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Republic of the Philippines The complainant denied that she and Laurentino were paid

SUPREME COURT the P200,000.00 purchase price or that they would sell the
Manila property "for such a measly sum" when they stood to get at
least P6,000,000.00 as just compensation.6
SECOND DIVISION
The complainant also claimed that the respondent notarized
Adm. Case No. 6475 January 30, 2013 the Deed of Absolute Sale dated June 4, 2001 even though
Reynold and Sylvia (his mother’s sister) are his uncle and his
aunt, respectively.7
FE A. YLAYA, Complainant,
vs.
ATTY. GLENN CARLOS GACOTT, Respondent. The respondent denied all the allegations in the complaint.8

DECISION The respondent argued that the complainant’s greed to get the
just Compensation9 caused her to file this "baseless,
unfounded and malicious" disbarment case.10 He claimed that
BRION, J.:
the sale was their voluntary transaction and that he "simply
ratified the document."11 He also claimed that Reynold and
For the Court's consideration is the disbarment Laurentino had originally jointly purchased the properties
complaint1 tiled by Fe A. Ylaya (complainant) against Atty. from Cirilo Arellano on July 10, 2000; that they were co-
Glenn Carlos Gacott (respondent) who allegedly deceived the owners for some time; and that Laurentino subsequently sold
complainant and her late husband, Laurentino L. Ylaya, into his share to Reynold under a Deed of Absolute Sale dated June
signing a "preparatory" Deed of Sale that the respondent 4, 2001.12
converted into a Deed of Absolute Sale in favor of his
relatives.
The respondent specifically denied asking the complainant and
her late husband to execute any "preparatory deed of sale" in
After the submission of the respondent's comment to the favor of the City Government.13 He also denied that the Deed
complaint, the Court referred the complaint to the Commission of Absolute Sale contained blanks when they signed it.14 That
on Bar Discipline ofthe Integrated Bar of the Philippines (IBP) he filed for the spouses Ylaya and Reynold an opposition to
for investigation, evaluation and recommendation. the just compensation the RTC fixed proved that there was no
agreement to use the document for the expropriation
The complainant alleged that she and her late husband are the case.15 He also argued that it was clear from the document that
registered owners of two (2) parcels of land covered by the intended buyer was a natural person, not a juridical person,
Transfer Certificate of Title ( TCT) Nos. 162632 and 162633 because there were spaces for the buyer’s legal age, marital
located at Barangay Sta. Lourdes, Puerto Princesa City. Prior status, and citizenship,16 and he was even constrained to file a
to the acquisition of these properties, TCT No. 162632 subsequent Motion to Intervene on behalf of Reynold because
(property) was already the subject of expropriation the complainant "maliciously retained" the TCTs to the subject
proceedings filed by the City Government of Puerto Princesa properties after borrowing them from his office. 17 Lastly, he
(City Government) on May 23, 1996 against its former denied violating the Rules on Notarial Practice.18
registered owner, Cirilo Arellano. The expropriation case was
filed with the Regional Trial Court (RTC) of Palawan and On September 4, 2006, the respondent filed a Motion to
Puerto Princesa, Branch 95, and was docketed as Civil Case Resolve or Decide the Case dated August 24, 2006 praying for
No. 2902. The RTC already fixed the price and issued an order the early resolution of the complaint.19
for the City Government to deposit P6,000,000.00 as just
compensation for the property.2
On December 5, 2006, the complainant filed an Ex Parte
Motion to Withdraw the Verified Complaint and To Dismiss
The respondent briefly represented the complainant and her the Case dated November 14, 2006.20
late husband in the expropriation case as intervenors for being
the new registered owners of the property. The complainant
alleged that the respondent convinced them to sign a On February 28, 2008, the complainant executed an
Affidavit21 affirming and confirming the existence,
"preparatory deed of sale" for the sale of the property, but he
genuineness and due execution of the Deed of Absolute Sale
left blank the space for the name of the buyer and for the
notarized on March 6, 2000;22 the Memorandum of Agreement
amount of consideration. The respondent further alleged that
(MOA) dated April 19, 2000;23 and the Deed of Absolute Sale
the deed would be used in the sale to the City Government
when the RTC issues the order to transfer the titles.3 The notarized in 2001.24 The respondent submitted this Affidavit to
respondent then fraudulently – without their knowledge and the IBP as an attachment to his Motion for Reconsideration of
April 21, 2008.25
consent, and contrary to their understanding – converted the
"preparatory deed of sale" into a Deed of Absolute Sale dated
June 4, 2001,4 selling the subject property to Reynold So and The IBP’s Findings
Sylvia Carlos So for P200,000.00.5

1
In her Report and Recommendation dated November 19, evidence in a formal hearing thus, violated the
2007, IBP Commissioner Anna Caridad Sazon-Dupaya found respondent’s right to due process as he was not able
the respondent administratively liable for violating Canon 1, to cross-examine her. This is not to mention that the
Rule 1.01 (A lawyer shall not engage in unlawful, dishonest, complainant failed to offer corroborative proof to
immoral or deceitful conduct) and Canon 16 ("A lawyer shall prove her bare allegations;
hold in trust all moneys and properties of his client that may
come into his possession) of the Code of Professional b) In sweepingly and arbitrarily disregarded/skirted
Responsibility, and Section 3(c), Rule IV of A.M. No. 02-8- (sic) the public documents (MOA and 2 other DOAS)
13-SC (2004 Rules on Notarial Practice).26 She recommended duly executed by the parties therein and notarized by
his suspension from the practice of law for a period of six (6) the respondent;
months.27
c) In totally ignoring the complainant’s Affidavit
In its Resolution No. XVIII-2007-30228 dated December 14, admitting the genuineness and due execution of the
2007, the IBP Board of Governors adopted the IBP Deed of Absolute Sale in issue;
Commissioner’s finding, but increased the penalty imposed to
two (2) years suspension and a warning:
d) In arbitrarily concluding the absence of co-
ownership by Reynold So and Fe Ylaya of the subject
RESOLVED to ADOPT and APPROVE, as it is hereby lots despite the existence of a notarized MOA clearly
unanimously ADOPTED and APPROVED, with modification, showing the co-ownership of Ylaya and So; and
the Report and Recommendation of the Investigating
Commissioner [in] the above-entitled case, herein made part
e) In finding the respondent/appellant’s act of
of this Resolution as Annex "A"; and, finding the
notarizing the DOAS as contrary to the notarial rules.
recommendation fully supported by the evidence on record
and the applicable laws and rules, and considering
respondent’s violations of Canon 1, [Rule] 1.01 and Canon 16 The Issues
of the Code of Professional Responsibility and Rule IV, Sec.
39(c) of A.M. No. 02-8-13-SC (2004 Rules on Notarial From the assigned errors, the complainant poses the following
Practice), Atty. Glenn Carlos Gacott is hereby SUSPENDED issues:
from practice of law for two (2) years with a Warning that
commission of a similar offense will be dealt with more (1) whether the IBP violated the respondent’s right to
severely. [emphases supplied] due process; and

On May 8, 2008, the respondent filed a Motion for (2) whether the evidence presented supports a finding
Reconsideration dated April 21, 2008, attaching, among that the respondent is administratively liable for
others, a copy of the complainant’s Affidavit dated February violating Canon 1, Rule 1.01 and Canon 16 of the
27, 2008, admitting the existence, genuineness and due Code of Professional Responsibility, and Section
execution of the Deed of Absolute Sale between Cirilo and 3(c), Rule IV of A.M. No. 02-8-13-SC.
Laurentino; the MOA between Laurentino and Reynold; the
Deed of Absolute Sale between Laurentino and Reynold; and The Court’s Ruling
the Compromise Agreement between Reynold and the
complainant dated November 14, 2006 for the expropriation
We set aside the findings and recommendations of the IBP
case.29
Commissioner and those of the IBP Board of Governors
finding the respondent liable for violating Canon 1, Rules 1.01
On September 4, 2008, the respondent filed a Manifestation and Section 3(c), Rule IV of A.M. No. 02-8-13-SC.34
with the Supreme Court, requesting that the IBP be directed to
resolve his Motion for Reconsideration.30
We however hold the respondent liable for violating Canon 16
of the Code of Professional Responsibility for being remiss in
By Resolution No. XIX-2010-545 dated October 8, 2010,31 the his obligation to hold in trust his client’s properties. We
IBP Board of Governors denied the respondent’s Motion for likewise find him liable for violation of (1) Canon 15, Rule
Reconsideration for failing to raise any new substantial matter 15.03 for representing conflicting interests without the written
or any cogent reason to warrant a reversal or even a consent of the represented parties, thus, violating the rule on
modification of its Resolution No. XVIII-2007-302.32 conflict of interests; and (2) Canon 18, Rule 18.03 for
neglecting a legal matter entrusted to him.
On March 14, 2012, the respondent filed a Petition for Review
(on appeal) assailing the IBP’s findings, as follows:33 a. Due process violation

a) In conveniently concluding that the Deed of The most basic tenet of due process is the right to be heard.
Absolute Sale was pre-signed and fraudulently Denial of due process means the total lack of opportunity to be
notarized without requiring Fe Ylaya to adduce heard or to have one’s day in court. As a rule, no denial of due
2
process takes place where a party has been given an recommendation, and were the bases for the IBP Board’s
opportunity to be heard and to present his case;35 what is Resolution.
prohibited is the absolute lack of opportunity to be heard.
Moreover, "any seeming defect in the observance of due
The respondent claims that the IBP violated his right to due process is cured by the filing of a motion for reconsideration.
process because he was not given the "amplest opportunity to A denia of due process cannot be successfully invoked by a
defend himself, to cross examine the witness complainant, to party who has had the opportunity to be heard on his motion
object to the admissibility of documents or present for reconsideration. Undoubtedly in this case, the requirement
controverting evidence"36 when the IBP rendered its of the law was afforded to the respondent." 43
conclusion without requiring the complainant to adduce
evidence in a formal hearing and despite the absence of We also note that the respondent, on a Motion to Resolve or
corroborative proof. He insists that these defects rendered the Decide the Case dated August 24, 2006, submitted his case to
complainant’s allegations as hearsay, and the IBP’s report, the IBP for its resolution without any further hearings. The
recommendation or resolution null and void. motion, filed almost one year after the mandatory conference
on October 6, 2005, significantly did not contain any
Although the respondent failed to have a face-to-face statement regarding a denial of due process. In effect, the
confrontation with the complainant when she failed to appear respondent himself waived his cross-examination of the
at the required mandatory conference on October 6, complainant when he asked the IBP Board of Governors to
2005,37 the records reveal that the respondent fully resolve the case based on the pleadings and the evidence on
participated during the entire proceedings and submitted record. To quote his own submission:
numerous pleadings, including evidence, before the IBP. He
was even allowed to file a motion for reconsideration 1. On June 30, 2004, a complaint was filed in this
supported by his submitted evidence, which motion the IBP case;
considered and ruled upon in its Resolution No. XIX-2010-
545 dated October 8, 2010.38
2. On October 19, 2004, the respondent filed his
comment with all its attachments denying all the
In Alliance of Democratic Free Labor Organization v. allegations in the complaint;
Laguesma,39 we held that due process, as applied to
administrative proceedings, is the opportunity to explain one’s 3. On June 23, 2005, the respondent filed his position
side. In Samalio v. Court of Appeals,40 due process in an
paper. On April 28, 2006, the respondent also filed
administrative context does not require trial-type proceedings
his supplemental position paper. By contrast, up to
similar to those in courts of justice. Where the opportunity to
this date, the complainant/petitioner has not filed her
be heard, either through oral arguments or through pleadings,
verified position paper thus, waived her right to file
is accorded, no denial of procedural due process takes place. the same;
The requirements of due process are satisfied where the parties
are afforded a fair and reasonable opportunity to explain their
side of the controversy at hand. 4. There being no other genuine issues to be heard in
this case as all the defenses and counter-arguments
are supported by documentary evidence, it is most
Similarly, in A.Z. Arnaiz Realty, Inc. v. Office of the respectfully prayed that the instant case be resolved
President,41 we held that "due process, as a constitutional on its merits or be ordered dismissed for lack of merit
precept, does not always, and in all situations, require a trial-
without further hearing;
type proceeding. Litigants may be heard through pleadings,
written explanations, position papers, memoranda or oral
arguments. The standard of due process that must be met in 5. Further, considering that there is an on-going case
administrative tribunals allows a certain degree of latitude[, in Branch 52 of the Regional Trial Court of Palawan
provided that] fairness is not ignored. It is, therefore, not in Civil Case No. 2902 for Expropriation involving
legally objectionable for being violative of due process, for an the same property, and such fact was deliberately
administrative agency to resolve a case based solely on omitted by the complainant in her Verified Complaint
position papers, affidavits or documentary evidence submitted as shown in the certification of non-forum shopping,
by the parties."42 the outright dismissal of this case is warranted,
hence, this motion; and
In this case, the respondent’s failure to cross-examine the
complainant is not a sufficient ground to support the claim that 6. This is meant to expedite the termination of this
he had not been afforded due process. The respondent was case.44 (underscore ours; italics supplied)
heard through his pleadings, his submission of alleged
controverting evidence, and his oral testimony during the Finally, we note Section 11, Rule 139-B of the Rules of Court
October 6, 2005 mandatory conference. These pleadings, which provides that:
evidence and testimony were received and considered by the
IBP Commissioner when she arrived at her findings and No defect in a complaint, notice, answer, or in the proceeding
or the Investigator’s Report shall be considered as substantial
3
unless the Board of Governors, upon considering the whole Board of Governors finds sufficient evidence of the
record, finds that such defect has resulted or may result in a respondent’s misconduct to warrant the exercise of its
miscarriage of justice, in which event the disciplinary powers.

Board shall take such remedial action as the circumstances b. Merits of the Complaint
may warrant, including invalidation of the entire proceedings.
"In administrative cases against lawyers, the quantum of proof
In this case, the IBP Commissioner’s findings were twice required is preponderance of evidence which the complainant
reviewed by the IBP Board of Governors – the first review has the burden to discharge."49 Preponderance of evidence
resulted in Resolution No. XVIII-2007-30245 dated December means that the evidence adduced by one side is, as a whole,
14, 2007, affirming the IBP Commissioner’s findings, but superior to or has a greater weight than that of the other. It
modifying the penalty; the second review resulted in means evidence which is more convincing to the court as
Resolution No. XIX-2010-545 dated October 8, worthy of belief compared to the presented contrary evidence.
2010,46 denying the respondent’s motion for reconsideration.
In both instances, the IBP Board of Governors found no defect Under Section 1, Rule 133 of the Rules of Court, in
or miscarriage of justice warranting a remedial action or the determining whether preponderance of evidence exists, the
invalidation of the proceedings. court may consider the following: (a) all the facts and
circumstances of the case; (b) the witnesses’ manner of
We emphasize that disciplinary proceedings against lawyers testifying, their intelligence, their means and opportunity of
are sui generis in that they are neither purely civil nor purely knowing the facts to which they are testifying, the nature of
criminal; they involve investigations by the Court into the the facts to which they testify, and the probability or
conduct of one of its officers,47 not the trial of an action or a improbability of their testimony; (c) the witnesses’ interest or
suit. want of interest, and also their personal credibility so far as the
same may ultimately appear in the trial; and (d) the number of
Disciplinary proceedings against lawyers are sui generis. witnesses, although it does not mean that preponderance is
Neither purely civil nor purely criminal, they do not involve a necessarily with the greater number.50 By law, a lawyer enjoys
trial of an action or a suit, but is rather an investigation by the the legal presumption that he is innocent of the charges against
Court into the conduct of one of its officers. Not being him until the contrary is proven, and that as an officer of the
intended to inflict punishment, it is in no sense a criminal court, he is presumed to have performed his duties in
prosecution. Accordingly, there is neither a plaintiff nor a accordance with his oath.51
prosecutor therein. It may be initiated by the Court motu
proprio. Public interest is its primary objective, and the real The IBP Commissioner set out her findings as follows:
question for determination is whether or not the attorney is
still a fit person to be allowed the privileges as such. Hence, in The undersigned, after a careful evaluation of the evidence
the exercise of its disciplinary powers, the Court merely calls presented by both parties, finds that the charges of the
upon a member of the Bar to account for his actuations as an complainant against the respondent are worthy of belief based
officer of the Court with the end in view of preserving the on the following:
purity of the legal profession and the proper and honest
administration of justice by purging the profession of First, the allegation of the respondent that Reynold So was
members who by their misconduct have proved themselves no actually co-owner of spouses Ylanas (sic) in the properties
longer worthy to be entrusted with the duties and
subject of the Deed of Sale between Felix Arellano and
responsibilities pertaining to the office of an attorney. In such
Spouses Ylanas (sic) is hard to believe despite the presentation
posture, there can thus be no occasion to speak of a
of the Memorandum of Agreement.
complainant or a prosecutor. [emphases deleted]
It is elementary in Rules of Evidence that when the contents of
The complainant in disbarment cases is not a direct party to
a written document are put in issue, the best evidence would
the case but a witness who brought the matter to the attention
be the document itself. In the Deed of Sale between Felix
of the Court.48 Flowing from its sui generis character, it is not
Arellano and Spouses Ylanas (sic), the buyer of the subject
mandatory to have a formal hearing in which the complainant properties is only Laurentino L. Ylaya married to Fe A. Ylaya.
must adduce evidence. The document does not state that Reynold So was likewise a
buyer together with Laurentino Ylaya, or that the former paid
From all these, we find it clear that the complainant is not half of the purchase price.
indispensable to the disciplinary proceedings and her failure to
appear for cross-examination or to provide corroborative Also, it is hard for this Commission to believe that Reynold
evidence of her allegations is of no merit. What is important is So, assisted by a lawyer at that and who allegedly paid half of
whether, upon due investigation, the IBP
the purchase price, would not insist for the inclusion of his
name in the Deed of Sale as well as the Transfer Certificate of
Title subsequently issued.

4
The Memorandum of Agreement between the spouses Ylaya The respondent argues that the IBP Commissioner’s findings
and Reynold So produced by the respondent cannot overturn are contrary to the presented evidence, specifically to the
the belief of this Commission considering that the MOA executed by Laurentino and Reynold acknowledging the
Memorandum of Agreement was executed more than a month existence of a co-ownership;53 to the complainant’s Ex Parte
AFTER the Deed of Sale between Felix Arellano and the Motion to Withdraw the Verified Complaint and To Dismiss
Ylayas was notarized. This is not to mention the fact that the the Case dated November 14, 2006 where she stated that the
complainant denied ever having executed the Memorandum of parties have entered into a compromise agreement in Civil
Agreement. A close examination of the signatories in the said Case No. 2902, and that the disbarment complaint arose from
Memorandum of Agreement would reveal that indeed, the a misunderstanding, miscommunication and improper
alleged signatures of the complainant and her husband are not appreciation of facts;54 to her Affidavit dated February 27,
the same with their signatures in other documents. 200855 affirming and confirming the existence, genuineness
and due execution of the Deed of Absolute Sale notarized on
Assuming, for the sake of argument, that the Memorandum of March 6, 2000;56 and to the Deed of Absolute Sale notarized
Agreement is valid, thereby making Laurentino Ylaya and co- in 2001.57
owner Reynold So co-owners of the subject properties (Please
see Annex "B" of respondent’s Comment), this Commission In all, the respondent claims that these cited pieces of evidence
finds it hard to believe Laurentino Ylaya would sell it to prove that this administrative complaint against him is
Reynold So for P200,000 x x x when his minimum expenses fabricated, false and untrue. He also points to Atty. Robert
for the purchase thereof is already P225,000.00 and he was Peneyra, the complainant’s counsel in this administrative case,
expecting to receiveP7,000,000.00, more or less. That would as the hand behind the complaint.58 According to the
mean that if Reynold So and the complainant were co-owners, respondent, Atty. Peneyra harbors ill-will against him and his
theP7,000,000.00 would then be equally divided among them family after his father filed several administrative cases
at P3,500,000.00 each, far above the P200,000.00 selling price against Atty. Peneyra, one of which resulted in the imposition
reflected in the pre-signed Deed of Sale. of a warning and a reprimand on Atty. Peneyra. 59

As to the second issue, this Commission believes that the Reynold, in his Affidavit dated October 11, 2004, confirms
respondent committed serious error in notarizing the Deed of that there was a co-ownership between him and Laurentino;
Sale and the Memorandum of Agreement between his uncle that Laurentino decided to sell his half of the property to
Reynold So and Laurentino Ylaya based on Rule IV, Section 3 Reynold because he (Laurentino) had been sickly and in dire
(c) of A.M. No. 02-8-13-SC which provides as follows: need of money to pay for his medical bills; that Laurentino
agreed to the price of P200,000.00 as this was almost the same
"Sec. 3. Disqualifications – a notary public is disqualified value of his investment when he and Reynold jointly acquired
from performing a notarial act if he: the property; and that the sale to Reynold was with the
agreement and consent of the complainant who voluntarily
(a) x x x. signed the Deed of Sale.60

After examining the whole record of the case, we agree with


(b) x x x.
the respondent and find the evidence insufficient to prove the
charge that he violated Canon 1, Rule 1.01 of the Code of
(c) is a spouse, common-law partner, ancestor, Professional Responsibility and Section 3(c), Rule IV of A.M.
descendant, or relative by affinity or consanguinity of No. 02-8-13-SC. Specifically, (1) the evidence against the
the principal within the fourth civil degree." respondent fails to show the alleged fraudulent and deceitful
acts he has taken to mislead the complainant and her husband
The defense therefore of the respondent that he did not violate into signing a "preparatory deed of sale" and the conversion
the aforementioned Rule becausehis uncle Reynold So, the into a Deed of Absolute Sale dated June 4, 2001 in favor of
buyer is not the principal in the Subject Deed of Sale but the Reynold; and (2) no prohibition exists against the notarization
seller Laurentino Ylaya (please see page 3 of the respondent’s of a document in which any of the parties interested is the
Supplemental Position Paper) is misplaced. Clearly, both the notary’s relative within the 4th civil degree, by affinity or
buyer and the seller in the instant case are considered consanguinity, at that time the respondent notarized the
principals in the contract entered into. documents.

Furthermore, if we are to consider the argument of the In her Report and Recommendation,61 the IBP Commissioner
respondent that his uncle was not a principal so as to apply the concluded that the respondent is liable for deceit and fraud
afore-quoted provision of the Rules, the respondent still because he failed to prove the existence of a co-ownership
violated the Rules when he notarized the subject between Laurentino and Reynold; in her opinion, the
Memorandum of Agreement between Laurentino Ylaya and signatures of the complainant and of her husband on the MOA
his uncle Reynold So. Clearly, both complainant and Reynold "are not the same with their signatures in other documents." 62
So were principal parties in the said Memorandum of
Agreement.52 We do not agree with this finding. While the facts of this case
may raise some questions regarding the respondent’s legal
5
practice, we nevertheless found nothing constituting clear We note that the respondent has not squarely addressed the
evidence of the respondent’s specific acts of fraud and deceit. issue of his relationship with Reynold, whom the complainant
His failure to prove the existence of a co-ownership does not alleges to be the respondent’s uncle because Reynold is
lead us to the conclusion that the MOA and the Deed of married to the respondent’s maternal aunt.75 However, this is
Absolute Sale dated June 4, 2001 are spurious and that the of no moment as the respondent cannot be held liable for
respondent was responsible for creating these spurious violating Section 3(c), Rule IV of A.M. No. 02-8-13-SC
documents. We are further persuaded, after noting that in because the Deed of Absolute Sale dated June 4, 2001 76 and
disregarding the MOA, the IBP Commissioner failed to the MOA dated April 19, 200077 were notarized by the
specify what differences she observed in the spouses Ylaya’s respondent prior to the effectivity of A.M. No. 02-8-13-SC on
signatures in the MOA and what documents were used in July 6, 2004. The notarial law in force in the years 2000 -
comparison. 2001 was Chapter 11 of Act No. 2711 (the Revised
Administrative Code of 1917) which did not contain the
Apart from her allegations, the complainant’s pieces of present prohibition against notarizing documents where the
evidence consist of TCT Nos. 162632 and 162633;63 her parties are related to the notary public within the 4th civil
Motion for Leave to Intervene in Civil Case No. 2902 dated degree, by affinity or consanguinity. Thus, we must likewise
May 17, 2000;64 the RTC order in Civil Case No. 2902 dated dismiss the charge for violation of A.M. No. 02-8-13-SC.
November 6, 2000 fixing the price of just compensation; 65 the
Deed of Absolute Sale dated June 4, 2001;66 the spouses c. Liability under Canons 15, 16 and 18 We find the
Ylaya’s Verified Manifestation dated September 2, 2002, filed respondent liable under Canon 15, Rule 15.03 for representing
with the RTC in Civil Case No. 2902, assailing the Motion to conflicting interests without the written consent of all
Deposit Just Compensation filed by the respondent on behalf concerned, particularly the complainant; under Canon 16 for
of Reynold and manifesting the sale between Laurentino and being remiss in his obligation to hold in trust his client’s
Reynold;67 the Provincial Prosecutor’s Subpoena to the properties; and under Canon 18, Rule 18.03 for neglecting a
complainant in connection with the respondent’s complaint for legal matter entrusted to him.
libel;68 the respondent’s complaint for libel against the
complainant dated August 27, 2003;69 the complainant’s Canon 15, Rule 15.03 states:
Counter Affidavit dated March 26, 2004 against the charge of
libel;70 and the respondent’s letter to the Provincial Attorney
A lawyer shall not represent conflicting interests except by
of Palawan dated April 5, 2004, requesting for "official
written consent of all concerned given after a full disclosure of
information regarding the actual attendance of Atty. ROBERT the facts. [emphasis ours]
Y. PENEYRA" at an MCLE seminar.71
The relationship between a lawyer and his client should
We do not see these documentary pieces of evidence as proof
ideally be imbued with the highest level of trust and
of specific acts constituting deceit or fraud on the respondent’s
confidence. Necessity and public interest require that this be
part. The documents by themselves are neutral and, at the so. Part of the lawyer’s duty to his client is to avoid
most, show the breakdown of the attorney-client relationship representing conflicting interests. He is duty bound to decline
between the respondent and the complainant. It is one thing to
professional employment, no matter how attractive the fee
allege deceit and misconduct, and it is another to demonstrate
offered may be, if its acceptance involves a violation of the
by evidence the specific acts constituting these allegations.72
proscription against conflict of interest, or any of the rules of
professional conduct. Thus, a lawyer may not accept a retainer
We reiterate that in disbarment proceedings, the burden of from a defendant after he has given professional advice to the
proof is on the complainant; the Court exercises its plaintiff concerning his claim; nor can he accept employment
disciplinary power only if the complainant establishes her case from another in a matter adversely affecting any interest of his
by clear, convincing, and satisfactory former client. It is his duty to decline employment in any of
evidence.73Preponderance of evidence means that the evidence these and similar circumstances in view of the rule prohibiting
adduced by one side is, as a whole, superior to or has a greater representation of conflicting interests.78
weight than that of the other party. When the pieces of
evidence of the parties are evenly balanced or when doubt
The proscription against representation of conflicting interest
exists on the preponderance of evidence, the equipoise rule
applies "even if the lawyer would not be called upon to
dictates that the decision be against the party carrying the
contend for one client that which the lawyer has to oppose for
burden of proof.74 the other, or that there would be no occasion to use the
confidential information acquired from one to the
In this case, we find that the complainant’s evidence and the disadvantage of the other as the two actions are wholly
records of the case do not show the respondent’s deliberate unrelated."79 The sole exception is provided in Canon 15, Rule
fraudulent and deceitful acts. In the absence of such proof, the 15.03 of the Code of Professional Responsibility – if there is a
complaint for fraud and deceit under Canon 1, Rule 1.01 of the written consent from all the parties after full disclosure.
Code of Professional Responsibility must perforce be
dismissed.
Based on the records, we find substantial evidence to hold the
respondent liable for violating Canon 15, Rule 15.03 of the
6
Code of Professional Responsibility. The facts of this case In Canoy v. Ortiz,89 we held that a lawyer’s failure to file a
show that the respondent retained clients who had close position paper was per se a violation of Rule 18.03 of the
dealings with each other. The respondent admits to acting as Code of Professional Responsibility. Similar to Canoy, the
legal counsel for Cirilo Arellano, the spouses Ylaya and respondent clearly failed in this case in his duty to his client
Reynold at one point during the proceedings in Civil Case No. when, without any explanation, he failed to file the Motion for
2902.80 Subsequently, he represented only Reynold in the Leave to Intervene on behalf of the spouses Ylaya. Under the
same proceedings,81 asserting Reynold’s ownership over the circumstances, we find that there was want of diligence;
property against all other claims, including that of the spouses without sufficient justification, this is sufficient to hold the
Ylaya.82 respondent liable for violating Canon 18, Rule 18.03 of the
Code of Professional Responsibility.
We find no record of any written consent from any of the
parties involved and we cannot give the respondent the benefit d. The Complainant’s Ex Parte Motion to Withdraw the
of the doubt in this regard. We find it clear from the facts of Verified Complaint and to Dismiss the Case and her Affidavit
this case that the respondent retained Reynold as his client and
actively opposed the interests of his former client, the We are aware of the complainant’s Ex Parte Motion to
complainant. He thus violated Canon 15, Rule 15.03 of the Withdraw the Verified Complaint and To Dismiss the Case
Code of Professional Responsibility. dated November 14, 200690 and her Affidavit91 affirming and
confirming the existence, genuineness and due execution of
We affirm the IBP Commissioner’s finding that the the Deed of Absolute Sale notarized on March 6, 2000. 92 The
respondent violated Canon 16. The respondent admits to complainant explains that the parties have entered into a
losing certificates of land titles that were entrusted to his care compromise agreement in Civil Case No. 2902, and that this
by Reynold.83 According to the respondent, the complainant disbarment complaint was filed because of a
"maliciously retained" the TCTs over the properties sold by "misunderstanding, miscommunication and improper
Laurentino to Reynold after she borrowed them from his appreciation of facts";93 she erroneously accused the
office.84 Reynold confirms that the TCTs were taken by the respondent of ill motives and bad intentions, but after being
complainant from the respondent’s law office.85 enlightened, she is convinced that he has no personal or
pecuniary interests over the properties in Civil Case No. 2902;
The respondent is reminded that his duty under Canon 16 is to that such misunderstanding was due to her unfamiliarity with
"hold in trust all moneys and properties of his client that may the transactions of her late husband during his lifetime. 94 The
come into his possession." Allowing a party to take the complainant now pleads for the respondent’s forgiveness,
original TCTs of properties owned by another – an act that stating that he has been her and her late husband’s lawyer for
could result in damage – should merit a finding of legal over a decade and affirms her trust and confidence in
malpractice. While we note that it was his legal staff who him.95 We take note that under their Compromise Agreement
allowed the complainant to borrow the TCTs and it does not dated November 14, 2006 for the expropriation case, 96 the
appear that the respondent was aware or present when the complainant and Reynold equally share the just compensation,
complainant borrowed the TCTs,86 we nevertheless hold the which have since increased to P10,000,000.00.
respondent liable, as the TCTs were entrusted to his care and
custody; he failed to exercise due diligence in caring for his While the submitted Ex Parte Motion to Withdraw the
client’s properties that were in his custody. Verified Complaint and to Dismiss the Case and the Affidavit
appear to exonerate the respondent, complete exoneration is
We likewise find the respondent liable for violating Canon 18, not the necessary legal effect as the submitted motion and
Rule 18.03 for neglecting a legal matter entrusted to him. affidavit are immaterial for purposes of the present
Despite the respondent’s admission that he represented the proceedings. Section 5, Rule 139-B of the Rules of Court
complainant and her late husband in Civil Case No. 2902 and states that, "No investigation shall be interrupted or terminated
that he purportedly filed a Motion for Leave to Intervene in by reason of the desistance, settlement, compromise,
their behalf, the records show that he never filed such a restitution, withdrawal of charges, or failure of the
motion for the spouses Ylaya. The complainant herself states complainant to prosecute the same."
that she and her late husband were forced to file the Motion
for Leave to Intervene on their own behalf. The records of the In Angalan v. Delante,97 despite the Affidavit of Desistance,
case, which include the Motion for Leave to Intervene filed by we disbarred the respondent therein for taking advantage of
the spouses Ylaya, support this conclusion.87 his clients and for transferring the title of their property to his
name. In Bautista v. Bernabe,98 we revoked the lawyer’s
Canon 18, Rule 18.03 requires that a lawyer "shall not neglect notarial commission, disqualified him from reappointment as a
a legal matter entrusted to him, and his negligence in notary public for two years, and suspended him from the
connection [therewith] shall render him liable." What amounts practice of law for one year for notarizing a document without
to carelessness or negligence in a lawyer’s discharge of his requiring the affiant to personally appear before him. In this
duty to his client is incapable of an exact formulation, but the cited case, we said:
Court has consistently held that the mere failure of a lawyer to
perform the obligations due his client is per se a violation. 88 Complainant’s desistance or withdrawal of the complaint does
not exonerate respondent or put an end to the administrative
7
proceedings. A case of suspension or disbarment may proceed practice of law or disbarment are always subject to this
regardless of interest or lack of interest of the complainant. Court’s review and approval.
What matters is whether, on the basis of the facts borne out by
the record, the charge of deceit and grossly immoral conduct The Penalty
has been proven. This rule is premised on the nature of
disciplinary proceedings. A proceeding for suspension or
In Solidon v. Macalalad,103 we imposed the penalty of
disbarment is not a civil action where the complainant is a
suspension of six ( 6) months from the practice of law on the
plaintiff and the respondent lawyer is a defendant. respondent therein for his violation of Canon 18, Rule 18.03
Disciplinary proceedings involve no private interest and afford and Canon 16, Rule 16.01 of the Code of Professional
no redress for private grievance. They are undertaken and
Responsibility. In Josefina M. Aniñon v. Atty. Clemencio
prosecuted solely for the public welfare. They are undertaken
Sabitsana, Jr.,104 we suspended the respondent therein from the
for the purpose of preserving courts of justice from the official
practice of law for one (1) year, for violating Canon 15, Rule
ministration of persons unfit to practice in them. The attorney
15.03 of the Code of Professional Responsibility. Under the
is called to answer to the court for his conduct as an officer of circumstances, we find a one (1) year suspension to be a
the court. The complainant or the person who called the sufficient and appropriate sanction against the respondent.
attention of the court to the attorney’s alleged misconduct is in
no sense a party, and has generally no interest in the outcome
except as all good citizens may have in the proper WHEREFORE, premises considered, we set aside Resolution
administration of justice.99 No. XVIII-.2007-302 dated December 14, 2007 and
Resolution No. XIX-2010-545 dated October 8, 2010 of the
IBP Board of Governors, and find respondent Atty. Glenn
In sum, in administrative proceedings against lawyers, the
Carlos Gacott GUILTY of violating Rule 15.03 of Canon 15,
complainant’s desistance or withdrawal does not terminate the
Canon 16, and Rule 18.03 of Canon 18 of the Code of
proceedings. This is particularly true in the present case where
Professional Responsibility. As a penalty, he is SUSPENDED
pecuniary consideration has been given to the complainant as
from the practice of law for one (1) year, with a WARNING
a consideration for her desistance. We note in this regard that that a repetition of the same or similar act will be dealt with
she would receiveP5,000,000.00, or half of the just
more severely.
compensation under the Compromise Agreement,100 and thus
agreed to withdraw all charges against the respondent. 101 From
this perspective, we consider the complainant’s desistance to SO ORDERED.
be suspect; it is not grounded on the fact that the respondent
did not commit any actual misconduct; rather, because of the Footnotes
consideration, the complainant is now amenable to the
position of the respondent and/or Reynold. 1
Rollo, pp. 2-6.

e. Procedural aspect 2
Id. at 2-4, 169.

We remind all parties that resolutions from the IBP Board of 3


Id. at 3-4.
Governors are merely recommendatory and do not attain
finality without a final action from this Court. Section 12, 4
Id. at 4-5; Annexes E and E-1 of the Complaint, id.
Rule 139-B is clear on this point that: at 16-17.

Section 12. Review and decision by the Board of Governors. – 5


Id. at 4-5.

xxxx 6
Id. at 4.

(b) If the Board, by the vote of a majority of its total 7


Ibid.
membership, determines that the respondent should be
suspended from the practice of law or disbarred, it shall issue 8
Id. at 36-41.
a resolution setting forth its findings and recommendations
which, together with the whole record of the case, shall
9
forthwith be transmitted to the Supreme Court for final Id. at 36.
action.1âwphi1
10
Id. at 40.
The Supreme Court exercises exclusive jurisdiction to regulate
11
the practice of law.102 It exercises such disciplinary functions Id. at 36.
through the IBP, but it does not relinquish its duty to form its
own judgment. Disbarment proceedings are exercised under 12
Id. at 36-37.
the sole jurisdiction of the Supreme Court, and the IBP’s
recommendations imposing the penalty of suspension from the 13
Id. at 38.
8
14 40
Id. at 38-39. G.R. No. 140079, March 31, 2005, 454 SCRA 462,
473.
15
Id. at 38, 40-41.
41
G.R. No. 170623, July 7, 2010, 624 SCRA 494.
16
Id. at 38.
42
Id. at 502.
17
Id. at 39, 254, 282-288.
43
Id. at 503.
18
Id. at 38.
44
Supra note 19.
19
Id. at 291-292.
45
Supra note 28.
20
Id. at 296-297.
46
Supra note 31.
21
Id. at 326-328.
47
Pena v. Aparicio, A.C. No. 7298, June 25, 2007,
22
Id. at 53-54, 326-328. 525 SCRA 444, 453.

48
23
Id. at 55-56, 326-328. Garrido v. Garrido, A.C. No. 6593, February 4,
2010, 611 SCRA 508, 516.
24
Id. at 16-17, 326-328.
49
Solidon v. Macalalad, A.C. No. 8158, February 24,
25
Id. at 313-325, 326-328. 2010, 613 SCRA 472, 476.

50
26 Aba v. De Guzman, Jr., A.C. No. 7649, December
Id. at 305-312.
14, 2011, 662 SCRA 361, 371.
27
Id. at 312. 51
Id. at 371, citing In Re: De Guzman, 154 Phil. 127
28
(1974); De Guzman v. Tadeo, 68 Phil. 554 (1939); In
Id. at 303-304. Re: Tiongko, 43 Phil. 191 (1922); and Acosta v.
Serrano, 166 Phil. 257 (1977).
29
Id. at 313-325.
52
Rollo, pp. 310-311.
30
Id. at 416-418.
53
Id. at 55-56.
31
See rollo, page number not assigned.
54
Id. at 296-297.
32
Ibid.
55
Id. at 326-328.
33
Ibid; Petition for Review, p. 11.
56
Id. at 53-54, 326-328.
34
Supra note 26.
57
Id. at 16-17, 326-328.
35
Alliance of Democratic Free Labor Organization v.
Laguesma, G.R. No. 108625, March 11, 1996, 254 58
Id. at 254-290; see TSN of Mandatory Conference,
SCRA 565, 574. October 6, 2005.
36
See rollo, page number not assigned; Petition for 59
Id. at 416-417; see Respondent’s Manifestation
Review, p. 14. dated August 26, 2008.
37
Rollo, pp. 254- 290; TSN of Mandatory 60
Id. at 44, 47-48.
Conference, October 6, 2005.
61
38
Id. at 310-311.
Supra note 31.
62
39
Id. at 311.
Supra note 35, at 574.
9
63 86
Id. at 8-12. Id. at 287-288; see TSN of Mandatory Conference,
October 6, 2006.
64
Id. at 12-13.
87
Id. at 169, 185, 191, 282 -285, 288, 349-351; see
65
Id. at 14-15. Complainant’s Position Paper, TSN of Mandatory
Conference on October 6, 2005, Opposition (to the
66
Id. at 16-17. Order dated November 6, 2000) and Motion to
Inhibit in Civil Case No. 2902, and the RTC Decision
67
dated October 4, 2006 in Civil Case No. 2902.
Id. at 18-20.
88
68
Solidon v. Macalalad, supra note 49, at 476.
Id. at 21.
89
69
Adm. Case No. 5458, March 16, 2005, 453 SCRA
Id. at 22-24. 410, 418-419.
70
Id. at 25-31. 90
Supra note 20.
71
Id. at 32. 91
Supra note 21.
72
Arienda v. Aguila, A.C. No. 5637, April 12, 2005, 92
Rollo, pp. 53-54, 326-328; the Deed of Sale is
455 SCRA 282, 286-287. dated January 28, 2000.
73
Id. at 287. 93
Id. at 296.
74
Aba v. De Guzman, Jr., supra note 50, at 372. 94
Ibid.
75
Id. at 89-90, 242. 95
Ibid.
76
Id. at 16-17. 96
Id. at 313-360.
77
Id. at 55-56. 97
A.C. No. 7181, February 6, 2009, 578 SCRA 113,
128.
78
Ruben E. Agpalo, Legal Ethics (1989), p. 150.
98
A.C. No. 6963, February 9, 2006, 482 SCRA 1.
79
Josefina M. Aniñon v. Atty. Clemencio Sabitsana,
Jr., A.C. No. 5098, April 11, 2012. 99
Id. at 8.
80
Rollo, pp. 254, 282-285, 349-351; see TSN of 100
Rollo, pp. 327, 331.
Mandatory Conference, October 6, 2005; RTC
Decision dated October 4, 2006 in Civil Case No. 101
2902. Id. at 332.

102
81 CONSTITUTION, Article VIII, Section 5.
Rollo, pp. 254, 282-285, 349-351; see TSN of
Mandatory Conference, October 6, 2005, RTC
103
Decision dated October 4, 2006 in Civil Case No. Supra note 49, at 480.
2902.
104
Supra note 79.
82
Id. at 349-351; see RTC Decision dated October 4,
2006 in Civil Case No. 2902.

83
Id. at 282-285, 288.

84
Id. at 39.

85
Id. at 48; see Reynold’s Affidavit dated October
11, 2004.

10
Republic of the Philippines The Factual Antecedents
SUPREME COURT
Manila On March 23, 2006, Rosalie Jaype-Garcia (private respondent)
filed, for herself and in behalf of her minor children, a verified
EN BANC petition6 (Civil Case No. 06-797) before the Regional Trial
Court (RTC) of Bacolod City for the issuance of a Temporary
G.R. No. 179267 June 25, 2013 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
JESUS C. GARCIA, Petitioner,
violence as a result of marital infidelity on the part of
vs.
petitioner, with threats of deprivation of custody of her
THE HONORABLE RAY ALAN T. DRILON, Presiding
children and of financial support.7
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, Private respondent's claims
JESSE ANTHONE, all surnamed GARCIA, Respondents.
Private respondent married petitioner in 2002 when she was
DECISION 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
PERLAS-BERNABE, J.:
respondent adopted; Jessie Anthone J. Garcia, 6 years old; and
Joseph Eduard J. Garcia, 3 years old.8
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 Private respondent described herself as a dutiful and faithful
wife, whose life revolved around her husband. On the other
Christ.1 Yet, the admonition for husbands to love their wives
hand, petitioner, who is of Filipino-Chinese descent, is
as their own bodies just as Christ loved the church and gave
dominant, controlling, and demands absolute obedience from
himself up for her2 failed to prevent, or even to curb, the
his wife and children. He forbade private respondent to pray,
pervasiveness of violence against Filipino women. The
National Commission on the Role of Filipino Women and deliberately isolated her from her friends. When she took
up law, and even when she was already working part time at a
(NCRFW) reported that, for the years 2000-2003, "female
law office, petitioner trivialized her ambitions and prevailed
violence comprised more than 90o/o of all forms of abuse and
upon her to just stay at home. He was often jealous of the fact
violence and more than 90% of these reported cases were
that his attractive wife still catches the eye of some men, at
committed by the women's intimate partners such as their
husbands and live-in partners."3 one point threatening that he would have any man eyeing her
killed.9
Thus, on March 8, 2004, after nine (9) years of spirited
Things turned for the worse when petitioner took up an affair
advocacy by women's groups, Congress enacted Republic Act
with a bank manager of Robinson's Bank, Bacolod City, who
(R.A.) No. 9262, entitled "An Act Defining Violence Against
Women and Their Children, Providing for Protective is the godmother of one of their sons. Petitioner admitted to
Measures for Victims, Prescribing Penalties Therefor, and for the affair when private respondent confronted him about it in
2004. He even boasted to the household help about his sexual
Other Purposes." It took effect on March 27, 2004.4
relations with said bank manager. Petitioner told private
respondent, though, that he was just using the woman because
R.A. 9262 is a landmark legislation that defines and of their accounts with the bank.10
criminalizes acts of violence against women and their children
(VAWC) perpetrated by women's intimate partners, i.e,
Petitioner's infidelity spawned a series of fights that left
husband; former husband; or any person who has or had a
private respondent physically and emotionally wounded. In
sexual or dating relationship, or with whom the woman has a
one of their quarrels, petitioner grabbed private respondent on
common child.5 The law provides for protection orders from
both arms and shook her with such force that caused bruises
the barangay and the courts to prevent the commission of
further acts of VAWC; and outlines the duties and and hematoma. At another time, petitioner hit private
respondent forcefully on the lips that caused some bleeding.
responsibilities of barangay officials, law enforcers,
Petitioner sometimes turned his ire on their daughter, Jo-Ann,
prosecutors and court personnel, social workers, health care
who had seen the text messages he sent to his paramour and
providers, and other local government officials in responding
whom he blamed for squealing on him. He beat Jo-Ann on the
to complaints of VAWC or requests for assistance.
chest and slapped her many times. When private respondent
decided to leave petitioner, Jo-Ann begged her mother to stay
A husband is now before the Court assailing the for fear that if the latter leaves, petitioner would beat her up.
constitutionality of R.A. 9262 as being violative of the equal Even the small boys are aware of private respondent's
protection and due process clauses, and an undue delegation of sufferings. Their 6-year-old son said that when he grows up,
judicial power to barangay officials.

11
he would beat up his father because of his cruelty to private exists or is about to recur, the RTC issued a TPO18 on March
respondent.11 24, 2006 effective for thirty (30) days, which is quoted
hereunder:
All the emotional and psychological turmoil drove private
respondent to the brink of despair. On December 17, 2005, Respondent (petitioner herein), Jesus Chua Garcia, is hereby:
while at home, she attempted suicide by cutting her wrist. She
was found by her son bleeding on the floor. Petitioner simply a) Ordered to remove all his personal belongings
fled the house instead of taking her to the hospital. Private from the conjugal dwelling or family home within 24
respondent was hospitalized for about seven (7) days in which hours from receipt of the Temporary Restraining
time petitioner never bothered to visit, nor apologized or Order and if he refuses, ordering that he be removed
showed pity on her. Since then, private respondent has been by police officers from the conjugal dwelling; this
undergoing therapy almost every week and is taking anti- order is enforceable notwithstanding that the house is
depressant medications.12 under the name of 236 Realty Holdings Inc.
(Republic Act No. 9262 states "regardless of
When private respondent informed the management of ownership"), this is to allow the Petitioner (private
Robinson's Bank that she intends to file charges against the respondent herein) to enter the conjugal dwelling
bank manager, petitioner got angry with her for jeopardizing without any danger from the Respondent.
the manager's job. He then packed his things and told private
respondent that he was leaving her for good. He even told After the Respondent leaves or is removed from the
private respondent's mother, who lives with them in the family conjugal dwelling, or anytime the Petitioner decides
home, that private respondent should just accept his to return to the conjugal dwelling to remove things,
extramarital affair since he is not cohabiting with his paramour the Petitioner shall be assisted by police officers
and has not sired a child with her.13 when re-entering the family home.

Private respondent is determined to separate from petitioner The Chief of Police shall also give the Petitioner
but she is afraid that he would take her children from her and police assistance on Sunday, 26 March 2006 because
deprive her of financial support. Petitioner had previously of the danger that the Respondent will attempt to take
warned her that if she goes on a legal battle with him, she her children from her when he arrives from Manila
would not get a single centavo.14 and finds out about this suit.

Petitioner controls the family businesses involving mostly the b) To stay away from the petitioner and her children,
construction of deep wells. He is the President of three mother and all her household help and driver from a
corporations – 326 Realty Holdings, Inc., Negros Rotadrill distance of 1,000 meters, and shall not enter the gate
Corporation, and J-Bros Trading Corporation – of which he of the subdivision where the Petitioner may be
and private respondent are both stockholders. In contrast to the temporarily residing.
absolute control of petitioner over said corporations, private
respondent merely draws a monthly salary of P20,000.00 from
c) Not to harass, annoy, telephone, contact or
one corporation only, the Negros Rotadrill Corporation.
otherwise communicate with the Petitioner, directly
Household expenses amounting to not less than P200,000.00 a or indirectly, or through other persons, or contact
month are paid for by private respondent through the use of directly or indirectly her children, mother and
credit cards, which, in turn, are paid by the same corporation
household help, nor send gifts, cards, flowers, letters
together with the bills for utilities.15
and the like. Visitation rights to the children may be
subject of a modified TPO in the future.
On the other hand, petitioner receives a monthly salary
of P60,000.00 from Negros Rotadrill Corporation, and enjoys d) To surrender all his firearms including a .9MM
unlimited cash advances and other benefits in hundreds of
caliber firearm and a Walther PPK and ordering the
thousands of pesos from the corporations.16After private
Philippine National Police Firearms and Explosives
respondent confronted him about the affair, petitioner forbade
Unit and the Provincial Director of the PNP to cancel
her to hold office at JBTC Building, Mandalagan, where all all the Respondent's firearm licenses. He should also
the businesses of the corporations are conducted, thereby be ordered to surrender any unlicensed firearms in his
depriving her of access to full information about said
possession or control.
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 e) To pay full financial support for the Petitioner and
the children, including rental of a house for them, and
educational and medical expenses.
Action of the RTC of Bacolod City
f) Not to dissipate the conjugal business.
Finding reasonable ground to believe that an imminent danger
of violence against the private respondent and her children
12
g) To render an accounting of all advances, benefits, On May 24, 2006, the TPO was renewed and extended yet
bonuses and other cash he received from all the again, but subject only to the following modifications prayed
corporations from 1 January 2006 up to 31 March for by private respondent:
2006, which himself and as President of the
corporations and his Comptroller, must submit to the a) That respondent (petitioner herein) return the
Court not later than 2 April 2006. Thereafter, an clothes and other personal belongings of Rosalie and
accounting of all these funds shall be reported to the her children to Judge Jesus Ramos, co-counsel for
court by the Comptroller, copy furnished to the Petitioner, within 24 hours from receipt of the
Petitioner, every 15 days of the month, under pain of Temporary Protection Order by his counsel,
Indirect Contempt of Court. otherwise be declared in Indirect Contempt of Court;

h) To ensure compliance especially with the order b) Respondent shall make an accounting or list of
granting support pendente lite, and considering the furniture and equipment in the conjugal house in
financial resources of the Respondent and his threat Pitimini St., Capitolville Subdivision, Bacolod City
that if the Petitioner sues she will not get a single within 24 hours from receipt of the Temporary
centavo, the Respondent is ordered to put up a Protection Order by his counsel;
BOND TO KEEP THE PEACE in the amount of
FIVE MILLION PESOS, in two sufficient sureties.
c) Ordering the Chief of the Women's Desk of the
Bacolod City Police Headquarters to remove
On April 24, 2006, upon motion19 of private Respondent from the conjugal dwelling within eight
respondent, the trial court issued an amended (8) hours from receipt of the Temporary Protection
TPO,20 effective for thirty (30) days, which included Order by his counsel, and that he cannot return until
the following additional provisions: 48 hours after the petitioners have left, so that the
petitioner Rosalie and her representatives can remove
i) The petitioners (private respondents herein) are things from the conjugal home and make an
given the continued use of the Nissan Patrol and the inventory of the household furniture, equipment and
Starex Van which they are using in Negros other things in the conjugal home, which shall be
Occidental. submitted to the Court.

j) The petitioners are given the continued use and d) Deliver full financial support of Php200,000.00
occupation of the house in Parañaque, the continued and Php50,000.00 for rental and Php25,000.00 for
use of the Starex van in Metro Manila, whenever they clothes of the three petitioners (sic) children within
go to Manila. 24 hours from receipt of the Temporary Protection
Order by his counsel, otherwise be declared in
k) Respondent is ordered to immediately post a bond indirect contempt of Court;
to keep the peace, in two sufficient sureties.
e) That respondent surrender his two firearms and all
l) To give monthly support to the petitioner unlicensed firearms to the Clerk of Court within 24
provisionally fixed in the sum of One Hundred Fifty hours from receipt of the Temporary Protection Order
Thousand Pesos (Php 150,000.00) per month plus by his counsel;
rental expenses of Fifty Thousand Pesos (Php
50,000.00) per month until the matter of support f) That respondent shall pay petitioner educational
could be finally resolved. expenses of the children upon presentation of proof
of payment of such expenses.23
Two days later, or on April 26, 2006, petitioner filed an
Opposition to the Urgent Ex-Parte Motion for Renewal of the Claiming that petitioner continued to deprive them of financial
TPO21 seeking the denial of the renewal of the TPO on the support; failed to faithfully comply with the TPO; and
grounds that it did not (1) comply with the three-day notice committed new acts of harassment against her and their
rule, and (2) contain a notice of hearing. He further asked that children, private respondent filed another application24for the
the TPO be modified by (1) removing one vehicle used by issuance of a TPO ex parte. She alleged inter
private respondent and returning the same to its rightful
owner, the J-Bros Trading Corporation, and (2) cancelling or alia that petitioner contrived a replevin suit against himself by
reducing the amount of the bond from P5,000,000.00 to a J-Bros Trading, Inc., of which the latter was purportedly no
more manageable level at P100,000.00. longer president, with the end in view of recovering the Nissan
Patrol and Starex Van used by private respondent and the
Subsequently, on May 23, 2006, petitioner moved22 for the children. A writ of replevin was served upon private
modification of the TPO to allow him visitation rights to his respondent by a group of six or seven policemen with long
children. firearms that scared the two small boys, Jessie Anthone and
Joseph Eduard.25
13
While Joseph Eduard, then three years old, was driven to 6) Directed to deliver educational expenses for 2006-
school, two men allegedly attempted to kidnap him, which 2007 the amount of Php75,000.00 and Php25,000.00;
incident traumatized the boy resulting in his refusal to go back
to school. On another occasion, petitioner allegedly grabbed 7) Directed to allow the continued use of a Nissan
their daughter, Jo-Ann, by the arm and threatened her.26 The Patrol with Plate No. FEW 508 and a Starex van with
incident was reported to the police, and Jo-Ann subsequently Plate No. FFD 991 and should the respondent fail to
filed a criminal complaint against her father for violation of deliver said vehicles, respondent is ordered to
R.A. 7610, also known as the "Special Protection of Children provide the petitioner another vehicle which is the
Against Child Abuse, Exploitation and Discrimination Act." one taken by J Bros Tading;

Aside from the replevin suit, petitioner's lawyers initiated the 8) Ordered not to dissipate, encumber, alienate, sell,
filing by the housemaids working at the conjugal home of a lease or otherwise dispose of the conjugal assets, or
complaint for kidnapping and illegal detention against private those real properties in the name of Jesus Chua
respondent. This came about after private respondent, armed Garcia only and those in which the conjugal
with a TPO, went to said home to get her and her children's partnership of gains of the Petitioner Rosalie J.
belongings. Finding some of her things inside a housemaid's Garcia and respondent have an interest in, especially
(Sheryl Jamola) bag in the maids' room, private respondent the conjugal home located in No. 14, Pitimini St.,
filed a case for qualified theft against Jamola.27 Capitolville Subdivision, Bacolod City, and other
properties which are conjugal assets or those in
On August 23, 2006, the RTC issued a TPO,28 effective for which the conjugal partnership of gains of Petitioner
thirty (30) days, which reads as follows: Rosalie J. Garcia and the respondent have an interest
in and listed in Annexes "I," "I-1," and "I-2,"
Respondent (petitioner herein), Jesus Chua Garcia, is hereby: including properties covered by TCT Nos. T-186325
and T-168814;
1) Prohibited from threatening to commit or
committing, personally or through another, acts of 9) Ordered that the Register of Deeds of Bacolod
violence against the offended party; City and E.B. Magalona shall be served a copy of this
TEMPORARY PROTECTION ORDER and are
2) Prohibited from harassing, annoying, telephoning, ordered not to allow the transfer, sale, encumbrance
or disposition of these above-cited properties to any
contacting or otherwise communicating in any form
person, entity or corporation without the personal
with the offended party, either directly or indirectly;
presence of petitioner Rosalie J. Garcia, who shall
affix her signature in the presence of the Register of
3) Required to stay away, personally or through his Deeds, due to the fear of petitioner Rosalie that her
friends, relatives, employees or agents, from all the signature will be forged in order to effect the
Petitioners Rosalie J. Garcia and her children, Rosalie encumbrance or sale of these properties to defraud
J. Garcia's three brothers, her mother Primitiva Jaype, her or the conjugal partnership of gains.
cook Novelita Caranzo, driver Romeo Hontiveros,
laundrywoman Mercedita Bornales, security guard
Darwin Gayona and the petitioner's other household In its Order29 dated September 26, 2006, the trial court
helpers from a distance of 1,000 meters, and shall not extended the aforequoted TPO for another ten (10) days, and
gave petitioner a period of five (5) days within which to show
enter the gate of the subdivision where the Petitioners
cause why the TPO should not be renewed, extended, or
are temporarily residing, as well as from the schools
modified. Upon petitioner's manifestation,30 however, that he
of the three children; Furthermore, that respondent
has not received a copy of private respondent's motion to
shall not contact the schools of the children directly
or indirectly in any manner including, ostensibly to modify/renew the TPO, the trial court directed in its
Order31 dated October 6, 2006 that petitioner be furnished a
pay for their tuition or other fees directly, otherwise
copy of said motion. Nonetheless, an Order32 dated a day
he will have access to the children through the
earlier, October 5, had already been issued renewing the TPO
schools and the TPO will be rendered nugatory;
dated August 23, 2006. The pertinent portion is quoted
hereunder:
4) Directed to surrender all his firearms including
.9MM caliber firearm and a Walther PPK to the
xxxx
Court;

5) Directed to deliver in full financial support of x x x it appearing further that the hearing could not yet be
Php200,000.00 a month and Php50,000.00 for rental finally terminated, the Temporary Protection Order issued on
August 23, 2006 is hereby renewed and extended for thirty
for the period from August 6 to September 6, 2006;
(30) days and continuously extended and renewed for thirty
and support in arrears from March 2006 to August
(30) days, after each expiration, until further orders, and
2006 the total amount of Php1,312,000.00;
subject to such modifications as may be ordered by the court.
14
After having received a copy of the foregoing Order, COUNTER TO THE DUE PROCESS CLAUSE OF THE
petitioner no longer submitted the required comment to private CONSTITUTION.
respondent's motion for renewal of the TPO arguing that it
would only be an "exercise in futility."33 IV.

Proceedings before the CA THE COURT OF APPEALS ERRED IN NOT FINDING


THAT THE LAW DOES VIOLENCE TO THE POLICY OF
During the pendency of Civil Case No. 06-797, petitioner filed THE STATE TO PROTECT THE FAMILY AS A BASIC
before the Court of Appeals (CA) a petition34 for prohibition SOCIAL INSTITUTION.
(CA-G.R. CEB-SP. No. 01698), with prayer for injunction and
temporary restraining order, challenging (1) the V.
constitutionality of R.A. 9262 for being violative of the due
process and the equal protection clauses, and (2) the validity THE COURT OF APPEALS SERIOUSLY ERRED IN NOT
of the modified TPO issued in the civil case for being "an
DECLARING R.A. No. 9262 AS INVALID AND
unwanted product of an invalid law."
UNCONSTITUTIONAL BECAUSE IT ALLOWS AN
UNDUE DELEGATION OF JUDICIAL POWER TO THE
On May 26, 2006, the appellate court issued a 60-day BARANGAY OFFICIALS.38
Temporary Restraining Order36 (TRO) against the
enforcement of the TPO, the amended TPOs and other orders
The Ruling of the Court
pursuant thereto.
Before delving into the arguments propounded by petitioner
Subsequently, however, on January 24, 2007, the appellate against the constitutionality of R.A. 9262, we shall first tackle
court dismissed36 the petition for failure of petitioner to raise the propriety of the dismissal by the appellate court of the
the constitutional issue in his pleadings before the trial court in
petition for prohibition (CA-G.R. CEB-SP. No. 01698) filed
the civil case, which is clothed with jurisdiction to resolve the
by petitioner.
same. Secondly, the challenge to the validity
As a general rule, the question of constitutionality must be
of R.A. 9262 through a petition for prohibition seeking to
raised at the earliest opportunity so that if not raised in the
annul the protection orders issued by the trial court constituted
pleadings, ordinarily it may not be raised in the trial, and if not
a collateral attack on said law.
raised in the trial court, it will not be considered on
appeal.39 Courts will not anticipate a question of constitutional
His motion for reconsideration of the foregoing Decision law in advance of the necessity of deciding it.40
having been denied in the Resolution37 dated August 14, 2007,
petitioner is now before us alleging that –
In defending his failure to attack the constitutionality of R.A.
9262 before the RTC of Bacolod City, petitioner argues that
The Issues the Family Court has limited authority and jurisdiction that is
"inadequate to tackle the complex issue of constitutionality."41
I.
We disagree.
THE COURT OF APPEALS ERRED IN DISMISSING THE
PETITION ON THE THEORY THAT THE ISSUE OF Family Courts have authority and jurisdiction to consider the
CONSTITUTIONALITY WAS NOT RAISED AT THE constitutionality of a statute.
EARLIEST OPPORTUNITY AND THAT, THE PETITION
CONSTITUTES A COLLATERAL ATTACK ON THE
At the outset, it must be stressed that Family Courts are
VALIDITY OF THE LAW.
special courts, of the same level as Regional Trial Courts.
Under R.A. 8369, otherwise known as the "Family Courts Act
II. of 1997," family courts have exclusive original jurisdiction to
hear and decide cases of domestic violence against women and
THE COURT OF APPEALS COMMITTED SERIOUS children.42 In accordance with said law, the Supreme Court
ERROR IN FAILING TO CONCLUDE THAT R.A. 9262 IS designated from among the branches of the Regional Trial
DISCRIMINATORY, UNJUST, AND VIOLATIVE OF THE Courts at least one Family Court in each of several key cities
EQUAL PROTECTION CLAUSE. identified.43 To achieve harmony with the first mentioned law,
Section 7 of R.A. 9262 now provides that Regional Trial
III. Courts designated as Family Courts shall have original and
exclusive jurisdiction over cases of VAWC defined under the
THE COURT OF APPEALS COMMITTED GRAVE latter law, viz:
MISTAKE IN NOT FINDING THAT R.A. 9262 RUNS

15
SEC. 7. Venue. – The Regional Trial Court designated as a SEC. 20. Opposition to petition. – (a) The respondent may file
Family Court shall have original and exclusive jurisdiction an opposition to the petition which he himself shall verify. It
over cases of violence against women and their children under must be accompanied by the affidavits of witnesses and shall
this law. In the absence of such court in the place where the show cause why a temporary or permanent protection order
offense was committed, the case shall be filed in the Regional should not be issued.
Trial Court where the crime or any of its elements was
committed at the option of the complainant. (Emphasis (b) Respondent shall not include in the opposition any
supplied) counterclaim, cross-claim or third-party complaint, but any
cause of action which could be the subject thereof may be
Inspite of its designation as a family court, the RTC of litigated in a separate civil action. (Emphasis supplied)
Bacolod City remains possessed of authority as a court of
general original jurisdiction to pass upon all kinds of cases We cannot subscribe to the theory espoused by petitioner that,
whether civil, criminal, special proceedings, land registration, since a counterclaim, cross-claim and third-party complaint
guardianship, naturalization, admiralty or insolvency. 44 It is are to be excluded from the opposition, the issue of
settled that RTCs have jurisdiction to resolve the constitutionality cannot likewise be raised therein. A
constitutionality of a statute,45 "this authority being embraced counterclaim is defined as any claim for money or other relief
in the general definition of the judicial power to determine which a defending party may have against an opposing
what are the valid and binding laws by the criterion of their party.50 A cross-claim, on the other hand, is any claim by one
conformity to the fundamental law." 46 The Constitution vests party against a co-party arising out of the transaction or
the power of judicial review or the power to declare the occurrence that is the subject matter either of the original
constitutionality or validity of a law, treaty, international or action or of a counterclaim therein.51Finally, a third-party
executive agreement, presidential decree, order, instruction, complaint is a claim that a defending party may, with leave of
ordinance, or regulation not only in this Court, but in all court, file against a person not a party to the action for
RTCs.47 We said in J.M. Tuason and Co., Inc. v. CA48 that, contribution, indemnity, subrogation or any other relief, in
"plainly the Constitution contemplates that the inferior courts respect of his opponent's claim.52 As pointed out by Justice
should have jurisdiction in cases involving constitutionality of Teresita J. Leonardo-De Castro, the unconstitutionality of a
any treaty or law, for it speaks of appellate review of final statute is not a cause of action that could be the subject of a
judgments of inferior courts in cases where such counterclaim, cross-claim or a third-party complaint.
constitutionality happens to be in issue." Section 5, Article Therefore, it is not prohibited from being raised in the
VIII of the 1987 Constitution reads in part as follows: opposition in view of the familiar maxim expressio unius est
exclusio alterius.
SEC. 5. The Supreme Court shall have the following powers:
Moreover, it cannot be denied that this issue affects the
xxx resolution of the case a quo because the right of private
respondent to a protection order is founded solely on the very
2. Review, revise, reverse, modify, or affirm on appeal or statute the validity of which is being attacked53 by petitioner
certiorari, as the law or the Rules of Court may provide, final who has sustained, or will sustain, direct injury as a result of
judgments and orders of lower courts in: its enforcement. The alleged unconstitutionality of R.A. 9262
is, for all intents and purposes, a valid cause for the non-
a. All cases in which the constitutionality or validity of any issuance of a protection order.
treaty, international or executive agreement, law, presidential
decree, proclamation, order, instruction, ordinance, or That the proceedings in Civil Case No. 06-797 are summary in
regulation is in question. nature should not have deterred petitioner from raising the
same in his Opposition. The question relative to the
xxxx 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
Thus, contrary to the posturing of petitioner, the issue of hearing to determine legal issues, among others, viz:
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 SEC. 25. Order for further hearing. - In case the court
determines the need for further hearing, it may issue an order
jurisdiction to determine the same, subject to the review of this
containing the following:
Court.

Section 20 of A.M. No. 04-10-11-SC, the Rule on Violence (a) Facts undisputed and admitted;
Against Women and Their Children, lays down a new kind of
procedure requiring the respondent to file an opposition to the (b) Factual and legal issues to be resolved;
petition and not an answer.49 Thus:
(c) Evidence, including objects and documents that
have been marked and will be presented;
16
(d) Names of witnesses who will be ordered to The sole objective of injunctions is to preserve the status quo
present their direct testimonies in the form of until the trial court hears fully the merits of the case. It bears
affidavits; and stressing, however, that protection orders are granted ex parte
so as to protect women and their children from acts of
(e) Schedule of the presentation of evidence by both violence. To issue an injunction against such orders will defeat
parties which shall be done in one day, to the extent the very purpose of the law against VAWC.
possible, within the 30-day period of the effectivity
of the temporary protection order issued. (Emphasis Notwithstanding all these procedural flaws, we shall not shirk
supplied) from our obligation to determine novel issues, or issues of first
impression, with far-reaching implications. We have, time and
To obviate potential dangers that may arise concomitant to the again, discharged our solemn duty as final arbiter of
conduct of a hearing when necessary, Section 26 (b) of A.M. constitutional issues, and with more reason now, in view of
No. 04-10-11-SC provides that if a temporary protection order private respondent's plea in her Comment59 to the instant
issued is due to expire, the trial court may extend or renew the Petition that we should put the challenge to the
said order for a period of thirty (30) days each time until final constitutionality of R.A. 9262 to rest. And so we shall.
judgment is rendered. It may likewise modify the extended or
renewed temporary protection order as may be necessary to Intent of Congress in enacting R.A. 9262.
meet the needs of the parties. With the private respondent
given ample protection, petitioner could proceed to litigate the Petitioner claims that since R.A. 9262 is intended to prevent
constitutional issues, without necessarily running afoul of the and criminalize spousal and child abuse, which could very
very purpose for the adoption of the rules on summary well be committed by either the husband or the wife, gender
procedure. alone is not enough basis to deprive the husband/father of the
remedies under the law.60
In view of all the foregoing, the appellate court correctly
dismissed the petition for prohibition with prayer for A perusal of the deliberations of Congress on Senate Bill No.
injunction and temporary restraining order (CA-G.R. CEB - 2723,61 which became R.A. 9262, reveals that while the
SP. No. 01698). Petitioner may have proceeded upon an sponsor, Senator Luisa Pimentel-Ejercito (better known as
honest belief that if he finds succor in a superior court, he Senator Loi Estrada), had originally proposed what she called
could be granted an injunctive relief. However, Section 22(j) a "synthesized measure"62 – an amalgamation of two
of A.M. No. 04-10-11-SC expressly disallows the filing of a measures, namely, the "Anti-Domestic Violence Act" and the
petition for certiorari, mandamus or prohibition against any "Anti-Abuse of Women in Intimate Relationships Act" 63 –
interlocutory order issued by the trial court. Hence, the 60-day providing protection to "all family members, leaving no one in
TRO issued by the appellate court in this case against the isolation" but at the same time giving special attention to
enforcement of the TPO, the amended TPOs and other orders women as the "usual victims" of violence and
pursuant thereto was improper, and it effectively hindered the abuse,64 nonetheless, it was eventually agreed that men be
case from taking its normal course in an expeditious and denied protection under the same measure. We quote pertinent
summary manner. portions of the deliberations:

As the rules stand, a review of the case by appeal or certiorari Wednesday, December 10, 2003
before judgment is prohibited. Moreover, if the appeal of a
judgment granting permanent protection shall not stay its
Senator Pangilinan. I just wanted to place this on record, Mr.
enforcement,55 with more reason that a TPO, which is valid
President. Some women's groups have expressed concerns and
only for thirty (30) days at a time,56 should not be enjoined.
relayed these concerns to me that if we are to include domestic
violence apart from against women as well as other members
The mere fact that a statute is alleged to be unconstitutional or of the household, including children or the husband, they fear
invalid, does not of itself entitle a litigant to have the same that this would weaken the efforts to address domestic
enjoined.57 In Younger v. Harris, Jr.,58 the Supreme Court of violence of which the main victims or the bulk of the victims
the United States declared, thus: really are the wives, the spouses or the female partners in a
relationship. We would like to place that on record. How does
Federal injunctions against state criminal statutes, either in the good Senator respond to this kind of observation?
their entirety or with respect to their separate and distinct
prohibitions, are not to be granted as a matter of course, even Senator Estrada. Yes, Mr. President, there is this group of
if such statutes are unconstitutional. No citizen or member of women who call themselves "WIIR" Women in Intimate
the community is immune from prosecution, in good faith, for Relationship. They do not want to include men in this
his alleged criminal acts. The imminence of such a domestic violence. But plenty of men are also being abused by
prosecution even though alleged to be unauthorized and, women. I am playing safe so I placed here members of the
hence, unlawful is not alone ground for relief in equity which family, prescribing penalties therefor and providing protective
exerts its extraordinary powers only to prevent irreparable measures for victims. This includes the men, children, live-in,
injury to the plaintiff who seeks its aid. (Citations omitted) common-law wives, and those related with the family.65
17
xxx members particularly children who are excluded. Although
Republic Act No. 7610, for instance, more or less, addresses
Wednesday, January 14, 2004 the special needs of abused children. The same law is
inadequate. Protection orders for one are not available in said
law.
xxxx

The President Pro Tempore. x x x 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
Also, may the Chair remind the group that there was the should also recognize that there are established procedures and
discussion whether to limit this to women and not to families standards in our courts which give credence to evidentiary
which was the issue of the AWIR group. The understanding support and cannot just arbitrarily and whimsically entertain
that I have is that we would be having a broader scope rather baseless complaints.
than just women, if I remember correctly, Madam sponsor.
Mr. President, this measure is intended to harmonize family
Senator Estrada. Yes, Mr. President. relations and to protect the family as the basic social
institution. Though I recognize the unequal power relations
As a matter of fact, that was brought up by Senator Pangilinan between men and women in our society, I believe we have an
during the interpellation period. obligation to uphold inherent rights and dignity of both
husband and wife and their immediate family members,
I think Senator Sotto has something to say to that. particularly children.

Senator Legarda. Mr. President, the reason I am in support of While I prefer to focus mainly on women, I was compelled to
the measure. Do not get me wrong. However, I believe that include other family members as a critical input arrived at
there is a need to protect women's rights especially in the after a series of consultations/meetings with various NGOs,
domestic environment. experts, sports groups and other affected sectors, Mr.
President.
As I said earlier, there are nameless, countless, voiceless
women who have not had the opportunity to file a case against Senator Sotto. Mr. President.
their spouses, their live-in partners after years, if not decade,
of battery and abuse. If we broaden the scope to include even The President Pro Tempore. Yes, with the permission of the
the men, assuming they can at all be abused by the women or other senators.
their spouses, then it would not equalize the already difficult
situation for women, Mr. President. Senator Sotto. Yes, with the permission of the two ladies on
the Floor.
I think that the sponsor, based on our earlier conversations,
concurs with this position. I am sure that the men in this The President Pro Tempore. Yes, Sen. Vicente C. Sotto III is
Chamber who love their women in their lives so dearly will recognized.
agree with this representation. Whether we like it or not, it is
an unequal world. Whether we like it or not, no matter how
Senator Sotto. I presume that the effect of the proposed
empowered the women are, we are not given equal
opportunities especially in the domestic environment where amendment of Senator Legarda would be removing the "men
the macho Filipino man would always feel that he is stronger, and children" in this particular bill and focus specifically on
women alone. That will be the net effect of that proposed
more superior to the Filipino woman.
amendment. Hearing the rationale mentioned by the
distinguished sponsor, Sen. Luisa "Loi" Ejercito Estrada, I am
xxxx not sure now whether she is inclined to accept the proposed
amendment of Senator Legarda.
The President Pro Tempore. What does the sponsor say?
I am willing to wait whether she is accepting this or not
Senator Estrada. Mr. President, before accepting this, the because if she is going to accept this, I will propose an
committee came up with this bill because the family members amendment to the amendment rather than object to the
have been included in this proposed measure since the other amendment, Mr. President.
members of the family other than women are also possible
victims of violence. While women are most likely the intended xxxx
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 Senator Estrada. The amendment is accepted, Mr. President.
always the helpless victims of violence. I am worried that
there may not be enough protection extended to other family The President Pro Tempore. Is there any objection?
18
xxxx only. No proper challenge on said grounds may be entertained
in this proceeding. Congress has made its choice and it is not
Senator Sotto. x x x May I propose an amendment to the our prerogative to supplant this judgment. The choice may be
amendment. 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
The President Pro Tempore. Before we act on the amendment?
determines the necessity, adequacy, wisdom and expediency
of any law.68 We only step in when there is a violation of the
Senator Sotto. Yes, Mr. President. Constitution. However, none was sufficiently shown in this
case.
The President Pro Tempore. Yes, please proceed.
R.A. 9262 does not violate the guaranty of equal protection of
Senator Sotto. Mr. President, I am inclined to believe the the laws.
rationale used by the distinguished proponent of the
amendment. As a matter of fact, I tend to agree. Kung may Equal protection simply requires that all persons or things
maaabuso, mas malamang iyong babae kaysa sa lalake. At similarly situated should be treated alike, both as to rights
saka iyong mga lalake, puwede na talagang magulpi iyan. conferred and responsibilities imposed. The oft-repeated
Okey lang iyan. But I cannot agree that we remove the disquisition in the early case of Victoriano v. Elizalde Rope
children from this particular measure. Workers' Union69 is instructive:

So, if I may propose an amendment – 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 President Pro Tempore. To the amendment. the state. It is not, therefore, a requirement, in order to avoid
the constitutional prohibition against inequality, that every
Senator Sotto. – more than the women, the children are very man, woman and child should be affected alike by a statute.
much abused. As a matter of fact, it is not limited to minors. Equality of operation of statutes does not mean indiscriminate
The abuse is not limited to seven, six, 5-year-old children. I operation on persons merely as such, but on persons according
have seen 14, 15-year-old children being abused by their to the circumstances surrounding them. It guarantees equality,
fathers, even by their mothers. And it breaks my heart to find not identity of rights. The Constitution does not require that
out about these things. things which are different in fact be treated in law as though
they were the same. The equal protection clause does not
Because of the inadequate existing law on abuse of children, forbid discrimination as to things that are different. It does not
this particular measure will update that. It will enhance and prohibit legislation which is limited either in the object to
hopefully prevent the abuse of children and not only women. which it is directed or by the territory within which it is to
operate.
SOTTO-LEGARDA AMENDMENTS
The equal protection of the laws clause of the Constitution
allows classification. Classification in law, as in the other
Therefore, may I propose an amendment that, yes, we remove
departments of knowledge or practice, is the grouping of
the aspect of the men in the bill but not the children.
things in speculation or practice because they agree with one
another in certain particulars. A law is not invalid because of
Senator Legarda. I agree, Mr. President, with the Minority simple inequality. The very idea of classification is that of
Leader. inequality, so that it goes without saying that the mere fact of
inequality in no manner determines the matter of
The President Pro Tempore. Effectively then, it will be women constitutionality. All that is required of a valid classification is
AND CHILDREN. that it be reasonable, which means that the classification
should be based on substantial distinctions which make for
Senator Sotto. Yes, Mr. President. real differences; that it must be germane to the purpose of the
law; that it must not be limited to existing conditions only; and
Senator Estrada. It is accepted, Mr. President. 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
The President Pro Tempore. Is there any objection? [Silence] basis and is not palpably arbitrary. (Emphasis supplied)
There being none, the amendment, as amended, is approved. 66
Measured against the foregoing jurisprudential yardstick, we
It is settled that courts are not concerned with the wisdom, find that R.A. 9262 is based on a valid classification as shall
justice, policy, or expediency of a statute.67 Hence, we dare hereinafter be discussed and, as such, did not violate the equal
not venture into the real motivations and wisdom of the protection clause by favoring women over men as victims of
members of Congress in limiting the protection against violence and abuse to whom the State extends its protection.
violence and abuse under R.A. 9262 to women and children
19
I. R.A. 9262 rests on substantial distinctions. over her. Judaism, Christianity and other religions oriented
towards the patriarchal family strengthened the male
The unequal power relationship between women and men; the dominated structure of society.
fact that women are more likely than men to be victims of
violence; and the widespread gender bias and prejudice English feudal law reinforced the tradition of male control
against women all make for real differences justifying the over women. Even the eminent Blackstone has been quoted in
classification under the law. As Justice McIntyre succinctly his commentaries as saying husband and wife were one and
states, "the accommodation of differences ... is the essence of that one was the husband. However, in the late 1500s and
true equality."70 through the entire 1600s, English common law began to limit
the right of husbands to chastise their wives. Thus, common
A. Unequal power relationship between men and women law developed the rule of thumb, which allowed husbands to
beat their wives with a rod or stick no thicker than their
According to the Philippine Commission on Women (the thumb.
National Machinery for Gender Equality and Women's
Empowerment), violence against women (VAW) is deemed to In the later part of the 19th century, legal recognition of these
be closely linked with the unequal power relationship between rights to chastise wives or inflict corporeal punishment ceased.
women and men otherwise known as "gender-based violence". Even then, the preservation of the family was given more
Societal norms and traditions dictate people to think men are importance than preventing violence to women.
the leaders, pursuers, providers, and take on dominant roles in
society while women are nurturers, men's companions and The metamorphosis of the law on violence in the United States
supporters, and take on subordinate roles in society. This followed that of the English common law. In 1871, the
perception leads to men gaining more power over women. Supreme Court of Alabama became the first appellate court to
With power comes the need to control to retain that power. strike down the common law right of a husband to beat his
And VAW is a form of men's expression of controlling wife:
women to retain power.71
The privilege, ancient though it may be, to beat one's wife
The United Nations, which has long recognized VAW as a with a stick, to pull her hair, choke her, spit in her face or kick
human rights issue, passed its Resolution 48/104 on the her about the floor, or to inflict upon her like indignities, is not
Declaration on Elimination of Violence Against Women on now acknowledged by our law... In person, the wife is entitled
December 20, 1993 stating that "violence against women is a to the same protection of the law that the husband can invoke
manifestation of historically unequal power relations between for himself.
men and women, which have led to domination over and
discrimination against women by men and to the prevention of As time marched on, the women's advocacy movement
the full advancement of women, and that violence against became more organized. The temperance leagues initiated it.
women is one of the crucial social mechanisms by which These leagues had a simple focus. They considered the evils of
women are forced into subordinate positions, compared with alcoholism as the root cause of wife abuse. Hence, they
men."72 demonstrated and picketed saloons, bars and their husbands'
other watering holes. Soon, however, their crusade was joined
Then Chief Justice Reynato S. Puno traced the historical and by suffragette movements, expanding the liberation
social context of gender-based violence and developments in movement's agenda. They fought for women's right to vote, to
advocacies to eradicate VAW, in his remarks delivered during own property, and more. Since then, the feminist movement
the Joint Launching of R.A. 9262 and its Implementing Rules was on the roll.
last October 27, 2004, the pertinent portions of which are
quoted hereunder: The feminist movement exposed the private invisibility of the
domestic violence to the public gaze. They succeeded in
History reveals that most societies sanctioned the use of transforming the issue into an important public concern. No
violence against women. The patriarch of a family was less than the United States Supreme Court, in 1992 case
accorded the right to use force on members of the family Planned Parenthood v. Casey, noted:
under his control. I quote the early studies:
In an average 12-month period in this country, approximately
Traditions subordinating women have a long history rooted in two million women are the victims of severe assaults by their
patriarchy – the institutional rule of men. Women were seen in male partners. In a 1985 survey, women reported that nearly
virtually all societies to be naturally inferior both physically one of every eight husbands had assaulted their wives during
and intellectually. In ancient Western societies, women the past year. The [American Medical Association] views
whether slave, concubine or wife, were under the authority of these figures as "marked underestimates," because the nature
men. In law, they were treated as property. of these incidents discourages women from reporting them,
and because surveys typically exclude the very poor, those
The Roman concept of patria potestas allowed the husband to who do not speak English well, and women who are homeless
beat, or even kill, his wife if she endangered his property right or in institutions or hospitals when the survey is conducted.
20
According to the AMA, "researchers on family violence agree The Philippines has been in cadence with the half – and full –
that the true incidence of partner violence is probably double steps of all these women's movements. No less than Section
the above estimates; or four million severely assaulted women 14, Article II of our 1987 Constitution mandates the State to
per year." recognize the role of women in nation building and to ensure
the fundamental equality before the law of women and men.
Studies on prevalence suggest that from one-fifth to one-third Our Senate has ratified the CEDAW as well as the Convention
of all women will be physically assaulted by a partner or ex- on the Rights of the Child and its two protocols. To cap it all,
partner during their lifetime... Thus on an average day in the Congress, on March 8, 2004, enacted Rep. Act No. 9262,
United States, nearly 11,000 women are severely assaulted by entitled "An Act Defining Violence Against Women and Their
their male partners. Many of these incidents involve sexual Children, Providing for Protective Measures for Victims,
assault... In families where wife beating takes place, moreover, Prescribing Penalties therefor and for other Purposes."
child abuse is often present as well. (Citations omitted)

Other studies fill in the rest of this troubling picture. Physical B. Women are the "usual" and "most likely"
violence is only the most visible form of abuse. Psychological
abuse, particularly forced social and economic isolation of victims of violence.
women, is also common.
At the time of the presentation of Senate Bill No. 2723,
Many victims of domestic violence remain with their abusers, official statistics on violence against women and children
perhaps because they perceive no superior alternative...Many show that –
abused women who find temporary refuge in shelters return to
their husbands, in large part because they have no other source x x x physical injuries had the highest number of cases at
of income... Returning to one's abuser can be dangerous. 5,058 in 2002 representing 55.63% of total cases reported
Recent Federal Bureau of Investigation statistics disclose that (9,903). And for the first semester of 2003, there were 2,381
8.8 percent of all homicide victims in the United States are reported cases out of 4,354 cases which represent 54.31%. xxx
killed by their spouses...Thirty percent of female homicide (T)he total number of women in especially difficult
victims are killed by their male partners. circumstances served by the Department of Social Welfare
and Development (DSWD) for the year 2002, there are 1,417
Finally in 1994, the United States Congress enacted the physically abused/maltreated cases out of the total of 5,608
Violence Against Women Act. 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
In the International front, the women's struggle for equality violence comprised more than 90% of all forms of abuse and
was no less successful. The United States Charter and the violence and more than 90% of these reported cases were
Universal Declaration of Human Rights affirmed the equality committed by the women's intimate partners such as their
of all human beings. In 1979, the UN General Assembly husbands and live-in partners.73
adopted the landmark Convention on the Elimination of all
Forms of Discrimination Against Women (CEDAW). In 1993, Recently, the Philippine Commission on Women presented
the UN General Assembly also adopted the Declaration on the comparative statistics on violence against women across an
Elimination of Violence Against Women. World conferences eight-year period from 2004 to August of 2011 with violations
on the role and rights of women have been regularly held in under R.A. 9262 ranking first among the different VAW
Mexico City, Copenhagen, Nairobi and Beijing. The UN itself categories since its implementation in 2004,74 thus:
established a Commission on the Status of Women.
Table 1. Annual Comparative Statistics on Violence Against Women, 2004 - 2011*

Reported
2004 2005 2006 2007 2008 2009 2010 2011
Cases

Rape 997 927 659 837 811 770 1,042 832

Incestuous
38 46 26 22 28 27 19 23
Rape

Attempted
194 148 185 147 204 167 268 201
Rape

21
Acts of
580 536 382 358 445 485 745 625
Lasciviousness

Physical
3,553 2,335 1,892 1,505 1,307 1,498 2,018 1,588
Injuries

Sexual
53 37 38 46 18 54 83 63
Harassment

RA 9262 218 924 1,269 2,387 3,599 5,285 9,974 9,021

Threats 319 223 199 182 220 208 374 213

Seduction 62 19 29 30 19 19 25 15

Concubinage 121 102 93 109 109 99 158 128

RA 9208 17 11 16 24 34 152 190 62

Abduction
/Kidnapping 16 34 23 28 18 25 22
29

Unjust
90 50 59 59 83 703 183 155
Vexation

Total 6,271 5,374 4,881 5,729 6,905 9,485 15,104 12,948

*2011 report covers only from January to August

Source: Philippine National Police – Women and Children their spouses, and much less likely to experience sexual
Protection Center (WCPC) assault. In fact, many cases of physical violence by a woman
against a spouse are in self-defense or the result of many years
On the other hand, no reliable estimates may be obtained on of physical or emotional abuse.76
domestic abuse and violence against men in the Philippines
because incidents thereof are relatively low and, perhaps, While there are, indeed, relatively few cases of violence and
because many men will not even attempt to report the abuse perpetrated against men in the Philippines, the same
situation. In the United Kingdom, 32% of women who had cannot render R.A. 9262 invalid.
ever experienced domestic violence did so four or five (or
more) times, compared with 11% of the smaller number of In a 1960 case involving the violation of a city ordinance
men who had ever experienced domestic violence; and women requiring drivers of animal-drawn vehicles to pick up, gather
constituted 89% of all those who had experienced 4 or more and deposit in receptacles the manure emitted or discharged by
incidents of domestic violence.75 Statistics in Canada show their vehicle-drawing animals in any public highways, streets,
that spousal violence by a woman against a man is less likely plazas, parks or alleys, said ordinance was challenged as
to cause injury than the other way around (18 percent versus violative of the guaranty of equal protection of laws as its
44 percent). Men, who experience violence from their spouses application is limited to owners and drivers of vehicle-drawing
are much less likely to live in fear of violence at the hands of
22
animals and not to those animals, although not utilized, but on women does not discriminate against men.82 Petitioner's
similarly pass through the same streets. contention,83 therefore, that R.A. 9262 is discriminatory and
that it is an "anti-male," "husband-bashing," and "hate-men"
The ordinance was upheld as a valid classification for the law deserves scant consideration. As a State Party to the
reason that, while there may be non-vehicle-drawing animals CEDAW, the Philippines bound itself to take all appropriate
that also traverse the city roads, "but their number must be measures "to modify the social and cultural patterns of
negligible and their appearance therein merely occasional, conduct of men and women, with a view to achieving the
compared to the rig-drawing ones, as not to constitute a elimination of prejudices and customary and all other practices
menace to the health of the community."77 The mere fact that which are based on the idea of the inferiority or the superiority
the legislative classification may result in actual inequality is of either of the sexes or on stereotyped roles for men and
not violative of the right to equal protection, for every women."84 Justice Puno correctly pointed out that "(t)he
classification of persons or things for regulation by law paradigm shift changing the character of domestic violence
produces inequality in some degree, but the law is not thereby from a private affair to a public offense will require the
rendered invalid.78 development of a distinct mindset on the part of the police, the
prosecution and the judges."85
C. Gender bias and prejudices
II. The classification is germane to the purpose of the law.
From the initial report to the police through prosecution, trial,
and sentencing, crimes against women are often treated The distinction between men and women is germane to the
differently and less seriously than other crimes. This was purpose of R.A. 9262, which is to address violence committed
argued by then United States Senator Joseph R. Biden, Jr., against women and children, spelled out in its Declaration of
now Vice President, chief sponsor of the Violence Against Policy, as follows:
Women Act (VAWA), in defending the civil rights remedy as
a valid exercise of the U.S. Congress' authority under the SEC. 2. Declaration of Policy. – It is hereby declared that the
Commerce and Equal Protection Clauses. He stressed that the State values the dignity of women and children and guarantees
widespread gender bias in the U.S. has institutionalized full respect for human rights. The State also recognizes the
historic prejudices against victims of rape or domestic need to protect the family and its members particularly women
violence, subjecting them to "double victimization" – first at and children, from violence and threats to their personal safety
the hands of the offender and then of the legal system. 79 and security.

Our own Senator Loi Estrada lamented in her Sponsorship Towards this end, the State shall exert efforts to address
Speech for Senate Bill No. 2723 that "(w)henever violence violence committed against women and children in keeping
occurs in the family, the police treat it as a private matter and with the fundamental freedoms guaranteed under the
advise the parties to settle the conflict themselves. Once the Constitution and the provisions of the Universal Declaration
complainant brings the case to the prosecutor, the latter is of Human Rights, the Convention on the Elimination of All
hesitant to file the complaint for fear that it might later be Forms of Discrimination Against Women, Convention on the
withdrawn. This lack of response or reluctance to be involved Rights of the Child and other international human rights
by the police and prosecution reinforces the escalating, instruments of which the Philippines is a party.
recurring and often serious nature of domestic violence." 80
In 1979, the U.N. General Assembly adopted the CEDAW,
Sadly, our own courts, as well, have exhibited prejudices and which the Philippines ratified on August 5, 1981.
biases against our women. Subsequently, the Optional Protocol to the CEDAW was also
ratified by the Philippines on October 6, 2003.86 This
In a recent case resolved on March 9, 2011, we fined RTC Convention mandates that State parties shall accord to women
Judge Venancio J. Amila for Conduct Unbecoming of a Judge. equality with men before the law87 and shall take all
He used derogatory and irreverent language in reference to the appropriate measures to eliminate discrimination against
complainant in a petition for TPO and PPO under R.A. 9262, women in all matters relating to marriage and family relations
calling her as "only a live-in partner" and presenting her as an on the basis of equality of men and women.88 The Philippines
"opportunist" and a "mistress" in an "illegitimate relationship." likewise ratified the Convention on the Rights of the Child and
Judge Amila even called her a "prostitute," and accused her of its two protocols.89 It is, thus, bound by said Conventions and
being motivated by "insatiable greed" and of absconding with their respective protocols.
the contested property.81 Such remarks betrayed Judge Amila's
prejudices and lack of gender sensitivity. III. The classification is not limited to existing

The enactment of R.A. 9262 aims to address the conditions only, and apply equally to all members
discrimination brought about by biases and prejudices against
women. As emphasized by the CEDAW Committee on the Moreover, the application of R.A. 9262 is not limited to the
Elimination of Discrimination against Women, addressing or existing conditions when it was promulgated, but to future
correcting discrimination through specific measures focused conditions as well, for as long as the safety and security of
23
women and their children are threatened by violence and D. "Economic abuse" refers to acts that make or attempt to
abuse. make a woman financially dependent which includes, but is
not limited to the following:
R.A. 9262 applies equally to all women and children who
suffer violence and abuse. Section 3 thereof defines VAWC 1. withdrawal of financial support or
as: preventing the victim from engaging in any
legitimate profession, occupation, business
x x x any act or a series of acts committed by any person or activity, except in cases wherein the other
against a woman who is his wife, former wife, or against a spouse/partner objects on valid, serious and
woman with whom the person has or had a sexual or dating moral grounds as defined in Article 73 of the
relationship, or with whom he has a common child, or against Family Code;
her child whether legitimate or illegitimate, within or without
the family abode, which result in or is likely to result in 2. deprivation or threat of deprivation of
physical, sexual, psychological harm or suffering, or economic financial resources and the right to the use
abuse including threats of such acts, battery, assault, coercion, and enjoyment of the conjugal, community
harassment or arbitrary deprivation of liberty. It includes, but or property owned in common;
is not limited to, the following acts:
3. destroying household property;
A. "Physical Violence" refers to acts that include bodily or
physical harm; 4. controlling the victims' own money or
properties or solely controlling the conjugal
B. "Sexual violence" refers to an act which is sexual in nature, money or properties.
committed against a woman or her child. It includes, but is not
limited to: It should be stressed that the acts enumerated in the
aforequoted provision are attributable to research that has
a) rape, sexual harassment, acts of exposed the dimensions and dynamics of battery. The acts
lasciviousness, treating a woman or her described here are also found in the U.N. Declaration on the
child as a sex object, making demeaning and Elimination of Violence Against Women.90 Hence, the
sexually suggestive remarks, physically argument advanced by petitioner that the definition of what
attacking the sexual parts of the victim's constitutes abuse removes the difference between violent
body, forcing her/him to watch obscene action and simple marital tiffs is tenuous.
publications and indecent shows or forcing
the woman or her child to do indecent acts There is nothing in the definition of VAWC that is vague and
and/or make films thereof, forcing the wife ambiguous that will confuse petitioner in his defense. The acts
and mistress/lover to live in the conjugal enumerated above are easily understood and provide adequate
home or sleep together in the same room contrast between the innocent and the prohibited acts. They
with the abuser; are worded with sufficient definiteness that persons of
ordinary intelligence can understand what conduct is
b) acts causing or attempting to cause the prohibited, and need not guess at its meaning nor differ in its
victim to engage in any sexual activity by application.91 Yet, petitioner insists92 that phrases like
force, threat of force, physical or other harm "depriving or threatening to deprive the woman or her child of
or threat of physical or other harm or a legal right," "solely controlling the conjugal or common
coercion; money or properties," "marital infidelity," and "causing mental
or emotional anguish" are so vague that they make every
c) Prostituting the woman or child. 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
C. "Psychological violence" refers to acts or omissions
precision or mathematical exactitude, as petitioner seems to
causing or likely to cause mental or emotional suffering of the
victim such as but not limited to intimidation, harassment, suggest. Flexibility, rather than meticulous specificity, is
permissible as long as the metes and bounds of the statute are
stalking, damage to property, public ridicule or humiliation,
clearly delineated. An act will not be held invalid merely
repeated verbal abuse and marital infidelity. It includes
because it might have been more explicit in its wordings or
causing or allowing the victim to witness the physical, sexual
detailed in its provisions.93
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 There is likewise no merit to the contention that R.A. 9262
deprivation of the right to custody and/or visitation of singles out the husband or father as the culprit. As defined
common children. 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
24
"person" who has or had a sexual or dating relationship with There need not be any fear that the judge may have no rational
the woman encompasses even lesbian relationships. Moreover, basis to issue an ex parte order. The victim is required not only
while the law provides that the offender be related or to verify the allegations in the petition, but also to attach her
connected to the victim by marriage, former marriage, or a witnesses' affidavits to the petition.101
sexual or dating relationship, it does not preclude the
application of the principle of conspiracy under the Revised The grant of a TPO ex parte cannot, therefore, be challenged
Penal Code (RPC). Thus, in the case of Go-Tan v. Spouses as violative of the right to due process. Just like a writ of
Tan,94 the parents-in-law of Sharica Mari L. Go-Tan, the preliminary attachment which is issued without notice and
victim, were held to be proper respondents in the case filed by hearing because the time in which the hearing will take could
the latter upon the allegation that they and their son (Go-Tan's be enough to enable the defendant to abscond or dispose of his
husband) had community of design and purpose in tormenting property,102 in the same way, the victim of VAWC may
her by giving her insufficient financial support; harassing and already have suffered harrowing experiences in the hands of
pressuring her to be ejected from the family home; and in her tormentor, and possibly even death, if notice and hearing
repeatedly abusing her verbally, emotionally, mentally and were required before such acts could be prevented. It is a
physically. constitutional commonplace that the ordinary requirements of
procedural due process must yield to the necessities of
R.A. 9262 is not violative of the protecting vital public interests,103 among which is protection
due process clause of the Constitution. of women and children from violence and threats to their
personal safety and security.
Petitioner bewails the disregard of R.A. 9262, specifically in
the issuance of POs, of all protections afforded by the due It should be pointed out that when the TPO is issued ex parte,
process clause of the Constitution. Says he: "On the basis of the court shall likewise order that notice be immediately given
unsubstantiated allegations, and practically no opportunity to to the respondent directing him to file an opposition within
respond, the husband is stripped of family, property, guns, five (5) days from service. Moreover, the court shall order that
money, children, job, future employment and reputation, all in notice, copies of the petition and TPO be served immediately
a matter of seconds, without an inkling of what happened."95 on the respondent by the court sheriffs. The TPOs are initially
effective for thirty (30) days from service on the respondent. 104
A protection order is an order issued to prevent further acts of
violence against women and their children, their family or Where no TPO is issued ex parte, the court will nonetheless
household members, and to grant other necessary reliefs. Its order the immediate issuance and service of the notice upon
purpose is to safeguard the offended parties from further harm, the respondent requiring him to file an opposition to the
minimize any disruption in their daily life and facilitate the petition within five (5) days from service. The date of the
opportunity and ability to regain control of their life. 96 preliminary conference and hearing on the merits shall
likewise be indicated on the notice.105
"The scope of reliefs in protection orders is broadened to
ensure that the victim or offended party is afforded all the The opposition to the petition which the respondent himself
remedies necessary to curtail access by a perpetrator to the shall verify, must be accompanied by the affidavits of
victim. This serves to safeguard the victim from greater risk of witnesses and shall show cause why a temporary or permanent
violence; to accord the victim and any designated family or protection order should not be issued.106
household member safety in the family residence, and to
prevent the perpetrator from committing acts that jeopardize It is clear from the foregoing rules that the respondent of a
the employment and support of the victim. It also enables the petition for protection order should be apprised of the charges
court to award temporary custody of minor children to protect imputed to him and afforded an opportunity to present his
the children from violence, to prevent their abduction by the side. Thus, the fear of petitioner of being "stripped of family,
perpetrator and to ensure their financial support." 97 property, guns, money, children, job, future employment and
reputation, all in a matter of seconds, without an inkling of
The rules require that petitions for protection order be in what happened" is a mere product of an overactive
writing, signed and verified by the petitioner98 thereby imagination. The essence of due process is to be found in the
undertaking full responsibility, criminal or civil, for every reasonable opportunity to be heard and submit any evidence
allegation therein. Since "time is of the essence in cases of one may have in support of one's defense. "To be heard" does
VAWC if further violence is to be prevented," 99 the court is not only mean verbal arguments in court; one may be heard
authorized to issue ex parte a TPO after raffle but before also through pleadings. Where opportunity to be heard, either
notice and hearing when the life, limb or property of the through oral arguments or pleadings, is accorded, there is no
victim is in jeopardy and there is reasonable ground to believe denial of procedural due process.107
that the order is necessary to protect the victim from the
immediate and imminent danger of VAWC or to prevent such It should be recalled that petitioner filed on April 26, 2006 an
violence, which is about to recur.100 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
25
modification of the TPO to allow him visitation rights to his Commentary on Section 311 of the Model Code on Domestic
children. Still, the trial court in its Order dated September 26, and Family Violence as follows:110
2006, gave him five days (5) within which to show cause why
the TPO should not be renewed or extended. Yet, he chose not This section prohibits a court from ordering or referring
to file the required comment arguing that it would just be an parties to mediation in a proceeding for an order for
"exercise in futility," conveniently forgetting that the renewal protection. Mediation is a process by which parties in
of the questioned TPO was only for a limited period (30 days) equivalent bargaining positions voluntarily reach consensual
each time, and that he could prevent the continued renewal of agreement about the issue at hand. Violence, however, is not a
said order if he can show sufficient cause therefor. Having subject for compromise. A process which involves parties
failed to do so, petitioner may not now be heard to complain mediating the issue of violence implies that the victim is
that he was denied due process of law. somehow at fault. In addition, mediation of issues in a
proceeding for an order of protection is problematic because
Petitioner next laments that the removal and exclusion of the the petitioner is frequently unable to participate equally with
respondent in the VAWC case from the residence of the the person against whom the protection order has been sought.
victim, regardless of ownership of the residence, is virtually a (Emphasis supplied)
"blank check" issued to the wife to claim any property as her
conjugal home.108 There is no undue delegation of
judicial power to barangay officials.
The wording of the pertinent rule, however, does not by any
stretch of the imagination suggest that this is so. It states: Petitioner contends that protection orders involve the exercise
of judicial power which, under the Constitution, is placed
SEC. 11. Reliefs available to the offended party. -- The upon the "Supreme Court and such other lower courts as may
protection order shall include any, some or all of the following be established by law" and, thus, protests the delegation of
reliefs: power to barangay officials to issue protection orders. 111 The
pertinent provision reads, as follows:
xxxx
SEC. 14. Barangay Protection Orders (BPOs); Who May Issue
(c) Removing and excluding the respondent from the and How. – Barangay Protection Orders (BPOs) refer to the
residence of the offended party, regardless of ownership of the protection order issued by the Punong Barangay ordering the
residence, either temporarily for the purpose of protecting the perpetrator to desist from committing acts under Section 5 (a)
offended party, or permanently where no property rights are and (b) of this Act.1âwphi1 A Punong Barangay who receives
violated. If the respondent must remove personal effects from applications for a BPO shall issue the protection order to the
the residence, the court shall direct a law enforcement agent to applicant on the date of filing after ex parte determination of
accompany the respondent to the residence, remain there until the basis of the application. If the Punong Barangay is
the respondent has gathered his things and escort him from the unavailable to act on the application for a BPO, the application
residence; 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
xxxx
the Punong Barangay was unavailable at the time of the
issuance of the BPO. BPOs shall be effective for fifteen (15)
Indubitably, petitioner may be removed and excluded from days. Immediately after the issuance of an ex parte BPO, the
private respondent's residence, regardless of ownership, only Punong Barangay or Barangay Kagawad shall personally
temporarily for the purpose of protecting the latter. Such serve a copy of the same on the respondent, or direct any
removal and exclusion may be permanent only where no barangay official to effect its personal service.
property rights are violated. How then can the private
respondent just claim any property and appropriate it for
The parties may be accompanied by a non-lawyer advocate in
herself, as petitioner seems to suggest?
any proceeding before the Punong Barangay.
The non-referral of a VAWC case
to a mediator is justified. 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
Petitioner argues that "by criminalizing run-of-the-mill there has been a grave abuse of discretion amounting to lack
arguments, instead of encouraging mediation and counseling, or excess of jurisdiction on the part of any branch or
the law has done violence to the avowed policy of the State to instrumentality of the Government.112 On the other hand,
"protect and strengthen the family as a basic autonomous executive power "is generally defined as the power to enforce
social institution."109 and administer the laws. It is the power of carrying the laws
into practical operation and enforcing their due
Under Section 23(c) of A.M. No. 04-10-11-SC, the court shall observance."113
not refer the case or any issue thereof to a mediator. The
reason behind this provision is well-explained by the
26
As clearly delimited by the aforequoted provision, the BPO that one of its most difficult struggles was the fight against the
issued by the Punong Barangay or, in his unavailability, by violence of law itself. If we keep that in mind, law will not
any available Barangay Kagawad, merely orders the again be a hindrance to the struggle of women for equality but
perpetrator to desist from (a) causing physical harm to the will be its fulfillment."118Accordingly, the constitutionality of
woman or her child; and (2) threatening to cause the woman or R.A. 9262 is, as it should be, sustained.
her child physical harm. Such function of the Punong
Barangay is, thus, purely executive in nature, in pursuance of WHEREFORE, the instant petition for review on certiorari is
his duty under the Local Government Code to "enforce all hereby DENIED for lack of merit.
laws and ordinances," and to "maintain public order in the
barangay."114
SO ORDERED.

We have held that "(t)he mere fact that an officer is required


Footnotes
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 On official leave.
rights do not constitute an exercise of judicial powers." 115
1
"Philippines still top Christian country in Asia, 5th
In the same manner as the public prosecutor ascertains through in world," Philippine Daily Inquirer, December 21,
a preliminary inquiry or proceeding "whether there is 2011.
reasonable ground to believe that an offense has been
2
committed and the accused is probably guilty thereof," the Ephesians 5:25-28.
Punong Barangay must determine reasonable ground to
believe that an imminent danger of violence against the 3
RATIONALE OF THE PROPOSED RULE ON
woman and her children exists or is about to recur that would VIOLENCE AGAINST WOMEN AND THEIR
necessitate the issuance of a BPO. The preliminary CHILDREN, citing statistics furnished by the
investigation conducted by the prosecutor is, concededly, an National Commission on the Role of Filipino
executive, not a judicial, function. The same holds true with Women.
the issuance of a BPO.
4
Id.
We need not even belabor the issue raised by petitioner that
since barangay officials and other law enforcement agencies 5
Section 3(a), R.A. 9262.
are required to extend assistance to victims of violence and
abuse, it would be very unlikely that they would remain 6
Rollo, pp. 63-83.
objective and impartial, and that the chances of acquittal are
nil. As already stated, assistance by barangay officials and 7
other law enforcement agencies is consistent with their duty to Id. at 66-67.
enforce the law and to maintain peace and order.
8
Id. at 64.
Conclusion
9
Id. at 67-68.
Before a statute or its provisions duly challenged are voided,
10
an unequivocal breach of, or a clear conflict with the Id. at 68-70.
Constitution, not merely a doubtful or argumentative one,
must be demonstrated in such a manner as to leave no doubt in 11
Id. at 70-71.
the mind of the Court. In other words, the grounds for nullity
must be beyond reasonable doubt.116 In the instant case, 12
Id. at 72.
however, no concrete evidence and convincing arguments
were presented by petitioner to warrant a declaration of the 13
unconstitutionality of R.A. 9262, which is an act of Congress Id. at 73.
and signed into law by the highest officer of the co-equal
14
executive department. As we said in Estrada v. Id. at 74.
Sandiganbayan, 117 courts must assume that the legislature is
ever conscious of the borders and edges of its plenary powers, 15
Id. at 65-66.
and passed laws with full knowledge of the facts and for the
purpose of promoting what is right and advancing the welfare 16
Id. at 66.
of the majority.
17
Id. at 70.
We reiterate here Justice Puno's observation that "the history
of the women's movement against domestic violence shows 18
Id. at 84-87.
27
19 42
Urgent Ex-Parte Motion for Renewal of Temporary SEC. 5. Jurisdiction of Family Courts. - The
Protection Order (TPO) or Issuance of Modified Family Courts shall have exclusive original
TPO. Id. at 90-93. jurisdiction to hear and decide the following cases:

20
Id. at 94-97. xxxx

21
Id. at 98-103. k) Cases of domestic violence against:

22
Id. at 138-140. 1) Women - which are acts of gender based
violence that results, or are likely to result in
23
Order dated May 24, 2006. Id. at 148-149. physical, sexual or psychological harm or
suffering to women; and other forms of
24 physical abuse such as battering or threats
Id. at 154-166.
and coercion which violate a woman's
25
personhood, integrity and freedom
Id. at 156. movement; and
26
Id. at 157. 2) Children - which include the commission
of all forms of abuse, neglect, cruelty,
27
Id. at 158-159. exploitation, violence, and discrimination
and all other conditions prejudicial to their
28 development.
Id. at 167-174.

29 43
Id. at 182. Sec. 17, R.A. 8369.

30 44
Id. at 183-184. Manalo v. Mariano, 161 Phil. 108, 120 (1976).

31 45
Id. at 185. Planters Products, Inc. v. Fertiphil Corporation,
G.R. No. 166006, March 14, 2008, 548 SCRA 485,
32
Id. at 186-187. 504.

46
33
See Manifestation dated October 10, 2006. Id. at Drilon v. Lim, G.R. No. 112497, August 4, 1994,
188-189. 235 SCRA 135, 140.

47
34
Id. at 104-137. Planters Products, Inc. v. Fertiphil Corporation,
supra note 45, at 505, citing Mirasol v. CA, 403 Phil.
35 760 (2001).
Id. at 151-152.
48
36 G.R. Nos. L-18128 & L-18672, December 26,
Decision dated January 24, 2007. Penned by
1961, 3 SCRA 696, 703-704.
Associate Justice Priscilla Baltazar-Padilla, with
Associate Justices Arsenio J. Magpale and Romeo F. 49
Barza, concurring. Id. at 47-57. RATIONALE OF THE PROPOSED RULES ON
VIOLENCE AGAINST WOMEN AND THEIR
37 CHILDREN.
Id. at 60-61.
50
38 Korea Exchange Bank v. Hon. Rogelio C.
Petition, id. at 22.
Gonzales, 496 Phil. 127, 143-144 (2005); Spouses
Sapugay v. CA, 262 Phil. 506, 513 (1990).
39
ABS-CBN Broadcasting Corporation v. Philippine
Multi-Media System, Inc., G.R. Nos. 175769-70, 51
Sec. 8, Rule 6, 1997 Rules of Civil Procedure.
January 19, 2009, 576 SCRA 262, 289.
52
40 Sec. 11, Rule 6, 1997 Rules of Civil Procedure.
Philippine National Bank v. Palma, 503 Phil. 917,
932 (2005). 53
See People of the Philippine Islands and Hongkong
41 & Shanghai Banking Corporation v. Vera, 65 Phil
Petition, rollo, p. 24.
199 (1937); Philippine Coconut Producers

28
72
Federation, Inc. (COCOFED) v. Republic, G.R. Nos. <http://www.lawphil.net/international/treaties/dec_
177857-58, January 24, 2012, 663 SCRA 514, 594. dec_1993.html> (visited November 16, 2012).

54 73
Recreation and Amusement Association of the As reported by Senator Loi Estrada in her
Philippines v. City of Manila, 100 Phil 950, 956 Sponsorship Speech, Congressional Records, Vol. III,
(1957). No. 45, December 10, 2003, p. 22.

55 74
Secs. 22 and 31, A.M. No. 04-10-11-SC. Philippine Commission on Women, "Statistics on
Violence Against Filipino Women,"
56
Sec. 26 (b), A.M. No. 04-10-11-SC. <http://pcw.gov.ph/statistics/201210/statistics-
violence-against-filipino-women> (visited October
57
Sto. Domingo v. De Los Angeles, 185 Phil. 94, 102 12, 2012).
(1980).
75
Women's Aid, "Who are the victims of domestic
58 violence?," citing Walby and Allen, 2004,
27 L.Ed.2d 669 (1971), cited in The Executive
<www.womensaid.org.uk/domestic-violence-
Secretary v. Court of Appeals, 473 Phil. 27, 56-57
(2004). articles.asp?
section=00010001002200410001&itemid= 1273
59
(visited November 16, 2012).
Rollo, pp. 214-240, 237.
76
60
Toronto District School Board, Facts and Statistics
Petition, id. at 26-27. <www.tdsb.on.ca/site/viewitem.asp?siteid=15&
menuid=23082&pageid=20007> (visited November
61
An Act Defining Violence Against Women and 16, 2012).
Members of the Family, Prescribing Penalties
Therefor, Providing for Protective Measures for 77
People v. Solon, 110 Phil. 39, 41 (1960).
Victims and for Other Purposes.
78
62
Victoriano v. Elizalde Rope Workers' Union, supra
Congressional Records, Vol. III, No. 45, December note 69, 90.
10, 2003, p. 27.
79
63
Biden, Jr., Joseph R., "The Civil Rights Remedy of
Id. at 25. the Violence Against Women Act: A Defense," 37
Harvard Journal on Legislation 1 (Winter, 2000).
64
Id. at 27.
80
Congressional Records, Vol. III, No. 45, December
65
Id. at 43-44. 10, 2003, pp. 22-23.

66
Congressional Records, Vol. III, No. 51, January 81
Benancillo v. Amila, A.M. No. RTJ-08-2149,
14, 2004, pp. 141-147. March 9, 2011, 645 SCRA 1, 8.

67
Lawyers Against Monopoly and Poverty (LAMP) 82
"General recommendation No. 25, on article 4,
v. The Secretary of Budget and Management, G.R. paragraph 1, of the Convention on the Elimination of
No. 164987, April 24, 2012, 670 SCRA 373, 391. All Forms of Discrimination against Women, on
temporary special measures"
68
Garcia v. Commission on Elections, G.R. No.
111511, October 5, 1993, 227 SCRA 100, 113-114. <www.un.org/womenwatch/.../recommendation>
(visited January 4, 2013).
69
158 Phil. 60, 86-87 (1974).
83
Petition, rollo, p. 27.
70
Andrews v. Law Society of British Columbia,
[1989] 1 S.C.R. 143, p. 169. 84
Article 5(a), CEDAW.

71
Philippine Commission on Women, National 85
"The Rule on Violence Against Women and Their
Machinery for Gender Equality and Women's Children," Remarks delivered during the Joint
Empowerment, "Violence Against Women (VAW)," Launching of R.A. 9262 and its Implementing Rules
<http://www.pcw.gov.ph> (visited November 16, last October 27, 2004 at the Session Hall of the
2012). Supreme Court.

29
86 110
Supra note 49. Supra note 49.

87 111
Article 15. Petition, rollo, pp. 130-131.

88 112
Article 16. Sec. 1, Article VIII, 1987 Constitution.

89 113
Supra note 49. Laurel v. Desierto, 430 Phil. 658 (2002).

90 114
Supra note 49. People v. Tomaquin, 478 Phil. 885, 899 (2004),
citing Section 389, Chapter 3, Title One, Book III,
91
Estrada v. Sandiganbayan, 421 Phil 290, 351-352 Local Government Code of 1991, as amended.
(2001).
115
Lovina and Montilla v. Moreno and Yonzon, 118
92
Petition, rollo, p. 35. Phil 1401, 1406 (1963).

116
93
Estrada v. Sandiganbayan , supra note 91, at 352- Hacienda Luisita, Incorporated v. Presidential
353. Agrarian Reform Council, G.R. No. 171101, July 5,
2011, 653 SCRA 154, 258.
94
G.R. No. 168852, September 30, 2008, 567 SCRA
117
231. Supra note 91.

118
95
Petition, rollo, p. 31. Supra note 85.

96
Sec. 4 (o), A.M. No. 04-10-11-SC.

97
Supra note 49.

98
Sec. 7, A.M. No. 04-10-11-SC.

99
Supra note 49.

100
Id.

101
Supra note 85.

102
Cuartero v. CA, G.R. No. 102448, August 5,
1992, 212 SCRA 260, 265.

103
Laguna Lake Development Authority v. Court of
Appeals, G.R. No. 110120, March 16, 1994, 231
SCRA 292, 307, citing Pollution Adjudication Board
v. Court of Appeals, G.R. No. 93891, March 11,
1991, 195 SCRA 112.

104
Sec. 15, A.M. No. 04-10-11-SC.

105
Sec. 16, A.M. No. 04-10-11-SC.

106
Sec. 20, A.M. No. 04-10-11-SC.

107
Esperida v. Jurado, Jr., G.R. No. 172538, April 25,
2012, 671 SCRA 66, 74.

108
Petition, rollo, pp. 30-31.

109
Id. at 36.
30
Republic of the Philippines 5. Petitioner’s communications tower is 150 feet in
SUPREME COURT height equivalent to a 15-storey building. It is a
Manila tripod-type tower made of tubular steel sections and
the last section, to which the huge and heavy
FIRST DIVISION antenna/transponder array will be attached, about to
be bolted on. Weight of the antenna mast is estimated
at one (1) to three (3) tons, more or less. As designed,
G.R. No. 166330 September 11, 2013
the antenna/transponder array are held only by steel
bolts without support of guy wires;
SMART COMMUNICATIONS, INC., Petitioner,
vs.
6. This SMART tower is no different from the
ARSENIO ALDECOA, JOSE B. TORRE, CONRADO U.
Mobiline tower constructed at Reina Mercedes,
PUA, GREGORIO V. MANSANO, JERRY CORPUZ and
ESTELITAACOSTA, Respondents. Isabela which collapsed during a typhoon that hit
Isabela in October 1998, an incident which is of
public knowledge;
DECISION
7. With its structural design, SMART’s tower being
LEONARDO-DE CASTRO, J.: constructed at Vira, Roxas, Isabela, is weak, unstable,
and infirm, susceptible to collapse like the Mobiline
Before the Court is a Petition for Review on Certiorari under tower which fell during a typhoon as earlier alleged,
Rule 45 of the Rules of Court filed by petitioner Smart and its structural integrity being doubtful, and not
Communications, Inc., seeking the reversal of the earthquake proof, this tower poses great danger to life
Decision1 dated July 16, 2004 and Resolution2 dated and limb of persons as well as their property,
December 9, 2004 of the Court of Appeals in CA-G.R. CV particularly, the respondents whose houses a but, or
No. 71337. The appellate court (I) reversed and set aside the are near or within the periphery of the
Order3 dated January 16, 2001 of the Regional Trial Court communications tower;
(RTC), Branch 23, of Roxas, Isabela, in Civil Case No. Br. 23-
632-2000 dismissing the complaint for abatement of nuisance 8. This tower is powered by a standby generator that
and injunction against petitioner, and (2) entered a new emitsnoxious and deleterious fumes, not to mention
judgment declaring petitioner's cellular base station located in the constant noise it produces, hence, a hazard to the
Barangay Vira, Municipality of Roxas, Province of Isabela, a health, not only of the respondents, but the residents
nuisance and ordering petitioner to cease and desist from in the area as well;
operating the said cellular base station.
9. When in operation, the tower would also pose
The instant Petition arose from the following facts: danger to the life and health of respondents and
residents of the barangay, especially children,
Petitioner is a domestic corporation engaged in the because of the ultra high frequency (UHF) radio
telecommunications business. On March 9, 2000, petitioner wave emissions it radiates. Only recently, Cable
entered into a contract of lease4 with Florentino Sebastian in News Network (CNN) reported that cell phones, with
which the latter agreed to lease to the former a piece of vacant minimal radiated power, are dangerous to children, so
lot, measuring around 300 square meters, located in Barangay more it is for this communications tower, whose
Vira, Roxas, Isabela (leased property).Petitioner, through its radiated power is thousands of times more than that
contractor, Allarilla Construction, immediately constructed of a cellphone;
and installed a cellular base station on the leased property.
Inside the cellular base station is a communications tower, 10. Worse, and in violation of law, petitioner
rising as high as150 feet, with antennas and transmitters; as constructed the tower without the necessary public
well as a power house open on three sides containing a hearing, permit of the barangay, as well as that of the
25KVA diesel power generator. Around and close to the municipality, the Environmental Compliance
cellular base station are houses, hospitals, clinics, and Certificate of the [Department of Environment and
establishments, including the properties of respondents Natural Resources (DENR)],construction permit, and
Arsenio Aldecoa, Jose B. Torre, Conrado U. Pua, Gregorio V. other requirements of the National
Mansano, Jerry Corpuz, and Estelita Acosta. Telecommunications Commission (NTC), and in fact
committed fraud in its application by forging an
Respondents filed before the RTC on May 23, 2000 a undated certification " that Barangay Vira does not
Complaint against petitioner for abatement of nuisance and interpose any objection to the proposed construction
injunction with prayer for temporary restraining order and writ of a 150 ft. tower & site development, " as this
of preliminary injunction, docketed as Civil Case No. Br. 23- certification was never issued byrespondent Jose
632-2000. Respondents alleged in their Complaint that: Torre, the Barangay Captain of Vira, Roxas, Isabela,
and without the official barangay seal, attached as
Annex "A" and Certification of the Barangay Officer
31
of the Day that no public hearing was held, attached 13. Petitioner through its contractor,
as Annex "B" made integral part hereof; Allarilla Construction(hereafter Allarilla),
applied for a Building Permit through the
11. Not being armed with the requisite office of Municipal engineer Virgilio A.
permits/authority as above mentioned, the Batucal on 13 April 2000 and subsequently
construction of the tower is illegal and should be received its approval 17 April 2000. (a copy
abated; of the Official receipt and the Building
Permit is hereto attached respectively as
12. Respondents and petitioner should not wait for Annex "A" and "B" and made an integral
part hereof)
the occurrence of death, injuries and damage on
account of this structure and judicial intervention is
needed to ensure that such event will not happen.5 14. Petitioner, again through Allarilla
applied for an Environmental Compliance
Respondents thus prayed for the RTC to: Certificate (ECC) the approval of which, at
present, remains pending with the DENR-
[Environment Management Bureau (EMB)].
1. Issue a temporary restraining order and
after due hearing to issue a writ of
preliminary mandatory injunction; 15. Petitioner should not in anyway be liable
for fraud or bad faith as it had painstakingly
secured the consent of majority of the
2. Render judgment: residents surrounding the location of the
Tower in order to seek their approval
- Making the writ of preliminary therewith. (a copy of the list of residents
mandatory injunction permanent; who consented there to is attached herewith
as Annex "C" and made an integral part
- Declaring the construction of the hereof)
SMART tower as a nuisance per se
or per accidens; 16. Among the residents who signed the
consent list secured by petitioner include the
- Ordering the abatement of this respondent Jose B. Torre and a certain
nuisance by ordering the removal Linaflor Aldecoa, who is related to
and/or demolition of petitioner’s respondent Arsenio Aldecoa.
communication tower;
17. Petitioner did not forge the Barangay
- Condemning petitioner to pay Certification but actually secured the
respondents moral damages in the consent of Barangay Captain Jose Torre
sum of P150,000.00 and exemplary through the efforts of Sangguniang Bayan
damages in the sum of P30,000.00; (SB) Board Member Florentino Sebastian.(a
copy of the Barangay Certification is
- Ordering petitioner to pay attached herewith as Annex "D" and made
attorney’s fees in the amount an integral part hereof)
of P20,000.00 plus trial honoraria
ofP1,000.00 for every appearance 18. Petitioner Tower’s safety has been pre-
in Court; cleared and is unlikely to cause harm in
exposing the members of the public to levels
- Ordering petitioner to refund to exceeding health limits considering that the
respondents litigation expenses in antenna height of the Tower is 45.73 meters
the amount of not less or equivalent to 150 feet as stated in a Radio
than P10,000.00; Frequency Evaluation report by Elizabeth H.
Mendoza health Physicist II, of the
Department of Health Radiation Health
3. And for such other reliefs as are just and
Service dated 9 May 2000. (a copy is hereto
equitable in the premises.6
attached as Annex "E" and made an integral
part hereof)
In its Answer/Motion to Oppose Temporary
Restraining Order with Compulsory
19. The structural stability and soundness of
Counterclaim, petitioner raised the
the Tower has been certified by Engr.
following special and affirmative defenses:
Melanio A. Guillen Jr. of the Engineering
Consulting firm Microflect as contained in
32
their Stress Analysis Report (a copy is the petitioner and in fact misled the DOH Radiation
hereto attached as Annex "F" and made an Health Service. It states an absurdly low transmitted
integral part hereof) power of twenty (20) watts for a dual band mobile
phone service such as petitioner Smart’s GSM
20. petitioner’s impetus to push through 900/1800 Dual Band which is the standard service it
with the construction of the Tower is offers to the public;
spurred by the Telecommunications Act of
1995 or Republic Act 7925 which states that - The Stress Analysis Report is self-serving and
the "expansion of the telecommunications tested against the communications tower, the
network shall give priority to improving and structural integrity is flawed;
extending basic services to areas not yet
served." Article II, Sec. 4 par. B.(a copy of - While respondents may yield to the mandate of
RA 7925 is hereto attached as Annex "G" Republic Act No.7925, otherwise known as the
and made an integral part hereof)7 Telecommunications Act of 1995,extending and
improving or upgrading of basic services to are as not
In the end, petitioner sought the dismissal of respondents’ yet served, this should not be taken as a license to
Complaint; the denial of respondents’ prayer for the issuance gamble and/or destroy the health and well-being of
of a temporary restraining order and writ of preliminary the people;
mandatory injunction; the award of moral, nominal, and
exemplary damages in the amounts which the court deem just - Petitioner’s alleged certification (Annex "D",
and reasonable; and the award of attorney’s fees in the sum should be Annex "4") is the very same certification
of P500,000.00 and litigation expenses as may be proven at appended to respondents’ complaint which they have
the trial. assailed as a forgery and which respondent Jose
Torre, the Barangay Captain of Vira, Roxas, Isabela,
Respondents then contested petitioner’s allegations and emphatically denies having signed and/or issued the
averred in their Reply and Answer to Counterclaim that: same. Moreover, the certification gives petitioner
away because respondent Jose Torre has no technical
- Petitioner’s cell site relay antenna operates on the education using the telecommunications term
ultra high frequency (UHF) band, or gigabyte band, "SMART GSM & ETACS project," in said falsified
that is much higher than that of TV and radio certification;
broadcasts which operates only on the Very High
Frequency (VHF) band, hence, petitioner’s - Petitioner’s claim that it is not liable for fraud or
equipment generates dangerously high radiation and bad faith, proudly stating that it has painstakingly
emission that is hazardous to the people exposed to it secured the consent of the majority of the residents
like respondents, whose houses are clustered around surrounding the tower site, is belied by the alleged
petitioner’s cell site antenna/communications tower; Conformity of Host Community (Residential) –
Annex "C" – should be Annex "3" – where only a
- As admitted, petitioner has not secured the required handful of residents signed the document prepared by
Environmental Compliance Certificate (ECC). It has petitioner and the contents of which were
not even obtained the initial compliance certificate misrepresented by a Sangguniang Bayan Member in
(ICC). In short,petitioner should have waited for the person of Nick Sebastian who is an interested
these documents before constructing its tower, hence, party being the owner of the land where the tower is
it violated the law and such construction is illegal and constructed. It was misrepresented to Linaflor
all the more sustains the assertions of respondents; Aldecoa, wife of respondent Arsenio Aldecoa that it
was already anyway approved and signed by
Barangay Captain Jose Torre when in truth his
- The alleged building permit issued to petitioner is
signature was again forged by the petitioner and/or its
illegal because of the lack of an ECC and that
employees or agents or person working for said
petitioner’s application for a building permit covered
company. Also, there are persons who are not
only a building and not a cell site antenna tower.
Moreover, the petitioner failed to obtain a National residents of Vira, Roxas, Isabela who signed the
Telecommunications Commission (NTC) Clearance document such as Melanio C. Gapultos of Rizal,
Roxas, Isabela, Carlito Castillo of Nuesa, Roxas,
to construct the communications tower. As will be
Isabela, and another, Gennie Feliciano from San
seen in the application and permit, the documents are
Antonio, Roxas, Isabela. Certainly six (6) persons do
dated April, 2000 while the construction begun in
not constitute the conformity of the majority of the
March, 2000;
residents of Vira, Roxas, Isabela, and those
immediately affected by the cellsite tower like
- The technical data that served as the basis of the respondents. This document is likewise flawed and
Radio Frequency Radiation Evaluation of petitioner’s cannot help petitioner’s cause. Besides, respondents
mobile telephone base station was provided solely by and other residents, sixty-two (62) of them,
33
communicated their protest against the erection of the 3. There is no extreme urgency to issue a Preliminary
cell tower specifying their reasons therefor and Mandatory Injunction as stated in an affidavit
expressing their sentiments and fears about executed by SMART Senior Supervisor Andres V.
petitioner’s communications tower, xerox copy Romero in an affidavit hereto attached as Annex "A"
attached as Annex "A" and made integral part hereof;
4. Petitioner seeks immediate declaratory relief from
- Respondents likewise specifically deny the truth of respondents’ contrived allegations as set forth in their
the allegation in paragraph 12 of the answer, the truth complaint;
being that the lot leased to petitioner is owned by SB
Member Nick Sebastian and that Florentino Wherefore, it is most respectfully prayed of this Honorable
Sebastian is dummying for the former in avoidance Court that summary judgment be rendered pursuant to Rule 35
of possible anti-graft charges against his son of the Revised Rules of Court.11
concerning this project. It is also further denied for
lack of knowledge or information sufficient to form a Respondents filed their Pre-Trial Brief on September 21,
belief as to the truth thereof. Moreover, the lease
2000, proposing to limit the issues,
contract, copy not annexed to petitioner’s answer,
would automatically be terminated or ended in the
event of complaints and/or protests from the viz:
residents.8
- Whether petitioner’s communications tower is a
Civil Case No. Br. 23-632-2000 was set for pre-trial on nuisance per se/per accidens and together with its
September 28, 2000.9 standby generator maybe abated for posing danger to
the property and life and limb of the residents of
Vira, Roxas, Isabela more particularly the
On September 11, 2000, petitioner filed its Pre-Trial Brief in respondents and those whose houses are clustered
which it identified the following issues:
around or in the periphery of the cell site.

4.1. Whether respondents have a cause of action


- Damages, attorney’s fees, litigation expenses and
against the petitioner SMART for this Honorable other claims.12
Court to issue a Preliminary Mandatory Injunction
over the SMART tower in Roxas, Isabela as it
allegedly poses a threat to the lives and safety of the Respondents likewise filed on September 21, 2000 their
residents within the area and if respondents are Opposition to petitioner’s Motion for Summary Judgment,
entitled to moral and exemplary damages as well as maintaining that there were several genuine issues relating to
attorney’s fees and expenses of litigation. the cause of action and material facts of their Complaint. They
asserted that there was a need for a full blown trial to prove
the allegations in their Complaint, as well as the defenses put
4.2 Whether the complaint should be dismissed in
up by petitioner.13
that the claim or demand set forth in the Complaint is
fictitious, imaginary, sham and without any real
basis. In its Order14 dated September 28, 2000, the RTC indefinitely
postponed the pre-trial until it has resolved petitioner’s Motion
for Summary Judgment. In the same Order, the RTC directed
4.3. What petitioner SMART is entitled under its
the counsels of both parties to submit their memoranda,
compulsory counterclaim against respondents for
including supporting affidavits and other documents within 30
moral and exemplary damages, attorney’s fees, and days.
other expenses of litigation.10
Petitioner submitted its Memorandum15 on October 26, 2000;
On even date, petitioner filed a Motion for Summary
while respondents, following several motions for extension of
Judgment that reads:
time, filed their Memorandum16 on November 22, 2000. In
their Memorandum, respondents additionally alleged that:
Petitioner SMART Communications Inc., thru counsel,
respectfully manifests that:
The cellsite base station is powered by a roaring 25 KVA
power generator. Operated 24 hours since it started more than
1. There is no need for a full-blown trial as the causes a month ago, it has sent "jackhammers into the brains" of all
of action and issues have already been identified in the inhabitants nearby. Everyone is going crazy. A resident
all the pleadings submitted to this Honorable court by just recently operated for breast cancer is complaining that the
both respondents and petitioner noise emanating from the generator is fast tracking her
appointment with death. She can no longer bear the unceasing
2. There is clearly no genuine issue as to any material and irritating roar of the power generator.
fact or cause in the action.

34
For this, the residents, led by the respondents, sought a noise proceeding or a trial. As to the claim that there is no
emission test of the power generator of petitioner SMART certification or clearance from the DENR for the petitioner to
Communications with the DENR. The test was conducted on lay in wait before the construction, suffice it to say that no
November 14 and 15, 2000 and the result shows that the action as yet has been taken by said office to stop the ongoing
petitioner’s power generator failed the noise emission test, day operation of said cellsite now in operation. There has been no
and night time. Result of this test was furnished the Municipal hue and cry from among the greater majority of the people of
Mayor of Roxas, Isabela (See Communication of DENR Roxas, Isabela, against it. Al contrario, it is most welcome to
Regional Director Lorenzo C. Aguiluz to Mayor Benedicto them as this is another landmark towards the progress of this
Calderon dated November 16, 2000 and the Inspection town.18
Monitoring Report).
The dispositive portion of the RTC Order reads:
With these findings, the power generator is also a nuisance. It
must also be abated.17 WHEREFORE, in view of the foregoing considerations, the
Court hereby renders judgment dismissing the complaint as
On January 16, 2001, the RTC issued its Order granting the allegations therein are purely speculative and hence no
petitioner’s Motion for Summary Judgment and dismissing basis in fact to warrant further proceedings of this case.
respondents’ Complaint. The RTC ruled as follows:
The Court finds no compelling grounds to award damages.
What is of prime importance is the fact that contrary to the
respondents’ speculation, the radio frequency radiation as Without costs.19
found out by the Department of Health is much lower
compared to that of TV and radio broadcast. The respondents’
In another Order20 dated February 27, 2001, the RTC denied
counter to this claim is that the Department of Health was respondents’ Motion for Reconsideration.
misled. This is a mere conclusion of the respondents.
Respondents filed an appeal with the Court of Appeals,
The respondents in opposing the Smart’s construction of their
docketed as CA-G.R. CV No. 71337.
cellsite is anchored on the supposition that the operation of
said cellsite tower would pose a great hazard to the health of
the alleged cluster of residents nearby and the perceived The Court of Appeals rendered its Decision on July 16, 2004.
danger that the said tower might also collapse in case of a The appellate court declared the cellular base station of
strong typhoon that fell the Mobiline Cellsite tower of petitioner a nuisance that endangered the health and safety of
Mobiline (sic). The structured built of the Smart’s Cellsite the residents of Barangay Vira, Roxas, Isabela because: (1) the
tower is similar to that of the Mobiline. locational clearance granted to petitioner was a nullity due to
the lack of approval by majority of the actual residents of the
Now, as to the Court’s assessment of the circumstances
obtaining, we find the claim of the respondents to be highly barangay and a barangay resolution endorsing the construction
speculative, if not an isolated one. Elsewhere, we find several of the cellular base station; and (2) the sound emission of the
cellsite towers scattered (sic) allover, both of the Smart, generator at the cellular base station exceeded the Department
Globe, and others, nay even in thickly populated areas like in of Environment and Natural Resources (DENR) standards.
Metro Manila and also in key cities nationwide, yet they have Consequently, the Court of Appeals decreed:
not been outlawed or declared nuisance as the respondents
now want this Court to heed. To the thinking of the Court, the WHEREFORE, the appealed decision is hereby REVERSED
respondents are harping imagined perils to their health for and SET ASIDE. A new one is entered declaring the
reason only known to them perhaps especially were we to communications tower or base station of petitioner Smart
consider that the Brgy. Captain of Vira earlier gave its Communications, Inc. located at Brigido Pascual Street in
imprimatur to this project. Noteworthy is the fact that the Vira, Municipality of Roxas, Province of Isabela, a nuisance.
alleged cluster of residential houses that abut the cellsite tower Petitioner is ordered to cease and desist from operating the
in question might be endangered thereby, the respondents are said tower or station.21
but a few of those residents. If indeed, all those residents in
Vira were adversely affected for the perceived hazards posed Petitioner filed its Motion for Reconsideration arguing that:
by the tower in question, they should also have been joined in (1) the basis for the judgment of the appellate court that the
as respondents in a class suit. The sinister motive is perhaps cellular base station was a nuisance had been extinguished as
obvious. the generator subject of the Complaint was already removed;
and (2) there had been substantial compliance in securing all
All the foregoing reasons impel this Court to grant the required permits for the cellular base station.22
petitioner’s motion for the dismissal of the complaint, the
perceived dangers being highly speculative without any bases The Court of Appeals, in a Resolution dated December 9,
in fact. Allegations in the complaint being more imaginary 2004,refused to reconsider its earlier Decision, reasoning that:
than real, do not constitute factual bases to require further
35
Petitioner principally anchors its pleas for reconsideration on On the finding of the Court of
the Certification issued by Roxas, Isabela Municipal Engineer Appeals that petitioner’s locational
Virgilio Batucal, declaring that upon actual inspection, no clearance for its cellular base station
Denyo Generator Set has been found in the company’s cell is a nullity
site in Roxas, Isabela. We hold, however, that the certification
dated August 12, 2004, taken on its own, does not prove Based on the principle of exhaustion of administrative
Smart’s allegation that it has abandoned using diesel- powered remedies and its corollary doctrine of primary jurisdiction, it
generators since January 2002. Respondents’ current was premature for the Court of Appeals to take cognizance of
photographs of the cell site clearly shows (sic) that Smart and rule upon the issue of the validity or nullity of petitioner’s
continues to use a mobile generator emitting high level of locational clearance for its cellular base station.
noise and fumes.
The principle of exhaustion of administrative remedies and the
We have gone over [petitioner’s] other arguments and doctrine of primary jurisdiction were explained at length by
observed that they are merely repetitive of previous the Court in Province of Zamboanga del Norte v. Court of
contentions which we have judiciously ruled Appeals,25 as follows:
upon.23 (Citations omitted.)
The Court in a long line of cases has held that before a party is
Petitioner seeks recourse from the Court through the instant allowed to seek the intervention of the courts, it is a pre-
Petition, assigning the following errors on the part of the Court condition that he avail himself of all administrative processes
of Appeals: afforded him. Hence, if a remedy within the administrative
machinery can be resorted to by giving the administrative
21.0 The Court of Appeals erred when it encroached officer every opportunity to decide on a matter that comes
upon an executive function of determining the within his jurisdiction, then such remedy must be exhausted
validity of a locational clearance when it declared, first before the court's power of judicial review can be sought.
contrary to the administrative findings of the Housing The premature resort to the court is fatal to one's cause of
Land Use and Regulatory Board ("HLURB"), that the action. Accordingly, absent any finding of waiver or estoppel,
locational clearance of Petitioner was void. the case may be dismissed for lack of cause of action.

22.0 The Court of Appeals erred when it resolved an The doctrine of exhaustion of administrative remedies is not
issue that was not submitted to it for resolution and in without its practical and legal reasons. Indeed, resort to
the process had usurped a purely executive function. administrative remedies entails lesser expenses and provides
for speedier disposition of controversies. Our courts of justice
23.0 The Court of Appeals erred in declaring for reason of comity and convenience will shy away from a
Petitioner’s entire base station a nuisance considering dispute until the system of administrative redress has been
that it was only a small part of the base station, a completed and complied with so as to give the administrative
generator that initially powered the base station, that agency every opportunity to correct its error and to dispose of
was reportedly producing unacceptable levels of the case.
noise.
xxxx
24.0 The Court of Appeals erred in not considering
that the supervening event of shut down and pull out The doctrine of primary jurisdiction does not warrant a court
of the generator in the base station, the source of the to arrogate unto itself the authority to resolve a controversy
perceived nuisance, made the complaint for the jurisdiction over which is initially lodged with an
abatement of nuisance academic.24 administrative body of special competence.

The Petition is partly meritorious. While the Court agrees that We have held that while the administration grapples with the
the Court of Appeals should not have taken cognizance of the complex and multifarious problems caused by unbridled
issue of whether the locational clearance for petitioner’s exploitation of our resources, the judiciary will stand clear. A
cellular base station is valid, the Court will still not reinstate long line of cases establishes the basic rule that the court will
the RTC Order dated January 16, 2001 granting petitioner’s not interfere in matters which are addressed to the sound
Motion for Summary Judgment and entirely dismissing Civil discretion of government agencies entrusted with the
Case No. Br. 23-632-2000. The issues of (1) whether regulation of activities coming under the special technical
petitioner’s cellular base station is a nuisance, and (2) whether knowledge and training of such agencies.
the generator at petitioner’s cellular base station is, by itself,
also a nuisance, ultimately involve disputed or contested In fact, a party with an administrative remedy must not merely
factual matters that call for the presentation of evidence at a initiate the prescribed administrative procedure to obtain
full-blown trial. relief, but also pursue it to its appropriate conclusion before
seeking judicial intervention. The underlying principle of the
rule on exhaustion of administrative remedies rests on the
36
presumption that when the administrative body, or grievance IV. Requirements and Procedures in Securing Locational
machinery, is afforded a chance to pass upon the matter, it will Clearance
decide the same correctly. (Citations omitted.)
A. The following documents shall be submitted in duplicate:
The Court again discussed the said principle and doctrine in
Addition Hills Mandaluyong Civic & Social Organization, xxxx
Inc. v. Megaworld Properties & Holdings, Inc., et al.,26 citing
Republic v. Lacap,27 to wit: g. Written Consent:

We have consistently declared that the doctrine of exhaustion


g.1 Subdivisions
of administrative remedies is a cornerstone of our judicial
system. The thrust of the rule is that courts must allow
administrative agencies to carry out their functions and xxxx
discharge their responsibilities within the specialized areas of
their respective competence. The rationale for this doctrine is g. 1.2 In the absence of an established Homeowners
obvious. It entails lesser expenses and provides for the Association, consent/affidavit of non-objection from majority
speedier resolution of controversies. Comity and convenience of actual occupants and owners of properties within a radial
also impel courts of justice to shy away from a dispute until distance equivalent to the height of the proposed base station
the system of administrative redress has been completed. measured from its base, including all those whose properties is
adjoining the proposed site of the base station.(Refer to Figure
In the case of Republic v. Lacap, we expounded on the 2)
doctrine of exhaustion of administrative remedies and the
related doctrine of primary jurisdiction in this wise: xxxx

The general rule is that before a party may seek the h. Barangay Council Resolution endorsing the base station.
intervention of the court, he should first avail of all the means
afforded him by administrative processes. The issues which Correlatively, the HLURB provides administrative remedies
administrative agencies are authorized to decide should not be for non-compliance with its requirements.
summarily taken from them and submitted to a court without
first giving such administrative agency the opportunity to In 2000, when factual precedents to the instant case began to
dispose of the same after due deliberation. take place, HLURB Resolution No. R-586, series of 1996,
otherwise known as the 1996 HLURB Rules of Procedure, as
Corollary to the doctrine of exhaustion of administrative amended, was in effect. The original 1996 HLURB Rules of
remedies is the doctrine of primary jurisdiction; that is, courts Procedure was precisely amended by HLURB Resolution No.
cannot or will not determine a controversy involving a R-655, series of 1999, "so as to afford oppositors with the
question which is within the jurisdiction of the administrative proper channel and expeditious means to ventilate their
tribunal prior to the resolution of that question by the objections and oppositions to applications for permits,
administrative tribunal, where the question demands the clearances and licenses, as well as to protect the rights of
exercise of sound administrative discretion requiring the applicants against frivolous oppositions that may cause undue
special knowledge, experience and services of the delay to their projects. "Under the 1996 HLURB Rules of
administrative tribunal to determine technical and intricate Procedure, as amended, an opposition to an application for a
matters of fact. (Citations omitted.) locational clearance for a cellular base station or a complaint
for the revocation of a locational clearance for a cellular base
The Housing and Land Use Regulatory Board (HLURB)28 is station already issued, is within the original jurisdiction of the
the planning, regulatory, and quasi-judicial instrumentality of HLURB Executive Committee. Relevant provisions read:
government for land use development.29 In the exercise of its
mandate to ensure rational land use by regulating land RULE III
development, it issued HLURB Resolution No.R-626, series
of 1998, Approving the Locational Guidelines for Base Commencement of Action, Summons and Answer
Stations of Cellular Mobile Telephone Service, Paging
Service, Trunking Service, Wireless Loop Service and Other
xxxx
Wireless Communication Services (HLURB Guidelines). Said
HLURB Guidelines aim to protect" providers and users, as
well as the public in general while ensuring efficient and SECTION 2. Opposition to Application for Permit/License/
responsive communication services." Clearance. – When an opposition is filed to an application for
a license, permit or clearance with the Board or any of its
Regional Field Office, the Regional Officer shall make a
Indeed, the HLURB Guidelines require the submission of
preliminary evaluation and determination whether the case is
several documents for the issuance of a locational clearance
impressed with significant economic, social, environmental or
for a cellular base station, including:
national policy implications. If he/she determines that the case
37
is so impressed with significant economic, social, The contested application for clearance, permit or license shall
environmental or national policy implications, such as, but not be treated as a complaint and all other provisions of these rules
limited to: on complaints not inconsistent with the preceding section
shall, as far as practicable, be made applicable to oppositions
1) Projects of national significance, for purposes of except that the decision of the Board en banc on such
this rule, a project is of national significance if it is contested applications shall be final and executory as provided
one or falls under any of those enumerated in Rule in Rule XIX, Section 2 of these Rules, as amended.
III, Section 3 of these Rules, as amended;
The Rules pertaining to contested applications for license,
2) Those involving zoning variances and exceptions; permit or clearance shall, by analogy, apply to cases filed
primarily for the revocation thereof.
3) Those involving significant public interest or
policy issues; xxxx

4) Those endorsed by the zoning administrators of RULE XVII


local government units. Proceedings Before the Board of Commissioners

The Regional Officer shall cause the records of the case to be xxxx
transmitted to the Executive Committee which shall assume
original jurisdiction over the case, otherwise, the Regional SECTION 15. The Executive Committee. – The Executive
Officer shall act on and resolve the Opposition. Committee shall be composed of the four regular
Commissioners and the Ex-Officio Commissioner from the
SECTION 3. A project is of national significance if it involves Department of Justice.
any of the following:
xxxx
a) Power generating plants (e.g., coal-fired thermal
plants)and related facilities (e.g., transmission lines); The Executive Committee shall act for the Board on policy
matters, measures or proposals concerning the management
b) Airport/seaports; dumping sites/sanitary landfills; and substantive administrative operations of the Board subject
reclamation projects; to ratification by the Board en banc, and shall assume original
jurisdiction over cases involving opposition to an application
for license, permit or clearance for projects or cases impressed
c) Large-scale piggery and poultry projects;
with significant economic, social, environmental or national
policy implications or issues in accordance with Section 2,
d) Mining/quarrying projects; Rule II of these Rules, as amended. It shall also approve the
proposed agenda of the meetings of the Board en banc.
e) National government centers; (Emphases supplied.)

f) Golf courses; After the HLURB Executive Committee had rendered its
Decision, the aggrieved party could still avail itself of a
g) Fish ponds and aqua culture projects; system of administrative appeal, also provided in the 1996
HLURB Rules of Procedure, as amended:
h) Cell sites and telecommunication facilities;
RULE XII
i) Economic zones, regional industrial centers, Petition for Review
regional agro-industrial centers, provincial industrial
centers; SECTION 1. Petition for Review. – Any party aggrieved by
the Decision of the Regional Officer, on any legal ground and
j) All other industrial activities classified as high- upon payment of the review fee may file with the Regional
intensity uses (1-3 Projects). Office a verified Petition for Review of such decision within
thirty (30) calendar days from receipt thereof.
SECTION 4. Any party aggrieved, by reason of the elevation
or non-elevation of any contested application by the Regional In cases decided by the Executive Committee pursuant to Rule
Officer, may file a verified petition for review thereof within II, Section 2 of these Rules, as amended, the verified Petition
thirty (30) days from receipt of the notice of elevation or non- shall be filed with the Executive Committee within thirty (30)
elevation of the contested application with the Executive calendar days from receipt of the Committee’s Decision. Copy
Committee which shall resolve whether it shall assume of such petition shall be furnished the other party and the
jurisdiction thereon. Board of Commissioners. No motion for reconsideration or
38
mere notice of petition for review of the decision shall be primary jurisdiction,30 respondents never asserted nor argued
entertained. any of them. Thus, there is no cogent reason for the Court to
apply the exceptions instead of the general rule to this case.
Within ten (10) calendar days from receipt of the petition, the
Regional Officer, or the Executive Committee, as the case Ordinarily, failure to comply with the principle of exhaustion
may be, shall elevate the records to the Board of of administrative remedies and the doctrine of primary
Commissioner together with the summary of proceedings jurisdiction will result in the dismissal of the case for lack of
before the Regional Office. The Petition for Review of a cause of action. However, the Court herein will not go to the
decision rendered by the Executive Committee shall betaken extent of entirely dismissing Civil Case No. Br. 23-632-2000.
cognizance of by the Board en banc. The Court does not lose sight of the fact that respondents’
Complaint in Civil Case No. Br. 23-632-2000 is primarily for
RULE XVIII abatement of nuisance; and respondents alleged the lack of
Appeal from Board Decisions HLURB requirements for the cellular base station, not to seek
nullification of petitioner’s locational clearance, but to support
their chief argument that said cellular base station is a
SECTION 1.
nuisance which needs to be abated. The issue of whether or
not the locational clearance for said cellular base station is
Motion for Reconsideration. – Within the period for filing an valid is actually separate and distinct from the issue of
appeal from a Board decision, order or ruling of the Board of whether or not the cellular base station is a nuisance; one is
Commissioners, any aggrieved party may file a motion for not necessarily determinative of the other. While the first is
reconsideration with the Board only on the following grounds: within the primary jurisdiction of the HLURB and, therefore,
(1) serious errors of law which would result in grave injustice premature for the courts to rule upon in the present case, the
if not corrected; and (2) newly discovered evidence. latter is within the jurisdiction of the courts to determine but
only after trial proper.
Only one (1) motion for reconsideration shall be entertained.
On the declaration of the Court of
Motions for reconsideration shall be assigned to the division Appeals that petitioner’s cellular
from which the decision, order or ruling originated. base station is a nuisance that must
be abated
SECTION 2. Appeal. – Any party may upon notice to the
Board and the other party appeal a decision rendered by the Article 694 of the Civil Code defines nuisance as:
Board of Commissioners en banc or by one of its divisions to
the Office of the President within fifteen (15) calendar days ART. 694. A nuisance is any act, omission, establishment,
from receipt thereof, in accordance with P.D. No. 1344 and business, condition of property, or anything else which:
A.O. No. 18 Series of 1987.
(1) Injures or endangers the health or safety of others;
RULE XIX or
Entry of Judgment
(2) Annoys or offends the senses; or
xxxx
(3) Shocks, defies or disregards decency or morality;
SECTION 2. Rules on Finality. – For purposes of determining or
when a decision or order has become final and executory for
purposes of entry in the Book of Judgment, the following shall
(4) Obstructs or interferes with the free passage of
be observed:
any public highway or street, or any body of water; or
a. Unless otherwise provided in a decision or resolution
rendered by the Regional Officer, the Executive Committee, (5) Hinders or impairs the use of property.
or the Board of Commissioners, as the case may be, the orders
contained therein shall become final as regards a party thirty The term "nuisance" is so comprehensive that it has been
(30) calendar days after the date of receipt thereof and no applied to almost all ways which have interfered with the
petition for review or appeal therefrom has been filed within rights of the citizens, either in person, property, the enjoyment
the said period. (Emphases supplied.) of his property, or his comfort.31

There is no showing that respondents availed themselves of The Court, in AC Enterprises, Inc. v. Frabelle Properties
the afore-mentioned administrative remedies prior to Corporation,32 settled that a simple suit for abatement of
instituting Civil Case No. Br. 23-632-2000 before the RTC. nuisance, being incapable of pecuniary estimation, is within
While there are accepted exceptions to the principle of the exclusive jurisdiction of the RTC. Although respondents
exhaustion of administrative remedies and the doctrine of also prayed for judgment for moral and exemplary damages,
39
attorney’s fees, and litigation expenses, such claims are evidence on record must be viewed in light most favorable to
merely incidental to or as a consequence of, their principal the party opposing the motion who must be given the benefit
relief. of all favorable inferences as can reasonably be drawn from
the evidence.
Nonetheless, while jurisdiction over respondents’ Complaint
for abatement of nuisance lies with the courts, the respective Courts must be critical of the papers presented by the moving
judgments of the RTC and the Court of Appeals cannot be party and not of the papers/documents in opposition thereto.
upheld. Conclusory assertions are insufficient to raise an issue of
material fact. A party cannot create a genuine dispute of
At the outset, the RTC erred in granting petitioner’s Motion material fact through mere speculations or compilation of
for Summary Judgment and ordering the dismissal of differences. He may not create an issue of fact through bald
respondents’ Complaint in Civil Case No. Br. 23-632-2000. assertions, unsupported contentions and conclusory
statements. He must do more than rely upon allegations but
Summary judgments are governed by Rule 35 of the Rules of must come forward with specific facts in support of a claim.
Where the factual context makes his claim implausible, he
Court, pertinent provisions of which state:
must come forward with more persuasive evidence
demonstrating a genuine issue for trial. (Emphases supplied;
SEC. 2. Summary judgment for defending party. – A party citations omitted.)
against whom a claim, counterclaim, or cross-claim is asserted
or a declaratory relief is sought may, at any time, move with
Judging by the aforequoted standards, summary judgment
supporting affidavits, depositions or admissions for a
cannot be rendered in this case as there are clearly factual
summary judgment in his favor as to all or any part thereof.
issues disputed or contested by the parties. As respondents
correctly argued in their Opposition to petitioner’s Motion for
SEC. 3. Motion and proceedings thereon. – The motion shall Summary Judgment:
be served at least ten (10) days before the time specified for
the hearing. The adverse party may serve opposing affidavits,
1. Contrary to the claim of petitioner, there are several genuine
depositions, or admissions at least three (3) days before the
issues as to the cause of action and material facts related to the
hearing. After the hearing, the judgment sought shall be
rendered forthwith if the pleadings, supporting affidavits, complaint. For one there is an issue on the structural integrity
depositions, and admissions on file, show that, except as to the of the tower, the ultra high frequency (UHF) radio wave
emission radiated by the communications tower affecting the
amount of damages, there is no genuine issue as to any
life, health and well being of the[respondents] and the
material fact and that the moving party is entitled to a
barangay residents, especially their children. Also, the
judgment as a matter of law. (Emphases supplied.)
noxious/deleterious fumes and the noise produce[d] by the
standby generator and the danger posted by the tower if it
In Rivera v. Solidbank Corporation,33 the Court discussed collapses in regard to life and limb as well as the property of
extensively when a summary judgment is proper: the [respondents] particularly those whose houses abut, or are
near/within the periphery of the communications tower. x x x34
For a summary judgment to be proper, the movant must
establish two requisites: (a) there must be no genuine issue as Likewise constituting real or genuine issues for trial, which
to any material fact, except for the amount of damages; and arose from subsequent events, are the following: whether the
(b) the party presenting the motion for summary judgment generator subject of respondents’ Complaint had been
must be entitled to a judgment as a matter of law. Where, on removed; whether said generator had been replaced by another
the basis of the pleadings of a moving party, including that produces as much or even more noise and fumes; and
documents appended thereto, no genuine issue as to a material whether the generator is a nuisance that can be abated
fact exists, the burden to produce a genuine issue shifts to the separately from the rest of the cellular base station.
opposing party. If the opposing party fails, the moving party is
entitled to a summary judgment.
Furthermore, the Court demonstrated in AC Enterprises, Inc.
the extensive factual considerations of a court before it can
A genuine issue is an issue of fact which requires the arrive at a judgment in an action for abatement of nuisance:
presentation of evidence as distinguished from an issue which
is a sham, fictitious, contrived or a false claim.
Whether or not noise emanating from a blower of the air
conditioning units of the Feliza Building is nuisance is to be
The trial court can determine a genuine issue on the basis of resolved only by the court in due course of
the pleadings, admissions, documents, affidavits or counter proceedings.1âwphi1 The plaintiff must prove that the noise is
affidavits submitted by the parties. When the facts as pleaded a nuisance and the consequences thereof. Noise is not a
appear uncontested or undisputed, then there is no real or nuisance per se. It may be of such a character as to constitute a
genuine issue or question as to any fact and summary nuisance, even though it arises from the operation of a lawful
judgment called for. On the other hand, where the facts business, only if it affects injuriously the health or comfort of
pleaded by the parties are disputed or contested, proceedings ordinary people in the vicinity to an unreasonable extent.
for a summary judgment cannot take the place of a trial. The
40
Injury to a particular person in a peculiar position or of these annoyances and discomforts must not be more than those
especially sensitive characteristics will not render the noise an ordinarily to be expected in the community or district, and
actionable nuisance. In the conditions of present living, noise which are incident to the lawful conduct of such trades and
seems inseparable from the conduct of many necessary businesses. If they exceed what might be reasonably expected
occupations. Its presence is a nuisance in the popular sense in and cause unnecessary harm, then the court will grant relief.
which that word is used, but in the absence of statute, noise
becomes actionable only when it passes the limits of A finding by the LGU that the noise quality standards under
reasonable adjustment to the conditions of the locality and of the law have not been complied with is not a prerequisite nor
the needs of the maker to the needs of the listener. What those constitutes indispensable evidence to prove that the defendant
limits are cannot be fixed by any definite measure of quantity is or is not liable for a nuisance and for damages. Such finding
or quality; they depend upon the circumstances of the is merely corroborative to the testimonial and/or other
particular case. They may be affected, but are not controlled, evidence to be presented by the parties. The exercise of due
by zoning ordinances. The delimitation of designated areas to care by the owner of a business in its operation does not
use for manufacturing, industry or general business is not a constitute a defense where, notwithstanding the same, the
license to emit every noise profitably attending the conduct of business as conducted, seriously affects the rights of those in
any one of them. its vicinity.35(Citations omitted.)

The test is whether rights of property, of health or of comfort A reading of the RTC Order dated January 16, 2001 readily
are so injuriously affected by the noise in question that the shows that the trial court did not take into account any of the
sufferer is subjected to a loss which goes beyond the foregoing considerations or tests before summarily dismissing
reasonable limit imposed upon him by the condition of living, Civil Case No. Br. 23-632-2000. The reasoning of the RTC
or of holding property, in a particular locality in fact devoted that similar cellular base stations are scattered in heavily
to uses which involve the emission of noise although ordinary populated areas nationwide and are not declared nuisances is
care is taken to confine it within reasonable bounds; or in the unacceptable. As to whether or not this specific cellular base
vicinity of property of another owner who, though creating a station of petitioner is a nuisance to respondents is largely
noise, is acting with reasonable regard for the rights of those dependent on the particular factual circumstances involved in
affected by it. the instant case, which is exactly why a trial for threshing out
disputed or contested factual issues is indispensable.
Commercial and industrial activities which are lawful in Evidently, it was the RTC which engaged in speculations and
themselves may become nuisances if they are so offensive to unsubstantiated conclusions.
the senses that they render the enjoyment of life and property
uncomfortable. The fact that the cause of the complaint must For the same reasons cited above, without presentation by the
be substantial has often led to expressions in the opinions that parties of evidence on the contested or disputed facts, there
to be a nuisance the noise must be deafening or loud or was no factual basis for declaring petitioner's cellular base
excessive and unreasonable. The determining factor when station a nuisance and ordering petitioner to cease and desist
noise alone is the cause of complaint is not its intensity or from operating the same.
volume. It is that the noise is of such character as to produce
actual physical discomfort and annoyance to a person of
Given the equally important interests of the parties in this
ordinary sensibilities, rendering adjacent property less
case, i.e., on one hand, respondents' health, safety, and
comfortable and valuable. If the noise does that it can well be
property, and on the other, petitioner's business interest and
said to be substantial and unreasonable in degree, and the public's need for accessible and better cellular mobile
reasonableness is a question of fact dependent upon all the telephone services, the wise and prudent course to take is to
circumstances and conditions. There can be no fixed standard
remand the case to the RTC for trial and give the parties the
as to what kind of noise constitutes a nuisance.
opportunity to prove their respective factual claims.

The courts have made it clear that in every case the question is WHEREFORE, premises considered, the instant Petition is
one of reasonableness. What is a reasonable use of one’s
PARTIALLY GRANTED. The Decision dated July 16, 2004
property and whether a particular use is an unreasonable
and Resolution dated December 9, 2004 of the Court of
invasion of another’s use and enjoyment of his property so as
Appeals in CA-G.R. CV No. 71337 are REVERSED and SET
to constitute a nuisance cannot be determined by exact rules,
ASIDE. Let the records of the case be REMANDED to the
but must necessarily depend upon the circumstances of each Regional Trial Court, Branch 23, of Roxas, Isabela, which is
case, such as locality and the character of the surroundings, DIRECTED to reinstate Civil Case No. Br. 23-632-2000 to its
the nature, utility and social value of the use, the extent and
docket and proceed with the trial and adjudication thereof with
nature of the harm involved, the nature, utility and social value
appropriate dispatch in accordance with this Decision.
of the use or enjoyment invaded, and the like.
SO ORDERED.
Persons who live or work in thickly populated business
districts must necessarily endure the usual annoyances and of
those trades and businesses which are properly located and Footnotes
carried on in the neighborhood where they live or work. But
41
1 27
Rollo, pp. 44-57; penned by Associate Justice 546 Phil. 87 (2007).
Ruben T. Reyes with Associate Justices Perlita J.
Tria Tirona and Jose C. Reyes, Jr., concurring. 28
Executive Order No. 648, series of 1981,
established the Human Settlements Regulatory
2
Id. at 58-59. Commission (HSRC). Subsequently, Executive Order
No. 90, series of 1986, renamed the HSRC as the
3
Id. at 126-128; penned by Judge Teodulo E. HLURB.
Mirasol.
29
http://hlurb.gov.ph/laws-issuances-2/?tabgarb=tab1
4
Records, pp. 127-128.
30
In Republic v. Lacap (supra note 27 at 97-98), the
5
Id. at 8-9. Court enumerated the exceptions: (a) where there is
estoppel on the part of the party invoking the
6 doctrine; (b) where the challenged administrative act
Id. at 10.
is patently illegal, amounting to lack of jurisdiction;
7
(c) where there is unreasonable delay or official
Id. at 20-21. inaction that will irretrievably prejudice the
complainant; (d) where the amount involved is
8
Id. at 45-46. relatively small so as to make the rule impractical and
oppressive; (e) where the question involved is purely
9 legal and will ultimately have to be decided by the
Id. at 57.
courts of justice; (f) where judicial intervention is
10
Id. at 63. urgent; (g) when its application may cause great and
irreparable damage; (h) where the controverted acts
11 violate due process; (i) when the issue of non-
Id. at 67.
exhaustion of administrative remedies has been
rendered moot; (j) when there is no other plain,
12
Id. at 79. speedy and adequate remedy; (k) when strong public
interest is involved; and, (l) in quo warranto
13
Id. at 82. proceedings.

14 31
Id. at 84. AC Enterprises, Inc. v. Frabelle Properties
Corporation, 537 Phil. 114, 143 (2006).
15
Id. at 88-92.
32
Id. at 142-143.
16
Id. at 101-110.
33
521 Phil. 628, 648-649 (2006).
17
Id. at 107.
34
Records, p. 82.
18
Rollo, pp. 127-128.
35
AC Enterprises, Inc. v. Frabelle Properties
19
Id. at 128. Corporation, supra note 31 at 149-151.

20
Id. at 136.

21
Id. at 56.

22
CA rollo, pp. 93-96.

23
Rollo, p. 59.

24
Id. at 15-16.

25
396 Phil. 709, 717-720 (2000).

26
G.R. No. 175039, April 18, 2012, 670 SCRA 83,
89-90.
42
Republic of the Philippines when his counsel requested to be furnished copies of the
SUPREME COURT statements, PAGCOR rejected the request on the ground that
Manila he had already been afforded the sufficient opportunity to
confront, hear, and answer the charges against him during the
EN BANC administrative inquiry. The petitioner was then allowed to
submit his answer on March 26, 2002.
G.R. No. 187854 November 12, 2013
Thereafter, the CIU tendered its investigation report to
PAGCOR’s Adjudication Committee.9
RAY PETER O. VIVO, Petitioner,
vs.
PHILIPPINE AMUSEMENT AND GAME The Adjudication Committee summoned the petitioner to
CORPORATION (PAGCOR), Respondent. appear before it on May 8, 2002 in order to address questions
regarding his case. His counsel moved for the re-scheduling of
the meeting because he would not be available on said date,
DECISION
but the Adjudication Committee denied the request upon the
reason that the presence of counsel was not necessary in the
BERSAMIN, J.: proceedings. His counsel moved for the reconsideration of the
denial of the request.10
By petition for review on certiorari the petitioner seeks the
review and reversal of the decision promulgated on February The petitioner received the letter dated May 15, 2002 from Ela
27, 2009,1 whereby the Court of Appeals CA) reversed and set informing him of the resolution of the PAGCOR Board of
aside the resolutions of the Civil Service Commission CSC) Directors in its May 14, 2002 meeting to the effect that he was
dated April 20072 and August 1, 2007.3 being dismissed from the service.11

Also under review is the denial by the CA of the petitioner’s After the petitioner’s motion for reconsideration vis-à-vis the
motion for reconsideration through the resolution promulgated resolution of the PAGCOR Board of Directors dismissing him
May 11, 2009.4 from the service was denied, he appealed his dismissal to the
CSC.
Antecedents
In its resolution dated April 11, 2007, the CSC ruled that
The petitioner was employed by respondent Philippine PAGCOR had violated the petitioner’s right to due process,
Amusement and Gaming Corporation (PAGCOR) on and accordingly set aside his dismissal from the service, viz:
September 9, 1986, and was PAGCOR’s Managing Head of
its Gaming Department at the time of his dismissal from In fine, the Commission finds that the right of Vivo to due
office.5 On February 21, 2002, he received a letter from process was violated when he was ousted from his office
Teresita S. Ela, the Senior Managing Head of PAGCOR’s without the corresponding Board Resolution that should have
Human Resources Department, advising that he was being set out the collegial decision of the PAGCOR Board of
administratively charged with gross misconduct, rumor- Directors.
mongering, conduct prejudicial to the interest of the company,
and loss of trust and confidence;6 that he should submit a
WHEREFORE, foregoing premises considered, the appeal of
written explanation of the charges; and that he was at the same
Ray Peter O. Vivo is hereby GRANTED. The letters dated
time being placed under preventive suspension.7
May 15, 2002 and June 5, 2002 issued by Teresita S. Ela,
Senior Managing Head, Human Resource Department,
On February 26, 2002, the petitioner’s counsel, replying to Philippine Amusement and Gaming Corporation (PAGCOR),
Ela’s letter, assailed the propriety of the show-cause are SET ASIDE.12
memorandum as well as the basis for placing the petitioner
under preventive suspension.
xxxx
On March 14, 2002, the petitioner received the summons for
The CSC remanded the case to PAGCOR with the instruction
him to attend an administrative inquiry, instructing him to
for PAGCOR to complete its reinvestigation within three
appear before PAGCOR’s Corporate Investigation Unit (CIU)
months from receipt of the resolution.
on March 15, 2002.8 At the petitioner’s request, however, the
inquiry was conducted at his residence on said date. His
statement was taken in a question-and-answer format. He was After the CSC denied its motion for reconsideration,
also furnished the memorandum of charges that recited the PAGCOR elevated the case to the CA.
accusations against him and indicated the acts and omissions
constituting his alleged offenses. The memorandum of charges On February 27, 2009, the CA promulgated its decision
was based on the statements of PAGCOR personnel who had reversing and setting aside the decision of the CSC upon its
personal knowledge of the accusations against him. However, finding that the petitioner had been accorded procedural due
43
process. The CA remanded the case to the CSC for the simply to be heard, or as applied to administrative
determination of the appeal of the petitioner on the merits, proceedings, an opportunity to explain one’s side, or an
specifically the issue of whether the dismissal had been for opportunity to seek a reconsideration of the action or ruling
cause.13 complained of.18

Hence, this appeal. The petitioner actively participated in the entire course of the
investigation and hearings conducted by PAGCOR. He
Issue received the letter from Ela apprising him of his being
administratively charged for several offenses, and directing
him to submit an explanation in writing. He was later on
The petitioner raises the following issues, namely:
properly summoned to appear before the CIU, which
conducted its proceedings in his own residence upon his
1. The conclusion of the Court of Appeals that request. During the administrative inquiry, the CIU served him
Petitioner’s right for (sic) due process was not a copy of the memorandum of charges, which detailed the
violated transgressed (sic) the fundamental rules in accusations against him and specified the acts and omissions
administrative due process. constituting his alleged offenses. He was also given the
opportunity to appear before the Adjudication Committee to
2. The Court of Appeals decision in setting aside answer clarificatory questions. Lastly, he was informed
CSC Resolutions Nos. 070732, dated 01 April 2007, through a memorandum of the decision of the Board of
and 071485, dated 01 August 2007, is contrary to the Directors dismissing him from the service.
Uniform Rules on Administrative Cases in the Civil
Service and settled jurisprudence.14 In contrast, the petitioner could not dispute the observance of
his right to due process by PAGCOR as set forth herein. He
The petitioner would have the Court hold that PAGCOR’s made no credible showing of the supposed violation of his
failure to furnish him a copy of the Board Resolutions right to due process. He was heard through the written
authorizing his dismissal and denying his motion for statement he submitted in response to the memorandum of the
reconsideration was a fatal and irreparable defect in the charges against him. He actively participated in the
administrative proceedings that ultimately resulted in the administrative inquiry conducted by the CIU at his own
illegality of his dismissal from the service. He further argues residence. He was afforded the opportunity to clarify his
that he was denied due process by PAGCOR’s refusal to re- position in the proceedings before the Adjudication
schedule the Adjudication Committee meeting in order to Committee. He was also able to appeal the adverse decision to
enable his counsel to attend the meeting with him, because the dismiss him from the service to the CSC. There is also no
refusal constituted a violation of his right to be represented by question that PAGCOR complied with the twin-notice
counsel. requirement prior to the termination of his employment, the
first notice being made through Ela’s letter dated February 21,
Ruling 2002 informing him on his being administratively charged for
the offenses mentioned, and the second being through the
The petition for review lacks merit. letter dated May 15, 2002 advising him that PAGCOR’s
Board of Directors had resolved to dismiss him from the
service. It is settled that there is no denial of procedural due
The observance of fairness in the conduct of any investigation
process where the opportunity to be heard either through oral
is at the very heart of procedural due process. The essence of
arguments or through pleadings is accorded.19
due process is to be heard, and, as applied to administrative
proceedings, this means a fair and reasonable opportunity to
explain one’s side, or an opportunity to seek a reconsideration The petitioner takes the CA to task for not considering: (1)
of the action or ruling complained of.15 Administrative due PAGCOR’s failure to furnish him copies of the Board
process cannot be fully equated with due process in its strict Resolutions referred to by Ela in the memorandum served on
judicial sense, for in the former a formal or trial-type hearing him, and (2) the refusal of PAGCOR to have him be
is not always necessary,16 and technical rules of procedure are represented by counsel.
not strictly applied. Ledesma v. Court of Appeals17 elaborates
on the well-established meaning of due process in The petitioner cannot be sustained.
administrative proceedings in this wise:
As the CA found, and correctly so, the petitioner’s pleadings
x x x Due process, as a constitutional precept, does not always explicitly admitted that his dismissal had been effected
and in all situations require a trial-type proceeding. Due through board resolutions. That he was not furnished copies of
process is satisfied when a person is notified of the charge the board resolutions did not negate the existence of the
against him and given an opportunity to explain or defend resolutions, and did not invalidate the contents of the board
himself. In administrative proceedings, the filing of charges resolutions. It is beyond question that he was duly informed of
and giving reasonable opportunity for the person so charged to the subject-matter of the board resolutions. Consequently, the
answer the accusations against him constitute the minimum CSC’s conclusion that his dismissal had been unauthorized
requirements of due process. The essence of due process is was unfounded. In any case, even assuming for the sake of
44
argument that there was no board resolution approving his The essence of procedural due process is embodied in the
dismissal, the lapse did not render his dismissal illegal but basic requirement of notice and a real opportunity to be heard.
unauthorized. However, as the CA succinctly put it, an In administrative proceedings, such as in the case at bar,
unauthorized act could be the subject of ratification.20 procedural due process simply means the opportunity to
explain one’s side or the opportunity to seek a reconsideration
As regards the supposed denial of the petitioner’s right to of the action or ruling complained of. "To be heard" does not
counsel, it is underscored that PAGCOR denied his request to mean only verbal arguments in court; one may be heard also
re-schedule the conference before the Adjudication Committee thru pleadings. Where opportunity to be heard, either through
because his counsel would not be available on the day fixed oral arguments or pleadings, is accorded, there is no denial of
for that purpose. In its letter denying the request, the procedural due process.
Adjudication Committee asserted that the presence of counsel
was not indispensable in the conduct of its proceedings. We In administrative proceedings, procedural due process has
find nothing objectionable in the denial of the request. In an been recognized to include the following: (1) the right to
administrative proceeding like that conducted against the actual or constructive notice of the institution of proceedings
petitioner, a respondent has the option of engaging the which may affect a respondent’s legal rights; (2) a real
services of counsel. As such, the right to counsel is not opportunity to be heard personally or with the assistance of
imperative because administrative investigations are counsel, to present witnesses and evidence in one’s favor, and
themselves inquiries conducted only to determine whether to defend one’s rights; (3) a tribunal vested with competent
there are facts that merit disciplinary measures against erring jurisdiction and so constituted as to afford a person charged
public officers and employees, with the purpose of administratively a reasonable guarantee of honesty as well as
maintaining the dignity of government service.21 impartiality; and (4) a finding by said tribunal which is
supported by substantial evidence submitted for consideration
It is noteworthy, however, that the petitioner was actually during the hearing or contained in the records or made known
assisted by his counsel from the outset of the administrative to the parties affected.
case against him. That counsel, Atty. Cesar B. Jimenea Jr. of
the Jimenea and Associates, ensured that the petitioner’s every In fine, the CA committed no reversible error in holding that P
concern reached PAGCOR, and that he was clarified of any AGCOR had properly observed the requirements of due
matter affecting his rights all throughout the investigation and process in its administrative proceedings against the petitioner.
hearings. As the records indicate, his counsel sent to Ela a WHEREFORE, the Court DENIES the petition for review on
letter calling attention to supposedly palpable violations of his certiorari AFFIRMS the decision promulgated on February 27,
client’s right to due process, and objecting to Ela’s right to 2009 by the Court of Appeals; REQUIRES the Civil Service
place his client under preventive suspension. The same Commission to determine the petitioner's appeal on the merits,
counsel filed in behalf of the petitioner the letter-requests to be particularly the issue of whether the dismissal was for cause;
furnished certain documents and records of the and ORDERS the petitioner to pay the costs of suit.
investigation,22 his answer to the memorandum of
charges,23 the letter-request for the re-setting of the conference SO ORDERED.
before the Adjudication Committee,24 the reconsideration of
the letter denying the request,25 and the motion to reconsider
Footnotes
the decision of the Board of Directors to dismiss him from the
service.26 1
Rollo pp. 32-42; penned by Associate Justice
Edgardo P. Cruz retired), and concurred in by
In any event, any procedural defect in the proceedings taken
Associate Justice Vicente S.E. Veloso, and Associate
against the petitioner was cured by his filing of the motion for
Justice Ricardo R. Rosario.
reconsideration and by his appealing the adverse result to the
CSC.1âwphi1 The Court held in Gonzales v. Civil Service 2
Commission27 that any defect in the observance of due process Id. at 194-203.
is cured by the filing of a motion for reconsideration, and that
3
denial of due process cannot be successfully invoked by a Id. at 205-210.
party who was afforded the opportunity to be heard. In
Autencio v. Mañara,28 the Court observed that defects in 4
Id. at 43.
procedural due process may be cured when the party has been
afforded the opportunity to appeal or to seek reconsideration 5
Id. at 4.
of the action or ruling complained of.
6
Id. at 32.
The petitioner was not denied due process of law, for he was
afforded the fair and reasonable opportunity to explain his 7
Id.
side. That, to us, was sufficient to meet the requirements of
due process.29 In Casimiro v. Tandog,30the Court pronounced:
8
Id. at 33.

45
9
Id. at 33-34. Samson, G.R. No. 161910, June 17, 2008, 554 SCRA
500, 509.
10
Id. at 34.

11
Id. at 11.

12
Id. at 202-203.

13
Id. at 41.

14
Id. at 12-13.

15
Office of the Ombudsman v. Reyes, G.R. No.
170512, October 5, 2011, 658 SCRA 626, 640; citing
Ledesma v. Court of Appeals, G.R. No. 166780,
December 27, 2007, 541 SCRA 444, 452.

16
Imperial, Jr. v. Government Service Insurance
System, G.R. No. 191224, October 4, 2011, 658
SCRA 497, 505, cited in Pat-og, Sr. v. CSC, G.R. No.
198755, June 5, 2013.

17
G.R. No. 166780, December 27, 2007, 541 SCRA
444.

18
Id. at 451-452.

19
Liguid v. Camano, Jr., A.M. No. RTJ-99-1509,
August 8, 2002, 387 SCRA 1, 10.

20
Rollo, p. 40.

21
Lumiqued v. Exevea, G.R. No. 117565, November
18, 1997, 282 SCRA 125, 141.

22
Rollo, p. 89.

23
Id. at 90-103.

24
Id. at 105.

25
Id. at 109-112.

26
Id. at 126-139.

27
G.R. No. 156253, June 15, 2006, 490 SCRA 741,
746.

28
G.R. No. 152752, January 19, 2005, 449 SCRA 46,
55-56.

29
Id. at 55.

30
G.R. No. 146137, June 8, 2005, 459 SCRA 624,
631, cited in Department of Agrarian Reform v.

46
Republic of the Philippines Pursuant to DO No. 182, the complaints of petitioners were
SUPREME COURT forwarded by the Office of the City Prosecutor of Davao City
Manila to the Secretariat of the Special Panel of the DOJ.3

EN BANC Aggrieved by such turn of events, petitioners have directly


come to the Court via petition for certiorari, prohibition and
G.R. No. 188056 January 8, 2013 mandamus, ascribing to respondent Secretary of Justice grave
abuse of discretion in issuing DO No. 182. They claim that
DO No. 182 violated their right to due process, their right to
SPOUSES AUGUSTO G. DACUDAO AND OFELIA R.
the equal protection of the laws, and their right to the speedy
DACUDAO, Petitioners,
disposition of cases. They insist that DO No. 182 was an
vs.
obstruction of justice and a violation of the rule against
SECRETARY OF JUSTICE RAUL M. GONZALES OF
THE DEPARTMENT OF JUSTICE, Respondent. enactment of laws with retroactive effect.

Petitioners also challenge as unconstitutional the issuance of


DECISION
DOJ Memorandum dated March 2, 2009 exempting from the
coverage of DO No. No. 182 all the cases for syndicated estafa
BERSAMIN, J.: already filed and pending in the Office of the City Prosecutor
of Cagayan de Oro City. They aver that DOJ Memorandum
Petitioners - residents of Bacaca Road, Davao City - were dated March 2, 2009 violated their right to equal protection
among the investors whom Celso G. Delos Angeles, Jr. and under the Constitution.
his associates in the Legacy Group of Companies (Legacy
Group) allegedly defrauded through the Legacy Group's "buy The Office of the Solicitor General (OSG), representing
back agreement" that earned them check payments that were respondent Secretary of Justice, maintains the validity of DO
dishonored. After their written demands for the return of their No. 182 and DOJ Memorandum dated March 2, 2009, and
investments went unheeded, they initiated a number of charges prays that the petition be dismissed for its utter lack of merit.
for syndicated estafa against Delos Angeles, Jr., et al. in the
Office of the City Prosecutor of Davao City on February 6,
2009. Three of the cases were docketed as NPS Docket No. Issues
XI-02-INV.-09-A-00356, Docket No. XI-02-INV.-09-C-
00752, and Docket No. XI-02-INV.-09-C-00753.1 The following issues are now to be resolved, to wit:

On March 18, 2009, the Secretary of Justice issued 1. Did petitioners properly bring their petition for
Department of Justice (DOJ) Order No. 182 (DO No. 182), certiorari, prohibition and mandamus directly to the
directing all Regional State Prosecutors, Provincial Court?
Prosecutors, and City Prosecutors to forward all cases already
filed against Delos Angeles, Jr., et al. to the Secretariat of the 2. Did respondent Secretary of Justice commit grave
DOJ Special Panel in Manila for appropriate action. abuse of discretion in issuing DO No. 182?

DO No. 182 reads:2 3. Did DO No. 182 and DOJ Memorandum dated
March 2, 2009 violate petitioners’ constitutionally
All cases against Celso G. delos Angeles, Jr., et al. under guaranteed rights?
Legacy Group of Companies, may be filed with the docket
section of the National Prosecution Service, Department of Ruling
Justice, Padre Faura, Manila and shall be forwarded to the
Secretariat of the Special Panel for assignment and The petition for certiorari, prohibition and mandamus, being
distribution to panel members, per Department Order No. 84 bereft of substance and merit, is dismissed.
dated February 13, 2009.
Firstly, petitioners have unduly disregarded the hierarchy of
However, cases already filed against Celso G. delos Angeles, courts by coming directly to the Court with their petition for
Jr. et al. of Legacy group of Companies in your respective certiorari, prohibition and mandamus without tendering
offices with the exemption of the cases filed in Cagayan de therein any special, important or compelling reason to justify
Oro City which is covered by Memorandum dated March 2, the direct filing of the petition.
2009, should be forwarded to the Secretariat of the Special
Panel at Room 149, Department of Justice, Padre Faura,
We emphasize that the concurrence of jurisdiction among the
Manila, for proper disposition.
Supreme Court, Court of Appeals and the Regional Trial
Courts to issue the writs of certiorari, prohibition, mandamus,
For information and guidance. quo warranto, habeas corpus and injunction did not give
petitioners the unrestricted freedom of choice of court
47
forum.4 An undue disregard of this policy against direct resort application therefor will be directed. There is after all a
to the Court will cause the dismissal of the recourse. In Bañez, hierarchy of courts. That hierarchy is determinative of the
Jr. v. Concepcion,5 we explained why, to wit: venue of appeals, and should also serve as a general
determinant of the appropriate forum for petitions for the
The Court must enjoin the observance of the policy on the extraordinary writs. A becoming regard for that judicial
hierarchy of courts, and now affirms that the policy is not to hierarchy most certainly indicates that petitions for the
be ignored without serious consequences. The strictness of the issuance of extraordinary writs against first level ("inferior")
policy is designed to shield the Court from having to deal with courts should be filed with the Regional Trial Court, and those
causes that are also well within the competence of the lower against the latter, with the Court of Appeals. A direct
courts, and thus leave time to the Court to deal with the more invocation of the Supreme Court's original jurisdiction to issue
fundamental and more essential tasks that the Constitution has these writs should be allowed only when there are special and
assigned to it. The Court may act on petitions for the important reasons therefor, clearly and specifically set out in
extraordinary writs of certiorari, prohibition and mandamus the petition. This is established policy. It is a policy that is
only when absolutely necessary or when serious and important necessary to prevent inordinate demands upon the Court’s
reasons exist to justify an exception to the policy. This was time and attention which are better devoted to those matters
why the Court stressed in Vergara, Sr. v. Suelto: within its exclusive jurisdiction, and to prevent further over-
crowding of the Court's docket. Indeed, the removal of the
restriction on the jurisdiction of the Court of Appeals in this
x x x. The Supreme Court is a court of last resort, and must so
regard, supra— resulting from the deletion of the qualifying
remain if it is to satisfactorily perform the functions assigned
to it by the fundamental charter and immemorial tradition. It phrase, "in aid of its appellate jurisdiction" — was evidently
cannot and should not be burdened with the task of dealing intended precisely to relieve this Court pro tanto of the burden
of dealing with applications for the extraordinary writs which,
with causes in the first instance. Its original jurisdiction to
but for the expansion of the Appellate Court corresponding
issue the so-called extraordinary writs should be exercised
jurisdiction, would have had to be filed with it.1âwphi1
only where absolutely necessary or where serious and
important reasons exist therefor. Hence, that jurisdiction
should generally be exercised relative to actions or xxxx
proceedings before the Court of Appeals, or before
constitutional or other tribunals, bodies or agencies whose acts The Court therefore closes this decision with the declaration
for some reason or another are not controllable by the Court of for the information and evidence of all concerned, that it will
Appeals. Where the issuance of an extraordinary writ is also not only continue to enforce the policy, but will require a more
within the competence of the Court of Appeals or a Regional strict observance thereof. (Emphasis supplied)
Trial Court, it is in either of these courts that the specific
action for the writ’s procurement must be presented. This is Accordingly, every litigant must remember that the Court is
and should continue to be the policy in this regard, a policy not the only judicial forum from which to seek and obtain
that courts and lawyers must strictly observe. (Emphasis effective redress of their grievances. As a rule, the Court is a
supplied) court of last resort, not a court of the first instance. Hence,
every litigant who brings the petitions for the extraordinary
In People v. Cuaresma, the Court has also amplified the need writs of certiorari, prohibition and mandamus should ever be
for strict adherence to the policy of hierarchy of courts. There, mindful of the policy on the hierarchy of courts, the
noting "a growing tendency on the part of litigants and observance of which is explicitly defined and enjoined in
lawyers to have their applications for the so-called Section 4 of Rule 65, Rules of Court, viz:
extraordinary writs, and sometimes even their appeals, passed
upon and adjudicated directly and immediately by the highest Section 4. When and where petition filed. - The petition shall
tribunal of the land," the Court has cautioned lawyers and be filed not later than sixty (60) days from notice of the
litigants against taking a direct resort to the highest tribunal, judgment, order or resolution. In case a motion for
viz: reconsideration or new trial is timely filed, whether such
motion is required or not, the sixty (60) day period shall be
x x x. This Court’s original jurisdiction to issue writs of counted from notice of the denial of the said motion.
certiorari (as well as prohibition, mandamus, quo warranto,
habeas corpus and injunction) is not exclusive. It is shared by The petition shall be filed in the Supreme Court or, if it relates
this Court with Regional Trial Courts x x x, which may issue to the acts or omissions of a lower court or of a corporation,
the writ, enforceable in any part of their respective regions. It board, officer or person, in the Regional Trial Court exercising
is also shared by this Court, and by the Regional Trial Court, jurisdiction over the territorial area as defined by the Supreme
with the Court of Appeals x x x, although prior to the Court. It may also be filed in the Court of Appeals whether or
effectivity of Batas Pambansa Bilang 129 on August 14, 1981, not the same is in the aid of its appellate jurisdiction, or in the
the latter's competence to issue the extraordinary writs was Sandiganbayan if it is in aid of its appellate jurisdiction. If it
restricted to those "in aid of its appellate jurisdiction." This involves the acts or omissions of a quasi-judicial agency,
concurrence of jurisdiction is not, however, to be taken as unless otherwise provided by law or these rules, the petition
according to parties seeking any of the writs an absolute, shall be filed in and cognizable only by the Court of Appeals.
unrestrained freedom of choice of the court to which
48
In election cases involving an act or an omission of a The fact that the DOJ is the primary prosecution arm of the
municipal or a regional trial court, the petition shall be filed Government does not make it a quasi-judicial office or
exclusively with the Commission on Elections, in aid of its agency. Its preliminary investigation of cases is not a quasi-
appellate jurisdiction.6 judicial proceeding. Nor does the DOJ exercise a quasi-
judicial function when it reviews the findings of a public
Secondly, even assuming arguendo that petitioners’ direct prosecutor on the finding of probable cause in any case.
resort to the Court was permissible, the petition must still be Indeed, in Bautista v. Court of Appeals,10 the Supreme Court
dismissed. has held that a preliminary investigation is not a quasi-judicial
proceeding, stating:
The writ of certiorari is available only when any tribunal,
board or officer exercising judicial or quasi-judicial functions x x x the prosecutor in a preliminary investigation does not
has acted without or in excess of its or his jurisdiction, or with determine the guilt or innocence of the accused. He does not
grave abuse of discretion amounting to lack or excess of exercise adjudication nor rule-making functions. Preliminary
jurisdiction, and there is no appeal, nor any plain, speedy, and investigation is merely inquisitorial, and is often the only
adequate remedy in the ordinary course of law.7 "The sole means of discovering the persons who may be reasonably
office of the writ of certiorari," according to Delos Santos v. charged with a crime and to enable the fiscal to prepare his
Metropolitan Bank and Trust Company:8 complaint or information. It is not a trial of the case on the
merits and has no purpose except that of determining whether
x x x is the correction of errors of jurisdiction, which includes a crime has been committed and whether there is probable
the commission of grave abuse of discretion amounting to lack cause to believe that the accused is guilty thereof. While the
fiscal makes that determination, he cannot be said to be acting
of jurisdiction. In this regard, mere abuse of discretion is not
as a quasi-court, for it is the courts, ultimately, that pass
enough to warrant the issuance of the writ. The abuse of
judgment on the accused, not the fiscal.11
discretion must be grave, which means either that the judicial
or quasi-judicial power was exercised in an arbitrary or
despotic manner by reason of passion or personal hostility, or There may be some decisions of the Court that have
that the respondent judge, tribunal or board evaded a positive characterized the public prosecutor’s power to conduct a
duty, or virtually refused to perform the duty enjoined or to act preliminary investigation as quasi-judicial in nature. Still, this
in contemplation of law, such as when such judge, tribunal or characterization is true only to the extent that the public
board exercising judicial or quasi-judicial powers acted in a prosecutor, like a quasi-judicial body, is an officer of the
capricious or whimsical manner as to be equivalent to lack of executive department exercising powers akin to those of a
jurisdiction. court of law.

For a special civil action for certiorari to prosper, therefore, But the limited similarity between the public prosecutor and a
the following requisites must concur, namely: (a) it must be quasi-judicial body quickly endsthere. For sure, a quasi-
directed against a tribunal, board or officer exercising judicial judicial body is an organ of government other than a court of
or quasi-judicial functions; (b) the tribunal, board, or officer law or a legislative office that affects the rights of private
must have acted without or in excess of jurisdiction or with parties through either adjudication or rule-making; it performs
grave abuse of discretion amounting to lack or excess of adjudicatory functions, and its awards and adjudications
jurisdiction; and (c) there is no appeal nor any plain, speedy, determine the rights of the parties coming before it; its
and adequate remedy in the ordinary course of law. 9 The decisions have the same effect as the judgments of a court of
burden of proof lies on petitioners to demonstrate that the law. In contrast, that is not the effect whenever a public
assailed order was issued without or in excess of jurisdiction prosecutor conducts a preliminary investigation to determine
or with grave abuse of discretion amounting to lack or excess probable cause in order to file a criminal information against a
of jurisdiction. person properly charged with the offense, or whenever the
Secretary of Justice reviews the public prosecutor’s orders or
Yet, petitioners have not shown a compliance with the resolutions.
requisites. To start with, they merely alleged that the Secretary
of Justice had acted without or in excess of his jurisdiction. Petitioners have self-styled their petition to be also for
Also, the petition did not show that the Secretary of Justice prohibition. However, we do not see how that can be. They
was an officer exercising judicial or quasi-judicial functions. have not shown in their petition in what manner and at what
Instead, the Secretary of Justice would appear to be not point the Secretary of Justice, in handing out the assailed
exercising any judicial or quasi-judicial functions because his issuances, acted without or in excess of his jurisdiction, or
questioned issuances were ostensibly intended to ensure his with grave abuse of discretion amounting to lack or excess of
subordinates’ efficiency and economy in the conduct of the jurisdiction. On the other hand, we already indicated why the
preliminary investigation of all the cases involving the Legacy issuances were not infirmed by any defect of jurisdiction.
Group. The function involved was purely executive or Hence, the blatant omissions of the petition transgressed
administrative. Section 2, Rule 65 of the Rules of Court, to wit:

Section 2. Petition for prohibition. — When the proceedings


of any tribunal, corporation, board, officer or person, whether
49
exercising judicial, quasi-judicial or ministerial functions, are Title III and Section 1, Chapter I, Title III of Book IV of
without or in excess of its or his jurisdiction, or with grave Executive Order 292 (Administrative Code of 1987).
abuse of discretion amounting to lack or excess of jurisdiction,
and there is no appeal or any other plain, speedy, and adequate To overcome this strong presumption of validity of the
remedy in the ordinary course of law, a person aggrieved questioned issuances, it became incumbent upon petitioners to
thereby may file a verified petition in the proper court, prove their unconstitutionality and invalidity, either by
alleging the facts with certainty and praying that judgment be showing that the Administrative Code of 1987 did not
rendered commanding the respondent to desist from further authorize the Secretary of Justice to issue DO No. 182, or by
proceedings in the action or matter specified therein, or demonstrating that DO No. 182 exceeded the bounds of the
otherwise granting such incidental reliefs as law and justice Administrative Code of 1987 and other pertinent laws. They
may require. did not do so. They must further show that the performance of
the DOJ’s functions under the Administrative Code of 1987
The petition shall likewise be accompanied by a certified true and other pertinent laws did not call for the impositions laid
copy of the judgment, order or resolution subject thereof, down by the assailed issuances. That was not true here, for DO
copies of all pleadings and documents relevant and pertinent No 182 did not deprive petitioners in any degree of their right
thereto, and a sworn certification of non-forum shopping as to seek redress for the alleged wrong done against them by the
provided in the third paragraph of section 3, Rule 46. (2a) Legacy Group. Instead, the issuances were designed to assist
Similarly, the petition could not be one for mandamus, which petitioners and others like them expedite the prosecution, if
is a remedy available only when "any tribunal, corporation, warranted under the law, of all those responsible for the wrong
board, officer or person unlawfully neglects the performance through the creation of the special panel of state prosecutors
of an act which the law specifically enjoins as a duty resulting and prosecution attorneys in order to conduct a nationwide and
from an office, trust, or station, or unlawfully excludes another comprehensive preliminary investigation and prosecution of
from the use and enjoyment of a right or office to which such the cases. Thereby, the Secretary of Justice did not act
other is entitled, and there is no other plain, speedy and arbitrarily or oppressively against petitioners.
adequate remedy in the ordinary course of law, the person
aggrieved thereby may file a verified petition in the proper Fourthly, petitioners attack the exemption from the
court."12 The main objective of mandamus is to compel the consolidation decreed in DO No. 182 of the cases filed or
performance of a ministerial duty on the part of the pending in the Office of the City Prosecutor of Cagayan de
respondent. Plainly enough, the writ of mandamus does not Oro City, claiming that the exemption traversed the
issue to control or review the exercise of discretion or to constitutional guaranty in their favor of the equal protection of
compel a course of conduct,13 which, it quickly seems to us, law.17
was what petitioners would have the Secretary of Justice do in
their favor. Consequently, their petition has not indicated how
The exemption is covered by the assailed DOJ Memorandum
and where the Secretary of Justice’s assailed issuances
dated March 2, 2009, to wit:
excluded them from the use and enjoyment of a right or office
to which they were unquestionably entitled.
It has come to the attention of the undersigned that cases for
syndicated estafa were filed with your office against officers
Thirdly, there is no question that DO No. 182 enjoyed a strong
of the Legacy Group of Companies. Considering the distance
presumption of its validity. In ABAKADA Guro Party List v.
of the place of complainants therein to Manila, your Office is
Purisima,14 the Court has extended the presumption of validity
hereby exempted from the directive previously issued by the
to legislative issuances as well as to rules and regulations undersigned requiring prosecution offices to forward the
issued by administrative agencies, saying: records of all cases involving Legacy Group of Companies to
the Task Force.
Administrative regulations enacted by administrative agencies
to implement and interpret the law which they are entrusted to
Anent the foregoing, you are hereby directed to conduct
enforce have the force of law and are entitled to respect. Such preliminary investigation of all cases involving the Legacy
rules and regulations partake of the nature of a statute and are
Group of Companies filed in your office with dispatch and to
just as binding as if they have been written in the statute itself.
file the corresponding informations if evidence warrants and
As such, they have the force and effect of law and enjoy the
to prosecute the same in court.
presumption of constitutionality and legality until they are set
aside with finality in an appropriate case by a competent
court.15 Petitioners’ attack deserves no consideration. The equal
protection clause of the Constitution does not require the
universal application of the laws to all persons or things
DO No. 182 was issued pursuant to Department Order No. 84
without distinction; what it requires is simply equality among
that the Secretary of Justice had promulgated to govern the
equals as determined according to a valid
performance of the mandate of the DOJ to "administer the classification.18 Hence, the Court has affirmed that if a law
criminal justice system in accordance with the accepted neither burdens a fundamental right nor targets a suspect class,
processes thereof"16 as expressed in Republic Act No. 10071
the classification stands as long as it bears a rational
(Prosecution Service Act of 2010) and Section 3, Chapter I,
relationship to some legitimate government end.19
50
That is the situation here. In issuing the assailed DOJ violation of the right of petitioners to the speedy disposition of
Memorandum dated March 2, 2009, the Secretary of Justice their cases.
took into account the relative distance between Cagayan de
Oro, where many complainants against the Legacy Group Sixthly, petitioners assert that the assailed issuances should
resided, and Manila, where the preliminary investigations cover only future cases against Delos Angeles, Jr., et al., not
would be conducted by the special panel. He also took into those already being investigated. They maintain that DO No.
account that the cases had already been filed in the City 182 was issued in violation of the prohibition against passing
Prosecutor’s Office of Cagayan de Oro at the time he issued laws with retroactive effect.
DO No. 182. Given the considerable number of complainants
residing in Cagayan de Oro City, the Secretary of Justice was
Petitioners’ assertion is baseless.
fully justified in excluding the cases commenced in Cagayan
de Oro from the ambit of DO No. 182. The classification taken
into consideration by the Secretary of Justice was really valid. As a general rule, laws shall have no retroactive effect.
Resultantly, petitioners could not inquire into the wisdom However, exceptions exist, and one such exception concerns a
behind the exemption upon the ground that the non- law that is procedural in nature. The reason is that a remedial
application of the exemption to them would cause them some statute or a statute relating to remedies or modes of procedure
inconvenience. does not create new rights or take away vested rights but only
operates in furtherance of the remedy or the confirmation of
already existing rights.25 A statute or rule regulating the
Fifthly, petitioners contend that DO No. 182 violated their procedure of the courts will be construed as applicable to
right to the speedy disposition of cases guaranteed by the actions pending and undetermined at the time of its passage.
Constitution. They posit that there would be considerable
All procedural laws are retroactive in that sense and to that
delay in the resolution of their cases that would definitely be
extent. The retroactive application is not violative of any right
"a flagrant transgression of petitioners’ constitutional rights to
of a person who may feel adversely affected, for, verily, no
speedy disposition of their cases."20
vested right generally attaches to or arises from procedural
laws.
We cannot favor their contention.
Finally, petitioners have averred but failed to establish that
In The Ombudsman v. Jurado,21 the Court has clarified that DO No. 182 constituted obstruction of justice. This ground of
although the Constitution guarantees the right to the speedy the petition, being unsubstantiated, was unfounded.
disposition of cases, such speedy disposition is a flexible
concept. To properly define that concept, the facts and
Nonetheless, it is not amiss to reiterate that the authority of the
circumstances surrounding each case must be evaluated and
Secretary of Justice to assume jurisdiction over matters
taken into account. There occurs a violation of the right to a
involving the investigation of crimes and the prosecution of
speedy disposition of a case only when the proceedings are offenders is fully sanctioned by law. Towards that end, the
attended by vexatious, capricious, and oppressive delays, or Secretary of Justice exercises control and supervision over all
when unjustified postponements of the trial are sought and
the regional, provincial, and city prosecutors of the country;
secured, or when, without cause or justifiable motive, a long
has broad discretion in the discharge of the DOJ’s functions;
period of time is allowed to elapse without the party having
and administers the DOJ and its adjunct offices and agencies
his case tried.22 It is cogent to mention that a mere
by promulgating rules and regulations to carry out their
mathematical reckoning of the time involved is not objectives, policies and functions.
determinant of the concept.23
Consequently, unless and until the Secretary of Justice acts
The consolidation of the cases against Delos Angeles, Jr., et
beyond the bounds of his authority, or arbitrarily, or
al. was ordered obviously to obtain expeditious justice for the
whimsically, or oppressively, any person or entity who may
parties with the least cost and vexation to them. Inasmuch as feel to be thereby aggrieved or adversely affected should have
the cases filed involved similar or related questions to be dealt
no right to call for the invalidation or nullification of the rules
with during the preliminary investigation, the Secretary of
and regulations issued by, as well as other actions taken by the
Justice rightly found the consolidation of the cases to be the
Secretary of Justice.
most feasible means of promoting the efficient use of public
resources and of having a comprehensive investigation of the
cases. WHEREFORE, the Court DISMISSES the omnibus petition
for certiorari, prohibition, and mandamus for lack of merit.
On the other hand, we do not ignore the possibility that there
would be more cases reaching the DOJ in addition to those Petitioners shall pay the costs of suit.
already brought by petitioners and other parties. Yet, any
delays in petitioners’ cases occasioned by such other and SO ORDERED.
subsequent cases should not warrant the invalidation of DO
No. 182. The Constitution prohibits only the delays that are Footnotes
unreasonable, arbitrary and oppressive, and tend to render
rights nugatory.24 In fine, we see neither undue delays, nor any
51
1 19
Rollo, pp. 7 and 19. E.g., Ang Ladlad LGBT Party v. Commission on
Elections, G.R. No. 190582, April 8, 2010, 618
2
Id. at 18. SCRA 32, 63.

20
3
Id. at 19. Rollo, p. 13.

21
4
Heirs of Bertuldo Hinog v. Melicor, G.R. No. G.R. No. 154155, August 6, 2008, 561 SCRA 135,
140954, April 12, 2005, 455 SCRA 460, 470. 146.

22
5
G.R. No. 159508, August 29, 2012. Yulo v. People, G.R. No. 142762, March 4, 2005,
452 SCRA 705, 710.
6
This rule has been amended, first by A.M. No. 00-2-
23
03-SC (Re: Amendment to Section 4, Rule 65 of the See Bernat v. Sandiganbayan, G.R. No. 158018,
1997 Rules of Civil Procedure) to specify that the 60- May 20, 2004, 428 SCRA 787, 789.
day period within which to file the petition starts to
24
run from receipt of notice of the denial of the motion Caballero v. Alfonso, Jr., G.R. No. L-45647,
for reconsideration, if one is filed (effective August 21, 1987, 153 SCRA 153, 163.
September 1, 2000); and by A.M. No. 07-7-12-SC, to
add the last paragraph (effective December 27, 2007). 25
Systems Factors Corporation v. National Labor
Relations Commission, G.R. No. 143789, November
7
Section 1, Rule 65, Rules of Court; Pilipino 27, 2000, 346 SCRA 149, 152; Gregorio vs. Court of
Telephone Corporation v. Radiomarine Network, Appeals, No. L-22802, November 29, 1968, 26
Inc., G.R. No. 152092, August 4, 2010, 626 SCRA SCRA 229; Tinio vs. Mina, No. L-29488, December
702, 735. 24, 1968, 26 SCRA 512; Billiones vs. Court of
Industrial Relations, No. L-17566, July 30, 1965, 14
8
G.R. No. 153852, October 24, 2012. SCRA 674.

9
Acuzar v. Jorolan, G.R. No. 177878, April 7, 2010,
617 SCRA 519, 527-528.

10
G.R. No. 143375, July 6, 2001, 360 SCRA 618.

11
Id. at 623.

12
Section 3, Rule 65, Rules of Court.

13
University of San Agustin, Inc. v. Court of
Appeals, G.R. No. 100588, March 7, 1994, 230
SCRA 761, 771-772.

14
G.R. No. 166715, August 14, 2008, 562 SCRA
251.

15
Id. at 288-289.

16
Section 1, Chapter I, Title III, Book IV, Executive
Order No. 292.

17
Rollo, p. 11.

18
Quinto v. Commission on Elections, G.R. No.
189698, February 22, 2010, 613 SCRA 385, 414;
citing The Philippine Judges Association v. Prado,
G.R. No. 105371, November 11, 1993, 227 SCRA
703, 712.

52
Republic of the Philippines In her affidavit, private respondent admitted that her
SUPREME COURT relationship with petitioner had ended prior to the subject
Manila incident. She narrated that on July 13, 2009, she sought
payment of the money she had lent to petitioner but the latter
SECOND DIVISION could not pay. She then inquired from petitioner if he was
responsible for spreading rumors about her which he admitted.
Thereupon, private respondent slapped petitioner causing the
G.R. No. 193960 January 7, 2013
latter to inflict on her the physical injuries alleged in the
Information.
KARLO ANGELO DABALOS y SAN DIEGO, Petitioner,
vs.
The RTC Ruling
REGIONAL TRIAL COURT,BRANCH 59, ANGELES
CITY (PAMPANGA), REPRESENTED BY ITS
PRESIDING JUDGE MA. ANGELICA T. PARAS- The RTC denied petitioner’s motion. It did not consider
QUIAMBAO; THE OFFICE OF THE CITY material the fact that the parties’ dating relationship had
PROSECUTOR, ANGELES CITY (PAMPANGA); AND ceased prior to the incident, ratiocinating that since the parties
ABC,1 Respondents. had admitted a prior dating relationship, the infliction of slight
physical injuries constituted an act of violence against women
DECISION and their children as defined in Sec. 3(a) of RA 9262.

Issues
PERLAS-BERNABE, J.:

The Court will not read into Republic Act (RA) No. 9262 a Hence, the instant petition raising the following issues: 1)
provision that would render it toothless in the pursuit of the whether the RTC has jurisdiction over the offense; 2) whether
RA 9262 should be construed in a manner that will favor the
declared policy of the State to protect women and children
accused; and 3) whether the Information alleging a fact
from violence and threats to their personal safety and security.
contrary to what has been admitted should be quashed.
Before the Court is a petition for certiorari and prohibition
The Court’s Ruling
assailing the Orders dated September 13, 2010 2 and October 5,
20103 of the Regional Trial Court (RTC) of Angeles City,
Branch 59 in Criminal Case No. 09-5210 which denied The petition has no merit.
petitioner’s Motion for Judicial Determination of Probable
Cause with Motion to Quash the Information. Petitioner insists that the act which resulted in physical
injuries to private respondent is not covered by RA 9262
The Facts because its proximate cause was not their dating relationship.
Instead, he claims that the offense committed was only slight
Petitioner was charged with violation of Section 5(a) of RA physical injuries under the Revised Penal Code which falls
9262 before the RTC of Angeles City, Branch 59, in an under the jurisdiction of the Municipal Trial Court.
Information which states:
The Court is not persuaded.
That on or about the 13th day of July, 2009, in the City of
Angeles, Philippines, and within the jurisdiction of this Sec. 3(a) of RA 9262 reads:
Honorable Court, the above-named accused, being then the
boyfriend of the complainant, x x x did then and there SEC. 3. Definition of Terms.- As used in this Act, (a)
willfully, unlawfully and feloniously use personal violence on "Violence against women and their children" refers to any act
the complainant, by pulling her hair, punching complainant’s or a series of acts committed by any person against a woman
back, shoulder and left eye, thereby demeaning and degrading who is his wife, former wife, or against a woman with whom
the complainant’s intrinsic worth and dignity as a human the person has or had a sexual or dating relationship, or with
being, in violation of Section 5(a) of the Republic Act 9262.4 whom he has a common child, or against her child whether
legitimate or illegitimate, within or without the family abode,
After examining the supporting evidence, the RTC found which result in or is likely to result in physical, sexual,
probable cause and consequently, issued a warrant of arrest psychological harm or suffering, or economic abuse including
against petitioner on November 19, 2009. The latter posted a threats of such acts, battery, assault, coercion, harassment or
cash bond for his provisional liberty and on August 12, 2010, arbitrary deprivation of liberty. x x x.
filed a Motion for Judicial Determination of Probable Cause
with Motion to Quash the Information. Petitioner averred that The law is broad in scope but specifies two limiting
at the time of the alleged incident on July 13, 2009, he was no qualifications for any act or series of acts to be considered as a
longer in a dating relationship with private respondent; hence, crime of violence against women through physical harm,
RA 9262 was inapplicable. namely: 1) it is committed against a woman or her child and
53
the woman is the offender’s wife, former wife, or with whom over cases of violence against women and their children under
he has or had sexual or dating relationship or with whom he this law. In the absence of such court in the place where the
has a common child; and 2) it results in or is likely to result in offense was committed, the case shall be filed in the Regional
physical harm or suffering. Trial Court where the crime or any of its elements was
committed at the option of the complainant.
In Ang v. Court of Appeals,5 the Court enumerated the
elements of the crime of violence against women through Finally, the Court finds the Order9 of the RTC, giving the
harassment, to wit: prosecutor a period of two (2) days to amend the Information
to reflect the cessation of the dating relationship between the
1. The offender has or had a sexual or dating petitioner and the offended party, to be in accord with Sec. 4
relationship with the offended woman; of Rule 117 of the Rules of Court, to wit:

2. The offender, by himself or through another, SEC. 4. Amendment of complaint or information.- If the
commits an act or series of acts of harassment against motion to quash is based on an alleged defect of the complaint
the woman; and or information which can be cured by amendment, the court
shall order that an amendment be made.1âwphi1
3. The harassment alarms or causes substantial
emotional or psychological distress to her.6 Furthermore, Sec. 14 of Rule 110 of the Rules of Court
provides that an information may be amended, in form or in
substance, without leave of court, at any time before the
Notably, while it is required that the offender has or had a
accused enters his plea. In the present case, the accused
sexual or dating relationship with the offended woman, for RA
petitioner has not yet been arraigned, hence, the RTC was
9262 to be applicable, it is not indispensable that the act of
violence be a consequence of such relationship. Nowhere in correct in directing the amendment of the Information and in
the law can such limitation be inferred. Hence, applying the denying the motion to quash the same.
rule on statutory construction that when the law does not
distinguish, neither should the courts, then, clearly, the WHEREFORE, the petition is DISMISSED. The Orders dated
punishable acts refer to all acts of violence against women September 13, 2010 and October 5, 2010 of the Regional Trial
with whom the offender has or had a sexual or dating Court ( RTC) of Angeles City, Branch 59 in Criminal Case
relationship. As correctly ruled by the RTC, it is immaterial No. 09-5210 are AF.FI RM ED. The Temporary Restraining
whether the relationship had ceased for as long as there is Order issued by the Court is LIFTED and the RTC is directed
sufficient evidence showing the past or present existence of to continue with the proceedings in Criminal Case No. 09-
such relationship between the offender and the victim when 5210.
the physical harm was committed. Consequently, the Court
cannot depart from the parallelism in Ang and give credence SO ORDERED.
to petitioner's assertion that the act of violence should be due
to the sexual or dating relationship. Footnotes

Neither can the Court construe the statute in favor of petitioner 1


Pursuant to RA 9262, otherwise known as the
using the rule of lenity7 because there is no ambiguity in RA "Anti- Violence Against Women and Their Children
9262 that would necessitate any construction. While the Act of 2004," and its implementing rules, the real
degree of physical harm under RA 9262 and Article 266 8 of name of the victim, together with the names of her
the Revised Penal Code are the same, there is sufficient immediate family members, is withheld, and
justification for prescribing a higher penalty for the former. fictitious initials instead are used to represent her, to
Clearly, the legislative intent is to purposely impose a more protect her privacy.
severe sanction on the offenders whose violent act/s physically
harm women with whom they have or had a sexual or dating 2
Rollo, pp. 33-36. Penned by Presiding Judge Ma.
relationship, and/or their children with the end in view of
Angelica T. Paras-Quiambao.
promoting the protection of women and children.
3
Id. at 29-32.
Accordingly, the Information having sufficiently alleged the
necessary elements of the crime, such as: a dating relationship 4
between the petitioner and the private respondent; the act of Id. at 37.
violence committed by the petitioner; and the resulting
5
physical harm to private respondent, the offense is covered by G.R. No. 182835, April 20, 2010, 618 SCRA 592.
RA 9262 which falls under the jurisdiction of the RTC in
accordance with Sec. 7 of the said law which reads: 6
Id. at 600.

SEC. 7. Venue – The Regional Trial Court designated as a 7


"Intimately intertwined with the in dubio pro reo
Family Court shall have original and exclusive jurisdiction principle is the rule of lenity. It is the doctrine that ‘a
54
court, in construing an ambiguous criminal statute
that sets out multiple or inconsistent punishments,
should resolve the ambiguity in favor of the more
lenient punishment.’" Separate Opinion of CJ Corona
in People v.Temporada, G.R. No. 173473, December
17, 2008, citing Black's Law Dictionary, Eighth
Edition, p. 1359 (2004).

8
ART. 266. Slight physical injuries and
maltreatment.- The crime of slight physical injuries
shall be punished:

1. By arresto menor when the offender has


inflicted physical injuries which shall
incapacitate the offended party for labor
from one to nine days, or shall require
medical attendance during the same period;

2. By arresto menor or a fine not exceeding


200 pesos and censure when the offender
has caused physical injuries which do not
prevent the offended party from engaging in
his habitual work nor require medical
attendance;

3. By arresto menor in its minimum period


or a fine not exceeding 50 pesos when the
offender shall ill-treat another by deed
without causing any injury.

9
Rollo, p. 32.

55
Republic of the Philippines Opinions9 rendered by the Office of the Government
SUPREME COURT Corporate Counsel (OGCC), Department of Justice.
Manila
Finding justification in the increase in salary due these
SECOND DIVISION officials brought about by the standardization mandated by
R.A. No. 6758, PPA paid RATA differentials to its officials.
G.R. No. 181973 April 17, 2013
The Commission on Audit (COA) Corporate Auditor,
AMELIA AQUINO, RODOLFO TAGGUEG, however, in a letter dated 14 November 1990, addressed to
JR.,* ADELAIDA HERNANDEZ and LEOPOLDO PPA, disallowed in post-audit the payment of the RATA
BISCOCHO, JR.,Petitioners, differentials. It likewise disallowed in audit the grant of
vs. RATA to PPA Section Chiefs or heads of equivalent units,
PHILIPPINE PORTS AUTHORITY, Respondent. Terminal Supervisors and senior personnel occupying
positions with salary grades of 17 and above who were
appointed after the effectivity of R.A. No. 6758.
DECISION

The COA called PPA’s attention to Memorandum No. 90-679


PEREZ, J.:
dated 30 October 1990 which provides that "LOImp No. 97
series of 1979 implementing Compensation and Position
Before this Court is a Petition for Review on Certiorari1 under Classification for Infrastructure/Utilities for GOCC is replaced
Rule 45 of the Rules of Court praying that the Decision2 dated by Section 16 of R.A. No. 6758." 10
29 August 2007 of the Court of Appeals (CA) in CA-G.R. SP
No. 91743 be set aside. In the assailed decision, the CA
reversed the 10 August 2005 Decision3 and 15 September In view of the disallowances, the affected PPA officials,
represented by the OGCC, filed a petition before the Supreme
2005 Order4 of the Regional Trial Court (RTC), Branch 55,
Court claiming their entitlement to the RATA provided for
Manila.
under LOI No. 97. The case was docketed as G.R. No. 100773
entitled "Philippine Ports Authority v. Commission on Audit,
Background of the case et al."11

The Congress of the Philippines passed on 21 August In a decision dated 16 October 1992, the Supreme Court ruled
19895 Republic Act (R.A.) No. 6758 entitled "An Act in favor of the COA and declared that an official to be entitled
Prescribing a Revised Compensation and Position to the continued RATA benefit under LOI No. 97 must be an
Classification in the Government and for Other Purposes" incumbent as of 1 July 1989 and more importantly, was
otherwise known as The Salary Standardization Law. receiving the RATA provided by LOI No. 97 as of 1 July
1989.
Before the law, or on 31 August 1979, then President
Ferdinand E. Marcos issued Letter of Implementation No. 97 As a result of the aforesaid ruling, there are at present two
(LOI No. 97), authorizing the implementation of standard categories of managers and supervisors at the PPA. The first
compensation position classification plans for the category is composed of PPA officials who were occupying
infrastructure/utilities group of government-owned or their positions and actually receiving the 40% RATA under
controlled corporations. On the basis thereof, the Philippine LOI No. 97 as of 1 July 1989 and who continue to receive
Ports Authority (PPA) issued Memorandum Circular No. 57- such benefit. The second category consists of officials who
87 dated 1 October 1987 which granted to its officials holding were not incumbents as of 1 July 1989 or were appointed or
managerial and supervisory positions representation and promoted to their positions only after 1 July 1989. The second
transportation allowance (RATA) in an amount equivalent to category officials therefore receive a lesser RATA under the
40% of their basic salary.6 General Appropriations Act although they hold the same rank,
title and may have the same responsibilities as their
Thereafter, on 23 October 1989, PPA issued Memorandum counterparts in the first category.
Circular No. 36-89, which extended the RATA entitlement to
its Section Chiefs or heads of equivalent units, Terminal The Case
Supervisors and senior personnel at the rate of 20% of their
basic pay.7 And, on 14 November 1990, PPA issued
Memorandum Circular No. 46-90, which adjusted effective 1 On 26 July 2000, petitioners, who are second category PPA
January 1990, the RATA authorized under Memorandum officials filed a Petition for Mandamus and Prohibition before
the RTC of Manila, raffled to Branch 55. They claim anew
Circular No. 36-89, from 20% to 40% based on the
that they are entitled to RATA in the amount not exceeding
standardized salary rate.8
40% of their respective basic salaries. They anchor their
petition on recent developments allegedly brought about by
The continued validity of the RATA grant to the maximum the decision of the Supreme Court in the case of De Jesus v.
ceiling of 40% of basic pay finds support from the Commission on Audit, et al.12which was decided almost six
56
(6) years after the Court’s decision in PPA v. COA, et substantial distinction,’ the so-called first (sic) category
al.13 They further claim that certain issuances were released by managers and supervisors whose appointments thereto were
the COA and the Department of Budget and Management made after 01 July 1989 and who were effectively deprived of
(DBM), which in effect, extended the cut-off date in the grant the 40% RATA on account of the Supreme Court’s ruling in
of the 40% RATA, thus entitling them to these benefits. the PPA v. COA, et al. case have established a clear legal right
to claim the 40% RATA under LOI No. 97 commencing on 23
PPA filed a motion to dismiss on the ground of res judicata October 2001, and the correlative legal duty of respondent
under paragraph (f), Rule 16 of the Rules of Court. It argued PPA to pay the same; thus, entitling petitioners who are
that a case involving the same parties, subject matter and qualified to avail of the extraordinary remedy of mandamus."21
cause of action had already been resolved by this Court in
PPA v. COA, et al.14 PPA raised the matter before the CA which docketed the case
as CA G.R. SP No. 91743. In a decision dated 29 August
Finding merit in PPA’s motion, the RTC ordered the dismissal 2007, the appellate court reversed the decision of the trial
of the petition in an Order dated 8 November 2000. The court and held:
dispositive portion of the Order reads:
WHEREFORE, premises considered, the August 10, 2005
WHEREFORE, premises considered, the Motion to Dismiss is Decision and the September 15, 2005 Order of the Regional
hereby GRANTED, and the Petition in this case is hereby Trial Court, Branch 55, National Capital Judicial Region,
DISMISSED on the ground that it is already barred by the Manila, are hereby REVERSED. Accordingly, the Amended
principle of res judicata.15 Petition in Civil Case No. 00-98161 is hereby DISMISSED.
No costs.22
Petitioners elevated the case before the Supreme Court by way
of appeal under Rule 45 of the Rules of Court. The Supreme Petitioners filed a motion for reconsideration but this was
Court, however, in a Resolution16 dated 28 March 2001 denied by the appellate court in a resolution dated 29 February
referred the case to the CA for appropriate action. The case 2008.
was docketed as CA G.R. SP No. 64702.
Hence, this petition assailing the 29 August 2007 decision of
On 31 July 2002, a decision was rendered by the CA on the the CA and its 29 February 2008 resolution.
referred case. It declared that the principle of res judicata is
not applicable to the case. The appellate court explained that Issues
the existence of DBM and COA issuances which entitle herein
petitioners to the grant of RATA is the pertinent fact and Petitioners raise the following issues for resolution:
condition which is material to the instant case taking it away
from the domain of the principle of res judicata. 17 When new
I. WHETHER OR NOT THE PRINCIPLE OF RES
facts or conditions intervene before the second suit, furnishing
JUDICATA IS APPLICABLE IN THE INSTANT
a new basis for the claims and defenses of the party, the issues
CASE TAKING INTO CONSIDERATION THE
are no longer the same; hence, the former judgment cannot be
FINAL DECISION OF THE COURT OF APPEALS
pleaded as a bar to the subsequent action.18 At the time IN CA. G.R. SP NO. 64702.
judgment was rendered in the previous case, the fact and
condition now in existence, which consist of the DBM and
COA issuances, has not yet come about. In view of the II. WHETHER OR NOT PPA IN DENYING THE
issuances, petitioners are faced with an entirely separate facts CLAIM OF PETITIONERS FOR 40% RATA HAS
and conditions, which make the principle of res judicata COMMITTED A VIOLATION OF THEIR
inapplicable.19 The decision ordered the remand of the case to CONSTITUTIONAL RIGHT TO EQUAL
the court of origin for continuation of proceedings. PROTECTION; AND

After due proceedings in the trial court, a decision in favor of III. WHETHER OR NOT PETITIONERS ARE
petitioners was rendered on 10 August 2005. The dispositive ENTITLED TO 40% RATA AND SHOULD NOT
portion of the decision commanded respondent PPA to pay the BE MADE TO REFUND THE RATA THEY HAD
claim for RATA equivalent to 40% of petitioners’ ALREADY RECEIVED.
standardized basic salaries authorized under LOI No. 97,
commencing from their respective dates of appointments or on Petitioners’ Argument
23 October 2001 when the case of Irene V. Cruz, et al. v.
COA20 was promulgated by the Supreme Court, whichever is Petitioners submit that the decision of the CA in CA G.R. SP
later. No. 64702 adequately cited jurisprudence and authorities on
the matter involving the issue of res judicata. Such decision of
The trial court ratiocinated that "when the Supreme Court En the appellate court was not appealed by the PPA and as such,
Banc ruled on 23 October 2001 in the IRENE CRUZ case that has attained finality. In view thereof, petitioners allege that the
‘The date of hiring of an employee cannot be considered as a case of PPA v. COA, et al.23 can no longer serve as a ground
57
for the dismissal of the instant case since such would result in They further claim that even the COA took cognizance of this
"the sacrifice of justice to technicality."24 extension in the memorandum27 issued by the officer-in-
charge of the COA Audit Office, to wit:
Petitioners further submit that the CA in its decision in CA
G.R. SP No. 91743 may have overlooked the significance of Moreover, this office gives much weight to the position of the
the Supreme Court’s ruling in the case of De Jesus v. Secretary, DBM in his letter to the Administrator, NEA, dated
Commission on Audit, et al.25 which extended the prescribed October 30, 1993 that the cut-off date of July 1, 1989
date of effectivity of R.A. No. 6758 from 1 July 1989 to 31 prescribed in R.A. 6758/CCC #10 was extended to October
October 1989, viz: 31, 1989 primarily on consideration that said R.A. 6758/CCC
#10 were formally issued/promulgated only in the later part of
In the present case under scrutiny, it is decisively clear that October 1989. x x x
DBM-CCC No. 10, which completely disallows payment of
allowances and other additional compensation to government Petitioners likewise raised as their cause of action the violation
officials and employees starting November 1, 1989 is not a of their constitutional right to equal protection of the law.
mere interpretative or internal regulation. It is something more They contend that this alone would constitute sufficient
than that. And why not, when it tends to deprive government justification for the filing anew of the instant petition.
workers of their allowances and additional compensation Contrary to the statement in the assailed decision of the CA to
sorely needed to keep body and soul together. x x x the effect that they failed to plead or raise such issue in the
trial court, they submit that a perusal of their amended petition
Petitioners claim that the DBM, which is the agency tasked to would show that paragraphs 30, 31, 32 and 33 thereof were
implement R.A. No. 6758, amplified this extension in its 4 devoted to that issue.
May 1992 letter to the Administrator of the National
Electrification Administration (NEA). The pertinent portion of Finally, as regards the matter of refund of the RATA being
the letter reads: demanded by COA, petitioners submit that they should not be
required to make such refund since these were received in
DBM has authorized certain GOCCs/GFIs to grant also to good faith and on the honest belief that they were entitled to it.
officials and employees hired between the period of July 1,
1989 and October 31, 1989 the allowances and fringe benefit PPA’s Argument
enumerated in said Item 5.5 of CCC No. 10.
Respondent PPA maintains that PPA employees who were
At this juncture it is pertinent to point out that although the appointed to managerial and supervisory positions after the
effectivity date prescribed in R.A. No. 6758 is July 1, 1989, effectivity of RA No. 6758 are not entitled to the 40% RATA
said Act and its implementing circulars were formally benefit provided under LOI No. 97. Consistent with the ruling
promulgated only in the later part of October 1989. The of the Court in PPA v. COA, et al.,28 respondent PPA contends
preparation of all required documents, more particularly the that only the first category officials or those who were granted
Index of Occupational Services (IOS) and the Position and were receiving RATA equivalent to 40% of their salaries
Allocation List (PAL) for the GOCCs/GFIs was completed at prior to 1 July 1989 are entitled to such benefits. Petitioners
much later date. Thus, within the period of transition from who are included in the second category officials or those who
July 1, 1989 up to the date of completion of all the required are not incumbents as of 1 July 1989 are not entitled to the
documents for the actual implementation by each GOCC/GFI 40% RATA benefit provided under LOI No. 97.
of said salary standardization, flexibility in the interpretation
of rules and regulations prescribed under R.A. 6758 was Our Ruling
necessary. DBM felt it illogical to assume that during the
period R.A. 6758 was not yet issued all GOCCs/GFIs were There is merit in petitioners’ argument that their petition
already aware of what implementing guidelines it (DBM) will should not be dismissed on the ground of res judicata since
prescribe and have their personnel actions accordingly
this is based on jurisprudence and issuances not yet in
adjusted to said guidelines. Likewise, it is counter-productive
existence at the time of the promulgation of the Court’s
if at that time, we advised all GOCCs/GFIs to suspend their
decision in PPA v. COA, et al.29 Petitioners are, however,
personnel actions as same could be disruptive to their incorrect in their contention that the decision of the appellate
operations and delay the completion of important projects. court in CA-G.R. SP No. 64702 which was not appealed by
the PPA has become final and as such, barred the appellate
Premised on the above considerations, we maintain the court’s subsequent ruling in CA-G.R. SP No. 91743.
position that our action allowing officials and employees hired
between the period of July 1, 1989 and October 31, 1989 to be We note that when the petition was elevated to the CA in the
paid allowances under Item No. 5.5 of CCC No. 10 is first instance in CA-G.R. SP No. 64702, the matter submitted
logically tenable and reasonable since same was made during
to be resolved by the appellate court was simply the issue on
the "transitory period" from the old system to the new
whether the trial court was correct in granting the motion to
system.26
dismiss and in declaring that the case is barred by the principle
of res judicata. Despite the non-appeal by PPA of the appellate
58
court’s ruling that res judicata is not applicable, the case did his successor is no longer entitled to his predecessor’s RATA
not attain finality in view of the order of the CA remanding privilege x x x or to the transition allowance.
the case to the trial court for continuation of hearing. The
appellate court’s ruling in CA G.R. SP No. 91743, therefore, Finally, to explain what July 1, 1989 pertained to, we held in
was not barred by the ruling in CA G.R. SP No. 64702 since the same case as follows:
the ruling in the second instance was already a ruling after trial
on the merits.
x x x. The date July 1, 1989 becomes crucial only to determine
that as of said date, the officer was an incumbent and was
Although the principle of res judicata is not applicable, the receiving the RATA, for purposes of entitling him to its
petition must still fail because our ruling must adhere to the continued grant. x x x.
doctrine of stare decisis. In Chinese Young Men's Christian
Association of the Philippine Islands v. Remington Steel
In Philippine International Trading Corporation v. COA, the
Corporation,30 the Court expounded on the importance of this Court confirmed the legislative intention in this wise:
doctrine in securing certainty and stability of judicial
decisions, thus:
x x x There was no intention on the part of the legislature to
revoke existing benefits being enjoyed by incumbents of
Time and again, the court has held that it is a very desirable
government positions at the time of the passage of RA 6758
and necessary judicial practice that when a court has laid by virtue of Sections 12 and 17 thereof. x x x.
down a principle of law as applicable to a certain state of facts,
it will adhere to that principle and apply it to all future cases in
which the facts are substantially the same. Stare decisis et non The Court stressed that in reserving the benefits to incumbents
quieta movere. Stand by the decisions and disturb not what is alone, the legislature’s intention was not only to adhere to the
settled. Stare decisis simply means that for the sake of policy of non-diminution of pay, but also to be consistent with
certainty, a conclusion reached in one case should be applied the prospective application of laws and the spirit of fairness
to those that follow if the facts are substantially the same, even and justice.35 (Emphasis omitted)
though the parties may be different. It proceeds from the first
principle of justice that, absent any powerful countervailing xxxx
considerations, like cases ought to be decided alike. Thus,
where the same questions relating to the same event have been The disquisition of the Court in Philippine National Bank v.
put forward by the parties similarly situated as in a previous Palma36 is instructive, viz:
case litigated and decided by a competent court, the rule of
stare decisis is a bar to any attempt to relitigate the same issue. The reliance of the court a quo on Cruz v. COA is misplaced.
(Emphasis supplied) It was held in that case that the specific date of hiring, October
31, 1989, had been not only arbitrarily determined by the
The issues raised by petitioners are no longer novel. In a COA, but also used as an unreasonable and unsubstantial basis
catena of Cases31 promulgated after De Jesus v. COA32 and for awarding allowances to employees. The basis for the
Cruz v. COA,33 this Court has ruled that the pronouncement it Court’s ruling was not primarily the resulting disparity in
has established in the earlier case of PPA v. COA, et al. 34 with salaries received for the same work rendered but, more
regard to the interpretation and application of Section 12 of important, the absence of a distinction in the law that allowed
RA 6758 is still applicable. The subsequent decisions the grant of such benefits -- between those hired before and
maintained that allowances or fringe benefits, whether or not those after the said date.
integrated into the standardized salaries prescribed by R.A.
6758, should continue to be enjoyed only by employees who Thus, setting a particular date as a distinction was nullified,
(1) were incumbents and (2) were receiving those benefits as not because it was constitutionally infirm or was against the
of 1 July 1989. "equal pay for equal work" policy of RA 6758. Rather, the
reason was that the COA had acted without or in excess of its
In those cases, the Court reiterated that the intention of the authority in arbitrarily choosing October 31, 1989, as the
framers of the law was to phase out certain allowances and cutoff date for according the allowances. It was explained that
privileges gradually, without upsetting the principle of non- "when the law does not distinguish, neither should the court."
diminution of pay. The intention of Section 12 to protect And for that matter, neither should the COA.
incumbents who were already receiving those allowances on 1
July 1989, when RA 6758 took effect was emphasized thus: In consonance with stare decisis, there should be no more
misgivings about the proper application of Section 12. In the
An incumbent is a person who is in present possession of an present case, the payment of benefits to employees hired after
office. July 1, 1989, was properly withheld, because the law clearly
mandated that those benefits should be reserved only to
The consequential outcome, under sections 12 and 17, is that incumbents who were already enjoying them before its
if the incumbent resigns or is promoted to a higher position, enactment. Withholding them from the others ensured that the
compensation of the incumbents would not be diminished in

59
the course of the latter’s continued employment with the reasonable classification intended to protect the rights of the
government agency. incumbents against diminution of their pay and benefits.42

It bears emphasis also that in promulgating the Irene Cruz Anent the issue of refund, we note that petitioners were
case, there was no intention on the part of the Court to referring to the RAT A received by the second category
abandon its earlier ruling in PPA v. COA, et al. 37 The factual officials pursuant to PPA Memorandum Circular No. 36-89
circumstances in the former case are different from those dated 23 October 1989 and PPA Memorandum Circular No.
attendant in the case of herein petitioners. In fine, the Irene 46-90 dated 14 November 1990. We deem it 110 longer
Cruz case is not on all fours with the present case. The necessary to discuss this issue considering that it was already
petitioners in the former case, who were employees of the ruled upon in the earlier PPA case and was even part of the
Sugar Regulatory Administration, were able to obtain from the dispositive portion43 of the decision which became final and
Office of the President a post facto approval or ratification of executory. Well-settled is the rule that once a judgment
their social amelioration benefit.1âwphi1No such authority becomes final and executory, it can no longer be disturbed,
granted by the Office of the President has been presented by altered, or modified in any respect. It is essential to an
the second category officials of the PPA. effective administration of justice that once a judgment has
become final, the issue or cause therein should be laid to
Petitioners further invoked that the denial of their claim of rest.44 The arguments of petitioners regarding this issue should
40% RATA violated their constitutional right to equal have been raised in that case and not in this present petition.
protection of the laws. We note that the Constitution does not
require that things which are different in fact be treated in law We conclude this case with the words borrowed from former
as though they were the same. The equal protection clause Chief Justice Artemio V. Panganiban:
does not prohibit discrimination as to things that are different.
It does not prohibit legislation which is limited either in the During these tough economic times, this Court understands,
object to which it is directed or by the territory within which it and in fact sympathizes with, the plight of ordinary
is to operate.38 government employees. Whenever legally possible, it has bent
over backwards to protect labor and favor it with additional
The equal protection of the laws clause of the Constitution economic advantages. In the present case, however, the Salary
allows classification. x x x. A law is not invalid simply Standardization Law clearly provides that the claimed benefits
because of simple inequality. The very idea of classification is shall continue to be granted only to employees who were
that of inequality, so that it goes without saying that the mere "incumbents" as of July 1, 1989. Hence, much to its regret, the
fact of inequality in no manner determines the matter of Court has no authority to reinvent or modify the law to extend
constitutionality. All that is required of a valid classification is those benefits even to employees hired after that date. 45
that it be reasonable, which means that the classification
should be based on substantial distinctions which make for WHEREFORE, the instant Petition for Review on Ce11iorari
real differences, that it must be germane to the purpose of the is DENIED. The Decision dated 29 August 2007 and
law; that it must not be limited to existing conditions only; and Resolution dated 29 February 2008 of the Court Appeals in
that it must apply equally to each member of the class.39 CA-G.R. SP No. 91743 are AFFIRMED. No pronouncement
as to costs.
As explained earlier, the different treatment accorded the
second sentence (first paragraph) of Section 12 of RA 6758 to SO ORDERED.
the incumbents as of 1 July 1989, on one hand, and those
employees hired on or after the said date, on the other, with
Footnotes
respect to the grant of non-integrated benefits lies in the fact
that the legislature intended to gradually phase out the said
benefits without, however, upsetting its policy of non- * The certificate against forum shopping stated
diminution of pay and benefits.40 "RODOLFO TAGGUEG, JR." instead of
"ALFONSO TAGGUEG, JR."
The consequential outcome under Sections 12 and 17 is that if 1
the incumbent resigns or is promoted to a higher position, his Rollo, pp. 9-34.
successor is no longer entitled to his predecessor’s RATA
2
privilege or to the transition allowance. After 1 July 1989, the Id. at 35-44. Penned by Associate Justice
additional financial incentives such as RATA may no longer Normandie B. Pizzaro with Associate Justice
be given by the GOCCs with the exemption of those which Edgardo P. Cruz and Fernanda Lampas Peralta
were authorized to be continued under Section 12 of RA concurring.
6758.41
3
Id. at 47-58. Penned by Acting Presiding Judge
Therefore, the aforesaid provision does not infringe the equal Manuel M. Barrios.
protection clause of the Constitution as it is based on
4
Records, pp. 582-583.
60
5 29
Date enacted; Date of effectivity is 1 July 1989. Id.

6 30
Rollo, p. 15. G.R. No. 159422, 28 March 2008, 550 SCRA 180,
197-198.
7
Id.
31
Social Security System v. COA, 433 Phil. 946
8
Id. at 16 (2002); Ambros v. COA, 501 Phil. 255 (2005); PNB
v. Palma, 503 Phil. 917 (2005); Agra, et al. v. COA,
9 G.R. No. 167807, 6 December 2011, 661 SCRA 563.
Id. Nos. 059 and 108 dated 14 March 1990 and 11
March 1990, respectively as well as No. 68 dated 23
32
March 1990. Supra note 12.

33
10
Id. Supra note 20.

34
11
G.R. No. 100773, 16 October 1992, 214 SCRA Supra note 11.
653.
35
Agra et. al. v. COA, G.R. No. 167807, 6 December
12
355 Phil. 584 (1998). 2011, 661 SCRA 563, 585-586.

36
13
Supra note 11. 503 Phil. 917, 931-932 (2005).

37
14
Id. Supra note 11.

38
15
Rollo, p. 93. CA Decision in CA-G.R. SP No. Ambros v. COA, 501 Phil. 255, 278 (2005).
64702.
39
Id.
16
Id. at 165.
40
Id.
17
Id. at 101.
41
Social Security System v. COA, supra note 31 at
18
Id. at 101-102 citing Lord v. Garland, 168 P. 2d 5 959.
(1946); Rhodes v. Van Steenberg, 225 F. Supp. 113
42
(1963); Cowan v. Gulf City Fisheries, Inc., 381 So. Id.
2d 158 (1980).
43
PPA v. COA, et al., supra note 11.
19
Id. at 102.
44
Aurora Tamayo v. People, G.R. No. 174698, 28
20
420 Phil. 103 (2001). July 2008, 560 SCRA 312, 323.

21 45
Rollo, p. 57. Philippine National Bank v. Palma, supra note 36
at 920.
22
Id. at 44.

23
Supra note 11.

24
Rollo, pp. 153-154. Memorandum of petitioners.

25
Supra note 12 at 590-591.

26
Rollo, p. 157.

27
Id. at 158.

28
Supra note 11.

61
Republic of the Philippines x-----------------------x
SUPREME COURT
Manila G.R. No. 203378

EN BANC ALEXANDER ADONIS, ELLEN TORDESILLAS, MA.


GISELA ORDENES-CASCOLAN, H. HARRY L.
G.R. No. 203335 February 11, 2014 ROQUE, JR., ROMEL R. BAGARES, and GILBERT T.
ANDRES, Petitioners,
JOSE JESUS M. DISINI, JR., ROWENA S. DISINI, vs.
LIANNE IVY P. MEDINA, JANETTE TORAL and THE EXECUTIVE SECRETARY, THE DEPARTMENT
ERNESTO SONIDO, JR., Petitioners, OF BUDGET AND MANAGEMENT, THE
vs. DEPARTMENT OF JUSTICE, THE DEPARTMENT OF
THE SECRETARY OF JUSTICE, THE SECRETARY THE INTERIOR AND LOCAL GOVERNMENT, THE
OF THE DEPARTMENT OF THE INTERIOR AND NATIONAL BUREAU OF INVESTIGATION, THE
LOCAL GOVERNMENT, THE EXECUTIVE PHILIPPINE NATIONAL POLICE, AND THE
DIRECTOR OF THE INFORMATION AND INFORMATION AND COMMUNICATIONS
COMMUNICATIONS TECHNOLOGY OFFICE, THE TECHNOLOGY OFFICE-DEPARTMENT OF SCIENCE
CHIEF OF THE PHILIPPINE NATIONAL POLICE and AND TECHNOLOGY, Respondents.
THE DIRECTOR OF THE NATIONAL BUREAU OF
INVESTIGATION, Respondents. x-----------------------x

x-----------------------x G.R. No. 203391

G.R. No. 203299 HON. RAYMOND V. PALATINO, HON. ANTONIO


TINIO, VENCER MARI CRISOSTOMO OF
LOUIS "BAROK" C. BIRAOGO, Petitioner, ANAKBAYAN, MA. KATHERINE ELONA OF THE
vs. PHILIPPINE COLLEGIAN, ISABELLE THERESE
NATIONAL BUREAU OF INVESTIGATION and BAGUISI OF THE NATIONAL UNION OF STUDENTS
PHILIPPINE NATIONAL POLICE, Respondents. OF THE PHILIPPINES, ET AL., Petitioners,
vs.
x-----------------------x PAQUITO N. OCHOA, JR., in his capacity as Executive
Secretary and alter-ego of President Benigno Simeon
Aquino III, LEILA DE LIMA in her capacity as Secretary
G.R. No. 203306 of Justice, Respondents.

ALAB NG MAMAMAHAYAG (ALAM), HUKUMAN NG x-----------------------x


MAMAMAYAN MOVEMENT, INC., JERRY S. YAP,
BERTENI "TOTO" CAUSING, HERNANI Q. CUARE,
G.R. No. 203407
PERCY LAPID, TRACY CABRERA, RONALDO E.
RENTA, CIRILO P. SABARRE, JR., DERVIN CASTRO,
ET AL., Petitioners, BAGONG ALYANSANG MAKABAYAN SECRETARY
vs. GENERAL RENATO M. REYES, JR., National Artist
OFFICE OF THE PRESIDENT, represented by President BIENVENIDO L. LUMBERA, Chairperson of Concerned
Benigno Simeon Aquino III, SENATE OF THE Artists of the Philippines, ELMER C. LABOG,
PHILIPPINES, and HOUSE OF Chairperson of Kilusang Mayo Uno, CRISTINA E.
REPRESENTATIVES, Respondents. PALABAY, Secretary General of Karapatan,
FERDINAND R. GAITE, Chairperson of COURAGE,
x-----------------------x JOEL B. MAGLUNSOD, Vice President of Anakpawis
Party-List, LANA R. LINABAN, Secretary General
Gabriela Women's Party, ADOLFO ARES P.
G.R. No. 203359 GUTIERREZ, and JULIUS GARCIA
MATIBAG, Petitioners,
SENATOR TEOFISTO DL GUINGONA III, Petitioner, vs.
vs. BENIGNO SIMEON C. AQUINO III, President of the
EXECUTIVE SECRETARY, THE SECRETARY OF Republic of the Philippines, PAQUITO N. OCHOA, JR.,
JUSTICE, THE SECRETARY OF THE DEPARTMENT Executive Secretary, SENATE OF THE PHILIPPINES,
OF INTERIOR AND LOCAL GOVERNMENT, THE represented by SENATE PRESIDENT JUAN PONCE
CHIEF OF THE PHILIPPINE NATIONAL POLICE, and ENRILE, HOUSE OF REPRESENTATIVES, represented
DIRECTOR OF THE NATIONAL BUREAU OF by SPEAKER FELICIANO BELMONTE, JR., LEILA DE
INVESTIGATION, Respondents. LIMA, Secretary of the Department of Justice, LOUIS
62
NAPOLEON C. CASAMBRE, Executive Director of the PAUL CORNELIUS T. CASTILLO & RYAN D.
Information and Communications Technology Office, ANDRES, Petitioners,
NONNATUS CAESAR R. ROJAS, Director of the vs.
National Bureau of Investigation, D/GEN. NICANOR A. THE HON. SECRETARY OF JUSTICE THE HON.
BARTOLOME, Chief of the Philippine National Police, SECRETARY OF INTERIOR AND LOCAL
MANUEL A. ROXAS II, Secretary of the Department of GOVERNMENT,Respondents.
the Interior and Local Government,Respondents.
x-----------------------x
x-----------------------x
G.R. No. 203469
G.R. No. 203440
ANTHONY IAN M. CRUZ; MARCELO R. LANDICHO;
MELENCIO S. STA. MARIA, SEDFREY M. BENJAMIN NOEL A. ESPINA; MARCK RONALD C.
CANDELARIA, AMPARITA STA. MARIA, RAY RIMORIN; JULIUS D. ROCAS; OLIVER RICHARD V.
PAOLO J. SANTIAGO, GILBERT V. SEMBRANO, and ROBILLO; AARON ERICK A. LOZADA; GERARD
RYAN JEREMIAH D. QUAN (all of the Ateneo Human ADRIAN P. MAGNAYE; JOSE REGINALD A. RAMOS;
Rights Center), Petitioners, MA. ROSARIO T. JUAN; BRENDALYN P. RAMIREZ;
vs. MAUREEN A. HERMITANIO; KRISTINE JOY S.
HONORABLE PAQUITO OCHOA in his capacity as REMENTILLA; MARICEL O. GRAY; JULIUS IVAN F.
Executive Secretary, HONORABLE LEILA DE LIMA in CABIGON; BENRALPH S. YU; CEBU BLOGGERS
her capacity as Secretary of Justice, HONORABLE SOCIETY, INC. PRESIDENT RUBEN B. LICERA, JR;
MANUEL ROXAS in his capacity as Secretary of the and PINOY EXPAT/OFW BLOG AWARDS, INC.
Department of Interior and Local Government, The COORDINATOR PEDRO E. RAHON; Petitioners,
CHIEF of the Philippine National Police, The DIRECTOR vs.
of the National Bureau of Investigation (all of the HIS EXCELLENCY BENIGNO S. AQUINO III, in his
Executive Department of Government),Respondents. capacity as President of the Republic of the Philippines;
SENATE OF THE PHILIPPINES, represented by HON.
x-----------------------x JUAN PONCE ENRILE, in his capacity as Senate
President; HOUSE OF REPRESENTATIVES,
represented by FELICIANO R. BELMONTE, JR., in his
G.R. No. 203453
capacity as Speaker of the House of Representatives;
HON. PAQUITO N. OCHOA, JR., in his capacity as
NATIONAL UNION OF JOURNALISTS OF THE Executive Secretary; HON. LEILA M. DE LIMA, in her
PHILIPPINES (NUJP), PHILIPPINE PRESS capacity as Secretary of Justice; HON. LOUIS
INSTITUTE (PPI), CENTER FOR MEDIA FREEDOM NAPOLEON C. CASAMBRE, in his capacity as Executive
AND RESPONSIBILITY, ROWENA CARRANZA Director, Information and Communications Technology
PARAAN, MELINDA QUINTOS-DE JESUS, JOSEPH Office; HON. NONNATUS CAESAR R. ROJAS, in his
ALWYN ALBURO, ARIEL SEBELLINO AND THE capacity as Director, National Bureau of Investigation;
PETITIONERS IN THE e-PETITION and P/DGEN. NICANOR A. BARTOLOME, in his
http://www.nujp.org/no-to-ra10175/, Petitioners, capacity as Chief, Philippine National Police, Respondents.
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY
x-----------------------x
OF JUSTICE, THE SECRETARY OF THE INTERIOR
AND LOCAL GOVERNMENT, THE SECRETARY OF
BUDGET AND MANAGEMENT, THE DIRECTOR G.R. No. 203501
GENERAL OF THE PHILIPPINE NATIONAL POLICE,
THE DIRECTOR OF THE NATIONAL BUREAU OF PHILIPPINE BAR ASSOCIATION, INC., Petitioner,
INVESTIGATION, THE CYBERCRIME vs.
INVESTIGATION AND COORDINATING CENTER, HIS EXCELLENCY BENIGNO S. AQUINO III, in his
AND ALL AGENCIES AND INSTRUMENTALITIES OF official capacity as President of the Republic of the
GOVERNMENT AND ALL PERSONS ACTING UNDER Philippines; HON. PAQUITO N. OCHOA, JR., in his
THEIR INSTRUCTIONS, ORDERS, DIRECTION IN official capacity as Executive Secretary; HON. LEILA M.
RELATION TO THE IMPLEMENTATION OF DE LIMA, in her official capacity as Secretary of Justice;
REPUBLIC ACT NO. 10175,Respondents. LOUIS NAPOLEON C. CASAMBRE, in his official
capacity as Executive Director, Information and
x-----------------------x Communications Technology Office; NONNATUS
CAESAR R. ROJAS, in his official capacity as Director of
the National Bureau of Investigation; and DIRECTOR
G.R. No. 203454
GENERAL NICANOR A. BARTOLOME, in his official

63
capacity as Chief of the Philippine National PHILIPPINE NATIONAL POLICE, THE HEAD OF
Police, Respondents. THE DOJ OFFICE OF CYBERCRIME, and THE
OTHER MEMBERS OF THE CYBERCRIME
x-----------------------x INVESTIGATION AND COORDINATING
CENTER, Respondents.
G.R. No. 203509
DECISION
BAYAN MUNA REPRESENTATIVE NERI J.
COLMENARES, Petitioner, ABAD, J.:
vs.
THE EXECUTIVE SECRETARY PAQUITO OCHOA, These consolidated petitions seek to declare several provisions
JR., Respondent. of Republic Act (R.A.) 10175, the Cybercrime Prevention Act
of 2012, unconstitutional and void.
x-----------------------x
The Facts and the Case
G.R. No. 203515
The cybercrime law aims to regulate access to and use of the
NATIONAL PRESS CLUB OF THE PHILIPPINES, INC. cyberspace. Using his laptop or computer, a person can
represented by BENNY D. ANTIPORDA in his capacity as connect to the internet, a system that links him to other
President and in his personal capacity, Petitioner, computers and enable him, among other things, to:
vs.
OFFICE OF THE PRESIDENT, PRES. BENIGNO 1. Access virtual libraries and encyclopedias for all
SIMEON AQUINO III, DEPARTMENT OF JUSTICE, kinds of information that he needs for research,
DEPARTMENT OF INTERIOR AND LOCAL study, amusement, upliftment, or pure curiosity;
GOVERNMENT, PHILIPPINE NATIONAL POLICE,
NATIONAL BUREAU OF INVESTIGATION, 2. Post billboard-like notices or messages, including
DEPARTMENT OF BUDGET AND MANAGEMENT pictures and videos, for the general public or for
AND ALL OTHER GOVERNMENT special audiences like associates, classmates, or
INSTRUMENTALITIES WHO HAVE HANDS IN THE friends and read postings from them;
PASSAGE AND/OR IMPLEMENTATION OF
REPUBLIC ACT 10175, Respondents. 3. Advertise and promote goods or services and make
purchases and payments;
x-----------------------x
4. Inquire and do business with institutional entities
G.R. No. 203518 like government agencies, banks, stock exchanges,
trade houses, credit card companies, public utilities,
PHILIPPINE INTERNET FREEDOM ALLIANCE, hospitals, and schools; and
composed of DAKILA-PHILIPPINE COLLECTIVE FOR
MODERN HEROISM, represented by Leni Velasco, 5. Communicate in writing or by voice with any
PARTIDO LAKAS NG MASA, represented by Cesar S. person through his e-mail address or telephone.
Melencio, FRANCIS EUSTON R. ACERO, MARLON
ANTHONY ROMASANTA TONSON, TEODORO A. This is cyberspace, a system that accommodates millions and
CASIÑO, NOEMI LARDIZABAL-DADO, IMELDA billions of simultaneous and ongoing individual accesses to
ORALES, JAMES MATTHEW B. MIRAFLOR, JUAN and uses of the internet. The cyberspace is a boon to the need
G.M. RAGRAGIO, MARIA FATIMA A. VILLENA, of the current generation for greater information and facility of
MEDARDO M. MANRIQUE, JR., LAUREN DADO, communication. But all is not well with the system since it
MARCO VITTORIA TOBIAS SUMAYAO, IRENE could not filter out a number of persons of ill will who would
CHIA, ERASTUS NOEL T. DELIZO, CRISTINA want to use cyberspace technology for mischiefs and crimes.
SARAH E. OSORIO, ROMEO FACTOLERIN, NAOMI One of them can, for instance, avail himself of the system to
L. TUPAS, KENNETH KENG, ANA ALEXANDRA C. unjustly ruin the reputation of another or bully the latter by
CASTRO, Petitioners,
posting defamatory statements against him that people can
vs. read.
THE EXECUTIVE SECRETARY, THE SECRETARY
OF JUSTICE, THE SECRETARY OF INTERIOR AND
LOCAL GOVERNMENT, THE SECRETARY OF And because linking with the internet opens up a user to
SCIENCE AND TECHNOLOGY, THE EXECUTIVE communications from others, the ill-motivated can use the
DIRECTOR OF THE INFORMATION TECHNOLOGY cyberspace for committing theft by hacking into or
OFFICE, THE DIRECTOR OF THE NATIONAL surreptitiously accessing his bank account or credit card or
BUREAU OF INVESTIGATION, THE CHIEF, defrauding him through false representations. The wicked can
64
use the cyberspace, too, for illicit trafficking in sex or for j. Section 6 on the Penalty of One Degree Higher;
exposing to pornography guileless children who have access
to the internet. For this reason, the government has a k. Section 7 on the Prosecution under both the
legitimate right to regulate the use of cyberspace and contain Revised Penal Code (RPC) and R.A. 10175;
and punish wrongdoings.
l. Section 8 on Penalties;
Notably, there are also those who would want, like vandals, to
wreak or cause havoc to the computer systems and networks m. Section 12 on Real-Time Collection of Traffic
of indispensable or highly useful institutions as well as to the
Data;
laptop or computer programs and memories of innocent
individuals. They accomplish this by sending electronic
viruses or virtual dynamites that destroy those computer n. Section 13 on Preservation of Computer Data;
systems, networks, programs, and memories. The government
certainly has the duty and the right to prevent these o. Section 14 on Disclosure of Computer Data;
tomfooleries from happening and punish their perpetrators,
hence the Cybercrime Prevention Act. p. Section 15 on Search, Seizure and Examination of
Computer Data;
But petitioners claim that the means adopted by the
cybercrime law for regulating undesirable cyberspace q. Section 17 on Destruction of Computer Data;
activities violate certain of their constitutional rights. The
government of course asserts that the law merely seeks to r. Section 19 on Restricting or Blocking Access to
reasonably put order into cyberspace activities, punish Computer Data;
wrongdoings, and prevent hurtful attacks on the system.
s. Section 20 on Obstruction of Justice;
Pending hearing and adjudication of the issues presented in
these cases, on February 5, 2013 the Court extended the
t. Section 24 on Cybercrime Investigation and
original 120-day temporary restraining order (TRO) that it
Coordinating Center (CICC); and
earlier issued on October 9, 2012, enjoining respondent
government agencies from implementing the cybercrime law
until further orders. u. Section 26(a) on CICC’s Powers and Functions.

The Issues Presented Some petitioners also raise the constitutionality of related
Articles 353, 354, 361, and 362 of the RPC on the crime of
libel.
Petitioners challenge the constitutionality of the following
provisions of the cybercrime law that regard certain acts as
crimes and impose penalties for their commission as well as The Rulings of the Court
provisions that would enable the government to track down
and penalize violators. These provisions are: Section 4(a)(1)

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

b. Section 4(a)(3) on Data Interference; Section 4. Cybercrime Offenses. – The following acts
constitute the offense of cybercrime punishable under this Act:
c. Section 4(a)(6) on Cyber-squatting;
(a) Offenses against the confidentiality, integrity and
d. Section 4(b)(3) on Identity Theft; availability of computer data and systems:

e. Section 4(c)(1) on Cybersex; (1) Illegal Access. – The access to the whole or any part of a
computer system without right.
f. Section 4(c)(2) on Child Pornography;
Petitioners contend that Section 4(a)(1) fails to meet the strict
scrutiny standard required of laws that interfere with the
g. Section 4(c)(3) on Unsolicited Commercial
fundamental rights of the people and should thus be struck
Communications;
down.
h. Section 4(c)(4) on Libel;
The Court has in a way found the strict scrutiny standard, an
American constitutional construct,1 useful in determining the
i. Section 5 on Aiding or Abetting and Attempt in the constitutionality of laws that tend to target a class of things or
Commission of Cybercrimes;
65
persons. According to this standard, a legislative classification Under the overbreadth doctrine, a proper governmental
that impermissibly interferes with the exercise of fundamental purpose, constitutionally subject to state regulation, may not
right or operates to the peculiar class disadvantage of a suspect be achieved by means that unnecessarily sweep its subject
class is presumed unconstitutional. The burden is on the broadly, thereby invading the area of protected freedoms.7 But
government to prove that the classification is necessary to Section 4(a)(3) does not encroach on these freedoms at all. It
achieve a compelling state interest and that it is the least simply punishes what essentially is a form of vandalism,8 the
restrictive means to protect such interest.2 Later, the strict act of willfully destroying without right the things that belong
scrutiny standard was used to assess the validity of laws to others, in this case their computer data, electronic
dealing with the regulation of speech, gender, or race as well document, or electronic data message. Such act has no
as other fundamental rights, as expansion from its earlier connection to guaranteed freedoms. There is no freedom to
applications to equal protection.3 destroy other people’s computer systems and private
documents.
In the cases before it, the Court finds nothing in Section
4(a)(1) that calls for the application of the strict scrutiny All penal laws, like the cybercrime law, have of course an
standard since no fundamental freedom, like speech, is inherent chilling effect, an in terrorem effect9 or the fear of
involved in punishing what is essentially a condemnable act – possible prosecution that hangs on the heads of citizens who
accessing the computer system of another without right. It is a are minded to step beyond the boundaries of what is proper.
universally condemned conduct.4 But to prevent the State from legislating criminal laws because
they instill such kind of fear is to render the state powerless in
Petitioners of course fear that this section will jeopardize the addressing and penalizing socially harmful conduct.10 Here,
work of ethical hackers, professionals who employ tools and the chilling effect that results in paralysis is an illusion since
techniques used by criminal hackers but would neither damage Section 4(a)(3) clearly describes the evil that it seeks to punish
the target systems nor steal information. Ethical hackers and creates no tendency to intimidate the free exercise of
evaluate the target system’s security and report back to the one’s constitutional rights.
owners the vulnerabilities they found in it and give
instructions for how these can be remedied. Ethical hackers Besides, the overbreadth challenge places on petitioners the
are the equivalent of independent auditors who come into an heavy burden of proving that under no set of circumstances
organization to verify its bookkeeping records. 5 will Section 4(a)(3) be valid.11 Petitioner has failed to
discharge this burden.
Besides, a client’s engagement of an ethical hacker requires an
agreement between them as to the extent of the search, the Section 4(a)(6) of the Cybercrime Law
methods to be used, and the systems to be tested. This is
referred to as the "get out of jail free card." 6Since the ethical Section 4(a)(6) provides:
hacker does his job with prior permission from the client, such
permission would insulate him from the coverage of Section Section 4. Cybercrime Offenses. – The following acts
4(a)(1).
constitute the offense of cybercrime punishable under this Act:

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


(a) Offenses against the confidentiality, integrity and
availability of computer data and systems:
Section 4(a)(3) provides:
xxxx
Section 4. Cybercrime Offenses. – The following acts
constitute the offense of cybercrime punishable under this Act: (6) Cyber-squatting. – The acquisition of domain name over
the internet in bad faith to profit, mislead, destroy the
(a) Offenses against the confidentiality, integrity and reputation, and deprive others from registering the same, if
availability of computer data and systems: such a domain name is:

xxxx (i) Similar, identical, or confusingly similar to an


existing trademark registered with the appropriate
(3) Data Interference. – The intentional or reckless alteration, government agency at the time of the domain name
damaging, deletion or deterioration of computer data, registration;
electronic document, or electronic data message, without right,
including the introduction or transmission of viruses. (ii) Identical or in any way similar with the name of a
person other than the registrant, in case of a personal
Petitioners claim that Section 4(a)(3) suffers from overbreadth name; and
in that, while it seeks to discourage data interference, it
intrudes into the area of protected speech and expression, (iii) Acquired without right or with intellectual
creating a chilling and deterrent effect on these guaranteed property interests in it.
freedoms.
66
Petitioners claim that Section 4(a)(6) or cyber-squatting of Habeas Corpus of Sabio v. Senator Gordon" 15 the relevance
violates the equal protection clause12 in that, not being of these zones to the right to privacy:
narrowly tailored, it will cause a user using his real name to
suffer the same fate as those who use aliases or take the name Zones of privacy are recognized and protected in our laws.
of another in satire, parody, or any other literary device. For Within these zones, any form of intrusion is impermissible
example, supposing there exists a well known billionaire- unless excused by law and in accordance with customary legal
philanthropist named "Julio Gandolfo," the law would punish process. The meticulous regard we accord to these zones
for cyber-squatting both the person who registers such name arises not only from our conviction that the right to privacy is
because he claims it to be his pseudo-name and another who a "constitutional right" and "the right most valued by civilized
registers the name because it happens to be his real name. men," but also from our adherence to the Universal
Petitioners claim that, considering the substantial distinction Declaration of Human Rights which mandates that, "no one
between the two, the law should recognize the difference. shall be subjected to arbitrary interference with his privacy"
and "everyone has the right to the protection of the law against
But there is no real difference whether he uses "Julio such interference or attacks."
Gandolfo" which happens to be his real name or use it as a
pseudo-name for it is the evil purpose for which he uses the Two constitutional guarantees create these zones of privacy:
name that the law condemns. The law is reasonable in (a) the right against unreasonable searches16 and seizures,
penalizing him for acquiring the domain name in bad faith to which is the basis of the right to be let alone, and (b) the right
profit, mislead, destroy reputation, or deprive others who are to privacy of communication and correspondence.17 In
not ill-motivated of the rightful opportunity of registering the assessing the challenge that the State has impermissibly
same. The challenge to the constitutionality of Section 4(a)(6) intruded into these zones of privacy, a court must determine
on ground of denial of equal protection is baseless. whether a person has exhibited a reasonable expectation of
privacy and, if so, whether that expectation has been violated
Section 4(b)(3) of the Cybercrime Law by unreasonable government intrusion.18

Section 4(b)(3) provides: The usual identifying information regarding a person includes
his name, his citizenship, his residence address, his contact
Section 4. Cybercrime Offenses. – The following acts number, his place and date of birth, the name of his spouse if
constitute the offense of cybercrime punishable under this Act: any, his occupation, and similar data.19 The law punishes those
who acquire or use such identifying information without right,
implicitly to cause damage. Petitioners simply fail to show
xxxx
how government effort to curb computer-related identity theft
violates the right to privacy and correspondence as well as the
b) Computer-related Offenses: right to due process of law.

xxxx Also, the charge of invalidity of this section based on the


overbreadth doctrine will not hold water since the specific
(3) Computer-related Identity Theft. – The intentional conducts proscribed do not intrude into guaranteed freedoms
acquisition, use, misuse, transfer, possession, alteration, or like speech. Clearly, what this section regulates are specific
deletion of identifying information belonging to another, actions: the acquisition, use, misuse or deletion of personal
whether natural or juridical, without right: Provided: that if no identifying data of another. There is no fundamental right to
damage has yet been caused, the penalty imposable shall be acquire another’s personal data.
one (1) degree lower.
Further, petitioners fear that Section 4(b)(3) violates the
Petitioners claim that Section 4(b)(3) violates the freedom of the press in that journalists would be hindered
constitutional rights to due process and to privacy and from accessing the unrestricted user account of a person in the
correspondence, and transgresses the freedom of the press. news to secure information about him that could be published.
But this is not the essence of identity theft that the law seeks to
The right to privacy, or the right to be let alone, was prohibit and punish. Evidently, the theft of identity
institutionalized in the 1987 Constitution as a facet of the right information must be intended for an illegitimate purpose.
protected by the guarantee against unreasonable searches and Moreover, acquiring and disseminating information made
seizures.13 But the Court acknowledged its existence as early public by the user himself cannot be regarded as a form of
as 1968 in Morfe v. Mutuc,14 it ruled that the right to privacy theft.
exists independently of its identification with liberty; it is in
itself fully deserving of constitutional protection. The Court has defined intent to gain as an internal act which
can be established through the overt acts of the offender, and it
Relevant to any discussion of the right to privacy is the may be presumed from the furtive taking of useful property
concept known as the "Zones of Privacy." The Court pertaining to another, unless special circumstances reveal a
explained in "In the Matter of the Petition for Issuance of Writ different intent on the part of the perpetrator.20 As such, the
67
press, whether in quest of news reporting or social than satisfy the market for violence, lust, or
investigation, has nothing to fear since a special circumstance pornography.29 The Court weighed the property rights of
is present to negate intent to gain which is required by this individuals against the public welfare. Private property, if
Section. containing pornographic materials, may be forfeited and
destroyed. Likewise, engaging in sexual acts privately through
Section 4(c)(1) of the Cybercrime Law internet connection, perceived by some as a right, has to be
balanced with the mandate of the State to eradicate white
Section 4(c)(1) provides: slavery and the exploitation of women.

In any event, consenting adults are protected by the wealth of


Sec. 4. Cybercrime Offenses.– The following acts constitute
jurisprudence delineating the bounds of obscenity.30 The Court
the offense of cybercrime punishable under this Act:
will not declare Section 4(c)(1) unconstitutional where it
stands a construction that makes it apply only to persons
xxxx engaged in the business of maintaining, controlling, or
operating, directly or indirectly, the lascivious exhibition of
(c) Content-related Offenses: sexual organs or sexual activity with the aid of a computer
system as Congress has intended.
(1) Cybersex.– The willful engagement, maintenance, control,
or operation, directly or indirectly, of any lascivious exhibition Section 4(c)(2) of the Cybercrime Law
of sexual organs or sexual activity, with the aid of a computer
system, for favor or consideration. Section 4(c)(2) provides:

Petitioners claim that the above violates the freedom of Sec. 4. Cybercrime Offenses. – The following acts constitute
expression clause of the Constitution.21 They express fear that the offense of cybercrime punishable under this Act:
private communications of sexual character between husband
and wife or consenting adults, which are not regarded as
xxxx
crimes under the penal code, would now be regarded as crimes
when done "for favor" in cyberspace. In common usage, the
term "favor" includes "gracious kindness," "a special privilege (c) Content-related Offenses:
or right granted or conceded," or "a token of love (as a ribbon)
usually worn conspicuously."22 This meaning given to the xxxx
term "favor" embraces socially tolerated trysts. The law as
written would invite law enforcement agencies into the (2) Child Pornography. — The unlawful or prohibited acts
bedrooms of married couples or consenting individuals. defined and punishable by Republic Act No. 9775 or the Anti-
Child Pornography Act of 2009, committed through a
But the deliberations of the Bicameral Committee of Congress computer system: Provided, That the penalty to be imposed
on this section of the Cybercrime Prevention Act give a proper shall be (1) one degree higher than that provided for in
perspective on the issue. These deliberations show a lack of Republic Act No. 9775.
intent to penalize a "private showing x x x between and among
two private persons x x x although that may be a form of It seems that the above merely expands the scope of the Anti-
obscenity to some."23 The understanding of those who drew up Child Pornography Act of 200931 (ACPA) to cover identical
the cybercrime law is that the element of "engaging in a activities in cyberspace. In theory, nothing prevents the
business" is necessary to constitute the illegal cybersex.24 The government from invoking the ACPA when prosecuting
Act actually seeks to punish cyber prostitution, white slave persons who commit child pornography using a computer
trade, and pornography for favor and consideration. This system. Actually, ACPA’s definition of child pornography
includes interactive prostitution and pornography, i.e., by already embraces the use of "electronic, mechanical, digital,
webcam.25 optical, magnetic or any other means." Notably, no one has
questioned this ACPA provision.
The subject of Section 4(c)(1)—lascivious exhibition of sexual
organs or sexual activity—is not novel. Article 201 of the RPC Of course, the law makes the penalty higher by one degree
punishes "obscene publications and exhibitions and indecent when the crime is committed in cyberspace. But no one can
shows." The Anti-Trafficking in Persons Act of 2003 complain since the intensity or duration of penalty is a
penalizes those who "maintain or hire a person to engage in legislative prerogative and there is rational basis for such
prostitution or pornography." 26 The law defines prostitution as higher penalty.32 The potential for uncontrolled proliferation
any act, transaction, scheme, or design involving the use of a of a particular piece of child pornography when uploaded in
person by another, for sexual intercourse or lascivious conduct the cyberspace is incalculable.
in exchange for money, profit, or any other consideration.27
Petitioners point out that the provision of ACPA that makes it
The case of Nogales v. People28 shows the extent to which unlawful for any person to "produce, direct, manufacture or
the State can regulate materials that serve no other purpose
68
create any form of child pornography"33 clearly relates to the The above penalizes the transmission of unsolicited
prosecution of persons who aid and abet the core offenses that commercial communications, also known as "spam." The term
ACPA seeks to punish.34 Petitioners are wary that a person "spam" surfaced in early internet chat rooms and interactive
who merely doodles on paper and imagines a sexual abuse of a fantasy games. One who repeats the same sentence or
16-year-old is not criminally liable for producing child comment was said to be making a "spam." The term referred
pornography but one who formulates the idea on his laptop to a Monty Python’s Flying Circus scene in which actors
would be. Further, if the author bounces off his ideas on would keep saying "Spam, Spam, Spam, and Spam" when
Twitter, anyone who replies to the tweet could be considered reading options from a menu.35
aiding and abetting a cybercrime.
The Government, represented by the Solicitor General, points
The question of aiding and abetting the offense by simply out that unsolicited commercial communications or spams are
commenting on it will be discussed elsewhere below. For now a nuisance that wastes the storage and network capacities of
the Court must hold that the constitutionality of Section internet service providers, reduces the efficiency of commerce
4(c)(2) is not successfully challenged. and technology, and interferes with the owner’s peaceful
enjoyment of his property. Transmitting spams amounts to
Section 4(c)(3) of the Cybercrime Law trespass to one’s privacy since the person sending out spams
enters the recipient’s domain without prior permission. The
OSG contends that commercial speech enjoys less protection
Section 4(c)(3) provides:
in law.
Sec. 4. Cybercrime Offenses. – The following acts constitute
But, firstly, the government presents no basis for holding that
the offense of cybercrime punishable under this Act:
unsolicited electronic ads reduce the "efficiency of
computers." Secondly, people, before the arrival of the age of
xxxx computers, have already been receiving such unsolicited ads
by mail. These have never been outlawed as nuisance since
(c) Content-related Offenses: people might have interest in such ads. What matters is that
the recipient has the option of not opening or reading these
xxxx mail ads. That is true with spams. Their recipients always have
the option to delete or not to read them.
(3) Unsolicited Commercial Communications. – The
transmission of commercial electronic communication with To prohibit the transmission of unsolicited ads would deny a
the use of computer system which seeks to advertise, sell, or person the right to read his emails, even unsolicited
offer for sale products and services are prohibited unless: commercial ads addressed to him. Commercial speech is a
separate category of speech which is not accorded the same
(i) There is prior affirmative consent from the level of protection as that given to other constitutionally
recipient; or guaranteed forms of expression but is nonetheless entitled to
protection.36 The State cannot rob him of this right without
violating the constitutionally guaranteed freedom of
(ii) The primary intent of the communication is for
expression. Unsolicited advertisements are legitimate forms of
service and/or administrative announcements from
expression.
the sender to its existing users, subscribers or
customers; or
Articles 353, 354, and 355 of the Penal Code
(iii) The following conditions are present:
Section 4(c)(4) of the Cyber Crime Law
(aa) The commercial electronic
communication contains a simple, valid, and Petitioners dispute the constitutionality of both the penal code
reliable way for the recipient to reject provisions on libel as well as Section 4(c)(4) of the
receipt of further commercial electronic Cybercrime Prevention Act on cyberlibel.
messages (opt-out) from the same source;
The RPC provisions on libel read:
(bb) The commercial electronic
communication does not purposely disguise Art. 353. Definition of libel. — A libel is public and malicious
the source of the electronic message; and imputation of a crime, or of a vice or defect, real or imaginary,
or any act, omission, condition, status, or circumstance
(cc) The commercial electronic tending to cause the dishonor, discredit, or contempt of a
communication does not purposely include natural or juridical person, or to blacken the memory of one
misleading information in any part of the who is dead.
message in order to induce the recipients to
read the message.
69
Art. 354. Requirement for publicity. — Every defamatory overturned as the Court has done in Fermin v. People39 even
imputation is presumed to be malicious, even if it be true, if no where the offended parties happened to be public figures.
good intention and justifiable motive for making it is shown,
except in the following cases: The elements of libel are: (a) the allegation of a discreditable
act or condition concerning another; (b) publication of the
1. A private communication made by any person to charge; (c) identity of the person defamed; and (d) existence
another in the performance of any legal, moral or of malice.40
social duty; and
There is "actual malice" or malice in fact41 when the offender
2. A fair and true report, made in good faith, without makes the defamatory statement with the knowledge that it is
any comments or remarks, of any judicial, legislative false or with reckless disregard of whether it was false or
or other official proceedings which are not of not.42 The reckless disregard standard used here requires a
confidential nature, or of any statement, report or high degree of awareness of probable falsity. There must be
speech delivered in said proceedings, or of any other sufficient evidence to permit the conclusion that the accused in
act performed by public officers in the exercise of fact entertained serious doubts as to the truth of the statement
their functions. he published. Gross or even extreme negligence is not
sufficient to establish actual malice.43
Art. 355. Libel means by writings or similar means. — A libel
committed by means of writing, printing, lithography, The prosecution bears the burden of proving the presence of
engraving, radio, phonograph, painting, theatrical exhibition, actual malice in instances where such element is required to
cinematographic exhibition, or any similar means, shall be establish guilt. The defense of absence of actual malice, even
punished by prision correccional in its minimum and medium when the statement turns out to be false, is available where the
periods or a fine ranging from 200 to 6,000 pesos, or both, in offended party is a public official or a public figure, as in the
addition to the civil action which may be brought by the cases of Vasquez (a barangay official) and Borjal (the
offended party. Executive Director, First National Conference on Land
Transportation). Since the penal code and implicitly, the
The libel provision of the cybercrime law, on the other hand, cybercrime law, mainly target libel against private persons, the
merely incorporates to form part of it the provisions of the Court recognizes that these laws imply a stricter standard of
RPC on libel. Thus Section 4(c)(4) reads: "malice" to convict the author of a defamatory statement
where the offended party is a public figure. Society’s interest
and the maintenance of good government demand a full
Sec. 4. Cybercrime Offenses. — The following acts constitute
discussion of public affairs.44
the offense of cybercrime punishable under this Act:

xxxx Parenthetically, the Court cannot accept the proposition that its
ruling in Fermin disregarded the higher standard of actual
malice or malice in fact when it found Cristinelli Fermin
(c) Content-related Offenses: guilty of committing libel against complainants who were
public figures. Actually, the Court found the presence of
xxxx malice in fact in that case. Thus:

(4) Libel. — The unlawful or prohibited acts of libel as It can be gleaned from her testimony that petitioner had the
defined in Article 355 of the Revised Penal Code, as amended, motive to make defamatory imputations against complainants.
committed through a computer system or any other similar Thus, petitioner cannot, by simply making a general denial,
means which may be devised in the future. convince us that there was no malice on her part. Verily, not
only was there malice in law, the article being malicious in
Petitioners lament that libel provisions of the penal code37 and, itself, but there was also malice in fact, as there was motive to
in effect, the libel provisions of the cybercrime law carry with talk ill against complainants during the electoral campaign.
them the requirement of "presumed malice" even when the (Emphasis ours)
latest jurisprudence already replaces it with the higher
standard of "actual malice" as a basis for Indeed, the Court took into account the relatively wide leeway
conviction.38 Petitioners argue that inferring "presumed given to utterances against public figures in the above case,
malice" from the accused’s defamatory statement by virtue of cinema and television personalities, when it modified the
Article 354 of the penal code infringes on his constitutionally penalty of imprisonment to just a fine ofP6,000.00.
guaranteed freedom of expression.
But, where the offended party is a private individual, the
Petitioners would go further. They contend that the laws on prosecution need not prove the presence of malice. The law
libel should be stricken down as unconstitutional for otherwise explicitly presumes its existence (malice in law) from the
good jurisprudence requiring "actual malice" could easily be defamatory character of the assailed statement.45For his

70
defense, the accused must show that he has a justifiable reason The internet is characterized as encouraging a freewheeling,
for the defamatory statement even if it was in fact true. 46 anything-goes writing style.50 In a sense, they are a world
apart in terms of quickness of the reader’s reaction to
Petitioners peddle the view that both the penal code and the defamatory statements posted in cyberspace, facilitated by
Cybercrime Prevention Act violate the country’s obligations one-click reply options offered by the networking site as well
under the International Covenant of Civil and Political Rights as by the speed with which such reactions are disseminated
(ICCPR). They point out that in Adonis v. Republic of the down the line to other internet users. Whether these reactions
Philippines,47 the United Nations Human Rights Committee to defamatory statement posted on the internet constitute
(UNHRC) cited its General Comment 34 to the effect that aiding and abetting libel, acts that Section 5 of the cybercrime
penal defamation laws should include the defense of truth. law punishes, is another matter that the Court will deal with
next in relation to Section 5 of the law.
But General Comment 34 does not say that the truth of the
defamatory statement should constitute an all-encompassing Section 5 of the Cybercrime Law
defense. As it happens, Article 361 recognizes truth as a
defense but under the condition that the accused has been Section 5 provides:
prompted in making the statement by good motives and for
justifiable ends. Thus: Sec. 5. Other Offenses. — The following acts shall also
constitute an offense:
Art. 361. Proof of the truth. — In every criminal prosecution
for libel, the truth may be given in evidence to the court and if (a) Aiding or Abetting in the Commission of
it appears that the matter charged as libelous is true, and, Cybercrime. – Any person who willfully abets or aids
moreover, that it was published with good motives and for in the commission of any of the offenses enumerated
justifiable ends, the defendants shall be acquitted. in this Act shall be held liable.

Proof of the truth of an imputation of an act or omission not (b) Attempt in the Commission of Cybercrime. —
constituting a crime shall not be admitted, unless the Any person who willfully attempts to commit any of
imputation shall have been made against Government the offenses enumerated in this Act shall be held
employees with respect to facts related to the discharge of liable.
their official duties.
Petitioners assail the constitutionality of Section 5 that renders
In such cases if the defendant proves the truth of the criminally liable any person who willfully abets or aids in the
imputation made by him, he shall be acquitted. commission or attempts to commit any of the offenses
enumerated as cybercrimes. It suffers from overbreadth,
Besides, the UNHRC did not actually enjoin the Philippines, creating a chilling and deterrent effect on protected
as petitioners urge, to decriminalize libel. It simply suggested expression.
that defamation laws be crafted with care to ensure that they
do not stifle freedom of expression.48Indeed, the ICCPR states The Solicitor General contends, however, that the current
that although everyone should enjoy freedom of expression, its body of jurisprudence and laws on aiding and abetting
exercise carries with it special duties and responsibilities. Free sufficiently protects the freedom of expression of "netizens,"
speech is not absolute. It is subject to certain restrictions, as the multitude that avail themselves of the services of the
may be necessary and as may be provided by law.49 internet. He points out that existing laws and jurisprudence
sufficiently delineate the meaning of "aiding or abetting" a
The Court agrees with the Solicitor General that libel is not a crime as to protect the innocent. The Solicitor General argues
constitutionally protected speech and that the government has that plain, ordinary, and common usage is at times sufficient
an obligation to protect private individuals from defamation. to guide law enforcement agencies in enforcing the law.51 The
Indeed, cyberlibel is actually not a new crime since Article legislature is not required to define every single word
353, in relation to Article 355 of the penal code, already contained in the laws they craft.
punishes it. In effect, Section 4(c)(4) above merely affirms
that online defamation constitutes "similar means" for Aiding or abetting has of course well-defined meaning and
committing libel. application in existing laws. When a person aids or abets
another in destroying a forest,52 smuggling merchandise into
But the Court’s acquiescence goes only insofar as the the country,53 or interfering in the peaceful picketing of
cybercrime law penalizes the author of the libelous statement laborers,54 his action is essentially physical and so is
or article. Cyberlibel brings with it certain intricacies, unheard susceptible to easy assessment as criminal in character. These
of when the penal code provisions on libel were enacted. The forms of aiding or abetting lend themselves to the tests of
culture associated with internet media is distinct from that of common sense and human experience.
print.
But, when it comes to certain cybercrimes, the waters are
muddier and the line of sight is somewhat blurred. The idea of
71
"aiding or abetting" wrongdoings online threatens the She needs the internet to access her blog so she subscribes to
heretofore popular and unchallenged dogmas of cyberspace Sun Broadband (Internet Service Provider).
use.
One day, Maria posts on her internet account the statement
According to the 2011 Southeast Asia Digital Consumer that a certain married public official has an illicit affair with a
Report, 33% of Filipinos have accessed the internet within a movie star. Linda, one of Maria’s friends who sees this post,
year, translating to about 31 million users.55 Based on a recent comments online, "Yes, this is so true! They are so immoral."
survey, the Philippines ranks 6th in the top 10 most engaged Maria’s original post is then multiplied by her friends and the
countries for social networking.56 Social networking sites latter’s friends, and down the line to friends of friends almost
build social relations among people who, for example, share ad infinitum. Nena, who is a stranger to both Maria and Linda,
interests, activities, backgrounds, or real-life connections.57 comes across this blog, finds it interesting and so shares the
link to this apparently defamatory blog on her Twitter account.
Two of the most popular of these sites are Facebook and Nena’s "Followers" then "Retweet" the link to that blog site.
Twitter. As of late 2012, 1.2 billion people with shared
interests use Facebook to get in touch.58 Users register at this Pamela, a Twitter user, stumbles upon a random person’s
site, create a personal profile or an open book of who they are, "Retweet" of Nena’s original tweet and posts this on her
add other users as friends, and exchange messages, including Facebook account. Immediately, Pamela’s Facebook Friends
automatic notifications when they update their profile.59 A start Liking and making Comments on the assailed posting. A
user can post a statement, a photo, or a video on Facebook, lot of them even press the Share button, resulting in the further
which can be made visible to anyone, depending on the user’s spread of the original posting into tens, hundreds, thousands,
privacy settings. and greater postings.

If the post is made available to the public, meaning to The question is: are online postings such as "Liking" an
everyone and not only to his friends, anyone on Facebook can openly defamatory statement, "Commenting" on it, or
react to the posting, clicking any of several buttons of "Sharing" it with others, to be regarded as "aiding or
preferences on the program’s screen such as "Like," abetting?" In libel in the physical world, if Nestor places on
"Comment," or "Share." "Like" signifies that the reader likes the office bulletin board a small poster that says, "Armand is a
the posting while "Comment" enables him to post online his thief!," he could certainly be charged with libel. If Roger,
feelings or views about the same, such as "This is great!" seeing the poster, writes on it, "I like this!," that could not be
When a Facebook user "Shares" a posting, the original libel since he did not author the poster. If Arthur, passing by
"posting" will appear on his own Facebook profile, and noticing the poster, writes on it, "Correct!," would that be
consequently making it visible to his down-line Facebook libel? No, for he merely expresses agreement with the
Friends. statement on the poster. He still is not its author. Besides, it is
not clear if aiding or abetting libel in the physical world is a
Twitter, on the other hand, is an internet social networking and crime.
microblogging service that enables its users to send and read
short text-based messages of up to 140 characters. These are But suppose Nestor posts the blog, "Armand is a thief!" on a
known as "Tweets." Microblogging is the practice of posting social networking site. Would a reader and his Friends or
small pieces of digital content—which could be in the form of Followers, availing themselves of any of the "Like,"
text, pictures, links, short videos, or other media—on the "Comment," and "Share" reactions, be guilty of aiding or
internet. Instead of friends, a Twitter user has "Followers," abetting libel? And, in the complex world of cyberspace
those who subscribe to this particular user’s posts, enabling expressions of thoughts, when will one be liable for aiding or
them to read the same, and "Following," those whom this abetting cybercrimes? Where is the venue of the crime?
particular user is subscribed to, enabling him to read their
posts. Like Facebook, a Twitter user can make his tweets Except for the original author of the assailed statement, the
available only to his Followers, or to the general public. If a rest (those who pressed Like, Comment and Share) are
post is available to the public, any Twitter user can "Retweet" essentially knee-jerk sentiments of readers who may think
a given posting. Retweeting is just reposting or republishing little or haphazardly of their response to the original posting.
another person’s tweet without the need of copying and Will they be liable for aiding or abetting? And, considering the
pasting it. inherent impossibility of joining hundreds or thousands of
responding "Friends" or "Followers" in the criminal charge to
In the cyberworld, there are many actors: a) the blogger who be filed in court, who will make a choice as to who should go
originates the assailed statement; b) the blog service provider to jail for the outbreak of the challenged posting?
like Yahoo; c) the internet service provider like PLDT, Smart,
Globe, or Sun; d) the internet café that may have provided the The old parameters for enforcing the traditional form of libel
computer used for posting the blog; e) the person who makes a would be a square peg in a round hole when applied to
favorable comment on the blog; and f) the person who posts a cyberspace libel. Unless the legislature crafts a cyber libel law
link to the blog site.60 Now, suppose Maria (a blogger) that takes into account its unique circumstances and culture,
maintains a blog on WordPress.com (blog service provider). such law will tend to create a chilling effect on the millions
72
that use this new medium of communication in violation of cyberspace communication technology to protect a person’s
their constitutionally-guaranteed right to freedom of reputation and peace of mind, cannot adopt means that will
expression. unnecessarily and broadly sweep, invading the area of
protected freedoms.62
The United States Supreme Court faced the same issue in
Reno v. American Civil Liberties Union,61 a case involving If such means are adopted, self-inhibition borne of fear of
the constitutionality of the Communications Decency Act of what sinister predicaments await internet users will suppress
1996. The law prohibited (1) the knowing transmission, by otherwise robust discussion of public issues. Democracy will
means of a telecommunications device, of be threatened and with it, all liberties. Penal laws should
provide reasonably clear guidelines for law enforcement
"obscene or indecent" communications to any recipient under officials and triers of facts to prevent arbitrary and
18 years of age; and (2) the knowing use of an interactive discriminatory enforcement.63 The terms "aiding or abetting"
computer service to send to a specific person or persons under constitute broad sweep that generates chilling effect on those
18 years of age or to display in a manner available to a person who express themselves through cyberspace posts, comments,
under 18 years of age communications that, in context, depict and other messages.64Hence, Section 5 of the cybercrime law
or describe, in terms "patently offensive" as measured by that punishes "aiding or abetting" libel on the cyberspace is a
contemporary community standards, sexual or excretory nullity.
activities or organs.
When a penal statute encroaches upon the freedom of speech,
Those who challenged the Act claim that the law violated the a facial challenge grounded on the void-for-vagueness
First Amendment’s guarantee of freedom of speech for being doctrine is acceptable. The inapplicability of the doctrine must
overbroad. The U.S. Supreme Court agreed and ruled: be carefully delineated. As Justice Antonio T. Carpio
explained in his dissent in Romualdez v. Commission on
The vagueness of the Communications Decency Act of 1996 Elections,65 "we must view these statements of the Court on
the inapplicability of the overbreadth and vagueness doctrines
(CDA), 47 U.S.C.S. §223, is a matter of special concern for
to penal statutes as appropriate only insofar as these doctrines
two reasons. First, the CDA is a content-based regulation of
are used to mount ‘facial’ challenges to penal statutes not
speech. The vagueness of such a regulation raises special U.S.
involving free speech."
Const. amend. I concerns because of its obvious chilling effect
on free speech. Second, the CDA is a criminal statute. In
addition to the opprobrium and stigma of a criminal In an "as applied" challenge, the petitioner who claims a
conviction, the CDA threatens violators with penalties violation of his constitutional right can raise any constitutional
including up to two years in prison for each act of violation. ground – absence of due process, lack of fair notice, lack of
The severity of criminal sanctions may well cause speakers to ascertainable standards, overbreadth, or vagueness. Here, one
remain silent rather than communicate even arguably unlawful can challenge the constitutionality of a statute only if he
words, ideas, and images. As a practical matter, this increased asserts a violation of his own rights. It prohibits one from
deterrent effect, coupled with the risk of discriminatory assailing the constitutionality of the statute based solely on the
enforcement of vague regulations, poses greater U.S. Const. violation of the rights of third persons not before the court.
amend. I concerns than those implicated by certain civil This rule is also known as the prohibition against third-party
regulations. standing.66

xxxx But this rule admits of exceptions. A petitioner may for


instance mount a "facial" challenge to the constitutionality of a
statute even if he claims no violation of his own rights under
The Communications Decency Act of 1996 (CDA), 47
the assailed statute where it involves free speech on grounds
U.S.C.S. § 223, presents a great threat of censoring speech
that, in fact, falls outside the statute's scope. Given the vague of overbreadth or vagueness of the statute.
contours of the coverage of the statute, it unquestionably
silences some speakers whose messages would be entitled to The rationale for this exception is to counter the "chilling
constitutional protection. That danger provides further reason effect" on protected speech that comes from statutes violating
for insisting that the statute not be overly broad. The CDA’s free speech. A person who does not know whether his speech
burden on protected speech cannot be justified if it could be constitutes a crime under an overbroad or vague law may
avoided by a more carefully drafted statute. (Emphasis ours) simply restrain himself from speaking in order to avoid being
charged of a crime. The overbroad or vague law thus chills
him into silence.67
Libel in the cyberspace can of course stain a person’s image
with just one click of the mouse. Scurrilous statements can
spread and travel fast across the globe like bad news. As already stated, the cyberspace is an incomparable,
Moreover, cyberlibel often goes hand in hand with pervasive medium of communication. It is inevitable that any
cyberbullying that oppresses the victim, his relatives, and government threat of punishment regarding certain uses of the
friends, evoking from mild to disastrous reactions. Still, a medium creates a chilling effect on the constitutionally-
governmental purpose, which seeks to regulate the use of this protected freedom of expression of the great masses that use it.
73
In this case, the particularly complex web of interaction on expression, especially since the crime of aiding or abetting
social media websites would give law enforcers such latitude ensnares all the actors in the cyberspace front in a fuzzy way.
that they could arbitrarily or selectively enforce the law. What is more, as the petitioners point out, formal crimes such
as libel are not punishable unless consummated.71 In the
Who is to decide when to prosecute persons who boost the absence of legislation tracing the interaction of netizens and
visibility of a posting on the internet by liking it? Netizens are their level of responsibility such as in other countries, Section
not given "fair notice" or warning as to what is criminal 5, in relation to Section 4(c)(4) on Libel, Section 4(c)(3) on
conduct and what is lawful conduct. When a case is filed, how Unsolicited Commercial Communications, and Section 4(c)(2)
will the court ascertain whether or not one netizen’s comment on Child Pornography, cannot stand scrutiny.
aided and abetted a cybercrime while another comment did
not? But the crime of aiding or abetting the commission of
cybercrimes under Section 5 should be permitted to apply to
Of course, if the "Comment" does not merely react to the Section 4(a)(1) on Illegal Access, Section 4(a)(2) on Illegal
original posting but creates an altogether new defamatory Interception, Section 4(a)(3) on Data Interference, Section
story against Armand like "He beats his wife and children," 4(a)(4) on System Interference, Section 4(a)(5) on Misuse of
then that should be considered an original posting published Devices, Section 4(a)(6) on Cyber-squatting, Section 4(b)(1)
on the internet. Both the penal code and the cybercrime law on Computer-related Forgery, Section 4(b)(2) on Computer-
clearly punish authors of defamatory publications. Make no related Fraud, Section 4(b)(3) on Computer-related Identity
mistake, libel destroys reputations that society values. Theft, and Section 4(c)(1) on Cybersex. None of these
Allowed to cascade in the internet, it will destroy relationships offenses borders on the exercise of the freedom of expression.
and, under certain circumstances, will generate enmity and
tension between social or economic groups, races, or religions, The crime of willfully attempting to commit any of these
exacerbating existing tension in their relationships. offenses is for the same reason not objectionable. A hacker
may for instance have done all that is necessary to illegally
In regard to the crime that targets child pornography, when access another party’s computer system but the security
"Google procures, stores, and indexes child pornography and employed by the system’s lawful owner could frustrate his
facilitates the completion of transactions involving the effort. Another hacker may have gained access to usernames
dissemination of child pornography," does this make Google and passwords of others but fail to use these because the
and its users aiders and abettors in the commission of child system supervisor is alerted.72 If Section 5 that punishes any
pornography crimes?68 Byars highlights a feature in the person who willfully attempts to commit this specific offense
American law on child pornography that the Cybercrimes law is not upheld, the owner of the username and password could
lacks—the exemption of a provider or notably a plain user of not file a complaint against him for attempted hacking. But
interactive computer service from civil liability for child this is not right. The hacker should not be freed from liability
pornography as follows: simply because of the vigilance of a lawful owner or his
supervisor.
No provider or user of an interactive computer service shall be
treated as the publisher or speaker of any information provided Petitioners of course claim that Section 5 lacks positive limits
by another information content provider and cannot be held and could cover the innocent.73 While this may be true with
civilly liable for any action voluntarily taken in good faith to respect to cybercrimes that tend to sneak past the area of free
restrict access to or availability of material that the provider or expression, any attempt to commit the other acts specified in
user considers to be obscene...whether or not such material is Section 4(a)(1), Section 4(a)(2), Section 4(a)(3), Section
constitutionally protected.69 4(a)(4), Section 4(a)(5), Section 4(a)(6), Section 4(b)(1),
Section 4(b)(2), Section 4(b)(3), and Section 4(c)(1) as well as
the actors aiding and abetting the commission of such acts can
When a person replies to a Tweet containing child
be identified with some reasonable certainty through adroit
pornography, he effectively republishes it whether wittingly or
unwittingly. Does this make him a willing accomplice to the tracking of their works. Absent concrete proof of the same, the
innocent will of course be spared.
distribution of child pornography? When a user downloads the
Facebook mobile application, the user may give consent to
Facebook to access his contact details. In this way, certain Section 6 of the Cybercrime Law
information is forwarded to third parties and unsolicited
commercial communication could be disseminated on the Section 6 provides:
basis of this information.70 As the source of this information,
is the user aiding the distribution of this communication? The Sec. 6. All crimes defined and penalized by the Revised Penal
legislature needs to address this clearly to relieve users of Code, as amended, and special laws, if committed by, through
annoying fear of possible criminal prosecution. and with the use of information and communications
technologies shall be covered by the relevant provisions of this
Section 5 with respect to Section 4(c)(4) is unconstitutional. Act: Provided, That the penalty to be imposed shall be one (1)
Its vagueness raises apprehension on the part of internet users degree higher than that provided for by the Revised Penal
because of its obvious chilling effect on the freedom of Code, as amended, and special laws, as the case may be.
74
Section 6 merely makes commission of existing crimes Sec. 8. Penalties. — Any person found guilty of any of the
through the internet a qualifying circumstance. As the punishable acts enumerated in Sections 4(a) and 4(b) of this
Solicitor General points out, there exists a substantial Act shall be punished with imprisonment of prision mayor or a
distinction between crimes committed through the use of fine of at least Two hundred thousand pesos (PhP200,000.00)
information and communications technology and similar up to a maximum amount commensurate to the damage
crimes committed using other means. In using the technology incurred or both.
in question, the offender often evades identification and is able
to reach far more victims or cause greater harm. The Any person found guilty of the punishable act under Section
distinction, therefore, creates a basis for higher penalties for 4(a)(5) shall be punished with imprisonment of prision mayor
cybercrimes. or a fine of not more than Five hundred thousand pesos
(PhP500,000.00) or both.
Section 7 of the Cybercrime Law
If punishable acts in Section 4(a) are committed against
Section 7 provides: critical infrastructure, the penalty of reclusion temporal or a
fine of at least Five hundred thousand pesos (PhP500,000.00)
Sec. 7. Liability under Other Laws. — A prosecution under up to maximum amount commensurate to the damage incurred
this Act shall be without prejudice to any liability for violation or both, shall be imposed.
of any provision of the Revised Penal Code, as amended, or
special laws. Any person found guilty of any of the punishable acts
enumerated in Section 4(c)(1) of this Act shall be punished
The Solicitor General points out that Section 7 merely with imprisonment of prision mayor or a fine of at least Two
expresses the settled doctrine that a single set of acts may be hundred thousand pesos (PhP200,000.00) but not exceeding
prosecuted and penalized simultaneously under two laws, a One million pesos (PhP1,000,000.00) or both.
special law and the Revised Penal Code. When two different
laws define two crimes, prior jeopardy as to one does not bar Any person found guilty of any of the punishable acts
prosecution of the other although both offenses arise from the enumerated in Section 4(c)(2) of this Act shall be punished
same fact, if each crime involves some important act which is with the penalties as enumerated in Republic Act No. 9775 or
not an essential element of the other.74 With the exception of the "Anti-Child Pornography Act of 2009:" Provided, That the
the crimes of online libel and online child pornography, the penalty to be imposed shall be one (1) degree higher than that
Court would rather leave the determination of the correct provided for in Republic Act No. 9775, if committed through
application of Section 7 to actual cases. a computer system.

Online libel is different. There should be no question that if Any person found guilty of any of the punishable acts
the published material on print, said to be libelous, is again enumerated in Section 4(c)(3) shall be punished with
posted online or vice versa, that identical material cannot be imprisonment of arresto mayor or a fine of at least Fifty
the subject of two separate libels. The two offenses, one a thousand pesos (PhP50,000.00) but not exceeding Two
violation of Article 353 of the Revised Penal Code and the hundred fifty thousand pesos (PhP250,000.00) or both.
other a violation of Section 4(c)(4) of R.A. 10175 involve
essentially the same elements and are in fact one and the same Any person found guilty of any of the punishable acts
offense. Indeed, the OSG itself claims that online libel under enumerated in Section 5 shall be punished with imprisonment
Section 4(c)(4) is not a new crime but is one already punished one (1) degree lower than that of the prescribed penalty for the
under Article 353. Section 4(c)(4) merely establishes the offense or a fine of at least One hundred thousand pesos
computer system as another means of publication.75 Charging (PhP100,000.00) but not exceeding Five hundred thousand
the offender under both laws would be a blatant violation of pesos (PhP500,000.00) or both.
the proscription against double jeopardy.76
Section 8 provides for the penalties for the following crimes:
The same is true with child pornography committed online. Sections 4(a) on Offenses Against the Confidentiality,
Section 4(c)(2) merely expands the ACPA’s scope so as to Integrity and Availability of Computer Data and Systems; 4(b)
include identical activities in cyberspace. As previously on Computer-related Offenses; 4(a)(5) on Misuse of Devices;
discussed, ACPA’s definition of child pornography in fact when the crime punishable under 4(a) is committed against
already covers the use of "electronic, mechanical, digital, critical infrastructure; 4(c)(1) on Cybersex; 4(c)(2) on Child
optical, magnetic or any other means." Thus, charging the Pornography; 4(c)(3) on Unsolicited Commercial
offender under both Section 4(c)(2) and ACPA would likewise Communications; and Section 5 on Aiding or Abetting, and
be tantamount to a violation of the constitutional prohibition Attempt in the Commission of Cybercrime.
against double jeopardy.
The matter of fixing penalties for the commission of crimes is
Section 8 of the Cybercrime Law as a rule a legislative prerogative. Here the legislature
prescribed a measure of severe penalties for what it regards as
Section 8 provides: deleterious cybercrimes. They appear proportionate to the evil
75
sought to be punished. The power to determine penalties for showing that such requirement has a rational relation to the
offenses is not diluted or improperly wielded simply because purpose of the law,79 that there is a compelling State interest
at some prior time the act or omission was but an element of behind the law, and that the provision itself is narrowly
another offense or might just have been connected with drawn.80 In assessing regulations affecting privacy rights,
another crime.77 Judges and magistrates can only interpret and courts should balance the legitimate concerns of the State
apply them and have no authority to modify or revise their against constitutional guarantees.81
range as determined by the legislative department.
Undoubtedly, the State has a compelling interest in enacting
The courts should not encroach on this prerogative of the the cybercrime law for there is a need to put order to the
lawmaking body.78 tremendous activities in cyberspace for public good.82 To do
this, it is within the realm of reason that the government
Section 12 of the Cybercrime Law should be able to monitor traffic data to enhance its ability to
combat all sorts of cybercrimes.
Section 12 provides:
Chapter IV of the cybercrime law, of which the collection or
recording of traffic data is a part, aims to provide law
Sec. 12. Real-Time Collection of Traffic Data. — Law
enforcement authorities with the power they need for spotting,
enforcement authorities, with due cause, shall be authorized to
collect or record by technical or electronic means traffic data preventing, and investigating crimes committed in cyberspace.
in real-time associated with specified communications Crime-fighting is a state business. Indeed, as Chief Justice
Sereno points out, the Budapest Convention on Cybercrimes
transmitted by means of a computer system.
requires signatory countries to adopt legislative measures to
empower state authorities to collect or record "traffic data, in
Traffic data refer only to the communication’s origin, real time, associated with specified communications." 83 And
destination, route, time, date, size, duration, or type of this is precisely what Section 12 does. It empowers law
underlying service, but not content, nor identities. enforcement agencies in this country to collect or record such
data.
All other data to be collected or seized or disclosed will
require a court warrant. But is not evidence of yesterday’s traffic data, like the scene
of the crime after it has been committed, adequate for fighting
Service providers are required to cooperate and assist law cybercrimes and, therefore, real-time data is superfluous for
enforcement authorities in the collection or recording of the that purpose? Evidently, it is not. Those who commit the
above-stated information. crimes of accessing a computer system without
right,84 transmitting viruses,85 lasciviously exhibiting sexual
The court warrant required under this section shall only be organs or sexual activity for favor or consideration;86 and
issued or granted upon written application and the producing child pornography87 could easily evade detection
examination under oath or affirmation of the applicant and the and prosecution by simply moving the physical location of
witnesses he may produce and the showing: (1) that there are their computers or laptops from day to day. In this digital age,
reasonable grounds to believe that any of the crimes the wicked can commit cybercrimes from virtually anywhere:
enumerated hereinabove has been committed, or is being from internet cafés, from kindred places that provide free
committed, or is about to be committed; (2) that there are internet services, and from unregistered mobile internet
reasonable grounds to believe that evidence that will be connectors. Criminals using cellphones under pre-paid
obtained is essential to the conviction of any person for, or to arrangements and with unregistered SIM cards do not have
the solution of, or to the prevention of, any such crimes; and listed addresses and can neither be located nor identified.
(3) that there are no other means readily available for There are many ways the cyber criminals can quickly erase
obtaining such evidence. their tracks. Those who peddle child pornography could use
relays of computers to mislead law enforcement authorities
Petitioners assail the grant to law enforcement agencies of the regarding their places of operations. Evidently, it is only real-
power to collect or record traffic data in real time as tending to time traffic data collection or recording and a subsequent
curtail civil liberties or provide opportunities for official recourse to court-issued search and seizure warrant that can
abuse. They claim that data showing where digital messages succeed in ferreting them out.
come from, what kind they are, and where they are destined
need not be incriminating to their senders or recipients before Petitioners of course point out that the provisions of Section
they are to be protected. Petitioners invoke the right of every 12 are too broad and do not provide ample safeguards against
individual to privacy and to be protected from government crossing legal boundaries and invading the people’s right to
snooping into the messages or information that they send to privacy. The concern is understandable. Indeed, the Court
one another. recognizes in Morfe v. Mutuc88 that certain constitutional
guarantees work together to create zones of privacy wherein
The first question is whether or not Section 12 has a proper governmental powers may not intrude, and that there exists an
governmental purpose since a law may require the disclosure independent constitutional right of privacy. Such right to be
of matters normally considered private but then only upon
76
left alone has been regarded as the beginning of all the recipient, only their coded internet protocol (IP) addresses.
freedoms.89 The packets travel from one computer system to another
where their contents are pieced back together.
But that right is not unqualified. In Whalen v. Roe,90 the
United States Supreme Court classified privacy into two Section 12 does not permit law enforcement authorities to look
categories: decisional privacy and informational privacy. into the contents of the messages and uncover the identities of
Decisional privacy involves the right to independence in the sender and the recipient.
making certain important decisions, while informational
privacy refers to the interest in avoiding disclosure of personal For example, when one calls to speak to another through his
matters. It is the latter right—the right to informational cellphone, the service provider’s communication’s system will
privacy—that those who oppose government collection or put his voice message into packets and send them to the other
recording of traffic data in real-time seek to protect. person’s cellphone where they are refitted together and heard.
The latter’s spoken reply is sent to the caller in the same way.
Informational privacy has two aspects: the right not to have To be connected by the service provider, the sender reveals his
private information disclosed, and the right to live freely cellphone number to the service provider when he puts his call
without surveillance and intrusion.91 In determining whether through. He also reveals the cellphone number to the person
or not a matter is entitled to the right to privacy, this Court has he calls. The other ways of communicating electronically
laid down a two-fold test. The first is a subjective test, where follow the same basic pattern.
one claiming the right must have an actual or legitimate
expectation of privacy over a certain matter. The second is an In Smith v. Maryland,94 cited by the Solicitor General, the
objective test, where his or her expectation of privacy must be United States Supreme Court reasoned that telephone users in
one society is prepared to accept as objectively reasonable. 92 the ‘70s must realize that they necessarily convey phone
numbers to the telephone company in order to complete a call.
Since the validity of the cybercrime law is being challenged, That Court ruled that even if there is an expectation that phone
not in relation to its application to a particular person or group, numbers one dials should remain private, such expectation is
petitioners’ challenge to Section 12 applies to all information not one that society is prepared to recognize as reasonable.
and communications technology (ICT) users, meaning the
large segment of the population who use all sorts of electronic In much the same way, ICT users must know that they cannot
devices to communicate with one another. Consequently, the communicate or exchange data with one another over
expectation of privacy is to be measured from the general cyberspace except through some service providers to whom
public’s point of view. Without reasonable expectation of they must submit certain traffic data that are needed for a
privacy, the right to it would have no basis in fact. successful cyberspace communication. The conveyance of this
data takes them out of the private sphere, making the
As the Solicitor General points out, an ordinary ICT user who expectation to privacy in regard to them an expectation that
courses his communication through a service provider, must of society is not prepared to recognize as reasonable.
necessity disclose to the latter, a third person, the traffic data
needed for connecting him to the recipient ICT user. For The Court, however, agrees with Justices Carpio and Brion
example, an ICT user who writes a text message intended for that when seemingly random bits of traffic data are gathered in
another ICT user must furnish his service provider with his bulk, pooled together, and analyzed, they reveal patterns of
cellphone number and the cellphone number of his recipient, activities which can then be used to create profiles of the
accompanying the message sent. It is this information that persons under surveillance. With enough traffic data, analysts
creates the traffic data. Transmitting communications is akin may be able to determine a person’s close associations,
to putting a letter in an envelope properly addressed, sealing it religious views, political affiliations, even sexual preferences.
closed, and sending it through the postal service. Those who Such information is likely beyond what the public may expect
post letters have no expectations that no one will read the to be disclosed, and clearly falls within matters protected by
information appearing outside the envelope. the right to privacy. But has the procedure that Section 12 of
the law provides been drawn narrowly enough to protect
Computer data—messages of all kinds—travel across the individual rights?
internet in packets and in a way that may be likened to parcels
of letters or things that are sent through the posts. When data Section 12 empowers law enforcement authorities, "with due
is sent from any one source, the content is broken up into cause," to collect or record by technical or electronic means
packets and around each of these packets is a wrapper or traffic data in real-time. Petitioners point out that the phrase
header. This header contains the traffic data: information that "due cause" has no precedent in law or jurisprudence and that
tells computers where the packet originated, what kind of data whether there is due cause or not is left to the discretion of the
is in the packet (SMS, voice call, video, internet chat police. Replying to this, the Solicitor General asserts that
messages, email, online browsing data, etc.), where the packet Congress is not required to define the meaning of every word
is going, and how the packet fits together with other it uses in drafting the law.
packets.93 The difference is that traffic data sent through the
internet at times across the ocean do not disclose the actual
names and addresses (residential or office) of the sender and
77
Indeed, courts are able to save vague provisions of law Petitioners also ask that the Court strike down Section 12 for
through statutory construction. But the cybercrime law, being violative of the void-for-vagueness doctrine and the
dealing with a novel situation, fails to hint at the meaning it overbreadth doctrine. These doctrines however, have been
intends for the phrase "due cause." The Solicitor General consistently held by this Court to apply only to free speech
suggests that "due cause" should mean "just reason or motive" cases. But Section 12 on its own neither regulates nor punishes
and "adherence to a lawful procedure." But the Court cannot any type of speech. Therefore, such analysis is unnecessary.
draw this meaning since Section 12 does not even bother to
relate the collection of data to the probable commission of a This Court is mindful that advances in technology allow the
particular crime. It just says, "with due cause," thus justifying government and kindred institutions to monitor individuals
a general gathering of data. It is akin to the use of a general and place them under surveillance in ways that have
search warrant that the Constitution prohibits. previously been impractical or even impossible. "All the
forces of a technological age x x x operate to narrow the area
Due cause is also not descriptive of the purpose for which data of privacy and facilitate intrusions into it. In modern terms, the
collection will be used. Will the law enforcement agencies use capacity to maintain and support this enclave of private life
the traffic data to identify the perpetrator of a cyber attack? Or marks the difference between a democratic and a totalitarian
will it be used to build up a case against an identified suspect? society."96 The Court must ensure that laws seeking to take
Can the data be used to prevent cybercrimes from happening? advantage of these technologies be written with specificity and
definiteness as to ensure respect for the rights that the
The authority that Section 12 gives law enforcement agencies Constitution guarantees.
is too sweeping and lacks restraint. While it says that traffic
data collection should not disclose identities or content data, Section 13 of the Cybercrime Law
such restraint is but an illusion. Admittedly, nothing can
prevent law enforcement agencies holding these data in their Section 13 provides:
hands from looking into the identity of their sender or receiver
and what the data contains. This will unnecessarily expose the
Sec. 13. Preservation of Computer Data. — The integrity of
citizenry to leaked information or, worse, to extortion from
traffic data and subscriber information relating to
certain bad elements in these agencies.
communication services provided by a service provider shall
be preserved for a minimum period of six (6) months from the
Section 12, of course, limits the collection of traffic data to date of the transaction. Content data shall be similarly
those "associated with specified communications." But this preserved for six (6) months from the date of receipt of the
supposed limitation is no limitation at all since, evidently, it is order from law enforcement authorities requiring its
the law enforcement agencies that would specify the target preservation.
communications. The power is virtually limitless, enabling
law enforcement authorities to engage in "fishing expedition," Law enforcement authorities may order a one-time extension
choosing whatever specified communication they want. This for another six (6) months: Provided, That once computer data
evidently threatens the right of individuals to privacy.
preserved, transmitted or stored by a service provider is used
as evidence in a case, the mere furnishing to such service
The Solicitor General points out that Section 12 needs to provider of the transmittal document to the Office of the
authorize collection of traffic data "in real time" because it is Prosecutor shall be deemed a notification to preserve the
not possible to get a court warrant that would authorize the computer data until the termination of the case.
search of what is akin to a "moving vehicle." But warrantless
search is associated with a police officer’s determination of
The service provider ordered to preserve computer data shall
probable cause that a crime has been committed, that there is
keep confidential the order and its compliance.
no opportunity for getting a warrant, and that unless the search
is immediately carried out, the thing to be searched stands to
be removed. These preconditions are not provided in Section Petitioners in G.R. 20339197 claim that Section 13 constitutes
12. an undue deprivation of the right to property. They liken the
data preservation order that law enforcement authorities are to
issue as a form of garnishment of personal property in civil
The Solicitor General is honest enough to admit that Section forfeiture proceedings. Such order prevents internet users from
12 provides minimal protection to internet users and that the accessing and disposing of traffic data that essentially belong
procedure envisioned by the law could be better served by
to them.
providing for more robust safeguards. His bare assurance that
law enforcement authorities will not abuse the provisions of
Section 12 is of course not enough. The grant of the power to No doubt, the contents of materials sent or received through
track cyberspace communications in real time and determine the internet belong to their authors or recipients and are to be
their sources and destinations must be narrowly drawn to considered private communications. But it is not clear that a
preclude abuses.95 service provider has an obligation to indefinitely keep a copy
of the same as they pass its system for the benefit of users. By
virtue of Section 13, however, the law now requires service
providers to keep traffic data and subscriber information
78
relating to communication services for at least six months (a) To secure a computer system or a computer data
from the date of the transaction and those relating to content storage medium;
data for at least six months from receipt of the order for their
preservation. (b) To make and retain a copy of those computer data
secured;
Actually, the user ought to have kept a copy of that data when
it crossed his computer if he was so minded. The service (c) To maintain the integrity of the relevant stored
provider has never assumed responsibility for their loss or computer data;
deletion while in its keep.
(d) To conduct forensic analysis or examination of
At any rate, as the Solicitor General correctly points out, the the computer data storage medium; and
data that service providers preserve on orders of law
enforcement authorities are not made inaccessible to users by (e) To render inaccessible or remove those computer
reason of the issuance of such orders. The process of
data in the accessed computer or computer and
preserving data will not unduly hamper the normal
communications network.
transmission or use of the same.
Pursuant thereof, the law enforcement authorities may order
Section 14 of the Cybercrime Law any person who has knowledge about the functioning of the
computer system and the measures to protect and preserve the
Section 14 provides: computer data therein to provide, as is reasonable, the
necessary information, to enable the undertaking of the search,
Sec. 14. Disclosure of Computer Data. — Law enforcement seizure and examination.
authorities, upon securing a court warrant, shall issue an order
requiring any person or service provider to disclose or submit Law enforcement authorities may request for an extension of
subscriber’s information, traffic data or relevant data in his/its time to complete the examination of the computer data storage
possession or control within seventy-two (72) hours from medium and to make a return thereon but in no case for a
receipt of the order in relation to a valid complaint officially period longer than thirty (30) days from date of approval by
docketed and assigned for investigation and the disclosure is the court.
necessary and relevant for the purpose of investigation.
Petitioners challenge Section 15 on the assumption that it will
The process envisioned in Section 14 is being likened to the supplant established search and seizure procedures. On its
issuance of a subpoena. Petitioners’ objection is that the face, however, Section 15 merely enumerates the duties of law
issuance of subpoenas is a judicial function. But it is well- enforcement authorities that would ensure the proper
settled that the power to issue subpoenas is not exclusively a collection, preservation, and use of computer system or data
judicial function. Executive agencies have the power to issue that have been seized by virtue of a court warrant. The
subpoena as an adjunct of their investigatory powers. 98 exercise of these duties do not pose any threat on the rights of
the person from whom they were taken. Section 15 does not
Besides, what Section 14 envisions is merely the enforcement appear to supersede existing search and seizure rules but
of a duly issued court warrant, a function usually lodged in the merely supplements them.
hands of law enforcers to enable them to carry out their
executive functions. The prescribed procedure for disclosure Section 17 of the Cybercrime Law
would not constitute an unlawful search or seizure nor would
it violate the privacy of communications and correspondence. Section 17 provides:
Disclosure can be made only after judicial intervention.
Sec. 17. Destruction of Computer Data. — Upon expiration of
Section 15 of the Cybercrime Law
the periods as provided in Sections 13 and 15, service
providers and law enforcement authorities, as the case may be,
Section 15 provides: shall immediately and completely destroy the computer data
subject of a preservation and examination.
Sec. 15. Search, Seizure and Examination of Computer Data.
— Where a search and seizure warrant is properly issued, the Section 17 would have the computer data, previous subject of
law enforcement authorities shall likewise have the following preservation or examination, destroyed or deleted upon the
powers and duties. lapse of the prescribed period. The Solicitor General justifies
this as necessary to clear up the service provider’s storage
Within the time period specified in the warrant, to conduct systems and prevent overload. It would also ensure that
interception, as defined in this Act, and: investigations are quickly concluded.

79
Petitioners claim that such destruction of computer data Not only does Section 19 preclude any judicial intervention,
subject of previous preservation or examination violates the but it also disregards jurisprudential guidelines established to
user’s right against deprivation of property without due determine the validity of restrictions on speech. Restraints on
process of law. But, as already stated, it is unclear that the user free speech are generally evaluated on one of or a combination
has a demandable right to require the service provider to have of three tests: the dangerous tendency doctrine, the balancing
that copy of the data saved indefinitely for him in its storage of interest test, and the clear and present danger
system. If he wanted them preserved, he should have saved rule.101 Section 19, however, merely requires that the data to
them in his computer when he generated the data or received be blocked be found prima facie in violation of any provision
it. He could also request the service provider for a copy before of the cybercrime law. Taking Section 6 into consideration,
it is deleted. this can actually be made to apply in relation to any penal
provision. It does not take into consideration any of the three
Section 19 of the Cybercrime Law tests mentioned above.

Section 19 empowers the Department of Justice to restrict or The Court is therefore compelled to strike down Section 19 for
block access to computer data: being violative of the constitutional guarantees to freedom of
expression and against unreasonable searches and seizures.
Sec. 19. Restricting or Blocking Access to Computer Data.—
When a computer data is prima facie found to be in violation Section 20 of the Cybercrime Law
of the provisions of this Act, the DOJ shall issue an order to
restrict or block access to such computer data. Section 20 provides:

Petitioners contest Section 19 in that it stifles freedom of Sec. 20. Noncompliance. — Failure to comply with the
expression and violates the right against unreasonable searches provisions of Chapter IV hereof specifically the orders from
and seizures. The Solicitor General concedes that this law enforcement authorities shall be punished as a violation of
provision may be unconstitutional. But since laws enjoy a Presidential Decree No. 1829 with imprisonment of prision
presumption of constitutionality, the Court must satisfy itself correctional in its maximum period or a fine of One hundred
that Section 19 indeed violates the freedom and right thousand pesos (Php100,000.00) or both, for each and every
mentioned. noncompliance with an order issued by law enforcement
authorities.
Computer data99 may refer to entire programs or lines of code,
including malware, as well as files that contain texts, images, Petitioners challenge Section 20, alleging that it is a bill of
audio, or video recordings. Without having to go into a attainder. The argument is that the mere failure to comply
lengthy discussion of property rights in the digital space, it is constitutes a legislative finding of guilt, without regard to
indisputable that computer data, produced or created by their situations where non-compliance would be reasonable or
writers or authors may constitute personal property. valid.
Consequently, they are protected from unreasonable searches
and seizures, whether while stored in their personal computers But since the non-compliance would be punished as a
or in the service provider’s systems. violation of Presidential Decree (P.D.) 1829,102 Section 20
necessarily incorporates elements of the offense which are
Section 2, Article III of the 1987 Constitution provides that the defined therein. If Congress had intended for Section 20 to
right to be secure in one’s papers and effects against constitute an offense in and of itself, it would not have had to
unreasonable searches and seizures of whatever nature and for make reference to any other statue or provision.
any purpose shall be inviolable. Further, it states that no
search warrant shall issue except upon probable cause to be P.D. 1829 states:
determined personally by the judge. Here, the Government, in
effect, seizes and places the computer data under its control
Section 1. The penalty of prision correccional in its maximum
and disposition without a warrant. The Department of Justice
period, or a fine ranging from 1,000 to 6,000 pesos, or both,
order cannot substitute for judicial search warrant.
shall be imposed upon any person who knowingly or willfully
obstructs, impedes, frustrates or delays the apprehension of
The content of the computer data can also constitute speech. In suspects and the investigation and prosecution of criminal
such a case, Section 19 operates as a restriction on the cases by committing any of the following acts:
freedom of expression over cyberspace. Certainly not all
forms of speech are protected. Legislature may, within x x x.
constitutional bounds, declare certain kinds of expression as
illegal. But for an executive officer to seize content alleged to
be unprotected without any judicial warrant, it is not enough Thus, the act of non-compliance, for it to be punishable, must
for him to be of the opinion that such content violates some still be done "knowingly or willfully." There must still be a
law, for to do so would make him judge, jury, and executioner judicial determination of guilt, during which, as the Solicitor
all rolled into one.100 General assumes, defense and justifications for non-
compliance may be raised. Thus, Section 20 is valid insofar as
80
it applies to the provisions of Chapter IV which are not struck cooperation."105 This policy is clearly adopted in the interest
down by the Court. of law and order, which has been considered as sufficient
standard.106 Hence, Sections 24 and 26(a) are likewise valid.
Sections 24 and 26(a) of the Cybercrime Law
WHEREFORE, the Court DECLARES:
Sections 24 and 26(a) provide:
1. VOID for being UNCONSTITUTIONAL:
Sec. 24. Cybercrime Investigation and Coordinating Center.–
There is hereby created, within thirty (30) days from the a. Section 4(c)(3) of Republic Act 10175
effectivity of this Act, an inter-agency body to be known as that penalizes posting of unsolicited
the Cybercrime Investigation and Coordinating Center commercial communications;
(CICC), under the administrative supervision of the Office of
the President, for policy coordination among concerned b. Section 12 that authorizes the collection
agencies and for the formulation and enforcement of the or recording of traffic data in real-time; and
national cybersecurity plan.
c. Section 19 of the same Act that authorizes
Sec. 26. Powers and Functions.– The CICC shall have the the Department of Justice to restrict or block
following powers and functions: access to suspected Computer Data.

(a) To formulate a national cybersecurity plan and extend 2. VALID and CONSTITUTIONAL:
immediate assistance of real time commission of cybercrime
offenses through a computer emergency response team a. Section 4(a)(1) that penalizes accessing a
(CERT); x x x.
computer system without right;

Petitioners mainly contend that Congress invalidly delegated


b. Section 4(a)(3) that penalizes data
its power when it gave the Cybercrime Investigation and interference, including transmission of
Coordinating Center (CICC) the power to formulate a national viruses;
cybersecurity plan without any sufficient standards or
parameters for it to follow.
c. Section 4(a)(6) that penalizes cyber-
squatting or acquiring domain name over the
In order to determine whether there is undue delegation of internet in bad faith to the prejudice of
legislative power, the Court has adopted two tests: the
others;
completeness test and the sufficient standard test. Under the
first test, the law must be complete in all its terms and
conditions when it leaves the legislature such that when it d. Section 4(b)(3) that penalizes identity
reaches the delegate, the only thing he will have to do is to theft or the use or misuse of identifying
enforce it.1avvphi1 The second test mandates adequate information belonging to another;
guidelines or limitations in the law to determine the
boundaries of the delegate’s authority and prevent the e. Section 4(c)(1) that penalizes cybersex or
delegation from running riot.103 the lascivious exhibition of sexual organs or
sexual activity for favor or consideration;
Here, the cybercrime law is complete in itself when it directed
the CICC to formulate and implement a national cybersecurity f. Section 4(c)(2) that penalizes the
plan. Also, contrary to the position of the petitioners, the law production of child pornography;
gave sufficient standards for the CICC to follow when it
provided a definition of cybersecurity. g. Section 6 that imposes penalties one
degree higher when crimes defined under
Cybersecurity refers to the collection of tools, policies, risk the Revised Penal Code are committed with
management approaches, actions, training, best practices, the use of information and communications
assurance and technologies that can be used to protect cyber technologies;
environment and organization and user’s assets.104 This
definition serves as the parameters within which CICC should h. Section 8 that prescribes the penalties for
work in formulating the cybersecurity plan. cybercrimes;

Further, the formulation of the cybersecurity plan is consistent i. Section 13 that permits law enforcement
with the policy of the law to "prevent and combat such [cyber] authorities to require service providers to
offenses by facilitating their detection, investigation, and preserve traffic data and subscriber
prosecution at both the domestic and international levels, and
by providing arrangements for fast and reliable international
81
information as well as specified content data 1. Online libel as to which, charging the offender
for six months; under both Section 4(c)(4) of Republic Act 10175
and Article 353 of the Revised Penal Code
j. Section 14 that authorizes the disclosure of constitutes a violation of the proscription against
computer data under a court-issued warrant; double jeopardy; as well as

k. Section 15 that authorizes the search, 2. Child pornography committed online as to which,
seizure, and examination of computer data charging the offender under both Section 4(c)(2) of
under a court-issued warrant; Republic Act 10175 and Republic Act 9775 or the
Anti-Child Pornography Act of 2009 also constitutes
a violation of the same proscription, and, in respect to
l. Section 17 that authorizes the destruction
these, is VOID and UNCONSTITUTIONAL.
of previously preserved computer data after
the expiration of the prescribed holding
periods; SO ORDERED.

m. Section 20 that penalizes obstruction of Footnotes


justice in relation to cybercrime
investigations; *No part.

1
n. Section 24 that establishes a Cybercrime The US Supreme Court first suggested the standard
Investigation and Coordinating Center by implication in footnote 4 of United States v.
(CICC); Carolene Products (304 U.S. 144, 152 n.4 (1938). See
Fatal in Theory and Strict in Fact: An Empirical
o. Section 26(a) that defines the CICC’s Analysis of Strict Scrutiny in the Federal Courts.
Powers and Functions; and Winkler, A. UCLA School of Law, Public Law &
Legal Theory Research Paper Series, Research Paper
p. Articles 353, 354, 361, and 362 of the No. 06-14, http://ssrn.com/abstract=897360 (last
accessed April 10, 2013).
Revised Penal Code that penalizes libel.
2
Serrano v. Gallant Maritime Services, Inc., G.R.
Further, the Court DECLARES:
No. 167614, March 24, 2009, 582 SCRA 254, 278.
1. Section 4(c)(4) that penalizes online libel as 3
White Light Corporation v. City of Manila, G.R.
VALID and CONSTITUTIONAL with respect to the
No. 122846, January 20, 2009, 576 SCRA 416, 437.
original author of the post; but VOID and
UNCONSTITUTIONAL with respect to others who
4
simply receive the post and react to it; and All 50 states of the United States have passed
individual state laws criminalizing hacking or
unauthorized access, http://www.ncsl.org/issues-
2. Section 5 that penalizes aiding or abetting and
research/telecom/computer-hacking-and-
attempt in the commission of cybercrimes as VA L I
unauthorized-access-laws.aspx (last accessed May
D and CONSTITUTIONAL only in relation to
Section 4(a)(1) on Illegal Access, Section 4(a)(2) on 16, 2013). The United States Congress has also
Illegal Interception, Section 4(a)(3) on Data passed the Computer Fraud and Abuse Act 18 U.S.C.
§ 1030 that penalizes, among others, hacking. The
Interference, Section 4(a)(4) on System
Budapest Convention on Cybercrime considers
hacking as an offense against the confidentiality,
Interference, Section 4(a)(5) on Misuse of Devices, Section integrity and availability of computer data and
4(a)(6) on Cyber-squatting, Section 4(b)(1) on Computer- systems and 29 countries have already ratified or
related Forgery, Section 4(b)(2) on Computer-related Fraud, acceded,
Section 4(b)(3) on Computer-related Identity Theft, and http://conventions.coe.int/Treaty/Commun/ChercheSi
Section 4(c)(1) on Cybersex; but VOID and g.asp?NT=185&CM=&DF=&CL=ENG (last
UNCONSTITUTIONAL with respect to Sections 4(c)(2) on accessed May 16, 2013).
Child Pornography, 4(c)(3) on Unsolicited Commercial
Communications, and 4(c)(4) on online Libel.1âwphi1 5
Ethical Hacking. Palmer, C. IBM Systems Journal,
Vol. 40, No. 3, 2001, p. 770,
Lastly, the Court RESOLVES to LEAVE THE http://pdf.textfiles.com/security/palmer.pdf (last
DETERMINATION of the correct application of Section 7 accessed April 10, 2013).
that authorizes prosecution of the offender under both the
Revised Penal Code and Republic Act 10175 to actual cases, 6
Id. at 774.
WITH THE EXCEPTION of the crimes of:
82
7 23
Southern Hemisphere Engagement Network, Inc. v. Bicameral Conference Committee, pp. 5-6.
Anti-Terrorism Council, G.R. Nos. 178552, 178554,
178581, 178890, 179157 & 179461, October 5, 2010, 24
Id.
632 SCRA 146, 185.
25
Office of the Solicitor General, COMMENT, p. 71.
8
The intentional destruction of property is popularly
referred to as vandalism. It includes behavior such as 26
REPUBLIC ACT 9208, Section 4(e).
breaking windows, slashing tires, spray painting a
wall with graffiti, and destroying a computer system 27
through the use of a computer virus, http://legal- Id., Section 3(c).
dictionary.thefreedictionary.com/Vandalism (last
28
accessed August 12, 2013). G.R. No. 191080, November 21, 2011, 660 SCRA
475.
9
Southern Hemisphere Engagement Network, Inc. v.
29
Anti-Terrorism Council, supra note 7, at 186; Estrada REVISED PENAL CODE, Article 201 (2)(b)(2),
v. Sandiganbayan, 421 Phil. 290, 354 (2001). as amended by Presidential Decree 969.

30
10
Id. Pita v. Court of Appeals, 258-A Phil. 134 (1989).

31
11
Id., citing the Opinion of Justice Vicente V. REPUBLIC ACT 9775 entitled AN ACT
Mendoza in Estrada v. Sandiganbayan. DEFINING THE CRIME OF CHILD
PORNOGRAPHY, PRESCRIBING PENALTIES
12
1987 CONSTITUTION, Article III, Section 1. THEREFOR AND FOR OTHER PURPOSES.

32
13
Pollo v. Constantino-David, G.R. No. 181881, Sto. Tomas v. Salac, G.R. No. 152642, November
October 18, 2011, 659 SCRA 189, 204-205. 13, 2012, 685 SCRA 245, citing People v. Ventura,
114 Phil. 162, 167 (1962).
14
130 Phil. 415 (1968) 33
Supra note 31, Section 4(b).
15
535 Phil. 687, 714-715 (2006). 34
G.R. No. 203407 (Bagong Alyansang Makabayan),
16 MEMORANDUM, pp. 34-37.
Supra note 12, Article II, Section 2.
35
17 White Buffalo Ventures, LLC v. Univ. of Tex. at
Supra note 12, Article III, Section 3. Austin, 2004 U.S. Dist. LEXIS 19152 (W.D. Tex.
Mar. 22, 2004).
18
In the Matter of the Petition for Issuance of Writ of
Habeas Corpus of Sabio v. Senator Gordon, supra 36
Concurring Opinion of Chief Justice Reynato S.
note 15. Puno in Pharmaceutical and Health Care Association
of the Philippines v. Duque III, 561 Phil. 387, 449
19
Section 3(g) of Republic Act 10173 or the Data (2007).
Privacy Act of 2012 defines personal information as
"any information whether recorded in a material form 37
Supra note 29, Article 362.
or not, from which the identity of an individual is
apparent or can be reasonably and directly 38
ascertained by the entity holding the information, or Borjal v. Court of Appeals, 361 Phil. 1 (1999);
when put together with other information would Vasquez v. Court of Appeals, 373 Phil. 238 (1999).
directly and certainly identify an individual."
39
573 Phil. 278 (2008).
20
People v. Uy, G.R. No. 174660, May 30, 2011, 649
40
SCRA 236. Vasquez v. Court of Appeals, supra note 38.

41
21
Supra note 17 (G.R. No. 203359 [Guingona]; G.R. L. BOADO, COMPACT REVIEWER IN
No. 203518 [PIFA]). CRIMINAL LAW 403-404 (2d ed. 2007).

42
22
Merriam-Webster, http://www.merriam- Vasquez v. Court of Appeals, supra note 38, citing
webster.com/dictionary/favor (last accessed May 30, New York Times v. Sullivan, 376 U.S. 254, 11
2013). L.Ed.2d 686 (1964).

83
43 66
Annette F. v. Sharon S., 119 Cal. App. 4th 1146, Id.
1151 (Cal. App. 4th Dist. 2004).
67
Id.
44
Borjal v. Court of Appeals, supra note 38, citing
United States v. Bustos, 37 Phil. 731 (1918). 68
A contention found in Bruce Byars, Timothy
O’Keefe, and Thomas Clement "Google, Inc.:
45
Supra note 41, at 403. Procurer, Possessor, Distributor, Aider and Abettor in
Child Pornography,"
46
Supra note 29, Article 354.
http://forumonpublicpolicy.com/archivespri
47
Communication 1815/2008. ng08/byars.pdf (last accessed May 25,
2013).
48
General Comment 34, ICCPR, par. 47.
69
Id., citing 47 U.S.C. 230.
49
ICCPR, Article 19(2) and (3).
70
Bianca Bosker, Facebook To Share Users' Home
Addresses, Phone Numbers With External Sites,
50
Sandals Resorts Int’l. Ltd. v. Google, Inc., 86
http://www.huffingtonpost.com/2011/02/28/facebook
A.D.3d 32 (N.Y. App. Div. 1st Dep’t 2011).
-home-addresses-phone-numbers_n_829459.html
51
(last accessed July 18, 2013).
Office of the Solicitor General, MEMORANDUM,
pp. 69-70. 71
G.R. No. 203440 (Sta Maria), MEMORANDUM,
52
p. 14, citing Luis B. Reyes, The Revised Penal Code:
REPUBLIC ACT 3701, Section 1. Book 1, 118 (17th ed. 2008).
53
REPUBLIC ACT 4712, Section 5. 72
Shiresee Bell, Man Pleads Guilty to Attempted
USC Website Hacking, Email Accounts,
54
LABOR CODE, Article 264. http://columbia-sc.patch.com/groups/police-and-
fire/p/man-pleaded-guilty-to-hacking-usc-website-
55 email-accounts (last accessed July 18, 2013); Peter
G.R. No. 203440 (Sta. Maria), PETITION, p. 2.
Ryan, Hackers target Bureau of Statistics data,
56
http://www.statisticbrain.com/social-networking- http://www.abc.net.au/news/2013-04-26/abs-
statistics/ (last accessed January 14, 2013). targeted-by-hackers/4652758 (last accessed July 18,
2013).
57
http://en.wikipedia.org/wiki/Social_networking_ser 73
vice (last accessed January 14, 2013). Supra note 34, at 32.

74
58
http://www.statisticbrain.com/social-networking- Supra note 51, at 49, citing People v. Doriquez,
statistics/ (last accessed January 14, 2013). 133 Phil. 295 (1968).

75
59
http://en.wikipedia.org/wiki/Facebook (last Office of the Solicitor General, MEMORANDUM,
accessed January 14, 2013). p. 49.

76
60
G. R . No. 203378 (Adonis) and G.R. No. 203391 Section 21, Article III, 1987 CONSTITUTION:
(Palatino), CONSOLIDATED MEMORANDUM, p. "No person shall be twice put in jeopardy of
34. punishment for the same offense. If an act is
punished by a law and an ordinance, conviction or
61 acquittal under either shall constitute a bar to another
521 U.S. 844 (1997).
prosecution for the same act."
62
Griswold v. Connecticut, 381 U.S. 479 (1965). 77
Baylosis v. Hon. Chavez, Jr., 279 Phil. 448 (1991).
63
G.R. No. 203378 (Adonis), First AMENDED 78
People v. Dela Cruz, G.R. No. 100386, December
PETITION, pp. 35-36.
11, 1992, 216 SCRA 476, citing People v. Millora,
252 Phil. 105 (1989).
64
Supra note 55, at 33.
79
Supra note 14, at 436-437.
65
576 Phil. 357 (2008).
84
80 94
Ople v. Torres, 354 Phil. 948, 974-975 (1998). 442 U.S. 735 (1979).

81 95
In the Matter of the Petition for Habeas Corpus of Supra note 80, at 983.
Capt. Alejano v. Gen. Cabuay, 505 Phil. 298, 322
(2005); Gamboa v. Chan, G.R. No. 193636, July 24, 96
Supra note 14, at 437, citing Emerson, Nine
2012, 677 SCRA 385. Justices in Search of a Doctrine, 64 Mich. Law Rev.
219, 229 (1965).
82
SEC. 2. Declaration of Policy. — The State
recognizes the vital role of information and 97
G.R. No. 203391 (Palatino v. Ochoa).
communications industries such as content
production, telecommunications, broadcasting 98
Biraogo v. Philippine Truth Commission, G.R.
electronic commerce, and data processing, in the Nos. 192935 and 193036, December 7, 2010, 637
nation’s overall social and economic development. SCRA 78, 143; ADMINISTRATIVE CODE of 1987,
The State also recognizes the importance of
Book I, Chapter 9, Section 37, and Book VII, Chapter
providing an environment conducive to the
1, Section 13.
development, acceleration, and rational application
and exploitation of information and communications 99
technology (ICT) to attain free, easy, and intelligible Computer data is defined by R.A. 10175 as
access to exchange and/or delivery of information; follows:
and the need to protect and safeguard the integrity of
computer, computer and communications systems, "SEC. 3. Definition of Terms. x x x
networks, and databases, and the confidentiality,
integrity, and availability of information and data xxxx
stored therein, from all forms of misuse, abuse, and
illegal access by making punishable under the law (e) Computer data refers to any
such conduct or conducts. In this light, the State shall representation of facts, information, or
adopt sufficient powers to effectively prevent and concepts in a form suitable for processing in
combat such offenses by facilitating their detection, a computer system including a program
investigation, and prosecution at both the domestic suitable to cause a computer system to
and international levels, and by providing perform a function and includes electronic
arrangements for fast and reliable international documents and/or electronic data messages
cooperation. whether stored in local computer systems or
online."
83
Convention on Cybercrime, Art. 20, opened for
signature November 23, 2001, ETS 185. 100
Pita v. Court of Appeals, supra note 30, at 151.
84
Cybercrime Law, Section 4(a)(1),. 101
Chavez v. Gonzales, 569 Phil. 155 (2008).
85
Id., Section 4(a)(3) 102
Entitled PENALIZING OBSTRUCTION OF
APPREHENSION AND PROSECUTION OF
86
Id., Section 4(c)(1) CRIMINAL OFFENDERS.

87 103
Id., Section 4(c)(2) Gerochi v. Department of Energy, 554 Phil. 563
(2007).
88
Supra note 14.
104
REPUBLIC ACT 10175, Section 3(k).
89
Id. at 433-437.
105
Supra note 94.
90
429 U.S. 589 (1977).
106
Gerochi v. Department of Energy, supra note 103,
91
Id. at 599. at 586, citing Rubi v. Provincial Board of Mindoro,
39 Phil. 660 (1919).
92
Supra note 13, at 206.

93
Jonathan Strickland, How IP Convergence Works,
http://computer.howstuffworks.com/ip-
convergence2.htm (last accessed May 10, 2013).

85
Republic of the Philippines x-----------------------x
SUPREME COURT
Baguio City G.R. No. 203378

EN BANC ALEXANDER ADONIS, ELLEN TORDESILLAS, MA.


GISELA ORDENES-CASCOLAN, H. HARRY L.
G.R. No. 203335 April 22, 2014 ROQUE, JR., ROMEL R. BAGARES, and GILBERT T.
ANDRES, Petitioners,
JOSE JESUS M. DISINI, JR., ROWENA S. DISINI, vs.
LIANNE IVY P. MEDINA, JANETTE TORAL and THE EXECUTIVE SECRETARY, THE DEPARTMENT
ERNESTO SONIDO, JR., Petitioners, OF BUDGET AND MANAGEMENT, THE
vs. DEPARTMENT OF JUSTICE, THE DEPARTMENT OF
THE SECRETARY OF JUSTICE, THE SECRETARY THE INTERIOR AND LOCAL GOVERNMENT, THE
OF THE DEPARTMENT OF THE INTERIOR AND NATIONAL BUREAU OF INVESTIGATION, THE
LOCAL GOVERNMENT, THE EXECUTIVE PHILIPPINE NATIONAL POLICE, AND THE
DIRECTOR OF THE INFORMATION AND INFORMATION AND COMMUNICATIONS
COMMUNICATIONS TECHNOLOGY OFFICE, THE TECHNOLOGY OFFICE-DEPARTMENT OF SCIENCE
CHIEF OF THE PHILIPPINE NATIONAL POLICE and AND TECHNOLOGY, Respondents.
THE DIRECTOR OF THE NATIONAL BUREAU OF
INVESTIGATION, Respondents. x-----------------------x

x-----------------------x G.R. No. 203391

G.R. No. 203299 HON. RAYMOND V. PALATINO, HON. ANTONIO


TINIO, VENCER MARI CRISOSTOMO OF
LOUIS "BAROK" C. BIRAOGO, Petitioner, ANAKBAYAN, MA. KATHERINE ELONA OF THE
vs. PHILIPPINE COLLEGIAN, ISABELLE THERESE
NATIONAL BUREAU OF INVESTIGATION and BAGUISI OF THE NATIONAL UNION OF STUDENTS
PHILIPPINE NATIONAL POLICE, Respondents. OF THE PHILIPPINES, ET AL., Petitioners,
vs.
x-----------------------x PAQUITO N. OCHOA, JR., in his capacity as Executive
Secretary and alter-ego of President Benigno Simeon
Aquino III, LEILA DE LIMA in her capacity as Secretary
G.R. No. 203306 of Justice, Respondents.

ALAB NG MAMAMAHAYAG (ALAM), HUKUMAN NG x-----------------------x


MAMAMAYAN MOVEMENT, INC., JERRY S. YAP,
BERTENI "TOTO" CAUSING, HERNANI Q. CUARE,
G.R. No. 203407
PERCY LAPID, TRACY CABRERA, RONALDO E.
RENTA, CIRILO P. SABARRE, JR., DERVIN CASTRO,
ET AL., Petitioners, BAGONG ALYANSANG MAKABAYAN SECRETARY
vs. GENERAL RENATO M. REYES, JR., National Artist
OFFICE OF THE PRESIDENT, represented by President BIENVENIDO L. LUMBERA, Chairperson of Concerned
Benigno Simeon Aquino III, SENATE OF THE Artists of the Philippines, ELMER C. LABOG,
PHILIPPINES, and HOUSE OF Chairperson of Kilusang Mayo Uno, CRISTINA E.
REPRESENTATIVES, Respondents. PALABAY, Secretary General of Karapatan,
FERDINAND R. GAITE, Chairperson of COURAGE,
x-----------------------x JOEL B. MAGLUNSOD, Vice President of Anakpawis
Party-List, LANA R. LINABAN, Secretary General
Gabriela Women’s Party, ADOLFO ARES P.
G.R. No. 203359 GUTIERREZ, and JULIUS GARCIA
MATIBAG, Petitioners,
SENATOR TEOFISTO DL GUINGONA III, Petitioner, vs.
vs. BENIGNO SIMEON C. AQUINO III, President of the
EXECUTIVE SECRETARY, THE SECRETARY OF Republic of the Philippines, PAQUITO N. OCHOA, JR.,
JUSTICE, THE SECRETARY OFTHE DEPARTMENT Executive Secretary, SENATE OF THE PHILIPPINES,
OF INTERIOR AND LOCAL GOVERNMENT, THE represented by SENATE PRESIDENT JUAN PONCE
CHIEF OF THE PHILIPPINE NATIONAL POLICE, and ENRILE, HOUSE OF REPRESENTATIVES, represented
DIRECTOR OF THE NATIONAL BUREAU OF by SPEAKER FELICIANO BELMONTE, JR., LEILA DE
INVESTIGATION, Respondents. LIMA, Secretary of the Department of Justice, LOUIS
86
NAPOLEON C. CASAMBRE, Executive Director of the PAUL CORNELIUS T. CASTILLO & RYAN D.
Information and Communications Technology Office, ANDRES, Petitioners,
NONNATUS CAESAR R. ROJAS, Director of the vs.
National Bureau of Investigation, D/GEN. NICANOR A. THE HON. SECRETARY OF JUSTICE, THE HON.
BARTOLOME, Chief of the Philippine National Police, SECRETARY OF INTERIOR AND LOCAL
MANUEL A. ROXAS II, Secretary of the Department of GOVERNMENT,Respondents.
the Interior and Local Government,Respondents.
x-----------------------x
x-----------------------x
G.R. No. 203469
G.R. No. 203440
ANTHONY IAN M. CRUZ; MARCELO R. LANDICHO;
MELENCIO S. STA. MARIA, SEDFREY M. BENJAMIN NOEL A. ESPINA; MARCK RONALD C.
CANDELARIA, AMPARITA STA. MARIA, RAY RIMORIN; JULIUS D. ROCAS; OLIVER RICHARD V.
PAOLO J. SANTIAGO, GILBERT V. SEMBRANO, and ROBILLO; AARON ERICK A. LOZADA; GERARD
RYAN JEREMIAH D. QUAN (all of the Ateneo Human ADRIAN P. MAGNAYE; JOSE REGINALD A. RAMOS;
Rights Center), Petitioners, MA. ROSARIO T. JUAN; BRENDALYN P. RAMIREZ;
vs. MAUREEN A. HERMITANIO; KRISTINE JOY S.
HONORABLE PAQUITO OCHOA in his capacity as REMENTILLA; MARICEL O. GRAY; JULIUS IVAN F.
Executive Secretary, HONORABLE LEILA DE LIMA in CABIGON; BENRALPH S. YU; CEBU BLOGGERS
her capacity as Secretary of Justice, HONORABLE SOCIETY, INC. PRESIDENT RUBEN B. LICERA, JR;
MANUEL ROXAS in his capacity as Secretary of the and PINOY EXPAT/OFW BLOG AWARDS, INC.
Department of Interior and Local Government, The COORDINATOR PEDRO E. RAHON; Petitioners,
CHIEF of the Philippine National Police, The DIRECTOR vs.
of the National Bureau of Investigation (all of the HIS EXCELLENCY BENIGNO S. AQUINO III, in his
Executive Department of Government),Respondents. capacity as President of the Republic of the Philippines;
SENATE OF THE PHILIPPINES, represented by HON.
x-----------------------x JUAN PONCE ENRILE, in his capacity as Senate
President; HOUSE OF REPRESENTATIVES,
represented by FELICIANO R. BELMONTE, JR., in his
G.R. No. 203453
capacity as Speaker of the House of Representatives;
HON. PAQUITO N. OCHOA, JR., in his capacity as
NATIONAL UNION OF JOURNALISTS OF THE Executive Secretary; HON. LEILA M. DE LIMA, in her
PHILIPPINES (NUJP), PHILIPPINE PRESS capacity as Secretary of Justice; HON. LOUIS
INSTITUTE (PPI), CENTER FOR MEDIA FREEDOM NAPOLEON C. CASAMBRE, in his capacity as Executive
AND RESPONSIBILITY, ROWENA CARRANZA Director, Information and Communications Technology
PARAAN, MELINDA QUINTOS-DE JESUS, JOSEPH Office; HON. NONNATUS CAESAR R. ROJAS, in his
ALWYN ALBURO, ARIEL SEBELLINO AND THE capacity as Director, National Bureau of Investigation;
PETITIONERS IN THE e-PETITION and P/DGEN. NICANOR A. BARTOLOME, in his
http://www.nujp.org/no-to-ra10175/, Petitioners, capacity as Chief, Philippine National Police, Respondents.
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY
x-----------------------x
OF JUSTICE, THE SECRETARY OF THE INTERIOR
AND LOCAL GOVERNMENT, THE SECRETARY OF
BUDGET AND MANAGEMENT, THE DIRECTOR G.R. No. 203501
GENERAL OF THE PHILIPPINE NATIONAL POLICE,
THE DIRECTOR OF THE NATIONAL BUREAU OF PHILIPPINE BAR ASSOCIATION, INC., Petitioner,
INVESTIGATION, THE CYBERCRIME vs.
INVESTIGATION AND COORDINATING CENTER, HIS EXCELLENCY BENIGNO S. AQUINO III, in his
AND ALL AGENCIES AND INSTRUMENTALITIES OF official capacity as President of the Republic of the
GOVERNMENT AND ALL PERSONS ACTING UNDER Philippines; HON. PAQUITO N. OCHOA, JR., in his
THEIR INSTRUCTIONS, ORDERS, DIRECTION IN official capacity as Executive Secretary; HON. LEILA M.
RELATION TO THE IMPLEMENTATION OF DE LIMA, in her official capacity as Secretary of Justice;
REPUBLIC ACT NO. 10175,Respondents. LOUIS NAPOLEON C. CASAMBRE, in his official
capacity as Executive Director, Information and
x-----------------------x Communications Technology Office; NONNATUS
CAESAR R. ROJAS, in his official capacity as Director of
the National Bureau of Investigation; and DIRECTOR
G.R. No. 203454
GENERAL NICANOR A. BARTOLOME, in his official

87
capacity as Chief of the Philippine National PHILIPPINE NATIONAL POLICE, THE HEAD OF
Police, Respondents. THE DO OFFICE OF CYBERCRIME, and THE OTHER
MEMBERS OF THE CYBERCRIME INVESTIGATION
x-----------------------x AND COORDINATING CENTER, Respondents.

G.R. No. 203509 RESOLUTION

BAYAN MUNA REPRESENTATIVE NERI J. ABAD, J.:


COLMENARES, Petitioner,
vs. A number of petitioners seek reconsideration of the Court's
THE EXECUTIVE SECRETARY PAQUITO OCHOA, February 18, 2014 Decision that declared invalid and
JR., Respondent. unconstitutional certain provisions of Republic Act 10125 or
the Cybercrime Prevention Act of 2012 and upheld the
x-----------------------x validity of the others. The respondents, represented by the
Office of the Solicitor General, also seek reconsideration of
portions of that decision. After going over their motions,
G.R. No. 203515
however, the Court sees no substantial arguments from either
side to warrant the reversal of its February 18, 2014 Decision.
NATIONAL PRESS CLUB OF THE PHILIPPINES, INC.
represented by BENNY D. ANTIPORDA in his capacity as
The point about the legislative bicameral committee's
President and in his personal capacity, Petitioner,
insertions of certain provisions that were neither in the House
vs.
bill nor in the Senate bill is something that the Court is not
OFFICE OF THE PRESIDENT, PRES. BENIGNO
inclined to investigate since insertions are within the power of
SIMEON AQUINO III, DEPARTMENT OF JUSTICE,
those committees to make so long as the passage of the law
DEPARTMENT OF INTERIOR AND LOCAL
complies with the constitutional requirements.1 The
GOVERNMENT, PHILIPPINE NATIONAL POLICE,
Cybercrime Prevention Act went through both houses and
NATIONAL BUREAU OF INVESTIGATION,
they approved it. Any issue concerning alleged non-
DEPARTMENT OF BUDGET AND MANAGEMENT
compliance with the governing rules of both houses regarding
AND ALL OTHER GOVERNMENT
committee insertions have to be internally resolved by each
INSTRUMENTALITIES WHO HAVE HANDS IN THE
house.
PASSAGE AND/OR IMPLEMENTATION OF
REPUBLIC ACT 10175, Respondents.
In any event, the Court will briefly address certain aspects of
x-----------------------x the decision that drew the most objections.

Section 6 of the cybercrime law imposes penalties that are one


G.R. No. 203518
degree higher when the crimes defined in the Revised Penal
Code and certain special laws are committed with the use of
PHILIPPINE INTERNET FREEDOM ALLIANCE, information and communication technologies (ICT). Some of
composed of DAKILA- PHILIPPINE COLLECTIVE the petitioners insist that Section 6 is invalid since it produces
FOR MODERN HEROISM, represented by Leni Velasco, an unusual chilling effect on users of cyberspace that would
PARTIDO LAKAS NG MASA, represented by Cesar S. hinder free expression.
Melencio, FRANCIS EUSTON R. ACERO, MARLON
ANTHONY ROMASANTA TONSON, TEODORO A.
Petitioner Bloggers and Netizens for Democracy insist that
CASIÑO, NOEMI LARDIZABAL-DADO, IMELDA
Section 6 cannot stand in the absence of a definition of the
MORALES, JAMES MATTHEW B. MIRAFLOR, JUAN
term "information and communication technology".2 But
G.M. RAGRAGIO, MARIA FATIMA A. VILLENA,
petitioner seems to forget the basic tenet that statutes should
MEDARDO M. MANRIQUE, JR., LAUREN DADO,
not be read in isolation from one another. The parameters of
MARCO VITTORIA TOBIAS SUMAYAO, IRENE
that ICT exist in many other laws. Indeed those parameters
CHIA, ERASTUS NOEL T. DELIZO, CRISTINA
have been used as basis for establishing government systems
SARAH E. OSORIO, ROMEO FACTOLERIN, NAOMI
and classifying evidence.3These along with common usage
L. TUPAS, KENNETH KENG, ANA ALEXANDRA C.
provide the needed boundary within which the law may be
CASTRO, Petitioners,
applied.
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY
OF JUSTICE, THE SECRETARY OF INTERIOR AND The Court had ample opportunity to consider the proposition
LOCAL GOVERNMENT, THE SECRETARY OF that Section 6 violates the equal protection clause via the
SCIENCE AND TECHNOLOGY, THE EXECUTIVE parties’ pleadings, oral arguments, and memoranda. But, as
DIRECTOR OF THE INFORMATION TECHNOLOGY the Decision stressed, the power to fix the penalties for
OFFICE, THE DIRECTOR OF THE NATIONAL violations of penal laws, like the cybercrime law, exclusively
BUREAU OF INVESTIGATION, THE CHIEF, belongs to Congress.
88
In any event, Section 6 of the cybercrime law merely makes qualms, tearing down the reputation of private individuals who
the commission of existing crimes through the internet a value their names and community standing. The law does not
qualifying circumstance that raises by one degree the penalties remotely and could not have any chilling effect on the right of
corresponding to such crimes. This is not at all arbitrary since the people to disagree, a most protected right, the exercise of
a substantial distinction exists between crimes committed which does not constitute libel.
through the use of ICT and similar crimes committed using
conventional means. The majority of the movants believe that the Court’s decision
upholding the constitutionality of Section 4(c)(4), which
The United Nations Special Rapporteur,4 Frank La Rue, penalizes online libel, effectively tramples upon the right to
acknowledged the material distinction. He pointed out that free expression.1âwphi1 But libel is not a protected speech.
"[t]he vast potential and benefits of the Internet are rooted in There is no freedom to unjustly destroy the reputation of a
its unique characteristics, such as its speed, worldwide reach decent woman by publicly claiming that she is a paid
and relative anonymity." For this reason, while many prostitute.
governments advocate freedom online, they recognize the
necessity to regulate certain aspects of the use of this media to As early as 1912, the Court held that libel is a form of
protect the most vulnerable.5 expression not protected by the Constitution.8 Libel, like
obscenity, belongs to those forms of speeches that have never
Not infrequently, certain users of the technology have found attained Constitutional protection and are considered outside
means to evade being identified and for this reason have been the realm of protected freedom. As explained by the US
emboldened to reach far more victims or cause greater harm or Supreme Court in Champlinsky v. New Hampsire:9
both. It is, therefore, logical for Congress to consider as
aggravating the deliberate use of available ICT by those who Allowing the broadest scope to the language and purpose of
ply their wicked trades. the Fourteenth Amendment, it is well understood that the right
of free speech is not absolute at all times and under all
Compared to traditional crimes, cybercrimes are more circumstances. There are certain well-defined and narrowly
perverse. In traditional estafa for example, the offender could limited classes of speech, the prevention and punishment of
reach his victim only at a particular place and a particular which have never been thought to raise any Constitutional
time. It is rare that he could consummate his crime without problem. These include the lewd and obscene, the profane, the
exposing himself to detection and prosecution. Fraud online, libelous, and the insulting or "fighting" words – those which,
however, crosses national boundaries, generally depriving its by their very utterance, inflict injury or tend to incite an
victim of the means to obtain reparation of the wrong done immediate breach of the peace.
and seek prosecution and punishment of the absent criminal.
Cybercriminals enjoy the advantage of anonymity, like It has been well observed that such utterances are no essential
wearing a mask during a heist. part of any exposition of ideas, and are of such slight social
value as a step to truth that any benefit that may be derived
Petitioners share the Chief Justice’s concern for the overall from them is clearly outweighed by the social interest in order
impact of those penalties, being one degree higher than those and morality. "Resort to epithets or personal abuse is not in
imposed on ordinary crimes, including the fact that the any proper sense communication of information or opinion
prescriptive periods for the equivalent cybercrimes have safeguarded by the Constitution, and its punishment as a
become longer.6 criminal act would raise no question under that instrument."
(Emphasis supplied)
Prescription is not a matter of procedure over which the Court
has something to say. Rather, it is substantive law since it The constitutional guarantee against prior restraint and
assumes the existence of an authority to punish a wrong, subsequent punishment, the jurisprudential requirement of
which authority the Constitution vests in Congress alone. "actual malice," and the legal protection afforded by "privilege
Thus, there is no question that Congress may provide a variety communications" all ensure that protected speech remains to
of periods for the prescription of offenses as it sees fit. What it be protected and guarded. As long as the expression or speech
cannot do is pass a law that extends the periods of prescription falls within the protected sphere, it is the solemn duty of
to impact crimes committed before its passage. 7 courts to ensure that the rights of the people are protected.

It is pointed out that the legislative discretion to fix the penalty At bottom, the deepest concerns of the movants seem to be the
for crimes is not absolute especially when this discretion is fact that the government seeks to regulate activities in the
exercised in violation of the freedom of expression. The internet at all. For them, the Internet is a place where a
increase in the penalty for online libel creates, according to everyone should be free to do and say whatever he or she
this view, greater and unusual chilling effect that violates the wants. But that is anarchical. Any good thing can be converted
protection afforded to such freedom. to evil use if there are no laws to prohibit such use. Indeed,
both the United States and the Philippines have promulgated
But what the stiffer penalty for online libel truly targets are laws that regulate the use of and access to the Internet.10
those who choose to use this most pervasive of media without
89
6
The movants argue that Section 4(c)(4) is both vague and Philippine Bar Association, Motion for
overbroad. But, again, online libel is not a new crime. It is Reconsideration, p. 2397; Bloggers and Netizens for
essentially the old crime of libel found in the 1930 Revised Democracy, Motion for Reconsideration, p. 2362.
Penal Code and transposed to operate in the cyberspace.
Consequently, the mass of jurisprudence that secures the 7
People of the Philippine Islands v. Parel, G.R. No.
freedom of expression from its reach applies to online libel. L-18260, January 27, 1923, citing Fiore,
Any apprehended vagueness in its provisions has long been Irretroactividad e Interpretacion de las Leyes, pp.
settled by precedents. 426-428.

The parties' other arguments in their respective motions for 8


Worcester v. Ocampo, 22 Phil. 41 (1912), cited in
reconsideration are mere reiterations that the Court already Bernas, S.J. The 1987 Constitution of the Republic of
considered and ruled upon when it promulgated its earlier the Philippines: A Commentary, 3rd ed., Rex Book
Decision. Store, Manila, 2003.

WHEREFORE, the Court DENIES with finality the various 9


315 U.S. 568 (1942), cited in Gorospe, R.
motions for reconsideration that both the petitioners and the Constitutional Law: Notes and Readings on the Bill
respondents, represented by the Office of the Solicitor of Rights, Citizenship and Suffrage, Vol. I, Rex Book
General, filed for lack of merit. Store, Manila, 2006, p. 672.

SO ORDERED.

Footnotes

* No part.

1
Tatad v. The Secretary of the Department of
Energy, 346 Phil. 321 (1997), citing Tolentino v.
Secretary of Finance, G.R. Nos. 115455, 115525,
115543, 115544, 115754, 115781, 115852, 115873 &
115931, August 25, 1994, 235 SCRA 630.

2
Motion for Reconsideration, p. 2357.

3
An Act Providing And Use Of Electronic
Commercial And Non-Commercial Transactions,
Penalties For Unlawful Use Thereof, And Other
Purposes, Republic Act 8792, June 14, 2000.

4
Special Rapporteur on the promotion and protection
of the right to freedom of opinion and expression.

5
La Rue accepts that "legitimate types of information
… may be restricted [such as] child pornography (to
protect the rights of children), hate speech (to protect
the rights of affected communities), defamation (to
protect the rights and reputation of others against
unwarranted attacks), direct and public incitement to
commit genocide (to protect the rights of others), and
advocacy of national, racial or religious hatred that
constitutes incitement to discrimination, hostility or
violence (to protect the rights of others, such as the
right to life)." (Citations omitted) (A/HRC/17/27,
p.8); see Maria Luisa Isabel L. Rosales, Today the
Internet, Tomorrow Cable TV?: Situating the Internet
as a Human Right, 57 ATENEO L.J. 463, 484-85
(2012).

90