penalty for hurting the Nation.
Considering all the foregoing, I vote to GRANT the petition.
CRUZ, J., dissenting:
It is my belief that the petitioner, as a citizen of the Philippines, is entitled to return to
and live — and die — in his own country. I say this with a heavy heart but say it
nonetheless. That conviction is not diminished one whit simply because many
believe Marcos to be beneath contempt and undeserving of the very liberties he
flounted when he was the absolute ruler of this land.
The right of the United States government to detain him is not the question before
us, nor can we resolve it. The question we must answer is whether or not, assuming
that Marcos is permitted to leave Hawaii (which may depend on the action we take
today), the respondents have acted with grave abuse of discretion in barring him
from his own country.
My reluctant conclusion is that they have, absent the proof they said they were
prepared to offer, but could not, that the petitioner's return would prejudice the
security of the State.
I was the one who, in the open hearing held on June 27,1989, asked the Solicitor
General if the government was prepared to prove the justification for opposing the
herein petition, i.e. that it had not acted arbitrarily. He said it was. Accordingly, the
Court, appreciating the classified nature of the information expected, scheduled a
closed-door hearing on July 25,1988. The Solicitor General and three
representatives from the military appeared for the respondents, together with former
Senator Arturo M. Tolentino, representing the petitioners.
In about two hours of briefing, the government failed dismally to show that the return
of Marcos dead or alive would pose a threat to the national security as it had alleged.
The fears expressed by its representatives were based on mere conjectures of
political and economic destabilization without any single piece of concrete evidence
to back up their apprehensions.
Amazingly, however, the majority has come to the conclusion that there exist "factual
bases for the President's decision" to bar Marcos's return. That is not my recollection
of the impressions of the Court after that hearing.
In holding that the President of the Philippines has residual powers in addition to the
specific powers granted by the Constitution, the Court is taking a great leap
backward and reinstating the discredited doctrine announced in Planas v. Gil (67
Phil. 62). This does not square with the announced policy of the Constitutional
Commission, which was precisely to limit rather than expand presidential powers, as
a reaction to the excesses of the past dictatorship.
I can only repeat Justice Black's wry observation in the Steel Seizure Case (343 U.S.
579) that if it was true that the President had been granted the totality of executive
power, "it is difficult to see why our forefathers bothered to add several specific
items, including some trifling ones, . . . I cannot accept the view that this clause is a
grant in bulk of all conceivable executive power but regard it as an allocation to the
presidential office of the generic powers thereafter stated."
I have no illusion that the stand I am taking will be met with paeans of praise,
considering that Marcos is perhaps the most detested man in the entire history of our
country. But we are not concerned here with popularity and personalities. As a judge,
I am not swayed by what Justice Cardozo called the "hooting throng" that may make
us see things through the prisms of prejudice. I bear in mind that when I sit in
judgment as a member of this Court, I must cast all personal feelings aside.
The issue before us must be resolved with total objectivity, on the basis only of the
established facts and the applicable law and not of wounds that still fester and scars
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that have not healed. And not even of fear, for fear is a phantom. That phantom did
not rise when the people stood fast at EDSA against the threat of total massacre in
defense at last of their freedom.
I cannot turn back on the lessons of liberty that I taught for more than three decades
as a professor of Constitutional Law. These principles have not changed simply
because I am now on the Court or a new administration is in power and the shoe is
on the other foot.
Like the martyred Ninoy Aquino who also wanted to come back to the Philippines
against the prohibitions of the government then, Marcos is entitled to the same right
to travel and the liberty of abode that his adversary invoked. These rights are
guaranteed by the Constitution to all individuals, including the patriot and the
homesick and the prodigal son returning, and tyrants and charlatans and scoundrels
of every stripe.
I vote to grant the petition.
PARAS, J., dissenting:
I dissent. Already, some people refer to us as a nation without discipline. Are we
ready to be also called a society without compassion?
The issue as to whether or not former President Ferdinand E. Marcos should be
allowed to return to the Philippines may be resolved by answering two simple
questions: Does he have the right to return to his own country and should national
safety and security deny him this right?
There is no dispute that the former President is still a Filipino citizen and both under
the Universal Declaration of Human Rights and the 1987 Constitution of the
Philippines, he has the right to return to his own country except only if prevented by
the demands of national safety and national security.
Our Armed Forces have failed to prove this danger. They are bereft of hard
evidence, and all they can rely on is sheer speculation. True, there is some danger
but there is no showing as to the extent.
It is incredible that one man alone together with his family, who had been ousted
from this country by popular will, can arouse an entire country to rise in morbid
sympathy for the cause he once espoused.
It is therefore clear to me, all other opinions to the contrary notwithstanding, that the
former President should be allowed to return to our country under the conditions that
he and the members of his family be under house arrest in his hometown in Ilocos
Norte, and should President Marcos or any member of his family die, the body
should not be taken out of the municipality of confinement and should be buried
within ten (10) days from date.
If we do this, our country shall have maintained its regard for fundamental human
rights, for national discipline, and for human compassion.

PADILLA, J., dissenting:


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

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Deteriorating political, social, economic or exceptional conditions, if any, are not to
be used as a pretext to justify derogation of human rights. 2
As a member of the United Nations, the Philippines has obligations under its charter.
By adopting the generally accepted principles of international law as part of the law
of the land, (Art. II, Sec. 2 of the Constitution), the Philippine government cannot just
pay lip service to Art. 13, par. 2 of the Universal Declaration of Human Rights which
provides that everyone has the right to leave any country, including his own, and to
return to his country. This guarantee is reiterated in Art. XII, par. 2 of the International
Covenant on Civil and Political Rights which states that "no one shall be arbitrarily
deprived of the right to enter his own country." (Emphasis supplied) "Arbitrary" or
"arbitrarily" was specifically chosen by the drafters of the Covenant 3 hoping to
protect an individual against unexpected, irresponsible or excessive encroachment
on his rights by the state based on national traditions or a particular sense of justice
which falls short of international law or standards. 4
The Solicitor General maintains that because the respondents, as alter egos of the
President, have raised the argument of "national security" and "public safety," it is
the duty of this Court to unquestioningly yield thereto, thus casting the controversy to
the realm of a political question. I do not agree. I believe that it is one case where the
human and constitutional light invoked by one party is so specific, substantial and
clear that it cannot be overshadowed, much less, nullified by simplistic generalities;
worse, the Court neglects its duty under the Constitution when it allows the theory of
political question to serve as a convenient, and yet, lame excuse for evading what, to
me, is its clearly pressing and demandable duty to the Constitution.
During the oral arguments in this case, I asked the Solicitor General how one
could validly defend the right of former Senator Benigno S. Aquino, Jr., a Filipino, to
return to the Philippines in 1983 and, at the same time, credibly deny the right of Mr.
Marcos, also a Filipino, to return to the Philippines in 1989. I still have not found a
satisfactory answer to that question. Instead, it has become clearer by the day that
the drama today is the same drama in 1983 with the only difference that the actors
are in opposite roles, which really makes one hope, in the national interest, that the
mistake in 1983 should not be made to persist in 1989.
To one who owes Mr. Marcos, his wife and followers absolutely nothing, personal,
political or otherwise, the following are the cogent and decisive propositions in this
case —
1. Mr. Marcos is a Filipino and, as such, entitled to return to die and
be buried in this country;
2. respondents have not shown any "hard evidence" or convincing
proof why his right as a Filipino to return should be denied him. All we
have are general conclusions of "national security" and "public safety"
in avoidance of a specific demandable and enforceable constitutional
and basic human right to return;
3. the issue of Marcos' return to the Philippines, perhaps more than
any issue today, requires of all members of the Court, in what appears
to be an extended political contest, the "cold neutrality of an impartial
judge." It is only thus that we fortify the independence of this Court,
with fidelity, not to any person, party or group but to the Constitution
and only to the Constitution.
ACCORDINGLY, I vote to GRANT the petition.
SARMIENTO, J., dissenting:
I vote to grant the petition.
The only issue that saddles the Court is simply: "whether or not, in the exercise of
the powers granted by the Constitution, the President may prohibit the Marcoses
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from returning to the Philippines." 1 I therefore take exception to allusions 2 anent
"the capacity of the Marcoses to stir trouble even from afar." 3 I have legitimate
reason to fear that my brethren, in passing judgment on the Marcoses (insofar as
their "capacity to stir trouble" is concerned), have overstepped the bounds of judicial
restraint, or even worse, convicted them without trial.
I also find quite strained what the majority would have as the "real issues" facing the
Court: "The right to return to one's country," pitted against "the right of travel and
freedom of abode", and their supposed distinctions under international law, as if such
distinctions, under international law in truth and in fact exist. There is only one right
involved here, whether under municipal or international law: the light of travel,
whether within one's own country, or to another, and the right to return thereto. The
Constitution itself makes no distinctions; let then, no one make a distinction. Ubi lex
non distinguish nec nos distinguere debemus.
As the majority would indeed have it, the issue is one of power: Does the Executive
have the power to deny a citizen his right to travel (back to the country or to
another)? It is a question that, in essence, involves the application, and no more, of
the provisions of the 1987 Constitution:
Sec. 6. The liberty of abode and of changing the same within the limits
prescribed by law shall not be impaired except upon lawful order of
the court. Neither shall the right to travel be impaired except in the
interest of national security, public safety, or public health, as may be
provided by law. 4
The majority says, with ample help from American precedents, that the President is
possessed of the power, thus:
On these premises, we hold the view that although the 1987
Constitution imposes limitations on the exercise of specific powers of
the President, it maintains intact what is traditionally considered as
within the scope of "executive power." Corollarily, the powers of the
President cannot be said to be limited only to the specific powers
enumerated in the Constitution. In other words, executive power is
more than the sum of specific powers so enumerated. 5
So also:
Faced with the problem of whether or not the time is right to allow the
Marcoses to return to the Philippines, the President is, under the
Constitution, constrained to consider these basic principles in arriving
at a decision. More than that, having sworn to defend and uphold the
Constitution, the President has the obligation under the Constitution to
protect the people, promote their welfare and advance the national
interest. It must be borne in mind that the Constitution, aside from
being an allocation of power is also a social contract whereby the
people have surrendered their sovereign powers to the State for the
common good. Hence, lest the officers of the Government exercising
the powers delegated by the people forget and the servants of the
people become rulers, the Constitution reminds everyone that
"sovereignty resides in the people and all government authority
emanates from them." [Art. II, Sec. 1 . ] 6
And finally:
To the President, the problem is one of balancing the general welfare
and the common good against the exercise of rights of certain
individuals. The power involved is the President's residual power to
protect the general welfare of the people. It is founded on the duty of
the President, as steward of the people. To paraphrase Theodore
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Roosevelt, it is not only the power of the President but also his duty to
do anything not forbidden by the Constitution or the laws that the
needs of the nation demanded [See Corwin, supra, at 153]. It is a
power borne by the President's duty to preserve and defend the
Constitution. It also may be viewed as a power implicit in the
President's duty to take care that the laws are faithfully executed [See
Hyman, The American President, where the author advances the view
that an allowance of discretionary power is unavoidable in any
government and is best lodged in the President]. 7
I am not persuaded.
I
First: While the Chief Executive exercises powers not found expressly in the Charter,
but has them by constitutional implication* the latter must yield to the paramountcy of
the Bill of Rights. According to Fernando: "A regime of constitutionalism is thus
unthinkable without an assurance of the primacy of a big of rights. Precisely a
constitution exists to assure that in the discharge of the governmental functions, the
dignity that is the birthright of every human being is duly safeguarded. To be true to
its primordial aim a constitution must lay down the boundaries beyond which he's
forbidden territory for state action" 8
My brethren have not demonstrated, to my satisfaction, how the President may
override the direct mandate of the fundamental law. It will not suffice, so I submit, to
say that the President's plenitude of powers, as provided in the Constitution, or by
sheer constitutional implication, prevail over express constitutional commands.
"Clearly," so I borrow J.B.L. Reyes, in his own right, a titan in the field of public law,
"this argument ... rests ... not upon the text of the (Constitution] ... but upon a mere
inference therefrom." 9 For if it were, indeed, the intent of the Charter to create an
exception, that is, by Presidential action, to the right of travel or liberty of abode and
of changing the same other than what it explicitly says already ("limits prescribed by
law" 10 or "upon lawful order of the court" 11 the Charter could have specifically
declared so. As it is, the lone deterrents to the right in question are: (1) decree of
statute, or (2) lawful judicial mandate. Had the Constitution intended a third
exception, that is, by Presidential initiative, it could have so averred. It would also
have made the Constitution, as far as limits to the said right are concerned, come full
circle: Limits by legislative, judicial, and executive processes.
Obviously, none of the twin legal bars exist. There is no law banning the Marcoses
from the country; neither is there any court decree banishing him from Philippine
territory.
It is to be noted that under the 1973 Constitution, the right to travel is worded as
follows:
Sec. 5. The liberty of abode and of travel shall not be impaired except
upon lawful order of the court, or when necessary in the interest of
national security, public safety, or public health. 12
Under this provision, the right may be abated: (1) upon a lawful court order, or (2)
"when necessary in the interest of national security, public safety, or public
health. 13 Arguably, the provision enabled the Chief Executive (Marcos) to moderate
movement of citizens, which, Bernas says, justified such practices as "hamletting",
forced relocations, or the establishment of free-fire zones. 14
The new Constitution, however, so it clearly appears, has divested the Executive's
implied power. And, as it so appears, the right may be impaired only "within the limits
provided by law . 15 The President is out of the picture.
Admittedly, the Chief Executive is the "sole" judge of all matters affecting national
security 16 and foreign affairs; 17the Bill of Rights precisely, a form of check against
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excesses of officialdom is, in this case, a formidable barrier against Presidential
action. (Even on matters of State security, this Constitution prescribes limits to
Executive's powers as Commander-in-Chief.)
Second: Assuming, ex hypothesis that the President may legally act, the question
that emerges is: Has it been proved that Marcos, or his return, will, in fact, interpose
a threat to the national security , public safety, or public health?" What appears in the
records are vehement insistences that Marcos does pose a threat to the national
good and yet, at the same time, we have persistent claims, made by the military top
brass during the lengthy closed-door hearing on July 25, 1989, that "this Government
will not fall" should the former first family in exile step on Philippine soil. which is
which?
At any rate, it is my opinion that we can not leave that determination solely to the
Chief Executive. The Court itself must be content that the threat is not only clear, but
more so, present. 18
That the President "has the obligation under the Constitution to protect the people ...
" 19 is an obligation open to no doubt. But the question, and so I ask again and again,
is: From whom? If we say "from Marcos," we unravel chinks in our political armor. It
also flies in the face of claims, so confidently asserted, that "this Government will not
fall" even if we allowed Marcos to return.
It flies, finally, in the face of the fact that a good number of the henchmen trusted
allies, implementors of martial law, and pathetic parasites of the ex-first couple are,
in fact, in the Government, in the comfort of its offices, and or at the helm of its key
agencies. Let us not, therefore, joke ourselves of moral factors warranting the
continued banishment of Marcos. Morality is the last refuge of the self-righteous.
Third: The problem is not of balancing the general welfare against the exercise of
individual liberties. 20 As I indicated, not one shred of evidence, let alone solid
evidence, other than surmises of possibilities, has been shown to justify the
'balancing act" referred to. Worse, these conjectures contradict contentions that as
far as Philippine society is concerned, Marcos is "history".
The power of the President, so my brethren declaim, "calls for the exercise of the
President's power as protector of peace. 21
This is the self-same falsehood Marcos foisted on the Filipino people to justify the
authoritarian rule. It also means that we are no better than he has.
That "[t]he power of the President to keep the peace is not limited merely to
exercising the commander-in-chief powers in times of emergency or to leading the
State against external and internal threats to its existence" 22 is a bigger fantasy: It
not only summons the martial law decisions of pre-"EDSA" (especially with respect to
the detestable Amendment No. 6), it is inconsistent with the express provisions of the
commander-in-chief clause of the 1987 Charter, a Charter that has perceptibly
reduced the Executive's powers vis-a-vis its 1973 counterpart. 23
II.
The undersigned would be lacking in candor to conceal his dislike, to say the least,
for Marcos. Because of Marcos, the writer of it's dissent lost a son His son's only
"offense" was that he openly and unabatedly criticized the dictator, his associates,
and his military machinery. He would pay dearly for it; he was arrested and detained,
without judicial warrant or decision, for seven months and seven days. He was
held incommunicado a greater part of the time, in the military stockade of Camp
Crame. In his last week in detention, he was, grudgingly, hospitalized (prison
hospital) and confined for chronic asthma. The deplorable conditions of his
imprisonment exacerbated his delicate health beyond cure. He died, on November
11, 1977, a martyr on the altar of the martial law apparatus.

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The undersigned also counts himself as one of the victims of Marcos'
ruthless apparatchiki. On August 14, 1979, he was, along with former President
Diosdado Macapagal, and Congressmen Rogaciano Mercado and Manuel
Concordia, charged, "ASSOed"and placed under house arrest, for "inciting to
sedition" and "rumor mongering " 24in the midst of the distribution of Ang
Demokrasya Sa Pilipinas (Democracy In the Philippines), a book extremely critical of
martial rule, published by him and former Congressman Concordia, authored by
President Macapagal and translated into Tagalog by Congressman Rogaciano
Mercado. In addition, they were also all accused of libel in more than two dozens of
criminal complaints filed by the several military officers named in the "condemned"
book as having violated the human rights of dissenters, and for other crimes, in the
office of the Provincial Fiscal of Rizal. It had to take the events at "EDSA" to set them
free from house arrest and these political offenses. I am for Marcos' return not
because I have a score to settle with him. Ditto's death or my arrest are scores that
can not be settled.
I feel the ex-President's death abroad (presented in the dailies as 'imminent") would
leave him 'unpunished for his crimes to country and countrymen. If punishment is
due, let this leadership inflict it. But let him stand trial and accord him due process.
Modesty aside, I have staunchly and consistently advocated the human right of travel
and movement and the liberty of abode. 25 We would have betrayed our own Ideals
if we denied Marcos his rights. It is his constitutional right, a right that can not be
abridged by personal hatred, fear, founded or unfounded, and by speculations of the
"man's "capacity" "to stir trouble" Now that the shoe is on the other foot, let no more
of human rights violations be repeated against any one, friend or foe. In a democratic
framework, there is no this as getting even.
The majority started this inquiry on the question of power. I hold that the President,
under the present Constitution and existing laws, does not have it. Mandamus, I
submit, lies.
Narvasa, Melencio-Herrera, Gancayco, Griño- Aquino, Medialdea and Regalado, JJ.,
concur.
Feliciano, J., is on leave.

Separate Opinions
FERNAN, C.J., concurring:
"The threats to national security and public order are real the mounting Communist
insurgency, a simmering separatist movement, a restive studentry, widespread labor
disputes, militant farmer groups. . . . Each of these threats is an explosive ingredient
in a steaming cauldron which could blow up if not handled properly." 1
These are not my words. They belong to my distinguished colleague in the Court, Mr.
Justice Hugo E. Gutierrez, Jr. But they express eloquently the basis of my full
concurrence to the exhaustive and well-written ponencia of Mme. Justice Irene R.
Cortes.
Presidential powers and prerogatives are not fixed but fluctuate. They are not
derived solely from a particular constitutional clause or article or from an express
statutory grant. Their limits are likely to depend on the imperatives of events and
contemporary imponderables rather than on abstract theories of law. History and
time-honored principles of constitutional law have conceded to the Executive Branch
certain powers in times of crisis or grave and imperative national emergency. Many
terms are applied to these powers: "residual," "inherent," 44 moral," "implied,"
"aggregate," 'emergency." whatever they may be called, the fact is that these powers
exist, as they must if the governance function of the Executive Branch is to be
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carried out effectively and efficiently. It is in this context that the power of the
President to allow or disallow the Marcoses to return to the Philippines should be
viewed. By reason of its impact on national peace and order in these admittedly
critical times, said question cannot be withdrawn from the competence of the
Executive Branch to decide.
And indeed, the return of the deposed President, his wife and children cannot but
pose a clear and present danger to public order and safety. One needs only to recall
the series of destabilizing actions attempted by the so-called Marcos loyalists as well
as the ultra-rightist groups during the EDSA Revolution's aftermath to realize this.
The most publicized of these offensives is the Manila Hotel incident which occurred
barely five (5) months after the People's Power Revolution. Around 10,000 Marcos
supporters, backed by 300 loyalist soldiers led by Brigadier General Jose Zumel and
Lt. Col. Reynaldo Cabauatan converged at the Manila Hotel to witness the oath-
taking of Arturo Tolentino as acting president of the Philippines. The public disorder
and peril to life and limb of the citizens engendered by this event subsided only upon
the eventual surrender of the loyalist soldiers to the authorities.
Then followed the Channel 7, Sangley, Villamor, Horseshoe Drive and Camp
Aguinaldo incidents. Military rebels waged simultaneous offensives in different parts
of Metro Manila and Sangley Point in Cavite. A hundred rebel soldiers took over
Channel 7 and its radio station DZBB. About 74 soldier rebels attacked Villamor Air
Base, while another group struck at Sangley Point in Cavite and held the 15th Air
Force Strike wing commander and his deputy hostage. Troops on board several
vehicles attempted to enter Gate I of Camp Aguinaldo even as another batch of 200
soldiers encamped at Horseshoe Village.
Another destabilization plot was carried out in April, 1987 by enlisted personnel who
forced their way through Gate 1 of Fort Bonifacio. They stormed into the army
stockade but having failed to convince their incarcerated members to unite in their
cause, had to give up nine (9) hours later.
And who can forget the August 28, 1987 coup attempt which almost toppled the
Aquino Government? Launched not by Marcos loyalists, but by another ultra-rightist
group in the military led by Col. Gregorio "Gringo" Honasan who remains at large to
date, this most serious attempt to wrest control of the government resulted in the
death of many civilians.
Members of the so-called Black Forest Commando were able to cart away high-
powered firearms and ammunition from the Camp Crame Armory during a raid
conducted in June 1988. Most of the group members were, however, captured in
Antipolo, Rizal. The same group was involved in an unsuccessful plot known as
Oplan Balik Saya which sought the return of Marcos to the country.
A more recent threat to public order, peace and safety was the attempt of a group
named CEDECOR to mobilize civilians from nearby provinces to act as blockading
forces at different Metro Manila areas for the projected link-up of Marcos military
loyalist troops with the group of Honasan. The pseudo "people power" movement
was neutralized thru checkpoints set up by the authorities along major road arteries
where the members were arrested or forced to turn back.
While not all of these disruptive incidents may be traced directly to the Marcoses,
their occurrence militates heavily against the wisdom of allowing the Marcoses'
return. Not only will the Marcoses' presence embolden their followers toward similar
actions, but any such action would be seized upon as an opportunity by other
enemies of the State, such as the Communist Party of the Philippines and the
NPA'S, the Muslim secessionists and extreme rightists of the RAM, to wage an
offensive against the government. Certainly, the state through its executive branch

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has the power, nay, the responsibility and obligation, to prevent a grave and serious
threat to its safety from arising.
Apparently lost amidst the debate on whether or not to allow the Marcoses to return
to the Philippines is one factor, which albeit, at first blush appears to be extra legal,
constitutes a valid justification for disallowing the requested return. I refer to the
public pulse. It must be remembered that the ouster of the Marcoses from the
Philippines came about as an unexpected, but certainly welcomed, result of the
unprecedented peoples power" revolution. Millions of our people braved military
tanks and firepower, kept vigil, prayed, and in countless manner and ways
contributed time, effort and money to put an end to an evidently untenable claim to
power of a dictator. The removal of the Marcoses from the Philippines was a moral
victory for the Filipino people; and the installation of the present administration, a
realization of and obedience to the people's Will.
Failing in legal arguments for the allowance of the Marcoses' return, appeal is being
made to sympathy, compassion and even Filipino tradition. The political and
economic gains we have achieved during the past three years are however too
valuable and precious to gamble away on purely compassionate considerations.
Neither could public peace, order and safety be sacrificed for an individual's wish to
die in his own country. Verily in the balancing of interests, the scales tilt in favor of
presidential prerogative, which we do not find to have been gravely abused or
arbitrarily exercised, to ban the Marcoses from returning to the Philippines.
GUTIERREZ, JR., J., dissenting
"The Constitution ... is a law for rulers and people, equally in war and in peace, and
covers with the shield of its protection all classes of men, at all times, and under all
circumstances. No doctrine involving more pernicious consequences was ever
invented by the wit of man than that any of its provisions can be suspended during
any of the great exigencies of government." (Ex Parte Milligan, 4 Wall. 2; 18 L. Ed.
281 [1866])
Since our days as law students, we have proclaimed the stirring words of Ex Parte
Milligan as self-evident truth. But faced with a hard and delicate case, we now
hesitate to qive substance to their meaning. The Court has permitted a basic
freedom enshrined in the Bill of Rights to be taken away by Government.
There is only one Bill of Rights with the same interpretation of liberty and the same
guarantee of freedom for both unloved and despised persons on one hand and the
rest who are not so stigmatized on the other.
I am, therefore, disturbed by the majority ruling which declares that it should not be a
precedent. We are interpreting the Constitution for only one person and constituting
him into a class by himself. The Constitution is a law for all classes of men at all
times. To have a person as one class by himself smacks of unequal protection of the
laws.
With all due respect for the majority in the Court, I believe that the issue before us is
one of rights and not of power. Mr. Marcos is insensate and would not live if
separated from the machines which have taken over the functions of his kidneys and
other organs. To treat him at this point as one with full panoply of power against
whom the forces of Government should be marshalled is totally unrealistic. The
Government has the power to arrest and punish him. But does it have the power to
deny him his right to come home and die among familiar surroundings?
Hence, this dissent.
The Bill of Rights provides:
Sec. 6. The liberty of abode and of changing the same within the limits
prescribed by law shall not be impaired except upon lawful order of
the court. Neither shall the right to travel be impaired except in the
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interest of national security, public safety, or public health, as may be
provided by law. (Emphasis supplied, Section 6, Art. 111,
Constitution)
To have the petition dismissed, the Solicitor General repeats a ritual invocation of
national security and public safety which is hauntingly familiar because it was
pleaded so often by petitioner Ferdinand E. Marcos to justify his acts under martial
law. There is, however, no showing of the existence of a law prescribing the limits of
the power to impair and the occasions for its exercise. And except for citing breaches
of law and order, the more serious of which were totally unrelated to Mr. Marcos and
which the military was able to readily quell, the respondents have not pointed to any
grave exigency which permits the use of untrammeled Governmental power in this
case and the indefinite suspension of the constitutional right to travel.
The respondents' basic argument is that the issue before us is a political question
beyond our jurisdiction to consider. They contend that the decision to ban former
President Marcos, and his family on grounds of national security and public safety is
vested by the Constitution in the President alone. The determination should not be
questioned before this Court. The President's finding of danger to the nation should
be conclusive on the Court.
What is a political question?
In Vera v. Avelino (77 Phil. 192, 223 [1946], the Court stated:
xxxxxxxxx
It is a well-settled doctrine that political questions are not within the
province of the judiciary, except to the extent that power to deal with
such questions has been conferred on the courts by express
constitutional or statutory provisions. It is not so easy, however, to
define the phrase political question, nor to determine what matters fall
within its scope. It is frequently used to designate all questions that he
outside the scope of the judicial power. More properly, however, it
means those questions which, under the constitution, are to be
decided by the people in their sovereign capacity, or in regard to
which full discretionary authority has been delegated to the legislative
or executive branch of the government.
We defined a political question in Taniada v. Cuenco (103 Phil. 1051, 1066 [1957]),
as follows:
In short, the term 'Political question' connotes, in legal parlance, what
it means in ordinary parlance, namely, a question of policy. In other
words, in the language of Corpus Juris Secundum (supra), it refers to
'those questions which, under the Constitution, are to be decided by
the people in their sovereign capacity, or in regard to which full
discretionary authority has been delegated to the Legislature or
executive branch of the Government. It is concerned with issues
dependent upon the wisdom, not legality, of a particular measure.
The most often quoted definition of political question was made by Justice Wilham J.
Brennan Jr., who penned the decision of the United States Supreme Court in Baker
v. Carr (369 US 186,82, S. Ct. 691, L. Ed. 2d. 663 [1962]). The ingredients of a
political question as formulated in Baker v. Carr are:
It is apparent that several formulations which vary slightly according to
the settings in which the questions arise may describe a political
question, which Identifies it as essentially a function of the separation
of powers. Prominent on the surface of any case held to involve a
political question is found a textually demonstrable constitutional
commitment of the issue to a coordinate political department; or a lack
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of judicially discoverable and manageable standards for resolving it;
or the impossibility of deciding without an initial policy determination of
a kind clearly for non-judicial discretion; or the impossibility of a
court's undertaking independent resolution without expressing lack of
the respect due coordinate branches of government; or an unusual
need for unquestioning adherence to a political decision already
made; or potentiality of embarrassment from multifarious
pronouncements by various departments on one question.
For a political question to exist, there must be in the Constitution a power vested
exclusively in the President or Congress, the exercise of which the court should not
examine or prohibit. A claim of plenary or inherent power against a civil right which
claim is not found in a specific provision is dangerous. Neither should we validate a
roving commission allowing public officials to strike where they please and to
override everything which to them represents evil. The entire Govern ment is bound
by the rule of law.
The respondents have not pointed to any provision of the Constitution which commits
or vests the determination of the question raised to us solely in the President.
The authority implied in Section 6 of the Bill of Rights itself does not exist because no
law has been enacted specifying the circumstances when the right may be impaired
in the interest of national security or public safety. The power is in Congress, not the
Executive.
The closest resort to a textile demonstrable constitutional commitment of power may
be found in the commander-in-chief clause which allows the President to call out the
armed forces in case of lawless violence, invasion or rebellion and to suspend the
privilege of the writ of habeas corpus or proclaim martial law in the event of invasion
or rebellion, when the public safety requires it.
There is, however, no showing, not even a claim that the followers of former
President Marcos are engaging in rebellion or that he is in a position to lead them.
Neither is it claimed that there is a need to suspend the privilege of the writ of
habeas corpus or proclaim martial law because of the arrival of Mr. Marcos and his
family. To be sure, there may be disturbances but not of a magnitude as would
compel this Court to resort to a doctrine of non- justiceability and to ignore a plea for
the enforcement of an express Bill of Rights guarantee.
The respondents themselves are hard-pressed to state who or what constitutes a
Marcos "loyalist." The constant insinuations that the "loyalist" group is heavily funded
by Mr. Marcos and his cronies and that the "loyalists" engaging in rallies and
demonstrations have to be paid individual allowances to do so constitute the
strongest indication that the hard core "loyalists" who would follow Marcos right or
wrong are so few in number that they could not possibly destabilize the government,
much less mount a serious attempt to overthrow it.
Not every person who would allow Mr. Marcos to come home can be tagged a
"loyalist." It is in the best of Filipino customs and traditions to allow a dying person to
return to his home and breath his last in his native surroundings. Out of the 103
Congressmen who passed the House resolution urging permission for his return,
there are those who dislike Mr. Marcos intensely or who suffered under his regime.
There are also many Filipinos who believe that in the spirit of national unity and
reconciliation Mr. Marcos and his family should be permitted to return to the
Philippines and that such a return would deprive his fanatic followers of any further
reason to engage in rallies and demonstrations.
The Court, however, should view the return of Mr. Marcos and his family solely in the
light of the constitutional guarantee of liberty of abode and the citizen's right to travel

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as against the respondents' contention that national security and public safety would
be endangered by a grant of the petition.
Apart from the absence of any text in the Constitution committing the issue
exclusively to the President, there is likewise no dearth of decisional data, no
unmanageable standards which stand in the way of a judicial determination.
Section 6 of the Bill of Rights states categorically that the liberty of abode and of
changing the same within the limits prescribed by law may be impaired only upon a
lawful order of a court. Not by an executive officer. Not even by the President.
Section 6 further provides that the right to travel, and this obviously includes the right
to travel out of or back into the Philippines, cannot be impaired except in the interest
of national security, public safety, or public health, as may be provided by law.
There is no law setting the limits on a citizen's right to move from one part of the
country to another or from the Philippines to a foreign country or from a foreign
country to the Philippines. The laws cited by the Solicitor General immigration,
health, quarantine, passports, motor vehicle, destierro probation, and parole are all
inapplicable insofar as the return of Mr. Marcos and family is concerned. There is
absolutely no showing how any of these statutes and regulations could serve as a
basis to bar their coming home.
There is also no disrespect for a Presidential determination if we grant the petition.
We would simply be applying the Constitution, in the preservation and defense of
which all of us in Government, the President and Congress included, are sworn to
participate. Significantly, the President herself has stated that the Court has the last
word when it comes to constitutional liberties and that she would abide by our
decision.
As early as 1983, it was noted that this Court has not been very receptive to the
invocation of the political question doctrine by government lawyers. (See Morales, Jr.
.v Ponce Enrile, 121 SCRA 538 [1983]).
Many of those now occupying the highest positions in the executive departments,
Congress, and the judiciary criticized this Court for using what they felt was a
doctrine of convenience, expediency, utility or subservience. Every major challenge
to the acts of petitioner Ferdinand E. Marcos under his authoritarian regime the
proclamation of martial law, the ratification of a new constitution, the arrest and
detention of "enemies of the State" without charges being filed against them, the
dissolution of Congress and the exercise by the President of legislative powers, the
trial of civilians for civil offenses by military tribunals, the seizure of some of the
country's biggest corporations, the taking over or closure of newspaper offices, radio
and television stations and other forms of media, the proposals to amend the
Constitution, etc. was invariably met by an invocation that the petition involved a
political question. It is indeed poetic justice that the political question doctrine so
often invoked by then President Marcos to justify his acts is now being used against
him and his family. Unfortunately, the Court should not and is not allowed to indulge
in such a persiflage. We are bound by the Constitution.
The dim view of the doctrine's use was such that when the present Constitution was
drafted, a broad definition of judicial power was added to the vesting in the Supreme
Court and statutory courts of said power.
The second paragraph of Section 1, Article VIII of the Constitution provides:
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of the Government.

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This new provision was enacted to preclude this Court from using the political
question doctrine as a means to avoid having to make decisions simply because
they are too controversial, displeasing to the President or Congress, inordinately
unpopular, or which may be ignored and not enforced.
The framers of the Constitution believed that the free use of the political question
doctrine allowed the Court during the Marcos years to fall back on prudence,
institutional difficulties, complexity of issues, momentousness of consequences or a
fear that it was extravagantly extending judicial power in the cases where it refused
to examine and strike down an exercise of authoritarian power. Parenthetically, at
least two of the respondents and their counsel were among the most vigorous critics
of Mr. Marcos (the main petitioner) and his use of the political question doctrine. The
Constitution was accordingly amended. We are now precluded by its mandate from
refusing to invalidate a political use of power through a convenient resort to the
question doctrine. We are compelled to decide what would have been non-
justiceable under our decisions interpreting earlier fundamental charters.
This is not to state that there can be no more political questions which we may refuse
to resolve. There are still some political questions which only the President,
Congress, or a plebiscite may decide. Definitely, the issue before us is not one of
them.
The Constitution requires the Court "to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction."
How do we determine a grave abuse of discretion?
The tested procedure is to require the parties to present evidence. Unfortunately,
considerations of national security do not readily lend themselves to the presentation
of proof before a court of justice. The vital information essential to an objective
determination is usually highly classified and it cannot be rebutted by those who seek
to overthrow the government. As early as Barcelon v. Baker (5 Phil. 87, 93 [19051),
the Court was faced with a similar situation. It posed a rhetorical question. If after
investigating conditions in the Archipelago or any part thereof, the President finds
that public safety requires the suspension of the privilege of the writ of habeas
corpus, can the judicial department investigate the same facts and declare that no
such conditions exist?
In the effort to follow the "grave abuse of discretion" formula in the second paragraph
of Section 1, Article VIII of the Constitution, the court granted the Solicitor General's
offer that the military give us a closed door factual briefing with a lawyer for the
petitioners and a lawyer for the respondents present.
The results of the briefing call to mind the concurrence of Justice Vicente Abad
Santos in Morales, Jr. v. Enrile, (121 SCRA 538, 592 [19831):
How can this Court determine the factual basis in order that it can
ascertain whether or not the president acted arbitrarily in suspending
the writ when, in the truth words of Montenegro, with its very limited
machinery fit] cannot be in better position [than the Executive Branch]
to ascertain or evaluate the conditions prevailing in the Archipelago?
(At p. 887). The answer is obvious. It must rely on the Executive
Branch which has the appropriate civil and military machinery for the
facts. This was the method which had to be used in Lansang. This
Court relied heavily on classified information supplied by the military.
Accordingly, an incongruous situation obtained. For this Court, relied
on the very branch of the government whose act was in question to
obtain the facts. And as should be expected the Executive Branch
supplied information to support its position and this Court was in no
situation to disprove them. It was a case of the defendant judging the
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suit. After all is said and done, the attempt by its Court to determine
whether or not the President acted arbitrarily in suspending the writ
was a useless and futile exercise.
There is still another reason why this Court should maintain a
detached attitude and refrain from giving the seal of approval to the
act of the Executive Branch. For it is possible that the suspension of
the writ lacks popular support because of one reason or another. But
when this Court declares that the suspension is not arbitrary (because
it cannot do otherwise upon the facts given to it by the Executive
Branch) it in effect participates in the decision-making process. It
assumes a task which it is not equipped to handle; it lends its prestige
and credibility to an unpopular act.
The other method is to avail of judicial notice. In this particular case, judicial notice
would be the only basis for determining the clear and present danger to national
security and public safety. The majority of the Court has taken judicial notice of the
Communist rebellion, the separatist movement, the rightist conspiracies, and urban
terrorism. But is it fair to blame the present day Marcos for these incidents? All these
problems are totally unrelated to the Marcos of today and, in fact, are led by people
who have always opposed him. If we use the problems of Government as excuses
for denying a person's right to come home, we will never run out of justifying
reasons. These problems or others like them will always be with us.
Significantly, we do not have to look into the factual bases of the ban Marcos policy
in order to ascertain whether or not the respondents acted with grave abuse of
discretion. Nor are we forced to fall back upon judicial notice of the implications of a
Marcos return to his home to buttress a conclusion.
In the first place, there has never been a pronouncement by the President that a
clear and present danger to national security and public safety will arise if Mr.
Marcos and his family are allowed to return to the Philippines. It was only after the
present petition was filed that the alleged danger to national security and public
safety conveniently surfaced in the respondents' pleadings. Secondly, President
Aquino herself limits the reason for the ban Marcos policy to-41) national welfare and
interest and (2) the continuing need to preserve the gains achieved in terms of
recovery and stability. (See page 7, respondents' Comment at page 73 of Rollo).
Neither ground satisfies the criteria of national security and public safety. The
President has been quoted as stating that the vast majority of Filipinos support her
position. (The Journal, front page, January 24,1989) We cannot validate their stance
simply because it is a popular one. Supreme Court decisions do not have to be
popular as long as they follow the Constitution and the law. The President's original
position "that it is not in the interest of the nation that Marcos be allowed to return at
this time" has not changed. (Manila Times, front page, February 7, 1989). On
February 11, 1989, the President is reported to have stated that "considerations of
the highest national good dictate that we preserve the substantial economic and
political gains of the past three years" in justifying her firm refusal to allow the return
of Mr. Marcos despite his failing health. (Daily Globe, front page, February 15, 1989).
"Interest of the nation national good," and "preserving economic and political gains,"
cannot be equated with national security or public order. They are too generic and
sweeping to serve as grounds for the denial of a constitutional right. The Bill of
Rights commands that the right to travel may not be impaired except on the stated
grounds of national security, public safety, or public health and with the added
requirement that such impairment must be "as provided by law." The constitutional
command cannot be negated by mere generalizations.

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

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

Page 215 of 236


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

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I cannot turn back on the lessons of liberty that I taught for more than three decades
as a professor of Constitutional Law. These principles have not changed simply
because I am now on the Court or a new administration is in power and the shoe is
on the other foot.
Like the martyred Ninoy Aquino who also wanted to come back to the Philippines
against the prohibitions of the government then, Marcos is entitled to the same right
to travel and the liberty of abode that his adversary invoked. These rights are
guaranteed by the Constitution to all individuals, including the patriot and the
homesick and the prodigal son returning, and tyrants and charlatans and scoundrels
of every stripe.
I vote to grant the petition.
PARAS, J., dissenting:
I dissent. Already, some people refer to us as a nation without discipline. Are we
ready to be also called a society without compassion?
The issue as to whether or not former President Ferdinand E. Marcos should be
allowed to return to the Philippines may be resolved by answering two simple
questions: Does he have the right to return to his own country and should national
safety and security deny him this right?
There is no dispute that the former President is still a Filipino citizen and both under
the Universal Declaration of Human Rights and the 1987 Constitution of the
Philippines, he has the right to return to his own country except only if prevented by
the demands of national safety and national security.
Our Armed Forces have failed to prove this danger. They are bereft of hard
evidence, and all they can rely on is sheer speculation. True, there is some danger
but there is no showing as to the extent.
It is incredible that one man alone together with his family, who had been ousted
from this country by popular will, can arouse an entire country to rise in morbid
sympathy for the cause he once espoused.
It is therefore clear to me, all other opinions to the contrary notwithstanding, that the
former President should be allowed to return to our country under the conditions that
he and the members of his family be under house arrest in his hometown in Ilocos
Norte, and should President Marcos or any member of his family die, the body
should not be taken out of the municipality of confinement and should be buried
within ten (10) days from date.
If we do this, our country shall have maintained its regard for fundamental human
rights, for national discipline, and for human compassion.
PADILLA, J., dissenting:
I dissent. As I see it, the core issue in this case is, which right will prevail in the
conflict between the right of a Filipino, Ferdinand E. Marcos, to return to the
Philippines, and the right of the Philippine Government to bar such return in the
interest of national security and public safety. In this context, the issue is clearly
justiciable involving, as it does, colliding assertions of individual right and
governmental power. Issues of this nature more than explain why the 1986
Constitutional Commission, led by the illustrious former Chief Justice Roberto
Concepcion, incorporated in the 1987 Constitution, the new provision on the power
of Judicial Review, viz:
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of the Government. Article VIII,
Section 1, par. 2; (Emphasis supplied)
Page 217 of 236
Mr. Marcos invokes in his favor the specific and precise constitutional right of every
Filipino to travel which, in the language of the Constitution, shall not be impaired
"except in the interest of national security, public safety, or public health, as may be
provided by law" (Art. III, Sec. 6). That the right to travel comprises the right to travel
within the country, to travel out of the country and to return to the country
(Philippines), is hardly disputable. Short of all such components, the right to travel is
meaningless. The real question arises in the interpretation of the qualifications
attached by the Constitution to such right to travel.
Petitioners contend that, in the absence of restricting legislation, the right to travel is
absolute. I do not agree. It is my view that, with or without restricting legislation, the
interest of national security, public safety or public health can justify and even require
restrictions on the right to travel, and that the clause "as may be provided by law"
contained in Article III, Section 6 of the 1987 Constitution merely declares a
constitutional leave or permission for Congress to enact laws that may restrict the
right to travel in the interest of national security, public safety or public health. I do
not, therefore, accept the petitioners' submission that, in the absence of enabling
legislation, the Philippine Government is powerless to restrict travel even when such
restriction is demanded by national security, public safety or public health, The power
of the State, in particular cases, to restrict travel of its citizens finds abundant support
in the police power of the state wich may be exercised to preserve and maintain
government as well as promote the general welfare of the greatest number of
people.
And yet, the power of the State, acting through a government in authority at any
given time, to restrict travel, even if founded on police power, cannot be absolute and
unlimited under all circumstances, much less, can it be arbitrary and irrational.
Mr. Marcos, I repeat, comes before the Court as a Filipino, invoking a specific
constitutional right, i.e., the right to return to the country. 1 Have the respondents
presented sufficient evidence to offset or override the exercise of this right invoked
by Mr. Marcos? Stated differently, have the respondents shown to the Court
sufficient factual bases and data which would justify their reliance on national
security and public safety in negating the right to return invoked by Mr. Marcos?
I have given these questions a searching examination. I have carefully weighed and
assessed the "briefing" given the Court by the highest military authorities of the land
last 28 July 1989. 1 have searched, but in vain, for convincing evidence that would
defeat and overcome the right of Mr. Marcos as a Filipino to return to this country. It
appears to me that the apprehensions entertained and expressed by the
respondents, including those conveyed through the military, do not, with all due
respect, escalate to proportions of national security or public safety. They appear to
be more speculative than real, obsessive rather than factual. Moreover, such
apprehensions even if translated into realities, would be "under control," as admitted
to the Court by said military authorities, given the resources and facilities at the
command of government. But, above all, the Filipino people themselves, in my
opinion, will know how to handle any situation brought about by a political recognition
of Mr. Marcos' right to return, and his actual return, to this country. The Court, in
short, should not accept respondents' general apprehensions, concerns and
perceptions at face value, in the light of a countervailing and even irresistible,
specific, clear, demandable, and enforceable right asserted by a Filipino.
Deteriorating political, social, economic or exceptional conditions, if any, are not to
be used as a pretext to justify derogation of human rights. 2
As a member of the United Nations, the Philippines has obligations under its charter.
By adopting the generally accepted principles of international law as part of the law
of the land, (Art. II, Sec. 2 of the Constitution), the Philippine government cannot just
Page 218 of 236
pay lip service to Art. 13, par. 2 of the Universal Declaration of Human Rights which
provides that everyone has the right to leave any country, including his own, and to
return to his country. This guarantee is reiterated in Art. XII, par. 2 of the International
Covenant on Civil and Political Rights which states that "no one shall be arbitrarily
deprived of the right to enter his own country." (Emphasis supplied) "Arbitrary" or
"arbitrarily" was specifically chosen by the drafters of the Covenant 3 hoping to
protect an individual against unexpected, irresponsible or excessive encroachment
on his rights by the state based on national traditions or a particular sense of justice
which falls short of international law or standards. 4
The Solicitor General maintains that because the respondents, as alter egos of the
President, have raised the argument of "national security" and "public safety," it is
the duty of this Court to unquestioningly yield thereto, thus casting the controversy to
the realm of a political question. I do not agree. I believe that it is one case where the
human and constitutional light invoked by one party is so specific, substantial and
clear that it cannot be overshadowed, much less, nullified by simplistic generalities;
worse, the Court neglects its duty under the Constitution when it allows the theory of
political question to serve as a convenient, and yet, lame excuse for evading what, to
me, is its clearly pressing and demandable duty to the Constitution.
During the oral arguments in this case, I asked the Solicitor General how one
could validly defend the right of former Senator Benigno S. Aquino, Jr., a Filipino, to
return to the Philippines in 1983 and, at the same time, credibly deny the right of Mr.
Marcos, also a Filipino, to return to the Philippines in 1989. I still have not found a
satisfactory answer to that question. Instead, it has become clearer by the day that
the drama today is the same drama in 1983 with the only difference that the actors
are in opposite roles, which really makes one hope, in the national interest, that the
mistake in 1983 should not be made to persist in 1989.
To one who owes Mr. Marcos, his wife and followers absolutely nothing, personal,
political or otherwise, the following are the cogent and decisive propositions in this
case-
1. Mr. Marcos is a Filipino and, as such, entitled to return to die and
be buried in this country;
2. respondents have not shown any "hard evidence" or con- vincing
proof why his right as a Filipino to return should be denied him. All we
have are general conclusions of "national security" and "public safety"
in avoidance of a specific demandable and enforceable constitutional
and basic human right to return;
3. the issue of Marcos' return to the Philippines, perhaps more than
any issue today, requires of all members of the Court, in what appears
to be an extended political contest, the "cold neutrality of an impartial
judge." It is only thus that we fortify the independence of this Court,
with fidelity, not to any person, party or group but to the Constitution
and only to the Constitution.
ACCORDINGLY, I vote to GRANT the petition.
SARMIENTO, J., dissenting:
I vote to grant the petition.
The only issue that saddles the Court is simply: "whether or not, in the exercise of
the powers granted by the Constitution, the President may prohibit the Marcoses
from returning to the Philippines." 1 I therefore take exception to allusions 2 anent
"the capacity of the Marcoses to stir trouble even from afar." 3 I have legitimate
reason to fear that my brethren, in passing judgment on the Marcoses (insofar as
their "capacity to stir trouble" is concerned), have overstepped the bounds of judicial
restraint, or even worse, convicted them without trial.
Page 219 of 236
I also find quite strained what the majority would have as the "real issues" facing the
Court: "The right to return to one's country," pitted against "the right of travel and
freedom of abode", and their supposed distinctions under international law, as if such
distinctions, under international law in truth and in fact exist. There is only one right
involved here, whether under municipal or international law: the light of travel,
whether within one's own country, or to another, and the right to return thereto. The
Constitution itself makes no distinctions; let then, no one make a distinction. Ubi lex
non distinguish nec nos distinguere debemus.
As the majority would indeed have it, the issue is one of power: Does the Executive
have the power to deny a citizen his right to travel (back to the country or to
another)? It is a question that, in essence, involves the application, and no more, of
the provisions of the 1987 Constitution:
Sec. 6. The liberty of abode and of changing the same within the limits
prescribed by law shall not be impaired except upon lawful order of
the court. Neither shall the right to travel be impaired except in the
interest of national security, public safety, or public health, as may be
provided by law. 4
The majority says, with ample help from American precedents, that the President is
possessed of the power, thus:
On these premises, we hold the view that although the 1987
Constitution imposes limitations on the exercise of specific powers of
the President, it maintains intact what is traditionally considered as
within the scope of "executive power." Corollarily, the powers of the
President cannot be said to be limited only to the specific powers
enumerated in the Constitution. In other words, executive power is
more than the sum of specific powers so enumerated. 5
So also:
Faced with the problem of whether or not the time is right to allow the
Marcoses to return to the Philippines, the President is, under the
Constitution, constrained to consider these basic principles in arriving
at a decision. More than that, having sworn to defend and uphold the
Constitution, the President has the obligation under the Constitution to
protect the people, promote their welfare and advance the national
interest. It must be borne in mind that the Constitution, aside from
being an allocation of power is also a social contract whereby the
people have surrendered their sovereign powers to the State for the
common good. Hence, lest the officers of the Government exercising
the powers delegated by the people forget and the servants of the
people become rulers, the Constitution reminds everyone that
"sovereignty resides in the people and all government authority
emanates from them." [Art. II, Sec. 1 . ] 6
And finally:
To the President, the problem is one of balancing the general welfare
and the common good against the exercise of rights of certain
individuals. The power involved is the President's residual power to
protect the general welfare of the people. It is founded on the duty of
the President, as steward of the people. To paraphrase Theodore
Roosevelt, it is not only the power of the President but also his duty to
do anything not forbidden by the Constitution or the laws that the
needs of the nation demanded [See Corwin, supra, at 153]. It is a
power borne by the President's duty to preserve and defend the
Constitution. It also may be viewed as a power implicit in the
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President's duty to take care that the laws are faithfully executed [See
Hyman, The American President, where the author advances the view
that an allowance of discretionary power is unavoidable in any
government and is best lodged in the President]. 7
I am not persuaded.
I
First: While the Chief Executive exercises powers not found expressly in the Charter,
but has them by constitutional implication* the latter must yield to the paramountcy of
the Bill of Rights. According to Fernando: "A regime of constitutionalism is thus
unthinkable without an assurance of the primacy of a big of rights. Precisely a
constitution exists to assure that in the discharge of the governmental functions, the
dignity that is the birthright of every human being is duly safeguarded. To be true to
its primordial aim a constitution must lay down the boundaries beyond which he's
forbidden territory for state action" 8
My brethren have not demonstrated, to my satisfaction, how the President may
override the direct mandate of the fundamental law. It will not suffice, so I submit, to
say that the President's plenitude of powers, as provided in the Constitution, or by
sheer constitutional implication, prevail over express constitutional commands.
"Clearly," so I borrow J.B.L. Reyes, in Ms own right, a titan in the field of public law,
"this argument ... rests ... not upon the text of the (Constitution] ... but upon a mere
inference therefrom." 9 For if it were, indeed, the intent of the Charter to create an
exception, that is, by Presidential action, to the right of travel or liberty of abode and
of changing the same other than what it explicitly says already ("limits prescribed by
law" 10 or "upon lawful order of the court" 11 the Charter could have specifically
declared so. As it is, the lone deterrents to the right in question are: (1) decree of
statute, or (2) lawful judicial mandate. Had the Constitution intended a third
exception, that is, by Presidential initiative, it could have so averred. It would also
have made the Constitution, as far as limits to the said right are concerned, come full
circle: Limits by legislative, judicial, and executive processes.
Obviously, none of the twin legal bars exist. There is no law banning the Marcoses
from the country; neither is there any court decree banishing him from Philippine
territory.
It is to be noted that under the 1973 Constitution, the right to travel is worded as
follows:
Sec. 5. The liberty of abode and of travel shall not be impaired except
upon lawful order of the court, or when necessary in the interest of
national security, public safety, or public health. 12
Under this provision, the right may be abated: (1) upon a lawful court order, or (2)
"when necessary in the interest of national security, public safety, or public
health. 13 Arguably, the provision enabled the Chief Executive (Marcos) to moderate
movement of citizens, which, Bernas says, justified such practices as "hamletting",
forced relocations, or the establishment of free-fire zones. 14
The new Constitution, however, so it clearly appears, has divested the Executive's
implied power. And, as it so appears, the right may be impaired only "within the limits
provided by law . 15 The President is out of the picture.
Admittedly, the Chief Executive is the "sole" judge of all matters affecting national
security 16 and foreign affairs; 17the Bill of Rights precisely, a form of check against
excesses of officialdom is, in this case, a formidable barrier against Presidential
action. (Even on matters of State security, this Constitution prescribes limits to
Executive's powers as Commander-in-Chief.)
Second: Assuming, ex hypothesis that the President may legally act, the question
that emerges is: Has it been proved that Marcos, or his return, will, in fact, interpose
Page 221 of 236
a threat to the national security , public safety, or public health?" What appears in the
records are vehement insistences that Marcos does pose a threat to the national
good and yet, at the same time, we have persistent claims, made by the military top
brass during the lengthy closed-door hearing on July 25, 1989, that "this Government
will not fall" should the former first family in exile step on Philippine soil. which is
which?
At any rate, it is my opinion that we can not leave that determination solely to the
Chief Executive. The Court itself must be content that the threat is not only clear, but
more so, present. 18
That the President "has the obligation under the Constitution to protect the people ...
" 19 is an obligation open to no doubt. But the question, and so I ask again and again,
is: From whom? If we say "from Marcos," we unravel chinks in our political armor. It
also flies in the face of claims, so confidently asserted, that "this Government will not
fall" even if we allowed Marcos to return.
It flies, finally, in the face of the fact that a good number of the henchmen trusted
allies, implementors of martial law, and pathetic parasites of the ex-first couple are,
in fact, in the Government, in the comfort of its offices, and or at the helm of its key
agencies. Let us not, therefore, joke ourselves of moral factors warranting the
continued banishment of Marcos. Morality is the last refuge of the self-righteous.
Third: The problem is not of balancing the general welfare against the exercise of
individual liberties. 20 As I indicated, not one shred of evidence, let alone solid
evidence, other than surmises of possibilities, has been shown to justify the
'balancing act" referred to. Worse, these conjectures contradict contentions that as
far as Philippine society is concerned, Marcos is "history".
The power of the President, so my brethren declaim, "calls for the exercise of the
President's power as protector of peace. 21
This is the self-same falsehood Marcos foisted on the Filipino people to justify the
authoritarian rule. It also means that we are no better than he has.
That "[t]he power of the President to keep the peace is not limited merely to
exercising the commander-in-chief powers in times of emergency or to leading the
State against external and internal threats to its existence" 22 is a bigger fantasy: It
not only summons the martial law decisions of pre-"EDSA" (especially with respect to
the detestable Amendment No. 6), it is inconsistent with the express provisions of the
commander-in-chief clause of the 1987 Charter, a Charter that has perceptibly
reduced the Executive's powers vis-a-vis its 1973 counterpart. 23
II.
The undersigned would be lacking in candor to conceal his dislike, to say the least,
for Marcos. Because of Marcos, the writer of it's dissent lost a son His son's only
"offense" was that he openly and unabatedly criticized the dictator, his associates,
and his military machinery. He would pay dearly for it; he was arrested and detained,
without judicial warrant or decision, for seven months and seven days. He was
held incommunicado a greater part of the time, in the military stockade of Camp
Crame. In his last week in detention, he was, grudgingly, hospitalized (prison
hospital) and confined for chronic asthma. The deplorable conditions of his
imprisonment exacerbated his delicate health beyond cure. He died, on November
11, 1977, a martyr on the altar of the martial law apparatus.
The undersigned also counts himself as one of the victims of Marcos'
ruthless apparatchiki. On August 14, 1979, he was, along with former President
Diosdado Macapagal, and Congressmen Rogaciano Mercado and Manuel
Concordia, charged, "ASSOed"and placed under house arrest, for "inciting to
sedition" and "rumor mongering " 24in the midst of the distribution of Ang
Demokrasya Sa Pilipinas (Democracy In the Philippines), a book extremely critical of
Page 222 of 236
martial rule, published by him and former Congressman Concordia, authored by
President Macapagal and translated into Tagalog by Congressman Rogaciano
Mercado. In addition, they were also all accused of libel in more than two dozens of
criminal complaints filed by the several military officers named in the "condemned"
book as having violated the human rights of dissenters, and for other crimes, in the
office of the Provincial Fiscal of Rizal. It had to take the events at "EDSA" to set them
free from house arrest and these political offenses. I am for Marcos' return not
because I have a score to settle with him. Ditto's death or my arrest are scores that
can not be settled.
I feel the ex-President's death abroad (presented in the dailies as 'imminent") would
leave him 'unpunished for Ms crimes to country and countrymen. If punishment is
due, let this leadership inflict it. But let him stand trial and accord him due process.
Modesty aside, I have staunchly and consistently advocated the human right of travel
and movement and the liberty of abode. 25 We would have betrayed our own Ideals
if we denied Marcos his rights. It is his constitutional right, a right that can not be
abridged by personal hatred, fear, founded or unfounded, and by speculations of the
"man's "capacity" "to stir trouble" Now that the shoe is on the other foot, let no more
of human rights violations be repeated against any one, friend or foe. In a democratic
framwork, there is no this as getting even.
The majority started this inquiry on the question of power. I hold that the President,
under the present Constitution and existing laws, does not have it. Mandamus, I
submit, lies.
FULLTEXT:
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 88211 October 27, 1989
FERDINAND E. MARCOS, IMELDA R. MARCOS, FERDINAND R. MARCOS. JR.,
IRENE M. ARANETA, IMEE M. MANOTOC, TOMAS MANOTOC, GREGORIO
ARANETA, PACIFICO E. MARCOS, NICANOR YÑIGUEZ and PHILIPPINE
CONSTITUTION ASSOCIATION (PHILCONSA), represented by its President,
CONRADO F. ESTRELLA, petitioners,
vs.
HONORABLE RAUL MANGLAPUS, CATALINO MACARAIG, SEDFREY
ORDOÑEZ, MIRIAM DEFENSOR SANTIAGO, FIDEL RAMOS, RENATO DE
VILLA, in their capacity as Secretary of Foreign Affairs, Executive Secretary,
Secretary of Justice, Immigration Commissioner, Secretary of National
Defense and Chief of Staff, respectively, respondents.
RESOLUTION

EN BANC:
In its decision dated September 15,1989, the Court, by a vote of eight (8) to seven
(7), dismissed the petition, after finding that the President did not act arbitrarily or
with grave abuse of discretion in determining that the return of former President
Marcos and his family at the present time and under present circumstances pose a
threat to national interest and welfare and in prohibiting their return to the Philippines.
On September 28, 1989, former President Marcos died in Honolulu, Hawaii. In a
statement, President Aquino said:
In the interest of the safety of those who will take the death of Mr.
Marcos in widely and passionately conflicting ways, and for the
tranquility of the state and order of society, the remains of Ferdinand
Page 223 of 236
E. Marcos will not be allowed to be brought to our country until such
time as the government, be it under this administration or the
succeeding one, shall otherwise decide. [Motion for Reconsideration,
p. 1; Rollo, p, 443.]
On October 2, 1989, a Motion for Reconsideration was filed by petitioners, raising
the following major arguments:
1. to bar former President Marcos and his family from returning to the Philippines is
to deny them not only the inherent right of citizens to return to their country of birth
but also the protection of the Constitution and all of the rights guaranteed to Filipinos
under the Constitution;
2. the President has no power to bar a Filipino from his own country; if she has, she
had exercised it arbitrarily; and
3. there is no basis for barring the return of the family of former President Marcos.
Thus, petitioners prayed that the Court reconsider its decision, order respondents to
issue the necessary travel documents to enable Mrs. Imelda R. Marcos, Ferdinand
R. Marcos, Jr., Irene M. Araneta, Imee M. Manotoc, Tommy Manotoc and Gregorio
Araneta to return to the Philippines, and enjoin respondents from implementing
President Aquino's decision to bar the return of the remains of Mr. Marcos, and the
other petitioners, to the Philippines.
Commenting on the motion for reconsideration, the Solicitor General argued that the
motion for reconsideration is moot and academic as to the deceased Mr. Marcos.
Moreover, he asserts that "the 'formal' rights being invoked by the Marcoses under
the label 'right to return', including the label 'return of Marcos' remains, is in reality or
substance a 'right' to destabilize the country, a 'right' to hide the Marcoses' incessant
shadowy orchestrated efforts at destabilization." [Comment, p. 29.] Thus, he prays
that the Motion for Reconsideration be denied for lack of merit.
We deny the motion for reconsideration.
1. It must be emphasized that as in all motions for reconsideration, the burden is
upon the movants, petitioner herein, to show that there are compelling reasons to
reconsider the decision of the Court.
2. After a thorough consideration of the matters raised in the motion for
reconsideration, the Court is of the view that no compelling reasons have been
established by petitioners to warrant a reconsideration of the Court's decision.
The death of Mr. Marcos, although it may be viewed as a supervening event, has not
changed the factual scenario under which the Court's decision was rendered. The
threats to the government, to which the return of the Marcoses has been viewed to
provide a catalytic effect, have not been shown to have ceased. On the contrary,
instead of erasing fears as to the destabilization that will be caused by the return of
the Marcoses, Mrs. Marcos reinforced the basis for the decision to bar their return
when she called President Aquino "illegal," claiming that it is Mr. Marcos, not Mrs.
Aquino, who is the "legal" President of the Philippines, and declared that the matter
"should be brought to all the courts of the world." [Comment, p. 1; Philippine Star,
October 4, 1989.]
3. Contrary to petitioners' view, it cannot be denied that the President, upon whom
executive power is vested, has unstated residual powers which are implied from the
grant of executive power and which are necessary for her to comply with her duties
under the Constitution. The powers of the President are not limited to what are
expressly enumerated in the article on the Executive Department and in scattered
provisions of the Constitution. This is so, notwithstanding the avowed intent of the
members of the Constitutional Commission of 1986 to limit the powers of the
President as a reaction to the abuses under the regime of Mr. Marcos, for the result
was a limitation of specific power of the President, particularly those relating to the
Page 224 of 236
commander-in-chief clause, but not a diminution of the general grant of executive
power.
That the President has powers other than those expressly stated in the Constitution
is nothing new. This is recognized under the U.S. Constitution from which we have
patterned the distribution of governmental powers among three (3) separate
branches.
Article II, [section] 1, provides that "The Executive Power shall be
vested in a President of the United States of America." In Alexander
Hamilton's widely accepted view, this statement cannot be read as
mere shorthand for the specific executive authorizations that follow it
in [sections] 2 and 3. Hamilton stressed the difference between the
sweeping language of article II, section 1, and the conditional
language of article I, [section] 1: "All legislative Powers herein
granted shall be vested in a Congress of the United States . . ."
Hamilton submitted that "[t]he [article III enumeration [in sections 2
and 31 ought therefore to be considered, as intended merely to
specify the principal articles implied in the definition of execution
power; leaving the rest to flow from the general grant of that power,
interpreted in confomity with other parts of the Constitution...
In Myers v. United States, the Supreme Court — accepted Hamilton's
proposition, concluding that the federal executive, unlike the
Congress, could exercise power from sources not enumerated, so
long as not forbidden by the constitutional text: the executive power
was given in general terms, strengthened by specific terms where
emphasis was regarded as appropriate, and was limited by direct
expressions where limitation was needed. . ." The language of Chief
Justice Taft in Myers makes clear that the constitutional concept of
inherent power is not a synonym for power without limit; rather, the
concept suggests only that not all powers granted in the Constitution
are themselves exhausted by internal enumeration, so that, within a
sphere properly regarded as one of "executive' power, authority is
implied unless there or elsewhere expressly limited. [TRIBE,
AMERICAN CONSTITUTIONAL LAW 158-159 (1978).]
And neither can we subscribe to the view that a recognition of the President's implied
or residual powers is tantamount to setting the stage for another dictatorship. Despite
petitioners' strained analogy, the residual powers of the President under the
Constitution should not be confused with the power of the President under the 1973
Constitution to legislate pursuant to Amendment No. 6 which provides:
Whenever in the judgment of the President (Prime Minister), there
exists a grave emergency or a threat or imminence thereof, or
whenever the interim Batasang Pambansa or the regular National
Assembly fails or is unable to act adequately on any matter for any
reason that in his judgment requires immediate action, he may, in
order to meet the exigency, issue the necessary decrees, orders, or
letters of instruction, which shall form part of the law of the land,
There is no similarity between the residual powers of the President under the 1987
Constitution and the power of the President under the 1973 Constitution pursuant to
Amendment No. 6. First of all, Amendment No. 6 refers to an express grant of power.
It is not implied. Then, Amendment No. 6 refers to a grant to the President of
the specific power of legislation.
4. Among the duties of the President under the Constitution, in compliance with his
(or her) oath of office, is to protect and promote the interest and welfare of the
Page 225 of 236
people. Her decision to bar the return of the Marcoses and subsequently, the
remains of Mr. Marcos at the present time and under present circumstances is in
compliance with this bounden duty. In the absence of a clear showing that she had
acted with arbitrariness or with grave abuse of discretion in arriving at this decision,
the Court will not enjoin the implementation of this decision.
ACCORDINGLY, the Court resolved to DENY the Motion for Reconsideration for lack
of merit."

Separate Opinions

CRUZ, J., dissenting:


Nothing important has happened to change my vote for granting the petition. The
death of Marcos has not plunged the nation into paroxysms of grief as the so-called
"loyalists" had hoped. By and large, it has been met with only passing interest if not
outright indifference from the people. Clearly, the discredited dictator is in death no
El Cid. Marcos dead is only an unpleasant memory, not a bolt of lightning to whip the
blood.
This only shows that if he was at all a threat to the national security when he was
already moribund that feeble threat has died with him. As the government stresses,
he has been reduced to a non-person (which makes me wonder why it is still afraid
of him). His cadaver is not even regarded as a symbol of this or that or whatever
except by his fanatical followers. It is only a dead body waiting to be interred in this
country.
This is a tempest in a teapot. We have more important things to do than debating
over a corpse that deserves no kinder fate than dissolution and oblivion. I say let it
be brought home and buried deep and let us be done with it forever.
PARAS, J., dissenting on the Motion for Reconsideration:
I find no reason to deviate from the dissenting opinion I have already expressed.
Firstly, the former President, although already dead, is still entitled to certain rights. It
is not correct to say that a dead man, since he is no longer a human being, has
ceased to have rights. For instance, our Revised Penal Code prohibits the
commission of libel against a deceased individual. And even if we were to assume
the non- existence anymore of his human rights what about the human rights of his
widow and the other members of his family?
Secondly, up to now, the alleged threats to national security have remained
unproved and consequently, unpersuasive. Our Armed Forces can easily control any
possible uprising or political and military destabilization. In fact, the converse
appears to be nearer the truth, that is, if we do not allow the remains to come, more
trouble may be expected.
Thirdly, reconciliation can proceed at a much faster pace if the petition for the return
is granted. To refuse the request can mean a hardening of resistance against the
well-intentioned aim of the administration. Upon the other hand, to grant the petition
may well soften the hearts of the oppositionists; paving the way for a united citizenry.
Finally, the entire world will surely applaud our government's act of mercy. As
Shakespeare once wrote "the quality of mercy is not strained." Surely, compassion is
the better part of government. Remove mercy, and you remove the best reason
against civil strife, which if not abated can turn our country into a mainstream of fiery
dissent and in the end, as one great man has put it, the question will no longer be
what is right, but what is left.
PADILLA, J., dissenting:
The death of former President Ferdinand E. Marcos, which supervened after
decision in this case had been rendered, was pre-empted and foreseen in my
Page 226 of 236
original dissenting opinion. There I said that the first cogent and decisive proposition
in this case is that "Mr. Marcos is a Filipino and, as such, entitled to return to, die
and be buried in this country." I have only to add a few statements to that dissenting
opinion.
Respondents have succeeded in denying Mr. Marcos the first two (2) rights, i.e. to
return to and die in this country, The remaining right of this Filipino that cries out for
vindication at this late hour is the right to be buried in this country. Will the
respondents be allowed to complete the circle of denying the constitutional and
human right of Mr. Marcos to travel which, as stated in my dissenting opinion,
includes the right to return to, die and be buried in this country? The answer should
be in the negative if the Constitution is to still prevail; the answer should be in the
negative if we are to avoid the completely indefensible act of denying a Filipino the
last right to blend his mortal remains with a few square feet of earth in the treasured
land of his birth.
Those who would deny this Filipino the only constitutional and human right that can
be accorded him now say that the constitutional and human right to be buried in this
country would apply to any Filipino, except Mr. Marcos, because he was a dictator
and he plundered the country. This is the most irrelevant argument that can be
raised at this time. For, our democracy is built on the fundamental assumption (so we
believe) that the Constitution and all its guarantees apply to all Filipinos, whether
dictator or pauper, learned or ignorant, religious or agnostic as long as he is a
Filipino.
It is said that to accord this Filipino the right to be buried in this country would pose a
serious threat to national security and public safety. What threat? As pointed out in
my dissenting opinion, the second cogent and decisive proposition in this case is that
respondents have not presented any "hard evidence" (factual bases) or convincing
proof of such threat. "All we have are general conclusions of national security and
public safety' in avoidance of a specific, demandable and enforceable constitutional
and basic human right to return." Recent events have, to my mind, served to confirm
the validity of such dissenting statement.
If a live Marcos returning to this country did not pose a serious threat to national
security, the situation cannot be any worse with a dead Marcos returning. For, a
dead Marcos will return to be buried into mother earth, where there are no protests,
"demos", or even dissents, where the rule that reigns, in the language of Mr. Justice
Jackson in Barnette is the "unanimity of the graveyard."
It is said that, while a dead Marcos has been rendered impotent to threaten national
security, his supporters would pose that threat to national security. This argument is
untenable as it is without merit. As I see it, Marcos' supporters pose a greater
threat to peace and order, with Marcos deprived of his right to burial in this country.
On the other hand, if the remains of Mr. Marcos are brought to the country and
allowed the burial to which he is constitutionally and humanly entitled, Marcos'
supporters would be deprived of an otherwise potent argument—so conducive to
mass protests and even violence—that their Idol has been cruelly denied the right to
be buried in his homeland.
It is also said that Mr. Marcos, in cadaver form, has no constitutional or human rights,
to speak of. This contention entirely begs the issue. In the first place, one cannot
overlook that the right of Mr. Marcos, as a Filipino, to be buried in this country, is
asserted not for the first time after his death. It was vigorously asserted long before
his death. But, more importantly, the right of every Filipino to be buried in his country,
is part of a continuing right that starts from birth and ends only on the day he is finally
laid to rest in his country.

Page 227 of 236


This dissenting opinion does not pretend to deny the Philippine government the right
to lay down conditions for the burial of Mr. Marcos in this country, but I submit that
these conditions must, as a fundamental postulate, recognize the right of the man, as
a Filipino, to be buried in this country NOW.
The majority resolution, in effect, bans Mr. Marcos' burial in this country now. Without
in any way affecting my respect and regard for my brethren and sisters in the
majority, I am deeply concerned and greatly disturbed that, with their decision
banning a dead Marcos from burial in this country, they have passed an opportunity
to defuse a constitutional crisis that, in my humble assessment, threatens to ignite an
already divided nation, Regrettably, they have ignored the constitutional dimension of
the problem rooted in the ageless and finest tradition of our people for respect and
deference to the dead. What predictably follows will be a continuing strife, among our
people, of unending hatred, recriminations and retaliations. God save this country!
My vote is for this Court to ORDER the respondents to allow the immediate return
and burial in the Republic of the Philippines of former President Ferdinand E.
Marcos, subject to such conditions as the Philippine government may impose in the
interest of peace and order.
SARMIENTO, J., Dissenting:
The case has curious trappings of a deja vu, the shoe being on the other foot, yet, as
I stated before, I can not allow personal emotions to soften my "hardened
impartiality" and deny, as a consequence, the rights of the ex-President's bereaved
to bury his remains in his homeland, and for them to return from exile. As I had, then,
voted to grant the petition, so do I vote to grant reconsideration.
I have gone to lengths to locate in the four comers of the Constitution, by direct grant
or by implication, the President's supposed "residual" power to forbid citizens from
entering the motherland reiterated in the resolution of the majority. I have found
none. I am not agreed, that:
3. Contrary to petitioners view, it cannot be denied that the President,
upon whom executive power is vested, has unstated residual powers
which are implied from the grant of executive power and which are
necessary for her to comply with her duties under the Constitution.
The powers of the President are not limited to what are expressly
enumerated in the article on the Executive Department and in
scattered provisions of the Constitution. This, notwithstanding the
avowed intent of the members of the Constitutional Commission of
1986 to limit the powers of the President as a reaction to the abuses
under the regime of Mr. Marcos, for the result was a limitation of
specific powers of the President, particularly those relating to the
commander-in-chief clause, but not a diminution of the general grant
of executive power.
It is a nice word game, but it is nothing else. For, if the Constitution has imposed
limitations on specific powers of the President, it has, a fortiori, prescribed a
diminution of executive power. The Charter says that the right may only be restricted
by: (1) a court order; or (2) by fiat of law. Had the fundamental law intended a
presidential imprimatur, it would have said so. It would have also completed the
symmetry: judicial, congressional, and executive restraints on the right. No amount of
presumed residual executive power can amend the Charter.
It is well to note that the Bill of Rights stands primarily, a limitation not only against
legislative encroachments on individual liberties, but more so, against presidential
intrusions. And especially so, because the President is the caretaker of the military
establishment that has, several times over, been unkind to part of the population it
has also sworn to protect.
Page 228 of 236
That "[t]he threats to the government, to which the return of the Marcoses has been
viewed to provide a catalytic effect, have not been shown to have ceased" (Res., 3)
is the realm of conjecture, speculation, and imagination. The military has shown no
hard evidence that "the return of the Marcoses" would indeed interpose a threat to
national security. And apparently, the majority itself is not convinced ("has been
viewed...").
That Mrs. Marcos has referred to President Corazon Aquino as an illegitimate
President, does not, so I submit, reinforce alleged fears of a massive destabilization
awaiting the nation. The military has said over and over that Marcos followers are not
capable of successful destabilization effort. And only this morning (October 27,
1989), media reported the assurances given to foreign investors by no less than the
President, of the political and economic stability of the nation, as well as the
Government's capability to quell forces that menace the gains of EDSA.
I have no eulogies to say on the passing of Mr. Marcos. My personal impressions,
however, are beside the point. I reiterate that the President has no power to deny
requests of Marcos relatives to bury Marcos in his homeland. As for the former, let
them get their just deserts here too. And let the matter rest.
Separate Opinions
CRUZ, J., dissenting:
Nothing important has happened to change my vote for granting the petition. The
death of Marcos has not plunged the nation into paroxysms of grief as the so-called
"loyalists" had hoped. By and large, it has been met with only passing interest if not
outright indifference from the people. Clearly, the discredited dictator is in death no
El Cid. Marcos dead is only an unpleasant memory, not a bolt of lightning to whip the
blood.
This only shows that if he was at all a threat to the national security when he was
already moribund that feeble threat has died with him. As the government stresses,
he has been reduced to a non-person (which makes me wonder why it is still afraid
of him). His cadaver is not even regarded as a symbol of this or that or whatever
except by his fanatical followers. It is only a dead body waiting to be interred in this
country.
This is a tempest in a teapot. We have more important things to do than debating
over a corpse that deserves no kinder fate than dissolution and oblivion. I say let it
be brought home and buried deep and let us be done with it forever.
PARAS, J., dissenting on the Motion for Reconsideration:
I find no reason to deviate from the dissenting opinion I have already expressed.
Firstly, the former President, although already dead, is still entitled to certain rights. It
is not correct to say that a dead man, since he is no longer a human being, has
ceased to have rights. For instance, our Revised Penal Code prohibits the
commission of libel against a deceased individual. And even if we were to assume
the non- existence anymore of his human rights what about the human rights of his
widow and the other members of his family?
Secondly, up to now, the alleged threats to national security have remained
unproved and consequently, unpersuasive. Our Armed Forces can easily control any
possible uprising or political and military destabilization. In fact, the converse
appears to be nearer the truth, that is, if we do not allow the remains to come, more
trouble may be expected.
Thirdly, reconciliation can proceed at a much faster pace if the petition for the return
is granted. To refuse the request can mean a hardening of resistance against the
well-intentioned aim of the administration. Upon the other hand, to grant the petition
may well soften the hearts of the oppositionists; paving the way for a united citizenry.

Page 229 of 236


Finally, the entire world will surely applaud our government's act of mercy. As
Shakespeare once wrote "the quality of mercy is not strained." Surely, compassion is
the better part of government. Remove mercy, and you remove the best reason
against civil strife, which if not abated can turn our country into a mainstream of fiery
dissent and in the end, as one great man has put it, the question will no longer be
what is right, but what is left.
PADILLA, J., dissenting:
The death of former President Ferdinand E. Marcos, which supervened after
decision in this case had been rendered, was pre-empted and foreseen in my
original dissenting opinion. There I said that the first cogent and decisive proposition
in this case is that "Mr. Marcos is a Filipino and, as such, entitled to return to, die
and be buried in this country." I have only to add a few statements to that dissenting
opinion.
Respondents have succeeded in denying Mr. Marcos the first two (2) rights, i.e. to
return to and die in this country, The remaining right of this Filipino that cries out for
vindication at this late hour is the right to be buried in this country. Will the
respondents be allowed to complete the circle of denying the constitutional and
human right of Mr. Marcos to travel which, as stated in my dissenting opinion,
includes the right to return to, die and be buried in this country? The answer should
be in the negative if the Constitution is to still prevail; the answer should be in the
negative if we are to avoid the completely indefensible act of denying a Filipino the
last right to blend his mortal remains with a few square feet of earth in the treasured
land of his birth.
Those who would deny this Filipino the only constitutional and human right that can
be accorded him now say that the constitutional and human right to be buried in this
country would apply to any Filipino, except Mr. Marcos, because he was a dictator
and he plundered the country. This is the most irrelevant argument that can be
raised at this time. For, our democracy is built on the fundamental assumption (so we
believe) that the Constitution and all its guarantees apply to all Filipinos, whether
dictator or pauper, learned or ignorant, religious or agnostic as long as he is a
Filipino.
It is said that to accord this Filipino the right to be buried in this country would pose a
serious threat to national security and public safety. What threat? As pointed out in
my dissenting opinion, the second cogent and decisive proposition in this case is that
respondents have not presented any "hard evidence" (factual bases) or convincing
proof of such threat. "All we have are general conclusions of national security and
public safety' in avoidance of a specific, demandable and enforceable constitutional
and basic human right to return." Recent events have, to my mind, served to confirm
the validity of such dissenting statement.
If a live Marcos returning to this country did not pose a serious threat to national
security, the situation cannot be any worse with a dead Marcos returning. For, a
dead Marcos will return to be buried into mother earth, where there are no protests,
"demos", or even dissents, where the rule that reigns, in the language of Mr. Justice
Jackson in Barnette is the "unanimity of the graveyard."
It is said that, while a dead Marcos has been rendered impotent to threaten national
security, his supporters would pose that threat to national security. This argument is
untenable as it is without merit. As I see it, Marcos' supporters pose a greater
threat to peace and order, with Marcos deprived of his right to burial in this country.
On the other hand, if the remains of Mr. Marcos are brought to the country and
allowed the burial to which he is constitutionally and humanly entitled, Marcos'
supporters would be deprived of an otherwise potent argument—so conducive to

Page 230 of 236


mass protests and even violence—that their Idol has been cruelly denied the right to
be buried in his homeland.
It is also said that Mr. Marcos, in cadaver form, has no constitutional or human rights,
to speak of. This contention entirely begs the issue. In the first place, one cannot
overlook that the right of Mr. Marcos, as a Filipino, to be buried in this country, is
asserted not for the first time after his death. It was vigorously asserted long before
his death. But, more importantly, the right of every Filipino to be buried in his country,
is part of a continuing right that starts from birth and ends only on the day he is finally
laid to rest in his country.
This dissenting opinion does not pretend to deny the Philippine government the right
to lay down conditions for the burial of Mr. Marcos in this country, but I submit that
these conditions must, as a fundamental postulate, recognize the right of the man, as
a Filipino, to be buried in this country NOW.
The majority resolution, in effect, bans Mr. Marcos' burial in this country now. Without
in any way affecting my respect and regard for my brethren and sisters in the
majority, I am deeply concerned and greatly disturbed that, with their decision
banning a dead Marcos from burial in this country, they have passed an opportunity
to defuse a constitutional crisis that, in my humble assessment, threatens to ignite an
already divided nation, Regrettably, they have ignored the constitutional dimension of
the problem rooted in the ageless and finest tradition of our people for respect and
deference to the dead. What predictably follows will be a continuing strife, among our
people, of unending hatred, recriminations and retaliations. God save this country!
My vote is for this Court to ORDER the respondents to allow the immediate return
and burial in the Republic of the Philippines of former President Ferdinand E.
Marcos, subject to such conditions as the Philippine government may impose in the
interest of peace and order.
SARMIENTO, J., Dissenting:
The case has curious trappings of a deja vu, the shoe being on the other foot, yet, as
I stated before, I can not allow personal emotions to soften my "hardened
impartiality" and deny, as a consequence, the rights of the ex-President's bereaved
to bury his remains in his homeland, and for them to return from exile. As I had, then,
voted to grant the petition, so do I vote to grant reconsideration.
I have gone to lengths to locate in the four comers of the Constitution, by direct grant
or by implication, the President's supposed "residual" power to forbid citizens from
entering the motherland reiterated in the resolution of the majority. I have found
none. I am not agreed, that:
3. Contrary to petitioners view, it cannot be denied that the President,
upon whom executive power is vested, has unstated residual powers
which are implied from the grant of executive power and which are
necessary for her to comply with her duties under the Constitution.
The powers of the President are not limited to what are expressly
enumerated in the article on the Executive Department and in
scattered provisions of the Constitution. This, notwithstanding the
avowed intent of the members of the Constitutional Commission of
1986 to limit the powers of the President as a reaction to the abuses
under the regime of Mr. Marcos, for the result was a limitation of
specific powers of the President, particularly those relating to the
commander-in-chief clause, but not a diminution of the general grant
of executive power.
It is a nice word game, but it is nothing else. For, if the Constitution has imposed
limitations on specific powers of the President, it has, a fortiori, prescribed a
diminution of executive power. The Charter says that the right may only be restricted
Page 231 of 236
by: (1) a court order; or (2) by fiat of law. Had the fundamental law intended a
presidential imprimatur, it would have said so. It would have also completed the
symmetry: judicial, congressional, and executive restraints on the right. No amount of
presumed residual executive power can amend the Charter.
It is well to note that the Bill of Rights stands primarily, a limitation not only against
legislative encroachments on individual liberties, but more so, against presidential
intrusions. And especially so, because the President is the caretaker of the military
establishment that has, several times over, been unkind to part of the population it
has also sworn to protect.
That "[t]he threats to the government, to which the return of the Marcoses has been
viewed to provide a catalytic effect, have not been shown to have ceased" (Res., 3)
is the realm of conjecture, speculation, and imagination. The military has shown no
hard evidence that "the return of the Marcoses" would indeed interpose a threat to
national security. And apparently, the majority itself is not convinced ("has been
viewed...").
That Mrs. Marcos has referred to President Corazon Aquino as an illegitimate
President, does not, so I submit, reinforce alleged fears of a massive destabilization
awaiting the nation. The military has said over and over that Marcos followers are not
capable of successful destabilization effort. And only this morning (October 27,
1989), media reported the assurances given to foreign investors by no less than the
President, of the political and economic stability of the nation, as well as the
Government's capability to quell forces that menace the gains of EDSA.
I have no eulogies to say on the passing of Mr. Marcos. My personal impressions,
however, are beside the point. I reiterate that the President has no power to deny
requests of Marcos relatives to bury Marcos in his homeland. As for the former, let
them get their just deserts here too. And let the matter rest.

SUMMARY:

Facts: This case involves a petition of mandamus and prohibition asking the court to
order the respondents Secretary of Foreign Affairs, etc. To issue a
travel documents to former Pres. Marcos and the immediate members of his family
and to enjoin the implementation of the President's decision to bar their return to
the Philippines. Petitioners assert that the right of the Marcoses to return in
the Philippines is guaranteed by the Bill of Rights, specifically Sections 1 and 6. They
contended that Pres. Aquino is without power to impair the liberty of abode of the
Marcoses because only a court may do so within the limits prescribed by law. Nor
the President impair their right to travel because no law has authorized her to do so.
They further assert that under international law, their right to return to
the Philippines is guaranteed particularly by the Universal Declaration of Human
Rights and the International Covenant on Civil and Political Rights, which has been
ratified by the Philippines.

Issue: Whether or not, in the exercise of the powers granted by the constitution, the
President (Aquino) may prohibit the Marcoses from returning to the Philippines.

Held: "It must be emphasized that the individual right involved is not the right to
travel from the Philippines to other countries or within the Philippines. These are
what the right to travel would normally connote. Essentially, the right involved in this
case at bar is the right to return to one's country, a distinct right under international
law, independent from although related to the right to travel. Thus, the Universal
Declaration of Human Rights and the International Covenant on Civil and Political
Page 232 of 236
Rights treat the right to freedom of movement and abode within the territory of a
state, the right to leave the country, and the right to enter one's country as separate
and distinct rights. What the Declaration speaks of is the "right to freedom of
movement and residence within the borders of each state". On the other hand, the
Covenant guarantees the right to liberty of movement and freedom to choose his
residence and the right to be free to leave any country, including his own. Such rights
may only be restricted by laws protecting the national security, public order, public
health or morals or the separate rights of others. However, right to enter one's
country cannot be arbitrarily deprived. It would be therefore inappropriate to construe
the limitations to the right to return to ones country in the same context as those
pertaining to the liberty of abode and the right to travel.

The Bill of right