Bill of Rights Cases Partial

CARLOS SUPERDRUG CORP.
DSWD
AZCUNA, J.:
This is a petition[1] for Prohibition with Prayer for Preliminary Injunction

assailing the constitutionality of Section 4(a) of Republic Act (R.A.) No.
9257,[2] otherwise known as the Expanded Senior Citizens Act of 2003.
Petitioners are domestic corporations and proprietors operating drugstores

in the Philippines.
Public respondents, on the other hand, include the Department of Social

Welfare and Development (DSWD), the Department of Health (DOH), the
Department of Finance (DOF), the Department of Justice (DOJ), and the
Department of Interior and Local Government (DILG) which have been
specifically tasked to monitor the drugstores compliance with the law;
promulgate the implementing rules and regulations for the effective
implementation of the law; and prosecute and revoke the licenses of erring
drugstore establishments.
The antecedents are as follows:
On February 26, 2004, R.A. No. 9257, amending R.A. No. 7432,[3] was
signed into law by President Gloria Macapagal-Arroyo and it became
effective on March 21, 2004. Section 4(a) of the Act states:
SEC. 4. Privileges for the Senior Citizens. The senior citizens shall be
entitled to the following:
(a) the grant of twenty percent (20%) discount from all establishments
relative to the utilization of services in hotels and similar lodging
establishments, restaurants and recreation centers, and purchase of
medicines in all establishments for the exclusive use or enjoyment of senior
citizens, including funeral and burial services for the death of senior
citizens;
The establishment may claim the discounts granted under (a), (f), (g) and
(h) as tax deduction based on the net cost of the goods sold or services
rendered: Provided, That the cost of the discount shall be allowed as
deduction from gross income for the same taxable year that the discount is
granted. Provided, further, That the total amount of the claimed tax
deduction net of value added tax if applicable, shall be included in their
gross sales receipts for tax purposes and shall be subject to proper
documentation and to the provisions of the National Internal Revenue
Code, as amended.[4]
On May 28, 2004, the DSWD approved and adopted the Implementing
Rules and Regulations of R.A. No. 9257, Rule VI, Article 8 of which states:
Article 8. Tax Deduction of Establishments. The establishment may claim

the discounts granted under Rule V, Section 4 Discounts for
Establishments;[5] Section 9, Medical and Dental Services in Private
Facilities[,][6] and Sections 10[7] and 11[8] Air, Sea and Land Transportation
as tax deduction based on the net cost of the goods sold or services
rendered. Provided, That the cost of the discount shall be allowed as
deduction from gross income for the same taxable year that the discount is
granted; Provided, further, That the total amount of the claimed tax
deduction net of value added tax if applicable, shall be included in their
gross sales receipts for tax purposes and shall be subject to proper
documentation and to the provisions of the National Internal Revenue
Code, as amended; Provided, finally, that the implementation of the tax
deduction shall be subject to the Revenue Regulations to be issued by the
Bureau of Internal Revenue (BIR) and approved by the Department of
Finance (DOF).[9]
On July 10, 2004, in reference to the query of the Drug Stores Association
of the Philippines (DSAP) concerning the meaning of a tax deduction under
the Expanded Senior Citizens Act, the DOF, through Director IV Ma.
Lourdes B. Recente, clarified as follows:
1) The difference between the Tax Credit (under the Old Senior Citizens
Act) and Tax Deduction (under the Expanded Senior Citizens Act).
1.1. The provision of Section 4 of R.A. No. 7432 (the old Senior Citizens
Act) grants twenty percent (20%) discount from all establishments relative
to the utilization of transportation services, hotels and similar lodging
establishment, restaurants and recreation centers and purchase of
medicines anywhere in the country, the costs of which may be claimed by
the private establishments concerned as tax credit.
Effectively, a tax credit is a peso-for-peso deduction from a taxpayers tax

liability due to the government of the amount of discounts such
establishment has granted to a senior citizen. The establishment recovers
the full amount of discount given to a senior citizen and hence, the
government shoulders 100% of the discounts granted.
It must be noted, however, that conceptually, a tax credit scheme under

the Philippine tax system, necessitates that prior payments of taxes have
been made and the taxpayer is attempting to recover this tax payment from
his/her income tax due. The tax credit scheme under R.A. No. 7432 is,
therefore, inapplicable since no tax payments have previously occurred.
1.2. The provision under R.A. No. 9257, on the other hand, provides
that the establishment concerned may claim the discounts under Section
4(a), (f), (g) and (h) as tax deduction from gross income, based on the net
cost of goods sold or services rendered.
Under this scheme, the establishment concerned is allowed to deduct from

gross income, in computing for its tax liability, the amount of discounts
granted to senior citizens. Effectively, the government loses in terms of
foregone revenues an amount equivalent to the marginal tax rate the said
establishment is liable to pay the government. This will be an amount
equivalent to 32% of the twenty percent (20%) discounts so granted. The
establishment shoulders the remaining portion of the granted discounts.
It may be necessary to note that while the burden on [the] government is

slightly diminished in terms of its percentage share on the discounts
granted to senior citizens, the number of potential establishments that may
claim tax deductions, have however, been broadened. Aside from the
establishments that may claim tax credits under the old law, more
establishments were added under the new law such as: establishments
providing medical and dental services, diagnostic and laboratory services,
including professional fees of attending doctors in all private hospitals and
medical facilities, operators of domestic air and sea transport services,
public railways and skyways and bus transport services.
A simple illustration might help amplify the points discussed above, as

follows:
Tax Deduction Tax Credit

Gross Sales x x x x x x x x x x x x
Less : Cost of goods sold x x x x x x x x x x
Net Sales x x x x x x x x x x x x
Less: Operating Expenses:
Tax Deduction on Discounts x x x x --
Other deductions: x x x x x x x x
Net Taxable Income x x x x x x x x x x
Tax Due x x x x x x
Less: Tax Credit -- ______x x
Net Tax Due -- x x
As shown above, under a tax deduction scheme, the tax deduction on

discounts was subtracted from Net Sales together with other deductions
which are considered as operating expenses before the Tax Due was
computed based on the Net Taxable Income. On the other hand, under
a tax credit scheme, the amount of discounts which is the tax credit item,
was deducted directly from the tax due amount.[10]
Meanwhile, on October 1, 2004, Administrative Order (A.O.) No. 171 or

the Policies and Guidelines to Implement the Relevant Provisions of
Republic Act 9257, otherwise known as the Expanded Senior Citizens Act
of 2003[11] was issued by the DOH, providing the grant of twenty percent
(20%) discount in the purchase of unbranded generic medicines from all
establishments dispensing medicines for the exclusive use of the senior
citizens.
On November 12, 2004, the DOH issued Administrative Order No

177[12] amending A.O. No. 171. Under A.O. No. 177, the twenty percent
discount shall not be limited to the purchase of unbranded generic
medicines only, but shall extend to both prescription and non-prescription
medicines whether branded or generic. Thus, it stated that [t]he grant of
twenty percent (20%) discount shall be provided in the purchase of
medicines from all establishments dispensing medicines for the exclusive
use of the senior citizens.
Petitioners assail the constitutionality of Section 4(a) of the Expanded

Senior Citizens Act based on the following grounds:[13]
1) The law is confiscatory because it infringes Art. III, Sec. 9 of

the Constitution which provides that private property shall not be taken for
public use without just compensation;
2) It violates the equal protection clause (Art. III, Sec. 1)

enshrined in our Constitution which states that no person shall be deprived
of life, liberty or property without due process of law, nor shall any person
be denied of the equal protection of the laws; and
3) The 20% discount on medicines violates the constitutional

guarantee in Article XIII, Section 11 that makes essential goods, health and
other social services available to all people at affordable cost.[14]
Petitioners assert that Section 4(a) of the law is unconstitutional because it

constitutes deprivation of private property. Compelling drugstore owners
and establishments to grant the discount will result in a loss of profit
and capital because 1) drugstores impose a mark-up of only 5% to 10% on
branded medicines; and 2) the law failed to provide a scheme whereby
drugstores will be justly compensated for the discount.
Examining petitioners arguments, it is apparent that what petitioners are

ultimately questioning is the validity of the tax deduction scheme as a
reimbursement mechanism for the twenty percent (20%) discount that they
extend to senior citizens.
Based on the afore-stated DOF Opinion, the tax deduction scheme does
not fully reimburse petitioners for the discount privilege accorded to senior
citizens. This is because the discount is treated as a deduction, a tax-
deductible expense that is subtracted from the gross income and results in
a lower taxable income. Stated otherwise, it is an amount that is allowed by
law[15] to reduce the income prior to the application of the tax rate to
compute the amount of tax which is due.[16] Being a tax deduction, the
discount does not reduce taxes owed on a peso for peso basis but merely
offers a fractional reduction in taxes owed.
Theoretically, the treatment of the discount as a deduction reduces the net

income of the private establishments concerned. The discounts given
would have entered the coffers and formed part of the gross sales of the
private establishments, were it not for R.A. No. 9257.
The permanent reduction in their total revenues is a forced subsidy

corresponding to the taking of private property for public use or
benefit.[17] This constitutes compensable taking for which petitioners would
ordinarily become entitled to a just compensation.
Just compensation is defined as the full and fair equivalent of the property
taken from its owner by the expropriator. The measure is not the takers
gain but the owners loss. The word just is used to intensify the meaning of
the word compensation, and to convey the idea that the equivalent to be
rendered for the property to be taken shall be real, substantial, full and
ample.[18]
A tax deduction does not offer full reimbursement of the senior citizen
discount. As such, it would not meet the definition of just compensation.[19]
Having said that, this raises the question of whether the State, in promoting
the health and welfare of a special group of citizens, can impose upon
private establishments the burden of partly subsidizing a government
program.
The Court believes so.
The Senior Citizens Act was enacted primarily to maximize the contribution
of senior citizens to nation-building, and to grant benefits and privileges to
them for their improvement and well-being as the State considers them an
integral part of our society.[20]
The priority given to senior citizens finds its basis in the Constitution as set
forth in the law itself. Thus, the Act provides:
SEC. 2. Republic Act No. 7432 is hereby amended to read as follows:

SECTION 1. Declaration of Policies and Objectives. Pursuant to Article XV,
Section 4 of the Constitution, it is the duty of the family to take care of its
elderly members while the State may design programs of social security for
them. In addition to this, Section 10 in the Declaration of Principles and
State Policies provides: The State shall provide social justice in all phases
of national development. Further, Article XIII, Section 11, provides: The
State shall adopt an integrated and comprehensive approach to health
development which shall endeavor to make essential goods, health and
other social services available to all the people at affordable cost. There
shall be priority for the needs of the underprivileged sick, elderly, disabled,
women and children. Consonant with these constitutional principles the
following are the declared policies of this Act:
...
(f) To recognize the important role of the private sector in the

improvement of the welfare of senior citizens and to actively seek
their partnership.[21]
To implement the above policy, the law grants a twenty percent discount to
senior citizens for medical and dental services, and diagnostic and
laboratory fees; admission fees charged by theaters, concert halls,
circuses, carnivals, and other similar places of culture, leisure and
amusement; fares for domestic land, air and sea travel; utilization of
services in hotels and similar lodging establishments, restaurants and
recreation centers; and purchases of medicines for the exclusive use or
enjoyment of senior citizens. As a form of reimbursement, the law provides
that business establishments extending the twenty percent discount to
senior citizens may claim the discount as a tax deduction.
The law is a legitimate exercise of police power which, similar to the power
of eminent domain, has general welfare for its object. Police power is not
capable of an exact definition, but has been purposely veiled in general
terms to underscore its comprehensiveness to meet all exigencies and
provide enough room for an efficient and flexible response to conditions
and circumstances, thus assuring the greatest benefits. [22] Accordingly, it
has been described as the most essential, insistent and the least limitable
of powers, extending as it does to all the great public needs.[23] It is [t]he
power vested in the legislature by the constitution to make, ordain, and
establish all manner of wholesome and reasonable laws, statutes, and
ordinances, either with penalties or without, not repugnant to the
constitution, as they shall judge to be for the good and welfare of the
commonwealth, and of the subjects of the same.[24]
For this reason, when the conditions so demand as determined by the

legislature, property rights must bow to the primacy of police power
because property rights, though sheltered by due process, must yield to
general welfare.[25]
Police power as an attribute to promote the common good would be diluted

considerably if on the mere plea of petitioners that they will suffer loss of
earnings and capital, the questioned provision is invalidated. Moreover, in
the absence of evidence demonstrating the alleged confiscatory effect of
the provision in question, there is no basis for its nullification in view of the
presumption of validity which every law has in its favor.[26]
Given these, it is incorrect for petitioners to insist that the grant of the
senior citizen discount is unduly oppressive to their business, because
petitioners have not taken time to calculate correctly and come up with a
financial report, so that they have not been able to show properly whether
or not the tax deduction scheme really works greatly to their
disadvantage.[27]
In treating the discount as a tax deduction, petitioners insist that they will
incur losses because, referring to the DOF Opinion, for every P1.00 senior
citizen discount that petitioners would give, P0.68 will be shouldered by
them as only P0.32 will be refunded by the government by way of a tax
deduction.
To illustrate this point, petitioner Carlos Super Drug cited the anti-
hypertensive maintenance drug Norvasc as an example. According to the
latter, it acquires Norvasc from the distributors at P37.57 per tablet, and
retails it at P39.60 (or at a margin of 5%). If it grants a 20% discount to
senior citizens or an amount equivalent to P7.92, then it would have to
sell Norvasc at P31.68 which translates to a loss from capital of P5.89 per
tablet. Even if the government will allow a tax deduction, only P2.53 per
tablet will be refunded and not the full amount of the discount which
is P7.92. In short, only 32% of the 20% discount will be reimbursed to the
drugstores.[28]
Petitioners computation is flawed. For purposes of reimbursement, the law

states that the cost of the discount shall be deducted from gross
income,[29] the amount of income derived from all sources before deducting
allowable expenses, which will result in net income. Here, petitioners tried
to show a loss on a per transaction basis, which should not be the case. An
income statement, showing an accounting of petitioners sales, expenses,
and net profit (or loss) for a given period could have accurately reflected
the effect of the discount on their income. Absent any financial statement,
petitioners cannot substantiate their claim that they will be operating at a
loss should they give the discount. In addition, the computation was
erroneously based on the assumption that their customers consisted wholly
of senior citizens. Lastly, the 32% tax rate is to be imposed on income, not
on the amount of the discount.
Furthermore, it is unfair for petitioners to criticize the law because they

cannot raise the prices of their medicines given the cutthroat nature of the
players in the industry. It is a business decision on the part of petitioners to
peg the mark-up at 5%. Selling the medicines below acquisition cost, as
alleged by petitioners, is merely a result of this decision. Inasmuch as
pricing is a property right, petitioners cannot reproach the law for being
oppressive, simply because they cannot afford to raise their prices for fear
of losing their customers to competition.
The Court is not oblivious of the retail side of the pharmaceutical industry
and the competitive pricing component of the business. While the
Constitution protects property rights, petitioners must accept the realities of
business and the State, in the exercise of police power, can intervene in
the operations of a business which may result in an impairment of property
rights in the process.
Moreover, the right to property has a social dimension. While Article XIII of
the Constitution provides the precept for the protection of property, various
laws and jurisprudence, particularly on agrarian reform and the regulation
of contracts and public utilities, continuously serve as a reminder that the
right to property can be relinquished upon the command of the State for the
promotion of public good.[30]
Undeniably, the success of the senior citizens program rests largely on the
support imparted by petitioners and the other private establishments
concerned. This being the case, the means employed in invoking the active
participation of the private sector, in order to achieve the purpose or
objective of the law, is reasonably and directly related. Without sufficient
proof that Section 4(a) of R.A. No. 9257 is arbitrary, and that the continued
implementation of the same would be unconscionably detrimental to
petitioners, the Court will refrain from quashing a legislative act.[31]
WHEREFORE, the petition is DISMISSED for lack of merit.
No costs.
SO ORDERED.
G.R. No. 161107 March 12, 2013
HON. MA. LOURDES C. FERNANDO, in her capacity as City Mayor of

Marikina City, JOSEPHINE C. EVANGELIST A, in her capacity as
Chief, Permit Division, Office of the City Engineer, and ALFONSO
ESPIRITU, in his capacity as City Engineer of Marikina
City, Petitioners,
vs.
ST. SCHOLASTICA'S COLLEGE and ST. SCHOLASTICA'S ACADEMY-
MARIKINA, INC., Respondents.
DECISION
MENDOZA, J.:
Before this Court is a petition for review on certiorari under Rule 45 of the
Rules of Court, which seeks to set aside the December 1, 2003
Decision1 of the Court of Appeals (CA) in CA-G.R. SP No. 75691.
The Facts
Respondents St. Scholastica’s College (SSC) and St. Scholastica’s

Academy-Marikina, Inc. (SSA-Marikina) are educational institutions
organized under the laws of the Republic of the Philippines, with principal
offices and business addresses at Leon Guinto Street, Malate, Manila, and
at West Drive, Marikina Heights, Marikina City, respectively.2
Respondent SSC is the owner of four (4) parcels of land measuring a total
of 56,306.80 square meters, located in Marikina Heights and covered by
Transfer Certificate Title (TCT) No. 91537. Located within the property are
SSA-Marikina, the residence of the sisters of the Benedictine Order, the
formation house of the novices, and the retirement house for the elderly
sisters. The property is enclosed by a tall concrete perimeter fence built
some thirty (30) years ago. Abutting the fence along the West Drive are
buildings, facilities, and other improvements.3
The petitioners are the officials of the City Government of Marikina. On

September 30, 1994, the Sangguniang Panlungsod of Marikina City
enacted Ordinance No. 192,4 entitled "Regulating the Construction of
Fences and Walls in the Municipality of Marikina." In 1995 and 1998,
Ordinance Nos. 2175 and 2006 were enacted to amend Sections 7 and 5,
respectively. Ordinance No. 192, as amended, is reproduced hereunder, as
follows:
ORDINANCE No. 192

Series of 1994
ORDINANCE REGULATING THE CONSTRUCTION OF FENCES AND

WALLS IN THE MUNICIPALITY OF MARIKINA
WHEREAS, under Section 447.2 of Republic Act No. 7160 otherwise

known as the Local Government Code of 1991 empowers the Sangguniang
Bayan as the local legislative body of the municipality to "x x x Prescribe
reasonable limits and restraints on the use of property within the jurisdiction
of the municipality, x x x";
WHEREAS the effort of the municipality to accelerate its economic and

physical development, coupled with urbanization and modernization,
makes imperative the adoption of an ordinance which shall embody up-to-
date and modern technical design in the construction of fences of
residential, commercial and industrial buildings;
WHEREAS, Presidential Decree No. 1096, otherwise known as the
National Building Code of the Philippines, does not adequately provide
technical guidelines for the construction of fences, in terms of design,
construction, and criteria;
WHEREAS, the adoption of such technical standards shall provide more

efficient and effective enforcement of laws on public safety and security;
WHEREAS, it has occurred in not just a few occasions that high fences or
walls did not actually discourage but, in fact, even protected burglars,
robbers, and other lawless elements from the view of outsiders once they
have gained ingress into these walls, hence, fences not necessarily
providing security, but becomes itself a "security problem";
WHEREAS, to discourage, suppress or prevent the concealment of

prohibited or unlawful acts earlier enumerated, and as guardian of the
people of Marikina, the municipal government seeks to enact and
implement rules and ordinances to protect and promote the health, safety
and morals of its constituents;
WHEREAS, consistent too, with the "Clean and Green Program" of the
government, lowering of fences and walls shall encourage people to plant
more trees and ornamental plants in their yards, and when visible, such
trees and ornamental plants are expected to create an aura of a clean,
green and beautiful environment for Marikeños;
WHEREAS, high fences are unsightly that, in the past, people planted on
sidewalks to "beautify" the façade of their residences but, however,
become hazards and obstructions to pedestrians;
WHEREAS, high and solid walls as fences are considered "un-neighborly"

preventing community members to easily communicate and socialize and
deemed to create "boxed-in" mentality among the populace;
WHEREAS, to gather as wide-range of opinions and comments on this

proposal, and as a requirement of the Local Government Code of 1991
(R.A. 7160), the Sangguniang Bayan of Marikina invited presidents or
officers of homeowners associations, and commercial and industrial
establishments in Marikina to two public hearings held on July 28, 1994
and August 25, 1994;
WHEREAS, the rationale and mechanics of the proposed ordinance were

fully presented to the attendees and no vehement objection was presented
to the municipal government;
NOW, THEREFORE, BE IT ORDAINED BY THE SANGGUINANG BAYAN

OF MARIKINA IN SESSION DULY ASSEMBLED:
Section 1. Coverage: This Ordinance regulates the construction of all

fences, walls and gates on lots classified or used for residential,
commercial, industrial, or special purposes.
Section 2. Definition of Terms:
a. Front Yard – refers to the area of the lot fronting a street, alley or public
thoroughfare.
b. Back Yard – the part of the lot at the rear of the structure constructed
therein.
c. Open fence – type of fence which allows a view of "thru-see" of the inner
yard and the improvements therein. (Examples: wrought iron, wooden
lattice, cyclone wire)
d. Front gate – refers to the gate which serves as a passage of persons or

vehicles fronting a street, alley, or public thoroughfare.
Section 3. The standard height of fences or walls allowed under this

ordinance are as follows:
(1) Fences on the front yard – shall be no more than one (1) meter in
height. Fences in excess of one (1) meter shall be of an open fence type, at
least eighty percent (80%) see-thru; and
(2) Fences on the side and back yard – shall be in accordance with the
provisions of P.D. 1096 otherwise known as the National Building Code.
Section 4. No fence of any kind shall be allowed in areas specifically
reserved or classified as parks.
Section 5. In no case shall walls and fences be built within the five (5)
meter parking area allowance located between the front monument line and
the building line of commercial and industrial establishments and
educational and religious institutions.7
Section 6. Exemption.
(1) The Ordinance does not cover perimeter walls of residential

subdivisions.
(2) When public safety or public welfare requires, the Sangguniang Bayan
may allow the construction and/or maintenance of walls higher than as
prescribed herein and shall issue a special permit or exemption.
Section 7. Transitory Provision. Real property owners whose existing

fences and walls do not conform to the specifications herein are allowed
adequate period of time from the passage of this Ordinance within which to
conform, as follows:
(1) Residential houses – eight (8) years
(2) Commercial establishments – five (5) years
(3) Industrial establishments – three (3) years
(4) Educational institutions – five (5) years8 (public and privately owned)
Section 8. Penalty. Walls found not conforming to the provisions of this

Ordinance shall be demolished by the municipal government at the
expense of the owner of the lot or structure.
Section 9. The Municipal Engineering Office is tasked to strictly implement

this ordinance, including the issuance of the necessary implementing
guidelines, issuance of building and fencing permits, and demolition of non-
conforming walls at the lapse of the grace period herein provided.
Section 10. Repealing Clause. All existing Ordinances and Resolutions,
Rules and Regulations inconsistent with the foregoing provisions are
hereby repealed, amended or modified.
Section 11. Separability Clause. If for any reason or reasons, local

executive orders, rules and regulations or parts thereof in conflict with this
Ordinance are hereby repealed and/or modified accordingly.
Section 12. Effectivity. This ordinance takes effect after publication.
APPROVED: September 30, 1994
(Emphases supplied)
On April 2, 2000, the City Government of Marikina sent a letter to the

respondents ordering them to demolish and replace the fence of their
Marikina property to make it 80% see-thru, and, at the same time, to move
it back about six (6) meters to provide parking space for vehicles to
park.9 On April 26, 2000, the respondents requested for an extension of
time to comply with the directive.10 In response, the petitioners, through
then City Mayor Bayani F. Fernando, insisted on the enforcement of the
subject ordinance.
Not in conformity, the respondents filed a petition for prohibition with an

application for a writ of preliminary injunction and temporary restraining
order before the Regional Trial Court, Marikina, Branch 273 (RTC),
docketed as SCA Case No. 2000-381-MK.11
The respondents argued that the petitioners were acting in excess of

jurisdiction in enforcing Ordinance No. 192, asserting that such
contravenes Section 1, Article III of the 1987 Constitution. That demolishing
their fence and constructing it six (6) meters back would result in the loss of
at least 1,808.34 square meters, worth about ₱9,041,700.00, along West
Drive, and at least 1,954.02 square meters, worth roughly ₱9,770,100.00,
along East Drive. It would also result in the destruction of the garbage
house, covered walk, electric house, storage house, comfort rooms,
guards’ room, guards’ post, waiting area for visitors, waiting area for
students, Blessed Virgin Shrine, P.E. area, and the multi-purpose hall,
resulting in the permanent loss of their beneficial use. The respondents,
thus, asserted that the implementation of the ordinance on their property
would be tantamount to an appropriation of property without due process of
law; and that the petitioners could only appropriate a portion of their
property through eminent domain. They also pointed out that the goal of the
provisions to deter lawless elements and criminality did not exist as the
solid concrete walls of the school had served as sufficient protection for
many years.12
The petitioners, on the other hand, countered that the ordinance was a
valid exercise of police power, by virtue of which, they could restrain
property rights for the protection of public safety, health, morals, or the
promotion of public convenience and general prosperity.13
On June 30, 2000, the RTC issued a writ of preliminary injunction, enjoining
the petitioners from implementing the demolition of the fence at SSC’s
Marikina property.14
Ruling of the RTC
On the merits, the RTC rendered a Decision,15 dated October 2, 2002,

granting the petition and ordering the issuance of a writ of prohibition
commanding the petitioners to permanently desist from enforcing or
implementing Ordinance No. 192 on the respondents’ property.
The RTC agreed with the respondents that the order of the petitioners to
demolish the fence at the SSC property in Marikina and to move it back six
(6) meters would amount to an appropriation of property which could only
be done through the exercise of eminent domain. It held that the petitioners
could not take the respondents’ property under the guise of police power to
evade the payment of just compensation.
It did not give weight to the petitioners’ contention that the parking space
was for the benefit of the students and patrons of SSA-Marikina,
considering that the respondents were already providing for sufficient
parking in compliance with the standards under Rule XIX of the National
Building Code.
It further found that the 80% see-thru fence requirement could run counter
to the respondents’ right to privacy, considering that the property also
served as a residence of the Benedictine sisters, who were entitled to some
sense of privacy in their affairs. It also found that the respondents were
able to prove that the danger to security had no basis in their case.
Moreover, it held that the purpose of beautification could not be used to
justify the exercise of police power.
It also observed that Section 7 of Ordinance No. 192, as amended,

provided for retroactive application. It held, however, that such retroactive
effect should not impair the respondents’ vested substantive rights over the
perimeter walls, the six-meter strips of land along the walls, and the
building, structures, facilities, and improvements, which would be destroyed
by the demolition of the walls and the seizure of the strips of land.
The RTC also found untenable the petitioners’ argument that Ordinance
No. 192 was a remedial or curative statute intended to correct the defects
of buildings and structures, which were brought about by the absence or
insufficiency of laws. It ruled that the assailed ordinance was neither
remedial nor curative in nature, considering that at the time the
respondents’ perimeter wall was built, the same was valid and legal, and
the ordinance did not refer to any previous legislation that it sought to
correct.
The RTC noted that the petitioners could still take action to expropriate the
subject property through eminent domain.
The RTC, thus, disposed:
WHEREFORE, the petition is GRANTED. The writ of prohibition is hereby

issued commanding the respondents to permanently desist from enforcing
or implementing Ordinance No. 192, Series of 1994, as amended, on
petitioners’ property in question located at Marikina Heights, Marikina,
Metro Manila.
No pronouncement as to costs.
SO ORDERED.16
Ruling of the CA
In its December 1, 2003 Decision, the CA dismissed the petitioners’ appeal

and affirmed the RTC decision.
The CA reasoned out that the objectives stated in Ordinance No. 192 did
not justify the exercise of police power, as it did not only seek to regulate,
but also involved the taking of the respondents’ property without due
process of law. The respondents were bound to lose an unquantifiable
sense of security, the beneficial use of their structures, and a total of
3,762.36 square meters of property. It, thus, ruled that the assailed
ordinance could not be upheld as valid as it clearly invaded the personal
and property rights of the respondents and "[f]or being unreasonable, and
undue restraint of trade."17
It noted that although the petitioners complied with procedural due process
in enacting Ordinance No. 192, they failed to comply with substantive due
process. Hence, the failure of the respondents to attend the public hearings
in order to raise objections did not amount to a waiver of their right to
question the validity of the ordinance.
The CA also shot down the argument that the five-meter setback provision
for parking was a legal easement, the use and ownership of which would
remain with, and inure to, the benefit of the respondents for whom the
easement was primarily intended. It found that the real intent of the setback
provision was to make the parking space free for use by the public,
considering that such would cease to be for the exclusive use of the school
and its students as it would be situated outside school premises and
beyond the school administration’s control.
In affirming the RTC ruling that the ordinance was not a curative statute,
the CA found that the petitioner failed to point out any irregularity or
invalidity in the provisions of the National Building Code that required
correction or cure. It noted that any correction in the Code should be
properly undertaken by the Congress and not by the City Council of
Marikina through an ordinance.
The CA, thus, disposed:
WHEREFORE, all foregoing premises considered, the instant appeal is

DENIED.1âwphi1 The October 2, 2002 Decision and the January 13, 2003
Order of the Regional Trial Court (RTC) of Marikina City, Branch 273,
granting petitioners-appellees’ petition for Prohibition in SCA Case No.
2000-381-MK are hereby AFFIRMED.
SO ORDERED.18
Aggrieved by the decision of the CA, the petitioners are now before this
Court presenting the following
ASSIGNMENT OF ERRORS
1. WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED

IN DECLARING THAT CITY ORDINANCE NO. 192, SERIES OF 1994 IS
NOT A VALID EXERCISE OF POLICE POWER;

IN RULING THAT THE AFOREMENTIONED ORDINANCE IS AN
EXERCISE OF THE CITY OF THE POWER OF EMINENT DOMAIN;

IN DECLARING THAT THE CITY VIOLATED THE DUE PROCESS
CLAUSE IN IMPLEMENTING ORDINANCE NO. 192, SERIES OF 1994;
AND

IN RULING THAT THE ABOVE-MENTIONED ORDINANCE CANNOT BE
GIVEN RETROACTIVE APPLICATION.19
In this case, the petitioners admit that Section 5 of the assailed ordinance,
pertaining to the five-meter setback requirement is, as held by the lower
courts, invalid.20 Nonetheless, the petitioners argue that such invalidity was
subsequently cured by Zoning Ordinance No. 303, series of 2000. They
also contend that Section 3, relating to the 80% see-thru fence
requirement, must be complied with, as it remains to be valid.
Ruling of the Court
The ultimate question before the Court is whether Sections 3.1 and 5 of
Ordinance No. 192 are valid exercises of police power by the City
Government of Marikina.
"Police power is the plenary power vested in the legislature to make

statutes and ordinances to promote the health, morals, peace, education,
good order or safety and general welfare of the people."21 The State,
through the legislature, has delegated the exercise of police power to local
government units, as agencies of the State. This delegation of police power
is embodied in Section 1622 of the Local Government Code of 1991 (R.A.
No. 7160), known as the General Welfare Clause,23 which has two
branches. "The first, known as the general legislative power, authorizes the
municipal council to enact ordinances and make regulations not repugnant
to law, as may be necessary to carry into effect and discharge the powers
and duties conferred upon the municipal council by law. The second,
known as the police power proper, authorizes the municipality to enact
ordinances as may be necessary and proper for the health and safety,
prosperity, morals, peace, good order, comfort, and convenience of the
municipality and its inhabitants, and for the protection of their property."24
White Light Corporation v. City of Manila,25 discusses the test of a valid

ordinance:
The test of a valid ordinance is well established. A long line of decisions

including City of Manila has held that for an ordinance to be valid, it must
not only be within the corporate powers of the local government unit to
enact and pass according to the procedure prescribed by law, it must also
conform to the following substantive requirements: (1) must not contravene
the
Constitution or any statute; (2) must not be unfair or oppressive; (3) must
not be partial or discriminatory; (4) must not prohibit but may regulate trade;
(5) must be general and consistent with public policy; and (6) must not be
unreasonable.26
Ordinance No. 192 was passed by the City Council of Marikina in the
apparent exercise of its police power. To successfully invoke the exercise
of police power as the rationale for the enactment of an ordinance and to
free it from the imputation of constitutional infirmity, two tests have been
used by the Court – the rational relationship test and the strict scrutiny test:
We ourselves have often applied the rational basis test mainly in analysis
of equal protection challenges. Using the rational basis examination, laws
or ordinances are upheld if they rationally further a legitimate governmental
interest. Under intermediate review, governmental interest is extensively
examined and the availability of less restrictive measures is considered.
Applying strict scrutiny, the focus is on the presence of compelling, rather
than substantial, governmental interest and on the absence of less
restrictive means for achieving that interest.27
Even without going to a discussion of the strict scrutiny test, Ordinance No.
192, series of 1994 must be struck down for not being reasonably
necessary to accomplish the City’s purpose. More importantly, it is
oppressive of private rights.
Under the rational relationship test, an ordinance must pass the following
requisites as discussed in Social Justice Society (SJS) v. Atienza, Jr.: 28
As with the State, local governments may be considered as having properly

exercised their police power only if the following requisites are met: (1) the
interests of the public generally, as distinguished from those of a particular
class, require its exercise and (2) the means employed are reasonably
necessary for the accomplishment of the purpose and not unduly
oppressive upon individuals. In short, there must be a concurrence of a
lawful subject and lawful method.29
Lacking a concurrence of these two requisites, the police power measure

shall be struck down as an arbitrary intrusion into private rights and a
violation of the due process clause.30
Section 3.1 and 5 of the assailed ordinance are pertinent to the issue at
hand, to wit:
Section 3. The standard height of fences of walls allowed under this
ordinance are as follows:
(1) Fences on the front yard – shall be no more than one (1) meter in
height. Fences in excess of one (1) meter shall be an open fence type, at
least eighty percent (80%) see-thru;
xxx xxx xxx
Section 5. In no case shall walls and fences be built within the five (5)
meter parking area allowance located between the front monument line and
the building line of commercial and industrial establishments and
educational and religious institutions.
The respondents, thus, sought to prohibit the petitioners from requiring

them to (1) demolish their existing concrete wall, (2) build a fence (in
excess of one meter) which must be 80% see-thru, and (3) build the said
fence six meters back in order to provide a parking area.
Setback Requirement
The Court first turns its attention to Section 5 which requires the five-meter
setback of the fence to provide for a parking area. The petitioners initially
argued that the ownership of the parking area to be created would remain
with the respondents as it would primarily be for the use of its students and
faculty, and that its use by the public on non-school days would only be
incidental. In their Reply, however, the petitioners admitted that Section 5
was, in fact, invalid for being repugnant to the Constitution.31
The Court agrees with the latter position.
The Court joins the CA in finding that the real intent of the setback
requirement was to make the parking space free for use by the public,
considering that it would no longer be for the exclusive use of the
respondents as it would also be available for use by the general public.
Section 9 of Article III of the 1987 Constitution, a provision on eminent
domain, provides that private property shall not be taken for public use
without just compensation.
The petitioners cannot justify the setback by arguing that the ownership of
the property will continue to remain with the respondents. It is a settled rule
that neither the acquisition of title nor the total destruction of value is
essential to taking. In fact, it is usually in cases where the title remains with
the private owner that inquiry should be made to determine whether the
impairment of a property is merely regulated or amounts to a compensable
taking.32 The Court is of the view that the implementation of the setback
requirement would be tantamount to a taking of a total of 3,762.36 square
meters of the respondents’ private property for public use without just
compensation, in contravention to the Constitution.
Anent the objectives of prevention of concealment of unlawful acts and "un-

neighborliness," it is obvious that providing for a parking area has no logical
connection to, and is not reasonably necessary for, the accomplishment of
these goals.
Regarding the beautification purpose of the setback requirement, it has

long been settled that the State may not, under the guise of police power,
permanently divest owners of the beneficial use of their property solely to
preserve or enhance the aesthetic appearance of the community.33 The
Court, thus, finds Section 5 to be unreasonable and oppressive as it will
substantially divest the respondents of the beneficial use of their property
solely for aesthetic purposes. Accordingly, Section 5 of Ordinance No. 192
is invalid.
The petitioners, however, argue that the invalidity of Section 5 was properly
cured by Zoning Ordinance No. 303,34Series of 2000, which classified the
respondents’ property to be within an institutional zone, under which a five-
meter setback has been required.
The petitioners are mistaken. Ordinance No. 303, Series of 2000, has no
bearing to the case at hand.
The Court notes with displeasure that this argument was only raised for the
first time on appeal in this Court in the petitioners’ Reply. Considering that
Ordinance No. 303 was enacted on December 20, 2000, the petitioners
could very well have raised it in their defense before the RTC in 2002. The
settled rule in this jurisdiction is that a party cannot change the legal theory
of this case under which the controversy was heard and decided in the trial
court. It should be the same theory under which the review on appeal is
conducted. Points of law, theories, issues, and arguments not adequately
brought to the attention of the lower court will not be ordinarily considered
by a reviewing court, inasmuch as they cannot be raised for the first time
on appeal. This will be offensive to the basic rules of fair play, justice, and
due process.35
Furthermore, the two ordinances have completely different purposes and

subjects. Ordinance No. 192 aims to regulate the construction of fences,
while Ordinance No. 303 is a zoning ordinance which classifies the city into
specific land uses. In fact, the five-meter setback required by Ordinance
No. 303 does not even appear to be for the purpose of providing a parking
area.
By no stretch of the imagination, therefore, can Ordinance No. 303, "cure"

Section 5 of Ordinance No. 192.
In any case, the clear subject of the petition for prohibition filed by the
respondents is Ordinance No. 192 and, as such, the precise issue to be
determined is whether the petitioners can be prohibited from enforcing the
said ordinance, and no other, against the respondents.
80% See-Thru Fence Requirement
The petitioners argue that while Section 5 of Ordinance No. 192 may be
invalid, Section 3.1 limiting the height of fences to one meter and requiring
fences in excess of one meter to be at least 80% see-thru, should remain
valid and enforceable against the respondents.
The Court cannot accommodate the petitioner.
For Section 3.1 to pass the rational relationship test, the petitioners must
show the reasonable relation between the purpose of the police power
measure and the means employed for its accomplishment, for even under
the guise of protecting the public interest, personal rights and those
pertaining to private property will not be permitted to be arbitrarily
invaded.36
The principal purpose of Section 3.1 is "to discourage, suppress or prevent

the concealment of prohibited or unlawful acts." The ultimate goal of this
objective is clearly the prevention of crime to ensure public safety and
security. The means employed by the petitioners, however, is not
reasonably necessary for the accomplishment of this purpose and is unduly
oppressive to private rights. The petitioners have not adequately shown,
and it does not appear obvious to this Court, that an 80% see-thru fence
would provide better protection and a higher level of security, or serve as a
more satisfactory criminal deterrent, than a tall solid concrete wall. It may
even be argued that such exposed premises could entice and tempt would-
be criminals to the property, and that a see-thru fence would be easier to
bypass and breach. It also appears that the respondents’ concrete wall has
served as more than sufficient protection over the last 40 years. `
As to the beautification purpose of the assailed ordinance, as previously

discussed, the State may not, under the guise of police power, infringe on
private rights solely for the sake of the aesthetic appearance of the
community. Similarly, the Court cannot perceive how a see-thru fence will
foster "neighborliness" between members of a community.
Compelling the respondents to construct their fence in accordance with the

assailed ordinance is, thus, a clear encroachment on their right to property,
which necessarily includes their right to decide how best to protect their
property.
It also appears that requiring the exposure of their property via a see-thru
fence is violative of their right to privacy, considering that the residence of
the Benedictine nuns is also located within the property. The right to
privacy has long been considered a fundamental right guaranteed by the
Constitution that must be protected from intrusion or constraint. The right to
privacy is essentially the right to be let alone,37 as governmental powers
should stop short of certain intrusions into the personal life of its
citizens.38 It is inherent in the concept of liberty, enshrined in the Bill of
Rights (Article III) in Sections 1, 2, 3(1), 6, 8, and 17, Article III of the 1987
Constitution.39
The enforcement of Section 3.1 would, therefore, result in an undue

interference with the respondents’ rights to property and privacy. Section
3.1 of Ordinance No. 192 is, thus, also invalid and cannot be enforced
against the respondents.
No Retroactivity
Ordinance No. 217 amended Section 7 of Ordinance No. 192 by including

the regulation of educational institutions which was unintentionally omitted,
and giving said educational institutions five (5) years from the passage of
Ordinance No. 192 (and not Ordinance No. 217) to conform to its
provisions.40 The petitioners argued that the amendment could be
retroactively applied because the assailed ordinance is a curative statute
which is retroactive in nature.
Considering that Sections 3.1 and 5 of Ordinance No. 192 cannot be

enforced against the respondents, it is no longer necessary to rule on the
issue of retroactivity. The Court shall, nevertheless, pass upon the issue for
the sake of clarity.
"Curative statutes are enacted to cure defects in a prior law or to validate

legal proceedings which would otherwise be void for want of conformity
with certain legal requirements. They are intended to supply defects,
abridge superfluities and curb certain evils. They are intended to enable
persons to carry into effect that which they have designed or intended, but
has failed of expected legal consequence by reason of some statutory
disability or irregularity in their own action. They make valid that which,
before the enactment of the statute was invalid. Their purpose is to give
validity to acts done that would have been invalid under existing laws, as if
existing laws have been complied with. Curative statutes, therefore, by their
very essence, are retroactive."41
The petitioners argue that Ordinance No. 192 is a curative statute as it

aims to correct or cure a defect in the National Building Code, namely, its
failure to provide for adequate guidelines for the construction of fences.
They ultimately seek to remedy an insufficiency in the law. In aiming to cure
this insufficiency, the petitioners attempt to add lacking provisions to the
National Building Code. This is not what is contemplated by curative
statutes, which intend to correct irregularities or invalidity in the law. The
petitioners fail to point out any irregular or invalid provision. As such, the
assailed ordinance cannot qualify as curative and retroactive in nature.
At any rate, there appears to be no insufficiency in the National Building

Code with respect to parking provisions in relation to the issue of the
respondents. Paragraph 1.16.1, Rule XIX of the Rules and Regulations of
the said code requires an educational institution to provide one parking slot
for every ten classrooms. As found by the lower courts, the respondents
provide a total of 76 parking slots for their 80 classrooms and, thus, had
more than sufficiently complied with the law.
Ordinance No. 192, as amended, is, therefore, not a curative statute which
may be applied retroactively.
Separability
Sections 3.1 and 5 of Ordinance No. 192, as amended, are, thus, invalid
and cannot be enforced against the respondents. Nonetheless, "the
general rule is that where part of a statute is void as repugnant to the
Constitution, while another part is valid, the valid portion, if susceptible to
being separated from the invalid, may stand and be enforced."42 Thus, the
other sections of the assailed ordinance remain valid and enforceable.
Conclusion
Considering the invalidity of Sections 3.1 and 5, it is clear that the

petitioners were acting in excess of their jurisdiction in enforcing Ordinance
No. 192 against the respondents. The CA was correct in affirming the
decision of the RTC in issuing the writ of prohibition. The petitioners must
permanently desist from enforcing Sections 3.1 and 5 of the assailed
ordinance on the respondents' property in Marikina City.
WHEREFORE, the petition is DENIED. The October 2, 2002 Decision of
the Regional Trial Court in SCA Case No. 2000-381-MK is AFFIRMED but
MODIFIED to read as follows:
WHEREFORE, the petition is GRANTED. The writ of prohibition is hereby

issued commanding the respondents to permanently desist from enforcing
or implementing Sections 3.1 and 5 of Ordinance No. 192, Series of 1994,
as amended, on the petitioners' property in question located in Marikina
Heights, Marikina, Metro Manila.
SO ORDERED.
G.R. No. 184203, November 26, 2014
CITY OF LAPU-LAPU, Petitioner, v. PHILIPPINE ECONOMIC ZONE

AUTHORITY, Respondent.
G.R. NO. 187583
PROVINCE OF BATAAN, REPRESENTED BY GOVERNOR ENRIQUE T.

GARCIA, JR., AND EMERLINDA S. TALENTO, IN HER CAPACITY AS
PROVINCIAL TREASURER OF BATAAN, Petitioners, v. PHILIPPINE
ECONOMIC ZONE AUTHORITY, Respondent.
DECISION
LEONEN, J.:
The Philippine Economic Zone Authority is exempt from payment of real

property taxes.
These are consolidated1 petitions for review on certiorari the City of Lapu-
Lapu and the Province of Bataan separately filed against the Philippine
Economic Zone Authority (PEZA).
In G.R. No. 184203, the City of Lapu-Lapu (the City) assails the Court of
Appeals’ decision2 dated January 11, 2008 and resolution3 dated August 6,
2008, dismissing the City’s appeal for being the wrong mode of appeal.
The City appealed the Regional Trial Court, Branch 111, Pasay City’s
decision finding the PEZA exempt from payment of real property taxes.
In G.R. No. 187583, the Province of Bataan (the Province) assails the
Court of Appeals’ decision4 dated August 27, 2008 and resolution5 dated
April 16, 2009, granting the PEZA’s petition for certiorari. The Court of
Appeals ruled that the Regional Trial Court, Branch 115, Pasay City gravely
abused its discretion in finding the PEZA liable for real property taxes to the
Province of Bataan.
Facts common to the consolidated petitions
In the exercise of his legislative powers,6 President Ferdinand E. Marcos

issued Presidential Decree No. 66 in 1972, declaring as government policy
the establishment of export processing zones in strategic locations in the
Philippines. Presidential Decree No. 66 aimed “to encourage and promote
foreign commerce as a means of making the Philippines a center of
international trade, of strengthening our export trade and foreign exchange
position, of hastening industrialization, of reducing domestic
unemployment, and of accelerating the development of the
country.”7chanRoblesvirtualLawlibrary
To carry out this policy, the Export Processing Zone Authority (EPZA) was
created to operate, administer, and manage the export processing zones
established in the Port of Mariveles, Bataan8 and such other export
processing zones that may be created by virtue of the
decree.9chanRoblesvirtualLawlibrary
The decree declared the EPZA non-profit in character10 with all its
revenues devoted to its development, improvement, and maintenance.11
To maintain this non-profit character, the EPZA was declared exempt from
all taxes that may be due to the Republic of the Philippines, its provinces,
cities, municipalities, and other government agencies and
instrumentalities.12 Specifically, Section 21 of Presidential Decree No. 66
declared the EPZA exempt from payment of real property
taxes:chanroblesvirtuallawlibrary
Section 21. Non-profit Character of the Authority; Exemption from

Taxes. The Authority shall be non-profit and shall devote and use all its
returns from its capital investment, as well as excess revenues from its
operations, for the development, improvement and maintenance and other
related expenditures of the Authority to pay its indebtedness and
obligations and in furtherance and effective implementation of the policy
enunciated in Section 1 of this Decree. In consonance therewith, the
Authority is hereby declared exempt:ChanRoblesVirtualawlibrary
....
(b) From all income taxes, franchise taxes, realty taxes and all other kinds
of taxes and licenses to be paid to the National Government, its provinces,
cities, municipalities and other government agencies and
instrumentalities[.]
In 1979, President Marcos issued Proclamation No. 1811, establishing the

Mactan Export Processing Zone. Certain parcels of land of the public
domain located in the City of Lapu-Lapu in Mactan, Cebu were reserved to
serve as site of the Mactan Export Processing Zone.
In 1995, the PEZA was created by virtue of Republic Act No. 7916 or “the
Special Economic Zone Act of 1995”13 to operate, administer, manage, and
develop economic zones in the country.14 The PEZA was granted the
power to register, regulate, and supervise the enterprises located in the
economic zones.15 By virtue of the law, the export processing zone in
Mariveles, Bataan became the Bataan Economic Zone16 and the Mactan
Export Processing Zone the Mactan Economic
Zone.17chanRoblesvirtualLawlibrary
As for the EPZA, the law required it to “evolve into the PEZA in accordance
with the guidelines and regulations set forth in an executive order issued for
[the] purpose.”18chanRoblesvirtualLawlibrary
On October 30, 1995, President Fidel V. Ramos issued Executive Order

No. 282, directing the PEZA to assume and exercise all of the EPZA’s
powers, functions, and responsibilities “as provided in Presidential Decree
No. 66, as amended, insofar as they are not inconsistent with the powers,
functions, and responsibilities of the PEZA, as mandated under [the Special
Economic Zone Act of 1995].”19 All of EPZA’s properties, equipment, and
assets, among others, were ordered transferred to the
PEZA.20chanRoblesvirtualLawlibrary
Facts of G.R. No. 184203
In the letter21 dated March 25, 1998, the City of Lapu-Lapu, through the
Office of the Treasurer, demanded from the PEZA ?32,912,350.08 in real
property taxes for the period from 1992 to 1998 on the PEZA’s properties
located in the Mactan Economic Zone.
The City reiterated its demand in the letter22 dated May 21, 1998. It cited
Sections 193 and 234 of the Local Government Code of 1991 that withdrew
the real property tax exemptions previously granted to or presently enjoyed
by all persons. The City pointed out that no provision in the Special
Economic Zone Act of 1995 specifically exempted the PEZA from payment
of real property taxes, unlike Section 21 of Presidential Decree No. 66 that
explicitly provided for EPZA’s exemption. Since no legal provision explicitly
exempted the PEZA from payment of real property taxes, the City argued
that it can tax the PEZA.
The City made subsequent demands23 on the PEZA. In its last

reminder24 dated May 13, 2002, the City assessed the PEZA
?86,843,503.48 as real property taxes for the period from 1992 to 2002.
On September 11, 2002, the PEZA filed a petition for declaratory

relief25 with the Regional Trial Court of Pasay City, praying that the trial
court declare it exempt from payment of real property taxes. The case was
raffled to Branch 111.
The City answered26 the petition, maintaining that the PEZA is liable for real
property taxes. To support its argument, the City cited a legal opinion
dated September 6, 1999 issued by the Department of Justice,27 which
stated that the PEZA is not exempt from payment of real property taxes.
The Department of Justice based its opinion on Sections 193 and 234 of
the Local Government Code that withdrew the tax exemptions, including
real property tax exemptions, previously granted to all persons.
A reply28 was filed by the PEZA to which the City filed a

rejoinder.29chanRoblesvirtualLawlibrary
Pursuant to Rule 63, Section 3 of Rules of Court,30 the Office of the

Solicitor General filed a comment31on the PEZA’s petition for declaratory
relief. It agreed that the PEZA is exempt from payment of real property
taxes, citing Sections 24 and 51 of the Special Economic Zone Act of 1995.
The trial court agreed with the Solicitor General. Section 24 of the Special
Economic Zone Act of 1995 provides:chanroblesvirtuallawlibrary
SEC. 24. Exemption from National and Local Taxes. – Except for real
property taxes on land owned by developers, no taxes, local and national,
shall be imposed on business establishments operating within the
ECOZONE. In lieu thereof, five percent (5%) of the gross income earned by
all business enterprises within the ECOZONE shall be paid and remitted as
follows:
a. Three percent (3%) to the National Government;
b. Two percent (2%) which shall be directly remitted by the business

establishments to the treasurer’s office of the municipality or city where the
enterprise is located.
Section 51 of the law, on the other hand,
provides:chanroblesvirtuallawlibrary
SEC. 51. Ipso-Facto Clause. – All privileges, benefits, advantages or

exemptions granted to special economic zones under Republic Act No.
7227, shall ipso-facto be accorded to special economic zones already
created or to be created under this Act. The free port status shall not be
vested upon new special economic zones.
Based on Section 51, the trial court held that all privileges, benefits,
advantages, or exemptions granted to special economic zones created
under the Bases Conversion and Development Act of 1992 apply to special
economic zones created under the Special Economic Zone Act of 1995.
Since these benefits include exemption from payment of national or local
taxes, these benefits apply to special economic zones owned by the PEZA.
According to the trial court, the PEZA remained tax-exempt regardless of

Section 24 of the Special Economic Zone Act of 1995. It ruled that Section
24, which taxes real property owned by developers of economic zones,
only applies to private developers of economic zones, not to public
developers like the PEZA. The PEZA, therefore, is not liable for real
property taxes on the land it owns.
Characterizing the PEZA as an agency of the National Government, the

trial court ruled that the City had no authority to tax the PEZA under
Sections 133(o) and 234(a) of the Local Government Code of 1991.
In the resolution32 dated June 14, 2006, the trial court granted the PEZA’s
petition for declaratory relief and declared it exempt from payment of real
property taxes.
The City filed a motion for reconsideration,33 which the trial court denied in
its resolution34 dated September 26, 2006.
The City then appealed35 to the Court of Appeals.
The Court of Appeals noted the following issues the City raised in its
appellant’s brief: (1) whether the trial court had jurisdiction over the PEZA’s
petition for declaratory relief; (2) whether the PEZA is a government agency
performing governmental functions; and (3) whether the PEZA is exempt
from payment of real property taxes.
The issues presented by the City, according to the Court of Appeals, are
pure questions of law which should have been raised in a petition for
review on certiorari directly filed before this court. Since the City availed
itself of the wrong mode of appeal, the Court of Appeals dismissed the
City’s appeal in the decision36 dated January 11, 2008.
The City filed a motion for extension of time to file a motion for
reconsideration,37 which the Court of Appeals denied in the
resolution38 dated April 11, 2008.
Despite the denial of its motion for extension, the City filed a motion for
reconsideration.39 In the resolution40 dated August 6, 2008, the Court of
Appeals denied that motion.
In its petition for review on certiorari with this court,41 the City argues that
the Court of Appeals “hid under the skirts of technical rules”42 in resolving
its appeal. The City maintains that its appeal involved mixed questions of
fact and law. According to the City, whether the PEZA performed
governmental functions “cannot completely be addressed by law but [by]
the factual and actual activities [the PEZA is] carrying
out.”43chanRoblesvirtualLawlibrary
Even assuming that the petition involves pure questions of law, the City
contends that the subject matter of the case “is of extreme importance with
[far-reaching] consequence that [its magnitude] would surely shape and
determine the course of our nation’s future.”44 The Court of Appeals, the
City argues, should have resolved the case on the merits.
The City insists that the trial court had no jurisdiction to hear the PEZA’s
petition for declaratory relief. According to the City, the case involves real
property located in the City of Lapu-Lapu. The petition for declaratory relief
should have been filed before the Regional Trial Court of the City of Lapu-
Lapu.45chanRoblesvirtualLawlibrary
Moreover, the Province of Bataan, the City of Baguio, and the Province of
Cavite allegedly demanded real property taxes from the PEZA. The City
argues that the PEZA should have likewise impleaded these local
government units as respondents in its petition for declaratory relief. For its
failure to do so, the PEZA violated Rule 63, Section 2 of the Rules of Court,
and the trial court should have dismissed the
petition.46chanRoblesvirtualLawlibrary
This court ordered the PEZA to comment on the City’s petition for review
on certiorari.47chanRoblesvirtualLawlibrary
At the outset of its comment, the PEZA argues that the Court of Appeals’
decision dated January 11, 2008 had become final and executory. After
the Court of Appeals had denied the City’s appeal, the City filed a motion
for extension of time to file a motion for reconsideration. Arguing that the
time to file a motion for reconsideration is not extendible, the PEZA filed its
motion for reconsideration out of time. The City has no more right to
appeal to this court.48chanRoblesvirtualLawlibrary
The PEZA maintains that the City availed itself of the wrong mode of
appeal before the Court of Appeals. Since the City raised pure questions
of law in its appeal, the PEZA argues that the proper remedy is a petition
for review on certiorari with this court, not an ordinary appeal before the
appellate court. The Court of Appeals, therefore, correctly dismissed
outright the City’s appeal under Rule 50, Section 2 of the Rules of
Court.49chanRoblesvirtualLawlibrary
On the merits, the PEZA argues that it is an agency and instrumentality of

the National Government. It is therefore exempt from payment of real
property taxes under Sections 133(o) and 234(a) of the Local Government
Code.50 It adds that the tax privileges under Sections 24 and 51 of the
Special Economic Zone Act of 1995 applied to
it.51chanRoblesvirtualLawlibrary
Considering that the site of the Mactan Economic Zone is a reserved land
under Proclamation No. 1811, the PEZA claims that the properties sought
to be taxed are lands of public dominion exempt from real property
taxes.52chanRoblesvirtualLawlibrary
As to the jurisdiction issue, the PEZA counters that the Regional Trial Court
of Pasay had jurisdiction to hear its petition for declaratory relief under Rule
63, Section 1 of the Rules of Court.53 It also argued that it need not
implead the Province of Bataan, the City of Baguio, and the Province of
Cavite as respondents considering that their demands came after the
PEZA had already filed the petition in court.54chanRoblesvirtualLawlibrary
Facts of G.R. No. 187583
After the City of Lapu-Lapu had demanded payment of real property taxes
from the PEZA, the Province of Bataan followed suit. In its letter55 dated
May 29, 2003, the Province, through the Office of the Provincial Treasurer,
informed the PEZA that it would be sending a real property tax billing to the
PEZA. Arguing that the PEZA is a developer of economic zones, the
Province claimed that the PEZA is liable for real property taxes under
Section 24 of the Special Economic Zone Act of 1995.
In its reply letter56 dated June 18, 2003, the PEZA requested the Province
to suspend the service of the real property tax billing. It cited its petition for
declaratory relief against the City of Lapu-Lapu pending before the
Regional Trial Court, Branch 111, Pasay City as basis.
The Province argued that serving a real property tax billing on the PEZA
“would not in any way affect [its] petition for declaratory relief before [the
Regional Trial Court] of Pasay City.”57 Thus, in its letter58dated June 27,
2003, the Province notified the PEZA of its real property tax liabilities for
June 1, 1995 to December 31, 2002 totalling ?110,549,032.55.
After having been served a tax billing, the PEZA again requested the
Province to suspend collecting its alleged real property tax liabilities until
the Regional Trial Court of Pasay City resolves its petition for declaratory
relief.59chanRoblesvirtualLawlibrary
The Province ignored the PEZA’s request. On January 20, 2004, the
Province served on the PEZA a statement of unpaid real property tax for
the period from June 1995 to December
2004.60chanRoblesvirtualLawlibrary
The PEZA again requested the Province to suspend collecting its alleged
real property taxes.61 The Province denied the request in its letter62 dated
January 29, 2004, then served on the PEZA a warrant of levy63 covering
the PEZA’s real properties located in Mariveles, Bataan.
The PEZA’s subsequent requests64 for suspension of collection were all

denied by the Province.65 The Province then served on the PEZA a notice
of delinquency in the payment of real property taxes66 and a notice of sale
of real property for unpaid real property tax.67 The Province finally sent the
PEZA a notice of public auction of the latter’s properties in Mariveles,
Bataan.68chanRoblesvirtualLawlibrary
On June 14, 2004, the PEZA filed a petition for injunction69 with prayer for
issuance of a temporary restraining order and/or writ of preliminary
injunction before the Regional Trial Court of Pasay City, arguing that it is
exempt from payment of real property taxes. It added that the notice of
sale issued by the Province was void because it was not published in a
newspaper of general circulation as required by Section 260 of the Local
Government Code.70chanRoblesvirtualLawlibrary
The case was raffled to Branch 115.

In its order71 dated June 18, 2004, the trial court issued a temporary
restraining order against the Province. After the PEZA had filed a
P100,000.00 bond,72 the trial court issued a writ of preliminary
injunction,73 enjoining the Province from selling the PEZA’s real properties
at public auction.
On March 3, 2006, the PEZA and Province both manifested that each
would file a memorandum after which the case would be deemed submitted
for decision. The parties then filed their respective
memoranda.74chanRoblesvirtualLawlibrary
In the order75 dated January 31, 2007, the trial court denied the PEZA’s
petition for injunction. The trial court ruled that the PEZA is not exempt from
payment of real property taxes. According to the trial court, Sections 193
and 234 of the Local Government Code had withdrawn the real property tax
exemptions previously granted to all persons, whether natural or juridical.76
As to the tax exemptions under Section 51 of the Special Economic Zone
Act of 1995, the trial court ruled that the provision only applies to
businesses operating within the economic zones, not to the
The PEZA filed before the Court of Appeals a petition for certiorari78 with
prayer for issuance of a temporary restraining order.
The Court of Appeals issued a temporary restraining order, enjoining the

Province and its Provincial Treasurer from selling PEZA's properties at
public auction scheduled on October 17, 2007.79 It also ordered the
Province to comment on the PEZA’s petition.
In its comment,80 the Province alleged that it received a copy of the

temporary restraining order only on October 18, 2007 when it had already
sold the PEZA’s properties at public auction. Arguing that the act sought to
be enjoined was already fait accompli, the Province prayed for the
dismissal of the petition for certiorari.
The PEZA then filed a supplemental petition for certiorari, prohibition, and
mandamus81 against the Province, arguing that the Provincial Treasurer of
Bataan acted with grave abuse of discretion in issuing the notice of
delinquency and notice of sale. It maintained that it is exempt from
payment of real property taxes because it is a government instrumentality.
It added that its lands are property of public dominion which cannot be sold
at public auction.
The PEZA also filed a motion82 for issuance of an order affirming the
temporary restraining order and a writ of preliminary injunction to enjoin the
Province from consolidating title over the PEZA’s properties.
In its resolution83 dated January 16, 2008, the Court of Appeals admitted
the supplemental petition for certiorari, prohibition, and mandamus. It
required the Province to comment on the supplemental petition and to file a
memorandum on the PEZA’s prayer for issuance of temporary restraining
order.
The Province commented84 on the PEZA’s supplemental petition, to which

the PEZA replied.85chanRoblesvirtualLawlibrary
The Province then filed a motion86 for leave to admit attached rejoinder with
motion to dismiss. In the rejoinder with motion to dismiss,87 the Province
argued for the first time that the Court of Appeals had no jurisdiction over
the subject matter of the action.
According to the Province, the PEZA erred in filing a petition for certiorari.
Arguing that the PEZA sought to reverse a Regional Trial Court decision in
a local tax case, the Province claimed that the court with appellate
jurisdiction over the action is the Court of Tax Appeals. The PEZA then
prayed that the Court of Appeals dismiss the petition for certiorari for lack of
jurisdiction over the subject matter of the action.
The Court of Appeals held that the issue before it was whether the trial
court judge gravely abused his discretion in dismissing the PEZA’s petition
for prohibition. This issue, according to the Court of Appeals, is properly
addressed in a petition for certiorari over which it has jurisdiction to
resolve. It, therefore, maintained jurisdiction to resolve the PEZA’s petition
for certiorari.88chanRoblesvirtualLawlibrary
Although it admitted that appeal, not certiorari, was the PEZA’s proper
remedy to reverse the trial court’s decision,89 the Court of Appeals
proceeded to decide the petition for certiorari in “the broader interest of
justice.”90chanRoblesvirtualLawlibrary
The Court of Appeals ruled that the trial court judge gravely abused his
discretion in dismissing the PEZA’s petition for prohibition. It held that
Section 21 of Presidential Decree No. 66 and Section 51 of the Special
Economic Zone Act of 1995 granted the PEZA exemption from payment of
real property taxes.91 Based on the criteria set in Manila International
Airport Authority v. Court of Appeals,92 the Court of Appeals found that the
PEZA is an instrumentality of the national government. No taxes,
therefore, could be levied on it by local government
units.93chanRoblesvirtualLawlibrary
In the decision94 dated August 27, 2008, the Court of Appeals granted the
PEZA’s petition for certiorari. It set aside the trial court’s decision and
nullified all the Province’s proceedings with respect to the collection of real
property taxes from the PEZA.
The Province filed a motion for reconsideration,95 which the Court of

Appeals denied in the resolution96dated April 16, 2009 for lack of merit.
In its petition for review on certiorari with this court,97 the Province of
Bataan insists that the Court of Appeals had no jurisdiction to take
cognizance of the PEZA’s petition for certiorari. The Province maintains
that the Court of Tax Appeals had jurisdiction to hear the PEZA’s petition
since it involved a local tax case decided by a Regional Trial
The Province reiterates that the PEZA is not exempt from payment of real
property taxes. The Province points out that the EPZA, the PEZA’s
predecessor, had to be categorically exempted from payment of real
property taxes. The EPZA, therefore, was not inherently exempt from
payment of real property taxes and so is the PEZA. Since Congress
omitted from the Special Economic Zone Act of 1995 a provision
specifically exempting the PEZA from payment of real property taxes, the
Province argues that the PEZA is a taxable entity. It cited the rule in
statutory construction that provisions omitted in revised statutes are
deemed repealed.99chanRoblesvirtualLawlibrary
With respect to Sections 24 and 51 of the Special Economic Zone Act of

1995 granting tax exemptions and benefits, the Province argues that these
provisions only apply to business establishments operating within special
economic zones,100 not to the PEZA.
This court ordered the PEZA to comment on the Province’s petition for
review on certiorari.101chanRoblesvirtualLawlibrary
In its comment,102 the PEZA argues that the Court of Appeals had
jurisdiction to hear its petition for certiorari since the issue was whether the
trial court committed grave abuse of discretion in denying its petition for
injunction. The PEZA maintains that it is exempt from payment of real
property taxes under Section 21 of Presidential Decree No. 66 and Section
51 of the Special Economic Zone Act of 1995.
The Province filed its reply,103 reiterating its arguments in its petition for
review on certiorari.
On the PEZA’s motion,104 this court consolidated the petitions filed by the
City of Lapu-Lapu and the Province of
The issues for our resolution are the following:

I. Whether the Court of Appeals erred in dismissing the City of Lapu-Lapu’s
appeal for raising pure questions of law;
II. Whether the Regional Trial Court, Branch 111, Pasay City had
jurisdiction to hear, try, and decide the City of Lapu-Lapu’s petition for
declaratory relief;
III. Whether the petition for injunction filed before the Regional Trial Court,
Branch 115, Pasay City, is a local tax case appealable to the Court of Tax
Appeals; and
IV. Whether the PEZA is exempt from payment of real property taxes.
We deny the consolidated petitions.
I.
The Court of Appeals did not err in

dismissing the City of Lapu-Lapu’s
appeal for raising pure questions of law
Under the Rules of Court, there are three modes of appeal from Regional
Trial Court decisions. The first mode is through an ordinary appeal before
the Court of Appeals where the decision assailed was rendered in the
exercise of the Regional Trial Court’s original jurisdiction. Ordinary appeals
are governed by Rule 41, Sections 3 to 13 of the Rules of Court. In
ordinary appeals, questions of fact or mixed questions of fact and law may
be raised.106chanRoblesvirtualLawlibrary
The second mode is through a petition for review before the Court of
Appeals where the decision assailed was rendered by the Regional Trial
Court in the exercise of its appellate jurisdiction. Rule 42 of the Rules of
Court governs petitions for review before the Court of Appeals. In petitions
for review under Rule 42, questions of fact, of law, or mixed questions of
fact and law may be raised.107chanRoblesvirtualLawlibrary
The third mode is through an appeal by certiorari before this court under
Rule 45 where only questions of law shall be
raised.108chanRoblesvirtualLawlibrary
A question of fact exists when there is doubt as to the truth or falsity of the
alleged facts.109 On the other hand, there is a question of law if the appeal
raises doubt as to the applicable law on a certain set of
facts.110chanRoblesvirtualLawlibrary
Under Rule 50, Section 2, an improper appeal before the Court of Appeals
is dismissed outright and shall not be referred to the proper
court:chanroblesvirtuallawlibrary
SEC. 2. Dismissal of improper appeal to the Court of Appeals. – An appeal

under Rule 41 taken from the Regional Trial Court to the Court of Appeals
raising only questions of law shall be dismissed, issues purely of law not
being reviewable by said court. Similarly, an appeal by notice of appeal
instead of by petition for review from the appellate judgment of a Regional
Trial Court shall be dismissed.
An appeal erroneously taken to the Court of Appeals shall not be

transferred to the appropriate court but shall be dismissed outright.
Rule 50, Section 2 repealed Rule 50, Section 3 of the 1964 Rules of Court,
which provided that improper appeals to the Court of Appeals shall not be
dismissed but shall be certified to the proper court for
resolution:chanroblesvirtuallawlibrary
Sec. 3. Where appealed case erroneously, brought. — Where the appealed

case has been erroneously brought to the Court of Appeals, it shall not
dismiss the appeal, but shall certify the case to the proper court, with a
specific and clear statement of the grounds therefor.
With respect to appeals by certiorari directly filed before this court but
which raise questions of fact, paragraph 4(b) of Circular No. 2-90 dated
March 9, 1990 states that this court “retains the option, in the exercise of its
sound discretion and considering the attendant circumstances, either itself
to take cognizance of and decide such issues or to refer them to the Court
of Appeals for determination.”
In Indoyon, Jr. v. Court of Appeals,111 we said that this court “cannot

tolerate ignorance of the law on appeals.”112 It is not this court’s task to
determine for litigants their proper remedies under the
Rules.113chanRoblesvirtualLawlibrary
We agree that the City availed itself of the wrong mode of appeal before
the Court of Appeals. The City raised pure questions of law in its appeal.
The issue of whether the Regional Trial Court of Pasay had jurisdiction
over the PEZA’s petition for declaratory relief is a question of law,
jurisdiction being a matter of law.114 The issue of whether the PEZA is a
government instrumentality exempt from payment of real property taxes is
likewise a question of law since this question is resolved by examining the
provisions of the PEZA’s charter as well as other laws relating to the
The Court of Appeals, therefore, did not err in dismissing the City’s appeal
pursuant to Rule 50, Section 2 of the Rules of Court.
Nevertheless, considering the important questions involved in this case, we

take cognizance of the City’s petition for review on certiorari in the interest
of justice.
In Municipality of Pateros v. The Honorable Court of Appeals,116 the

Municipality of Pateros filed an appeal under Rule 42 before the Court of
Appeals, which the Court of Appeals denied outright for raising pure
questions of law. This court agreed that the Municipality of Pateros
“committed a procedural infraction”117 and should have directly filed a
petition for review on certiorari before this court. Nevertheless, “in the
interest of justice and in order to write finis to [the] controversy,”118 this
court “opt[ed] to relax the rules”119 and proceeded to decide the case. This
court said:chanroblesvirtuallawlibrary
While it is true that rules of procedure are intended to promote rather than
frustrate the ends of justice, and while the swift unclogging of the dockets
of the courts is a laudable objective, it nevertheless must not be met at the
expense of substantial justice.
The Court has allowed some meritorious cases to proceed despite inherent
procedural defects and lapses. This is in keeping with the principle that
rules of procedure are mere tools designed to facilitate the attainment of
justice, and that strict and rigid application of rules which should result in
technicalities that tend to frustrate rather than promote substantial justice
must always be avoided. It is a far better and more prudent cause of action
for the court to excuse a technical lapse and afford the parties a review of
the case to attain the ends of justice, rather than dispose of the case on
technicality and cause grave injustice to the parties, giving a false
impression of speedy disposal of cases while actually resulting in more
delay, if not a miscarriage of justice.120
Similar to Municipality of Pateros, we opt to relax the rules in this case.

The PEZA operates or otherwise administers special economic zones all
over the country. Resolving the substantive issue of whether the PEZA is
taxable for real property taxes will clarify the taxing powers of all local
government units where special economic zones are operated. This case,
therefore, should be decided on the merits.
II.
The Regional Trial Court of Pasay had

no jurisdiction to hear, try, and decide
the PEZA’s petition for declaratory relief
against the City of Lapu-Lapu
Rule 63 of the Rules of Court governs actions for declaratory relief. Section
1 of Rule 63 provides:chanroblesvirtuallawlibrary
SECTION 1. Who may file petition. – Any person interested under a deed,
will, contract or other written instrument, or whose rights are affected by a
statute, executive order or regulation, ordinance, or any other governmental
regulation may, before breach or violation, thereof, bring an action in the
appropriate Regional Trial Court to determine any question of construction
or validity arising, and for a declaration of his rights or duties, thereunder.
An action for reformation of an instrument, to quiet title to real property or

remove clouds therefrom, or to consolidate ownership under Article 1607 of
the Civil Code, may be brought under this Rule.
The court with jurisdiction over petitions for declaratory relief is the
Regional Trial Court, the subject matter of litigation in an action for
declaratory relief being incapable of pecuniary estimation.121 Section 19 of
the Judiciary Reorganization Act of 1980
SEC. 19. Jurisdiction in Civil Cases. – Regional Trial Courts shall exercise
exclusive original jurisdiction:
(1) In all civil actions in which the subject of litigation is incapable of

pecuniary estimation[.]
Consistent with the law, the Rules state that a petition for declaratory relief
is filed “in the appropriate Regional Trial Court.”122
A special civil action for declaratory relief is filed for a judicial determination
of any question of construction or validity arising from, and for a declaration
of rights and duties, under any of the following subject matters: a deed, will,
contract or other written instrument, statute, executive order or regulation,
ordinance, or any other governmental regulation.123 However, a
declaratory judgment may issue only if there has been “no breach of the
documents in question.”124 If the contract or statute subject matter of the
action has already been breached, the appropriate ordinary civil action
must be filed.125 If adequate relief is available through another form of
action or proceeding, the other action must be preferred over an action for
declaratory relief.126chanRoblesvirtualLawlibrary
In Ollada v. Central Bank of the Philippines,127 the Central Bank issued CB-
IED Form No. 5 requiring certified public accountants to submit an
accreditation under oath before they were allowed to certify financial
statements submitted to the bank. Among those financial statements the
Central Bank disallowed were those certified by accountant Felipe B.
Ollada. 128chanRoblesvirtualLawlibrary
Claiming that the requirement “restrained the legitimate pursuit of one’s

trade,”129 Ollada filed a petition for declaratory relief against the Central
Bank.
This court ordered the dismissal of Ollada’s petition “without prejudice to

[his] seeking relief in another appropriate action.”130 According to this court,
Ollada’s right had already been violated when the Central Bank refused to
accept the financial statements he prepared. Since there was already a
breach, a petition for declaratory relief was not proper. Ollada must pursue
the “appropriate ordinary civil action or proceeding.”131 This court
explained:chanroblesvirtuallawlibrary
Petitioner commenced this action as, and clearly intended it to be one for
Declaratory Relief under the provisions of Rule 66 of the Rules of Court. On
the question of when a special civil action of this nature would prosper, we
have already held that the complaint for declaratory relief will not prosper if
filed after a contract, statute or right has been breached or violated. In the
present case such is precisely the situation arising from the facts alleged in
the petition for declaratory relief. As vigorously claimed by petitioner
himself, respondent had already invaded or violated his right and caused
him injury — all these giving him a complete cause of action enforceable in
an appropriate ordinary civil action or proceeding. The dismissal of the
action was, therefore, proper in the light of our ruling in De Borja vs.
Villadolid, 47 O.G. (5) p. 2315, and Samson vs. Andal, G.R. No. L-3439,
July 31, 1951, where we held that an action for declaratory relief should be
filed before there has been a breach of a contract, statutes or right, and
that it is sufficient to bar such action, that there had been a breach — which
would constitute actionable violation. The rule is that an action for
Declaratory Relief is proper only if adequate relief is not available through
the means of other existing forms of action or proceeding (1 C.J.S. 1027-
1028). 132
It is also required that the parties to the action for declaratory relief be
those whose rights or interests are affected by the contract or statute in
question.133 “There must be an actual justiciable controversy or the
‘ripening seeds’ of one”134 between the parties. The issue between the
parties “must be ripe for judicial determination.”135 An action for declaratory
relief based on theoretical or hypothetical questions cannot be filed for our
courts are not advisory courts.136chanRoblesvirtualLawlibrary
In Republic v. Roque,137 this court dismissed respondents’ petition for

declaratory relief for lack of justiciable controversy. According to this court,
“[the respondents’] fear of prospective prosecution [under the Human
Security Act] was solely based on remarks of certain government officials
which were addressed to the general public.”138chanRoblesvirtualLawlibrary
In Velarde v. Social Justice Society,139 this court refused to resolve the

issue of “whether or not [a religious leader’s endorsement] of a candidate
for elective office or in urging or requiring the members of his flock to vote
for a specific candidate is violative [of the separation clause].”140 According
to the court, there was no justiciable controversy and ordered the dismissal
of the Social Justice Society’s petition for declaratory relief. This court
Indeed, SJS merely speculated or anticipated without factual moorings that,
as religious leaders, the petitioner and his co-respondents below had
endorsed or threatened to endorse a candidate or candidates for elective
offices; and that such actual or threatened endorsement "will enable [them]
to elect men to public office who [would] in turn be forever beholden to their
leaders, enabling them to control the government"[;] and "pos[ing] a clear
and present danger of serious erosion of the people’s faith in the electoral
process[;] and reinforc[ing] their belief that religious leaders determine the
ultimate result of elections," which would then be violative of the separation
clause.
Such premise is highly speculative and merely theoretical, to say the least.
Clearly, it does not suffice to constitute a justiciable controversy. The
Petition does not even allege any indication or manifest intent on the part of
any of the respondents below to champion an electoral candidate, or to
urge their so-called flock to vote for, or not to vote for, a particular
candidate. It is a time-honored rule that sheer speculation does not give
rise to an actionable right.
Obviously, there is no factual allegation that SJS’ rights are being subjected
to any threatened, imminent and inevitable violation that should be
prevented by the declaratory relief sought. The judicial power and duty of
the courts to settle actual controversies involving rights that are legally
demandable and enforceable cannot be exercised when there is no actual
or threatened violation of a legal right.
All that the 5-page SJS Petition prayed for was "that the question raised in
paragraph 9 hereof be resolved." In other words, it merely sought an
opinion of the trial court on whether the speculated acts of religious leaders
endorsing elective candidates for political offices violated the constitutional
principle on the separation of church and state. SJS did not ask for a
declaration of its rights and duties; neither did it pray for the stoppage of
any threatened violation of its declared rights. Courts, however, are
proscribed from rendering an advisory opinion.141
In sum, a petition for declaratory relief must satisfy six
requisites:chanroblesvirtuallawlibrary
[F]irst, the subject matter of the controversy must be a deed, will, contract
or other written instrument, statute, executive order or regulation, or
ordinance; second, the terms of said documents and the validity thereof are
doubtful and require judicial construction; third, there must have been no
breach of the documents in question; fourth, there must be an actual
justiciable controversy or the "ripening seeds" of one between persons
whose interests are adverse; fifth, the issue must be ripe for judicial
determination; and sixth, adequate relief is not available through other
means or other forms of action or proceeding.142 (Emphases omitted)
We rule that the PEZA erred in availing itself of a petition for declaratory
relief against the City. The City had already issued demand letters and real
property tax assessment against the PEZA, in violation of the PEZA’s
alleged tax-exempt status under its charter. The Special Economic Zone
Act of 1995, the subject matter of PEZA’s petition for declaratory relief, had
already been breached. The trial court, therefore, had no jurisdiction over
the petition for declaratory relief.
There are several aspects of jurisdiction.143 Jurisdiction over the subject

matter is “the power to hear and determine cases of the general class to
which the proceedings in question belong.”144 It is conferred by law, which
may either be the Constitution or a statute.145 Jurisdiction over the subject
matter means “the nature of the cause of action and the relief sought.”146
Thus, the cause of action and character of the relief sought as alleged in
the complaint are examined to determine whether a court had jurisdiction
over the subject matter.147 Any decision rendered by a court without
jurisdiction over the subject matter of the action is
void.148chanRoblesvirtualLawlibrary
Another aspect of jurisdiction is jurisdiction over the person. It is “the

power of [a] court to render a personal judgment or to subject the parties in
a particular action to the judgment and other rulings rendered in the
action.”149 A court automatically acquires jurisdiction over the person of the
plaintiff upon the filing of the initiatory pleading.150 With respect to the
defendant, voluntary appearance in court or a valid service of summons
vests the court with jurisdiction over the defendant’s person.151 Jurisdiction
over the person of the defendant is indispensable in actions in personam or
those actions based on a party’s personal liability.152 The proceedings in
an action in personam are void if the court had no jurisdiction over the
person of the defendant.153chanRoblesvirtualLawlibrary
Jurisdiction over the res or the thing under litigation is acquired either “by
the seizure of the property under legal process, whereby it is brought into
actual custody of the law; or as a result of the institution of legal
proceedings, in which the power of the court is recognized and made
effective.”154 Jurisdiction over the res is necessary in actions in rem or
those actions “directed against the thing or property or status of a person
and seek judgments with respect thereto as against the whole world.”155
The proceedings in an action in rem are void if the court had no jurisdiction
over the thing under litigation.156chanRoblesvirtualLawlibrary
In the present case, the Regional Trial Court had no jurisdiction over the
subject matter of the action, specifically, over the remedy sought. As this
court explained in Malana v. Tappa:157chanRoblesvirtualLawlibrary
. . . an action for declaratory relief presupposes that there has been no

actual breach of the instruments involved or of rights arising thereunder.
Since the purpose of an action for declaratory relief is to secure an
authoritative statement of the rights and obligations of the parties under a
statute, deed, or contract for their guidance in the enforcement thereof, or
compliance therewith, and not to settle issues arising from an alleged
breach thereof, it may be entertained only before the breach or violation of
the statute, deed, or contract to which it refers. A petition for declaratory
relief gives a practical remedy for ending controversies that have not
reached the state where another relief is immediately available; and
supplies the need for a form of action that will set controversies at rest
before they lead to a repudiation of obligations, an invasion of rights, and a
commission of wrongs.
Where the law or contract has already been contravened prior to the filing
of an action for declaratory relief, the courts can no longer assume
jurisdiction over the action. In other words, a court has no more jurisdiction
over an action for declaratory relief if its subject has already been infringed
or transgressed before the institution of the action.158(Emphasis supplied)
The trial court should have dismissed the PEZA’s petition for declaratory
relief for lack of jurisdiction.
Once an assessment has already been issued by the assessor, the proper
remedy of a taxpayer depends on whether the assessment was erroneous
or illegal.
An erroneous assessment “presupposes that the taxpayer is subject to the

tax but is disputing the correctness of the amount assessed.”159 With an
erroneous assessment, the taxpayer claims that the local assessor erred in
determining any of the items for computing the real property tax, i.e., the
value of the real property or the portion thereof subject to tax and the
proper assessment levels. In case of an erroneous assessment, the
taxpayer must exhaust the administrative remedies provided under the
Local Government Code before resorting to judicial action.
The taxpayer must first pay the real property tax under protest. Section 252
of the Local Government Code provides:chanroblesvirtuallawlibrary
SECTION 252. Payment Under Protest. -(a) No protest shall be entertained

unless the taxpayer first pays the tax. There shall be annotated on the tax
receipts the words "paid under protest". The protest in writing must be filed
within thirty (30) days from payment of the tax to the provincial, city
treasurer or municipal treasurer, in the case of a municipality within
Metropolitan Manila Area, who shall decide the protest within sixty (60)
days from receipt.
(b) The tax or a portion thereof paid under protest, shall be held in trust by
the treasurer concerned.
(c) In the event that the protest is finally decided in favor of the taxpayer,
the amount or portion of the tax protested shall be refunded to the
protestant, or applied as tax credit against his existing or future tax liability.
(d) In the event that the protest is denied or upon the lapse of the sixty day
period prescribed in subparagraph (a), the taxpayer may avail of the
remedies as provided for in Chapter 3, Title II, Book II of this Code.
Should the taxpayer find the action on the protest unsatisfactory, the
taxpayer may appeal with the Local Board of Assessment Appeals within
60 days from receipt of the decision on the
protest:chanroblesvirtuallawlibrary
SECTION 226. Local Board of Assessment Appeals. - Any owner or person

having legal interest in the property who is not satisfied with the action of
the provincial, city or municipal assessor in the assessment of his property
may, within sixty (60) days from the date of receipt of the written notice of
assessment, appeal to the Board of Assessment Appeals of the provincial
or city by filing a petition under oath in the form prescribed for the purpose,
together with copies of the tax declarations and such affidavits or
documents submitted in support of the appeal.
Payment under protest and appeal to the Local Board of Assessment

Appeals are “successive administrative remedies to a taxpayer who
questions the correctness of an assessment.”160 The Local Board
Assessment Appeals shall not entertain an appeal “without the action of the
local assessor”161 on the protest.
If the taxpayer is still unsatisfied after appealing with the Local Board of
Assessment Appeals, the taxpayer may appeal with the Central Board of
Assessment Appeals within 30 days from receipt of the Local Board’s
decision:chanroblesvirtuallawlibrary
SECTION 229. Action by the Local Board of Assessment Appeals. - (a)

The Board shall decide the appeal within one hundred twenty (120) days
from the date of receipt of such appeal. The Board, after hearing, shall
render its decision based on substantial evidence or such relevant
evidence on record as a reasonable mind might accept as adequate to
support the conclusion.
(b) In the exercise of its appellate jurisdiction, the Board shall have the
power to summon witnesses, administer oaths, conduct ocular inspection,
take depositions, and issue subpoena and subpoena duces tecum. The
proceedings of the Board shall be conducted solely for the purpose of
ascertaining the facts without necessarily adhering to technical rules
applicable in judicial proceedings.
(c) The secretary of the Board shall furnish the owner of the property or the
person having legal interest therein and the provincial or city assessor with
a copy of the decision of the Board. In case the provincial or city assessor
concurs in the revision or the assessment, it shall be his duty to notify the
owner of the property or the person having legal interest therein of such
fact using the form prescribed for the purpose. The owner of the property or
the person having legal interest therein or the assessor who is not satisfied
with the decision of the Board, may, within thirty (30) days after receipt of
the decision of said Board, appeal to the Central Board of Assessment
Appeals, as herein provided. The decision of the Central Board shall be
final and executory. (Emphasis supplied)
On the other hand, an assessment is illegal if it was made without authority

under the law.162 In case of an illegal assessment, the taxpayer may
directly resort to judicial action without paying under protest the assessed
tax and filing an appeal with the Local and Central Board of Assessment
Appeals.
In Ty v. Trampe,163 the Municipal Assessor of Pasig sent Alejandro B. Ty a
notice of assessment with respect to Ty’s real properties in Pasig. Without
resorting to the administrative remedies under the Local Government Code,
Ty filed before the Regional Trial Court a petition, praying that the trial court
nullify the notice of assessment. In assessing the real property taxes due,
the Municipal Assessor used a schedule of market values solely prepared
by him. This, Ty argued, was void for being contrary to the Local
Government Code requiring that the schedule of market values be jointly
prepared by the provincial, city, and municipal assessors of the
municipalities within the Metropolitan Manila Area.
This court ruled that the assessment was illegal for having been issued
without authority of the Municipal Assessor. Reconciling provisions of the
Real Property Tax Code and the Local Government Code, this court held
that the schedule of market values must be jointly prepared by the
provincial, city, and municipal assessors of the municipalities within the
Metropolitan Manila Area.
As to the issue of exhaustion of administrative remedies, this court held

that Ty did not err in directly resorting to judicial action. According to this
court, payment under protest is required only “where there is a question as
to the reasonableness of the amount assessed.”164 As to appeals before
the Local and Central Board of Assessment Appeals, they are “fruitful only
where questions of fact are involved.”165chanRoblesvirtualLawlibrary
Ty raised the issue of the legality of the notice of assessment, an issue that
did not go into the reasonableness of the amount assessed. Neither did
the issue involve a question of fact. Ty raised a question of law and,
therefore, need not resort to the administrative remedies provided under
the Local Government Code.
In the present case, the PEZA did not avail itself of any of the remedies
against a notice of assessment. A petition for declaratory relief is not the
proper remedy once a notice of assessment was already issued.
Instead of a petition for declaratory relief, the PEZA should have directly
resorted to a judicial action. The PEZA should have filed a complaint for
injunction, the “appropriate ordinary civil action”166 to enjoin the City from
enforcing its demand and collecting the assessed taxes from the PEZA.
After all, a declaratory judgment as to the PEZA’s tax-exempt status is
useless unless the City is enjoined from enforcing its demand.
Injunction “is a judicial writ, process or proceeding whereby a party is

ordered to do or refrain from doing a certain act.”167 “It may be the main
action or merely a provisional remedy for and as incident in the main
action.”168 The essential requisites of a writ of injunction are: “(1) there
must be a right in esse or the existence of a right to be protected; and (2)
the act against which the injunction is directed to constitute a violation of
such right.”169chanRoblesvirtualLawlibrary
We note, however, that the City confused the concepts of jurisdiction and
venue in contending that the Regional Trial Court of Pasay had no
jurisdiction because the real properties involved in this case are located in
the City of Lapu-Lapu.
On the one hand, jurisdiction is “the power to hear and determine cases of
the general class to which the proceedings in question
belong.”170 Jurisdiction is a matter of substantive law.171 Thus, an action
may be filed only with the court or tribunal where the Constitution or a
statute says it can be brought.172 Objections to jurisdiction cannot be
waived and may be brought at any stage of the proceedings, even on
appeal.173 When a case is filed with a court which has no jurisdiction over
the action, the court shall motu proprio dismiss the
case.174chanRoblesvirtualLawlibrary
On the other hand, venue is “the place of trial or geographical location in

which an action or proceeding should be brought.”175 In civil cases, venue
is a matter of procedural law.176 A party’s objections to venue must be
brought at the earliest opportunity either in a motion to dismiss or in the
answer; otherwise the objection shall be deemed waived.177 When the
venue of a civil action is improperly laid, the court cannot motu
proprio dismiss the case.178chanRoblesvirtualLawlibrary
The venue of an action depends on whether the action is a real or personal

action. Should the action affect title to or possession of real property, or
interest therein, it is a real action. The action should be filed in the proper
court which has jurisdiction over the area wherein the real property
involved, or a portion thereof, is situated.179 If the action is a personal
action, the action shall be filed with the proper court where the plaintiff or
any of the principal plaintiffs resides, or where the defendant or any of the
principal defendants resides, or in the case of a non-resident defendant
where he may be found, at the election of the
plaintiff.180chanRoblesvirtualLawlibrary
The City was objecting to the venue of the action, not to the jurisdiction of
the Regional Trial Court of Pasay. In essence, the City was contending
that the PEZA’s petition is a real action as it affects title to or possession of
real property, and, therefore, the PEZA should have filed the petition with
the Regional Trial Court of Lapu-Lapu City where the real properties are
located.
However, whatever objections the City has against the venue of the
PEZA’s action for declaratory relief are already deemed waived.
Objections to venue must be raised at the earliest possible opportunity.181
The City did not file a motion to dismiss the petition on the ground that the
venue was improperly laid. Neither did the City raise this objection in its
answer.
In any event, the law sought to be judicially interpreted in this case had
already been breached. The Regional Trial Court of Pasay, therefore, had
no jurisdiction over the PEZA’s petition for declaratory relief against the
City.
III.
The Court of Appeals had no jurisdiction
over the PEZA’s petition for certiorari
against the Province of Bataan
Appeal is the remedy “to obtain a reversal or modification of a judgment on

the merits.”182 A judgment on the merits is one which “determines the
rights and liabilities of the parties based on the disclosed facts, irrespective
of the formal, technical or dilatory objections.”183 It is not even necessary
that the case proceeded to trial.184 So long as the “judgment is
general”185 and “the parties had a full legal opportunity to be heard on their
respective claims and contentions,” 186 the judgment is on the merits.
On the other hand, certiorari is a special civil action filed to annul or modify
a proceeding of a tribunal, board, or officer exercising judicial or quasi-
judicial functions.187 Certiorari, which in Latin means “to be more fully
informed,”188 was originally a remedy in the common law. This court
discussed the history of the remedy of certiorari in Spouses Delos Santos
v. Metropolitan Bank and Trust Company:189chanRoblesvirtualLawlibrary
In the common law, from which the remedy of certiorari evolved, the writ of
certiorari was issued out of Chancery, or the King’s Bench, commanding
agents or officers of the inferior courts to return the record of a cause
pending before them, so as to give the party more sure and speedy justice,
for the writ would enable the superior court to determine from an inspection
of the record whether the inferior court’s judgment was rendered without
authority. The errors were of such a nature that, if allowed to stand, they
would result in a substantial injury to the petitioner to whom no other
remedy was available. If the inferior court acted without authority, the
record was then revised and corrected in matters of law. The writ of
certiorari was limited to cases in which the inferior court was said to be
exceeding its jurisdiction or was not proceeding according to essential
requirements of law and would lie only to review judicial or quasi-judicial
acts.190
In our jurisdiction, the term “certiorari” is used in two ways. An appeal
before this court raising pure questions of law is commenced by filing a
petition for review on certiorari under Rule 45 of the Rules of Court. An
appeal by certiorari, which continues the proceedings commenced before
the lower courts,191is filed to reverse or modify judgments or final orders.192
Under the Rules, an appeal by certiorari must be filed within 15 days from
notice of the judgment or final order, or of the denial of the appellant’s
motion for new trial or reconsideration.193chanRoblesvirtualLawlibrary
A petition for certiorari under Rule 65, on the other hand, is an independent
and original action filed to set aside proceedings conducted without or in
excess of jurisdiction or with grave abuse of discretion amounting to lack or
excess of jurisdiction.194 Under the Rules, a petition for certiorari may only
be filed if there is no appeal or any plain, speedy, or adequate remedy in
the ordinary course of law.195 The petition must be filed within 60 days from
notice of the judgment, order, or resolution.196chanRoblesvirtualLawlibrary
Because of the longer period to file a petition for certiorari, some litigants
attempt to file petitions for certiorari as substitutes for lost appeals by
certiorari. However, Rule 65 is clear that a petition for certiorari will not
prosper if appeal is available. Appeal is the proper remedy even if the
error, or one of the errors, raised is grave abuse of discretion on the part of
the court rendering judgment.197 If appeal is available, a petition for
certiorari cannot be filed.
In this case, the trial court’s decision dated January 31, 2007 is a judgment
on the merits. Based on the facts disclosed by the parties, the trial court
declared the PEZA liable to the Province of Bataan for real property taxes.
The PEZA’s proper remedy against the trial court’s decision, therefore, is
appeal.
Since the PEZA filed a petition for certiorari against the trial court’s
decision, it availed itself of the wrong remedy. As the Province of Bataan
contended, the trial court’s decision dated January 31, 2007 “is only an
error of judgment appealable to the higher level court and may not be
corrected by filing a petition for certiorari.”198 That the trial court judge
allegedly committed grave abuse of discretion does not make the petition
for certiorari the correct remedy. The PEZA should have raised this ground
in an appeal filed within 15 days from notice of the assailed resolution.
This court, “in the liberal spirit pervading the Rules of Court and in the
interest of substantial justice,”199has treated petitions for certiorari as an
appeal: “(1) if the petition for certiorari was filed within the reglementary
period within which to file a petition for review on certiorari; (2) when errors
of judgment are averred; and (3) when there is sufficient reason to justify
the relaxation of the rules.”200 Considering that “the nature of an action is
determined by the allegations of the complaint or the petition and the
character of the relief sought,”201 a petition which “actually avers errors of
judgment rather than errors than that of jurisdiction”202 may be considered a
petition for review.
However, suspending the application of the Rules has its disadvantages.

Relaxing procedural rules may reduce the “effective enforcement of
substantive rights,”203 leading to “arbitrariness, caprice, despotism, or
whimsicality in the settlement of disputes.”204 Therefore, for this court to
suspend the application of the Rules, the accomplishment of substantial
justice must outweigh the importance of predictability of court procedures.
The PEZA’s petition for certiorari may be treated as an appeal. First, the
petition for certiorari was filed within the 15-day reglementary period for
filing an appeal. The PEZA filed its petition for certiorari before the Court of
Appeals on October 15, 2007,205 which was 12 days from October 3,
2007206 when the PEZA had notice of the trial court’s order denying the
motion for reconsideration.
Second, the petition for certiorari raised errors of judgment. The PEZA
argued that the trial court erred in ruling that it is not exempt from payment
of real property taxes given Section 21 of Presidential Decree No. 66 and
Sections 11 and 51 of the Special Economic Zone Act of
1995.207chanRoblesvirtualLawlibrary
Third, there is sufficient reason to relax the rules given the importance of
the substantive issue presented in this case.
However, the PEZA’s petition for certiorari was filed before the wrong
court. The PEZA should have filed its petition before the Court of Tax
Appeals.
The Court of Tax Appeals has the exclusive appellate jurisdiction over local
tax cases decided by Regional Trial Courts. Section 7, paragraph (a)(3) of
Republic Act No. 1125, as amended by Republic Act No. 9282,
Sec. 7. Jurisdiction. – The [Court of Tax Appeals] shall exercise:
a. Exclusive appellate jurisdiction to review by appeal, as herein provided:
....
3. Decisions, orders or resolutions of the Regional Trial Courts in local tax

cases originally decided or resolved by them in the exercise of their original
or appellate jurisdiction[.]
The local tax cases referred to in Section 7, paragraph (a)(3) of Republic

Act No. 1125, as amended, include cases involving real property taxes.
Real property taxation is governed by Book II of the Local Government
Code on “Local Taxation and Fiscal Matters.” Real property taxes are
collected by the Local Treasurer,208 not by the Bureau of Internal Revenue
in charge of collecting national internal revenue taxes, fees, and
charges.209chanRoblesvirtualLawlibrary
Section 7, paragraph (a)(5) of Republic Act No. 1125, as amended by

Republic Act No. 9282, separately provides for the exclusive appellate
jurisdiction of the Court of Tax Appeals over decisions of the Central Board
of Assessment Appeals involving the assessment or collection of real
property taxes:chanroblesvirtuallawlibrary
Sec. 7. Jurisdiction. – The [Court of Tax Appeals] shall exercise:
a. Exclusive appellate jurisdiction to review by appeal, as herein provided:
....
5. Decisions of the Central Board of Assessment Appeals in the exercise of

its appellate jurisdiction over cases involving the assessment and taxation
of real property originally decided by the provincial or city board of
assessment appeals[.]
This separate provision, nevertheless, does not bar the Court of Tax
Appeals from taking cognizance of trial court decisions involving the
collection of real property tax cases. Sections 256210 and 266211 of the
Local Government Code expressly allow local government units to file “in
any court of competent jurisdiction” civil actions to collect basic real
property taxes. Should the trial court rule against them, local government
units cannot be barred from appealing before the Court of Tax Appeals –
the “highly specialized body specifically created for the purpose of
reviewing tax cases.”212chanRoblesvirtualLawlibrary
We have also ruled that the Court of Tax Appeals, not the Court of
Appeals, has the exclusive original jurisdiction over petitions for certiorari
assailing interlocutory orders issued by Regional Trial Courts in a local tax
case. We explained in The City of Manila v. Hon. Grecia-Cuerdo213 that
while the Court of Tax Appeals has no express grant of power to issue writs
of certiorari under Republic Act No. 1125,214 as amended, the tax court’s
judicial power as defined in the Constitution215 includes the power to
determine “whether or not there has been grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of the [Regional Trial
Court] in issuing an interlocutory order of jurisdiction in cases falling within
the exclusive appellate jurisdiction of the tax court.”216 We further
elaborated:chanroblesvirtuallawlibrary
Indeed, in order for any appellate court to effectively exercise its appellate
jurisdiction, it must have the authority to issue, among others, a writ of
certiorari. In transferring exclusive jurisdiction over appealed tax cases to
the CTA, it can reasonably be assumed that the law intended to transfer
also such power as is deemed necessary, if not indispensable, in aid of
such appellate jurisdiction. There is no perceivable reason why the transfer
should only be considered as partial, not total.
....
If this Court were to sustain petitioners' contention that jurisdiction over

their certiorari petition lies with the CA, this Court would be confirming the
exercise by two judicial bodies, the CA and the CTA, of jurisdiction over
basically the same subject matter – precisely the split-jurisdiction situation
which is anathema to the orderly administration of justice. The Court cannot
accept that such was the legislative motive, especially considering that the
law expressly confers on the CTA, the tribunal with the specialized
competence over tax and tariff matters, the role of judicial review over local
tax cases without mention of any other court that may exercise such power.
Thus, the Court agrees with the ruling of the CA that since appellate
jurisdiction over private respondents' complaint for tax refund is vested in
the CTA, it follows that a petition for certiorari seeking nullification of an
interlocutory order issued in the said case should, likewise, be filed with the
same court. To rule otherwise would lead to an absurd situation where one
court decides an appeal in the main case while another court rules on an
incident in the very same case.
Stated differently, it would be somewhat incongruent with the pronounced

judicial abhorrence to split jurisdiction to conclude that the intention of the
law is to divide the authority over a local tax case filed with the RTC by
giving to the CA or this Court jurisdiction to issue a writ of certiorari against
interlocutory orders of the RTC but giving to the CTA the jurisdiction over
the appeal from the decision of the trial court in the same case. It is more in
consonance with logic and legal soundness to conclude that the grant of
appellate jurisdiction to the CTA over tax cases filed in and decided by the
RTC carries with it the power to issue a writ of certiorari when necessary in
aid of such appellate jurisdiction. The supervisory power or jurisdiction of
the CTA to issue a writ of certiorari in aid of its appellate jurisdiction should
co-exist with, and be a complement to, its appellate jurisdiction to review,
by appeal, the final orders and decisions of the RTC, in order to have
complete supervision over the acts of the latter.217 (Citations omitted)
In this case, the petition for injunction filed before the Regional Trial Court
of Pasay was a local tax case originally decided by the trial court in its
original jurisdiction. Since the PEZA assailed a judgment, not an
interlocutory order, of the Regional Trial Court, the PEZA’s proper remedy
was an appeal to the Court of Tax Appeals.
Considering that the appellate jurisdiction of the Court of Tax Appeals is to

the exclusion of all other courts, the Court of Appeals had no jurisdiction to
take cognizance of the PEZA’s petition. The Court of Appeals acted
without jurisdiction in rendering the decision in CA-G.R. SP No. 100984. Its
decision in CA-G.R. SP No. 100984 is void.218chanRoblesvirtualLawlibrary
The filing of appeal in the wrong court does not toll the period to appeal.
Consequently, the decision of the Regional Trial Court, Branch 115, Pasay
City, became final and executory after the lapse of the 15th day from the
PEZA’s receipt of the trial court’s decision.219 The denial of the petition for
injunction became final and executory.
IV.
The remedy of a taxpayer depends on the

stage in which the local government unit is
enforcing its authority to impose real
property taxes
The proper remedy of a taxpayer depends on the stage in which the local
government unit is enforcing its authority to collect real property taxes. For
the guidance of the members of the bench and the bar, we reiterate the
taxpayer’s remedies against the erroneous or illegal assessment of real
property taxes.
Exhaustion of administrative remedies under the Local Government Code

is necessary in cases of erroneous assessments where the correctness of
the amount assessed is assailed. The taxpayer must first pay the tax then
file a protest with the Local Treasurer within 30 days from date of payment
of tax.220 If protest is denied or upon the lapse of the 60-day period to
decide the protest, the taxpayer may appeal to the Local Board of
Assessment Appeals within 60 days from the denial of the protest or the
lapse of the 60-day period to decide the protest.221 The Local Board of
Assessment Appeals has 120 days to decide the
appeal.222chanRoblesvirtualLawlibrary
If the taxpayer is unsatisfied with the Local Board’s decision, the taxpayer
may appeal before the Central Board of Assessment Appeals within 30
days from receipt of the Local Board’s
decision.223chanRoblesvirtualLawlibrary
The decision of the Central Board of Assessment Appeals is appealable

before the Court of Tax Appeals En Banc.224 The appeal before the Court
of Tax Appeals shall be filed following the procedure under Rule 43 of the
Rules of Court.225chanRoblesvirtualLawlibrary
The Court of Tax Appeals’ decision may then be appealed before this court
through a petition for review on certiorari under Rule 45 of the Rules of
Court raising pure questions of law.226chanRoblesvirtualLawlibrary
In case of an illegal assessment where the assessment was issued without

authority, exhaustion of administrative remedies is not necessary and the
taxpayer may directly resort to judicial action.227 The taxpayer shall file a
complaint for injunction before the Regional Trial Court228 to enjoin the local
government unit from collecting real property taxes.
The party unsatisfied with the decision of the Regional Trial Court shall file
an appeal, not a petition for certiorari, before the Court of Tax Appeals, the
complaint being a local tax case decided by the Regional Trial Court.229
The appeal shall be filed within fifteen (15) days from notice of the trial
court’s decision.
The Court of Tax Appeals’ decision may then be appealed before this court
through a petition for review on certiorari under Rule 45 of the Rules of
Court raising pure questions of law.230chanRoblesvirtualLawlibrary
In case the local government unit has issued a notice of delinquency, the
taxpayer may file a complaint for injunction to enjoin the impending sale of
the real property at public auction. In case the local government unit has
already sold the property at public auction, the taxpayer must first deposit
with the court the amount for which the real property was sold, together
with interest of 2% per month from the date of sale to the time of the
institution of action. The taxpayer may then file a complaint to assail the
validity of the public auction.231 The decisions of the Regional Trial Court in
these cases shall be appealable before the Court of Tax Appeals,232 and
the latter’s decisions appealable before this court through a petition for
review on certiorari under Rule 45 of the Rules of
V.
The PEZA is exempt from payment

of real property taxes
The jurisdictional errors in this case render these consolidated petitions

moot. We do not review void decisions rendered without jurisdiction.
However, the PEZA alleged that several local government units, including
the City of Baguio and the Province of Cavite, have issued their respective
real property tax assessments against the PEZA. Other local government
units will likely follow suit, and either the PEZA or the local government
units taxing the PEZA may file their respective actions against each other.
In the interest of judicial economy234 and avoidance of conflicting decisions

involving the same issues,235we resolve the substantive issue of whether
the PEZA is exempt from payment of real property taxes.
Real property taxes are annual taxes levied on real property such as lands,
buildings, machinery, and other improvements not otherwise specifically
exempted under the Local Government Code.236 Real property taxes
are ad valorem, with the amount charged based on a fixed proportion of the
value of the property.237 Under the law, provinces, cities, and municipalities
within the Metropolitan Manila Area have the power to levy real property
taxes within their respective territories.238chanRoblesvirtualLawlibrary
The general rule is that real properties are subject to real property taxes.
This is true especially since the Local Government Code has withdrawn
exemptions from real property taxes of all persons, whether natural or
juridical:chanroblesvirtuallawlibrary
SEC. 234. Exemptions from Real Property Tax. – The following are
exempted from payment of real property tax:
(a) Real property owned by the Republic of the Philippines or any of its
political subdivisions except when the beneficial use thereof has been
granted, for consideration or otherwise, to a taxable person;
(b) Charitable institutions, churches, parsonages or convents appurtenant

thereto, mosques, nonprofit or religious cemeteries and all lands, buildings,
and improvements actually, directly, and exclusively used for religious,
charitable or educational purposes;
(c) All machineries and equipment that are actually, directly and exclusively
used by local water districts and government-owned or –controlled
corporations engaged in the supply and distribution of water and/or
generation and transmission of electric power;
(d) All real property owned by duly registered cooperatives as provided

under R.A. No. 6938; and
(e) Machinery and equipment used for pollution control and environmental
protection.
Except as provided herein, any exemption from payment of real property

taxes previously granted to, or presently enjoyed by, all persons, whether
natural or juridical, including government-owned or -controlled corporations
are hereby withdrawn upon the effectivity of this Code. (Emphasis supplied)
The person liable for real property taxes is the “taxable person who had
actual or beneficial use and possession [of the real property for the taxable
period,] whether or not [the person owned the property for the period he or
she is being taxed].”239chanRoblesvirtualLawlibrary
The exceptions to the rule are provided in the Local Government Code.
Under Section 133(o), local government units have no power to levy taxes
of any kind on the national government, its agencies and instrumentalities
and local government units:chanroblesvirtuallawlibrary
SEC. 133. Common Limitations on the Taxing Powers of Local

Government Units. – Unless otherwise provided herein, the exercise of
taxing powers of provinces, cities, municipalities, and barangays shall not
extend to the levy of the following:
....
(o) Taxes, fees or charges of any kind on the National Government, its
agencies and instrumentalities and local government units.
Specifically on real property taxes, Section 234 enumerates the persons
and real property exempt from real property
granted, for consideration or otherwise, to a taxable person;
(b) Charitable institutions, churches, parsonages or convents appurtenant

thereto, mosques, nonprofit or religious cemeteries and all lands, buildings,
and improvements actually, directly, and exclusively used for religious,
charitable or educational purposes;
(c) All machineries and equipment that are actually, directly and exclusively
used by local water districts and government-owned or –controlled
corporations engaged in the supply and distribution of water and/or
generation and transmission of electric power;
(d) All real property owned by duly registered cooperatives as provided

under R.A. No. 6938; and
(e) Machinery and equipment used for pollution control and environmental
protection.
Except as provided herein, any exemption from payment of real property

tax previously granted to, or presently enjoyed by, all persons, whether
natural or juridical, including all government-owned or -controlled
corporations are hereby withdrawn upon the effectivity of this Code.
(Emphasis supplied)
For persons granted tax exemptions or incentives before the effectivity of

the Local Government Code, Section 193 withdrew these tax exemption
privileges. These persons consist of both natural and juridical persons,
including government-owned or controlled
corporations:chanroblesvirtuallawlibrary
SEC. 193. Withdrawal of Tax Exemption Privileges. – Unless otherwise

provided in this code, tax exemptions or incentives granted to or presently
enjoyed by all persons, whether natural or juridical, including government-
owned or controlled corporations, except local water districts, cooperatives
duly registered under R.A. 6938, non stock and non profit hospitals and
educational institutions, are hereby withdrawn upon effectivity of this Code.
As discussed, Section 234 withdrew all tax privileges with respect to real
property taxes.
Nevertheless, local government units may grant tax exemptions under such
terms and conditions as they may deem
necessary:chanroblesvirtuallawlibrary
SEC. 192. Authority to Grant Tax Exemption Privileges. – Local

government units may, through ordinances duly approved, grant tax
exemptions, incentives or reliefs under such terms and conditions as they
may deem necessary.
In Mactan Cebu International Airport Authority v. Hon. Marcos,240 this court

classified the exemptions from real property taxes into ownership,
character, and usage exemptions.
Ownership exemptions are exemptions based on the ownership of the real

property. The exemptions of real property owned by the Republic of the
Philippines, provinces, cities, municipalities, barangays, and registered
cooperatives fall under this classification.241chanRoblesvirtualLawlibrary
Character exemptions are exemptions based on the character of the real

property. Thus, no real property taxes may be levied on charitable
institutions, houses and temples of prayer like churches, parsonages, or
convents appurtenant thereto, mosques, and non profit or religious
cemeteries.242chanRoblesvirtualLawlibrary
Usage exemptions are exemptions based on the use of the real property.
Thus, no real property taxes may be levied on real property such as: (1)
lands and buildings actually, directly, and exclusively used for religious,
charitable or educational purpose; (2) machineries and equipment actually,
directly and exclusively used by local water districts or by government-
owned or controlled corporations engaged in the supply and distribution of
water and/or generation and transmission of electric power; and (3)
machinery and equipment used for pollution control and environmental
protection.243chanRoblesvirtualLawlibrary
Persons may likewise be exempt from payment of real properties if their

charters, which were enacted or reenacted after the effectivity of the Local
Government Code, exempt them payment of real property
taxes.244chanRoblesvirtualLawlibrary
V. (A)
The PEZA is an instrumentality of the national government
An instrumentality is “any agency of the National Government, not

integrated within the department framework, vested with special functions
or jurisdiction by law, endowed with some if not all corporate powers,
administering special funds, and enjoying operational autonomy, usually
through a charter.”245chanRoblesvirtualLawlibrary
Examples of instrumentalities of the national government are the Manila

International Airport Authority,246 the Philippine Fisheries Development
Authority,247 the Government Service Insurance System,248 and the
Philippine Reclamation Authority.249 These entities are not integrated
within the department framework but are nevertheless vested with special
functions to carry out a declared policy of the national government.
Similarly, the PEZA is an instrumentality of the national government. It is

not integrated within the department framework but is an agency attached
to the Department of Trade and Industry.250 Book IV, Chapter 7, Section
38(3)(a) of the Administrative Code of 1987 defines
“attachment”:chanroblesvirtuallawlibrary
SEC. 38. Definition of Administrative Relationship. – Unless otherwise

expressly stated in the Code or in other laws defining the special
relationships of particular agencies, administrative relationships shall be
categorized and defined as follows:
....
(3) Attachment.–(a) This refers to the lateral relationship between the

department or its equivalent and the attached agency or corporation for
purposes of policy and program coordination. The coordination may be
accomplished by having the department represented in the governing
board of the attached agency or corporation, either as chairman or as a
member, with or without voting rights, if this is permitted by the charter;
having the attached corporation or agency comply with a system of periodic
reporting which shall reflect the progress of the programs and projects; and
having the department or its equivalent provide general policies through its
representative in the board, which shall serve as the framework for the
internal policies of the attached corporation or agency[.]
Attachment, which enjoys “a larger measure of independence”251 compared

with other administrative relationships such as supervision and control, is
further explained in Beja, Sr. v. Court of
Appeals:252chanRoblesvirtualLawlibrary
An attached agency has a larger measure of independence from the

Department to which it is attached than one which is under departmental
supervision and control or administrative supervision. This is borne out by
the “lateral relationship” between the Department and the attached agency.
The attachment is merely for “policy and program coordination.” With
respect to administrative matters, the independence of an attached agency
from Departmental control and supervision is further reinforced by the fact
that even an agency under a Department’s administrative supervision is
free from Departmental interference with respect to appointments and
other personnel actions “in accordance with the decentralization of
personnel functions” under the Administrative Code of 1987. Moreover, the
Administrative Code explicitly provides that Chapter 8 of Book IV on
supervision and control shall not apply to chartered institutions attached to
a Department.253
With the PEZA as an attached agency to the Department of Trade and

Industry, the 13-person PEZA Board is chaired by the Department
Secretary.254 Among the powers and functions of the PEZA is its ability to
coordinate with the Department of Trade and Industry for policy and
program formulation and implementation.255 In strategizing and prioritizing
the development of special economic zones, the PEZA coordinates with the
Department of Trade and Industry.256chanRoblesvirtualLawlibrary
The PEZA also administers its own funds and operates autonomously, with
the PEZA Board formulating and approving the PEZA’s annual budget.257
Appointments and other personnel actions in the PEZA are also free from
departmental interference, with the PEZA Board having the exclusive and
final authority to promote, transfer, assign and reassign officers of the
As an instrumentality of the national government, the PEZA is vested with

special functions or jurisdiction by law. Congress created the PEZA to
operate, administer, manage and develop special economic zones in the
Philippines.259 Special economic zones are areas with highly developed or
which have the potential to be developed into agro-industrial, industrial
tourist/recreational, commercial, banking, investment and financial
centers.260 By operating, administering, managing, and developing special
economic zones which attract investments and promote use of domestic
labor, the PEZA carries out the following policy of the
Government:chanroblesvirtuallawlibrary
SECTION 2. Declaration of Policy. — It is the declared policy of the

government to translate into practical realities the following State policies
and mandates in the 1987 Constitution, namely:
(a) “The State recognizes the indispensable role of the private sector,
encourages private enterprise, and provides incentives to needed
investments.” (Sec. 20, Art. II)
(b) “The State shall promote the preferential use of Filipino labor, domestic
materials and locally produced goods, and adopt measures that help make
them competitive.” (Sec. 12, Art. XII)
In pursuance of these policies, the government shall actively encourage,

promote, induce and accelerate a sound and balanced industrial, economic
and social development of the country in order to provide jobs to the people
especially those in the rural areas, increase their productivity and their
individual and family income, and thereby improve the level and quality of
their living condition through the establishment, among others, of special
economic zones in suitable and strategic locations in the country and
through measures that shall effectively attract legitimate and productive
foreign investments.261
Being an instrumentality of the national government, the PEZA cannot be

taxed by local government units.
Although a body corporate vested with some corporate powers,262 the

PEZA is not a government-owned or controlled corporation taxable for real
property taxes.
Section 2(13) of the Introductory Provisions of the Administrative Code of

1987 defines the term “government-owned or controlled
corporation”:chanroblesvirtuallawlibrary
SEC. 2. General Terms Defined. – Unless the specific words of the text, or
the context as a whole, or a particular statute, shall require a different
meaning:
....
(13) Government-owned or controlled corporation refers to any agency

organized as a stock or non-stock corporation, vested with functions
relating to public needs whether governmental or proprietary in nature, and
owned by the Government directly or through its instrumentalities either
wholly, or, where applicable as in the case of stock corporations, to the
extent of at least fifty-one (51) per cent of its capital stock: Provided, That
government-owned or controlled corporations may be further categorized
by the Department of the Budget, the Civil Service Commission, and the
Commission on Audit for purposes of the exercise and discharge of their
respective powers, functions and responsibilities with respect to such
corporations.
Government entities are created by law, specifically, by the Constitution or

by statute. In the case of government-owned or controlled corporations,
they are incorporated by virtue of special charters263 to participate in the
market for special reasons which may be related to dysfunctions or
inefficiencies of the market structure. This is to adjust reality as against the
concept of full competition where all market players are price takers. Thus,
under the Constitution, government-owned or controlled corporations are
created in the interest of the common good and should satisfy the test of
economic viability.264 Article XII, Section 16 of the Constitution
Section 16. The Congress shall not, except by general law, provide for the
formation, organization, or regulation of private corporations. Government-
owned or controlled corporations may be created or established by special
charters in the interest of the common good and subject to the test of
economic viability.
Economic viability is “the capacity to function efficiently in business.”265 To

be economically viable, the entity “should not go into activities which the
private sector can do better.”266chanRoblesvirtualLawlibrary
To be considered a government-owned or controlled corporation, the entity

must have been organized as a stock or non-stock
corporation.267chanRoblesvirtualLawlibrary
Government instrumentalities, on the other hand, are also created by law

but partake of sovereign functions. When a government entity performs
sovereign functions, it need not meet the test of economic viability.
In Manila International Airport Authority v. Court of Appeals,268 this court
In contrast, government instrumentalities vested with corporate powers and

performing governmental or public functions need not meet the test of
economic viability. These instrumentalities perform essential public
services for the common good, services that every modern State must
provide its citizens. These instrumentalities need not be economically
viable since the government may even subsidize their entire operations.
These instrumentalities are not the "government-owned or controlled
corporations" referred to in Section 16, Article XII of the 1987 Constitution.
Thus, the Constitution imposes no limitation when the legislature creates

government instrumentalities vested with corporate powers but performing
essential governmental or public functions. Congress has plenary authority
to create government instrumentalities vested with corporate powers
provided these instrumentalities perform essential government functions or
public services. However, when the legislature creates through special
charters corporations that perform economic or commercial activities, such
entities — known as "government-owned or controlled corporations" —
must meet the test of economic viability because they compete in the
market place.
....
Commissioner Blas F. Ople, proponent of the test of economic viability,

explained to the Constitutional Commission the purpose of this test, as
follows:chanroblesvirtuallawlibrary
MR. OPLE: Madam President, the reason for this concern is really that
when the government creates a corporation, there is a sense in which this
corporation becomes exempt from the test of economic performance. We
know what happened in the past. If a government corporation loses, then it
makes its claim upon the taxpayers' money through new equity infusions
from the government and what is always invoked is the common good.
That is the reason why this year, out of a budget of P115 billion for the
entire government, about P28 billion of this will go into equity infusions to
support a few government financial institutions. And this is all taxpayers'
money which could have been relocated to agrarian reform, to social
services like health and education, to augment the salaries of grossly
underpaid public employees. And yet this is all going down the drain.
Therefore, when we insert the phrase "ECONOMIC VIABILITY" together

with the "common good," this becomes a restraint on future enthusiasts for
state capitalism to excuse themselves from the responsibility of meeting the
market test so that they become viable. And so, Madam President, I
reiterate, for the committee's consideration and I am glad that I am joined in
this proposal by Commissioner Foz, the insertion of the standard of
"ECONOMIC VIABILITY OR THE ECONOMIC TEST," together with the
common good.
....
Clearly, the test of economic viability does not apply to government entities
vested with corporate powers and performing essential public services. The
State is obligated to render essential public services regardless of the
economic viability of providing such service. The non-economic viability of
rendering such essential public service does not excuse the State from
withholding such essential services from the public.269 (Emphases and
citations omitted)
The law created the PEZA’s charter. Under the Special Economic Zone Act
of 1995, the PEZA was established primarily to perform the governmental
function of operating, administering, managing, and developing special
economic zones to attract investments and provide opportunities for
preferential use of Filipino labor.
Under its charter, the PEZA was created a body corporate endowed with
some corporate powers. However, it was not organized as a stock270 or
non-stock271 corporation. Nothing in the PEZA’s charter provides that the
PEZA’s capital is divided into shares.272 The PEZA also has no members
who shall share in the PEZA’s profits.
The PEZA does not compete with other economic zone authorities in the
country. The government may even subsidize the PEZA’s operations.
Under Section 47 of the Special Economic Zone Act of 1995, “any sum
necessary to augment [the PEZA’s] capital outlay shall be included in the
General Appropriations Act to be treated as an equity of the national
government.”273chanRoblesvirtualLawlibrary
The PEZA, therefore, need not be economically viable. It is not a

government-owned or controlled corporation liable for real property taxes.
V. (B)
The PEZA assumed the non-profit character, including the tax exempt
status, of the EPZA
The PEZA’s predecessor, the EPZA, was declared non-profit in character

with all its revenues devoted for its development, improvement, and
maintenance. Consistent with this non-profit character, the EPZA was
explicitly declared exempt from real property taxes under its charter.
Section 21 of Presidential Decree No. 66
Section 21. Non-profit Character of the Authority; Exemption from Taxes.

The Authority shall be non-profit and shall devote and use all its returns
from its capital investment, as well as excess revenues from its operations,
for the development, improvement and maintenance and other related
expenditures of the Authority to pay its indebtedness and obligations and in
furtherance and effective implementation of the policy enunciated in
Section 1 of this Decree. In consonance therewith, the Authority is hereby
declared exempt:ChanRoblesVirtualawlibrary
....
(b) From all income taxes, franchise taxes, realty taxes and all other kinds
of taxes and licenses to be paid to the National Government, its provinces,
cities, municipalities and other government agencies and
instrumentalities[.]
The Special Economic Zone Act of 1995, on the other hand, does not
specifically exempt the PEZA from payment of real property taxes.
Nevertheless, we rule that the PEZA is exempt from real property taxes by
virtue of its charter. A provision in the Special Economic Zone Act of 1995
explicitly exempting the PEZA is unnecessary. The PEZA assumed the
real property exemption of the EPZA under Presidential Decree No. 66.
Section 11 of the Special Economic Zone Act of 1995 mandated the EPZA
“to evolve into the PEZA in accordance with the guidelines and regulations
set forth in an executive order issued for this purpose.” President Ramos
then issued Executive Order No. 282 in 1995, ordering the PEZA to
assume the EPZA’s powers, functions, and responsibilities under
Presidential Decree No. 66 not inconsistent with the Special Economic
Zone Act of 1995:chanroblesvirtuallawlibrary
SECTION 1. Assumption of EPZA’s Powers and Functions by PEZA. All

the powers, functions and responsibilities of EPZA as provided under its
Charter, Presidential Decree No. 66, as amended, insofar as they are not
inconsistent with the powers, functions and responsibilities of the PEZA, as
mandated under Republic Act No. 7916, shall hereafter be assumed and
exercised by the PEZA. Henceforth, the EPZA shall be referred to as the
PEZA.
The following sections of the Special Economic Zone Act of 1995 provide
for the PEZA’s powers, functions, and
responsibilities:chanroblesvirtuallawlibrary
SEC. 5. Establishment of ECOZONES. – To ensure the viability and

geographical dispersal of ECOZONES through a system of prioritization,
the following areas are initially identified as ECOZONES, subject to the
criteria specified in Section 6:
....
The metes and bounds of each ECOZONE are to be delineated and more
particularly described in a proclamation to be issued by the President of the
Philippines, upon the recommendation of the Philippine Economic Zone
Authority (PEZA), which shall be established under this Act, in coordination
with the municipal and / or city council, National Land Use Coordinating
Committee and / or the Regional Land Use Committee.
SEC. 6. Criteria for the Establishment of Other ECOZONES. – In addition

to the ECOZONES identified in Section 5 of this Act, other areas may be
established as ECOZONES in a proclamation to be issued by the President
of the Philippines subject to the evaluation and recommendation of the
PEZA, based on a detailed feasibility and engineering study which must
conform to the following criteria:
(a) The proposed area must be identified as a regional growth center in the
Medium-Term Philippine Development Plan or by the Regional
Development Council;
(b) The existence of required infrastructure in the proposed ECOZONE,

such as roads, railways, telephones, ports, airports, etc., and the suitability
and capacity of the proposed site to absorb such improvements;
(c) The availability of water source and electric power supply for use of the
ECOZONE;
(d) The extent of vacant lands available for industrial and commercial
development and future expansion of the ECOZONE as well as of lands
adjacent to the ECOZONE available for development of residential areas
for the ECOZONE workers;
(e) The availability of skilled, semi-skilled and non-skilled trainable labor

force in and around the ECOZONE;
(f) The area must have a significant incremental advantage over the
existing economic zones and its potential profitability can be established;
(g) The area must be strategically located; and
(h) The area must be situated where controls can easily be established to
curtail smuggling activities.
Other areas which do not meet the foregoing criteria may be established as
ECOZONES: Provided, That the said area shall be developed only through
local government and/or private sector initiative under any of the schemes
allowed in Republic Act No. 6957 (the build-operate-transfer law), and
without any financial exposure on the part of the national government:
Provided, further, That the area can be easily secured to curtail smuggling
activities: Provided, finally, That after five (5) years the area must have
attained a substantial degree of development, the indicators of which shall
be formulated by the PEZA.
SEC. 7. ECOZONE to be a Decentralized Agro-Industrial, Industrial,

Commercial / Trading, Tourist, Investment and Financial Community. -
Within the framework of the Constitution, the interest of national
sovereignty and territorial integrity of the Republic, ECOZONE shall be
developed, as much as possible, into a decentralized, self-reliant and self-
sustaining industrial, commercial/trading, agro-industrial, tourist, banking,
financial and investment center with minimum government intervention.
Each ECOZONE shall be provided with transportation,
telecommunications, and other facilities needed to generate linkage with
industries and employment opportunities for its own inhabitants and those
of nearby towns and cities.
The ECOZONE shall administer itself on economic, financial, industrial,

tourism development and such other matters within the exclusive
competence of the national government.
The ECOZONE may establish mutually beneficial economic relations with

other entities within the country, or, subject to the administrative guidance
of the Department of Foreign Affairs and/or the Department of Trade and
Industry, with foreign entities or enterprises.
Foreign citizens and companies owned by non-Filipinos in whatever

proportion may set up enterprises in the ECOZONE, either by themselves
or in joint venture with Filipinos in any sector of industry, international trade
and commerce within the ECOZONE. Their assets, profits and other
legitimate interests shall be protected: Provided, That the ECOZONE
through the PEZA may require a minimum investment for any ECOZONE
enterprises in freely convertible currencies: Provided, further, That the new
investment shall fall under the priorities, thrusts and limits provided for in
the Act.
SEC. 8. ECOZONE to be Operated and Managed as Separate Customs

Territory. – The ECOZONE shall be managed and operated by the PEZA
as separate customs territory.
The PEZA is hereby vested with the authority to issue certificate of origin
for products manufactured or processed in each ECOZONE in accordance
with the prevailing rules or origin, and the pertinent regulations of the
Department of Trade and Industry and/or the Department of Finance.
SEC. 9. Defense and Security. – The defense of the ECOZONE and the
security of its perimeter fence shall be the responsibility of the national
government in coordination with the PEZA. Military forces sent by the
national government for the purpose of defense shall not interfere in the
internal affairs of any of the ECOZONE and expenditure for these military
forces shall be borne by the national government. The PEZA may provide
and establish the ECOZONES’ internal security and firefighting forces.
SEC. 10. Immigration. – Any investor within the ECOZONE whose initial
investment shall not be less than One Hundred Fifty Thousand Dollars
($150,000.00), his/her spouse and dependent children under twenty-one
(21) years of age shall be granted permanent resident status within the
ECOZONE. They shall have freedom of ingress and egress to and from the
ECOZONE without any need of special authorization from the Bureau of
Immigration.
The PEZA shall issue working visas renewable every two (2) years to
foreign executives and other aliens, processing highly-technical skills which
no Filipino within the ECOZONE possesses, as certified by the Department
of Labor and Employment. The names of aliens granted permanent
resident status and working visas by the PEZA shall be reported to the
Bureau of Immigration within thirty (30) days after issuance thereof.
SEC. 13. General Powers and Functions of the Authority. – The PEZA shall
have the following powers and functions:
(a) To operate, administer, manage and develop the ECOZONE according

to the principles and provisions set forth in this Act;
(b) To register, regulate and supervise the enterprises in the ECOZONE in

an efficient and decentralized manner;
(c) To coordinate with local government units and exercise general

supervision over the development, plans, activities and operations of the
ECOZONES, industrial estates, export processing zones, free trade zones,
and the like;
(d) In coordination with local government units concerned and appropriate

agencies, to construct, acquire, own, lease, operate and maintain on its
own or through contract, franchise, license, bulk purchase from the private
sector and build-operate-transfer scheme or joint venture, adequate
facilities and infrastructure, such as light and power systems, water supply
and distribution systems, telecommunication and transportation, buildings,
structures, warehouses, roads, bridges, ports and other facilities for the
operation and development of the ECOZONE;
(e) To create, operate and/or contract to operate such agencies and

functional units or offices of the authority as it may deem necessary;
(f) To adopt, alter and use a corporate seal; make contracts, lease, own or
otherwise dispose of personal or real property; sue and be sued; and
otherwise carry out its duties and functions as provided for in this Act;
(g) To coordinate the formulation and preparation of the development plans

of the different entities mentioned above;
(h) To coordinate with the National Economic Development Authority

(NEDA), the Department of Trade and Industry (DTI), the Department of
Science and Technology (DOST), and the local government units and
appropriate government agencies for policy and program formulation and
implementation; and
(i) To monitor and evaluate the development and requirements of entities in
subsection (a) and recommend to the local government units or other
appropriate authorities the location, incentives, basic services, utilities and
infrastructure required or to be made available for said entities.
SEC. 17. Investigation and Inquiries. – Upon a written formal complaint

made under oath, which on its face provides reasonable basis to believe
that some anomaly or irregularity might have been committed, the PEZA or
the administrator of the ECOZONE concerned, shall have the power to
inquire into the conduct of firms or employees of the ECOZONE and to
conduct investigations, and for that purpose may subpoena witnesses,
administer oaths, and compel the production of books, papers, and other
evidences: Provided, That to arrive at the truth, the investigator(s) may
grant immunity from prosecution to any person whose testimony or whose
possessions of documents or other evidence is necessary or convenient to
determine the truth in any investigation conducted by him or under the
authority of the PEZA or the administrator of the ECOZONE concerned.
SEC. 21. Development Strategy of the ECOZONE. - The strategy and

priority of development of each ECOZONE established pursuant to this Act
shall be formulated by the PEZA, in coordination with the Department of
Trade and Industry and the National Economic and Development Authority;
Provided, That such development strategy is consistent with the priorities of
the national government as outlined in the medium-term Philippine
development plan. It shall be the policy of the government and the PEZA to
encourage and provide Incentives and facilitate private sector participation
in the construction and operation of public utilities and infrastructure in the
ECOZONE, using any of the schemes allowed in Republic Act No. 6957
(the build-operate-transfer law).
SEC. 22. Survey of Resources. The PEZA shall, in coordination with

appropriate authorities and neighboring cities and
municipalities, immediately conduct a survey of the physical, natural assets

and potentialities of the ECOZONE areas under its
jurisdiction.
SEC. 26. Domestic Sales. – Goods manufactured by an ECOZONE

enterprise shall be made available for immediate retail sales in the
domestic market, subject to payment of corresponding taxes on the raw
materials and other regulations that may be adopted by the Board of the
PEZA.
However, in order to protect the domestic industry, there shall be a

negative list of Industries that will be drawn up by the PEZA. Enterprises
engaged in the industries included in the negative list shall not be allowed
to sell their products locally. Said negative list shall be regularly updated by
the PEZA.
The PEZA, in coordination with the Department of Trade and Industry and
the Bureau of Customs, shall jointly issue the necessary implementing
rules and guidelines for the effective Implementation of this section.
SEC. 29. Eminent Domain. – The areas comprising an ECOZONE may be

expanded or reduced when necessary. For this purpose, the government
shall have the power to acquire, either by purchase, negotiation or
condemnation proceedings, any private lands within or adjacent to the
ECOZONE for:
a. Consolidation of lands for zone development purposes;
b. Acquisition of right of way to the ECOZONE; and
c. The protection of watershed areas and natural assets valuable to the

prosperity of the ECOZONE.
If in the establishment of a publicly-owned ECOZONE, any person or group

of persons who has been occupying a parcel of land within the Zone has to
be evicted, the PEZA shall provide the person or group of persons
concerned with proper disturbance compensation: Provided, however, That
in the case of displaced agrarian reform beneficiaries, they shall be entitled
to the benefits under the Comprehensive Agrarian Reform Law, including
but not limited to Section 36 of Republic Act No. 3844, in addition to a
homelot in the relocation site and preferential employment in the project
being undertaken.
SEC. 32. Shipping and Shipping Register. – Private shipping and related
business including private container terminals may operate freely in the
ECOZONE, subject only to such minimum reasonable regulations of local
application which the PEZA may prescribe.
The PEZA shall, in coordination with the Department of Transportation and

Communications, maintain a shipping register for each ECOZONE as a
business register of convenience for ocean-going vessels and issue related
certification.
Ships of all sizes, descriptions and nationalities shall enjoy access to the
ports of the ECOZONE, subject only to such reasonable requirement as
may be prescribed by the PEZA In coordination with the appropriate
agencies of the national government.
SEC. 33. Protection of Environment. - The PEZA, in coordination with the

appropriate agencies, shall take concrete and appropriate steps and enact
the proper measure for the protection of the local environment.
SEC. 34. Termination of Business. - Investors In the ECOZONE who desire

to terminate business or operations shall comply with such requirements
and procedures which the PEZA shall set, particularly those relating to the
clearing of debts. The assets of the closed enterprise can be transferred
and the funds con be remitted out of the ECOZONE subject to the rules,
guidelines and procedures prescribed jointly by the Bangko Sentral ng
Pilipinas, the Department of Finance and the PEZA.
SEC. 35. Registration of Business Enterprises. - Business enterprises

within a designated ECOZONE shall register with the PEZA to avail of all
incentives and benefits provided for in this Act.
SEC. 36. One Stop Shop Center. - The PEZA shall establish a one stop
shop center for the purpose of facilitating the registration of new enterprises
in the ECOZONE. Thus, all appropriate government agencies that are
Involved In registering, licensing or issuing permits to investors shall assign
their representatives to the ECOZONE to attend to Investor’s requirements.
SEC. 39. Master Employment Contracts. - The PEZA, in coordination with

the Department of Tabor and Employment, shall prescribe a master
employment contract for all ECOZONE enterprise staff members and
workers, the terms of which provide salaries and benefits not less than
those provided under this Act, the Philippine Labor Code, as amended, and
other relevant issuances of the national government.
SEC. 41. Migrant Worker. - The PEZA, in coordination with the Department
of Labor and Employment, shall promulgate appropriate measures and
programs leading to the expansion of the services of the ECOZONE to help
the local governments of nearby areas meet the needs of the migrant
workers.
SEC. 42. Incentive Scheme. - An additional deduction equivalent to one-

half (1/2) of the value of training expenses incurred in developing skilled or
unskilled labor or for managerial or other management development
programs incurred by enterprises in the ECOZONE can be deducted from
the national government's share of three percent (3%) as provided In
Section 24.
The PEZA, the Department of Labor and Employment, and the Department
of Finance shall jointly make a review of the incentive scheme provided In
this section every two (2) years or when circumstances so warrant.
SEC. 43. Relationship with the Regional Development Council. - The PEZA
shall determine the development goals for the ECOZONE within the
framework of national development plans, policies and goals, and the
administrator shall, upon approval by the PEZA Board, submit the
ECOZONE plans, programs and projects to the regional development
council for inclusion in and as inputs to the overall regional development
plan.
SEC. 44. Relationship with the Local Government Units. - Except as herein
provided, the local government units comprising the ECOZONE shall retain
their basic autonomy and identity. The cities shall be governed by their
respective charters and the municipalities shall operate and function In
accordance with Republic Act No. 7160, otherwise known as the Local
Government
Code of 1991.
SEC. 45. Relationship of PEZA to Privately-Owned Industrial Estates. –

Privately-owned industrial estates shall retain their autonomy and
independence and shall be monitored by the PEZA for the implementation
of incentives.
SEC. 46. Transfer of Resources. - The relevant functions of the Board of

Investments over industrial estates and agri-export processing estates shall
be transferred to the PEZA. The resources of government-owned Industrial
estates and similar bodies except the Bases Conversion Development
Authority and those areas identified under Republic Act No. 7227, are
hereby transferred to the PEZA as the holding agency. They are hereby
detached from their mother agencies and attached to the PEZA for policy,
program and operational supervision.
The Boards of the affected government-owned industrial estates shall be

phased out and only the management level and an appropriate number of
personnel shall be retained.
Government personnel whose services are not retained by the PEZA or

any government office within the ECOZONE shall be entitled to separation
pay and such retirement and other benefits they are entitled to under the
laws then in force at the time of their separation: Provided, That in no case
shall the separation pay be less than one and one-fourth (1 1/4) month of
every year of service.
The non-profit character of the EPZA under Presidential Decree No. 66 is

not inconsistent with any of the powers, functions, and responsibilities of
the PEZA. The EPZA’s non-profit character, including the EPZA’s
exemption from real property taxes, must be deemed assumed by the
PEZA.
In addition, the Local Government Code exempting instrumentalities of the

national government from real property taxes was already in force274 when
the PEZA’s charter was enacted in 1995. It would have been redundant to
provide for the PEZA’s exemption in its charter considering that the PEZA
is already exempt by virtue of Section 133(o) of the Local Government
Code.
As for the EPZA, Commonwealth Act No. 470 or the Assessment Law was
in force when the EPZA’s charter was enacted. Unlike the Local
Government Code, Commonwealth Act No. 470 does not contain a
provision specifically exempting instrumentalities of the national
government from payment of real property taxes.275 It was necessary to
put an exempting provision in the EPZA’s charter.
Contrary to the PEZA’s claim, however, Section 24 of the Special

Economic Zone Act of 1995 is not a basis for the PEZA’s exemption.
Section 24 of the Special Economic Zone Act of 1995
Sec. 24. Exemption from National and Local Taxes. — Except for real
property taxes on land owned by developers, no taxes, local and national,
shall be imposed on business establishments operating within the
ECOZONE. In lieu thereof, five percent (5%) of the gross income earned
by all business enterprises within the ECOZONE shall be paid and remitted
as follows:chanroblesvirtuallawlibrary
(a) Three percent (3%) to the National Government;
(b) Two percent (2%) which shall be directly remitted by the business
establishments to the treasurer's office of the municipality or city where the
enterprise is located. (Emphasis supplied)
Tax exemptions provided under Section 24 apply only to business

establishments operating within economic zones. Considering that the
PEZA is not a business establishment but an instrumentality performing
governmental functions, Section 24 is inapplicable to the PEZA.
Also, contrary to the PEZA’s claim, developers of economic zones, whether

public or private developers, are liable for real property taxes on lands they
own. Section 24 does not distinguish between a public and private
developer. Thus, courts cannot distinguish.276 Unless the public developer
is exempt under the Local Government Code or under its charter enacted
after the Local Government Code’s effectivity, the public developer must
pay real property taxes on their land.
At any rate, the PEZA cannot be taxed for real property taxes even if it acts
as a developer or operator of special economic zones. The PEZA is an
instrumentality of the national government exempt from payment of real
property taxes under Section 133(o) of the Local Government Code. As
this court said in Manila International Airport Authority, “there must be
express language in the law empowering local governments to tax national
government instrumentalities. Any doubt whether such power exists is
resolved against local governments.”277chanRoblesvirtualLawlibrary
V. (C)
Real properties under the PEZA’s title are owned by the Republic of
the Philippines
Under Section 234(a) of the Local Government Code, real properties
owned by the Republic of the Philippines are exempt from real property
granted, for consideration or otherwise, to a taxable person[.]
Properties owned by the state are either property of public dominion or

patrimonial property. Article 420 of the Civil Code of the Philippines
enumerates property of public dominion:chanroblesvirtuallawlibrary
Art. 420. The following things are property of public dominion:
(1) Those intended for public use, such as roads, canals, rivers, torrents,
ports and bridges constructed by the State, banks, shores, roadsteads, and
others of similar character;
(2) Those which belong to the State, without belonging for public use, and
are intended for some public service or for the development of the national
wealth.
Properties of public dominion are outside the commerce of man. These

properties are exempt from “levy, encumbrance or disposition through
public or private sale.”278 As this court explained in Manila International
Airport Authority:chanroblesvirtuallawlibrary
Properties of public dominion, being for public use, are not subject to levy,
encumbrance or disposition through public or private sale. Any
encumbrance, levy on execution or auction sale of any property of public
dominion is void for being contrary to public policy. Essential public
services will stop if properties of public dominion are subject to
encumbrances, foreclosures and auction sale[.]279
On the other hand, all other properties of the state that are not intended for
public use or are not intended for some public service or for the
development of the national wealth are patrimonial properties. Article 421
of the Civil Code of the Philippines provides:chanroblesvirtuallawlibrary
Art. 421. All other property of the State, which is not of the character stated
in the preceding article, is patrimonial property.
Patrimonial properties are also properties of the state, but the state may
dispose of its patrimonial property similar to private persons disposing of
their property. Patrimonial properties are within the commerce of man and
are susceptible to prescription, unless otherwise
provided.280chanRoblesvirtualLawlibrary
In this case, the properties sought to be taxed are located in publicly owned
economic zones. These economic zones are property of public dominion.
The City seeks to tax properties located within the Mactan Economic
Zone,281 the site of which was reserved by President Marcos under
Proclamation No. 1811, Series of 1979. Reserved lands are lands of the
public domain set aside for settlement or public use, and for specific public
purposes by virtue of a presidential proclamation.282 Reserved lands are
inalienable and outside the commerce of man,283 and remain property of
the Republic until withdrawn from public use either by law or presidential
proclamation.284 Since no law or presidential proclamation has been issued
withdrawing the site of the Mactan Economic Zone from public use, the
property remains reserved land.
As for the Bataan Economic Zone, the law consistently characterized the
property as a port. Under Republic Act No. 5490, Congress declared
Mariveles, Bataan “a principal port of entry”285 to serve as site of a foreign
trade zone where foreign and domestic merchandise may be brought in
without being subject to customs and internal revenue laws and regulations
of the Philippines.286 Section 4 of Republic Act No. 5490 provided that the
foreign trade zone in Mariveles, Bataan “shall at all times remain to be
owned by the Government”:chanroblesvirtuallawlibrary
SEC. 4. Powers and Duties. – The Foreign Trade Zone Authority shall have
the following powers and duties:
a. To fix and delimit the site of the Zone which at all times remain to be
owned by the Government, and which shall have a contiguous and
adequate area with well defined and policed boundaries, with
adequate enclosures to segregate the Zone from the customs
territory for protection of revenues, together with suitable provisions
for ingress and egress of persons, conveyance, vessels and
merchandise sufficient for the purpose of this Act[.] (Emphasis
supplied)
The port in Mariveles, Bataan then became the Bataan Economic Zone
under the Special Economic Zone Act of 1995.287 Republic Act No. 9728
then converted the Bataan Economic Zone into the Freeport Area of
A port of entry, where imported goods are unloaded then introduced in the
market for public consumption, is considered property for public use. Thus,
Article 420 of the Civil Code classifies a port as property of public
dominion. The Freeport Area of Bataan, where the government allows tax
and duty-free importation of goods,289 is considered property of public
dominion. The Freeport Area of Bataan is owned by the state and cannot
be taxed under Section 234(a) of the Local Government Code.
Properties of public dominion, even if titled in the name of an

instrumentality as in this case, remain owned by the Republic of the
Philippines. If property registered in the name of an instrumentality is
conveyed to another person, the property is considered conveyed on behalf
of the Republic of the Philippines. Book I, Chapter 12, Section 48 of the
Administrative Code of 1987 provides:chanroblesvirtuallawlibrary
SEC. 48. Official Authorized to Convey Real Property. – Whenever real

property of the government is authorized by law to be conveyed, the deed
of conveyance shall be executed in behalf of the government by the
following:
....
(2) For property belonging to the Republic of the Philippines, but titled in
the name of any political subdivision or of any corporate agency
or instrumentality, by the executive head of the agency or instrumentality.
(Emphasis supplied)
In Manila International Airport Authority, this court

[The exemption under Section 234(a) of the Local Government Code]

should be read in relation with Section 133(o) of the same Code, which
prohibits local governments from imposing “[t]axes, fess or charges of any
kind on the National Government, its agencies and instrumentalities x x
x.” The real properties owned by the Republic are titled either in the name
of the Republic itself or in the name of agencies or instrumentalities of the
National Government. The Administrative Code allows real property owned
by the Republic to be titled in the name of agencies or instrumentalities of
the national government. Such real properties remained owned by the
Republic of the Philippines and continue to be exempt from real estate tax.
The Republic may grant the beneficial use of its real property to an agency
or instrumentality of the national government. This happens when title of
the real property is transferred to an agency or instrumentality even as the
Republic remains the owner of the real property. Such arrangement does
not result in the loss of the tax exemption/ Section 234(a) of the Local
Government Code states that real property owned by the Republic loses its
tax exemption only if the “beneficial use thereof has been granted, for
consideration or otherwise, to a taxable person.” . . .290 (Emphasis in the
original; italics supplied)
Even the PEZA’s lands and buildings whose beneficial use have been
granted to other persons may not be taxed with real property taxes. The
PEZA may only lease its lands and buildings to PEZA-registered economic
zone enterprises and entities.291 These PEZA-registered enterprises and
entities, which operate within economic zones, are not subject to real
property taxes. Under Section 24 of the Special Economic Zone Act of
1995, no taxes, whether local or national, shall be imposed on all business
establishments operating within the economic
zones:chanroblesvirtuallawlibrary
property on land owned by developers, no taxes, local and national, shall
be imposed on business establishments operating within the ECOZONE. In
lieu thereof, five percent (5%) of the gross income earned by all business
enterprises within the ECOZONE shall be paid and remitted as follows:

enterprise is located.292 (Emphasis supplied)
In lieu of revenues from real property taxes, the City of Lapu-Lapu collects
two-fifths of 5% final tax on gross income paid by all business
establishments operating within the Mactan Economic
Zone:chanroblesvirtuallawlibrary
property on land owned by developers, no taxes, local and national, shall
be imposed on business establishments operating within the ECOZONE. In
lieu thereof, five percent (5%) of the gross income earned by all business
enterprises within the ECOZONE shall be paid and remitted as follows:

enterprise is located.293 (Emphasis supplied)
For its part, the Province of Bataan collects a fifth of the 5% final tax on
gross income paid by all business establishments operating within the
Freeport Area of Bataan:chanroblesvirtuallawlibrary
Section 6. Imposition of a Tax Rate of Five Percent (5%) on Gross Income

Earned. - No taxes, local and national, shall be imposed on business
establishments operating within the FAB. In lieu thereof, said business
establishments shall pay a five percent (5%) final tax on their gross income
earned in the following percentages:
(a) One per centum (1%) to the National Government;
(b) One per centum (1%) to the Province of Bataan;
(c) One per centum (1%) to the treasurer's office of the Municipality of
Mariveles; and
(d) Two per centum (2%) to the Authority of the Freeport of Area of
Bataan.294 (Emphasis supplied)
Petitioners, therefore, are not deprived of revenues from the operations of

economic zones within their respective territorial jurisdictions. The national
government ensured that local government units comprising economic
zones shall retain their basic autonomy and
identity.295chanRoblesvirtualLawlibrary
All told, the PEZA is an instrumentality of the national government.
Furthermore, the lands owned by the PEZA are real properties owned by
the Republic of the Philippines. The City of Lapu-Lapu and the Province of
Bataan cannot collect real property taxes from the PEZA.chanrobleslaw
WHEREFORE, the consolidated petitions are DENIED.
SO ORDERED.cralawlawlibrary
JENNY M. AGABON and G.R. No. 158693
VIRGILIO C. AGABON,
Petitioners, Present:
Davide, Jr., C.J.,
Puno,
Panganiban,
Quisumbing,
Ynares-Santiago,
Sandoval-Gutierrez,
- versus - Carpio,
Austria-Martinez,
Corona,
Carpio-Morales,
Callejo, Sr.,
Azcuna,
Tinga,
Chico-Nazario, and
Garcia, JJ.
NATIONAL LABOR RELATIONS
COMMISSION (NLRC), RIVIERA
HOME IMPROVEMENTS, INC. Promulgated:
and VICENTE ANGELES,
Respondents. November 17, 2004
x ---------------------------------------------------------------------------------------- x
DECISION
YNARES-SANTIAGO, J.:
This petition for review seeks to reverse the decision[1] of the Court of
Appeals dated January 23, 2003, in CA-G.R. SP No. 63017, modifying the
decision of National Labor Relations Commission (NLRC) in NLRC-NCR
Case No. 023442-00.
Private respondent Riviera Home Improvements, Inc. is engaged in the

business of selling and installing ornamental and construction materials. It
employed petitioners Virgilio Agabon and Jenny Agabon as gypsum board
and cornice installers on January 2, 1992[2] until February 23, 1999 when
they were dismissed for abandonment of work.
Petitioners then filed a complaint for illegal dismissal and payment of
money claims[3] and on December 28, 1999, the Labor Arbiter rendered a
decision declaring the dismissals illegal and ordered private respondent to
pay the monetary claims. The dispositive portion of the decision states:
WHEREFORE, premises considered, We find the termination of the

complainants illegal. Accordingly, respondent is hereby ordered to pay
them their backwages up to November 29, 1999 in the sum of:
1. Jenny M. Agabon - P56, 231.93
2. Virgilio C. Agabon - 56, 231.93
and, in lieu of reinstatement to pay them their separation pay of one (1)
month for every year of service from date of hiring up to November 29,
1999.
Respondent is further ordered to pay the complainants their holiday pay

and service incentive leave pay for the years 1996, 1997 and 1998 as well
as their premium pay for holidays and rest days and Virgilio Agabons
13th month pay differential amounting to TWO THOUSAND ONE
HUNDRED FIFTY (P2,150.00) Pesos, or the aggregate amount of ONE
HUNDRED TWENTY ONE THOUSAND SIX HUNDRED SEVENTY EIGHT
& 93/100 (P121,678.93) Pesos for Jenny Agabon, and ONE HUNDRED
TWENTY THREE THOUSAND EIGHT HUNDRED TWENTY EIGHT &
93/100 (P123,828.93) Pesos for Virgilio Agabon, as per attached
computation of Julieta C. Nicolas, OIC, Research and Computation Unit,
NCR.
SO ORDERED.[4]
On appeal, the NLRC reversed the Labor Arbiter because it found that the
petitioners had abandoned their work, and were not entitled to backwages
and separation pay. The other money claims awarded by the Labor Arbiter
were also denied for lack of evidence.[5]
Upon denial of their motion for reconsideration, petitioners filed a petition

for certiorari with the Court of Appeals.
The Court of Appeals in turn ruled that the dismissal of the petitioners was
not illegal because they had abandoned their employment but ordered the
payment of money claims. The dispositive portion of the decision reads:
WHEREFORE, the decision of the National Labor Relations Commission is

REVERSED only insofar as it dismissed petitioners money claims. Private
respondents are ordered to pay petitioners holiday pay for four (4) regular
holidays in 1996, 1997, and 1998, as well as their service incentive leave
pay for said years, and to pay the balance of petitioner Virgilio Agabons
13th month pay for 1998 in the amount of P2,150.00.
SO ORDERED.[6]
Hence, this petition for review on the sole issue of whether petitioners were
illegally dismissed.[7]
Petitioners assert that they were dismissed because the private respondent
refused to give them assignments unless they agreed to work on
a pakyaw basis when they reported for duty on February 23, 1999. They
did not agree on this arrangement because it would mean losing benefits
as Social Security System (SSS) members. Petitioners also claim that
private respondent did not comply with the twin requirements of notice and
hearing.[8]
Private respondent, on the other hand, maintained that petitioners were not
dismissed but had abandoned their work.[9] In fact, private respondent sent
two letters to the last known addresses of the petitioners advising them to
report for work. Private respondents manager even talked to petitioner
Virgilio Agabon by telephone sometime in June 1999 to tell him about the
new assignment at Pacific Plaza Towers involving 40,000 square meters of
cornice installation work. However, petitioners did not report for work
because they had subcontracted to perform installation work for another
company. Petitioners also demanded for an increase in their wage to
P280.00 per day. When this was not granted, petitioners stopped reporting
for work and filed the illegal dismissal case.[10]
It is well-settled that findings of fact of quasi-judicial agencies like the NLRC

are accorded not only respect but even finality if the findings are supported
by substantial evidence. This is especially so when such findings were
affirmed by the Court of Appeals.[11] However, if the factual findings of the
NLRC and the Labor Arbiter are conflicting, as in this case, the reviewing
court may delve into the records and examine for itself the questioned
findings.[12]
Accordingly, the Court of Appeals, after a careful review of the facts, ruled
that petitioners dismissal was for a just cause. They had abandoned their
employment and were already working for another employer.
To dismiss an employee, the law requires not only the existence of a just
and valid cause but also enjoins the employer to give the employee the
opportunity to be heard and to defend himself.[13]Article 282 of the Labor
Code enumerates the just causes for termination by the employer: (a)
serious misconduct or willful disobedience by the employee of the lawful
orders of his employer or the latters representative in connection with the
employees work; (b) gross and habitual neglect by the employee of his
duties; (c) fraud or willful breach by the employee of the trust reposed in
him by his employer or his duly authorized representative; (d) commission
of a crime or offense by the employee against the person of his employer
or any immediate member of his family or his duly authorized
representative; and (e) other causes analogous to the foregoing.
Abandonment is the deliberate and unjustified refusal of an employee to

resume his employment.[14] It is a form of neglect of duty, hence, a just
cause for termination of employment by the employer.[15] For a valid finding
of abandonment, these two factors should be present: (1) the failure to
report for work or absence without valid or justifiable reason; and (2) a clear
intention to sever employer-employee relationship, with the second as the
more determinative factor which is manifested by overt acts from which it
may be deduced that the employees has no more intention to work. The
intent to discontinue the employment must be shown by clear proof that it
was deliberate and unjustified.[16]
In February 1999, petitioners were frequently absent having subcontracted

for an installation work for another company. Subcontracting for another
company clearly showed the intention to sever the employer-employee
relationship with private respondent. This was not the first time they did
this. In January 1996, they did not report for work because they were
working for another company. Private respondent at that time warned
petitioners that they would be dismissed if this happened again. Petitioners
disregarded the warning and exhibited a clear intention to sever their
employer-employee relationship. The record of an employee is a relevant
consideration in determining the penalty that should be meted out to him.[17]
In Sandoval Shipyard v. Clave,[18] we held that an employee who

deliberately absented from work without leave or permission from his
employer, for the purpose of looking for a job elsewhere, is considered to
have abandoned his job. We should apply that rule with more reason here
where petitioners were absent because they were already working in
another company.
The law imposes many obligations on the employer such as providing just
compensation to workers, observance of the procedural requirements of
notice and hearing in the termination of employment. On the other hand,
the law also recognizes the right of the employer to expect from its workers
not only good performance, adequate work and diligence, but also good
conduct[19] and loyalty. The employer may not be compelled to continue to
employ such persons whose continuance in the service will patently be
inimical to his interests.[20]
After establishing that the terminations were for a just and valid cause, we
now determine if the procedures for dismissal were observed.
The procedure for terminating an employee is found in Book VI, Rule I,

Section 2(d) of the Omnibus Rules Implementing the Labor Code:
Standards of due process: requirements of notice. In all cases of

termination of employment, the following standards of due process shall be
substantially observed:
I. For termination of employment based on just causes as defined in Article

282 of the Code:
(a) A written notice served on the employee specifying the ground or

grounds for termination, and giving to said employee reasonable
opportunity within which to explain his side;
(b) A hearing or conference during which the employee concerned, with the
assistance of counsel if the employee so desires, is given opportunity to
respond to the charge, present his evidence or rebut the evidence
presented against him; and
(c) A written notice of termination served on the employee indicating that

upon due consideration of all the circumstances, grounds have been
established to justify his termination.
In case of termination, the foregoing notices shall be served on the

employees last known address.
Dismissals based on just causes contemplate acts or omissions attributable

to the employee while dismissals based on authorized causes involve
grounds under the Labor Code which allow the employer to terminate
employees. A termination for an authorized cause requires payment of
separation pay. When the termination of employment is declared illegal,
reinstatement and full backwages are mandated under Article 279. If
reinstatement is no longer possible where the dismissal was unjust,
separation pay may be granted.
Procedurally, (1) if the dismissal is based on a just cause under Article 282,
the employer must give the employee two written notices and a hearing or
opportunity to be heard if requested by the employee before terminating the
employment: a notice specifying the grounds for which dismissal is sought
a hearing or an opportunity to be heard and after hearing or opportunity to
be heard, a notice of the decision to dismiss; and (2) if the dismissal is
based on authorized causes under Articles 283 and 284, the employer
must give the employee and the Department of Labor and Employment
written notices 30 days prior to the effectivity of his separation.
From the foregoing rules four possible situations may be derived: (1) the
dismissal is for a just cause under Article 282 of the Labor Code, for an
authorized cause under Article 283, or for health reasons under Article 284,
and due process was observed; (2) the dismissal is without just or
authorized cause but due process was observed; (3) the dismissal is
without just or authorized cause and there was no due process; and (4) the
dismissal is for just or authorized cause but due process was not observed.
In the first situation, the dismissal is undoubtedly valid and the employer
will not suffer any liability.
In the second and third situations where the dismissals are illegal, Article
279 mandates that the employee is entitled to reinstatement without loss of
seniority rights and other privileges and full backwages, inclusive of
allowances, and other benefits or their monetary equivalent computed from
the time the compensation was not paid up to the time of actual
reinstatement.
In the fourth situation, the dismissal should be upheld. While the procedural
infirmity cannot be cured, it should not invalidate the dismissal. However,
the employer should be held liable for non-compliance with the procedural
requirements of due process.
The present case squarely falls under the fourth situation. The dismissal
should be upheld because it was established that the petitioners
abandoned their jobs to work for another company. Private respondent,
however, did not follow the notice requirements and instead argued that
sending notices to the last known addresses would have been useless
because they did not reside there anymore. Unfortunately for the private
respondent, this is not a valid excuse because the law mandates the twin
notice requirements to the employees last known address.[21] Thus, it
should be held liable for non-compliance with the procedural requirements
of due process.
A review and re-examination of the relevant legal principles is appropriate

and timely to clarify the various rulings on employment termination in the
light of Serrano v. National Labor Relations Commission.[22]
Prior to 1989, the rule was that a dismissal or termination is illegal if the
employee was not given any notice. In the 1989 case of Wenphil Corp. v.
National Labor Relations Commission,[23] we reversed this long-standing
rule and held that the dismissed employee, although not given any notice
and hearing, was not entitled to reinstatement and backwages because the
dismissal was for grave misconduct and insubordination, a just ground for
termination under Article 282. The employee had a violent temper and
caused trouble during office hours, defying superiors who tried to pacify
him. We concluded that reinstating the employee and awarding backwages
may encourage him to do even worse and will render a mockery of the
rules of discipline that employees are required to observe.[24] We further
held that:
Under the circumstances, the dismissal of the private respondent for just
cause should be maintained. He has no right to return to his former
employment.
However, the petitioner must nevertheless be held to account for failure to
extend to private respondent his right to an investigation before causing his
dismissal. The rule is explicit as above discussed. The dismissal of an
employee must be for just or authorized cause and after due process.
Petitioner committed an infraction of the second requirement. Thus, it must
be imposed a sanction for its failure to give a formal notice and conduct an
investigation as required by law before dismissing petitioner from
employment. Considering the circumstances of this case petitioner must
indemnify the private respondent the amount of P1,000.00. The measure of
this award depends on the facts of each case and the gravity of the
omission committed by the employer.[25]
The rule thus evolved: where the employer had a valid reason to dismiss
an employee but did not follow the due process requirement, the dismissal
may be upheld but the employer will be penalized to pay an indemnity to
the employee. This became known as the Wenphil or Belated Due Process
Rule.
On January 27, 2000, in Serrano, the rule on the extent of the sanction was
changed. We held that the violation by the employer of the notice
requirement in termination for just or authorized causes was not a denial of
due process that will nullify the termination. However, the dismissal is
ineffectual and the employer must pay full backwages from the time of
termination until it is judicially declared that the dismissal was for a just or
authorized cause.
The rationale for the re-examination of the Wenphil doctrine in Serrano was
the significant number of cases involving dismissals without requisite
notices. We concluded that the imposition of penalty by way of damages for
violation of the notice requirement was not serving as a deterrent. Hence,
we now required payment of full backwages from the time of dismissal until
the time the Court finds the dismissal was for a just or authorized cause.
Serrano was confronting the practice of employers to dismiss now and pay
later by imposing full backwages.
We believe, however, that the ruling in Serrano did not consider the full
meaning of Article 279 of the Labor Code which states:
ART. 279. Security of Tenure. In cases of regular employment, the

employer shall not terminate the services of an employee except for a just
cause or when authorized by this Title. An employee who is unjustly
dismissed from work shall be entitled to reinstatement without loss of
seniority rights and other privileges and to his full backwages, inclusive of
allowances, and to his other benefits or their monetary equivalent
computed from the time his compensation was withheld from him up to the
time of his actual reinstatement.
This means that the termination is illegal only if it is not for any of the
justified or authorized causes provided by law. Payment of backwages and
other benefits, including reinstatement, is justified only if the employee was
unjustly dismissed.
The fact that the Serrano ruling can cause unfairness and injustice which
elicited strong dissent has prompted us to revisit the doctrine.
To be sure, the Due Process Clause in Article III, Section 1 of the
Constitution embodies a system of rights based on moral principles so
deeply imbedded in the traditions and feelings of our people as to be
deemed fundamental to a civilized society as conceived by our entire
history. Due process is that which comports with the deepest notions of
what is fair and right and just.[26] It is a constitutional restraint on the
legislative as well as on the executive and judicial powers of the
government provided by the Bill of Rights.
Due process under the Labor Code, like Constitutional due process, has
two aspects: substantive, i.e., the valid and authorized causes of
employment termination under the Labor Code; and procedural, i.e., the
manner of dismissal. Procedural due process requirements for dismissal
are found in the Implementing Rules of P.D. 442, as amended, otherwise
known as the Labor Code of the Philippines in Book VI, Rule I, Sec. 2, as
amended by Department Order Nos. 9 and 10.[27] Breaches of these due
process requirements violate the Labor Code. Therefore statutory due
processshould be differentiated from failure to comply with constitutional
due process.
Constitutional due process protects the individual from the government and
assures him of his rights in criminal, civil or administrative proceedings;
while statutory due process found in the Labor Code and Implementing
Rules protects employees from being unjustly terminated without just cause
after notice and hearing.
In Sebuguero v. National Labor Relations Commission,[28] the dismissal

was for a just and valid cause but the employee was not accorded due
process. The dismissal was upheld by the Court but the employer was
sanctioned. The sanction should be in the nature of indemnification or
penalty, and depends on the facts of each case and the gravity of the
omission committed by the employer.
In Nath v. National Labor Relations Commission,[29] it was ruled that even if

the employee was not given due process, the failure did not operate to
eradicate the just causes for dismissal. The dismissal being for just
cause, albeit without due process, did not entitle the employee to
reinstatement, backwages, damages and attorneys fees.
Mr. Justice Jose C. Vitug, in his separate opinion in MGG Marine Services,
Inc. v. National Labor Relations Commission,[30] which opinion he reiterated
in Serrano, stated:
C. Where there is just cause for dismissal but due process has not been
properly observed by an employer, it would not be right to order either the
reinstatement of the dismissed employee or the payment of backwages to
him. In failing, however, to comply with the procedure prescribed by law in
terminating the services of the employee, the employer must be deemed to
have opted or, in any case, should be made liable, for the payment of
separation pay. It might be pointed out that the notice to be given and the
hearing to be conducted generally constitute the two-part due process
requirement of law to be accorded to the employee by the employer.
Nevertheless, peculiar circumstances might obtain in certain situations
where to undertake the above steps would be no more than a useless
formality and where, accordingly, it would not be imprudent to apply the res
ipsa loquitur rule and award, in lieu of separation pay, nominal damages to
the employee. x x x.[31]
After carefully analyzing the consequences of the divergent doctrines in the

law on employment termination, we believe that in cases involving
dismissals for cause but without observance of the twin requirements of
notice and hearing, the better rule is to abandon the Serrano doctrine and
to follow Wenphil by holding that the dismissal was for just cause but
imposing sanctions on the employer. Such sanctions, however, must be
stiffer than that imposed in Wenphil. By doing so, this Court would be able
to achieve a fair result by dispensing justice not just to employees, but to
employers as well.
The unfairness of declaring illegal or ineffectual dismissals for valid or

authorized causes but not complying with statutory due process may have
far-reaching consequences.
This would encourage frivolous suits, where even the most notorious
violators of company policy are rewarded by invoking due process. This
also creates absurd situations where there is a just or authorized cause for
dismissal but a procedural infirmity invalidates the termination. Let us take
for example a case where the employee is caught stealing or threatens the
lives of his co-employees or has become a criminal, who has fled and
cannot be found, or where serious business losses demand that operations
be ceased in less than a month. Invalidating the dismissal would not serve
public interest. It could also discourage investments that can generate
employment in the local economy.
The constitutional policy to provide full protection to labor is not meant to be

a sword to oppress employers. The commitment of this Court to the cause
of labor does not prevent us from sustaining the employer when it is in the
right, as in this case.[32] Certainly, an employer should not be compelled to
pay employees for work not actually performed and in fact abandoned.
The employer should not be compelled to continue employing a person
who is admittedly guilty of misfeasance or malfeasance and whose
continued employment is patently inimical to the employer. The law
protecting the rights of the laborer authorizes neither oppression nor self-
destruction of the employer.[33]
It must be stressed that in the present case, the petitioners committed a

grave offense, i.e., abandonment, which, if the requirements of due process
were complied with, would undoubtedly result in a valid dismissal.
An employee who is clearly guilty of conduct violative of Article 282 should

not be protected by the Social Justice Clause of the Constitution. Social
justice, as the term suggests, should be used only to correct an injustice.
As the eminent Justice Jose P. Laurel observed, social justice must be
founded on the recognition of the necessity of interdependence among
diverse units of a society and of the protection that should be equally
and evenly extended to all groups as a combined force in our social
and economic life, consistent with the fundamental and paramount
objective of the state of promoting the health, comfort, and quiet of all
persons, and of bringing about the greatest good to the greatest number.[34]
This is not to say that the Court was wrong when it ruled the way it
did in Wenphil, Serrano and related cases. Social justice is not based
on rigid formulas set in stone. It has to allow for changing times and
circumstances.
Justice Isagani Cruz strongly asserts the need to apply a balanced

approach to labor-management relations and dispense justice with an even
hand in every case:
We have repeatedly stressed that social justice or any justice for that
matter is for the deserving, whether he be a millionaire in his mansion or a
pauper in his hovel. It is true that, in case of reasonable doubt, we are to tilt
the balance in favor of the poor to whom the Constitution fittingly extends
its sympathy and compassion. But never is it justified to give preference to
the poor simply because they are poor, or reject the rich simply because
they are rich, for justice must always be served for the poor and the rich
alike, according to the mandate of the law.[35]
Justice in every case should only be for the deserving party. It should not
be presumed that every case of illegal dismissal would automatically be
decided in favor of labor, as management has rights that should be fully
respected and enforced by this Court. As interdependent and indispensable
partners in nation-building, labor and management need each other to
foster productivity and economic growth; hence, the need to weigh and
balance the rights and welfare of both the employee and employer.
Where the dismissal is for a just cause, as in the instant case, the lack of
statutory due process should not nullify the dismissal, or render it illegal, or
ineffectual. However, the employer should indemnify the employee for the
violation of his statutory rights, as ruled in Reta v. National Labor Relations
Commission.[36] The indemnity to be imposed should be stiffer to
discourage the abhorrent practice of dismiss now, pay later, which we
sought to deter in the Serrano ruling. The sanction should be in the nature
of indemnification or penalty and should depend on the facts of each case,
taking into special consideration the gravity of the due process violation of
the employer.
Under the Civil Code, nominal damages is adjudicated in order that a right
of the plaintiff, which has been violated or invaded by the defendant, may
be vindicated or recognized, and not for the purpose of indemnifying the
plaintiff for any loss suffered by him.[37]
As enunciated by this Court in Viernes v. National Labor Relations

Commissions,[38] an employer is liable to pay indemnity in the form of
nominal damages to an employee who has been dismissed if, in effecting
such dismissal, the employer fails to comply with the requirements of due
process. The Court, after considering the circumstances therein, fixed the
indemnity at P2,590.50, which was equivalent to the employees one month
salary. This indemnity is intended not to penalize the employer but to
vindicate or recognize the employees right to statutory due process which
was violated by the employer.[39]
The violation of the petitioners right to statutory due process by the private
respondent warrants the payment of indemnity in the form of nominal
damages. The amount of such damages is addressed to the sound
discretion of the court, taking into account the relevant
circumstances.[40] Considering the prevailing circumstances in the case
at bar, we deem it proper to fix it at P30,000.00.We believe this form of
damages would serve to deter employers from future violations of the
statutory due process rights of employees. At the very least, it provides a
vindication or recognition of this fundamental right granted to the latter
under the Labor Code and its Implementing Rules.
Private respondent claims that the Court of Appeals erred in holding that it
failed to pay petitioners holiday pay, service incentive leave pay and
13th month pay.
We are not persuaded.

We affirm the ruling of the appellate court on petitioners money claims.
Private respondent is liable for petitioners holiday pay, service incentive
leave pay and 13th month pay without deductions.
As a general rule, one who pleads payment has the burden of proving it.
Even where the employee must allege non-payment, the general rule is
that the burden rests on the employer to prove payment, rather than on the
employee to prove non-payment. The reason for the rule is that the
pertinent personnel files, payrolls, records, remittances and other similar
documents which will show that overtime, differentials, service incentive
leave and other claims of workers have been paid are not in the possession
of the worker but in the custody and absolute control of the employer.[41]
In the case at bar, if private respondent indeed paid petitioners holiday pay
and service incentive leave pay, it could have easily presented
documentary proofs of such monetary benefits to disprove the claims of the
petitioners. But it did not, except with respect to the 13th month pay wherein
it presented cash vouchers showing payments of the benefit in the years
disputed.[42] Allegations by private respondent that it does not operate
during holidays and that it allows its employees 10 days leave with pay,
other than being self-serving, do not constitute proof of payment.
Consequently, it failed to discharge the onus probandi thereby making it
liable for such claims to the petitioners.
Anent the deduction of SSS loan and the value of the shoes from petitioner
Virgilio Agabons 13th month pay, we find the same to be unauthorized. The
evident intention of Presidential Decree No. 851 is to grant an additional
income in the form of the 13th month pay to employees not already
receiving the same[43] so as to further protect the level of real wages from
the ravages of world-wide inflation.[44] Clearly, as additional income, the
13th month pay is included in the definition of wage under Article 97(f) of the
Labor Code, to wit:
(f) Wage paid to any employee shall mean the remuneration or earnings,
however designated, capable of being expressed in terms of money
whether fixed or ascertained on a time, task, piece , or commission basis,
or other method of calculating the same, which is payable by an employer
to an employee under a written or unwritten contract of employment for
work done or to be done, or for services rendered or to be rendered and
includes the fair and reasonable value, as determined by the Secretary of
Labor, of board, lodging, or other facilities customarily furnished by the
employer to the employee
from which an employer is prohibited under Article 113[45] of the same Code
from making any deductions without the employees knowledge and
consent. In the instant case, private respondent failed to show that the
deduction of the SSS loan and the value of the shoes from petitioner
Virgilio Agabons 13th month pay was authorized by the latter. The lack of
authority to deduct is further bolstered by the fact that petitioner Virgilio
Agabon included the same as one of his money claims against private
respondent.
The Court of Appeals properly reinstated the monetary claims awarded by

the Labor Arbiter ordering the private respondent to pay each of the
petitioners holiday pay for four regular holidays from 1996 to 1998, in the
amount of P6,520.00, service incentive leave pay for the same period in the
amount of P3,255.00 and the balance of Virgilio Agabons thirteenth month
pay for 1998 in the amount of P2,150.00.
WHEREFORE, in view of the foregoing, the petition is DENIED. The

decision of the Court of Appeals dated January 23, 2003, in CA-G.R. SP
No. 63017, finding that petitioners Jenny and Virgilio Agabon abandoned
their work, and ordering private respondent to pay each of the petitioners
holiday pay for four regular holidays from 1996 to 1998, in the amount of
P6,520.00, service incentive leave pay for the same period in the amount of
P3,255.00 and the balance of Virgilio Agabons thirteenth month pay for
1998 in the amount of P2,150.00 is AFFIRMED with
theMODIFICATION that private respondent Riviera Home Improvements,
Inc. is further ORDERED to pay each of the petitioners the amount of
P30,000.00 as nominal damages for non-compliance with statutory due
process.
No costs.
SO ORDERED.
SOUTHERN HEMISPHERE ENGAGEMENT NETWORK INC. VS. ANTI

TERRORISM COUNCIL
DECISION
CARPIO MORALES, J.:
Before the Court are six petitions challenging the constitutionality of

Republic Act No. 9372 (RA 9372), An Act to Secure the State and Protect
our People from Terrorism, otherwise known as the Human Security Act of
2007,[1] signed into law on March 6, 2007.
Following the effectivity of RA 9372 on July 15, 2007,[2] petitioner Southern

Hemisphere Engagement Network, Inc., a non-government organization,
and Atty. Soliman Santos, Jr., a concerned citizen, taxpayer and lawyer,
filed a petition for certiorari and prohibition on July 16, 2007 docketed
as G.R. No. 178552. On even date, petitioners Kilusang Mayo Uno (KMU),
National Federation of Labor Unions-Kilusang Mayo Uno (NAFLU-KMU),
and Center for Trade Union and Human Rights (CTUHR), represented by
their respective officers[3] who are also bringing the action in their capacity
as citizens, filed a petition for certiorari and prohibition docketed as G.R.
No. 178554.
The following day, July 17, 2007, organizations Bagong Alyansang
Makabayan (BAYAN), General Alliance Binding Women for Reforms,
Integrity, Equality, Leadership and Action (GABRIELA), Kilusang
Magbubukid ng Pilipinas (KMP), Movement of Concerned Citizens for Civil
Liberties (MCCCL), Confederation for Unity, Recognition and Advancement
of Government Employees (COURAGE), Kalipunan ng Damayang
Mahihirap (KADAMAY), Solidarity of Cavite Workers (SCW), League of
Filipino Students (LFS), Anakbayan, Pambansang Lakas ng Kilusang
Mamamalakaya (PAMALAKAYA), Alliance of Concerned Teachers (ACT),
Migrante, Health Alliance for Democracy (HEAD), and Agham, represented
by their respective officers,[4] and joined by concerned citizens and
taxpayers Teofisto Guingona, Jr., Dr. Bienvenido Lumbera, Renato
Constantino, Jr., Sister Mary John Manansan, OSB, Dean Consuelo Paz,
Atty. Josefina Lichauco, Retired Col. Gerry Cunanan, Carlitos Siguion-
Reyna, Dr. Carolina Pagaduan-Araullo, Renato Reyes, Danilo Ramos,
Emerenciana de Jesus, Rita Baua and Rey Claro Casambre filed a petition
for certiorari and prohibition docketed as G.R. No. 178581.
On August 6, 2007, Karapatan and its alliance member organizations

Hustisya, Desaparecidos, Samahan ng mga Ex-Detainees Laban sa
Detensyon at para sa Amnestiya (SELDA), Ecumenical Movement for
Justice and Peace (EMJP), and Promotion of Church Peoples Response
(PCPR), which were represented by their respective officers[5] who are also
bringing action on their own behalf, filed a petition for certiorari and
prohibition docketed as G.R. No. 178890.
On August 29, 2007, the Integrated Bar of the Philippines (IBP), Counsels
for the Defense of Liberty (CODAL),[6] Senator Ma. Ana Consuelo A.S.
Madrigal, Sergio Osmea III, and Wigberto E. Taada filed a petition for
certiorari and prohibition docketed as G.R. No. 179157.
Bagong Alyansang Makabayan-Southern Tagalog (BAYAN-ST), other
regional chapters and organizations mostly based in the Southern Tagalog
Region,[7] and individuals[8] followed suit by filing on September 19, 2007 a
petition for certiorari and prohibition docketed as G.R. No. 179461 that
replicates the allegations raised in the BAYAN petition in G.R. No. 178581.
Impleaded as respondents in the various petitions are the Anti-Terrorism

Council[9] composed of, at the time of the filing of the petitions, Executive
Secretary Eduardo Ermita as Chairperson, Justice Secretary Raul
Gonzales as Vice Chairperson, and Foreign Affairs Secretary Alberto
Romulo, Acting Defense Secretary and National Security Adviser Norberto
Gonzales, Interior and Local Government Secretary Ronaldo Puno, and
Finance Secretary Margarito Teves as members. All the petitions, except
that of the IBP, also impleaded Armed Forces of the Philippines (AFP)
Chief of Staff Gen. Hermogenes Esperon and Philippine National Police
(PNP) Chief Gen. Oscar Calderon.
The Karapatan, BAYAN and BAYAN-ST petitions likewise impleaded

President Gloria Macapagal-Arroyo and the support agencies for the Anti-
Terrorism Council like the National Intelligence Coordinating Agency,
National Bureau of Investigation, Bureau of Immigration, Office of Civil
Defense, Intelligence Service of the AFP, Anti-Money Laundering Center,
Philippine Center on Transnational Crime, and the PNP intelligence and
investigative elements.
The petitions fail.
Petitioners resort to certiorari is improper

Preliminarily, certiorari does not lie against respondents who do not
exercise judicial or quasi-judicial functions. Section 1, Rule 65 of the Rules
of Court is clear:
Section 1. Petition for certiorari.When any tribunal, board or

officer exercising judicial or quasi-judicial functions has acted without
or in excess of its or his jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction, and there is no appeal, nor
any plain, speedy, and adequate remedy in the ordinary course of law, a
person aggrieved thereby may file a verified petition in the proper court,
alleging the facts with certainty and praying that judgment be rendered
annulling or modifying the proceedings of such tribunal, board or officer,
and granting such incidental reliefs as law and justice may
require. (Emphasis and underscoring supplied)
Parenthetically, petitioners do not even allege with any modicum of

particularity how respondents acted without or in excess of their respective
jurisdictions, or with grave abuse of discretion amounting to lack or excess
of jurisdiction.
The impropriety of certiorari as a remedy aside, the petitions fail just the
same.
In constitutional litigations, the power of judicial review is limited by four

exacting requisites, viz: (a) there must be an actual case or controversy; (b)
petitioners must possess locus standi; (c) the question of constitutionality
must be raised at the earliest opportunity; and (d) the issue of
constitutionality must be the lis mota of the case.[10]
In the present case, the dismal absence of the first two requisites, which
are the most essential, renders the discussion of the last two superfluous.
Petitioners lack locus standi
Locus standi or legal standing requires a personal stake in the outcome of

the controversy as to assure that concrete adverseness which sharpens
the presentation of issues upon which the court so largely depends for
illumination of difficult constitutional questions.[11]
Anak Mindanao Party-List Group v. The Executive

Secretary[12] summarized the rule on locus standi, thus:
Locus standi or legal standing has been defined as a personal and

substantial interest in a case such that the party has sustained or will
sustain direct injury as a result of the governmental act that is being
challenged. The gist of the question on standing is whether a party alleges
such personal stake in the outcome of the controversy as to assure that
concrete adverseness which sharpens the presentation of issues upon
which the court depends for illumination of difficult constitutional questions.
[A] party who assails the constitutionality of a statute must have a direct
and personal interest. It must show not only that the law or any
governmental act is invalid, but also that it sustained or is in immediate
danger of sustaining some direct injury as a result of its enforcement,
and not merely that it suffers thereby in some indefinite way. It must show
that it has been or is about to be denied some right or privilege to which it is
lawfully entitled or that it is about to be subjected to some burdens or
penalties by reason of the statute or act complained of.
For a concerned party to be allowed to raise a constitutional question, it

must show that (1) it has personally suffered some actual or threatened
injury as a result of the allegedly illegal conduct of the government, (2) the
injury is fairly traceable to the challenged action, and (3) the injury is likely
to be redressed by a favorable action. (emphasis and underscoring
supplied.)
Petitioner-organizations assert locus standi on the basis of being suspected

communist fronts by the government, especially the military; whereas
individual petitioners invariably invoke the transcendental importance
doctrine and their status as citizens and taxpayers.
While Chavez v. PCGG[13] holds that transcendental public importance

dispenses with the requirement that petitioner has experienced or is in
actual danger of suffering direct and personal injury, cases involving the
constitutionality of penal legislation belong to an altogether different genus
of constitutional litigation. Compelling State and societal interests in the
proscription of harmful conduct, as will later be elucidated, necessitate a
closer judicial scrutiny of locus standi.
Petitioners have not presented any personal stake in the outcome of the
controversy. None of them faces any charge under RA 9372.
KARAPATAN, Hustisya, Desaparecidos, SELDA,
EMJP and PCR, petitioners in G.R. No. 178890, allege that they have been
subjected to close security surveillance by state security forces, their
members followed by suspicious persons and vehicles with dark
windshields, and their offices monitored by men with military build. They
likewise claim that they have been branded as enemies of the [S]tate.[14]
Even conceding such gratuitous allegations, the Office of the Solicitor

General (OSG) correctly points out that petitioners have yet to show
any connection between the
purported surveillance andthe implementation of RA 9372.
BAYAN, GABRIELA, KMP, MCCCL, COURAGE, KADAMAY, SCW, LFS,

Anakbayan, PAMALAKAYA, ACT, Migrante, HEAD and Agham,
petitioner-organizations in G.R. No. 178581, would like the Court to
take judicial notice of respondents alleged action of tagging them as
militant organizations fronting for the Communist Party of the Philippines
(CPP) and its armed wing, the National Peoples Army (NPA). The tagging,
according to petitioners, is tantamount to the effects of proscription without
following the procedure under the law.[15] The petition of BAYAN-ST, et al.
in G.R. No. 179461 pleads the same allegations.
The Court cannot take judicial notice of the alleged tagging of petitioners.
Generally speaking, matters of judicial notice have three material

requisites: (1) the matter must be one of common and general
knowledge; (2) it must be well and authoritatively settled and not
doubtful or uncertain; and (3) it must be known to be within the limits of
the jurisdiction of the court. The principal guide in determining what facts
may be assumed to be judicially known is that of notoriety. Hence, it can be
said that judicial notice is limited to facts evidenced by public records and
facts of general notoriety. Moreover, a judicially noticed fact must be one
not subject to a reasonable dispute in that it is either: (1) generally
known within the territorial jurisdiction of the trial court; or (2) capable of
accurate and ready determination by resorting to sources whose
accuracy cannot reasonably be questionable.
Things of common knowledge, of which courts take judicial matters coming

to the knowledge of men generally in the course of the ordinary
experiences of life, or they may be matters which are generally accepted by
mankind as true and are capable of ready and unquestioned
demonstration. Thus, facts which are universally known, and which may be
found in encyclopedias, dictionaries or other publications, are judicially
noticed, provided, they are of such universal notoriety and so generally
understood that they may be regarded as forming part of the common
knowledge of every person. As the common knowledge of man ranges far
and wide, a wide variety of particular facts have been judicially noticed as
being matters of common knowledge. But a court cannot take judicial
notice of any fact which, in part, is dependent on the existence or
non-existence of a fact of which the court has no constructive
knowledge.[16] (emphasis and underscoring supplied.)
No ground was properly established by petitioners for the taking of judicial

notice. Petitioners apprehension is insufficient to substantiate their
plea. That no specific charge or proscription under RA 9372 has been filed
against them, three years after its effectivity, belies any claim
of imminence of their perceived threat emanating from the so-called
tagging.
The same is true with petitioners KMU, NAFLU and CTUHR in G.R. No.
178554, who merely harp as well on their supposed link to the CPP and
NPA. They fail to particularize how the implementation of specific
provisions of RA 9372 would result in direct injury to their organization and
members.
While in our jurisdiction there is still no judicially declared terrorist

organization, the United States of America[17] (US) and the European
Union[18] (EU) have both classified the CPP, NPA and Abu Sayyaf Group as
foreign terrorist organizations. The Court takes note of the joint statement
of Executive Secretary Eduardo Ermita and Justice Secretary Raul
Gonzales that the Arroyo Administration would adopt the US and EU
classification of the CPP and NPA as terrorist organizations.[19] Such
statement notwithstanding, there is yet to be filed before the courts an
application to declare the CPP and NPA organizations as domestic
terrorist or outlawed organizations under RA 9372. Again, RA 9372 has
been in effect for three years now. From July 2007 up to the present,
petitioner-organizations have conducted their activities fully and freely
without any threat of, much less an actual, prosecution or proscription
under RA 9372.
Parenthetically, the Fourteenth Congress, in a resolution initiated by Party-

list Representatives Saturnino Ocampo, Teodoro Casio, Rafael Mariano
and Luzviminda Ilagan,[20] urged the government to resume peace
negotiations with the NDF by removing the impediments thereto, one of
which is the adoption of designation of the CPP and NPA by the US and
EU as foreign terrorist organizations. Considering the policy statement of
the Aquino Administration[21] of resuming peace talks with the NDF, the
government is not imminently disposed to ask for the judicial proscription of
the CPP-NPA consortium and its allied organizations.
More important, there are other parties not before the Court with direct and
specific interests in the questions being raised.[22] Of recent development
is the filing of the first case for proscription under Section 17[23] of RA 9372
by the Department of Justice before the Basilan Regional Trial Court
against the Abu Sayyaf Group.[24] Petitioner-organizations do not in the
least allege any link to the Abu Sayyaf Group.
Some petitioners attempt, in vain though, to show the imminence of a

prosecution under RA 9372 by alluding to past rebellion charges against
them.
In Ladlad v. Velasco,[25] the Court ordered the dismissal of rebellion

charges filed in 2006 against then Party-List Representatives Crispin
Beltran and Rafael Mariano of Anakpawis, Liza Maza of GABRIELA, and
Joel Virador, Teodoro Casio and Saturnino Ocampo of Bayan Muna. Also
named in the dismissed rebellion charges were petitioners Rey Claro
Casambre, Carolina Pagaduan-Araullo, Renato Reyes, Rita Baua,
Emerencia de Jesus and Danilo Ramos; and accused of being front
organizations for the Communist movement were petitioner-organizations
KMU, BAYAN, GABRIELA, PAMALAKAYA, KMP, KADAMAY, LFS and
COURAGE.[26]
The dismissed rebellion charges, however, do not save the day for
petitioners. For one, those charges were filed in 2006, prior to the
enactment of RA 9372, and dismissed by this Court. For another, rebellion
is defined and punished under the Revised Penal Code. Prosecution for
rebellion is not made more imminent by the enactment of RA 9372, nor
does the enactment thereof make it easier to charge a person with
rebellion, its elements not having been altered.
Conversely, previously filed but dismissed rebellion charges bear no
relation to prospective charges under RA 9372. It cannot be
overemphasized that three years after the enactment of RA 9372, none of
petitioners has been charged.
Petitioners IBP and CODAL in G.R. No. 179157 base their claim of locus
standi on their sworn duty to uphold the Constitution. The IBP zeroes in on
Section 21 of RA 9372 directing it to render assistance to those arrested or
detained under the law.
The mere invocation of the duty to preserve the rule of law does not,
however, suffice to clothe the IBP or any of its members with
standing.[27] The IBP failed to sufficiently demonstrate how its mandate
under the assailed statute revolts against its constitutional rights and
duties. Moreover, both the IBP and CODAL have not pointed to even a
single arrest or detention effected under RA 9372.
Former Senator Ma. Ana Consuelo Madrigal, who claims to have been
the subject of political surveillance, also lacks locus standi. Prescinding
from the veracity, let alone legal basis, of the claim of political surveillance,
the Court finds that she has not shown even the slightest threat of being
charged under RA 9372. Similarly lacking in locus standi are former
Senator Wigberto Taada and Senator Sergio Osmea III, who cite their
being respectively a human rights advocate and an oppositor to the
passage of RA 9372. Outside these gratuitous statements, no concrete
injury to them has been pinpointed.
Petitioners Southern Hemisphere Engagement Network and Atty.

Soliman Santos Jr. in G.R. No. 178552 also conveniently state that the
issues they raise are of transcendental importance, which must be settled
early and are of far-reaching implications, without mention of any specific
provision of RA 9372 under which they have been charged, or may be
charged. Mere invocation of human rights advocacy has nowhere been
held sufficient to clothe litigants with locus standi. Petitioners must show an
actual, or immediate danger of sustaining, direct injury as a result of the
laws enforcement. To rule otherwise would be to corrupt the settled
doctrine of locus standi, as every worthy cause is an interest shared by the
general public.
Neither can locus standi be conferred upon individual petitioners

as taxpayers and citizens. A taxpayer suit is proper only when there is an
exercise of the spending or taxing power of Congress,[28]whereas citizen
standing must rest on direct and personal interest in the proceeding.[29]
RA 9372 is a penal statute and does not even provide for any appropriation
from Congress for its implementation, while none of the individual
petitioner-citizens has alleged any direct and personal interest in the
implementation of the law.
It bears to stress that generalized interests, albeit accompanied by the

assertion of a public right, do not establish locus standi. Evidence of a
direct and personal interest is key.
Petitioners fail to present an actual case or controversy
By constitutional fiat, judicial power operates only when there is an actual

case or controversy.
Section 1. The judicial power shall be vested in one Supreme Court and in
such lower courts as may be established by law.
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.[30] (emphasis and
underscoring supplied.)
As early as Angara v. Electoral Commission,[31] the Court ruled that the

power of judicial review is limited to actual cases or controversies to be
exercised after full opportunity of argument by the parties. Any attempt at
abstraction could only lead to dialectics and barren legal questions and to
sterile conclusions unrelated to actualities.
An actual case or controversy means an existing case or controversy that

is appropriate or ripe for determination, not conjectural or anticipatory, lest
the decision of the court would amount to an advisory opinion.[32]
Information Technology Foundation of the Philippines v.

COMELEC[33] cannot be more emphatic:
[C]ourts do not sit to adjudicate mere academic questions to satisfy

scholarly interest, however intellectually challenging. The controversy
must be justiciabledefinite and concrete, touching on the legal relations of
parties having adverse legal interests. In other words, the pleadings must
show an active antagonistic assertion of a legal right, on the one
hand, and a denial thereof on the other hand; that is, it must concern
a real and not merely a theoretical question or issue. There ought to
be an actual and substantial controversy admitting of specific relief
through a decree conclusive in nature, as distinguished from an opinion
advising what the law would be upon a hypothetical state of
facts. (Emphasis and underscoring supplied)
Thus, a petition to declare unconstitutional a law converting
the Municipality of Makati into a Highly Urbanized City was held to be
premature as it was tacked on uncertain, contingent events.[34]Similarly,
a petition that fails to allege that an application for a license to operate a
radio or television station has been denied or granted by the authorities
does not present a justiciable controversy, and merely wheedles the Court
to rule on a hypothetical problem.[35]
The Court dismissed the petition in Philippine Press Institute v.

Commission on Elections[36] for failure to cite any specific affirmative action
of the Commission on Elections to implement the assailed resolution. It
refused, in Abbas v. Commission on Elections,[37] to rule on the religious
freedom claim of the therein petitioners based merely on a perceived
potential conflict between the provisions of the Muslim Code and those of
the national law, there being no actual controversy between real litigants.
The list of cases denying claims resting on purely hypothetical or

anticipatory grounds goes on ad infinitum.
The Court is not unaware that a reasonable certainty of the occurrence of

a perceived threat to any constitutional interest
suffices to provide a basis for mounting a constitutional challenge. This,
however, is qualified by the requirement that there must be sufficient
facts to enable the Court to intelligently adjudicate the issues.[38]
Very recently, the US Supreme Court, in Holder v. Humanitarian Law

Project,[39] allowed the pre-enforcement review of a criminal statute,
challenged on vagueness grounds, since plaintiffs faced a credible threat of
prosecution and should not be required to await and undergo a criminal
prosecution as the sole means of seeking relief.[40] The plaintiffs therein
filed an action before a federal court to assail the constitutionality of the
material support statute, 18 U.S.C. 2339B (a) (1),[41] proscribing the
provision of material support to organizations declared by the Secretary of
State as foreign terrorist organizations. They claimed that they intended to
provide support for the humanitarian and political activities of two such
organizations.
Prevailing American jurisprudence allows an adjudication on the merits

when an anticipatory petition clearly shows that the challenged
prohibition forbids the conduct or activity that a petitioner seeks to
do, as there would then be a justiciable controversy.[42]
Unlike the plaintiffs in Holder, however, herein petitioners have failed to

show that the challenged provisions of RA 9372 forbid constitutionally
protected conduct or activity that they seek to do.No demonstrable threat
has been established, much less a real and existing one.
Petitioners obscure allegations of sporadic surveillance and

supposedly being tagged as communist fronts in no way approximate
a credible threat of prosecution. From these allegations, the Court is
being lured to render an advisory opinion, which is not its function.[43]
Without any justiciable controversy, the petitions have become pleas for
declaratory relief, over which the Court has no original jurisdiction. Then
again, declaratory actions characterized by double contingency, where both
the activity the petitioners intend to undertake and the anticipated reaction
to it of a public official are merely theorized, lie beyond judicial review for
lack of ripeness.[44]
The possibility of abuse in the implementation of RA 9372 does not avail to
take the present petitions out of the realm of the surreal and merely
imagined. Such possibility is not peculiar to RA 9372 since the exercise of
any power granted by law may be abused.[45] Allegations of abuse must be
anchored on real events before courts may step in to settle actual
enforceable.
A facial invalidation of a statute is allowed only in free speech cases,

wherein certain rules of constitutional litigation are rightly excepted
Petitioners assail for being intrinsically vague and impermissibly broad the
definition of the crime of terrorism[46] under RA 9372 in that terms
like widespread and extraordinary fear and panic among the
populace and coerce the government to give in to an unlawful demand are
nebulous, leaving law enforcement agencies with no standard to measure
the prohibited acts.
Respondents, through the OSG, counter that the doctrines of void-for-

vagueness and overbreadth find no application in the present case since
these doctrines apply only to free speech cases; and that RA 9372
regulates conduct, not speech.
For a jurisprudentially guided understanding of these doctrines, it is

imperative to outline the schools of thought on whether the void-for-
vagueness and overbreadth doctrines are equally applicablegrounds to
assail a penal statute.
Respondents interpret recent jurisprudence as slanting toward the idea of
limiting the application of the two doctrines to free speech cases. They
particularly cite Romualdez v. Hon. Sandiganbayan[47] and Estrada v.
Sandiganbayan.[48]
The Court clarifies.
At issue in Romualdez v. Sandiganbayan was whether the word intervene

in Section 5[49] of the Anti-Graft and Corrupt Practices Act was intrinsically
vague and impermissibly broad. The Court stated that the overbreadth and
the vagueness doctrines have special application only to free-speech
cases, and are not appropriate for testing the validity of penal statutes.[50] It
added that, at any rate, the challenged provision, under which the therein
petitioner was charged, is not vague.[51]
While in the subsequent case of Romualdez v. Commission on

Elections,[52] the Court stated that a facial invalidation of criminal statutes is
not appropriate, it nonetheless proceeded to conduct a vagueness
analysis, and concluded that the therein subject election offense[53] under
the Voters Registration Act of 1996, with which the therein petitioners
were charged, is couched in precise language.[54]
The two Romualdez cases rely heavily on the Separate Opinion[55] of

Justice Vicente V. Mendoza in the Estrada case, where the Court found the
Anti-Plunder Law (Republic Act No. 7080) clear and free from ambiguity
respecting the definition of the crime of plunder.
The position taken by Justice Mendoza in Estrada relates these two

doctrines to the concept of a facial invalidation as opposed to an as-applied
challenge. He basically postulated that allegations that a penal statute is
vague and overbroad do not justify a facial review of its validity. The
pertinent portion of the Concurring Opinion of Justice Mendoza, which was
quoted at length in the main Estrada decision, reads:
A facial challenge is allowed to be made to a vague statute and to one

which is overbroad because of possible "chilling effect" upon protected
speech. The theory is that "[w]hen statutes regulate or proscribe speech
and no readily apparent construction suggests itself as a vehicle for
rehabilitating the statutes in a single prosecution, the transcendent value to
all society of constitutionally protected expression is deemed to justify
allowing attacks on overly broad statutes with no requirement that the
person making the attack demonstrate that his own conduct could not be
regulated by a statute drawn with narrow specificity." The possible harm to
society in permitting some unprotected speech to go unpunished is
outweighed by the possibility that the protected speech of others may be
deterred and perceived grievances left to fester because of possible
inhibitory effects of overly broad statutes.
This rationale does not apply to penal statutes. Criminal statutes have
general in terrorem effect resulting from their very existence, and, if facial
challenge is allowed for this reason alone, the State may well be prevented
from enacting laws against socially harmful conduct. In the area of criminal
law, the law cannot take chances as in the area of free speech.
The overbreadth and vagueness doctrines then have special

application only to free speech cases. They are inapt for testing the
validity of penal statutes. As the U.S. Supreme Court put it, in an opinion by
Chief Justice Rehnquist, "we have not recognized an 'overbreadth' doctrine
outside the limited context of the First Amendment." In Broadrick v.
Oklahoma, the Court ruled that "claims of facial overbreadth have been
entertained in cases involving statutes which, by their terms, seek to
regulate only spoken words" and, again, that "overbreadth claims, if
entertained at all, have been curtailed when invoked against ordinary
criminal laws that are sought to be applied to protected conduct." For this
reason, it has been held that "a facial challenge to a legislative act is the
most difficult challenge to mount successfully, since the challenger must
establish that no set of circumstances exists under which the Act would be
valid." As for the vagueness doctrine, it is said that a litigant may challenge
a statute on its face only if it is vague in all its possible applications. "A
plaintiff who engages in some conduct that is clearly proscribed cannot
complain of the vagueness of the law as applied to the conduct of others."
In sum, the doctrines of strict scrutiny, overbreadth, and vagueness

are analytical tools developed for testing "on their faces" statutes in
free speech cases or, as they are called in American law, First
Amendment cases. They cannot be made to do service when what is
involved is a criminal statute. With respect to such statute, the established
rule is that "one to whom application of a statute is constitutional will not be
heard to attack the statute on the ground that impliedly it might also be
taken as applying to other persons or other situations in which its
application might be unconstitutional." As has been pointed out,
"vagueness challenges in the First Amendment context, like overbreadth
challenges typically produce facial invalidation, while statutes found
vague as a matter of due process typically are invalidated [only] 'as
applied' to a particular defendant." Consequently, there is no basis for
petitioner's claim that this Court review the Anti-Plunder Law on its face
and in its entirety.
Indeed, "on its face" invalidation of statutes results in striking them down
entirely on the ground that they might be applied to parties not before the
Court whose activities are constitutionally protected. It constitutes a
departure from the case and controversy requirement of the Constitution
and permits decisions to be made without concrete factual settings and in
sterile abstract contexts. But, as the U.S. Supreme Court pointed out
in Younger v. Harris
[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and

requiring correction of these deficiencies before the statute is put into
effect, is rarely if ever an appropriate task for the judiciary. The combination
of the relative remoteness of the controversy, the impact on the legislative
process of the relief sought, and above all the speculative and amorphous
nature of the required line-by-line analysis of detailed statutes, . .
. ordinarily results in a kind of case that is wholly unsatisfactory for deciding
constitutional questions, whichever way they might be decided.
For these reasons, "on its face" invalidation of statutes has been described
as "manifestly strong medicine," to be employed "sparingly and only as a
last resort," and is generally disfavored. In determining the constitutionality
of a statute, therefore, its provisions which are alleged to have been
violated in a case must be examined in the light of the conduct with which
the defendant is charged.[56] (Underscoring supplied.)
The confusion apparently stems from the interlocking relation of

the overbreadth and vagueness doctrines as grounds for a facial or as-
applied challenge against a penal statute (under a claim of violation of due
process of law) or a speech regulation (under a claim of abridgement of the
freedom of speech and cognate rights).
To be sure, the doctrine of vagueness and the doctrine of overbreadth do

not operate on the same plane.
A statute or act suffers from the defect of vagueness when it lacks
comprehensible standards that men of common intelligence must
necessarily guess at its meaning and differ as to its application. It is
repugnant to the Constitution in two respects: (1) it violates due process for
failure to accord persons, especially the parties targeted by it, fair notice of
the conduct to avoid; and (2) it leaves law enforcers unbridled discretion in
carrying out its provisions and becomes an arbitrary flexing of the
Government muscle.[57] The overbreadth doctrine, meanwhile, decrees that
a governmental purpose to control or prevent activities constitutionally
subject to state regulations may not be achieved by means which sweep
unnecessarily broadly and thereby invade the area of protected
freedoms.[58]
As distinguished from the vagueness doctrine, the overbreadth doctrine

assumes that individuals will understand what a statute prohibits and will
accordingly refrain from that behavior, even though some of it is
protected.[59]
A facial challenge is likewise different from an as-applied challenge.
Distinguished from an as-applied challenge which considers

only extant facts affecting real litigants, a facial invalidation is an
examination of the entire law, pinpointing its flaws and defects, not only on
the basis of its actual operation to the parties, but also on the assumption
or prediction that its very existence may cause others not before the court
to refrain from constitutionally protected speech or activities.[60]
Justice Mendoza accurately phrased the subtitle[61] in his concurring

opinion that the vagueness and overbreadth doctrines, as grounds for a
facial challenge, are not applicable to penal laws. A litigant cannot thus
successfully mount a facial challenge against a criminal statute on
either vagueness or overbreadth grounds.
The allowance of a facial challenge in free speech cases is justified by the

aim to avert the chilling effect on protected speech, the exercise of which
should not at all times be abridged.[62] As reflected earlier, this rationale is
inapplicable to plain penal statutes that generally bear an in terrorem effect
in deterring socially harmful conduct. In fact, the legislature may even forbid
and penalize acts formerly considered innocent and lawful, so long as it
refrains from diminishing or dissuading the exercise of constitutionally
protected rights.[63]
The Court reiterated that there are critical limitations by which a criminal
statute may be challenged and underscored that an on-its-face invalidation
of penal statutes x x x may not be allowed.[64]
[T]he rule established in our jurisdiction is, only statutes on free speech,
religious freedom, and other fundamental rights may be facially
challenged. Under no case may ordinary penal statutes be subjected
to a facial challenge. The rationale is obvious. If a facial challenge to a
penal statute is permitted, the prosecution of crimes may be hampered. No
prosecution would be possible. A strong criticism against employing a facial
challenge in the case of penal statutes, if the same is allowed, would
effectively go against the grain of the doctrinal requirement of an existing
and concrete controversy before judicial power may be appropriately
exercised. A facial challenge against a penal statute is, at best, amorphous
and speculative. It would, essentially, force the court to consider third
parties who are not before it. As I have said in my opposition to the
allowance of a facial challenge to attack penal statutes, such a test will
impair the States ability to deal with crime. If warranted, there would be
nothing that can hinder an accused from defeating the States power to
prosecute on a mere showing that, as applied to third parties, the penal
statute is vague or overbroad, notwithstanding that the law is clear as
applied to him.[65] (Emphasis and underscoring supplied)
It is settled, on the other hand, that the application of the overbreadth

doctrine is limited to a facial kind of challenge and, owing to the given
rationale of a facial challenge, applicable only to free speech cases.
By its nature, the overbreadth doctrine has to necessarily apply a facial

type of invalidation in order to plot areas of protected speech, inevitably
almost always under situations not before the court, that are impermissibly
swept by the substantially overbroad regulation. Otherwise stated, a statute
cannot be properly analyzed for being substantially overbroad if the court
confines itself only to facts as applied to the litigants.
The most distinctive feature of the overbreadth technique is that it marks an

exception to some of the usual rules of constitutional litigation. Ordinarily, a
particular litigant claims that a statute is unconstitutional as applied to him
or her; if the litigant prevails, the courts carve away the unconstitutional
aspects of the law by invalidating its improper applications on a case to
case basis. Moreover, challengers to a law are not permitted to raise the
rights of third parties and can only assert their own interests. In overbreadth
analysis, those rules give way; challenges are permitted to raise the rights
of third parties; and the court invalidates the entire statute "on its face," not
merely "as applied for" so that the overbroad law becomes unenforceable
until a properly authorized court construes it more narrowly. The factor that
motivates courts to depart from the normal adjudicatory rules is the concern
with the "chilling;" deterrent effect of the overbroad statute on third parties
not courageous enough to bring suit. The Court assumes that an overbroad
laws "very existence may cause others not before the court to refrain from
constitutionally protected speech or expression." An overbreadth ruling is
designed to remove that deterrent effect on the speech of those third
parties.[66] (Emphasis in the original omitted; underscoring supplied.)
In restricting the overbreadth doctrine to free speech claims, the Court, in at

least two cases,[67] observed that the US Supreme Court has not
recognized an overbreadth doctrine outside the limited context of the First
Amendment,[68] and that claims of facial overbreadth have been entertained
in cases involving statutes which, by their terms, seek to regulate
only spoken words.[69] In Virginia v. Hicks,[70] it was held that rarely, if ever,
will an overbreadth challenge succeed against a law or regulation that is
not specifically addressed to speech or speech-related conduct. Attacks on
overly broad statutes are justified by the transcendent value to all society of
constitutionally protected expression.[71]
Since a penal statute may only be assailed for being vague as

applied to petitioners, a limited vagueness analysis of the definition of
terrorism in RA 9372 is legally impermissible absent an actual or
imminent charge against them
While Estrada did not apply the overbreadth doctrine, it did not preclude the
operation of the vagueness test on the Anti-Plunder Law as applied to the
therein petitioner, finding, however, that there was no basis to review the
law on its face and in its entirety.[72] It stressed that statutes found vague as
a matter of due process typically are invalidated only 'as applied' to a
particular defendant.[73]
American jurisprudence[74] instructs that vagueness challenges that do not

involve the First Amendment must be examined in light of the specific
facts of the case at hand and not with regard to the statute's facial validity.
For more than 125 years, the US Supreme Court has evaluated defendants
claims that criminal statutes are unconstitutionally vague, developing a
doctrine hailed as among the most important guarantees of liberty under
law.[75]
In this jurisdiction, the void-for-vagueness doctrine asserted under the due

process clause has been utilized in examining the constitutionality of
criminal statutes. In at least three cases,[76] the Court brought the doctrine
into play in analyzing an ordinance penalizing the non-payment of
municipal tax on fishponds, the crime of illegal recruitment punishable
under Article 132(b) of the Labor Code, and the vagrancy provision under
Article 202 (2) of the Revised Penal Code. Notably, the petitioners in these
three cases, similar to those in the two Romualdez and Estrada cases,
were actually charged with the therein assailed penal statute, unlike in the
present case.
There is no merit in the claim that RA 9372 regulates speech so as to

permit a facial analysis of its validity
From the definition of the crime of terrorism in the earlier cited Section 3 of
RA 9372, the following elements may be culled: (1) the offender commits
an act punishable under any of the cited provisions of the Revised Penal
Code, or under any of the enumerated special penal laws; (2) the
commission of the predicate crime sows and creates a condition of
widespread and extraordinary fear and panic among the populace; and (3)
the offender is actuated by the desire to coerce the government to give in
to an unlawful demand.
In insisting on a facial challenge on the invocation that the law
penalizes speech, petitioners contend that the element of unlawful demand
in the definition of terrorism[77] must necessarily be transmitted through
some form of expression protected by the free speech clause.
The argument does not persuade. What the law seeks to penalize
is conduct, not speech.
Before a charge for terrorism may be filed under RA 9372, there must first
be a predicate crime actually committed to trigger the operation of the key
qualifying phrases in the other elements of the crime, including the coercion
of the government to accede to an unlawful demand. Given the presence of
the first element, any attempt at singling out or highlighting the
communicative component of the prohibition cannot recategorize the
unprotected conduct into a protected speech.
Petitioners notion on the transmission of message is entirely inaccurate, as

it unduly focuses on just one particle of an element of the crime. Almost
every commission of a crime entails some mincing of words on the part of
the offender like in declaring to launch overt criminal acts against a victim,
in haggling on the amount of ransom or conditions, or in negotiating a
deceitful transaction. An analogy in one U.S. case[78] illustrated that the fact
that the prohibition on discrimination in hiring on the basis of race will
require an employer to take down a sign reading White Applicants Only
hardly means that the law should be analyzed as one regulating speech
rather than conduct.
Utterances not elemental but inevitably incidental to the doing of the

criminal conduct alter neither the intent of the law to punish socially
harmful conduct nor the essence of the whole act as conduct and not
speech. This holds true a fortiori in the present case where the expression
figures only as an inevitable incident of making the element of coercion
perceptible.
[I]t is true that the agreements and course of conduct here were as in most
instances brought about through speaking or writing. But it has never been
deemed an abridgement of freedom of speech or press to make a course
of conduct illegal merely because the conduct was, in part,
initiated, evidenced, or carried out by means of language, either spoken,
written, or printed. Such an expansive interpretation of the constitutional
guaranties of speech and press would make it practically impossible ever to
enforce laws against agreements in restraint of trade as well as many other
agreements and conspiracies deemed injurious to society.[79](italics and
underscoring supplied)
Certain kinds of speech have been treated as unprotected conduct,

because they merely evidence a prohibited conduct.[80] Since speech is not
involved here, the Court cannot heed the call for a facial analysis.
IN FINE, Estrada and the other cited authorities engaged in a vagueness

analysis of the therein subject penal statute as applied to the therein
petitioners inasmuch as they were actually charged with the pertinent
crimes challenged on vagueness grounds. The Court in said cases,
however, found no basis to review the assailed penal statute on its face
and in its entirety.
In Holder, on the other hand, the US Supreme Court allowed the pre-
enforcement review of a criminal statute, challenged on vagueness
grounds, since the therein plaintiffs faced a credible threat of
prosecution and should not be required to await and undergo a criminal
prosecution as the sole means of seeking relief.
As earlier reflected, petitioners have established neither an actual charge
nor a credible threat of prosecution under RA 9372. Even a limited
vagueness analysis of the assailed definition of terrorism is thus legally
impermissible. The Court reminds litigants that judicial power neither
contemplates speculative counseling on a statutes future effect on
hypothetical scenarios nor allows the courts to be used as an extension of
a failed legislative lobbying in Congress.
WHEREFORE, the petitions are DISMISSED.
SO ORDERED.
G.R. No. 179267 June 25, 2013
JESUS C. GARCIA, Petitioner,

vs.
THE HONORABLE RAY ALAN T. DRILON, Presiding Judge, Regional
Trial Court-Branch 41, Bacolod City, and ROSALIE JAYPE-GARCIA,
for herself and in behalf of minor children, namely: JO-ANN, JOSEPH
EDUARD, JESSE ANTHONE, all surnamed GARCIA, Respondents.
DECISION
PERLAS-BERNABE, J.:
Hailed as the bastion of Christianity in Asia, the Philippines boasts of 86.8

million Filipinos- or 93 percent of a total population of 93.3 million –
adhering to the teachings of Jesus Christ.1 Yet, the admonition for
husbands to love their wives as their own bodies just as Christ loved the
church and gave himself up for her2 failed to prevent, or even to curb, the
pervasiveness of violence against Filipino women. The National
Commission on the Role of Filipino Women (NCRFW) reported that, for the
years 2000-2003, "female violence comprised more than 90o/o of all forms
of abuse and violence and more than 90% of these reported cases were
committed by the women's intimate partners such as their husbands and
live-in partners."3
Thus, on March 8, 2004, after nine (9) years of spirited advocacy by

women's groups, Congress enacted Republic Act (R.A.) No. 9262, entitled
"An Act Defining Violence Against Women and Their Children, Providing for
Protective Measures for Victims, Prescribing Penalties Therefor, and for
Other Purposes." It took effect on March 27, 2004.4
R.A. 9262 is a landmark legislation that defines and criminalizes acts of

violence against women and their children (VAWC) perpetrated by
women's intimate partners, i.e, husband; former husband; or any person
who has or had a sexual or dating relationship, or with whom the woman
has a common child.5 The law provides for protection orders from the
barangay and the courts to prevent the commission of further acts of
VAWC; and outlines the duties and responsibilities of barangay officials,
law enforcers, prosecutors and court personnel, social workers, health care
providers, and other local government officials in responding to complaints
of VAWC or requests for assistance.
A husband is now before the Court assailing the constitutionality of R.A.

9262 as being violative of the equal protection and due process clauses,
and an undue delegation of judicial power to barangay officials.
The Factual Antecedents
On March 23, 2006, Rosalie Jaype-Garcia (private respondent) filed, for

herself and in behalf of her minor children, a verified petition6 (Civil Case
No. 06-797) before the Regional Trial Court (RTC) of Bacolod City for the
issuance of a Temporary Protection Order (TPO) against her husband,
Jesus C. Garcia (petitioner), pursuant to R.A. 9262. She claimed to be a
victim of physical abuse; emotional, psychological, and economic violence
as a result of marital infidelity on the part of petitioner, with threats of
deprivation of custody of her children and of financial support.7
Private respondent's claims

Private respondent married petitioner in 2002 when she was 34 years old
and the former was eleven years her senior. They have three (3) children,
namely: Jo-Ann J. Garcia, 17 years old, who is the natural child of
petitioner but whom private respondent adopted; Jessie Anthone J. Garcia,
6 years old; and Joseph Eduard J. Garcia, 3 years old.8
Private respondent described herself as a dutiful and faithful wife, whose

life revolved around her husband. On the other hand, petitioner, who is of
Filipino-Chinese descent, is dominant, controlling, and demands absolute
obedience from his wife and children. He forbade private respondent to
pray, and deliberately isolated her from her friends. When she took up law,
and even when she was already working part time at a law office, petitioner
trivialized her ambitions and prevailed upon her to just stay at home. He
was often jealous of the fact that his attractive wife still catches the eye of
some men, at one point threatening that he would have any man eyeing
her killed.9
Things turned for the worse when petitioner took up an affair with a bank
manager of Robinson's Bank, Bacolod City, who is the godmother of one of
their sons. Petitioner admitted to the affair when private respondent
confronted him about it in 2004. He even boasted to the household help
about his sexual relations with said bank manager. Petitioner told private
respondent, though, that he was just using the woman because of their
accounts with the bank.10
Petitioner's infidelity spawned a series of fights that left private respondent

physically and emotionally wounded. In one of their quarrels, petitioner
grabbed private respondent on both arms and shook her with such force
that caused bruises and hematoma. At another time, petitioner hit private
respondent forcefully on the lips that caused some bleeding. Petitioner
sometimes turned his ire on their daughter, Jo-Ann, who had seen the text
messages he sent to his paramour and whom he blamed for squealing on
him. He beat Jo-Ann on the chest and slapped her many times. When
private respondent decided to leave petitioner, Jo-Ann begged her mother
to stay for fear that if the latter leaves, petitioner would beat her up. Even
the small boys are aware of private respondent's sufferings. Their 6-year-
old son said that when he grows up, he would beat up his father because of
his cruelty to private respondent.11
All the emotional and psychological turmoil drove private respondent to the
brink of despair. On December 17, 2005, while at home, she attempted
suicide by cutting her wrist. She was found by her son bleeding on the
floor. Petitioner simply fled the house instead of taking her to the hospital.
Private respondent was hospitalized for about seven (7) days in which time
petitioner never bothered to visit, nor apologized or showed pity on her.
Since then, private respondent has been undergoing therapy almost every
week and is taking anti-depressant medications.12
When private respondent informed the management of Robinson's Bank

that she intends to file charges against the bank manager, petitioner got
angry with her for jeopardizing the manager's job. He then packed his
things and told private respondent that he was leaving her for good. He
even told private respondent's mother, who lives with them in the family
home, that private respondent should just accept his extramarital affair
since he is not cohabiting with his paramour and has not sired a child with
her.13
Private respondent is determined to separate from petitioner but she is

afraid that he would take her children from her and deprive her of financial
support. Petitioner had previously warned her that if she goes on a legal
battle with him, she would not get a single centavo.14
Petitioner controls the family businesses involving mostly the construction

of deep wells. He is the President of three corporations – 326 Realty
Holdings, Inc., Negros Rotadrill Corporation, and J-Bros Trading
Corporation – of which he and private respondent are both stockholders. In
contrast to the absolute control of petitioner over said corporations, private
respondent merely draws a monthly salary of ₱20,000.00 from one
corporation only, the Negros Rotadrill Corporation. Household expenses
amounting to not less than ₱200,000.00 a month are paid for by private
respondent through the use of credit cards, which, in turn, are paid by the
same corporation together with the bills for utilities.15
On the other hand, petitioner receives a monthly salary of ₱60,000.00 from
Negros Rotadrill Corporation, and enjoys unlimited cash advances and
other benefits in hundreds of thousands of pesos from the
corporations.16 After private respondent confronted him about the affair,
petitioner forbade her to hold office at JBTC Building, Mandalagan, where
all the businesses of the corporations are conducted, thereby depriving her
of access to full information about said businesses. Until the filing of the
petition a quo, petitioner has not given private respondent an accounting of
the businesses the value of which she had helped raise to millions of
pesos.17
Action of the RTC of Bacolod City
Finding reasonable ground to believe that an imminent danger of violence

against the private respondent and her children exists or is about to recur,
the RTC issued a TPO18 on March 24, 2006 effective for thirty (30) days,
which is quoted hereunder:
Respondent (petitioner herein), Jesus Chua Garcia, is hereby:
a) Ordered to remove all his personal belongings from the conjugal

dwelling or family home within 24 hours from receipt of the Temporary
Restraining Order and if he refuses, ordering that he be removed by police
officers from the conjugal dwelling; this order is enforceable
notwithstanding that the house is under the name of 236 Realty Holdings
Inc. (Republic Act No. 9262 states "regardless of ownership"), this is to
allow the Petitioner (private respondent herein) to enter the conjugal
dwelling without any danger from the Respondent.
After the Respondent leaves or is removed from the conjugal dwelling, or

anytime the Petitioner decides to return to the conjugal dwelling to remove
things, the Petitioner shall be assisted by police officers when re-entering
the family home.
The Chief of Police shall also give the Petitioner police assistance on
Sunday, 26 March 2006 because of the danger that the Respondent will
attempt to take her children from her when he arrives from Manila and finds
out about this suit.
b) To stay away from the petitioner and her children, mother and all her
household help and driver from a distance of 1,000 meters, and shall not
enter the gate of the subdivision where the Petitioner may be temporarily
residing.
c) Not to harass, annoy, telephone, contact or otherwise communicate with

the Petitioner, directly or indirectly, or through other persons, or contact
directly or indirectly her children, mother and household help, nor send
gifts, cards, flowers, letters and the like. Visitation rights to the children may
be subject of a modified TPO in the future.
d) To surrender all his firearms including a .9MM caliber firearm and a

Walther PPK and ordering the Philippine National Police Firearms and
Explosives Unit and the Provincial Director of the PNP to cancel all the
Respondent's firearm licenses. He should also be ordered to surrender any
unlicensed firearms in his possession or control.
e) To pay full financial support for the Petitioner and the children, including
rental of a house for them, and educational and medical expenses.
f) Not to dissipate the conjugal business.
g) To render an accounting of all advances, benefits, bonuses and other

cash he received from all the corporations from 1 January 2006 up to 31
March 2006, which himself and as President of the corporations and his
Comptroller, must submit to the Court not later than 2 April 2006.
Thereafter, an accounting of all these funds shall be reported to the court
by the Comptroller, copy furnished to the Petitioner, every 15 days of the
month, under pain of Indirect Contempt of Court.
h) To ensure compliance especially with the order granting support

pendente lite, and considering the financial resources of the Respondent
and his threat that if the Petitioner sues she will not get a single centavo,
the Respondent is ordered to put up a BOND TO KEEP THE PEACE in the
amount of FIVE MILLION PESOS, in two sufficient sureties.
On April 24, 2006, upon motion19 of private respondent, the trial court
issued an amended TPO,20 effective for thirty (30) days, which included the
following additional provisions:
i) The petitioners (private respondents herein) are given the continued use
of the Nissan Patrol and the Starex Van which they are using in Negros
Occidental.
j) The petitioners are given the continued use and occupation of the house
in Parañaque, the continued use of the Starex van in Metro Manila,
whenever they go to Manila.
k) Respondent is ordered to immediately post a bond to keep the peace, in

two sufficient sureties.
l) To give monthly support to the petitioner provisionally fixed in the sum of

One Hundred Fifty Thousand Pesos (Php 150,000.00) per month plus
rental expenses of Fifty Thousand Pesos (Php 50,000.00) per month until
the matter of support could be finally resolved.
Two days later, or on April 26, 2006, petitioner filed an Opposition to the
Urgent Ex-Parte Motion for Renewal of the TPO21 seeking the denial of the
renewal of the TPO on the grounds that it did not (1) comply with the three-
day notice rule, and (2) contain a notice of hearing. He further asked that
the TPO be modified by (1) removing one vehicle used by private
respondent and returning the same to its rightful owner, the J-Bros Trading
Corporation, and (2) cancelling or reducing the amount of the bond from
₱5,000,000.00 to a more manageable level at ₱100,000.00.
Subsequently, on May 23, 2006, petitioner moved22 for the modification of

the TPO to allow him visitation rights to his children.
On May 24, 2006, the TPO was renewed and extended yet again, but
subject only to the following modifications prayed for by private respondent:
a) That respondent (petitioner herein) return the clothes and other personal
belongings of Rosalie and her children to Judge Jesus Ramos, co-counsel
for Petitioner, within 24 hours from receipt of the Temporary Protection
Order by his counsel, otherwise be declared in Indirect Contempt of Court;
b) Respondent shall make an accounting or list of furniture and equipment

in the conjugal house in Pitimini St., Capitolville Subdivision, Bacolod City
within 24 hours from receipt of the Temporary Protection Order by his
counsel;
c) Ordering the Chief of the Women's Desk of the Bacolod City Police
Headquarters to remove Respondent from the conjugal dwelling within
eight (8) hours from receipt of the Temporary Protection Order by his
counsel, and that he cannot return until 48 hours after the petitioners have
left, so that the petitioner Rosalie and her representatives can remove
things from the conjugal home and make an inventory of the household
furniture, equipment and other things in the conjugal home, which shall be
submitted to the Court.
d) Deliver full financial support of Php200,000.00 and Php50,000.00 for

rental and Php25,000.00 for clothes of the three petitioners (sic) children
within 24 hours from receipt of the Temporary Protection Order by his
counsel, otherwise be declared in indirect contempt of Court;
e) That respondent surrender his two firearms and all unlicensed firearms
to the Clerk of Court within 24 hours from receipt of the Temporary
Protection Order by his counsel;
f) That respondent shall pay petitioner educational expenses of the children

upon presentation of proof of payment of such expenses.23
Claiming that petitioner continued to deprive them of financial support;

failed to faithfully comply with the TPO; and committed new acts of
harassment against her and their children, private respondent filed another
application24 for the issuance of a TPO ex parte. She alleged inter
alia that petitioner contrived a replevin suit against himself by J-Bros

Trading, Inc., of which the latter was purportedly no longer president, with
the end in view of recovering the Nissan Patrol and Starex Van used by
private respondent and the children. A writ of replevin was served upon
private respondent by a group of six or seven policemen with long firearms
that scared the two small boys, Jessie Anthone and Joseph Eduard.25
While Joseph Eduard, then three years old, was driven to school, two men
allegedly attempted to kidnap him, which incident traumatized the boy
resulting in his refusal to go back to school. On another occasion, petitioner
allegedly grabbed their daughter, Jo-Ann, by the arm and threatened
her.26 The incident was reported to the police, and Jo-Ann subsequently
filed a criminal complaint against her father for violation of R.A. 7610, also
known as the "Special Protection of Children Against Child Abuse,
Exploitation and Discrimination Act."
Aside from the replevin suit, petitioner's lawyers initiated the filing by the
housemaids working at the conjugal home of a complaint for kidnapping
and illegal detention against private respondent. This came about after
private respondent, armed with a TPO, went to said home to get her and
her children's belongings. Finding some of her things inside a housemaid's
(Sheryl Jamola) bag in the maids' room, private respondent filed a case for
qualified theft against Jamola.27
On August 23, 2006, the RTC issued a TPO,28 effective for thirty (30) days,
which reads as follows:
Respondent (petitioner herein), Jesus Chua Garcia, is hereby:
1) Prohibited from threatening to commit or committing, personally or

through another, acts of violence against the offended party;
2) Prohibited from harassing, annoying, telephoning, contacting or

otherwise communicating in any form with the offended party, either directly
or indirectly;
3) Required to stay away, personally or through his friends, relatives,

employees or agents, from all the Petitioners Rosalie J. Garcia and her
children, Rosalie J. Garcia's three brothers, her mother Primitiva Jaype,
cook Novelita Caranzo, driver Romeo Hontiveros, laundrywoman Mercedita
Bornales, security guard Darwin Gayona and the petitioner's other
household helpers from a distance of 1,000 meters, and shall not enter the
gate of the subdivision where the Petitioners are temporarily residing, as
well as from the schools of the three children; Furthermore, that respondent
shall not contact the schools of the children directly or indirectly in any
manner including, ostensibly to pay for their tuition or other fees directly,
otherwise he will have access to the children through the schools and the
TPO will be rendered nugatory;
4) Directed to surrender all his firearms including .9MM caliber firearm and
a Walther PPK to the Court;
5) Directed to deliver in full financial support of Php200,000.00 a month and

Php50,000.00 for rental for the period from August 6 to September 6, 2006;
and support in arrears from March 2006 to August 2006 the total amount of
Php1,312,000.00;
6) Directed to deliver educational expenses for 2006-2007 the amount of

Php75,000.00 and Php25,000.00;
7) Directed to allow the continued use of a Nissan Patrol with Plate No.
FEW 508 and a Starex van with Plate No. FFD 991 and should the
respondent fail to deliver said vehicles, respondent is ordered to provide
the petitioner another vehicle which is the one taken by J Bros Tading;
8) Ordered not to dissipate, encumber, alienate, sell, lease or otherwise

dispose of the conjugal assets, or those real properties in the name of
Jesus Chua Garcia only and those in which the conjugal partnership of
gains of the Petitioner Rosalie J. Garcia and respondent have an interest
in, especially the conjugal home located in No. 14, Pitimini St., Capitolville
Subdivision, Bacolod City, and other properties which are conjugal assets
or those in which the conjugal partnership of gains of Petitioner Rosalie J.
Garcia and the respondent have an interest in and listed in Annexes "I," "I-
1," and "I-2," including properties covered by TCT Nos. T-186325 and T-
168814;
9) Ordered that the Register of Deeds of Bacolod City and E.B. Magalona
shall be served a copy of this TEMPORARY PROTECTION ORDER and
are ordered not to allow the transfer, sale, encumbrance or disposition of
these above-cited properties to any person, entity or corporation without
the personal presence of petitioner Rosalie J. Garcia, who shall affix her
signature in the presence of the Register of Deeds, due to the fear of
petitioner Rosalie that her signature will be forged in order to effect the
encumbrance or sale of these properties to defraud her or the conjugal
partnership of gains.
In its Order29 dated September 26, 2006, the trial court extended the
aforequoted TPO for another ten (10) days, and gave petitioner a period of
five (5) days within which to show cause why the TPO should not be
renewed, extended, or modified. Upon petitioner's
manifestation,30 however, that he has not received a copy of private
respondent's motion to modify/renew the TPO, the trial court directed in its
Order31 dated October 6, 2006 that petitioner be furnished a copy of said
motion. Nonetheless, an Order32 dated a day earlier, October 5, had
already been issued renewing the TPO dated August 23, 2006. The
pertinent portion is quoted hereunder:
xxxx
x x x it appearing further that the hearing could not yet be finally terminated,
the Temporary Protection Order issued on August 23, 2006 is hereby
renewed and extended for thirty (30) days and continuously extended and
renewed for thirty (30) days, after each expiration, until further orders, and
subject to such modifications as may be ordered by the court.
After having received a copy of the foregoing Order, petitioner no longer

submitted the required comment to private respondent's motion for renewal
of the TPO arguing that it would only be an "exercise in futility."33
Proceedings before the CA
During the pendency of Civil Case No. 06-797, petitioner filed before the
Court of Appeals (CA) a petition34 for prohibition (CA-G.R. CEB-SP. No.
01698), with prayer for injunction and temporary restraining order,
challenging (1) the constitutionality of R.A. 9262 for being violative of the
due process and the equal protection clauses, and (2) the validity of the
modified TPO issued in the civil case for being "an unwanted product of an
invalid law."
On May 26, 2006, the appellate court issued a 60-day Temporary

Restraining Order36 (TRO) against the enforcement of the TPO, the
amended TPOs and other orders pursuant thereto.
Subsequently, however, on January 24, 2007, the appellate court

dismissed36 the petition for failure of petitioner to raise the constitutional
issue in his pleadings before the trial court in the civil case, which is clothed
with jurisdiction to resolve the same. Secondly, the challenge to the validity
of R.A. 9262 through a petition for prohibition seeking to annul the

protection orders issued by the trial court constituted a collateral attack on
said law.
His motion for reconsideration of the foregoing Decision having been

denied in the Resolution37 dated August 14, 2007, petitioner is now before
us alleging that –
The Issues
I.
THE COURT OF APPEALS ERRED IN DISMISSING THE PETITION ON

THE THEORY THAT THE ISSUE OF CONSTITUTIONALITY WAS NOT
RAISED AT THE EARLIEST OPPORTUNITY AND THAT, THE PETITION
CONSTITUTES A COLLATERAL ATTACK ON THE VALIDITY OF THE
LAW.
II.
THE COURT OF APPEALS COMMITTED SERIOUS ERROR IN FAILING

TO CONCLUDE THAT R.A. 9262 IS DISCRIMINATORY, UNJUST, AND
VIOLATIVE OF THE EQUAL PROTECTION CLAUSE.
III.
THE COURT OF APPEALS COMMITTED GRAVE MISTAKE IN NOT
FINDING THAT R.A. 9262 RUNS COUNTER TO THE DUE PROCESS
CLAUSE OF THE CONSTITUTION.
IV.
THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE LAW

DOES VIOLENCE TO THE POLICY OF THE STATE TO PROTECT THE
FAMILY AS A BASIC SOCIAL INSTITUTION.
V.
THE COURT OF APPEALS SERIOUSLY ERRED IN NOT DECLARING

R.A. No. 9262 AS INVALID AND UNCONSTITUTIONAL BECAUSE IT
ALLOWS AN UNDUE DELEGATION OF JUDICIAL POWER TO THE
BARANGAY OFFICIALS.38
The Ruling of the Court
Before delving into the arguments propounded by petitioner against the

constitutionality of R.A. 9262, we shall first tackle the propriety of the
dismissal by the appellate court of the petition for prohibition (CA-G.R.
CEB-SP. No. 01698) filed by petitioner.
As a general rule, the question of constitutionality must be raised at the

earliest opportunity so that if not raised in the pleadings, ordinarily it may
not be raised in the trial, and if not raised in the trial court, it will not be
considered on appeal.39 Courts will not anticipate a question of
constitutional law in advance of the necessity of deciding it.40
In defending his failure to attack the constitutionality of R.A. 9262 before

the RTC of Bacolod City, petitioner argues that the Family Court has limited
authority and jurisdiction that is "inadequate to tackle the complex issue of
constitutionality."41
We disagree.
Family Courts have authority and jurisdiction to consider the

constitutionality of a statute.
At the outset, it must be stressed that Family Courts are special courts, of
the same level as Regional Trial Courts. Under R.A. 8369, otherwise
known as the "Family Courts Act of 1997," family courts have exclusive
original jurisdiction to hear and decide cases of domestic violence against
women and children.42 In accordance with said law, the Supreme Court
designated from among the branches of the Regional Trial Courts at least
one Family Court in each of several key cities identified.43 To achieve
harmony with the first mentioned law, Section 7 of R.A. 9262 now provides
that Regional Trial Courts designated as Family Courts shall have original
and exclusive jurisdiction over cases of VAWC defined under the latter law,
viz:
SEC. 7. Venue. – The Regional Trial Court designated as a Family Court

shall have original and exclusive jurisdiction over cases of violence against
women and their children under this law. In the absence of such court in
the place where the offense was committed, the case shall be filed in the
Regional Trial Court where the crime or any of its elements was committed
at the option of the complainant. (Emphasis supplied)
Inspite of its designation as a family court, the RTC of Bacolod City remains
possessed of authority as a court of general original jurisdiction to pass
upon all kinds of cases whether civil, criminal, special proceedings, land
registration, guardianship, naturalization, admiralty or insolvency.44 It is
settled that RTCs have jurisdiction to resolve the constitutionality of a
statute,45 "this authority being embraced in the general definition of the
judicial power to determine what are the valid and binding laws by the
criterion of their conformity to the fundamental law."46The Constitution vests
the power of judicial review or the power to declare the constitutionality or
validity of a law, treaty, international or executive agreement, presidential
decree, order, instruction, ordinance, or regulation not only in this Court,
but in all RTCs.47 We said in J.M. Tuason and Co., Inc. v. CA48 that, "plainly
the Constitution contemplates that the inferior courts should have
jurisdiction in cases involving constitutionality of any treaty or law, for it
speaks of appellate review of final judgments of inferior courts in cases
where such constitutionality happens to be in issue." Section 5, Article VIII
of the 1987 Constitution reads in part as follows:
SEC. 5. The Supreme Court shall have the following powers:
xxx
2. Review, revise, reverse, modify, or affirm on appeal or certiorari, as the

law or the Rules of Court may provide, final judgments and orders of lower
courts in:
a. All cases in which the constitutionality or validity of any treaty,

international or executive agreement, law, presidential decree,
proclamation, order, instruction, ordinance, or regulation is in question.
xxxx
Thus, contrary to the posturing of petitioner, the issue of constitutionality of

R.A. 9262 could have been raised at the earliest opportunity in his
Opposition to the petition for protection order before the RTC of Bacolod
City, which had jurisdiction to determine the same, subject to the review of
this Court.
Section 20 of A.M. No. 04-10-11-SC, the Rule on Violence Against Women

and Their Children, lays down a new kind of procedure requiring the
respondent to file an opposition to the petition and not an answer.49 Thus:
SEC. 20. Opposition to petition. – (a) The respondent may file an

opposition to the petition which he himself shall verify. It must be
accompanied by the affidavits of witnesses and shall show cause why a
temporary or permanent protection order should not be issued.
(b) Respondent shall not include in the opposition any counterclaim, cross-
claim or third-party complaint, but any cause of action which could be the
subject thereof may be litigated in a separate civil action. (Emphasis
supplied)
We cannot subscribe to the theory espoused by petitioner that, since a

counterclaim, cross-claim and third-party complaint are to be excluded from
the opposition, the issue of constitutionality cannot likewise be raised
therein. A counterclaim is defined as any claim for money or other relief
which a defending party may have against an opposing party.50 A cross-
claim, on the other hand, is any claim by one party against a co-party
arising out of the transaction or occurrence that is the subject matter either
of the original action or of a counterclaim therein.51Finally, a third-party
complaint is a claim that a defending party may, with leave of court, file
against a person not a party to the action for contribution, indemnity,
subrogation or any other relief, in respect of his opponent's claim.52As
pointed out by Justice Teresita J. Leonardo-De Castro, the
unconstitutionality of a statute is not a cause of action that could be the
subject of a counterclaim, cross-claim or a third-party complaint. Therefore,
it is not prohibited from being raised in the opposition in view of the familiar
maxim expressio unius est exclusio alterius.
Moreover, it cannot be denied that this issue affects the resolution of the
case a quo because the right of private respondent to a protection order is
founded solely on the very statute the validity of which is being
attacked53 by petitioner who has sustained, or will sustain, direct injury as a
result of its enforcement. The alleged unconstitutionality of R.A. 9262 is, for
all intents and purposes, a valid cause for the non-issuance of a protection
order.
That the proceedings in Civil Case No. 06-797 are summary in nature
should not have deterred petitioner from raising the same in his Opposition.
The question relative to the constitutionality of a statute is one of law which
does not need to be supported by evidence.54 Be that as it may, Section 25
of A.M. No. 04-10-11-SC nonetheless allows the conduct of a hearing to
determine legal issues, among others, viz:
SEC. 25. Order for further hearing. - In case the court determines the need
for further hearing, it may issue an order containing the following:
(a) Facts undisputed and admitted;
(b) Factual and legal issues to be resolved;
(c) Evidence, including objects and documents that have been marked and
will be presented;
(d) Names of witnesses who will be ordered to present their direct
testimonies in the form of affidavits; and
(e) Schedule of the presentation of evidence by both parties which shall be

done in one day, to the extent possible, within the 30-day period of the
effectivity of the temporary protection order issued. (Emphasis supplied)
To obviate potential dangers that may arise concomitant to the conduct of a

hearing when necessary, Section 26 (b) of A.M. No. 04-10-11-SC provides
that if a temporary protection order issued is due to expire, the trial court
may extend or renew the said order for a period of thirty (30) days each
time until final judgment is rendered. It may likewise modify the extended or
renewed temporary protection order as may be necessary to meet the
needs of the parties. With the private respondent given ample protection,
petitioner could proceed to litigate the constitutional issues, without
necessarily running afoul of the very purpose for the adoption of the rules
on summary procedure.
In view of all the foregoing, the appellate court correctly dismissed the
petition for prohibition with prayer for injunction and temporary restraining
order (CA-G.R. CEB - SP. No. 01698). Petitioner may have proceeded
upon an honest belief that if he finds succor in a superior court, he could be
granted an injunctive relief. However, Section 22(j) of A.M. No. 04-10-11-
SC expressly disallows the filing of a petition for certiorari, mandamus or
prohibition against any interlocutory order issued by the trial court. Hence,
the 60-day TRO issued by the appellate court in this case against the
enforcement of the TPO, the amended TPOs and other orders pursuant
thereto was improper, and it effectively hindered the case from taking its
normal course in an expeditious and summary manner.
As the rules stand, a review of the case by appeal or certiorari before

judgment is prohibited. Moreover, if the appeal of a judgment granting
permanent protection shall not stay its enforcement,55 with more reason
that a TPO, which is valid only for thirty (30) days at a time,56 should not be
enjoined.
The mere fact that a statute is alleged to be unconstitutional or invalid,
does not of itself entitle a litigant to have the same enjoined.57 In Younger
v. Harris, Jr.,58 the Supreme Court of the United States declared, thus:
Federal injunctions against state criminal statutes, either in their entirety or

with respect to their separate and distinct prohibitions, are not to be granted
as a matter of course, even if such statutes are unconstitutional. No citizen
or member of the community is immune from prosecution, in good faith, for
his alleged criminal acts. The imminence of such a prosecution even
though alleged to be unauthorized and, hence, unlawful is not alone ground
for relief in equity which exerts its extraordinary powers only to prevent
irreparable injury to the plaintiff who seeks its aid. (Citations omitted)
The sole objective of injunctions is to preserve the status quo until the trial
court hears fully the merits of the case. It bears stressing, however, that
protection orders are granted ex parte so as to protect women and their
children from acts of violence. To issue an injunction against such orders
will defeat the very purpose of the law against VAWC.
Notwithstanding all these procedural flaws, we shall not shirk from our
obligation to determine novel issues, or issues of first impression, with far-
reaching implications. We have, time and again, discharged our solemn
duty as final arbiter of constitutional issues, and with more reason now, in
view of private respondent's plea in her Comment59 to the instant Petition
that we should put the challenge to the constitutionality of R.A. 9262 to rest.
And so we shall.
Intent of Congress in enacting R.A. 9262.
Petitioner claims that since R.A. 9262 is intended to prevent and criminalize
spousal and child abuse, which could very well be committed by either the
husband or the wife, gender alone is not enough basis to deprive the
husband/father of the remedies under the law.60
A perusal of the deliberations of Congress on Senate Bill No. 2723,61 which

became R.A. 9262, reveals that while the sponsor, Senator Luisa Pimentel-
Ejercito (better known as Senator Loi Estrada), had originally proposed
what she called a "synthesized measure"62 – an amalgamation of two
measures, namely, the "Anti-Domestic Violence Act" and the "Anti-Abuse of
Women in Intimate Relationships Act"63 – providing protection to "all family
members, leaving no one in isolation" but at the same time giving special
attention to women as the "usual victims" of violence and
abuse,64 nonetheless, it was eventually agreed that men be denied
protection under the same measure. We quote pertinent portions of the
deliberations:
Wednesday, December 10, 2003
Senator Pangilinan. I just wanted to place this on record, Mr. President.

Some women's groups have expressed concerns and relayed these
concerns to me that if we are to include domestic violence apart from
against women as well as other members of the household, including
children or the husband, they fear that this would weaken the efforts to
address domestic violence of which the main victims or the bulk of the
victims really are the wives, the spouses or the female partners in a
relationship. We would like to place that on record. How does the good
Senator respond to this kind of observation?
Senator Estrada. Yes, Mr. President, there is this group of women who call
themselves "WIIR" Women in Intimate Relationship. They do not want to
include men in this domestic violence. But plenty of men are also being
abused by women. I am playing safe so I placed here members of the
family, prescribing penalties therefor and providing protective measures for
victims. This includes the men, children, live-in, common-law wives, and
those related with the family.65
xxx
Wednesday, January 14, 2004
xxxx
The President Pro Tempore. x x x

Also, may the Chair remind the group that there was the discussion
whether to limit this to women and not to families which was the issue of
the AWIR group. The understanding that I have is that we would be having
a broader scope rather than just women, if I remember correctly, Madam
sponsor.
Senator Estrada. Yes, Mr. President.
As a matter of fact, that was brought up by Senator Pangilinan during the

interpellation period.
I think Senator Sotto has something to say to that.
Senator Legarda. Mr. President, the reason I am in support of the measure.

Do not get me wrong. However, I believe that there is a need to protect
women's rights especially in the domestic environment.
As I said earlier, there are nameless, countless, voiceless women who

have not had the opportunity to file a case against their spouses, their live-
in partners after years, if not decade, of battery and abuse. If we broaden
the scope to include even the men, assuming they can at all be abused by
the women or their spouses, then it would not equalize the already difficult
situation for women, Mr. President.
I think that the sponsor, based on our earlier conversations, concurs with
this position. I am sure that the men in this Chamber who love their women
in their lives so dearly will agree with this representation. Whether we like it
or not, it is an unequal world. Whether we like it or not, no matter how
empowered the women are, we are not given equal opportunities especially
in the domestic environment where the macho Filipino man would always
feel that he is stronger, more superior to the Filipino woman.
xxxx
The President Pro Tempore. What does the sponsor say?
Senator Estrada. Mr. President, before accepting this, the committee came
up with this bill because the family members have been included in this
proposed measure since the other members of the family other than
women are also possible victims of violence. While women are most likely
the intended victims, one reason incidentally why the measure focuses on
women, the fact remains that in some relatively few cases, men also stand
to be victimized and that children are almost always the helpless victims of
violence. I am worried that there may not be enough protection extended to
other family members particularly children who are excluded. Although
Republic Act No. 7610, for instance, more or less, addresses the special
needs of abused children. The same law is inadequate. Protection orders
for one are not available in said law.
I am aware that some groups are apprehensive about granting the same
protection to men, fearing that they may use this law to justify their abusive
behavior against women. However, we should also recognize that there are
established procedures and standards in our courts which give credence to
evidentiary support and cannot just arbitrarily and whimsically entertain
baseless complaints.
Mr. President, this measure is intended to harmonize family relations and to

protect the family as the basic social institution. Though I recognize the
unequal power relations between men and women in our society, I believe
we have an obligation to uphold inherent rights and dignity of both husband
and wife and their immediate family members, particularly children.
While I prefer to focus mainly on women, I was compelled to include other

family members as a critical input arrived at after a series of
consultations/meetings with various NGOs, experts, sports groups and
other affected sectors, Mr. President.
Senator Sotto. Mr. President.
The President Pro Tempore. Yes, with the permission of the other
senators.
Senator Sotto. Yes, with the permission of the two ladies on the Floor.
The President Pro Tempore. Yes, Sen. Vicente C. Sotto III is recognized.
Senator Sotto. I presume that the effect of the proposed amendment of
Senator Legarda would be removing the "men and children" in this
particular bill and focus specifically on women alone. That will be the net
effect of that proposed amendment. Hearing the rationale mentioned by the
distinguished sponsor, Sen. Luisa "Loi" Ejercito Estrada, I am not sure now
whether she is inclined to accept the proposed amendment of Senator
Legarda.
I am willing to wait whether she is accepting this or not because if she is

going to accept this, I will propose an amendment to the amendment rather
than object to the amendment, Mr. President.
xxxx
Senator Estrada. The amendment is accepted, Mr. President.
The President Pro Tempore. Is there any objection?
xxxx
Senator Sotto. x x x May I propose an amendment to the amendment.
The President Pro Tempore. Before we act on the amendment?
Senator Sotto. Yes, Mr. President.
The President Pro Tempore. Yes, please proceed.
Senator Sotto. Mr. President, I am inclined to believe the rationale used by

the distinguished proponent of the amendment. As a matter of fact, I tend
to agree. Kung may maaabuso, mas malamang iyong babae kaysa sa
lalake. At saka iyong mga lalake, puwede na talagang magulpi iyan. Okey
lang iyan. But I cannot agree that we remove the children from this
particular measure.
So, if I may propose an amendment –
The President Pro Tempore. To the amendment.
Senator Sotto. – more than the women, the children are very much abused.
As a matter of fact, it is not limited to minors. The abuse is not limited to
seven, six, 5-year-old children. I have seen 14, 15-year-old children being
abused by their fathers, even by their mothers. And it breaks my heart to
find out about these things.
Because of the inadequate existing law on abuse of children, this particular

measure will update that. It will enhance and hopefully prevent the abuse of
children and not only women.
SOTTO-LEGARDA AMENDMENTS
Therefore, may I propose an amendment that, yes, we remove the aspect

of the men in the bill but not the children.
Senator Legarda. I agree, Mr. President, with the Minority Leader.
The President Pro Tempore. Effectively then, it will be women AND

CHILDREN.
Senator Sotto. Yes, Mr. President.
Senator Estrada. It is accepted, Mr. President.
The President Pro Tempore. Is there any objection? [Silence] There being
none, the amendment, as amended, is approved.66
It is settled that courts are not concerned with the wisdom, justice, policy, or
expediency of a statute.67 Hence, we dare not venture into the real
motivations and wisdom of the members of Congress in limiting the
protection against violence and abuse under R.A. 9262 to women and
children only. No proper challenge on said grounds may be entertained in
this proceeding. Congress has made its choice and it is not our prerogative
to supplant this judgment. The choice may be perceived as erroneous but
even then, the remedy against it is to seek its amendment or repeal by the
legislative. By the principle of separation of powers, it is the legislative that
determines the necessity, adequacy, wisdom and expediency of any
law.68 We only step in when there is a violation of the Constitution.
However, none was sufficiently shown in this case.
R.A. 9262 does not violate the guaranty of equal protection of the laws.
Equal protection simply requires that all persons or things similarly situated
should be treated alike, both as to rights conferred and responsibilities
imposed. The oft-repeated disquisition in the early case of Victoriano v.
Elizalde Rope Workers' Union69 is instructive:
The guaranty of equal protection of the laws is not a guaranty of equality in

the application of the laws upon all citizens of the state. It is not, therefore,
a requirement, in order to avoid the constitutional prohibition against
inequality, that every man, woman and child should be affected alike by a
statute. Equality of operation of statutes does not mean indiscriminate
operation on persons merely as such, but on persons according to the
circumstances surrounding them. It guarantees equality, not identity of
rights. The Constitution does not require that things which are different in
fact be treated in law as though they were the same. The equal protection
clause does not forbid discrimination as to things that are different. It does
not prohibit legislation which is limited either in the object to which it is
directed or by the territory within which it is to operate.
The equal protection of the laws clause of the Constitution allows

classification. Classification in law, as in the other departments of
knowledge or practice, is the grouping of things in speculation or practice
because they agree with one another in certain particulars. A law is not
invalid because of simple inequality. The very idea of classification is that of
inequality, so that it goes without saying that the mere fact of inequality in
no manner determines the matter of constitutionality. All that is required of
a valid classification is that it be reasonable, which means that the
classification should be based on substantial distinctions which make for
real differences; that it must be germane to the purpose of the law; that it
must not be limited to existing conditions only; and that it must apply
equally to each member of the class. This Court has held that the standard
is satisfied if the classification or distinction is based on a reasonable
foundation or rational basis and is not palpably arbitrary. (Emphasis
supplied)
Measured against the foregoing jurisprudential yardstick, we find that R.A.

9262 is based on a valid classification as shall hereinafter be discussed
and, as such, did not violate the equal protection clause by favoring women
over men as victims of violence and abuse to whom the State extends its
protection.
I. R.A. 9262 rests on substantial distinctions.
The unequal power relationship between women and men; the fact that
women are more likely than men to be victims of violence; and the
widespread gender bias and prejudice against women all make for real
differences justifying the classification under the law. As Justice McIntyre
succinctly states, "the accommodation of differences ... is the essence of
true equality."70
A. Unequal power relationship between men and women
According to the Philippine Commission on Women (the National

Machinery for Gender Equality and Women's Empowerment), violence
against women (VAW) is deemed to be closely linked with the unequal
power relationship between women and men otherwise known as "gender-
based violence". Societal norms and traditions dictate people to think men
are the leaders, pursuers, providers, and take on dominant roles in society
while women are nurturers, men's companions and supporters, and take on
subordinate roles in society. This perception leads to men gaining more
power over women. With power comes the need to control to retain that
power. And VAW is a form of men's expression of controlling women to
retain power.71
The United Nations, which has long recognized VAW as a human rights
issue, passed its Resolution 48/104 on the Declaration on Elimination of
Violence Against Women on December 20, 1993 stating that "violence
against women is a manifestation of historically unequal power relations
between men and women, which have led to domination over and
discrimination against women by men and to the prevention of the full
advancement of women, and that violence against women is one of the
crucial social mechanisms by which women are forced into subordinate
positions, compared with men."72
Then Chief Justice Reynato S. Puno traced the historical and social context
of gender-based violence and developments in advocacies to eradicate
VAW, in his remarks delivered during the Joint Launching of R.A. 9262 and
its Implementing Rules last October 27, 2004, the pertinent portions of
which are quoted hereunder:
History reveals that most societies sanctioned the use of violence against
women. The patriarch of a family was accorded the right to use force on
members of the family under his control. I quote the early studies:
Traditions subordinating women have a long history rooted in patriarchy –

the institutional rule of men. Women were seen in virtually all societies to
be naturally inferior both physically and intellectually. In ancient Western
societies, women whether slave, concubine or wife, were under the
authority of men. In law, they were treated as property.
The Roman concept of patria potestas allowed the husband to beat, or

even kill, his wife if she endangered his property right over her. Judaism,
Christianity and other religions oriented towards the patriarchal family
strengthened the male dominated structure of society.
English feudal law reinforced the tradition of male control over women.
Even the eminent Blackstone has been quoted in his commentaries as
saying husband and wife were one and that one was the husband.
However, in the late 1500s and through the entire 1600s, English common
law began to limit the right of husbands to chastise their wives. Thus,
common law developed the rule of thumb, which allowed husbands to beat
their wives with a rod or stick no thicker than their thumb.
In the later part of the 19th century, legal recognition of these rights to
chastise wives or inflict corporeal punishment ceased. Even then, the
preservation of the family was given more importance than preventing
violence to women.
The metamorphosis of the law on violence in the United States followed

that of the English common law. In 1871, the Supreme Court of Alabama
became the first appellate court to strike down the common law right of a
husband to beat his wife:
The privilege, ancient though it may be, to beat one's wife with a stick, to
pull her hair, choke her, spit in her face or kick her about the floor, or to
inflict upon her like indignities, is not now acknowledged by our law... In
person, the wife is entitled to the same protection of the law that the
husband can invoke for himself.
As time marched on, the women's advocacy movement became more

organized. The temperance leagues initiated it. These leagues had a
simple focus. They considered the evils of alcoholism as the root cause of
wife abuse. Hence, they demonstrated and picketed saloons, bars and their
husbands' other watering holes. Soon, however, their crusade was joined
by suffragette movements, expanding the liberation movement's agenda.
They fought for women's right to vote, to own property, and more. Since
then, the feminist movement was on the roll.
The feminist movement exposed the private invisibility of the domestic

violence to the public gaze. They succeeded in transforming the issue into
an important public concern. No less than the United States Supreme
Court, in 1992 case Planned Parenthood v. Casey, noted:
In an average 12-month period in this country, approximately two million

women are the victims of severe assaults by their male partners. In a 1985
survey, women reported that nearly one of every eight husbands had
assaulted their wives during the past year. The [American Medical
Association] views these figures as "marked underestimates," because the
nature of these incidents discourages women from reporting them, and
because surveys typically exclude the very poor, those who do not speak
English well, and women who are homeless or in institutions or hospitals
when the survey is conducted. According to the AMA, "researchers on
family violence agree that the true incidence of partner violence is probably
double the above estimates; or four million severely assaulted women per
year."
Studies on prevalence suggest that from one-fifth to one-third of all women
will be physically assaulted by a partner or ex-partner during their lifetime...
Thus on an average day in the United States, nearly 11,000 women are
severely assaulted by their male partners. Many of these incidents involve
sexual assault... In families where wife beating takes place, moreover, child
abuse is often present as well.
Other studies fill in the rest of this troubling picture. Physical violence is
only the most visible form of abuse. Psychological abuse, particularly
forced social and economic isolation of women, is also common.
Many victims of domestic violence remain with their abusers, perhaps

because they perceive no superior alternative...Many abused women who
find temporary refuge in shelters return to their husbands, in large part
because they have no other source of income... Returning to one's abuser
can be dangerous. Recent Federal Bureau of Investigation statistics
disclose that 8.8 percent of all homicide victims in the United States are
killed by their spouses...Thirty percent of female homicide victims are killed
by their male partners.
Finally in 1994, the United States Congress enacted the Violence Against
Women Act.
In the International front, the women's struggle for equality was no less
successful. The United States Charter and the Universal Declaration of
Human Rights affirmed the equality of all human beings. In 1979, the UN
General Assembly adopted the landmark Convention on the Elimination of
all Forms of Discrimination Against Women (CEDAW). In 1993, the UN
General Assembly also adopted the Declaration on the Elimination of
Violence Against Women. World conferences on the role and rights of
women have been regularly held in Mexico City, Copenhagen, Nairobi and
Beijing. The UN itself established a Commission on the Status of Women.
The Philippines has been in cadence with the half – and full – steps of all
these women's movements. No less than Section 14, Article II of our 1987
Constitution mandates the State to recognize the role of women in nation
building and to ensure the fundamental equality before the law of women
and men. Our Senate has ratified the CEDAW as well as the Convention
on the Rights of the Child and its two protocols. To cap it all, Congress, on
March 8, 2004, enacted Rep. Act No. 9262, entitled "An Act Defining
Violence Against Women and Their Children, Providing for Protective
Measures for Victims, Prescribing Penalties therefor and for other
Purposes." (Citations omitted)
B. Women are the "usual" and "most likely"
victims of violence.
At the time of the presentation of Senate Bill No. 2723, official statistics on
violence against women and children show that –
x x x physical injuries had the highest number of cases at 5,058 in 2002

representing 55.63% of total cases reported (9,903). And for the first
semester of 2003, there were 2,381 reported cases out of 4,354 cases
which represent 54.31%. xxx (T)he total number of women in especially
difficult circumstances served by the Department of Social Welfare and
Development (DSWD) for the year 2002, there are 1,417 physically
abused/maltreated cases out of the total of 5,608 cases. xxx (T)here are
1,091 DSWD cases out of a total number of 3,471 cases for the first
semester of 2003. Female violence comprised more than 90% of all forms
of abuse and violence and more than 90% of these reported cases were
committed by the women's intimate partners such as their husbands and
live-in partners.73
Recently, the Philippine Commission on Women presented comparative

statistics on violence against women across an eight-year period from 2004
to August of 2011 with violations under R.A. 9262 ranking first among the
different VAW categories since its implementation in 2004,74 thus:
Table 1. Annual Comparative Statistics on Violence Against Women, 2004

- 2011*
Reported 200 200 200 200 200 200 201 201

Cases 4 5 6 7 8 9 0 1
1,04
Rape 997 927 659 837 811 770 832
2
Incestuou
38 46 26 22 28 27 19 23
s Rape
Attempted
194 148 185 147 204 167 268 201
Rape
Acts of
Lascivious 580 536 382 358 445 485 745 625
ness
Physical 3,5 2,3 1,8 1,5 1,3 1,4 2,01 1,58

Injuries 53 35 92 05 07 98 8 8
Sexual
Harassme 53 37 38 46 18 54 83 63
nt
1,2 2,3 3,5 5,2 9,97 9,02

RA 9262 218 924
69 87 99 85 4 1
Threats 319 223 199 182 220 208 374 213

Seduction 62 19 29 30 19 19 25 15
Concubina
121 102 93 109 109 99 158 128
ge
RA 9208 17 11 16 24 34 152 190 62
Abduction
/Kidnappin 16 34 23 28 18 25 22
g 29
Unjust
90 50 59 59 83 703 183 155
Vexation
6,2 5,3 4,8 5,7 6,9 9,4 15,1 12,9

Total
71 74 81 29 05 85 04 48
*2011 report covers only from January to August
Source: Philippine National Police – Women and Children Protection

Center (WCPC)
On the other hand, no reliable estimates may be obtained on domestic

abuse and violence against men in the Philippines because incidents
thereof are relatively low and, perhaps, because many men will not even
attempt to report the situation. In the United Kingdom, 32% of women who
had ever experienced domestic violence did so four or five (or more) times,
compared with 11% of the smaller number of men who had ever
experienced domestic violence; and women constituted 89% of all those
who had experienced 4 or more incidents of domestic violence.75Statistics
in Canada show that spousal violence by a woman against a man is less
likely to cause injury than the other way around (18 percent versus 44
percent). Men, who experience violence from their spouses are much less
likely to live in fear of violence at the hands of their spouses, and much less
likely to experience sexual assault. In fact, many cases of physical violence
by a woman against a spouse are in self-defense or the result of many
years of physical or emotional abuse.76
While there are, indeed, relatively few cases of violence and abuse
perpetrated against men in the Philippines, the same cannot render R.A.
9262 invalid.
In a 1960 case involving the violation of a city ordinance requiring drivers of

animal-drawn vehicles to pick up, gather and deposit in receptacles the
manure emitted or discharged by their vehicle-drawing animals in any
public highways, streets, plazas, parks or alleys, said ordinance was
challenged as violative of the guaranty of equal protection of laws as its
application is limited to owners and drivers of vehicle-drawing animals and
not to those animals, although not utilized, but similarly pass through the
same streets.
The ordinance was upheld as a valid classification for the reason that, while
there may be non-vehicle-drawing animals that also traverse the city roads,
"but their number must be negligible and their appearance therein merely
occasional, compared to the rig-drawing ones, as not to constitute a
menace to the health of the community."77 The mere fact that the legislative
classification may result in actual inequality is not violative of the right to
equal protection, for every classification of persons or things for regulation
by law produces inequality in some degree, but the law is not thereby
rendered invalid.78
C. Gender bias and prejudices
From the initial report to the police through prosecution, trial, and
sentencing, crimes against women are often treated differently and less
seriously than other crimes. This was argued by then United States
Senator Joseph R. Biden, Jr., now Vice President, chief sponsor of the
Violence Against Women Act (VAWA), in defending the civil rights remedy
as a valid exercise of the U.S. Congress' authority under the Commerce
and Equal Protection Clauses. He stressed that the widespread gender
bias in the U.S. has institutionalized historic prejudices against victims of
rape or domestic violence, subjecting them to "double victimization" – first
at the hands of the offender and then of the legal system.79
Our own Senator Loi Estrada lamented in her Sponsorship Speech for
Senate Bill No. 2723 that "(w)henever violence occurs in the family, the
police treat it as a private matter and advise the parties to settle the conflict
themselves. Once the complainant brings the case to the prosecutor, the
latter is hesitant to file the complaint for fear that it might later be
withdrawn. This lack of response or reluctance to be involved by the police
and prosecution reinforces the escalating, recurring and often serious
nature of domestic violence."80
Sadly, our own courts, as well, have exhibited prejudices and biases
against our women.
In a recent case resolved on March 9, 2011, we fined RTC Judge Venancio

J. Amila for Conduct Unbecoming of a Judge. He used derogatory and
irreverent language in reference to the complainant in a petition for TPO
and PPO under R.A. 9262, calling her as "only a live-in partner" and
presenting her as an "opportunist" and a "mistress" in an "illegitimate
relationship." Judge Amila even called her a "prostitute," and accused her
of being motivated by "insatiable greed" and of absconding with the
contested property.81 Such remarks betrayed Judge Amila's prejudices and
lack of gender sensitivity.
The enactment of R.A. 9262 aims to address the discrimination brought

about by biases and prejudices against women. As emphasized by the
CEDAW Committee on the Elimination of Discrimination against Women,
addressing or correcting discrimination through specific measures focused
on women does not discriminate against men.82Petitioner's
contention,83 therefore, that R.A. 9262 is discriminatory and that it is an
"anti-male," "husband-bashing," and "hate-men" law deserves scant
consideration. As a State Party to the CEDAW, the Philippines bound itself
to take all appropriate measures "to modify the social and cultural patterns
of conduct of men and women, with a view to achieving the elimination of
prejudices and customary and all other practices which are based on the
idea of the inferiority or the superiority of either of the sexes or on
stereotyped roles for men and women."84 Justice Puno correctly pointed out
that "(t)he paradigm shift changing the character of domestic violence from
a private affair to a public offense will require the development of a distinct
mindset on the part of the police, the prosecution and the judges."85
II. The classification is germane to the purpose of the law.
The distinction between men and women is germane to the purpose of R.A.
9262, which is to address violence committed against women and children,
spelled out in its Declaration of Policy, as follows:
SEC. 2. Declaration of Policy. – It is hereby declared that the State values

the dignity of women and children and guarantees full respect for human
rights. The State also recognizes the need to protect the family and its
members particularly women and children, from violence and threats to
their personal safety and security.
Towards this end, the State shall exert efforts to address violence
committed against women and children in keeping with the fundamental
freedoms guaranteed under the Constitution and the provisions of the
Universal Declaration of Human Rights, the Convention on the Elimination
of All Forms of Discrimination Against Women, Convention on the Rights of
the Child and other international human rights instruments of which the
Philippines is a party.
In 1979, the U.N. General Assembly adopted the CEDAW, which the
Philippines ratified on August 5, 1981. Subsequently, the Optional Protocol
to the CEDAW was also ratified by the Philippines on October 6,
2003.86 This Convention mandates that State parties shall accord to
women equality with men before the law87 and shall take all appropriate
measures to eliminate discrimination against women in all matters relating
to marriage and family relations on the basis of equality of men and
women.88 The Philippines likewise ratified the Convention on the Rights of
the Child and its two protocols.89 It is, thus, bound by said Conventions and
their respective protocols.
III. The classification is not limited to existing
conditions only, and apply equally to all members
Moreover, the application of R.A. 9262 is not limited to the existing

conditions when it was promulgated, but to future conditions as well, for as
long as the safety and security of women and their children are threatened
by violence and abuse.
R.A. 9262 applies equally to all women and children who suffer violence
and abuse. Section 3 thereof defines VAWC as:
x x x any act or a series of acts committed by any person against a woman

who is his wife, former wife, or against a woman with whom the person has
or had a sexual or dating relationship, or with whom he has a common
child, or against her child whether legitimate or illegitimate, within or without
the family abode, which result in or is likely to result in physical, sexual,
psychological harm or suffering, or economic abuse including threats of
such acts, battery, assault, coercion, harassment or arbitrary deprivation of
liberty. It includes, but is not limited to, the following acts:
A. "Physical Violence" refers to acts that include bodily or physical harm;
B. "Sexual violence" refers to an act which is sexual in nature, committed

against a woman or her child. It includes, but is not limited to:
a) rape, sexual harassment, acts of lasciviousness, treating a woman or

her child as a sex object, making demeaning and sexually suggestive
remarks, physically attacking the sexual parts of the victim's body, forcing
her/him to watch obscene publications and indecent shows or forcing the
woman or her child to do indecent acts and/or make films thereof, forcing
the wife and mistress/lover to live in the conjugal home or sleep together in
the same room with the abuser;
b) acts causing or attempting to cause the victim to engage in any sexual
activity by force, threat of force, physical or other harm or threat of physical
or other harm or coercion;
c) Prostituting the woman or child.
C. "Psychological violence" refers to acts or omissions causing or likely to

cause mental or emotional suffering of the victim such as but not limited to
intimidation, harassment, stalking, damage to property, public ridicule or
humiliation, repeated verbal abuse and marital infidelity. It includes causing
or allowing the victim to witness the physical, sexual or psychological
abuse of a member of the family to which the victim belongs, or to witness
pornography in any form or to witness abusive injury to pets or to unlawful
or unwanted deprivation of the right to custody and/or visitation of common
children.
D. "Economic abuse" refers to acts that make or attempt to make a woman

financially dependent which includes, but is not limited to the following:
1. withdrawal of financial support or preventing the victim from engaging in

any legitimate profession, occupation, business or activity, except in cases
wherein the other spouse/partner objects on valid, serious and moral
grounds as defined in Article 73 of the Family Code;
2. deprivation or threat of deprivation of financial resources and the right to

the use and enjoyment of the conjugal, community or property owned in
common;
3. destroying household property;
4. controlling the victims' own money or properties or solely controlling the

conjugal money or properties.
It should be stressed that the acts enumerated in the aforequoted provision

are attributable to research that has exposed the dimensions and dynamics
of battery. The acts described here are also found in the U.N. Declaration
on the Elimination of Violence Against Women.90 Hence, the argument
advanced by petitioner that the definition of what constitutes abuse
removes the difference between violent action and simple marital tiffs is
tenuous.
There is nothing in the definition of VAWC that is vague and ambiguous

that will confuse petitioner in his defense. The acts enumerated above are
easily understood and provide adequate contrast between the innocent and
the prohibited acts. They are worded with sufficient definiteness that
persons of ordinary intelligence can understand what conduct is prohibited,
and need not guess at its meaning nor differ in its application.91 Yet,
petitioner insists92that phrases like "depriving or threatening to deprive the
woman or her child of a legal right," "solely controlling the conjugal or
common money or properties," "marital infidelity," and "causing mental or
emotional anguish" are so vague that they make every quarrel a case of
spousal abuse. However, we have stressed that the "vagueness" doctrine
merely requires a reasonable degree of certainty for the statute to be
upheld – not absolute precision or mathematical exactitude, as petitioner
seems to suggest. Flexibility, rather than meticulous specificity, is
permissible as long as the metes and bounds of the statute are clearly
delineated. An act will not be held invalid merely because it might have
been more explicit in its wordings or detailed in its provisions.93
There is likewise no merit to the contention that R.A. 9262 singles out the
husband or father as the culprit. As defined above, VAWC may likewise be
committed "against a woman with whom the person has or had a sexual or
dating relationship." Clearly, the use of the gender-neutral word "person"
who has or had a sexual or dating relationship with the woman
encompasses even lesbian relationships. Moreover, while the law provides
that the offender be related or connected to the victim by marriage, former
marriage, or a sexual or dating relationship, it does not preclude the
application of the principle of conspiracy under the Revised Penal Code
(RPC). Thus, in the case of Go-Tan v. Spouses Tan,94 the parents-in-law of
Sharica Mari L. Go-Tan, the victim, were held to be proper respondents in
the case filed by the latter upon the allegation that they and their son (Go-
Tan's husband) had community of design and purpose in tormenting her by
giving her insufficient financial support; harassing and pressuring her to be
ejected from the family home; and in repeatedly abusing her verbally,
emotionally, mentally and physically.
R.A. 9262 is not violative of the

due process clause of the Constitution.
Petitioner bewails the disregard of R.A. 9262, specifically in the issuance of

POs, of all protections afforded by the due process clause of the
Constitution. Says he: "On the basis of unsubstantiated allegations, and
practically no opportunity to respond, the husband is stripped of family,
property, guns, money, children, job, future employment and reputation, all
in a matter of seconds, without an inkling of what happened."95
A protection order is an order issued to prevent further acts of violence

against women and their children, their family or household members, and
to grant other necessary reliefs. Its purpose is to safeguard the offended
parties from further harm, minimize any disruption in their daily life and
facilitate the opportunity and ability to regain control of their life.96
"The scope of reliefs in protection orders is broadened to ensure that the

victim or offended party is afforded all the remedies necessary to curtail
access by a perpetrator to the victim. This serves to safeguard the victim
from greater risk of violence; to accord the victim and any designated family
or household member safety in the family residence, and to prevent the
perpetrator from committing acts that jeopardize the employment and
support of the victim. It also enables the court to award temporary custody
of minor children to protect the children from violence, to prevent their
abduction by the perpetrator and to ensure their financial support."97
The rules require that petitions for protection order be in writing, signed and
verified by the petitioner98 thereby undertaking full responsibility, criminal or
civil, for every allegation therein. Since "time is of the essence in cases of
VAWC if further violence is to be prevented,"99 the court is authorized to
issue ex parte a TPO after raffle but before notice and hearing when the
life, limb or property of the victim is in jeopardy and there is reasonable
ground to believe that the order is necessary to protect the victim from the
immediate and imminent danger of VAWC or to prevent such violence,
which is about to recur.100
There need not be any fear that the judge may have no rational basis to
issue an ex parte order. The victim is required not only to verify the
allegations in the petition, but also to attach her witnesses' affidavits to the
petition.101
The grant of a TPO ex parte cannot, therefore, be challenged as violative of

the right to due process. Just like a writ of preliminary attachment which is
issued without notice and hearing because the time in which the hearing
will take could be enough to enable the defendant to abscond or dispose of
his property,102 in the same way, the victim of VAWC may already have
suffered harrowing experiences in the hands of her tormentor, and possibly
even death, if notice and hearing were required before such acts could be
prevented. It is a constitutional commonplace that the ordinary
requirements of procedural due process must yield to the necessities of
protecting vital public interests,103among which is protection of women and
children from violence and threats to their personal safety and security.
It should be pointed out that when the TPO is issued ex parte, the court
shall likewise order that notice be immediately given to the respondent
directing him to file an opposition within five (5) days from service.
Moreover, the court shall order that notice, copies of the petition and TPO
be served immediately on the respondent by the court sheriffs. The TPOs
are initially effective for thirty (30) days from service on the respondent.104
Where no TPO is issued ex parte, the court will nonetheless order the
immediate issuance and service of the notice upon the respondent
requiring him to file an opposition to the petition within five (5) days from
service. The date of the preliminary conference and hearing on the merits
shall likewise be indicated on the notice.105
The opposition to the petition which the respondent himself shall verify,
must be accompanied by the affidavits of witnesses and shall show cause
why a temporary or permanent protection order should not be issued.106
It is clear from the foregoing rules that the respondent of a petition for
protection order should be apprised of the charges imputed to him and
afforded an opportunity to present his side. Thus, the fear of petitioner of
being "stripped of family, property, guns, money, children, job, future
employment and reputation, all in a matter of seconds, without an inkling of
what happened" is a mere product of an overactive imagination. The
essence of due process is to be found in the reasonable opportunity to be
heard and submit any evidence one may have in support of one's defense.
"To be heard" does not only mean verbal arguments in court; one may be
heard also through pleadings. Where opportunity to be heard, either
through oral arguments or pleadings, is accorded, there is no denial of
procedural due process.107
It should be recalled that petitioner filed on April 26, 2006 an Opposition to

the Urgent Ex-Parte Motion for Renewal of the TPO that was granted only
two days earlier on April 24, 2006. Likewise, on May 23, 2006, petitioner
filed a motion for the modification of the TPO to allow him visitation rights to
his children. Still, the trial court in its Order dated September 26, 2006,
gave him five days (5) within which to show cause why the TPO should not
be renewed or extended. Yet, he chose not to file the required comment
arguing that it would just be an "exercise in futility," conveniently forgetting
that the renewal of the questioned TPO was only for a limited period (30
days) each time, and that he could prevent the continued renewal of said
order if he can show sufficient cause therefor. Having failed to do so,
petitioner may not now be heard to complain that he was denied due
process of law.
Petitioner next laments that the removal and exclusion of the respondent in
the VAWC case from the residence of the victim, regardless of ownership
of the residence, is virtually a "blank check" issued to the wife to claim any
property as her conjugal home.108
The wording of the pertinent rule, however, does not by any stretch of the
imagination suggest that this is so. It states:
SEC. 11. Reliefs available to the offended party. -- The protection order
shall include any, some or all of the following reliefs:
xxxx
(c) Removing and excluding the respondent from the residence of the
offended party, regardless of ownership of the residence, either temporarily
for the purpose of protecting the offended party, or permanently where no
property rights are violated. If the respondent must remove personal effects
from the residence, the court shall direct a law enforcement agent to
accompany the respondent to the residence, remain there until the
respondent has gathered his things and escort him from the residence;
xxxx
Indubitably, petitioner may be removed and excluded from private

respondent's residence, regardless of ownership, only temporarily for the
purpose of protecting the latter. Such removal and exclusion may be
permanent only where no property rights are violated. How then can the
private respondent just claim any property and appropriate it for herself, as
petitioner seems to suggest?
The non-referral of a VAWC case

to a mediator is justified.
Petitioner argues that "by criminalizing run-of-the-mill arguments, instead of

encouraging mediation and counseling, the law has done violence to the
avowed policy of the State to "protect and strengthen the family as a basic
autonomous social institution."109
Under Section 23(c) of A.M. No. 04-10-11-SC, the court shall not refer the
case or any issue thereof to a mediator. The reason behind this provision is
well-explained by the Commentary on Section 311 of the Model Code on
Domestic and Family Violence as follows:110
This section prohibits a court from ordering or referring parties to mediation

in a proceeding for an order for protection. Mediation is a process by which
parties in equivalent bargaining positions voluntarily reach consensual
agreement about the issue at hand. Violence, however, is not a subject for
compromise. A process which involves parties mediating the issue of
violence implies that the victim is somehow at fault. In addition, mediation
of issues in a proceeding for an order of protection is problematic because
the petitioner is frequently unable to participate equally with the person
against whom the protection order has been sought. (Emphasis supplied)
There is no undue delegation of

judicial power to barangay officials.
Petitioner contends that protection orders involve the exercise of judicial

power which, under the Constitution, is placed upon the "Supreme Court
and such other lower courts as may be established by law" and, thus,
protests the delegation of power to barangay officials to issue protection
orders.111 The pertinent provision reads, as follows:
SEC. 14. Barangay Protection Orders (BPOs); Who May Issue and How. –
Barangay Protection Orders (BPOs) refer to the protection order issued by
the Punong Barangay ordering the perpetrator to desist from committing
acts under Section 5 (a) and (b) of this Act.1âwphi1 A Punong Barangay
who receives applications for a BPO shall issue the protection order to the
applicant on the date of filing after ex parte determination of the basis of the
application. If the Punong Barangay is unavailable to act on the application
for a BPO, the application shall be acted upon by any available Barangay
Kagawad. If the BPO is issued by a Barangay Kagawad, the order must be
accompanied by an attestation by the Barangay Kagawad that the Punong
Barangay was unavailable at the time of the issuance of the BPO. BPOs
shall be effective for fifteen (15) days. Immediately after the issuance of an
ex parte BPO, the Punong Barangay or Barangay Kagawad shall
personally serve a copy of the same on the respondent, or direct any
barangay official to effect its personal service.
The parties may be accompanied by a non-lawyer advocate in any

proceeding before the Punong Barangay.
Judicial power includes the duty of the courts of justice to settle actual
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.112 On the other hand,
executive power "is generally defined as the power to enforce and
administer the laws. It is the power of carrying the laws into practical
operation and enforcing their due observance."113
As clearly delimited by the aforequoted provision, the BPO issued by the

Punong Barangay or, in his unavailability, by any available Barangay
Kagawad, merely orders the perpetrator to desist from (a) causing physical
harm to the woman or her child; and (2) threatening to cause the woman or
her child physical harm. Such function of the Punong Barangay is, thus,
purely executive in nature, in pursuance of his duty under the Local
Government Code to "enforce all laws and ordinances," and to "maintain
public order in the barangay."114
We have held that "(t)he mere fact that an officer is required by law to
inquire into the existence of certain facts and to apply the law thereto in
order to determine what his official conduct shall be and the fact that these
acts may affect private rights do not constitute an exercise of judicial
powers."115
In the same manner as the public prosecutor ascertains through a

preliminary inquiry or proceeding "whether there is reasonable ground to
believe that an offense has been committed and the accused is probably
guilty thereof," the Punong Barangay must determine reasonable ground to
believe that an imminent danger of violence against the woman and her
children exists or is about to recur that would necessitate the issuance of a
BPO. The preliminary investigation conducted by the prosecutor is,
concededly, an executive, not a judicial, function. The same holds true with
the issuance of a BPO.
We need not even belabor the issue raised by petitioner that since
barangay officials and other law enforcement agencies are required to
extend assistance to victims of violence and abuse, it would be very
unlikely that they would remain objective and impartial, and that the
chances of acquittal are nil. As already stated, assistance by barangay
officials and other law enforcement agencies is consistent with their duty to
enforce the law and to maintain peace and order.
Conclusion
Before a statute or its provisions duly challenged are voided, an

unequivocal breach of, or a clear conflict with the Constitution, not merely a
doubtful or argumentative one, must be demonstrated in such a manner as
to leave no doubt in the mind of the Court. In other words, the grounds for
nullity must be beyond reasonable doubt.116 In the instant case, however,
no concrete evidence and convincing arguments were presented by
petitioner to warrant a declaration of the unconstitutionality of R.A. 9262,
which is an act of Congress and signed into law by the highest officer of the
co-equal executive department. As we said in Estrada v.
Sandiganbayan, 117 courts must assume that the legislature is ever
conscious of the borders and edges of its plenary powers, and passed laws
with full knowledge of the facts and for the purpose of promoting what is
right and advancing the welfare of the majority.
We reiterate here Justice Puno's observation that "the history of the

women's movement against domestic violence shows that one of its most
difficult struggles was the fight against the violence of law itself. If we keep
that in mind, law will not again be a hindrance to the struggle of women for
equality but will be its fulfillment."118 Accordingly, the constitutionality of
R.A. 9262 is, as it should be, sustained.
WHEREFORE, the instant petition for review on certiorari is hereby

DENIED for lack of merit.
SO ORDERED.
G.R. No. 167614 March 24, 2009
ANTONIO M. SERRANO, Petitioner,

vs.
Gallant MARITIME SERVICES, INC. and MARLOW NAVIGATION CO.,
INC., Respondents.
DECISION
AUSTRIA-MARTINEZ, J.:
For decades, the toil of solitary migrants has helped lift entire families and
communities out of poverty. Their earnings have built houses, provided
health care, equipped schools and planted the seeds of businesses. They
have woven together the world by transmitting ideas and knowledge from
country to country. They have provided the dynamic human link between
cultures, societies and economies. Yet, only recently have we begun to
understand not only how much international migration impacts
development, but how smart public policies can magnify this effect.
United Nations Secretary-General Ban Ki-Moon

Global Forum on Migration and Development
Brussels, July 10, 20071
For Antonio Serrano (petitioner), a Filipino seafarer, the last clause in the
5th paragraph of Section 10, Republic Act (R.A.) No. 8042,2 to wit:
Sec. 10. Money Claims. - x x x In case of termination of overseas

employment without just, valid or authorized cause as defined by law or
contract, the workers shall be entitled to the full reimbursement of his
placement fee with interest of twelve percent (12%) per annum, plus his
salaries for the unexpired portion of his employment contract or for three
(3) months for every year of the unexpired term, whichever is less.
x x x x (Emphasis and underscoring supplied)
does not magnify the contributions of overseas Filipino workers (OFWs) to

national development, but exacerbates the hardships borne by them by
unduly limiting their entitlement in case of illegal dismissal to their lump-
sum salary either for the unexpired portion of their employment contract "or
for three months for every year of the unexpired term, whichever is less"
(subject clause). Petitioner claims that the last clause violates the OFWs'
constitutional rights in that it impairs the terms of their contract, deprives
them of equal protection and denies them due process.
By way of Petition for Review under Rule 45 of the Rules of Court,
petitioner assails the December 8, 2004 Decision3 and April 1, 2005
Resolution4 of the Court of Appeals (CA), which applied the subject clause,
entreating this Court to declare the subject clause unconstitutional.
Petitioner was hired by Gallant Maritime Services, Inc. and Marlow

Navigation Co., Ltd. (respondents) under a Philippine Overseas
Employment Administration (POEA)-approved Contract of Employment
with the following terms and conditions:
Duration of contract 12 months
Position Chief Officer
Basic monthly salary US$1,400.00
Hours of work 48.0 hours per week
Overtime US$700.00 per month
Vacation leave with pay 7.00 days per month5
On March 19, 1998, the date of his departure, petitioner was constrained to
accept a downgraded employment contract for the position of Second
Officer with a monthly salary of US$1,000.00, upon the assurance and
representation of respondents that he would be made Chief Officer by the
end of April 1998.6
Respondents did not deliver on their promise to make petitioner Chief

Officer.7 Hence, petitioner refused to stay on as Second Officer and was
repatriated to the Philippines on May 26, 1998.8
Petitioner's employment contract was for a period of 12 months or from

March 19, 1998 up to March 19, 1999, but at the time of his repatriation on
May 26, 1998, he had served only two (2) months and seven (7) days of his
contract, leaving an unexpired portion of nine (9) months and twenty-three
(23) days.
Petitioner filed with the Labor Arbiter (LA) a Complaint9 against

respondents for constructive dismissal and for payment of his money
claims in the total amount of US$26,442.73, broken down as follows:
May US$ 413.90

27/31,
1998
(5
days)
incl.
Leave
pay
June 2,590.00
01/30,
1998
July 2,590.00
01/31,
1998
August 2,590.00
01/31,
1998
Sept. 2,590.00
01/30,
1998
Oct. 2,590.00
01/31,
1998
Nov. 2,590.00
01/30,
1998
Dec. 2,590.00
01/31,
1998
Jan. 2,590.00
01/31,
1999
Feb. 2,590.00
01/28,
1999
Mar. 1,640.00
1/19,
1999
(19
days)
incl.
leave
pay
--------------------------------------------------------------------------------
25,382.23
Amoun
t
adjuste
d to
chief
mate's
salary
(March 1,060.5010
19/31,
1998
to April
1/30,
1998)
+
---------------------------------------------------------------------------------
-------------
TOTAL US$ 26,442.7311

CLAIM
as well as moral and exemplary damages and attorney's fees.
The LA rendered a Decision dated July 15, 1999, declaring the dismissal of
petitioner illegal and awarding him monetary benefits, to wit:
WHEREFORE, premises considered, judgment is hereby rendered

declaring that the dismissal of the complainant (petitioner) by the
respondents in the above-entitled case was illegal and the respondents are
hereby ordered to pay the complainant [petitioner], jointly and severally, in
Philippine Currency, based on the rate of exchange prevailing at the time of
payment, the amount of EIGHT THOUSAND SEVEN HUNDRED
SEVENTY U.S. DOLLARS (US $8,770.00), representing the
complainant’s salary for three (3) months of the unexpired portion of
the aforesaid contract of employment.1avvphi1
The respondents are likewise ordered to pay the complainant [petitioner],

jointly and severally, in Philippine Currency, based on the rate of exchange
prevailing at the time of payment, the amount of FORTY FIVE U.S.
DOLLARS (US$ 45.00),12 representing the complainant’s claim for a salary
differential. In addition, the respondents are hereby ordered to pay the
complainant, jointly and severally, in Philippine Currency, at the exchange
rate prevailing at the time of payment, the complainant’s (petitioner's) claim
for attorney’s fees equivalent to ten percent (10%) of the total amount
awarded to the aforesaid employee under this Decision.
The claims of the complainant for moral and exemplary damages are
hereby DISMISSED for lack of merit.
All other claims are hereby DISMISSED.
SO ORDERED.13 (Emphasis supplied)
In awarding petitioner a lump-sum salary of US$8,770.00, the LA based his

computation on the salary period of three months only -- rather than the
entire unexpired portion of nine months and 23 days of petitioner's
employment contract - applying the subject clause. However, the LA
applied the salary rate of US$2,590.00, consisting of petitioner's "[b]asic
salary, US$1,400.00/month + US$700.00/month, fixed overtime pay, +
US$490.00/month, vacation leave pay = US$2,590.00/compensation per
month."14
Respondents appealed15 to the National Labor Relations Commission

(NLRC) to question the finding of the LA that petitioner was illegally
dismissed.
Petitioner also appealed16 to the NLRC on the sole issue that the LA erred
in not applying the ruling of the Court in Triple Integrated Services, Inc. v.
National Labor Relations Commission17 that in case of illegal dismissal,
OFWs are entitled to their salaries for the unexpired portion of their
contracts.18
In a Decision dated June 15, 2000, the NLRC modified the LA Decision, to
wit:
WHEREFORE, the Decision dated 15 July 1999 is MODIFIED.

Respondents are hereby ordered to pay complainant, jointly and severally,
in Philippine currency, at the prevailing rate of exchange at the time of
payment the following:
1. Three (3) months salary
$1,400 x 3 US$4,200.00
2. Salary differential 45.00
US$4,245.00
3. 10% Attorney’s fees 424.50
TOTAL US$4,669.50
The other findings are affirmed.
SO ORDERED.19
The NLRC corrected the LA's computation of the lump-sum salary awarded
to petitioner by reducing the applicable salary rate from US$2,590.00 to
US$1,400.00 because R.A. No. 8042 "does not provide for the award of
overtime pay, which should be proven to have been actually performed,
and for vacation leave pay."20
Petitioner filed a Motion for Partial Reconsideration, but this time he

questioned the constitutionality of the subject clause.21 The NLRC denied
the motion.22
Petitioner filed a Petition for Certiorari23 with the CA, reiterating the
constitutional challenge against the subject clause.24 After initially
dismissing the petition on a technicality, the CA eventually gave due course
to it, as directed by this Court in its Resolution dated August 7, 2003 which
granted the petition for certiorari, docketed as G.R. No. 151833, filed by
petitioner.
In a Decision dated December 8, 2004, the CA affirmed the NLRC ruling on
the reduction of the applicable salary rate; however, the CA skirted the
constitutional issue raised by petitioner.25
His Motion for Reconsideration26 having been denied by the

CA,27 petitioner brings his cause to this Court on the following grounds:
The Court of Appeals and the labor tribunals have decided the case in a
way not in accord with applicable decision of the Supreme Court involving
similar issue of granting unto the migrant worker back wages equal to the
unexpired portion of his contract of employment instead of limiting it to
three (3) months
II
In the alternative that the Court of Appeals and the Labor Tribunals were
merely applying their interpretation of Section 10 of Republic Act No. 8042,
it is submitted that the Court of Appeals gravely erred in law when it failed
to discharge its judicial duty to decide questions of substance not
theretofore determined by the Honorable Supreme Court, particularly, the
constitutional issues raised by the petitioner on the constitutionality of said
law, which unreasonably, unfairly and arbitrarily limits payment of the
award for back wages of overseas workers to three (3) months.
III
Even without considering the constitutional limitations [of] Sec. 10 of

Republic Act No. 8042, the Court of Appeals gravely erred in law in
excluding from petitioner’s award the overtime pay and vacation pay
provided in his contract since under the contract they form part of his
salary.28
On February 26, 2008, petitioner wrote the Court to withdraw his petition as
he is already old and sickly, and he intends to make use of the monetary
award for his medical treatment and medication.29 Required to comment,
counsel for petitioner filed a motion, urging the court to allow partial
execution of the undisputed monetary award and, at the same time, praying
that the constitutional question be resolved.30
Considering that the parties have filed their respective memoranda, the
Court now takes up the full merit of the petition mindful of the extreme
importance of the constitutional question raised therein.
On the first and second issues
The unanimous finding of the LA, NLRC and CA that the dismissal of
petitioner was illegal is not disputed. Likewise not disputed is the salary
differential of US$45.00 awarded to petitioner in all three fora. What
remains disputed is only the computation of the lump-sum salary to be
awarded to petitioner by reason of his illegal dismissal.
Applying the subject clause, the NLRC and the CA computed the lump-sum
salary of petitioner at the monthly rate of US$1,400.00 covering the period
of three months out of the unexpired portion of nine months and 23 days of
his employment contract or a total of US$4,200.00.
Impugning the constitutionality of the subject clause, petitioner contends

that, in addition to the US$4,200.00 awarded by the NLRC and the CA, he
is entitled to US$21,182.23 more or a total of US$25,382.23, equivalent to
his salaries for the entire nine months and 23 days left of his employment
contract, computed at the monthly rate of US$2,590.00.31
The Arguments of Petitioner
Petitioner contends that the subject clause is unconstitutional because it

unduly impairs the freedom of OFWs to negotiate for and stipulate in their
overseas employment contracts a determinate employment period and a
fixed salary package.32 It also impinges on the equal protection clause, for
it treats OFWs differently from local Filipino workers (local workers) by
putting a cap on the amount of lump-sum salary to which OFWs are entitled
in case of illegal dismissal, while setting no limit to the same monetary
award for local workers when their dismissal is declared illegal; that the
disparate treatment is not reasonable as there is no substantial distinction
between the two groups;33and that it defeats Section 18,34 Article II of the
Constitution which guarantees the protection of the rights and welfare of all
Filipino workers, whether deployed locally or overseas.35
Moreover, petitioner argues that the decisions of the CA and the labor
tribunals are not in line with existing jurisprudence on the issue of money
claims of illegally dismissed OFWs. Though there are conflicting rulings on
this, petitioner urges the Court to sort them out for the guidance of affected
OFWs.36
Petitioner further underscores that the insertion of the subject clause into
R.A. No. 8042 serves no other purpose but to benefit local placement
agencies. He marks the statement made by the Solicitor General in his
Memorandum, viz.:
Often, placement agencies, their liability being solidary, shoulder the

payment of money claims in the event that jurisdiction over the foreign
employer is not acquired by the court or if the foreign employer reneges on
its obligation. Hence, placement agencies that are in good faith and which
fulfill their obligations are unnecessarily penalized for the acts of the foreign
employer. To protect them and to promote their continued helpful
contribution in deploying Filipino migrant workers, liability for money claims
was reduced under Section 10 of R.A. No. 8042. 37 (Emphasis supplied)
Petitioner argues that in mitigating the solidary liability of placement

agencies, the subject clause sacrifices the well-being of OFWs. Not only
that, the provision makes foreign employers better off than local employers
because in cases involving the illegal dismissal of employees, foreign
employers are liable for salaries covering a maximum of only three months
of the unexpired employment contract while local employers are liable for
the full lump-sum salaries of their employees. As petitioner puts it:
In terms of practical application, the local employers are not limited to the
amount of backwages they have to give their employees they have illegally
dismissed, following well-entrenched and unequivocal jurisprudence on the
matter. On the other hand, foreign employers will only be limited to giving
the illegally dismissed migrant workers the maximum of three (3) months
unpaid salaries notwithstanding the unexpired term of the contract that can
be more than three (3) months.38
Lastly, petitioner claims that the subject clause violates the due process
clause, for it deprives him of the salaries and other emoluments he is
entitled to under his fixed-period employment contract.39
The Arguments of Respondents
In their Comment and Memorandum, respondents contend that the

constitutional issue should not be entertained, for this was belatedly
interposed by petitioner in his appeal before the CA, and not at the earliest
opportunity, which was when he filed an appeal before the NLRC.40
The Arguments of the Solicitor General
The Solicitor General (OSG)41 points out that as R.A. No. 8042 took effect
on July 15, 1995, its provisions could not have impaired petitioner's 1998
employment contract. Rather, R.A. No. 8042 having preceded petitioner's
contract, the provisions thereof are deemed part of the minimum terms of
petitioner's employment, especially on the matter of money claims, as this
was not stipulated upon by the parties.42
Moreover, the OSG emphasizes that OFWs and local workers differ in
terms of the nature of their employment, such that their rights to monetary
benefits must necessarily be treated differently. The OSG enumerates the
essential elements that distinguish OFWs from local workers: first, while
local workers perform their jobs within Philippine territory, OFWs perform
their jobs for foreign employers, over whom it is difficult for our courts to
acquire jurisdiction, or against whom it is almost impossible to enforce
judgment; and second, as held in Coyoca v. National Labor Relations
Commission43 and Millares v. National Labor Relations
Commission,44 OFWs are contractual employees who can never acquire
regular employment status, unlike local workers who are or can become
regular employees. Hence, the OSG posits that there are rights and
privileges exclusive to local workers, but not available to OFWs; that these
peculiarities make for a reasonable and valid basis for the differentiated
treatment under the subject clause of the money claims of OFWs who are
illegally dismissed. Thus, the provision does not violate the equal protection
clause nor Section 18, Article II of the Constitution.45
Lastly, the OSG defends the rationale behind the subject clause as a police
power measure adopted to mitigate the solidary liability of placement
agencies for this "redounds to the benefit of the migrant workers whose
welfare the government seeks to promote. The survival of legitimate
placement agencies helps [assure] the government that migrant workers
are properly deployed and are employed under decent and humane
conditions."46
The Court's Ruling
The Court sustains petitioner on the first and second issues.
When the Court is called upon to exercise its power of judicial review of the
acts of its co-equals, such as the Congress, it does so only when these
conditions obtain: (1) that there is an actual case or controversy involving a
conflict of rights susceptible of judicial determination;47 (2) that the
constitutional question is raised by a proper party48 and at the earliest
opportunity;49 and (3) that the constitutional question is the very lis mota of
the case,50otherwise the Court will dismiss the case or decide the same on
some other ground.51
Without a doubt, there exists in this case an actual controversy directly

involving petitioner who is personally aggrieved that the labor tribunals and
the CA computed his monetary award based on the salary period of three
months only as provided under the subject clause.
The constitutional challenge is also timely. It should be borne in mind that

the requirement that a constitutional issue be raised at the earliest
opportunity entails the interposition of the issue in the pleadings before
a competent court, such that, if the issue is not raised in the pleadings
before that competent court, it cannot be considered at the trial and, if not
considered in the trial, it cannot be considered on appeal.52 Records
disclose that the issue on the constitutionality of the subject clause was first
raised, not in petitioner's appeal with the NLRC, but in his Motion for Partial
Reconsideration with said labor tribunal,53 and reiterated in his Petition
for Certiorari before the CA.54Nonetheless, the issue is deemed seasonably
raised because it is not the NLRC but the CA which has the competence to
resolve the constitutional issue. The NLRC is a labor tribunal that merely
performs a quasi-judicial function – its function in the present case is limited
to determining questions of fact to which the legislative policy of R.A. No.
8042 is to be applied and to resolving such questions in accordance with
the standards laid down by the law itself;55 thus, its foremost function is to
administer and enforce R.A. No. 8042, and not to inquire into the validity of
its provisions. The CA, on the other hand, is vested with the power of
judicial review or the power to declare unconstitutional a law or a provision
thereof, such as the subject clause.56 Petitioner's interposition of the
constitutional issue before the CA was undoubtedly seasonable. The CA
was therefore remiss in failing to take up the issue in its decision.
The third condition that the constitutional issue be critical to the resolution
of the case likewise obtains because the monetary claim of petitioner to his
lump-sum salary for the entire unexpired portion of his 12-month
employment contract, and not just for a period of three months, strikes at
the very core of the subject clause.
Thus, the stage is all set for the determination of the constitutionality of the
subject clause.
Does the subject clause violate Section 10,

Article III of the Constitution on non-impairment
of contracts?
The answer is in the negative.
Petitioner's claim that the subject clause unduly interferes with the
stipulations in his contract on the term of his employment and the fixed
salary package he will receive57 is not tenable.
Section 10, Article III of the Constitution provides:
No law impairing the obligation of contracts shall be passed.

The prohibition is aligned with the general principle that laws newly enacted
have only a prospective operation,58and cannot affect acts or contracts
already perfected;59 however, as to laws already in existence, their
provisions are read into contracts and deemed a part thereof.60 Thus, the
non-impairment clause under Section 10, Article II is limited in application
to laws about to be enacted that would in any way derogate from existing
acts or contracts by enlarging, abridging or in any manner changing the
intention of the parties thereto.
As aptly observed by the OSG, the enactment of R.A. No. 8042 in 1995
preceded the execution of the employment contract between petitioner and
respondents in 1998. Hence, it cannot be argued that R.A. No. 8042,
particularly the subject clause, impaired the employment contract of the
parties. Rather, when the parties executed their 1998 employment contract,
they were deemed to have incorporated into it all the provisions of R.A. No.
8042.
But even if the Court were to disregard the timeline, the subject clause may
not be declared unconstitutional on the ground that it impinges on the
impairment clause, for the law was enacted in the exercise of the police
power of the State to regulate a business, profession or calling, particularly
the recruitment and deployment of OFWs, with the noble end in view of
ensuring respect for the dignity and well-being of OFWs wherever they may
be employed.61Police power legislations adopted by the State to promote
the health, morals, peace, education, good order, safety, and general
welfare of the people are generally applicable not only to future contracts
but even to those already in existence, for all private contracts must yield to
the superior and legitimate measures taken by the State to promote public
welfare.62
Does the subject clause violate Section 1,

Article III of the Constitution, and Section 18,
Article II and Section 3, Article XIII on labor
as a protected sector?
The answer is in the affirmative.

Section 1, Article III of the Constitution guarantees:
No person shall be deprived of life, liberty, or property without due process

of law nor shall any person be denied the equal protection of the law.
Section 18,63 Article II and Section 3,64 Article XIII accord all members of
the labor sector, without distinction as to place of deployment, full
protection of their rights and welfare.
To Filipino workers, the rights guaranteed under the foregoing

constitutional provisions translate to economic security and parity: all
monetary benefits should be equally enjoyed by workers of similar
category, while all monetary obligations should be borne by them in equal
degree; none should be denied the protection of the laws which is enjoyed
by, or spared the burden imposed on, others in like circumstances.65
Such rights are not absolute but subject to the inherent power of Congress
to incorporate, when it sees fit, a system of classification into its legislation;
however, to be valid, the classification must comply with these
requirements: 1) it is based on substantial distinctions; 2) it is germane to
the purposes of the law; 3) it is not limited to existing conditions only; and
4) it applies equally to all members of the class.66
There are three levels of scrutiny at which the Court reviews the
constitutionality of a classification embodied in a law: a) the deferential or
rational basis scrutiny in which the challenged classification needs only be
shown to be rationally related to serving a legitimate state interest;67 b) the
middle-tier or intermediate scrutiny in which the government must show
that the challenged classification serves an important state interest and that
the classification is at least substantially related to serving that
interest;68 and c) strict judicial scrutiny69 in which a legislative classification
which impermissibly interferes with the exercise of a fundamental right70 or
operates to the peculiar disadvantage of a suspect class71 is presumed
unconstitutional, and the burden is upon the government to prove that the
classification is necessary to achieve a compelling state interest and that
it is the least restrictive means to protect such interest.72
Under American jurisprudence, strict judicial scrutiny is triggered by
suspect classifications73 based on race74 or gender75 but not when the
classification is drawn along income categories.76
It is different in the Philippine setting. In Central Bank (now Bangko Sentral

ng Pilipinas) Employee Association, Inc. v. Bangko Sentral ng
Pilipinas,77 the constitutionality of a provision in the charter of the Bangko
Sentral ng Pilipinas(BSP), a government financial institution (GFI), was
challenged for maintaining its rank-and-file employees under the Salary
Standardization Law (SSL), even when the rank-and-file employees of
other GFIs had been exempted from the SSL by their respective charters.
Finding that the disputed provision contained a suspect classification based
on salary grade, the Court deliberately employed the standard of strict
judicial scrutiny in its review of the constitutionality of said provision. More
significantly, it was in this case that the Court revealed the broad outlines of
its judicial philosophy, to wit:
Congress retains its wide discretion in providing for a valid classification,

and its policies should be accorded recognition and respect by the courts of
justice except when they run afoul of the Constitution. The deference stops
where the classification violates a fundamental right, or prejudices
persons accorded special protection by the Constitution. When these
violations arise, this Court must discharge its primary role as the vanguard
of constitutional guaranties, and require a stricter and more exacting
adherence to constitutional limitations. Rational basis should not suffice.
Admittedly, the view that prejudice to persons accorded special protection

by the Constitution requires a stricter judicial scrutiny finds no support in
American or English jurisprudence. Nevertheless, these foreign decisions
and authorities are not per se controlling in this jurisdiction. At best, they
are persuasive and have been used to support many of our decisions. We
should not place undue and fawning reliance upon them and regard them
as indispensable mental crutches without which we cannot come to our
own decisions through the employment of our own endowments. We live in
a different ambience and must decide our own problems in the light of our
own interests and needs, and of our qualities and even idiosyncrasies as a
people, and always with our own concept of law and justice. Our laws must
be construed in accordance with the intention of our own lawmakers and
such intent may be deduced from the language of each law and the context
of other local legislation related thereto. More importantly, they must be
construed to serve our own public interest which is the be-all and the end-
all of all our laws. And it need not be stressed that our public interest is
distinct and different from others.
xxxx
Further, the quest for a better and more "equal" world calls for the use of
equal protection as a tool of effective judicial intervention.
Equality is one ideal which cries out for bold attention and action in the
Constitution. The Preamble proclaims "equality" as an ideal precisely in
protest against crushing inequities in Philippine society. The command to
promote social justice in Article II, Section 10, in "all phases of national
development," further explicitated in Article XIII, are clear commands to the
State to take affirmative action in the direction of greater equality. x x x
[T]here is thus in the Philippine Constitution no lack of doctrinal support for
a more vigorous state effort towards achieving a reasonable measure of
equality.
Our present Constitution has gone further in guaranteeing vital social and
economic rights to marginalized groups of society, including labor. Under
the policy of social justice, the law bends over backward to accommodate
the interests of the working class on the humane justification that those with
less privilege in life should have more in law. And the obligation to afford
protection to labor is incumbent not only on the legislative and executive
branches but also on the judiciary to translate this pledge into a living
reality. Social justice calls for the humanization of laws and the equalization
of social and economic forces by the State so that justice in its rational and
objectively secular conception may at least be approximated.
xxxx
Under most circumstances, the Court will exercise judicial restraint in
deciding questions of constitutionality, recognizing the broad discretion
given to Congress in exercising its legislative power. Judicial scrutiny would
be based on the "rational basis" test, and the legislative discretion would be
given deferential treatment.
But if the challenge to the statute is premised on the denial of a

fundamental right, or the perpetuation of prejudice against persons
favored by the Constitution with special protection, judicial scrutiny
ought to be more strict. A weak and watered down view would call for the
abdication of this Court’s solemn duty to strike down any law repugnant to
the Constitution and the rights it enshrines. This is true whether the actor
committing the unconstitutional act is a private person or the government
itself or one of its instrumentalities. Oppressive acts will be struck down
regardless of the character or nature of the actor.
xxxx
In the case at bar, the challenged proviso operates on the basis of the
salary grade or officer-employee status. It is akin to a distinction based on
economic class and status, with the higher grades as recipients of a benefit
specifically withheld from the lower grades. Officers of the BSP now receive
higher compensation packages that are competitive with the industry, while
the poorer, low-salaried employees are limited to the rates prescribed by
the SSL. The implications are quite disturbing: BSP rank-and-file
employees are paid the strictly regimented rates of the SSL while
employees higher in rank - possessing higher and better education and
opportunities for career advancement - are given higher compensation
packages to entice them to stay. Considering that majority, if not all, the
rank-and-file employees consist of people whose status and rank in life are
less and limited, especially in terms of job marketability, it is they - and not
the officers - who have the real economic and financial need for the
adjustment . This is in accord with the policy of the Constitution "to free the
people from poverty, provide adequate social services, extend to them a
decent standard of living, and improve the quality of life for all." Any act of
Congress that runs counter to this constitutional desideratum deserves
strict scrutiny by this Court before it can pass muster. (Emphasis supplied)
Imbued with the same sense of "obligation to afford protection to labor," the
Court in the present case also employs the standard of strict judicial
scrutiny, for it perceives in the subject clause a suspect classification
prejudicial to OFWs.
Upon cursory reading, the subject clause appears facially neutral, for it
applies to all OFWs. However, a closer examination reveals that the
subject clause has a discriminatory intent against, and an invidious impact
on, OFWs at two levels:
First, OFWs with employment contracts of less than one year vis-à-vis
OFWs with employment contracts of one year or more;
Second, among OFWs with employment contracts of more than one year;
and
Third, OFWs vis-à-vis local workers with fixed-period employment;
OFWs with employment contracts of less than one year vis-à-

vis OFWs with employment contracts of one year or more
As pointed out by petitioner,78 it was in Marsaman Manning Agency, Inc. v.

National Labor Relations Commission79(Second Division, 1999) that the
Court laid down the following rules on the application of the periods
prescribed under Section 10(5) of R.A. No. 804, to wit:
A plain reading of Sec. 10 clearly reveals that the choice of which

amount to award an illegally dismissed overseas contract worker, i.e.,
whether his salaries for the unexpired portion of his employment
contract or three (3) months’ salary for every year of the unexpired
term, whichever is less, comes into play only when the employment
contract concerned has a term of at least one (1) year or more. This is
evident from the words "for every year of the unexpired term" which
follows the words "salaries x x x for three months." To follow
petitioners’ thinking that private respondent is entitled to three (3) months
salary only simply because it is the lesser amount is to completely
disregard and overlook some words used in the statute while giving effect
to some. This is contrary to the well-established rule in legal hermeneutics
that in interpreting a statute, care should be taken that every part or word
thereof be given effect since the law-making body is presumed to know the
meaning of the words employed in the statue and to have used them
advisedly. Ut res magis valeat quam pereat.80 (Emphasis supplied)
In Marsaman, the OFW involved was illegally dismissed two months into
his 10-month contract, but was awarded his salaries for the remaining 8
months and 6 days of his contract.
Prior to Marsaman, however, there were two cases in which the Court
made conflicting rulings on Section 10(5). One was Asian Center for Career
and Employment System and Services v. National Labor Relations
Commission (Second Division, October 1998),81 which involved an OFW
who was awarded a two-year employment contract, but was dismissed
after working for one year and two months. The LA declared his dismissal
illegal and awarded him SR13,600.00 as lump-sum salary covering eight
months, the unexpired portion of his contract. On appeal, the Court
reduced the award to SR3,600.00 equivalent to his three months’ salary,
this being the lesser value, to wit:
Under Section 10 of R.A. No. 8042, a worker dismissed from overseas

employment without just, valid or authorized cause is entitled to his salary
for the unexpired portion of his employment contract or for three (3) months
for every year of the unexpired term, whichever is less.
In the case at bar, the unexpired portion of private respondent’s

employment contract is eight (8) months. Private respondent should
therefore be paid his basic salary corresponding to three (3) months or a
total of SR3,600.82
Another was Triple-Eight Integrated Services, Inc. v. National Labor

Relations Commission (Third Division, December 1998),83 which involved
an OFW (therein respondent Erlinda Osdana) who was originally granted a
12-month contract, which was deemed renewed for another 12 months.
After serving for one year and seven-and-a-half months, respondent
Osdana was illegally dismissed, and the Court awarded her salaries for the
entire unexpired portion of four and one-half months of her contract.
The Marsaman interpretation of Section 10(5) has since been adopted in

the following cases:
Case Title Contract Period of Unexpired Period

Period Service Period Applied in
the
Computation
of the
Monetary
Award
Skippers v. 6 months 2 months 4 months 4 months

Maguad84
Bahia 9 months 8 months 4 months 4 months

Shipping v.
Reynaldo
Chua 85
Centennial 9 months 4 months 5 months 5 months

Transmarine
v. dela Cruz
l86
Talidano v. 12 3 months 9 months 3 months

Falcon87 months
Univan v. 12 3 months 9 months 3 months

CA 88 months
Oriental v. 12 more than 10 months 3 months
CA 89 months 2 months
PCL v. 12 more than more or less 3 months

NLRC90 months 2 months 9 months
Olarte v. 12 21 days 11 months 3 months

Nayona91 months and 9 days
JSS 12 16 days 11 months 3 months

v.Ferrer92 months and 24 days
Pentagon v. 12 9 months 2 months 2 months and

Adelantar93 months and 7 and 23 days 23 days
days
Phil. Employ 12 10 2 months Unexpired

v. Paramio, months months portion
et al.94
Flourish 2 years 26 days 23 months 6 months or 3

Maritime v. and 4 days months for
Almanzor 95 each year of
contract
Athenna 1 year, 1 month 1 year, 9 6 months or 3

Manpower 10 months and months for
v. Villanos 96 months 28 days each year of
and 28 contract
days
As the foregoing matrix readily shows, the subject clause classifies OFWs
into two categories. The first category includes OFWs with fixed-period
employment contracts of less than one year; in case of illegal dismissal,
they are entitled to their salaries for the entire unexpired portion of their
contract. The second category consists of OFWs with fixed-period
employment contracts of one year or more; in case of illegal dismissal, they
are entitled to monetary award equivalent to only 3 months of the unexpired
portion of their contracts.
The disparity in the treatment of these two groups cannot be discounted.

In Skippers, the respondent OFW worked for only 2 months out of his 6-
month contract, but was awarded his salaries for the remaining 4 months.
In contrast, the respondent OFWs in Oriental and PCL who had also
worked for about 2 months out of their 12-month contracts were awarded
their salaries for only 3 months of the unexpired portion of their contracts.
Even the OFWs involved in Talidano and Univan who had worked for a
longer period of 3 months out of their 12-month contracts before being
illegally dismissed were awarded their salaries for only 3 months.
To illustrate the disparity even more vividly, the Court assumes a

hypothetical OFW-A with an employment contract of 10 months at a
monthly salary rate of US$1,000.00 and a hypothetical OFW-B with an
employment contract of 15 months with the same monthly salary rate of
US$1,000.00. Both commenced work on the same day and under the same
employer, and were illegally dismissed after one month of work. Under the
subject clause, OFW-A will be entitled to US$9,000.00, equivalent to his
salaries for the remaining 9 months of his contract, whereas OFW-B will be
entitled to only US$3,000.00, equivalent to his salaries for 3 months of the
unexpired portion of his contract, instead of US$14,000.00 for the
unexpired portion of 14 months of his contract, as the US$3,000.00 is the
lesser amount.
The disparity becomes more aggravating when the Court takes into
account jurisprudence that, prior to the effectivity of R.A. No. 8042 on
July 14, 1995,97 illegally dismissed OFWs, no matter how long the period
of their employment contracts, were entitled to their salaries for the entire
unexpired portions of their contracts. The matrix below speaks for itself:
Case Title Contract Period Unexpired Period Applied
Period of Period in the
Service Computation of
the Monetary
Award
ATCI v. CA, 2 years 2 22 months 22 months

et al.98 months
Phil. 2 years 7 days 23 months 23 months and

Integrated v. and 23 23 days
NLRC99 days
JGB v. 2 years 9 months 15 months 15 months

NLC100
Agoy v. 2 years 2 months 22 months 22 months

NLRC101
EDI v. 2 years 5 months 19 months 19 months

NLRC, et
al.102
Barros v. 12 4 months 8 months 8 months

NLRC, et months
al.103
Philippine 12 6 months 5 months 5 months and

Transmarine months and 22 and 18 18 days
v. Carilla104 days days
It is plain that prior to R.A. No. 8042, all OFWs, regardless of contract
periods or the unexpired portions thereof, were treated alike in terms of the
computation of their monetary benefits in case of illegal dismissal. Their
claims were subjected to a uniform rule of computation: their basic salaries
multiplied by the entire unexpired portion of their employment contracts.
The enactment of the subject clause in R.A. No. 8042 introduced a

differentiated rule of computation of the money claims of illegally dismissed
OFWs based on their employment periods, in the process singling out one
category whose contracts have an unexpired portion of one year or more
and subjecting them to the peculiar disadvantage of having their monetary
awards limited to their salaries for 3 months or for the unexpired portion
thereof, whichever is less, but all the while sparing the other category from
such prejudice, simply because the latter's unexpired contracts fall short of
one year.
Among OFWs With Employment Contracts of More Than One Year
Upon closer examination of the terminology employed in the subject

clause, the Court now has misgivings on the accuracy of
the Marsaman interpretation.
The Court notes that the subject clause "or for three (3) months for every
year of the unexpired term, whichever is less" contains the qualifying
phrases "every year" and "unexpired term." By its ordinary meaning, the
word "term" means a limited or definite extent of time.105 Corollarily, that
"every year" is but part of an "unexpired term" is significant in many ways:
first, the unexpired term must be at least one year, for if it were any shorter,
there would be no occasion for such unexpired term to be measured by
every year; and second, the original term must be more than one year, for
otherwise, whatever would be the unexpired term thereof will not reach
even a year. Consequently, the more decisive factor in the determination of
when the subject clause "for three (3) months for every year of the
unexpired term, whichever is less" shall apply is not the length of the
original contract period as held in Marsaman,106 but the length of the
unexpired portion of the contract period -- the subject clause applies in
cases when the unexpired portion of the contract period is at least one
year, which arithmetically requires that the original contract period be more
than one year.
Viewed in that light, the subject clause creates a sub-layer of discrimination
among OFWs whose contract periods are for more than one year: those
who are illegally dismissed with less than one year left in their contracts
shall be entitled to their salaries for the entire unexpired portion thereof,
while those who are illegally dismissed with one year or more remaining in
their contracts shall be covered by the subject clause, and their monetary
benefits limited to their salaries for three months only.
To concretely illustrate the application of the foregoing interpretation of the

subject clause, the Court assumes hypothetical OFW-C and OFW-D, who
each have a 24-month contract at a salary rate of US$1,000.00 per month.
OFW-C is illegally dismissed on the 12th month, and OFW-D, on the 13th
month. Considering that there is at least 12 months remaining in the
contract period of OFW-C, the subject clause applies to the computation of
the latter's monetary benefits. Thus, OFW-C will be entitled, not to
US$12,000,00 or the latter's total salaries for the 12 months unexpired
portion of the contract, but to the lesser amount of US$3,000.00 or the
latter's salaries for 3 months out of the 12-month unexpired term of the
contract. On the other hand, OFW-D is spared from the effects of the
subject clause, for there are only 11 months left in the latter's contract
period. Thus, OFW-D will be entitled to US$11,000.00, which is equivalent
to his/her total salaries for the entire 11-month unexpired portion.
OFWs vis-à-vis Local Workers

With Fixed-Period Employment
As discussed earlier, prior to R.A. No. 8042, a uniform system of

computation of the monetary awards of illegally dismissed OFWs was in
place. This uniform system was applicable even to local workers with fixed-
term employment.107
The earliest rule prescribing a uniform system of computation was actually

Article 299 of the Code of Commerce (1888),108 to wit:
Article 299. If the contracts between the merchants and their shop clerks
and employees should have been made of a fixed period, none of the
contracting parties, without the consent of the other, may withdraw from the
fulfillment of said contract until the termination of the period agreed upon.
Persons violating this clause shall be subject to indemnify the loss and
damage suffered, with the exception of the provisions contained in the
following articles.
In Reyes v. The Compañia Maritima,109 the Court applied the foregoing

provision to determine the liability of a shipping company for the illegal
discharge of its managers prior to the expiration of their fixed-term
employment. The Court therein held the shipping company liable for the
salaries of its managers for the remainder of their fixed-term employment.
There is a more specific rule as far as seafarers are concerned: Article 605
of the Code of Commerce which provides:
Article 605. If the contracts of the captain and members of the crew with the
agent should be for a definite period or voyage, they cannot be discharged
until the fulfillment of their contracts, except for reasons of insubordination
in serious matters, robbery, theft, habitual drunkenness, and damage
caused to the vessel or to its cargo by malice or manifest or proven
negligence.
Article 605 was applied to Madrigal Shipping Company, Inc. v. Ogilvie,110 in
which the Court held the shipping company liable for the salaries and
subsistence allowance of its illegally dismissed employees for
the entire unexpired portion of their employment contracts.
While Article 605 has remained good law up to the present,111 Article 299 of
the Code of Commerce was replaced by Art. 1586 of the Civil Code of
1889, to wit:
Article 1586. Field hands, mechanics, artisans, and other laborers hired for
a certain time and for a certain work cannot leave or be dismissed without
sufficient cause, before the fulfillment of the contract. (Emphasis supplied.)
Citing Manresa, the Court in Lemoine v. Alkan112 read the disjunctive "or" in
Article 1586 as a conjunctive "and" so as to apply the provision to local
workers who are employed for a time certain although for no particular skill.
This interpretation of Article 1586 was reiterated in Garcia Palomar v. Hotel
de France Company.113 And in both Lemoine and Palomar, the Court
adopted the general principle that in actions for wrongful discharge founded
on Article 1586, local workers are entitled to recover damages to the extent
of the amount stipulated to be paid to them by the terms of their contract.
On the computation of the amount of such damages, the Court in Aldaz v.
Gay114 held:
The doctrine is well-established in American jurisprudence, and nothing

has been brought to our attention to the contrary under Spanish
jurisprudence, that when an employee is wrongfully discharged it is his duty
to seek other employment of the same kind in the same community, for the
purpose of reducing the damages resulting from such wrongful discharge.
However, while this is the general rule, the burden of showing that he failed
to make an effort to secure other employment of a like nature, and that
other employment of a like nature was obtainable, is upon the
defendant. When an employee is wrongfully discharged under a contract of
employment his prima facie damage is the amount which he would be
entitled to had he continued in such employment until the termination of the
period. (Howard vs. Daly, 61 N. Y., 362; Allen vs. Whitlark, 99 Mich., 492;
Farrell vs. School District No. 2, 98 Mich., 43.)115(Emphasis supplied)
On August 30, 1950, the New Civil Code took effect with new provisions on
fixed-term employment: Section 2 (Obligations with a Period), Chapter 3,
Title I, and Sections 2 (Contract of Labor) and 3 (Contract for a Piece of
Work), Chapter 3, Title VIII, Book IV.116 Much like Article 1586 of the Civil
Code of 1889, the new provisions of the Civil Code do not expressly
provide for the remedies available to a fixed-term worker who is illegally
discharged. However, it is noted that in Mackay Radio & Telegraph Co.,
Inc. v. Rich,117 the Court carried over the principles on the payment of
damages underlying Article 1586 of the Civil Code of 1889 and applied the
same to a case involving the illegal discharge of a local worker whose
fixed-period employment contract was entered into in 1952, when the new
Civil Code was already in effect.118
More significantly, the same principles were applied to cases involving
overseas Filipino workers whose fixed-term employment contracts were
illegally terminated, such as in First Asian Trans & Shipping Agency, Inc. v.
Ople,119involving seafarers who were illegally discharged. In Teknika Skills
and Trade Services, Inc. v. National Labor Relations Commission,120 an
OFW who was illegally dismissed prior to the expiration of her fixed-period
employment contract as a baby sitter, was awarded salaries corresponding
to the unexpired portion of her contract. The Court arrived at the same
ruling in Anderson v. National Labor Relations Commission,121 which
involved a foreman hired in 1988 in Saudi Arabia for a fixed term of two
years, but who was illegally dismissed after only nine months on the job --
the Court awarded him salaries corresponding to 15 months, the unexpired
portion of his contract. In Asia World Recruitment, Inc. v. National Labor
Relations Commission,122 a Filipino working as a security officer in 1989 in
Angola was awarded his salaries for the remaining period of his 12-month
contract after he was wrongfully discharged. Finally, in Vinta Maritime Co.,
Inc. v. National Labor Relations Commission,123 an OFW whose 12-month
contract was illegally cut short in the second month was declared entitled to
his salaries for the remaining 10 months of his contract.
In sum, prior to R.A. No. 8042, OFWs and local workers with fixed-term
employment who were illegally discharged were treated alike in terms of
the computation of their money claims: they were uniformly entitled to their
salaries for the entire unexpired portions of their contracts. But with the
enactment of R.A. No. 8042, specifically the adoption of the subject clause,
illegally dismissed OFWs with an unexpired portion of one year or more in
their employment contract have since been differently treated in that their
money claims are subject to a 3-month cap, whereas no such limitation is
imposed on local workers with fixed-term employment.
The Court concludes that the subject clause contains a suspect

classification in that, in the computation of the monetary benefits of
fixed-term employees who are illegally discharged, it imposes a 3-
month cap on the claim of OFWs with an unexpired portion of one
year or more in their contracts, but none on the claims of other OFWs
or local workers with fixed-term employment. The subject clause
singles out one classification of OFWs and burdens it with a peculiar
disadvantage.
There being a suspect classification involving a vulnerable sector protected

by the Constitution, the Court now subjects the classification to a strict
judicial scrutiny, and determines whether it serves a compelling state
interest through the least restrictive means.
What constitutes compelling state interest is measured by the scale of

rights and powers arrayed in the Constitution and calibrated by history.124 It
is akin to the paramount interest of the state125 for which some individual
liberties must give way, such as the public interest in safeguarding health
or maintaining medical standards,126 or in maintaining access to information
on matters of public concern.127
In the present case, the Court dug deep into the records but found no
compelling state interest that the subject clause may possibly serve.
The OSG defends the subject clause as a police power measure "designed
to protect the employment of Filipino seafarers overseas x x x. By limiting
the liability to three months [sic], Filipino seafarers have better chance of
getting hired by foreign employers." The limitation also protects the interest
of local placement agencies, which otherwise may be made to shoulder
millions of pesos in "termination pay."128
The OSG explained further:
Often, placement agencies, their liability being solidary, shoulder the

payment of money claims in the event that jurisdiction over the foreign
employer is not acquired by the court or if the foreign employer reneges on
its obligation. Hence, placement agencies that are in good faith and which
fulfill their obligations are unnecessarily penalized for the acts of the foreign
employer. To protect them and to promote their continued helpful
contribution in deploying Filipino migrant workers, liability for money
are reduced under Section 10 of RA 8042.
This measure redounds to the benefit of the migrant workers whose welfare
the government seeks to promote. The survival of legitimate placement
agencies helps [assure] the government that migrant workers are properly
deployed and are employed under decent and humane
conditions.129 (Emphasis supplied)
However, nowhere in the Comment or Memorandum does the OSG cite the
source of its perception of the state interest sought to be served by the
subject clause.
The OSG locates the purpose of R.A. No. 8042 in the speech of Rep.
Bonifacio Gallego in sponsorship of House Bill No. 14314 (HB 14314), from
which the law originated;130 but the speech makes no reference to the
underlying reason for the adoption of the subject clause. That is only
natural for none of the 29 provisions in HB 14314 resembles the subject
clause.
On the other hand, Senate Bill No. 2077 (SB 2077) contains a provision on
money claims, to wit:
Sec. 10. Money Claims. - Notwithstanding any provision of law to the

contrary, the Labor Arbiters of the National Labor Relations Commission
(NLRC) shall have the original and exclusive jurisdiction to hear and
decide, within ninety (90) calendar days after the filing of the complaint, the
claims arising out of an employer-employee relationship or by virtue of the
complaint, the claim arising out of an employer-employee relationship or by
virtue of any law or contract involving Filipino workers for overseas
employment including claims for actual, moral, exemplary and other forms
of damages.
The liability of the principal and the recruitment/placement agency or any

and all claims under this Section shall be joint and several.
Any compromise/amicable settlement or voluntary agreement on any

money claims exclusive of damages under this Section shall not be less
than fifty percent (50%) of such money claims: Provided, That any
installment payments, if applicable, to satisfy any such compromise or
voluntary settlement shall not be more than two (2) months. Any
compromise/voluntary agreement in violation of this paragraph shall be null
and void.
Non-compliance with the mandatory period for resolutions of cases

provided under this Section shall subject the responsible officials to any or
all of the following penalties:
(1) The salary of any such official who fails to render his decision or
resolution within the prescribed period shall be, or caused to be, withheld
until the said official complies therewith;
(2) Suspension for not more than ninety (90) days; or
(3) Dismissal from the service with disqualification to hold any appointive
public office for five (5) years.
Provided, however, That the penalties herein provided shall be without

prejudice to any liability which any such official may have incurred under
other existing laws or rules and regulations as a consequence of violating
the provisions of this paragraph.
But significantly, Section 10 of SB 2077 does not provide for any rule on
the computation of money claims.
A rule on the computation of money claims containing the subject clause

was inserted and eventually adopted as the 5th paragraph of Section 10 of
R.A. No. 8042. The Court examined the rationale of the subject clause in
the transcripts of the "Bicameral Conference Committee (Conference
Committee) Meetings on the Magna Carta on OCWs (Disagreeing
Provisions of Senate Bill No. 2077 and House Bill No. 14314)." However,
the Court finds no discernible state interest, let alone a compelling one, that
is sought to be protected or advanced by the adoption of the subject
clause.
In fine, the Government has failed to discharge its burden of proving the
existence of a compelling state interest that would justify the perpetuation
of the discrimination against OFWs under the subject clause.
Assuming that, as advanced by the OSG, the purpose of the subject clause
is to protect the employment of OFWs by mitigating the solidary liability of
placement agencies, such callous and cavalier rationale will have to be
rejected. There can never be a justification for any form of government
action that alleviates the burden of one sector, but imposes the same
burden on another sector, especially when the favored sector is composed
of private businesses such as placement agencies, while the
disadvantaged sector is composed of OFWs whose protection no less than
the Constitution commands. The idea that private business interest can be
elevated to the level of a compelling state interest is odious.
Moreover, even if the purpose of the subject clause is to lessen the solidary
liability of placement agencies vis-a-vistheir foreign principals, there are
mechanisms already in place that can be employed to achieve that purpose
without infringing on the constitutional rights of OFWs.
The POEA Rules and Regulations Governing the Recruitment and

Employment of Land-Based Overseas Workers, dated February 4, 2002,
imposes administrative disciplinary measures on erring foreign employers
who default on their contractual obligations to migrant workers and/or their
Philippine agents. These disciplinary measures range from temporary
disqualification to preventive suspension. The POEA Rules and
Regulations Governing the Recruitment and Employment of Seafarers,
dated May 23, 2003, contains similar administrative disciplinary measures
against erring foreign employers.
Resort to these administrative measures is undoubtedly the less restrictive

means of aiding local placement agencies in enforcing the solidary liability
of their foreign principals.
Thus, the subject clause in the 5th paragraph of Section 10 of R.A. No.
8042 is violative of the right of petitioner and other OFWs to equal
protection.1avvphi1
Further, there would be certain misgivings if one is to approach the

declaration of the unconstitutionality of the subject clause from the lone
perspective that the clause directly violates state policy on labor under
Section 3,131Article XIII of the Constitution.
While all the provisions of the 1987 Constitution are presumed self-
executing,132 there are some which this Court has declared not judicially
enforceable, Article XIII being one,133 particularly Section 3 thereof, the
nature of which, this Court, in Agabon v. National Labor Relations
Commission,134 has described to be not self-actuating:
Thus, the constitutional mandates of protection to labor and security of

tenure may be deemed as self-executing in the sense that these are
automatically acknowledged and observed without need for any enabling
legislation. However, to declare that the constitutional provisions are
enough to guarantee the full exercise of the rights embodied therein, and
the realization of ideals therein expressed, would be impractical, if not
unrealistic. The espousal of such view presents the dangerous tendency of
being overbroad and exaggerated. The guarantees of "full protection to
labor" and "security of tenure", when examined in isolation, are facially
unqualified, and the broadest interpretation possible suggests a blanket
shield in favor of labor against any form of removal regardless of
circumstance. This interpretation implies an unimpeachable right to
continued employment-a utopian notion, doubtless-but still hardly within the
contemplation of the framers. Subsequent legislation is still needed to
define the parameters of these guaranteed rights to ensure the protection
and promotion, not only the rights of the labor sector, but of the employers'
as well. Without specific and pertinent legislation, judicial bodies will be at a
loss, formulating their own conclusion to approximate at least the aims of
the Constitution.
Ultimately, therefore, Section 3 of Article XIII cannot, on its own, be a

source of a positive enforceable right to stave off the dismissal of an
employee for just cause owing to the failure to serve proper notice or
hearing. As manifested by several framers of the 1987 Constitution, the
provisions on social justice require legislative enactments for their
enforceability.135 (Emphasis added)
Thus, Section 3, Article XIII cannot be treated as a principal source of direct
enforceable rights, for the violation of which the questioned clause may be
declared unconstitutional. It may unwittingly risk opening the floodgates of
litigation to every worker or union over every conceivable violation of so
broad a concept as social justice for labor.
It must be stressed that Section 3, Article XIII does not directly bestow on
the working class any actual enforceable right, but merely clothes it with the
status of a sector for whom the Constitution urges protection through
executive or legislative action and judicial recognition. Its utility is best
limited to being an impetus not just for the executive and legislative
departments, but for the judiciary as well, to protect the welfare of the
working class. And it was in fact consistent with that constitutional agenda
that the Court in Central Bank (now Bangko Sentral ng Pilipinas) Employee
Association, Inc. v. Bangko Sentral ng Pilipinas, penned by then Associate
Justice now Chief Justice Reynato S. Puno, formulated the judicial precept
that when the challenge to a statute is premised on the perpetuation of
prejudice against persons favored by the Constitution with special
protection -- such as the working class or a section thereof -- the Court may
recognize the existence of a suspect classification and subject the same to
strict judicial scrutiny.
The view that the concepts of suspect classification and strict judicial
scrutiny formulated in Central Bank Employee Association exaggerate the
significance of Section 3, Article XIII is a groundless apprehension. Central
Bank applied Article XIII in conjunction with the equal protection clause.
Article XIII, by itself, without the application of the equal protection clause,
has no life or force of its own as elucidated in Agabon.
Along the same line of reasoning, the Court further holds that the subject
clause violates petitioner's right to substantive due process, for it deprives
him of property, consisting of monetary benefits, without any existing valid
governmental purpose.136
The argument of the Solicitor General, that the actual purpose of the
subject clause of limiting the entitlement of OFWs to their three-month
salary in case of illegal dismissal, is to give them a better chance of getting
hired by foreign employers. This is plain speculation. As earlier discussed,
there is nothing in the text of the law or the records of the deliberations
leading to its enactment or the pleadings of respondent that would indicate
that there is an existing governmental purpose for the subject clause, or
even just a pretext of one.
The subject clause does not state or imply any definitive governmental
purpose; and it is for that precise reason that the clause violates not just
petitioner's right to equal protection, but also her right to substantive due
process under Section 1,137 Article III of the Constitution.
The subject clause being unconstitutional, petitioner is entitled to his

salaries for the entire unexpired period of nine months and 23 days of his
employment contract, pursuant to law and jurisprudence prior to the
enactment of R.A. No. 8042.
On the Third Issue
Petitioner contends that his overtime and leave pay should form part of the
salary basis in the computation of his monetary award, because these are
fixed benefits that have been stipulated into his contract.
Petitioner is mistaken.
The word salaries in Section 10(5) does not include overtime and leave
pay. For seafarers like petitioner, DOLE Department Order No. 33, series
1996, provides a Standard Employment Contract of Seafarers, in which
salary is understood as the basic wage, exclusive of overtime, leave pay
and other bonuses; whereas overtime pay is compensation for all work
"performed" in excess of the regular eight hours, and holiday pay is
compensation for any work "performed" on designated rest days and
holidays.
By the foregoing definition alone, there is no basis for the automatic

inclusion of overtime and holiday pay in the computation of petitioner's
monetary award, unless there is evidence that he performed work during
those periods. As the Court held in Centennial Transmarine, Inc. v. Dela
Cruz,138
However, the payment of overtime pay and leave pay should be disallowed
in light of our ruling in Cagampan v. National Labor Relations Commission,
to wit:
The rendition of overtime work and the submission of sufficient proof that
said was actually performed are conditions to be satisfied before a seaman
could be entitled to overtime pay which should be computed on the basis of
30% of the basic monthly salary. In short, the contract provision guarantees
the right to overtime pay but the entitlement to such benefit must first be
established.
In the same vein, the claim for the day's leave pay for the unexpired portion
of the contract is unwarranted since the same is given during the actual
service of the seamen.
WHEREFORE, the Court GRANTS the Petition. The subject clause "or for
three months for every year of the unexpired term, whichever is less" in the
5th paragraph of Section 10 of Republic Act No. 8042
is DECLAREDUNCONSTITUTIONAL; and the December 8, 2004 Decision
and April 1, 2005 Resolution of the Court of Appeals are MODIFIED to the
effect that petitioner is AWARDED his salaries for the entire unexpired
portion of his employment contract consisting of nine months and 23 days
computed at the rate of US$1,400.00 per month.
No costs.
SO ORDERED.
AAA,* G.R. No. 171465
Petitioner,
Present:
- versus - Ynares-Santiago, J. (Chairperson),
Austria-Martinez,
Chico-Nazario, and
Nachura, JJ.
HON. ANTONIO A. CARBONELL,
in his capacity as Presiding Judge,
Branch 27, Regional Trial Court, Promulgated:
San Fernando City, La Union and
ENGR. JAIME O. ARZADON,
Respondents. June 8, 2007
x ---------------------------------------------------------------------------------------- x
DECISION
YNARES-SANTIAGO, J.:
This petition for certiorari[1] assails the December 16, 2005[2] Order of the
Regional Trial Court, Branch 27, San Fernando, La Union in Criminal Case
No. 6983, dismissing the rape case filed against private respondent Jaime
O. Arzadon for lack of probable cause; and its February 3, 2006[3] Order
denying petitioners motion for reconsideration.
Petitioner worked as a secretary at the Arzadon Automotive
and Car Service Center from February 28, 2001 to August 16,
2001. On May 27, 2001 at about 6:30 p.m., Arzadon asked her to deliver a
book to an office located at another building but when she returned to their
office, the lights had been turned off and the gate was
closed. Nevertheless, she went inside to get her handbag.
On her way out, she saw Arzadon standing beside a parked van holding a
pipe. He told her to go near him and upon reaching his side, he threatened
her with the pipe and forced her to lie on the pavement. He removed her
pants and underwear, and inserted his penis into her vagina. She wept and
cried out for help but to no avail because there was nobody else in the
premises.
Petitioner did not report the incident because Arzadon threatened to kill her
and her family. But when she discovered that she was pregnant as a
consequence of the rape, she narrated the incident to her parents. On July
24, 2002, petitioner filed a complaint for rape against Arzadon.
On September 16, 2002, Assistant City Prosecutor Imelda Cosalan issued

a Resolution[4] finding probable cause and recommending the filing of an
information for rape. Arzadon moved for reconsideration and during the
clarificatory hearing held on October 11, 2002, petitioner testified before the
investigating prosecutor. However, she failed to attend the next hearing
hence, the case was provisionally dismissed.
On March 5, 2003, petitioner filed another Affidavit-Complaint[5] with a

comprehensive account of the alleged rape incident. The case was
assigned to 2nd Assistant Provincial Prosecutor Georgina Hidalgo. During
the preliminary investigation, petitioner appeared for clarificatory
questioning. On June 11, 2003, the investigating prosecutor issued a
Resolution[6] finding that a prima facie case of rape exists and
recommending the filing of the information.
Arzadon moved for reconsideration and requested that a panel of

prosecutors be constituted to review the case. Thus, a panel of prosecutors
was created and after the clarificatory questioning, the panel issued
on October 13, 2003 a Resolution[7] finding probable cause and denying
Arzadons motion for reconsideration.
An Information[8] for rape was filed before the Regional Trial Court, Branch
27, San Fernando, La Union on February 6, 2004, docketed as Criminal
Case No. 6415. Thereafter, Arzadon filed a Motion to Hold in Abeyance All
Court Proceedings Including the Issuance of a Warrant of Arrest and to
Determine Probable Cause for the Purpose of Issuing a Warrant of
Arrest.[9] On March 18, 2004, respondent Judge Antonio A. Carbonell
granted the motion and directed petitioner and her witnesses to take the
witness stand for determination of probable cause.
Arzadon also appealed the Resolution of the panel of prosecutors finding

probable cause before the Department of Justice. On July 9, 2004, then
Acting Secretary of Justice Merceditas Gutierrez found no probable cause
and directed the withdrawal of the Information in Criminal Case No.
6415.[10]
Upon motion for reconsideration by petitioner, however, Secretary of

Justice Raul Gonzales reversed the July 9, 2004 Resolution and issued
another Resolution[11] finding that probable cause exists. Thus, a new
Information[12] for rape was filed against Arzadon docketed as Criminal
Case No. 6983.
Consequently, Arzadon filed an Urgent Motion for Judicial Determination of
Probable Cause for the Purpose of Issuing a Warrant of Arrest. [13] In an
Order dated August 11, 2005, respondent Judge Carbonell granted the
motion and directed petitioner and her witnesses to take the witness stand.
Instead of taking the witness stand, petitioner filed a motion for

reconsideration claiming that the documentary evidence sufficiently
established the existence of probable cause. Pending resolution thereof,
she likewise filed a petition[14] with this Court for the transfer of venue of
Criminal Case No. 6983. The case was docketed as Administrative Matter
No. 05-12-756-RTC and entitled Re: Transfer of Venue of Criminal Case
No. 6983, formerly Criminal Case No. 6415, from the Regional Trial Court,
Branch 27, San Fernando City, La Union, to any Court in Metro Manila.
In a Resolution[15] dated January 18, 2006, the Court granted petitioners

request for transfer of venue. The case was raffled to the Regional Trial
Court of Manila, Branch 25, and docketed as Criminal Case No. 06-
242289. However, the proceedings have been suspended pending the
resolution of this petition.
Meanwhile, on December 16, 2005, respondent Judge Carbonell issued

the assailed Order dismissing Criminal Case No. 6983 for lack of probable
cause. Petitioners motion for reconsideration was denied hence, this
petition.
Petitioner raises the following issues:[16]
I
RESPONDENT JUDGE ACTED WITH GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OF OR IN EXCESS OF JURISDICTION WHEN IT
GRANTED THE MOTION FOR DETERMINATION OF PROBABLE
CAUSE FILED BY THE PRIVATE RESPONDENT AND THE
SUBSEQUENT DENIAL OF THE MOTION FOR RECONSIDERATION
II
RESPONDENT JUDGE COMMITTED FURTHER ACTS CONSTITUTING

GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR IN
EXCESS OF JURISDICTION WHEN IT ORDERED THE COMPLAINANT
AND WITNESSES TO TAKE THE STAND FOR THE PURPOSE OF
DETERMINING PROBABLE CAUSE
III

WHEN HE REFUSED TO INHIBIT FROM FURTHER HANDLING THE
CASE DESPITE WHISPERS OF DOUBT ON HIS BIAS AND PARTIALITY
IV

WHEN IT ISSUED THE ORDER OF FEBRUARY 3, 2006, DENYING THE
MOTION FOR RECONSIDERATION, DESPITE THE SUPREME COURT
RESOLUTION OF JANUARY 18, 2006, GRANTING THE TRANSFER OF
VENUE
Petitioner contends that the judge is not required to personally examine the
complainant and her witnesses in satisfying himself of the existence of
probable cause for the issuance of a warrant of arrest. She argues that
respondent Judge Carbonell should have taken into consideration the
documentary evidence as well as the transcript of stenographic notes
which sufficiently established the existence of probable cause.
Arzadon claims that the petition should be dismissed outright for being the
wrong mode of appeal, it appearing that the issues raised by petitioner
properly fall under an action for certiorari under Rule 65, and not Rule 45,
of the Rules of Court.
Respondent Judge Carbonell argues in his Comment[17] that the finding of

probable cause by the investigating prosecutor is not binding or obligatory,
and that he was justified in requiring petitioner and her witnesses to take
the witness stand in order to determine probable cause.
The issues for resolution are 1) whether the petition should be dismissed
for being the wrong mode of appeal; and 2) whether respondent Judge
Carbonell acted with grave abuse of discretion in dismissing Criminal Case
No. 6983 for lack of probable cause.
The petition has merit.
A petition for review on certiorari under Rule 45 is distinct from a petition for
certiorari under Rule 65 in that the former brings up for review errors of
judgment while the latter concerns errors of jurisdiction or grave abuse of
discretion amounting to lack or excess of jurisdiction. Grave abuse of
discretion is not an allowable ground under Rule 45. However, a petition for
review on certiorari under Rule 45 may be considered a petition
for certiorari under Rule 65 where it is alleged that the respondents abused
their discretion in their questioned actions, as in the instant case. [18]While
petitioner claims to have brought the instant action under Rule 45, the
grounds raised herein involve an alleged grave abuse of discretion on the
part of respondent Judge Carbonell. Accordingly, the Court shall treat the
same as a petition for certiorari under Rule 65.
However, we must point out the procedural error committed by petitioner in

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

acted with grave abuse of discretion in dismissing Criminal Case No. 6983
for lack of probable cause.
We rule in the affirmative.
Respondent Judge Carbonell dismissed Criminal Case No. 6983 for lack of
probable cause on the ground that petitioner and her witnesses failed to
comply with his orders to take the witness stand. Thus
In RESUME therefore, as indubitably borne out by the case record and
considering that the Private Prosecutor, despite several admonitions
contumaciously nay contemptuously refused to comply/obey this Courts
Orders of March 18, 2004, August 11, 2005 and eight (8) other similar
Orders issued in open Court that directed the complainant/witnesses to
take the witness stand to be asked probing/clarificatory questions
consonant with cited jurisprudential rulings of the Supreme Court, this
Court in the exercise of its discretion and sound judgment finds and so
holds that NO probable cause was established to warrant the issuance of
an arrest order and the further prosecution of the instant case.
Record also shows in no unclear terms that in all the scheduled hearings of
the case, the accused had always been present. A contrario, the private
complainant failed to appear during the last four (4) consecutive settings
despite due notice without giving any explanation, which to the mind of the
Court may indicate an apparent lack of interest in the further prosecution of
this case. That failure may even be construed as a confirmation of the
Defenses contention reflected in the case record, that the only party
interested in this case is the Private prosecutor, prodded by the accuseds
alleged hostile siblings to continue with the case.
WHEREFORE, premises considered, for utter lack of probable cause, the

instant case is hereby ordered DISMISSED.[21]
He claims that under Section 2, Article III of the 1987 Constitution, no

warrant of arrest shall issue except upon probable cause to be determined
personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce.
However, in the leading case of Soliven v. Makasiar,[22] the Court explained
that this constitutional provision does not mandatorily require the judge to
personally examine the complainant and her witnesses. Instead, he may
opt to personally evaluate the report and supporting documents submitted
by the prosecutor or he may disregard the prosecutors report and require
the submission of supporting affidavits of witnesses. Thus:
The addition of the word personally after the word determined and the
deletion of the grant of authority by the 1973 Constitution to issue warrants
to other responsible officers as may be authorized by law, has apparently
convinced petitioner Beltran that the Constitution now requires the judge to
personally examine the complainant and his witnesses in his determination
of probable cause for the issuance of warrants of arrest. This is not an
accurate interpretation.
What the Constitution underscores is the exclusive and personal

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

laden with the preliminary examination and investigation of criminal
complaints instead of concentrating on hearing and deciding cases filed
before their courts.[23]
We reiterated the above ruling in the case of Webb v. De Leon,[24] where

we held that before issuing warrants of arrest, judges merely determine the
probability, not the certainty, of guilt of an accused. In doing so, judges do
not conduct a de novo hearing to determine the existence of probable
cause. They just personally review the initial determination of the
prosecutor finding a probable cause to see if it is supported by substantial
evidence.[25]
It is well to remember that there is a distinction between the preliminary

inquiry which determines probable cause for the issuance of a warrant of
arrest and the preliminary investigation proper which ascertains whether
the offender should be held for trial or be released. The determination of
probable cause for purposes of issuing the warrant of arrest is made by the
judge. The preliminary investigation proper whether or not there is
reasonable ground to believe that the accused is guilty of the offense
charged is the function of the investigating prosecutor.[26]
True, there are cases where the circumstances may call for the judges
personal examination of the complainant and his witnesses. But it must be
emphasized that such personal examination is not mandatory and
indispensable in the determination of probable cause for the issuance of a
warrant of arrest. The necessity arises only when there is an utter failure of
the evidence to show the existence of probable cause.[27] Otherwise, the
judge may rely on the report of the investigating prosecutor, provided that
he likewise evaluates the documentary evidence in support thereof.
Indeed, what the law requires as personal determination on the part of the
judge is that he should not rely solely on the report of the investigating
prosecutor. In Okabe v. Gutierrez,[28] we stressed that the judge should
consider not only the report of the investigating prosecutor but also the
affidavit and the documentary evidence of the parties, the counter-affidavit
of the accused and his witnesses, as well as the transcript of stenographic
notes taken during the preliminary investigation, if any, submitted to the
court by the investigating prosecutor upon the filing of the Information.[29] If
the report, taken together with the supporting evidence, is sufficient to
sustain a finding of probable cause, it is not compulsory that a personal
examination of the complainant and his witnesses be conducted.
In this case, respondent Judge Carbonell dismissed Criminal Case No.

6983 without taking into consideration the June 11, 2003 Resolution of
2nd Assistant Provincial Prosecutor Georgina Hidalgo, the October 13, 2003
Resolution of the panel of prosecutors, and the July 1, 2005 Resolution of
the Department of Justice, all of which sustain a finding of probable cause
against Arzadon.Moreover, he failed to evaluate the evidence in support
thereof. Respondent judges finding of lack of probable cause was premised
only on the complainants and her witnesses absence during the hearing
scheduled by the respondent judge for the judicial determination of
probable cause.
Petitioner narrated in detail the alleged rape incident both in

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

evidence to establish probable cause. The gravamen of rape is the carnal
knowledge by the accused of the private complainant under any of the
circumstances provided in Article 335 of the Revised Penal Code, as
amended.[33] Petitioner has categorically stated that Arzadon raped her,
recounting her ordeal in detail during the preliminary investigations. Taken
with the other evidence presented before the investigating prosecutors,
such is sufficient for purposes of establishing probable cause. It is well-
settled that a finding of probable cause need not be based on clear and
convincing evidence beyond reasonable doubt. Probable cause is that
which engenders a well-founded belief that a crime has been committed
and that the respondent is probably guilty thereof and should be held for
trial. It does not require that the evidence would justify conviction. [34]
It is clear therefore that respondent Judge Carbonell gravely abused his

discretion in dismissing Criminal Case No. 6983 for lack of probable cause
on the ground that petitioner and her witnesses failed to take the witness
stand. Considering there is ample evidence and sufficient basis on record
to support a finding of probable cause, it was unnecessary for him to take
the further step of examining the petitioner and her witnesses. Moreover,
he erred in holding that petitioners absences in the scheduled hearings
were indicative of a lack of interest in prosecuting the case. In fact, the
records show that she has relentlessly pursued the same.
Needless to say, a full-blown trial is to be preferred to ferret out the

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

Court, Branch 27, San Fernando, La Union dated December 16, 2005, and
February 3, 2006 dismissing Criminal Case No. 6983 for lack of probable
cause are REVERSED and SET ASIDE, and the Information in the said
case is hereby REINSTATED. The Regional Trial Court, Branch
25, Manila is DIRECTED to take cognizance of the case and let the records
thereof be REMANDED to the said court for further proceedings.
SO ORDERED.
RUBEN DEL CASTILLO @ BOY G.R. No. 185128

CASTILLO,
[Formerly UDK No. 13980]
Petitioner,
Present:
VELASCO, JR., J., Chairperson,

- versus -
PERALTA,
MENDOZA,
REYES,* and
PERLAS-BERNABE, JJ.
PEOPLE OF THE PHILIPPINES,
Respondent.
Promulgated:
January 30, 2012
x-----------------------------------------------------------------------------------------x
DECISION
PERALTA, J.:
For this Court's consideration is the Petition for

Review[1] on Certiorari under Rule 45 of Ruben del Castillo assailing the
Decision[2] dated July 31, 2006 and Resolution[3] dated December 13, 2007
of the Court of Appeals (CA) in CA-G.R. CR No. 27819, which affirmed the
Decision[4] dated March 14, 2003 of the Regional Trial Court (RTC), Branch
12, Cebu, in Criminal Case No. CBU-46291, finding petitioner guilty beyond
reasonable doubt of violation of Section 16, Article III of Republic Act (R.A.)
6425.
The facts, as culled from the records, are the following:
Pursuant to a confidential information that petitioner was engaged in

selling shabu, police officers headed by SPO3 Bienvenido Masnayon, after
conducting surveillance and test-buy operation at the house of petitioner,
secured a search warrant from the RTC and around 3 o'clock in the
afternoon of September 13, 1997, the same police operatives went to Gil
Tudtud St., Mabolo, Cebu City to serve the search warrant to petitioner.
Upon arrival, somebody shouted raid, which prompted them to immediately

disembark from the jeep they were riding and went directly to petitioner's
house and cordoned it. The structure of the petitioner's residence is a two-
storey house and the petitioner was staying in the second floor. When they
went upstairs, they met petitioner's wife and informed her that they will
implement the search warrant. But before they can search the area, SPO3
Masnayon claimed that he saw petitioner run towards a small structure, a
nipa hut, in front of his house. Masnayon chased him but to no avail,
because he and his men were not familiar with the entrances and exits of
the place.
They all went back to the residence of the petitioner and closely guarded
the place where the subject ran for cover. SPO3 Masnayon requested his
men to get a barangay tanod and a few minutes thereafter, his men
returned with two barangay tanods.
In the presence of the barangay tanod, Nelson Gonzalado, and the elder
sister of petitioner named Dolly del Castillo, searched the house of
petitioner including the nipa hut where the petitioner allegedly ran for
cover. His men who searched the residence of the petitioner found nothing,
but one of the barangay tanods was able to confiscate from the nipa hut
several articles, including four (4) plastic packs containing white crystalline
substance. Consequently, the articles that were confiscated were sent to
the PNP Crime Laboratory for examination. The contents of the four (4)
heat- sealed transparent plastic packs were subjected to laboratory
examination, the result of which proved positive for the presence
of methamphetamine hydrochloride, or shabu.
Thus, an Information was filed before the RTC against petitioner, charging
him with violation of Section 16, Article III of R.A. 6425, as amended. The
Information[5] reads:
That on or about the 13th day of September 1997, at about 3:00 p.m. in the
City of Cebu, Philippines and within the jurisdiction of this Honorable Court,
the said accused, with deliberate intent, did then and there have in his
possession and control four (4) packs of white crystalline powder, having a
total weight of 0.31 gram, locally known as shabu, all containing
methamphetamine hydrochloride, a regulated drug, without license or
prescription from any competent authority.
CONTRARY TO LAW.[6]
During arraignment, petitioner, with the assistance of his counsel, pleaded

not guilty.[7] Subsequently, trial on the merits ensued.
To prove the earlier mentioned incident, the prosecution presented the

testimonies of SPO3 Bienvenido Masnayon, PO2 Milo Arriola, and Forensic
Analyst, Police Inspector Mutchit Salinas.
The defense, on the other hand, presented the testimonies of petitioner,

Jesusa del Castillo, Dalisay del Castillo and Herbert Aclan, which can be
summarized as follows:
On September 13, 1997, around 3 o'clock in the afternoon, petitioner was

installing the electrical wirings and airconditioning units of the Four
Seasons Canteen and Beauty Parlor at Wacky Bldg.,
Cabancalan, Cebu. He was able to finish his job around 6 o'clock in the
evening, but he was engaged by the owner of the establishment in a
conversation. He was able to go home around 8:30-9 o'clock in the
evening. It was then that he learned from his wife that police operatives
searched his house and found nothing. According to him, the small
structure, 20 meters away from his house where they found the confiscated
items, was owned by his older brother and was used as a storage place by
his father.
After trial, the RTC found petitioner guilty beyond reasonable of the charge
against him in the Information. The dispositive portion of the Decision
reads:
WHEREFORE, premises considered, this Court finds the accused Ruben

del Castillo alyas Boy Castillo, GUILTY of violating Section 16, Article III,
Republic Act No. 6425, as amended. There being no mitigating nor
aggravating circumstances proven before this Court, and applying the
Indeterminate Sentence Law, he is sentenced to suffer the penalty of Six
(6) Months and One (1) Day as Minimum and Four (4) Years and Two (2)
Months as Maximum of Prision Correccional.
The four (4) small plastic packets of white crystalline substance having a
total weight of 0.31 gram, positive for the presence of methamphetamine
hydrochloride, are ordered confiscated and shall be destroyed in
accordance with the law.
SO ORDERED.[8]
Aggrieved, petitioner appealed his case with the CA, but the latter affirmed
the decision of the RTC, thus:
WHEREFORE, the challenged Decision is AFFIRMED in toto and the
appeal is DISMISSED, with costs against accused-appellant.
SO ORDERED.[9]
After the motion for reconsideration of petitioner was denied by the CA,
petitioner filed with this Court the present petition for certiorari under Rule
45 of the Rules of Court with the following arguments raised:
1. THE COURT OF APPEALS ERRED IN ITS APPLICATION

OF THE PROVISIONS OF THE CONSTITUTION, THE RULES OF
COURT AND ESTABLISHED JURISPRUDENCE VIS-A-VISVALIDITY OF
SEARCH WARRANT NO. 570-9-1197-24;
2. THE COURT OF APPEALS ERRED IN RULING THAT THE

FOUR (4) PACKS OF WHITE CRYSTALLINE POWDER ALLEGEDLY
FOUND ON THE FLOOR OF THE NIPA HUT OR STRUCTURE ARE
ADMISSIBLE IN EVIDENCE AGAINST THE PETITIONER, NOT ONLY
BECAUSE THE SAID COURT SIMPLY PRESUMED THAT IT WAS USED
BY THE PETITIONER OR THAT THE PETITIONER RAN TO IT FOR
COVER WHEN THE SEARCHING TEAM ARRIVED AT HIS RESIDENCE,
BUT ALSO, PRESUMING THAT THE SAID NIPA HUT OR STRUCTURE
WAS INDEED USED BY THE PETITIONER AND THE FOUR (4) PACKS
OF WHITE CRYSTALLINE POWDER WERE FOUND THEREAT. THE
SUBJECT FOUR (4) PACKS OF WHITE CRYSTALLINE POWDER ARE
FRUITS OF THE POISONOUS TREE; and
3. THE COURT OF APPEALS ERRED IN ITS APPLICATION
OF THE ELEMENT OF POSSESSION AS AGAINST THE PETITIONER,
AS IT WAS IN VIOLATION OF THE ESTABLISHED JURISPRUDENCE
ON THE MATTER. HAD THE SAID COURT PROPERLY APPLIED THE
ELEMENT IN QUESTION, IT COULD HAVE BEEN ASSAYED THAT THE
SAME HAD NOT BEEN PROVEN.[10]
The Office of the Solicitor General (OSG), in its Comment dated February
10, 2009, enumerated the following counter-arguments:
SEARCH WARRANT No. 570-9-11-97-24 issued by Executive Judge

Priscilla S. Agana of Branch 24, Regional Trial Court of Cebu City is valid.
II
The four (4) packs of shabu seized inside the shop of petitioner are
admissible in evidence against him.
III
The Court of Appeals did not err in finding him guilty of illegal possession of
prohibited drugs.[11]
Petitioner insists that there was no probable cause to issue the search
warrant, considering that SPO1 Reynaldo Matillano, the police officer who
applied for it, had no personal knowledge of the alleged illegal sale of drugs
during a test-buy operation conducted prior to the application of the same
search warrant. The OSG, however, maintains that the petitioner, aside
from failing to file the necessary motion to quash the search warrant
pursuant to Section 14, Rule 127 of the Revised Rules on Criminal
Procedure, did not introduce clear and convincing evidence to show that
Masnayon was conscious of the falsity of his assertion or representation.
Anent the second argument, petitioner asserts that the nipa hut located
about 20 meters away from his house is no longer within the permissible
area that may be searched by the police officers due to the distance and
that the search warrant did not include the same nipa hut as one of the
places to be searched. The OSG, on the other hand, argues that the
constitutional guaranty against unreasonable searches and seizure is
applicable only against government authorities and not to private
individuals such as the barangay tanod who found the folded paper
containing packs of shabu inside the nipa hut.
As to the third argument raised, petitioner claims that the CA erred in

finding him guilty beyond reasonable doubt of illegal possession of
prohibited drugs, because he could not be presumed to be in possession of
the same just because they were found inside the nipa hut. Nevertheless,
the OSG dismissed the argument of the petitioner, stating that, when
prohibited and regulated drugs are found in a house or other building
belonging to and occupied by a particular person, the presumption arises
that such person is in possession of such drugs in violation of law, and the
fact of finding the same is sufficient to convict.
This Court finds no merit on the first argument of petitioner.

The requisites for the issuance of a search warrant are: (1) probable cause
is present; (2) such probable cause must be determined personally by the
judge; (3) the judge must examine, in writing and under oath or affirmation,
the complainant and the witnesses he or she may produce; (4) the
applicant and the witnesses testify on the facts personally known to them;
and (5) the warrant specifically describes the place to be searched and the
things to be seized.[12] According to petitioner, there was no probable
cause. Probable cause for a search warrant is defined as such facts and
circumstances which would lead a reasonably discreet and prudent man to
believe that an offense has been committed and that the objects sought in
connection with the offense are in the place sought to be searched.[13] A
finding of probable cause needs only to rest on evidence showing that,
more likely than not, a crime has been committed and that it was committed
by the accused. Probable cause demands more than bare suspicion; it
requires less than evidence which would justify conviction.[14] The judge, in
determining probable cause, is to consider the totality of the circumstances
made known to him and not by a fixed and rigid formula,[15] and must
employ a flexible, totality of the circumstances standard.[16] The existence
depends to a large degree upon the finding or opinion of the judge
conducting the examination. This Court, therefore, is in no position to
disturb the factual findings of the judge which led to the issuance of the
search warrant. A magistrate's determination of probable cause for the
issuance of a search warrant is paid great deference by a reviewing court,
as long as there was substantial basis for that determination.[17] Substantial
basis means that the questions of the examining judge brought out such
facts and circumstances as would lead a reasonably discreet and prudent
man to believe that an offense has been committed, and the objects in
connection with the offense sought to be seized are in the place sought to
be searched.[18] A review of the records shows that in the present case, a
substantial basis exists.
With regard to the second argument of petitioner, it must be remembered
that the warrant issued must particularly describe the place to be searched
and persons or things to be seized in order for it to be valid. A designation
or description that points out the place to be searched to the exclusion of all
others, and on inquiry unerringly leads the peace officers to it, satisfies the
constitutional requirement of definiteness.[19] In the present case, Search
Warrant No. 570-9-1197-24[20] specifically designates or describes the
residence of the petitioner as the place to be searched.Incidentally, the
items were seized by a barangay tanod in a nipa hut, 20 meters away from
the residence of the petitioner. The confiscated items, having been found in
a place other than the one described in the search warrant, can be
considered as fruits of an invalid warrantless search, the presentation of
which as an evidence is a violation of petitioner's constitutional guaranty
against unreasonable searches and seizure. The OSG argues that,
assuming that the items seized were found in another place not designated
in the search warrant, the same items should still be admissible as
evidence because the one who discovered them was a barangay
tanod who is a private individual, the constitutional guaranty against
unreasonable searches and seizure being applicable only against
government authorities. The contention is devoid of merit.
It was testified to during trial by the police officers who effected the search
warrant that they asked the assistance of the barangay tanods, thus, in the
testimony of SPO3 Masnayon:
Fiscal Centino:
Q For how long did the chase take place?
A Just a very few moments.

Q After that, what did you [do] when you were not able to reach him?
A I watched his shop and then I requested my men to get a barangay

tanod.
Q Were you able to get a barangay tanod?
A Yes.
Q Can you tell us what is the name of the barangay tanod?
A Nelson Gonzalado.
Q For point of clarification, how many barangay tanod [did] your driver get?
A Two.
Q What happened after that?
A We searched the house, but we found negative.
Q Who proceeded to the second floor of the house?
A SPO1 Cirilo Pogoso and Milo Areola went upstairs and found nothing.
Q What about you, where were you?
A I [was] watching his shop and I was with Matillano.
Q What about the barangay tanod?

A Together with Milo and Pogoso.
Q When the search at the second floor of the house yielded negative
what did you do?
A They went downstairs because I was suspicious of his shop

because he ran from his shop, so we searched his shop.
Q Who were with you when you searched the shop?
A The barangay tanod Nilo Gonzalado, the elder sister of Ruben del
Castillo named Dolly del Castillo.
Q You mean to say, that when (sic) SPO1 Reynaldo Matillano,

Barangay Tanod Nilo Gonzalado and the elder sister of Ruben del
Castillo were together in the shop?
A Yes.
Q What happened at the shop?
A One of the barangay tanods was able to pick up white folded paper.
Q What [were] the contents of that white folded paper?
A A plastic pack containing white crystalline.
Q Was that the only item?
A There are others like the foil, scissor.

Q Were you present when those persons found those tin foil and others
inside the electric shop?
A Yes.[21]
The fact that no items were seized in the residence of petitioner and that
the items that were actually seized were found in another structure by
a barangay tanod, was corroborated by PO2 Arriola, thus:
FISCAL:
Q So, upon arriving at the house of Ruben del Castillo alias Boy, can you
still recall what took place?
A We cordoned the area.
Q And after you cordoned the area, did anything happen?
A We waited for the barangay tanod.
Q And did the barangay tanod eventually appear?
A Yes. And then we started our search in the presence of Ruben del
Castillo's wife.
Q What is the name of the wife of Ruben del Castillo?

A I cannot recall her name, but if I see her I can recall [her] face.
Q What about Ruben del Castillo, was she around when [you] conducted
the search?
A No. Ruben was not in the house. But our team leader, team mate
Bienvenido Masnayon saw that Ruben ran away from his adjacent
electronic shop near his house, in front of his house.
Q Did you find anything during the search in the house of Ruben del
Castillo?
A After our search in the house, we did not see anything. The house was
clean.
Q What did you do afterwards, if any?
A We left (sic) out of the house and proceeded to his electronic shop.
Q Do you know the reason why you proceeded to his electronic shop?
A Yes. Because our team leader Bienvenido Masnayon saw that (sic)
Ruben run from that store and furthermore the door was open.
Q How far is the electronic shop from the house of Ruben del Castillo?
A More or less, 5 to 6 meters in front of his house.
xxxx
Q So, who entered inside the electronic shop?
A The one who first entered the electronic shop is our team leader
Bienvenido Masnayon.
Q You mentioned that Masnayon entered first. Do you mean to say that
there were other persons or other person that followed after Masnayon?
A Then we followed suit.
Q All of your police officers and the barangay tanod followed suit?
A I led Otadoy and the barangay tanod.
Q What about you?
A I also followed suit.
Q And did anything happen inside the shop of Ruben del Castillo?
A It was the barangay tanod who saw the folded paper and I saw him
open the folded paper which contained four shabu deck.
Q How far were you when you saw the folded paper and the tanod open
the folded paper?
A We were side by side because the shop was very small.[22]

SPO1 Pogoso also testified on the same matter, thus:
FISCAL CENTINO:
Q And where did you conduct the search, Mr. Witness?
A At his residence, the two-storey house.
Q Among the three policemen, who were with you in conducting the search
at the residence of the accused?
A I, Bienvenido Masnayon.
Q And what transpired after you searched the house of Ruben del Castillo?
A Negative, no shabu.
Q And what happened afterwards, if any?
A We went downstairs and proceeded to the small house.
Q Can you please describe to this Honorable Court, what was that small
house which you proceeded to?
A It is a nipa hut.
Q And more or less, how far or near was it from the house of Ruben del
Castillo?
A 5 to 10 meters.
Q And could you tell Mr. Witness, what was that nipa hut supposed to be?
A That was the electronic shop of Ruben del Castillo.
Q And what happened when your team proceeded to the nipa hut?
A I was just outside the nipa hut.
Q And who among the team went inside?
A PO2 Milo Areola and the Barangay Tanod.[23]
Having been established that the assistance of the barangay tanods was
sought by the police authorities who effected the searched warrant, the
same barangay tanods therefore acted as agents of persons in
authority. Article 152 of the Revised Penal Code defines persons in
authority and agents of persons in authority as:
x x x any person directly vested with jurisdiction, whether as an individual

or as a member of some court or governmental corporation, board or
commission, shall be deemed a person in authority. A barangay captain
and a barangay chairman shall also be deemed a person in authority.
A person who, by direct provision of law or by election or by appointment

by competent authority, is charged with the maintenance of public order
and the protection and security of life and property, such as barrio
councilman, barrio policeman and barangay leader, and any person
who comes to the aid of persons in authority, shall be deemed an
agent of a person in authority.
The Local Government Code also contains a provision which describes the
function of a barangay tanod as an agent of persons in authority. Section
388 of the Local Government Code reads:
SEC. 388. Persons in Authority. - For purposes of the Revised Penal Code,
the punong barangay, sangguniang barangay members, and members of
the lupong tagapamayapa in each barangay shall be deemed as persons in
authority in their jurisdictions, while other barangay officials and
members who may be designated by law or ordinance and charged
with the maintenance of public order, protection and security of life
and property, or the maintenance of a desirable and balanced
environment, and any barangay member who comes to the aid of
persons in authority, shall be deemed agents of persons in authority.
By virtue of the above provisions, the police officers, as well as

the barangay tanods were acting as agents of a person in authority during
the conduct of the search. Thus, the search conducted was unreasonable
and the confiscated items are inadmissible in evidence. Assuming ex gratia
argumenti that the barangay tanod who found the confiscated items is
considered a private individual, thus, making the same items admissible in
evidence, petitioner's third argument that the prosecution failed to establish
constructive possession of the regulated drugs seized, would still be
meritorious.
Appellate courts will generally not disturb the factual findings of the trial
court since the latter has the unique opportunity to weigh conflicting
testimonies, having heard the witnesses themselves and observed their
deportment and manner of testifying,[24] unless attended with arbitrariness
or plain disregard of pertinent facts or circumstances, the factual findings
are accorded the highest degree of respect on appeal[25] as in the present
case.
It must be put into emphasis that this present case is about the violation of
Section 16 of R.A. 6425. In every prosecution for the illegal possession
of shabu, the following essential elements must be established: (a) the
accused is found in possession of a regulated drug; (b) the person is not
authorized by law or by duly constituted authorities; and (c) the accused
has knowledge that the said drug is a regulated drug.[26]
In People v. Tira,[27] this Court explained the concept of possession of

regulated drugs, to wit:
This crime is mala prohibita, and, as such, criminal intent is not an essential
element. However, the prosecution must prove that the accused had the
intent to possess (animus posidendi) the drugs. Possession, under the law,
includes not only actual possession, but also constructive possession.
Actual possession exists when the drug is in the immediate physical
possession or control of the accused. On the other hand, constructive
possession exists when the drug is under the dominion and control of the
accused or when he has the right to exercise dominion and control over the
place where it is found. Exclusive possession or control is not necessary.
The accused cannot avoid conviction if his right to exercise control and
dominion over the place where the contraband is located, is shared with
another.[28]
While it is not necessary that the property to be searched or seized should
be owned by the person against whom the search warrant is issued, there
must be sufficient showing that the property is under appellants control or
possession.[29] The CA, in its Decision, referred to the possession of
regulated drugs by the petitioner as a constructive one. Constructive
possession exists when the drug is under the dominion and control of the
accused or when he has the right to exercise dominion and control over the
place where it is found.[30] The records are void of any evidence to show
that petitioner owns the nipa hut in question nor was it established that he
used the said structure as a shop. The RTC, as well as the CA, merely
presumed that petitioner used the said structure due to the presence of
electrical materials, the petitioner being an electrician by profession. The
CA, in its Decision, noted a resolution by the investigating prosecutor, thus:
x x x As admitted by respondent's wife, her husband is an electrician by

occupation. As such, conclusion could be arrived at that the structure,
which housed the electrical equipments is actually used by the
respondent. Being the case, he has control of the things found in said
structure.[31]
In addition, the testimonies of the witnesses for the prosecution do not also
provide proof as to the ownership of the structure where the seized articles
were found. During their direct testimonies, they just said, without stating
their basis, that the same structure was the shop of petitioner.[32] During the
direct testimony of SPO1 Pogoso, he even outrightly concluded that the
electrical shop/nipa hut was owned by petitioner, thus:
FISCAL CENTINO:
Q Can you please describe to this Honorable Court, what was that small
house which you proceeded to?
A It is a nipa hut.
Q And more or less, how far or near was it from the house of Ruben del
Castillo?
A 5 to 10 meters.
Q And could you tell Mr. Witness, what was that nipa hut supposed to
be?
A That was the electronic shop of Ruben del Castillo.
Q And what happened when your team proceeded to the nipa hut?
A I was just outside the nipa hut.[33]
However, during cross-examination, SPO3 Masnayon admitted that there

was an electrical shop but denied what he said in his earlier testimony that
it was owned by petitioner, thus:
ATTY. DAYANDAYAN:
Q You testified that Ruben del Castillo has an electrical shop, is that
correct?
A He came out of an electrical shop. I did not say that he owns the
shop.
Q Now, this shop is within a structure?
A Yes.
Q How big is the structure?
A It is quite a big structure, because at the other side is a mahjong den and
at the other side is a structure rented by a couple.[34]
The prosecution must prove that the petitioner had knowledge of the
existence and presence of the drugs in the place under his control and
dominion and the character of the drugs.[35] With the prosecution's failure to
prove that the nipa hut was under petitioner's control and dominion, there
casts a reasonable doubt as to his guilt. In considering a criminal case, it is
critical to start with the law's own starting perspective on the status of the
accused - in all criminal prosecutions, he is presumed innocent of the
charge laid unless the contrary is proven beyond reasonable
doubt.[36] Proof beyond reasonable doubt, or that quantum of proof
sufficient to produce a moral certainty that would convince and satisfy the
conscience of those who act in judgment, is indispensable to overcome the
constitutional presumption of innocence.[37]
WHEREFORE, the Decision dated July 31, 2006 of the Court of Appeals
in CA-G. R. No. 27819, which affirmed the Decision dated March 14,
2003 of the Regional Trial Court, Branch 12, Cebu, in Criminal Case No.
CBU-46291 is hereby REVERSED and SET ASIDE. Petitioner Ruben del
Castillo is ACQUITTED on reasonable doubt.
SO ORDERED.
G.R. No. 197788 February 29, 2012
RODEL LUZ y ONG, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES,1 Respondent.
DECISION
SERENO, J.:
This is a Petition for Review on Certiorari under Rule 45 seeking to set

aside the Court of Appeals (CA) Decision in CA-G.R. CR No. 32516 dated
18 February 20112 and Resolution dated 8 July 2011.
Statement of the Facts and of the Case
The facts, as found by the Regional Trial Court (RTC), which sustained the
version of the prosecution, are as follows:
PO2 Emmanuel L. Alteza, who was then assigned at the Sub-Station 1 of

the Naga City Police Station as a traffic enforcer, substantially testified that
on March 10, 2003 at around 3:00 o’clock in the morning, he saw the
accused, who was coming from the direction of Panganiban Drive and
going to Diversion Road, Naga City, driving a motorcycle without a helmet;
that this prompted him to flag down the accused for violating a municipal
ordinance which requires all motorcycle drivers to wear helmet (sic) while
driving said motor vehicle; that he invited the accused to come inside their
sub-station since the place where he flagged down the accused is almost in
front of the said sub-station; that while he and SPO1 Rayford Brillante were
issuing a citation ticket for violation of municipal ordinance, he noticed that
the accused was uneasy and kept on getting something from his jacket;
that he was alerted and so, he told the accused to take out the contents of
the pocket of his jacket as the latter may have a weapon inside it; that the
accused obliged and slowly put out the contents of the pocket of his jacket
which was a nickel-like tin or metal container about two (2) to three (3)
inches in size, including two (2) cellphones, one (1) pair of scissors and
one (1) Swiss knife; that upon seeing the said container, he asked the
accused to open it; that after the accused opened the container, he noticed
a cartoon cover and something beneath it; and that upon his instruction, the
accused spilled out the contents of the container on the table which turned
out to be four (4) plastic sachets, the two (2) of which were empty while the
other two (2) contained suspected shabu.3
Arraigned on 2 July 2003, petitioner, assisted by counsel, entered a plea of

"Not guilty" to the charge of illegal possession of dangerous drugs. Pretrial
was terminated on 24 September 2003, after which, trial ensued.
During trial, Police Officer 3 (PO3) Emmanuel Alteza and a forensic

chemist testified for the prosecution. On the other hand, petitioner testified
for himself and raised the defense of planting of evidence and extortion.
In its 19 February 2009 Decision,4 the RTC convicted petitioner of illegal

possession of dangerous drugs5 committed on 10 March 2003. It found the
prosecution evidence sufficient to show that he had been lawfully arrested
for a traffic violation and then subjected to a valid search, which led to the
discovery on his person of two plastic sachets later found to contain shabu.
The RTC also found his defense of frame-up and extortion to be weak, self-
serving and unsubstantiated. The dispositive portion of its Decision held:
WHEREFORE, judgment is hereby rendered, finding accused RODEL LUZ

y ONG GUILTY beyond reasonable doubt for the crime of violation of
Section 11, Article II of Republic Act No. 9165 and sentencing him to suffer
the indeterminate penalty of imprisonment ranging from twelve (12) years
and (1) day, as minimum, to thirteen (13) years, as maximum, and to pay a
fine of Three Hundred Thousand Pesos (₱ 300,000.00).
The subject shabu is hereby confiscated for turn over to the Philippine Drug
Enforcement Agency for its proper disposition and destruction in
accordance with law.
SO ORDERED.6
Upon review, the CA affirmed the RTC’s Decision.

On 12 September 2011, petitioner filed under Rule 45 the instant Petition
for Review on Certiorari dated 1 September 2011. In a Resolution dated 12
October 2011, this Court required respondent to file a comment on the
Petition. On 4 January 2012, the latter filed its Comment dated 3 January
2012.
Petitioner raised the following grounds in support of his Petition:
(i) THE SEARCH AND SEIZURE OF THE ALLEGED SUBJECT SHABU IS

INVALID.
(ii) THE PRESUMPTION OF REGULARITY IN THE PERFORMANCE OF

DUTY OF THE POLICE OFFICER CANNOT BE RELIED UPON IN THIS
CASE.
(iii) THE INTEGRITY AND EVIDENTIARY VALUE OF THE ALLEGED

SUBJECT SPECIMEN HAS BEEN COMPROMISED.
(iv) THE GUILT OF THE ACCUSED-PETITIONER WAS NOT PROVEN

BEYOND THE REASONABLE DOUBT (sic).7
Petitioner claims that there was no lawful search and seizure, because
there was no lawful arrest. He claims that the finding that there was a lawful
arrest was erroneous, since he was not even issued a citation ticket or
charged with violation of the city ordinance. Even assuming there was a
valid arrest, he claims that he had never consented to the search
conducted upon him.
On the other hand, finding that petitioner had been lawfully arrested, the
RTC held thus:
It is beyond dispute that the accused was flagged down and apprehended
in this case by Police Officers Alteza and Brillante for violation of City
Ordinance No. 98-012, an ordinance requiring the use of crash helmet by
motorcycle drivers and riders thereon in the City of Naga and prescribing
penalties for violation thereof. The accused himself admitted that he was
not wearing a helmet at the time when he was flagged down by the said
police officers, albeit he had a helmet in his possession. Obviously, there is
legal basis on the part of the apprehending officers to flag down and arrest
the accused because the latter was actually committing a crime in their
presence, that is, a violation of City Ordinance No. 98-012. In other words,
the accused, being caught in flagrante delicto violating the said Ordinance,
he could therefore be lawfully stopped or arrested by the apprehending
officers. x x x.8
We find the Petition to be impressed with merit, but not for the particular
reasons alleged. In criminal cases, an appeal throws the entire case wide
open for review and the reviewing tribunal can correct errors, though
unassigned in the appealed judgment, or even reverse the trial court’s
decision based on grounds other than those that the parties raised as
errors.9
First, there was no valid arrest of petitioner. When he was flagged down for
committing a traffic violation, he was not, ipso facto and solely for this
reason, arrested.
Arrest is the taking of a person into custody in order that he or she may be
bound to answer for the commission of an offense.10 It is effected by an
actual restraint of the person to be arrested or by that person’s voluntary
submission to the custody of the one making the arrest. Neither the
application of actual force, manual touching of the body, or physical
restraint, nor a formal declaration of arrest, is required. It is enough that
there be an intention on the part of one of the parties to arrest the other,
and that there be an intent on the part of the other to submit, under the
belief and impression that submission is necessary.11
Under R.A. 4136, or the Land Transportation and Traffic Code, the general
procedure for dealing with a traffic violation is not the arrest of the offender,
but the confiscation of the driver’s license of the latter:
SECTION 29. Confiscation of Driver's License. — Law enforcement and

peace officers of other agencies duly deputized by the Director shall, in
apprehending a driver for any violation of this Act or any regulations issued
pursuant thereto, or of local traffic rules and regulations not contrary to any
provisions of this Act, confiscate the license of the driver concerned and
issue a receipt prescribed and issued by the Bureau therefor which shall
authorize the driver to operate a motor vehicle for a period not exceeding
seventy-two hours from the time and date of issue of said receipt. The
period so fixed in the receipt shall not be extended, and shall become
invalid thereafter. Failure of the driver to settle his case within fifteen days
from the date of apprehension will be a ground for the suspension and/or
revocation of his license.
Similarly, the Philippine National Police (PNP) Operations

Manual12 provides the following procedure for flagging down vehicles during
the conduct of checkpoints:
SECTION 7. Procedure in Flagging Down or Accosting Vehicles While in

Mobile Car. This rule is a general concept and will not apply in hot pursuit
operations. The mobile car crew shall undertake the following, when
applicable: x x x
m. If it concerns traffic violations, immediately issue a Traffic Citation Ticket

(TCT) or Traffic Violation Report (TVR). Never indulge in prolonged,
unnecessary conversation or argument with the driver or any of the
vehicle’s occupants;
At the time that he was waiting for PO3 Alteza to write his citation ticket,
petitioner could not be said to have been "under arrest." There was no
intention on the part of PO3 Alteza to arrest him, deprive him of his liberty,
or take him into custody. Prior to the issuance of the ticket, the period
during which petitioner was at the police station may be characterized
merely as waiting time. In fact, as found by the trial court, PO3 Alteza
himself testified that the only reason they went to the police sub-station was
that petitioner had been flagged down "almost in front" of that place.
Hence, it was only for the sake of convenience that they were waiting there.
There was no intention to take petitioner into custody.
In Berkemer v. McCarty,13 the United States (U.S.) Supreme Court

discussed at length whether the roadside questioning of a motorist
detained pursuant to a routine traffic stop should be considered custodial
interrogation. The Court held that, such questioning does not fall under
custodial interrogation, nor can it be considered a formal arrest, by virtue of
the nature of the questioning, the expectations of the motorist and the
officer, and the length of time the procedure is conducted. It ruled as
follows:
It must be acknowledged at the outset that a traffic stop significantly curtails

the "freedom of action" of the driver and the passengers, if any, of the
detained vehicle. Under the law of most States, it is a crime either to ignore
a policeman’s signal to stop one’s car or, once having stopped, to drive
away without permission. x x x
However, we decline to accord talismanic power to the phrase in the

Miranda opinion emphasized by respondent. Fidelity to the doctrine
announced in Miranda requires that it be enforced strictly, but only in those
types of situations in which the concerns that powered the decision are
implicated. Thus, we must decide whether a traffic stop exerts upon a
detained person pressures that sufficiently impair his free exercise of his
privilege against self-incrimination to require that he be warned of his
constitutional rights.
Two features of an ordinary traffic stop mitigate the danger that a person
questioned will be induced "to speak where he would not otherwise do so
freely," Miranda v. Arizona, 384 U. S., at 467. First, detention of a motorist
pursuant to a traffic stop is presumptively temporary and brief. The vast
majority of roadside detentions last only a few minutes. A motorist’s
expectations, when he sees a policeman’s light flashing behind him, are
that he will be obliged to spend a short period of time answering questions
and waiting while the officer checks his license and registration, that he
may then be given a citation, but that in the end he most likely will be
allowed to continue on his way. In this respect, questioning incident to an
ordinary traffic stop is quite different from stationhouse interrogation, which
frequently is prolonged, and in which the detainee often is aware that
questioning will continue until he provides his interrogators the answers
they seek. See id., at 451.
Second, circumstances associated with the typical traffic stop are not such
that the motorist feels completely at the mercy of the police. To be sure, the
aura of authority surrounding an armed, uniformed officer and the
knowledge that the officer has some discretion in deciding whether to issue
a citation, in combination, exert some pressure on the detainee to respond
to questions. But other aspects of the situation substantially offset these
forces. Perhaps most importantly, the typical traffic stop is public, at least to
some degree. x x x
In both of these respects, the usual traffic stop is more analogous to a so-
called "Terry stop," see Terry v. Ohio, 392 U. S. 1 (1968), than to a formal
arrest. x x x The comparatively nonthreatening character of detentions of
this sort explains the absence of any suggestion in our opinions that Terry
stops are subject to the dictates of Miranda. The similarly noncoercive
aspect of ordinary traffic stops prompts us to hold that persons temporarily
detained pursuant to such stops are not "in custody" for the purposes of
Miranda.
xxx xxx xxx
We are confident that the state of affairs projected by respondent will not
come to pass. It is settled that the safeguards prescribed by Miranda
become applicable as soon as a suspect’s freedom of action is curtailed to
a "degree associated with formal arrest." California v. Beheler, 463 U. S.
1121, 1125 (1983) (per curiam). If a motorist who has been detained
pursuant to a traffic stop thereafter is subjected to treatment that renders
him "in custody" for practical purposes, he will be entitled to the full panoply
of protections prescribed by Miranda. See Oregon v. Mathiason, 429 U. S.
492, 495 (1977) (per curiam). (Emphasis supplied.)
The U.S. Court in Berkemer thus ruled that, since the motorist therein was
only subjected to modest questions while still at the scene of the traffic
stop, he was not at that moment placed under custody (such that he should
have been apprised of his Miranda rights), and neither can treatment of this
sort be fairly characterized as the functional equivalent of a formal arrest.
Similarly, neither can petitioner here be considered "under arrest" at the
time that his traffic citation was being made.
It also appears that, according to City Ordinance No. 98-012, which was
violated by petitioner, the failure to wear a crash helmet while riding a
motorcycle is penalized by a fine only. Under the Rules of Court, a warrant
of arrest need not be issued if the information or charge was filed for an
offense penalized by a fine only. It may be stated as a corollary that neither
can a warrantless arrest be made for such an offense.
This ruling does not imply that there can be no arrest for a traffic violation.
Certainly, when there is an intent on the part of the police officer to deprive
the motorist of liberty, or to take the latter into custody, the former may be
deemed to have arrested the motorist. In this case, however, the officer’s
issuance (or intent to issue) a traffic citation ticket negates the possibility of
an arrest for the same violation.
Even if one were to work under the assumption that petitioner was deemed
"arrested" upon being flagged down for a traffic violation and while awaiting
the issuance of his ticket, then the requirements for a valid arrest were not
complied with.
This Court has held that at the time a person is arrested, it shall be the duty
of the arresting officer to inform the latter of the reason for the arrest and
must show that person the warrant of arrest, if any. Persons shall be
informed of their constitutional rights to remain silent and to counsel, and
that any statement they might make could be used against them.14 It may
also be noted that in this case, these constitutional requirements were
complied with by the police officers only after petitioner had been arrested
for illegal possession of dangerous drugs.
In Berkemer, the U.S. Court also noted that the Miranda warnings must
also be given to a person apprehended due to a traffic violation:
The purposes of the safeguards prescribed by Miranda are to ensure that

the police do not coerce or trick captive suspects into confessing, to relieve
the "inherently compelling pressures" "generated by the custodial setting
itself," "which work to undermine the individual’s will to resist," and as much
as possible to free courts from the task of scrutinizing individual cases to try
to determine, after the fact, whether particular confessions were voluntary.
Those purposes are implicated as much by in-custody questioning of
persons suspected of misdemeanors as they are by questioning of persons
suspected of felonies.
If it were true that petitioner was already deemed "arrested" when he was
flagged down for a traffic violation and while he waiting for his ticket, then
there would have been no need for him to be arrested for a second time—
after the police officers allegedly discovered the drugs—as he was already
in their custody.
Second, there being no valid arrest, the warrantless search that resulted
from it was likewise illegal.
The following are the instances when a warrantless search is allowed: (i) a
warrantless search incidental to a lawful arrest; (ii) search of evidence in
"plain view;" (iii) search of a moving vehicle; (iv) consented warrantless
search; (v) customs search; (vi) a "stop and frisk" search; and (vii) exigent
and emergency circumstances.15 None of the above-mentioned instances,
especially a search incident to a lawful arrest, are applicable to this case.
It must be noted that the evidence seized, although alleged to be

inadvertently discovered, was not in "plain view." It was actually concealed
inside a metal container inside petitioner’s pocket. Clearly, the evidence
was not immediately apparent.16
Neither was there a consented warrantless search. Consent to a search is

not to be lightly inferred, but shown by clear and convincing evidence.17 It
must be voluntary in order to validate an otherwise illegal search; that is,
the consent must be unequivocal, specific, intelligently given and
uncontaminated by any duress or coercion. While the prosecution claims
that petitioner acceded to the instruction of PO3 Alteza, this alleged
accession does not suffice to prove valid and intelligent consent. In fact, the
RTC found that petitioner was merely "told" to take out the contents of his
pocket.18
Whether consent to the search was in fact voluntary is a question of fact to
be determined from the totality of all the circumstances. Relevant to this
determination are the following characteristics of the person giving consent
and the environment in which consent is given: (1) the age of the
defendant; (2) whether the defendant was in a public or a secluded
location; (3) whether the defendant objected to the search or passively
looked on; (4) the education and intelligence of the defendant; (5) the
presence of coercive police procedures; (6) the defendant’s belief that no
incriminating evidence would be found; (7) the nature of the police
questioning; (8) the environment in which the questioning took place; and
(9) the possibly vulnerable subjective state of the person consenting. It is
the State that has the burden of proving, by clear and positive testimony,
that the necessary consent was obtained, and was freely and voluntarily
given.19 In this case, all that was alleged was that petitioner was alone at
the police station at three in the morning, accompanied by several police
officers. These circumstances weigh heavily against a finding of valid
consent to a warrantless search.
Neither does the search qualify under the "stop and frisk" rule. While the
rule normally applies when a police officer observes suspicious or unusual
conduct, which may lead him to believe that a criminal act may be afoot,
the stop and frisk is merely a limited protective search of outer clothing for
weapons.20
In Knowles v. Iowa,21 the U.S. Supreme Court held that when a police
officer stops a person for speeding and correspondingly issues a citation
instead of arresting the latter, this procedure does not authorize the officer
to conduct a full search of the car. The Court therein held that there was no
justification for a full-blown search when the officer does not arrest the
motorist. Instead, police officers may only conduct minimal intrusions, such
as ordering the motorist to alight from the car or doing a patdown:
In Robinson, supra, we noted the two historical rationales for the "search
incident to arrest" exception: (1) the need to disarm the suspect in order to
take him into custody, and (2) the need to preserve evidence for later use
at trial. x x x But neither of these underlying rationales for the search
incident to arrest exception is sufficient to justify the search in the present
case.
We have recognized that the first rationale—officer safety—is "‘both

legitimate and weighty,’" x x x The threat to officer safety from issuing a
traffic citation, however, is a good deal less than in the case of a custodial
arrest. In Robinson, we stated that a custodial arrest involves "danger to an
officer" because of "the extended exposure which follows the taking of a
suspect into custody and transporting him to the police station." 414 U. S.,
at 234-235. We recognized that "[t]he danger to the police officer flows
from the fact of the arrest, and its attendant proximity, stress, and
uncertainty, and not from the grounds for arrest." Id., at 234, n. 5. A routine
traffic stop, on the other hand, is a relatively brief encounter and "is more
analogous to a so-called ‘Terry stop’ . . . than to a formal arrest." Berkemer
v. McCarty, 468 U. S. 420, 439 (1984). See also Cupp v. Murphy, 412 U. S.
291, 296 (1973) ("Where there is no formal arrest . . . a person might well
be less hostile to the police and less likely to take conspicuous, immediate
steps to destroy incriminating evidence").
This is not to say that the concern for officer safety is absent in the case of
a routine traffic stop.1âwphi1 It plainly is not. See Mimms, supra, at 110;
Wilson, supra, at 413-414. But while the concern for officer safety in this
context may justify the "minimal" additional intrusion of ordering a driver
and passengers out of the car, it does not by itself justify the often
considerably greater intrusion attending a full fieldtype search. Even
without the search authority Iowa urges, officers have other, independent
bases to search for weapons and protect themselves from danger. For
example, they may order out of a vehicle both the driver, Mimms, supra, at
111, and any passengers, Wilson, supra, at 414; perform a "patdown" of a
driver and any passengers upon reasonable suspicion that they may be
armed and dangerous, Terry v. Ohio, 392 U. S. 1 (1968); conduct a "Terry
patdown" of the passenger compartment of a vehicle upon reasonable
suspicion that an occupant is dangerous and may gain immediate control of
a weapon, Michigan v. Long, 463 U. S. 1032, 1049 (1983); and even
conduct a full search of the passenger compartment, including any
containers therein, pursuant to a custodial arrest, New York v. Belton, 453
U. S. 454, 460 (1981).
Nor has Iowa shown the second justification for the authority to search
incident to arrest—the need to discover and preserve evidence. Once
Knowles was stopped for speeding and issued a citation, all the evidence
necessary to prosecute that offense had been obtained. No further
evidence of excessive speed was going to be found either on the person of
the offender or in the passenger compartment of the car. (Emphasis
supplied.)
The foregoing considered, petitioner must be acquitted. While he may have

failed to object to the illegality of his arrest at the earliest opportunity, a
waiver of an illegal warrantless arrest does not, however, mean a waiver of
the inadmissibility of evidence seized during the illegal warrantless arrest.22
The Constitution guarantees the right of the people to be secure in their

persons, houses, papers and effects against unreasonable searches and
seizures.23 Any evidence obtained in violation of said right shall be
inadmissible for any purpose in any proceeding. While the power to search
and seize may at times be necessary to the public welfare, still it must be
exercised and the law implemented without contravening the constitutional
rights of citizens, for the enforcement of no statute is of sufficient
importance to justify indifference to the basic principles of government.24
The subject items seized during the illegal arrest are inadmissible.25 The
drugs are the very corpus delicti of the crime of illegal possession of
dangerous drugs. Thus, their inadmissibility precludes conviction and calls
for the acquittal of the accused.26
WHEREFORE, the Petition is GRANTED. The 18 February 2011 Decision

of the Court of Appeals in CA-G.R. CR No. 32516 affirming the judgment of
conviction dated 19 February 2009 of the Regional Trial Court, 5th Judicial
Region, Naga City, Branch 21, in Criminal Case No. RTC 2003-0087, is
hereby REVERSED and SET ASIDE. Petitioner Rodel Luz y Ong is hereby
ACQUITTED and ordered immediately released from detention, unless his
continued confinement is warranted by some other cause or ground.
SO ORDERED.
OCIAL JUSTICE SOCIETY (SJS), G.R. No. 157870
Petitioner,
- versus -
DANGEROUS DRUGS BOARD and
PHILIPPINE DRUG ENFORCEMENT
AGENCY (PDEA),
Respondents.
DECISION
VELASCO, JR., J.:
In these kindred petitions, the constitutionality of Section 36 of Republic Act

No. (RA) 9165, otherwise known as the Comprehensive Dangerous Drugs
Act of 2002, insofar as it requires mandatory drug testing of candidates for
public office, students of secondary and tertiary schools, officers and
employees of public and private offices, and persons charged before the
prosecutors office with certain offenses, among other personalities, is put in
issue.
As far as pertinent, the challenged section reads as follows:
SEC. 36. Authorized Drug Testing.Authorized drug testing shall be done by

any government forensic laboratories or by any of the drug testing
laboratories accredited and monitored by the DOH to safeguard the quality
of the test results. x x x The drug testing shall employ, among others, two
(2) testing methods, the screening test which will determine the positive
result as well as the type of drug used and the confirmatory test which will
confirm a positive screening test. x x x The following shall be subjected to
undergo drug testing:
xxxx
(c) Students of secondary and tertiary schools.Students of secondary and

tertiary schools shall, pursuant to the related rules and regulations as
contained in the schools student handbook and with notice to the parents,
undergo a random drug testing x x x;
(d) Officers and employees of public and private offices.Officers and

employees of public and private offices, whether domestic or overseas,
shall be subjected to undergo a random drug test as contained in the
companys work rules and regulations, x x x for purposes of reducing the
risk in the workplace. Any officer or employee found positive for use of
dangerous drugs shall be dealt with administratively which shall be a
ground for suspension or termination, subject to the provisions of Article
282 of the Labor Code and pertinent provisions of the Civil Service Law;
xxxx
(f) All persons charged before the prosecutors office with a criminal offense
having an imposable penalty of imprisonment of not less than six (6) years
and one (1) day shall undergo a mandatory drug test;
(g) All candidates for public office whether appointed or elected both in the
national or local government shall undergo a mandatory drug test.
In addition to the above stated penalties in this Section, those found to be
positive for dangerous drugs use shall be subject to the provisions of
Section 15 of this Act.
G.R. No. 161658 (Aquilino Q. Pimentel, Jr. v. Commission on Elections)
On December 23, 2003, the Commission on Elections (COMELEC) issued

Resolution No. 6486, prescribing the rules and regulations on the
mandatory drug testing of candidates for public office in connection with
the May 10, 2004 synchronized national and local elections. The pertinent
portions of the said resolution read as follows:
WHEREAS, Section 36 (g) of Republic Act No. 9165 provides:
SEC. 36. Authorized Drug Testing.x x x
xxxx
(g) All candidates for public office x x x both in the national or local
government shall undergo a mandatory drug test.
WHEREAS, Section 1, Article XI of the 1987 Constitution provides that

public officers and employees must at all times be accountable to the
people, serve them with utmost responsibility, integrity, loyalty and
efficiency;
WHEREAS, by requiring candidates to undergo mandatory drug test, the

public will know the quality of candidates they are electing and they will be
assured that only those who can serve with utmost responsibility, integrity,
loyalty, and efficiency would be elected x x x.
NOW THEREFORE, The [COMELEC], pursuant to the authority vested in it

under the Constitution, Batas Pambansa Blg. 881 (Omnibus Election
Code), [RA] 9165 and other election laws, RESOLVED to promulgate, as it
hereby promulgates, the following rules and regulations on the conduct of
mandatory drug testing to candidates for public office[:]
SECTION 1. Coverage.All candidates for public office, both national

and local, in the May 10, 2004 Synchronized National and Local
Elections shall undergo mandatory drug test in government forensic
laboratories or any drug testing laboratories monitored and accredited by
the Department of Health.
SEC. 3. x x x
On March 25, 2004, in addition to the drug certificates filed with their
respective offices, the Comelec Offices and employees concerned shall
submit to the Law Department two (2) separate lists of candidates. The first
list shall consist of those candidates who complied with the mandatory drug
test while the second list shall consist of those candidates who failed to
comply x x x.
SEC. 4. Preparation and publication of names of candidates.Before the
start of the campaign period, the [COMELEC] shall prepare two separate
lists of candidates. The first list shall consist of those candidates who
complied with the mandatory drug test while the second list shall consist of
those candidates who failed to comply with said drug test. x x x
SEC. 5. Effect of failure to undergo mandatory drug test and file drug test
certificate.No person elected to any public office shall enter upon the duties
of his office until he has undergone mandatory drug test and filed with the
offices enumerated under Section 2 hereof the drug test certificate herein
required. (Emphasis supplied.)
Petitioner Aquilino Q. Pimentel, Jr., a senator of the Republic and a

candidate for re-election in the May 10, 2004 elections,[1] filed a Petition for
Certiorari and Prohibition under Rule 65. In it, he seeks (1) to nullify Sec.
36(g) of RA 9165 and COMELEC Resolution No. 6486 dated December
23, 2003 for being unconstitutional in that they impose a qualification for
candidates for senators in addition to those already provided for in the 1987
Constitution; and (2) to enjoin the COMELEC from implementing
Resolution No. 6486.
Pimentel invokes as legal basis for his petition Sec. 3, Article VI of the
Constitution, which states:
SECTION 3. No person shall be a Senator unless he is a natural-born

citizen of the Philippines, and, on the day of the election, is at least thirty-
five years of age, able to read and write, a registered voter, and a resident
of the Philippines for not less than two years immediately preceding the day
of the election.
According to Pimentel, the Constitution only prescribes a maximum of five

(5) qualifications for one to be a candidate for, elected to, and be a member
of the Senate. He says that both the Congress and COMELEC, by
requiring, via RA 9165 and Resolution No. 6486, a senatorial aspirant,
among other candidates, to undergo a mandatory drug test, create an
additional qualification that all candidates for senator must first be certified
as drug free. He adds that there is no provision in the Constitution
authorizing the Congress or COMELEC to expand the qualification
requirements of candidates for senator.
G.R. No. 157870 (Social Justice Society v. Dangerous
Drugs Board and Philippine Drug Enforcement Agency)
In its Petition for Prohibition under Rule 65, petitioner Social Justice Society
(SJS), a registered political party, seeks to prohibit the Dangerous Drugs
Board (DDB) and the Philippine Drug Enforcement Agency (PDEA) from
enforcing paragraphs (c), (d), (f), and (g) of Sec. 36 of RA 9165 on the
ground that they are constitutionally infirm. For one, the provisions
constitute undue delegation of legislative power when they give unbridled
discretion to schools and employers to determine the manner of drug
testing. For another, the provisions trench in the equal protection clause
inasmuch as they can be used to harass a student or an employee deemed
undesirable. And for a third, a persons constitutional right against
unreasonable searches is also breached by said provisions.
G.R. No. 158633 (Atty. Manuel J. Laserna, Jr. v. Dangerous

Drugs Board and Philippine Drug Enforcement Agency)
Petitioner Atty. Manuel J. Laserna, Jr., as citizen and taxpayer, also seeks
in his Petition for Certiorari and Prohibition under Rule 65 that Sec. 36(c),
(d), (f), and (g) of RA 9165 be struck down as unconstitutional for infringing
on the constitutional right to privacy, the right against unreasonable search
and seizure, and the right against self-incrimination, and for being contrary
to the due process and equal protection guarantees.
The Issue on Locus Standi
First off, we shall address the justiciability of the cases at bench and the
matter of the standing of petitioners SJS and Laserna to sue. As
respondents DDB and PDEA assert, SJS and Laserna failed to allege any
incident amounting to a violation of the constitutional rights mentioned in
their separate petitions.[2]
It is basic that the power of judicial review can only be exercised in

connection with a bona fide controversy which involves the statute sought
to be reviewed.[3] But even with the presence of an actual case or
controversy, the Court may refuse to exercise judicial review unless the
constitutional question is brought before it by a party having the requisite
standing to challenge it.[4] To have standing, one must establish that he or
she has suffered some actual or threatened injury as a result of the
allegedly illegal conduct of the government; the injury is fairly traceable to
the challenged action; and the injury is likely to be redressed by a favorable
action.[5]
The rule on standing, however, is a matter of procedure; hence, it can be

relaxed for non-traditional plaintiffs, like ordinary citizens, taxpayers, and
legislators when the public interest so requires, such as when the matter is
of transcendental importance, of overarching significance to society, or of
paramount public interest.[6] There is no doubt that Pimentel, as senator of
the Philippines and candidate for the May 10, 2004 elections, possesses
the requisite standing since he has substantial interests in the subject
matter of the petition, among other preliminary considerations. Regarding
SJS and Laserna, this Court is wont to relax the rule on locus standi owing
primarily to the transcendental importance and the paramount public
interest involved in the enforcement of Sec. 36 of RA 9165.
The Consolidated Issues
The principal issues before us are as follows:
(1) Do Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 impose
an additional qualification for candidates for senator? Corollarily, can
Congress enact a law prescribing qualifications for candidates for senator
in addition to those laid down by the Constitution? and
(2) Are paragraphs (c), (d), (f), and (g) of Sec. 36, RA 9165
unconstitutional? Specifically, do these paragraphs violate the right to
privacy, the right against unreasonable searches and seizure, and the
equal protection clause? Or do they constitute undue delegation of
legislative power?
Pimentel Petition
(Constitutionality of Sec. 36[g] of RA 9165 and
COMELEC Resolution No. 6486)
In essence, Pimentel claims that Sec. 36(g) of RA 9165 and COMELEC

Resolution No. 6486 illegally impose an additional qualification on
candidates for senator. He points out that, subject to the provisions on
nuisance candidates, a candidate for senator needs only to meet the
qualifications laid down in Sec. 3, Art. VI of the Constitution, to wit: (1)
citizenship, (2) voter registration, (3) literacy, (4) age, and (5)
residency. Beyond these stated qualification requirements, candidates for
senator need not possess any other qualification to run for senator and be
voted upon and elected as member of the Senate. The Congress cannot
validly amend or otherwise modify these qualification standards, as it
cannot disregard, evade, or weaken the force of a constitutional
mandate,[7] or alter or enlarge the Constitution.
Pimentels contention is well-taken. Accordingly, Sec. 36(g) of RA 9165

should be, as it is hereby declared as, unconstitutional. It is basic that if a
law or an administrative rule violates any norm of the Constitution, that
issuance is null and void and has no effect. The Constitution is the basic
law to which all laws must conform; no act shall be valid if it conflicts with
the Constitution.[8] In the discharge of their defined functions, the three
departments of government have no choice but to yield obedience to the
commands of the Constitution. Whatever limits it imposes must be
observed.[9]
Congress inherent legislative powers, broad as they may be, are subject to
certain limitations. As early as 1927, in Government v. Springer, the Court
has defined, in the abstract, the limits on legislative power in the following
wise:
Someone has said that the powers of the legislative department of the
Government, like the boundaries of the ocean, are unlimited. In
constitutional governments, however, as well as governments acting under
delegated authority, the powers of each of the departments x x x are limited
and confined within the four walls of the constitution or the charter, and
each department can only exercise such powers as are necessarily implied
from the given powers. The Constitution is the shore of legislative authority
against which the waves of legislative enactment may dash, but over which
it cannot leap.[10]
Thus, legislative power remains limited in the sense that it is subject to

substantive and constitutional limitations which circumscribe both the
exercise of the power itself and the allowable subjects of legislation.[11] The
substantive constitutional limitations are chiefly found in the Bill of
Rights[12] and other provisions, such as Sec. 3, Art. VI of the Constitution
prescribing the qualifications of candidates for senators.
In the same vein, the COMELEC cannot, in the guise of enforcing and
administering election laws or promulgating rules and regulations to
implement Sec. 36(g), validly impose qualifications on candidates for
senator in addition to what the Constitution prescribes. If Congress cannot
require a candidate for senator to meet such additional qualification, the
COMELEC, to be sure, is also without such power. The right of a citizen in
the democratic process of election should not be defeated by unwarranted
impositions of requirement not otherwise specified in the Constitution.[13]
Sec. 36(g) of RA 9165, as sought to be implemented by the assailed

COMELEC resolution, effectively enlarges the qualification requirements
enumerated in the Sec. 3, Art. VI of the Constitution. As couched, said Sec.
36(g) unmistakably requires a candidate for senator to be certified illegal-
drug clean, obviously as a pre-condition to the validity of a certificate of
candidacy for senator or, with like effect, a condition sine qua non to be
voted upon and, if proper, be proclaimed as senator-elect. The COMELEC
resolution completes the chain with the proviso that [n]o person elected to
any public office shall enter upon the duties of his office until he has
undergone mandatory drug test. Viewed, therefore, in its proper context,
Sec. 36(g) of RA 9165 and the implementing COMELEC Resolution add
another qualification layer to what the 1987 Constitution, at the minimum,
requires for membership in the Senate. Whether or not the drug-free bar
set up under the challenged provision is to be hurdled before or after
election is really of no moment, as getting elected would be of little value if
one cannot assume office for non-compliance with the drug-testing
requirement.
It may of course be argued, in defense of the validity of Sec. 36(g) of RA

9165, that the provision does not expressly state that non-compliance with
the drug test imposition is a disqualifying factor or would work to nullify a
certificate of candidacy. This argument may be accorded plausibility if the
drug test requirement is optional. But the particular section of the law,
without exception, made drug-testing on those covered mandatory,
necessarily suggesting that the obstinate ones shall have to suffer the
adverse consequences for not adhering to the statutory command. And
since the provision deals with candidates for public office, it stands to
reason that the adverse consequence adverted to can only refer to and
revolve around the election and the assumption of public office of the
candidates. Any other construal would reduce the mandatory nature of Sec.
36(g) of RA 9165 into a pure jargon without meaning and effect
whatsoever.
While it is anti-climactic to state it at this juncture, COMELEC Resolution

No. 6486 is no longer enforceable, for by its terms, it was intended to cover
only the May 10, 2004 synchronized elections and the candidates running
in that electoral event. Nonetheless, to obviate repetition, the Court deems
it appropriate to review and rule, as it hereby rules, on its validity as an
implementing issuance.
It ought to be made abundantly clear, however, that the unconstitutionality

of Sec. 36(g) of RA 9165 is rooted on its having infringed the constitutional
provision defining the qualification or eligibility requirements for one
aspiring to run for and serve as senator.
SJS Petition
(Constitutionality of Sec. 36[c], [d], [f], and [g] of RA 9165)
The drug test prescribed under Sec. 36(c), (d), and (f) of RA 9165 for
secondary and tertiary level students and public and private employees,
while mandatory, is a random and suspicionless arrangement. The
objective is to stamp out illegal drug and safeguard in the process the well
being of [the] citizenry, particularly the youth, from the harmful effects of
dangerous drugs. This statutory purpose, per the policy-declaration portion
of the law, can be achieved via the pursuit by the state of an intensive and
unrelenting campaign against the trafficking and use of dangerous drugs x
x x through an integrated system of planning, implementation and
enforcement of anti-drug abuse policies, programs and projects.[14] The
primary legislative intent is not criminal prosecution, as those found positive
for illegal drug use as a result of this random testing are not necessarily
treated as criminals. They may even be exempt from criminal liability
should the illegal drug user consent to undergo rehabilitation. Secs. 54 and
55 of RA 9165 are clear on this point:
Sec. 54. Voluntary Submission of a Drug Dependent to Confinement,
Treatment and Rehabilitation.A drug dependent or any person who violates
Section 15 of this Act may, by himself/herself or through his/her parent,
[close relatives] x x x apply to the Board x x x for treatment and
rehabilitation of the drug dependency. Upon such application, the Board
shall bring forth the matter to the Court which shall order that the applicant
be examined for drug dependency. If the examination x x x results in the
certification that the applicant is a drug dependent, he/she shall be ordered
by the Court to undergo treatment and rehabilitation in a Center designated
by the Board x x x.
xxxx
Sec. 55. Exemption from the Criminal Liability Under the Voluntary
Submission Program.A drug dependent under the voluntary submission
program, who is finally discharged from confinement, shall be exempt from
the criminal liability under Section 15 of this Act subject to the following
conditions:
xxxx
School children, the US Supreme Court noted, are most vulnerable to the
physical, psychological, and addictive effects of drugs. Maturing nervous
systems of the young are more critically impaired by intoxicants and are
more inclined to drug dependency. Their recovery is also at a depressingly
low rate.[15]
The right to privacy has been accorded recognition in this jurisdiction as a
facet of the right protected by the guarantee against unreasonable search
and seizure[16] under Sec. 2, Art. III[17] of the Constitution. But while the right
to privacy has long come into its own, this case appears to be the first time
that the validity of a state-decreed search or intrusion through the medium
of mandatory random drug testing among students and employees is, in
this jurisdiction, made the focal point. Thus, the issue tendered in these
proceedings is veritably one of first impression.
US jurisprudence is, however, a rich source of persuasive jurisprudence.

With respect to random drug testing among school children, we turn to the
teachings of Vernonia School District 47J v. Acton (Vernonia) and Board of
Education of Independent School District No. 92 of Pottawatomie
County, et al. v. Earls, et al. (Board of Education),[18] both fairly pertinent
US Supreme Court-decided cases involving the constitutionality of
governmental search.
In Vernonia, school administrators in Vernonia, Oregon wanted to address

the drug menace in their respective institutions following the discovery of
frequent drug use by school athletes. After consultation with the parents,
they required random urinalysis drug testing for the schools
athletes. James Acton, a high school student, was denied participation in
the football program after he refused to undertake the urinalysis drug
testing. Acton forthwith sued, claiming that the schools drug testing policy
violated, inter alia, the Fourth Amendment[19] of the US Constitution.
The US Supreme Court, in fashioning a solution to the issues raised

in Vernonia, considered the following: (1) schools stand in loco
parentis over their students; (2) school children, while not shedding their
constitutional rights at the school gate, have less privacy rights; (3) athletes
have less privacy rights than non-athletes since the former observe
communal undress before and after sports events; (4) by joining the sports
activity, the athletes voluntarily subjected themselves to a higher degree of
school supervision and regulation; (5) requiring urine samples does not
invade a students privacy since a student need not undress for this kind of
drug testing; and (6) there is need for the drug testing because of the
dangerous effects of illegal drugs on the young. The US Supreme Court
held that the policy constituted reasonable search under the Fourth[20] and
14th Amendments and declared the random drug-testing policy
constitutional.
In Board of Education, the Board of Education of a school

in Tecumseh, Oklahoma required a drug test for high school students
desiring to join extra-curricular activities. Lindsay Earls, a member of the
show choir, marching band, and academic team declined to undergo a drug
test and averred that the drug-testing policy made to apply to non-athletes
violated the Fourth and 14th Amendments. As Earls argued, unlike athletes
who routinely undergo physical examinations and undress before their
peers in locker rooms, non-athletes are entitled to more privacy.
The US Supreme Court, citing Vernonia, upheld the constitutionality of drug

testing even among non-athletes on the basis of the schools custodial
responsibility and authority. In so ruling, said court made no distinction
between a non-athlete and an athlete. It ratiocinated that schools and
teachers act in place of the parents with a similar interest and duty of
safeguarding the health of the students. And in holding that the school
could implement its random drug-testing policy, the Court hinted that such
a test was a kind of search in which even a reasonable parent might need
to engage.
In sum, what can reasonably be deduced from the above two cases and
applied to this jurisdiction are: (1) schools and their administrators stand in
loco parentis with respect to their students; (2) minor students have
contextually fewer rights than an adult, and are subject to the custody and
supervision of their parents, guardians, and schools; (3) schools, acting in
loco parentis, have a duty to safeguard the health and well-being of their
students and may adopt such measures as may reasonably be necessary
to discharge such duty; and (4) schools have the right to impose conditions
on applicants for admission that are fair, just, and non-discriminatory.
Guided by Vernonia and Board of Education, the Court is of the view and
so holds that the provisions of RA 9165 requiring mandatory, random, and
suspicionless drug testing of students are constitutional. Indeed, it is within
the prerogative of educational institutions to require, as a condition for
admission, compliance with reasonable school rules and regulations and
policies. To be sure, the right to enroll is not absolute; it is subject to fair,
reasonable, and equitable requirements.
The Court can take judicial notice of the proliferation of prohibited drugs in
the country that threatens the well-being of the people,[21] particularly the
youth and school children who usually end up as victims. Accordingly, and
until a more effective method is conceptualized and put in motion, a
random drug testing of students in secondary and tertiary schools is not
only acceptable but may even be necessary if the safety and interest of the
student population, doubtless a legitimate concern of the government, are
to be promoted and protected. To borrow from Vernonia, [d]eterring drug
use by our Nations schoolchildren is as important as enhancing efficient
enforcement of the Nations laws against the importation of drugs; the
necessity for the State to act is magnified by the fact that the effects of a
drug-infested school are visited not just upon the users, but upon the entire
student body and faculty.[22] Needless to stress, the random testing scheme
provided under the law argues against the idea that the testing aims to
incriminate unsuspecting individual students.
Just as in the case of secondary and tertiary level students, the mandatory
but random drug test prescribed by Sec. 36 of RA 9165 for officers and
employees of public and private offices is justifiable, albeit not exactly for
the same reason. The Court notes in this regard that petitioner SJS, other
than saying that subjecting almost everybody to drug testing, without
probable cause, is unreasonable, an unwarranted intrusion of the individual
right to privacy,[23] has failed to show how the mandatory, random, and
suspicionless drug testing under Sec. 36(c) and (d) of RA 9165 violates the
right to privacy and constitutes unlawful and/or unconsented search under
Art. III, Secs. 1 and 2 of the Constitution.[24] Petitioner Lasernas lament is
just as simplistic, sweeping, and gratuitous and does not merit serious
consideration. Consider what he wrote without elaboration:
The US Supreme Court and US Circuit Courts of Appeals have made

various rulings on the constitutionality of mandatory drug tests in the school
and the workplaces. The US courts have been consistent in their rulings
that the mandatory drug tests violate a citizens constitutional right to
privacy and right against unreasonable search and seizure. They are
quoted extensively hereinbelow.[25]
The essence of privacy is the right to be left alone.[26] In context, the right to
privacy means the right to be free from unwarranted exploitation of ones
person or from intrusion into ones private activities in such a way as to
cause humiliation to a persons ordinary sensibilities. [27] And while there has
been general agreement as to the basic function of the guarantee against
unwarranted search, translation of the abstract prohibition against
unreasonable searches and seizures into workable broad guidelines for the
decision of particular cases is a difficult task, to borrow from C. Camara v.
Municipal Court.[28] Authorities are agreed though that the right to
privacy yields to certain paramount rights of the public and defers to the
states exercise of police power.[29]
As the warrantless clause of Sec. 2, Art III of the Constitution is couched
and as has been held, reasonableness is the touchstone of the validity of a
government search or intrusion.[30] And whether a search at issue hews to
the reasonableness standard is judged by the balancing of the government-
mandated intrusion on the individuals privacy interest against the promotion
of some compelling state interest.[31] In the criminal context,
reasonableness requires showing of probable cause to be personally
determined by a judge. Given that the drug-testing policy for employeesand
students for that matterunder RA 9165 is in the nature of administrative
search needing what was referred to in Vernonia as swift and informal
disciplinary procedures, the probable-cause standard is not required or
even practicable. Be that as it may, the review should focus on the
reasonableness of the challenged administrative search in question.
The first factor to consider in the matter of reasonableness is the nature of

the privacy interest upon which the drug testing, which effects a search
within the meaning of Sec. 2, Art. III of the Constitution, intrudes. In this
case, the office or workplace serves as the backdrop for the analysis of the
privacy expectation of the employees and the reasonableness of drug
testing requirement. The employees privacy interest in an office is to a
large extent circumscribed by the 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.
Just as defining as the first factor is the character of the intrusion

authorized by the challenged law. Reduced to a question form, is the scope
of the search or intrusion clearly set forth, or, as formulated in Ople v.
Torres, is the enabling law authorizing a search narrowly drawn or narrowly
focused?[32]
The poser should be answered in the affirmative. For one, Sec. 36 of RA
9165 and its implementing rules and regulations (IRR), as couched, contain
provisions specifically directed towards preventing a situation that would
unduly embarrass the employees or place them under a humiliating
experience. While every officer and employee in a private establishment is
under the law deemed forewarned that he or she may be a possible subject
of a drug test, nobody is really singled out in advance for drug testing. The
goal is to discourage drug use by not telling in advance anyone when and
who is to be tested. And as may be observed, Sec. 36(d) of RA 9165 itself
prescribes what, in Ople, is a narrowing ingredient by providing that the
employees concerned shall be subjected to random drug test as contained
in the companys work rules and regulations x x x for purposes of reducing
the risk in the work place.
For another, the random drug testing shall be undertaken under conditions
calculated to protect as much as possible the employees privacy and
dignity. As to the mechanics of the test, the law specifies that the procedure
shall employ two testing methods, i.e., the screening test and the
confirmatory test, doubtless to ensure as much as possible the
trustworthiness of the results. But the more important consideration lies in
the fact that the test shall be conducted by trained professionals in access-
controlled laboratories monitored by the Department of Health (DOH) to
safeguard against results tampering and to ensure an accurate chain of
custody.[33] In addition, the IRR issued by the DOH provides that access to
the drug results shall be on the need to know basis;[34] that the drug test
result and the records shall be [kept] confidential subject to the usual
accepted practices to protect the confidentiality of the test
results.[35] Notably, RA 9165 does not oblige the employer concerned to
report to the prosecuting agencies any information or evidence relating to
the violation of the Comprehensive Dangerous Drugs Act received as a
result of the operation of the drug testing. All told, therefore, the intrusion
into the employees privacy, under RA 9165, is accompanied by proper
safeguards, particularly against embarrassing leakages of test results, and
is relatively minimal.
To reiterate, RA 9165 was enacted as a measure to stamp out illegal drug

in the country and thus protect the well-being of the citizens, especially the
youth, from the deleterious effects of dangerous drugs. The law intends to
achieve this through the medium, among others, of promoting and
resolutely pursuing a national drug abuse policy in the workplace via a
mandatory random drug test.[36] To the Court, the need for drug testing to at
least minimize illegal drug use is substantial enough to override the
individuals privacy interest under the premises. The Court can consider that
the illegal drug menace cuts across gender, age group, and social-
economic lines. And it may not be amiss to state that the sale,
manufacture, or trafficking of illegal drugs, with their ready market, would
be an investors dream were it not for the illegal and immoral components of
any of such activities. The drug problem has hardly abated since the
martial law public execution of a notorious drug trafficker. The state can no
longer assume a laid back stance with respect to this modern-day
scourge. Drug enforcement agencies perceive a mandatory random drug
test to be an effective way of preventing and deterring drug use among
employees in private offices, the threat of detection by random testing
being higher than other modes. The Court holds that the chosen method is
a reasonable and enough means to lick the problem.
Taking into account the foregoing factors, i.e., the reduced expectation of
privacy on the part of the employees, the compelling state concern likely to
be met by the search, and the well-defined limits set forth in the law to
properly guide authorities in the conduct of the random testing, we hold that
the challenged drug test requirement is, under the limited context of the
case, reasonable and, ergo, constitutional.
Like their counterparts in the private sector, government officials and

employees also labor under reasonable supervision and restrictions
imposed by the Civil Service law and other laws on public officers, all
enacted to promote a high standard of ethics in the public service.[37] And if
RA 9165 passes the norm of reasonableness for private employees, the
more reason that it should pass the test for civil servants, who, by
constitutional command, are required to be accountable at all times to the
people and to serve them with utmost responsibility and efficiency.[38]
Petitioner SJS next posture that Sec. 36 of RA 9165 is objectionable on the

ground of undue delegation of power hardly commends itself for
concurrence. Contrary to its position, the provision in question is not so
extensively drawn as to give unbridled options to schools and employers to
determine the manner of drug testing. Sec. 36 expressly provides how drug
testing for students of secondary and tertiary schools and
officers/employees of public/private offices should be conducted. It
enumerates the persons who shall undergo drug testing. In the case of
students, the testing shall be in accordance with the school rules as
contained in the student handbook and with notice to parents. On the part
of officers/employees, the testing shall take into account the companys
work rules. In either case, the random procedure shall be observed,
meaning that the persons to be subjected to drug test shall be picked by
chance or in an unplanned way. And in all cases, safeguards against
misusing and compromising the confidentiality of the test results are
established.
Lest it be overlooked, Sec. 94 of RA 9165 charges the DDB to issue, in

consultation with the DOH, Department of the Interior and Local
Government, Department of Education, and Department of Labor and
Employment, among other agencies, the IRR necessary to enforce the
law. In net effect then, the participation of schools and offices in the drug
testing scheme shall always be subject to the IRR of RA 9165. It is,
therefore, incorrect to say that schools and employers have unchecked
discretion to determine how often, under what conditions, and where the
drug tests shall be conducted.
The validity of delegating legislative power is now a quiet area in the

constitutional landscape.[39] In the face of the increasing complexity of the
task of the government and the increasing inability of the legislature to cope
directly with the many problems demanding its attention, resort to
delegation of power, or entrusting to administrative agencies the power of
subordinate legislation, has become imperative, as here.
Laserna Petition (Constitutionality of Sec. 36[c], [d],
[f], and [g] of RA 9165)
Unlike the situation covered by Sec. 36(c) and (d) of RA 9165, the Court
finds no valid justification for mandatory drug testing for persons accused of
crimes. In the case of students, the constitutional viability of the mandatory,
random, and suspicionless drug testing for students emanates
primarily from the waiver by the students of their right to privacy when they
seek entry to the school, and from their voluntarily submitting their persons
to the parental authority of school authorities. In the case of private and
public employees, the constitutional soundness of the mandatory, random,
and suspicionless drug testing proceeds from the reasonableness of the
drug test policy and requirement.
We find the situation entirely different in the case of persons charged

before the public prosecutors office with criminal offenses punishable with
six (6) years and one (1) day imprisonment.The operative concepts in the
mandatory drug testing are randomness and suspicionless. In the case of
persons charged with a crime before the prosecutors office, a mandatory
drug testing can never be random or suspicionless. The ideas of
randomness and being suspicionless are antithetical to their being made
defendants in a criminal complaint. They are not randomly picked; neither
are they beyond suspicion. When persons suspected of committing a crime
are charged, they are singled out and are impleaded against their will. The
persons thus charged, by the bare fact of being haled before the
prosecutors office and peaceably submitting themselves to drug testing, if
that be the case, do not necessarily consent to the procedure, let alone
waive their right to privacy.[40] To impose mandatory drug testing on the
accused is a blatant attempt to harness a medical test as a tool for criminal
prosecution, contrary to the stated objectives of RA 9165. Drug testing in
this case would violate a persons right to privacy guaranteed under Sec. 2,
Art. III of the Constitution. Worse still, the accused persons are veritably
forced to incriminate themselves.
WHEREFORE, the Court resolves to GRANT the petition in G.R. No.

161658 and declares Sec. 36(g) of RA 9165 and COMELEC Resolution
No. 6486 as UNCONSTITUTIONAL; and to PARTIALLY GRANT the
petition in G.R. Nos. 157870 and 158633 by declaring Sec.
36(c) and (d) of RA 9165 CONSTITUTIONAL, but declaring its Sec.
36(f) UNCONSTITUTIONAL.All concerned agencies are, accordingly,
permanently enjoined from implementing Sec. 36(f) and (g) of RA
9165. No costs.
SO ORDERED.
G.R. No. 181881 October 18, 2011
BRICCIO "Ricky" A. POLLO, Petitioner,

vs.
CHAIRPERSON KARINA CONSTANTINO-DAVID, DIRECTOR IV
RACQUEL DE GUZMAN BUENSALIDA, DIRECTOR IV LYDIA A.
CASTILLO, DIRECTOR III ENGELBERT ANTHONY D. UNITE AND THE
CIVIL SERVICE COMMISSION, Respondents.
DECISION
VILLARAMA, JR., J.:
This case involves a search of office computer assigned to a government

employee who was charged administratively and eventually dismissed from
the service. The employee’s personal files stored in the computer were
used by the government employer as evidence of misconduct.
Before us is a petition for review on certiorari under Rule 45 which seeks to

reverse and set aside the Decision1dated October 11, 2007 and
Resolution2 dated February 29, 2008 of the Court of Appeals (CA). The CA
dismissed the petition for certiorari (CA-G.R. SP No. 98224) filed by
petitioner Briccio "Ricky" A. Pollo to nullify the proceedings conducted by
the Civil Service Commission (CSC) which found him guilty of dishonesty,
grave misconduct, conduct prejudicial to the best interest of the service,
and violation of Republic Act (R.A.) No. 6713 and penalized him with
dismissal.
The factual antecedents:
Petitioner is a former Supervising Personnel Specialist of the CSC

Regional Office No. IV and also the Officer-in-Charge of the Public
Assistance and Liaison Division (PALD) under the "Mamamayan Muna
Hindi Mamaya Na" program of the CSC.
On January 3, 2007 at around 2:30 p.m., an unsigned letter-complaint

addressed to respondent CSC Chairperson Karina Constantino-David
which was marked "Confidential" and sent through a courier service (LBC)
from a certain "Alan San Pascual" of Bagong Silang, Caloocan City, was
received by the Integrated Records Management Office (IRMO) at the CSC
Central Office. Following office practice in which documents marked
"Confidential" are left unopened and instead sent to the addressee, the
aforesaid letter was given directly to Chairperson David.
The letter-complaint reads:

The Chairwoman
Civil Service Commission
Batasan Hills, Quezon City
Dear Madam Chairwoman,
Belated Merry Christmas and Advance Happy New Year!
As a concerned citizen of my beloved country, I would like to ask from you

personally if it is just alright for an employee of your agency to be a lawyer
of an accused gov’t employee having a pending case in the csc. I honestly
think this is a violation of law and unfair to others and your office.
I have known that a person have been lawyered by one of your attorny in
the region 4 office. He is the chief of the Mamamayan muna hindi mamaya
na division. He have been helping many who have pending cases in the
Csc. The justice in our govt system will not be served if this will continue.
Please investigate this anomaly because our perception of your clean and
good office is being tainted.
Concerned Govt employee3

Chairperson David immediately formed a team of four personnel with
background in information technology (IT), and issued a memo directing
them to conduct an investigation and specifically "to back up all the files in
the computers found in the Mamamayan Muna (PALD) and Legal
divisions."4 After some briefing, the team proceeded at once to the CSC-
ROIV office at Panay Avenue, Quezon City. Upon their arrival thereat
around 5:30 p.m., the team informed the officials of the CSC-ROIV,
respondents Director IV Lydia Castillo (Director Castillo) and Director III
Engelbert Unite (Director Unite) of Chairperson David’s directive.
The backing-up of all files in the hard disk of computers at the PALD and
Legal Services Division (LSD) was witnessed by several employees,
together with Directors Castillo and Unite who closely monitored said
activity. At around 6:00 p.m., Director Unite sent text messages to
petitioner and the head of LSD, who were both out of the office at the time,
informing them of the ongoing copying of computer files in their divisions
upon orders of the CSC Chair. The text messages received by petitioner
read:
"Gud p.m. This is Atty. Unite FYI: Co people are going over the PCs of
PALD and LSD per instruction of the Chairman. If you can make it here
now it would be better."
"All PCs Of PALD and LSD are being backed up per memo of the chair."
"CO IT people arrived just now for this purpose. We were not also informed
about this.
"We can’t do anything about … it … it’s a directive from chair."
"Memo of the chair was referring to an anonymous complaint"; "ill send a

copy of the memo via mms"5
Petitioner replied also thru text message that he was leaving the matter to
Director Unite and that he will just get a lawyer. Another text message
received by petitioner from PALD staff also reported the presence of the
team from CSC main office: "Sir may mga taga C.O. daw sa kuarto
natin."6 At around 10:00 p.m. of the same day, the investigating team
finished their task. The next day, all the computers in the PALD were
sealed and secured for the purpose of preserving all the files stored
therein. Several diskettes containing the back-up files sourced from the
hard disk of PALD and LSD computers were turned over to Chairperson
David. The contents of the diskettes were examined by the CSC’s Office for
Legal Affairs (OLA). It was found that most of the files in the 17 diskettes
containing files copied from the computer assigned to and being used by
the petitioner, numbering about 40 to 42 documents, were draft pleadings
or letters7 in connection with administrative cases in the CSC and other
tribunals. On the basis of this finding, Chairperson David issued the Show-
Cause Order8 dated January 11, 2007, requiring the petitioner, who had
gone on extended leave, to submit his explanation or counter-affidavit
within five days from notice.
Evaluating the subject documents obtained from petitioner’s personal files,

Chairperson David made the following observations:
Most of the foregoing files are drafts of legal pleadings or documents that
are related to or connected with administrative cases that may broadly be
lumped as pending either in the CSCRO No. IV, the CSC-NCR, the CSC-
Central Office or other tribunals. It is also of note that most of these draft
pleadings are for and on behalves of parties, who are facing charges as
respondents in administrative cases. This gives rise to the inference that
the one who prepared them was knowingly, deliberately and willfully aiding
and advancing interests adverse and inimical to the interest of the CSC as
the central personnel agency of the government tasked to discipline
misfeasance and malfeasance in the government service. The number of
pleadings so prepared further demonstrates that such person is not merely
engaged in an isolated practice but pursues it with seeming regularity. It
would also be the height of naivete or credulity, and certainly against
common human experience, to believe that the person concerned had
engaged in this customary practice without any consideration, and in fact,
one of the retrieved files (item 13 above) appears to insinuate the collection
of fees. That these draft pleadings were obtained from the computer
assigned to Pollo invariably raises the presumption that he was the one
responsible or had a hand in their drafting or preparation since the
computer of origin was within his direct control and disposition.9
Petitioner filed his Comment, denying that he is the person referred to in

the anonymous letter-complaint which had no attachments to it, because
he is not a lawyer and neither is he "lawyering" for people with cases in the
CSC. He accused CSC officials of conducting a "fishing expedition" when
they unlawfully copied and printed personal files in his computer, and
subsequently asking him to submit his comment which violated his right
against self-incrimination. He asserted that he had protested the unlawful
taking of his computer done while he was on leave, citing the letter dated
January 8, 2007 in which he informed Director Castillo that the files in his
computer were his personal files and those of his sister, relatives, friends
and some associates and that he is not authorizing their sealing, copying,
duplicating and printing as these would violate his constitutional 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. 07038211 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 petitioner’s CPU and Atty. Eric N. Estrellado, the latter being Atty.
Solosa’s client who attested that petitioner had nothing to do with the
pleadings or bill for legal fees because in truth he owed legal fees to Atty.
Solosa and not to petitioner. Petitioner contended that the case should be
deferred in view of the prejudicial question raised in the criminal complaint
he filed before the Ombudsman against Director Buensalida, whom
petitioner believes had instigated this administrative case. He also prayed
for the lifting of the preventive suspension imposed on him. In its
Resolution No. 07051912 dated March 19, 2007, the CSC denied the
omnibus motion. The CSC resolved to treat the said motion as petitioner’s
answer.
On March 14, 2007, petitioner filed an Urgent Petition13 under Rule 65 of

the Rules of Court, docketed as CA-G.R. SP No. 98224, assailing both the
January 11, 2007 Show-Cause Order and Resolution No. 070382 dated
February 26, 2007 as having been issued with grave abuse of discretion
amounting to excess or total absence of jurisdiction. Prior to this, however,
petitioner lodged an administrative/criminal complaint against respondents
Directors Racquel D.G. Buensalida (Chief of Staff, Office of the CSC
Chairman) and Lydia A. Castillo (CSC-RO IV) before the Office of the
Ombudsman, and a separate complaint for disbarment against Director
Buensalida.14
On April 17, 2007, petitioner received a notice of hearing from the CSC
setting the formal investigation of the case on April 30, 2007. On April 25,
2007, he filed in the CA an Urgent Motion for the issuance of TRO and
preliminary injunction.15 Since he failed to attend the pre-hearing
conference scheduled on April 30, 2007, the CSC reset the same to May
17, 2007 with warning that the failure of petitioner and/or his counsel to
appear in the said pre-hearing conference shall entitle the prosecution to
proceed with the formal investigation ex-parte.16 Petitioner moved to defer
or to reset the pre-hearing conference, claiming that the investigation
proceedings should be held in abeyance pending the resolution of his
petition by the CA. The CSC denied his request and again scheduled the
pre-hearing conference on May 18, 2007 with similar warning on the
consequences of petitioner and/or his counsel’s non-appearance.17 This
prompted petitioner to file another motion in the CA, to cite the
respondents, including the hearing officer, in indirect contempt.18
On June 12, 2007, the CSC issued Resolution No. 07113419 denying
petitioner’s motion to set aside the denial of his motion to defer the
proceedings and to inhibit the designated hearing officer, Atty. Bernard G.
Jimenez. The hearing officer was directed to proceed with the investigation
proper with dispatch.
In view of the absence of petitioner and his counsel, and upon the motion
of the prosecution, petitioner was deemed to have waived his right to the
formal investigation which then proceeded ex parte.
On July 24, 2007, the CSC issued Resolution No. 071420,20 the dispositive
part of which reads:
WHEREFORE, foregoing premises considered, the Commission hereby

finds Briccio A. Pollo, a.k.a. Ricky A. Pollo GUILTY of Dishonesty, Grave
Misconduct, Conduct Prejudicial to the Best Interest of the Service and
Violation of Republic Act 6713. He is meted the penalty of DISMISSAL
FROM THE SERVICE with all its accessory penalties, namely,
disqualification to hold public office, forfeiture of retirement benefits,
cancellation of civil service eligibilities and bar from taking future civil
service examinations.21
On the paramount issue of the legality of the search conducted on

petitioner’s computer, the CSC noted the dearth of jurisprudence relevant
to the factual milieu of this case where the government as employer
invades the private files of an employee stored in the computer assigned to
him for his official use, in the course of initial investigation of possible
misconduct committed by said employee and without the latter’s consent or
participation. The CSC thus turned to relevant rulings of the United States
Supreme Court, and cited the leading case of O’Connor v. Ortega22as
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.
Simons23 which declared that the federal agency’s computer use policy
foreclosed any inference of reasonable expectation of privacy on the part of
its employees. Though the Court therein recognized that such policy did
not, at the same time, erode the respondent’s legitimate expectation of
privacy in the office in which the computer was installed, still, the
warrantless search of the employee’s office was upheld as valid because a
government employer is entitled to conduct a warrantless search pursuant
to an investigation of work-related misconduct provided the search is
reasonable in its inception and scope.
With the foregoing American jurisprudence as benchmark, the CSC held

that petitioner has no reasonable expectation of privacy with regard to the
computer he was using in the regional office in view of the CSC computer
use policy which unequivocally declared that a CSC employee cannot
assert any privacy right to a computer assigned to him. Even assuming that
there was no such administrative policy, the CSC was of the view that the
search of petitioner’s computer successfully passed the test of
reasonableness for warrantless searches in the workplace as enunciated in
the aforecited authorities. The CSC stressed that it pursued the search in
its capacity as government employer and that it was undertaken in
connection with an investigation involving work-related misconduct, which
exempts it from the warrant requirement under the Constitution. With the
matter of admissibility of the evidence having been resolved, the CSC then
ruled that the totality of evidence adequately supports the charges of grave
misconduct, dishonesty, conduct prejudicial to the best interest of the
service and violation of R.A. No. 6713 against the petitioner. These grave
infractions justified petitioner’s dismissal from the service with all its
accessory penalties.
In his Memorandum24 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. 07180025 which denied
his motion for reconsideration.
By Decision dated October 11, 2007, the CA dismissed the petition for
certiorari after finding no grave abuse of discretion committed by
respondents CSC officials. The CA held that: (1) petitioner was not charged
on the basis of the anonymous letter but from the initiative of the CSC after
a fact-finding investigation was conducted and the results thereof yielded a
prima facie case against him; (2) it could not be said that in ordering the
back-up of files in petitioner’s computer and later confiscating the same,
Chairperson David had encroached on the authority of a judge in view of
the CSC computer policy declaring the computers as government property
and that employee-users thereof have no reasonable expectation of privacy
in anything they create, store, send, or receive on the computer system;
and (3) there is nothing contemptuous in CSC’s act of proceeding with the
formal investigation as there was no restraining order or injunction issued
by the CA.
His motion for reconsideration having been denied by the CA, petitioner
brought this appeal arguing that –
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
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.
Marti29 :
Our present constitutional provision on the guarantee against unreasonable

search and seizure had its origin in the 1935 Charter which, worded as
follows:
"The right of the people to be secure in their persons, houses, papers and
effects against unreasonable searches and seizures shall not be violated,
and no warrants shall issue but upon probable cause, to be determined by
the judge after examination under oath or affirmation of the complainant
and the witnesses he may produce, and particularly describing the place to
be searched, and the persons or things to be seized." (Sec. 1[3], Article III)
was in turn derived almost verbatim from the Fourth Amendment to the
United States Constitution. As such, the Court may turn to the
pronouncements of the United States Federal Supreme Court and State
Appellate Courts which are considered doctrinal in this jurisdiction.30
In the 1967 case of Katz v. United States,31 the US Supreme Court held
that the act of FBI agents in electronically recording a conversation made
by petitioner in an enclosed public telephone booth violated his right to
privacy and constituted a "search and seizure". Because the petitioner had
a reasonable expectation of privacy in using the enclosed booth to make a
personal telephone call, the protection of the Fourth Amendment extends to
such area. In the concurring opinion of Mr. Justice Harlan, it was further
noted that the existence of privacy right under prior decisions involved a
two-fold requirement: first, that a person has exhibited an actual
(subjective) expectation of privacy; and second, that the expectation be one
that society is prepared to recognize as reasonable (objective).32
In Mancusi v. DeForte33 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 O’Connor v. Ortega34 where a
physician, Dr. Magno Ortega, who was employed by a state hospital,
claimed a violation of his Fourth Amendment rights when hospital officials
investigating charges of mismanagement of the psychiatric residency
program, sexual harassment of female hospital employees and other
irregularities involving his private patients under the state medical aid
program, searched his office and seized personal items from his desk and
filing cabinets. In that case, the Court categorically declared that
"[i]ndividuals do not lose Fourth Amendment rights merely because they
work for the government instead of a private employer."35 A plurality of four
Justices concurred that the correct analysis has two steps: first, because
"some government offices may be so open to fellow employees or the
public that no expectation of privacy is reasonable", a court must consider
"[t]he operational realities of the workplace" in order to determine whether
an employee’s Fourth Amendment rights are implicated; and next, where
an employee has a legitimate privacy expectation, an employer’s intrusion
on that expectation "for noninvestigatory, work-related purposes, as well as
for investigations of work-related misconduct, should be judged by the
standard of reasonableness under all the circumstances."36
On the matter of government employees’ reasonable expectations of

privacy in their workplace, O’Connor teaches:
x x x Public employees’ expectations of privacy in their offices, desks, and

file cabinets, like similar expectations of employees in the private sector,
may be reduced by virtue of actual office practices and procedures, or by
legitimate regulation. x x x The employee’s expectation of privacy must be
assessed in the context of the employment relation. An office is seldom a
private enclave free from entry by supervisors, other employees, and
business and personal invitees. Instead, in many cases offices are
continually entered by fellow employees and other visitors during the
workday for conferences, consultations, and other 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 individual’s office. We agree with
JUSTICE SCALIA that "[c]onstitutional protection against unreasonable
searches by the government does not disappear merely because the
government has the right to make reasonable intrusions in its capacity as
employer," x x x but some government offices may be so open to fellow
employees or the public that no expectation of privacy is reasonable.
x x x Given the great variety of work environments in the public
sector, the question of whether an employee has a reasonable
expectation of privacy must be addressed on a case-by-case
basis.37 (Citations omitted; emphasis supplied.)
On the basis of the established rule in previous cases, the US Supreme

Court declared that Dr. Ortega’s Fourth Amendment rights are implicated
only if the conduct of the hospital officials infringed "an expectation of
privacy that society is prepared to consider as reasonable." Given the
undisputed evidence that respondent Dr. Ortega did not share his desk or
file cabinets with any other employees, kept personal correspondence and
other private items in his own office while those work-related files (on
physicians in residency training) were stored outside his office, and there
being no evidence that the hospital had established any reasonable
regulation or policy discouraging employees from storing personal papers
and effects in their desks or file cabinets (although the absence of such a
policy does not create any expectation of privacy where it would not
otherwise exist), the Court concluded that Dr. Ortega has a reasonable
expectation of privacy at least in his desk and file cabinets.38
Proceeding to the next inquiry as to whether the search conducted by

hospital officials was reasonable, the O’Connor plurality decision discussed
the following principles:
Having determined that Dr. Ortega had a reasonable expectation of privacy

in his office, the Court of Appeals simply concluded without discussion that
the "search…was not a reasonable search under the fourth amendment." x
x x "[t]o hold that the Fourth Amendment applies to searches conducted by
[public employers] is only to begin the inquiry into the standards governing
such searches…[W]hat is reasonable depends on the context within which
a search takes place. x x x Thus, we must determine the appropriate
standard of reasonableness applicable to the search. A determination of
the standard of reasonableness applicable to a particular class of searches
requires "balanc[ing] the nature and quality of the intrusion on the
individual’s Fourth Amendment interests against the importance of the
governmental interests alleged to justify the intrusion." x x x In the case of
searches conducted by a public employer, we must balance the
invasion of the employees’ legitimate expectations of privacy against
the government’s need for supervision, control, and the efficient
operation of the workplace.
xxxx
In our view, requiring an employer to obtain a warrant whenever the

employer wished to enter an employee’s office, desk, or file cabinets for a
work-related purpose would seriously disrupt the routine conduct of
business and would be unduly burdensome. Imposing unwieldy warrant
procedures in such cases upon supervisors, who would otherwise have no
reason to be familiar with such procedures, is simply unreasonable. In
contrast to other circumstances in which we have required warrants,
supervisors in offices such as at the Hospital are hardly in the business of
investigating the violation of criminal laws. Rather, work-related searches
are merely incident to the primary business of the agency. Under these
circumstances, the imposition of a warrant requirement would conflict with
the "common-sense realization that government offices could not function if
every employment decision became a constitutional matter." x x x
xxxx
The governmental interest justifying work-related intrusions by public

employers is the efficient and proper operation of the workplace.
Government agencies provide myriad services to the public, and the work
of these agencies would suffer if employers were required to have probable
cause before they entered an employee’s desk for the purpose of finding a
file or piece of office correspondence. Indeed, it is difficult to give the
concept of probable cause, rooted as it is in the criminal investigatory
context, much meaning when the purpose of a search is to retrieve a file for
work-related reasons. Similarly, the concept of probable cause has little
meaning for a routine inventory conducted by public employers for the
purpose of securing state property. x x x To ensure the efficient and proper
operation of the agency, therefore, public employers must be given wide
latitude to enter employee offices for work-related, noninvestigatory
reasons.
We come to a similar conclusion for searches conducted pursuant to an

investigation of work-related employee misconduct. Even when employers
conduct an investigation, they have an interest substantially different from
"the normal need for law enforcement." x x x Public employers have an
interest in ensuring that their agencies operate in an effective and efficient
manner, and the work of these agencies inevitably suffers from the
inefficiency, incompetence, mismanagement, or other 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 agency’s work, and
ultimately to the public interest. x x x
xxxx
In sum, we conclude that the "special needs, beyond the normal need
for law enforcement make the…probable-cause requirement
impracticable," x x x for legitimate, work-related noninvestigatory
intrusions as well as investigations of work-related misconduct. A
standard of reasonableness will neither unduly burden the efforts of
government employers to ensure the efficient and proper operation of the
workplace, nor authorize arbitrary intrusions upon the privacy of public
employees. We hold, therefore, that public employer intrusions on the
constitutionally protected privacy interests of government employees
for noninvestigatory, work-related purposes, as well as
for investigations of work-related misconduct, should be judged by
the standard of reasonableness under all the circumstances. Under
this reasonableness standard, both the inception and the scope of the
intrusion must be reasonable:
"Determining the reasonableness of any search involves a twofold inquiry:

first, one must consider ‘whether the…action was justified at its inception,’ x
x x ; second, one must determine whether the search as actually conducted
‘was reasonably related in scope to the circumstances which justified the
interference in the first place,’" x x x
Ordinarily, a search of an employee’s office by a supervisor will be

"justified at its inception" when there are reasonable grounds for
suspecting that the search will turn up evidence that the employee is
guilty of work-related misconduct, or that the search is necessary for
a noninvestigatory work-related purpose such as to retrieve a needed
file. x x x The search will be permissible in its scope when "the
measures adopted are reasonably related to the objectives of the
search and not excessively intrusive in light of …the nature of the
[misconduct]." x x x39 (Citations omitted; emphasis supplied.)
Since the District Court granted summary judgment without a hearing on

the factual dispute as to the character of the search and neither was there
any finding made as to the scope of the search that was undertaken, the
case was remanded to said court for the determination of the justification
for the search and seizure, and evaluation of the reasonableness of both
the inception of the search and its scope.
In O’Connor the Court recognized that "special needs" authorize

warrantless searches involving public employees for 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.40
O’Connor was applied in subsequent cases raising issues on employees’

privacy rights in the workplace. One of these cases involved a government
employer’s search of an office computer, United States v. Mark L.
Simons41where the defendant Simons, an employee of a division of the
Central Intelligence Agency (CIA), was convicted of receiving and
possessing materials containing child pornography. Simons was provided
with an office which he did not share with anyone, and a computer with
Internet access. The agency had instituted a policy on computer use stating
that employees were to use the Internet for official government business
only and that accessing unlawful material was specifically prohibited. The
policy also stated that users shall understand that the agency will
periodically audit, inspect, and/or monitor the user’s Internet access as
deemed appropriate. CIA agents instructed its contractor for the
management of the agency’s computer network, upon initial discovery of
prohibited internet activity originating from Simons’ computer, to conduct a
remote monitoring and examination of Simons’ computer. After confirming
that Simons had indeed downloaded pictures that were pornographic in
nature, all the files on the hard drive of Simon’s computer were copied from
a remote work station. Days later, the contractor’s representative finally
entered Simon’s office, removed the original hard drive on Simon’s
computer, replaced it with a copy, and gave the original to the agency
security officer. Thereafter, the agency secured warrants and searched
Simons’ office in the evening when Simons was not around. The search
team 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 O’Connor 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
agency’s Internet policy happened also to be a violation of criminal law; this
does not mean that said employer lost the capacity and interests of an
employer. The warrantless entry into Simons’ office was reasonable under
the Fourth Amendment standard announced in O’Connor because at the
inception of the search, the employer had "reasonable grounds for
suspecting" that the hard drive would yield evidence of misconduct, as the
employer was already aware that Simons had misused his Internet access
to download over a thousand pornographic images. The retrieval of the
hard drive was reasonably related to the objective of the search, and the
search was not excessively intrusive. Thus, while Simons had a reasonable
expectation of privacy in his office, he did not have such legitimate
expectation of privacy with regard to the files in his computer.
x x x To establish a violation of his rights under the Fourth Amendment,
Simons must first prove that he had a legitimate expectation of privacy in
the place searched or the item seized. x x x And, in order to prove a
legitimate expectation of privacy, Simons must show that his subjective
expectation of privacy is one that society is prepared to accept as
objectively reasonable. 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-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 employee’s supervisor entering

the employee’s government office and retrieving a piece of government
equipment in which the employee had absolutely no expectation of privacy
– equipment that the employer knew contained evidence of crimes
committed by the employee in the employee’s office. This situation may be
contrasted with one in which the criminal acts of a government employee
were unrelated to his employment. Here, there was a conjunction of the
conduct that violated the employer’s policy and the conduct that violated
the criminal law. We consider that FBIS’ intrusion into Simons’ office to
retrieve the hard drive is one in which a reasonable employer might
engage. x x x42 (Citations omitted; emphasis supplied.)
This Court, in Social Justice Society (SJS) v. Dangerous Drugs

Board43 which involved the constitutionality of a provision in R.A. No. 9165
requiring mandatory drug testing of candidates for public office, students of
secondary and tertiary schools, officers and employees of public and
private offices, and persons charged before the prosecutor’s office with
certain offenses, have also recognized the fact that there may be such
legitimate intrusion of privacy in the workplace.
The first factor to consider in the matter of reasonableness is the nature of

the privacy interest upon which the drug testing, which effects a search
within the meaning of Sec. 2, Art. III of the Constitution, intrudes. In this
case, the office or workplace serves as the backdrop for the analysis of the
privacy expectation of the employees and the reasonableness of drug
testing requirement. The employees’ privacy interest in an office is to a
large extent circumscribed by the company’s work policies, the collective
bargaining agreement, if any, entered into by management and the
bargaining unit, and the inherent right of the employer to maintain discipline
and efficiency in the workplace. Their privacy expectation in a regulated
office environment is, in fine, reduced; and a degree of impingement upon
such privacy has been upheld. (Emphasis supplied.)
Applying the analysis and principles announced in O’Connor and Simons to

the case at bar, we now address the following questions: (1) Did petitioner
have a reasonable expectation of privacy in his office and computer files?;
and (2) Was the search authorized by the CSC Chair, the copying of the
contents of the hard drive on petitioner’s computer reasonable in its
inception and scope?
In this inquiry, the relevant surrounding circumstances to consider include

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

of the aforementioned factual circumstances, that petitioner had at least a
subjective expectation of privacy in his computer as he claims, such is
negated by the presence of policy regulating the use of office computers,
as in Simons.
Office Memorandum No. 10, S. 2002 "Computer Use Policy (CUP)"

explicitly provides:
POLICY
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
4. No expectation of privacy. Users except the Members of the Commission

shall not have an expectation of privacy in anything they create, store,
send, or receive on the computer system.
The Head of the Office for Recruitment, Examination and Placement shall
select and assign Users to handle the confidential examination data and
processes.
5. Waiver of privacy rights. Users expressly waive any right to privacy

in anything they create, store, send, or receive on the computer through the
Internet or any other computer network. Users understand that the CSC
may use human or automated means to monitor the use of its
Computer Resources.
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 User’s password or
account.
13. Passwords do not imply privacy. Use of passwords to gain access to

the computer system or to encode particular files or messages does not
imply that Users have an expectation of privacy in the material they create
or receive on the computer system. The Civil Service Commission has
global passwords that permit access to all materials stored on its
networked computer system regardless of whether those materials have
been encoded with a particular User’s password. Only members of the
Commission shall authorize the application of the said global passwords.
x x x x47 (Emphasis supplied.)
The CSC in this case had implemented a policy that put its employees on
notice that they have no expectation of privacy in anything they create,
store, send or receive on the office computers, and that the CSC may
monitor the use of the computer resources using both automated or human
means. This implies that on-the-spot inspections may be done to ensure
that the computer resources were used only for such legitimate business
purposes.
One of the factors stated in O’Connor which are relevant in determining

whether an employee’s expectation of privacy in the workplace is
reasonable is the existence of a workplace privacy policy.48 In one case,
the US Court of Appeals Eighth Circuit held that a state university
employee has not shown that he had a reasonable expectation of privacy in
his computer files where the university’s computer policy, the computer
user is informed not to expect privacy if the university has a legitimate
reason to conduct a search. The user is specifically told that computer files,
including e-mail, can be searched when the university is responding to a
discovery request in the course of litigation. Petitioner employee thus
cannot claim a violation of Fourth Amendment rights when university
officials conducted a warrantless search of his computer for work-related
materials.49
As to the second point of inquiry on the reasonableness of the search

conducted on petitioner’s computer, we answer in the affirmative.
The search of petitioner’s computer files was conducted in connection with

investigation of work-related misconduct prompted by an anonymous letter-
complaint addressed to Chairperson David regarding anomalies in the
CSC-ROIV where the head of the Mamamayan Muna Hindi Mamaya Na
division is supposedly "lawyering" for individuals with pending cases in the
CSC. Chairperson David stated in her sworn affidavit:
8. That prior to this, as early as 2006, the undersigned has received several
text messages from unknown sources adverting to certain anomalies in
Civil Service Commission Regional Office IV (CSCRO IV) such as, staff
working in another government agency, "selling" cases and aiding parties
with pending cases, all done during office hours and involved the use of
government properties;
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 x50
A search by a government employer of an employee’s office is justified at

inception when there are reasonable grounds for suspecting that it will turn
up evidence that the employee is guilty of work-related misconduct.51 Thus,
in the 2004 case decided by the US Court of Appeals Eighth Circuit, it was
held that where a government agency’s computer use policy prohibited
electronic messages with pornographic content and in addition expressly
provided that employees do not have any personal privacy rights regarding
their use of the agency information systems and technology, the
government employee had no legitimate expectation of privacy as to the
use and contents of his office computer, and therefore evidence found
during warrantless search of the computer was admissible in prosecution
for child pornography. In that case, the defendant employee’s computer
hard drive was first remotely examined by a computer information
technician after his supervisor received complaints that he was
inaccessible and had copied and distributed non-work-related e-mail
messages throughout the office. When the supervisor confirmed that
defendant had used his computer to access the prohibited websites, in
contravention of the express policy of the agency, his computer tower and
floppy disks were taken and examined. A formal administrative
investigation ensued and later search warrants were secured by the police
department. The initial remote search of the hard drive of petitioner’s
computer, as well as the subsequent warrantless searches was held as
valid under the O’Connor ruling that a public employer can investigate
work-related misconduct so long as any search is justified at inception and
is reasonably related in scope to the circumstances that justified it in the
first place.52
Under the facts obtaining, the search conducted on petitioner’s computer

was justified at its inception and scope. We quote with approval the CSC’s
discussion on the reasonableness of its actions, consistent as it were with
the guidelines established by O’Connor:
Even conceding for a moment that there is no such administrative policy,

there is no doubt in the mind of the Commission that the search of Pollo’s
computer has successfully passed the test of reasonableness for
warrantless searches in the workplace as enunciated in the above-
discussed American authorities. It bears emphasis that the Commission
pursued the search in its capacity as a government employer and that
it was undertaken in connection with an investigation involving a
work-related misconduct, one of the circumstances exempted from the
warrant requirement. At the inception of the search, a complaint was
received recounting that a certain division chief in the CSCRO No. IV was
"lawyering" for parties having pending cases with the said regional office or
in the Commission. The nature of the imputation was serious, as it was
grievously disturbing. If, indeed, a CSC employee was found to be
furtively engaged in the practice of "lawyering" for parties with pending
cases before the Commission would be a highly repugnant scenario, then
such a case would have shattering repercussions. It would undeniably cast
clouds of doubt upon the institutional integrity of the Commission as a
quasi-judicial agency, and in the process, render it less effective in fulfilling
its mandate as an impartial and objective dispenser of administrative
justice. It is settled that a court or an administrative tribunal must not only
be actually impartial but must be seen to be so, otherwise the general
public would not have any trust and confidence in it.
Considering the damaging nature of the accusation, the Commission

had to act fast, if only to arrest or limit any possible adverse consequence
or fall-out. Thus, on the same date that the complaint was received, a
search was forthwith conducted involving the computer resources in the
concerned regional office. That it was the computers that were
subjected to the search was justified since these furnished the
easiest means for an employee to encode and store documents.
Indeed, the computers would be a likely starting point in ferreting out
incriminating evidence. Concomitantly, the ephemeral nature of
computer files, that is, they could easily be destroyed at a click of a
button, necessitated drastic and immediate action. Pointedly, to impose
the need to comply with the probable cause requirement would invariably
defeat the purpose of the wok-related investigation.
Worthy to mention, too, is the fact that the Commission effected the
warrantless search in an open and transparent manner. Officials and some
employees of the regional office, who happened to be in the vicinity, were
on hand to observe the process until its completion. In addition, the
respondent himself was duly notified, through text messaging, of the search
and the concomitant retrieval of files from his computer.
All in all, the Commission is convinced that the warrantless search done on
computer assigned to Pollo was not, in any way, vitiated with
unconstitutionality. It was a reasonable exercise of the managerial
prerogative of the Commission as an employer aimed at ensuring its
operational effectiveness and efficiency by going after the work-related
misfeasance of its employees. Consequently, the evidence derived from
the questioned search are deemed admissible.53
Petitioner’s claim of violation of his constitutional right to privacy must

necessarily fail. His other argument invoking the privacy of communication
and correspondence under Section 3(1), Article III of the 1987
Constitution is also untenable considering the recognition accorded to
certain legitimate intrusions into the privacy of employees in the
government workplace under the aforecited authorities. We likewise find no
merit in his contention that O’Connor and Simons are not relevant because
the present case does not involve a criminal offense like child pornography.
As already mentioned, the search of petitioner’s computer was justified
there being reasonable ground for suspecting that the files stored therein
would yield incriminating evidence relevant to the investigation being
conducted by CSC as government employer of such misconduct subject of
the anonymous complaint. This situation clearly falls under the exception to
the warrantless requirement in administrative searches defined in
O’Connor.
The Court is not unaware of our decision in Anonymous Letter-Complaint

against Atty. Miguel Morales, Clerk of Court, Metropolitan Trial Court of
Manila54 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 Computer Use Policy, failed to establish that petitioner had a reasonable
expectation of privacy in the office computer assigned to him.
Having determined that the personal files copied from the office computer
of petitioner are admissible in the administrative case against him, we now
proceed to the issue of whether the CSC was correct in finding the
petitioner guilty of the charges and dismissing him from the service.
Well-settled is the rule that the findings of fact of quasi-judicial agencies,

like the CSC, are accorded not only respect but even finality if such findings
are supported by substantial evidence. Substantial evidence is such
amount of relevant evidence which a reasonable mind might accept as
adequate to support a conclusion, even if other equally reasonable minds
might conceivably opine otherwise.55
The CSC based its findings on evidence consisting of a substantial number

of drafts of legal pleadings and documents stored in his office computer, as
well as the sworn affidavits and testimonies of the witnesses it presented
during the formal investigation. According to the CSC, these documents
were confirmed to be similar or exactly the same content-wise with those
on the case records of some cases pending either with CSCRO No. IV,
CSC-NCR or the Commission Proper. There were also substantially similar
copies of those pleadings filed with the CA and duly furnished the
Commission. Further, the CSC found the explanation given by petitioner, to
the effect that those files retrieved from his computer hard drive actually
belonged to his lawyer friends Estrellado and Solosa whom he allowed the
use of his computer for drafting their pleadings in the cases they handle, as
implausible and doubtful under the circumstances. We hold that the CSC’s
factual finding regarding the authorship of the subject pleadings and
misuse of the office computer is well-supported by the evidence on record,
thus:
It is also striking to note that some of these documents were in the nature
of pleadings responding to the orders, decisions or resolutions of these
offices or directly in opposition to them such as a petition for certiorari or a
motion for reconsideration of CSC Resolution. This indicates that the
author thereof knowingly and willingly participated in the promotion or
advancement of the interests of parties contrary or antagonistic to the
Commission. Worse, the appearance in one of the retrieved documents the
phrase, "Eric N. Estr[e]llado, Epal kulang ang bayad mo," lends plausibility
to an inference that the preparation or drafting of the legal pleadings was
pursued with less than a laudable motivation. Whoever was responsible for
these documents was simply doing the same for the money – a "legal
mercenary" selling or purveying his expertise to the highest bidder, so to
speak.
Inevitably, the fact that these documents were retrieved from the computer
of Pollo raises the presumption that he was the author thereof. This is
because he had a control of the said computer. More significantly, one of
the witnesses, Margarita Reyes, categorically testified seeing a written
copy of one of the pleadings found in the case records lying on the table of
the respondent. This was the Petition for Review in the case of Estrellado
addressed to the Court of Appeals. The said circumstances indubitably
demonstrate that Pollo was secretly undermining the interest of the
Commission, his very own employer.
To deflect any culpability, Pollo would, however, want the Commission to

believe that the documents were the personal files of some of his friends,
including one Attorney Ponciano Solosa, who incidentally served as his
counsel of record during the formal investigation of this case. In fact, Atty.
Solosa himself executed a sworn affidavit to this effect. Unfortunately, this
contention of the respondent was directly rebutted by the prosecution
witness, Reyes, who testified that during her entire stay in the PALD, she
never saw Atty. Solosa using the computer assigned to the respondent.
Reyes more particularly stated that she worked in close proximity with Pollo
and would have known if Atty. Solosa, whom she personally knows, was
using the computer in question. Further, Atty. Solosa himself was never
presented during the formal investigation to confirm his sworn statement
such that the same constitutes self-serving evidence unworthy of weight
and credence. The same is true with the other supporting affidavits, which
Pollo submitted.
At any rate, even admitting for a moment the said contention of the
respondent, it evinces the fact that he was unlawfully authorizing private
persons to use the computer assigned to him for official purpose, not only
once but several times gauging by the number of pleadings, for ends not in
conformity with the interests of the Commission. He was, in effect, acting
as a principal by indispensable cooperation…Or at the very least, he
should be responsible for serious misconduct for repeatedly allowing CSC
resources, that is, the computer and the electricity, to be utilized for
purposes other than what they were officially intended.
Further, the Commission cannot lend credence to the posturing of the

appellant that the line appearing in one of the documents, "Eric N.
Estrellado, Epal kulang ang bayad mo," was a private joke between the
person alluded to therein, Eric N. Estrellado, and his counsel, Atty. Solosa,
and not indicative of anything more sinister. The same is too preposterous
to be believed. Why would such a statement appear in a legal pleading
stored in the computer assigned to the respondent, unless he had
something to do with it?56
Petitioner assails the CA in not ruling that the CSC should not have
entertained an anonymous complaint since Section 8 of CSC Resolution
No. 99-1936 (URACC) requires a verified complaint:
Rule II – Disciplinary Cases

SEC. 8. Complaint. - A complaint against a civil service official or employee
shall not be given due course unless it is in writing and subscribed and
sworn to by the complainant. However, in cases initiated by the proper
disciplining authority, the complaint need not be under oath.
No anonymous complaint shall be entertained unless there is obvious

truth or merit to the allegation therein or supported by documentary or
direct evidence, in which case the person complained of may be required to
comment.
xxxx
We need not belabor this point raised by petitioner. The administrative

complaint is deemed to have been initiated by the CSC itself when
Chairperson David, after a spot inspection and search of the files stored in
the hard drive of computers in the two divisions adverted to in the
anonymous letter -- as part of the disciplining authority’s own fact-finding
investigation and information-gathering -- found a prima facie case against
the petitioner who was then directed to file his comment. As this Court held
in Civil Service Commission v. Court of Appeals57 --
Under Sections 46 and 48 (1), Chapter 6, Subtitle A, Book V of E.O. No.

292 and Section 8, Rule II of Uniform Rules on Administrative Cases in the
Civil Service, a complaint may be initiated against a civil service officer or
employee by the appropriate disciplining authority, even without being
subscribed and sworn to. Considering that the CSC, as the disciplining
authority for Dumlao, filed the complaint, jurisdiction over Dumlao was
validly acquired. (Emphasis supplied.)
As to petitioner’s challenge on the validity of CSC OM 10, S. 2002 (CUP),

the same deserves scant consideration. The alleged infirmity due to the
said memorandum order having been issued solely by the CSC Chair and
not the Commission as a collegial body, upon which the dissent of
Commissioner Buenaflor is partly anchored, was already explained by
Chairperson David in her Reply to the Addendum to Commissioner
Buenaflor’s previous memo expressing his dissent to the actions and
disposition of the Commission in this case. According to Chairperson
David, said memorandum order was in fact exhaustively discussed,
provision by provision in the January 23, 2002 Commission Meeting,
attended by her and former Commissioners Erestain, Jr. and Valmores.
Hence, the Commission En Banc at the time saw no need to issue a
Resolution for the purpose and further because the CUP being for internal
use of the Commission, the practice had been to issue a memorandum
order.58 Moreover, being an administrative rule that is merely internal in
nature, or which regulates only the personnel of the CSC and not the
public, the CUP need not be published prior to its effectivity.59
In fine, no error or grave abuse of discretion was committed by the CA in

affirming the CSC’s ruling that petitioner is guilty of grave misconduct,
dishonesty, conduct prejudicial to the best interest of the service, and
violation of R.A. No. 6713. The gravity of these offenses justified the
imposition on petitioner of the ultimate penalty of dismissal with all its
accessory penalties, pursuant to existing rules and regulations.
WHEREFORE, the petition for review on certiorari is DENIED. The

Decision dated October 11, 2007 and Resolutiondated February 29, 2008
of the Court of Appeals in CA-G.R. SP No. 98224 are AFFIRMED.
With costs against the petitioner.
SO ORDERED.
JESSE U. LUCAS, G.R. No. 190710
Petitioner,
Present:
CARPIO, J.,
Chairperson,
- versus - NACHURA,
PERALTA,
ABAD, and
MENDOZA, JJ.
Promulgated:
JESUS S. LUCAS,
Respondent. June 6, 2011
x----------------------------------------------------------------------------------------------x
DECISION
NACHURA, J.:
Is a prima facie showing necessary before a court can issue a DNA testing
order? In this petition for review on certiorari, we address this question to
guide the Bench and the Bar in dealing with a relatively new evidentiary
tool. Assailed in this petition are the Court of Appeals (CA) Decision[1] dated
September 25, 2009 and Resolution dated December 17, 2009.
The antecedents of the case are, as follows:

On July 26, 2007, petitioner, Jesse U. Lucas, filed a Petition to Establish
Illegitimate Filiation (with Motion for the Submission of Parties to DNA
Testing)[2] before the Regional Trial Court (RTC), Branch
72, Valenzuela City. Petitioner narrated that, sometime in 1967, his mother,
Elsie Uy (Elsie), migrated to Manila from Davao and stayed with a certain
Ate Belen (Belen) who worked in a prominent nightspot in Manila. Elsie
would oftentimes accompany Belen to work. On one occasion, Elsie got
acquainted with respondent, Jesus S. Lucas, at Belens workplace, and an
intimate relationship developed between the two. Elsie eventually got
pregnant and, on March 11, 1969, she gave birth to petitioner, Jesse U.
Lucas. The name of petitioners father was not stated in petitioners
certificate of live birth. However, Elsie later on told petitioner that his father
is respondent. On August 1, 1969, petitioner was baptized at San Isidro
Parish, Taft Avenue, Pasay City. Respondent allegedly extended financial
support to Elsie and petitioner for a period of about two years. When the
relationship of Elsie and respondent ended, Elsie refused to accept
respondents offer of support and decided to raise petitioner on her own.
While petitioner was growing up, Elsie made several attempts to introduce
petitioner to respondent, but all attempts were in vain.
Attached to the petition were the following: (a) petitioners certificate of live
birth; (b) petitioners baptismal certificate; (c) petitioners college diploma,
showing that he graduated from Saint Louis University in Baguio City with a
degree in Psychology; (d) his Certificate of Graduation from the same
school; (e) Certificate of Recognition from the University of the Philippines,
College of Music; and (f) clippings of several articles from different
newspapers about petitioner, as a musical prodigy.
Respondent was not served with a copy of the petition. Nonetheless,

respondent learned of the petition to establish filiation. His counsel
therefore went to the trial court on August 29, 2007 and obtained a copy of
the petition.
Petitioner filed with the RTC a Very Urgent Motion to Try and Hear the
Case. Hence, on September 3, 2007, the RTC, finding the petition to be
sufficient in form and substance, issued the Order[3]setting the case for
hearing and urging anyone who has any objection to the petition to file his
opposition. The court also directed that the Order be published once a
week for three consecutive weeks in any newspaper of general circulation
in the Philippines, and that the Solicitor General be furnished with copies of
the Order and the petition in order that he may appear and represent the
State in the case.
On September 4, 2007, unaware of the issuance of the September 3, 2007

Order, respondent filed a Special Appearance and Comment. He
manifested inter alia that: (1) he did not receive the summons and a copy of
the petition; (2) the petition was adversarial in nature and therefore
summons should be served on him as respondent; (3) should the court
agree that summons was required, he was waiving service of summons
and making a voluntary appearance; and (4) notice by publication of the
petition and the hearing was improper because of the confidentiality of the
subject matter.[4]
On September 14, 2007, respondent also filed a Manifestation and

Comment on Petitioners Very Urgent Motion to Try and Hear the
Case. Respondent reiterated that the petition for recognition is adversarial
in nature; hence, he should be served with summons.
After learning of the September 3, 2007 Order, respondent filed a motion

for reconsideration.[5] Respondent averred that the petition was not in due
form and substance because petitioner could not have personally known
the matters that were alleged therein. He argued that DNA testing cannot
be had on the basis of a mere allegation pointing to respondent as
petitioners father. Moreover, jurisprudence is still unsettled on the
acceptability of DNA evidence.
On July 30, 2008, the RTC, acting on respondents motion for

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

four procedural aspects of a traditional paternity action in his petition, his
motion for the submission of parties to DNA testing to establish paternity
and filiation is hereby DENIED. This case is DISMISSED without prejudice.
SO ORDERED.[8]
Petitioner seasonably filed a motion for reconsideration to the Order dated

July 30, 2008, which the RTC resolved in his favor. Thus, on October 20,
2008, it issued the Order[9] setting aside the courts previous order, thus:
WHEREFORE, in view of the foregoing, the Order dated July 30, 2008 is
hereby reconsidered and set aside.
Let the Petition (with Motion for the Submission of Parties to DNA Testing)
be set for hearing on January 22, 2009 at 8:30 in the morning.
xxxx
SO ORDERED.[10]
This time, the RTC held that the ruling on the grounds relied upon by
petitioner for filing the petition is premature considering that a full-blown
trial has not yet taken place. The court stressed that the petition was
sufficient in form and substance. It was verified, it included a certification
against forum shopping, and it contained a plain, concise, and direct
statement of the ultimate facts on which petitioner relies on for his claim, in
accordance with Section 1, Rule 8 of the Rules of Court. The court
remarked that the allegation that the statements in the petition were not of
petitioners personal knowledge is a matter of evidence. The court also
dismissed respondents arguments that there is no basis for the taking of
DNA test, and that jurisprudence is still unsettled on the acceptability of
DNA evidence. It noted that the new Rule on DNA Evidence[11] allows the
conduct of DNA testing, whether at the courts instance or upon application
of any person who has legal interest in the matter in litigation.
Respondent filed a Motion for Reconsideration of Order dated October 20,

2008 and for Dismissal of Petition,[12] reiterating that (a) the petition was not
in due form and substance as no defendant was named in the title, and all
the basic allegations were hearsay; and (b) there was no prima facie case,
which made the petition susceptible to dismissal.
The RTC denied the motion in the Order dated January 19, 2009, and
rescheduled the hearing.[13]
Aggrieved, respondent filed a petition for certiorari with the CA, questioning
the Orders dated October 20, 2008 and January 19, 2009.
On September 25, 2009, the CA decided the petition for certiorari in favor
of respondent, thus:
WHEREFORE, the instant petition for certiorari is hereby GRANTED for

being meritorious. The assailed Orders dated October 20, 2008 and
January 19, 2009 both issued by the Regional Trial Court, Branch 172 of
Valenzuela City in SP. Proceeding Case No. 30-V-07 are REVERSED and
SET ASIDE. Accordingly, the case docketed as SP. Proceeding Case No.
30-V-07 is DISMISSED.[14]
The CA held that the RTC did not acquire jurisdiction over the person of
respondent, as no summons had been served on him. Respondents
special appearance could not be considered as voluntary appearance
because it was filed only for the purpose of questioning the jurisdiction of
the court over respondent. Although respondent likewise questioned the
courts jurisdiction over the subject matter of the petition, the same is not
equivalent to a waiver of his right to object to the jurisdiction of the court
over his person.
The CA remarked that petitioner filed the petition to establish illegitimate
filiation, specifically seeking a DNA testing order to abbreviate the
proceedings. It noted that petitioner failed to show that the four significant
procedural aspects of a traditional paternity action had been met. The CA
further held that a DNA testing should not be allowed when the petitioner
has failed to establish a prima facie case, thus:
While the tenor [of Section 4, Rule on DNA Evidence] appears to be

absolute, the rule could not really have been intended to trample on the
substantive rights of the parties. It could have not meant to be an
instrument to promote disorder, harassment, or extortion. It could have not
been intended to legalize unwarranted expedition to fish for evidence. Such
will be the situation in this particular case if a court may at any time order
the taking of a DNA test. If the DNA test in compulsory recognition cases is
immediately available to the petitioner/complainant without requiring first
the presentation of corroborative proof, then a dire and absurd rule would
result. Such will encourage and promote harassment and extortion.
xxxx
At the risk of being repetitious, the Court would like to stress that it sees the
danger of allowing an absolute DNA testing to a compulsory recognition
test even if the plaintiff/petitioner failed to establish prima facie proof. x x x
If at anytime, motu proprio and without pre-conditions, the court can indeed
order the taking of DNA test in compulsory recognition cases, then the
prominent and well-to-do members of our society will be easy prey for
opportunists and extortionists. For no cause at all, or even for [sic] casual
sexual indiscretions in their younger years could be used as a means to
harass them. Unscrupulous women, unsure of the paternity of their children
may just be taking the chances-just in case-by pointing to a sexual partner
in a long past one-time encounter. Indeed an absolute and unconditional
taking of DNA test for compulsory recognition case opens wide the
opportunities for extortionist to prey on victims who have no stomach for
scandal.[15]
Petitioner moved for reconsideration. On December 17, 2009, the CA

denied the motion for lack of merit.[16]
In this petition for review on certiorari, petitioner raises the following issues:
I.
WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT

RESOLVED THE ISSUE OF LACK OF JURISDICTION OVER THE
PERSON OF HEREIN RESPONDENT ALBEIT THE SAME WAS NEVER
RAISED IN THE PETITION FOR CERTIORARI.
I.A

RULED THAT JURISDICTION WAS NOT ACQUIRED OVER THE
PERSON OF THE RESPONDENT.
I.B

FAILED TO REALIZE THAT THE RESPONDENT HAD ALREADY
SUBMITTED VOLUNTARILY TO THE JURISDICTION OF THE COURT A
QUO.
I.C
ESSENTIALLY RULED THAT THE TITLE OF A PLEADING, RATHER
THAN ITS BODY, IS CONTROLLING.
II.

ORDERED THE DISMISSAL OF THE PETITION BY REASON OF THE
MOTION (FILED BY THE PETITIONER BEFORE THE COURT A QUO)
FOR THE CONDUCT OF DNA TESTING.
II.A

ESSENTIALLY RULED THAT DNA TESTING CAN ONLY BE ORDERED
AFTER THE PETITIONER ESTABLISHES PRIMA FACIE PROOF OF
FILIATION.
III.
WHETHER OR NOT THE COURT OF APPEALS ERRED WITH ITS

MISPLACED RELIANCE ON THE CASE OF HERRERA VS. ALBA,
ESPECIALLY AS REGARDS THE FOUR SIGNIFICANT PROCEDURAL

ASPECTS OF A TRADITIONAL PATERNITY ACTION.[17]
Petitioner contends that respondent never raised as issue in his petition

for certiorari the courts lack of jurisdiction over his person. Hence, the CA
had no legal basis to discuss the same, because issues not raised are
deemed waived or abandoned. At any rate, respondent had already
voluntarily submitted to the jurisdiction of the trial court by his filing of
several motions asking for affirmative relief, such as the (a) Motion for
Reconsideration of the Order dated September 3, 2007; (b) Ex
Parte Motion to Resolve Motion for Reconsideration of the Order dated
November 6, 2007; and (c) Motion for Reconsideration of the Order dated
October 20, 2008 and for Dismissal of Petition. Petitioner points out that
respondent even expressly admitted that he has waived his right to
summons in his Manifestation and Comment on Petitioners Very Urgent
Motion to Try and Hear the Case. Hence, the issue is already moot and
academic.
Petitioner argues that the case was adversarial in nature. Although the
caption of the petition does not state respondents name, the body of the
petition clearly indicates his name and his known address. He maintains
that the body of the petition is controlling and not the caption.
Finally, petitioner asserts that the motion for DNA testing should not be a
reason for the dismissal of the petition since it is not a legal ground for the
dismissal of cases. If the CA entertained any doubt as to the propriety of
DNA testing, it should have simply denied the motion.[18] Petitioner points
out that Section 4 of the Rule on DNA Evidence does not require that there
must be a prior proof of filiation before DNA testing can be ordered. He
adds that the CA erroneously relied on the four significant procedural
aspects of a paternity case, as enunciated in Herrera v. Alba.[19]Petitioner
avers that these procedural aspects are not applicable at this point of the
proceedings because they are matters of evidence that should be taken up
during the trial.[20]
In his Comment, respondent supports the CAs ruling on most issues raised
in the petition for certiorari and merely reiterates his previous arguments.
However, on the issue of lack of jurisdiction, respondent counters that,
contrary to petitioners assertion, he raised the issue before the CA in
relation to his claim that the petition was not in due form and substance.
Respondent denies that he waived his right to the service of summons. He
insists that the alleged waiver and voluntary appearance was conditional
upon a finding by the court that summons is indeed required. He avers that
the assertion of affirmative defenses, aside from lack of jurisdiction over the
person of the defendant, cannot be considered as waiver of the defense of
lack of jurisdiction over such person.
The petition is meritorious.
Primarily, we emphasize that the assailed Orders of the trial court were
orders denying respondents motion to dismiss the petition for illegitimate
filiation. An order denying a motion to dismiss is an interlocutory
order which neither terminates nor finally disposes of a case, as it leaves
something to be done by the court before the case is finally decided on the
merits. As such, the general rule is that the denial of a motion to
dismiss cannot be questioned in a special civil action for certiorari, which is
a remedy designed to correct errors of jurisdiction and not errors of
judgment. Neither can a denial of a motion to dismiss be the subject of an
appeal unless and until a final judgment or order is rendered. In a number
of cases, the court has granted the extraordinary remedy of certiorari on
the denial of the motion to dismiss but only when it has been tainted with
grave abuse of discretion amounting to lack or excess of jurisdiction.[21] In
the present case, we discern no grave abuse of discretion on the part of the
trial court in denying the motion to dismiss.
The grounds for dismissal relied upon by respondent were (a) the courts
lack of jurisdiction over his person due to the absence of summons, and (b)
defect in the form and substance of the petition to establish illegitimate
filiation, which is equivalent to failure to state a cause of action.
We need not belabor the issues on whether lack of jurisdiction was raised
before the CA, whether the court acquired jurisdiction over the person of
respondent, or whether respondent waived his right to the service of
summons. We find that the primordial issue here is actually whether it was
necessary, in the first place, to serve summons on respondent for the court
to acquire jurisdiction over the case. In other words, was the service of
summons jurisdictional? The answer to this question depends on the
nature of petitioners action, that is, whether it is an action in personam, in
rem, or quasi in rem.
An action in personam is lodged against a person based on personal

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

necessary for the court to validly try and decide the case. In a
proceeding in rem or quasi in rem, jurisdiction over the person of the
defendant is not a prerequisite to confer jurisdiction on the court, provided
that the latter has jurisdiction over the res. Jurisdiction over the res is
acquired either (a) by the seizure of the property under legal process,
whereby it is brought into actual custody of the law, or (b) as a result of the
institution of legal proceedings, in which the power of the court is
recognized and made effective. [23]
The herein petition to establish illegitimate filiation is an action in rem. By
the simple filing of the petition to establish illegitimate filiation before the
RTC, which undoubtedly had jurisdiction over the subject matter of the
petition, the latter thereby acquired jurisdiction over the case. An in
rem proceeding is validated essentially through publication. Publication is
notice to the whole world that the proceeding has for its object to bar
indefinitely all who might be minded to make an objection of any sort to the
right sought to be established.[24] Through publication, all interested parties
are deemed notified of the petition.
If at all, service of summons or notice is made to the defendant, it is not for

the purpose of vesting the court with jurisdiction, but merely for satisfying
the due process requirements.[25] This is but proper in order to afford the
person concerned the opportunity to protect his interest if he so
chooses.[26] Hence, failure to serve summons will not deprive the court of its
jurisdiction to try and decide the case. In such a case, the lack of summons
may be excused where it is determined that the adverse party had, in fact,
the opportunity to file his opposition, as in this case. We find that the due
process requirement with respect to respondent has been satisfied,
considering that he has participated in the proceedings in this case and he
has the opportunity to file his opposition to the petition to establish filiation.
To address respondents contention that the petition should have been

adversarial in form, we further hold that the herein petition to establish
filiation was sufficient in form. It was indeed adversarial in nature despite its
caption which lacked the name of a defendant, the failure to implead
respondent as defendant, and the non-service of summons upon
respondent. A proceeding is adversarial where the party seeking relief has
given legal warning to the other party and afforded the latter an opportunity
to contest it.[27] In this petitionclassified as an action in remthe notice
requirement for an adversarial proceeding was likewise satisfied by the
publication of the petition and the giving of notice to the Solicitor General,
as directed by the trial court.
The petition to establish filiation is sufficient in substance. It satisfies

Section 1, Rule 8 of the Rules of Court, which requires the complaint to
contain a plain, concise, and direct statement of the ultimate facts upon
which the plaintiff bases his claim. A fact is essential if it cannot be stricken
out without leaving the statement of the cause of action inadequate.[28] A
complaint states a cause of action when it contains the following elements:
(1) the legal right of plaintiff, (2) the correlative obligation of the defendant,
and (3) the act or omission of the defendant in violation of said legal
right.[29]
The petition sufficiently states the ultimate facts relied upon by petitioner to
establish his filiation to respondent. Respondent, however, contends that
the allegations in the petition were hearsay as they were not of petitioners
personal knowledge. Such matter is clearly a matter of evidence that
cannot be determined at this point but only during the trial when petitioner
presents his evidence.
In a motion to dismiss a complaint based on lack of cause of action, the

question submitted to the court for determination is the sufficiency of the
allegations made in the complaint to constitute a cause of action and not
whether those allegations of fact are true, for said motion must
hypothetically admit the truth of the facts alleged in the complaint.[30]
The inquiry is confined to the four corners of the complaint, and no
other.[31] The test of the sufficiency of the facts alleged in the complaint is
whether or not, admitting the facts alleged, the court could render a valid
judgment upon the same in accordance with the prayer of the complaint.[32]
If the allegations of the complaint are sufficient in form and substance but
their veracity and correctness are assailed, it is incumbent upon the court
to deny the motion to dismiss and require the defendant to answer and go
to trial to prove his defense. The veracity of the assertions of the parties
can be ascertained at the trial of the case on the merits.[33]
The statement in Herrera v. Alba[34] that there are four significant

procedural aspects in a traditional paternity case which parties have to face
has been widely misunderstood and misapplied in this case. A party is
confronted by these so-called procedural aspects during trial, when the
parties have presented their respective evidence. They are matters of
evidence that cannot be determined at this initial stage of the proceedings,
when only the petition to establish filiation has been filed. The CAs
observation that petitioner failed to establish a prima facie casethe first
procedural aspect in a paternity caseis therefore misplaced. A prima
facie case is built by a partys evidence and not by mere allegations in the
initiatory pleading.
Clearly then, it was also not the opportune time to discuss the lack of
a prima facie case vis--vis the motion for DNA testing since no evidence
has, as yet, been presented by petitioner. More essentially, it is premature
to discuss whether, under the circumstances, a DNA testing order is
warranted considering that no such order has yet been issued by the trial
court. In fact, the latter has just set the said case for hearing.
At any rate, the CAs view that it would be dangerous to allow a DNA testing
without corroborative proof is well taken and deserves the Courts attention.
In light of this observation, we find that there is a need to supplement the
Rule on DNA Evidence to aid the courts in resolving motions for DNA
testing order, particularly in paternity and other filiation cases. We, thus,
address the question of whether a prima facie showing is necessary before
a court can issue a DNA testing order.
The Rule on DNA Evidence was enacted to guide the Bench and the Bar
for the introduction and use of DNA evidence in the judicial system. It
provides the prescribed parameters on the requisite elements for reliability
and validity (i.e., the proper procedures, protocols, necessary laboratory
reports, etc.), the possible sources of error, the available objections to the
admission of DNA test results as evidence as well as the probative value of
DNA evidence. It seeks to ensure that the evidence gathered, using various
methods of DNA analysis, is utilized effectively and properly, [and] shall not
be misused and/or abused and, more importantly, shall continue to ensure
that DNA analysis serves justice and protects, rather than prejudice the
public.[35]
Not surprisingly, Section 4 of the Rule on DNA Evidence merely provides

for conditions that are aimed to safeguard the accuracy and integrity of the
DNA testing. Section 4 states:
SEC. 4. Application for DNA Testing Order. The appropriate court may, at
any time, either motu proprio or on application of any person who has a
legal interest in the matter in litigation, order a DNA testing. Such order
shall issue after due hearing and notice to the parties upon a showing of
the following:
(a) A biological sample exists that is relevant to the case;
(b) The biological sample: (i) was not previously subjected to the type of
DNA testing now requested; or (ii) was previously subjected to DNA testing,
but the results may require confirmation for good reasons;
(c) The DNA testing uses a scientifically valid technique;

(d) The DNA testing has the scientific potential to produce new information
that is relevant to the proper resolution of the case; and
(e) The existence of other factors, if any, which the court may consider as
potentially affecting the accuracy or integrity of the DNA testing.
This Rule shall not preclude a DNA testing, without need of a prior court
order, at the behest of any party, including law enforcement agencies,
before a suit or proceeding is commenced.
This does not mean, however, that a DNA testing order will be issued as a
matter of right if, during the hearing, the said conditions are established.
In some states, to warrant the issuance of the DNA testing order, there
must be a show cause hearing wherein the applicant must first present
sufficient evidence to establish a prima facie case or a reasonable
possibility of paternity or good cause for the holding of the test. [36] In these
states, a court order for blood testing is considered a search, which, under
their Constitutions (as in ours), must be preceded by a finding of probable
cause in order to be valid. Hence, the requirement of a prima facie case, or
reasonable possibility, was imposed in civil actions as a counterpart of a
finding of probable cause. The Supreme Court of Louisiana eloquently
explained
Although a paternity action is civil, not criminal, the constitutional prohibition

against unreasonable searches and seizures is still applicable, and a
proper showing of sufficient justification under the particular factual
circumstances of the case must be made before a court may order a
compulsory blood test. Courts in various jurisdictions have differed
regarding the kind of procedures which are required, but those jurisdictions
have almost universally found that a preliminary showing must be made
before a court can constitutionally order compulsory blood testing in
paternity cases. We agree, and find that, as a preliminary matter, before
the court may issue an order for compulsory blood testing, the moving party
must show that there is a reasonable possibility of paternity. As explained
hereafter, in cases in which paternity is contested and a party to the action
refuses to voluntarily undergo a blood test, a show cause hearing must be
held in which the court can determine whether there is sufficient evidence
to establish a prima facie case which warrants issuance of a court order for
blood testing.[37]
The same condition precedent should be applied in our jurisdiction to

protect the putative father from mere harassment suits. Thus, during the
hearing on the motion for DNA testing, the petitioner must present prima
facie evidence or establish a reasonable possibility of paternity.
Notwithstanding these, it should be stressed that the issuance of a DNA

testing order remains discretionary upon the court. The court may, for
example, consider whether there is absolute necessity for the DNA testing.
If there is already preponderance of evidence to establish paternity and the
DNA test result would only be corroborative, the court may, in its discretion,
disallow a DNA testing.
WHEREFORE, premises considered, the petition is GRANTED. The Court

of Appeals Decision dated September 25, 2009 and Resolution dated
December 17, 2009 are REVERSED and SET ASIDE. The Orders dated
October 20, 2008 and January 19, 2009 of
the Regional Trial Court of Valenzuela City are AFFIRMED.
SO ORDERED.
G.R. No. 110662 August 4, 1994
TERESITA SALCEDO-ORTANEZ, petitioner,

vs.
COURT OF APPEALS, HON. ROMEO F. ZAMORA, Presiding Judge,
Br. 94, Regional Trial Court of Quezon City and RAFAEL S.
ORTANEZ, respondents.
Oscar A. Inocentes & Associates Law Office for petitioner.
Efren A. Santos for private respondent.
PADILLA, J.:
This is a petition for review under Rule 45 of the Rules of Court which
seeks to reverse the decision * of respondent Court of Appeals in CA-G. R.
SP No. 28545 entitled "Teresita Salcedo-Ortanez versus Hon. Romeo F.
Zamora, Presiding Judge, Br. 94, Regional Trial Court of Quezon City and
Rafael S. Ortanez".
The relevant facts of the case are as follows:
On 2 May 1990, private respondent Rafael S. Ortanez filed with the

Regional Trial Court of Quezon City a complaint for annulment of marriage
with damages against petitioner Teresita Salcedo-Ortanez, on grounds of
lack of marriage license and/or psychological incapacity of the petitioner.
The complaint was docketed as Civil Case No. Q-90-5360 and raffled to
Branch 94, RTC of Quezon City presided over by respondent Judge
Romeo F. Zamora.
Private respondent, after presenting his evidence, orally formally offered in

evidence Exhibits "A" to "M".
Among the exhibits offered by private respondent were three (3) cassette
tapes of alleged telephone conversations between petitioner and
unidentified persons.
Petitioner submitted her Objection/Comment to private respondent's oral
offer of evidence on 9 June 1992; on the same day, the trial court admitted
all of private respondent's offered evidence.
A motion for reconsideration from petitioner was denied on 23 June 1992.
A petition for certiorari was then filed by petitioner in the Court of Appeals
assailing the admission in evidence of the aforementioned cassette tapes.
On 10 June 1993, the Court of Appeals rendered judgment which is the

subject of the present petition, which in part reads:
It is much too obvious that the petition will have to fail, for two basic
reasons:
(1) Tape recordings are not inadmissible per se. They and any other variant
thereof can be admitted in evidence for certain purposes, depending on
how they are presented and offered and on how the trial judge utilizes them
in the interest of truth and fairness and the even handed administration of
justice.
(2) A petition for certiorari is notoriously inappropriate to rectify a supposed

error in admitting evidence adduced during trial. The ruling on admissibility
is interlocutory; neither does it impinge on jurisdiction. If it is erroneous, the
ruling should be questioned in the appeal from the judgment on the merits
and not through the special civil action of certiorari. The error, assuming
gratuitously that it exists, cannot be anymore than an error of law, properly
correctible by appeal and not by certiorari. Otherwise, we will have the
sorry spectacle of a case being subject of a counterproductive "ping-pong"
to and from the appellate court as often as a trial court is perceived to have
made an error in any of its rulings with respect to evidentiary matters in the
course of trial. This we cannot sanction.
WHEREFORE, the petition for certiorari being devoid of merit, is hereby

DISMISSED. 1
From this adverse judgment, petitioner filed the present petition for review,
stating:
Grounds for Allowance of the Petition
10. The decision of respondent [Court of Appeals] has no basis in law nor
previous decision of the Supreme Court.
10.1 In affirming the questioned order of respondent judge, the Court of

Appeals has decided a question of substance not theretofore determined
by the Supreme Court as the question of admissibility in evidence of tape
recordings has not, thus far, been addressed and decided squarely by the
Supreme Court.
11. In affirming the questioned order of respondent judge, the Court of

Appeals has likewise rendered a decision in a way not in accord with law
and with applicable decisions of the Supreme Court.
11.1 Although the questioned order is interlocutory in nature, the same can
still be [the] subject of a petition for certiorari. 2
The main issue to be resolved is whether or not the remedy

of certiorari under Rule 65 of the Rules of Court was properly availed of by
the petitioner in the Court of Appeals.
The extraordinary writ of certiorari is generally not available to challenge an

interlocutory order of a trial court. The proper remedy in such cases is an
ordinary appeal from an adverse judgment, incorporating in said appeal the
grounds for assailing the interlocutory order.
However, where the assailed interlocutory order is patently erroneous and

the remedy of appeal would not afford adequate and expeditious relief, the
Court may allow certiorari as a mode of redress. 3
In the present case, the trial court issued the assailed order admitting all of
the evidence offered by private respondent, including tape recordings of
telephone conversations of petitioner with unidentified persons. These tape
recordings were made and obtained when private respondent allowed his
friends from the military to wire tap his home telephone. 4
Rep. Act No. 4200 entitled "An Act to Prohibit and Penalize Wire Tapping
and Other Related Violations of the Privacy of Communication, and for
other purposes" expressly makes such tape recordings inadmissible in
evidence. The relevant provisions of Rep. Act No. 4200 are as follows:
Sec. 1. It shall be unlawful for any person, not being authorized by all the
parties to any private communication or spoken word, to tap any wire or
cable, or by using any other device or arrangement, to secretly overhear,
intercept, or record such communication or spoken word by using a device
commonly known as a dictaphone or dictagraph or detectaphone or walkie-
talkie or tape-recorder, or however otherwise described. . . .
Sec. 4. Any communication or spoken word, or the existence, contents,

substance, purport, or meaning of the same or any part thereof, or any
information therein contained, obtained or secured by any person in
violation of the preceding sections of this Act shall not be admissible in
evidence in any judicial, quasi-judicial, legislative or administrative hearing
or investigation.
Clearly, respondents trial court and Court of Appeals failed to consider the
afore-quoted provisions of the law in admitting in evidence the cassette
tapes in question. Absent a clear showing that both parties to the telephone
conversations allowed the recording of the same, the inadmissibility of the
subject tapes is mandatory under Rep. Act No. 4200.
Additionally, it should be mentioned that the above-mentioned Republic Act

in Section 2 thereof imposes a penalty of imprisonment of not less than six
(6) months and up to six (6) years for violation of said Act. 5
We need not address the other arguments raised by the parties, involving
the applicability of American jurisprudence, having arrived at the conclusion
that the subject cassette tapes are inadmissible in evidence under
Philippine law.
WHEREFORE, the decision of the Court of Appeals in CA-G. R. SP No.

28545 is hereby SET ASIDE. The subject cassette tapes are declared
inadmissible in evidence.
SO ORDERED.
[G.R. No. 107383. February 20, 1996.]
CECILIA ZULUETA, petitioner, vs. COURT OF APPEALS and

ALFREDO MARTIN, respondents.
DECISION
MENDOZA, J.:
This is a petition to review the decision of the Court of Appeals, affirming

the decision of the Regional Trial Court of Manila (Branch X) which ordered
petitioner to return documents and papers taken by her from private
respondents clinic without the latters knowledge and consent.
The facts are as follows:
Petitioner Cecilia Zulueta is the wife of private respondent Alfredo Martin.

On March 26, 1982, petitioner entered the clinic of her husband, a doctor of
medicine, and in the presence of her mother, a driver and private
respondents secretary, forcibly opened the drawers and cabinet in her
husbands clinic and took 157 documents consisting of private
correspondence between Dr. Martin and his alleged paramours, greetings
cards, cancelled checks, diaries, Dr. Martins passport, and photographs.
The documents and papers were seized for use in evidence in a case for
legal separation and for disqualification from the practice of medicine which
petitioner had filed against her husband.
Dr. Martin brought this action below for recovery of the documents and
papers and for damages against petitioner. The case was filed with the
Regional Trial Court of Manila, Branch X, which, after trial, rendered
judgment for private respondent, Dr. Alfredo Martin, declaring him the
capital/exclusive owner of the properties described in paragraph 3 of
plaintiffs Complaint or those further described in the Motion to Return and
Suppress and ordering Cecilia Zulueta and any person acting in her behalf
to immediately return the properties to Dr. Martin and to pay him
P5,000.00, as nominal damages; P5,000.00, as moral damages and
attorneys fees; and to pay the costs of the suit. The writ of preliminary
injunction earlier issued was made final and petitioner Cecilia Zulueta and
her attorneys and representatives were enjoined from using or
submitting/admitting as evidence the documents and papers in question.
On appeal, the Court of Appeals affirmed the decision of the Regional Trial
Court. Hence this petition.
There is no question that the documents and papers in question belong to

private respondent, Dr. Alfredo Martin, and that they were taken by his wife,
the herein petitioner, without his knowledge and consent. For that reason,
the trial court declared the documents and papers to be properties of
private respondent, ordered petitioner to return them to private respondent
and enjoined her from using them in evidence. In appealing from the
decision of the Court of Appeals affirming the trial courts decision,
petitioners only ground is that in Alfredo Martin v. Alfonso Felix, Jr.,1 this
Court ruled that the documents and papers (marked as Annexes A-i to J-7
of respondents comment in that case) were admissible in evidence and,
therefore, their use by petitioners attorney, Alfonso Felix, Jr., did not
constitute malpractice or gross misconduct. For this reason it is contended
that the Court of Appeals erred in affirming the decision of the trial court
instead of dismissing private respondents complaint.
Petitioners contention has no merit. The case against Atty. Felix, Jr. was for
disbarment. Among other things, private respondent, Dr. Alfredo Martin, as
complainant in that case, charged that in using the documents in evidence,
Atty. Felix, Jr. committed malpractice or gross misconduct because of the
injunctive order of the trial court. In dismissing the complaint against Atty.
Felix, Jr., this Court took note of the following defense of Atty. Felix, Jr.
which it found to be impressed with merit:2
On the alleged malpractice or gross misconduct of respondent [Alfonso

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

charge of violating the writ of preliminary injunction issued by the trial court,
it was only because, at the time he used the documents and papers,
enforcement of the order of the trial court was temporarily restrained by this
Court. The TRO issued by this Court was eventually lifted as the petition for
certiorari filed by petitioner against the trial courts order was dismissed and,
therefore, the prohibition against the further use of the documents and
papers became effective again.
Indeed the documents and papers in question are inadmissible in evidence.

The constitutional injunction declaring the privacy of communication and
correspondence [to be] inviolable3 is no less applicable simply because it is
the wife (who thinks herself aggrieved by her husbands infidelity) who is the
party against whom the constitutional provision is to be enforced. The only
exception to the prohibition in the Constitution is if there is a lawful order
[from a] court or when public safety or order requires otherwise, as
prescribed by law.4 Any violation of this provision renders the evidence
obtained inadmissible for any purpose in any proceeding.5
The intimacies between husband and wife do not justify any one of them in
breaking the drawers and cabinets of the other and in ransacking them for
any telltale evidence of marital infidelity. A person, by contracting marriage,
does not shed his/her integrity or his right to privacy as an individual and
the constitutional protection is ever available to him or to her.
The law insures absolute freedom of communication between the spouses

by making it privileged. Neither husband nor wife may testify for or against
the other without the consent of the affected spouse while the marriage
subsists.6 Neither may be examined without the consent of the other as to
any communication received in confidence by one from the other during the
marriage, save for specified exceptions.7 But one thing is freedom of
communication; quite another is a compulsion for each one to share what
one knows with the other. And this has nothing to do with the duty of fidelity
that each owes to the other.
WHEREFORE, the petition for review is DENIED for lack of merit.
SO ORDERED.
[G.R. No. 127685. July 23, 1998]
BLAS F. OPLE, petitioner, vs. RUBEN D. TORRES, ALEXANDER

AGUIRRE, HECTOR VILLANUEVA, CIELITO HABITO, ROBERT
BARBERS, CARMENCITA REODICA, CESAR SARINO, RENATO
VALENCIA, TOMAS P. AFRICA, HEAD OF THE NATIONAL COMPUTER
CENTER and CHAIRMAN OF THE COMMISSION ON
AUDIT, respondents.
DECISION
PUNO, J.:
The petition at bar is a commendable effort on the part of Senator Blas F.

Ople to prevent the shrinking of the right to privacy, which the revered Mr.
Justice Brandeis considered as "the most comprehensiveof rights and the
right most valued by civilized men."[1] Petitioner Ople prays that we
invalidate Administrative Order No. 308 entitled "Adoption of a National
Computerized Identification Reference System" on two important
constitutional grounds, viz: one, it is a usurpation of the power of Congress
to legislate, and two, it impermissibly intrudes on our citizenry's protected
zone of privacy. We grant the petition for the rights sought to be vindicated
by the petitioner need stronger barriers against further erosion.
A.O. No. 308 was issued by President Fidel V. Ramos on December 12,
1996 and reads as follows:
"ADOPTION OF A NATIONAL COMPUTERIZED IDENTIFICATION

REFERENCE SYSTEM
WHEREAS, there is a need to provide Filipino citizens and foreign

residents with the facility to conveniently transact business with basic
service and social security providers and other government
instrumentalities;
WHEREAS, this will require a computerized system to properly and

efficiently identify persons seeking basic services on social security and
reduce, if not totally eradicate, fraudulent transactions and
misrepresentations;
WHEREAS, a concerted and collaborative effort among the various basic

services and social security providing agencies and other government
instrumentalities is required to achieve such a system;
NOW, THEREFORE, I, FIDEL V. RAMOS, President of the Republic of the

Philippines, by virtue of the powers vested in me by law, do hereby direct
the following:
SECTION 1. Establishment of a National Computerized Identification
Reference System. A decentralized Identification Reference System among
the key basic services and social security providers is hereby established.
SEC. 2 Inter-Agency Coordinating Committee. An Inter-Agency

Coordinating Committee (IACC) to draw-up the implementing guidelines
and oversee the implementation of the System is hereby created, chaired
by the Executive Secretary, with the following as members:
Head, Presidential Management Staff
Secretary, National Economic Development Authority
Secretary, Department of the Interior and
Local Government
Secretary, Department of Health
Administrator, Government Service Insurance
System,
Administrator, Social Security System, Administrator, National

Statistics Office Managing Director, National Computer Center.
SEC. 3. Secretariat. The National Computer Center (NCC) is hereby

designated as secretariat to the IACC and as such shall provide
administrative and technical support to the IACC.
SEC. 4. Linkage Among Agencies. The Population Reference Number

(PRN) generated by the NSO shall serve as the common reference number
to establish a linkage among concerned agencies. The IACC Secretariat
shall coordinate with the different Social Security and Services Agencies to
establish the standards in the use of Biometrics Technology and in
computer application designs of their respective systems.
SEC. 5. Conduct of Information Dissemination Campaign. The Office of the

Press Secretary, in coordination with the National Statistics Office, the
GSIS and SSS as lead agencies and other concerned agencies shall
undertake a massive tri-media information dissemination campaign to
educate and raise public awareness on the importance and use of the PRN
and the Social Security Identification Reference.
SEC. 6. Funding. The funds necessary for the implementation of the

system shall be sourced from the respective budgets of the concerned
agencies.
SEC. 7. Submission of Regular Reports. The NSO, GSIS and SSS shall
submit regular reports to the Office of the President, through the IACC, on
the status of implementation of this undertaking.
SEC. 8. Effectivity. This Administrative Order shall take effect immediately.
DONE in the City of Manila, this 12th day of December in the year of Our
Lord, Nineteen Hundred and Ninety-Six.
(SGD.) FIDEL V. RAMOS"
A.O. No. 308 was published in four newspapers of general circulation on

January 22, 1997 and January 23, 1997. On January 24, 1997, petitioner
filed the instant petition against respondents, then Executive Secretary
Ruben Torres and the heads of the government agencies, who as
members of the Inter-Agency Coordinating Committee, are charged with
the implementation of A.O. No. 308. On April 8, 1997, we issued a
temporary restraining order enjoining its implementation.
Petitioner contends:
"A. THE ESTABLISHMENT OF A NATIONAL COMPUTERIZED

IDENTIFICATION REFERENCE SYSTEM REQUIRES A LEGISLATIVE
ACT. THE ISSUANCE OF A.O. NO. 308 BY THE PRESIDENT OF THE
REPUBLIC OF THE PHILIPPINES IS, THEREFORE, AN
UNCONSTITUTIONAL USURPATION OF THE LEGISLATIVE POWERS
OF THE CONGRESS OF THE REPUBLIC OF THE PHILIPPINES.
B. THE APPROPRIATION OF PUBLIC FUNDS BY THE PRESIDENT FOR

THE IMPLEMENTATION OF A.O. NO. 308 IS AN UNCONSTITUTIONAL
USURPATION OF THE EXCLUSIVE RIGHT OF CONGRESS TO
APPROPRIATE PUBLIC FUNDS FOR EXPENDITURE.
C. THE IMPLEMENTATION OF A.O. NO. 308 INSIDIOUSLY LAYS THE

GROUNDWORK FOR A SYSTEM WHICH WILL VIOLATE THE BILL OF
RIGHTS ENSHRINED IN THE CONSTITUTION."[2]
Respondents counter-argue:
A. THE INSTANT PETITION IS NOT A JUSTICIABLE CASE AS WOULD

WARRANT A JUDICIAL REVIEW;
B. A.O. NO. 308 [1996] WAS ISSUED WITHIN THE EXECUTIVE AND
ADMINISTRATIVE POWERS OF THE PRESIDENT WITHOUT
ENCROACHING ON THE LEGISLATIVE POWERS OF CONGRESS;
C. THE FUNDS NECESSARY FOR THE IMPLEMENTATION OF THE

IDENTIFICATION REFERENCE SYSTEM MAY BE SOURCED FROM
THE BUDGETS OF THE CONCERNED AGENCIES;
D. A.O. NO. 308 [1996] PROTECTS AN INDIVIDUAL'S INTEREST IN

PRIVACY.[3]
We now resolve.
As is usual in constitutional litigation, respondents raise the threshold

issues relating to the standing to sue of the petitioner and the justiciability
of the case at bar. More specifically, respondents aver that petitioner has
no legal interest to uphold and that the implementing rules of A.O. No. 308
have yet to be promulgated.
These submissions do not deserve our sympathetic ear. Petitioner Ople is

a distinguished member of our Senate. As a Senator, petitioner is
possessed of the requisite standing to bring suit raising the issue that the
issuance of A.O. No. 308 is a usurpation of legislative power.[4] As taxpayer
and member of the Government Service Insurance System (GSIS),
petitioner can also impugn the legality of the misalignment of public funds
and the misuse of GSIS funds to implement A.O. No. 308.[5]
The ripeness for adjudication of the petition at bar is not affected by the fact
that the implementing rules of A.O. No. 308 have yet to be
promulgated. Petitioner Ople assails A.O. No. 308 as invalid per se and as
infirmed on its face. His action is not premature for the rules yet to be
promulgated cannot cure its fatal defects. Moreover, the respondents
themselves have started the implementation of A.O. No. 308 without
waiting for the rules. As early as January 19, 1997, respondent Social
Security System (SSS) caused the publication of a notice to bid for the
manufacture of the National Identification (ID) card.[6]Respondent Executive
Secretary Torres has publicly announced that representatives from the
GSIS and the SSS have completed the guidelines for the national
identification system.[7] All signals from the respondents show their
unswerving will to implement A.O. No. 308 and we need not wait for the
formality of the rules to pass judgment on its constitutionality. In this light,
the dissenters insistence that we tighten the rule on standing is not a
commendable stance as its result would be to throttle an important
constitutional principle and a fundamental right.
II
We now come to the core issues. Petitioner claims that A.O. No. 308 is
not a mere administrative order but a law and hence, beyond the
power of the President to issue. He alleges that A.O. No. 308 establishes
a system of identification that is all-encompassing in scope, affects the life
and liberty of every Filipino citizen and foreign resident, and more
particularly, violates their right to privacy.
Petitioner's sedulous concern for the Executive not to trespass on the

lawmaking domain of Congress is understandable. The blurring of the
demarcation line between the power of the Legislature to make laws and
the power of the Executive to execute laws will disturb their delicate
balance of power and cannot be allowed. Hence, the exercise by one
branch of government of power belonging to another will be given
a stricter scrutiny by this Court.
The line that delineates Legislative and Executive power is not

indistinct. Legislative power is "the authority, under the Constitution, to
make laws, and to alter and repeal them."[8] The Constitution, as the will of
the people in their original, sovereign and unlimited capacity, has vested
this power in the Congress of the Philippines.[9] The grant of legislative
power to Congress is broad, general and comprehensive.[10] The legislative
body possesses plenary power for all purposes of civil government.[11] Any
power, deemed to be legislative by usage and tradition, is necessarily
possessed by Congress, unless the Constitution has lodged it
elsewhere.[12] In fine, except as limited by the Constitution, either expressly
or impliedly, legislative power embraces all subjects and extends to matters
of general concern or common interest.[13]
While Congress is vested with the power to enact laws, the President
executes the laws.[14] The executive power is vested in the President.[15] It
is generally defined as the power to enforce and administer the laws.[16] It is
the power of carrying the laws into practical operation and enforcing their
due observance.[17]
As head of the Executive Department, the President is the Chief Executive.

He represents the government as a whole and sees to it that all laws are
enforced by the officials and employees of his department.[18] He has
control over the executive department, bureaus and offices. This means
that he has the authority to assume directly the functions of the executive
department, bureau and office, or interfere with the discretion of its
officials.[19] Corollary to the power of control, the President also has the duty
of supervising the enforcement of laws for the maintenance of general
peace and public order.Thus, he is granted administrative power over
bureaus and offices under his control to enable him to discharge his duties
effectively.[20]
Administrative power is concerned with the work of applying policies

and enforcing orders as determined by proper governmental
organs.[21] It enables the President to fix a uniform standard of
administrative efficiency and check the official conduct of his
agents.[22] To this end, he can issue administrative orders, rules and
regulations.
Prescinding from these precepts, we hold that A.O. No. 308 involves a
subject that is not appropriate to be covered by an administrative
order. An administrative order is:
"Sec. 3. Administrative Orders.-- Acts of the President which relate to

particular aspects of governmental operation in pursuance of his duties as
administrative head shall be promulgated in administrative orders."[23]
An administrative order is an ordinance issued by the President which

relates to specific aspects in the administrative operation of government. It
must be in harmony with the law and should be for the sole purpose
of implementing the law and carrying out the legislative policy.[24] We
reject the argument that A.O. No. 308 implements the legislative
policy of the Administrative Code of 1987. The Code is a general
law and "incorporates in a unified document the major structural, functional
and procedural principles of governance"[25] and "embodies changes in
administrative structures and procedures designed to serve the
people."[26] The Code is divided into seven (7) Books: Book I deals with
Sovereignty and General Administration, Book II with the Distribution of
Powers of the three branches of Government, Book III on the Office of the
President, Book IV on the Executive Branch, Book V on the Constitutional
Commissions, Book VI on National Government Budgeting, and Book VII
on Administrative Procedure. These Books contain provisions on the
organization, powers and general administration of the executive,
legislative and judicial branches of government, the organization and
administration of departments, bureaus and offices under the executive
branch, the organization and functions of the Constitutional Commissions
and other constitutional bodies, the rules on the national government
budget, as well as guidelines for the exercise by administrative agencies of
quasi-legislative and quasi-judicial powers. The Code covers both the
internal administration of government, i.e, internal organization, personnel
and recruitment, supervision and discipline, and the effects of the functions
performed by administrative officials on private individuals or parties
outside government.[27]
It cannot be simplistically argued that A.O. No. 308 merely implements the
Administrative Code of 1987. It establishes for the first time a National
Computerized Identification Reference System. Such a System requires a
delicate adjustment of various contending state policies-- the primacy of
national security, the extent of privacy interest against dossier-gathering by
government, the choice of policies, etc.Indeed, the dissent of Mr. Justice
Mendoza states that the A.O. No. 308 involves the all-important freedom of
thought. As said administrative order redefines the parameters of some
basic rights of our citizenry vis-a-vis the State as well as the line that
separates the administrative power of the President to make rules and the
legislative power of Congress, it ought to be evident that it deals with a
subject that should be covered by law.
Nor is it correct to argue as the dissenters do that A.O. No. 308 is not a law
because it confers no right, imposes no duty, affords no protection, and
creates no office. Under A.O. No. 308, a citizen cannot transact business
with government agencies delivering basic services to the people without
the contemplated identification card. No citizen will refuse to get this
identification card for no one can avoid dealing with government. It is thus
clear as daylight that without the ID, a citizen will have difficulty exercising
his rights and enjoying his privileges. Given this reality, the contention that
A.O. No. 308 gives no right and imposes no duty cannot stand.
Again, with due respect, the dissenting opinions unduly expand the limits of
administrative legislation and consequently erodes the plenary power of
Congress to make laws. This is contrary to the established approach
defining the traditional limits of administrative legislation. As well stated by
Fisher: "x x x Many regulations however, bear directly on the public. It
is here that administrative legislation must be restricted in its scope
and application. Regulations are not supposed to be a substitute for
the general policy-making that Congress enacts in the form of a
public law.Although administrative regulations are entitled to respect,
the authority to prescribe rules and regulations is not an independent
source of power to make laws."[28]
III
Assuming, arguendo, that A.O. No. 308 need not be the subject of a
law, still it cannot pass constitutional
muster as an administrative legislation because
facially it violates the right toprivacy. The essence of privacy is the "right
to be let alone."[29] In the 1965 case of Griswold v. Connecticut,[30] the
United States Supreme Court gave more substance to the right of privacy
when it ruled that the right has a constitutional foundation. It held that there
is a right of privacy which can be found within the penumbras of the First,
Third, Fourth, Fifth and Ninth Amendments,[31] viz:
"Specific guarantees in the Bill of Rights have penumbras formed by

emanations from these guarantees that help give them life and substance x
x x. Various guarantees create zones of privacy. The right of association
contained in the penumbra of the First Amendment is one, as we have
seen. The Third Amendment in its prohibition against the quartering of
soldiers `in any house' in time of peace without the consent of the owner is
another facet of that privacy. The Fourth Amendment explicitly affirms the
`right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures.' The Fifth
Amendment in its Self-Incrimination Clause enables the citizen to create a
zone of privacy which government may not force him to surrender to his
detriment. The Ninth Amendment provides: `The enumeration in the
Constitution, of certain rights, shall not be construed to deny or disparage
others retained by the people.'"
In the 1968 case of Morfe v. Mutuc,[32] we adopted the Griswold ruling

that there is a constitutional right to privacy. Speaking thru Mr. Justice,
later Chief Justice, Enrique Fernando, we held:
"xxx
The Griswold case invalidated a Connecticut statute which made the use of
contraceptives a criminal offense on the ground of its amounting to an
unconstitutional invasion of the right of privacy of married persons; rightfully
it stressed "a relationship lying within the zone of privacy created by several
fundamental constitutional guarantees." It has wider implications
though. The constitutional right to privacy has come into its own.
So it is likewise in our jurisdiction. The right to privacy as such is accorded

recognition independently of its identification with liberty; in itself, it is fully
deserving of constitutional protection. The language of Prof. Emerson is
particularly apt: 'The concept of limited government has always included
the idea that governmental powers stop short of certain intrusions into the
personal life of the citizen. This is indeed one of the basic distinctions
between absolute and limited government. Ultimate and pervasive control
of the individual, in all aspects of his life, is the hallmark of the absolute
state. In contrast, a system of limited government safeguards a private
sector, which belongs to the individual, firmly distinguishing it from the
public sector, which the state can control. Protection of this private sector--
protection, in other words, of the dignity and integrity of the individual--has
become increasingly important as modern society has developed. All the
forces of a technological age --industrialization, urbanization, and
organization-- operate to narrow the area of privacy and facilitate intrusion
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.'"
Indeed, if we extend our judicial gaze we will find that the right of
privacy is recognized and enshrined in several provisions of our
Constitution.[33] It is expressly recognized in Section 3(1) of the Bill of
Rights:
"Sec. 3. (1) The privacy of communication and correspondence shall be

inviolable except upon lawful order of the court, or when public safety or
order requires otherwise as prescribed by law."
Other facets of the right to privacy are protected in various provisions of
the Bill of Rights, viz:[34]
"Sec. 1. No person shall be deprived of life, liberty, or property without due

process of law, nor shall any person be denied the equal protection of the
laws.
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.
x x x.
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.
x x x.
Sec. 8. The right of the people, including those employed in the public and
private sectors, to form unions, associations, or societies for purposes not
contrary to law shall not be abridged.
Sec. 17. No person shall be compelled to be a witness against himself."
Zones of privacy are likewise recognized and protected in our laws.

The Civil Code provides that "[e]very person shall respect the dignity,
personality, privacy and peace of mind of his neighbors and other persons"
and punishes as actionable torts several acts by a person of meddling and
prying into the privacy of another.[35] It also holds a public officer or
employee or any private individual liable for damages for any violation of
the rights and liberties of another person,[36] and recognizes the privacy of
letters and other private communications.[37] The Revised Penal
Code makes a crime the violation of secrets by an officer,[38] the revelation
of trade and industrial secrets,[39] and trespass to dwelling.[40] Invasion of
privacy is an offense in special laws like the Anti-Wiretapping Law,[41] the
Secrecy of Bank Deposit Act[42] and the Intellectual Property
Code.[43] The Rules of Court on privileged communication likewise
recognize the privacy of certain information.[44]
Unlike the dissenters, we prescind from the premise that the right to
privacy is a fundamental right guaranteed by the Constitution, hence,
it is the burden of government to show that A.O. No. 308 is justified by
some compelling state interest and that it is narrowly drawn. A.O. No.
308 is predicated on two considerations: (1) the need to provide our
citizens and foreigners with the facility to conveniently transact business
with basic service and social security providers and other government
instrumentalities and (2) the need to reduce, if not totally eradicate,
fraudulent transactions and misrepresentations by persons seeking basic
services. It is debatable whether these interests are compelling enough to
warrant the issuance of A.O. No. 308. But what is not arguable is the
broadness, the vagueness, the overbreadth of A.O. No. 308 which if
implemented will put our people's right to privacy in clear and present
danger.
The heart of A.O. No. 308 lies in its Section 4 which provides for a
Population Reference Number (PRN) as a "common reference number to
establish a linkage among concerned agencies" through the use of
"Biometrics Technology" and "computer application designs."
Biometry or biometrics is "the science of the application of statistical

methods to biological facts; a mathematical analysis of biological
data."[45] The term "biometrics" has now evolved into a broad category
of technologies which provide precise confirmation of an individual's
identity through the use of the individual's own physiological and
behavioral characteristics.[46] A physiological characteristic is a
relatively stable physical characteristic such as a fingerprint, retinal scan,
hand geometry or facial features. A behavioral characteristic is
influenced by the individual's personality and includes voice print, signature
and keystroke.[47] Most biometric identification systems use a card or
personal identification number (PIN) for initial identification. The biometric
measurement is used to verify that the individual holding the card or
entering the PIN is the legitimate owner of the card or PIN.[48]
A most common form of biological encoding is finger-scanning where

technology scans a fingertip and turns the unique pattern therein into an
individual number which is called a biocrypt. The biocrypt is stored in
computer data banks[49] and becomes a means of identifying an individual
using a service. This technology requires one's fingertip to be scanned
every time service or access is provided.[50] Another method is the retinal
scan. Retinal scan technology employs optical technology to map the
capillary pattern of the retina of the eye. This technology produces a unique
print similar to a finger print.[51] Another biometric method is known as
the "artificial nose." This device chemically analyzes the unique
combination of substances excreted from the skin of people.[52] The latest
on the list of biometric achievements is the thermogram. Scientists have
found that by taking pictures of a face using infra-red cameras, a unique
heat distribution pattern is seen. The different densities of bone, skin, fat
and blood vessels all contribute to the individual's personal "heat
signature."[53]
In the last few decades, technology has progressed at a galloping

rate. Some science fictions are now science facts. Today, biometrics is
no longer limited to the use of fingerprint to identify an individual. It is
a new science that uses various technologies in encoding any and all
biological characteristics of an individual for identification. It is noteworthy
that A.O. No. 308 does not state what specific biological
characteristics and what particular biometrics technology shall be
used to identify people who will seek its coverage. Considering the
banquet of options available to the implementors of A.O. No. 308, the
fear that it threatens the right to privacy of our people is not
groundless.
A.O. No. 308 should also raise our antennas for a further look will
show that it does not state whether encoding of data is limited to
biological information alone for identification purposes. In fact, the
Solicitor General claims that the adoption of the Identification Reference
System will contribute to the "generation of population data for
development planning."[54] This is an admission that the PRN will not be
used solely for identification but for the generation of other data with remote
relation to the avowed purposes of A.O. No. 308. Clearly, the
indefiniteness of A.O. No. 308 can give the government the roving
authority to store and retrieve information for a purpose other than
the identification of the individual through his PRN.
The potential for misuse of the data to be gathered under A.O. No. 308
cannot be underplayed as the dissenters do. Pursuant to said
administrative order, an individual must present his PRN everytime he
deals with a government agency to avail of basic services and security. His
transactions with the government agency will necessarily be recorded--
whether it be in the computer or in the documentary file of the agency. The
individual's file may include his transactions for loan availments, income tax
returns, statement of assets and liabilities, reimbursements for medication,
hospitalization, etc.The more frequent the use of the PRN, the better the
chance of building a huge and formidable information base through
the electronic linkage of the files.[55] The data may be gathered for
gainful and useful government purposes; but the existence of this
vast reservoir of personal information constitutes a covert invitation
to misuse, a temptation that may be too great for some of our
authorities to resist.[56]
We can even grant, arguendo, that the computer data file will be limited to
the name, address and other basic personal information about the
individual.[57] Even that hospitable assumption will not save A.O. No. 308
from constitutional infirmity for again said order does not tell us in clear
and categorical terms how these information gathered shall be
handled. It does not provide who shall control and access the data,
under what circumstances and for what purpose. These factors are
essential to safeguard the privacy and guaranty the integrity of the
information.[58] Well to note, the computer linkage gives other government
agencies access to the information. Yet, there are no controls to guard
against leakage of information. When the access code of the control
programs of the particular computer system is broken, an intruder, without
fear of sanction or penalty, can make use of the data for whatever purpose,
or worse, manipulate the data stored within the system.[59]
It is plain and we hold that A.O. No. 308 falls short of assuring that personal
information which will be gathered about our people will only be processed
for unequivocally specified purposes.[60] The lack of proper safeguards
in this regard of A.O. No. 308 may interfere with the individual's liberty of
abode and travel by enabling authorities to track down his movement; it
may also enable unscrupulous persons to access confidential information
and circumvent the right against self-incrimination; it may pave the way for
"fishing expeditions" by government authorities and evade the right against
unreasonable searches and seizures.[61] The possibilities of abuse and
misuse of the PRN, biometrics and computer technology are
accentuated when we consider that the individual lacks control over
what can be read or placed on his ID, much less verify the
correctness of the data encoded.[62] They threaten the very abuses
that the Bill of Rights seeks to prevent.[63]
The ability of a sophisticated data center to generate a

comprehensive cradle-to-grave dossier on an individual and transmit it
over a national network is one of the most graphic threats of the computer
revolution.[64] The computer is capable of producing a comprehensive
dossier on individuals out of information given at different times and for
varied purposes.[65] It can continue adding to the stored data and keeping
the information up to date. Retrieval of stored data is simple. When
information of a privileged character finds its way into the computer, it can
be extracted together with other data on the subject.[66]Once extracted, the
information is putty in the hands of any person. The end of privacy begins.
Though A.O. No. 308 is undoubtedly not narrowly drawn, the dissenting
opinions would dismiss its danger to the right to privacy as speculative and
hypothetical. Again, we cannot countenance such a laidback posture. The
Court will not be true to its role as the ultimate guardian of the people's
liberty if it would not immediately smother the sparks that endanger their
rights but would rather wait for the fire that could consume them.
We reject the argument of the Solicitor General that an individual has

a reasonable expectation of privacy with regard to the National ID and
the use of biometrics technology as it stands on quicksand. 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) whether this expectation is one that society recognizes
as reasonable.[67] The factual circumstances of the case determines the
reasonableness of the expectation.[68] However, other factors, such as
customs, physical surroundings and practices of a particular activity, may
serve to create or diminish this expectation.[69] The use of biometrics and
computer technology in A.O. No. 308 does not assure the individual of a
reasonable expectation of privacy.[70] As technology advances, the level of
reasonably expected privacy decreases.[71] The measure of protection
granted by the reasonable expectation diminishes as relevant technology
becomes more widely accepted.[72] The security of the computer data file
depends not only on the physical inaccessibility of the file but also on the
advances in hardware and software computer technology. A.O. No. 308 is
so widely drawn that a minimum standard for a reasonable
expectation of privacy, regardless of technology used, cannot be
inferred from its provisions.
The rules and regulations to be drawn by the IACC cannot remedy

this fatal defect. Rules and regulations merely implement the policy of the
law or order. On its face, A.O. No. 308 gives the IACC virtually unfettered
discretion to determine the metes and bounds of the ID System.
Nor do our present laws provide adequate safeguards for

a reasonable expectation of privacy. Commonwealth Act No. 591
penalizes the disclosure by any person of data furnished by the individual
to the NSO with imprisonment and fine.[73] Republic Act No. 1161 prohibits
public disclosure of SSS employment records and reports.[74] These laws,
however, apply to records and data with the NSO and the SSS. It is not
clear whether they may be applied to data with the other government
agencies forming part of the National ID System. The need to clarify the
penal aspect of A.O. No. 308 is another reason why its enactment should
be given to Congress.
Next, the Solicitor General urges us to validate A.O. No. 308's abridgment
of the right of privacy by using the rational relationship test.[75] He
stressed that the purposes of A.O. No. 308 are: (1) to streamline and speed
up the implementation of basic government services, (2) eradicate fraud by
avoiding duplication of services, and (3) generate population data for
development planning. He concludes that these purposes justify the
incursions into the right to privacy for the means are rationally related to the
end.[76]
We are not impressed by the argument. In Morfe v. Mutuc,[77] we upheld

the constitutionality of R.A. 3019, the Anti-Graft and Corrupt Practices Act,
as a valid police power measure. We declared that the law, in compelling a
public officer to make an annual report disclosing his assets and liabilities,
his sources of income and expenses, did not infringe on the individual's
right to privacy. The law was enacted to promote morality in public
administration by curtailing and minimizing the opportunities for official
corruption and maintaining a standard of honesty in the public service.[78]
The same circumstances do not obtain in the case at bar. For one, R.A.
3019 is a statute, not an administrative order. Secondly, R.A. 3019 itself is
sufficiently detailed. The law is clear on what practices were prohibited and
penalized, and it was narrowly drawn to avoid abuses. In the case at bar,
A.O. No. 308 may have been impelled by a worthy purpose, but, it cannot
pass constitutional scrutiny for it is not narrowly drawn. And we now hold
that when the integrity of a fundamental right is at stake, this court
will give the challenged law, administrative order, rule or regulation a
stricter scrutiny. It will not do for the authorities to invoke the
presumption of regularity in the performance of official duties. Nor is
it enough for the authorities to prove that their act is not irrational for
a basic right can be diminished, if not defeated, even when the
government does not act irrationally. They must satisfactorily show
the presence of compelling state interests and that the law, rule, or
regulation is narrowly drawn to preclude abuses. This approach is
demanded by the 1987 Constitution whose entire matrix is designed to
protect human rights and to prevent authoritarianism. In case of doubt, the
least we can do is to lean towards the stance that will not put in danger the
rights protected by the Constitution.
The case of Whalen v. Roe[79] cited by the Solicitor General is also off-line.
In Whalen, the United States Supreme Court was presented with the
question of whether the State of New York could keep a centralized
computer record of the names and addresses of all persons who obtained
certain drugs pursuant to a doctor's prescription. The New York State
Controlled Substances Act of 1972 required physicians to identify patients
obtaining prescription drugs enumerated in the statute, i.e., drugs with a
recognized medical use but with a potential for abuse, so that the names
and addresses of the patients can be recorded in a centralized computer
file of the State Department of Health. The plaintiffs, who were patients and
doctors, claimed that some people might decline necessary medication
because of their fear that the computerized data may be readily available
and open to public disclosure; and that once disclosed, it may stigmatize
them as drug addicts.[80] The plaintiffs alleged that the statute invaded a
constitutionally protected zone of privacy, i.e, the individual interest in
avoiding disclosure of personal matters, and the interest in independence
in making certain kinds of important decisions. The U.S. Supreme Court
held that while an individual's interest in avoiding disclosure of personal
matters is an aspect of the right to privacy, the statute did not pose a
grievous threat to establish a constitutional violation. The Court found that
the statute was necessary to aid in the enforcement of laws designed to
minimize the misuse of dangerous drugs. The patient-identification
requirement was a product of an orderly and rational legislative
decision made upon recommendation by a specially appointed
commission which held extensive hearings on the matter. Moreover,
the statute was narrowly drawn and contained numerous safeguards
against indiscriminate disclosure. The statute laid down the procedure
and requirements for the gathering, storage and retrieval of the information.
It enumerated who were authorized to access the data. It also prohibited
public disclosure of the data by imposing penalties for its violation. In view
of these safeguards, the infringement of the patients' right to privacy was
justified by a valid exercise of police power. As we discussed above, A.O.
No. 308 lacks these vital safeguards.
Even while we strike down A.O. No. 308, we spell out in neon that the
Court is not per se against the use of computers to accumulate, store,
process, retrieve and transmit data to improve our bureaucracy.
Computers work wonders to achieve the efficiency which both government
and private industry seek. Many information systems in different countries
make use of the computer to facilitate important social objectives, such as
better law enforcement, faster delivery of public services, more efficient
management of credit and insurance programs, improvement of
telecommunications and streamlining of financial activities.[81] Used wisely,
data stored in the computer could help good administration by making
accurate and comprehensive information for those who have to frame
policy and make key decisions.[82] The benefits of the computer
has revolutionized information technology. It developed the
internet,[83] introduced the concept of cyberspace[84] and the information
superhighway where the individual, armed only with his personal computer,
may surf and search all kinds and classes of information from libraries and
databases connected to the net.
In no uncertain terms, we also underscore that the right to privacy

does not bar all incursions into individual privacy. The right is not
intended to stifle scientific and technological advancements that
enhance public service and the common good. It merely requires that
the law be narrowly focused[85] and a compelling interest justify such
intrusions.[86] Intrusions into the right must be accompanied by proper
safeguards and well-defined standards to prevent unconstitutional
invasions. We reiterate that any law or order that invades individual privacy
will be subjected by this Court to strict scrutiny. The reason for this stance
was laid down in Morfe v. Mutuc, to wit:
"The concept of limited government has always included the idea that
governmental powers stop short of certain intrusions into the personal life
of the citizen. This is indeed one of the basic distinctions between absolute
and limited government. Ultimate and pervasive control of the individual, in
all aspects of his life, is the hallmark of the absolute state. In contrast, a
system of limited government safeguards a private sector, which belongs to
the individual, firmly distinguishing it from the public sector, which the state
can control. Protection of this private sector-- protection, in other words, of
the dignity and integrity of the individual-- has become increasingly
important as modern society has developed. All the forces of a
technological age-- industrialization, urbanization, and organization--
operate to narrow the area of privacy and facilitate intrusion 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."[87]
IV
The right to privacy is one of the most threatened rights of man living
in a mass society. The threats emanate from various sources--
governments, journalists, employers, social scientists, etc.[88] In the case at
bar, the threat comes from the executive branch of government which by
issuing A.O. No. 308 pressures the people to surrender their privacy by
giving information about themselves on the pretext that it will facilitate
delivery of basic services. Given the record-keeping power of the
computer, only the indifferent will fail to perceive the danger that A.O.
No. 308 gives the government the power to compile a devastating
dossier against unsuspecting citizens. It is timely to take note of the
well-worded warning of Kalvin, Jr., "the disturbing result could be that
everyone will live burdened by an unerasable record of his past and his
limitations. In a way, the threat is that because of its record-keeping, the
society will have lost its benign capacity to forget."[89] Oblivious to this
counsel, the dissents still say we should not be too quick in labelling the
right to privacy as a fundamental right. We close with the statement that the
right to privacy was not engraved in our Constitution for flattery.
IN VIEW WHEREOF, the petition is granted and Administrative Order No.
308 entitled "Adoption of a National Computerized Identification Reference
System" declared null and void for being unconstitutional.
SO ORDERED.
KILUSANG MAYO UNO, G.R. No. 167798
NATIONAL FEDERATION OF
LABOR UNIONS-KILUSANG
MAYO UNO (NAFLU-KMU),
JOSELITO V. USTAREZ,
EMILIA P. DAPULANG,
SALVADOR T. CARRANZA,
MARTIN T. CUSTODIO, JR. and
ROQUE M. TAN,
Petitioners,
- versus -
THE DIRECTOR-GENERAL,
NATIONAL ECONOMIC
DEVELOPMENT AUTHORITY,
and THE SECRETARY,
DEPARTMENT OF BUDGET and

MANAGEMENT,
Respondents.
DECISION
CARPIO, J.:
This case involves two consolidated petitions for certiorari, prohibition, and
mandamus under Rule 65 of the Rules of Court, seeking the nullification of
Executive Order No. 420 (EO 420) on the ground that it is unconstitutional.
EO 420, issued by President Gloria Macapagal-Arroyo on 13 April 2005,

reads:
REQUIRING ALL GOVERNMENT AGENCIES AND GOVERNMENT-

OWNED AND CONTROLLED CORPORATIONS TO STREAMLINE AND
HARMONIZE THEIR IDENTIFICATION (ID) SYSTEMS, AND
AUTHORIZING FOR SUCH PURPOSE THE DIRECTOR-GENERAL,
NATIONAL ECONOMIC AND DEVELOPMENT AUTHORITY TO
IMPLEMENT THE SAME, AND FOR OTHER PURPOSES
WHEREAS, good governance is a major thrust of this Administration;
WHEREAS, the existing multiple identification systems in government have

created unnecessary and costly redundancies and higher costs to
government, while making it inconvenient for individuals to be holding
several identification cards;
WHEREAS, there is urgent need to streamline and integrate the processes

and issuance of identification cards in government to reduce costs and to
provide greater convenience for those transacting business with
government;
WHEREAS, a unified identification system will facilitate private businesses,
enhance the integrity and reliability of government-issued identification
cards in private transactions, and prevent violations of laws involving false
names and identities.
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of

the Republic of the Philippines by virtue of the powers vested in me by law,
do hereby direct the following:
Section 1. Adoption of a unified multi-purpose identification (ID)

system for government. All government agencies, including government-
owned and controlled corporations, are hereby directed to adopt a unified
multi-purpose ID system to ensure the attainment of the following
objectives:
a. To reduce costs and thereby lessen the financial burden on both the
government and the public brought about by the use of multiple ID cards
and the maintenance of redundant database containing the same or related
information;
b. To ensure greater convenience for those transacting business with the

government and those availing of government services;
c. To facilitate private businesses and promote the wider use of

the unified ID card as provided under this executive order;
d. To enhance the integrity and reliability of government-issued

ID cards; and
e. To facilitate access to and delivery of quality and effective government

service.
Section 2. Coverage All government agencies and government-owned

and controlled corporations issuing ID cards to their members or
constituents shall be covered by this executive order.
Section 3. Data requirement for the unified ID system The data to be

collected and recorded by the participating agencies shall be limited to the
following:
Name
Home Address
Sex
Picture
Signature
Date of Birth
Place of Birth
Marital Status
Names of Parents
Height
Weight
Two index fingers and two thumbmarks
Any prominent distinguishing features like moles and others
Tax Identification Number (TIN)
Provided that a corresponding ID number issued by the participating

agency and a common reference number shall form part of the stored ID
data and, together with at least the first five items listed above, including
the print of the right thumbmark, or any of the fingerprints as collected and
stored, shall appear on the face or back of the ID card for visual verification
purposes.
Section 4. Authorizing the Director-General, National Economic and

Development Authority, to Harmonize All Government Identification
Systems. The Director-General, National Economic Development
Authority, is hereby authorized to streamline and harmonize all government
ID systems.
Section 5. Functions and responsibilities of the Director-General,
National Economic and Development Authority. In addition to his
organic functions and responsibilities, the Director-General, National
Economic and Development Authority, shall have the following functions
and responsibilities:
a. Adopt within sixty (60) days from the effectivity of this executive order a
unified government ID system containing only such data and features, as
indicated in Section 3 above, to validly establish the identity of the card
holder:
b. Enter into agreements with local governments, through their

respective leagues of governors or mayors, the Commission on Elections
(COMELEC), and with other branches or instrumentalities of the
government, for the purpose of ensuring government-wide adoption of and
support to this effort to streamline the ID systems in government;
b. Call on any other government agency or institution, or create

subcommittees or technical working groups, to provide such assistance as
may be necessary or required for the effective performance of its functions;
and
d. Promulgate such rules or regulations as may be necessary in pursuance

of the objectives of this executive order.
Section 6. Safeguards. The Director-General, National Economic and

Development Authority, and the pertinent agencies shall adopt such
safeguard as may be necessary and adequate to ensure that the right to
privacy of an individual takes precedence over efficient public service
delivery. Such safeguards shall, as a minimum, include the following:
a. The data to be recorded and stored, which shall be used only for
purposes of establishing the identity of a person, shall be limited to those
specified in Section 3 of this executive order;
b. In no case shall the collection or compilation of other data in violation of

a persons right to privacy shall be allowed or tolerated under this order;
c. Stringent systems of access control to data in the identification system
shall be instituted;
d. Data collected and stored for this purpose shall be kept and treated as
strictly confidential and a personal or written authorization of the Owner
shall be required for access and disclosure of data;
e. The identification card to be issued shall be protected by advanced

security features and cryptographic technology; and
f. A written request by the Owner of the identification card shall be required

for any correction or revision of relevant data, or under such conditions as
the participating agency issuing the identification card shall prescribe.
Section 7. Funding. Such funds as may be recommended by the

Department of Budget and Management shall be provided to carry out the
objectives of this executive order.
Section 8. Repealing clause. All executive orders or issuances, or

portions thereof, which are inconsistent with this executive order, are
hereby revoked, amended or modified accordingly.
Section 9. Effectivity. This executive order shall take effect fifteen (15)
days after its publication in two (2) newspapers of general circulation.
DONE in the City of Manila, this 13th day of April, in the year of Our Lord,
Two Thousand and Five.
Thus, under EO 420, the President directs all government agencies and
government-owned and controlled corporations to adopt a uniform data
collection and format for their existing identification (ID) systems.
Petitioners in G.R. No. 167798 allege that EO 420 is unconstitutional

because it constitutes usurpation of legislative functions by the executive
branch of the government. Furthermore, they allege that EO 420 infringes
on the citizens right to privacy.[1]
Petitioners in G.R. No. 167930 allege that EO 420 is void based on the
following grounds:
1. EO 420 is contrary to law. It completely disregards and violates the

decision of this Honorable Court in Ople v. Torres et al., G.R. No. 127685,
July 23, 1998. It also violates RA 8282 otherwise known as the Social
Security Act of 1997.
2. The Executive has usurped the legislative power of Congress as she has
no power to issue EO 420. Furthermore, the implementation of the EO will
use public funds not appropriated by Congress for that purpose.
3. EO 420 violates the constitutional provisions on the right to

privacy
(i) It allows access to personal confidential data without the owners

consent.
(ii) EO 420 is vague and without adequate safeguards or

penalties for any violation of its provisions.
(iii) There are no compelling reasons that will legitimize the necessity of EO
420.
4. Granting without conceding that the President may issue EO 420, the
Executive Order was issued without public hearing.
5. EO 420 violates the Constitutional provision on equal protection of laws

and results in the discriminatory treatment of and penalizes those without
ID.[2]
Issues
Essentially, the petitions raise two issues. First, petitioners claim that EO
420 is a usurpation of legislative power by the President. Second,
petitioners claim that EO 420 infringes on the citizens right to privacy.
Respondents question the legal standing of petitioners and the ripeness of

the petitions. Even assuming that petitioners are bereft of legal standing,
the Court considers the issues raised under the circumstances of
paramount public concern or of transcendental significance to the
people. The petitions also present a justiciable controversy ripe for judicial
determination because all government entities currently issuing
identification cards are mandated to implement EO 420, which petitioners
claim is patently unconstitutional. Hence, the Court takes cognizance of the
petitions.
The Courts Ruling
The petitions are without merit.

On the Alleged Usurpation of Legislative Power
Section 2 of EO 420 provides, Coverage. All government agencies and

government-owned and controlled corporations issuing ID cards to their
members or constituents shall be covered by this executive order. EO 420
applies only to government entities that issue ID cards as part of their
functions under existing laws. These government entities have already
been issuing ID cards even prior to EO 420. Examples of these
government entities are the GSIS,[3] SSS,[4] Philhealth,[5] Mayors
Office,[6] LTO,[7] PRC,[8] and similar government entities.
Section 1 of EO 420 directs these government entities to adopt a unified

multi-purpose ID system. Thus, all government entities that issue IDs as
part of their functions under existing laws are required to adopt a uniform
data collection and format for their IDs. Section 1 of EO 420 enumerates
the purposes of the uniform data collection and format, namely:
a. To reduce costs and thereby lessen the financial burden on

both the government and the public brought about by the use of multiple ID
cards and the maintenance of redundant database containing the same or
related information;
b. To ensure greater convenience for those transacting business

with the government and those availing of government services;
c. To facilitate private businesses and promote the wider use of

the unified ID card as provided under this executive order;
d. To enhance the integrity and reliability of government-issued

ID cards; and
e. To facilitate access to and delivery of quality and effective
government service.
In short, the purposes of the uniform ID data collection and ID format are to
reduce costs, achieve efficiency and reliability, insure compatibility, and
provide convenience to the people served by government entities.
Section 3 of EO 420 limits the data to be collected and recorded under the
uniform ID system to only 14 specific items, namely: (1) Name; (2) Home
Address; (3) Sex; (4) Picture; (5) Signature; (6) Date of Birth; (7) Place of
Birth; (8) Marital Status; (9) Name of Parents; (10) Height; (11) Weight; (12)
Two index fingers and two thumbmarks; (13) Any prominent distinguishing
features like moles or others; and (14) Tax Identification Number.
These limited and specific data are the usual data required for personal
identification by government entities, and even by the private sector. Any
one who applies for or renews a drivers license provides to the LTO all
these 14 specific data.
At present, government entities like LTO require considerably more data

from applicants for identification purposes. EO 420 will reduce the data
required to be collected and recorded in the ID databases of the
government entities. Government entities cannot collect or record data,
for identification purposes, other than the 14 specific data.
Various laws allow several government entities to collect and record data
for their ID systems, either expressly or impliedly by the nature of the
functions of these government entities. Under their existing ID systems,
some government entities collect and record more data than what EO 420
allows. At present, the data collected and recorded by government entities
are disparate, and the IDs they issue are dissimilar.
In the case of the Supreme Court,[9] the IDs that the Court issues to all its
employees, including the Justices, contain 15 specific data, namely: (1)
Name; (2) Picture; (3) Position; (4) Office Code Number; (5) ID Number; (6)
Height; (7) Weight; (8) Complexion; (9) Color of Hair; (10) Blood Type; (11)
Right Thumbmark; (12) Tax Identification Number; (13) GSIS Policy
Number; (14) Name and Address of Person to be Notified in Case of
Emergency; and (15) Signature. If we consider that the picture in the ID can
generally also show the sex of the employee, the Courts ID actually
contains 16 data.
In contrast, the uniform ID format under Section 3 of EO 420 requires only

the first five items listed in Section 3, plus the fingerprint, agency number
and the common reference number, or only eight specific data. Thus, at
present, the Supreme Courts ID contains far more data than the proposed
uniform ID for government entities under EO 420. The nature of the data
contained in the Supreme Court ID is also far more financially sensitive,
specifically the Tax Identification Number.
Making the data collection and recording of government entities unified,

and making their ID formats uniform, will admittedly achieve substantial
benefits. These benefits are savings in terms of procurement of equipment
and supplies, compatibility in systems as to hardware and software, ease of
verification and thus increased reliability of data, and the user-friendliness
of a single ID format for all government entities.
There is no dispute that government entities can individually limit the
collection and recording of their data to the 14 specific items in Section 3 of
EO 420. There is also no dispute that these government entities can
individually adopt the ID format as specified in Section 3 of EO 420. Such
an act is certainly within the authority of the heads or governing boards of
the government entities that are already authorized under existing laws to
issue IDs.
A unified ID system for all these government entities can be achieved in

either of two ways. First, the heads of these existing government entities
can enter into a memorandum of agreement making their systems
uniform. If the government entities can individually adopt a format for their
own ID pursuant to their regular functions under existing laws, they can
also adopt by mutual agreement a uniform ID format, especially if the
uniform format will result in substantial savings, greater efficiency, and
optimum compatibility. This is purely an administrative matter, and does not
involve the exercise of legislative power.
Second, the President may by executive or administrative order direct the

government entities under the Executive department to adopt a uniform ID
data collection and format. Section 17, Article VII of the 1987 Constitution
provides that the President shall have control of all executive departments,
bureaus and offices. The same Section also mandates the President to
ensure that the laws be faithfully executed.
Certainly, under this constitutional power of control the President can direct
all government entities, in the exercise of their functions under existing
laws, to adopt a uniform ID data collection and ID format to achieve
savings, efficiency, reliability, compatibility, and convenience to the
public. The Presidents constitutional power of control is self-executing and
does not need any implementing legislation.
Of course, the Presidents power of control is limited to the Executive
branch of government and does not extend to the Judiciary or to the
independent constitutional commissions. Thus, EO 420 does not apply to
the Judiciary, or to the COMELEC which under existing laws is also
authorized to issue voters ID cards.[10] This only shows that EO 420 does
not establish a national ID system because legislation is needed to
establish a single ID system that is compulsory for all branches of
government.
The Constitution also mandates the President to ensure that the laws are
faithfully executed. There are several laws mandating government entities
to reduce costs, increase efficiency, and in general, improve public
services.[11] The adoption of a uniform ID data collection and format under
EO 420 is designed to reduce costs, increase efficiency, and in general,
improve public services.Thus, in issuing EO 420, the President is simply
performing the constitutional duty to ensure that the laws are faithfully
executed.
Clearly, EO 420 is well within the constitutional power of the President to

promulgate. The President has not usurped legislative power in issuing EO
420. EO 420 is an exercise of Executive power the Presidents
constitutional power of control over the Executive department. EO 420 is
also compliance by the President of the constitutional duty to ensure that
the laws are faithfully executed.
Legislative power is the authority to make laws and to alter or repeal

them. In issuing EO 420, the President did not make, alter or repeal any
law but merely implemented and executed existing laws. EO 420 reduces
costs, as well as insures efficiency, reliability, compatibility and user-
friendliness in the implementation of current ID systems of government
entities under existing laws. Thus, EO 420 is simply an executive issuance
and not an act of legislation.
The act of issuing ID cards and collecting the necessary personal data for
imprinting on the ID card does not require legislation. Private employers
routinely issue ID cards to their employees. Private and public schools also
routinely issue ID cards to their students. Even private clubs and
associations issue ID cards to their members. The purpose of all these ID
cards is simply to insure the proper identification of a person as an
employee, student, or member of a club. These ID cards, although imposed
as a condition for exercising a privilege, are voluntary because a person is
not compelled to be an employee, student or member of a club.
What require legislation are three aspects of a government maintained ID

card system. First, when the implementation of an ID card system requires
a special appropriation because there is no existing appropriation for such
purpose. Second, when the ID card system is compulsory on all branches
of government, including the independent constitutional commissions, as
well as compulsory on all citizens whether they have a use for the ID card
or not. Third, when the ID card system requires the collection and recording
of personal data beyond what is routinely or usually required for such
purpose, such that the citizens right to privacy is infringed.
In the present case, EO 420 does not require any special appropriation
because the existing ID card systems of government entities covered by
EO 420 have the proper appropriation or funding. EO 420 is not
compulsory on all branches of government and is not compulsory on all
citizens. EO 420 requires a very narrow and focused collection and
recording of personal data while safeguarding the confidentiality of such
data. In fact, the data collected and recorded under EO 420 are far less
than the data collected and recorded under the ID systems existing prior to
EO 420.
EO 420 does not establish a national ID card system. EO 420 does not
compel all citizens to have an ID card. EO 420 applies only to government
entities that under existing laws are already collecting data and issuing ID
cards as part of their governmental functions. Every government entity
that presently issues an ID card will still issue its own ID card under
its own name. The only difference is that the ID card will contain only the
five data specified in Section 3 of EO 420, plus the fingerprint, the agency
ID number, and the common reference number which is needed for cross-
verification to ensure integrity and reliability of identification.
This Court should not interfere how government entities under the
Executive department should undertake cost savings, achieve efficiency in
operations, insure compatibility of equipment and systems, and provide
user-friendly service to the public. The collection of ID data and issuance of
ID cards are day-to-day functions of many government entities under
existing laws. Even the Supreme Court has its own ID system for
employees of the Court and all first and second level courts. The Court is
even trying to unify its ID system with those of the appellate courts, namely
the Court of Appeals, Sandiganbayan and Court of Tax Appeals.
There is nothing legislative about unifying existing ID systems of all courts

within the Judiciary. The same is true for government entities under the
Executive department. If government entities under the Executive
department decide to unify their existing ID data collection and ID card
issuance systems to achieve savings, efficiency, compatibility and
convenience, such act does not involve the exercise of any legislative
power. Thus, the issuance of EO 420 does not constitute usurpation of
legislative power.
On the Alleged Infringement of the Right to Privacy

All these years, the GSIS, SSS, LTO, Philhealth and other government
entities have been issuing ID cards in the performance of their
governmental functions. There have been no complaints from citizens that
the ID cards of these government entities violate their right to
privacy. There have also been no complaints of abuse by these
government entities in the collection and recording of personal identification
data.
In fact, petitioners in the present cases do not claim that the ID systems of
government entities prior to EO 420 violate their right to privacy. Since
petitioners do not make such claim, they even have less basis to complain
against the unified ID system under EO 420. The data collected and stored
for the unified ID system under EO 420 will be limited to only 14 specific
data, and the ID card itself will show only eight specific data. The data
collection, recording and ID card system under EO 420 will even require
less data collected, stored and revealed than under the disparate systems
prior to EO 420.
Prior to EO 420, government entities had a free hand in determining the

kind, nature and extent of data to be collected and stored for their ID
systems. Under EO 420, government entities can collect and record only
the 14 specific data mentioned in Section 3 of EO 420. In addition,
government entities can show in their ID cards only eight of these specific
data, seven less data than what the Supreme Courts ID shows.
Also, prior to EO 420, there was no executive issuance to government

entities prescribing safeguards on the collection, recording, and disclosure
of personal identification data to protect the right to privacy. Now, under
Section 5 of EO 420, the following safeguards are instituted:
a. The data to be recorded and stored, which shall be used only
for purposes of establishing the identity of a person, shall be limited to
those specified in Section 3 of this executive order;
b. In no case shall the collection or compilation of other data in

violation of a persons right to privacy be allowed or tolerated under this
order;
c. Stringent systems of access control to data in the

identification system shall be instituted;
d. Data collected and stored for this purpose shall be kept and
treated as strictly confidential and a personal or written authorization of the
Owner shall be required for access and disclosure of data;
e. The identification card to be issued shall be protected by

advanced security features and cryptographic technology;
f. A written request by the Owner of the identification card shall

be required for any correction or revision of relevant data, or under such
conditions as the participating agency issuing the identification card shall
prescribe.
On its face, EO 420 shows no constitutional infirmity because it even

narrowly limits the data that can be collected, recorded and shown
compared to the existing ID systems of government entities. EO 420 further
provides strict safeguards to protect the confidentiality of the data collected,
in contrast to the prior ID systems which are bereft of strict administrative
safeguards.
The right to privacy does not bar the adoption of reasonable ID systems by
government entities. Some one hundred countries have compulsory
national ID systems, including democracies such as Spain, France,
Germany, Belgium, Greece, Luxembourg, and Portugal. Other countries
which do not have national ID systems, like the United States, Canada,
Australia, New Zealand, Ireland, the Nordic Countries and Sweden, have
sectoral cards for health, social or other public services.[12] Even with EO
420, the Philippines will still fall under the countries that do not have
compulsory national ID systems but allow only sectoral cards for social
security, health services, and other specific purposes.
Without a reliable ID system, government entities like GSIS, SSS,

Philhealth, and LTO cannot perform effectively and efficiently their
mandated functions under existing laws. Without a reliable ID system,
GSIS, SSS, Philhealth and similar government entities stand to suffer
substantial losses arising from false names and identities. The integrity of
the LTOs licensing system will suffer in the absence of a reliable ID system.
The dissenting opinion cites three American decisions on the right to

privacy, namely, Griswold v. Connecticut,[13] U.S. Justice Department v.
Reporters Committee for Freedom of the Press,[14] and Whalen v.
Roe.[15] The last two decisions actually support the validity of EO 420, while
the first is inapplicable to the present case.
In Griswold, the U.S. Supreme Court declared unconstitutional a state law

that prohibited the use and distribution of contraceptives because
enforcement of the law would allow the police entry into the bedrooms of
married couples. Declared the U.S. Supreme Court: Would we allow the
police to search the sacred precincts of the marital bedrooms for telltale
signs of the use of contraceptives? The very idea is repulsive to the notions
of privacy surrounding the marriage relationship. Because the facts and the
issue involved in Griswold are materially different from the present
case, Griswold has no persuasive bearing on the present case.
In U.S. Justice Department, the issue was not whether the State could
collect and store information on individuals from public records nationwide
but whether the State could withhold such information from the press. The
premise of the issue in U.S. Justice Department is that the State can
collect and store in a central database information on citizens
gathered from public records across the country. In fact, the law
authorized the Department of Justice to collect and preserve fingerprints
and other criminal identification records nationwide. The law also
authorized the Department of Justice to exchange such information with
officials of States, cities and other institutions. The Department of Justice
treated such information as confidential. A CBS news correspondent and
the Reporters Committee demanded the criminal records of four members
of a family pursuant to the Freedom of Information Act. The U.S. Supreme
Court ruled that the Freedom of Information Act expressly exempts release
of information that would constitute an unwarranted invasion of personal
privacy, and the information demanded falls under that category of exempt
information.
With the exception of the 8 specific data shown on the ID card, the
personal data collected and recorded under EO 420 are treated as strictly
confidential under Section 6(d) of EO 420. These data are not only strictly
confidential but also personal matters. Section 7, Article III of the 1987
Constitution grants the right of the people to information on matters of
public concern. Personal matters are exempt or outside the coverage of the
peoples right to information on matters of public concern. The data treated
as strictly confidential under EO 420 being private matters and not matters
of public concern, these data cannot be released to the public or the
press. Thus, the ruling in U.S. Justice Department does not collide with EO
420 but actually supports the validity EO 420.
Whalen v. Roe is the leading American case on the constitutional

protection for control over information. In Whalen, the U.S. Supreme
Court upheld the validity of a New York law that required doctors to furnish
the government reports identifying patients who received prescription drugs
that have a potential for abuse. The government maintained a central
computerized databasecontaining the names and addresses of the
patients, as well as the identity of the prescribing doctors. The law was
assailed because the database allegedly infringed the right to privacy of
individuals who want to keep their personal matters confidential. The U.S.
Supreme Court rejected the privacy claim, and declared:
Disclosures of private medical information to doctors, to hospital

personnel, to insurance companies, and to public health agencies are
often an essential part of modern medical practice even when the
disclosure may reflect unfavorably on the character of the
patient. Requiring such disclosures to representatives of the State
having responsibility for the health of the community does not
automatically amount to an impermissible invasion of
privacy. (Emphasis supplied)
Compared to the personal medical data required for disclosure to the New
York State in Whalen, the 14 specific data required for disclosure to the
Philippine government under EO 420 are far less sensitive and far less
personal. In fact, the 14 specific data required under EO 420 are routine
data for ID systems, unlike the sensitive and potentially embarrassing
medical records of patients taking prescription drugs. Whalen, therefore,
carries persuasive force for upholding the constitutionality of EO 420 as
non-violative of the right to privacy.
Subsequent U.S. Supreme Court decisions have

reiterated Whalen. In Planned Parenthood of Central Missouri v.
Danforth,[16] the U.S. Supreme Court upheld the validity of a law that
required doctors performing abortions to fill up forms, maintain records for
seven years, and allow the inspection of such records by public health
officials. The U.S. Supreme Court ruled that recordkeeping and reporting
requirements that are reasonably directed to the preservation of maternal
health and that properly respect a patients confidentiality and privacy are
permissible.
Again, in Planned Parenthood of Southeastern Pennsylvania v.

Casey,[17] the U.S. Supreme Court upheld a law that required doctors
performing an abortion to file a report to the government that included the
doctors name, the womans age, the number of prior pregnancies and
abortions that the woman had, the medical complications from the abortion,
the weight of the fetus, and the marital status of the woman. In case of
state-funded institutions, the law made such information publicly
available. In Casey, the U.S. Supreme Court stated: The collection of
information with respect to actual patients is a vital element of medical
research, and so it cannot be said that the requirements serve no purpose
other than to make abortion more difficult.
Compared to the disclosure requirements of personal data that the U.S.

Supreme Court have upheld in Whalen, Danforth and Casey as not
violative of the right to privacy, the disclosure requirements under EO 420
are far benign and cannot therefore constitute violation of the right to
privacy. EO 420 requires disclosure of 14 personal data that are routine for
ID purposes, data that cannot possibly embarrass or humiliate anyone.
Petitioners have not shown how EO 420 will violate their right to
privacy. Petitioners cannot show such violation by a mere facial
examination of EO 420 because EO 420 narrowly draws the data
collection, recording and exhibition while prescribing comprehensive
safeguards. Ople v. Torres[18] is not authority to hold that EO 420 violates
the right to privacy because in that case the assailed executive issuance,
broadly drawn and devoid of safeguards, was annulled solely on the
ground that the subject matter required legislation. As then Associate
Justice, now Chief Justice Artemio V. Panganiban noted in his concurring
opinion in Ople v. Torres, The voting is decisive only on the need for
appropriate legislation, and it is only on this ground that the petition is
granted by this Court.
EO 420 applies only to government entities that already maintain ID

systems and issue ID cards pursuant to their regular functions under
existing laws. EO 420 does not grant such government entities any power
that they do not already possess under existing laws. In contrast, the
assailed executive issuance in Ople v. Torres sought to establish
a National Computerized IdentificationReference System,[19] a national
ID system that did not exist prior to the assailed executive
issuance. Obviously, a national ID card system requires legislation because
it creates a new national data collection and card issuance system where
none existed before.
In the present case, EO 420 does not establish a national ID system but
makes the existing sectoral card systems of government entities like GSIS,
SSS, Philhealth and LTO less costly, more efficient, reliable and user-
friendly to the public. Hence, EO 420 is a proper subject of executive
issuance under the Presidents constitutional power of control over
government entities in the Executive department, as well as under the
Presidents constitutional duty to ensure that laws are faithfully executed.
WHEREFORE, the petitions are DISMISSED. Executive Order No. 420 is

declared VALID.
SO ORDERED.
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,4but 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:
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
ICM6 Directress. 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-
38594.7In 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;
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
SO ORDERED.9
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, 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, 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
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 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 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 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."51Thus, 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 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.54 As 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. 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.
SO ORDERED.
FIRST DIVISION
G.R. No. 203254, October 08, 2014
DR. JOY MARGATE LEE, Petitioner, v. P/SUPT. NERI A.

ILAGAN, Respondent.
DECISION
PERLAS-BERNABE, J.:
Before the Court is a petition for review on certiorari1 assailing the

Decision2 dated August 30, 2012 of the Regional Trial Court of Quezon
City, Branch 224 (RTC) in SP No. 12-71527, which extended the privilege
of the writ of habeas data in favor of respondent Police Superintendent Neri
A. Ilagan (Ilagan).
The Facts
In his Petition for Issuance of the Writ of Habeas Data3 dated June 22,
2012, Ilagan alleged that he and petitioner Dr. Joy Margate Lee (Lee) were
former common law partners. Sometime in July 2011, he visited Lee at the
latter’s condominium, rested for a while and thereafter,proceeded to his
office. Upon arrival, Ilagan noticed that his digital camera was missing.4 On
August 23, 2011, Lee confronted Ilagan at the latter’s office regarding a
purported sex video (subject video) she discovered from the aforesaid
camera involving Ilagan and another woman. Ilagan denied the video and
demanded Lee to return the camera, but to no avail.5 During the
confrontation, Ilagan allegedly slammed Lee’s head against a wall inside
his office and walked away.6Subsequently, Lee utilized the said video as
evidence in filing various complaints against Ilagan, namely: (a) a criminal
complaint for violation of Republic Act No. 9262,7otherwise known as the
“Anti-Violence Against Women and Their Children Act of 2004,” before the
Office of the City Prosecutor of Makati; and (b) an administrative complaint
for grave misconduct before the National Police Commission
(NAPOLCOM).8 Ilagan claimed that Lee’s acts of reproducing the subject
video and threatening to distribute the same to the upper echelons of the
NAPOLCOM and uploading it to the internet violated not only his right to
life, liberty, security, and privacy but also that of the other woman, and thus,
the issuance of a writ of habeas data in his favor is warranted.9
Finding the petition prima facie meritorious, the RTC issued a Writ
of Habeas Data10 dated June 25, 2012, directing Lee to appear before the
court a quo, and to produce Ilagan’s digital camera, as well as the negative
and/or original of the subject video and copies thereof, and to file a verified
written return within five (5) working days from date of receipt thereof.
In her Verified Return11 dated July 2, 2012, Lee admitted that she indeed
kept the memory card of the digital camera and reproduced the aforesaid
video but averred that she only did so to utilize the same as evidence in the
cases she filed against Ilagan. She also admitted that her relationship with
Ilagan started sometime in 2003 and ended under disturbing circumstances
in August 2011, and that she only happened to discover the subject video
when Ilagan left his camera in her condominium. Accordingly, Lee
contended that Ilagan’s petition for the issuance of the writ of habeas
data should be dismissed because: (a) its filing was only aimed at
suppressing the evidence against Ilagan in the cases she filed; and (b) she
is not engaged in the gathering, collecting, or storing of data regarding the
person of Ilagan.12
The RTC Ruling
In a Decision13 dated August 30, 2012, the RTC granted the privilege of the
writ of habeas data in Ilagan’s favor, and accordingly, ordered the
implementing officer to turn-over copies of the subject video to him, and
enjoined Lee from further reproducing the same.14
The RTC did not give credence to Lee’s defense that she is not engaged in
the gathering, collecting or storing of data regarding the person of Ilagan,
finding that her acts of reproducing the subject video and showing it to
other people, i.e., the NAPOLCOM officers, violated the latter’s right to
privacy in life and caused him to suffer humiliation and mental anguish. In
this relation, the RTC opined that Lee’s use of the subject video as
evidence in the various cases she filed against Ilagan is not enough
justification for its reproduction. Nevertheless, the RTC clarified that it is
only ruling on the return of the aforesaid video and not on its admissibility
before other tribunals.15
Dissatisfied, Lee filed this petition.
The Issue Before the Court
The essential issue for the Court’s resolution is whether or not the RTC
correctly extended the privilege of the writ of habeas data in favor of Ilagan.
The Court’s Ruling
The petition is meritorious.
A.M. No. 08-1-16-SC, or the Rule on the Writ of Habeas Data (Habeas
Data Rule), was conceived as a response, given the lack of effective and
available remedies, to address the extraordinary rise in the number of
killings and enforced disappearances.16 It was conceptualized as a judicial
remedy enforcing the right to privacy, most especially the right to
informational privacy of individuals,17 which is defined as “the right to
control the collection, maintenance, use, and dissemination of data about
oneself.”18
As defined in Section 1 of the Habeas Data Rule, the writ of habeas

data now stands as “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.” Thus, in order to support a petition for the issuance of
such writ, Section 6 of the Habeas Data Rule essentially requires that the
petition sufficiently alleges, among others, “[t]he manner the right to
privacy is violated or threatened and how it affects the right to life,
liberty or security of the aggrieved party.” In other words, the petition
must adequately show that there exists a nexus between the right to
privacy on the one hand, and the right to life, liberty or security on the
other .19 Corollarily, the allegations in the petition must be supported
by substantial evidence showing an actual or threatened violation of the
right to privacy in life, liberty or security of the victim.20 In this relation, it
bears pointing out that the writ of habeas data will not issue to protect
purely property or commercial concerns nor when the grounds invoked in
support of the petitions therefor are vague and doubtful.21
In this case, the Court finds that Ilagan was not able to sufficiently allege
that his right to privacy in life, liberty or security was or would be violated
through the supposed reproduction and threatened dissemination of the
subject sex video. While Ilagan purports a privacy interest in the
suppression of this video – which he fears would somehow find its way
to Quiapo or be uploaded in the internet for public consumption – he failed
to explain the connection between such interest and any violation of his
right to life, liberty or security. Indeed, courts cannot speculate or contrive
versions of possible transgressions. As the rules and existing jurisprudence
on the matter evoke, alleging and eventually proving the nexus between
one’s privacy right to the cogent rights to life, liberty or security are crucial
in habeas datacases, so much so that a failure on either account certainly
renders a habeas data petition dismissible, as in this case.
In fact, even discounting the insufficiency of the allegations, the petition

would equally be dismissible due to the inadequacy of the evidence
presented. As the records show, all that Ilagan submitted in support of his
petition was his self-serving testimony which hardly meets the substantial
evidence requirement as prescribed by the Habeas Data Rule. This is
because nothing therein would indicate that Lee actually proceeded to
commit any overt act towards the end of violating Ilagan’s right to privacy in
life, liberty or security. Nor would anything on record even lead a
reasonable mind to conclude22 that Lee was going to use the subject video
in order to achieve unlawful ends – say for instance, to spread it to the
public so as to ruin Ilagan’s reputation. Contrastingly, Lee even made it
clear in her testimony that the only reason why she reproduced the subject
video was to legitimately utilize the same as evidence in the criminal and
administrative cases that she filed against Ilagan.23 Hence, due to the
insufficiency of the allegations as well as the glaring absence of substantial
evidence, the Court finds it proper to reverse the RTC Decision and dismiss
the habeas data petition.
WHEREFORE, the petition is GRANTED. The Decision dated August 30,

2012 of the Regional Trial Court of Quezon City, Branch 224 in SP No. 12-
71527is hereby REVERSED and SET ASIDE. Accordingly, the Petition for
Issuance of the Writ of Habeas Data filed by respondent P/Supt. Neri A.
Ilagan is DISMISSED for lack of merit.
SO ORDERED.
EN BANC
FRANCISCO CHAVEZ, G.R. No. 168338
Petitioner,
Present:
PUNO, C.J.,
QUISUMBING,
YNARES-SANTIAGO,
- versus - SANDOVAL-GUTIERREZ,
CARPIO,
AUSTRIA-MARTINEZ,
CORONA,
CARPIO MORALES,
AZCUNA,
TINGA,
CHICO-NAZARIO,
RAUL M. GONZALES, VELASCO, JR.,
in his capacity as the NACHURA,
Secretary of the REYES, and
Department of Justice; LEONARDO-DE CASTRO, JJ.
and NATIONAL
TELECOMMUNICATIONS
Promulgated:
COMMISSION (NTC),
Respondents.
February 15, 2008
x-------------------------------------------------------------------------------------x
DECISION
PUNO, C.J.:
A. Precis
In this jurisdiction, it is established that freedom of the press is crucial and

so inextricably woven into the right to free speech and free expression, that
any attempt to restrict it must be met with an examination so critical that
only a danger that is clear and present would be allowed to curtail it.
Indeed, we have not wavered in the duty to uphold this cherished freedom.
We have struck down laws and issuances meant to curtail this right, as
in Adiong v. COMELEC,[1] Burgos v. Chief of Staff,[2] Social Weather
Stations v. COMELEC,[3] and Bayan v. Executive Secretary Ermita.[4] When
on its face, it is clear that a governmental act is nothing more than a naked
means to prevent the free exercise of speech, it must be nullified.
B. The Facts
1. The case originates from events that occurred a year after the 2004
national and local elections. On June 5, 2005, Press Secretary Ignacio
Bunye told reporters that the opposition was planning to destabilize the
administration by releasing an audiotape of a mobile phone conversation
allegedly between the President of the Philippines, Gloria Macapagal
Arroyo, and a high-ranking official of the Commission on Elections
(COMELEC). The conversation was audiotaped allegedly through wire-
tapping.[5] Later, in a Malacaang press briefing, Secretary Bunye produced
two versions of the tape, one supposedly the complete version, and the
other, a spliced, doctored or altered version, which would suggest that the
President had instructed the COMELEC official to manipulate the election
results in the Presidents favor. [6] It seems that Secretary Bunye admitted
that the voice was that of President Arroyo, but subsequently made a
retraction. [7]
2. On June 7, 2005, former counsel of deposed President Joseph

Estrada, Atty. Alan Paguia, subsequently released an alleged authentic
tape recording of the wiretap. Included in the tapes were purported
conversations of the President, the First Gentleman Jose Miguel Arroyo,
COMELEC Commissioner Garcillano, and the late Senator Barbers.[8]
3. On June 8, 2005, respondent Department of Justice (DOJ) Secretary

Raul Gonzales warned reporters that those who had copies of the compact
disc (CD) and those broadcasting or publishing its contents could be held
liable under the Anti-Wiretapping Act. These persons included Secretary
Bunye and Atty. Paguia. He also stated that persons possessing or airing
said tapes were committing a continuing offense, subject to arrest by
anybody who had personal knowledge if the crime was committed or was
being committed in their presence.[9]
4. On June 9, 2005, in another press briefing, Secretary Gonzales

ordered the National Bureau of Investigation (NBI) to go after media
organizations found to have caused the spread, the playing and the printing
of the contents of a tape of an alleged wiretapped conversation involving
the President about fixing votes in the 2004 national elections. Gonzales
said that he was going to start with Inq7.net, a joint venture between
the Philippine Daily Inquirer and GMA7 television network, because by
the very nature of the Internet medium, it was able to disseminate the
contents of the tape more widely. He then expressed his intention of
inviting the editors and managers of Inq7.net and GMA7 to a probe, and
supposedly declared, I [have] asked the NBI to conduct a tactical
interrogation of all concerned. [10]
5. On June 11, 2005, the NTC issued this press release: [11]
NTC GIVES FAIR WARNING TO RADIO AND TELEVISION

OWNERS/OPERATORS TO OBSERVE ANTI-WIRETAPPING LAW AND
PERTINENT CIRCULARS ON PROGRAM STANDARDS
xxx xxx xxx
Taking into consideration the countrys unusual situation, and in order not to
unnecessarily aggravate the same, the NTC warns all radio stations and
television network owners/operators that the conditions of the authorization
and permits issued to them by Government like the Provisional Authority
and/or Certificate of Authority explicitly provides that said companies shall
not use [their] stations for the broadcasting or telecasting of false
information or willful misrepresentation. Relative thereto, it has come to the
attention of the [NTC] that certain personalities are in possession of alleged
taped conversations which they claim involve the President of the
Philippines and a Commissioner of the COMELEC regarding supposed
violation of election laws.
These personalities have admitted that the taped conversations are

products of illegal wiretapping operations.
Considering that these taped conversations have not been duly

authenticated nor could it be said at this time that the tapes contain an
accurate or truthful representation of what was recorded therein, it is the
position of the [NTC] that the continuous airing or broadcast of the said
taped conversations by radio and television stations is a continuing
violation of the Anti-Wiretapping Law and the conditions of the Provisional
Authority and/or Certificate of Authority issued to these radio and television
stations. It has been subsequently established that the said tapes are false
and/or fraudulent after a prosecution or appropriate investigation, the
concerned radio and television companies are hereby warned that their
broadcast/airing of such false information and/or willful
misrepresentation shall be just cause for the suspension, revocation
and/or cancellation of the licenses or authorizations issued to the
said companies.
In addition to the above, the [NTC] reiterates the pertinent NTC circulars on
program standards to be observed by radio and television stations. NTC
Memorandum Circular 111-12-85 explicitly states, among others, that all
radio broadcasting and television stations shall, during any broadcast or
telecast, cut off from the air the speech, play, act or scene or other matters
being broadcast or telecast the tendency thereof is to disseminate false
information or such other willful misrepresentation, or to propose and/or
incite treason, rebellion or sedition. The foregoing directive had been
reiterated by NTC Memorandum Circular No. 22-89, which, in addition
thereto, prohibited radio, broadcasting and television stations from using
their stations to broadcast or telecast any speech, language or scene
disseminating false information or willful misrepresentation, or inciting,
encouraging or assisting in subversive or treasonable acts.
The [NTC] will not hesitate, after observing the requirements of due
process, to apply with full force the provisions of said Circulars and
their accompanying sanctions on erring radio and television stations
and their owners/operators.
6. On June 14, 2005, NTC held a dialogue with the Board of Directors of
the Kapisanan ng mga Brodkaster sa Pilipinas (KBP). NTC allegedly
assured the KBP that the press release did not violate the constitutional
freedom of speech, of expression, and of the press, and the right to
information. Accordingly, NTC and KBP issued a Joint Press
Statement which states, among others, that: [12]
NTC respects and will not hinder freedom of the press and the right to
information on matters of public concern. KBP & its members have always
been committed to the exercise of press freedom with high sense of
responsibility and discerning judgment of fairness and honesty.
NTC did not issue any MC [Memorandum Circular] or Order constituting a

restraint of press freedom or censorship. The NTC further denies and does
not intend to limit or restrict the interview of members of the opposition or
free expression of views.
What is being asked by NTC is that the exercise of press freedom [be]
done responsibly.
KBP has program standards that KBP members will observe in the
treatment of news and public affairs programs. These include verification of
sources, non-airing of materials that would constitute inciting to sedition
and/or rebellion.
The KBP Codes also require that no false statement or willful

misrepresentation is made in the treatment of news or commentaries.
The supposed wiretapped tapes should be treated with sensitivity and

handled responsibly giving due consideration to the process being
undertaken to verify and validate the authenticity and actual content of the
same.
C. The Petition
Petitioner Chavez filed a petition under Rule 65 of the Rules of Court

against respondents Secretary Gonzales and the NTC, praying for the
issuance of the writs of certiorari and prohibition, as extraordinary legal
remedies, to annul void proceedings, and to prevent the unlawful,
unconstitutional and oppressive exercise of authority by the respondents.[13]
Alleging that the acts of respondents are violations of the freedom on

expression and of the press, and the right of the people to information on
matters of public concern,[14] petitioner specifically asked this Court:
[F]or [the] nullification of acts, issuances, and orders of respondents

committed or made since June 6, 2005 until the present that curtail the
publics rights to freedom of expression and of the press, and to information
on matters of public concern specifically in relation to information regarding
the controversial taped conversion of President Arroyo and for prohibition
of the further commission of such acts, and making of such issuances, and
orders by respondents. [15]
Respondents[16] denied that the acts transgress the Constitution, and

questioned petitioners legal standing to file the petition. Among the
arguments they raised as to the validity of the fair warning issued by
respondent NTC, is that broadcast media enjoy lesser constitutional
guarantees compared to print media, and the warning was issued pursuant
to the NTCs mandate to regulate the telecommunications industry. [17] It
was also stressed that most of the [television] and radio stations continue,
even to this date, to air the tapes, but of late within the parameters agreed
upon between the NTC and KBP. [18]
D. THE PROCEDURAL THRESHOLD: LEGAL STANDING
To be sure, the circumstances of this case make the constitutional

challenge peculiar. Petitioner, who is not a member of the broadcast media,
prays that we strike down the acts and statements made by respondents as
violations of the right to free speech, free expression and a free press. For
another, the recipients of the press statements have not come
forwardneither intervening nor joining petitioner in this action. Indeed, as a
group, they issued a joint statement with respondent NTC that does not
complain about restraints on freedom of the press.
It would seem, then, that petitioner has not met the requisite legal standing,
having failed to allege such a personal stake in the outcome of the
controversy as to assure that concrete adverseness which sharpens the
presentation of issues upon which the Court so largely depends for
illumination of difficult constitutional questions. [19]
But as early as half a century ago, we have already held that where serious
constitutional questions are involved, the transcendental importance to the
public of these cases demands that they be settled promptly and definitely,
brushing aside if we must, technicalities of procedure. [20] Subsequently,
this Court has repeatedly and consistently refused to wield procedural
barriers as impediments to its addressing and resolving serious legal
questions that greatly impact on public interest,[21] in keeping with the
Court's duty under the 1987 Constitution to determine whether or not other
branches of government have kept themselves within the limits of the
Constitution and the laws and that they have not abused the discretion
given to them.
Thus, in line with the liberal policy of this Court on locus standi when a case
involves an issue of overarching significance to our society,[22] we therefore
brush aside technicalities of procedure and take cognizance of this
petition,[23] seeing as it involves a challenge to the most exalted of all the
civil rights, the freedom of expression. The petition raises other issues
like the extent of the right to information of the public. It is
fundamental, however, that we need not address all issues but only
the most decisive one which in the case at bar is whether the acts of
the respondents abridge freedom of speech and of the press.
But aside from the primordial issue of determining whether free

speech and freedom of the press have been infringed, the case at bar
also gives this Court the opportunity: (1) to distill the essence of
freedom of speech and of the press now beclouded by the vagaries of
motherhood statements; (2) to clarify the types of speeches and their
differing restraints allowed by law; (3) to discuss the core concepts of
prior restraint, content-neutral and content-based regulations and
their constitutional standard of review; (4) to examine the historical
difference in the treatment of restraints between print and broadcast
media and stress the standard of review governing both; and (5) to
call attention to the ongoing blurring of the lines of distinction
between print and broadcast media.
E. RE-EXAMINING THE LAW ON FREEDOM OF SPEECH,
OF EXPRESSION AND OF THE PRESS

No law shall be passed abridging the freedom of speech, of expression, or
of the press, or the right of the people peaceably to assemble and petition
the government for redress of grievances.[24]
Freedom of expression has gained recognition as a fundamental principle

of every democratic government, and given a preferred right that stands on
a higher level than substantive economic freedom or other liberties. The
cognate rights codified by Article III, Section 4 of the Constitution, copied
almost verbatim from the First Amendment of the U.S. Bill of
Rights,[25] were considered the necessary consequence of republican
institutions and the complement of free speech.[26] This preferred status of
free speech has also been codified at the international level, its recognition
now enshrined in international law as a customary norm that binds all
nations.[27]
In the Philippines, the primacy and high esteem accorded freedom of

expression is a fundamental postulate of our constitutional system. [28] This
right was elevated to constitutional status in the 1935, the 1973 and the
1987 Constitutions, reflecting our own lesson of history, both political and
legal, that freedom of speech is an indispensable condition for nearly every
other form of freedom.[29] Moreover, our history shows that the struggle to
protect the freedom of speech, expression and the press was, at bottom,
the struggle for the indispensable preconditions for the exercise of other
freedoms.[30] For it is only when the people have unbridled access to
information and the press that they will be capable of rendering enlightened
judgments. In the oft-quoted words of Thomas Jefferson, we cannot both
be free and ignorant.
E.1. ABSTRACTION OF FREE SPEECH

Surrounding the freedom of speech clause are various concepts that we
have adopted as part and parcel of our own Bill of Rights provision on this
basic freedom.[31] What is embraced under this provision was discussed
exhaustively by the Court in Gonzales v. Commission on Elections, [32] in
which it was held:
At the very least, free speech and free press may be identified with the
liberty to discuss publicly and truthfully any matter of public interest without
censorship and punishment. There is to be no previous restraint on the
communication of views or subsequent liability whether in libel suits,
prosecution for sedition, or action for damages, or contempt proceedings
unless there be a clear and present danger of substantive evil that
Congress has a right to prevent. [33]
Gonzales further explained that the vital need of a constitutional democracy

for freedom of expression is undeniable, whether as a means of assuring
individual self-fulfillment; of attaining the truth; of assuring participation by
the people in social, including political, decision-making; and of maintaining
the balance between stability and change.[34] As early as the 1920s, the
trend as reflected in Philippine and American decisions was to recognize
the broadest scope and assure the widest latitude for this constitutional
guarantee. The trend represents a profound commitment to the principle
that debate on public issue should be uninhibited, robust, and wide-
open. [35]
Freedom of speech and of the press means something more than the right
to approve existing political beliefs or economic arrangements, to lend
support to official measures, and to take refuge in the existing climate of
opinion on any matter of public consequence.[36] When atrophied, the right
becomes meaningless.[37] The right belongs as well -- if not more to those
who question, who do not conform, who differ.[38] The ideas that may be
expressed under this freedom are confined not only to those that are
conventional or acceptable to the majority. To be truly meaningful, freedom
of speech and of the press should allow and even encourage the
articulation of the unorthodox view, though it be hostile to or derided by
others; or though such view induces a condition of unrest, creates
dissatisfaction with conditions as they are, or even stirs people to
anger.[39] To paraphrase Justice Holmes, it is freedom for the thought that
we hate, no less than for the thought that agrees with us. [40]
The scope of freedom of expression is so broad that it extends protection to

nearly all forms of communication. It protects speech, print and assembly
regarding secular as well as political causes, and is not confined to any
particular field of human interest. The protection covers myriad matters of
public interest or concern embracing all issues, about which information is
needed or appropriate, so as to enable members of society to cope with the
exigencies of their period. The constitutional protection assures the
broadest possible exercise of free speech and free press for religious,
political, economic, scientific, news, or informational ends, inasmuch as the
Constitution's basic guarantee of freedom to advocate ideas is not confined
to the expression of ideas that are conventional or shared by a majority.
The constitutional protection is not limited to the exposition of ideas. The

protection afforded free speech extends to speech or publications that are
entertaining as well as instructive or informative. Specifically, in Eastern
Broadcasting Corporation (DYRE) v. Dans,[41] this Court stated that all
forms of media, whether print or broadcast, are entitled to the broad
protection of the clause on freedom of speech and of expression.
While all forms of communication are entitled to the broad protection of

freedom of expression clause, the freedom of film, television and radio
broadcasting is somewhat lesser in scope than the freedom accorded
to newspapers and other print media, as will be subsequently
discussed.
E.2. DIFFERENTIATION: THE LIMITS & RESTRAINTS OF FREE

SPEECH
From the language of the specific constitutional provision, it would appear

that the right to free speech and a free press is not susceptible of any
limitation. But the realities of life in a complex society preclude a literal
interpretation of the provision prohibiting the passage of a law that would
abridge such freedom. For freedom of expression is not an absolute, [42] nor
is it an unbridled license that gives immunity for every possible use of
language and prevents the punishment of those who abuse this freedom.
Thus, all speech are not treated the same. Some types of speech may
be subjected to some regulation by the State under its pervasive police
power, in order that it may not be injurious to the equal right of others or
those of the community or society.[43] The difference in treatment is
expected because the relevant interests of one type of speech, e.g.,
political speech, may vary from those of another, e.g., obscene
speech. Distinctions have therefore been made in the treatment, analysis,
and evaluation of the permissible scope of restrictions on various
categories of speech. [44] We have ruled, for example, that in our jurisdiction
slander or libel, lewd and obscene speech, as well as fighting words are not
entitled to constitutional protection and may be penalized.[45]
Moreover, the techniques of reviewing alleged restrictions on speech

(overbreadth, vagueness, and so on) have been applied differently to each
category, either consciously or unconsciously.[46] A study of free speech
jurisprudencewhether here or abroadwill reveal that courts have developed
different tests as to specific types or categories of speech in
concrete situations; i.e., subversive speech; obscene speech; the speech
of the broadcast media and of the traditional print media; libelous speech;
speech affecting associational rights; speech before hostile audiences;
symbolic speech; speech that affects the right to a fair trial; and speech
associated with rights of assembly and petition. [47]
Generally, restraints on freedom of speech and expression are evaluated

by either or a combination of three tests, i.e., (a) the dangerous tendency
doctrine which permits limitations on speech once a rational connection
has been established between the speech restrained and the danger
contemplated; [48] (b) the balancing of interests tests, used as a standard
when courts need to balance conflicting social values and individual
interests, and requires a conscious and detailed consideration of the
interplay of interests observable in a given situation of type of
situation; [49] and(c) the clear and present danger rule which rests on the
premise that speech may be restrained because there is substantial danger
that the speech will likely lead to an evil the government has a right to
prevent. This rule requires that the evil consequences sought to be
prevented must be substantive, extremely serious and the degree of
imminence extremely high. [50]
As articulated in our jurisprudence, we have applied either the dangerous

tendency doctrine or clear and present danger test to resolve free
speech challenges. More recently, we have concluded that we have
generally adhered to the clear and present danger test. [51]
E.3. IN FOCUS: FREEDOM OF THE PRESS
Much has been written on the philosophical basis of press freedom as part
of the larger right of free discussion and expression. Its practical
importance, though, is more easily grasped. It is the chief source of
information on current affairs. It is the most pervasive and perhaps most
powerful vehicle of opinion on public questions. It is the instrument by
which citizens keep their government informed of their needs, their
aspirations and their grievances. It is the sharpest weapon in the fight to
keep government responsible and efficient. Without a vigilant press, the
mistakes of every administration would go uncorrected and its abuses
unexposed. As Justice Malcolm wrote in United States v. Bustos:[52]
The interest of society and the maintenance of good government demand a

full discussion of public affairs. Complete liberty to comment on the conduct
of public men is a scalpel in the case of free speech. The sharp incision of
its probe relieves the abscesses of officialdom. Men in public life may suffer
under a hostile and unjust accusation; the wound can be assuaged with the
balm of clear conscience.
Its contribution to the public weal makes freedom of the press deserving of
extra protection. Indeed, the press benefits from certain ancillary rights.
The productions of writers are classified as intellectual and proprietary.
Persons who interfere or defeat the freedom to write for the press or to
maintain a periodical publication are liable for damages, be they private
individuals or public officials.
E.4. ANATOMY OF RESTRICTIONS: PRIOR RESTRAINT, CONTENT-

NEUTRAL AND CONTENT-BASED REGULATIONS
Philippine jurisprudence, even as early as the period under the 1935

Constitution, has recognized four aspects of freedom of the press. These
are (1) freedom from prior restraint; (2) freedom from punishment
subsequent to publication; [53] (3) freedom of access to information; [54] and
(4) freedom of circulation.[55]
Considering that petitioner has argued that respondents press statement
constitutes a form of impermissible prior restraint, a closer scrutiny of this
principle is in order, as well as its sub-specie of content-based (as
distinguished from content-neutral) regulations.
At this point, it should be noted that respondents in this case deny that their
acts constitute prior restraints. This presents a unique tinge to the present
challenge, considering that the cases in our jurisdiction involving prior
restrictions on speech never had any issue of whether the governmental
act or issuance actually constituted prior restraint. Rather, the
determinations were always about whether the restraint was justified by the
Constitution.
Be that as it may, the determination in every case of whether there is an

impermissible restraint on the freedom of speech has always been based
on the circumstances of each case, including the nature of the
restraint. And in its application in our jurisdiction, the parameters of
this principle have been etched on a case-to-case basis, always
tested by scrutinizing the governmental issuance or act against the
circumstances in which they operate, and then determining the
appropriate test with which to evaluate.
Prior restraint refers to official governmental restrictions on the press or

other forms of expression in advance of actual publication or
dissemination.[56] Freedom from prior restraint is largely freedom from
government censorship of publications, whatever the form of censorship,
and regardless of whether it is wielded by the executive, legislative or
judicial branch of the government. Thus, it precludes governmental acts
that required approval of a proposal to publish; licensing or permits as
prerequisites to publication including the payment of license taxes for the
privilege to publish; and even injunctions against publication. Even the
closure of the business and printing offices of certain newspapers, resulting
in the discontinuation of their printing and publication, are deemed as
previous restraint or censorship. [57] Any law or official that requires some
form of permission to be had before publication can be made, commits an
infringement of the constitutional right, and remedy can be had at the
courts.
Given that deeply ensconced in our fundamental law is the hostility against
all prior restraints on speech, and any act that restrains speech is
presumed invalid,[58] and any act that restrains speech is hobbled by the
presumption of invalidity and should be greeted with furrowed brows, [59] it
is important to stress not all prior restraints on speech are invalid. Certain
previous restraints may be permitted by the Constitution, but
determined only upon a careful evaluation of the challenged act as against
the appropriate test by which it should be measured against.
Hence, it is not enough to determine whether the challenged act constitutes

some form of restraint on freedom of speech. A distinction has to be made
whether the restraint is (1) a content-neutral regulation, i.e., merely
concerned with the incidents of the speech, or one that merely controls the
time, place or manner, and under well defined standards;[60] or (2)
a content-based restraint or censorship, i.e., the restriction is based on the
subject matter of the utterance or speech. [61] The cast of the restriction
determines the test by which the challenged act is assayed with.
When the speech restraints take the form of a content-neutral regulation,

only a substantial governmental interest is required for its
validity.[62] Because regulations of this type are not designed to suppress
any particular message, they are not subject to the strictest form of judicial
scrutiny but an intermediate approachsomewhere between the mere
rationality that is required of any other law and the compelling interest
standard applied to content-based restrictions.[63] The test is
called intermediate because the Court will not merely rubberstamp the
validity of a law but also require that the restrictions be narrowly-tailored to
promote an important or significant governmental interest that is unrelated
to the suppression of expression. The intermediate approach has been
formulated in this manner:
A governmental regulation is sufficiently justified if it is within the

constitutional power of the Government, if it furthers an important or
substantial governmental interest; if the governmental interest is unrelated
to the suppression of free expression; and if the incident restriction on
alleged [freedom of speech & expression] is no greater than is essential to
the furtherance of that interest. [64]
On the other hand, a governmental action that restricts freedom of speech

or of the press based on content is given the strictest scrutiny in light of
its inherent and invasive impact. Only when the challenged act has
overcome the clear and present danger rule will it pass constitutional
muster,[65] with the government having the burden of overcoming the
presumed unconstitutionality.
Unless the government can overthrow this presumption, the content-

based restraint will be struck down.[66]
With respect to content-based restrictions, the government must also

show the type of harm the speech sought to be restrained would bring
about especially the gravity and the imminence of the threatened harm
otherwise the prior restraint will be invalid. Prior restraint on speech based
on its content cannot be justified by hypothetical fears, but only by showing
a substantive and imminent evil that has taken the life of a reality already
on ground.[67] As formulated, the question in every case is whether the
words used are used in such circumstances and are of such a nature as
to createa clear and present danger that they will bring about the
substantive evils that Congress has a right to prevent. It is a question of
proximity and degree.[68]
The regulation which restricts the speech content must also serve an
important or substantial government interest, which is unrelated to the
suppression of free expression. [69]
Also, the incidental restriction on speech must be no greater than what is

essential to the furtherance of that interest. [70] A restriction that is so broad
that it encompasses more than what is required to satisfy the governmental
interest will be invalidated. [71] The regulation, therefore, must be
reasonable and narrowly drawn to fit the regulatory purpose, with the least
restrictive means undertaken. [72]
Thus, when the prior restraint partakes of a content-neutral regulation, it

is subjected to an intermediate review. A content-based
regulation,[73] however, bears a heavy presumption of invalidity and is
measured against the clear and present danger rule. The latter will pass
constitutional muster only if justified by a compelling reason, and the
restrictions imposed are neither overbroad nor vague. [74]
Applying the foregoing, it is clear that the challenged acts in the case at bar
need to be subjected to the clear and present danger rule, as they
are content-based restrictions. The acts of respondents focused solely
on but one objecta specific content fixed as these were on the alleged
taped conversations between the President and a COMELEC official.
Undoubtedly these did not merely provide regulations as to the time, place
or manner of the dissemination of speech or expression.
E.5. Dichotomy of Free Press: Print v. Broadcast Media

Finally, comes respondents argument that the challenged act is valid on the
ground that broadcast media enjoys free speech rights that are lesser in
scope to that of print media. We next explore and test the validity of this
argument, insofar as it has been invoked to validate a content-based
restriction on broadcast media.
The regimes presently in place for each type of media differ from one
other. Contrasted with the regime in respect of books, newspapers,
magazines and traditional printed matter, broadcasting, film and video have
been subjected to regulatory schemes.
The dichotomy between print and broadcast media traces its origins in the
United States. There, broadcast radio and television have been held to
have limited First Amendment protection,[75]and U.S. Courts
have excluded broadcast media from the application of the strict scrutiny
standard that they would otherwise apply to content-based
restrictions.[76] According to U.S. Courts, the three major reasons why
broadcast media stands apart from print media are: (a) the scarcity of the
frequencies by which the medium operates [i.e., airwaves are physically
limited while print medium may be limitless]; [77] (b) its pervasiveness as a
medium; and (c) its unique accessibility to children.[78] Because cases
involving broadcast media need not follow precisely the same approach
that [U.S. courts] have applied to other media, nor go so far as to demand
that such regulations serve compelling government interests,[79] they are
decided on whether the governmental restriction is narrowly tailored
to further a substantial governmental interest,[80] or the intermediate
test.
As pointed out by respondents, Philippine jurisprudence has also echoed a

differentiation in treatment between broadcast and print
media. Nevertheless, a review of Philippine case law on broadcast
media will show thatas we have deviated with the American
conception of the Bill of Rights[81] we likewise did not adopt en
masse the U.S. conception of free speech as it relates to broadcast
media, particularly as to which test would govern content-based prior
restraints.
Our cases show two distinct features of this dichotomy. First, the difference
in treatment, in the main, is in the regulatory scheme applied to broadcast
media that is not imposed on traditional print media, and narrowly confined
to unprotected speech (e.g., obscenity, pornography, seditious and inciting
speech), or is based on a compelling government interest that also has
constitutional protection, such as national security or the electoral process.
Second, regardless of the regulatory schemes that broadcast media is

subjected to, the Court has consistently held that the clear and present
danger test applies to content-based restrictions on media, without making
a distinction as to traditional print or broadcast media.
The distinction between broadcast and traditional print media was

first enunciated in Eastern Broadcasting Corporation (DYRE) v.
Dans,[82] wherein it was held that [a]ll forms of media, whether print or
broadcast, are entitled to the broad protection of the freedom of speech
and expression clause. The test for limitations on freedom of expression
continues to be the clear and present danger rule[83]
Dans was a case filed to compel the reopening of a radio station which had
been summarily closed on grounds of national security. Although the issue
had become moot and academic because the owners were no longer
interested to reopen, the Court still proceeded to do an analysis of the case
and made formulations to serve as guidelines for all inferior courts and
bodies exercising quasi-judicial functions. Particularly, the Court made a
detailed exposition as to what needs be considered in cases involving
broadcast media. Thus:[84]
xxx xxx xxx
(3) All forms of media, whether print or broadcast, are entitled to the broad
protection of the freedom of speech and expression clause. The test for
limitations on freedom of expression continues to be the clear and
present danger rule, that words are used in such circumstances and are
of such a nature as to create a clear and present danger that they will bring
about the substantive evils that the lawmaker has a right to prevent, In
his Constitution of the Philippines (2nd Edition, pp. 569-570) Chief Justice
Enrique M. Fernando cites at least nine of our decisions which apply the
test. More recently, the clear and present danger test was applied in J.B.L.
Reyes in behalf of the Anti-Bases Coalition v. Bagatsing. (4) The clear and
present danger test, however, does not lend itself to a simplistic and all
embracing interpretation applicable to all utterances in all forums.
Broadcasting has to be licensed. Airwave frequencies have to be allocated

among qualified users. A broadcast corporation cannot simply appropriate
a certain frequency without regard for government regulation or for the
rights of others.
All forms of communication are entitled to the broad protection of the

freedom of expression clause. Necessarily, however, the freedom of
television and radio broadcasting is somewhat lesser in scope than the
freedom accorded to newspaper and print media.
The American Court in Federal Communications Commission v. Pacifica

Foundation (438 U.S. 726), confronted with a patently offensive and
indecent regular radio program, explained why radio broadcasting, more
than other forms of communications, receives the most limited protection
from the free expression clause. First, broadcast media have established a
uniquely pervasive presence in the lives of all citizens, Material presented
over the airwaves confronts the citizen, not only in public, but in the privacy
of his home. Second, broadcasting is uniquely accessible to children.
Bookstores and motion picture theaters may be prohibited from making
certain material available to children, but the same selectivity cannot be
done in radio or television, where the listener or viewer is constantly tuning
in and out.
Similar considerations apply in the area of national security.
The broadcast media have also established a uniquely pervasive presence

in the lives of all Filipinos. Newspapers and current books are found only in
metropolitan areas and in the poblaciones of municipalities accessible to
fast and regular transportation. Even here, there are low income masses
who find the cost of books, newspapers, and magazines beyond their
humble means. Basic needs like food and shelter perforce enjoy high
priorities.
On the other hand, the transistor radio is found everywhere. The television
set is also becoming universal. Their message may be simultaneously
received by a national or regional audience of listeners including the
indifferent or unwilling who happen to be within reach of a blaring radio or
television set. The materials broadcast over the airwaves reach every
person of every age, persons of varying susceptibilities to persuasion,
persons of different I.Q.s and mental capabilities, persons whose reactions
to inflammatory or offensive speech would be difficult to monitor or predict.
The impact of the vibrant speech is forceful and immediate. Unlike readers
of the printed work, the radio audience has lesser opportunity to cogitate
analyze, and reject the utterance.
(5) The clear and present danger test, therefore, must take the particular
circumstances of broadcast media into account. The supervision of radio
stations-whether by government or through self-regulation by the industry
itself calls for thoughtful, intelligent and sophisticated handling.
The government has a right to be protected against broadcasts which incite
the listeners to violently overthrow it. Radio and television may not be used
to organize a rebellion or to signal the start of widespread uprising. At the
same time, the people have a right to be informed. Radio and television
would have little reason for existence if broadcasts are limited to bland,
obsequious, or pleasantly entertaining utterances. Since they are the most
convenient and popular means of disseminating varying views on public
issues, they also deserve special protection.
(6) The freedom to comment on public affairs is essential to the vitality of a

representative democracy. In the 1918 case of United States v. Bustos (37
Phil. 731) this Court was already stressing that.
The interest of society and the maintenance of good government demand a

full discussion of public affairs. Complete liberty to comment on the conduct
of public men is a scalpel in the case of free speech. The sharp incision of
its probe relieves the abscesses of officialdom. Men in public life may suffer
under a hostile and an unjust accusation; the wound can be assuaged with
the balm of a clear conscience. A public officer must not be too thin-
skinned with reference to comment upon his official acts. Only thus can the
intelligence and dignity of the individual be exalted.
(7) Broadcast stations deserve the special protection given to all forms of
media by the due process and freedom of expression clauses of the
Constitution. [Citations omitted]
It is interesting to note that the Court in Dans adopted the arguments found
in U.S. jurisprudence to justify differentiation of treatment (i.e., the scarcity,
pervasiveness and accessibility to children), but only after categorically
declaring that the test for limitations on freedom of expression
continues to be the clear and present danger rule, for all forms of
media, whether print or broadcast. Indeed, a close reading of the above-
quoted provisions would show that the differentiation that the Court
in Dans referred to was narrowly restricted to what is otherwise deemed as
unprotected speech (e.g., obscenity, national security, seditious and
inciting speech), or to validate a licensing or regulatory scheme necessary
to allocate the limited broadcast frequencies, which is absent in print
media. Thus, when this Court declared in Dans that the freedom given to
broadcast media was somewhat lesser in scope than the freedom
accorded to newspaper and print media, it was not as to what test should
be applied, but the context by which requirements of licensing, allocation of
airwaves, and application of norms to unprotected speech. [85]
In the same year that the Dans case was decided, it was reiterated
in Gonzales v. Katigbak,[86] that the test to determine free expression
challenges was the clear and present danger, again without distinguishing
the media.[87] Katigbak, strictly speaking, does not treat of broadcast media
but motion pictures. Although the issue involved obscenity standards as
applied to movies,[88] the Court concluded its decision with the
following obiter dictum that a less liberal approach would be used to
resolve obscenity issues in television as opposed to motion pictures:
All that remains to be said is that the ruling is to be limited to the concept of
obscenity applicable to motion pictures. It is the consensus of this Court
that where television is concerned, a less liberal approach calls for
observance. This is so because unlike motion pictures where the patrons
have to pay their way, television reaches every home where there is a
set.Children then will likely be among the avid viewers of the programs
therein shown..It cannot be denied though that the State as parens
patriae is called upon to manifest an attitude of caring for the welfare of the
young.
More recently, in resolving a case involving the conduct of exit polls and
dissemination of the results by a broadcast company, we reiterated that the
clear and present danger rule is the test we unquestionably adhere to
issues that involve freedoms of speech and of the press.[89]
This is not to suggest, however, that the clear and present danger rule
has been applied to all cases that involve the broadcast media. The
rule applies to all media, including broadcast, but only when the challenged
act is a content-based regulation that infringes on free speech, expression
and the press. Indeed, in Osmena v. COMELEC,[90] which also involved
broadcast media, the Court refused to apply the clear and present danger
rule to a COMELEC regulation of time and manner of advertising of political
advertisements because the challenged restriction was content-
neutral.[91] And in a case involving due process and equal protection issues,
the Court in Telecommunications and Broadcast Attorneys of the
Philippines v. COMELEC[92] treated a restriction imposed on a broadcast
media as a reasonable condition for the grant of the medias franchise,
without going into which test would apply.
That broadcast media is subject to a regulatory regime absent in print

media is observed also in other jurisdictions, where the statutory regimes in
place over broadcast media include elements of licensing, regulation by
administrative bodies, and censorship. As explained by a British author:
The reasons behind treating broadcast and films differently from the print
media differ in a number of respects, but have a common historical
basis. The stricter system of controls seems to have been adopted in
answer to the view that owing to their particular impact on audiences,
films, videos and broadcasting require a system of prior restraints, whereas
it is now accepted that books and other printed media do not. These media
are viewed as beneficial to the public in a number of respects, but are also
seen as possible sources of harm.[93]
Parenthetically, these justifications are now the subject of
debate. Historically, the scarcity of frequencies was thought to provide a
rationale. However, cable and satellite television have enormously
increased the number of actual and potential channels. Digital
technology will further increase the number of channels available. But still,
the argument persists that broadcasting is the most influential means of
communication, since it comes into the home, and so much time is spent
watching television. Since it has a unique impact on people and affects
children in a way that the print media normally does not, that regulation is
said to be necessary in order to preserve pluralism. It has been argued
further that a significant main threat to free expressionin terms of
diversitycomes not from government, but from private corporate
bodies. These developments show a need for a reexamination of the
traditional notions of the scope and extent of broadcast media
regulation. [94]
The emergence of digital technology -- which has led to the convergence of

broadcasting, telecommunications and the computer industry -- has
likewise led to the question of whether the regulatory model for
broadcasting will continue to be appropriate in the converged
environment.[95] Internet, for example, remains largely unregulated, yet the
Internet and the broadcast media share similarities, [96] and the rationales
used to support broadcast regulation apply equally to the Internet.[97] Thus,
it has been argued that courts, legislative bodies and the government
agencies regulating media must agree to regulate both, regulate neither or
develop a new regulatory framework and rationale to justify the differential
treatment. [98]
F. The Case At Bar

Having settled the applicable standard to content-based restrictions on
broadcast media, let us go to its application to the case at bar. To
recapitulate, a governmental action that restricts freedom of speech
or of the press based on content is given the strictest
scrutiny, with the government having the burden of overcoming the
presumed unconstitutionality by the clear and present danger rule. This
rule applies equally to all kinds of media, including broadcast media.
This outlines the procedural map to follow in cases like the one at bar as it
spells out the following: (a) the test; (b) the presumption; (c) the burden of
proof; (d) the party to discharge the burden; and (e) the quantum of
evidence necessary. On the basis of the records of the case at bar,
respondents who have the burden to show that these acts do not abridge
freedom of speech and of the press failed to hurdle the clear and present
danger test. It appears that the great evil which government wants to
prevent is the airing of a tape recording in alleged violation of the anti-
wiretapping law. The records of the case at bar, however, are confused and
confusing, and respondents evidence falls short of satisfying the clear and
present danger test. Firstly, the various statements of the Press Secretary
obfuscate the identity of the voices in the tape recording. Secondly, the
integrity of the taped conversation is also suspect. The Press Secretary
showed to the public two versions, one supposed to be a complete version
and the other, an altered version. Thirdly, the evidence of the respondents
on the whos and the hows of the wiretapping act is ambivalent, especially
considering the tapes different versions. The identity of the wire-tappers,
the manner of its commission and other related and relevant proofs are
some of the invisibles of this case. Fourthly, given all these unsettled
facets of the tape, it is even arguable whether its airing would violate the
anti-wiretapping law.
We rule that not every violation of a law will justify straitjacketing the
exercise of freedom of speech and of the press. Our laws are of
different kinds and doubtless, some of them provide norms of conduct
which even if violated have only an adverse effect on a persons private
comfort but does not endanger national security. There are laws of great
significance but their violation, by itself and without more, cannot support
suppression of free speech and free press. In fine, violation of law is just
a factor, a vital one to be sure, which should be
weighed in adjudging whether to restrain freedom of speech and of the
press. The totality of the injurious effects of the violation to private and
public interest must be calibrated in light of the preferred status accorded
by the Constitution and by related international covenants protecting
freedom of speech and of the press. In calling for a careful and calibrated
measurement of the circumference of all these factors to determine
compliance with the clear and present danger test, the Court should not
be misinterpreted as devaluing violations of law. By all
means, violations of law should be vigorously prosecuted by the
State for they breed their own evil consequence. But to repeat, the need to
prevent their violation cannot per se trump the exercise of
free speech and free press, a preferred right whose breach can
lead to greater evils. For this failure of the respondents alone to offer
proof to satisfy the clear and present danger test, the Court has no option
but to uphold the exercise of free speech and free press. There is no
showing that the feared violation of the anti-wiretapping law clearly
endangers the national security of the State.
This is not all the faultline in the stance of the respondents. We slide to the
issue of whether the mere press statements of the Secretary of Justice
and of the NTC in question constitute a form of content-based prior
restraint that has transgressed the Constitution. In resolving this issue, we
hold that it is not decisive that the press statements made by
respondents were not reduced in or followed up with formal orders or
circulars. It is sufficient that the press statements were made by
respondents while in the exercise of their official functions.
Undoubtedly, respondent Gonzales made his statements as Secretary of
Justice, while the NTC issued its statement as the regulatory body of
media. Any act done, such as a speech uttered, for and on behalf of
the government in an official capacity is covered by the rule on prior
restraint. The concept of an act does not limit itself to acts already
converted to a formal order or official circular.Otherwise, the non
formalization of an act into an official order or circular will result in
the easy circumvention of the prohibition on prior restraint. The press
statements at bar are acts that should be struck down as they constitute
impermissible forms of prior restraints on the right to free speech and
press.
There is enough evidence of chilling effect of the complained acts on

record. The warnings given to media came from no less the NTC, a
regulatory agency that can cancel the Certificate of Authority of the radio
and broadcast media. They also came from the Secretary of Justice, the
alter ego of the Executive, who wields the awesome power to prosecute
those perceived to be violating the laws of the land. After the
warnings, the KBP inexplicably joined the NTC in issuing an ambivalent
Joint Press Statement. After the warnings, petitioner Chavez was left alone
to fight this battle for freedom of speech and of the press. This silence on
the sidelines on the part of some media practitioners is too deafening to be
the subject of misinterpretation.
The constitutional imperative for us to strike down unconstitutional acts

should always be exercised with care and in light of the distinct facts of
each case. For there are no hard and fast rules when it comes to slippery
constitutional questions, and the limits and construct of relative freedoms
are never set in stone. Issues revolving on their construct must be decided
on a case to case basis, always based on the peculiar shapes and
shadows of each case. But in cases where the challenged acts are patent
invasions of a constitutionally protected right, we should be swift in
striking them down as nullities per se. A blow too soon struck for
freedom is preferred than a blow too late.
In VIEW WHEREOF, the petition is GRANTED. The writs of certiorari and
prohibition are hereby issued, nullifying the official statements made by
respondents on June 8, and 11, 2005 warning the media on airing the
alleged wiretapped conversation between the President and other
personalities, for constituting unconstitutional prior restraint on the exercise
of freedom of speech and of the press
SO ORDERED.

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CARLOS SUPERDRUG CORP.

This is a petition[1] for Prohibition with Prayer for Preliminary Injunction

Petitioners are domestic corporations and proprietors operating drugstores

Public respondents, on the other hand, include the Department of Social

The antecedents are as follows:

Article 8. Tax Deduction of Establishments. The establishment may claim

Effectively, a tax credit is a peso-for-peso deduction from a taxpayers tax

It must be noted, however, that conceptually, a tax credit scheme under

Under this scheme, the establishment concerned is allowed to deduct from

It may be necessary to note that while the burden on [the] government is

A simple illustration might help amplify the points discussed above, as

Tax Deduction Tax Credit

Less : Cost of goods sold x x x x x x x x x x

Less: Operating Expenses:

Tax Deduction on Discounts x x x x --

Net Taxable Income x x x x x x x x x x

Less: Tax Credit -- ______x x

Net Tax Due -- x x

As shown above, under a tax deduction scheme, the tax deduction on

Meanwhile, on October 1, 2004, Administrative Order (A.O.) No. 171 or

On November 12, 2004, the DOH issued Administrative Order No

Petitioners assail the constitutionality of Section 4(a) of the Expanded

1) The law is confiscatory because it infringes Art. III, Sec. 9 of

2) It violates the equal protection clause (Art. III, Sec. 1)

3) The 20% discount on medicines violates the constitutional

Petitioners assert that Section 4(a) of the law is unconstitutional because it

Examining petitioners arguments, it is apparent that what petitioners are

Theoretically, the treatment of the discount as a deduction reduces the net

The permanent reduction in their total revenues is a forced subsidy

The Court believes so.

SEC. 2. Republic Act No. 7432 is hereby amended to read as follows:

(f) To recognize the important role of the private sector in the

For this reason, when the conditions so demand as determined by the

Police power as an attribute to promote the common good would be diluted

Petitioners computation is flawed. For purposes of reimbursement, the law

Furthermore, it is unfair for petitioners to criticize the law because they

WHEREFORE, the petition is DISMISSED for lack of merit.

G.R. No. 161107 March 12, 2013

HON. MA. LOURDES C. FERNANDO, in her capacity as City Mayor of

Respondents St. Scholastica’s College (SSC) and St. Scholastica’s

The petitioners are the officials of the City Government of Marikina. On

ORDINANCE No. 192

ORDINANCE REGULATING THE CONSTRUCTION OF FENCES AND

WHEREAS, under Section 447.2 of Republic Act No. 7160 otherwise

WHEREAS the effort of the municipality to accelerate its economic and

WHEREAS, the adoption of such technical standards shall provide more

WHEREAS, to discourage, suppress or prevent the concealment of

WHEREAS, high and solid walls as fences are considered "un-neighborly"

WHEREAS, to gather as wide-range of opinions and comments on this

WHEREAS, the rationale and mechanics of the proposed ordinance were

NOW, THEREFORE, BE IT ORDAINED BY THE SANGGUINANG BAYAN

Section 1. Coverage: This Ordinance regulates the construction of all

Section 2. Definition of Terms:

d. Front gate – refers to the gate which serves as a passage of persons or

Section 3. The standard height of fences or walls allowed under this

(1) The Ordinance does not cover perimeter walls of residential

Section 7. Transitory Provision. Real property owners whose existing

(1) Residential houses – eight (8) years

(2) Commercial establishments – five (5) years

(3) Industrial establishments – three (3) years

Section 8. Penalty. Walls found not conforming to the provisions of this

Section 9. The Municipal Engineering Office is tasked to strictly implement

Section 11. Separability Clause. If for any reason or reasons, local

Section 12. Effectivity. This ordinance takes effect after publication.